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Agenda Packet 2003/05/13
I declare under penalty of perjury that I ant employed by the City o! Chula Vista in the Office of the City Clerk and that I posted this document on the bulletin board according t(3 Brown Act requirementS. AGENDA r-i~ted ~'~ -C).~ Signed .~. May 13, 2003 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 · OATHS OF OFFICE: Bryan Felber - Planning Commission Clarke Dennison and Sharon Floyd - Town Centre Project Area Committee Reverend Julius Bennett and Karen Batcher - Board of Ethics · PRESENTATION BY MAYOR PADILLA OF A PROCLAMATION TO CHULA VISTA POLICE DEPARTMENT'S EXPLORER SCOUT POST NO. 2831, PROCLAIMING MAY 19, 2003 AS LAW ENFORCEMENT EXPLORER SCOUT APPRECIATION DAY 1N THE CITY OF CHULA VISTA · PRESENTATION BY MAYOR PADILLA OF A PROCLAMATION TO CLIFF SWANSON, DIRECTOR OF ENGINEERING AND DAVE BYERS, DIRECTOR OF PUBLIC WORKS OPERATIONS, PROCLAIMING THE WEEK OF MAY 18, 2003 AS NATIONAL PUBLIC WORKS WEEK · DEDICATION BY MAX BRANSCOMB OF A PLAQUE 1N MEMORY OF DIANE COUSINO, TO BE PLACED IN TIFFANY PARK AT THE NEW TOT LOT CONSENT CALENDAR (Items I through 12.5) The Council will t,a,Jct the staff recommendations regarding the following items listed under the Consert Calendar by one motion, without discussion, unless a Councilmember, a memoer of the public, or City staff requests that an item be removed for discussion. If you wish to speak on one of these items, please fill out a "Request to Speak"form (available in the lobby) and submit it to the City Clerk prior to the meeting. Items pulled from the Consent Calendar will be discussed after Action Items. Items pulled by the public will be the first items of business. 1. WRITTEN CORRESPONDENCE A. Memorandum from Councilmember Patty Davis, requesting an excused absence from the meeting of May 13, 2003. Staff recommendation: Council excuse the absence. B. Letter of resignation from Carmen Quintana de Valladolid - member of the Cultural Arts Commission. Staffrecommendation: Council accept the resignation with regret and direct the City Clerk to post immediately in accordance with the Maddy Act. 2A. ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING THE LEVY OF A SPECIAL TAX WITHIN COMMUNITY FACILITIES DISTRICT NO. 09-M (VILLAGE 11 - BROOKFIELD SHEA OTAY) (SECOND READING AND ADOPTION) B. ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING THE LEVY OF A SPECIAL TAX IN THAT AREA DESIGNATED AS IMPROVEMENT AREA "C" WITHIN COMMUNITY FACILITIES DISTRICT NO. 97-2 (PRESERVE MAINTENANCE DISTRICT) (SECOND READING AND ADOPTION) Special Taxes levied within Community Facilities District 09-M will fund the perpetual operation and maintenance of slopes, medians and parkways, and storm water treatment facilities associated with Village 11 - Brookfield Shea Otay. Special Taxes levied for Community Facilities District 97-2 will fund the costs of the resource monitoring program as well as preserve operations and maintenance. (Director of Engineering) Staff recommendation: Council place the ordinances on second reading for adoption. 3. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING BIDS AND AWARDING CONTRACT FOR THE TRAFFIC SIGNAL MODIFICATION AT THREE INTERSECTIONS ALONG OTAY LAKES ROAD, AND PEDESTRIAN SIGNAL MODIFICATION AT EAST PALOMAR STREET IN THE CITY OF CHULA VISTA (PROJECT TF-305) TO T & M ELECTRIC, DBA PERRY ELECTRIC, 1N THE AMOUNT OF $106,630, AND AUTHORIZING STAFF TO TRANSFER FUNDS TO THIS PROJECT FROM THE "TRAFFIC SIGNAL INSTALLATION AT EAST PALOMAR STREET AND SANTA CORA AVENUE (TF304)" PROJECT, IN THE AMOUNT OF $20,000 AND FROM A CASH BOND ACCOUNT IN THE AMOUNT OF $10,000, OF WHICH EAST PALOMAR STREET TRANSIT DEPOSIT WAS MADE (4/5THS VOTE REQUIRED) The Director of Engineering has received sealed bids from three electrical contractors for this project. The work to be done includes relocation and/or replacement of existing signal standards, mast arms, indications, frameworks, lamps, luminaries, signs and pull boxes, installation of new foundation for signal standards and other concrete and asphalt concrete work, rewiring intersections, sandblasting conflicting and installing new striping, and the protection, restoration and disposal of existing improvements. (Director of Engineering) Staff recommendation: Council adopt the resolution. 4. ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ESTABLISHING A 30 M.P.H. SPEED LIMIT ON OXFORD STREET, BETWEEN BROADWAY AND THIRD AVENUE, AND AMENDING SCHEDULE X OF THE REGISTER AS MAINTAINED BY THE OFFICE OF THE CITY ENGINEER Page 2 - CouncilAgenda 05/13/03 Based on the provisions of California Vehicle Code Section 22358 and pursuant to authority designated under Chula Vista Municipal Code Section 10.48.020, the City Engineer has determined that, based on a Traffic Engineering Study, the speed limit on Oxford Street between Broadway and Third Avenue should be decreased from the existing posted 35 m.p.h, to 30 m.p.h. (Director of Engineering) Staffrecommendation: Council place the ordinance on first reading. 5. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA OF INTENTION TO CONSIDER CHANGES AND MODIFICATIONS TO THE RATE AND METHOD OF APPORTIONMENT FOR COMMUNITY FACILITIES DISTRICT NO. 08-1 (OTAY RANCH VILLAGE SIX) Otay Project, L.P. has requested that the City of Chula Vista initiate proceedings to consider changes and modifications in the Rate and Method of Apportionment of special taxes authorized to be levied in Community Facilities District No. 08-I resulting from a proposed adjustment to the assigned special tax obligation for the property within Community Facilities District No. 08-1 (Otay Ranch Village Six) (CFD 08-I). (Director of Engineering) Staff recommendation: Council adopt the resolution. 6 A. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE FINAL "B" MAPS OF CHULA VISTA TRACT NO. 96-04B, OTAY RANCH, VILLAGE FIVE, NEIGHBORHOODS R-30A AND R-30B, ACCEPTING ON BEHALF OF THE CITY OF CHULA VISTA, THE EASEMENTS GRANTED ON SAID MAPS WITHIN SAID SUBDIVISION, APPROVING THE SUBDIVISION IMPROVEMENT AGREEMENT FOR THE COMPLETION OF IMPROVEMENTS REQUIRED BY SAID SUBDIVISION, AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT B. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE "B" MAP SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR OTAY RANCH VILLAGE FIVE, NEIGHBORHOOD R-30A AND R-30B, PORTION OF VILLAGE FIVE, OTAY RANCH SPA ONE, REQUIRING DEVELOPER TO COMPLY WITH CERTAIN UNFULFILLED CONDITIONS OF RESOLUTION NO. 2001-291, AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT On August 28, 2001, the City Council approved a revised tentative map for Village Five, neighborhoods R-30 and R-39 of Otay Ranch, Sectional Planning Area One. Adoption of the resolutions approves the Final "B" Map for R-30A and R-30B and associated agreements. (Director of Engineering) Staff recommendation: Council adopt the resolutions. Page 3 - Council Agenda 05/13/03 7. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AN AMENDMENT TO THE CHULA VISTA PORTION OF THE FIVE- YEAR TRANSNET LOCAL STREETS AND ROADS PROGRAM OF PROJECTS FOR FISCAL YEARS 2002/2003 THROUGH 2006/2007, AND AUTHORIZING ITS SUBMITTAL TO THE SAN DIEGO ASSOCIATION OF GOVERNMENTS (SANDAG) FOR INCLUSION IN THE REGIONAL TRANSPORTATION IMPROVEMENT PROGRAM On April 16, 2002, the Chula Vista City Council held a public heating and approved Resolution 2002-117, adopting the five-year Regional Transportation Improvement Program (RTIP). SANDAG has requested local agencies to review the biennial element of the current RTIP and submit any proposed changes to SANDAG. This amendment to the Fiscal Years 2002/2003 through 2006/2007 RT1P primarily concerns changes to the cost estimates and new submittals for non-capacity increasing projects to be funded by Transportation Sales Tax (TransNet) funds. The SANDAG Board of Directors will consider the subject amendments at its June meeting. (Director o f Engineering) Staff recommendation: Council adopt the resolution. 8. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ORDERING THE SUMMARY VACATION OF CERTAIN SEWER, DRAINAGE, AND SLOPE STABILIZATION EASEMENTS LOCATED WITHIN THE LIMITS OF LOT H OF CHULA VISTA TRACT NO. 01-09, EASTLAKE III WOODS NEIGHBORHOOD 4, MAP NO. 14394 Developer requested and staff concurred to process a summary vacation of certain existing sewer, drainage, and slope easements located within the limits of the proposed elementary school site (Lot H of Map No. 14394 Eastlake III Woods Neighborhood 4). The sewer and drainage easements are no longer needed because the associated sewer and drainage facilities have been relocated in order to provide more usable area and flexibility for the site design of the elementary school. The slope stabilization easement is no longer needed for the construction of Hunte Parkway. In accordance with Section 7050 of the California Government Code and Chapter 4, Section 8335 of the California Streets and Highways Code, this type of vacation may be performed summarily through adoption ora resolution. (Director of Engineering) Staff recommendation: Council adopt the resolution. 9 A. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE FINAL MAP OF CHULA VISTA TRACT NO. 03-04, EASTLAKE LANDSWAP RESIDENTIAL; ACKNOWLEDGiNG ON BEHALF OF THE CITY OF CHULA VISTA THE IRREVOCABLE OFFER OF DEDICATION FOR OPEN SPACE PURPOSES GRANTED ON SAID MAP WITHIN SAID SUBDIVISION; ACCEPTING ON BEHALF OF THE CITY OF CHULA VISTA THE VARIOUS EASEMENTS, ALL AS GRANTED ON SAID MAP WITHIN SAID SUBDIVISION Page 4 - Council Agenda 05/13/03 B. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROViNG A SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR CHULA VISTA TRACT NO. 03-04, EASTLAKE LANDSWAP RESIDENTIAL, REQUIRING EASTLAKE COMPANY, LLC TO COMPLY WITH CERTA1N UNFULFILLED CONDITIONS OF RESOLUTION NO. 2003-141, AND AUTHORIZiNG THE MAYOR TO EXECUTE SAID AGREEMENT On April 8, 2003, the City council approved the tentative subdivision map for Chula Vista Tract No. 03-04, EastLake Landswap Residential. Adoption of the resolution approves the final map and the associated supplemental subdivision improvement agreement. (Director of Engineering) Staff recommendation: Council adopt the resolutions. 10. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA REALLOCATING $9,100 FROM FISCAL YEAR 2002-2003 CDBG HI- TECII/BIOTECH FEE REDUCTION PROGRAM FUNDS; APPROPRIATiNG SAID FUNDS FOR ECONOMIC DEVELOPMENT CONSULTANT SERVICES; AND AUTHORIZING THE COMMUNITY DEVELOPMENT DIRECTOR TO EXECUTE SAID AGREEMENT (4/5THS VOTE REQUIRED) The Community Development Department is responsible for creating and implementing numerous business retention, expansion and attraction efforts to build a strong and vibrant local economy. To augment these efforts, the department wishes to retain the consulting services of Shelly Bailey who has a high level of expertise in the field of economic development and has previously worked with the Chula Vista business community. (Director o f Community Development) Staff recommendation: Council adopt the resolution. 11. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AN AGREEMENT BETWEEN THE CITY OF CHULA VISTA, BURKETT & WONG ENGINEERS (CONSULTANT), AND OTAY PROJECT, L.P., FOR THE PREPARATION OF A PUBLIC FACILITIES FINANCING PLAN AND FISCAL IMPACT ANALYSIS FOR OTAY RANCH VILLAGE TWO, VILLAGE THREE AND PLANNING AREA 18B, AND AUTHORIZiNG THE MAYOR TO EXECUTE SAID AGREEMENT Otay Project, L.P., (The Otay Ranch Company) has submitted a Sectional Planning Area (SPA) Plan for Village Two, Three and Planning Area 18B of Otay Ranch. The Otay Ranch General Development Plan and the City's Growth Management Ordinance require the preparation of a Public Facilities Financing Plan (PFFP) with each SPA Plan in order to evaluate the project under the City's Growth Management Threshold Standards. The applicant will assume the full cost of the PFFP document. Staff conducted a formal selective bidding process, and selected the firm of Burkett & Wong Engineers to prepare the PFFP for the Village Two, Three and Planning Area 18B SPA Plan because of their unique qualifications, proposed cost, knowledge of the project and past experience in PFFP preparation. (Director of Planning and Building) Staff recommendation: Council adopt the resolution. Page 5 - Council Agenda 05/13/03 12. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMENDING FISCAL YEAR 2003 LIBRARY DEPARTMENT BUDGET AND APPROVING THE RECLASSIFICATION AND SALARY ADJUSTMENT OF ONE PRINCIPAL LiBRARIAN TO A NEW MID-MANAGEMENT CLASSIFICATION OF LIBRARY PUBLIC SERVICES MANAGER (4/5THS VOTE REQUIRED) Adoption of the resolution amends the Fiscal Year 2003 Library Department budget and approves the reclassification of a Principal Librarian to Library Public Services Manager as a result of increases in the level and complexity of duties and responsibilities currently assigned. (Director of Human Resources) Staff recommendation: Council adopt the resolution. 12.5 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AN AGREEMENT FOR CONTRIBUTION OF FUNDS BY AND BETWEEN THE CITY OF CHULA VISTA AND SAN DIEGO EXPRESSWAY, L.P., A CALiFORNIA LIMITED PARTNERSHIP, THROUGH CALiFORNIA TRANSPORTATION VENTURES, INC., A CALIFORNIA CORPORATION, ITS GENERAL PARTNER, AND APPROPRIATING $1,414,500 FROM THE INTERIM STATE ROUTE 125 DEVELOPMENT IMPACT FEE FUND California Transportation Ventures, Inc. (CTV) and the Plaintiffs in the lawsuit involving State Route 125 (SR-125) are interested in reaching a settlement. In conjunction therewith, the City, the developers, and CTV have also been in discussion regarding a local contribution toward the settlement. This item is an agreement between the City and CTV concerning the use of Interim SR-125 Development Impact Fee monies to assist in that endeavor. By so doing, the City will help assure the timely construction of the SR- 125 toll road facility, which is an integral part of our transportation system. (City Manager) Staff recommendation: Council adopt the resolution. ORAL COMMUNICATIONS Persons speaking during Oral Communications may address the Council on any subject matter within the Council's jurisdiction that is not listed as an item on the agenda. State law generally prohibits the Council from taking action on any issue not included on the agenda, but, if appropriate, the Council may schedule the topic for future discussion or refer the matter to staff. Comments are limited to three minutes. PUBLIC ItEARINGS 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. Page 6 - Council Agenda 05/13/03 13. CONSIDERATION OF AMENDMENTS TO CHAPTER VII - RECREATION PROGRAMS/FACILITIES OF THE MASTER FEE SCHEDULE (CONTINUED FROM THE MEETING OF MAY 6, 2003) The Recreation Department is currently engaged in a strategic plan process to articulate priorities essential to fulfilling departmental and City missions for the next five years. In committee meetings of staff and community members, there has been consensus that the department should review and update fees as part of this process. (Director of Recreation) Staff recommendation: Council conduct the public hearing and adopt the following resolution: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMENDING THE MASTER FEE SCHEDULE TO EFFECT CHANGES IN EXISTING FEES AND ADD NEW FEES FOR RECREATION (4/5THS VOTE REQUIRED) 14. CONSIDERATION OF ADOPTION OF AN URGENCY ORDiNANCE APPROVING AN INCREASE OF THE SEWERAGE CAPACITY CHARGE AND THE MODIFICATION OF THE MASTER FEE SCHEDULE On March 18, 2003 and on April 15, 2003, City Council approved Urgency Ordinance Nos. 2900-A and 2900-B, approving an increase of the Sewerage Capacity Charge and the modification of the Master Fee Schedule to reflect an increase in the sewerage capacity charge. Adoption of this urgency ordinance enables the City to continue to collect the charge during the sixty-day waiting period before the regular ordinance becomes effective. (Director of Engineering) Staff recommendation: Council conduct the public hearing and adopt the following urgency ordinance: URGENCY ORDINANCE APPROVING AN INCREASE OF THE SEWERAGE CAPACITY CHARGE AND THE MODIFICATION OF THE MASTER FEE SCHEDULE (4/STHS VOTE REQUIRED) 15. CONSIDERATION OF THE PROPOSED CHANGE AND MODIFICATION TO THE RATE AND METHOD OF APPORTIONMENT FOR IMPROVEMENT AREA B FOR COMMUNITY FACILITIES DISTRICT NO. 06-I (EASTLAKE-WOODS, VISTAS AND LAND SWAP) (CONTINUED FROM TIlE MEETING OF MAY 6, 2003) On March 18, 2003, the City Council approved the resolution of intention to consider changes and modifications to the Rate and Method of Apportionment for Improvement Area B of Community Facilities District No. 06-I (EastLake-Woods, Vistas and Land Swap) ("CFD No. 06-I"). Adoption of the resolution continues the formal proceedings to consider such modifications to the Rate and Method of Apportionment for Improvement Area B of CFD 06-I, subject to approval of the qualified electors. (Director of Engineering, Director of Finance) Staff recommendation: Council conduct the public hearing and adopt the following resolution: Page 7 - Council Agenda 05/13/03 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA MAK1NG CERTA1N DETERMINATIONS AND AUTHORIZING THE SUBMITTAL OF THE PROPOSED MODIFICATIONS OF THE RATE AND METHOD OF APPORTIONMENT FOR IMPROVEMENT AREA B OF COMMUNITY FACILITIES DISTRICT NO. 06-1 (EASTLAKE-WOODS, VISTAS AND LAND SWAP) TO THE QUALIFIED ELECTORS THEREOF 16. CONSIDERATION OF AUTHORIZATION OF THE ANNEXATION OF TERRITORY TO COMMUNITY FACILITIES DISTRICT NO. 06-I (EASTLAKE WOODS, VISTAS, AND LAND SWAP), AND IMPROVEMENT AREA B (CONTINUED FROM THE MEET1NG OF MAY 6, 2003) On March 25, 2003 Council adopted a resolution declaring the intention to authorize the annexation of territory to Community Facilities District No. 06-I and Improvement Area B thereto. Adoption of the resolution continues the formal proceedings to consider the authorization to annex such territory to CFD No. 06-1 and Improvement Area B thereto, subject to the approval by the qualified electors of the levy of special taxes within such territory proposed to be annexed. (Director of Engineering) Staff recommendation: Council conduct the public heating and adopt the following resolution: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA MAKING CERTA1N DETERMINATIONS AND AUTHORIZING THE SUBMITTAL OF THE LEVY OF SPECIAL TAXES TO THE QUALIFIED ELECTORS OF CERTAIN TERRITORY PROPOSED TO BE ANNEXED TO COMMUNITY FACILITIES DISTRICT NO. 06-I (EASTLAKE - WOODS, VISTAS AND LAND SWAP) AND IMPROVEMENT B THERETO 17. CONSIDERATION OF THE FINAL CHULA VISTA MULTIPLE SPECIES CONSERVATION PROGRAM (MSCP) SUBAREA PLAN, FINAL SUPPLEMENTAL ENVIRONMENTAL IMPACT REPORT AND ENVIRONMENTAL ASSESSMENT (EIR NO. 03-01), REVISED MITIGATION AND IMPLEMENTING AGREEMENT MONITORING PROGRAM, AMENDMENT TO THE CHULA VISTA GENERAL PLAN, DRAFT IMPLEMENTING AGREEMENT BETWEEN THE CITY OF CHULA VISTA, THE UNITED STATES FISH AND WILDLIFE SERVICE AND THE CALIFORNIA DEPARTMENT OF FISH AND GAME, AND INTRODUCTION OF DRAFT IMPLEMENTING ORDINANCES (PCM 95-017 AND GPA 03-07); AND CONSIDERATION OF AN AMENDMENT TO THE SALT CREEK RANCH GENERAL DEVELOPMENT PLAN, SECTIONAL PLANNING AREA PLAN AND TENTATIVE MAP (C.V.T. MAP NO. 92-02A) AND SUPPORTING REGULATORY DOCUMENTS FOR THE ROLLING HILLS RANCH PROJECT (PREVIOUSLY KNOWN AS "SALT CREEK"), AND ADDENDUM TO FINAL EIR NO. 91-03 FOR THE SALT CREEK RANCH SECTIONAL PLANNING AREA PLAN Page 8 - Council Agenda 05/13/03 The MSCP Subregional Plan is a comprehensive, long-term habitat conservation planning program that addresses the habitat needs of sensitive species through preservation of native vegetation communities within southwestern San Diego County. The City of Chula Vista's Final MSCP Subarea Plan has been prepared to implement the MSCP Subregional Plan within the City of Chula Vista and will form the basis for issuance of federal and state incidental take permits to the City of Chula Vista for 86 species covered by the City's Subarea Plan. The Subarea Plan and associated implementing documents will establish a Preserve of approximately 5,000 acres which will be assembled over time and will also allow the City to issue permits for development projects that may impact covered species. (Director o f Planning and Building) Staff recommendation: Council conduct the' public heating, place the following ordinances on first reading and adopt the following resolutions: A. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA CERTIFYING THE SUPPLEMENTAL ENVIRONMENTAL IMPACT REPORT AND ENVIRONMENTAL ASSESSMENT (NO. 03-01) PREPARED FOR THE CITY OF CHULA VISTA MULTIPLE SPECIES CONSERVATION PROGRAM (MSCP) SUBAREA PLAN; ADOPTING THE MSCP SUBAREA PLAN, SUBJECT TO THE CONDITIONS CONTAINED HEREIN; F1NDING THAT THE IMPLEMENTING AGREEMENT, DATED FEBRUARY 2003, IS CONSISTENT WITH THE CHULA VISTA MSCP SUBAREA PLAN; AUTHORIZING THE MAYOR TO EXECUTE THE IMPLEMENTING AGREEMENT 1N SUBSTANTIAL FORM OF THE IMPLEMENTING AGREEMENT, DATED FEBRUARY 2003, WITH MINOR CHANGES APPROVED BY THE CITY ATTORNEY AND CITY MANAGER WITH THE EFFECTIVENESS OF SAID AGREEMENT CONDITIONED AS STATED HEREIN; AMENDING THE CITY OF CHULA VISTA GENERAL PLAN TO INCORPORATE THE MSCP SUBAREA PLAN AS PART 2, CHAPTER 7A; APPROVING THE REVISED MSCP MITIGATION AND IMPLEMENTING AGREEMENT MONITORING PROGRAM, DATED FEBRUARY 2003 B. ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMENDING TITLE 15, CHAPTER 15.04 OF THE CHULA VISTA MUNICIPAL CODE RELATING TO EXCAVATION, GRADING AND FILLS AS IT RELATES TO IMPLEMENTATION OF THE MULTIPLE SPECIES CONSERVATION PROGRAM SUBAREA PLAN C. ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMEND1NG CHAPTER 17 OF THE CHULA VISTA MUNICIPAL CODE TO REPEAL SECTION 17.30 RELATING TO INTERIM COASTAL SAGE SCRUB HABITAT LOSS PERMIT PROCESS, AND IN ITS PLACE, ADD THE OTAY RANCH GRAZING FOR IMPLEMENTATION OF THE MSCP SUBAREA PLAN D. ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMENDING CHAPTER 17 OF THE CHULA VISTA MUNICIPAL CODE TO ADD SECTION 17.35 RELATING TO HABITAT LOSS AND INCIDENTAL TAKE FOR IMPLEMENTATION OF THE MULTIPLE SPECIES CONSERVATION PROGRAM SUBAREA PLAN Page 9 - Council Agenda 05/13/03 E. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AND ESTABLISHING CONDITIONS OF THE AMENDING TENTATIVE SUBDIVISION MAP FOR ROLLING HILLS RANCH SUBAREA III (FORMERLY SALT CREEK RANCH), 92-20A F. ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AMENDMENTS TO THE SALT CREEK RANCH PLANNED COMMUNITY DISTRICT REGULATIONS TO AMEND THE ZONING DISTRICTS MAP AND PROPERTY DEVELOPMENT STANDARDS TO DELETE NEIGHBORHOOD 13, CHANGE THE DESIGNATION OF NEIGHBORHOOD 9 FROM SFE TO SF1, AND REDUCE THE MINIMUM LOT SIZE OF NEIGHBORHOOD 9 FROM 15,000 TO 10,000 SQUARE FEET BOARD AND COMMISSION REPORT 18. PRESENTATION OF A REPORT BY JOHN MOOT, CHAIRPERSON OF THE SCHOOLS TASK FORCE On July 9, 2002, the City Council approved a motion to create a joint City/Schools Task Force comprised of 15 representatives. Five members each were appointed by the Chula Vista City Council, the Sweetwater Union High School District and the Chula Vista Elementary School District. The Task Fome was created in response to parental concern about ovemrowded schools and was asked to make recommendations to improve City and school district financing, planning, and development of school facilities. (City Manager) Recommendation: Council refer to staff. ITEMS PULLED FROM THE CONSENT CALENDAR OTHER BUSINESS 19. CITY MANAGER'S REPORTS 20. MAYOR'S REPORTS A. Ratification of appointment to the Board of Appeals and Advisors: Donald Snider B. Ratification of appointment to the Board of Appeals and Advisors: Matt Flach 21. COUNCIL COMMENTS Page 10 - Council Agenda 05/13/03 May 8th, 2003 MEMO TO: The . ~: Honorable Mayor & :ity Council FI~OM: Patty Wes SUB,I'ECT: REQUEST FOR EXCUSED ABSENCE Councilmember Patty Davis left a voice message last evening announcing that she would be departing for Washington, D. C. the morning of May 8th. To that end, she has directed that T prepare a memo requesting an excused absence from the City Council meeting of May 13th. Thank you. Cc: City Manager City Attorney City Clerk RECEIVED 'I~ I~T -5 P2:41 May 1, 2003 C}1¥ ~c ~' ~ ~,Nt. JLA V 51, CiTY CLERK'S OFFICL Loraine Bennett City Clerk's Office 276 4th Ave. Chula Vista, CA Dear Loraine, I will be unable to continue as a Commissioner for the Cultural ,an'ts Board. Please consider this as my letter of resignation. I have to care for my mother who is in the terminal stage of her illness. I have thoroughly enjoyed my role as commissioner. The members are all hard working people who a great vision for the arts in Chula Vista. I have learned much from all of them and will miss them. They are wonderful people. Sincerely, ~ -, ~, Carmen E. Quintana de Valladolid ORDINANCE OF THE CITY COUNCIL VISTA, CALIFORNIA AUTHORIZING THE LEVY OF A SPECIAL TAX WITHIN COMMUNITY FACILITIES DISTRICT NO. 09M (VILLAGE 11 BROOKFIELD SHEA OTAY) WHEREAS, the CITY COUNCIL of the CITY OF CHULA VISTA, CALIFORNIA (the "City Council"), has initiated proceedings, held a public hearing, conducted an election and received a favorable vote from the qualified electors authorizing the levy of a special taxes in a community facilities district, all as authorized pursuant to the terms and provisions of the "Mello-Roos Community Facilities Act of I982", being Chapter 2.5, Part 1. Division 2, Title 5 of the Government Code of the State of California (the "Act") and the City of Chula Vista Community Facilities District Ordinance enacted pursuant to the powers reserved by the City of Chula Vista under Sections 3, 5 and 7 of Article XI of the Constitution of the State of California (the "Ordinance") (the Act and the Ordinance may be referred to collectively as the "Community Facilities District Law"). This Community Facilities District is designated as COMMUNITY FACILITIES DISTRICT NO. 09M (VILLAGE 11 BROOKFIELD SHEA OTAY) (the "District"). The City Council of the City of Chula Vista, Califomia, acting as the legislative body of Community Facilities District No. 09M (Village 11 Brookfield Shea Otay), does hereby ordain as follows: SECTION 1. This City Council does, by the passage of this ordinance, authorize the levy of special taxes within the District pursuant to the Rate and Method of Apportionment of Special Taxes as set forth in Exhibit "A' attached hereto (the "Rate and Method"), referenced and so incorporated. SECTION 2. This City Council, acting as the legislative body of the District, is hereby further authorized, by Resolution, to annually determine the special taxes to be levied within the District for the then current tax year or future tax years, except that the special tax to be levied within the District shall not exceed the maximum special tax calculated pursuant to the Rate and Method, but the special tax may be levied at a lower rate. SECTION 3. The special taxes herein authorized, to the extent possible, shall be collected in the same manner as ad valorem property taxes and shall be subject to the same penalties, procedure, sale and lien priority in any case of delinquency as applicable for ad valorem taxes; provided, however, the District may utilize a direct billing procedure for any special taxes that cannot be collected on the County tax roll or may, by resolution, elect to collect the special taxes at a different time or in a different manner if necessary to meet its financial obligations. SECTION 4. The special taxes shall be secured by the lien imposed pursuant to Sections 3114.5 and 3115.5 of the Streets and Highways Code of the State of California, which lien shall be a continuing lien and shall secure each levy of the special tax. The lien of the special tax shall canceled in accordance with Section 53344 of the Govemmsa[l~t~. o'f the State of California or until the special tax ceases to be levied by the City Counc~'I tn the manner provided in Section 53330.5 of said Government Code. SECTION 5. This Ordinance shall be effective thirty (30) days after its adoption. Within fifteen (15) days after its adoption, the City Clerk shall cause this Ordinance to be published in a newspaper of general circulation in the City pursuant to the provisions of Government Code Section 36933. Introduced at a regular meeting of the City Council of the City of Chula Vista, California, on ,2003; Enacted at a regular meeting of the City Council of the City of Chula Vista, California, held on the day of _, 2003, by the following vote: AYES: NOES: ABSTAIN: ABSENT: ATTEST APPROVED AS TO FORM: Clifford Swanson Ann Moore Director of Engineering City Attorney J:Attomey\Reso\Ordinance\Ord Authorize Levy o~'Special Tax CFD 09M DOft\\O~ f',~\) t>1 ORDINANCE NO. R't:.f',\)\~G <;.CO~\) ORDINANCE OF THE CITY COUNCIL OF TH~"(;ITY OF CHULA VISTA, CALIFORNIA, AUTHORIZING THE LEVY OF A SPECIAL TAX IN THAT AREA DESIGNATED AS IMPROVEMENT AREA "C" OF COMMUNITY FACILITIES DISTRICT NO. 97-2 (PRESERVE MAINTENANCE DISTRICT) WHEREAS, the CITY COUNCIL of the CITY OF CHULA VISTA, CALIFORNIA (the "City Council"), has initiated proceedings, held a public hearing, conducted an election and received a favorable vote from the qualified electors authorizing the levy of a special tax in an area annexed (the "Annexation Area") to an existing community facilities district and Improvement Area "C" thereto, all as authorized pursuant to the terms and provisions of the "Mello-Roos Community Facilities Act of 1982", being Chapter 2.5, Part I. Division 2, Title 5 of the Government Code of the State of California (the "Act") and the City of Chula Vista Community Facilities District Ordinance enacted pursuant to the powers reserved by the City of Chula Vista under Sections 3, 5 and 7 of Article XI of the Constitution of the State ofCàlifornia (the "Ordinance") (the Act and the Ordinance may be referred to collectively as the "Community Facilities District Law"). This Community Facilities District is designated as COMMUNITY FACILITIES DISTRICT NO. 97-2 (PRESERVE MAINTENANCE DISTRICT) (the "District"). The City Council of the City of Chula Vista, California, acting as the legislative body of Community Facilities District No. 97-2 (Preserve Maintenance District), does hereby ordain as follows: SECTION I. This City Council does, by the passage of this ordinance, authorize the levy of special taxes within the Annexation Area pursuant to the Rate and Method of Apportionment of Special Taxes as set forth in Exhibit "A" attached hereto (the "Rate and Method"), referenced and so incorporated. SECTION 2. This City Council, acting as the legislative body of the District, is hereby further authorized, by Resolution, to annually determine the special tax to be levied for the then current tax year or future tax years, except that the special tax to be levied shall not exceed the maximum special tax calculated pursuant to the Rate and Method, but the special tax may be levied at a lower rate. SECTION 3. The special taxes herein authorized, to the extent possible, shall be collected in the same manner as ad valorem property taxes and shall be subject to the same penalties, procedure, sale and lien priority in any case of delinquency as applicable for ad valorem taxes; provided, however, the District may utilize a direct billing procedure for any special taxes that cannot be collected on the County tax roll or may, by resolution, elect to collect the special taxes at a different time or in a different manner if necessary to meet its financial obligations. ;¿B- I I SECTION 4. The special tax shall be secured by the lien imposed pursuant to Sections 3114.5 and 3115.5 of the Streets and Highways Code of the State of California, which lien shall be a continuing lien and shall secure each levy of the special tax. The lien of the special tax shall continue in force and effect until the special tax obligation is prepaid, permanently satisfied and canceled in accordance with Section 53344 of the Government Code of the State of California or until the special tax ceases to be levied by the City Council in the manner provided in Section 53330.5 of said Government Code. SECTION 5. This Ordinance shall be effective thirty (30) days after its adoption. Within fifteen (15) days after its adoption, the City Clerk shall cause this Ordinance to be published in a newspaper of general circulation in the City pursuant to the provisions of Government Code Section 36933. ATTEST APPROVED AS TO FORM: Cliff Swanson Director of Engineering 0-~ Ann Moore City Attorney J:Attomey\Reso\Ordinance\Ord Authorize Levy of Special Tax CFD 97-2 Annex Map No. 31A C 28-Z . 2 COUNCIL AGENDA STATEMENT Item --~ Meeting Date 05/13/03 ITEM TITLE: Resolution Accepting bids and awarding contract for the "Traffic Signal Modification at Three Intersections along Otay Lakes Road and Pedestrian Signal Modification at East Palomar Street in the City of Chula Vista, California (TF-305)" project to T & M Electric, dba Perry Electric in the amount of $106,630.00 and authorizing staff to transfer funds to this project from the "Traffic Signal Installation at East Palomar Street and Santa Cora Avenue (TF304)" project in the amount of $20,000.00 and from a cash bond account in the amount of $10,000.00, of which East Palomar Street transit deposit was made. SUBMITTED BY: Director ofEngineering, l~fl REVIEWED BY: City Manager '~: ~72 (4/5ths Vote: Yes. X No__) At 2:00 p.m. on April 16, 2003, the Director of Engineering received sealed bids from three (3) electrical contractors for the "Traffic Signal Modification at Three Intersections along Otay Lakes Road and Pedestrian Signal Modification at East Palomar Street in the City of Chula Vista, California (TF-305)" project. The work to be done includes, but is not limited to, the following: Relocation and/or replacement of existing with new signal standards, mast arms, indications, frameworks, lamps, luminaires, signs and pull boxes, installation of new foundation for signal standards and other concrete and asphalt concrete work, rewiring intersections, sandblasting conflicting and installing new striping, public convenience and safety and the protection, restoration and disposal of existing improvements. RECOMMENDATION: That Council accept bids and award contract for the "Traffic Signal Modification at Three Intersections along Otay Lakes Road and Pedestrian Signal Modification at East Palomar Street in the City of Chula Vista, California (TF-305)" project to T & M Electric, dba Perry Electric in the amount of $106,630.00, and authorize staff to transfer funds to this project from the "Traffic Signal Installation at East Palomar Street and Santa Cora Avenue (TF304)" project in the amount of $20,000.00 and from a cash bond account in the amount orS 10,000.00, of which East Palomar Street transit deposit was made. BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. Page 2, Item Meeting Date 05/13/03 DISCUSSION: The traffic signal modification at the subject locations was initially approved and budgeted for the Fiscal Year (FY) 2002-2003 Capital Improvement Program (CIP). The source of capital funding for this project is the traffic signal fund. The work includes upgrading three intersections from a permissive to a protected permissive phasing along Otay Lakes Road. This protected phasing modification will allow motorists to turn left safely onto the side street traffic, thereby reducing intersection traffic collision, minimizing delays and promoting air quality. The following are the intersections to be modified as part ofthis project: 1) Otay Lakes Road and Allen School Lane/Camino Elevado 2) Otay Lakes Road and Surrey Road/Camino Cerro Grande, and 3) Otay Lakes Road and Avenida Del Rey/Ridgeview Drive. A fourth intersection at Fourth Avenue and Orange Avenue was included in the TF-305 project. However, federal funds under the Hazard Elimination Safety (HES) were approved for this intersection. Staff elected to create a new project for this intersection in the upcoming fiscal year in order to simplify the submission of federal documentation and the process of which federal fund reimbursements are requested. The preliminary design and original scope of work for the signal modifications at four intersections was estimated to cost $147,000.00. However, the project's approved budgeted funds for the FY02- 03 year were only $100,000.00. Recent increases in material costs have caused a hike in construction costs, and as a result, City staff was challenged in meeting the budgeted amount without compromising complete modification work for this project. The cost now to complete the three intersections is $130,000. Therefore, staff decided to request the additional funds at the time the contract is awarded in order to complete the work. Most of the traffic engineering projects for FY02-03 are completed including the "Traffic Signal Installation at East Palomar Street and Santa Cora Avenue, TF-304." This project still has $40,000.00 in available traffic signal funds. Staff requests that a transfer of funds from TF-304 to TF-305 be approved in the amount of $20,000.00 to cover a portion of the construction costs for the traffic signal modification project. In addition, pedestrian signal modification was included to this project. This signal ~vork is estimated to cost $10,000.00, which is the amount being requested to transfer of funds from East Palomar Street transit deposit (Village 1 Core Bus Turnout Priority Signal) to TF-305 in order to cover the costs for construction. Page 3, Item Meeting Date 05/13/03 Bidding Process Traffic engineering staff recently prepared plans and specifications for this project. Staff also prepared a recent cost estimate of $107,650.00 using average unit prices of recently received bids from contractors on similar types of projects. On April 16, 2003, staffreceived bids from the following contractors: 1 T & M Electric dba Perry Electric $106,630.00 4 HMS Construction, Inc. $127,131.90 2 Lekos Electric, Inc. $163,532.00 The low bid, submitted by T & M Electric, dba Perry Electfic of $106,630.00 is below the final engineer's estimate of $107,650.00 by $1,020.00 or approximately 1%. The Contractor has completed recent projects in the City with a favorable performance. Disclosure Statement Attached is a copy of the contractor's Disclosure Statement. Environmental Status The work involved in this project is exempt under Section 15301, Class lc of the California Environmental Quality Act (Minor Alterations of Existing Public Improvements or Public Structures). Form of Agreement The Contract will be awarded on the City's standard Engineering Contract form. The City Attorney will approve the final form of the contract. FISCAL IMPACT: FUNDS REQUIRED FOR CONSTRUCTION A. Contract Amount (T&M Electric dba Perry Electric) $106,630.00 B. Staff Costs (Design, Inspection, Contract Administration) $15,000.00 C. Construction Contingencies ' $8 370.00 TOTAL FUNDS REQUIRED FOR CONSTRUCTION $130,000.00 Page 4, Item ~ Meeting Date 05/13/03 FUNDS AVAILABLE FOR CONSTRUCTION 9130 (Village I Core Bus Turnout Priority Signal Project) TOTAL FUNDS AVAILABLE FOR CONSTRUCTION $130,000.00 There will be additional costs estimated at $1,000.00 per ye~ associated with this project to cover annual energy and mainten~ce costs. Attachments: Contractor's Disclosure Statement Statement of Amount for E. Palomar Transit Deposit J:\Engineer~AGENDA\TF305 A 113.mlcm.doc TIlE CITY OF CHULA VISTA DISCLOSURE STATEMENT Pursuant to Council Policy I01-01, prior to any action upon matters, which will require discretionary action by the Council, Planning Commission and all other official bodies of the City, a statement of disclosure of certain ownership or financial interests, payments, or campaign contributions for a Ci~ of Chula Vista election must be filed. The following information must be disclosed: 1. List the names of all persons having a financial interest in the property that is the subject of the application or the contract, e.g., owner, applicant, contractor, subcontractor, and material supplier. 2. If any person* identified pursuant to (1) above is a corporation or partnership, list the names of all individuals with a $2000 investment in the business (corporation/partnership) entity. 3. If any person* identified pursuant to (1) above is a non-profit organization or trust, list the names of any person serving as director of the non-profit organization or as trustee or beneficiary or trustor of the Wast. - 4. Please identify every person, including any agents, employees, consultants, or independent contractors you have assigned to represent you before the City in this matter. 16 J:\engineer\aDMIN\cONTRAC%tf305_03_2.doc .~ 5. Has any person* associated with this contract had any financial dealings with an official** of the City of Chula Vista as it relates to this contract within the past 12 months? Yes No ~ If Yes, briefly describe the nature of the financial interest the official** may have in this contract. 6. Have you made a contribution of more than $250 within the past twelve (12) months to a current member of the Chu a Vista City Council? Yes No ~ If Yes, which Council member? 7. Have you provided more than $340 (or an item of equivalent value) to an official** of the City Of Chula Vista in the past twelve (12) months? (This includes being a source of income, mone'y to retire a legal debt, gift, loan, etc.) Yes No ~ If Yes, which official** and what was the nature of the item provided? Print or type name of Contractor~Applicant * Person is defined as: any individual, firm, co-partnership, joint venture, association, social club, fraternal organization, corporation, estate, trust, receiver, syndicate, any other county, city, municipality, district, or other political subdivision, -or any other group or combination acting as a unit. ** Official includes, but is not limited to: Mayor, Council member, Planning Commissioner, Member of a board, commission, or committee of the City, employee, or staffmembers. J:\engineer~d3MINScONTRACTxtf305_03_2.doc CITY OF CHLJLA VISTA FINANCE DEPT ~F'R 276 FouRrH AVE CHULA VISTA CA 91910 ~'~ REQ-RE~EIP[ :02%0~3714 C:Apr 2~ CASHIER ID:P 2:54 pm A:Apr 23 2002 9130 CASH BOND ~/0 INTE $60,000.00 0R125C OTAY RANCH VILLAGE TOTAL DUE $60,000.00 RECEIVED FROM: ) O~AY PROJECT LP , CHECK: $60,000.00 TOTAL IENDERED $60,000.00 CHANGE DUE ~0.00 ~0. S D~:. Mz~s 9i: 16375-37~ 5 S~-=: S~ F=s ! 67~-3771 ~ P~k F= 7!5~561 S ~ ~ wF~ B~272! SS ar ~3 i~m No' $. ~ ~=s. 16335-3741 2~O % ~ F~ ! ~35-3741 2~ $ =-~ E~ ~CR) ( DE ) g91~272! 9~1 $ ~ff~ ~ ~CR) ( DE ) 8~1~2721 ~1 /7 ,/9 TOT.i~L .~.MOD.'NT By: (En~ia=:.,-'iag Divki~r.) -6 ' RESOLUTION NO. 2003- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING BIDS AND AWARDING CONTRACT FOR THE "TRAFFIC SIGNAL MODIFICATION AT THREE INTERSECTIONS ALONG OTAY LAKES ROAD AND PEDESTRIAN SIGNAL MODIFICATION AT EAST PALOMAR STREET 1N THE CITY OF CHULA VISTA, CALIFORNIA (TF-305)' PROJECT TO T & M ELECTRIC, DBA PERRY ELECTRIC IN THE AMOUNT OF $106,630.00 AND AUTHORIZING STAFF TO TRANSFER FUNDS TO THIS PROJECT FROM THE "TRAFFIC SIGNAL INSTALLATION AT EAST PALOMAR STREET AND SANTA CORA AVENUE (TF304)' PROJECT FN THE AMOUNT OF $20,000.00 AND FROM A CASH BOND ACCOUNT IN THE AMOUNT OF $10,000.00, OF WHICH EAST PALOMAR STREET TRANSIT DEPOSIT WAS MADE. WHEREAS, on Wednesday, April 16, 2003 the Director of Engineering received the following three sealed bids for "Traffic Signal Modification at Three Intersections along Otay Lakes Road and Pedestrian Signal Modification at East Palomar Street in the City of Chula Vista, California (TF-305)" Project: CONTRACTOR BID AMOUNT 1. T & M Electric dba Perry Electric $106,630.00 2. HMS Construction, Inc. $127,131.90 3. Lekos Electric, Inc. $163,532.00 WHEREAS, the low bid, submitted by T & M Electric dba Perry Electric of $106,630.00 is below the Engineer's estimate of $107,650.00 by $1,202.00, or approximately 1%; and WHEREAS, the contractor has completed recent projects in the City with a favorable performance; and WHEREAS, the contract will be awarded on the City's stmadard Engineering Contract form. The City Attorney will approve the final form of the contract; and WHEREAS, the Environmental Review Coordinator has reviewed the work involved in this project and has determined that the project is exempt under Section 15301, Class 1 (c) (Existing Facilities) of the California Environmental Quality Act (Minor Alterations of Existing Public Improvements or Public Structures); and NOW, THEREFORE, BE IT RESOLVED that the City Council of City of Chula Vista does hereby accept the bids and award the contract for the "Traffic Signal Modification at Three Intersections along Otay Lakes Road and Pedestrian Signal Modification at East Palomar Street in the City of Chula Vista, California (TF-305)" Project to T & M Electric dba Perry Electric in the amount of $106,630.00 and authorizing staff to transfer funds to this project from the "Traffic Signal Installation at East Palomar Street and Santa Cora Avenue (TF304)" project in the amount of $20,000.00 and from a cash bond account in the amount of $10,000.00, of which East Palomar Street transit deposit is made. BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby authorized to execute the contract on behalf of the City of Chula Vista. Presented by Approved as to form by Cliflbrd T. Swanson Director o f Engineering J:\attorncy\reso\bids\T & M Electric bid 2 CITY COUNCIL AGENDA STATEMENT Item Meeting Date 5/13/03 ITEM TITLE: Ordinance Establishing a 30 mph Speed Limit on Oxford Street between Broadway and Third Avenue, thereby amending Schedule X of a register maintained in the Office of the City Engineer. SUBMITTED BY: Director of Engineering/~t, ' REVIEWED BY: City Manager~,~e~--" ?/]~ (4/5ths Vote: Yes No X ) Based on the provisions of California Vehicle Code Section 22358 and pursuant to authority designated under Chula Vista Municipal Code Section 10.48.020, the City Engineer has determined that, based on a Traffic Engineering Study, the speed limit on Oxford Street between Broadway and Third Avenue should be decreased from the existing posted 35 mph to 30 mph. RECOMMENDATION: That the City Council approve ordinance establishing a 30 mph speed limit on Oxford Street between Broadway and Third Avenue, thereby amending Schedule X of a register maintained in the Office of the City Engineer. BOARDS AND COMMISSIONS RECOMMENDATION: The Safety Commission, at their meeting of April 10, 2003, voted MSC (White/Acton) 7-0-0 to concur with staff' s recommendation to decrease the existing speed limit on Oxford Street between Broadway and Third Avenue to 30mph and that Schedule X of the register maintained in the office o fthe City Engineer be revised to include this speed reduction. DISCUSSION: The City Engineer has determined the need to decrease the posted speed limit on Oxford Street between Broadway and Third Avenue from 35mph to 30mph in order to comply with California Vehicle Code (CVC), Section 40803 "Speed Trap Evidence." Section 40803 requires that a Traffic and Engineering Survey be conducted within seven (7) years, which justifies the posted speed limit. The Engineering and Traffic Survey should contain sufficient information to document that the conditions of CVC Section 627, which describes the contents of an "Engineering and Traffic Survey", have been complied with and that other conditions not readily apparent to a motorist are properly identified. The old survey for this roadway expired on January 17, 2002. Staff has completed a new survey that will be in effect from January 31,2003 through January 2, 2010, which justifies the reduction in speed. In accordance with the CVC, every seven (7) years the existing speed limit will be verified, increased or decreased depending on the results of the survey investigation. Page 2, Item ~ Meeting Date 5/13/03 Physical Conditions Oxford Street is 40-52' wide curb-to-curb and is a Class II Collector with residential housing units and businesses fronting both sides of the roadway. Oxford Street in this area is striped with one lane in each direction. It has left-turn pockets at Broadway, Fifth Avenue, Fourth Avenue and Third Avenue, and has allowed parking along the entire segment with an Average Daily Traffic (ADT) of 8,037 (year 2002), and 85th percentile speeds ranging from 31-34mph. A vertical curve exists just east of Fifth Avenue, which produces a design speed of 35mph. An accident survey, including the past three years of recorded reports, was conducted on the subject segment. The accident rate at this segment (4.35 per million vehicle miles) is higher than the average accident rate (3.05 per million vehicle miles) that exists for similar roadways in the State of California. In addition to the above information, staffnoted that the segments of Oxford Street both east and west of the subject segment have posted speed limits of 30 mph. Reducing the posted speed limit at the subject location would provide for a consistent 30 mph posted speed limit along the entire length of Ox ford Street. Conclusion Based on the above data, as well as other roadway characteristics outlined in the Engineering/Traffic Survey, staff has determined that the appropriate speed limit should be posted at 30mph in accordance with the California Vehicle Code requirements. Staffalso recommends that Schedule X of the register maintained in the office of the City Engineer be revised as follows: 10.48.020 SCHEDULE X - ESTABLISHED SPEED LIMITS IN CERTAIN ZONES - DESIGNATED Name of Street Beginning At Ending At Proposed Speed Limit Oxford Street Broadway Third Avenue 30 mph FISCAL IMPACT: The cost to install signs and pavement legends is $150.00. Attachments: Engineering Traffic Survey Radar Speed Surveys J:\Eng/neer~AGENDA\Oxford 30 mph.sm.doc SPEED LIMIT - ENGINEERING/TRAFFIC SURVEY STREET: Oxford Street LIMITS: Broadway to Third Avenue Length of Segment(fO: 4000'(.758 miles) Existing Posted Limit (mph): 35 mph SUMMARY OF SPEED SURVEYS Segment: Broadway to Fifth Avenue Fifth Avenue to Fourth Avenue Date Taken: 1/2/03 1/2303 No. of Vehicles on Sample (cars): 100 100 85tb Percentile (mph): 34mph 33mph Range of Speeds Recorded (mph): 21-40mph 21-37 mph Segment: Fotuth Avenue to Third Avenue Date Taken: 1/2/03 No. of Vehicles on Sample (cars): 100 85tb Percentile (mph): 31 mph Range of Speeds Recorded (mph): 18-37 mph ROADWAY CHARACTERISTICS Width (ft): 40-52' Total No. of Lanes: 2 lanes (1 per direction) with left turn pockets at Broadway, 5th Avenue, 4th Avenue, and Third Avenue. Horizontal Alignment: Tangent Vertical Alignment: 4.45% to 0.502% creating a grade difference o1'3.94 over a length of 175',which produces a design speed 0£35 mph TRAFFIC CHARACTERISTICS Average Daily Traffic: 8037 (2002) On-Street Parking: Allowed Special Conditions: Single and multi-family dwellings with direct driveway access. Commercial buildings on the north and south side of Third Avenue & Oxford Street and at Broadway & Ox£ord Street. Fire Station located on the comer of Oxford Street & Fourth Avenue with access from Oxford street. Post office and Lauderbach Center located west of Third Avenue. Accident History: The accident rate at this segment is 4.35 per million vehicle miles which is higher than the average rate 0£3.05 for similar highways in the State o£ California. SURVEY RESULTS Study was Prepared by: Ikhlass Daood Date: 1/31/2003 Recommendation: . Reduce Speed Limit to 30 MPH Date Recommendation Approved: By: M~ed 3d2Ghafry, P.E.,T.E. Approved Speed Limit (mph): 30MPH Per CVC 40803, Survey Expires: 1/2/2010 CITY OF CHULA VISTA - VEHICLE SPEED SURVEY SEGMENT UNDER STUDY Oxfod Street DATE__l/2/03 SURVEY SITE__Broadway-Fifth Avenue POSTED SPEED 35 TIME START__11:15_AM TIME END 11:30_AM WEATHER_Clear__ DIRECTION: E__ = O W . = / MPH 5 lO 15 2¢ TOTAL % CUM % 45 44 43 42 41 40 / 2 2 100 39 0 0 98 38 O ¢ 98 37 0 ¢ 98 36 O O / 4 `4981 35 O I 9,4 I1IIIIIIIIIIIIIIII II I 33 O O O ,4 4 81 32 O O C) O / 7 7 77 31 0 0 O 0 0 I! ! / [ § 7C 30 0 0 D 0 0 ::) / / / 13 13 61 29 0 0 ,0 0 0 / / / ~c 9 48 28 0 0 0 0 0 I0 0 / 11 11 39 27 O 0 0 0 0 / / 9 9 28 26 :) 0 0 0 / / 9 9 19 25 O 0 0 / 7 7 10 24 i/ 2 2 3 23 0 0 0 22 0 0 0 21 0 1 I 1 2O 19 18 17 16 15 14 13 12 11 RECORDER: Ikhlass Daood TOTAL NUMBER OF VEHICLES: 100 H:\HOME\ENGINEER\TRAFFIC\Speed_Surveys\Oxford St,(5th Ave-Broadway).xls CITY OF CHULA VISTA - VEHICLE SPEED SURVEY SEGMENT UNDER STUDY Oxfod Street DATE__l~2~03 SURVEY SITE__Fifth Avenue-Fourth Avenue_POSTED SPEED 35 TIME START~I 1:37_AM TIME END 11:53__AM WEATHER__Clear DIRECTION: E = O W = / MPH 5 lO 15 2¢ TOTAL % CUM % 45 44 43 42 41 40 39 38 37 0 0 / ~ 3 10C 36 2 2 97 35 :3 0 / / 4 4 95 34 D / / 4 4 91 I1 llo Ill Ill llll Illll l/ / 32 O O O / 8 8 83 31 O :3 O O / / / / 13 13 75 30 O :3 O O / / / 11 11 62 29 O O O O '/ / / 10 10 51 28 O O O O IO O / / 11 11 41 27 O O O O O / / 11 11 30 26 O O O 3 3 19 25 0 0 0 0 / 6 6 16 24 © 0 / 3 3 10 23 0 0 D 0 / 5 5 7 22 0 1 2 21 0 1 20 19 18 17 16 15 14 13 12 11 RECORDER: Ikhlass Daood TOTAL NUMBER OF VEHICLES: 100 H:\HOME\ENGINEER\TRAFFIC\Speed_Surveys\Oxford St.(4th Ave.-5th Ave.).xls ' CITY OF CHULA VISTA - VEHICLE SPEED SURVEY SEGMENT UNDER STUDY__Oxford Streeet DATE__l/2/2003 SURVEY SITE_Fourth Avenue-Third Avenue POSTED SPEED 35 TIME START___1:29 PM TIME END__1:47 PM WEATHER__Clear DIRECTION: E = O W = / MPH 5 lo 45 2c TOTAL % CUM % 45 44 43 42 41 4O 39 38 37 1 100 36 O 0 0 99 35 1 99 34 O 1 98 33 O O I/ 5 .~ 97 32 O 92 IIIIIIIII IIIIIIII/ 30 O O O O / 6 (~ 83 29 O O O O O :3 / 1 11 77 28 0 0 0 0 / / 1(; 1(; 66 27 D 0 0 0 0 / 1 11 5~ 26 D 0 0 0 / / 16 10 4~ 25 !0 0 0 0 0 0 / 16 10 35 24 0 0 0 / 6 6 25 23 0 0 5 5 19 22 0 0 4 4 14 21 0 0 / I/ 7 7 10 20 0 2 2 3 19 0 0 1 18 / 1 1 1 17 16 15 14 13 12 RECORDER: Ikhlass Daood TOTAL NUMBER OF VEHICLES: 100 H:\HOME\ENGINEER\TRAFFIC\Speed_Surveys\Oxford St.(3rd Ave.-4th Ave.).xls Speexl limits in California arc governed by thc California Vehiclc Code, Sections 22348 through 22413, and Section 22350, Thc Basic Speed Law, of the Vehicle Code. This Basic Speed Law provides that no person ,~haI] drive a vehicle upon a highway at a speed greater thnn is reasonable or prudent, having due regard for weather, vis~ility, ~xaffic and th~ surf'ace and width of the highway, and in. no event at a speed which endangers the ,~fety of persons or property. The basic speed law is founded on the belief that'most motorists are able to modify their driving behavior properly, as long as they are naael,- aware of the conditions around them. Section 22358.5 of the Vehicle Codc states that it is the intent of the Legislature that physical conditions such as width, curvature, grade and surface conditions, or any other condition readily apparent to the driver, in the absence of other factors, would not require special downward speed zoning. The speed limit normally should be established at the first five mile per hour increment below the 85th percentile speed. However, in matching existing conditions with the traffic safety needs of the community, enginecring judgement may indicate the need for a further reduction of five miles per hour. The factors jostifying such a further reduction are the same factors mentioned above. Whenever such factors are considered to establish the speed limit, they should be documented on the speed zone survey or the accompanying engineering report. lB determining the spe~21 limit which is most appropriate to facilitate the orderly movement of traffic and is reasonable and safe, important factors are prevailing speeds, unexpected conditions, and accident records. Traffic regulations are based upon observations of the behavior of groups of motorists under various conditions. Generally speaking, traffic reglllatious that reflect the behavior of the majority of motorists are found to be most successful. Laws that arbitrarily restrict the majority of drivers.encourage wholesale violation of postrxi restrictions, lack public support and usually fail to bring about the desired change~ in driving behavior. This is especially uae of speed zoning. Before and after studies consistently demonstrate that there are no significant changes in traffic speelts following the posting of new or revised speed limits. California Vehicle Code (CVC) Sections 22357 and 22358 authorize local authorities to establish intermediate prima facie speed limits on streets and roalts ullder their jurisdiction, on. the basis of an Engineering and Traffic Survey. These state laws permit local authorities to lower the ma_ximum speed limit (currently 55 M.P.H., however, as of after March 31, 1996, thi.~ prima facie speed limit will increase to 65 M.P.H.) or to raise business or residence district speed limits (25 mph) on the basis of an Engineering and Traffic Survey. These 'intermediate limits' between 25 and 65 mph must be posted to define clearly the limits of the zone. and the prima facie speed ]imit established. Speed Trap-Section 40802(b) provides that prima facie speed limits established under Sections 22352Co)(1), 22354, 22357, 22358 and 22358.3 may not be enforced by radar unless the spe2xl limit has be~n justified by an Engineering and Traffic Survey within the last five years. An 'Engineering and Traffic Survey' is required where enforcement involves the use of radar or other electronic speed measuring device~, under C-'VC 40802(b). ~1~ $~ l[,tmlt I?~ctnbli~hm~nt ~ Spet, d limits should be established preferably at or near the 85th percentile speed, which is defined as a spee~ exceeding that which 85 percent of the trafftc is mov!-E. The 85th percentile is often referred to as critical speed. Speed Jimits higher thail the 85th percentile are not generally considered reasonable and safe and limits significantly below the 85th percentile do not facilitate the orderly movementof traffic. Speed limits establi,~le;d oB ~ basis conform to the consensus of those who drive highways as to what speed is reasonable and safe, and are ~ot dependent on the judgement of one or a few individuals. Realistic speed zones will invite public compliance by confol-min~ to the behavior of the majority and by giving a clear reminder to the non-conforming violators. These realistic zones will also offer an effective enforcement tool to the Police Department by clearly separ~tin2 the occasional violator from the reasonable majority. The basic intent of speed zoning is to influence as m~ny drivers as possible to operate at or near the same speed, thus reducing the number of conflicts created by wide differentials in operating spee~ts. Only when roadside development results in Iraffic conflicts and unusual conditions which are not readily apparent to drivers, are speed limits somewhat below the 85th percentile warranted. Realistic speed zoning is a Traffic Engineering tool used to derive the best traffic service for a given set of conditions. While the iJasic ~pced law states that no person shall drive at a speed greater th~n is reasonable or prudent, thc m~ority of drivers comply with this law, and disregard regulations which they consider unreasonable. It is only thc top fringe of drivers that are inclined to be reckless and unreliable, or who have faulty judgement a~d must be controlled by enforcement. Speed limits set at or slightly below the 85th percentile spend provide law enforcement officers with a means of controlling the drivers who will not conform to what the majority considers resSon~hle and prudent. Experience h~.~ shown that the 85th percentile speed is the one characteristic of traffic speeds most nearly con.forming to a safe :~ntt reasonable speed limit. Speed limits set higher than thc critical speed will mske vei'y few ndditionM drivers 'legal' for each 5 M.P.H. that the posted speed Jimit is in~reasccl. Speed limits lower than the critical speed will make a large number of reasonable drivers 'illegal' for each 5 M.P.H. increment that the speed limit is reduced. For practical purposes, the $ M.P.H. increment at or immediately below the 85th percentile is the numerical value best selecte~ for the l)ostin~ of a realistic ired legally enforceable speed limit. Com'un~nce a~d support of enforcement officials are necessary for the successful operation of a restric~:l speed zone. Re~l;~tic speed zones ~ to mlnimi~¢ pllblic -ntngOllism toW'~ pol.~.~ enforcement of obviously unre~onably Iow speed ,,~s. By posting ~d enfor~ng ~e appropriate speed limks, local authorities invite the public to comply with the reasonable behavior of the majority of the public, while giving a dear reminder to the non-conformln~ violators. These regulations also offer an effective enforcement tool for the local police by clearly distinguishing the intentional violator from the reasonable majority. The establishment of a speed limit of more than $ mph below the 85th percentile (critical) speed should be done with great care as this may make violators of a disproportionate number of the reasonable majority of drivers. ORDINANCE NO. ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ESTABLISHING A 30 M.P.H. SPEED LIMIT ON OXFORD STREET, BETWEEN BROADWAY AND THIRD AVENUE, AND AMENDING SCHEDULE X OF THE REGISTER AS MAINTAINED BY THE OFFICE OF THE CITY ENGINEER WHEREAS, based on the provisions of California Vehicle Code Sections 22358 and 40803, and pursuant to authority under Chula Vista Municipal Code Section 10.48.020, the City Engineer has determined that based on a Traffic Engineering Study, the speed limit on Oxford Street between Broadway and Third Avenue should be decreased from the existing posted 35 MPH to 30 MPH. NOW, THEREFORE, the City Council of the City of Chula Vista does ordain as follows: SECTION l: That Schedule X of a Register of Schedules maintained by the City Engineer as provided in Section 10.48.020 of the Chula Vista Municipal Code, Established Speed Limits in Certain Zones Designated, is hereby amended to include the following changes: Chula Vista Municipal Code Section 10.48.020 - SCHEDULE X ESTABLISHED SPEED L1MITS IN CERTAIN ZONES Name of Street Beginning At Ending At Proposed Speed Limit Oxford Street Broadway Third Avenue 30 MPH SECTION II: This ordinance shall take effect and be in full force on the thirtieth day from and after its adoption. Presented by Approved as to form by Clifford Swanson Ann Moore Engineering Director City Attorney COUNCIL AGENDA STATEMENT J Item LC Meeting Date 5/13/03 ITEM TITLE: Resolution of the City Council of the City of Chula Vista, California of intention to consider changes and modification to the Rate and Method of Apportionment for Community Facilities District No. 08-I (Otay Ranch Village Six) SUBMITTED BY: Director ofEngineeringin~~' Director of Finance t~ REVIEWED BY: City Manager /~ '/d >i'~ (4/5ths Vote: Yes No X ) Otay Project, L.P. has requested that the City of Chula Vista initiate proceedings to consider changes and modifications in the Rate and Method of Apportionment of special taxes authorized to be levied in Community Facilities District No. 08-1 resulting from a proposed adjustment to the assigned special tax obligation for the property within Community Facilities District No. 08-I (Otay Ranch Village Six) ("CFD-08-I'). Tonight's action will (a) declare the intention of the City Council to consider approval of changes and modification to the Rate and Method of Apportionment (RMA) for CFD-08-I and set the public hearing for this consideration for June 17, 2003 BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. RECOMMENDATION: That Council approve the Resolution declaring the intention of the City Council to consider approval of changes and modification of the Rate and Method of Apportionment (~V~A). DISCUSSION: As noted above the Otay Project, L.P. has requested that the City initiate proceedings to change and modify the Rate and Method of Apportionment for CFD-08-I. These proposed changes and modification would adjust the Assigned Special Tax related to the Undeveloped Property and Backup Special Tax for all of the property within CFD-08-I to bring the total projected tax and assessment burden (except for the maintenance district special taxes) from 1.95 % of the sales price of homes to residential home buyers to 2% of such sales price. The change and modification in the rate and method would support an increase in the bonded indebtedness of CFD-08-I from approximately $18.4 million to $20.3 million (the maximum authorized bonded indebtedness for CFD-08-1 is $25,000,000). The increase in bond authorization will increase the projected bond proceeds available to acquire authorized improvements from approximately $14.6 million up to $I6.2 million for the district and allow for the acquisition of additional TDIF & Non-TDIF facilities built within CFD-08-I. This adjustment in the special tax rates will still fall within the Council's Policy that establishes the aggregate of all annual taxes; special taxes for improvements and assessments shall be limited to 2% ofthe sale price ofthe house. In addition the City Council policy that requires that such special taxes or assessments be prepaid to reduce the total tax and assessment burden at the time of the close of escrow of the initial sale of each house to a residential home owner if the aggregate taxes and Page 2, Item ,~ Meeting Date 5/13/03 assessments would otherwise exceed 2% of the sales price of such house will continue to apply to CFD-08-I. The CFD-08-I special tax rate for a residential property will increase from $800 per unit plus $0.27 per sq.12. (floor area) to $800 per unit plus $0.34 per sq.ft. For these reasons, the City's financing team and City staff recommend that the existing Rate and Method of Apportionment of special taxes for be modified to increase the Assigned Undeveloped Property and Backup Special Tax rate applicable to Developed and Undeveloped Property. These proposed changes will be reflected within the Amended Rate and Method of Apportionment (Exhibit B) and an Amended Special Tax Report (Exhibit C). Resolution There is one resolution on today's agenda that, if adopted, will accomplish the following: The RESOLUTION OF THE CITY COUNCIL of intention to consider changes and modifications to the Rate and Method of Apportionment of special taxes for Community Facilities District No. 08-I. Notice All property owners within CFD-08-I will be notified of the public hearing through publication ora notice in the San Diego Daily Transcript or any other adjudicated newspaper of general circulation at least seven (7) days prior the public hearing.. Future Actions Adoption of tonight's resolutions will set a public hearing to be held on June 17, 2003 and, upon approval by the City Council, a Special Election will be set for June 24, 2003. At such election the qualified electors of CFD-08-I will vote on a proposition to authorize the change and modification in the rate and method of apportionment of the special tax. Once the votes are cast, Council will be requested to certify the election results on July 8, 2003. FISCAL IMPACT: None, the developer will pay all costs and has deposited additional funds to handle the amendment consultant costs, attorney fees, and City costs in accordance with the approved Reimbursement Agreement. The City will receive the benefit of the full cost recovery for staff time involved in this proposed change of proceedings and administration activities. Attachments: 1. Amended Rate and Method of Apportionment 2. Amended Special Tax Report J:\engineerXa(SENDA\CAS 5-134)3 change o['proceedings.doc AMENDED RATE AND METHOD OF APPORTIONMENT FOR CITY OF CHULA VISTA COMMUNITY FACILITIES DISTRICT NO. 08-I (Otay Ranch Village Six) A Special Tax as hereinafter defined shall be levied on each Assessor's Parcel of Taxable Property within the City of Chula Vista Community Facilities District No. 08-I (Otay Ranch Village Six) collected each Fiscal Year commencing in Fiscal Year 2003-2004 in an amount determined by the City Council through the application of the appropriate Special Tax for "Developed Property", "Undeveloped Property", and "Provisional Undeveloped Property" as described below. All of the Taxable Property in CFD-08-I, unless exempted by law or by the provisions hereof, shall be taxed for the purposes, to the extent and in the manner herein provided. A. DEFINITIONS The terms hereinafter set forth have the following meaning: "'A' Map" shall mean a master final subdivision or parcel map, filed in accordance with the Subdivision Map Act and the Chula Vista Municipal Code, which subdivides the land or a portion thereof shown on a tentative map into "super block" lots corresponding to units or phasing of a combination of units as shown on such tentative map and which may further show open space lot dedications, backbone street dedications and utility easements required to serve such "super block" lots. "Acre or Acreage" means the land area of an Assessor's Parcel as shown on an Assessor's Parcel Map, or if the land area is not shown on an Assessor's Parcel Map, the land area shown on the applicable Final Subdivision Map, parcel map, condominium plan, record of survey, or other recorded document creating or describing the land area. If the preceding maps for a land area are not available, the Acreage of such land area shall be determined by the City Engineer. "Act" means the Mello-Roos Community Facilities Act of 1982, as amended, being Chapter 2.5, Division 2 of Title 5 of the Government Code of the State of California. "Administrative Fees and Expenses" means the actual or reasonably estimated costs directly related to the administration of CFD-08-I including, but not limited to, the following: the costs of computing the Special Taxes and preparing the annual Special Tax collection schedules (whether by the City or designee thereof or both); the costs of collecting the Special Taxes (whether by the County, the City, or otherwise); the costs of remitting the Special Taxes to the Trustee; the costs of the Trustee (including its legal counsel) in the discharge of the duties required of it under the Indenture; the costs to the City, CFD-08-I, or any designee thereof of complying with arbitrage rebate requirements; the costs to the City, CFD-08-I, or any designee thereof of providing continuing disclosure; the costs associated with preparing Special Tax disclosure statements and responding to City of Chula Vista 11-25-02 ,Revised April 18, 2003 Community Facilities District No. 08-1 ,~'' ,~ Page 1 Otay Ranch Village Six public inquiries regarding the Special Taxes; the costs of the City, CFD-08-I, or any designee thereof related to any appeal of the levy or application of the Special Tax; and the costs associated with the release of funds from an escrow account, if any. Administrative Expenses shall also include amounts estimated or advanced by the City or CFD-08-I, for any other administrative purposes of CFD-08-I, including, but not limited to attorney's fees and other costs related to commencing and pursuing to completion any foreclosure on an Assessor's Parcel with delinquent Special Taxes. "Assessor's Parcel" means a lot or parcel shown in an Assessor's Parcel Map with an assigned Assessor's Parcel number. "Assessor's Parcel Map" means an official map of the County Assessor designating parcels by Assessor's Parcel number. "Assigned Special Tax" means the Special Tax for each Land Use Class of Developed Property as determined in accordance with Section C. 1 .a. "Available Funds" means (a) the balance in the reserve fund established pursuant to the terms of the Indenture in excess of the reserve requirement as defined in such Indenture, (b) delinquent Special Tax payments not required to fund the Special Tax Requirement for any preceding Fiscal Year,(c) that portion of Special Tax prepayments allocated to the payment of interest on Bonds, and (d) other sources of funds available as a credit to the Special Tax Requirement as specified in such Indenture. "Backup Special Tax" means the Special Tax amount set forth in Section C. 1 .b. "Bonds" means any bonds or other debt (as defined in the Act), whether in one or more series, issued or incurred by CFD-08-I under the Act. "Bond Year" means a one-year period beginning on September 2nd in each year and ending on September 1st in the following year, unless defined otherwise in the applicable Indenture. "CFD Administrator" means an official of the City, or designee thereof, responsible for determining the Special Tax Requirement and providing for the levy and collection of the Special Taxes. "CFD-08-1" means City of Chula Vista Community Facilities District No. 08-I. ~City" means the City of Chula Vista. "Community Purpose Facility Property" means all Assessor's Parcels which are (a) classified as community purpose facilities and meet the requirements of City of Chula Vista Ordinance No. 2002-2883 as amended on November 5, 2002 or (b) designated with specific boundaries and acreage on an 'A' Map or Final Subdivision Map as a community purpose facility. City of Chula Vista 11-25-02 ,Revised April 18, 2003 Community Facilities District No. 08-1 ~- ,; Otay Ranch Village Six Page 2 "Council" means the City Council of the City, acting as the legislative body of CFD-08-I. "County" means the County of San Diego. "Developed Property" means, for each Fiscal Year, all Taxable Property for which a building permit for new construction was issued prior to March I of the prior Fiscal Year in which the Special Tax is being levied. "Exempt Property" means property not subject to the Special Tax due to its classification as either Public Property, Property Owner Association Property, Community Purpose Facility Property, public or utility easements in accordance with section E. 1. "Final Subdivision Map" means a subdivision of property, created by recordation of a final subdivision map, parcel map or lot line adjustment, approved by the City pursuant to the Subdivision Map Act (California Government Code Section 66410 et seq.) or recordation of a condominium plan pursuant to California Civil Code 1352, that creates individual lots for which residential building permits may be issued without further subdivision of such property. "Fiscal Year" means the period starting July 1 and ending on the following June 30. "Indenture" means the indenture, fiscal agent agreement, trust agreement, resolution or other instrument pursuant to which Bonds are issued, as modified, amended and/or supplemented from time to time, and any instrument replacing or supplementing the same. "Land Use Class" means any of the classes listed in Table 1 of Section C. 1.a. "Lot(s)" means an individual legal lot created by a Final Subdivision Map for which a building permit for residential construction has been or could be issued. "Maximum Annual Special Tax" means the maximum annual Special Tax, determined in accordance with the provisions of Section C, which may be levied in any Fiscal Year on any Assessor's Parcel of Taxable Property. "Non-Residential Property" means all Assessor's Parcels of Developed Property, for which a building permit(s) was issued for a non-residential use, excluding Community Purpose Facility Property. "Open Space" means property within the boundaries of CFD 08-I which (a) has been designated with specific boundaries and acreage on an 'A' Map or Final Subdivision Map as open space, (b) is classified by the County Assessor as open space (c) has been irrevocably offered for dedication as open space, prior to June 1st of the preceding Fiscal Year, to the federal government, the State of California, the County, the City, any other public agency or (d) is encumbered by an easement or other restriction required by the City limiting the use of such property to open space. City' of Chula Vista 11-25-02 ,Revised April 18, 2003 Community Facilities District No. 08-1 ~"~ 4'~"~ ~ Page 3 Otay Ranch Village Six "Outstanding Bonds" mean all Bonds, which remain outstanding as defined in the Indenture. "Property Owner Association Property" means any property within the boundaries of CFD-08-1 which is (a) owned by a property owner association or (b) is designated with specific boundaries and acreage on an 'A' Map or Final Subdivision Map as property owner association property. As used in this definition, a Property Owner Association Property includes any master or sub-association. "Proportionately" means for Developed Property that the ratio of the actual Special Tax levy to the Assigned Special Tax or Backup Special Tax is equal for all Assessors' Parcels of Developed Property within CFD-08-I. For Undeveloped Property or Provisional Undeveloped Property "Proportionately" means that the ratio of the actual Special Tax levy per Acre to the Maximum Annual Special Tax per Acre is equal for all Assessor's Parcels of Undeveloped Property and equal for all Assessor's Parcels of Provisional Undeveloped Property within CFD-08-I. "Provisional Undeveloped Property" means all Assessor's Parcels of Public Property, Property Owner Association Property, Community Purpose Facility Property, Open Space or other property that would otherwise be classified as Exempt Property pursuant to the provisions of Section E, but cannot be classified as Exempt Property because to do so would reduce the Acreage of all Taxable Property below the required minimum acreage as set forth in Section E. 1 for Zone A or Zone B as applicable. "Public Property" means any property within the boundaries of CFD-08-1 that which (a) is owned by a public agency, (b) has been irrevocably offered for dedication, prior to June 1st of the preceding Fiscal Year, to a public agency or (c) is designated with specific boundaries and acreage on an 'A' Map or Final Subdivision Map as property which will be owned by a public agency. For purposes of this definition, a public agency includes the federal government, the State of California, the County, the City or any other public agency. "Residential Property" means all Assessor's Parcels of Developed Property for which a building permit has been issued for purposes of constructing one or more residential dwelling units. "Residential Floor Area" means all of the square footage of living area within the perimeter of a residential structure, not including any carport, walkway, garage, overhang, patio, enclosed patio, or similar area. The determination of Residential Floor Area shall be made by the CFD Administrator by reference to appropriate records kept by the City's Building Department. Residential Floor Area for a residential structure will be based on the initial building permit(s) issued for such structure. "Special Tax" means the annual special tax to be levied in each Fiscal Year on each Assessor's Parcel of Taxable Property to fund the Special Tax Requirement. CiO, of Chula Vista , 11-25-02 ,Revised April 18, 2003 Community Facilities District Nc). 08-1 ~'~ '~'~ Page 4 Ora? Ranch Village Six "Special Tax Requirement" means that amount of Special Tax revenue required in any Fiscal Year for CFD-08-I to: (i) pay annual debt service on all Outstanding Bonds due in the Bond Year beginning in such Fiscal Year; (ii) pay other periodic costs on Outstanding Bonds, including but not limited to, credit enhancement and rebate payments; (iii) pay Administrative Fees and Expenses; (iv) pay any amounts required to establish or replenish any reserve funds for all Outstanding Bonds in accordance with the Indenture; and (v) pay directly for acquisition and/or construction of public improvements which are authorized to be financed by CFD-08-I provided that the inclusion of such amount does not cause an increase in the levy of Special Tax on the Undeveloped Property; (vi) less a credit for Available Funds. "State" means the State of California. "Taxable Property" means all of the Assessor's Parcels within the boundaries of CFD-08-I that are not exempt from the Special Tax pursuant to law or Section E below. "Trustee" means the trustee, fiscal agent, or paying agent under the Indenture. "Undeveloped Property" means, for each Fiscal year, all Taxable Property not classified as Developed Property. "Zone A" means a specific geographic area as depicted in Exhibits A and B attached hereto. "Zone B" means a specific geographic area as depicted in Exhibits A and B attached hereto. B. ASSIGNMENT TO LAND USE CATEGORIES Each Fiscal Year, all Assessor's Parcels of Taxable Property within CFD-08-I shall be (a) categorized as being located in either Zone A or Zone B, (b) classified as Developed Property, Undeveloped Property or Provisional Undeveloped Property and (c) subject to the levy of annual Special Taxes determined pursuant to Sections C and D. Furthermore, all Developed Property shall then be classified as Residential Property or Non-Residential Property. C. MAXIMUM ANNUAL SPECIAL TAX RATE 1, Developed Property The Maximum Annual Special Tax for each Assessor's Parcel of Residential Property or Non-Residential Property shall be the greater of (1) the Assigned Special Tax described in Table I which follows or (2) the Backup Special Tax computed pursuant to lb. which follows. City of Chula Vista 11-25-02 ,Revised April 18, 2003 Community Facilities District No. 08-1 ~,~' i ;~ Page 5 Ora), Ranch Village Six a. Assigned Special Tax The Assigned Special Tax for each Assessor's Parcel of Developed Property is shown in Table 1. TABLE 1 Assigned Special Tax for Developed Property within Zone A and Zone B: Land Use Class Description Assigned Special Tax 1 Residential Property $800 per unit plus $.35 per square foot of Residential Floor Area 2 Non-Residential $6,000 per Acre Property b. Backup SpeciaITax When a Final Subdivision Map is recorded within Zone A or Zone B the Backup Special Tax for Residential Property, Non-Residential Property and Undeveloped Property shall be determined as follows: For each Assessor's Parcel of Residential Property or Undeveloped Property to be classified as Residential Property upon its development within the Final Subdivision Map area, the Backup Special Tax shall be the rate per Lot calculated according to the following formula: Zone A $ 16,858x A L Zone B $ 26,445 x A L The terms above have the following meanings: B = Backup Special Tax per Lot in each Fiscal Year. A- Acreage classified or to be classified as Residential Property in such Final Subdivision Map. L = Lots in the Final Subdivision Map which are classified or to be classified as Residential Property. City of Chula Vista ~ l 1-25-02 ,Revised April 18, 2003 Community Facilities District No. 08-1 ,~ Otay Ranch Village Six Page 6 For each Assessor's Parcel of Non-Residential Property or Undeveloped Property to be classified as Non-Residential Property upon the development thereof within the Final Subdivision Map area, the Backup Special Tax shall be determined by multiplying $16,858 for Zone A and $26,445 for Zone B by the total Acreage of all Non-Residential Property and Undeveloped Property to be classified as Non- Residential Property upon the development thereof within the Final Subdivision Map area. Notwithstanding the foregoing if an Assessor's Parcel of Residential Property, Non- Residential Property or Undeveloped Property for which the Backup Special Tax has been determined are subsequently changed or modified by recordation of a new or amended Final Subdivision Map, then the Backup Special Tax applicable to such Assessor's Parcel shall be recalculated to equal the amount of Backup Special Tax that would have been generated if such change did not take place. 2. Undeveloped Property and Provisional Undeveloped Property The Maximum Annual Special Tax for each Assessor's Parcel of Undeveloped Property or Provisional Undeveloped Property shall be $16,858 per Acre for Zone A and $26,445 per Acre for Zone B. D. METHOD OF APPORTIONMENT OF THE SPECIAL TAX Commencing with Fiscal Year 2003-04 and for each following Fiscal Year, the Council shall determine the Special Tax Requirement and shall levy the Special Tax until the amount of Special Taxes equals the Special Tax Requirement. The Special Tax shall be levied each Fiscal Year as follows: First: The Special Tax shall be levied Proportionately on all Developed Property within Zone A and Zone B at a rate up to 100% of the applicable Assigned Special Tax to satisfy the Special Tax Requirement. Second: If additional monies are needed to satisfy the Special Tax Requirement after the first step has been completed, the Special Tax shall be levied Proportionately on all Undeveloped Property within Zone A and Zone B, at a rate up to 100% of the Maximum Annual Special Tax for Undeveloped Property. In determining the Acreage of an Assessor's Parcel of Undeveloped Property for purposes of determining the annual Special Tax to be levied on such Assessor's Parcel, the CFD Administrator shall not include any Acreage shown on any applicable tentative subdivision map or other land use entitlement approved by the City that designates such Acreage for a use that would be classified as Open Space, Property Owner Association Property, Community Purpose Facility or Public Property. CiO, of Chula Vista 11-25-02 ,Revised April 18, 2003 Community Facilities District No. 08-1 ~. ~ Ora? Ranch Village Six Page 7 Third: If additional monies are needed to satisfy the Special Tax Requirement after the first two steps have been completed, the Special Tax to be levied on each Assessor's Parcel of Developed Property whose Maximum Annual Special Tax is derived by the application of the Backup Special Tax shall be increased Proportionately from the Assigned Special Tax up to the Maximum Annual Special Tax for each such Developed Property.. Fourth: If additional monies are needed to satisfy the Special Tax Requirement after the first three steps have been completed, then the Special Tax shall be levied Proportionately on all Provisional Undeveloped Property at a rate up to 100% of the Maximum Annual Special Tax for Undeveloped Property. Notwithstanding the above, under no circumstances will the Special Tax levied against any Assessor's Parcel of Residential Property be increased by more than ten percent per year as a consequence of delinquency or default in the payment of Special Taxes by the owner of any other Taxable Property. E. EXEMPTIONS 1. The CFD Administrator shall classify the following as Exempt Property: (i) Public Property, (ii) Property Owner Association Property, (iii) Community Purpose Facility Property, (iv) Open Space and (v) Assessor's Parcels with public or utility easements making impractical their utilization for other than the purposes set forth in the easement; provided, however, that no such classification shall reduce the sum of all Taxable Property to less than 40.98 Acres in Zone A and 42.43 Acres in Zone B. Property which cannot be classified as Exempt Property because such classification would reduce the Acreage of all Taxable Property to less than 40.98 Acres in Zone A and 42.43 Acres in Zone B will be classified as Provisional Undeveloped Property and shall be taxed pursuant to the fourth step of Section D. Tax exempt status for purposes of this paragraph will be assigned by the CFD Administrator in the chronological order in which property becomes Exempt Property. 2. The Maximum Annual Special Tax obligation for any property which would be classified as Public Property upon its transfer or dedication to a public agency but which is classified as Provisional Undeveloped Property pursuant to paragraph 1 of Section E shall be prepaid in full by the seller pursuant to Section H.1, prior to the transfer/dedication of such property to such public agency. Until the Maximum Annual Special Tax obligation for any such Public Property is prepaid, the property shall continue to be subject to the levy of the Special Tax as Provisional Undeveloped Property. 3. If the use of an Assessor's Parcel of Exempt Property changes so that such Assessor's Parcel is no longer classified as one of the uses set forth in paragraph 1 that would make such Assessor's Parcel eligible to be classified as Exempt Property, such Assessor's Parcel shall cease to be classified as Exempt Property and shall be deemed to be Taxable Property. CiO, of Chula Vista l 1-25-02 ,Revised April 18, 2003 Community Facilities' District No. 08-1 Otay Ranch Village Six Page 8 F. REVIEW/APPEAL COMMITTEE Any landowner or resident who feels that the amount of the Special Tax levied on their Assessor's Parcel is in e~or shall first consult with the CFD Administrator regarding such error. If following such consultation, the CFD Administrator determines that an error has occurred the CFD Administrator may amend the amount of the Special Tax levied on such Assessor's Parcel. If following such consultation and action (if any by the CFD Administrator), the landowner or resident believes such error still exists, such person may file a written notice with the City Clerk of the City appealing the amount of the Special Tax levied on such Assessor's Parcel. Upon the receipt of any such notice, the City Clerk shall forward a copy of such notice to the City Manager who shall establish as part of the proceedings and administration of CFD-08-I a special three-member Review/Appeal Committee. The Review/Appeal Committee may establish such procedures, as it deems necessary to undertake the review of any such appeal. The Review/Appeal Committee shall interpret this Rate and Method of Apportionment and make determinations relative to the annual administration of the Special Tax and any landowner or resident appeals, as herein specified. The decision of the Review/Appeal Committee shall be final and binding as to all persons. G. MANNER OF COLLECTION The annual Special Tax shall be collected in the same manner and at the same time as ordinary ad valorem property taxes; provided, however, that CFD-08-I, may directly bill the Special Tax, may collect Special Taxes at a different time or in a different manner if necessary to meet its financial obligations, and may covenant to foreclose and may actually foreclose on Assessor's Parcels of Taxable Property that are delinquent in the payment of Special Taxes. Tenders of Bonds may be accepted for payment of Special Taxes upon the terms and conditions established by the Council pursuant to the Act. However, the use of Bond tenders shall only be allowed on a case-by-case basis as specifically approved by the Council. H. PREPAYMENT OF SPECIAL TAX The following definition applies to this Section H: "CFD Public Facilities" means those public facilities authorized to be financed by CFD-08-I. "CFD Public Facilities Costs" means either $20 million, or such lower number as shall be determined either by (a) the CFD Administrator as sufficient to finance the CFD Public Facilities, or (b) the Council concurrently with a covenant that it will not issue any more Bonds to be secured by Special Taxes levied under this Amended Rate and Method of Apportionment. City of Chula Vista 11-25-02 ,Revised April 18, 2003 Community Facilities District No. 08-1 ~'" · Page 9 Ora), Ranch Village Six "Construction Fund" means an account specifically identified in the Indenture to hold funds which are currently available for expenditure to acquire or construct the CFD Public Facilities. "Future Facilities Costs" means the CFD Public Facilities Costs minus that (a) portion of the CFD Public Facilities Costs previously funded (i) from the proceeds of all previously issued Bonds, (ii) from interest earnings on the Construction Fund actually earned prior to the date of prepayment and (iii) directly from Special Tax revenues and (b) the amount of the proceeds of all previously issued Bonds then on deposit in the Construction Fund. "Outstanding Bonds" means all previously issued Bonds which will remain outstanding after the first interest and/or principal payment date following the current Fiscal Year, excluding Bonds to be redeemed at a later date with the proceeds of prior prepayments of Maximum Annual Special Taxes. 1. Prepayment in Full The Maximum Annual Special Tax obligation may only be prepaid and permanently satisfied for an Assessor's Parcel of Developed Property, Undeveloped Property for which a building permit has been issued, or Provisional Undeveloped Property. The Maximum Annual Special Tax obligation applicable to such Assessor's Parcel may be fully prepaid and the obligation of such Assessor's Parcel to pay the Special Tax permanently satisfied as described herein; provided, however that a prepayment may be made only if there are no delinquent Special Taxes with respect to such Assessor's Parcel at the time of prepayment. An owner of an Assessor's Parcel intending to prepay the Maximum Annual Special Tax obligation shall provide the CFD Administrator with written notice of intent to prepay. Within 30 days of receipt of such written notice, the CFD Administrator shall notify such owner of the prepayment amount of such Assessor's Parcel. The CFD Administrator may charge a reasonable fee for providing this figure, which can be collected prior to preparing such calculation. The prepayment amount shall be calculated as summarized below (capitalized terms as defined below): Bond Redemption Amount plus Redemption Premium plus Future Facilities Amount plus Defeasance Amount plus Prepayment Fees and Expenses less Reserve Fund Credit less Capitalized Interest Credit Total: equals Prepayment Amount City of Chula Vista 11-25-02 ,Revised April 18, 2003 Community Facilities District No. 08-1 ~' ~/"s~''~ Page 10 Otay Ranch Village Six As of the proposed date of prepayment, the Prepayment Amount (defined below) shall be calculated as follows: Step No.: 1. For Developed Property, compute the Maximum Annual Special Tax for the Assessor's Parcel to be prepaid. For Undeveloped Property for which a building permit has been issued to be prepaid, compute the Maximum Annual Special Tax for that Assessor's Parcel as though it was already designated as Developed Property, based upon the building permit, issued for that Assessor's Parcel. For Provisional Undeveloped Property to be prepaid, compute the Maximum Annual Special Tax for such Assessor's Parcel using the Maximum Annual Special Tax for Undeveloped Property. 2. Divide the Maximum Annual Special Tax computed pursuant to step 1 by the sum of the total expected Maximum Annual Special Tax revenues which may be levied within CFD-08-I excluding any Assessor's Parcels for which the Maximum Annual Special Tax obligation has been previously prepaid. 3. Multiply the quotient computed pursuant to step 2 by the principal amount of the Outstanding Bonds to compute the amount of Outstanding Bonds to be retired and prepaid (the "Bond Redemption Amount"). 4. Multiply the Bond Redemption Amount computed pursuant to step 3 by the applicable redemption premium on the next possible Bond call date, if any, on the Outstanding Bonds to be redeemed (the "Redemption Premium"). 5. If all the Bonds authorized to be issued for CFD-08-I have not been issued, compute the Future Facilities Costs. 6. Multiply the quotient computed pursuant to step 2 by the amount if any, determined pursuant to step 5 to compute the amount of Future Facilities Costs to be allocated to such Assessor's Parcel (the "Future Facilities Amount'). 7. Compute the amount needed to pay interest on the Bond Redemption Amount from the first bond interest and/or principal payment date following the current Fiscal Year until the earliest redemption date for the Outstanding Bonds. 8. Confirm that no Special Tax delinquencies apply to such Assessor's Parcel. 9. Determine the Special Taxes levied on the Assessor's Parcel in the current Fiscal Year, which have not yet been paid. 10. Determine the fees and expenses of CFD-08-I, including but not limited to, the costs of computation of the prepayment, the costs to invest the prepayment proceeds, the costs of redeeming Bonds from the proceeds of such prepayment, and the cost of City of Chula Vista 11-25-02 ,Revised Apri118, 2003 Community Facilities District No. 08-1 ~' ~ "') Ora), Ranch Village Six ~*~ Page ] l recording any notices to evidence the prepayment and the redemption (the "Prepayment Fees and Expenses") 11. Compute the amount the CFD Administrator reasonably expects to derive from the reinvestment of the prepayment amount less the Prepayment Fees and Expenses, as determined pursuant to step 10, from the date of prepayment until the redemption date for the Outstanding Bonds to be redeemed with the prepayment. 12. Add the amounts computed pursuant to steps 7 and 9 and subtract the amount computed pursuant to step 11 (the "Defeasance Amount"). 13. The reserve fund credit (the "Reserve Fund Credit") shall equal the lesser off (a) the expected reduction in the reserve requirement (as defined in the Indenture), if any, associated with the redemption of Outstanding Bonds as a result of the prepayment, or (b) the amount derived by subtracting the new reserve requirement (as defined in the Indenture) in effect after the redemption of Outstanding Bonds as a result of the prepayment from the balance in the reserve fund on the prepayment date, but in no event shall such amount be less than zero. 14. If any capitalized interest for the Outstanding Bonds will not have been expended at the time of the first interest payment following the current Fiscal Year, a capitalized interest credit shall be calculated by multiplying the quotient computed pursuant to step 2 by the expected balance in the capitalized interest fund after such first interest payment (the "Capitalized Interest Credit"). 15. The Maximum Annual Special Tax prepayment is equal to the sum of the amounts computed pursuant to steps 3, 4, 6, 10, and 12, less the amounts computed pursuant to steps 13 and 14 (the "Prepayment Amount"). 16. From the Prepayment Amount, the amounts computed pursuant to steps 3, 4, 12, 13, and 14 shall be deposited into the appropriate fund as established under the Indenture and be used to retire Outstanding Bonds or make debt service payments. The amount computed pursuant to step 10 shall be retained by CFD-08-I. The amount computed pursuant to step 6 shall be deposited in the Construction Fund. The Prepayment Amount may be sufficient to redeem other than a $5,000 increment of Bonds. In such cases, the increment above $5,000 or integral multiple thereof will be retained in the appropriate fund established under the Indenture to be used with the next prepayment of Bonds or to make debt service payments. As a result of the payment of the current Fiscal Year's Special Tax levy as determined under step 9 above, the CFD Administrator shall remove the current Fiscal Year's Special Tax levy for such Assessor's Parcel from the County tax rolls. With respect to any Assessor's Parcel that is prepaid, the Council shall cause a suitable notice to be recorded in compliance with the Act, to indicate the prepayment of Special Taxes and the release of the Special Tax lien on such Assessor's Parcel, and the obligation of such Assessor's Parcel to pay the Special Tax shall cease. City of Chula Vista ll-25-02 ,Revised,4pri118, 2003 Community Facilities District No. 08-1 Otay Ranch Village Six '~d ; f Page 12 Notwithstanding the foregoing, no Special Tax prepayment shall be allowed unless the amount of Maximum Annual Special Taxes that may be levied on Taxable Property within CFD-08-I, both prior to and after the proposed prepayment is at least 1.1 times the maximum annual debt service on all Outstanding Bonds. 2. Prepayment in Part The Maximum Annual Special Tax on an Assessor's Parcel of Developed Property or an Assessor's Parcel of Undeveloped Property for which a building permit has been issued may be partially prepaid. The amount of the prepayment shall be calculated as in Section H.1, except that a partial prepayment shall be calculated according to the following formula: PP = (PE x F) + A These terms have the following meaning: PP = the partial prepayment PE = the Prepayment Amount calculated according to Section H.I, minus Prepayment Fees and Expenses determined pursuant to step 10. F - the percent by which the owner of the Assessor's Parcel(s) is partially prepaying the Maximum Annual Special Tax. A- the Prepayment Fees and Expenses determined pursuant to step 10. The owner of an Assessor's Parcel who desires to partially prepay the Maximum Annual Special Tax shall notify the CFD Administrator of (i) such owner's intent to partially prepay the Maximum Annual Special Tax, (ii) the percentage by which the Maximum Annual Special Tax shall be prepaid, and (iii) the company or agency that will be acting as the escrow agent, if applicable. The CFD Administrator shall provide the owner with a statement of the amount required for the partial prepayment of the Maximum Annual Special Tax for an Assessor's Parcel within 30 days of the request and may charge a reasonable fee for providing this service. With respect to any Assessor's Parcel that is partially prepaid, the City shall (i) distribute the funds remitted to it according to step 16 of Section H. 1, and (ii) indicate in the records of CFD-08-I that there has been a partial prepayment of the Maximum Annual Special Tax and that a portion of the Maximum Annual Special Tax equal to the outstanding percentage (1.00 - F) of the remaining Maximum Annual Special Tax shall continue to be authorized to be levied on such Assessor's Parcel pursuant to Section D. 1. TERM OF MAXIMUM ANNUAL SPECIAL TAX The Maximum Annual Special Tax shall be levied commencing in Fiscal Year 2003-2004 to the extent necessary to fully satisfy the Special Tax Requirement and shall be levied for a period no longer than the 2039-2040 Fiscal Year. City of Chula Vista ! 1-25-02 ,Revised April 18, 2003 Community Facilities' District No. 08-1 Otay Ranch Village Six Page 13 ATTACHMEN'i. ~..,~.,~ COMMUNITY FACILITIES DISTRICT MELLO-ROOS COMMUNITY FACILITIES ACT 1982 AMENDED SPECIAL TAX REPORT COMMUNITY FACILITIES DISTRICT NO. 08-1 OTAY RANCH VILLAGE SIX For the City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 Cl'l~ OF CHUIA VISTA Prepared by McGill Martin Self, Inc. 344 F Street Suite 100 Chula Vista, California 91910 January 9, 2003 Revised April 16, 2003 TABLE OF CONTENTS Page I. INTRODUCTION ................................................................................. 1 II. PROJECT DESCRIPTION ......................................................................... 2-3 IlL DESCRIPTION AND ESTIMATED COST OF PROPOSED FACILITIES ........................ 3-4 A. Description of Proposed Public Improvements ................................... 3-4 B. Estimated Cost of Proposed Public Improvements .............................. 4 IV. BONDED INDEBTEDNESS AND INCIDENTAL EXPENSES .................................... 4 A. Projected Bond Sales ............................................................... 4-5 B. Incidental Bond Issuance Expenses to be Included in the Proposed Bonded Indebtedness ......................................................................... 5 C. Incidental Expenses to be Included in the Annual Levy of Special Taxes. 5 V. AMENDED RATE AND METHOD OF APPORTIONMENT OF THE SPECIAL TAX ......... 5-6 A. Explanation for Special Tax Apportionment .................................... 6-7 B. Assigned Special Tax Rates ................................................ 7 C. Backup Special Tax ................................................................ 7 D. Maximum Annual Special Tax Rate ................................................. 7 E. Accuracy of Information ........................................................... 7-8 VI. BOUNDARIES OF COMMUNITY FACILITIES DISTRICT .................................. 8 VII. GENERAL TERMS AND CONDITIONS ....................................................... 8 A. Substitution Facilities .............................................................. 8 B. Transportation Enhancement Facilities .......................................... 8 C. Appeals .............................................................................. 8 EXHIBITS Exhibit A Recorded Boundary Map Exhibit B Amended Rate and Method of Apportionment Exhibit C Amended Assigned Maximum Special Tax Rates I. INTRODUCTION WHEREAS, the City of Chula Vista did, pursuant to the provision of the Mello-Roos Community Facilities Act of 1982, being Chapter 2.5, Part I, Division 2, Title 5 of the Government Code of the State of California (hereinafter referred to as the "Act"), and specifically Section 53321.5 thereof, expressly order the filing of a written "Report" with the legislative body of the proposed Community Facilities District. This Community Facilities District being Community Facilities District No. 08-I (Otay Ranch Village Six) shall hereinafter be referred to as: "CFD-08-I'; and WHEREAS, the Resolution Ordering and Directing the Preparation of a Report for Proposed Community Facilities District No. 08-1 (Otay Ranch Village Six) did direct that said Report generally contain the following: FACILITIES: A full and complete description of the public facilities the acquisition of which are proposed to be financed through the CFD. COST ESTIMATE: A general cost estimate setting forth costs of acquiring such facilities. SPECIAL TAX: Further particulars and documentation regarding the Amended Rate and Method of Apportionment for the authorized special tax. NOW, THEREFORE, I, Cliff Swanson P.E., the Director of Engineering of the City of Chula Vista, and the appointed responsible officer directed to prepare this Special Tax Report or cause the Report to be prepared pursuant to the provisions of the Act, do hereby submit this Report. Community Facilities District No. 08-1 Page 1 Otay Ranch Village Six Januat? 2003, Revised Apri116, 2003 II. PROJECT DESCRIPTION This Community Facilities District No. 08-1 (CFD-08-I) encompasses approximately 189 gross acres of land located in south San Diego County within the City of Chula Vista and is an area known as "Otay Ranch Village Six". Refer to Exhibit A - for a reduced copy of the Recorded Boundary Map. Of this acreage, approximately 93 acres is expected to be developed by several affiliated merchant builders for approximately 1,353 residential units, 2.9 acres of commercial development, 7.5 acres for Community Purpose Facilities, along with 7.5 acres for a park and 7.7 acres slated for an elementary school. The property within Village Six that is owned by Otay Project, LP and which will be included in CFD-08-I is divided into two distinct sections, one in the Southwest Quadrant and another in the Northeast Quadrant of Village Six. CFD-08-1 is divided into two tax zones (Zone A and Zone B), for Special Tax consistency purposes. Refer to Exhibit A for the location of Zones A and B. Zone A Zone A consists of Planning Areas R-2A, R-2B, R-5A, R-5B and R-9A. All of these planning areas are currently sold to or are planned to be sold to affiliated merchant builders. This Tax Zone consists of all single family detached units with Planning Area R-2A consisting of 92 units, Planning area R-2B consisting of 106 units, Planning area R-5A consisting of 51 units, Planning area R-5B consisting of 55 units, Planning area R-9A Phase 1 consisting of 99 units and Planning area R-9A Phase 2 consisting of 40 units. At build-out, it is expected that Zone A will consist of approximately 443 single family detached units. The single family detached uses are anticipated to generate approximately 961,098 square feet of residential building square footage. The total taxable acreage for this Tax Zone is approximately 45.53 acres. Zone B Zone B consists of Planning Areas R-7A, R-7B, R-8, R-9B, R-9D, S-1, C-1 and CPF-1 and CPF 1-x. All of these planning areas are currently sold to or are planned to be sold to affiliated merchant builders. This Tax Zone consists of single family detached units, single family attached units, apartments, commercial property, a park, a school, and Community Purpose Facilities. Planning Area R-7A consists of 92 single family attached units, Planning Area R-7B consists of 201 single family attached units, Planning Area R-8 consists of 336 Apartments, Planning Area R-9B consists of 159 single family attached and 73 single family detached units, Planning Area R-9D consists of 49 single family detached units, S-1 consists of an Elementary School Site, C-1 consists of a Commercial site, CPF-1 consists of a Church and CPF-lx consists of a proposed Swim Center. Community' Facilities District No. 08-I Page 2 Otay Ranch l/illage Six ,lanuar), 2003, Revised Apri116, 2003 At build-out, it is expected that Zone B will consist of approximately 73 single family detached units, 501 single family attached units, 336 Apartments, a 2.9 acre commercial site, a 7.5 acre park, a 7.7 acre school site, a 4.5 acre church site and a 1.5 acre swim club site. The residential uses are anticipated to generate approximately 1,075,040 square feet of residential building square footage. The total taxable acreage for this Tax Zone is approximately 47.13 acres. Special taxes for CFD No. 08-1 (Otay Ranch Village Six) for Zone A and Zone B shall be levied to Taxable Property to satisfy the Special Tax Requirement as follows: · First, to Developed Property within Zone A and Zone B up to the Maximum Annual Special Tax; · Second, if necessary, to Undeveloped Property within Zone A and Zone B up to the Maximum Annual Special Tax for Undeveloped Property; · Third, if necessary, the Maximum Annual Special Tax within Zone A and Zone B derived by the application of the Backup Special Tax increased proportionately from the Assigned Special Tax up to the Maximum Annual Special Tax and; · Fourth, if necessary, Special Tax within Zone A and Zone B increased proportionately on all Provisional Undeveloped Property up to the Maximum Annual Special Tax. III. DESCRIPTION AND ESTIMATED COST OF PROPOSED FACILITIES A. Description of Proposed Public Improvements A community facilities district may provide for the purchase, construction, expansion, or rehabilitation of any real or tangible property, including public facilities and infrastructure improvements with an estimated useful life of five (5) years or longer, which is necessary to meet increased demands placed upon local agencies as a result of development or rehabilitation occurring within the community facilities district. In addition, a community facilities district may pay in full all amounts necessary to eliminate any fixed special assessment liens or to pay, repay, or defease any obligation to pay or any indebtedness secured by any tax, fee, charge, or assessment levied within the area of the community facilities district. The facilities described in this Report are all facilities which the legislative body creating CFD-08-I is authorized to own, construct, or finance, and which are required, in part, to adequately meet the needs of CFD-08-I. The approved Acquisition/Financing Agreement sets the priority for the financing of these facilities. In addition, the facilities meet the criteria for authorized public facilities set forth in the City's Statement of Goals and Policies regarding the establishment of Community Facilities Districts. The actual facilities described herein are those currently expected to be required to adequately meet, in part, the needs of CFD-08-I. Because the actual needs of CFD-08-I arising as development progresses therein may differ from those currently anticipated, CFD-08-| reserves the right to modify the priority of the facilities proposed herein to the extent CFD-08-I deems necessary, in its sole discretion to meet those needs. Communily Facilities Di.strict No, 08-1 Page 3 Otay Ranch Village Six January 2003, Revised April 16, 2003 The Special Taxes required to pay the construction or financing of said facilities will be apportioned as described in the Amended Rate and Method of Apportionment (Amended RMA ) of the Special Tax for CFD-08-I. Proceeds of the proposed bonded indebtedness of CFD-08-I will be used to finance backbone streets and associated improvements (i.e., grading, sewer, streets, landscaping, utilities, etc.), public facilities, DIF Improvements and Traffic Enhancement Facilities. Following is a general description of the proposed facilities: · La Media Road · Olympic Parkway (Landscaping) · Otay Lakes Road · Birch Road · East Palomar Street · ViewPark Street · Magdalena Avenue · Santa Elisabeth Avenue · Sutter Buttes Street · "Traffic Enhancement Facilities"(Telegraph Canyon) · Street A · Facilities to be financed by Development Impact Program Fees B. Estimated Cost of Proposed Public Improvements The facilities and the estimated costs herein are subject to review and confirmation. The costs listed in Table 1 are estimates only, based upon current construction and land costs and actual costs may differ from those estimates herein. TABLE 1 Proposed Public Facilities Facilities Improvements Estimated Cost · La Media Road $ 2,945,210 · Olympic Parkway $1,054,647 (Landscaping) · Otay Lakes Road $3,100,000 · Birch Road $2,401,116 · East Palomar Street $3,311,793 · View Park Street $1,431,082 Community Facilities District No. 08-I Page 4 Otay Ranch Village Six danuary 2003,Revised Apri116, 2003 · Magdalena Avenue $545,696 · Santa Elisabeth Avenue $885,278 · Sutter Buttes Street $429,413 · Telegraph Canyon $3,000,000 · Street A $1,310,175 · Ped Bridge $1,000,000 IV. BONDED INDEBTEDNESS AND INCIDENTAL EXPENSES A. Proiected Bond Sale For CFD-08-I there is proposed to be one issuance of bonds. The bond amount for CFD- 08-I will be approximately $20.3 million, which will finance approximately $16.2 million in facilities. The bonds for are presently planned to be sold in the Fall of 2003. The bonds issued by CFD-08-I will meet the terms and conditions of special tax bonds set forth in the City's Statement of Goals and Policies Regarding the Establishment of Community Facilities Districts. B. Incidental Bond Issuance Expenses to be Included in the Proposed Bonded Indebtedness for CFD-08-I Pursuant to Section 53345.3 of the Act, bonded indebtedness may include all costs and estimated costs incidental to, or connected with, the accomplishment of the purpose for which the proposed debt is to be incurred, including, but not limited to, the costs of legal, fiscal, and financial consultant fees; bond and other reserve funds; discount fees; interest on any bonds of the district due and payable prior to the expiration of one year from the date of completion of the facilities, not to exceed two years; election costs; and all costs of issuance of the bonds, including, but not limited to, fees for bond counsel, costs of obtaining credit ratings, bond insurance premiums, fees for letters of credit, and other credit enhancement costs, and printing costs. The reserve fund is estimated to be the maximum allowable under Federal Tax Law. All other incidental bond issuance expenses are estimated at 4 % of the face amount of the bonds. C. Incidental Expenses to be Included in the Annual Levy of Special Taxes for CFD-08-I. Pursuant to Section 53340 of the Act, the proceeds of any special tax may only be used to pay, in whole or part, the cost of providing public facilities, services and incidental expenses. As defined by the Act, incidental expenses include, but are not limited to, the cost of planning and designing public facilities to be financed, including the cost of environmental evaluations of those facilities; the costs associated with the creation of the district, issuance of bonds, determination of the amount of taxes, collection of taxes, payment of taxes, or costs otherwise incurred in order to carry out the authorized purposes of the district; any other expenses incidental to the construction, completion, Community Facilities Di,~trict No. 08-1 Page 5 Otay Ranch Village Six dan uary 2003, Revised April 16, 2003 and inspection of the authorized work; and the retirement of existing bonded indebtedness. While the actual cost of administering CFD-08-I may vary, it is anticipated that the amount of special taxes, which can be collected, will be sufficient to fund at least $75,000 in annual administrative expenses. V. AMENDED RATE AND METHOD OF APPORTIONMENT OF THE SPECIAL TAX All of the property located within CFD-08-1, unless exempted by law, shall be taxed for the purpose of providing necessary facilities to serve CFD-08-I. Pursuant to Section 53325.3 of the Act, the tax imposed "is a Special Tax and not a special assessment, and there is no requirement that the tax be apportioned on the basis of benefit to any property." The Special Tax "may be based on benefit received by parcels of real property, the cost of making facilities or authorized services available to each parcel or other reasonable basis as determined by the legislative body," although the Special Tax may not be apportioned on an ad valorem basis pursuant to Article XI|IA of the California Constitution. As shown in Exhibit B, the Amended Rate and Method of Apportionment (AMENDED RMA ) provided information sufficient to allow each property owner within CFD-08-I to estimate the maximum annual Special Tax he or she will be required to pay. Sections A through C below, provide additional information on the Amended Rate and Method of Apportionment (AMENDED RMA ) of the Special Tax for CFD-08-I. A. Explanation for Special Tax Apportionment When a community facilities district is formed, a Special Tax may be levied on each parcel of taxable property within the CFD to pay for the construction, acquisition and rehabilitation of public facilities, to pay for authorized services or to repay bonded indebtedness or other related expenses incurred by CFD-08-I. This Special Tax must be apportioned in a reasonable manner; however, the tax may not be apportioned on an ad valorem basis. When more than one type of land use is present within a community facilities district, several criteria may be considered when apportioning the Special Tax. Generally, criteria based on building square footage, acreage, and land uses are selected, and categories based on such criteria are established to differentiate between parcels of property. These categories are a direct result of the developer's projected product mix, and are reflective of the proposed land use types within that community facilities district. Specific Special Tax levels are assigned to each land use class, with all parcels within a land use class assigned the same Special Tax rate. The Act does not require the Special Taxes to be apportioned to individual parcels based on benefit received. However, in order to insure fairness and equity, benefit principles have been incorporated in establishing the Special Tax rates for CFD-08-I. Communit)' Facilities District No. 08-1 Page 6 Otay Ranch Village Six January 2003,Revised Apri116, 2003 The major assumption inherent in the Special Tax rates set forth in the Amended Rate and Method of Apportionment is that the level of benefit received from the proposed public improvements is a function of land use. This assumption is borne out through an examination of commonly accepted statistical measures. For example, in measuring average weekday vehicle trip-ends, the Institute of Transportation Engineer's 1995 Trip Generation report identifies land use as the primary determinant of trip-end magnitude. Commercial land uses typically generate more trip- ends than do single family residential land use. Similarly, larger single family detached dwellings typically generate a greater number of trip-ends than do smaller single family detached homes, and therefore, will tend to receive more benefit from road grading, road landscaping and road improvements. Drainage and flood control requirements generally vary with the amount of impervious ground cover per parcel. It follows that larger homes which have more impervious ground cover will create relatively more drainage flow than smaller homes. Special taxes for CFD-08-I shall be levied to Taxable Property to satisfy the Special Tax Requirement as outlined in the Amended RMA for CFD-08-I. The Land Use Class Categories of Taxation have been established for CFD-08-I. The categories are defined as follows: >' Developed residential Parcels (single and multi-family residences) are taxed on the square footage of the building and a tax per unit basis; and >. Developed non-residential Parcels are taxed based on the acreage of the parcel. Based on the types of public facilities that are proposed for CFD-08-I and the factors described above, the Special Taxes assigned to specific land uses are generally proportionate to the relative benefits received by them, and, accordingly, the Special Taxes in CFD-08-I can be considered fair and reasonable. B. Assigned Special Tax Rates Exhibit C lists the Assigned Special Tax rates that are proposed to be levied against Residential Property and Non Residential Property within CFD-08-I. This is the proposed Special Tax for Developed Property to meet the debt service obligation to pay for the Bonds. C. Backup Special Tax When a Final Subdivision Map is recorded within CFD-08-I, the Backup Special Tax for Assessors Parcels of Developed Property classified as Residential Property or Non- Residential Property will be determined pursuant to Section C. 1 .b of the Amended RMA. This Special Tax can be used if the Assigned Special Tax does not cover the current debt service obligation. CommuniO, Facilities District No. 08-1 Page 7 Otay Ranch Village Six January 2003, Revised Apri116, 2003 D. Maximum Annual Special Tax Rate The City Council will annually determine the actual amount of the Special Tax le¥¥ on property based on the method described in the Amended ~A's and subject to the Maximum Annual Special Tax. The Maximum Annual Special Tax Rate for Developed Residential Property is the greater of the Assigned Special Tax or the Backup Special Tax. The Maximum Annual Special Tax for Non-Residential, Undeveloped and Provisional Undeveloped Property is $16,858 per Acre for Zone A and $26,445 per Acre for Zone B. The City will levy a Special Tax to the extent necessary, sufficient to meet the Special Tax Requirement. E. Accuracy of Information In order to establish the Assigned Special Tax rates and the Backup Special Tax as set forth in the Amended Rate and Method of Apportionment for CFD-08-I, McGill Martin Self, Inc. has relied on information including, but not limited to absorption, land-use types, building square footage, and net taxable acreage which were provided to McGill Martin Self, Inc. by others. McGill Martin Self, Inc. has not independently verified such data and disclaims responsibility for the impact of inaccurate data provided by others, if any, on the Amended Rate and Method of Apportionment fbr CFD-08-I, including the inability to meet the financial obligations of CFD-08-I. VI. BOUNDARIES OF COMMUNITY FACILITIES DISTRICT The boundaries of CFD-08-1 include all land on which the Special Taxes may be levied. The Recorded Boundary Map of the area included within CFD-08-I is provided as Exhibit A. VII. GENERAL TERMS AND CONDITIONS A. Substitution Facilities The description of the public facilities, as set forth herein, are general in their nature. The final nature and location of improvements and facilities will be determined upon the preparation of final plans and specifications. The final plans may show substitutes, in lieu or modifications to the proposed work in order to accomplish the work of improvement, and any such substitution shall not be a change or modification in the proceedings as long as the facilities provide a service and are of a type substantially similar to that as set forth in this Report. Community Facilities District No. 08-I Page 8 Otay Ranch Village Six January 2003, Revised April 16, 2003 B. Transportation Enhancement Facilities The City may, in its sole discretion, elect to authorize and make the proceeds of any subsequent series of bonds available to pay the cost of construction or the purchase price for the acquisition of Improvements for Transportation Enhancement Facilities. This could result in the revision of the facilities priority structure in the Acquisition and Financing Agreement for the utilization of such proceeds. C. Appeals Any landowner who feels that the amount of the Special Tax is in error may file a notice with the City Administrator, appealing the levy of the Special Tax pursuant to the procedure specified in Exhibit B. As appropriate the City Administrator will then review the appeal and, if necessary, meet with the applicant. If the findings of the City Administrator verify that the amount of the Special Tax should be modified or changed, then, as appropriate, the Special Tax levy shall be corrected, pursuant to Section F. of the Amended RMA. Community Facilities District No. 08-I Page 9 Otay Ranch Village Six January 2003, Revised April 16, 2003 EXHIBIT A CITY OF CHULA VISTA COMMUNITY FACILITIES DISTRICT NO. 08-I (OTAY RANCH VILLAGE SIX) RECORDED BOUNDARY MAP Community Facilities District No. 08-I Page 10 Ot~v Ranch Village Six January 2003,Revised April 16, 2003 EXHIBIT B CITY OF CHULA VISTA COMMUNITY FACILITIES DISTRICT NO. (OTAY RANCH VILLAGE SIX) AMENDED RATE AND METHOD OF APPORTIONMENT Community Facilities District No, 08-1 Page I l Otay Ranch Village Six January 2003. Revised April 16, 2003 ? AMENDED RATE AND METHOD OF APPORTIONMENT FOR CITY OF CHULA VISTA COMMUNITY FACILITIES DISTRICT NO. 08-I (Otay Ranch Village Six) A Special Tax as hereinafter defined shall be levied on each Assessor's Parcel of Taxable Property within the City of Chula Vista Community Facilities District No. 08-I (Otay Ranch Village Six) collected each Fiscal Year commencing in Fiscal Year 2003-2004 in an amount determined by the City Council through the application of the appropriate Special Tax for "Developed Property", "Undeveloped Property", and "Provisional Undeveloped Property" as described below. All of the Taxable Property in CFD-08-I, unless exempted by law or by the provisions hereof, shall be taxed for the purposes, to the extent and in the manner herein provided. A. DEFINITIONS The terms hereinafter set forth have the following meaning: "'A' Map" shall mean a master final subdivision or parcel map, filed in accordance with the Subdivision Map Act and the Chula Vista Municipal Code, which subdivides the land or a portion thereof shown on a tentative map into "super block" lots corresponding to units or phasing of a combination of units as shown on such tentative map and which may further show open space lot dedications, backbone street dedications and utility easements required to serve such "super block" lots. "Acre or Acreage" means the land area of an Assessor's Parcel as shown on an Assessor's Parcel Map, or if the land area is not shown on an Assessor's Parcel Map, the land area shown on the applicable Final Subdivision Map, parcel map, condominium plan, record of survey, or other recorded document creating or describing the land area. If the preceding maps for a land area are not available, the Acreage of such land area shall be determined by the City Engineer. "Act" means the Mello-Roos Community Facilities Act of 1982, as amended, being Chapter 2.5, Division 2 of Title 5 of the Government Code of the State of California. "Administrative Fees and Expenses" means the actual or reasonably estimated costs directly related to the administration of CFD-08-I including, but not limited to, the following: the costs of computing the Special Taxes and preparing the annual Special Tax collection schedules (whether by the City or designee thereof or both); the costs of collecting the Special Taxes (whether by the County, the City, or otherwise); the costs of remitting the Special Taxes to the Trustee; the costs of the Trustee (including its legal counsel) in the discharge of the duties required of it under the Indenture; the costs to the City, CFD-08-I, or any designee thereof of complying with arbitrage rebate requirements; the costs to the City, CFD-08-I, or any designee thereof of providing continuing disclosure; the costs associated with preparing Special Tax disclosure statements and responding to City of Chula Vista 11-25-02 ,Revised April 18, 2003 Community Facilities District No. 08-1 Otay Ranch Village Six Page 1 public inquiries regarding the Special Taxes; the costs of the City, CFD-08-1, or any designee thereof related to any appeal of the levy or application of the Special Tax; and the costs associated with the release of funds from an escrow account, if any. Administrative Expenses shall also include amounts estimated or advanced by the City or CFD-08-I, for any other administrative purposes of CFD-08-I, including, but not limited to attorney's fees and other costs related to commencing and pursuing to completion any foreclosure on an Assessor's Parcel with delinquent Special Taxes. "Assessor's Parcel" means a lot or parcel shown in an Assessor's Parcel Map with an assigned Assessor's Pamel number. "Assessor's Parcel Map" means an official map of the County Assessor designating parcels by Assessor's Parcel number. "Assigned Special Tax" means the Special Tax for each Land Use Class of Developed Property as determined in accordance with Section C. 1 .a. "Available Funds" means (a) the balance in the reserve fund established pursuant to the terms of the Indenture in excess of the reserve requirement as defined in such Indenture, (b) delinquent Special Tax payments not required to fund the Special Tax Requirement for any preceding Fiscal Year,(c) that portion of Special Tax prepayments allocated to the payment of interest on Bonds, and (d) other sources of funds available as a credit to the Special Tax Requirement as specified in such Indenture. "Backup Special Tax" means the Special Tax amount set forth in Section C. 1 .b. "Bonds" means any bonds or other debt (as defined in the Act), whether in one or more series, issued or incurred by CFD-08-I under the Act. "Bond Year" means a one-year period beginning on September 2nd in each year and ending on September 1st in the following year, unless defined otherwise in the applicable Indenture. "CFD Administrator" means an official of the City, or designee thereof, responsible for determining the Special Tax Requirement and providing for the levy and collection of the Special Taxes. "CFD-08-1" means City of Chula Vista Community Facilities District No. 08-1. "City" means the City of Chula Vista. "Community Purpose Facility Property" means all Assessor's Parcels which are (a) classified as community purpose facilities and meet the requirements of City of Chula Vista Ordinance No. 2002-2883 as amended on November 5, 2002 or (b) designated with specific boundaries and acreage on an 'A' Map or Final Subdivision Map as a community purpose facility. City of Chula Vista ll-25-02 ,Revised April 18, 2003 Community Facilities District No. 08-1 Otay Ranch Village Six Page 2 ,.ff-._./ "Council" means the City Council of the City, acting as the legislative body of CFD-08-I. "County" means the County of San Diego. "Developed Property" means, for each Fiscal Year, all Taxable Property for which a building permit for new construction was issued prior to March 1 of the prior Fiscal Year in which the Special Tax is being levied. "Exempt Property" means property not subject to the Special Tax due to its classification as either Public Property, Property Owner Association Property, Community Purpose Facility Property, public or utility easements in accordance with section E. 1. "Final Subdivision Map" means a subdivision of property, created by recordation of a final subdivision map, parcel map or lot line adjustment, approved by the City pursuant to the Subdivision Map Act (California Government Code Section 66410 et seq.) or recordation of a condominium plan pursuant to California Civil Code 1352, that creates individual lots for which residential building permits may be issued without further subdivision of such property. "Fiscal Year" means the period starting July 1 and ending on the following June 30. "Indenture" means the indenture, fiscal agent agreement, trust agreement, resolution or other instrument pursuant to which Bonds are issued, as modified, amended and/or supplemented from time to time, and any instrument replacing or supplementing the same. "Land Use Class" means any of the classes listed in Table 1 of Section C.1 .a. "Lot(s)" means an individual legal lot created by a Final Subdivision Map for which a building permit for residential construction has been or could be issued. "Maximum Annual Special Tax" means the maximum annual Special Tax, determined in accordance with the provisions of Section C, which may be levied in any Fiscal Year on any Assessor's Pamel of Taxable Property. "Non-Residential Property" means all Assessor's Parcels of Developed Property, for which a building permit(s) was issued for a non-residential use, excluding Community Purpose Facility Property. "Open Space" means property within the boundaries of CFD 08-1 which (a) has been designated with specific boundaries and acreage on an 'A' Map or Final Subdivision Map as open space, (b) is classified by the County Assessor as open space (c) has been irrevocably offered for dedication as open space, prior to June 1 st of the preceding Fiscal Year, to the federal government, the State of California, the County, the City, any other public agency or (d) is encumbered by an easement or other restriction required by the City limiting the use of such property to open space. City of(hula Vista 11-25-02 ,Revised April 18, 2003 Community Facilities District No, 08~1 Otay Ranch Village Six Page 3 "Outstanding Bonds" mean all Bonds, which remain outstanding as defined in the Indenture. "Property Owner Association Property" means any property within the boundaries of CFD-08-I which is (a) owned by a property owner association or (b) is designated with specific boundaries and acreage on an 'A' Map or Final Subdivision Map as property owner association property. As used in this definition, a Property Owner Association Property includes any master or sub-association. "Proportionately" means for Developed Property that the ratio of the actual Special Tax levy to the Assigned Special Tax or Backup Special Tax is equal for all Assessors' Parcels of Developed Property within CFD-08-I. For Undeveloped Property or Provisional Undeveloped Property "Proportionately" means that the ratio of the actual Special Tax levy per Acre to the Maximum Annual Special Tax per Acre is equal for all Assessor's Parcels of Undeveloped Property and equal for all Assessor's Parcels of Provisional Undeveloped Property within CFD-08-I. "Provisional Undeveloped Property" means all Assessor's Parcels of Public Property, Property Owner Association Property, Community Purpose Facility Property, Open Space or other property that would otherwise be classified as Exempt Property pursuant to the provisions of Section E, but carmot be classified as Exempt Property because to do so would reduce the Acreage of all Taxable Property below the required minimum acreage as set forth in Section E.1 for Zone A or Zone B as applicable. "Public Property" means any property within the boundaries of CFD-08-1 that which (a) is owned by a public agency, (b) has been irrevocably offered for dedication, prior to June 1 st of the preceding Fiscal Year, to a public agency or (c) is designated with specific boundaries and acreage on an 'A' Map or Final Subdivision Map as property which will be owned by a public agency. For purposes of this definition, a public agency includes the federal government, the State of California, the County, the City or any other public agency. "Residential Property" means all Assessor's Parcels of Developed Property for which a building permit has been issued for purposes of constructing one or more residential dwelling units. "Residential Floor Area" means all of the square footage of living area within the perimeter of a residential structure, not including any carport, walkway, garage, overhang, patio, enclosed patio, or similar area. The determination of Residential Floor Area shall be made by the CFD Administrator by reference to appropriate records kept by the City's Building Department. Residential Floor Area for a residential structure will be based on the initial building permit(s) issued for such structure. "Special Tax" means the annual special tax to be levied in each Fiscal Year on each Assessor's Parcel of Taxable Property to fund the Special Tax Requirement. City of Chula Vista 11-25-02 ,Revised Apri118, 2003 Community Facilities District No. 08-1 Otay Ranch Village Six Page 4 "Special Tax Requirement" means that amount of Special Tax revenue required in any Fiscal Year for CFD-08-I to: (i) pay annual debt service on all Outstanding Bonds due in the Bond Year beginning in such Fiscal Year; (ii) pay other periodic costs on Outstanding Bonds, including but not limited to, credit enhancement and rebate payments; (iii) pay Administrative Fees and Expenses; (iv) pay any amounts required to establish or replenish any reserve funds for all Outstanding Bonds in accordance with the Indenture; and (v) pay directly for acquisition and/or construction of public improvements which are authorized to be financed by CFD-08-I provided that the inclusion of such amount does not cause an increase in the levy of Special Tax on the Undeveloped Property; (vi) less a credit for Available Funds. "State" means the State of California. "Taxable Property" means all of the Assessor's Parcels within the boundaries of CFD-08-I that are not exempt from the Special Tax pursuant to law or Section E below. "Trustee" means the trustee, fiscal agent, or paying agent under the Indenture. "Undeveloped Property" means, for each Fiscal year, all Taxable Property not classified as Developed Property. "Zone A" means a specific geographic area as depicted in Exhibits A and B attached hereto. "Zone B" means a specific geographic area as depicted in Exhibits A and B attached hereto. B. ASSIGNMENT TO LAND USE CATEGORIES Each Fiscal Year, all Assessor's Parcels o£ Taxable Property within CFD-08-I shall be (a) categorized as being located in either Zone A or Zone B, (b) classified as Developed Property, Undeveloped Property or Provisional Undeveloped Property and (c) subject to the levy of annual Special Taxes determined pursuant to Sections C and D. Furthermore, all Developed Property shall then be classified as Residential Property or Non-Residential Property. C. MAXIMUM ANNUAL SPECIAL TAX RATE 1. Developed Property The Maximum Annual Special Tax for each Assessor's Parcel of Residential Property or Non-Residential Property shall be the greater of (1) the Assigned Special Tax described in Table 1 which follows or (2) the Backup Special Tax computed pursuant to 1 b. which follows. City of Chula Vista 11-25-02 ,Revised April 18, 2003 Community Facilities District No. 08-1 Otay Ranch Villa,ge Six . Page 5 a. Assigned SpeciaITax The Assigned Special Tax for each Assessor's Parcel of Developed Property is shown in Table 1. TABLE 1 Assigned Special Tax for Developed Property within Zone A and Zone B: Land Use Class Description Assigned Special Tax 1 $800 per unit plus $.35 per square foot of Residential Property Residential Floor Area 2 Non-Residential $6,000 per Acre Property b. Backup SpeciaITax When a Final Subdivision Map is recorded within Zone A or Zone B the Backup Special Tax for Residential Property, Non-Residential Property and Undeveloped Property shall be determined as follows: For each Assessor's Parcel of Residential Proper .ty or Undeveloped Property to be classified as Residential Property upon its development within the Final Subdivision Map area, the Backup Special Tax shall be the rate per Lot calculated according to the following formula: Zone A $ 16,858x A L Zone B $ 26,445 x A L The terms above have the following meanings: B - Backup Special Tax per Lot in each Fiscal Year. A- Acreage classified or to be classified as Residential Property in such Final Subdivision Map. L - Lots in the Final Subdivision Map which are classified or to be classified as Residential Property. City of Chula IZista I 1-25-02 ,Revised Apri118, 2003 Community Facilities District No. 08-1 Otay Ranch Village Six Page 6 For each Assessor's Parcel of Non-Residential Property or Undeveloped Property to be classified as Non-Residential Property upon the development thereof within the Final Subdivision Map area, the Backup Special Tax shall be determined by multiplying $16,858 for Zone A and $26,445 for Zone B by the total Acreage of all Non-Residential Property and Undeveloped Property to be classified as Non- Residential Property upon the development thereof within the Final Subdivision Map area. Notwithstanding the foregoing if an Assessor's Parcel of Residential Property, Non- Residential Property or Undeveloped Property for which the Backup Special Tax has been determined are subsequently changed or modified by recordation of a new or amended Final Subdivision Map, then the Backup Special Tax applicable to such Assessor's Parcel shall be recalculated to equal the amount of Backup Special Tax that would have been generated if such change did not take place. 2. Undeveloped Property and Provisional Undeveloped Property The Maximum Annual Special Tax for each Assessor's Parcel of Undeveloped Property or Provisional Undeveloped Property shall be $16,858 per Acre for Zone A and $26,445 per Acre for Zone B. D. METHOD OF APPORTIONMENT OF THE SPECIAL TAX Commencing with Fiscal Year 2003-04 and for each following Fiscal Year, the Council shall determine the Special Tax Requirement and shall levy the Special Tax until the amount of Special Taxes equals the Special Tax Requirement. The Special Tax shall be levied each Fiscal Year as follows: First: The Special Tax shall be levied Proportionately on all Developed Property within Zone A and Zone B at a rate up to 100% of the applicable Assigned Special Tax to satisfy the Special Tax Requirement. Second: If additional monies are needed to satisfy the Special Tax Requirement after the first step has been completed, the Special Tax shall be levied Proportionately on all Undeveloped Property within Zone A and Zone B, at a rate up to 100% of the Maximum Annual Special Tax for Undeveloped Property. In determining the Acreage of an Assessor's Parcel of Undeveloped Property for purposes of determining the annual Special Tax to be levied on such Assessor's Parcel, the CFD Administrator shall not include any Acreage shown on any applicable tentative subdivision map or other land use entitlement approved by the City that designates such Acreage for a use that ~vould be classified as Open Space, Property Owner Association Property, Community Purpose Facility or Public Property. Cily of Chula Vista 11-25-02 ,Revised April 18, 2003 Community Facilities District No. 08-1 Page 7 Otay Ranch Village Six .~ ? Third: If additional monies are needed to satisfy the Special Tax Requirement after the first two steps have been completed, the Special Tax to be levied on each Assessor's Parcel of Developed Property whose Maximum Annual Special Tax is derived by the application of the Backup Special Tax shall be increased Proportionately from the Assigned Special Tax up to the Maximum Annual Special Tax for each such Developed Property.. Fourth: If additional monies are needed to satisfy the Special Tax Requirement after the first three steps have been completed, then the Special Tax shall be levied Proportionately on all Provisional Undeveloped Property at a rate up to 100% of the Maximum Annual Special Tax for Undeveloped Property. Notwithstanding the above, under no circumstances will the Special Tax levied against any Assessor's Parcel of Residential Property be increased by more than ten percent per year as a consequence of delinquency or default in the payment of Special Taxes by the owner of any other Taxable Property. E. EXEMPTIONS 1. The CFD Administrator shall classify the following as Exempt Property: (i) Public Property, (ii) Property Owner Association Property, (iii) Community Purpose Facility Property, (iv) Open Space and (v) Assessor's Parcels with public or utility easements making impractical their utilization for other than the purposes set forth in the easement; provided, however, that no such classification shall reduce the sum of all Taxable Property to less than 40.98 Acres in Zone A and 42.43 Acres in Zone B. Property which cannot be classified as Exempt Property because such classification would reduce the Acreage of all Taxable Property to less than 40.98 Acres in Zone A and 42.43 Acres in Zone B will be classified as Provisional Undeveloped Property and shall be taxed pursuant to the fourth step of Section D. Tax exempt status for purposes of this paragraph will be assigned by the CFD Administrator in the chronological order in which property becomes Exempt Property. 2. The Maximum Annual Special Tax obligation for any property which would be classified as Public Property upon its transfer or dedication to a public agency but which is classified as Provisional Undeveloped Property pursuant to paragraph 1 of Section E shall be prepaid in full by the seller pursuant to Section H. 1, prior to the transfer/dedication of such property to such public agency. Until the Maximum Annual Special Tax obligation for any such Public Property is prepaid, the property shall continue to be subject to the levy of the Special Tax as Provisional Undeveloped Property. 3. if the use of an Assessor's Parcel of Exempt Property changes so that such Assessor's Parcel is no longer classified as one of the uses set forth in paragraph 1 that would make such Assessor's Parcel eligible to be classified as Exempt Property, such Assessor's Parcel shall cease to be classified as Exempt Property and shall be deemed to be Taxable Property. City of Chula Vista 11-25-02 ,Revised April 18, 2003 Community Facilities District No. 08-1 Otay Ranch Village Six Page 8 F. REVIEW/APPEAL COMMITTEE Any landowner or resident who feels that the amount of the Special Tax levied on their Assessor's Parcel is in error shall first consult with the CFD Administrator regarding such error. If following such consultation, the CFD Administrator determines that an error has occurred the CFD Administrator may amend the amount of the Special Tax levied on such Assessor's Parcel. If following such consultation and action (if any by the CFD Administrator), the landowner or resident believes such error still exists, such person may file a written notice with the City Clerk of the City appealing the amount of the Special Tax levied on such Assessor's Parcel. Upon the receipt of any such notice, the City Clerk shall forward a copy of such notice to the City Manager who shall establish as part of the proceedings and administration of CFD-08-I a special three-member Review/Appeal Committee. The Review/Appeal Committee may establish such procedures, as it deems necessary to undertake the review of any such appeal. The Review/Appeal Committee shall interpret this Rate and Method of Apportionment and make determinations relative to the annual administration of the Special Tax and any landowner or resident appeals, as herein specified. The decision of the Review/Appeal Committee shall be final and binding as to all persons. G. MANNER OF COLLECTION The annual Special Tax shall be collected in the same manner and at the same time as ordinary ad valorem property taxes; provided, however, that CFD-08-I, may directly bill the Special Tax, may collect Special Taxes at a different time or in a different manner if necessary to meet its financial obligations, and may covenant to foreclose and may actually foreclose on Assessor's Parcels of Taxable Property that are delinquent in the payment of Special Taxes. Tenders of Bonds may be accepted for payment of Special Taxes upon the terms and conditions established by the Council pursuant to the Act. However, the use of Bond tenders shall only be allowed on a case-by-case basis as specifically approved by the Council. H. PREPAYMENT OF SPECIAL TAX The following definition applies to this Section H: "CFD Public Facilities" means those public facilities authorized to be financed by CFD-08-I. "CFD Public Facilities Costs" means either $20 million, or such lower number as shall be determined either by (a) the CFD Administrator as sufficient to finance the CFD Public Facilities, or (b) the Council concurrently with a covenant that it will not issue any more Bonds to be secured by Special Taxes levied under this Amended Rate and Method of Apportionment. City of Chula Vista 11-25-02 ,Revised April 18, 2003 Community Facilities District No. 08-1 Ota? Ranch Village Six Page 9 "Construction Fund" means an account specifically identified in the Indenture to hold funds which are currently available for expenditure to acquire or construct the CFD Public Facilities. "Future Facilities Costs" means the CFD Public Facilities Costs minus that (a) portion of the CFD Public Facilities Costs previously funded (i) from the proceeds of all previously issued Bonds, (ii) from interest earnings on the Construction Fund actually earned prior to the date of prepayment and (iii) directly from Special Tax revenues and (b) the amount of the proceeds of all previously issued Bonds then on deposit in the Construction Fund. "Outstanding Bonds" means all previously issued Bonds which will remain outstanding after the first interest and/or principal payment date following the current Fiscal Year, excluding Bonds to be redeemed at a later date with the proceeds of prior prepayments of Maximum Annual Special Taxes. 1. Prepayment in Full The Maximum Annual Special Tax obligation may only be prepaid and permanently satisfied for an Assessor's Parcel of Developed Property, Undeveloped Property for which a building permit has been issued, or Provisional Undeveloped Property. The Maximum Annual Special Tax obligation applicable to such Assessor's Parcel may be fully prepaid and the obligation of such Assessor's Parcel to pay the Special Tax permanently satisfied as described herein; provided, however that a prepayment may be made only if there are no delinquent Special Taxes with respect to such Assessor's Parcel at the time of prepayment. An owner of an Assessor's Parcel intending to prepay the Maximum Annual Special Tax obligation shall provide the CFD Administrator with written notice of intent to prepay. Within 30 days of receipt of such written notice, the CFD Administrator shall notify such owner of the prepayment amount of such Assessor's Parcel. The CFD Administrator may charge a reasonable fee for providing this figure, which can be collected prior to preparing such calculation. The prepayment amount shall be calculated as summarized below (capitalized terms as defined below): Bond Redemption Amount plus Redemption Premium plus Future Facilities Amount plus Defeasance Amount plus Prepayment Fees and Expenses less Reserve Fund Credit less Capitalized Interest Credit Total: equals Prepayment Amount City of Chula Vista 11-25-02 ,Revised April 18, 2003 Community Facilities District No. 08-1 Otay Ranch Villa~re Six Page 10 As of the proposed date of prepayment, the Prepayment Amount (defined below) shall be calculated as follows: Step No.: 1. For Developed Property, compute the Maximum Annual Special Tax for the Assessor's Parcel to be prepaid. For Undeveloped Property for which a building permit has been issued to be prepaid, compute the Maximum Annual Special Tax for that Assessor's Parcel as though it was already designated as Developed Property, based upon the building permit, issued for that Assessor's Parcel. For Provisional Undeveloped Property to be prepaid, compute the Maximum Annual Special Tax for such Assessor's Parcel using the Maximum Annual Special Tax for Undeveloped Property. 2. Divide the Maximum Annual Special Tax computed pursuant to step 1 by the sum of the total expected Maximum Annual Special Tax revenues which may be levied within CFD-08-I excluding any Assessor's Parcels for which the Maximum Annual Special Tax obligation has been previously prepaid. 3. Multiply the quotient computed pursuant to step 2 by the principal amount of the Outstanding Bonds to compute the amount of Outstanding Bonds to be retired and prepaid (the "Bond Redemption Amount"). 4. Multiply the Bond Redemption Amount computed pursuant to step 3 by the applicable redemption premium on the next possible Bond call date, if any, on the Outstanding Bonds to be redeemed (the "Redemt~tion Premium"). 5. If all the Bonds authorized to be issued for CFD-08-I have not been issued, compute the Future Facilities Costs. 6. Multiply the quotient computed pursuant to step 2 by the amount if any, determined pursuant to step 5 to compute the amount of Future Facilities Costs to be allocated to such Assessor's Parcel (the "Future Facilities Amount'S. 7. Compute the amount needed to pay interest on the Bond Redemption Amount from the first bond interest and/or principal payment date following the current Fiscal Year until the earliest redemption date for the Outstanding Bonds. 8. Confirm that no Special Tax delinquencies apply to such Assessor's Parcel. 9. Determine the Special Taxes levied on the Assessor's Parcel in the current Fiscal Year, which have not yet been paid. 10. Determine the fees and expenses of CFD-08-I, including but not limited to, the costs of computation of the prepayment, the costs to invest the prepayment proceeds, the costs of redeeming Bonds from the proceeds of such prepayment, and the cost of City of Chula l/ista 11-25-02 ,Revised April 18, 2003 Community Facilities District No. 08-1 Otay Ranch Village Six Page 11 recording any notices to evidence the prepayment and the redemption (the "Prepayment Fees and Expenses") 11. Compute the amount the CFD Administrator reasonably expects to derive from the reinvestment of the prepayment amount less the Prepayment Fees and Expenses, as determined pursuant to step 10, from the date of prepayment until the redemption date for the Outstanding Bonds to be redeemed with the prepayment. 12. Add the amounts computed pursuant to steps 7 and 9 and subtract the amount computed pursuant to step 11 (the "Defeasance Amount"). 13. The reserve fund credit (the "Reserve Fund Credit") shall equal the lesser off (a) the expected reduction in the reserve requirement (as defined in the Indenture), if any, associated with the redemption of Outstanding Bonds as a result of the prepayment, or (b) the amount derived by subtracting the new reserve requirement (as defined in the Indenture) in effect after the redemption of Outstanding Bonds as a result of the prepayment from the balance in the reserve fund on the prepayment date, but in no event shall such amount be less than zero. 14. If any capitalized interest for the Outstanding Bonds will not have been expended at the time of the first interest payment following the current Fiscal Year, a capitalized interest credit shall be calculated by multiplying the quotient computed pursuant to step 2 by the expected balance in the capitalized interest fund after such first interest payment (the "Capitalized Interest Credit"). 15. The Maximum Annual Special Tax prepayment is equal to the sum of the amounts computed pursuant to steps 3, 4, 6, 10, and 12, less the amounts computed pursuant to steps 13 and 14 (the "Prepayment Amount"). 16. From the Prepayment Amount, the amounts computed pursuant to steps 3, 4, 12, 13, and 14 shall be deposited into the appropriate fund as established under the Indenture and be used to retire Outstanding Bonds or make debt service payments. The amount computed pursuant to step 10 shall be retained by CFD-08-I. The amount computed pursuant to step 6 shall be deposited in the Construction Fund. The Prepayment Amount may be sufficient to redeem other than a $5,000 increment of Bonds. In such cases, the increment above $5,000 or integral multiple thereof will be retained in the appropriate fund established under the Indenture to be used with the next prepayment of Bonds or to make debt service payments. As a result of the payment of the current Fiscal Year's Special Tax levy as determined under step 9 above, the CFD Administrator shall remove the current Fiscal Year's Special Tax levy for such Assessor's Parcel from the County tax rolls. With respect to any Assessor's Parcel that is prepaid, the Council shall cause a suitable notice to be recorded in compliance with the Act, to indicate the prepayment of Special Taxes and the release of the Special Tax lien on such Assessor's Parcel, and the obligation of such Assessor's Parcel to pay the Special Tax shall cease. City of Chula Vista 11-25-02 ,Revised April 18, 2003 Community Facilities District No. 08-I Otay Ranch Village Six Pa,ge 12 Notwithstanding the foregoing, no Special Tax prepayment shall be allowed unless the amount of Maximum Annual Special Taxes that may be levied on Taxable Property within CFD-08-I, both prior to and after the proposed prepayment is at least 1.1 times the maximum annual debt service on all Outstanding Bonds. 2. Prepayment in Part The Maximum Annual Special Tax on an Assessor's Parcel of Developed Property or an Assessor's Parcel of Undeveloped Property for which a building permit has been issued may be partially prepaid. The amount of the prepayment shall be calculated as in Section H.1, except that a partial prepayment shall be calculated according to the following formula: PP = (PE x F) + A These terms have the following meaning: PP = the partial prepayment PE = the Prepayment Amount calculated according to Section H.1, minus Prepayment Fees and Expenses determined pursuant to step l 0. F = the percent by which the owner of the Assessor's Parcel(s) is partially prepaying the Maximum Annual Special Tax. A= the Prepayment Fees and Expenses determined pursuant to step 10. The owner of an Assessor's Parcel who desires to partially prepay the Maximum Annual Special Tax shall notify the CFD Administrator of (i) such owner's intent to partially prepay the Maximum Annual Special Tax, (ii) the percentage by which the Maximum Annual Special Tax shall be prepaid, and (iii) the company or agency that will be acting as the escrow agent, if applicable. The CFD Administrator shall provide the owner with a statement of the amount required for the partial prepayment of the Maximum Annual Special Tax for an Assessor's Parcel within 30 days of the request and may charge a reasonable fee for providing this service. With respect to any Assessor's Parcel that is partially prepaid, the City shall (i) distribute the funds remitted to it according to step 16 of Section H.1, and (ii) indicate in the records of CFD-08-I that there has been a partial prepayment of the Maximum Annual Special Tax and that a portion of the Maximum Annual Special Tax equal to the outstanding percentage (1.00 - F) of the remaining Maximum Annual Special Tax shall continue to be authorized to be levied on such Assessor's Parcel pursuant to Section D. I. TERM OF MAXIMUM ANNUAL SPECIAL TAX The Maximum Annual Special Tax shall be levied commencing in Fiscal Year 2003-2004 to the extent necessary to fully satisfy the Special Tax Requirement and shall be levied for a period no longer than the 2039-2040 Fiscal Year. City of Chula Vista l 1-25-02 ,Revised April 18, 2003 Community Facilities District No. 08-1 Otay Ranch Village Six Page 13 EXHIBIT C CITY OF CHULA VISTA COMMUNITY FACILITIES DISTRICT NO. 08-I (OTAY RANCH VILLAGE SIX) ASSIGNED SPECIAL TAX RATES FOR DEVELOPED PROPERTY Annual Special Tax for Developed Property in Land Use Class 1 Community Facilities District No. 08-I Residential Developed Parcels Maximum Annual Special Tax $800 per unit plus $.35 per square foot of Land Use Class 1 - Zone A Residential Floor Area $800 per unit plus $.35 per square foot of Land Use Class 1 - Zone B Residential Floor Ama Annual Special Tax for Developed Property in Land Use Class 2 Community Facilities District No. 08-1 Non-Residential Developed Parcels Maximum Annual Special Tax Land Use Class 2 Zone A $6,000 per acre of Non-Residential Property Land Use Class 2 Zone B $6,000 per acre of Non-Residential Property Community Facilitit's District No. 08-1 Page 12 Otay Ranch Village Six Januao, 2003, Revised April 16, 2003 RESOLUTION NO. 2003- RESOLUTION OF THE CITY COUNCIL OF THE C1TY OF CHULA VISTA, CALIFORNIA, OF INTENTION TO CONSIDER CHANGES AND MODIFICATION TO THE RATE AND METHOD OF APPORTIONMENT FOR COMMUNITY FACILITIES DISTRICT NO. 08-I (OTAY RANCH VILLAGE SIX) WHEREAS, the City Council of the City of Chula Vista, California, (the "City Council") previously has previously undertaken proceedings to form Community Facilities District No 08-I (Otay Ranch Village Six) (the "District") and to authorize the levy of special taxes within the District and thc issuance by the District of bonds pursuant to the provisions of the Mello-Roos Cmnmunity Facilities Act of 1982, as amended (Government Code Section 53311 and fbllowing) (the "Act") and the City of Chula Vista Community Facilities District Ordinance enacted pursuant to the powers reserved by the City of Chula Vista under Sections 3, 5 and 7 of Article XI of the Constitution of the State of California (the "Ordinance") (the Act and the Ordinance may be refcrred to collectively as the ~'Community Facilities District Law") to finance the acquisition or construction of certain authorized facilities; and WHEREAS, the qualified electors of the District, voting in a special election held on January 16, 2003, approved the authorization to levy special taxes within the District pursuant to a rate and method of apportionment of such special taxes (the "Existing Rate and Method") and WHEREAS, subsequent to the formation of the District and such election, The Otay Ranch Company ("Otay Ranch"), the master developer of the property within the District, has requested, and the City staff and City financing team for the District have concurred with such rcquest, that that the City Council, acting in its capacity as the legislative body of the District, initiate proceedings to consider modifying the Existing Rate and Method; and WHEREAS, this City Council desires to initiate such proceedings and to set the time and place for a public hearing on this Resolution. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CHULA VISTA, CALIFORNIA, ACTING IN ITS CAPACITY AS THE LEGISLATIVE BODY OF COMMUNITY FACILITIES DISTRICT NO. 08-1 (OTAY RANCH VILLAGE SIX), DOES HEREBY RESOLVE, DECLARE, FIND, DETERMINE AND ORDER AS FOLLOWS: SECTION 1. RECITALS. The above recitals are all true and correct. SECTION 2. DESCRIPTION OF THE AREA TO BE AFFECTED. The area to be affected by the proposed modification, if approved, is ail of the District which is generally described as follows: All property within the boundaries of Community Facilities District No. 08-I (Otay Ranch Village Six), as shown on a map as previously approved by the City 1 Council of the City, such map designated by the name of such District, a copy of which is on file in the office of the City Clerk of the City. SECTION 3. DECLARATION OF INTENTION TO CONSIDER THE MODIFICATION OF THE EXISTING RATE AND METHOD. This City Council hereby declares its intention to consider modifying the Existing Rate and Method so that the rate and method of apportionment of special taxes authorized to be levied within the District reads as set forth in Exhibit A attached hercto and incorporated herein by this reference. SECTION 4. PUBLIC HEARING. NOTICE IS HEREBY GIVEN that on June 17, 2003, at the hour of 6 p.m., in the regular meeting place of the City Council, being the Council Chambers located at 276 Fourth Street, Chula Vista, California, thc City Council will hold a public hearing to consider this Resolution and to consider thc approval of the modification of the Existing Rate and Method. At such time and place all ioterested persons or taxpayers for or against the approval of the modification of the Existing Rate and Method will be heard. At the above-mentioned time and place for public hearing any persons interested, including taxpayers and property owners may appear and be heard. The testimony of all interested persons for or against the modification of the Existing Rate and Method will be heard and considered. Any protests may be made orally or in writing. However, any protests pertaining to the regularity or sufficiency of the proceedings shall be in writing and clearly set forth the irregularities and defects to which the objection is made. All written protests shall be filed with the city clerk of thc city on or before the time fixed for the public hearing. Written protests may be withdrawn in writing at any time before the conclusion of thc public hearing. lfa written majority protest is filed against the modification of the Existing Rate and Method, the proceedings shall be abandoned. SECTION 5. ELECTION. If, following the public hearing described in the Section above, the City Council determines to approve the modification of the Existing Rate and Method, the City Council shall then submit the modification to the qualified electors of the District. If at least twelve (12) persons, who need not necessarily be the same twelve (12) persons, have been registered to vote within the District for each of the ninety (90) days preceding the close of the public hearing, the vote shall be by registered voters of the District, with each voter having one (1) vote. Otherwise, the vote shall be by the landowners of the District who were the owners of record at the close of the subject hearing, with each landowners or the authorized representative thereof, having one (1) vote for each acre or portion of an acre of land owned within the District. SECTION 6. NOTICE OF PUBLIC HEARING. The City Clerk is hereby authorized and directed to give notice of such public hearing by publication pursuant to Government Code Section 6061 in a legally designated newspaper o£ general circulation with such publication to be completed at least seven (7) days prior to the date set for such public hearing. SECTION 7. EFFECTIVE DATE. This Resolution shall become effective immediately upon its adoption. 2 PREPARED BY: APPROVED AS TO FORM BY: Clifford Swanson An~- M~ore Director of Engineering City Attorney J:Altomcy Reso/CFD 08 I 5 7(13 3 AMENDED RATE AND METHOD OF APPORTIONMENT FOR CITY OF CHULA VISTA COMMUNITY FACILITIES DISTRICT NO. 08-I (Otay Ranch Village Six) A Special Tax as hereinafter defined shall be levied on each Assessor's Parcel of Taxable Property within the City of Chula Vista Community Facilities District No. 08-I (Otay Ranch Village Six) collected each Fiscal Year commencing in Fiscal Year 2003-2004 in an amount determined by the City Council through the application of the appropriate Special Tax for "Developed Property", "Undeveloped Property", and "Provisional Undeveloped Property" as described below. All of the Taxable Property in CFD-08-I, unless exempted by law or by the provisions hereof, shall be taxed for the purposes, to the extent and in the manner herein provided. A. DEFINITIONS The terms hereinafter set forth have the following meaning: "'A' Map" shall mean a master final subdivision or parcel map, filed in accordance with the Subdivision Map Act and the Chula Vista Municipal Code, which subdivides the land or a portion thereof shown on a tentative map into "super block" lots corresponding to units or phasing of a combination of units as shown on such tentative map and which may further show open space lot dedications, backbone street dedications and utility easements required to serve such "super block" lots. "Acre or Acreage" means the land area of an Assessor's Parcel as shown on an Assessor's Parcel Map, or if the land area is not shown on an Assessor's Parcel Map, the land area shown on the applicable Final Subdivision Map, parcel map, condominium plan, record of survey, or other recorded document creating or describing the land area. If the preceding maps for a land area are not available, the Acreage of such land area shall be determined by the City Engineer. "Act" means the Mello-Roos Community Facilities Act of 1982, as amended, being Chapter 2.5, Division 2 of Title 5 of the Government Code of the State of California. "Administrative Fees and Expenses" means the actual or reasonably estimated costs directly related to the administration of CFD-08-I including, but not limited to, the following: the costs of computing the Special Taxes and preparing the annual Special Tax collection schedules (whether by the City or designee thereof or both); the costs of collecting the Special Taxes (whether by the County, the City, or otherwise); the costs of remitting the Special Taxes to the Trustee; the costs of the Trustee (including its legal counsel) in the discharge of the duties required of it under the Indenture; the costs to the City, CFD-08-I, or any designee thereof of complying with arbitrage rebate requirements; the costs to the City, CFD-08-I, or any designee thereof of providing continuing disclosure; the costs associated with preparing Special Tax disclosure statements and responding to City of Chula Vista 11-25-02 ,Revised April 18, 2003 Community Facilities District No. 08-1 Otay Ranch Village Six Page I public inquiries regarding the Special Taxes; the costs of the City, CFD-08-I, or any designee thereof related to any appeal of the levy or application of the Special Tax; and the costs associated with the release of funds from an escrow account, if any. Administrative Expenses shall also include amounts estimated or advanced by the City or CFD-08-I, for any other administrative purposes of CFD-08-I, including, but not limited to attorney's fees and other costs related to commencing and pursuing to completion any foreclosure on an Assessor's Parcel with delinquent Special Taxes. "Assessor's Parcel" means a lot or parcel shown in an Assessor's Parcel Map with an assigned Assessor's Parcel number. "Assessor's Parcel Map" means an official map of the County Assessor designating parcels by Assessor's Parcel number. "Assigned Special Tax" means the Special Tax for each Land Use Class of Developed Property as determined in accordance with Section C. 1 .a. "Available Funds" means (a) the balance in the reserve fund established pursuant to the terms of the Indenture in excess of the reserve requirement as defined in such Indenture, (b) delinquent Special Tax payments not required to fund the Special Tax Requirement for any preceding Fiscal Year,(c) that portion of Special Tax prepayments allocated to the payment of interest on Bonds, and (d) other sources of funds available as a credit to the Special Tax Requirement as specified in such Indenture. "Backup Special Tax" means thc Special Tax amount set forth in Section C. 1.b. "Bonds" means any bonds or other debt (as defined in the Act), whether in one or more series, issued or incurred by CFD-08-I under the Act. "Bond Year" means a one-year period beginning on September 2nd in each year and ending on September Ist in the following year, unless defined otherwise in the applicable Indenture. "CFD Administrator" means an official of the City, or designee thereof, responsible for determining the Special Tax Requirement and providing for the levy and collection of the Special Taxes. "CFD-08-I" means City of Chula Vista Community Facilities District No. 08-I. "City" means the City of Chula Vista. "Community Purpose Facility Property" means all Assessor's Parcels which are (a) classified as community purpose facilities and meet the requirements of City of Chula Vista Ordinance No. 2002-2883 as amended on November 5, 2002 or (b) designated with specific boundaries and acreage on an 'A' Map or Final Subdivision Map as a community purpose facility. City of Chula Vista 11-25-02 ,Revised April 18, 2003 Community Facilities District No. 08-1 Otay Ranch Village Six Page 2 "Council" means the City Council of the City, acting as the legislative body of CFD-08-I. "County" means the County of San Diego. "Developed Property" means, for each Fiscal Year, all Taxable Property for which a building permit for new construction was issued prior to March 1 of the prior Fiscal Year in which the Special Tax is being levied. "Exempt Property" means property not subject to the Special Tax due to its classification as either Public Property, Property Owner Association Property, Community Purpose Facility Property, public or utility easements in accordance with section E. 1. "Final Subdivision Map" means a subdivision of property, created by recordation of a final subdivision map, parcel map or lot line adjustment, approved by the City pursuant to the Subdivision Map Act (California Government Code Section 66410 et seq.) or recordation of a condominium plan pursuant to California Civil Code 1352, that creates individual lots for which residential building permits may be issued without further subdivision of such property. "Fiscal Year" means the period starting July 1 and ending on the following June 30. "Indenture" means the indenture, fiscal agent agreement, trust agreement, resolution or other instrument pursuant to which Bonds are issued, as modified, amended and/or supplemented from time to time, and any instrument replacing or supplementing the same. "Land Use Class" means any of the classes listed in Table 1 of Section C. 1.a. "Lot(s)" means an individual legal lot created by a Final Subdivision Map for which a building permit for residential construction has been or could be issued. "Maximum Annual Special Tax" means the maximum annual Special Tax, determined in accordance with the provisions of Section C, which may be levied in any Fiscal Year on any Assessor's Parcel of Taxable Property. "Non-Residential Property" means all Assessor's Parcels of Developed Property, for which a building permit(s) was issued for a non-residential use, excluding Community Purpose Facility Property. "Open Space" means property ~vithin the boundaries of CFD 08-1 which (a) has been designated with specific boundaries and acreage on an 'A' Map or Final Subdivision Map as open space, (b) is classified by the County Assessor as open space (c) has been irrevocably offered for dedication as open space, prior to June 1st of the preceding Fiscal Year, to the federal government, the State of California, the County, the City, any other public agency or (d) is encumbered by an easement or other restriction required by the City limiting the use of such property to open space. C)'O: of Chula Vista 11-25-02 ,Revised Apri118, 2003 Community Facilities' District No, 08-1 Otay Ranch Village Six , Page 3 "Outstanding Bonds" mean all Bonds, which remain outstanding as defined in the Indenture. "Property Owner Association Property" means any property within the boundaries of CFD-08-I which is (a) owned by a property owner association or (b) is designated with specific boundaries and acreage on an 'A' Map or Final Subdivision Map as property owner association property. As used in this definition, a Property Owner Association Property includes any master or sub-association. "Proportionately" means for Developed Property that the ratio of the actual Special Tax levy to the Assigned Special Tax or Backup Special Tax is equal for all Assessors' Parcels of Developed Property within CFD-08-I. For Undeveloped Property or Provisional Undeveloped Property "Proportionately" means that the ratio of the actual Special Tax levy per Acre to the Maximum Annual Special Tax per Acre is equal for all Assessor's Parcels of Undeveloped Property and equal for all Assessor's Parcels of Provisional Undeveloped Property within CFD-08-I. "Provisional Undeveloped Property" means all Assessor's Parcels of Public Property, Property Owner Association Property, Community Purpose Facility Property, Open Space or other property that would otherwise be classified as Exempt Property pursuant to the provisions of Section E, but cannot be classified as Exempt Property because to do so would reduce the Acreage of all Taxable Property below the required minimum acreage as set forth in Section E.1 for Zone A or Zone B as applicable. "Public Property" means any property within the boundaries of CFD-08-1 that which (a) is owned by a public agency, (b) has been irrevocably offered for dedication, prior to June 1st of the preceding Fiscal Year, to a public agency or (c) is designated with specific boundaries and acreage on an 'A' Map or Final Subdivision Map as property which will be owned by a public agency. For purposes of this definition, a public agency includes the federal government, the State of California, the County, the City or any other public agency. "Residential Property" means all Assessor's Parcels of Developed Property for which a building permit has been issued for purposes of constructing one or more residential dwelling units. "Residential Floor Area" means all of the square footage of living area within the perimeter of a residential structure, not including any carport, walkway, garage, overhang, patio, enclosed patio, or similar area. The determination of Residential Floor Area shall be made by the CFD Administrator by reference to appropriate records kept by the City's Building Department. Residential Floor Area for a residential structure will be based on the initial building permit(s) issued for such structure. "Special Tax" means the annual special tax to be levied in each Fiscal Year on each Assessor's Parcel of Taxable Property to fund the Special Tax Requirement. City of Chula l/ista 11-25-02 ,Revised April 18, 2003 Community Facilities Dixtrict No. 08-1 Otay Ranch Village Six Page 4 "Special Tax Requirement" means that amount of Special Tax revenue required in any Fiscal Year for CFD-08-I to: (i) pay annual debt service on all Outstanding Bonds due in the Bond Year beginning in such Fiscal Year; (ii) pay other periodic costs on Outstanding Bonds, including but not limited to, credit enhancement and rebate payments; (iii) pay Administrative Fees and Expenses; (iv) pay any amounts required to establish or replenish any reserve funds for all Outstanding Bonds in accordance with the Indenture; and (v) pay directly for acquisition and/or construction of public improvements which are authorized to be financed by CFD-08-I provided that the inclusion of such amount does not cause an increase in the levy of Special Tax on the Undeveloped Property; (vi) less a credit for Available Funds. "State" means the State of California. "Taxable Property" means all of the Assessor's Parcels within the boundaries of CFD-08-I that are not exempt from the Special Tax pursuant to law or Section E below. "Trustee" means the trustee, fiscal agent, or paying agent under the Indenture. "Undeveloped Property" means, for each Fiscal year, all Taxable Property not classified as Developed Property. "Zone A" means a specific geographic area as depicted in Exhibits A and B attached hereto. "Zone B" means a specific geographic area as depicted in Exhibits A and B attached hereto. B. ASSIGNMENT TO LAND USE CATEGORIES Each Fiscal Year, all Assessor's Parcels of Taxable Property within CFD-08-I shall be (a) categorized as being located in either Zone A or Zone B, (b) classified as Developed Property, Undeveloped Property or Provisional Undeveloped Property and (c) subject to the levy of annual Special Taxes determined pursuant to Sections C and D. Furthermore, all Developed Property shall then be classified as Residential Property or Non-Residential Property. C. MAXIMUM ANNUAL SPECIAL TAX RATE 1. Developed Property The Maximum Annual Special Tax for each Assessor's Parcel of Residential Property or Non-Residential Property shall be the greater of (1) the Assigned Special Tax described in Table 1 which follows or (2) the Backup Special Tax computed pursuant to lb. which follows. City of Chula gista 11-25-02 ,Revised Apri118, 2003 Community Facilities District No. 08-1 Otay Ranch I/illage Si,: Page 5 a. Assigned SpecialTax The Assigned Special Tax for each Assessor's Parcel of Developed Property is shown in Table 1. TABLE 1 Assigned Special Tax for Developed Property within Zone A and Zone B: Land Use Class Description Assigned Special Tax 1 $800 per unit plus $.35 per square foot of Residential Property Residential Floor Area 2 Non-Residential $6,000 per Acre Property b. Backup Special Tax When a Final Subdivision Map is recorded within Zone A or Zone B the Backup Special Tax for Residential Property, Non-Residential Property and Undeveloped Property shall be determined as follows: For each Assessor's Parcel of Residential Property or Undeveloped Property to be classified as Residential Property upon its development within the Final Subdivision Map area, the Backup Special Tax shall be the rate per Lot calculated according to the following formula: Zone A $ 16,858x A L Zone B $ 26,445 x A L The terms above have the following meanings: B - Backup Special Tax per Lot in each Fiscal Year. A- Acreage classified or to be classified as Residential Property in such Final Subdivision Map. L - Lots in the Final Subdivision Map which are classified or to be classified as Residential Property. Ci0, of Chula Vista 11-25-02 ,Revised April 18, 2003 Community Facilities District No. 08-1 Otay Ranch Village Six Page 6 For each Assessor's Parcel of Non-Residential Property or Undeveloped Property to be classified as Non-Residential Property upon the development thereof within the Final Subdivision Map area, the Backup Special Tax shall be determined by multiplying $ l 6,858 for Zone A and $26,445 for Zone B by the total Acreage of all Non-Residential Property and Undeveloped Property to be classified as Non- Residential Property upon the development thereof within the Final Subdivision Map area. Notwithstanding the foregoing if an Assessor's Parcel of Residential Property, Non- Residential Property or Undeveloped Property for which the Backup Special Tax has been determined are subsequently changed or modified by recordation of a new or amended Final Subdivision Map, then the Backup Special Tax applicable to such Assessor's Parcel shall be recalculated to equal the amount of Backup Special Tax that would have been generated if such change did not take place. 2. Undeveloped Property and Provisional Undeveloped Property The Maximum Annual Special Tax for each Assessor's Parcel of Undeveloped Property or Provisional Undeveloped Property shall be $16,858 per Acre for Zone A and $26,445 per Acre for Zone B. D. METHOD OF APPORTIONMENT OF THE SPECIAL TAX Commencing with Fiscal Year 2003-04 and for each following Fiscal Year, the Council shall determine the Special Tax Requirement and shall levy the Special Tax until the amount of Special Taxes equals the Special Tax Requirement. The Special Tax shall be levied each Fiscal Year as follows: First: The Special Tax shall be levied Proportionately on all Developed Property within Zone A and Zone B at a rate up to 100% of the applicable Assigned Special Tax to satisfy the Special Tax Requirement. Second: If additional monies are needed to satisfy the Special Tax Requirement after the first step has been completed, the Special Tax shall be levied Proportionately on all Undeveloped Property within Zone A and Zone B, at a rate up to 100% of the Maximum Annual Special Tax for Undeveloped Property. In determining the Acreage of an Assessor's Parcel of Undeveloped Property for purposes of determining the annual Special Tax to be levied on such Assessor's Parcel, the CFD Administrator shall not include any Acreage shown on any applicable tentative subdivision map or other land use entitlement approved by the City that designates such Acreage for a use that would be classified as Open Space, Property Owner Association Property, Community Purpose Facility or Public Property. City of Chula Vista l 1-25-02 ,Revised April 18, 2003 Community Facilities District No. 08-1 Otay Ranch Pillage Six Page 7 Third: If additional monies are needed to satisfy the Special Tax Requirement after the first two steps have been completed, the Special Tax to be levied on each Assessor's Parcel of Developed Property whose Maximum Annual Special Tax is derived by the application of the Backup Special Tax shall be increased Proportionately from the Assigned Special Tax up to the Maximum Annual Special Tax for each such Developed Property.. Fourth: If additional monies are needed to satisfy the Special Tax Requirement after the first three steps have been completed, then the Special Tax shall be levied Proportionately on all Provisional Undeveloped Property at a rate up to 100% of the Maximum Annual Special Tax for Undeveloped Property. Notwithstanding the above, under no circumstances will the Special Tax levied against any Assessor's Parcel of Residential Property be increased by more than ten percent per year as a consequence of delinquency or default in the payment of Special Taxes by the owner of any other Taxable Property. E. EXEMPTIONS 1. The CFD Administrator shall classify the following as Exempt Property: (i) Public Property, (ii) Property Owner Association Property, (iii) Community Purpose Facility Property, (iv) Open Space and (v) Assessor's Parcels with public or utility easements making impractical their utilization for other than the purposes set forth in the easement; provided, however, that no such classification shall reduce the sum of all Taxable Property to less than 40.98 Acres in Zone A and 42.43 Acres in Zone B. Property which cannot be classified as Exempt Property because such classification would reduce the Acreage of all Taxable Property to less than 40.98 Acres in Zone A and 42.43 Acres in Zone B will be classified as Provisional Undeveloped Property and shall be taxed pursuant to the fourth step of Section D. Tax exempt status for purposes of this paragraph will be assigned by the CFD Administrator in the chronological order in which property becomes Exempt Property. 2. The Maximum Annual Special Tax obligation for any property which would be classified as Public Property upon its transfer or dedication to a public agency but which is classified as Provisional Undeveloped Property pursuant to paragraph 1 of Section E shall be prepaid in full by the seller pursuant to Section H. 1, prior to the transfer/dedication of such property to such public agency. Until the Maximum Annual Special Tax obligation for any such Public Property is prepaid, the property shall continue to be subject to the levy of the Special Tax as Provisional Undeveloped Property. 3. If the use of an Assessor's Parcel of Exempt Property changes so that such Assessor's Parcel is no longer classified as one of the uses set forth in paragraph 1 that would make such Assessor's Parcel eligible to be classified as Exempt Property, such Assessor's Parcel shall cease to be classified as Exempt Property and shall be deemed to be Taxable Property. City of Chula Vista 11-25-02, Revised April 18, 2003 Community Facilities District No. 08-1 Otay Ranch Village Six Page 8 F. REVIEW/APPEAL COMMITTEE Any landowner or resident who feels that the amount of' the Special Tax levied on their Assessor's Parcel is in error shall first consult with the CFD Administrator regarding such error. If' following such consultation, the CFD Administrator determines that an error has occurred the CFD Administrator may amend the amount of the Special Tax levied on such Assessor's Parcel. If following such consultation and action (if` any by the CFD Administrator), the landowner or resident believes such error still exists, such person may file a written notice with the City Clerk of` the City appealing the amount of` the Special Tax levied on such Assessor's Parcel. Upon the receipt of' any such notice, the City Clerk shall f'orward a copy of' such notice to the City Manager who shall establish as part of` the proceedings and administration of` CFD-0$-I a special three-member Review/Appeal Committee. The Review/Appeal Committee may establish such procedures, as it deems necessary to undertake the review of any such appeal. The Review/Appeal Committee shall interpret this Rate and Method of' Apportionment and make determinations relative to the annual administration of' the Special Tax and any landowner or resident appeals, as herein specified. The decision of` the Review/Appeal Committee shall be final and binding as to all persons. G. MANNEROF COLLECTION The annual Special Tax shall be collected in the same manner and at the same time as ordinary ad valorem property taxes; provided, however, that CFD-08-I, may directly bill the Special Tax, may collect Special Taxes at a different time or in a dif'f`erent manner if' necessary to meet its financial obligations, and may covenant to foreclose and may actually foreclose on Assessor's Parcels of` Taxable Property that are delinquent in the payment of' Special Taxes. Tenders of Bonds may be accepted for payment of Special Taxes upon the terms and conditions established by the Council pursuant to the Act. However, the use o£ Bond tenders shall only be allowed on a case-by-case basis as specifically approved by the Council. H. PREPAYMENT OF SPECIAL TAX The following definition applies to this Section H: "CFD Public Facilities" means those public facilities authorized to be financed by CFD-08-I. "CFD Public Facilities Costs" means either $20 million, or such lower number as shall be determined either by (a) the CFD Administrator as sufficient to finance the CFD Public Facilities, or (b) the Council concurrently with a covenant that it will not issue any more Bonds to be secured by Special Taxes levied under this Amended Rate and Method of Apportionment. City of Chula Vista 11-25-02,Revised April 18, 2003 Community Facilities District No. 08-1 Otay Ranch Villa,~e Six Page 9 "Construction Fund" means an account specifically identified in the Indenture to hold funds which are currently available for expenditure to acquire or construct the CFD Public Facilities. "Future Facilities Costs" means the CFD Public Facilities Costs minus that (a) portion of the CFD Public Facilities Costs previously funded (i) from the proceeds of all previously issued Bonds, (ii) from interest earnings on the Construction Fund actually earned prior to the date of prepayment and (iii) directly from Special Tax revenues and (b) the amount of the proceeds of all previously issued Bonds then on deposit in the Construction Fund. "Outstanding Bonds" means all previously issued Bonds which will remain outstanding after the first interest and/or principal payment date following the current Fiscal Year, excluding Bonds to be redeemed at a later date with the proceeds of prior prepayments of Maximum Annual Special Taxes. 1. Prepayment in Full The Maximum Annual Special Tax obligation may only be prepaid and permanently satisfied for an Assessor's Parcel of Developed Property, Undeveloped Property for which a building permit has been issued, or Provisional Undeveloped Property. The Maximum Annual Special Tax obligation applicable to such Assessor's Parcel may be fully prepaid and the obligation of such Assessor's Parcel to pay the Special Tax permanently satisfied as described herein; provided, however that a prepayment may be made only if there are no delinquent Special Taxes with respect to such Assessor's Parcel at the time of prepayment. An owner of an Assessor's Parcel intending to prepay the Maximum Annual Special Tax obligation shall provide the CFD Administrator with written notice of intent to prepay. Within 30 days of receipt of such written notice, the CFD Administrator shall notify such owner of the prepayment amount of such Assessor's Parcel. The CFD Administrator may charge a reasonable fee for providing this figure, which can be collected prior to preparing such calculation. The prepayment amount shall be calculated as summarized below (capitalized terms as defined below): Bond Redemption Amount plus Redemption Premium plus Future Facilities Amount plus Defeasance Amount plus Prepayment Fees and Expenses less Reserve Fund Credit less Capitalized Interest Credit Total: equals Prepayment Amount City of Chu[a Vista 11-25-02 ,Revised April l& 2003 Community Facilities' District No. 08-I Ora), Ranch Village Six Page 10 As of the proposed date of prepayment, the Prepayment Amount (defined below) shall be calculated as follows: Step No.: 1. For Developed Property, compute the Maximum Annual Special Tax for the Assessor's Parcel to be prepaid. For Undeveloped Property for which a building permit has been issued to be prepaid, compute the Maximum Annual Special Tax for that Assessor's Parcel as though it was already designated as Developed Property, based upon the building permit, issued for that Assessor's Parcel. For Provisional Undeveloped Property to be prepaid, compute the Maximum Annual Special Tax for such Assessor's Parcel using the Maximum Annual Special Tax for Undeveloped Property. 2. Divide the Maximum Annual Special Tax computed pursuant to step 1 by the sum of the total expected Maximum Annual Special Tax revenues which may be levied within CFD-08-I excluding any Assessor's Parcels for which the Maximum Annual Special Tax obligation has been previously prepaid. 3. Multiply the quotient computed pursuant to step 2 by the principal amount of the Outstanding Bonds to compute the amount of Outstanding Bonds to be retired and prepaid (the "Bond Redemption Amount"). 4. Multiply the Bond Redemption Amount computed pursuant to step 3 by the applicable redemption premium on the next possible Bond call date, if any, on the Outstanding Bonds to be redeemed (the "Redemption Premium"). 5. If all the Bonds authorized to be issued for CFD-08-I have not been issued, compute the Future Facilities Costs. 6. Multiply the quotient computed pursuant to step 2 by the amount if any, determined pursuant to step 5 to compute the amount of Future Facilities Costs to be allocated to such Assessor's Parcel (the "Future Facilities Amount"). 7. Compute the amount needed to pay interest on the Bond Redemption Amount from the first bond interest and/or principal payment date following the current Fiscal Year until the earliest redemption date for the Outstanding Bonds. 8. Confirm that no Special Tax delinquencies apply to such Assessor's Parcel. 9. Determine the Special Taxes levied on the Assessor's Parcel in the current Fiscal Year, which have not yet been paid. 10. Determine the fees and expenses of CFD-08-I, including but not limited to, the costs of computation of the prepayment, the costs to invest the prepayment proceeds, the costs of redeeming Bonds from the proceeds of such prepayment, and the cost of City of Chula Vista 11-25-02 ,Revised April 18, 2003 Cotnmunity Facilities Dixtric! No. 08-1 Ora), Ranch Village Six Page 1 l recording any notices to evidence the prepayment and the redemption (the "Prepayment Fees and Expenses") 11. Compute the amount the CFD Administrator reasonably expects to derive from the reinvestment of the prepayment amount less the Prepayment Fees and Expenses, as determined pursuant to step 10, from the date of prepayment until the redemption date for the Outstanding Bonds to be redeemed with the prepayment. 12. Add the amounts computed pursuant to steps 7 and 9 and subtract the amount computed pursuant to step 11 (the "Defeasance Amount"). 13. The reserve fund credit (the "Reserve Fund Credit") shall equal the lesser of: (a) the expected reduction in the reserve requirement (as defined in the Indenture), if any, associated with the redemption of Outstanding Bonds as a result of the prepayment, or (b) the amount derived by subtracting the new reserve requirement (as defined in the Indenture) in effect after the redemption of Outstanding Bonds as a result of the prepayment from the balance in the reserve fund on the prepayment date, but in no event shall such amount be less than zero. 14. If any capitalized interest for the Outstanding Bonds will not have been expended at the time of the first interest payment following the current Fiscal Year, a capitalized interest credit shall be calculated by multiplying the quotient computed pursuant to step 2 by the expected balance in the capitalized interest fund after such first interest payment (the "Capitalized Interest Credit"). 15. The Maximum Annual Special Tax prepayment is equal to the sum of the amounts computed pursuant to steps 3, 4, 6, 10, and 12, less the amounts computed pursuant to steps 13 and 14 (the "Prepayment Amount"). 16. From the Prepayment Amount, the amounts computed pursuant to steps 3, 4, 12, 13, and 14 shall be deposited into the appropriate fund as established under the Indenture and be used to retire Outstanding Bonds or make debt service payments. The amount computed pursuant to step 10 shall be retained by CFD-08-I. The amount computed pursuant to step 6 shall be deposited in the Construction Fund. The Prepayment Amount may be sufficient to redeem other than a $5,000 increment of Bonds. In such cases, the increment above $5,000 or integral multiple thereof will be retained in the appropriate fund established under the Indenture to be used with the next prepayment of Bonds or to make debt service payments. As a result of the payment of the current Fiscal Year's Special Tax levy as determined under step 9 above, the CFD Administrator shall remove the current Fiscal Year's Special Tax levy for such Assessor's Parcel from the County tax rolls. With respect to any Assessor's Parcel that is prepaid, the Council shall cause a suitable notice to be recorded in compliance with the Act, to indicate the prepayment of Special Taxes and the release of the Special Tax lien on such Assessor's Parcel, and the obligation of such Assessor's Parcel to pay the Special Tax shall cease. City of Chula Vista 11-25-02 ,Revised Apri118, 2003 Community Facilities District No. 08-1 Ora), Ranch Village Six Page 12 Notwithstanding the foregoing, no Special Tax prepayment shall be allowed unless the amount of Maximum Annual Special Taxes that may be levied on Taxable Property within CFD-08-I, both prior to and after the proposed prepayment is at least 1.1 times the maximum annual debt service on all Outstanding Bonds. 2. Prepayment in Part The Maximum Annual Special Tax on an Assessor's Parcel of Developed Property or an Assessor's Parcel of Undeveloped Property for which a building permit has been issued may be partially prepaid. The amount of the prepayment shall be calculated as in Section H.1, except that a partial prepayment shall be calculated according to the following formula: PP - (PE X F) + A These terms have the following meaning: PP - the partial prepayment PE = the Prepayment Amount calculated according to Section H. 1, minus Prepayment Fees and Expenses determined pursuant to step 10. F = the percent by which the owner of the Assessor's Parcel(s) is partially prepaying the Maximum Annual Special Tax. A- the Prepayment Fees and Expenses determined pursuant to step 10. The owner of an Assessor's Parcel who desires to partially prepay the Maximum Annual Special Tax shall notify the CFD Administrator of (i) such owner's intent to partially prepay the Maximum Annual Special Tax, (ii) the percentage by which the Maximum Annual Special Tax shall be prepaid, and (iii) the company or agency that will be acting as the escrow agent, if applicable. The CFD Administrator shall provide the owner with a statement of the amount required for the partial prepayment of the Maximum Annual Special Tax for an Assessor's Parcel within 30 days of the request and may charge a reasonable fee for providing this service. With respect to any Assessor's Parcel that is partially prepaid, the City shall (i) distribute the funds remitted to it according to step 16 of Section H. 1, and (ii) indicate in the records of CFD-08-1 that there has been a partial prepayment of the Maximum Annual Special Tax and that a portion of the Maximum Annual Special Tax equal to the outstanding percentage (1.00 - F) of the remaining Maximum Annual Special Tax shall continue to be authorized to be levied on such Assessor's Parcel pursuant to Section D. I. TERM OF MAXIMUM ANNUAL SPECIAL TAX The Maximum Annual Special Tax shall be levied commencing in Fiscal Year 2003-2004 to the extent necessary to fully satisfy the Special Tax Requirement and shall be levied for a period no longer than the 2039-2040 Fiscal Year. CiO, of Chula l/ista 11-25-02 ,Revised April 18, 2003 Community Facilities District No. 08-1 Ora); Ranch Village Six Page 13 COUNCIL AGENDA STATEMENT Item ~ Meeting Date 5/13/03 ITEM TITLE: Resolution Approving the Final "B" Maps of Chula Vista Tract No. 96-04B, Otay Ranch, Village Five, Neighborhoods R-30A and R-30B. Accepting on behalf of the City of Chula Vista, the easements granted on said Maps within said Subdivision, approving the Subdivision Improvement Agreement for the completion of improvements required by said subdivision, and authorizing the Mayor to execute said agreement. Resolution Approving the "B" Map Supplemental Subdivision Improvement Agreement for Otay Ranch Village Five, Neighborhood R-30A and R-30B, portion of Village Five, Otay Ranch SPA One, requiring Developer to comply with certain unfulfilled conditions of Resolution No. 2001-291 and authorizing the Mayor to execute Said Agreement SUBMITTED BY: Director of Engineering~ REVIEWED BY: City On August 28, 2001, by Resolution 2001-291, the City Council approved a Revised Tentative Map for Village 5, Neighborhoods R-30 and R-39 of Otay Ranch, SPA One. The Council will consider the approval of the Final "B" Map for R-30A and R-30B and associated agreements. RECOMMENDATION: That Council adopt the following: 1. Resolution approving the Final "B" Maps for Village 5, Neighborhood R-30A and R-30B of Otay Ranch Project and associated Subdivision Improvement Agreement, and 2. Resolution approving the "B" Maps Supplemental Subdivision Improvement Agreement for Village 5, Neighborhood R-30A and R-30B of Otay Ranch Project. BOARDS/COMMISSIONS RECOMMENDATION: Not applicable DISCUSSION: The project is located east of the intersection of East Palomar Street and north of Olympic Parkway and within the area of Otay Ranch Village Five. The "B" map for R-30A consists of 141 condominium units, including one numbered lot and two lettered lots with a total area of 7.734 acres (see Exhibit 1). The "B" map for R-30B consists of 241 condominium units, including three numbered lots and three lettered lots with a total area of 18.219 acres (see Exhibit 2) The final maps have been reviewed by the Engineering and the Planning Departments and found to be in substantial conformance with the approved Tentative Map. Approval of the maps constitute acceptance by the City of all easements within the Subdivisions as shown on the maps. Page 2, Item ~ Meeting Date 5/13/03 The Developer has executed Subdivision Improvement Agreement, which addresses the improvements related to these Maps. The Developer has also executed Supplemental Subdivision Improvement Agreement (SSIA) addressing on-going conditions of approval that will remain in effect and run with the land for the maps. Staff has reviewed said Agreement and determined that it satisfies all the applicable tentative map conditions for final maps approval and recommends Council approval. The Developer has bonded for and agrees to complete all on and off-site street improvements required for the approval of this 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 that is met by the conveyance of open space land. 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 96-04, Otay Ranch, Village Five, Neighborhood R-30A Exhibit 2: Plat - Chula Vista Tract 96-04, Otay Ranch, Village Five, Neighborhood R-30B Exhibit 3: Developer's Disclosure Statement Attachment A: Supplemental Subdivision Improvement Agreement (SSIA) Attachment B: Subdivision Improvement Agreement (SIA) J:\Eng~neer\LANDDEV~Projects\Otay Ranch Village 5\SSIA R-30A and R-30B\Agenda R30A and R30B Al 13-in. DOC 04/24/03 THU 14:42 FAX 619 691 5171 CHULA VISTA ENGINEERING ~002 City of Chula Vista Disclosure Statement Pursuant to Council Policy 101-01, prior to any action upon matters that will require discretionary action by thc Council, Planning Commission and all other official bodies of the City, a statement of disclosure of certain ownership or financial interests, payments or campaign contributions for a City of Chula Vista election must be filed. The following information must be disclosed: 1. List the names of all persons having a financial interest in the property that is the subject of the application or the contract, e.g., owner, applicant, contractor, subcontractor, material supplier. 2. If any person* identified pursuant to (1) above is a corporation or partnership, list the names of all individuals with a $2000 investment in the business (corporation / partnership) entity. 3. If any person* identified pursuant to (1) above is a non-profit organization or trust, list the names of any person serving as director of the non-profit organization or as trustee or beneficiary or trustor of the trust. 4. Please identify every person, including any agents, employees, consultants, or independent contractors you have assigned to represent you before the City in this matter. - , 5. Has ~y person* associated wi~ t~s contra~t had any fin~cial dealings wi~ ~ official** of~e City of ~hula Vista as it relates to t~is contract wi~ the past 12 months? Yes ~ No ~ 04/24/03 THU 14:42 FAX 619 691 5171 CHULA VISTA ENGINEERING ~003 City of Chula Vista Disclosure Statement If yes, briefly describe the nature of the financial interest the official** may have in this contract. 6. Have you made a contribution of more than $250 within the past twelve (12) months to a current member of the Chula Vista City Council? No ,~ Yes __ If yes, which Council member? 7. Have you provided more than $340 (or an item of equivalent value) to an official** of the City of Chula Vista in the past twelve (12) months? (This includes being a source of income, money to retire a legal debt, gift, loan, etc.) Yes __ No ,~ If Yes, which official** and what was the nature of item provided? Signatur~f Contractor/Applicant Print or type name of Contractor/Applicant * Person is defined as: any individual, firm, co-partnership, joint venture, association, social club, fraternal organization, corporation, estate, trust, receiver syndicate, any other county, city municipality, district, or other political subdivision, - or any other group of combination acting as a unit. * Official includes, but is not limited to: Mayor, Council member, Planning Commissioner, Member of a board, commission, or committee of the City, employee, or staff members. RESOLUTION NO. 2003- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE FINAL "B" MAPS OF CHULA VISTA TRACT NO. 96- 04B, OTAY RANCH, VILLAGE FIVE, NEIGHBORHOODS R-30A AND R- 30B. ACCEPTING ON BEHALF OF THE CITY OF CHULA VISTA THE EASEMENTS GRANTED ON SAID MAPS WITHIN SAiD SUBDIVISION, APPROVING THE SUBDIVISION IMPROVEMENT AGREEMENT FOR THE COMPLETION OF IMPROVEMENTS REQUIRED BY SAID SUBDIVISION, AND AUTHORIZING THE MAYOR TO EXECUTE SAiD AGREEMENT. WHEREAS, on August 28, 2001, by Resolution 2001-291, the City Council approved a Revised Tentative Map for Village 5, Neighborhoods R-30A and R-30B of Otay Ranch, SPA One; and WHEREAS, the Council will consider the approval of the Final "B" Map for R-30A and R-30B and associated agreements; and WHEREAS, the Developer has also executed a Supplemental Subdivision Improvement Agreement addressing on-going conditions of approval that will remain in effect and run with the land for the maps; and NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista hereby finds that certain maps survey entitled Chula Vista Tract 96-04B OTAY RANCH, VILLAGE FIVE, NEIGHBORHOODS R-30A and R-30B and more particularly described as folloxvs: R-30A Parcel 1 o1' Parcel Map No. 18828 in the City of Chula Vista, County of San Diego, State of California, according to map filed in the Office of the County Recorder of San Diego County on October 29, 2001, Area: 7.734Acres No. of Lots: 3 Numbered Lots: 1 Lettered Lots: 2 Open Space Lots: 0 Acrcs R-30B Parcel 2, '~A". '~B", and "E" of` Parcel Map No. 18828 in the City of Chula Vista, County of San Diego, State o£California, according to map filed in the Office of the County Recorder of San Diego County on October 29, 2001, Area: 18.219Acres No. of' Lots: 6 Numbered Lots: 3 Lettered Lots: 3 Public Open Space Lots: 5.059 Acres Private Open Space Lots: 0.249 Acres is made in the manner and form prescribed by law and confom~s to the surrounding surveys; and that said map and subdivision of land shown thereon is hereby approved and accepted. is made in the manner and form prescribed by law and conforms to the surrounding surveys; and that said map and subdivision of land shown thereon is hereby approved and accepted. BE IT FURTHER RESOLVED, said Council hereby accepts on behalf of the City of Chula general utility and access easemcnts for installation of public utilities, noting that use of said general utility and general access easements by others is subject to xvritten permission and issuance of an Encroachment Pernfit from the City of Chula Vista, all as shown ou this map within this subdivision, subject to the conditions set forth thereon. BE iT FURTHER RESOLVED, said Council has acknowledged on behalf of the City of Chula Vista the Irrevocable Offer of Dedication of Fee Interest in lot "A" for Public Open Space Purposes, all as shown on this map within this subdivision noting that Section 7050 of the Government Code of the State of California provides that an offer of dedication shall remain open and subject to fi~ture acceptance by the City. BE IT FURTHER RESOLVED, that the City Clerk of the City of Chula Vista be and she is hereby authorized and directed to endorse upon said map the action of said Council; that said Council has approved said subdivision map, and that those certain easements with the right of ingress and egress for general utility, and general access, as granted thereon and shown on said map within said subdivision, are acccpted on behalf of the City o f Chula Vista as hereto above stated. BE IT FURTH ER RESOLVED, that City Clerk be and she is hereby directed to transmit said map to the Clerk of thc Board of Supervisors of the County of San Diego. BE IT FURTHER RESOLVED, that that certain Subdivision Improvement Agreement dated the for the completion of improvements in said subdivision, R 30A which is on file in the office of thc City Clerk as Document No. , is hereby approved. BE IT FURTHER RESOLVED that that certain Subdivision Improvement Agreement dated the for thc completion of improvements in said subdivision, R 30B which is on file in the office of the City Clerk as Document No. , is hereby approved. BE IT FURTHER RESOLVED, that thc Mayor of the City of Chula Visa is hereby authorized to execute thc contract on behalf of the City of Chula Vista. Presented by: Approved as to form by: Cliff Swanson ~r~n N~{/c~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 ~5 !' 0~'nn Moore City Attorney Dated: Subdivision Improvement Agreement for the completion of improvements required by said §ubdivisi~n, Final "B" maps of Chul. V_sta Tract N.. 96-04B, Otay Ranch, Village Five, Neighborhoods R-30A and R-30B Approving Supplemantal Subdivision Impr_vement Agr=_ment for Otay Ranch Village Five, Nei~hbo.hood R-30A and R-30B portion of Village Five, Otay Ranch SPA One ~equiring Developer to oomply with certain unfulfilled conditions of ResoLution 2001-291 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 D.R. HORTON SAN DIEGO HOLDING COMPANY, INC., 5927 Priestly Drive, Suite 200, Carlsbad, CA 92008, hereinafter called "Subdivider" with reference to the facts set forth below, which Recitals constitute a part of this Agreement; RECITALS: WHEREAS, Subdivider is about to present to the City Council of the City of Chula Vista for approval and recordation, a final subdivision map of a proposed subdivision, to be known as OTAY RANCH VILLAGE 5, NEIGHBORHOOD R-30A, GOLDRUSH (CVT 96-04) 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 oxvn expense, all the public improvement work required by City in connection wi"th 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. 2001-291, approved on the 28th day of August, 2001 ("Tentative Map Resolution"); and WHEREAS, complete plans and specifications for the construction, installation and completion of said public improvement work have been prepared and submitted to the City Engineer, as shown on Drawings Nos. 03008-01 through 03008-08 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 THREE HUNDRED SEVENTY-SEVEN THOUSAND ONE HUNDRED NINETY-FOUR DOLLARS AND NO CENTS ($377,194.00). NOW, THEREFORE, 1T 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 oxvn 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 donformity 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 witlrin 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 ~vill perform said Improvement Work as set forth hereinabove, or that portion of said Improvement Work serving any buildings or structures ready lbr occupancy in said subdivision, prior to the issuance of any certificate of -2- clearance for utility connections for said buildings or structures in said subdivision, and such certificate shall not be issued until the City Engineer has certified in writing the completion of said public improvements or the portion thereof serving said building or structures approved by the City; provided, however, that the improvement security shall not be required to cover the provisions of this paragraph. 5. It is expressly understood and agreed to by Subdivider that, in the performance of said Improvement Work, Subdivider will conform to and abide by all of the provisions of the ordinances of the City of Chula Vista, and the laws of the State of California applicable to said work. 6. Subdivider further agrees to furnish and deliver to the City of Chula Vista, simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of ONE HUNDRED EIGHTY-EIGHT THOUSAND FIVE HUNDRED NINETY-SEVEN DOLLARS AND NO CENTS ($188,597.00) 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 surety, whose sufficiency has been approved by the City in the sum of ONE HUNDRED EIGHTY-EIGHT THOUSAND FIVE HUNDRED NINETY-SEVEN DOLLARS AND NO CENTS ($188,597.00) 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 FIVE THOUSAND FIVE HUNDRED DOLLARS AND NO CENTS ($5,500.00) 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 ~s not completed within the time agreed herein, the sums provided by said improvemefit securities may be used by City for the completion of the Improvement Work within said subdivision in accordance with such specifications herein contained or referred, or at the option of the City, as are approved by the City Council at the time of engaging the work to be performed. Upon certification of completion by the City Engineer and acceptance of said work by City, and after certification by the Director of Finance that all costs hereof are fully paid, the whole amount, or any part thereof not required for payment thereof, may be released to Subdivider or its successors in interest, pursuant to the terms of the improvement security. Subdivider agrees to pay to the City any difference between the total costs incurred to perform the work, including design and administration of construction (including a reasonable allocation of overhead), and any proceeds from the improvement security. -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 ~vith the approval of the Improvement Work plans and installation of Improvement Work hereinabove provided for, and the cost of street signs and street trees as required by City and approved by the City Engineer shall be paid by Subdivider, and that Subdivider shall deposit, prior to recordation of the Final Map, with City a sum of money sufficient to cover said cost. 12. It is understood and agreed that until such time as all Improvement Work is fully completed and accepted by City, Subdivider will be responsible for the care, maintenance of, and any damage to, the streets, alleys, easements, water and sewer lines within the proposed subdivision. It is further understood and agreed that Subdivider shall guarantee all public improvements for a period of one year from date of final acceptance and correct any and all defects or deficiencies arising during said period as a result of the acts or omission of Subdivider, its agents or employees in the performance of this agreement, and that upon acceptance of the work by City, Subdivider shall grant to City, by appropriate conveyance, the public improvements constructed pursuant to this agreement; provided, however, that said acceptance shall not constitute a waiver of defects by City as set forth hereinabove. 13. it is understood and agreed that City, as indemnitee, or any officer or employee thereof, shall not be liable for any injury to person or property occasioned by reason of the acts or omissions of Subdivider, its agents or employees, or indemnitee, related to this agreement. Subdivider further agrees to protect and hold the City, its officers and employees, harmless from any and all claims, demands, causes of action, liability or loss of any sort, because of or arising out of acts or omissions of Subdivider, its agents .or ~employees, or indemnitee, related to this agreement; provided, however, that the approved improvement security shall not be required to cover the provisions of this paragraph. Such indemnification and agreement to hold harmless shall extend to damages to adjacent or downstream properties or the taking of property from owners of such adjacent or downstream properties as a result of the construction of said subdivision and the public improvements as provided herein. It shall also extend to damages resulting from diversion of waters, change in the volume of flow, modification of the velocity of the water, erosion or siltation, or the modification of the point of discharge as the result of the construction and maintenance of drainage systems. The approval of plans providing for any or all of these conditions shall not constitute the assumption by City of any responsibility for such damage or taking, nor shall City, by said approval, be an insurer or surety for the construction of the subdivision pursuant to said approved improvement plans. The provisions of this paragraph shall become effective upon the execution of this agreement and shall remain in full force and effect for ten (10) years following the acceptance by the City of the improvements. 14. Subdivider agrees to defend, indemnify, and hold harmless the City or its agents, officers, and employees from any claim, action, or proceeding against the City or its agents, officers, or employees to attack, set aside, void, or annul, an approval of the City, advisory agency, appeal board, or legislative body concerning a subdivision, which action is brought within the time period provided for in Section 66499.37 of the Government Code of the State of California. 15. Assignability. Upon request of the Subdivider, any or all on-site duties and obligations set forth herein may be assigned to Subdivider's successor in interest if the City Manager in his/her sole discretion determines that such an assignment will not adversely affect the City's interest. The City Manager in his/her sole discretion may, if such assignment is requested, permit a substitution of securities by the successor in interest in place and stead of the original securities described herein so long as such substituted securities meet the criteria for security as set forth elsewhere in this Agreement. Such assignment will be in a form approved by the City Attorney. -5- SIGNATURE PAGE SUBDIVISION IMPROVEMENT AGREEMENT OTAY RANCH VILLAGE 5, NEIGHBORHOOD R-30A, GOLDRUSH (CVT 96-04) 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 D.R. HORTON SAN DIEGO HOLDING COMPANY, 1NC. Mayor of the City of Chula ~_o,'a c, y, } C~o~¢t~t 11.~, Vista ATTEST City Clerk Approved as to fom~ by City Attorney (Attach Notary Acknowledgment) -6- LIST OF EXHIBITS Exhibit "A" Improvement Security - Faithful Performance Form: Bond Amount: $188,597.00 Exhibit "B" Improvement Security - Material and Labor: Fon'n: Bond Ainount: $188,597.00 Exhibit "C" Improvement Security - Monuments: Form: Bond Amount: $5,500.00 Securities approved as to fom~ and amount by City Attorney Improvement Completion Date: Two (2) years from_ date of City Council approval of the Subdivision Improvement Agreement. J2Attomey\SIAXD.R. Horton San Diego Goldrush State of California ) ) SS. County of San Diego ) On April 30, 2003 before me, Judy C. Moore, Notary Public, personally appeared Gary Crouch, of DR Horton San Diego Holding Company, inc., personally known to me to be the person whose name is subscribed to the within instrument and acknowledged to me-that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. J,~(~re; Notary -P-~blic - 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 D.R. HORTON SAN DIEGO HOLDING COMPANY, INC., 5927 Priestly Drive, Suite 200, Carlsbad, CA 92008, hereinafter called "Subdivider" with reference to the facts set forth below, which Recitals constitute a part of this Agreement; RECITALS: WHEREAS, Subdivider is about to present to the City Council of the City of Chula Vista for approval and recordation, a final subdivision map of a proposed subdivision, to be known as OTAY RANCH VILLAGE 5, NEIGHBORHOOD R-30B, STETSON (CVT 96-04) 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, ail 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 thal 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. 2001-291, approved on the 28th day of August, 2001 ("Tentative Map Resolution"); and WHEREAS, complete plans and specifications for the construction, installation and completion of said public improvement work have been prepared and submitted to the City Engineer, as shown on Drawings Nos. 03024-01 through 03024-16 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 NINETY-FIVE THOUSAND THREE HUNDRED SEVENTY-FIVE DOLLARS AND NO CENTS ($495,375.00). 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 ("hnprovement 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 thc 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 -2- 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 strnctures 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 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 TWO HUNDRED FORTY-SEVEN THOUSAND SIX HUNDRED EIGHTY-SEVEN DOLLARS AND FIFTY CENTS ($247,687.50) which security shall guarantee the faithful performance of this contract by Subdivider and is attached hereto, marked Exhibit "A" and made a part hereof. 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 TWO HUNDRED FORTY-SEVEN THOUSAND SIX HUNDRED EIGHTY-SEVEN DOLLARS AND F1FTY CENTS ($247,687.50) to secure the payment of material and labor in cmmection 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 EIGHT THOUSAND DOLLARS AND NO CENTS ($8,000.00) 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 hnprovement 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 ~vork 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 perfom~ the work, including design and administration of construction (including a reasonable allocation of overhead), and any proceeds from 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 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 xvork by City, .Subdivider shall grant to City, by appropriate conveyance, the public improvements constructed pursuant to this agreement; provided, however, that said acceptance shall not constitute a waiver of defects by City as set forth hereinabove. 13. it is understood and agreed that City, as indemnitee, or any officer or employee thereof, shall not be liable for any injury to person or property occasioned by reason of the acts or omissions of Subdivider, its agents or employees, or indemnitee, related to this agreement. Subdivider further agrees to protect and hold the City, its officers and employees, harmless from any and all claims, demands, causes of action, liability or loss of any sort, because of or arising out of acts or omissions of Subdivider, its agents or employees, or indemnitee, related to this agreement; provided, however, that the approved improvement security shall not be required to cover the provisions of this paragraph. Such indemnification and agreement to hold harmless shall extend to damages to adjacent or downstream properties or the taking of property from owners of such adjacent or downstream properties as a result of the construction of said subdivision and the public improvements as provided herein. It shall also extend to damages resulting from diversion of waters, change in the volume of flow, modification of the velocity of the water, erosion or siltation, or the modification of the point of discharge as the result of the construction and maintenance of drainage systems. The approval of plans providing for any or all of these conditions shall not constitute the assumption by City of any responsibility for such damage or taking, nor shall City, by said approval, be an insurer or surety for the construction of the subdivision pursuant to said approved improvement plans. The provisions of this paragraph shall become effective upon the execution of this agreement and shalI remain in full force and -4- effect for ten (10) years following the acceptance by the City of the improvements. 14. Subdivider agrees to defend, indemnify, and hold harmless the City or its agents, officers, and employees from any claim, action, or proceeding against the City or its agents, officers, or employees to attack, set aside, void, or annul, an approval of the City, advisory agency, appeal board, or legislative body concerning a subdivision, which action is brought within the time period provided for in Section 66499.37 of the Government Code of the State of California. 15. Assignability. Upon request of the Subdivider, any or all on-site duties and obligations set forth herein may be assigned to Subdivider's successor in interest if the City Manager in his/her sole discretion determines that such an assignment will not adversely affect the City's interest. The City Manager in his/her sole discretion may, if such assignment is requested, pernfit 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. -S- SIGNATURE PAGE SUBDIVISION IMPROVEMENT AGREEMENT OTAY RANCYH VILLAGE 5, NEIGHBORHOOD R-30B, STETSON (CVT 96-04) 1N 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 D.R. HORTON SAN DIEGO HOLD1NG COMPANY, INC. Mayor of the City of Chula ~ . o~o~1 ¢ Vista ~~d~'~- - ' ' ATTEST City Clerk Approved as to form by City Attorney 'Attach Notary Acknowledgment) -6- LIST OF EXHIBITS Exhibit "A" Improvement Security - Faithful Performance Form: Bond Amount: $247,687.50 Exhibit "B" Improvement Security - Material and Labor: Form: Bond Amount: $247,687.50 Exhibit "C" Improvement Security - Monuments: Form: Bond Amount: $8,000.00 Securities approved as to form and amount by City Attorney Improvement Completion Date: Two (2) years from date of City Council approval of the Subdivision Improvement Agreement. J:\Attorney\SIA\D.R. Horton San Diego Stetson -7- State of California ) ) SS. County of San Diego ) On April 30, 2003 before me, Judy C. Moore, Notary Public, personally appeared Gary Crouch, of DR Horton San Diego Holding Company. Inc._, personally known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. ]1 ~ son ~ county ~ ~ MyC~m. ~Mor 24, 2007 ]U~;I~E. ~/90~e, ~otary P~u-biic - RESOLUTION NO. 2003 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE ~'B" MAP SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR OTAY RANCH VILLAGE FIVE, NEIGHBORHOOD R-30A AND R-30B, PORTION OF VILLAGE FIVE, OTAY RANCH SPA ONE, REQUIRING DEVELOPER TO COMPLY WITH CERTAIN UNFULFILLED CONDITIONS OF RESOLUTION 2001-291 AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT WHEREAS, on August 28, 2001, by Resolution 2001-291, the City Council approved a Revised Tentative Map lbr Village 5, Neighborhoods R-30A and R-30B of Otay Ranch, SPA One; and WHEREAS, the Council will consider the approval of the Final "B" Map for R-30A and R-30B and associated agreements; and WHEREAS, the Developer has also executed a Supplemental Subdivision Improvement Agreement addressing on-going conditions of approval that will remain in effect and run with thc land for the maps; and WHEREAS, staff has reviewed said Agreement and determined that it satisfies all the applicable tentative map conditions for final maps approval and recommends Council approval. NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Chula Vista hereby approves the ~'B" Map Supplemental Subdivision hnprovement Agreement for Otay Ranch Village Fivc, Neighborhood R-30A and R-30B, portion of Village Five, Otay Ranch SPA One, requiring Developer to comply with certain unfulfilled conditions of Resolution No. 2001-291 and, a copy of which shall be kept on file in the office of thc City Clerk. BE IT FURTHER RESOLVED, that thc Mayor of the City of Chula Vista is hereby authorized and directed to exccute said agreement for and on behalf of the City of Chula Vista. Presented by: Approved as to form by: CliffSwanson A~'~n M~/o~/ec' c/ Director of Engineering City Attorney J a o cy,rcso,MAPS'APPRO\,'BM,\PVIL[,AGE5 ~ .,~ RECORDING REQUEST BY: City Clerk WHEN RECORDED MAIL TO: CITY OF CHULA VISTA 276 Fourth Avenue Chula Vista, CA 91910 No transfer tax is due as this is a conveyance to a public agency of less than a fee interest for which no cash consideration has been paid or received. Developer Above Space for Recorder's Use VILLAGE 5 NEIGHBORHOOD R-30A AND R-30B, OF THE OTAY RANCH PROJECT SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT (Conditionsl, 2, 3, 4, 5, 9, 10, 11, 19, 21, 22, 27, 36, 37, 41, 56, 69, 73, 79, 82, 83, 84, 95, 96, 97, 101, 106, 108, 109, 110, 112, 113, 114, 116, and 120 of Resolution No. 2001-291) This Supplemental Subdivision Improvement Agreement ("A~eement") is made this day of April , 2003, by and between THE CITY OF CHULA VISTA, California ("City" or "Grantee" for recording purposes only) and OTAY PROJECT, L.P., a California limited partnership and D.R. HORTON SAN DIEGO HOLDING COMPANY, INC., a California Corporation (collectively referred hereafter as "Developer" or "Grantor"), with reference to the facts set forth below, which recitals constitute a part of this Agreement: RECITALS A. This Agreement concerns and affects certain real property located in Chula Vista. California, more F ~ icularly described on Exhibit "A" and attached hereto and incorporated herein ("Property"). The ~i~erty is part of a project commonly kmown as Village 5 of the Otay Ranch Project. For pur-pc~es of this Agreement the term "Project" shall also mean "Property". B. De,.:,:toper has requested a final map for Neighborhood R-30A and R-30B and is described on Exhibi~ ~','~" hereto. City is willing, on the premises, security, terms and conditions herein contained to3 approve the final map for which Developer has applied as being in substantial conformance with :he Tentative Subdivision Map described in this Agreement. Developer understands that subsequent final maps may be subject to the same or other security, terms and conditions contained herein. C. Developer and/or Developer's predecessor in interest has applied for and the City has approved a revised Tentative Subdivision Map commonly referred to as Chula Vista Tract 96-04B ("Tentative Subdivision Map") for the subdivision of the Property subject to certain conditions as more particularly described in Resolution No. 2001-291 ("Resolution") adopted by the City Council on August 28, 2001. D. On April 20, 1999, the City Council, pursuant to Resolution No. 19410 approved an agreement between the City, Developer and a third party entitled "Agreement for Financing and Construction of Olympic Parkway and Related Parkway Improvements ("Olympic Parkway Agreement"). E. On January 23, 2001, the City Council, pursuant to Resolution 2001-018, approved the Village 5 "A" Map No. 3 (Map No. 14147) and Supplemental Subdivision Improvement Agreement therefore by Resolution No. 2001-019, of which this Final Map is a subsequent subdivision. F. The City has adopted Resolution No. 2001-291 ("Resolution") on August 28, 2001 pursuant to which it has approved the Tentative Subdivision Map subject to certain conditions as more particularly described in the Resolutions. G. On December 2001 and on January 3, 2002, Otay Project, L.P., a Califomia limited Partnership, sold Village 5 Neighborhood R-30A and R-30B respectively to D.R. Horton San Diego Holding Company, Inc., a California Corporation. H. On August 19, 2002~ the Design Review Committee of the City of Chula Vista issued Notice of Decision DRC-02-45 for Otay Ranch Village 5, Neighborhood R-30A. I. On October 7, 2002, the Design Review Committee of the City of Chula Vista issued Notice of Decision DRC-02-66 for Otay Ranch Village 5, Neighborhood R-3 OB. J. 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 map for either R-30A or R-30B of the Otay Ranch Village 5 SPA One. b. "Commencing Construction" means when a construction pemfit or other such approval has been obtained from the City or a construction contract has been awarded for the improvement, whichever occurs first. c. "Complete Construction" means when construction on said improvement has been completed and the City accepts the improvement. 2 d. "Guest Builder" means those entities obtaining any interest in the Property or a portion of the Property, after the Final Map has been recorded. e. "PFFP" means the SPA One Public Facilities Financing Plan adopted by Resolution No. 18286 as may be amended from time to time. f. "Owner" or "Developer" means the person, persons or entity having a legal or an equitable interest in the property or parts thereof and includes Owner's, successors-in-interest or assignors of any Property. This includes Otay Project, L.P., D.R. Horton San Diego Holding Company, Inc., and any and all owners of real property within the boundaries of the Property, and all signators to this Agreement including: i. Otay Project, L.P. ii. D.R. Horton San Diego Holding Company, Inc. g. "Otay Ranch Parks Agreement" means the agreement pertaining to the construction of parks in Otay Ranch SPA One, McMillin Lomas Verdes and Otay Ranch adopted by Resolution No. 19636 as may be amended from time to time. h. "Parks Master Plan" means the City-wide Parks Master Plan, subject to future City Council approval. i. "SPA One Plan" means the Otay Ranch Sectional Planning Area Plan as adopted by the City Council on June 4, 1996 pursuant to Resolution No. 18286 and amended on February 16, 1999 by Resolution No. 19376. j. "A" Map Agreement, means the Supplemental Subdivision Improvement Agreement for Village Five, "A" Map No. 3. map number thereof 14147, adopted by Resolution No. 2001-019. k. "Notice of Decisions" means the Design Review Committee findings and conditions for case numbers DRC for DRC-02-45 (R30A), and DRC-02-66 (R30B). NOW, THEREFORE, in exchange for the mutual covenants, terms and conditions herein contained, the parties agree as set forth below. 1. Performance Obligation. Otay Project, L.P~ signator to this Agreement, represents to the City that it is acting as the master developer for this Project and expressly assumes performance of the Conveyance obligations set forth in paragraph 9 of this Agreement. Notwithstanding the tbregoing, all parties to this Agreement acknowledge and agree that all such obligations remain a covenant running with the land as set forth more particularly in paragraph 2 below. The City in its sole discretion will make a good faith effort to execute on bonds securing the obligations contained herein to the extent necessary to comple[e m~y unfulfilled obligations of the master developer. 3 2. Agreement Applicable to Subsequent Owners. a. Agreement Binding Upon Successors. This Agreement shall be binding upon and inure to the benefit of the successors, assigns and interests of the parties as to any or all of the Property, as described on Attachment "A", until released by the mutual consent of the parties. b. Agreement Runs with the Land. The burden of the covenants contained in this Agreement ("Burden") is for the benefit of the Property and the City, its successors and assigns and any successor in interest thereto. City is deemed the beneficiary of such covenants for and in its own 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. Developer must obtain the written consent of the City to such release. Such assignment to the Guest Builder shall, however, be subject to this Agreement and the Burden of this Agreement shall remain a covenant running with the land. The City shall not withhold its consent to any such request for a release so long as the assignee acknowledges that the Burden of the Agreement runs with the land, assumes the obligations of the Developer under this Agreement, and demonstrates, to the satisfaction of the City, its ability to perform its obligations under this Agreement as it relates to the portion of the Project which is being acquired by the Assignee. d. Partial Release of Developer's Assignees. If Developer assigns any portion of the Project subject to the Burden of this Agreement, upon request by the Developer or its assignee, the City shall release the assignee of the Burden of this Agreement as to such assigned portion if such portion has complied with the requirements of this Agreement to the satisfaction of the City and such partial release will not, in the opinion of the City, jeopardize the likelihood that the remainder of the Burden will not be completed. e. Release of Individual Lots. Upon the occurrence of m~y 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; 4 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 or conveyance to a homeowner's association of any lot or parcel encumbered by this Agreement, such lot or parcel shall be automatically released from the encumbrance hereof. 3. Condition No. 1 - (General Preliminary) In satisfaction of Condition No. 1 of the Resolution, Developer hereby agrees that 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. 2 - (General Preliminary). In satisfaction of Condition No. 2 of the Resolution, the Applicant agrees to comply with all applicable mitigation measures identified in Final EIR 95-01, SPA One Final EIR 97-03, the accompanying CEQA Findings of Fact and the Mitigation Monitoring and Reporting Programs, and all requirements and guidelines of the Notice of Decision DRC-02-45 for Otay Ranch Village 5 Neighborhood R-30A, Notice of Decision DRC-02-66 for Otay Ranch Village 5 Neighborhood R-30B, City of Chula Vista General Plan; the City's Growth Management Ordinance; Otay Ranch General Development Plan, Otay Ranch Resource Management Plan, Phase 1 and Phase 2; Ranch Wide Affordable Housing Plan; Overall Design Plan; Otay Ranch Sectional Planning Area (SPA) One Plan and supporting documents including: SPA One Public Facilities Finance Plan; SPA One Parks, Recreation, Open Space and Trails Plan; SPA One Affordable Housing Plan and the Non-Renewable Energy Conservation Plan as amended from time to time, unless specifically modified by the appropriate department head, with the approval of the City Manager. These plans may be subject to minor modifications by the appropriate department head, with tho approval of the City Manager, however, any material modifications shall be subject to approval by the City Council. 5. Condition No. 3 - (General Preliminary). In satisfaction of Condition No. 3 of the Resolution, the Developer agrees that if any of the terms, covenants or conditions contained herein shall fail to occur or if they are, by their terms, to be implemented and maintained over time, if any of such conditions fail to be so implemented and maintained according to their terms, the City shall have the right to revoke or modify' ail 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 bc ~o!ified 10 days in advance prior to any of the above actions being taken by the City and shall lxe given the opportunity to remedy any deficiencies identified by the City 6. Condition No. 4 - (General Preliminary). In satisfaction of Condition No. 4 of the Resolution, the Applicant agrees to indemnify, protect, defend and hold the City harmless from and against any and all claims, liabilities and costs, including attorney's fees, arising from challenges to 5 the Environmental Impact Report for and subsequent environmental review for the Project and or any or all entitlements and approvals issued by the City in connection with the Project. 7. Condition No. 5 - (General Preliminary). In satisfaction of Condition No. 5 of the Resolution, the Applicant agrees the project shall comply with all applicable SPA One conditions of approval, as may be amended from time to time. 8. Condition No. 9 - (CEQA). In partial satisfaction of Condition No. 9 of the Resolution, prior to approval of each Final Map, the Developer shall implement all applicable mitigation measures identified in Final EIR 95-01, SPA One Final E1R 97-03, and the accompanying the CEQA Findings of Fact and the Mitigation Monitoring and Reporting Programs. All mitigation measures shall be implemented to the satisfaction of the Environmental Review Coordinator. 9. Condition Nos. 9, 10 and 11 - (Conveyance Obligation). In partial satisfaction of Condition Nos. 9, 10, and 11 of the Resolution, the Developer agrees as follows: a. The Developer provided the City with Irrevocable Grants of Fee Title, of real property in accordance with the RMP 2, a portion of which is intended to satisfy the particular acreage conveyance obligation of the Final Maps at a rate of 1.188 acres of conveyance per acre of urea within the Final Maps, as of the date of this Agreement. But such obligation may be subject to change in accordance with paragraph c below. Any remaining amount shall be credited towards any future map obligations. b. That such dedicated property shall be granted in fee title to the City and County of San Diego as joint tenants and subject to the approval of the Preserve Owner/Manager. Should the Preserve Owner/Manager not approve this conveyance, Developer agrees to convey equivalent real property that complies ~vith this provision. c. That Developer shall convey additional real property if necessary in order to comply with the conveyance formula described in RMP 2, as may be amended by City. Developer acknowledges that the amended RMP 2 may contain a conveyance formula greater than 1.188 acres per developable acre. d. That ali land to be conveyed as described above shall be free and clear of liens and encumbrances except for easements for existing public infrastructure and other easements approved by the City or for planned public infrastructure as permitted in the RMP, Phase 2. Developer further agrees to pay ail taxes and assessments as they came due as to the land to be conveyed until title has legally transferred to the City and County of San Diego. e. Developer ac'knowledges that property within the boundaries of the "A" Map which will be the subject of future final maps may have conveyance obligations to fulfill fbr all development areas, including applicable streets, open space lots, pedestrian parks and slope areas shown on the "A" Map. 10. Condition No. 19- (Monumentation). In partial satisfaction of Condition No. 19 of the Resolution, the Applicant agrees that any proposed monumentation/signage shall be consistent with the SPA One Village Design Plan and shall be reviewed and subject to the approval of the Director of Planning and Building prior to approval of the appropriate final map. 11. Condition No. 21- (Fire Prevention). In partial satisfaction of Condition No. 21 of the Resolution, the applicant shall obtain the approval of the City's Fire Marshal for the timing of construction of all internal streets in the project. 12. Condition No. 22- (Fire Prevention). In partial satisfaction of Condition No. 22 of the Resolution, the Applicant agrees to comply with the requirements of City's Fire Department's policy for Fire Prevention, as may be amended from time to time. In particular, the Applicant shall provide the following items prior to delivery of combustible 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. Any temporary water supply source is subject to prior approval by the Fire Marshal; and, b. Vehicle access consisting of an asphalt or concrete surface, with a minimum standard width of 20 feet designed to the satisfaction of the City Engineer, and the Director of Public Works; and, c. Street signs installed to the satisfaction of the Department of Public Works. The Department of Public Works and Fire Department may approve temporary street signs. Locations and identification of temporary street signs shall be subject to review and approval by the Department of Public Works and Fire Department. 13. Condition No. 27- (PFFP). In partial satisfaction of Condition No. 27 of the Resolution, the developer shall install public facilities in accordance with the Otay Ranch SPA One, Public Facilities Finance Plan (PFFP) as may be amended from time to time or as required by the City Engineer to meet threshold standards adopted by the City of Chula Vista. The City Engineer and Director of Planning and Building may, at their discretion, modify the sequence of improvement construction should conditions change to warrant such a revision. 14. Condition No. 36- (Tree Installation). In partial satisfaction of Condition No. 36 of the Resolution, the Developer agrees: a. Prior to issuance of the first building permit within the Project, to obtain approval from the Director of Plamfing and Building and the City Engineer ora separate street tree improvement plan for the Backbone Improvement Plans which includes the final selection of trees, the location of trees within the parkway, and in relation to water laterals, sewer laterals, dry utilities, driveways, inlets and pedestrian ramps. Developer further acknowledges and agrees that the City shall withhold the issuance of building permits within the project if the street tree improvement plan is not approved. ? b. Upon request of the Director of Planning and Building, to plant within all street parkways, trees which have been selected from the revised list of appropriate tree species described in the Village Design Plan which shall be approved by the Directors of Planning and Building and Public Works. The Developer further agrees to provide root control methods per the requirements of the Director of Planning and Building and a deep watering irrigation system for the trees. 15. Condition No. 37- (Americans with Disabilities Act). In partial satisfaction of Condition No. 37 of the Resolution, the developer agrees to construct sidewalks and construct pedestrian ramps on all walkways to meet "Americans with Disabilities Act" and 2001 California Building Code Chapter 1 l-A, Housing Accessibility as approved by the Director of Planning and Building Department. 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. 16. Condition No. 41- (Not to Install Privately Owned Water) In partial satisfaction of Condition No. 41 of the Resolution, the developer agrees to not install privately owned water, reclaimed water, or other utilities crossing any public street. This shall include the prohibition of the 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 encroacl~ment pem~it for installation of the private facilities ~vithin 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. 17. Condition No. 56 - (NPDES). In satisfaction of condition No. 56 of the Resolution, the Developer agrees to the following: a. That development of the subdivision shall comply with all applicable regulations established by the United States Environmental Protection Agency (USEPA) as set forth in the 8 National Pollutant Discharge Elimination System (NPDES) pemfit requirements for urban runoffand 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 Water Pollution Prevention Plan (SWPPP) concurrent with the commencement of grading activities; c. That the SWPPP shall include both construction and post construction pollution prevention and pollution control measures and shall identify funding mechanisms for post construction control measures; d. To comply with all the provisions of the NPDES and the Clean Water Program during and after all phases of the development process, including but not limited to: mass grading, rough grading, construction of street and landscaping improvements, and construction of dwelling units; e. To design the Project's storm drains and other drainage facilities to include Best Management Practices to minimize non-point source pollution satisfactory to the City Engineer; f. That the San Diego Regional Water Quality Control Board has issued a new Municipal Storm Water Permit (Order No. 200 I-01) and that the permit includes regulations such as implementation of Standard Urban Storm Water Mitigation Plans (SUSMPS) and Numeric Sizing Criteria for new residential development; m~d o To comply with all relevant City regulations and policies including, but not limited to, incorporation into the design and implementation of the Project temporary and permanent structural Best Management Practices and non-structural mitigation measures that would reduce pollution of storm ~vater runoff to the maximam extent practicable. 18. Condition No. 69- (Park Land Dedication Ordinance). In partial satisfaction of Condition No. 69 of the Resolution, the Applicant agrees to satisfy the requirements of the Park Land Dedication Ordinance (PLDO). The ordinance establishes a requirement that the project provide three (3) acres of local par'ks and related improvements per 1,000 per residents. Local parks are comprised of community parks and neighborhood parks. 19. Condition No. 73- (Park Land Dedication Ordinance). In partial satisfaction of Condition No. 73 of the Resolution, the Applicant agrees that the location of the Additional Parkla,~d Obligation (Community Park) shall be within a services radius of SPA One as defined in the GDP~ ami deemed acceptable by the Director of Parks and Recreation. The Additional Parkland Obligation (Conununity Park) may ultimately be aggregated with other parkland, subject to approval by the Director of Parks and Recreation. Upon request of the Director of Planning and Building, the Applicant shall amend the Otay Ranch GDP to reflect the actual location of the community park, and an), amendment shall be at the Applicant's expense. 20. Condition No. 79- (Notification of New Owners of MHOA). In partial satisfaction of Condition No. 79 of the Resolution, the Developer agrees that future property owners shall be notified 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. 21. Condition No. 82 - (Walls Maintained by Open Space District or adjacent to City Open Space Lot). In partial satisfaction of Condition No. 82 of the Resolution, the Developer agrees to ensure that all buyers of lots adjoining open space lots containing walls maintained by the open space district sign a statement, when purchasing their homes, stipulating that they are aware that the walls are on City property and that they shall not modify or supplement the wall or encroach onto City property. These restrictions shall also be incorporated in the CC&R's for each lot. The Developer hereby acknowledges that the wall located within Lot 3 and adjacent to Lot A of the Final Map for R30B shall be maintained by the Hearthstone Homeowner's Association. The Developer further agrees and acknowledges that pursuant to a revocable license herby issued by the City to the Hearthstone Homeowner's Association granting the right to enter Public Open Space (Lot A) for the purpose of wall maintenance including removal of graffiti from both sides of the wall. 22. Condition No. 83 - (Agree to Maintenance District). In partial satisfaction of Condition No. 83 of the Resolution, the developer agrees to not protest formation or incfusion in a maintenance district or zone for the maintenance of landscaped medians and scenic corridors along streets within or adjacent to the subject subdivision. 23. Condition No. 84 - (Maintenance of the L&I Improvements). In partial satisfaction of Condition No. 84 of the Resolution, prior to issuance of the grading permit for Otay Ranch Village 5 Phase 2, which includes Landscaping and Irrigation (L&I) improvements to be installed in an open space Lot A to be maintained by the Community Facility District (CFD), the developer placed a cash deposit with the City which will guarantee the maintenance of the L&I improvements until the City accepts said improvements. In the event the improvements are not maintained to City standards as determined by the City Engineer and the Director of Parks and Recreation, the deposit shall be used to perform the maintenance. The amount of the deposit is equivalent to the estimated cost of maintaining the open space lots to City standards for a period of six months, ("Minimum Deposit Amount"), as determined by the City Engineer. Any unused portion of said deposit may be incorporated into the CFD's Reserve Account, or returned to the Developer, according to the following: a. I~: six months prior to the scheduled date of acceptance of Landscape and Irrigation improvements for maintenance by the CFD, the Reserve Account is less than the Minimum Deposit Amount, the difference between these two amounts shall be incorporated into the Reserve Account, or; b. If the Reserve Account is at or above the Minimum Deposit Amount, the unused portion of the deposit may be returned to the Developer in 6 equal monthly increments over the last six month's of the maintenance period if the maintenance is being accomplished to the satisfaction of the Director of Parks and Recreation. 24. Condition No. 95- (Supplemental Agreement with the City). In partial satisfaction of Condition No. 95 of the Resolution, the Developer understands and agrees that the performance of Developer's obligations hereunder is required for the health and safety of the residents of its Project. Therefore Developer agrees: a. That the City may withhold building permits for the subject subdivision if any one of the following occur: (i). Regional development tltreshold limits set by a future transportation phasing plan for the City of Chula Vista, as amended from time to time, have been reached, or in order to have the Project comply with the Growth Management Program, as may be amended from time to time. (ii). Traffic volumes, levels of service, public utilities and/or services exceed the adopted City threshold standards in the then effective Growth Management Ordinance. (iii). The required public facilities, as identified in the PFFP or as amended or otherwise conditioned have not been completed or constructed to the satisfaction of the City. The developer may propose changes in the timing and sequencing of development and the construction of improvements affected. In such case, the PFFP may be amended as approved by the City's Director of Planning and Building and the Public Works Director. (iv.) The Developer does not comply with the terms of the Reserve Fund Program. b. To defend, indemnify and hold harmless the City and its agents, officers and employees, from any claim, action or proceeding against the City, or its agents, officers or employees, to attack, set aside, void or amml any approval by the City, including approval by its Planning Coinmission, 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 ail 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, ali 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. 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 ham~less from any liability for erosion, siltation or increase flow of drainage resulting from this project. 25. Condition No. 96- (CMP Agreement). In partial satisfaction of Condition No. 96 of the Resolution, the Developer agrees to the following: a. Participate, on a thir share basis, in any deficiency plan or financial program adopted by SANDAG to comply with the Congestion Management Program (CMP). b. To not protest the formation of any future regional impact fee program or facilities benefit district to finance the construction of regional facilities. 26. Condition No. 97- (Compliance with Previous Agreement). In partial satisfaction of Condition No. 97 of the Resolution, the Applicant agrees to comply with all previous Agreements as they pertain to the tentative map. 27. Condition No. 101 - (Fund Annual Monitoring Report). In partial satisfaction of Condition No. 101 of the Resolution, the Developer agrees, upon the request of the City, to the following: Pursuant to the provisions of the Growth Management Ordinance (Section 19.09 of the CVMC) and the Otay Ranch General Development Plan (GDP), and as they may be amended from time to time, the Developer shall complete the following: (1) Fund the preparation of an annual report monitoring the development of the community of Otay Ranch, which will analyze the supply of, and demand for, public facilities and services governed by the threshold standards. Developer further agrees that an annual review shall be commenced by Developer following the first fiscal year in which residential occupancy occurs and is to be completed during the second quarter of the following fiscal year and that the annual report shall adhere to those guidelines noted on page 353, Section D of the GDP/SRP; and (2) The Developer further agrees to prepare a five year development phasing forecast identifying targeted submittal dates for future discretionary applications (SPA's and tentative maps), projected construction dates, corresponding public facility needs per the adopted threshold standards, and identifying financing options for necessary facilities.. 28. Condition No. 106- (Compliance with the Municipal Code). In partial satisfaction of Condition No. 106 of the Resolution, the Developer agrees to comply with all applicable sections of the Chula Vista Mtmicipal Code. Preparation of the Final Map and all plans shall be in accordance with the pr~ ~ions of the Subdivision Map Act and the City of Chula Vista Subdivision Ordinance and Subdivi i~n Mar ual. 29. Condition No. 108- (Fees to be Paid). In partial satisfaction of Condition No. 108 of the Resolution, the Developcr agrees to pay the fees in accordance with the City Code and Council Policy, as may be amended fi'om time to time which fees include: 12 a) The Transportation and Public Facilities Development Impact Fees. b) Signal Participation Fees. c) All applicable sewer fees, including but not limited to sewer connection fees. d) Interim SR-125 impact fee. e) Poggi Canyon Sewer Basin DIF. f) The Pedestrian Bridge DIF. g) The FIND Model reserve Fund Fee. Pay the mount of said fees in effect at the time of issuance of building permits. 30. Condition No. 109- (Compliance with Federal, State and Local Regulations). In partial satisfaction of Condition No. 109 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.ll0- (Notice of Special Taxes and Assessments). In partial satisfaction of Condition No. 110 of the Resolution, the Developer agrees to ensure that prospective purchasers sign a "Notice of Special Taxes and Assessments" pursuant to Municipal Code Section 5.46.020 regarding projected taxes and assessments 32. Condition No. 112- (Landscape Manual). In partial satisfaction of Condition No. 112 of the Resolution, the Applicant agrees to comply with ali aspects of the City of Chula Vista Landscape Manual. 33. Condition No. 113- (Consistent with SPA). In partial satisfaction of Condition No. 113 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. 114- (Growth Management). In partial satisfaction of Condition No. 114 of the Resolution, the Applicant agrees to comply with Chapter 19.09 of the Chula Vista Mtmicipal Code (Growth Management) as may be amended from time to time by the City. Said chapter includes b,~'~ ;~ not limited to: threshold standards (19.09.04), public facilities finance plan implementation (1 c ¢ ~L09()), and public facilities finance plan amendment procedures (19.09.100). The Developer further acknoxvledges 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 13 Engineer, of sufficient street system capacity to accommodate a proposed development as a prerequisite to final map approval for that development, and the Applicant hereby agrees to comply with adopted amendments to the Growth Management Ordinance. 35. Condition No. 116- (Guarded Entrance Staffing and Barriers). In partial satisfaction of Condition No. 116 of the Resolution, the Developer agrees that guarded entrances shall not have physical barriers. Guarded entrances shall be staffed from dusk until dawn, unless the MHOA or the Applicant determines it is economically impractical. Physical barriers shall be prohibited at the entrances to guarded areas unless specifically approved by City Council. 36. Condition No. 120- (Guarded Entrance Design). In partial satisfaction of Condition No. 120 of the Resolution, the Developer agrees that guarded entrances shall: a. Require approval by the City Engineer and the Director of Planning and Building. b. Provide sufficient room on the private roadway to queue without interrupting traffic on public streets. c. Provide a mm-around. The size and location of said turn-around shall be approved by the City Engineer. d. Provide a clearly delineated border between public and private streets through the use of distinctive pavements. e. Provide a dedicated parking space for the gate attendant to be shown on appropriate grading and/or improvement plans, which is to be retained as a parking space for so long as the guarded entrance is retained. f. Be equipped with a video camera to record entering and exiting vehicles. 37. Satisfaction of Conditions. City agrees that the execution of this Agreement constitutes satisfaction or partial satisfaction of Developer's obligation of Condition Nos 2, 3,4, 5, 9, 10, 11, 19,21,22,27,36,37,41, 56,69, 73,79,82,83,84,95,96,97, 101,106, 108, 109, 110, 112, 1 ! 3, I 14, 116, and 120 of the Resolution. Developer further understands and agrees that the some of the provisions herein may be required to be performed or accomplished prior to the approval of other final maps for the Project, as may be appropriate. 38. Unfulfilled Conditions. Developer hereby agrees, unless otherwise conditioned, that Developer shall comply with all unfulfilled conditions of approval of the Tentative Map, established by Resolution No. 2001-119 and shall remain in compliance with and implement the terms. conditions and provisions therein. 39. Previous Agreements. The Developer acknowledges that nothing in this Agreement shall supersede, nullify or otherwise negatively impact the terms of the "A" Map Agreement, unless specifically noted herein. This Agreement affirms and reflects the terms, conditions and provisions of the "A" Map Agreement, Map No. 14147, Resolution No. 2001-219, and of the Tentative Map 96- 04 conditions applicable specifically to the Final Maps for the Property. 40. Olympic Parkway Agreement. The parties do not intend by this Agreement to modify or amend in any way the Olympi~ Parkway Agreement. To the extent of any inconsistencies between this Agreement and the Olympic Parkway Agreement with regard to obligations specifically set forth in the Olympic Parkway Agreement, the Olympic Parkway Agreement shall control. 41. Recording. This Agreement, or an abstract hereof shall be recorded simultaneously with the recordation of the Final Map 42. Building Permits. Developer understands and agrees that the City may withhold the issuance of buildiflg 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 def'med in the PFFP or as amended by the Annual Monitoring Program or otherwise conditioned, have not been completed or constructed to the satisfaction of the City. 43. Assignability. Upon request of the developer, any or all on-site duties and obligations set forth herein may be assigned to developer's successor in interest if the City Manager in his/her sole discretion determines that such an assignment will not adversely affect the City's interest. The City Manager in his/her sole discretion may, if such assignment is requested, permit a substitution of securities by the successor in interest in place and stead of the original securities described herein so long as such substituted securities meet the criteria for security as set forth elsewhere in this agreement. Such assignment shall be in a form approved by the City Attorney. 44. 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 At[n: Director of Public Works Developer: Otay Project, L.P. 350 West Ash Street, Suite 730 S~u Diego, CA 92101 Attention: Charles T. Cater D.R. Horton San Diego Holding Company, Inc. 1010 South Coast Highway I01, Suite 101 Encinitas, CA 92024 Attention: Gary Crouch 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 wrilten 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 and Attachments set forth above are incorporated by reference into this Agreement. f. Attorneys' Fees. If either party commences litigation for the judicial interpretation, reformation, enfomement or rescission hereof, the prevailing party will be entitled to a judgment against the other for an amount equal to reasonable attorney's fees and court costs incurred. The "prevailing party" shall be deemed to be the party who is awarded substantially the relief sought. INEXT PAGE IS PAGE ONE OF TWO S;GNA'I'URE PAGESI J:\En~neer\IANDDEVUNk2001\OTAY RCH VILLAGE 5\VIL 5 NEIGH R-30A AND R3-30BWINAL MAP\SSIA CONDITION Final.doc [PAGE ONE OF TWO SIGNATURE PAGES TO SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR VILLAGE FIVE R-30A AND R-30B] 1N 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 SIGNATURE PAGES] [PAGE TWO OF TWO SIGNATURE PAGES TO SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR VILLAGE 5 R-30A AND R-30B] DEVELOPERS/OWNERS: OTAY PROJECT, L.P., a California limited partnership By: Otay Project, LLC, a California limited liability company, General Partner By:__ D.R. HORTON SAN DIEGO HOLDING COMPANY, INC., a California Corporation. DATED: ,,r,/,,/,~::) ,2003 19 EXHIBIT "A" A PORTION OF PARCEL 3 OF PARCEL MAP NO. 18828, IN THE CITY OF CHULAVISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY OCTOBER 29, 2001. 2O State of California ) ) SS. County of San Diego ) On April 30. 2003 before me, Judy C. Moore, Notary Public, personally appeared Gary Crouch, of DR Horton San Diego Holding Company, :[nc., personally known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. li~/~A ~ ~-~l~;~- i WITNESS my hand and official seal. State of California ) ) SS. County of San Diego ) On May 1, 2003 before me, Judy C. Moore, Notary Public, personally appeared Charles T. Cater. of Otay Project, L.P., proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. iMv- A WITNESS my hand and official seal. Comml~ion # 1~765 ~ Notow ~lc - C~ ~ San D~go Co~ COUNCIL AGENDA STATEMENT Item /?~ Meeting Date 5/13/03 ITEM TITLE: Resolution Approving an Amendment to the Chula Vista Portion of the Five-Year TransNet Local Streets and Roads Program of Projects for Fiscal Years 2002-03 through 2006-07 and Authorizing its Submittal to the San Diego Association of Governments (SANDAG) for inclusion in the Regional Transportation Improvement Program SUBMITTED BY: Director of EngineeringL~/ REVIEWED BY: City Manager u' ~f (4/5ths Vote: Yes No X) On April 16, 2002, the Chula Vista City Council held a public heating and approved Resolution 2002-117 adopting the five-year Regional Transportation Improvement Program (RTIP). SANDAG has requested local agencies to review the biennial element (FY 2003 and FY 2004) of the current RTIP and submit to SANDAG any proposed changes. This amendment to the Fiscal Years 2002-03 through 2006-07 RTl]? primarily concerns changes to the cost estimates and new submittals for non-capacity increasing projects to be funded by Transportation Sales Tax (TransNet) funds. The SANDAG Board of Directors will consider the subject amendments at its June meeting. RECOMMENDATION: That Council approve a resolution amending the City of Chula Vista's portion of the Fiscal Years 2002-03 through 2006-07 Regional Transportation Improvement Program (RTIP) and authorize its submittal to SANDAG for inclusion in the RTIP. BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. DISCUSSION: The Fiscal Years 2002-03 through 2006-07 San Diego Regional Transportation Improvement Program (RTIP) is a five-year program of proposed major highway arterial, transit, and bikeway projects. Development and approval of the RTIP by SANDAG is a requirement for the continued receipt of State and Federal Transportation project funding. The TransNet Program was enacted as Proposition 'A' by the voters of San Diego County on November 3, 1987. The Proposition "A" Ordinance and Expenditure Plan, requires that all proposed projects in this program be included in the RTIP. The Proposition "A" Ordinance and Expenditure Plan also states that revenues generated by the sales tax measure will be used solely for transportation improvement projects. The Chula Vista portion of the Fiscal Years 2002-03 through 2006-07 RTIP was adopted by the City Council on April 16, 2002 following a public hearing. The adopted RTIP is consistent with the City's Capital Improvement Program. Page 2,Item Meeting Date 5/13/03 The proposed amendments (Attachment 1) to the current RTIP include the following projects: · Patomar Street - City staff has determined during the recent budget process that the originally programmed TransNet funds in the amount of $800,000 could be reduced by $51,000. City staff requests to reduce the TransNet funding for Palomar Street by $51,000 to the new amount of $749,000 and revise the funding schedule for Preliminary Engineering, Right-of-Way acquisition, and Construction to Fiscal Year 2003-04. · FY 03/04 and FY 04/05 Pavement Rehabilitation - Originally, the Pavement Rehabilitation projects for FY 03/04 and FY 04/05 were to be funded by TransNet funds and $400,000 in Gas Tax funds for each year. However, due to unavailable Gas Tax funding, only TransNet funds remain to fund the project. The amendment to this project consists of removing Gas Tax funding for the project. Proposed TransNet funding is $3,251,000 in FY 3/4 and $3,500,000 in 04/05. · FY 03/04 and FY 04/05 Sidewalk Installation/Rehabilitation - City staff will be submitting "Safe Routes to School" (SRTS) Grant applications to Caltrans for approval. The SRTS funds 90 percent of the total funding and requires a 10 percent contribution by the local agency. The proposed funding for the project, in the amount of $100,000 for both FY 3¼ and 04/05, would be used for the 10 percent contribution portion of the local agency and/or the construction of missing sidewallqpedestrian ramp improvements. · North Broadway Reconstruction The proposed project is a new submittal, which includes pavement reconstruction in order to reduce the crown of the pavement area in order to meet current City requirements and rehabilitate the existing street. This project will be coordinated with the construction of the drainage project for the same project area, generally bounded by C Street and D Street. The proposed funding includes $100,000 for preliminary engineering in FY 03/04 and $1,000,000 in FY 04/05. The proposed amendments are based on anticipated TransNet revenue forecasts obtained from SANDAG. The TransNet revenue forecasts are based on the local agency's current population and the maintained street and road mileage (Attachment 2). The aforemention project funding was reduced due to unavailable Gas Tax funding. FISCAL IMPACT: Staff is proposing amendments to the Fiscal Years 2002-03 through 2006-07 Regional Transportation Improvement Program. The approval of the subject submittal by SANDAG would reduce TransNet funding for the Pavement Rehabilitation projects and acquire TransNet funding for the proposed Sidewalk Rehabilitation projects and North Broadway Reconstruction project. Funds for the Fiscal Years 2002-03 through 2006-07 RTIP projects must be allocated by future Council action in conjunction with the CIP. Attachments File #0390~5-KY 174 J 5Enginecr~AGEN DA~2003-RTIP Amenddcm.doc RESOLUTION NO. 2003- RESOLUTION OF THE CITY COUNCII~ OF THE CITY OF CHULA VISTA APPROVING AN AMENDMENT TO THE CHULA VISTA PORTION OF THE FIVE-YEAR TRANSNET LOCAL STREETS AND ROADS PROGRAM OF PROJECTS FOR FISCAL YEARS 2002-03 THROUGH 2006-07 AND AUTHORIZING ITS SUBMITTAL TO THE SAN DIEGO ASSOCIATION OF GOVERNMENTS (SANDAG) FOR INCLUSION IN THE REGIONAL TRANSPORTATION IMPROVEMENT PROGRAM WHEREAS, on April 16, 2002, the Chula Vista City Council held a public hearing and approved Resolution No. 2002-117 adopting the five-year Regional Transportation hnprovement Program (RTIP). SANDAG has requested local ugencies to review the biennial element (FY2003 and FY 2004) of the current RTIP and submit to SANDAG any proposed changes; and WHEREAS, this amendment to the Fiscal Years 2002-03 through 2006-07 RTIP primarily concerns changes to the cost estimates and new submittals for non-capacity increasing projects to be funded by Transportation Sales Tax (TransNct) funds. Thc SANDAG Board of Directors will consider the subject amendments at its Junc meeting; and WHEREAS, the proposed amendments to the current RTIP include four projects: Palomar Street, Pavcmcut and Sidewalk Rchabilitation~ and North Broadway Reconstruction; and WHEREAS, Palomar Strcct- City staff has determined during the recent budget process that the originally programmed TransNet fi~nds in the amount of $800,000 could be reduced by $51,000. City staff recommends reducing the TransNct fimding for Palomar Street by $51,000 to thc ncw amount of $749,000 and rcvising thc funding schedule for Preliminary Engineering, Right-of-Way acquisition, and Construction to Fiscal Year 2003-04; and WHEREAS, FY 03/04 and FY 04/05 Pavement Rehabilitation - Originally, the Pavement Rehabilitation projects for FY 03/04 and FY 04/05 were to be funded by TransNet funds and $400,000 in Gas Tax funds tbr each year. ttowever, due to unavailable Gas Tax funding, only TransNet funds remain to fi~nd thc project. Stat'f recommends that the amendment to this project consist of removing Gas Tax funding for the project; and WHEREAS, FY 03/04 and FY 04/05 Sidewalk Installation/Rehabilitation Citystaffwill be submitting ~Safc Routes to School" (SRTS) Grant applications to Caltrans for approval. Thc SRTS funds 90 percent of thc total funding and requires a 10 percent contribution by the local agency. Staff recommends fimding for thc project be used lbr the 10 percent contribution portion of the local agency and/or thc construction of missing sidewalk/pedestrian ramp improvements; and WHEREAS, North Broadway Reconstruction pavement reconstruction in order to reduce the crown of the pavcmcnt area to meet current City requirements and rehabilitate the existing street. This project will be coordinatcd w'ith thc construction of the drainage project for the same project area, gcncrally bounded by C Street and D Street; and WHEREAS, the proposed amendments are based on anticipated TransNet revenue forecasts obtained from SANDAG. The TransNet revenue forecasts are based on the local agency's current population and the maintained street and road mileage xvhich was reduced due to unavailable Gas Tax funding. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby approve an Amendment to the Chula Vista Portion of the Five-Year TransNet Local Streets and Roads Program of Projects for Fiscal Years 2002-03 through 2006-07 and Authorizes its Submittal to the San Diego Association of Governments (SANDAG) for inclusion in the Regional Transportation Improvement Program, a copy o f which shall be kept on file in the office of the City Clerk. Presented by Approvcd as to form by Cliff'Swanson Ann M ~) o//r c~ /t~/ ~ Director of Engineering City Attorney COUNCIL AGENDA STATEMENT Item ~ Meeting Date: 5/13/03 ITEM TITLE: Resolution Ordering the Summary Vacation of certain sewer, drainage, and slope stabilization easements located within the limits of Lot H of Chula Vista Tract No. 01-09, Eastlake III Woods Neighborhood 4. Map No. 14394. SUBMITTED BY: Director of Engineering1 REVIEWED BY: City Manager~J~9~ °/~ (4/Sths Vote: Yes No X ) Developer requested and staffconcurred to process a summary vacation of certain existing sewer, drainage, and slope easements located within the limits of the proposed elementary school site (Lot H of Map No. 14394 Eastlake 111 Woods Neighborhood 4). The sewer and drainage easements are no longer needed because the associated sewer and drainage facilities have been relocated in order to provide more usable area and flexibility for the site design of the elementary school. The slope stabilization easement is no longer needed for the construction of Hunte Parkway. lu accordance with Section 7050 of the California Government Code and Chapter 4, Section 8335 of the Califbrnia Streets and Highways Code, this type of vacation may be perfbrmed summarily through adoption of a resolution. RECOMMENDATION: That Council adopt the resolution ordering the Summary Vacation of certain sewer, drainage, and slope stabilization easements located within the limits of Lot H of Chula Vista Tract No. 01-09, Eastlake III Woods Neighborhood 4, Map No. 14394. BOARD/COMMISSIONS RECOMMENDATIONS: Not Applicable DISCUSSION: The proposed Summary Vacation would vacate the following easements located within thc proposed elementary school site in the Eastlake III project (see Exhibits A and B): · An existing onsite sewer easement originally dedicated per document recorded July 3, 1997, as file No. 1997-03 16064 that is no longer needed because the Salt Creek Trunk Sewer was realigned in order to provide more usable area and flexibility fro' the site design of the elementary school. · Three (3) existing drainage easements originally dedicated per document recorded July 3, 1997, as file Nos. 1997-0316063 and 1997-0316066 and that are no longer needed because the associated drainage has been relocated in order to provide more usable area and flexibility for the site design of the elementary school. Page 2, Item c~ Meeting Date: 5/13/03 · An existing slope stabilization easement originally dedicated per document recorded July 3, 1997, as file No. 1997-0316067 that is no longer needed for the construction of llunte Parkway. There are no other public facilities located within the easements to be vacated. FISCAL IMPACT: None to the General Fund. All staff costs associated with processing of this smnmary vacation will be reimbursed from the developer's deposits. Exhibit A: Easement Vacation Legal Description Exhibit B: Easement Vacation Plat J:\Engineer\LANDDEV\Proiects\East[ak¢ IIl\Wo~ds\wr4\£ AS-summary doc EXHIBIT "A" LEGAL DESCRIPTION EASEMENT VACATIONS ALL THOSE PORTIONS OF THE EASEMENTS GRANTED TO THE CITY OF CHULA VISTA RECORDED JULY 3, 1997 AS FILE NOS. 1997-0316063 PARCEL F, 1997- 0316064 PARCEL H, 1997-0316066 PARCELS A, B, & C, AND 1997-0316067 PARCEL J, OF OFFICIAL RECORDS, IN THE CITY OF CHULAVISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, LYING WITHIN LOT "H" OF MAP NO. 14394, FILED IN THE OFFICE OF THE COUNTY RECORDER MAY 16, 2002 AS SHOWN ON EXHIBIT 'B' ATTACHED HERETO AND MADE A PART HEREOF. THIS PROPERTY DESCRIPTION HAS BEEN PREPARED BY ME, OR UNDER MY DIRECTION, IN CONFORMANCE WITH THE PROFESSIONAL LAND SURVEYORS ACT. SB&Or INC. EastLake III- Woods Job No 5805805, April 18, 2003 Page1 OF I D I58052~LEGALSICity Chula Vista Vacate WPD RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ORDERING THE SUMMARY VACATION OF CERTAIN SEWER, DRAINAGE, AND SLOPE EASEMENTS WITHiN THE LIMITS OF LOT H OF CHULA VISTA TRACT NO. 01-09, EASTLAKE III WOODS NEIGHBORHOOD 4, MAP NO. 14394 WHEREAS, the proposed summary vacation would vacate a small portion of certain existing onsite drainage, sewer, and slope easements located within the limits of the proposed elementary school site in the Eastlake III project; and WHEREAS, the existing onsite sewer easement originally dedicated per document recorded July 3, 1997, as file No. 1997-0316064 is no longer needed because the Salt Creek Trunk Sewer was realigned in order to provide more usable area and flexibility for the site design of the elementary school; and WHEREAS, the three existing drainage easements originally dedicated per document recorded July 3, 1997, as file Nos. 1997-0316063 and 1997-0316066 are no longer needed because the associated drainage has been relocated in order to provide more usable area and flexibility for the site design of the elementary school; and WHEREAS, the existing slope stabilization easement originally dedicated per document recorded July 3, 1997, as file No. 1997-0316067 is no longer needed for the construction of Hunte Parkway; and WHEREAS, there are no other public facilities located within the easements to be vacated; and WHEREAS, in accordance with Chapter 4, Section 8335 of the California Streets and Highways Code, this type of vacation may be performed summarily through adoption of a resolution ordering said summary vacation; and WHEREAS, from and after the date of this Resolution ordering summary vacation, the easements vacated as described herein no longer constitute public service easements; and NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby order the summary vacation of a portion of an existing onsite easement within the limits of the proposed elementary school site of the Eastlake III project, as shown in Exhibits "A" and "B', attached hereto and incorporated herein by reference as if set forth in full. BE IT FURTHER RESOLVED that the City Clerk is hereby directed to record this resolution of vacation in the office of the San Diego County Recorder. Presented by Approved as to form by Cliff Swanson c,- Director of Engineering City Attorney COUNCIL AGENDA STATEMENT Item ! Meeting Date 5/13/03 ITEM TITLE: A) Resolution Approving the Final Map of Chula Vista Tract No. 03-04, Eastlake Landswap Residential; acknowledging on behalf of the City of Chula Vista the Irrevocable Offer of Dedication for open space purposes granted on said map within said subdivision; accepting on behalf of the City of Chula Vista the various easements, all as granted on said map within said subdivision B) Resolution Approving a Supplemental Subdivision Improvement Agreement for Chula Vista Tract No. 03-04, Eastlake Landswap Residential requiring Eastlake Company, LLC to comply with certain unfulfilled conditions of Resolution No. 2003-141, and authorizing the Mayor to execute said Agreement. SUBMITTED BY: Director of Engineering]~(/ REVIEWED BY: City Manager .9~t',.~~ (4/5ths Vote: Yes No X ) On April 8, 2003, by Resolution 2003-141, City Council approved the Tentative Subdivision Map for Chula Vista Tract No. 03-04, Eastlake Landswap Residential. The Final Map and the associated Supplemental Subdivision Improvement Agreement are now before Council for consideration and approval. RECOMMENDATION: That Council adopt the resolutions approving: (A) the Final and (B) the Supplemental Subdivision Improvement Agreement for Eastlake Landswap Residential and authorizing the Mayor to execute said Agreements. BOARD/COMMISSIONS RECOMMENDATIONS: Not Applicable DISCUSSION: Final Map and Associated Improvement Agreement Eastlake Landswap Residential is located on the northeast comer of the intersection of Olympic Parkway and Eastlake Parkway (see Exhibit 1 ). The final map consists of the following: Final Map Number of Lots Open Space Gross Lots Acreage 4 (containing a total of 750 Landswap Residential multi-family residential units) 2 62.635 acres A plat for the Landswap Residential is shown in Exhibit 2. Page 2, Item [ Meeting Date: 5/13/03 The final map for the subdivision has been reviewed by the Department of Engineering and Department of Planning & Building and has been found to be in substantial conformance with the approved Tentative Map. All the applicable fees have been already paid by the developer. Approval of the maps constitutes acceptance by the City of a Traffic Control Device Easement and a Landscape Buffer Easement ~vithin the subdivision. Lot 1 of the Final Map has already been approved by the Design Review Committee for an affordable housing project containing 150 apartment units. Lots 2-4 are currently planned as multi- family residential lots containing 600 residential units (condominiums, apartments, or small-lot single-family units) which will be subject to a subsequent discretionary approval by the Design Review Committee. All public infrastructure serving the proposed map is currently existing or under construction. Open space lots A and B will be privately maintained; the City is only acknowledging the offer of dedication of said lots on the Final Map. Approval of the map, therefore, does not constitute acceptance of the Open Space Lots. However, Section 7050 of the Government Code of the State of California provides that an offer of dedication shall remain open and subject to future acceptance by the City. The City's Environmental Review Coordinator has reviewed the Final Map and has determined that it is consistent with the Final Supplemental Environmental Impact Report for the EastLake Greens Sectional Planning Area (SPA) Plan and EastLake Trails Pre-zone and Annexation (FSEiR 86-04), Final Subsequent Environmental Impact Report for the EastlakeTrail/Greens Replanning Program (97-04), and Addendum to FSEIR 86-04 and FSEIR 97-04 for the Eastlake Land Swap Residential Project (IS-03-009). The Final Map will not result in any new environmental effects that were not previously identified, nor would the Final Map result in a substantial increase in severity in any impacts previously identified. The developer has already executed the following agreement: · Supplemental Subdivision Improvement Agreement for Vistas VR-1 encumbering only the land covered by the subject map in order to satisfy conditions of approval Nos. 1, 2, 4, 5, 7, 8, 11, 12, 13, 19, 20, 2l, 22, 24, 25, 30, 38, 42, 44, 45, 46, 47, 53, 54, 55, 56, 58, 59, 60, 61, 62, 64, 66, 67, 68, 73, 77, 79, 80, 83, 84, 85, 86, 87, 88, 89, 90, 91 of the Eastlake Ili Tentative Map. The agreements have been reviewed by staffand 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. Exhibit 1: Eastlake Landswap Residential Vicinty Map and Plat Exhibit 2: Developer's Disclosure Statement Attachment A: Supplemental Subdivision Improvement Agreement J:\Engineer\LANDDEV\Projects\Land Swap\residential - FM\CASFM5-6 doc ~? ' EASTLAKE LANDSWAP RESID£NTIAL EXHIBIT ~ MAP NO, 18180 MAP NO. 1'3198 SCALE: 1"= 400' 1 MAP LOT 7 MAP ~VJAP NO~ 1,3310 \ '% LOT LOT 'A ~ SWE g OTAY F~ANCH VICtNI~MAP~r~ ~ J~/JAP jXjO, oo2~" - 05/08/2003 14:51 FAX 6194211830 EASTL3,KE COMPANY ~002 City of Chula Vista Disclosure Statement Pursuant to Couneil Policy 101-01, prior to any action upon matters that will requirc discretionary action by the Core, cji, Planning Connmssion and all other official bodies of the City. a statement of disclosttrc of certain ownership or financial interests, payments, or campaign contributions for a City of Chula Vista election must be filed. The following information must be disclosed: 1. List thc names of all persons having a ~in~ncial 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= idmatified pursuant to (1) above is a corporation or parmerahip, hst the names of all individuals with a $2000 inves~nent m the business (corporation/partnership) entity. 3. If any person* identfiedpumuant to (1) above is a non-profit orgamzation or trust, list thc names of any p~on serving as director of thc non-profit orgtmization or as trustee or beneficiary or tmstor of the trust. 4. Please idanti~ every person, including any agents, employees, consultants, or independent contractors you iaave assigned to rcpresent you before the City in this matter. 5. Has any person* associated witl~ this contract had any financial dealings with au offic.i~* * of the City of Chu/a Vista as it relates to this contract within the past 12 months. Yes No_.3L_ 05/08/2003 14:51 FAX 6194211830 EASTLAKE COMPANY ~003 City of Chula Vista Disclosure Statement If Yes, briefly describe the nature of the :financial interest the official** may have in this contract. 6. Have you made a contribution of more than $250 within the past twelve (l 2) months to a current member of the Chula Vista City Council? No ~Yes If yes, which Council member? Have you provided more than $340 (or an item of cquivalcnt value) to au official* * of the City of Chula Vista in thc past twelve (12) months?,~This includes being a somrce of income, money to retire a legal debt, gift, loan, etc.) Yes No V If Yes, which official** and what was thc nature of it~a provided? Signature of Contractor/Applicant Print or type name of Contractor/Applicant * Person is defined ~: ally individual, firm, co-partnership, joint venture, association, social club, fi'atemal organization, corporation, estate, ~uat, receiver, syndicate, any other county, city, municipality, district, or other political subdivision, -or any other group or combination acting as a unit. ** Official includes, but is not limited to: Mayor, Council mcmbcr, Planning Commissioner, Member of a board, commission, or committee of thc City, employee, or staff members. RESOLUTION NO. 2003- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE FINAL MAP OF CHULA VISTA TRACT NO. 03-04, EASTLAKE LANDSWAP RESIDENTIAL; ACKNOWLEDGING ON BEHALF OF THE CITY OF CHULA VISTA THE IRREVOCABLE OFFER OF DEDICATION FOR OPEN SPACE PURPOSES GRANTED ON SAID MAP WITHIN SAID SUBDIVISION; ACCEPTING ON BEHALF OF THE CITY OF THE CITY OF CHULA VISTA THE VARIOUS EASEMENTS, ALL AS GRANTED ON SAID MAP WITHIN SAiD SUBDIVISION WHEREAS, on April 8, 2003, by Resolution 2003-141, City Council approved the Tentative Subdivision Map for Chula Vista Tract No. 03-04, Eastlake Landswap Residential; and WHEREAS, Developer is requesting approval of a final map for six lots within said subdivision. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista hereby finds that certain map survey entitled Chula Vista Tract No. 03-04, Eastlake Landswap and more particularly described as follows Parcels 1 through 4 of Chula Vista Tract Number 03-04, in the City if Chula Vista, County of San Diego, State of California. Area: 62.635 Acres No.of Lots: 6 Number of Lots for Public Use: 2 Numbered Lots: 4 and 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 the City Council of the City of Chula Vista hereby accepts on behalf of the City of Chula Vista the traffic control devices and landscape buffer casements, all as shown on Eastlake Landswap map within said subdivision. BE IT FURTHER RESOLVED that the City Council of the City of Chula Vista hereby acknowledges on behalf of the City of Chula Vista the Irrevocable Offer of Dedication of Fee Interest on Lots A and B open space and other public purposes all as shown on Eastlake Landswap map within said subdivision. BE IT FURTHER RESOLVED that the City Clerk of' the City of Chula Vista be, and is hereby authorized aod directed to endorse upon said map the action of said Council; that said Council has approved said final map, that the Irrevocable Offers of Dedication of Fee Interests of said lots be acknowledged, that those certain easements as granted on said map within said subdivision are accepted on behalf of thc City of Chula Vista as herein above stated. BE IT FURTHER RESOLVED that City Clerk be and she is hereby directed to transmit said map to the Clerk of the Board of Supervisors of the County of San Diego. ['resented by Approved as to form by Cliff Swanson Ann M~o~/e¢'' Director of Enginecring City Attorney I:Atto~ ney Reso Maps Final Mal) (VI ()~ -04 RESOLUTION NO. 2003- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING A SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR CHULA VISTA TRACT NO. 03-04, EASTLAKE LANDSWAP RESIDENTIAL REQUIRING EASTLAKE COMPANY, LLC TO COMPLY WITH CERTAIN UNFULFILLED CONDITIONS OF RESOLUTION NO. 2003-141, AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT WHEREAS, the developer has executed a Supplemental Subdivision Improvement Agreement in order to satisfy unfulfilled conditions of Resolution No. 2003-141 for Chula Vista Tract No. 03-04; and NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does hereby approve a Supplemental Subdivision Improvement Agreement for Chula Vista Tract No. 03-04, Eastlake Landswap Residential requiring Eastlake Company, LLC to comply ~vith certain unfulfilled conditions of Resolution No. 2003-141, a copy of which shall be kept on file in the office of the City Clerk. BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby authorized to execute said Agreement on behalf of the City of Ch ula Vista. Presented by Approved as to form by Cliff Swanson Ann Mo~rff' Director of Engineering City Attorney J:,Attorney,P, eso\SSIA\Chula Vista Trac103 04 SSIA 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 /Yff 0inn Moore City Attorney Dated: 5~ ' ~ ~O~ Supplemental subdivision Improvement Agreement for Final Map of Eastlake Landswap Residential, Chula Vista Tract No. 03-04 RECORDING REQUEST BY: ) ) City Clerk ) ) WHEN RECORDED MAIL TO: ) ) CITY OF CHULA VISTA ) 276 Fourth Avenue ) Chula Vista, CA 91910 ) ) ) Above Space for Re¢order's Use EL-OO1F SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR THE FINAL MAP OF EASTLAKE LANDSWAP RESIDENTIAL, CHULA VISTA TRACT NO. 03-04 (Conditions 1, 2, 4, 5, 7, 8, 11, 12, 13, 19, 20, 21, 22, 24, 25, 30, 38, 42, 44, 45, 46, 47, 53, 54, 55, 56, 58, 59, 60, 61, 62, 64, 66, 67, 68, 73, 77, 79, 80, 83, 84, 85, 86, 87, 88, 89, 90, 91 of Resolution 2003-141) 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 signators of tiffs Agreement, EASTLAKE COMPANY LLC, a California Limited Liability Corporation ("Developer" or "Owner"), with reference to the facts set forth below, which recitals constitute a part of this Agreement: RECITALS A. This Agreemem concerns and affects certain real property located in Chula Vista, California, more particularl> described on Exhibit "A" attached hereto and incorporated herein CProperty"). The Property is within approved Tentative Subdivision Map Chula Vista Tract 03-04 Eastlake Landswap Residential and is commonly' kmown as the Landswap Residential. For 1 purposes oft}ds 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. D. Developer or Developer's predecessor in interest has applied for and the City has approved Tentative Subdivision Map commonly referred to as Chula Vista Tract 03-04 ("Tentative Subdivision Map" or Tentative Map") for the subdivision of the Property. E. The City has adopted Resolution No. 2003-141 ("Resolution") pursuant to which it has approved the Tentative Subdivision Map subject to certain conditions as more particularly described in the Resolution. F. Developer has requested the City's approval of a final subdivision map for the Property. G. City is willing, on the premises, security, terms and conditions herein contained to approve the Final Map for which Developer has applied as being in substantial conformance with the Tentative Subdivision Map. 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 map for the Landswap Residential. b. "Complete Construction" shall mean that construction of the improvements have completed and have been inspected and accepted by the City. c. "Guest Builder" means those entities obtaining any interest in the ProperO:' or a portion of the Property. after the Final Map has been recorded. d. "PFFP" means the Land Swap Supplemental Public Facilities Financing Plan" adopted by Resolution No. 19275 on March 24, 1998, and as may be further amended from time to time. e. "Parks Master Plan" means the City-wide Parks Master Plan, subject to fut~lrc Citx Council approval. "hnprovement Plans" memos all the onsite and offsite improvements 2 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. g. "Resource Agencies" means the U.S. Army Corps of Engineers, California Department of Fish and Game, and the United States Fish and Wildlife Services, unless otherwise stated. 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 covenm~ts 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 rutming 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 assigument 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 lbr a release so long as the assignee acknowledges that the Burden of the Agreemem runs with the land, assumes the obligations of the Developer under this Agreement, and demonsn'ates, to the satisfaction of the City, its ability to perform its obligations under this Agreement as it relates to the portion of the Prctject 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 fight 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, at the close of an individual homeowner's escrow on ?nv lot ar 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 Resolution, 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 o£ Condition 2 of the Resolution, Developer hereby agrees to comply, remain in compliance and implement, the ten~s, conditions and provisions, as are applicable to the propel-ty which is the subject matter of this Tentative Map, of 1) amended EastLake II General Development Plan (GDP) approved by CiD' Council by Resolution No 2002-64 on July 23, 2002; 2) EastLake II Sectional Planning Area (SPA) Plan approved by City Council Resolution No 220£-151 on May 7, 2002; 3) EastLake Greens Neighborhood Plan, Design Guidelines Supplement l~ "Land Swap" area of EastLake Greens. and EastLake Greens m~d "Land Swap Supplemental Public Facilities Financing Plan all adopted b3' Resolution 19275 on March 24, 1998; 4) Final Supplemental Environmental Impact Report for the EastLake Greens Sectional Planning Area (SPA) Plan and EastLake Trails Pre-zone and Annexation (FSEIR 86-04) and associated Mitigation Monitoring and Reporting Program; 5) Final Subsequent Environmental Impact Report (FSEIR) for the EastLake Trails/Greens Replanning Program (FSEIR 97-04) and associated Mitigation Monitoring and Reporting Program certified on November 24, 1998; 6) Addendum to FSEIR 86-04 and FSEIR 97-04 for the Eastlake Land Swap Residential Project (IS-03-009); 7) Amended EastLake Comprehensive Affordable Housing Program adopted by City Council Resolution 2001-220 on July 17, 2001; and 8) the amended EastLake II Planned Community District Regulations and Land Use Map approved by City Council Ordinance 2863 on August 6, 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 required to comply with the above regulatory documents. Said Agreement shall also ensure that, after approval of the final map, the developer wilt continue to comply, remain in complim~ce, and implement such Plans. 4. Condition No. 4 - (General Preliminary). In satisfaction of Condition 4 of the Resolution, Developer hereby agrees that if any of the terms, covenants or conditions contained herein shall fail to occur, or if they are, by their terms, to be implemented and maintained over time, and if any of such conditions fail to be so implemented and maintained according to their temps, the City shall have the right to revoke or modil~ 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 prior to any of the above ~tctions 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 frmne. 5. Condition No. 5 - (General Preliminary). In satisfaction of Condition 5 of the Resolution, Developer hereby agrees to indemnify, protect, defend and hold the City harmless from and against any and all claims, liabilities and costs, including Attorney's fees, arising from challenges to the Environmental Impact Report for the Project, and any or all entitlements and approvals issued by the City in connection with the Project. 6. Condition No. 7 - (Multi-Family Housing). in partial satisfaction of Condition 7 of the Resolution, Developer hereby agrees that in the event Developer seeks to Develop any lot in the Project as condominiums, community apartment project, or stock cooperative, as defined in the applicable sections of the Govermnent Code, Developer shall agree to process, unless otherwise approved by the Director of Engineering, a subsequent tentative map for said proposed condominium, community apartment, or stock cooperative project in said Plamfing Area. 7~ Condition No. 8 - (Multi-family Housing). In partial satisfaction of Condition 8 of the Rcsoltaion, Developer hereby agrees that subsequent development of a multiple-fmnily lot, which dot~s not require the filing of a subsequent final map, shall meet, prior to issuance of a building permit for that lot, all the applicable conditions of approval of the tentative map, as determined by the Director of Engineering and Director of Planning & Building. 8. Condition No. 11 - (Environmental/Preservation). in satisfaction of Condition 11 of the Resolution, Developer hereby agrees to implement, to the satisfaction of the Director of Planning & Building, all applicable mitigation measures identified in FSEIR 86-04 and FSEIR 97-04, the associated CEQA Findings of Fact and Mitigation Monitoring and Reporting Programs and as incorporated by reference in the Addendum to FSEIR 86-04 and FSEIR 97-04 (IS 03-009) in accordance with the requirements, provisions and schedules contained therein, and as further specified in these Tentative Map conditions. Modification of the sequence of mitigation shall be at the discretion of the Director of Planning & Building should changes in circumstances warrant such a revision. 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. 12 - (Environmental/Preservation). In satisfaction of Condition 12 of the Resolution, Developer hereby agrees to implement, or cause the implementation of all mitigation measures pertaining to the Project identified in FSEIR 86-04 and FSEIR 97-04, the associated CEQA Findings of Fact and Mitigation Monitoring and Reporting Programs and as incorporated by reference in the Addendum to FSEIR 86-04 and FSEIR 97-04 (IS 03-009). 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 & Building. Mitigation Measures shall be monitored via the Mitigation Monitoring and Reporting Programs approved in conjunction with FSEIR-86-04 and FSEIR 97-04. Modification of the sequence of mitigation shall be at the discretion of the Director of Planning & Building should changes in the circumstances warrant such revision. 10. Condition No. 13 - (Street Trees). In satisfaction of Condition 13 of the Resolution, Developer hereby agrees to install all street trees in accordance with Section 18.32.10 of the Chula Vista Municipal Code, the City' s Landscape Manual and approved cross-sections in the EastLake Greens Neighborhood plan; or as otherwise approved by the Director of Parks & Building Construction and Director of Public Works Operations. Developer agrees to provide any and all special installation conditions as requested by the Director of Parks & Building Construction for those trees identified in the SPA as having special installation conditions. Street trees shall be shown on street landscape and irrigation plans submitted for approval by the Director of Parks & Building Construction and the Director of Public Works Operations prior to, or concurrent with the second submittal of street improvement plans within the subdivisian. Approval of the street tree improvement plans shall constitute final approval of the species selection of street trees. Location of trees and planters shall be contingent upon the location of street signs. Under no circumstance shall a tree or shrub block the visibility of any street sign, regulatory, warning or guide traffic signs. 6 11. Condition No. 19 - (Project Design). In satisfaction of Condition 19 of the Resolution, Developer hereby agrees to the following: a. That prior to the first Design Review approval for the proposed Lots 2, 3, or 4 of the Project, Developer shall accomplish the following: i. Obtain the approval of the Director of Engineering and Director of Planning and Building of a design study ("Design Study") for a private street connecting the proposed Project's common access points to Lots 2,3, and 4 at Eastlake Parkway and Olympic Parkway ("Common Private Street"). Developer shall acknowledge and agree that the City reserves the right to require improvements and facilities deemed necessary by the Director of Engineering and Director of Planning and Building to provide adequate circulation and to meet the requirements of the Police and Fire Departments. ii. Provide evidence satisfactory to the Director of Engineering of the grant of private easements necessary for constructing the Common Private Street. iii.Grant to the City all onsite and offsite public easements needed to accommodate the Common Private Street, deemed necessary by the Director of Engineering to serve the Project. b. Construct all the private and public improvements located within the Common Private Street in conjunction with the construction of the first residential building on Lots 2, 3 and 4, whichever occurs first, to the satisfaction of the Director of Engineering. 12. Condition No. 20 - (Common Private Street). In satisfaction of Condition 20 of the Resolution, Developer hereby agrees to designate as private the Common Private Street and any other streets proposed for any residential development within the Project. 13. Condition No. 21 - (Easements). In satisfaction of Condition 21 of the Resolution, Developer hereby agrees, unless otherwise approved by the Director of Engineering, prior to issuance of the first building permit for each of Lots 2, 3 and 4, to grant to the City on a final or parcel map those public easements deemed necessary by the Director of Engineering to accommodate the public facilities to serve each lot. 14. Condition No. 22- (ADA Standards). In satisfaction of Condition 22 of the Resolution, Developer hereby agrees to constr~ct sidexvalks and pedestrian ramps on all walkways to comply with the "Americans with Disabilities Act" (ADA) standards, as approved 7 by the Director of Engineering. In the event the Federal Goverrm~ent 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. 15. Condition No. 24 - (GMOC). In satisfaction of Condition 24 of the Resolution, Developer hereby acknowledges and agrees that, prior to the construction of SR-125, the City shall stop issuing new building permits for Land Swap Residential when the City, in its sole direction, determines that either: a. Building permits for a total 9,429 dwelling units have been issued for projects east of 1-805 (the start date for counting the 9,429 dwelling units is January 1, 2000); or, b. An alternative measure is selected by the City in accordance with the City of Chula Vista Gro~vth Management Ordinance. Developer further acka~owledges 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: 1) traffic studies demonstrate, to the satisfaction of the Director of Engineering, that the circulation system has additional capacity without exceeding the GMOC traffic tlzreshold standards; 2) other improvements are constructed which provide additional capacity; or 3) the City selects an alternative method of implementing the GMOC standards. These traffic studies would not require additional environmental review under CEQA; however, any improvements proposed in these traffic studies would be subject to additional environmental reviews as required. 16. Condition No. 25 - (Trails). In satisfaction of Condition 25 of the Resolution, Developer hereby agrees to design, construct and provide sufficient security for the construction of the facilities set forth below: a. Facility #I: Construction of a 5-foot wide pedestrian trail from north of Olympic Parkway to EastLake Parkway to the satisfaction of the Director of Planning & Building Final alignment shall be contained within the Project or utility easement as approved by the Director of Planning and Building. Developer shall complete construction no later than the issuance of the 300th cumulative ~u;!ding permit fbr Lots 2, 3 and 4 or at a later date as approved by the Director ,' ?lanning and Building in his/her sole discretion. b. Facility #2: C,~>nstruct, in conjunction with the development of each Lot, a minimum of rme ,5-foot wide trail connection to the pedestrian trail (Facility 8 "1") to the satisfaction of the Director of Planning and Building. c. Facility#3: Construction of a 6-foot wide trail connection from Facility #1 to Park P-3 to the satisfaction of the Director of Planning & Building. Developer shall complete construction no later than the issuance of the 30ffh building permit for Lots, 2, 3 and 4 or at a later date as approved by the Director of Planning and Building at his/her sole discretion. 17. Condition No. 30 - (Detention Facilities). In partial satisfaction of Condition 30 of the Resolution, Developer hereby agrees to provide for the future maintenance of any detention basin facilities for the Project through the establishment of a Master Homeowners Association, or oilier funding mechanism as approved by the City. 18. Condition No. 38 - (Wall Maintenance). In satisfaction of Condition 38 of the Resolution, Developer hereby agrees to provide a minimum of 3 feet of fiat ground access from the face of any wall to the beginning of the slope rounding for wall maintenance, unless otherwise approved for HOA slopes by the Director of Engineering. 19. Condition No. 42 - (NPDES). In satisfaction of Condition 42 of the Resolution, Developer hereby 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 any person to vote in a secret ballot election. 20. Condition No. 44 - (NPDES). In satisfaction of Condition 44 of the Resolution, Developer hereby 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 the NPDES regulations or requirements. Further, the Developer agrees to 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 conunencement of grading activities. Tbe 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 also agrees to comply with all the provisions of the NPDES and the Clean Water Program during and after all phases of the development process, including, but not limited to. mass grading, rough grading, construction of street and landscaping improvements, and construction of dwelling units. The Developer agrees to design the Project storm drains and other drainage facilities to include Best Management 9 Practices to minimize non-point source pollution, to the satisfaction of the Director of Engineering. 21. Condition No. 45 - (Water Quality). In satisfaction of Condition 45 of the Resolution, Developer hereby agrees to obtain, prior to any Design Review approval for a residential lot development (" Lot Development") within the Project, approval of the Director of Engineering of a Water Quality Technical Report ("Report"), which identifies the permanent Best Management Practices for the proposed Lot Development. The Report shall cover the entire site where said Lot Development is being proposed. The Report shall comply with all applicable requirements of the Development and Redevelopment Project Storm Water Management Standards Requirements Manual (approved by City Council Resolution 2002-475). 22. Condition No. 46 - (Storm Water Management). In satisfaction of Condition 46 of the Resolution, Developer hereby agrees to comply with all of the applicable provisions of the Storm Water Management and Discharge Control Ordinance (Chapter 14.20 of the Chula Vista Municipal Code), the Development and Redevelopment Project Storm Water Management Standard Requirements Manual (approved by Council Resolution 2002-475), and the City of Chula Vista Standard Urban Storm Water Mitigation Plan to the satisfaction of the Director of Engineering. 23. Condition No. 47 - (BMPs). In satisfaction of Condition No. 47 of the Resolution, the Developer hereby agrees to the following: a. Construction of Treatment Control BMP Facilities. Developer hereby agrees to construct Treatment Control BMP facilities for the Project as specified in Exhibit "B" of this Agreement ("BMP Facilities"), in strict conformity and in accordance with plans and specifications approved by the Director of Engineering. Developer shall complete the construction of the BMP Facilities to the satisfaction of the Director of Engineering 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 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 fmther agrees that the requirements set forth in tiffs condition shall be in addition to Developer's obligation to construct and maintain effective post-construction BMP's as set forth elsewhere in this Agreement. b. Maintenance of BMP Facilities. Developer, hereby agrees to t!~' Co!lowing: i. Developer shall, at its sole expense, prepare and obtain the :tpproval of the City Engineer of an Operation and Maintenance Plan ("O&M Plan") concurrent with the 7L0 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 BMP 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 Director of Engineering 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 Director of Engineering 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 Director of Engineering not later than thirty (30) days after commencement of such ("Repair Completion Time"). In addition, Developer acknowledges and agrees that the Director of Engineering 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 Director of Engineering 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 Municipal 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. c. Indemnity. Developer further understands and agrees 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 on'.i?io~s of Developer, its agents or employees, or indemnitee, related to the Developer's obligations e~cribed herein. Developer further agrees to protect and hold the City, its officers and employees. 13armlcss from any and all claims, demands, causes of action, liability or loss of any sort, because c)f or arising out of acts or omissions of Developer, its agents or employees, or indenmitee, related to the Developer's obligations described herein. Such indemni- fication 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 resulting from d/version 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. 24. Condition No. 53 - (Withhold Building Permits and Hold Harmless). In satisfaction of Condition 53 of the Resolution, Developer hereby understands and 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 City, 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 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 mnended, as approved by the City's Director of Planning & Building and the Director of Engineering. 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 ampul any approval by the City including approval by its Planning Commission, City Council or m~y 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 3_2 on the further condition that the City fully cooperates in the defense. c. Permit all cable television companies frarichised by the City of Chula Vista equal oppormmty to place conduit and provide cable television service for each lot or trait within the final map area. Developer further agrees to grant, by license or easement, and for the benefit of, and to be enforceable by, the City of Chula Vista, conditional access to cable television conduit within the properties situated within the final map only to those cable television companies franchised by the City of Chula Vista, the condition of such grant being that: (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 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 detem~ined 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 deten~ination 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. 5 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 facilities and shall ~ot interfere with the right of any person to vote in a secret ballot election. h. Indemnify, and hold harmless the City, its elected a~.~ avpointed officers and employees, from and against all fines, costs, and exp:nses arising out of non- compliance with the requireinents of the NPDES r,:gtflations, in com~ection 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. 25. Condition No. 54 - (Previous Agreements). In satisfaction of Condition 54 of the Resolution, Developer hereby agrees to comply with all previous agreements as they pertain to the final map area. 26. Condition No. 55 - (Street Sweeping). In satisfaction of Condition 55 of the Resolution, Developer hereby agrees to contract with the City's current street sweeping franchisee, or other server approved by the Assistant Director of Public Works Operations (ADPWO) 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 shall 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 occurs earlier. The developer further agrees to provide the ADPWO with a copy of the memo requesting street sweeping service. Such memo shall include a map of areas to be swept and the date the sweeping will begin 27. Condition No. 56 - (Affordable Housing). In satisfaction of Condition 56 of the Resolution, Developer hereby agrees that no later than December 31, 2003, Developer shall, to the satisfaction of the City: a. Execute an agreement with an affordable housing developer for the development of Lot 1 of the Tentative Map as an affordable rental project to comply with Developer's obligation to provide such housing for low-income households; b. Submit applications to the appropriate State Agency for Multifamily Revenue Bonds and Low Income Housing Tax Credits for the development of the affordable rental project: c. Receive a financial commitment for Multifamily Revenue Bonds and Loxv Income Housing Tax Credits; and, d. Submit to the Community Development Department the required documentation demonstrating conrpliance with Developer's obligation to provide moderate-income housing. Should Developer be unable to demonstrate to tht ~atisfaction of the City compliance with items "a" through "d" herein, Developer, upon request ,~ 'be City, agrees to enter into an agreement delineating the use of alternative methods of corn ~ii,mce, such as an off-site project and/or an in- lieu contribution. 3_4 28. Condition No. 58 - (Air Quality Improvement Plan, AQIP). In satisfaction of Condition 58 of the Resolution, Developer hereby agrees to implement the final AQIP measures as approved by the City Council, and as may be amended from time to time, and to comply and remain in compliance with the Air Quality improvement Plan (AQIP). 29. Condition No. 59 - (Air Quality Improvement Plan, AQIP). In satisfaction of Condition 59 of the Resolution, Developer hereby acknowledges that the City Council may, from time-to-time, modify air quality improvement m~d energy conservation measures related to new development as various technologies mid/or programs change or become available. The Developer agrees to modify the AQIP to incorporate those new measures, which are in effect at the time, prior to or concurrent with each final map approval within the Project. 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. 30. Condition No. 60 - (Water Conservation Plan, WCP). In satisfaction of Condition 60 of the Resolution, Developer hereby 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 agrees to modify the WCP to incorporate those new measures, which are in effect at the time, prior to or concurrent with each final map approval within the Project. 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. 31. Condition No. 61 - (Noise Levels). In satisfaction of Condition 61 of the Resolution, Developer hereby agrees, prior to each DRC approval, to submit a detailed acoustical analysis to the satisfaction of the Environmental Review Coordinator and prepared by a qualified acoustical consultant that demonstrates that the building structures are adequately designed such that second-floor interior noise levels, due to exterior sources, will be at or below the 45 CNEL interior standard. Where exterior noise levels exceed 60 CNEL, additional measures shall be required to attenuate interior noise to the 45 CNEL standard in compliance with the noise mitigation measures required in the FSEIR 86-04 and FSEIR 97-04 and associated Mitigation Monitoring m~d Reporting Programs. 32. Condition No. 62 - (CFD). In satisfaction of Condition 62 of the Resolution, Developer hereby agrees to obtain City council approval of a Community Facility District (CFD) f;~.:~ation no later than 60 days of approval of the Master Final Map for the Project or as c: -:~dcd by the City in their sole discretion. The Developer agrees to submit a list of amenities, a~:'~:agc and maintenance costs for all open space lots and other improvements to be maintained b,, t~,~ vroposed CFD including the pedestrian trail. Maintenance of said public improvements shall be accomplished by the Developer for a minimum period of one year, or until such time as accepted into the open space district by the Director of Public Works Operations. If Council does not approve the CFD formation, some other financing mechanism, such as homeowners association, or an endowment shall be established and submitted to the City for consideration prior to approval of the first Design Review for lots 2, 3 or 4, or as extended by the City Engineer. Prior to the approval of the Master Final Map, the Developer agrees to submit an initial deposit of $10,000 to begin the process of formation of the Open Space District. All costs of formation mad other costs associated with the processing of the open space relating to this project shall be borne by the Developer. The Developer also agrees to provide all the necessary information and materials (e.g. tables, diagrams, etc.) required by the Director of Engineering for processing the formation of the proposed CFD 33. Condition No. 64 - (Landscape and Irrigation Maintenance). In satisfaction of Condition 64 of the Resolution, Developer hereby agrees as follows: Prior to issuance of any grading permit which includes Landscaping and Irrigation (L&I) improvements to be installed in an open space lot to be maintained by the open space district, the developer shall place a cash deposit with the City which will guarantee the maintenance of the L&I improvements until the City accepts said improvements. In the event the improvements are not maintained to City standards as determined by the Director of Engineering, Director of Public Works or the Director of Parks & Building Construction, the deposit shall be used to perform the maintenance. The amount of the deposit shall be equivalent to the estimated cost of maintaining the open space lots to City standards for a period of six months as determined by the Director of Engineering. Any unused portion of said deposit shall be incorporated into the open space district's reserve at such time as the open space district assumes the maintenance of the open space lot. 34. Condition No. 66 - (HOA Maintenance). In satisfaction of Condition 66 of the Resolution, Developer hereby agrees, prior to each design review approval, to provide proof to the satisfaction of the Director of Engineering and Director of Parks & Building Constructiun, that all improvements located on open space lots will be incorporated into and maintained by a Home O~vner's Association or an Open Space District. 35. Condition No. 67 - (Maintenance and Grant of Easements Agreement). In satisfaction of Condition 67 of the Resolution, Developer hereby agrees to enter into a maintenance and grant of easements agreement with the City to provide for the maintenance of landscaping and improvements maintained by a Homeowners Associatio~ within City right-of- way or such other public areas required by the City. 36. Condition No. 68 - (Maintenance and Grant of Easements Agreement}, in satisfaction of Condition 68 of the Resolution, Developer hereby agrees to, prior to issuanc~ of the first building permit for an apartment complex or affordable housing for Lot 1, enter into a maintenance and grant of easements agreement with the City which provides for the maintenance of all landscaping and improvements within the City right-of-way or other such public areas as required by the City to be maintained by an entity as approved by the City. 37. Condition No. 73 - (Off-site Right-of-Way and/or Easements). In satisfaction of Condition 73 of the Resolution, Developer hereby agrees to notify the City, at least 60 days prior to consideration of the approval of the applicable final map by City Council, if off-site right-of- way and easements cannot be obtained as required by the Resolution. (Only off-site right-of-way or easements affected by Section 66462.5 of the Subdivision Map Act are covered by this condition.) Developer also agrees, after said notification, to the following: a. Pay the full cost of acquiring off-site right-of-way or easements required by the Conditions of Approval of the Tentative Map. b. Deposit with the City the estimated cost of acquiring said right-of-way or easements. Said estimate is subject to the approval of the Director of Engineering. c. Have all right-of-way and/or easement documents and plats prepared and appraisals complete, as necessary to commence condemnation of proceeding, and as determined by the Director of Engineering. d. Request that the City use its powers of Eminent Domain to acquire right-of- way, easements or licenses needed for off-site improvements, or work related to the final map. The Developer shall pay all costs, both direct and indirect, incurred in said acquisition. Items a, b and c above shall be accomplished prior to the approval of the applicable final map. 38. Condition No. 77 - (Digital Submittal). In satisfaction of Condition 77 of the Resolution, Developer hereby agrees to, prior to approval of each grading, improvement and landscaping plan, submit copies of the respective grading, improvement, and landscape plans in digital format. The drawing projection shall be in California State Plane Coordinate System (NAD 83, Zone 6). The digital files shall combine all sheets into a single CADD drawing for each set of plans, in DXF? DWG or Arc View (GIS) format. The digital file shall be submitted in accordance with the City Guidelines for Digital Submittal on 3~A'' disks CDs, or as an e-mail attachment or as other~vise approved by the Director of Engineering. 39. Condition No. 79 and 80 - (Fire Access). In satisfaction of Conditions 79 and 80 of the Resolution, Developer hereby agrees prior to issuance of a building permit, or delivery of combustible materials on any construction site. whichever occurs first, to, at a minimum, provide for adequate water supply, vehicular access a~ ~ temporary street signs. Said access shall consist of minimum of first layer of hard surface :,t~' a minimum standard width of 20 feet with temporary roads allowed on a case-by-case b'~:,ig. All vehicular access must be approved by the Director of Engineering. 40. Condition No. 83 - (Clean Water Act). In satisfaction of Condition 83 of the Resolution, Developer hereby agrees to comply with all relevant Federal, State, and Local regulations, including the Clean Water Act. The developer further agrees to be responsible for providing all required testing and documentation to demonstrate said compliance as required by the Director of Engineering. 41. Condition No. 84 - (Fees). In satisfaction of Condition 84 of the Resolution, Developer hereby agrees to pay all required fees in the mount in effect at the time such fees are due, including 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 sewer connection fees. d. Interim SR-125 development impact fee e. Poggi Canyon Gravity Sewer Basin DIF 42. Condition No. 85 - (Growth Management). In satisfaction of Condition 85 of the Resolution, Developer hereby 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). 43. Condition No. 86 - (Public Facilities). In satisfaction of Condition 86 of the Resolution, Developer hereby agrees to install public facilities in accordance with the Land Swap Supplein~ntal Public Facilities Financing Plan as may be amended from time to time, or as required by the Director of Engineering to meet threshold standards adopted by the City of Chula Vista. The Director of Engineering and Director of Planning & Building may, at their discretion, modi~ the sequence of improvement construction should conditions change to warrant such a revision. 44. Condition No. 87 - (Phasing Plan). In satisfaction of Condition 87 of the Resolution, Developer hereby agrees that if multiple development phases are proposed for any lots within the Project, Developer shall submit and obtain approval for a development phasing plan by the Department of Engineering and Director of Planning & Building prior to the first Design Review approval for said lot. The phasing plan shall include: a. A site pltm showing the lot lines and lot numbers, the phase lines and phase numbers and number of dwelling units in each sub-phase, and b. A table showing the sub-phase number, the lots included in the phase m~d the number of units included in each phase. Improvements, facilities and dedications to be provided with each phase shall be determined by the Director of Engineering and Director of Planning & Building. The City reserves the right to require improvements, facilities and/or dedications as necessary to provide adequate circulation and to meet the requirements of Police and Fire Departments. The Director of Engineering and Director of Planning & Building may, at their discretion, modify the sequence of improvements and construction should conditions change to warrant such revision(s). 45. Condition No. 88 - (Home Owners Association). In satisfaction of Condition 88 of the Resolution, Developer hereby agrees to establish an HOA, or any other financing mechanism acceptable to the City for the Project. 46. Condition No. 89 - (Home Owners Association). In satisfaction of Condition 89 of the Resolution, Developer hereby agrees within 90 days of approval of the first Design Review for Lots 2, 3& 4, to submit to the City a draft copy of the HOA or other financing mechanism acceptable to the City for review by the Director of planmng &Building, Director of Parks and Building Construction and Director of Public Works. Developer shall also provide to the City satisfactory evidence demonstrating a budget sufficient to provide all required maintenance. The approved financing mechanism shall establish the responsibilities for common areas identified in Maintenance Responsibility Map to be approved prior to Master Final Map. The financing mechanism shall include the following: a. Provisions ensuring the maintenance of all private comlnon facilities located within the project including, but not be limited to: walls, fences, community theme walls, water fountains, lighting structures, paths, trails, access roads, drainage structures, water treatment facilities, .landscaping, trees, streets, parking lots, driveways, and private sewage systems. Common facilities are to be identified or labeled in an exhibit in the CC&Rs. Maintenance shall also be provided for any detention facilities for the Project. b. Provisions, which clearly indicate the responsibility of the HOA to water and maintain irrigation and planting within the public parkways and adjacent slope areas along Eastlake Parkway south of lot 1 to Olympic Parkxvay. c. Provisions, which clearly indicate the responsibility of the HOA to water and maintain irrigation and planting within all areas within the project fl'ontage along Olympic Parkway between the back of trail and top of slope including areas identified on the final map as Lot '~A" and Lot d. Language naming the City of Chula Vista as a party to the CC&Rs, x,,i*!: the authority, but not the obligation, to enforce the terms and conditions )t' CC&Rs in the same manner as any owner within the HOA. Should thc City act to enforce the terms and conditions of the CC&Rs, all costs asso~:iat~d with such action shall be paid for by the HOA. e. Before any revisions to provisions of the CC&Rs that may particularly affect the City can become effective, said revisions shall be subject to the approval of the City. The HOA 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 HOA unless otherwise approved by the Director of Planning & Building. f. The HOA 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 HOA. g. The HOA 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 owners within the HOA. h. The HOA is required to procure and maintain a policy of comprehensive 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. The policy shall not contain a cross-suit exclusion clause which would abrogate coverage should litigation ensue between insured's. i. Language assuring HOA membership in an advance notice service such as the USA Dig Alert Service in perpetuity. 47. Condition No. 90 - (Master Home Owners Association). In satisfaction of Condition 90 of the Resolution, Developer hereby agrees future property owners shall be notified during escrow by a document to be initialized by the owners of the maintenance responsibility of the HOA and their estimated aimual cost. The form of said document shall be approved by the Director of Planning & Building and the Director of Engineering prior to approval of the first Design Review for Lots 2, 3 & 4. 48. Condition No. 91 - (Private Maintenance Areas). In satisfaction of Condition 91 of the Resolution, Developer hereby agrees to designate as private and maintain by a Homeowners Association all storm drain clean outs determined by the Director of Engineering to be in areas inaccessible for maintenance equipment. 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, 7, 8, 11, 12, 13. 19.20, 21, 22, 24, 25, 30, 38, 42, 44, 45, 46, 47, 53, 54, 55, 56, 58, 59, 60, 61, 62, 64, 66, 67, 68, 73, 77, 79, 80, 83, 84, 85, 86, 87, 88.89, 90, 91 of Resolution 2003-141. 49. Unfulfilled Conditions. Developer hereby agrees, m~less otl~erwise conditioned, that Developer shall comply with all unfulfilled conditions of approval of the Tentative Map, 2O established by the Resolution and shall remain in compliance with and implement the terms, conditions and pmvisions therein. 50. Surveying Monumentafion. a. It is expressly understood and agreed that all monuments for the Final Map have been or will be installed within thirty (30) days after the completion and acceptance of the Improvement Work. b. Subdivider further agrees to furnish and deliver to the City of Chula Vista, simultaneously with the execution of this Agreement, an approved monumentation security from a sufficient surety, whose sufficiency has been approved by the City in the sum of $4,500 to secure the installation of monuments, which security is attached hereto, marked Exh/bit "C" and made a part hereof. c. It is further agreed that if the monumentation work is not completed within the time agreed herein, the sums provided by said monumentation security may be used by City for the completion of the installation of monuments 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 Director of Engineering 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 monumentation security. Subdivider agrees to pay to the City any difference between the total costs incurred to perfom~ the work, including design and administration of construction (including a reasonable allocation of overhead), and any proceeds from the monumentation security. d. 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 monumentation security in accordance with the requirements of the State Subdivision Map Act and the provisions of Title 18 of the Chula Vista Municipal Code. 51. 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/he~ ~ole discretion may, if such an assignment is requested, permit a substitution of securities !¥ t.l~e successor in interest in place and stead of the original securities described herein so long :~s such substituted securities meet the criteria for security as set ~brth elsewhere in this Agreement. Such assigmnent will be in a form approved by the City Attorney. 2~ 52. Recording. This Agreement, or an abstract hereof shall be recorded simultaneously with the recordation of the Final Map. 53. Building Permits. Developer and Guest Builders acknowledge mad 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. 54. Miscellaneous. a. Notices. Unless otherwise provided in this Agreement or by law, any and all notices required or permitted by this Agreement or by taw 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 chaa~ge 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 Chuia Vista, CA. 91910 Atto: Director of Engineering Developer: Eastlake Company, LLC 900 Lane Avenue, Suite 100 Chula Vista, CA 91914 Attn: 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. 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. 22 ?-3/ 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 draw~ bom 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 cormnences 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] [PAGE ONE OF TWO SIGNATURE PAGES TO THE SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR THE FINAL MAP OF EASTLAKE LANDSWAP RESIDENTIAL, CHULA VISTA TRACT NO. TRACT 03-04] 1N 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 Stephen C. Padilla Attest: Susan Bigelow City Clerk Approved as to form: Ann Moore City Attorney [NEXT PAGE IS PAGE TWO OF TWO SIGNATURE PAGES] 24 [PAGE TWO OF TWO SIGNATURE PAGES TO THE SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR THE FINAL MAP OF EASTLAKE LANDSWAP RESIDENTIAL, CHULA VISTA TRACT NO. TRACT 03-04] DEVELOPER/OWNER: EASTLAKE COMPANY, LLC 900 LANE AVE, SUITE 100 CHULA VISTA, CA 91914 G Curt Smith Title: Title: Vice President Vice President (Attach Notm'y Acknowledgment) 25 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California t ss. County of San Diego On April 24, 2003 beforeme, Denise M. Smith, Notary Public personally appeared Guy Asaro and Curt Smith [] personally known to me ]~] proved to me on the basis of satisfacto~/ evidence to be the persor~ whose namely)isl~ subscribed to the within ins.,,tr.~.~ent and _ acknowledged to me that he__executed the same in his/her~heir') authorized J ~ .... San ~le~e. ~__urpty ~ capacity~ and that ~ his/he,,,~ ] _ _'~'~ _/~_~m._ _ _E~(~_, 2~3_t signature~ on the instrument the persorl~.~, o_r the entity upon behalf of which the person~ acted, executed the instrument. WITNESS my hand and official seal. OPTIONAL Though the informa tion below is net 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. m~, ,.,~,,,-,~ Chula Vista Tract No. 03-04 Description of Attached ........... EL-001F Title or Type of Document: Supplemental Subdivision Improvement Agreement for the Final Map of EastLake Landswap Residenti. Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(les) Claimed by Signer Signer's Name: i [] Individual Top of ~humb here [] Corporate Officer--Title(s): [] Partner--[] Limited ~ General [] Attorney-in-Fact [] Trustee ~ Guardian or Conservator [] Other: Signer Is RepresentingL List of Exhibits SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR THE EASTLAKE LAND SWAP RESIDENTIAL Exhibit A Legal Description Eastlake Land Swap Residential Exhibit B Treatment Control BMP Facilities Exhibit C Monumentation Bond 26 Exhibit "A" Legal Description of Property Lots 1 through 4, and Lots A and B, of Chula Vista Tract No. 03-04, Eastlake Land Swap Residential in the City of Chula Vista, County of San Diego, State of California, according to Map thereof No. , filed in the Office of the County Recorder of San Diego County on _, 2003, as File No. of Official Records. 27 ?-37 Exhibit "B" 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 Director of Engineering. 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 Director of Engineering. Purpose of BMP Facilities: To provide treatment control, which will meet the requirements of the applicable provisions of the Chula Vista Mmficipal Code, Regional Water Quality Control Board Order No. 2001-01 (Mtmicipal Permit), and Chula Vista SUSMP all as 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. Exhibit "C' Monumentation Bond PAGE 1, ITEM NO.: /~ MEETING DATE: 05/13/03 CITY COUNCIL AGENDA STATEMENT ITEM TITLE: RESOLUTION OF THE CITY OF CHULA VISTA REALLOCATING $9,100 FROM FY 2002,-2003 CDBG HI-TECH/BIOTECH FEE REDUCTION PROGRAM FUNDS; APPROPRIATING SAID FUNDS FOR ECONOMIC DEVELOPMENT CONSULTANT SERVICES; AND AUTHORIZING THE COMMUNITY DEVELOPMENT DIRECTOR TO EXECUTE SAID AGREEMENT SUBMITTED BY: COMMUNITY DEVELOPMENT DIRECTOR REVIEWED BY: CITY MANAGER 4/5THS VOTE: YES ~X~ NO ~ BACKGROUND The Community Development Department has an opportunib' to retain the consulting services of one of its former employees, Ms. Shelly Bailey, who has temporarily returned to the San Diego area. During her three-year tenure in the City's Economic Development Division, Ms. Bailey gained extensive experience working with the Chula Vista business community and became a respected business development professional. Ms. Bailey has returned to San Diego on a short-term basis, and is being recommended to be hired using CDBG funds allocated for Economic Development activities to assist staff to implement several important economic development projects over the next several months. Ms. Bailey's skills in the areas of coalition building and special event coordination, combined with her established local business relationships, will be used to assist Economic Development Division staff to advance several key business recruitment and retention projeds, including re-adivating the City's business visitation program, organizing a business resource fair, initiating the development of two new cluster industry networks, coordinating a reception for targeted restaurateurs, and organizing a formal City/Chamber Blue Team launch event. The total cost of services is $31,200 to be paid entirely from CDBG funds specifically programmed for economic development adivities. This report is requesting Council to reprogram $9,100 of unencumbered FY 2002-2003 CDBG funds for a portion of the contractual services through June 30. The remaining $22,100 cost has already been approved in the FY 2003-2004 CDBG spending plan. RECOMMENDATION Staff recommends that the City Council adopt the resolution to reallocate $9,100 in unencumbered FY 2002-2003 CDBG Hi-tech/Biotech Fee Reduction Program Funds to retain Economic Development consulting services. PAGE 2, ITEM NO.: / ~ MEETING DATE: 05/13/03 BOARDS/COMMISSIONS RECOMMENDATION Not applicable. DISCUSSION It is proposed that Ms. Bailey will provide consulting services to the Economic Development Division for a period of .six months. All of the tasks provided for in the contract are included in the City's recently adopted Economic Development Strategy. Several of the tasks are behind schedule due to personnel changes (down time and transitional training) while others have had to be suspended due to other unexpected pressing priorities. The total cost, $31,200, is to be paid entirely by CDBG funds specifically programmed for economic development related activities. On May 6 Council approved $22,100 of the contract costs as part of the FY 2003-2004 CDBG Spending Plan. Staff is requesting Council to reallocate the remaining $9,100 from unencumbered FY 2002-2003 Fee Reduction Program Funds. The request to reprogram funds in the current year is to e)~pedite commencement of services to assist staff to get these projects back on schedule and meet program goals. Ms. Bailey will be paid on a per task basis. She will be paid equivalent to an hourly rate of $42.94 consistent with Council Policy 102.5. This policy requires a former employee be hired back at an hourly rate equal to or less than their former salary and benefits level. Ms. Bailey's hourly rate at the time of her departure from the City was $42.94, including benefits. In terms of CDBG eligibility, the proposed contractual services qualify under HUD regulations 570.203 (c) Special Economic Development Activities. The consultant will be providlng economic development services for marketing and outreach efforts. In addition, under section 570.200(4)(d)(1) General Policies, consultant activities are eligible for assistance in program planning activities. The marketing and outreach efforts include assistance with the FY 2003-2004 LEAP Fair and other targeted special event coordination. Program and planning activities include creating and developing ~wo industry cluster neN,,orks made up of Asian-owned businesses and export firms, respectively. FISCAL IMPACT CDBG funds in the amount of $9,100 will be transferred from the FY 2002/2003 Hi-tech/Biotech Fee Reduction Program account and transferred into the economic development program. J:\COMMDEV~STAFF.REP\05-13-03\ED Consultant revised 5-8-03.doc RESOLUTION NO. 2003- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA REALLOCAT1NG $9,100 FROM FY 2002-2003 CDBG HI-TECH/BIOTECH FEE REDUCTION PROGRAM FUNDS; APPROPRIATING SAID FUNDS FOR ECONOMIC DEVELOPMENT CONSULTANT SERVICES; AND AUTHORIZING THE COMMUNITY DEVELOPMENT DIRECTOR TO EXECUTE SAID AGREEMENT WHEREAS, the Community Development Department is responsible for creating and implementing numerous business retention, expansion and attraction efforts to build a strong and vibrant local economy; and WHEREAS, to augment the Community Development Department's current effort, the City desires to retain the consulting service of Shelly Bailey; and WHEREAS, Ms. Bailey has a high level of expertise in the field of economic development and has previously worked extensively with the Chula Vista business community; and WHEREAS, the Community Development Department will retain the consulting services provided by Ms. Bailey beginning May 14, 2003 and continuing until June 30, 2003; and WHEREAS, there are unused FY 2002-2003 funds in the Hi-tech/Biotech Fee Reduction Program in the amount orS100,000; and WHEREAS, the Community Development Department desires to reprogram $9,100 from FY 2002-2003 CDBG funds from the Hi-Tech/Biotech Fee Reduction Program to pay for these consulting services; and NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does hereby reprogram $9,100 from the FY 2002-2003 balance in the Hi-tech/Biotech Fee Reduction Program account and transfer to the economic development program. Presented by Approved as to form by Laurie Madigan A~yAt~ey- ~/ - ' Director of Community Development J:\('OMMDEV\RESOS\RESO - COUNCIl. - ED ('onsultant doc COUNCIL AGENDA STATEMENT Item: Meeting Date: 05/13/03 ITEM TITLE: Resolution of the City Council of the City of Chula Vista, approving an agreement between the City of Chula Vista; Burkett & Wong Engineers, Consultant; and Otay Project, L. P., for the preparation of a Public Facilities Financing Plan and Fiscal Impact Analysis for Otay Ranch Village Two, Three and Planning Area 18B, and authorizing the Mayor to execute said agreement. SUBMITTED BY: Director of Planning and Building ~ REVIEWED BY: City Manager ~e ~~ (4/5ths Vote: Yes No X ) The Otay Ranch Company has submitted a Sectional Planning Area (SPA) Plan for Village Two, Three and Planning Area 18B of Otay Ranch. The Otay Ranch General Development Plan and the City's Growth Management Ordinance require the preparation of a Public Facilities Financing Plan (PFFP) with each SPA Plan in order to evaluate the project under the City's Gro~vth Management Threshold Standards. The Otay Ranch Company is the applicant in the SPA Plan and will assume the full cost of the PFFP document. The City conducted a formal selective bidding process and selected the consulting services of Burkett & Wong Engineers, who are qualified to prepare the PFFP for the Otay Ranch Village Two, Three and Planning Area 18B because of their qualifications, proposed cost, knowledge of the project and past experience in PFFP preparation for Otay Ranch. The Environmental Review Coordinator has reviewed the proposed activity for compliance with the California Environmental Quality Act (CEQA) and has determined that there is no possibility that the activity may have a significant effect on the environment; therefore, pursuant to Section 15061(b)(3) of that State CEQA Guidelines, the activity is not subject to CEQA. Thus, no environmental review is necessary. RECOMMENDATION: That the City Council adopt the resolution approving an agreemem between the City of Chula Vista, Burkett & Wong Engineers and Otay Project, L. P., for consulting services related to the preparation of a PFFP and Fiscal Impact Analysis for Village Two, Three and Planning Area 18B of Otay Ranch, and authorizing the Mayor to execute said agreement. BOARDS/COMMISSIONS RECOMMENDATION: N/A Page 2, Item: ! ! Meeting Date: 05/13/03 DISCUSSION: Background The Otay Ranch General Development Plan (GDP) and the City's Growth Management Ordinance require the preparation of a PFFP for all SPA Plans in the Otay Ranch. The PFFP is required to evaluate the proposed projects in relationship to the City's Growth Management Threshold Standards to ensure that the City's standards are maintained through the development of the SPA Plan. The Planning and Building Department staff is currently reviewing and processing the SPA Plan for Otay Ranch Village Two, Three and Planning Area 1BB. Consultant Services Selection Process On May 14, 2002, the Planning Division sent the four £u~ms on the list of qualified consultants a Request for Proposal to prepare the PFFP for Otay Ranch Village Two, Three and Planning Area 18B. Only three fu-ms responded: Burkctt & Wong Engineers, MuinFinanaciat, and Leppert Engineering. Staff conducted a formal selective bidding process, and selected the firm of Burkett & Wong Engineers to prepare the PFFP for the Village Two, Three and Planning A~ca 18B SPA Plan because of their qualifications, proposed cost, knowledge of the project and past experience in PFFP preparation. The consultant represents that they are experienced and staffed in a manner that they can prepare and deliver the required services to the City within the necessary time flames. The Planning Division staff has negotiated the details of this agreement in accordance with procedures set forth in Section 2.56.110 of the Chula Vista Municipal Code. Burkett & Wong proposed to do this work for $66,800. S6ope-of-Work Under the agreement, which is based on the City's standard three-party agreement, Burkett & Wong will perform tasks associated with the scope-of-work for the preparation of a PFFP Otay Ranch Village Two, Three and Planning Area 18B. The scope-of-work includes tasks such: · Research and Analysis: The consultant will gather and review alt data and available documents. The consultant will meet with City staff to discuss any issues as well. Confn'mation of the project's statistics and criteria will be confirmed at this stage as well. · Facilities Analysis: The consultant will initiate and prepare an independent analysis of short-term and long-term impact of the project on public facilities. In addition, the consultant will evaluate the project's compliance with the City's adopted Growth Management threshold Standards. Page 3, Item: ! I Meeting Date: 05/13/03 Fiscal Impact Analysis: The consultant will conduct a fiscal impact analysis that will address the costs and revenues associated with the development of the project and its relationship with the City of Chula Vista General Fund. The fiscal analysis will utilize a financial "model" that will utilize the City's most current budget and fiscal costs and revenues on an annual basis. · Traffic Study: Linscott, Law and Greenspan is currently under contract to complete a traffic study for the Project. Part of the traffic study will be utilized for analysis in the PFFP. The traffic study is an important component of the PFFP. · Preparation of PFFP and Public Hearings: The consultant will complete preparation of the PFFP document and be in attendance at all public hearings. A copy of the proposed agreement is attached hereto. FISCAL IMPACT: The preparation of this PFFP will not result in an impact to the City's General Fund. Otay Ranch, L.P., will compensate the consultant at the applicants' sole cost and expense. The total amount for the contract is $66,800.00 for Burkett & Wong's consultant services. Attachments 1. Locator Map 2. Agreement between the City of Chula Vista, Burkett & Wong, McMillin Omy ranch LLC and Otay Project LLC to Prepare Public Facilities Financing Plan for the Otay Ranch Village Two, Three and Planning Area 18B SPA Plan. Village Rd 1 Village 1 West OTAY RANCH Villag, 7 \ Heritage 4 ,~ Rd. Village Village s Area I 3 NAP Otay Mesa Exhibit 2 Vicinity Map Otay Ranch Sectivnal Planning Area ¼'llage Two, Three & Planning Area 18b RESOLUTION NO. 2003- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA, APPROVING AN AGREEMENT BETWEEN THE CITY OF CHULA VISTA; BURKETT & WONG ENGINEERS, CONSULTANT; AND OTAY PROJECT, L.P., FOR THE PREPARATION OF A PUBLIC FACILITIES FINANCING PLAN AND FISCAL IMPACT ANALYSIS FOR OTAY RANCH VILLAGE TWO, THREE AND PLANNING AREA 18B AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT. WHEREAS, Otay Prqiect. l,.P.~ ("Applicant") has submitted a Sectional Planning Area (SPA) Plan for Otay Ranch Village Two, Three and Planning Area 18B ("Property"); and, WHEREAS, a Public Facilities Financing Plan is required for the Project; and, WHEREAS, public notice of thc rcquired consulting services was given to the consultants included on thc City's list ol' prospective consultants for preparation of a Public Facilities Financing Plan (PFFP)/Fiscal Impact Analysis (FIA), inviting prospcctive consultants to submit proposals for preparation of the Village Two, Three and Planning Area 18B SPA PFFP/FIA; and, WHEREAS, the City conducted a formal selective bidding process and selected tile consulting services of Burkett & Wong Engineers, who are qualified to prepare the PFFP for the Otay Ranch Village Two, Three and Planning Area 18B since they have prepared PFFP's for other Otay Ranch SPA Plans immediately east of the proposed site and have the technical expertise to do so; and. WHEREAS, the selection committee, which, bas in accordance with Section 2.56.110 of tile Chula Vista Municipal Code, recommended Burkett & Wong Engineers as the Consultant, to perform the required scrvices for the City; and, WHEREAS, the Contract Administrator has negotiated the details of this Agreement in accordance with procedures set forth in Sections 2.56.110 of the Chula Vista Municipal Code; and, WHEREAS, the Applicant will be responsible for all costs and expenses under the agreement; and, WHEREAS, tbc Environmental Rcvicw Coordinator has reviewed the proposed activity for compliance witb the California Environmental Quality Act (CEQA) and has determined that there is no possibility that tile activity may have a significant effect on the environment; therefore, pursuant to Section 15061(b)(3) of that State CEQA Guidelines, the activity is not subject to CEQA. Thus, no environmental review is necessary. NOW, THERFORE, BE IT RESOLVED the City Council of the City of Chula Vista does hereby approve the agreement between the City of Chula Vista; Burkett & Wong Engineers, Consultant and Otay Project, L.P., For the preparation of a Public Facilities Financing Plan tbr Otay Ranch Village Two, Three and Planning Area 18B SPA Plan, a copy of which shall be kept on filc 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 executc said Agreement for and on behalf of the City of Chula Vista. Presented by Approved as to form by Robert A. Leiter Ann Director ol'Planning and Building 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 c City Attorney Dated: ff'- ~ ~ - cv ~ Three party agreement between City of Chula Vista Burkett & Wong, Engineers and Otay Project, L.P. for consulting work to be rendered in preparation of a Public Facilities Financing plan(PFFP) and Fiscal Impact Analysis for the Applicant's Otay Ranch Village Two, Three and Planning Area 18B Sectional Planning Area (SPA) Plan Project. 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 &'Ahn Moore fJ City Attorney Dated: ~ -~ o~-'~ 0 ~ Three Party Ageeement between City of chula Vista, Burket~ & Wong Engin.ers, (Consultant), ai~d O.ay Projec_, L.P. (Applicant) for Co~multing Work bo be rendered in prepa.ation of a Public Facilities Financing Plan (PFFP) and Fiscal Impact Analysis for ~he Applicant's 0ta~ Ranch V.11ag. Two, Three, and Planning Area 18B Secti~n_l Planning Area (SPA) Plan Project Attachment//2 Three-Party Agreement Between City of Chula Vista, Burkett & Wong Engineers, (Consultant), and Otay Project, L. P., (Applicant) For Consulting Work to be Rendered in Preparation of a Public Facilities Financing Plan (PFFP) and Fiscal Impact Analysis for the Applicant's Otay Ranch Village Two, Three and Planning Area 18B Sectional Planning Area (SPA) Plan Project 1. Parties. This Agreement is made as of the reference date set forth in "Exhibit A", attached hereto, for the purposes of reference only, and effective as of the date last executed by the parties hereto, between the City of Chula Vista ("City") herein, a municipal corporation of the State of California, the consulting firm of Burkett and Wong Engineers desig hated on the attached Exhibit A as "Consultant", whose business form and address is indicated on the attached Exhibit A, and the person designated on the attached Exhibit A as "Applicant," Otay Project, L.P., whose business form and address is indicated on the attached Exhibit A, and is made with reference to the following facts: 2. Recitals, Warranties and Representations. 2.1. Warranty of Ownership. Applicant warrants that Applicant is the owner of land ("Property") commonly known as, or generally located as described in Exhibit A, Paragraph 1, or has an option or other entitlement to develop said Property. 2.2. Applicant desires to develop the Property with the Project described on Exhibit A, Paragraph 2, and in that regard, has made application ("Application") with the City for approval of the plan, map, zone, or other permits ("Entitlements") described in Exhibit A, Paragraph 3. 2.3. In order for the City to process the Application of Applicant, Work of the general nature and type described in Exhibit A, Paragraph 4, ("Work") will need to be completed. 2.4. City does not presently have the "in-house" staff or resources to process the application within the time frame requested for review by the Applicant. 2.5. This Agreement proposes an arrangement by which Applicant shall retain, and be Otay Ranch Village Two, Three and Planning Area 18B PFFP Three Party Agreement 5/6/03 Page 1 liable for the costs of retaining, Consultant, who shall perform the services required of Consultant by this Agreement solely to, and under the direction of, the City. 2.6. Additional facts and circumstances regarding the background for this Agreement are set forth on "Exhibit B". 3. Agreement. NOW, THEREFORE, IT IS MUTUALLY AGREED TO AND BETWEEN THE CITY, CONSULTANT AND APPLICANT AS FOLLOWS: 3.1. Employment of Consultant by Applicant. Consultant is hereby engaged by the Applicant, not the City, and at Applicant's sole cost and expense, to perform to, and for the primary benefit of, City, and solely at City's direction, all of the services described in the attached Exhibit A, Paragraph 4, entitled "General Nature of Consulting Services," ( "General Services"), and in the process of performing and delivering said General Services, Consultant shall also perform to and for the benefit of City all of the services described in Exhibit A, Paragraph 5, entitled "Detailed Scope-of-Work," ("Detailed Services"), and all services reasonable necessary to accomplish said General Services and Detailed Scope-of- Work, and shall deliver such documents required ("Deliverables") herein, all within the time frames herein set forth, and in particular as set forth in Exhibit A, Paragraph 7, and if none are set forth, within a reasonable period of time for the diligent execution of Consultant's duties hereunder. Time is of the essence of this covenant. The Consultant does hereby agree to perform said General and Detailed Services to and for the primary benefit of the City for the compensation herein fixed to be paid by Applicant. In delivering the General and Detailed Services hereunder, the Consultant shall do so in a good, professional 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, at its own cost and expense except for the compensation and/or reimbursement, if any, herein promised, and shall furnish all of the labor, technical, administrative, professional and other personnel, all supplies and materials, machinery, equipment, printing, vehicles, transportation, office space and facilities, calculations, and all other means whatsoever, except as herein otherwise expressly specified to be furnished by the City or Applicant, necessary or proper to perform and complete the work and provide the Services required of the Consultant. 3.2. Compensation of Consultant. Applicant shall compensate Consultant for all services rendered by Consultant without regard to the conclusions reached by the Consultant, and according to the terms and conditions set Otay Ranch Village Two, Three and Planning Area 18B PFFP Three Party Agreement 5/6/03 Page 2 forth in Exhibit C adjacent to the governing compensation relationship indicated by a "checkmark" next to the appropriate arrangement, by paYing said amount to the City, within fifteen (15) days of Consultant's billing, or in accordance with the security deposit provisions of Paragraph 3.3 and Exhibit C, if checked, and upon receipt of such payment by the City, City shall promptly, not later than fifteen (15) days, or in accordance with the Bill Processing procedure in Exhibit C, if checked, pay said amount to the Consultant. City is merely acting in the capacity as a conduit for payment, and shall not be liable for the compensation unless it receives same from Applicant. Applicant shall not make any payments of compensation or otherwise directly to the Consultant. 3.2.1. Additional Work. If the Applicant, with the concurrence of City, determines that additional services ("Additional Services") are needed from Consultant of the type Consultant is qualified to render or reasonably related to the Services Consultant is otherwise required to provide by this Agreement, the Consultant agrees to provide such additional services on a time and materials basis paid for by Applicant at the rates set forth in Exhibit C, unless a separate fixed fee is otherwise agreed upon in writing for said Additional Work between the parties. 3.2.1.1. In the event that the City shall determine that additional work is required to be performed above and beyond the scope of work herein provided, City will consult with Applicant regarding the additional work, and if thereupon the Applicant fails or refuses to arrange and pay for said Additional Services, the City may, at its option, suspend any further processing of Applicant's Application until the Applicant shall depo sit the City's estimate of the costs of the additional work which the City determines is or may be required. Applicant shall pay any and all additional costs for the additional work. 3.2.2. Reductions in Scope-of-Work. City may independently, or upon request from Consultant, from time to time reduce the 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. Upon failure to agree, the Fixed Fee may be unilaterally reduced by the City by the amount of time and materials budgeted by Consultant for the Services deleted. 3.3. Security for Payment of Compensationb¥ Applicant. 3.3.1. Deposit. As security for the payment of Consultant by Applicant, Applicant shall, upon execution of this Agreement, deposit the amount indicated in Exhibit C as "Deposit Amount" with the City, as trustee for Consultant, the conditions of such trust being as indicated in Exhibit C and as hereinbelow set forth: 3.3.1.1 Other Terms of Deposit Trust. Otay Ranch Village Two, Three and Planning Area 18B PFFP Three Party Agreement 05/13/03 Page 3 3.3.1.1.1. City shall also be entitled to retain from said Deposit all costs incurred by City for which it is entitled to compensation by law or under the terms of this Agreement. 3.3.1.1.2. All interest earned on the Deposit Amount, if any, shall accrue to the benefit of, and be used for, Trust purposes. City may, in lieu of deposit into a separate bank account, separately account for said deposit in one or more of its various bank accounts, and upon doing so, shall proportionately distribute to the Deposit Trust, the average interest earned during the period on its general fund. 3.3.1.1.3. Any unused balance of Deposit Amount, including any unused interest earned, shall be returned to Applicant not later than thirty (30) days after the termination of this Agreement and any claims resulting therefrom. 3.3.1.1.4. Applicant shall be notified within thirty (30) days after the use of the Deposit in any manner. Nothing herein shall invalidate use of the Deposit in the manner herein authorized. 3.3.1.1.5. At such time as City shall reasonably determine that inadequate funds remain on Deposit to secure future compensation likely due Consultant or City, City may make demand of Applicant to supplement said Deposit Amount in such amount as City shall reasonably specify, and upon doing so, Applicant shall, within thirty (30) days pays said amount ("Supplemental Deposit Amount") to City. Said Supplement Deposit Amount or Amounts shall be governed by the same terms of trust governing the original Deposit. 3.3.2. WithholdingofProcessing. InadditiontouseoftheDepositassecurity, in order to secure the duty of Applicant to pay Consultant for Services rendered under this Agreement, City shall be entitled to withhold processing of Applicant's application upon a breach of Applicant's duty to compensate Consultant. 4. Non-Service Related Duties of Consultant. 4.1. Insurance. Consultant represents that it and its agents, staff and subconsultants employed by it in connection with the Services required to be rendered, are protected against the risk of loss by the following insurance coverages, in the following categories, and to the limits specified, policies of which are issued by Insurance Companies that have a Best's Rating of "A", Class "V" or better, or shall meet with the approval of the City: 4.1.1. Statutory Worker's Compensation Insurance coverage in the amount set forth in the attached Exhibit A, Paragraph 10. Otay Ranch Village Two, Three and Planning Area 18B PFFP Three Party Agreement 05/13/03 Page 4 4.1.2. Commer.cial General Liability Insurance including Business Automobile Insurance coverage in the amount set forth in Exhibit A, Paragraph 10, combined single limit applied separately to each project away from premises owned or rented by Consultant, which names City and Applicant 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 and Applicant in the same manner as members of the general public ("Cross-liability Coverage"). 4.1.3. Errors and Omissions insurance, in the amount set forth in Exhibit A, Paragraph 10, unless Errors and Omissions coverage is included in the General Liability policy. 4.2. Proofof Insurance Coverage. 4.2.1. Certificatesoflnsurance. 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. 4.2.2. 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, Otay Project, L.P., demonstrating same and naming Otay Project, L.P., and the City of Chula Vista as additional insureds. 4.3. Public Statements. All public statements and releases to the news media shall be the responsibility of the City and the Applicant. The Consultant shall not publish or release news items, articles or present lectures on the Project, either during the course of the study or after its completion, except on written concurrence of the City and Applicant. 4.4. communication to Applicant. Consultant shall not communicate directly to the Applicant except in the presence of the City, or by writing an exact copy of which is simultaneously provided to City, except with the express consent of City. The Consultant may request such meetings with the Applicant to ensure the adequacy of services performed by Consultant. Otay Ranch Village Two, Three and Planning Area 18B PFFP Three Parly Agreement 05/13/03 Page 5 5. Non-Compensation Duties of the Applicant. 5.1. Documents Access. The Applicant shall provide to the Consultant, through the City, for the use by the Consultant and City, such documents, or copies of such documents requested by Applicant, wit bin the possession of Applicant reasonably useful to the Consultant in performing the services herein required of Consultant, including but not limited to those described in Exhibit A, Paragraph 7. 5.2. Property Access. The Applicant hereby grants permission to the City and Consultant to enter and access the Property, provided that the applicant is given forty-eight (48) hours notice prior to the City or consultant entering the properly, to take any borings, make any tests, conduct any surveys or reconnaissance necessary to deliver the Services of Consultant, subject to the approval of the Applicant. Consultant shall promptly repair any damage to the subject property occasioned by such entry and shall indemnify, defend, and hold Applicant harmless from all loss, cost, damage, expenses, claims, and liabilities in connection with or arising from any such entry and access. 5.3. Communication to Applicant. Consultant shall not communicate directly to the Applicant except in the presence of the City, or by writing an exact copy of which is simultaneously provided to City, except with the express consent of City. The Consultant may request such meetings with the Applicant to ensure the adequacy of services performed by Consultant. 6. Administrative Representatives. Each party designates the individuals ("Administrators") indicated in Exhibit A, Paragraph 8, as said party's contract administrator who is authorized by said party to represent them in the routine administration of this Agreement. 7. Conflicts of Interest. 7.1. Consultant is Designated as an FPPC Filer. If Consultant is designated in Exhibit A, Paragraph 9, 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 his economic interests to the City Clerk on the required Statement of Economic Interests in such reporting categories as are specified in Paragraph 9 of Otay Ranch Village Two, Three and Planning Area 18B PFFP Three Party Agreement 05/13/03 Page 6 Exhibit A, or if none are specified, then as determined by the City Attorney. 7.2. 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. 7.3. 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. 7.4. Promise Not to Acquire Conflicting Interests. Regardless of whether Consultant is designated as a 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. 7.5. 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. 7.6. 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 the property which is the subject matter of the Project, or in any property within 10 radial miles from the exterior boundaries of the property which is the subject matter of the Project, or ("Prohibited Interest"). Consultant further warrants and represents that no promise of future employment, Otay Ranch Village Two, Three and Planning Area 18B PFFP Three Party Agreement 05/13/03 Page 7 remuneration, consideration, gratuity or other reward or gain has been made to Consultant or Consultant Associates by Applicant or by any other party as a result of 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 twelve (12) months thereafter. Consultant agrees that Consultant shall not acquire any such Prohibited Interest within the Term of this Agreement, or for twelve (12) months after the expiration of this Agreement. 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. 8. Default of the Consultant for Breach. This Agreement may be terminated by tht: City for default if the Consultant breaches this Agreement or if the Consultant refuses or fails to pursue the work under this Agreement or any phase of the work with such diligence which would assure its completion within a reasonable period of time. Termination of this Agreement because of a default of the Consultant shall not relieve the Consultant from liability of such default. 9. City's Right to Terminate Agreement for Convenience, Documents. 9.1. Notwithstanding any other section or provision of this Agreement, the City shall have the absolute right at any time to terminate this Agreement or any work to be performed pursuant to this Agreement. 9.2. In the event of termination of this Agreement by the City in the absence of default of the Consultant, the City shall pay the Consultant for the reasonable value of the services actually performed by the Consultant up to the date of such termination, less the aggregate of all sums previously paid to the Consultant for services performed after execution of this Agreement and prior to its termination. 9.3. The Consultant hereby expressly waives any and all claims for damage or compensation arising under this Agreement, except as set forth herein, in the event of such termination. 9.4. In the event of termination of this Agreement, and upon demand of the City, the Consultant shall deliver to the City, all field notes, surveys, studies, reports, plans, drawings and all other materials and documents prepared by the Consultant in performance of this Agreement, and all such documents and materials shall be the property of the City; provided however, that the Consultant may retain copies for their own use and the City shall provide a copy, at Applicant's cost, of all such documents to the Applicant. Otay Ranch Village Two, Three and Planning Area 18B PFFP Three Party Agreement 05/13/03 Page 8 9.5. Applicant shall have no right to terminate Consultant, and shall not exercise any control or direction over Consultant's work.. 10. Administrative Claims Requirement and Procedures. No suit shall be brought arising out of this Agreement, against the City, unless a claim has first been presented in writing and filed with the City of Chula Vista and acted upon by the City of Chnla Vista in accordance with the procedures set forth in Chapter 1.34 of the Chula Vista Municipal Code, the provisions of which are incorporated by this reference as if set fully set forth herein. 11. Hold Harmless and Indemnification. 11.1. Consultant to Indemnify City and Applicant re Injuries. Consultant shall defend, indemnify, protect and hold harmless the City, its elected and appointed officers and employees and Applicant 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 employees, subcontractors, or others of City or Applicant 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, or Applicant, Consultant's indemnification shall include any and all costs, expenses, attorneys' fees and liability incurred by the City, its officers, agents, or employees or Applicant 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 or Applicant, defend any such suit or action brought against the City, its officers, agents, or employees or Applicant. Consultants' indemnification of City and Applicant shall not be limited by any prior or subsequent declaration by the Consultant. 11.2. Applicant to Indemnify City re Compensation of Consultant. Applicant agrees to defend, indemnify and hold the City harmless against and from any and all claims, losses, damages, expenses or expenditures of City, including its elected officials, officers, employees, agents, or representatives of the City ("City Indemnitees"), in any way resulting from or arising out of the refusal to pay compensation as demanded by Consultant for the performance of services required by this Agreement. Otay Ranch Village Two, Three and Planning Area 18B PFFP Three Party Agreement 05/13/03 Page 9 12. Business Licenses. Applicant agrees to obtain a business license from the City and to otherwise comply with Chula Vista Municipal Code, Title 5. Applicant further agrees to require Consultant to obtain such business license and to comply with Chula Vista Municipal Code, Title 5. 13. Miscellaneous. 13.1. Consultant not authorized to Represent City. Unless specifically authorized in writing by City, neither Consultant nor Applicant shall have authority to act as City's agent to bind City to any contractual agreements whatsoever. 13.2. 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 for the parties in Exhibit A. 13.3. Entitlement to Subsequent Notices. No notice to or demand on the parties for notice of an event not herein legally required to be given shall in itself create the right in the parties to any other or further notice or demand in the same, similar or other circumstances. 13.4. 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 instmment in writing executed by the party against which enforcement of such amendment, waiver or discharge is sought. 13.5. 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; that all resolutions or other actions have been taken so as to enable it to enter into this Agreement. Otay Ranch Village Two, Three and Planning Area 18B PFFP Three Party Agreement 05/13/03 Page I0 13.6. 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 Chnla Vista, or as close thereto as possible. Venue for this Agreement, and performance hereunder, shall be the City of Chula Vista. 13.7. Modification. No modification or waiver of any provision of this Agreement shall be effective unless the same shall be in writing and signed by the parties hereto, and then shall be valid only in the specific instance and for the purpose for which given. 13.8. Counterparts. This Agreement may be executed in more than one counterpart, each of which shall be deemed to be an original but all of which, when taken together shall constitute but one instrument. 13.9. Severability. In the event that any provision of this Agreement shall for any reason, be determined to be invalid, illegal, or unenforceable in any respect, the parties hereto shall negotiate in good faith and agree to such amendments, modifications, or supplements to this Agreement or such other appropriate action as shall, to the maximum extent practicable in light of such determination, implement and give effect to the intentions of the parties as reflected herein. 13.10. Headings. The captions and headings in this Agreement are for convenience only and shall not define or limit the provisions hereof. 13.11. Waiver. No course of dealing or failure or delay, nor the single failure or delay, or the partial exercise of any right, power or privilege, on the part of the parties shall operate as a waiver of any rights herein contained. The making or the acceptance of a payment by either party with knowledge of the existence of a breach shall not operate or be construed to operate as a waiver of any such breach. Otay Ranch Village Two, Three and Planning Area 18B PFFP Three Party Agreement 05/13/03 Page 11 13.12. Remedies. The rights of the parties under this Agreement are cumulative and not exclusive of any rights or remedies which the parties might otherwise have unless this Agreement provides to the contrary. 13.13. No Additional Beneficiaries. Despite the fact that the required performance under this Agreement may have an affect upon persons not parties hereto, the parties specifically intend no benefit therefrom, and agree that no performance hereunder may be enforced by any person not a party to this Agreement. Notwithstanding the foregoing, this is a three party agreement and the City is an express third party beneficiary of the promises of Consultant to provide services paid for by Applicant. (End of Page. Next Page is Signature Page.) Otay Ranch Village Two, Three and Planning Area 18B PFFP Three Party Agreement 05/13/03 Page 12 Signature Page Three-Party Agreement Between City of Chula Vista, Burkett & Wong Engineers, (Consultant), and Otay Project, L. P., (Applicant) For Consulting Work to be Rendered in Preparation of a Public Facilities Financing Plan (PFFP) and Fiscal Impact Analysis for the Applicant's Otay Ranch Village Two, Three and Planning Area 18B Sectional Planning Area (SPA) Plan Project NOW THEREFORE, the parties hereto, having read and understood the terms and conditions of this Agreement, do hereby express their consent to the terms hereof by setting their hand hereto on the date set forth adjacent thereto. Dated: City of Chula Vista by Steve Padilla, Mayor Approved as to Form: by: Ann Moore, City Attorney Dated: .~/]//)~ Consultant: / t Dated: ¢/~/~)'2fl Applicant: Otay Project, L.P. a California limited liability company Otay Ranch Village Two, Three and Planning Area 18B PFFP Three Party Agreement 05/13/03 Page 13 Exhibit A Reference Date of Agreement: Date Agreement signed by City of Chula Vista Effective Date of Agreement: Date Agreement signed by City of Chula Vista City of Chula Vista, 276 Fourth Avenue, Chula Vista, CA 91910 Consultant: Burkett and Wong Engineers Associates Business Form of Consultant: ( ) Sole Proprietorship ( ) Partnership (X) Corporation Address: 3434 Fourth Avenue, San Diego California 92103 Applicant: Otay Project, L.P., a California Limited Partnership Business Form of Applicant: ( ) Sole Proprietorship (X) Partnership ( ) Corporation Address: 350 West Ash Street, Suite 730, San Diego, CA 92101 1. Property (Commonly known address 6r General Description): The Village Two, Three and Planning Area 18B Sectional Planning Area (SPA), which consists of approximately 1,040.0 acres located in the Otay Valley Parcel of Otay Ranch, south of Olympic Parkway, east of the Otay Landfill, west of the future extension of La media Road and north of Main Street/Otay Valley Road. 2. Project Description ("Project"): Preparation of a new Public Facilities Financing Plan (PFFP) including a Fiscal Impact Analysis (FIA) for the 1,040.0-acre Village Two, Three and Planning Area 18B Property as required by the City's Growth Management Ordinance in conjunction with the concurrent processing of the requested amendments to the City's General Plan and the Otay Ranch General Development Plan, and the formulation of a new Sectional Planning Area (SPA) Plan for the Otay Ranch Village Two, Three and Planning Area 18B PFFP Three Party Agreement 05/13/03 Page 14 Village Two, Three and Planning Area 18B. 3. Entitlements applied for: a) New Sectional Planning Area (SPA) Plan and associated regulatory documents, including, but not limited to the following: 1) Village Design Plan; 2) Planned Commnnity District Regulations; 3) Air Quality Improvement Plan; 4) Water Conservation Plan; 5) Affordable Housing Plan; 6) Public Facilities Financing Plan; b) Second Tier Environmental Impact Report c) Tentative Subdivision Map for Village Two, Three and Planning Area 18B. 4. General Nature of Consulting Services ("Services--General"): Prepare the Public Facilities Financing Plan (PFFP) and Fiscal Impact Analysis (FIA) for the Village Two, Three and Planning Area 18B SPA Plan to identify the amount, location, timing and financing mechanisms necessary to build and deliver required public facilities and services to the project, and to identify the overall, net fiscal impact that the project will have on the City in terms of revenues and expenditures and to meet the City of Chula Vista Municipal Code Requirements. The Village Two, Three and Planning Area 18B PFFP shall consist of an independent evaluation of the project's compliance with the City's adopted Growth Management Threshold Standards at buildout of the project, as well as during its phasing, and provide an assessment of the probable short- and long-term impacts on those standards, along with recommendations to mitigate the identified impacts, and the timing for installation/delivery of necessary facilities and services. The FIA component of the Village Two, Three and Planning Area 18B PFFP shall consist of an independent evaluation of the project's fiscal impacts on the operation and maintenance budgets of the City (General Fund). The FIA will address the costs and revenues to the City as a result of providing infrastructure and services to the Village Two, Three and Planning Area 18B Project. 5. Detailed Scope of Work ("Detailed Services"): The following tasks shall be performed by the consultant to the satisfaction of the Director of Planning and Building: Public Facilities Financing Plan (PFFP) - Task A: Preliminary Research/Data Gathering Gather and review all available data regarding the Village Two, Three and Planning Area Otay Ranch Village Two, Three and Planning Area 18B PFFP Three Party Agreement 05/13/03 Page 15 //-.23 18B project, including the existing Otay Ranch General Development Plan, and related documents, and any conditions of approval; the technical studies prepared for the project; PFFP's for other eastern Chula Vista projects; Master Facilities plans; related tentative maps and associated conditions of approval; related City Resolutions; current environmental impact reports with all related back-up technical reports; and any other environmental documentation including prior EIR's. Hold meetings with City staff, the applicant or their consultants, and affected agencies as necessary to gather and review data. Task B: Identify and Describe Facilities and Services Impact. Following the review of the available data, identify in writing, (at ftrst draft of the PFFP) facilities and services that may be impacted by the Village Two, Three and Planning Area 18B SPA pursuant to the adopted City Growth Management Threshold Standards; provide in writing, (at first draft of the PFFP) a preliminary cost estimate for the new and/or upgraded infrastructure and services required both on-site and off-site to support the Village Two, Three and Planning Area 18B SPA; and identify costs, (at first draft of the PFFP) and financing methods for that infrastructure and services. The cost estimate for the new and/or upgraded infrastructure and services analysis shall summarize the impact fees and any fee credits as applicable, and shall coordinate with and incorporate any other relevant fiscal impact data, evaluations or recommendations arising from the Fiscal Impact Analysis (FIA). The analysis described above shall consider both the amount of development within the Village Two, Three and Planning Area 18B SPA, as well as that within other projects in eastern Chula Vista, which are forecast to develop within the same time frame as the Village Two, Three and Planning Area 18B SPA, and shall analyze conditions during the phasing of the Village Two, Three and Planning Area 18B SPA and at buildout of the project. Task C: Independent Evaluation and Recommendations to Mitigate Impacts. Conduct an independent evaluation of the Village Two, Three and Planning Area 18B project's compliance with the adopted City Threshold Standards and provide in writing, (at first draft of the PFFP) an assessment of the probable short-and long-term impacts as well as recommendations to mitigate impacts and maintain compliance with the City's Growth Management Threshold Standards. Task D: Attendance at meetings and other coordination The Consultant (and any of their subcontractors) shall attend one public forum, and up to two Planning Commission hearings and two City Council hearings. These are in addition to meetings with City staff, coordination with EIR consultant, or others as the Planning Department deems necessary to complete the work. Attendance at said meetings or other methods of Otay Ranch Village Two, Three and Planning Area 18B PFFP Three Party Agreement 05/13/03 Page 16 coordination is required of the Consultant on an as needed basis as determined by the City, given sufficient lead-time (minimum 5 days) for the Consultant to schedule such coordination. It is further anticipated that informal coordination will take place between the Consultant and the EIR consultant at various times throughout the process. Task E: Preparation of Draft and Final PFFP Documents Prepare a Preliminary Draft, Draft and Final Public Facilities Financing Plan (PFFP) for the Village Two, Three and Planning Area 18B project, including but not limited to the statistical tables, exhibits, text, public facilities and services phasing, methods of financing public facilities and services, and other pertinent items to ensure that the Village Two, Three and Planning Area 18B project would have the necessary infrastructure and services prior to or concurrent with need. The Consultant shall deliver the requisite number of copies, which will include incorporation of staff comments, of the Preliminary Draft, Draft and Final PFFP documents as set forth in Paragraph 6. Fiscal Impact Analysis (FIA) - Task F: Preliminary Research Gather and review all available and relevant data regarding the Village Two, Three and Planning Area 18B SPA's impact upon the operation and maintenance budgets of the City and its General Fund, and considering the current information associated with the City's Fiscal Year 2003 -2004 budget. Gather and review information from the Applicant regarding the land uses, residential product types, and phasing and buildout schedules for the SPA. This shall include as many meetings with City staff and administrators, and the applicant or their consultants as are necessary to gather and review the data. Task G: Identify and Describe Fiscal Impacts Conduct an analysis utilizing CIC Research, Inc. 's fiscal impact model and methodology recently developed in conjunction with analyses for recent Otay Ranch projects. Update the noted model with Fiscal-Year 2002 data and customize it as necessary to fit the characteristics of the Village Two, Three and Planning Area 18B. Analyze and address the fiscal impacts that the Village Two, Three and Planning Area 18B SPA will have upon the City's operation and main. tenance budgets considering the costs and revenues to the City in providing infrastructure and services to, and as a result of, the Village Two, Three and Planning Area 18B SPA. Contact City Department heads and staff as necessary to help identify any unique conditions or problems with providing infrastructure and services to the project, including those that may be associated with annexation. Otay Ranch Village T~vo, Three and Planning Area 18B PFFP Three Party Agreement 05/13/03 Page t7 The analyses shall be presented (at first draft of the PFFP) in both written and tabular format, and shall present City revenues and expenditures annually based upon the project's development absorption schedule, and the according fiscal surpluses and deficits. Task H: Incorporation of FIA into Draft PFFP document Prepare a Draft Fiscal Impact Analysis Report for incorporation into the PFFP document for review by City staff and any affected agency in the requisite number of copies and per the schedule presented in Paragraph 6. Prepare a Final Fiscal Impact Analysis to be incorporated into the PFFP document. Task I: Revise Drafts as City Determines Necessary The consultant shall prepare revisions to the satisfaction of City Staff to PFFP document based upon comments received from City Staff, Planning Commission and City Council and any other comments from outside agencies or individuals. Said revisions shall be incorporated into the appropriate draft or final document as outlined in paragraph 6 below under "Dates or Time Limits for Delivery of Deliverables". Task J: Draft Tentative Map Conditions of Approval The Consultant shall prepare draft conditions of approval for the tentative map for Village Two, Three and Planning Area 18B based on the threshold analysis of the PFFP. · 6. Schedule, Milestone, Time-Limitations within which to Perform Services: Date for Commencement of Consultant Services: (X) Same as Effective Date of Agreement Dates or Time Limits for Delivery of Deliverables: Deliverable No. 1: Delivery of the First Draft PFFP (including the Fiscal Impact Analysis Repot0 for staff review and distribution in the form of thirty (30) copies. Due date: July 1, 2003 or a minimum of 6 weeks after City's notice to proceed, whichever is later. Deliverable No. 2 Delivery of the revised Second Draft PFFP (including the Fiscal Otay Ranch Village Two, Three and Planning Area 18B PFFP Three Party Agreement 05/13/03 Page 18 Impact Analysis Report) containing all staff comments on the First Draft PFFP in the form often (10) copies. Due date: October 1, 2003, or three weeks after the consultant receives comments back from the City's review of first draft, whichever is later. Deliverable No. 3 Delivery of the revised Third Draft PFFP (including the Fiscal Impact Analysis Report) containing all staff comments in the form of ten (10) copies. Due date: December 1, 2003, or two week after the consultant receives comments back from City's review of second draft, whichever is later. Deliverable No. 4: Delivery of pre-press (screencheck) copy of PFFP (including the Fiscal Impact Analysis Report) incorporating all of staff's comments in the form of three (3) copies. Due date: February 1, 2004 or 1 week after staff/consultant discuss staff comments on the third draft, whichever is later. Deliverable No. 5: Delivery of the Final PFFP (including the Fiscal Impact Analysis Report) for public hearings in the form of twenty (20) copies and a computer diskette file formatted for Microsoft Word. Due date: May 15, 2004, or 1 week after City delivers pre-press (screencheck) comments to the Consultant. Deliverable No.6: Delivery of City Council approved PFFP (including the Fiscal Impact Analysis Report) to City Staff in the form of thirty (30) copies plus one (1) master copy set up to print additional copies to be incorporated into binders, plus draft conditions of approval for the tentative map. Due date: August 1, 2004 or within two week following City Coun. cil hearing. Deliverable No.7: Delivery of draft conditions of approval for the tentative map. Due date: February 15, 2004 or two weeks after the Otay Ranch Village Two, Three and Planning Area 18B PFFP Three Paay Agreement 05/13/03 Page 19 consultant delivers pre-press (screencheck) copy of PFFP (including the Fiscal Impact Analysis Report), whichever is later. Dates for completion of all Consultant services: Fourteen months from the effective date of agreement or as extended by the Director of Planning and Building in the Director's sole discretion. 7. Documents to be provided by Applicant to Consultant: (1) project description; (1) technical studies including water, wastewater, drainage, traffic; (1) site plans/draft SPA document; ( 1 ) phasing plan; ( 1 ) grading plans; ( 1 ) architectural elevations, design plan, etc. 8. Contract Administrators: City: Richard M. Rosaler, AICP Principal Planner City of Chula Vista Planning and Building Department 276 Fourth Avenue Chula Vista, CA 91910 Applicant:Ranie L. Hunter, Vice President Otay Project, L.P. 350 West Ash Street, Suite 730 San Diego, CA 92101 Consultant: Anthony G. Ambrose, AICP Burkett & Wong Engineers 3434 Fourth Avenue San Diego, CA 92103 Otay Ranch Village Two, Three and Planning Area 18B PFFP Three Party Agreement 05/13/03 Page 20 9. Statement of Economic Interests, Consultant Reporting Categories, per Conflict of Interest Code: (X) Not Applicable. Not an 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 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. 10. 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: $250,000 (not included in Commercial General Liability coverage). Otay Ranch Village Two, Three and Planning Area 18B PFFP Three Party Agreement 05/13/03 Page 21 Exhibit B Compensation Schedule and Deposit: Terms and Conditions ( X ) Single Fixed Fee Arrangement For performance of all general and detailed services of Consultant prescribed in Exhibit "A", paragraphs 4 and 5, Applicant shall pay a single fixed fee, all of which is to be deposited upon execution of this agreement. The City shall pay Consultant in increments and at the times or milestones set forth below: ( X ) Single Fixed Fee Amount: $66,800.00 Milestone Amount/Percentage of Fixed Fee to be Paid 1. Signing of this agreement by all parties and upon request by the Consultant $16,700 / 25% 2. Deliverable #1 First Draft PFFP (including the Fiscal Impact Analysis Report) $23,380 / 35% 3. Deliverable #4 Pre-press (Screencheck) Draft PFFP (including the Fiscal Impact Analysis Report) $10,020/15% 4. Deliverable #5 Final PFFP (including the Fiscal Impact Analysis Report) $10,020/15% 5. 10% retention amount $6,680 / 10% Security for Performance ( ) Performance Bond, $ ( ) LetterofCredit, $ ( ) Other Security: ( ) Type: ( ) Amount:$ (X) 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 Even, listed below, has occurred: (X) Retention Percentage: 10% Otay Ranch Village Two, Three and Planning Area 18B PFFP Three Party Agreement 05/13/03 Page 22 ( ) Retention Amount Retention Release Event: (X) Completion of All Consultant Services to the satisfaction of the Director of Planning and Building. ( ) Other: ( 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 General and Detailed Services herein required of Consultant for $66,800.00 including all Materials, and other "reimburseables" ("Maximum Compensation"). Rate Schedule Category of Employee of Consultant Hourly Rate Burkett and Wong Engineers: Principal $125 Principal Associate $ 95 Engineer $ 95 Assistant Planner $ 65 Technician $ 60 Clerical $ 45 (X) Permitted Subconsultants: CIC Research, Inc. 8361 Vickers Street San Diego, CA 92111 (858) 637-4000 Linscott, Law and Greenspan 1565 Hotel Circle South, Suite 310 San Diego CA 92108 (619) 299-3090 Otay Ranch Village Two, Three and Planning Area 18B PFFP Three Party Agreement 05/13/03 Page 23 Deposit (X) Deposit Amount: At execution of agreement - $66,800.00 (X) Use of Deposit to Pay Consultant. Notwithstanding the sole duty and liability of Applicant to pay Consultant, if this paragraph is "checked", upon City's receipt of billing by Consultant, and determination by City in good faith that Consultant's billing is proper, a judgment for which Applicant agrees to hold City harmless and waive any claim against City, City shall pay Consultant's billing from the amount of the Deposit. If Applicant shall protest the propriety of a billing to City in advance of payment, City shall consider Applicant's protest and any evidence submitted prior to the due date for the payment of said bill by Applicant in making its good faith determination of propriety. ( X ) Bill Processing: A. Consultant's Billing to be submitted for the following period of time: ( ) Monthly ( ) Quarterly (X) Other: Upon completion of each milestone B. Day of the Period for submission of Consultant's Billing: ( ) First of the Month ( ) 15th Day of each Month ( ) End of the Month (X) Other: On the 10th day of each month following completion of each milestone C. City's Account Number: Otay Ranch Village Two, Three and Planning Area 18B PFFP Three Party Agreement 05/13/03 Page 24 COUNCIL AGENDA STATEMENT Item ~ Meeting Date 5/13/03~ ITEM TITLE: Resolution Amend the FY03 Library Department budget and approve the reclassification and salary adjustment of one Principal Librarian to a new mid-management classification of Library Public Services Manager. SUBMITTED BY: Marcia Raskin, Director of Human Resources~f~ REVIEWED BY: City Manager ~ ~ ( ~ .),~ (4/5th Vote: Yes X No ) Council is being asked to approve the reclassification of one of the Principal Librarian positions to Library Public Services Manager and amend the FY03 Library Department budget accordingly. RECOMMENDATION: Council approve the Resolution to reclassify a Principal Librarian position to a Library Public Services Manager, at an annual salary of $90,427.10. BOARD/COMMISSION RECOMMENDATION: N/A DISCUSSION: in 1996 the incumbent applied and was selected for the position of Principal Librarian to manage the South Chula Vista Library. As the City's population continued to grow, so did the demand for library services, and in 2001 the area of Public Services was set up to oversee the coordination of the system- wide reference, children's services, and circulation function. The incumbent was given these responsibilities although the assignment was significantly greater than what the position was originally intended or advertised as branch librarian; the title remained as Principal Librarian. Soon after, changes in library upper management precipitated some reorganization affecting the Assistant Library Director, who in turn delegated some of her responsibilities. The result was that the incumbent was assigned to oversee daily operations at the three library branches in addition to her current assignments. The position title remained as Principal Librarian Recently, because of budget constraints and subsequent "freezing" of two management positions in the Library, the incumbent has assumed the primary responsibility of coordinating Public Service functions related with automation and community relations. Her role in the overall management o flibrary public services has constantly evolved while still classified as Principal Librarian. She now manages the delivery of library services to the public from all branch libraries and the museum; manages the planning and implementation of Reference, Circulation, and Children's Services throughout the library system; manages implementation of the budget throughout the public services division, and agreements ~vith outside agencies; plans and organizes the delivery of public intemet and software computer workstations; assists the Assistant Library Director in the preparation of the budget, planning, developing, and writing of departmental goals and objectives, and assists in prioritizing community outreach activities. ! Page 2, Item Meeting Date The responsibilities currently assigned to the incumbent are beyond the scope of her current classification of Principal Librarian, and are better aligned to the level of the Educational Services Manager within the Library Department. The recommended classification for this position is Library Public Services Manager. FISCAL IMPACT: The cost for this salary adjustment for the fiscal year is $2,237 and can be absorbed by the Library Department budget. The increase for FY04 will be $20,589.57. ,/.)._-9 - RESOLUTION NO. 2003- RESOLUTION OF THE CITY COIYNC1L OF THE CITY OF CHULA VISTA AMENDING THE FISCAL YEAR 2003 LIBRARY DEPARTMENT BUDGET BY APPROVING THE RECLASSIFICATION AND SALARY ADJUSTMENT OF ONE PRINCIPAL LIBRARIAN TO A NEW MID-MANAGEMENT CLASSIFICATION OF LIBRARY PUBLIC SERVICES MANAGER WHEREAS, In 1996 the incumbent applied and selected for the position of Principal Librarian to manage the South Chula Vista Library; and WHEREAS, as the City's population continued to grow, so did the demand for library services, and in 2001 the area of Public Services was set up to oversee the coordination of the system-wide reference, children's services, and circulation function; and WHEREAS, the incumbent was given these responsibilities although the assignment was significantly greater than what the position was originally intended or advertised as branch librarian; and WHEREAS, the result was that the incumbent was assigned to oversee daily operations at the three library branches in addition to her current assignments. The position title remained as Principal Librarian; and WHEREAS, the responsibilities currently assigned to the incumbent are beyond the scope of her current classification of Principal Librarian, and are better aligned to the level of the Educational Services Manager within the Library Department. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does herby amend the FY03 Library Department budget and approve the reclassification and salary adjustment of one Principal Librarian to a new mid-management classification of Library Public Services Manager.. Presented by.' ~.7~ Approved as to form by: Marcia Raskin Ann Moore Director of Human Resources City Attorney J:/Attorney/reso/Library Public Services Mgr. COUNCIL AGENDA STATEMENT Item: /'2. '~ Meeting Date: 5113103 ITEM TITLE: Resolution Approving an Agreement for Contribution of funds by and between the City of Chula Vista and San Diego Expressway, L.P., a California limited partnership ("SDELP") through California Transportation Ventures, Inc., a California corporation, its general partner ("CTV") and Appropriating $1,414,500 from the Interim SR#125 Development Impact Fund SUBMITTED BY: George Krempl, Assist~ant City Manager REVIEWED BY: City Manager .~,~ p ~ (4/5ths Vote: Yes X No ) CTV and the Plaintiffs in the lawsuit involving SRfl125 are interested in reaching a settlement. In conjunction therewith, the City, the developers, and CTV have also been in discussion regarding a local contribution toward the settlement. This item is an agreement between the City and CTV concerning the use of Interim SR#125 DIF monies to assist in that endeavor. By so doing, the City will help assure the timely construction of the SR#125 toll road facility, which is an integral part of our transportation system. RECOMMENDATION: That the City Council approve the resolution. BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. DISCUSSION: The SR#125 toll road is proposed to connect SR#54 and Otay Mesa Road through Eastern Chula Vista. The facility is a necessary component of the Chula Vista General Plan and will provide for an orderly traffic circulation pattern in the city and throughout the South Bay. A number of environmental groups have filed suit challenging the federal environmental approvals including the final EIR/EIS for the SR#125 South Project. The litigation was filed against the Federal Highway Administration, U.S. Fish and Wildlife Service and the U.S. Army Corps of Engineers. SDELP, as assignee for CTV and holder of the State Development Franchise for the toll road project, intervened as a defendant in the Federal litigation. On March 10, 2003, the U.S. District Court denied the plaintiffs' motion for Summary Judgment and granted the defendant's and intervenors' cross motions for Summary Judgment in the Federal litigation. Page 2, Item: ~ Meeting Date: 5/13/03 Both the plaintiffs and the defendants now wish to enter into a settlement so as to avoid further litigation effort and cost and the possibility of an appeal of the District Court's judgment. By so doing, the toll road design, financing, grading and construction can be advanced in a timely fashion thus completing this critical circulation element for the City of Chula Vista. In addition, the settlement of this lawsuit would prevent the need for any involvement, effort or cost by the City in said litigation. The agreement provides a contribution of $1,414,500 of developer paid Interim SR#125 Development Impact Fees to SDELP in furtherance of bringing the toll road project to fruition. The funds provided, excluding attorney's costs, are only to be used for purposes of additional environmental mitigation beyond that which had been required with the environmental approval of the Project. Use of the City contribution cannot occur unless notice is received by February 15, 2004 indicating that all clearing of environmentally sensitive areas in the project right of way north of Birch Parkway has been completed. 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. FISCAL IMPACT: There are sufficient funds in the Interim SR#125 Development Impact Fund to cover this contribution. There is no impact to the General Fund as these monies have all been paid by new development as building permits have been issued in the Eastern Territories. Attachment: Agreement for Contribution for Settlement for Litigation RESOLUTION NO. RESOLUTION APPROVING AN AGREEMENT FOR CONTRIBUTION OF FUNDS BY AND BETWEEN THE CITY OF CHULA VISTA AND SAN DIEGO EXPRESSWAY, L.P., A CALIFORNIA LIMITED PARTNERSHIP ("SDELP") THROUGH CALIFORNIA TRANSPORTATION VENTURES, iNC., A CALIFORNIA CORPORATION, 1TS GENERAL PARTNER ("CTV") AND APPROPRIATING $1,414,500 FROM THE INTERIM SR#125 DEVELOPMENT IMPACT FUND WHEREAS, Center for Biological Diversity, Preserve South Bay, San Diego Audubon Society, Sierra Club and Preserve Wild Santee are Plaintiffs (collectively, hereinafter, '~Plaintiffs") in litigation challenging federal environmental approvals for the SR 125 South Project (Case No. 01 CV 1876 JM (POR)). The litigation was filed against three federal defendants: Federal Highway Administration, U.S. Fish and Wildlife Service, and the U.S. Army Corps of Engineers; and, WHEREAS, SDELP intervened as a defendant in the federal litigation. SDELP, as assignee of CTV, has entered into that certain Development Franchise Agreement, dated January 6, 1991, with the State of California, Department of Transportation that grants SDELP the right to design, build, operate and maintain the SR 125 South toll road project ("Project"), a portion of which is within the boundaries of the City of Chula Vista; and, WHEREAS, by Order filed March 10, 2003, the U.S. District Court denied Plaintiffs' Motion for Summary Judgment and granted Defendants' and Intervenors' Cross Motions for Summary Judgment in the federal litigation; and, WHEREAS, Plaintiffs Center for Biological Diversity, Preserve South Bay, and Preserve Wild Santee (collectively, "Settling Plaintiffs," each individually, a "Settling Party"), and SDELP have entered into a Settlement Agreement to settle the above-referenced federal litigation and limit the possibility of an appeal of the District Court's judgment; and, WHEREAS, the Project connects SR 54 and Otay Mesa Road in San Diego County, California, and is necessary to provide for orderly traffic circulation in the South Bay region of San Diego County, including the City of Chula Vista; and, WHEREAS, the Project is a component of the City's General Plan; and, WHEREAS, the City will benefit from timely construction of the Project, which will provide for orderly traffic circulation in the City; and, WHEREAS, the conclusion of the litigation described herein will allow construction of the Project to proceed; and, WHEREAS, the settlement of litigation will prevent the need for any effort or involvement by the City in said litigation; and WHEREAS, the City has funds available in the Interim SR 125 Development Impact Fee fund account and said funds may be expended for purposes of constructing an interim facility and assisting in the construction of SR 125. NOW, THEREFORE, IT IS HEREBY RESOLVED that the above recitals are all tree and correct. BE IT FURTHER RESOLVED that from the facts presented to the City Council tonight, the Council hereby approves in substantially the form attached hereto, the agreement between the City of Chula Vista and San Diego Expressway, L.P., a California limited partnership ("SDELP") for contribution to the settlement of litigation and appropriates $1,414,500 from the Interim SR#125 Development Impact Fund BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby authorized and directed to execute said agreement with minor changes approved by the City Attorney and City Manager, for and on behalf of the City. PREPARED BY: APPROVED AS TO FORM BY: George Krempl Ann Moore Assistant City Manager City Attorney J:/Attorney/RESO/SD Expressway / , 24 THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE ANT) WILL BE FORMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIL Ann Moore City Attorney Dated: May 9, 2003 AGREEMENT FOR CONTRIBUTION OF FUNDS AGREEMENT FOR CONTRIBUTION OF FUNDS This Agreement for Contribution to Settlement of Litigation ("Agreement"), dated May __, 2003 ("Effective Date") is made between the City of Chula Vista ("City") and San Diego Expressway, L.P., a California limited partnership ("SDELP") through California Transportation Ventures, Inc., a California corporation, its general partner ("CTV"). RECITALS A. Center for Biological Diversity, Preserve South Bay, San Diego Audubon Society, Sierra Club and Preserve Wild Santee are Plaintiffs (collectively, hereinafter, "Plaintiffs") in litigation challenging federal environmental approvals for the SR 125 South Project (Case No. 01 CV 1876 JM (POR)). The litigation was filed against three federal defendants: Federal Highway Administration, U.S. Fish and Wildlife Service, and the U.S. Army Corps of Engineers. B. SDELP intervened as a defendant in the federal litigation. SDELP, as assignee of CTV, has entered into that certain Development Franchise Agreement, dated January 6, 1991 with the State of Call fornia, Department of Transportation that grants SDELP the right to design, build, operate and maintain the SR I25 South toll road project ("Project"), a portion of which is within the boundaries of the City of Chula Vista. C. By Order filed March 10, 2003, the U.S. District Court denied Plaintiffs' Motion for Summary Judgment and granted Defendants' and intervenors' Cross Motions for Summary Judgment in the federal litigation. D. Plaintiffs Center for Biological Diversity, Preserve South Bay, and Preserve Wild Santee (collectively, "Settling Plaintiffs," each individually, a "Settling Party"), and SDELP have entered into a Settlement Agreement,, to settle the above-referenced federal litigation ("Settlement Agreement") and prevent any appeal of the District Court's judgment. E. The Project connects SR 54 and Otay Mesa Road in San Diego County, California, and is necessary to provide for orderly traffic circulation in the South Bay region of San Diego County, including the City of Chula Vista. F. The Project is a component of the City's General Plan and is an integral element of the City's traffic circulation system. G. The foreclosure of the above-referenced federal litigation and preventing an appeal of the District Court's judgment will benefit the City by facilitating the timely construction of the Project, which will provide for orderly traffic circulation in the City. In addition, the settlement of the above federal litigation will prevent the need for any involvement, eftbrt or cost by the City in said litigation. NOW, THEREFORE, in consideration of the above, and of the mutual covenants, provisions, and undertakings set forth below, and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the City and SDELP agree as follows: AGREEMENT 1. Incorporation of Recitals. The above Recitals are incorporated herein and made a part of this Agreement by reference. 2 ff r" ' ~ 'ri, 73- 2. City's Payment Obligation. City shall deposit One Million Four Hundred Fourteen Thousand Five Hundred Dollars ($1,414,500.00) (the ';Deposit") into an interest-bearing escrow account ("City's Escroxv Account"), from which funds shall be distributed to SDELP according to the terms set forth in Section 3 of this Agreement, in consideration for SDELP settling the above-referenced litigation and in furtherance of the timely construction of the Project. The Deposit shall be paid in cash, a cashier's check or certified check, or wire transfer of immediately available federal funds of the United States. The Deposit shall be made within five business days of the approval of the Agreement by the City Council. 3. Establishment of City's Escrow Account. 3.1 Opening of Escrow. Upon execution of this Agreement, the parties shall open an escrow (the "City's Escrow Account") with Chicago Title Insurance Company, 925 B Street, San Diego, California 92101 ("Escrow Holder") by the delivery to Escrow Holder of a completely executed copy of this Agreement. 3.2 Escrow Instructions. This Agreement, together with the General Provisions of Escrow Holder, attached hereto as Exhibit A (The "General l~rovisions"), collectively shall constitute escrow instructions, and a copy hereof shall be deposited with Escrow Holder for the purposes of enabling Escrow Holder to administer the funds of the Escrow. 3.3 Conditions for Disbursement of Funds. 3.3.1 Disbursement of Funds. The disbursement of funds shall occur within two (2) business days following the satisfaction of all Conditions to Disbursement of Funds set forth in subsection 3.3.2 below. 3.3.2 Conditions for Disbursement of Funds. All of the following conditions shall have been satisfied before Escrow Holder shall disburse payment to SDELP. a. City has deposited with Escrow Holder the Deposit; b. Escrow Holder receives written notification from SDELP that the Settlement Agreement has been executed, including a copy of the executed Settlement Agreement; c. Escrow Holder receives a written instruction from SDELP to disburse to SDELP that sum of the Deposit as required by this Agreement; d. Escrow Holder receives written notification by February 15, 2004 from SDELP certifying that all clearing of the enviromnentally sensitive areas in the Project right-of-way at all points of the Project right-of-way north of the southernmost portion of the planned interchange with Birch Parkway is complete; and e. Escrow Holder receives written notification from SDELP certifying that no order has been issued that remains in force which enjoins or restrains SDELP or CTV from construction of the Project. f. Escrow Holder receives notification from the City (City Attorney and City Manager designated to provide said approval) that it approves the final Settlement Agreement executed by all of the parties. The City agrees to act in good faith with respect to the approval of the Settlement Agreement. 3.3.3. Amount of Disbursement of Funds to SDELP. The City's contribution of One Million Four Hundred Fourteen Thousand Five Hundred dollars ($1,414,500.00) to the settlement proceeds to be paid to Settling Plaintiffs pursuant to the terms of the Settlement Agreement is calculated based upon an assumed Settlement Agreement requiring that SDELP pay Three Million and Seventy- Five Thousand Dollars ($3,075,000.00) to the Settling Plaintiffs. 3.4 Escrow Expenses. SDELP shall be responsible for Escrow Holder's fees and expenses. 4. Permitted Use of Settlement Funds. Settling Plaintiffs' permitted use of settlement proceeds paid out of the Settlement Escro~v Account is limited as described in the Settlement Agreement. Proof of conformance with such limitations shall be provided to SDELP as described in the Settlement Agreement, and ~vill be provided by SDELP to City within five (5) days of receiving said proofi 5. Limitation of Liability. This Agreement shall not be construed as to create any obligation on City's part except for the obligations described in this Agreement. 6. Return of Funds. a. SDELP shall instruct Escrow Holder, in writing, no later than February 20, 2004, to return the entire amount of the Deposit, including any interest accrued thereon, to the City if clearing of the environmentally sensitive areas in the Project right-of-way at ali points of the Project right-of-way north of the southernmost portion of the planned interchange with Birch Parkway is not completed by February 15, 2004. b. If after the City's Deposit has been disbursed to SDELP pursuant to the terms of this Agreement, SDELP receives an award, settlement, payment or return of funds from the Escrow Holder or Settling Plaintiffs resulting from a breach of the Settlement Agreement, SDELP will return the proportionate share of forty-six percent (46%) of such money to the City. SDELP shall return said amount within five (5) days of receiving the same. 7. Time is of the Essence. Time is of the essence of this Agreement and each and every provision hereof. 8. Notice. Unless otherwise provided herein, any notices required or permitted to be given under the terms of this Agreement shall be in writing and hand delivered, telecopied, or sent by registered or certified United States mail, postage prepaid, return receipt requested: City of Chula Vista Office o f the City Attorney 276 Fourth Avenue Chula Vista, CA 91910 Attention: Ann Y. Moore, Esq., City Attorney Telephone: (619) 691-5037 Facsimile: (619) 409-5823 To SDELP: San Diego Expressway Limited Partnership c/o California Transportation Ventures, Inc. 880 Kuhn Drive Chula Vista, California 91914 Chula Vista, California 91914 Attention: Joe Cazares, Executive Vice President Telephone: (619) 591-4200 Facsimile: (619) 591-4291 with a copy to: Nossaman, Guthner, Knox & Elliott, LLP 18101 Von Karman Ave., Suite 1800 lrvine, CA 92612 Attention: Robert D. Thornton, Esq. Telephone: (949) 833-7800 Facsimile: (949) 833-7878 8.1 Notice shall be deemed given as of the date of receipt. Notice by telecopy shaI1 be confirmed by telecopy machine confirmation. Either Party may change its addressee(s) for notice by providing written notice of such change in accordance with the requirements of this Section of the Agreement. 8.2 The parties may also designate other procedures for the giving of notice as required or permitted under the terms of this Agreement, but alternate procedures shall be as described in writing and signed by the City and SDELP. 9. Waiver. The failure of any party at any time or times to require performance of any provision hereof shall in no manner affect the right at a later time to enforce the same. No waiver by any party of any condition, or of any breach of any term, covenant, representation, or warranty contained herein, in any one or more instances, shall be deemed to be or construed as a further or continuing waiver of any such condition or breach, or as a waiver of any other condition or of any breach of any other term, covenant, representation or warranty. 10. Entire Agreement Modification. This Agreement contains the entire agreement of the parties with respect to the matters addressed herein, and supersedes any and ail prior or contemporaneous agreements and discussions, whether written or oral, express or implied. Further, except as expressly set forth herein, the parties acknowledge and agree that no representations of any kind, oral or otherwise, express or implied, have been made by either of them, their attorneys or other representatives relating to the subject matter hereof, and that, by executing this Agreement, the City and SDELP warrant and represent that this Agreement is made and entered into without reliance upon any statements or representations of the other party or any of its attorneys or other representatives, except as such statements and representations of the other party or any of its attorneys or other representatives expressly are set forth herein. This Agreement may not be amended, modified, superseded or canceled, and none of the covenants, representations, warranties or conditions hereof may be waived, except by a ~vritten instrument executed by the party against which such amendment, modification, novation, cancellation or waiver is to be charged. 11. Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with the laws of the State of California. 12. Severabilit,/. In the event that any portion hereof is determined to be illegal or unenforceable, the parties shall negotiate in good faith to produce an amendment to this Agreement that will effectuate the original intent of the parties respecting the portion hereof determined to be illegal or unenforceable. 13. Counterpart Originals. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be the original, and all of which together shall constitute one and the same instrument. 14. Authority of Signatories. Each signatory and party hereto hereby warrants and represents to the other party that it has the legal authority and capacity and direction from its principal to enter into this Agreement, that all resolutions and/or other actions have been taken so as to enable it to enter into this Agreement, and that upon execution of this Agreement it shalI be legally valid, binding and enforceable with respect to such party, without any further approval, ratification, resolution or other act required. 15. Term. This Agreement shall remain in effect for so long as either party has executory obligations hereunder, except as set forth elsewhere in this Agreement. 16. Indemnity. SDELP (referred to in this paragraph as "Indemnitor") shall be responsible to defend, indemnify and hold harmless the City, its elected and appointed officers and employees, from and against any claims, suits, actions or proceedings, judicial or administrative, for writs, orders, injunction or other relief, damages, liability, cost and expense (including without limitation attorneys' fees) arising from this Agreement and from any actions with respect to the return of funds, in accordance ~vith paragraph 6 of this Agreement. Indemnitor'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, Indemnitor, 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. At its sole discretion, the City may participate, at its own expense, in the defense of any such action, but such participation shall not relieve Indemnitor of any obligation imposed by this Agreement. If the City decides not to tender its defense to Indemnitor, City and Indemnitor each agree to reasonably cooperate with each other in the defense of such action. [Signature Page Follows] 1N WITNESS WHEREOF, CITY, and SDELP have caused this Agreement to be executed as of the date first above set forth. CITY OF CHULA VISTA By: Name: Title: APPROVED AS TO FORM AND LEGALITY: By: Name: Title: City Attorney ATTEST: By: Name: Title: City Clerk Date: ,2003 SAN DIEGO EXPRESSWAY L.P., a California limited partnership By: CALIFORNIA TRANSPORTATION VENTURES, its general partner By: Name: Title: Date: J:\ATTORNEY~AGREE\City Agreement (Clean) EXHIBIT A Escrow- Holder's General Provisions [attached] GENERAL PROVISIONS TO: CHICAGO TITLE COMPANY Escrow Number: Date: I Time is of the essence of these instructions. If this escrow is not in a condition to close by the TIME LIMIT DATE as provided for herein and written demand for cancellation is received by you from any principal to this escrow after said date, you shall act in accordance with paragraph 7 of thc General Provisions. If no conflicting instruction or demand for cancellation is made, you will proceed to close this escro~v when the principals have complied with the escrow instructions. In the event one or more of the General Provisions are held to be invalid in judicial proceedings, those remaining will continue to be operative. Any amendments of or supplements to any instructions affecting escrow must be in writing. You are authorized to order demands for, and pay at the close of escrow any encumbrances of record necessary to place title in the condition called for without further authorization. You are further authorized, prtor to the close of escrow, to pay from funds on deposit any tees necessary to obtain any demand and/or report as may be required in this escrow and at the close of escrow charge the parties as appropriate. The principals will hand you any funds and instruments required from each respectively to complete this escrow. Interest on any new financing may begin to accrue on the date loan funds/proceeds are disbursed by the new lender, and borrower agrees to pay same in accordance with lender's instructions. 2 You arc instructed to deliver and/or record all documents and disburse all funds when you can comply with these instructions and issue any title insurance policy as called for herein. These instructions, together with any amendments and/or supplements, may be executed in counterparts and together shall constitute one and the same document. If these instructions relate to a sale, buyer agrees to buy and seller agrees to sell upon the terms and conditions hereof. All documents, balances and statements due the undersigned are to be mailed to the respective addresses shown herein, unless otherwise directed. In the event that any party to this escrow utilizes iCacsimile transmitted signed documents, all part/es hereby agree to accept and hereby instruct the escrow holder to rely upon such documents as if they bore original signatures. Buyer and seller further acknowledge that any documents to be recorded bearing non original (Pacsimile) signatures ~vill not be accepted for recording by the county recorder. 3. The phrase "close of escrow" (or COE) as used in this escrow means the date on which documents are recorded, unless otherwise specified. 4. Assume a 30 day month in any proration herein provided, and unless otherwise instructed, you are to use the information contained in the latest available tax statement, including any supplemental taxes of record, rental statement as provided by seller and bcncficiary's or association statements delivered into escrow for proration purposes. 5. Upon close of escrow you arc instructed to charge our respective accounts the costs attributable to each, including but not limited to costs as provided for herein and/or in accordance with our respective estimated statements attached hereto and made a part hereof. 6. Recordation of any instruments delivered through this escrow, if necessary or proper for the issuance of the policy of title insurance called for, is authorized. No examination or insurance as to the amount or payment of personal property taxes is required unless specifically requested. 7 If demand to cancel is submitted after thc Time Limit Date, any principal so requesting you to cancel this escrow shall file notice of demand to cancel in your office in writing You shall within three (3) working days thereafter mail by certified mail one copy of such notice to each of the other principals at the address stated in this escrow. Unless written objection thereto is filed in your office by a principal within fifteen (I 5) calendar days after date of such mailing, you are instructed to cancel this escrow. Il' this is a sale escrow, you may return lender's papers and/or lhnds upon lender's demand. 8. In the event that this escrow is canceled, any fees or charges due Chicago Title Company including cancellation lees and any expenditures incurred or authorized shall bc paid from funds on deposit unless otherwise specifically agreed to or determined by a court of competent jurisdiction. Upon payment thereof, return documents and moneys to the respective parties depostttng same, or as ordered by the court, and void any executed instruments. 9. If them is no written activity by a principal to this escrow within any six-month period after the Time Limit Date set forth herein, Chicago T/tic Company may, at its option, terminate its agency obligation and cancel the escrow, returning ail documents, moneys or other items held, to the respective parties entitled thereto, less any fees and charges as provided herein. Initial Initial Chicago Title Company General Provisions - Page 2 10. If, for any reason, funds are retained or remain in escrow after the closing date, you may deduct therefrom a reasonable monthly charge as custodian, of not less that $25.00 per month, un]ess otherwise specified. I I. In thc event that you should receive or become aware of conflicting demands or claims with respect to this escrow, or the rights of any of the parties hereto, or any money or property deposited herein, you shall have the absolute right at your option to discontinue any or all further acts until such conflict is resolved to your satisl~action. 12. In the event that any Offer to Purchase, Deposit Receipt, or any other form of Purchase Agreement is deposited in this escrow, it is understood that such document is effective only as among the parties signing said document. You, as escrow holder, are not to bc concerned with thc terms of such document and are relieved of all responsibility in connection therewith. The foregoing is not applicable in any transaction in which Chicago Title has specifically agreed to accept an Offer to Purchase, Deposit Receipt or other form of Purchase Agreement as escrow instructions. In any event, you are not to be concerned or liable for items designated as "memoranda" in these escrow instructions nor with any other agreement or contract between the parties. 13. The parties hercto, by execution of these instructions acknowledge that the escrow holder assumes no responsibility or liability whatsoever for the supervision of any act or the performance of any condition which is a condition subsequent to the closing of this escrow 14. In thc absence of instructions to the contrary, you are hereby authorized to utilize wire services, overnight, next day, or other expedited delivery services (as opposed to the regular U.S. Mail) and to charge the respective party's account accordingly. 15. Concerning any real property involved in this transaction, you are released from and shall have no liability, obligation or responsibility with respect to (a) withholding of funds pursuant to Section 1445 of the Internal Revenue Code of 1986 as amended, and to Sections 18662 and 18668 of the California Revenue and Taxation Code, (b) advising the parties as to thc requirements of said Section 1445, (c) determining whether the transferor is a foreign person or a non-resident under such Section, nor (d) obtaining a non foreign affidavit or other exemption from withholding under said Sections nor otherwise making any inquiry concerning compliance with such Sections by any party to the transaction. 16 If you pay a demand to pay in full a revolving line of credit or equityline loan, you arc hereby instructed on my behalf and for my benefit, to request that the lender issmng said demand cancel said revolving line or equity line of credit. 17. You are authorized to furnish to any affiliate of Chicago Title Company, any attorney, broker or lender identified with this transaction or any one acting on behalf of such lender any information, instructions, amendments, statements, or notices of cancellation given in connection with this escrow. If any check submitted to escrow is dishonored when presented for payment, you are authorized to notif,v all principals and/or their respective agents of such non payment. 18. All notices, change of instructions, communications and documents arc to be delivered in writing to the office of Chicago Title Company, as set forth herein, in a timely manner. 19 All funds received in this escrow shall be deposited with other escrow funds in one or more escrow (demand) accounts of Chicago Title Company in any state or national bank. Thc parties to this escrow understand that the escrow accounts you maintain with thc depository Institutions contribute to your value as a customer of these institutions which, in turn, may make available to Chicago Title Company an array of bank services, accommodations or other benefits. You shall have no obligation to account for thc value realized by Chicago Title Company from these services, accommodations or other benefits. All disbursements shall be made by your check, unless otherwise instructed. You shall not be responsible for any delay in closing if funds received by escrow are not available for immediate withdrawal. Chicago Title Company may, at its option, require concurrent instructions from all principals prior to release of any funds on deposit in this escrow. 20 You are authorized to destroy or otherwise dispose of any and all documents, papers, instructions, correspondence and other material pertaimng to this cscrow at the expiration of six (6) years from the close of escrow or cancellation thereof, without liability and without further notice Chicago Title Company General Provisions - Page 3 IMPORTANT NOTICE Except for wire transfers, funds remitted to this escrow are subject to availability requirements imposed by Section 12413.1 of the Calilbrnia Insurance Code. CASHIER'S, CERTIFIED or TELLER'S checks, payable to CHICAGO TITLE COMPANY are generally available for disbursement on the next business day following thc date of deposit. Other forms of payment may cause extended delays in the closing of your transaction pursuant to the requirements imposed by State Law. (Wire transfer information available upon request) ALL PARTIES TO THIS ESCROW ACKNOWLEDGE THAT CHICAGO TITLE COMPANY DOES NOT PROVIDE LEGAL ADVICE NOR HAS IT MADE ANY INVESTIGATION, REPRESENTATIONS OR ASSURANCES WHATSOEVER REGARDING THE LEGAL ASPECTS OR COMPLIANCE OF THIS TRANSACTION WITH ANY TAX, SECURITIES OR ANY OTHER STATE OR FEDERAL LAWS. IT IS RECOMMENDED THAT THE PARTIES .OBTAIN INDEPENDENT LEGAL COUNSEL AS TO SUCH MATTERS. THE FOREGOING ESCROW INSTRUCTIONS AND GENERAL PROVISIONS HAVE BEEN READ AND ARE UNDERSTOOD AND AGREED TO BY EACH OF THE UNDERSIGNED. BUYER SELLER INITIAL INITIAL INITIAL INITIAL Current Address: Current Address: Telephone: Telephone: Initial Initial__ /2 - '~"--'-'~ ff.) COUNCIL AGENDA STATEMENT Item: Meeting Date: 05/13/03 ITEM TITLE: Public Hearing: Consideration of Amendments to Chapter VII - Recreation Programs/Facilities of the Master Fee Schedule Resolution Amending the Master Fee Schedule to effect changes to existing fees and the addition of new fees for Recreation SUBMITTED BY: Director of Recreatiq~,~{ff) REVIEWED BY: City Manager ~ ~ ,~v (4/5ths vote: (Yes x No ) The Recreation Department is currently engaged in a strategic plan process to articulate priorities essential to fulfilling departmental and City missions for the next five years. In committee meetings of staff and community members, there has been consensus that the Department should review and update fees. Recreation staff surveyed other jurisdictions and providers to ascertain average levels of fees and charges and found that the City's current fees are considerably below the average of the jurisdictions surveyed. Staff then made an assessment of what increases would be appropriate in the Chula Vista "market", taking into account resident demand and willingness to pay. Based on the surveys and assessments, staff is proposing fee increases and new fees for Aquatics, Facility Rentals, and Therapeutics. These proposed fee increases are reasonable and necessary, given increased costs for existing services; yet do not fully cover the full cost to provide these services and programs. STAFF RECOMMENDATION: That the City Council conduct the public hearing and adopt the resolution amending the Master Fee Schedule to effect changes to existing fees and the addition of new fees for Recreation, as shown in Attachment A. BOARDS/COMMISSIONS RECOMMENDATION: The Parks and Recreation Commission approved adoption of the new fees at a special Commission meeting on April 9, 2003. The minutes of this meeting are attached as Attachment D. DISCUSSION: Recreation fees have not been revised since 1995-1997, and in some cases as far back as 1990, although costs of operations and service delivery have risen substantially. Staff supports the Government Finance Officers Association (GFOA) which asserts that fees and charges should be reviewed for factors such as the impact of inflation, cost increases, the adequacy of the coverage of costs, and current competitive rates, and then fees should be updated, if necessary. As part of that review the full cost of providing a service should be calculated in order to provide a basis for setting the charge or fee. Page 2, Item: Meeting Date: 05/13/03 Operating Cost Calculations Costs can be calculated by taking the FY02-03 Recreation Department budget plus indirect costs allocated to the Recreation Department from support departments, including building maintenance and custodial) and allocating these costs across the board to various recreation programs. The total program costs can than be divided by the available programming hours for each facility type to come up with an hourly cost. For the current fiscal year the pools program 6,849 hours annually (3,914 at Loma Verde and 2,935 at Parkway). Each recreation center's programmatic hours average 3,536 annually. The fully allocated cost per program hour for aquatic and center facilities is calculated by taking the total costs for facility operations divided by the number of program hours: Pools: $1,445,619/6,849 hours -- $211.07 per hour Centers: $3,030,449/45800 hours = $69.87 per hour Market/Competitive Rates and Recommended Fees for Aquatics and Facility Rentals The full cost of providing services is calculated in order to provide a basis for setting the charge or fee for services. The Government Code prohibits cities from charging more than the full cost for services, and the fees proposed herein do not exceed the cost of providing the services. The review of fees and charges is also based on factors such as the impact of inflation, other cost increases, the adequacy of the coverage of costs, and current competitive rates. To ascertain current competitive rates, staff compiled data from other local jurisdictions to establish average (mean) fees charged for similar programs in aquatics and facility rentals. Means were also calculated from existing data gathered by professional associations such as the Aquatics Section of California Parks and Recreation Society (CPRS). No formal survey of similar private sector facilities was undertaken, however, informal inquiry of area hotel rentals produced anecdotal responses three to five times higher than recommended fees or that the respondents did not rent similar facilities. The collected survey data is set forth in Attachment C. In addition, staff made independent assessments of marketability in making the fee recommendations. Part of that assessment was affordability and equity to ensure that stakeholders are not excluded economically, balanced with the need to reflect increased costs over the last several years. Costs have increased across the board in all areas of Recreation, in salaries and wages, benefits, supplies and services, utility costs, and equipment costs. In each instance of fee recommendation the mean for the service was taken into consideration, as well as the Chula Vista "market". For example, in Aquatics the recommended class fees are 12- 38% lower than the mean for other San Diego County cities. The cities surveyed in the County were San Diego, Carlsbad, Coronado, E1 Cajon, Page 3, Item: ; ~ Meeting Date: 05/13/03 Encinitas, Escondido, La Mesa, National City, Oceanside, Poway, San Marcos, and Vista. Staff also surveyed Grossmont Union High School District. Some cities in Orange County were also surveyed for comparison purposes, including San Clemente, Irvine, Costa Mesa, Mission Viejo, and Newport Beach. Cities throughout California were also surveyed specifically for information about types and costs of swim passes. Survey Mean Resident fee % Below AQUATICS Current Fee Proposed Fee other cities the Mean Program Resident Resident Resident Summer Learn-To-Swim $ 23.00 $ 30.00 $ 43.30 0.31 Summer TinyTots $ 23.00 $ 30.00 $ 34.00 0.12 Summer Parent Tot $ 23.00 $ 30.00 $ 34.00 0.12 Fall-Spring classes $ 23.00 $ 27.00 $ 43.30 0.38 Fall-SpringParent Tot $ 23.00 $ 27.00 $ 34.00 0.21 Adult Lessons New(S23) $ 35.00 $ 47.40 0.26 Private Lessons New ($200) $ 200.00 na Staff is proposing lower swim fees in the fall and spring, as an incentive to increase attendance, as these classes have traditionally not been full. Staff is also proposing new summer passes, annual passes, and ten-swim passes, in addition to the current quarterly passes, as a way to meet the needs of our different customers. These proposed fees, along with the means and current fees, are shown in Attachment B. Fees charged to the Sweetwater Union High School District for use of the pools by various high school swim and water polo teams are also proposed to be increased from $20 per hour to $25 per hour. The additional cost to the District for the entire year would be approximately $4,000. Fees charged to the Parent Teacher Organizations (PTO) of the various elementary schools for the Elementary Learn to Swim program are also proposed to increase from $20 per hour to $25 per hour. The total increase to these PTOs for the year, based on current usage, is approximately $6,400. The comparative data for facility rental is less easy to apply since there is wide variation in facilities by size, location, aesthetics, demand and amenities. Staff surveyed various recreation centers in the City of San Diego, and the cities of San Marcos and Santee. /3 Page 4, Item: '~ 'r ~ '~ Meeting Date: 05/13/03 Since: Survey last fee other Facilities change cities Recommended Hourly Fee Otav ~7¥ )am ~rkw ~ ~: Program-Resident Gym/Main/Auditorium 1995 $55.00 $50.00 $ 50.00 $ 50.00 $ 50.00 $ 50.00 Conference/Classroom 1995 $55.00 $25.00 na $ 30.00 $ 30.00 na Kitchen 1995 $40.00 $ 10.00 na na $ 10.00 $ 10.00 Dance or Craft room 1995 $55.00 $ 30.00 na $ 25.00 $ 30.00 $ 30.00 Other/Outdoor $50.00 na $ 25.00 na $ 60.00 $ 50.00 In addition to the above figures, staff also recommends that the hourly rental fee for Parkway Gymnasium be increased to $60; that the Woman's Club rental fee be increased to $75; that the Memorial Bowl rental fee be increased to $60 per hour, with a two hour minimum; that the Fitness Center 12-week session fees at Otay Center be increased to $25 for adults and seniors and $15 for youth aged 14-18; and that the Norman Park Center rental fee remain at $100. These proposed new fees, along with the current fees, are shown in Attachment A. Please note that in addition to these hourly rental rates, users are charged the prevailing hourly staff rate to have Recreation staff present during the rental time. Notices about the fee increases, with the proposed fees listed, were posted at all of the recreation facilities. The notices also included the date, time, and place of the special Parks and Recreation Commission meeting and the City Council meeting. In addition, notices were mailed to the affected schools and school districts. Other longtime users or renters were contacted by telephone. Other Master Fee Schedule Changes All of the proposed changes to the Master Fee Schedule in Attachment A are shown as underline or strikeout. Listed below is a summary of the other proposed fee changes or wording changes. Please note that this Schedule also includes fees administered by the Public Works Department, which are not the subject of this report, and are not proposed to be changed at this time. · Section C. 1.b Basic Fee Schedule includes wording changes to clarify the fees that are charged. · A proposed change in this Section C.l.b. is to charge community organizations the prevailing hourly staff fee if additional staff is required. Currently, these organizations are not charged for hourly staff costs, even if the Recreation Department has to pay to have additional staff present. These organizations are not charged a rental fee. Page 5, Item: ].5 Meeting Date: 05/13/03 · All reference to fees for Lauderbach Center has been deleted, as this facility is now run by the Boys and Girls Club. ,, The reference to Rohr Park in Section C.2. has been deleted, at the request of the Public Works Department, since picnic shelter reservations can now be made for other City parks, in addition to Rohr Park. · In Section C.3. Ballfields, the staff cost has been changed from $8 per hour to the prevailing staff rate per hour. · In Section C.5. Therapeutics Program, the membership fee for residents and non- residents is proposed to increase from $30/$40 to $40/$50. · The reference to Tennis Court lighting fee of $3/hour in Section C.9. has been deleted as all coin boxes for collecting lighting fees have been or are being removed from City tennis courts duc to thc high maintenance costs. There is now no charge to the public for these lights. · In Section C.9., a new $5 fee has been added to each special interest class registration. · A new Section D has been added to provide for an annual adjustment of all of the fees to the nearest dollar, based on thc Consumer Price Index (CPI) San Diego All Urban Consumers. The proposed registration fee of $5.00 per registrant will be included in the class fee advertised. The fee contemplates City staff time incidental to classes, class registration software and computers, software program maintenance, and administrative and operational overhead. This fee is not subject to percentage calculations between the Department and contractor. In fact, special interest classes or contractual classes are not part of the Master Fcc Schedule, as the Department cannot set thc class fees charged by individual contractors. However, the Department will be requiring certain minimum class fees and attendance for classes to ensure that valuable resources are not underutilized. These minimums will vary by class, location, instructor, content and demand. In addition, there are other miscellaneous fees that are not part of the Master Fee Schedule that are under consideration for increases by the Department, due to increased costs. The Department will be reviewing these fees, and will be addressing the concerns raised by a constituent at the May 6 Council meeting regarding the proposed coed softball fee increase. This fee analysis does not include fees for Youth Sports Council, ballfield rentals with and without lighting, tournament fees, or consideration of different fees for in-season versus out-of-season sports. An analysis of these fees and any proposed changes will be forthcoming to Council, after Parks and Recreation Commission review, in late summer/early fall. Staff requests the Council's approval of these fees, which the Department believes are equitable and necessary. Page 6, Item: bi Meeting Date: 05/13/03 FISCAL IMPACT: Recreation is bringing forward these proposed fees at this time, instead of during the FY2003-04 budget review, as the Recreation brochure for summer classes is distributed in late May, for classes beginning in June. Annual revenues from Aquatics are anticipated to increase by $48,700. The $5 class registration fee is anticipated to bring in an additional $35,000 in revenue. Facility rental revenues are anticipated to increase by $37,350. Therapeutics membership fee increase is expected to generate an additional $200. The total revenue increase from the proposed Master Fee Schedule changes is $121,250. These fee increases are being used to maintain service levels given increased costs for labor, utilities, maintenance, etc. Attachment A Master Fee Schedule Attachment B Aquatic Fee Analysis Attachment C Aquatic Surveys Attachment D Parks and Recreation Commission minutes CHAPTER VII Attachment A I Recreation Programs/Facilities A. NON-RESIDENT POLICY 1. Fees for various Recreation Division programs and classes shall be composed of fees applying to legal residents of the City of Chula Vista and fees for non-residents. A resident shall be considered any person residing within the City limits, and who can show proof of residing, as defined in Chapter VII.A.2; and/or any person paying property taxes to the City of Chula Vista, and supplying proof of residency or property ownership, as defined in Chapter VII.C.2. The resident and non-resident fee schedules will apply to the Master Fee Schedule Chapter VII, B.1, B.2, C.1, C.2, and C.3. 2. Proof of residency in the City of Chula Vista shall be one of the following: a. Valid California Driver's License displaying City of Chula Vista address on license, or official I.D. card issued by the Department of Motor Vehicles for non-drivers. b. Current year utility bill listing name and address of current residence or property in Chula Vista on which property taxes are being paid. c. Active duty or retired military identification card. d. Property tax statement. Master Fee Schedule Page 1 Part I General Chapter VII Recreation Programs/Facilities /~.~ ._ ~)7] B. PROGRAMS 1. Swimming a. Aquatic Classes Fees for various aquatic Recreation Division programs and classes shall be as follows. Non-Resident surcharge is 50%: RESIDENT W/NO'N-RESIDENT ADULT/YOUTH ADULT/YOUTH ' ' ' $2~-30/participant $34 45/participant Summer Learn to Swim Ad ....... $2~, ~. ...... ~, ........ ~. ...... ~. .... 2 SummerTinyTots Swimming $23-30/participant $3445/participant 3 Summer Parents and Tots $23-30/participant $34 4~5/participant 4 Sprin.q-Fall Learn to Swim $2~7/participant $40/participant 5 Sprinq-Fall Tiny Tots $27/participant $40/participant ¢ Sprin~-Fall Parent and Tot $27/participant $40/participant ,5_7- Adult Lessons $35/participant $53/participant 6-8 Private Lessons $200/participant $300/participant [Resolution 18356, effective 7/9/96] b. Pool Passes Summer Pass (Memorial Day throu~qh Labor Day) Family $75 Senior $40 Adult $50 Child $ 30 _ayt ..... ~ .... ber Quarterly: Family - $50 $75 (Memeria! r~ ~, ..... ~, ~ Othe~Datos Purchase Quarte¢,y Pass or ,Z~m, issieF~ Senior - $3~ 4_~0 Adult - $48 50 Child - $'F~30 (Mere. ....... · t ..... ~ .... ~er Other Dates - Purchase Daily Admission or other swim pass Quarters: Quarter 1: January- March Quarter 2: April - June Quarter 3: July - September Quarter 4: October - December c Ten Swim Pass Child $10 Adult $20 Senior $15 d Annual Pass Family $225 Child $90 Adult $175 Senior $135 6,9. Daily Admission Fee Child: $1.002.00 Adult: Senior $ ...... 00 2. Other Fees for Recreation Division activities and classes shall be set in consideration of the City's full cost including overhead. Non-Resident surcharge for activities and classes will be 25%. C. FACILITY USE Recreation facilities are available to groups only when City programs are not scheduled. Policies and regulations governing facility use permits are provided in Council Resolution t2343. An employee or City-appointed representative must be present during use of listed facilities. 1. General Facilities - Use Permit a. Group Priorities Facilities are available for recreation activities under the following order of priority based on group classification. Non-Resident surcharge is 100%. Classification 1: City programs. Non-Resident surcharge not applicable to city sponsored uses. Classification 2: Chula Vista community service organizations related in purpose to recreation and the furtherance of community leisure programs. Classification 3: Chula Vista civic and social organizations which are democratic in character with membership open to the general public or designated elements thereof. Classification 4: Private resident groups requiring large facilities for special events not open to the general public. If applicant is a Chula Vista resident, the Non-Resident surcharge will not apply. Classification 5: Unions, employee associations and special recreational groups and non-residential groups requiring public facilities for fund raising to perpetuate special interest. If applicant is a Chula Vista resident, the Non-Resident surcharge will not apply. Classification 6: Private individuals or groups offering recreational type activities for the purpose of monetary gain. If applicant is a Chula Vista resident, the Non-Resident surcharge will not apply. b. Basic Fee Setqe~dle The Basic Fee is based on the .qrou. p's classification as described in Section A above for Classifications 2 throuqh 6, and includes a Facility Use Fee and an Hourly Staff Fee. There is no charqe for .qroups in Classification 1. The Facility Use Fee is charged on an hourly rental rate basis, per the Schedules outlined below. Hourly Staff Fees are also charged, at the prevailinfl hourly staff rate, for any activities requirinfl supervision, room or facility set-up, or custodial services. There is an additional charqe if special services are required.Fees willbe.~-,- ' ' ' -,,~,~ ...... ~ the-greuc~s, c--- "~'~-- ' . '.*;il! b~-~:~n, ad-- · -- %- ' ' I Facility Use Fee Schedule h Community organizations in classification 2 or 3 shall be granted use of facilities without charge if no additional staff is required and if admissions fee/contribution is not collected. If additional staff is required, the community or.qanization will be charged prevailinq Hourly Staff Fees. Facility Use Fee Schedule I1: Community organizations in classification 2 or 3 can use facilities on an actual cost basis if a contribution/fee is assessed for charitable purposes. ..... U~ ~ ......... Actual costs are the Hourly Staff fees fer ,. .......... and a minimum utility charge as shown in fee schedule 2LI. Facility Use Fee Schedule II1: Resident organizations and individuals in Classification 4 not qualifying for Fee Schedules ~-/or 2-11_will be assessed the ....... rate-Facility Use Fee shown in Fee Schedule 8111, plus the Hourly Staff Fee. Facility Use Fee Schedule IV: Those individuals or groups in 6.~...ge .... Classification 5 and 6 will be assessed rates.the Facility Use Fee based on Fee Schedule 4IV or 30 percent of gross receipts, whichever is larger, plus the Hourly Staff Fee. A financial report must be submitted one week after the activity is held if an admission fee was charged. If applicant is a Chula Vista resident, the Non-Resident surcharge will not apply. Non-Resident surcharge will be applied to fee or 30% of gross receipts, as applicable. For the Non-Resident surcharge for Facility Rentals, all hourly rates listed below will be increased by 100%. FACII 'IY [S[! FEE SCHEDULE Facility I_1 III IX/' Per hour Per hour Per hour 1. Parkway Gymnasium a. Gymnasium $1015 $4060 $8012~0 2. Parkway Community Center a. Auditorium/Main Hall $4015 $g850 $:7010~0 b. Classroom $51~0 $ i.`53,~0 $306~0 c. Dance room 1~ ~ ~ e,d Kitchen facilities $3_5 $310 $32~0 3. Lau6er~,ach Heritag~_Com m unity Center a. Auditorium/Main Hall $1~5 $5~0 $10--0 b. Classroom Outdoor/sta,qe $1_~5 $ 5.~0 $10-0 c. Craft room 1~ ~ ~ 6d. Kitchen $~5 $1~0 $2--0 4 Norman Park Senior Center $100 $1005200 5. Loma Verde Recreation Center a. Auditorium/Assembly Hall $4815 $3850 $7~100 b. Classroom $,510 $1~25 $305-0 c. Dance room 510 ~_0 ~6._0. 6d. Kitchen $3_5 $310 $32-0 6. CV Community Youth Center a. Gymnasium ~ $3~50 $6010-0 b. Classroom ~ $4030 $2~60 c. Dance room ~1~ $25 ~50 7. CV Woman's Club $807,.7~5 $68150 8. Other Recreation Facilities a. Memorial Bowl $30560 (2 $605120 hour minimum) b. Sunr!sc Center $8 $20 $40 409. Otay Recreation Center a. Gymnasium $10 540550 $805100 b. Fitness Center Fee for 12 week session Resident Non Resident Adults & Senior $~,625 $3250 ~14 to 18 5815 5:K~30 Senior ~_ $40 9.10 Swimming Pools RENT STAFF AS NEEDED a. Loma Verde/Full pool $4Ol00/hr plus Prevailing hourly staff rate /Partial pool $25/hr plus b. ParkWay/Full pool $38100/hr plus Prevailing houdy staff rate /Partial pool $25/hr plus c. Rental by ARCO OTC** $2~2_~5/hr plus Prevailing hourly staff rate d. Rental by CVESD or SUHSD** $202__5/hr plus Prevailing hourly staff rate [Resolution 18356, effective 7/9/96] *[Resolution ~8777, effective 9/23/97] **[effective FY99/O0] c. Cancellation Fee Recreation office must be notified of cancellation a minimum of 48 hours prior to scheduled time for activity. Failure to do so will result in forfeiture of the fee. d. Required Deposits (Non-Resident surcharge does not apply to deposits). A cleaning/damage deposit of $200 may be required for certain activities. An additional deposit of $100 will be required of groups granted permission to have alcoholic beverages. e. Variations Variations of stated fees must have approval of the Recreation Director. f. Custodial Fees Chula Vista Women's Club - $60.00 per rental Norman Park Senior Center - $25.00 per rental Chula Vista Community Youth Center - $60.00 per rental Otay Recreation Center - $60.00 per rental 2. Picnic Shelters For the Non-Resident surcharge for Picnic Shelters, all Reservation Fee rates listed below will be increased by 100%. Medium Small (Cluster) Large a. Reservation Fee $30 $90 $120 b. Cleaning/Security Deposit $25 $75 $100 c. Maximum Group Size 50 100 200 d. Cancellation Fee- All groups that cancel a reservation will be charged a $5 handling fee. [Resolution 2001-14l, effective 05/15/01 The picnic shelter reservation rental season at R~hr Park shall be from March through October. [Resolution 18356, effective 7/9/96] 3. Ballfields For the Non-Resident surcharge for ballfields, all reservation fee rates listed below will be increased by 100%. Li~lhted Unlighted a. Reservation Fee $30/hr* $20/hr b. Cleaning/Security Deposit N/A N/A c. Maximum Group Size N/A N/A d. Cancellation Fee Groups that cancel a reservation will be charged a $5 handling fee. [Resolution 18356, effective 7/9/96] *Additional fee of S8.00prevailinq staff rate per hour for staff to turn on lights, field preparation requested and turn off lights which will include travel time to site location. $10.00 per hour charged for lighted fields for Youth Sports Council organizations during regular seasoned activities. 4. Adult Athletic Leagues Adult Athletic Leagues utilizin¢~ fields shall pay a Maintenance Surcharge fee of $50 per team per season. For non-resident leagues, the Maintenance Surcharge fee is additionally increased by 50%. [Resolution 17939, effective 7/I/95] 5. Therapeutics Program All persons who wish to participate in a city sponsored Therapeutics Program shall pay an annual membership fee of $30.00; ...... $40.00, $5~0.00 per year for non-residents. [Resolution 17939, effective 7/1/95] 6. Youth Sports League Fee - $10/team/season [Resolution 18356, effective 7/9/96] 7. Tournament Field Use Fee - $20/team/toumament [Resolution 18356, effective 7/9/96] 8. Facility use permits for the use of special equipment for private parties in City parks. Resident Non-resident a) Commercial Vendor Permit - A Commercial Vendor Permit - A $60 $30 fee will be charged for the use fee will be charged for the use of an of an air jump, pony ride, llama ride, air jump, pony ride, llama ride, petting zoo, or similar-product, petting zoo, or similar product b) $50/permit/day for business $100/permit/day for business offering offering recreational-type activities recreational-type activities for profit. for profit. a) [Resolution 2001-141, effective 05/15/01] b) [Resolution 18356, effective 7/9/96] 9. Special Interest Classes. Contractual classes shall have a $5.00 registration fee per participant. D. FEE ADJUSTMENTS All fees in Section B and C hereinabove shall be adjusted annually by the Consumer Price Index (CPI), San Die.qo All Urban Consumers, in June of each year, rounded to the nearest dollar, and effective for the start of the summer class season. Aflachment C Fee Surveys from other Cities IN J~-- PRE-BEGINNER ......... RESIDENT 27 65 42 ' '"' :'"'"'-~ I ON-RESIDENT 37 42_ 68 LEARN TO SWIM ' / RESIDENT 25 75 35 35 35 75 35 For-Profit team~ 100 ilia 30 · 65;~ 60 Commercial 100 n/a n/a n/ac ~-~J 175 n/a Parties 35 n/a 40 ~ 175; 200 = ~ 16 n/a included ~ ~ included included CITY OF CARLSBAD SWIM COMPLEX 2/12/2003 IAgency ICity of San DiegolCity of La Mesa Icity of National City ICity of Coronado IMEAN (average) l~eSide'n{ "l ~ "~' 29.25 1 S 30.oo I$ 25.00 1 $ 30.00 1 $ 28.57 INon-Resident I N/A I $ 35.00 I $ 40.00 1 $ 35.00 I $ 36.67 ..................................................................... 25 00' '"" 30 00 ' $ 27 32 Resdent $ 2925I $ 25.00 $ . $ . , · INon-Resident I ~u^ I $ 30.00I$ 4o.oo I $35.001 $ 38.oo [Resdent ! $ 107.00 $ 100.00 ' N/A $ 100.00 I $ 102,34 lEon-Resident I N/A I $ 105.00 I N/Al $ 105.00 I $ 105.00 IRed' ~ er Safet~ nStruct(~r trinc udes Fundamentals of nstructo[~Tra n nO;course), ~ ~ ~- '~ '~,- ~--' ~Resident ' I$86.00 1 $ 50.0,0 1 N/A I $ 100.00 $ 78,67 INon-Resident I N/A I $ 55.00 I N/A I $ 105.00 I $ 60.00 I Po0~Be~a!S ~u~y)~ not mppd!ng me ne~ fo~ a ,dclit!onal lifegua~s: :, : ~ .~,,,,, ..... ~ ~,~ ~ ~ ~:~ ~.~:. ~= J'Exclusi~;e'Use I ~ 44.00 I $ 60.00 N/A $ 64.00 $ 56.00 INon-Exclusive I $ 26.75 I $ 30_00 I N/A $ 56.45 $ 37.34 ISchools, etc. J $ 30.25 I $ 30.00 I $ 25,00 I N/A J $ 28.42 Oriqinal Posting: The City of Costa' Mesa is reviewing its Aquatics and pool programs. We have specific fees for specific programs, but ara exploring an Annual Swim Pass. Do other cities have annual posses, how much do you charge for them, what do you base that charge on and what programs would they cover (or would not cover?). Responses: Huntington Beach: We do not have an annual swim pass but we do have a 20 visit, lap swim punch card that is available for $~0. Lap Swim $3/visit Rec. Swim $2/visit (price starting April 7) City of Hanford: Offer coupon books for $10.00. A book of 10 is good for 10 admissions for children ages 6 to 17 at $1.00 each. ~This is a savings of.~O cents on each admission or $§.00 per book. Our regular admission is - ages0to§ = .~0 ages 6 to 17 = $1.~0 ages 18 and up = $2.00 Geniors and disabled are also $1 .~0 City of Pleasanton: Does not offer an annual pass. We sell single daily admission, 1§ swim punch pusses and a monthly pass City of ¢arpinteria: We offer annual passes for Family ($400), Corporate - employees ($1200) Zndividual ($300). The posses include Lap Swimming, Masters Swim Program, and our Aqua Aerobics Program. City of Dixon: Has only one pool that is open from spring through fall. We charge swim teams $1:~.00 per hour for use. All other use is on a daily fee basis. City of Selma. We do not have one presently. City of Lacuna Niguel: SW3;MMZN& POOL ZNFORMAT3;ON Daily Annual Pool Pass Ages Ticket Residents Non-Residents Adult(14-§9) $2.00 $90.00 $110.00 Youth(Z-13) $1.50 $50.00 $70.00 Senior(60 & Up) $1 .§0 $50.00 $70.00 Annual pass valid for one (1) year from date of purchase. (Proof of residency will be required, e.g. driver's license). Pass is only for public use times. City of Concord: The following swim passes we offer to the public. All fees are set by our City Council. Lap swim l§-punch pass ~r~t2 Rec swim adult 15-pass $42 Rec swim child l§-pass $36 Rec Swim tot l§-pass $28 Family pass for the entire summer (Rec swim only) $175 for a family (household of 4) and $10 for each additional member. City of El Segundo: Does not have any type of booklet for lap or rec swim, All residents of El Segundo are free and all othe~s 2 years or over are $3. City of Vacaville Has swim passes in a couple different areas. Our Water Aerobics and Lap Swim Passes are as follows; 30 visit Swim Pass - $75 30 visit Senior Pass - $50 Single visit pass - $3.50 single visit senior pass - $:~.§0 These passes can be used in any of our year round HZO fitness programs and have no expiration date. Open Swim Passes (for use all summer from Mid May opening through close of open swim in September are as follows: Family of 4 - $180 with option of extra immediate family members at $20 each Family of 3 - $135 Seal Beach: We cha~cje $32 for :16 swims, $64 for 34 swims and $200 for a year pass. The year pass swimmers are not allowed to bring a guest, it is for the pat~on only. The other pass patrons are allowed to have guests. City of Dublin: The only long-term pass we offer is a Family Season Pass. Family passes may be used during recreational swim hours from April to September by any immediate family member residing at the same address (maximum of 6 people). The cost is $115 for residents, $132 for non-residents. City of Visalia: We use a "punch pass" for our public swim program during the summer. Normal fees for the public swim program are $1 for children 12 and under/seniors and $1.50 for adults. The punch passes are good for 20 uses and are priced at $:1 5 foe youth/seniors and $22.50 for adults. This represents a savings of $5 for the youth pass and $7.50 for adults. We don't sell a lot of these during the summer but do have some who appreciate this pass. We also offer a discounted pass sold through our community centers for lower income youth at $.50 each. City of Santa Barbara: Does not do an annual pass for any of our Aquatic p~ograms. The current passes we offer are non-expiring and are good for a designated amount of usage. $3 drop-in fee. 30-visit pass - $61 :1§-visit pass - $33 Our current recommendations for this new budget year is: ~ drop-in fee 15 visit pass - $51 Our only swim pass now will be the amount of visits at a daily fee (minusl §%). City of Ma~tinez: Does not do swim passes. We ha~e never had any success with passes. Our best summer, we sold five. Family of 2 - $90 We find that we may sell an average of 40-~0 passes a year in open swim - City of Brentwood Sells swim pass entries. The more entTies you buy, the be~ter the rate. Single entry is $3.00 per person. l0 Swim Entry Pass is $2§. 2§ Swim Entry Pass is $~0 Rec swim passes are not valid for Lap passes or foe any "special events" Entries can be used by any one with your group and any entries left on the pass can be rolled over to the next season. City Fee Survey (I) Rental Rates (residential/non-residential) General Pubfic Schools Swim Team City Employees (2) Rec Swim Fees Daily Weekly Quarterly Yearly (3) Class Fees Swimming Classes Masters Water Exercise (4) Lifeguard Reimbursement (5) Other City of Coronado Rental Rates $45 1~ four hours $10/hour guards Insurance Rec-swim fees baily- SI/res $3/non-res Child/seniors: .75/res $2/non-res Monthly- $15/res $30/non-res Class fees Swimming classes- $30- $35 res/non-res Masters- separate entity Water exercise- Sa/res $3/non-res City o(Carlsbad P.e nt~l R~tes Commercial- ~80/hour + Li(¢cjuard (~15/hour/per lifeguard) Eve~hin9 else -~2/bour+ liFeguar~ fsame as ~bove) Eec Swim Fees Daily- }1 youth an4 teen/Adult res=~2/non res= ~ 1 month- Family = .~30 non r~= j40 indivtdual=$20/rm }SO/non-res 4 months-~50/r~ ~60/non-res indiv/dual=~g2/res $52/non-res M;tsters Monthly- ~.~2.50/res ~4-2.$0/non-res Swim Classes L~v¢l cJasses- ~25/r~ i;55/non-rcs Eve~:hing eJse- ~25/res C hZlx~b-en ( 3 -~ 7 )= $ ~ Chad.~en (0-2) = free ,S w 6m~ T ~,~y Totw (3 -5)= $ 3 0 /res $ 41/ru:~-res 6 -11 yrs. 0~I~= $2z~/res$31/~9~res par e/nt aJ~I Tot= (2-3) $ 2 7 /res $ 3 7 / m:~x~ res $ 22~res $ 30~no'n-reS pool re.,xl2U~ $ 50/Ttov~ ( ' ' 2/]xov~s) ' ' 2 $13 /]xov~ prlvcrtePocrty: $ 5/txov~- $50 ~t~ fee (e.x~ biet3rda.y party City of Laguna Niguel Rental Fee- General- $100 2hour minimum includes 2 guards ($25 after two hours) Swim Team contract- 70/30 spilt Commercial rate- $50/hour (2 hour minimum)- includes guard Rec Swim 200 adult 150 kids under 14 Passes- Adult Res= $90/yr >Adult non-res $110/yr Senior/youth= res/non-res=$50-$70/yr Summer- Youth only $28/res-$35/non-res Class Fees Group- $30/res $45/non-res Private/semi= $50/res $60/non-res Water exercise- 70/30 25 additional staff City of' La Mesa Rental Rag:es ~/-/-O/hou r minimum 2 bou~ ibis includes 1 guard (10 add~ional Guards) Schools: ~23/bour includes guards Swim ~eam Rec 5win'/ ~2 adult ~1 teen/child/disabled Passes- 20 swims= Adult Res/non-res: $29/~59 ~14.50/senior s non -res ~9.50 Family summer- ~7~ adul* res/~00 non-res ~19-you~b res ~28/non-res ~qO/vr. ~es non-res= ~9 ~SS res/senio~ ~7~ non-res/seniors 5wimmin~ Infant/toddler- Res/~25 non-res/ L~s= $17 res $25 non-res Ma;~:er_s Monthly- $30res $40 non-res C$4res $5 non Wa~ter exercise-2days- ~2~ r~/~52 non-res 3 da~- }~0 r~/$~ non-res 5 da~- ~ res/~S~nnon-tes City of National City Rec swim fees 1.50 all ages (general Admission) Class fees Parent And Tot, Tiny tot, and Learn to swim Residenfal= $25 Non-residential=S40 N.C. swim club= $300 dollars a month No masters Splash parties- 1.50 per child/teachers free City of San Diego Rental Rates 42-50/hour- includes two guards Each additional guard 12.50 per hour 1 guard every 25 people Rec swim fees 1.50 children 2.00 adults 20 ~vims seniors/children= $25 20 swqrns adults= $35 Class fees Large groups= 28.25 2 weeks Small groups= 42.50 (smaller student/teacher mt/o) 2 wee-ks Water exercise= 4.00 adults 10 classes= $25 2.50 senior- 10 classes: $ 20 Attachment D City of Chula Vista Parks and Recreation Commission Minutes :so p.m. Ap i lg, 2003 Public Works Ce Meeting called io or~y Lo, un ~n W 6:5) Staff Present: I Bu~k MFIrl n, Director o,~/Re(ir~at,pr~ J Dqve Bye, Directorial ?u~J~ ~Cc~/o~R%c~ OhS I Sh~bunqSt .:s ,r'A, ssis t clLq t uir ........ y on[ I Br~n Cjbx, nc~ip~al Retreat ion Managef L-d6hn g/at~ R~Jcr~atior~Su~,ervisor \ Bob ~orri! ecjrec~ion S~l~ervi~oq'~-~ Ted~elso ,)e~_r_e_~io,.n S~perv~sor III Vr~toria 1'c 7f~ecreL, liu,, ou~)d visor II'~ Michelle Castagnola, Recreation Supervisor II Sandy Lucero, Recreation Supervisor II Jim Thomas, Recreation Supervisor II Mark Basnight, Aquatics Coordinator 1. Roll Call/Motion to Excuse Members Present: Commissioner Rude, Commissioner Weidner, Commissioner Commissioner Strahl, Commissioner Rios, Members Absenf: Commissioner Perondi, Commissioner Salcido, Commissioner Ramos 2. ACTION ITEMS a. Proposed Fee Increases for Recreation Department - Mr. Martin (Director of Recreation) asked that staff present introduce themselves to the Commission. Mr. Martin also commended staff for their hard work on the report. Ms. Stokes (Assistant Recreation Director) reviewed the Proposed Fee Increases report for the Commission. Ms. Stokes stated that staff surveyed other jurisdictions and providers to ascertain mean levels of fees and charges. Chula Vista Recreation Department fees are below the mean for jurisdictions surveyed. As a result of the surveys, staff is proposed fee increases and new fees in the Master Fee Schedule in Aquatics, Facility Rentals, Athletics and Therapeutics, and fee increases for camps, which are not included in the Master Fee Schedule. Ms. Stokes informed lhe Commission that fees have not been revised since 1995 - 1997 and in some cases far back as 1990. In addition, Operating Cost Calculations were discussed, which do not include custodial and building maintenance services. A $5.00 registration fee will be re-instituted for contractual classes. The Department cannot set the class fees charged by the individual contractors. These fees do not include YSC fees, in vs. out of season sports. Ms. Stokes reviewed the Master Fee Proposal and reviewed the current fee and proposed fee. Users at the pools are being given options of purchasing quarterly and yearly passes. Parks and Recreation Commission April 9, 2003 Page 2 MS. Stokes clarified that the Facility Use Fee Schedule for Loma Verde Center classification should read $60.00, and Memorial Bowl fee is $30 - $60.00 per hour with a 2 hour minimum. Ms. Tom, Recreation Supervisor II clarified for the Commission that Heritage Park Center rental increase should read "$85.00" and increased to "$90.00". Language in the Master Fee Schedule of the picnic reservations will change by removing the word "Rohr Park" per the request of the Mr. Byers (Director of Public Works Operations). Therapeutics Program registration increase from $30.00 fo $40.00 for Chula Vista residents. Athletic Leagues will not be included in the Master Fee Schedule. MSC Rude/Strahl (4-0~0-3) (Ramos, Perondi, and Salcido absent) accept and ' recommend adoption of the proposed fee increases for the Recreation Department 3. Information Items - None 4. Old Business - None 5. New Business - None 6. Written Communications - None 7. Commission Comments Commissioner Weidner stated that she would not be attending the April 17, 2003 Commission and requested to be excused. Commissioner Rude informed the Commission that chairs that are used for special events in Memorial Bowl are flimsy, and requested that staff examine the chairs prior to setting them out. 8. Staff Comments Mr. Martin IDirector of Recreation) thanked the Commission for re-arranging their schedule and attending tonight's meeting. Mr. Byers (Director of Public Works Operations informed the Commission of the parking lot overlay at Loma Verde Complex. Special Meeting of the Parks and Recreation Commission adjourned at 7:35 p.m. to the regularly scheduled meeting of 4/17/03 in the Mercy Conference Room at 6:30 p.m. Submitted by: Margarita Celiano Recording Secretary Recreation Department RESOLUTION NO. 2003- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMENDING THE MASTER FEE SCHEDULE TO EFFECT CHANGES TO EXISTING FEES AND THE ADDITION OF NEW FEES FOR RECREATION WHEREAS, the Recreation Department is currently engaged in a strategic plan process to articalatc prioritics csscntial to fulfilling departmental and City missions for the next five years; and WHEREAS, recreation stalTsurvcycd othcrjurisdictions and providers to ascertain average levels of fees and charges and found that the City's current fees are considerably below the avcragc of jurisdictions surveyed; and WHEREAS, costs to provide services havc incrcascd in all areas of Recreation; and WHEREAS, staffthen madc an asscssment of what increases would be appropriate in the Chula Vista "market", taking into account resident dcmand and willingness to pay; and WHEREAS, these proposed fee increases are reasonable and necessary, given incrcascd costs for cxisting services; and do not exceed the cost to provide these services and programs; and WHEREAS, the Parks and Recrcation Commission approved adoption of the new fccs at a special commission meeting on April 9, 2003. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does hereby amend the Master Fee Schedule as shown on Exhibit "A" to effect changes to existing fccs and thc addition of new fees for Recreation. Presented by Approvcd as to form by Director of Recreation City Attorncy CHAPTER VII [ Recreation Programs/Facilities A. NON-RESIDENT POLICY 1. Fees for various Recreation Division programs and classes shall be composed of fees applying to legal residents of the City of Chula Vista and fees for non-residents. A resident shall be considered any person residing within the City limits, and who can show proof of residing, as defined in Chapter VII.A.2; and/or any person paying property taxes to the City of Chula Vista, and supplying proof of residency or property ownership, as defined in Chapter VII.C.2. The resident and non-resident fee schedules will apply to the Master Fee Schedule Chapter VII, B.1, B.2, C.1, C.2, and C.3. 2. Proof of residency in the City of Chula Vista shall be one of the following: a. Valid California Driver's License displaying City of Chula Vista address on license, or official I.D. card issued by the Department of Motor Vehicles for non-drivers. b. Current year utility bill listing name and address of current residence or property in Chula Vista on which property taxes are being paid. c. Active duty or retired military identification card. d. Property tax statement. MasterFee Schedule EXHIBIT "A" Page 1 Part I - General Chapter VII - Recreation Programs/Facilities B. PROGRAMS 1. Swimming a. Aquatic Classes Fees for various aquatic Recreation Division programs and classes shall be as follows. Non-Resident surchar~]e is 50%: RESIDENT WTNC~N-RESlDENT ADULT/YOUTH ADULT/YOUTH 1B~ ..... ~'"~'"'"~'~" $:2~30/participant $34 45/participant Summer Learn to Swim 2 SummerTinyTots Swimming $2~-30/participant $3,1,!5/participant 3 Summer Parents and Tots SL:~-30/participant $34 ~15/participant 4 Spr ng-Fall Learn to Swim $2~7/participant $4_Q0/participant 5 Spring-Fall Tiny Tots $27/padicipant $40/participant 6 Sprin.q-Fall Parent and Tot $27/participant $40/participant ~7- Adult Lessens $35/participant $5$/participant 6-8 Private Lessons $200/participant $300/participant [Resolution 18356, effective 7/9/96] b. Pool Passes Summer Pass (Memorial Day through Labor Day) Family $75 Senior $40 Adult $50 Child $ 30 Quarterly: Family - ,~ $75 (Mcmcria!--~r~"" ,~.....w~..~. -~v.' ~'"" -~,~"~ Senior - $;?,~ 4__Q0 Adult - $4.5 50 Child - $4~30 (Mcmoric! r~..,, ,~. ..... ~. ~ ..~.,.. r~o,,~ Other Dates - Purchase Daily Admission or otherswim pass Quar[ers: Quarter 1: January - March Quarter 2: April - June Quarter 3: July - September Quarter 4: October - December c Ten Swim Pass Child $10 Adult $20 Senior $15 d Annual Pass Family $225 Child $90 Adult $175 Senior $135 ~_e Daily Admission Fee Child: $! .002.00 Adult: $1.503.00 Senior ..... 2.00 2. Other Fees for Recreation Division activities and classes shall be set in consideration of the City's full cost including overhead. Non-Resident surcharge for activities and classes will be 25%. C. FACILITY USE Recreation facilities are available to groups only when City programs are not scheduled. Policies and regulations governing facility use permits are provided in Council Resolution 12343. An employee or City-appointed representative must be present during use of listed facilities. 1. General Facilities - Use Permit a. Group Priorities Facilities are available for recreation activities under the following order of priority based on group classification. Non-Resident surcharge is 100%. Classification 1: City programs. Non-Resident surcharge not applicable to city sponsored uses. Classification 2: Chula Vista community service organizations related in purpose to recreation and the furtherance of community leisure programs. Classification 3: Chula Vista civic and social organizations which are democratic in character with membership open to the general public or designated elements thereof. Classification 4: Private resident groups requiring large facilities for special events not open to the general public. If applicant is a Chula Vista resident, the Non-Resident surcharge will not apply. Classification 5: Unions, employee associations and special recreational groups and non-residential groups requiring public facilities for fund raising to perpetuate special interest. If applicant is a Chula Vista resident, the Non-Resident surcharge will not apply. Classification 6: Private individuals or groups offering recreational type activities for the purpose of monetary gain. If applicant is a Chula Vista resident, the Non-Resident surcharge will not apply. b. Basic Fee ~ The Basic Fee is based on the .qrou. p's classification as described in Section A above for Classifications 2 throuqh 6, and includes a Facility Use Fee and an Hourly Staff Fee. There is no charqe for qroups in Classification 1. The Facility Use Fee is charred on an hourly rental rate basis, per the Schedules outlined below. Hourly Staff Fees are also charred, at the prevailing hourly staff rate, for any activities requirinq supervision, room or facility set-up, or custodial services. There is an additional charge if special services are required F ...... ;" ~'~ "~' .... Facility Use Fee Schedule I: Community organizations in classification 2 or 3 shall be granted use of facilities without charge if no additional staff is required and if admissions fee/contribution is not collected. If additional staff is required, the community organization will be charqed prevailinq Hourly Staff Fees. Facility Use Fee Schedule I1: Community organizations in classification 2 or 3 can use facilities on an actual cost basis if a contribution/fee is assessed for charitable purposes. Charges cra based on act,Ja! Actual costs are the Hourly Staff fees ~ ..........' and a minimum utility charge as shown in fee schedule Facility Use Fee Schedule IIh Resident organizations and individuals in Classification 4 not qualifying for Fee Schedules 4-/or 2-1/will be assessed the ¢ental rote Facility Use Fee shown in Fee Schedule ~111, plus the Hourly Staff Fee. Facility Use Fee Schedule IV: Those individuals or groups ' ~n .... ~ ..... Classification 5 and 6 will be assessed ra~s-the Facility Use Fee based on Fee Schedule 4IV or 30 percent of gross receipts, whichever is larger, plus the Hourly Staff Fee. A financial report must be submitted one week after the activity is held if an admission fee was charged. If applicant is a Chula Vista resident, the Non-Resident surcharge will not apply. Non-Resident surcharge will be applied to fee or 30% of gross receipts, as applicable. For the Non-Resident surcharge for Facility Rentals, all hourly rates listed below will be increased by 100%. F^CI1 TY USE FEE SCHEDULE Facility tl Ill bV Per hour Per hour Per hour 1. Parkway Gymnasium a. Gymnasium $4915 $4.~60 $89120 2. Parkway Community Center a. Auditorium/Main Hall $~4;)15 $8~50 $74)100 b. Classroom $810 $4830 $;~6~0 c. Dance room ~ $30 $60 c.d_ Kitchen facilities $3~ $31(3 $32_9_0 3. Lz,Jdcrbcch Heritage Community Center a. Auditorium/Main Hall $1_.5,5 $5._9.0 $100 b. Clccsroc,m. Outdoor/sta,qe $1,]~5 $5(3 $100 c. Craft room $10 ~ $60 ¢~d. Kitchen $_5 $1(3 $2_00 4 Norman Park Senior Center $100 $1005200 5. Loma Verde Recreation Center a. Auditorium/Assembly Hall $491,~5 $385(3 $79100 b. Classroom $,~ 1.~0 $¢82~5 $385_00 c. Dance room ~ $30 ,~,360 ~d. Kitchen $3§ $310 $320 6. CV Community Youth Center a. Gymnasium ~ $8850 $6010--0 b. Classroom $1~0 $¢030 $24)60 c. Dance room $10 $25 $50 7. CV Woman's Club $6~75 $6~150 8. Other Recreation Facilities a. Memorial Bowl $30560 (2 ,,vv$120 hour minimum) · ' ~ $20 489. Otay Recreation Center a. Gymnasium ~ $40550 $805100 b. Fitness Center Fee for 12 week session Resident Non Resident Adults & Senior ~1625 $3250 ~k:~e~-14 to 18 $815 $¢930 gM0 Swimming Pools RENT STAFF AS NEEDED a. Loma Verde/Full pool $4~100/hr-plus Prevailing houdy staff rate /Partial pool $25/hr plus b. Park Way/Full pool $3~100/hr ptus Prevailing hourly staff rate /Partial pool ~;25/hr plus c. Rental by ARCO OTC** $2~2~5/hr plus Prevailing hourly staff rate d. Rental by CVESD or SUHSD** $2825/hr plus Prevailing hourly staff rate [Resolution 18356, effective 7/9/96] *[Resolution '/8777, effective 9/23/97] **[effective FY99/O0] Z¢- '7': c, Cancellation Fee Recreation office must be notified of cancellation a minimum of 48 hours prior to scheduled time for activity. Failure to do so will result in forfeiture of the fee. d. Required Deposits (Non-Resident surcharge does not apply to deposits). A cleaning/damage deposit of $200 may be required for certain activities. An additional deposit of $100 will be required of groups granted permission to have alcoholic beverages. e. Variations Variations of stated fees must have approval of the Recreation Director. f. Custodial Fees Chula Vista Women's Club - $60.00 per rental Norman Park Senior Center - $25.00 per rental ~,,....~ ~- ...... ~,,, ¢-...,~r $75 OO Chula Vista Community Youth Center - $60.00 per rental Otay Recreation Center - $60.00 per rental 2. Picnic Shelters For the Non-Resident surcharge for Picnic Shelters, all Reservation Fee rates listed below will be increased by 100%. Medium Small (Cluster) Large a. Reservation Fee $30 $90 $120 b. Cleaning/Security Deposit $25 $75 $100 c. Maximum Group Size 50 100 200 d. Cancellation Fee - All groups that cancel a reservation will be charged a $5 handling fee. [Resolution 2001-141, effect~'ve 05/15/01] The picnic shelter reservation rental season at Rchr Park shall be from March through October. [Resolution 18356, effective 7/9/96] 3. Ballfields For the Non-Resident surcharge for ballfields, all reservation fee rates listed below will be increased by 100%. Lighted Unlighted a. Reservation Fee $30/hr* $20/hr b. Cleaning/Security Deposit N/A N/A c. Maximum Group Size N/A N/A d. Cancellation Fee Groups that cancel a reservation will be charged a $5 handling fee. fRexolution 18356, effe~ 7/9/96} *Additional fee of $8.00preva inq staff rate per hour for staff to turn on lights, field preparation requested and turn off lights which will include travel time to site location. $10.00 per hour charged for lighted fields for Youth Sports Council organizations during regular seasoned activities. 4. Adult Athletic Leagues Adult Athletic Leagues uti zinc] fields shall pay a Maintenance Surcharge fee of $50 per team per season. For non-resident leagues, the Maintenance Surcharge fee is additionally increased by 50%. [Resolution 17939, effective 7/1/95] 5. Therapeutics Program All persons who wish to participate in a city sponsored Therapeutics Program shall pay an annual membership fee of $ ...... $40.00~40.00; $50.00 per year for non-residents. [Resolution 17939, effective 7/1/95] 6. Youth Sports League Fee - $10/team/season [Resolution 18356, effective 7/9/96] 7. Tournament Field Use Fee - $20/team/tournament [Resolution 18356, effective 7/9/96] 8. Facility use permits for the use of special equipment for private parties in City parks. Resident. Non-resident a) Commercial Vendor Permit - A Commercial Vendor Permit - A $60 $30 fee will be charged for the use fee will be charged for the use of an of an air jump, pony ride, llama ride, air jump, pony ride, llama ride, petting zoo, or similar-product, petting zoo, or similar product b) $50/permit/day for business $100/permit/day for business offer ng offering recreational-type activities recreational-type activities for profit. for profit. a) [Resolution 2001-141, effective 05/15/01] b) [Resolution 18356, effective 7/9/96] 9. Special interest Classes. Contractual classes shall have a $5.00 reqistration fee per participant. D. FEE ADJUSTMENTS All fees in Section B and C hereinabove shall be adiusted annually by the Consumer Price Index (CPI), San Diego All Urban Consumers, in June of each year, rounded to the nearest dollar, and effective for the start of the summer class season. COUNCIL AGENDA STATEMENT Item !~ Meeting Date. 05/13/03 ITEM TITLE: Public Hearing to consider the adoption of an Urgency Ordinance approving an increase of the Sewerage Capacity Charge and the modification of the Master Fee Schedule. Urgency Ordinance Approving an increase of the Sewerage Capacity Charge and the modification of the Master Fee Schedule. SUBMITTED BY: Director of EngineeringA~ REVIEWED BY: City Manager5 [~ 6 flx"0~? (4/5tl~s Vote: Yes X No __) On March 18, 2003 and on April 15, 2003, City Council approved Urgency Ordinance No. 2900-A and Urgency Ordinance No. 2900-B, approving an increase of the Sewerage Capacity Charge and the modification of the Master Fee Schedule to reflect mentioned increase. This proposed Urgency Ordinance will enable the City to continue to collect the charge during the sixty (60) day waiting period before the regular Ordinance becomes effective. The public hearing has been duly noticed. RECOMMENDATION: That City Council: 1. Conduct the public hearing 2. Approve the Urgency Ordinance implementing an increase of the Sewerage Capacity Charge and modifying the Master Fee Schedule. BOARDS/COMMISSIONS RECOMMENDATIONS: Not applicable DISCUSSION: The increase to the Sewerage Capacity Charge was introduced on March 18, 2003 and approved on March 25, 2003 by Ordinance 2900. It will become effective sixty (60) days after its adoption. Urgency Ordinance 2900-A, which was approved on March 18, 2003, will expire thirty (30) days after its adoption. Urgency Ordinance 2900-B, approved by Council on April 15, 2003, will expire thirty (30) days after its adoption. Page 2, Item Meeting Date 05/13/03 Tonight's Ordinance, if approved, will extend the Urgency Ordinance for an additional thirty (30) days. The approved Ordinance No. 2900 allows the City to increase the Sewerage Capacity Charge from $2,220 per Equivalent Dwelling Unit (EDU) to $3,000 per EDU. The same increase was discussed and adopted by the Urgency Ordinance No. 2900-A approved on March 18, 2003. The Council Agenda Statement from that date setting forth details regarding the need of the increase is attached hereto. The basis and mechanism to calculate the new Sewerage Capacity Charge is fully explained in the March 18, 2003 Agenda Statement, attached hereto. Table 1 presents the calculation, using the Engineering News Record Construction Cost Index (ENR-CCI) recommended by the consultant. ENR Construction Cost Index for July 1990 ENR Construction Cost index for July 2002 Increase in Index (6605 / 4734) Revised Fee ($2,220 x 1.3952) Recommended Fee Net Increase ($) This charge will be payable at the time a building permit is issued and will be in addition to any applicable Development Impact Fee. FINDINGS Staff recommends that the increase to the Sewerage Capacity Charge go into effect immediately by adopting the Urgency Ordinance. The urgent execution of the charge is needed in order to require all developments to pay their fair share of the cost of: purchasing additional sewage treatment capacity; constructing improvements to enhance the capacity of the City's sewer system and all other related costs or impacts to the collection system caused by their development. Furthermore, immediate implementation of this fee is necessary due to the current and immediate threat to public safety, which will result, should there be a shortfall in funds required to pay for the required improvements to the wastewater collection system and to purchase additional sewage treatment capacity. The prospect of a deficit, inadequate Page 3, Item Meeting Date 05/13/03 sewage treatment capacity necessary for the continuation of development within the City, and concerns about an increased charge to remaining property owners, constitutes a current immediate threat to the public health, welfare and safety justifying the immediate increase of this fee. ENVIRONMENTAL IMPACT: 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(93) of the State CEQA Guidelines the activity is not subject to CEQA. Thus, no environmental review is necessary. FISCAL IMPACT: It is estimated that over the next eight months that this fee will be in effect prior to the anticipated adoption of the Waste~vater Master Plan, it will result in additional revenues of $1,560,000 (assuming that 2,000 permits are approved over this period). If this Ordinance is not implemented, this revenue will be lost; thereby necessitating additional increases at the conclusion of the study beyond what the final recommendation would have been. The Trunk Sewer Capital Reserve Fund currently has an tmappropriated balance of approximately $4.7 Million Dollars. Attachment 1: Council Agenda Statement for March 18, 2003 J:\Engineer~AGENDA\sewer capacity increase-agenda-3rd Urg Ord.sh doc AT-~-ACHMENr-! / COUNCIL AGENDA STATEMENT Item ~ Meeting Date 3/18/03 ITEM TITLE: Public hearing to consider an increase of the Sewerage Capacity Charge and the modification of the Master Fee Schedule. Ordinance approving an increase of the Sewerage Capacity Charge and the modification of the Master Fee Schedule. Urgency Ordinance approving an increase of the Sewerage Capacity Charge and the modification of the Master Fee Schedule. SUBMITTED BY: Director of Engineering~/ REVIEWED BY: City Manager O~ ct/' (4/Sths Vote: Yes X No ) The City of San Diego, as part of the Metropolitan Wastewater District ("Metro"), provides sewage treatment services to fourteen participating agencies that do not own and operate a sewage treatment facility. The City of Chula Vista, along with the other participating agencies, sends all the sewage generated to the City of San Diego's Point Loma Wastewater Treatment Plant for treatment. In 1985, the City of Chula Vista established the Sewerage Capacity Charge to finance the purchase of capacity in the Metro sewer system, construct improvements to enhance capacity in the City's sewer system and to pay for the treatment of the sewage. Since 1990, the City has not adjusted the Sewerage Capacity Charge, even though Metro's costs for the provision of sewage capacity and treatment have been increasing annually. In addition, no adjustments had been done to this charge to keep up with inflation, as was originally intended at the inception of the fee. The approval of these Ordinances will facilitate an increase of the fee utilizing the Construction Cost Index (which takes into consideration the effects of inflation), pending the completion of a comprehensive study currently underway to determine the new fee amount. RECOMMENDATION: That City Council: 1. Conduct the Public Heating. 2. Approve the Ordinance implementing an increase of the Sewerage Capacity Charge and modifying the Master Fee Schedule (first reading). 3. Approve the Urgency Ordinance implementing an increase of the Sewerage Capacity Charge and modifying the Master Fee Schedule. BOARDS / COMMISSIONS RECOMMENDATION: Not applicable. Page 2, Item Meeting Date 3/18/03 DISCUSSION: Back,round The Sewerage Capacity Charge is paid by the owner or person applying for a permit to develop or modify the use of any residential, commercial, industrial or other property, which is projected by the City Engineer to increase the volume of flow in the City's sewer system by at least one- half of one Equivalent Dwelling Unit of flow. Prior to 1985, the City of Chula Vista was one of the very few agencies, which did not impose a charge against new construction for sewage treatment and trunk sewer capacity. Capacity in such facilities was characteristically provided at public expense and the City typically allowed a wide degree of latitude for community developmenL In March of 1985, the Engineering Department prepared a Study titled "Sewerage Facility Participation Fee Study-Modified March 1985" (Attachment 1 ). The purpose of this study was to investigate the feasibility of establishing a capacity fee that would be applicable to all new sewer connections to the City's sewer collection system. This study recommended among other things, the establishment of a Sewerage Participation fee that would be adjusted on an annual basis to reflect changes in construction costs (suggested basis - Engineering News Record Construction Index most applicable to July 1 of each year). Subsequently, on April 2, 1985, Council approved Ordinance No. 2107, which established the Sewerage Facility Participation Fee, now referred to as the Sewerage Capacity Charge, to enable the citizenry to be repaid for their initial investment and to facilitate the development of Chula Vista. At that time the fee was set to be $300 per Equivalent Dwelling Unit (EDU). Two years later, in anticipation of the significant costs of upgrading the Point Loma Wastewater Treatment Plant to a secondary treatment facility, for which the City of Chula Vista, as well as other participating agencies was liable, Council on May 5, 1987, approved Resolution No. 13004 and Ordinance No. 2002 increasing the Sewerage Participation Fee from $300 to $600. In 1989, following the adoption of the Clean Water Act, the Environmental Protection Agency (EPA) directed the City of San Diego to upgrade the Point Loma Treatment Plant to a Secondary Treatment facility, Since Federal funds were not anticipated to be available for the required upgrades at that time, and the cost of bringing the Plant into compliance appeared to be far greater than what was originally anticipated in 1987, Council, on October 17, 1989 approved Resolution Nos. 15352 and 15352A. These Resolutions increased the Sewerage Participating Fee to $2,000, pending the completion of various studies being conducted at that time to determine the full impacts/costs of upgrading the treatment plant. One year later, on October 9, 1990, Council, by Resolution 15894, further increased the Sewer Participation Fee to $2,220 to enable the City meet its obligation to the Metro System for the upgrade of the treatment plant. The Resolution further recommended that the Sewerage Capacity Charge be increased annually by 11% for a period of 8 to 10 years thereafter. This recommendation was made in anticipation of future expenditures that might have been incurred by the Metro system to comply with EPA regulations. Page 3, Item Meeting Date 3/18/03 Since then, although the original study which established the fee and subsequent Council actions had recommended that the City update the fee annually to reflect the increase in capacity, improvements, maintenance and operation costs, this was not done due to a variety of reasons. Need for the Update of the Sewerage Capacity Charge As stated in Section 3.14.010 of the City of Chula Vista Municipal Code, all revenue derived from the Sewerage Capacity Charge is deposited in the Trunk Sewer Capital Reserve Fund. The Trunk Sewer Capital Reserve Fund is used solely for the following purposes, unless the City Council vote to appropriate such funds for other purposes; provided such other proposes are for the planning, design, or construction of sewage collection or treatment or water reclamation purposes or incidental thereto: 1. Paying all or any part of the cost and expense to enlarge sewer facilities of the. City so as to enhance efficiency of utilization and/or adequacy of capacity in order to effectively serve the needs of the City; 2. Paying all or any part of the cost and expense to plan and/or evaluate any future proposals for area-wide sewage treatment and/or water reclamation systems or facilities. Therefore, revenue derived from the Sewerage Capacity Charge is primarily used to provide capacity both for conveyance and treatment. The City of Chula Vista currently has 19.843 million gallons per day (MGD) of sewage treatment capacity rights within the Metro system; however, the City currently generates approximately 16.5 MGD of sewage. In the last few years, the City has experienced a significant amount of growth, and as the flow generation continues to increase, it is imperative that the City be proactive in planning for the acquisition of additional capacity rights within the Metro system to sustain the City to buildout conditions. More specifically, this increase of the Sewer Participation Fee is needed for the following reasons: 1. Acquisition of additional Capacity Rights The existing capacity in the Metro system was originally acquired with funds generated by the Sewerage Capacity Charge that existing residents paid when they made their connection to the City's sewer system. If reserve capacity in the Metro sewer system had not been purchased, new residents would either not be permitted to connect, or would have been required to pay for the acquisition of additional treatment capacity. Instead, new residents are permitted to connect to the system and make use of the reserve capacity held by the City. Recent projections of the City's future sewage generation and treatment needs indicate that it will soon be necessary for the City to acquire additional capacity rights in the Metro Sewage System. Page 4, Item ~ Meeting Date 3/18/03 2. Annual Increase in Metropolitan Sewerage System Costs The City of Chula Vista is responsible for the operation and maintenance of the local collection system. Wastewater generated fi.om the City is discharged into the Metro system and conveyed to the City of San Diego's Point Loma Wastewater Treatment Plant for handling. In accordance with the terms of the Metro Agreement, the City of Chula Vista pays for the treatment of the wastewater based on the quantity and quality of the generated sewage. Comparing the City ofChula Vista's Metro expenditure during the Fiscal Year when the last Sewerage Capacity Charge increase occurred to the current Fiscal Year, we see that the wastewater treatment costs had increased significantly. The Metro costs include costs for operations and maintenance, capital improvement project expenditure and related debt financing. The capital costs ultimately impact the Sewer Capacity Fee. In Fiscal Year 1990, the City's overall Metro expenditure for sewage treatment for approximately 13 MGD was $4,474,545. More recently, for Fiscal Year 2002, the City's total Metro expenditure for the treatment of 15.3 MGD of sewage was $11,600,242 (See Attachment No. 2). The following table shows these expenditures. FISCAL YEAR SEWAGE ~MGD) EXPENDITURE 1990 13 $ 4,474,545 2002 15.3 $11,600,242 INCREMENT FROM 2.3 $ 7~125,697 FY 1990 TO FY 2002 3. Increase in the Need for Improvements Created by the Demand for More Capacity in the Sewer System The surge of development and the proportionate increase in the demand for wastewater services during recent years has necessitated that the City invest in various improvements to the existing infrastructure. The cost of some of these improvements varied significantly from what was originally estimated. For example, the Salt Creek Gravity Sewer Interceptor which the City partially funded utilizing the Trunk Sewer Capital Reserve Funds ultimately cost approximately $12 Million Dollars more than was originally budgeted. City Council, on August 13, 2002 passed Resolution 2002-297 appropriating funds from the Trunk Sewer Capital Reserve Fund to finance the Salt Creek Gravity Sewer Interceptor project. In addition, the Telegraph Canyon Trunk Sewer was also improved utilizing approximately $2.2 Million Dollars of Trunk Sewer Funds, which was not originally contemplated. The City recently retained PBS&J to update the City's Wastewater Master Plan. The primary goal of the Wastewater Master Plan Update is to evaluate the adequacy of the existing wastewater collection system to sustain the long-term growth of the City. The plan will assist the City in budgeting for Capital Improvement Projects (CIP), allocating resources for the acquisition of additional sewage capacity and determining the short and Page 5, Item ~ Meeting Date 3/18/03 long-term sewer capacity needs of the City. It is projected that the Master Plan will be completed by Fall 2003. 4. Inflation PBS&J has also indicated that by not updating the Sewerage Capacity Charge in the past twelve years, the fee has not kept pace with inflation, therefore its ability to fund the construction of capital projects or the acquisition of additional sewerage capacity in the Metro system as it was originally intended, has been significantly reduced. This inflationary trend was considered back in 1984 when the Sewerage Capacity Charge was created, and to avoid it, an annual fee adjustment was recommended. The 1984 Study, suggested the Engineering News Record Construction Cost Index (ENR CCI) as the basis of the fee-adjustment mechanism, and recommended that the ENR CCI be applicable July of each year. The ENR Construction Cost Index is a monthly composite figure of the cost of various construction materials and labor costs as measured by Engineering News-Record Magazine. As such, it is a more accurate predictor of the effects of inflation on a typical construction project than the CPI or other measure of inflation. Fee Determination In addition to the Wastewater Master Plan, PBS&J, under a separate contract, is preparing a Wastewater Rate Study/Financial Plan/Revenue Program. It is anticipated that this study will be completed in the next few months. Nevertheless, based on the work already completed by PBS&J in the preparation of the Rate Study, and PBS&J's acquired experience as currem financial advisers to the Metro Technical Advisory Committee (Metro TAC), the consultant recommends that the City immediately implement an increase of the Sewerage Capacity Charge utilizing the Construction Cost Index, pending the completion of both the Rate Study and the Wastewater Master Plan. This recommendation (Attachment 4) is consistent with the recommendations made in the original study (1984, Sewerage Facility Participation Fee Study-Modified March 1985) that formed the basis of the fee. The following table shows the methodology utilized in determining the Sewerage Capacity Charge based on the ENR Index: ENR. Construction Cost Index for July 1990 3,734 NR Construction Cost Index for July 2002 6605 Increase in Index (6605 / 4734) 1.3952 [evised Fee ($2,220 x 1.3952) $3.097 ~ecommended Fee $3,000 Net Increase ($) $780 See Attachment 3 for supporting information regarding the ENR Construction Cost Indexes. 1/Cz' Page 6, Item 7) Meeting Date 3/18/03 Comparison of City of Chula Vista's Sewerage Capacity Charge with Other Local Agencies Most agencies in the area between Poway and the International Border collect some form of fee, which is used to defray some portion of the cost of existing sewerage facilities. Those fees are sometimes part of a larger fee covering specific work involved in making a physical c6nnection to the sewer. Consequently, it is difficult to do a proper comparison of the proposed fee increase with those of other agencies. The following table is a compilation of the fees charged by various agencies based on the Wastewater User Charge Survey Report FY 2001-02, completed by the State Water Resources Control Board on May 2002. Rank Agency Charge per EDU Dtay M. W.D. $0 / of Imperial Beach $700 , Water District $1,000 of Vista $1,922 ,anitation District $2,000 de Sanitation District $2,000 Pine Valley County Sanitation District $2,000 Spring Valley Sanitation District $2,000 }ardens Sewer Maintenance D/strict $2,000 ' of Del Mar $2,004 ~ of La Mesa $2,400 ~ of National City $2,420 , of San Diego $2,500 , of Coronado $2,559 (Vallecitos Water District) $2,650 ' of Encinitas $2,680 Sanitation D/strict $3,000 r of Chula Vista - (Proposed Fee) $3,000 City of Poway $3,000 Cardiff Sanitation District $3,417 City of E1 Cajon $3,472 City of Oceanside $3,793 Leucadia County Water District $3,950 Julian County Sanitation District $4,000 Public Utility District $4,264 City of Escondido $4,403 ,. t( Page 7, Item vl Meeting Date 3/18/03 Rank Agency 22 Padre Dam M. W.D. $5,470 23 Rainbow M. W.D. $6,656 Rancho Santa Fe Community Service. $7,800 24 District. Ramona Metropolitan Water District $6,125 / $9,778 * Participating Agency in the Metro System Urgency Ordinance The Urgency Ordinance will enable the City to collect the fee during the 60-day waiting period for the regular Ordinance to become effective. This Urgency Ordinance is only valid for 30 days therefore, it will be necessary to notice and hold further hearings in order to extend the Urgency Ordinance in 30-day increments until the permanent Ordinance becomes effective. Staff recommends that the increase to the Sewerage Capacity Charge go into effect immediately by adopting the Urgency Ordinance. The urgent execution of the fee is needed in order to require all developments to pay their fair share of the cost of: purchasing additional sewage treatment capacity; constructing improvements to enhance the capacity of the City's sewer system and all other related costs or impacts to the collection system caused by their development. Furthermore, immediate implementation of this fee is necessary due to the current and immediate threat to public safety, which will result, should there be a shortfall in funds required to pay for the required improvements to the wastewater collection system and to purchase additional sewage treatment capacity. The prospect of a deficit, inadequate sewage treatment capacity necessary for the continuation of development within the City, and concerns about an increased charge to remaining property owners, constitutes a current immediate threat to the public health, welfare and safety justifying the immediate increase of this fee. Environmental Impact The Environmental Review Coordinator has reviewed thc 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(93) of the State CEQA Guidelines the activity is not subject to CEQA. Thus, no environmental review is necessary. FISCAL IMPACT: It is estimated that over the next eight months that this fee will be in effect prior to the anticipated adoption of the Wastewater Master Plan, it will result in additional revenues of $1,560,000 (assuming that 2,000 permits are approved over this period). If this Page 8, Item C~ Meeting Date 3/18/03 Ordinance is not implemented, this revenue will be lost; thereby necessitating additional increases at the conclusion of the study beyond what the final recommendation would have been. The Tnmk Sewer capital Reserve Fund currently has an unappropriated balance of approximately $15.1 Million Dollaxs. Attachment 1: Sewerage Facility Participation Fee Study-Modified March 1985, September 1984, City of Chula Vista Engineering Department. Attachment 2: "Table 1, City of Chula Vista Cost Allocation FY 1990-91" from the 1991 City of Chula Vista Wastewater Rate Plan and Revenue Program; and the FY 2002 fourth quarter invoice for the Metropolitan Sewerage System service. Attachment 3: Construction Cost Index History, Engineering News-Record (ENR) Attachment 4: PBS&J's letter recommending an interim increase to the Sewerage Capacity Charge J:\Engineer~AGEIqDAXSewer Capacity Increase Agenda S~tement sh.doc Last printed 3/11?2003 1:00 PM ORDINANCE NO. AN URGENCY ORDINANCE OF THE CITY OF CHULA VISTA APPROVING AN INCREASE OF THE SEWERAGE CAPACITY CHARGE AND THE MODIFICATION OF THE MASTER FEE SCHEDULE WHEREAS, the City Council placed Ordinance 2900 on first reading on March 18, 2003 approving an increase of the Sewerage Capacity Charge and the modification of the Master Fee Schedule; and, WHEREAS, pursuant to Government Code Section 66017(a), the fees modified by that Ordinance will not become effective until sixty (60) days after its second reading; and, WHEREAS, development in the City will be applying for building permits during the interim period before the increase of the Sewerage Capacity Charge becomes effective; and, WHEREAS, Government Code Section 66017(b) authorizes the City to adopt an interim fee as an urgency measure upon making a finding describing the current and immediate threat to the public health, welfare and safety; and, WHEREAS, said interim measure will be effective for thirty (30) days and may be extended twice for additional thirty (30) day periods upon subsequent action by the City Council; and, WHEREAS, the City adopted Urgency Ordinance 2900-A, approving an increase of the Sewerage Capacity Charge and the modification of the Master Fee Schedule, which will expire thirty (30) days after its adoption; and, WHEREAS, the City adopted Urgency Ordinance 2900-B, approving an increase of the Sewerage Capacity Charge and the modification of the Master Fee Schedule, which will expire thirty (30) days after its adoption; 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(93) of the State CEQA Guidelines the activity is not subject to CEQA. Thus, no environmental review is necessary; and, WHEREAS, State Law requires said Urgency Ordinance to be adopted by a four- fifths vote. Ordinance No. Page 2 NOW, THEREFORE, the City Council of the City of Chula Vista does ordain as follows: SECTION I: Finding of Urgency The City Council of the City of Chula Vista finds that it is necessary that the Sewerage Capacity Charge be increased and the Master Fee Schedule modified and the increase go into effect immediately. The increase is needed in order to require all developments to pay their fair share of the cost of: acquiring additional sewer capacity, paying for sewage treatment and the construction of improvements needed to enhance the capacity of the City's sewer system, and all other related eligible expenditures resulting from the impacts caused by their developments. Immediate implementation of this fee is necessary due to the current and immediate threat to public safety. Should there be a shortfall in the funds necessary to pay for additional sewage treatment capacity and the needed sewer improvements, it could result in the failure of the existing sewage collection system and sewage spills. The City Council finds that the prospect of a deficit, not enough sewer capacity to serve the growing population, the failure of old sewer infrastructure and concerns about an increased charge to remaining property owners, constitutes a current immediate threat to the public health, welfare and safety justifying the immediate imposition of this fee. SECTION II: That the Chapter XII Engineering - Sewer, Section 3(a) of part A of the Master Fee Schedule be, and the same is hereby amended to read as follows: "3. Sewerage Capacity Charge a. The owner or person making application for a permit to develop or modify use of any residential, commercial, industrial or other property which is projected by the City Engineer to increase the volume of flow in the City sewer system by at least one-half of one Equivalent Dwelling Unit of ........ r~;m .... ,~;~;--~*;~ fe~ ~ewerage.__ flow shall pay a se .....~, ........ ~ r ...... e ........ Capacity Charge. The base charge is hereby established as $2,220 $3,000 per Equivalent Dwelling Unit of flow." SECTION IlI: CEQA Findings for Statutory Exemption. Ordinance No. Page 3 The City Council does hereby find that the Sewerage Capacity Charge herein imposed is for the purpose of obtaining funds for capital projects necessary to maintain service within existing service areas. Therefore, the City finds that the adoption of this Ordinance is statutorily exempt under the provisions of CEQA Guidelines Section 15060(c)(3). SECTION IV: Findings The City Council finds that the collection of the Sewerage Capacity Charge, established by Ordinance No. 2107, at the time the building permit is issued is necessary. This will ensure that funds will be available for the acquisition of capacity rights in the Metro System, construct improvements to enhance capacity in the City's sewer system and to pay for the treatment of sewage; and, The City Council finds that developers of land within the City should be required to mitigate the burden created by development through the payment of a fee to finance a development's appropriate portion of the total cost of the sewer improvements, sewage treatment and capacity rights in the Metro System; and, The City Council finds that the legislative findings and determinations set forth in the Ordinance referred in the recitals set forth above, continue to be true and correct; and, The City Council finds, after consideration of the evidence presented to it, that the increase of the Sewerage Capacity Charge is necessary in order to assure adequate sewer service to the City; and, The City Council finds, based on the evidence presented at the meeting and the information received by the City Council in the ordinary course of its business, that the imposition of the Sewerage Capacity Charge on all future developments in the City for which building permits have not been issued is necessary in order to protect the public health, safety and welfare; and, The City Council finds that the amount of the amended fee levied by this Ordinance does not exceed the estimated cost of providing the sewer service to the developments within the City; and, The City Council finds that it is appropriate to approve an increase to the Sewerage Capacity Charge to reflect: the acquisition of additional capacity rights; the annual increase in the Metropolitan Ordinance No. Page 4 Sewerage System Costs; the increase in the need for improvements created by the demand for more capacity in the sewer system; and, The City Council finds it is necessary to ensure sewer capacity in the Metro system before the reserved capacity is exhausted and to ensure the timely payment to adequately fund ongoing and future sewer improvements to enhance capacity in the City's sewer system triggered by future development. SECTION V: Expiration of this Ordinance. This Ordinance shall be of no further force and effect thirty (30) days after its adoption. SECTION VI: Time Limit for Protest and Judicial Action. Any judicial action or proceeding to attack, review, set aside, void or annul this Ordinance shall be brought within the period as established by law. In accordance with Government Code Section 66020(d)(1), the ninety-day approval period in which parties may protest begins upon the effective date of this Ordinance. SECTION VI: Effective Date. This Ordinance shall become effective immediately upon four- fifths vote. Presented by: Approved as to form by: Clifford L. Swanson An~ ~l~ore Director of Engineering City Attorney J:\ENGINEERLAGENDA\SEWER CAPACITY INCREASE URGENCY ORDINANCE.SHDOC COUNCIL AGENDA STATEMENT Item Meeting Date 5/13/03 ITEM TITLE: Public Hearing to take public testimony regarding the proposed change and modify to the Rate and Method of Apportionment for Improvement Area B for Community Facilities District No. 06-1 (EastLake-Woods, Vistas and Land Swap) Resolution of the City Council of the City of Chula Vista, California, making certain determinations and authorizing the submittal of the proposed changes to the Rate and Method of Apportionment of Special Taxes authorized to be levied within Improvement Area B of Community Facilities District No. 06-1 (EastLake-Woods, Vistas and Land Swap) to the qualified electors thereof. SUBMITTED BY: Director of Engineering~/~/ Director of Finance ~ REVIEWED BY: City Manager c~.,~ q i~ (4/Sths Vote: Yes No X) On March 18, 2003, the City Council approved the Resolution of Intention to consider changes and modifications to the Rate and Method of Apportionment for Improvement Area B of Community Facilities District No. 06-1 (EastLake-Woods, Vistas and Land Swap)("CFD No. 06-I"). Tonight's action will continue the formal proceedings to consider such modifications to the Rate and Method of Apportionment for Improvement Area B of Community Facilities District No. 06-I (EastLake-Woods, Vistas and Land Swap), subject to the approval of the qualified electors. BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. RECOMMENDATION: That Council: · Open the Hearing, take public testimony, close the public hearing; · Approve the Resolution making certain determinations and authorizing the submittal of the proposed modifications of the Rate and Method of Apportionment for Improvement Area B of such Community Facilities District to the qualified electors thereof. DISCUSSION: Background This public hearing is for the purpose of considering changes and modifications to the Rate and Method of Apportionment for Improvement Area B for Community Facilities District No. 06-I (EastLake-Woods, Vistas and Land Swap). The EastLake Company, LLC submitted a letter dated January 30, 2003 (Exhibit A) to the City of Chula Vista declaring its intention to prepay the special tax obligation for 42.02 acres of Commercial Property within Improvement Area B (Land Swap) of CFD No. 06-I. This Commercial Property is Page 2, Item ~ Meeting Date 5/13/03 located in the southern parcel of the "Land Swap" which includes Assessor Parcel Numbers 643-020- 041,643-020-048,643-030-013, and 643-070-005. This prepayment will be computed by the City's CFD Administrator according to the existing Rate and Method of Apportionment (RMA) of special taxes for Improvement Area B. The prepayment will have the following effects on Improvement Area B: 1) The Assigned Special Tax revenue that may be generated from the levy of special taxes within Improvement Area B will decrease due to the reduction of the Commercial Property subject to the levy of the special taxes resulting from the prepayment; 2) The Taxable net lot acreage, upon which the Undeveloped Backup Special Tax Rate is based, will decrease; 3) The prepaid Commercial Property will be exempt from further taxation for CFD No. 06-1, and 4) The Assigned Special Tax Rate for Developed Property within both land use categories will not be adjusted and all other provisions will remain in effect. For these reasons, the City's financing team and City staff recommend that the existing Rate and Method of Apportionment of special taxes for Improvement Area B be modified to increase the Backup Special Tax rate applicable to Undeveloped Property. This proposed change will be reflected within the Amended Rate and Method of Apportionment (Exhibit B) for Improvement Area B only and an Amended Special Tax Report (Exhibit C). The Amended RMA for Improvement Area B will now have two Tax Zones with Zone 3 being the South Parcel's Residential Component and Zone 4 being the Commercial Component of both the North and South Parcels. Each Tax Zone will both have the same Assigned Special Tax Rates but a different Undeveloped Backup Special Tax Rate based on their respective acreage, land uses, and Assigned Special Tax Rate. The two Tax Zones are set up to result in a more consistent Backup Special Tax relative to the Assigned Special Tax for all of the Assessor's Parcels within Improvement Area B and to have similar products (e.g. residential, Commercial etc.) pay a similar undeveloped rate. Resolution There is one resolution on today's agenda that, if adopted, will accomplish the following: RESOLUTION TO CHANGE AND MODiFY the Rate and Method of Apportionment of Special Taxes for Improvement Area B for Community Facilities District No. 06-I (Eastlake-Woods, Vistas and Land Swap) is the formal action submitting to the Qualified Electors of (CFD No. 06-1) a Proposition to Change and Modify the Rate and Method of Apportionment of special taxes for Improvement Area B for such Community Facilities District and performs the following: Makes the determinations that: All prior proceedings related to the proposed change and modification were valid and taken in conformity with the requirements of law; The proposed change and modification to the existing rate and method of apportionment of special taxes for Improvement Area B is in conformity with the City's Statement of Local Goals and Policies Regarding the Establishment of Community Facilities Districts Page 3, Item ! 5, Meeting Date 5/13/03 Less than twelve (12) registered voters have resided within Improvement Area B for each of the ninety (90) days preceding the close of thc public hearing and, consequently, thc qualified electors shall bc the landowners of property within Improvement Ama B and each landowner who is thc owner of record as of the close of thc public hearing, or the authorized representative thereof, shall have one vote for each acre or portion of an acre of land that she or hc owns within Improvement Area 13; and Thc qualified electors have consented to thc shortening of time for conducting thc special election to present thc question to authorize thc change and modification in the rate and method of apportionment, therefore, such special election may be conducted sooner than 90 days following thc date of this public hearing. · Approves, subject to the approval of the qualified electors of Improvement Area B, the change and modification in rate and method of apportionment of the special tax authorized to be levied in Improvement Area B as described above. · Calls a special election to be held on May 20, 2003 for the purpose of submitting to the qualified electors of Improvement Area B a ballot proposition to approve the change and modification in the rate and method of apportionment of the special tax authorized to be levied in Improvement Area B. Notice A notice of this public hearing has been published in the Star News at least seven days prior to the Public Hearing. Future Actions Approval of tonight's Resolution will call a special election to be held on May 20, 2003 in the City Clerk's office for the landowners within Improvement Area B to vote on the proposed change and modification. The City Council on May 27, 2003 will hear and certify the election results and, assuming the ballot measure is approved by the requisite vote of the qualified electors, will introduce an ordinance authorize the levy o f special taxes within Improvement Area B pursuant to the modified rate and method of apportionment. FISCAL IMPACT: All costs related to this modification proceeding for CFD No. 06-I are being borne by the developer. Attachments: I. Letter dated January 30, 2003, EastLakc Company, LLC 2. Amended Rate and Method of Apportionment for Improvement Area B 3. Amended Special Trax Report J:\Eng/neer~AGENDA\Revised CAS RMA 5-06-03 doc 30, 2003 F~ST~KE COMPANY, LLC City of Chula Vista VIA FAX Mr. Alex AI-Agha Engineering/Public Works Department 276 ~o,~-n aven.e J~N 3 0 2003 Chula Vista, CA 91910 ~: EastLake CFD 061 (Wo~s Vist~ ~d L~d Swap) Dear Alex: The EastLake Co~y mt~ds to prepay the underling es~ated debt on ~e sou~rly co~e~ial land swap prope~. O~ ~ders~d~g is tMt e~ly prepay will crea~ a need to amend coffesp~ding d~nts noted below. Please comider ~s ]~r as The E~ake Co~any's fo~l requ~t to ~tiate ch~e ofpmcee~gs ~d to ~ead ~e Rate ~d Me~od for Improve~m Area "B", ~e Acquisition and F~nc~g A~eement and · e Sp~ial Tax Repo~. Should you have ~y questions, plebe do not h~i~te to ca~. T~ you. Debi Vice Presider ATTACHMENTr, ~ AMENDED RATE AND METHOD OF APPORTIONMENT FOR CITY OF CHULA VISTA COMMUNITY FACILITIES DISTRICT NO. 06-I IMPROVEMENT AREA B (EastLake - "Land Swap") A Special Tax as hereinafter defined shall be levied on each Assessor's Parcel of Taxable Property within the City of Chula Vista Community Facilities District No. 06-I, Improvement Area B ("Improvement Area B") and collected each Fiscal Year commencing in Fiscal Year 2003-2004 in an amount determined by the City Council through the application of the appropriate Special Tax for "Developed Property," and "Undeveloped Property" as described below. All of the Taxable Property in Improvement Area B, unless exempted by law or by the provisions hereof, shall be taxed for the purposes, to the extent and in the manner herein provided. A. DEFINITIONS The terms hereinafter set forth have the following meaning: ssessor s "Acre or Acreage" means the land area of an A ' Parcel as shown on an Assessor s Parcel Map, or if the land area is not shown on an Assessor's Parcel Map, the land area shown on the applicable Final Subdivision Map, parcel map, condominium plan, record of survey, or other recorded document creating or describing the parcel. If the preceding maps for a land area are not available, the Acreage of such land area shall be determined by the City Engineer. "Act" means the Mello-Roos Community Facilities Act of 1982, as amended, being Chapter 2.5, Division 2 of Title 5 of the Government Code of the State of California. "Administrative Expenses" means the actual or reasonably estimated costs directly related to the administration of Improvement Area B including, but not limited to, the following: the costs of computing the Special Taxes and preparing the annual Special Tax collection schedules (whether by the City or designee thereof or both); the costs of collecting the Special Taxes (whether by the County, the City, or otherwise); the costs of remitting the Special Taxes to the Trustee; the costs of the Trustee (including its legal counsel) in the discharge of the duties required of it under the Indenture; the costs to the City, CFD-06-I or any designee thereof of complying with arbitrage rebate requirements; the costs to the City, CFD-06-I or any designee thereof of providing continuing disclosure; the costs associated with preparing Special Tax disclosure statements and responding to public inquiries regarding the Special Taxes; the costs of the City, CFD-06-I or any designee thereof related to any appeal of the levy or application of the Special Tax; and the costs associated ~vith the release of funds from an escrow account, if any. Administrative Expenses shall also include amounts estimated or advanced by the City or CFD-06-I for any other administrative purposes of Improvement Area B, including, but not limited to City of Chula Vista Community Facilities District No. 06-1, Improvement Area B EastLake - Land Swap Page I attorney's fees and other costs related to commencing and pursuing to completion any foreclosure of delinquent Special Taxes. "Assessor's Parcel" means a lot or parcel shown in an Assessor's Parcel Map with an assigned Assessor's Parcel number. "Assessor's Parcel Map" means an official map of the County Assessor of the County designating parcels by Assessor's Parcel number. "Assigned Special Tax" means the Special Tax for each Land Use Category of Developed Property as determined in accordance with Section C. 1 .a. "Available Funds" means the balance in the reserve fund established pursuant to the terms of the Indenture in excess of the reserve requirement as defined in such Indenture, delinquent Special Tax payments not required to fund the Special Tax Requirement for any preceding Fiscal Year, Special Tax prepayments collected to pay interest on Bonds, and other sources of funds available as a credit to the Special Tax Requirement as specified in such Indenture. "Backup Special Tax" means the Backup Special Tax amount set forth in Section C.1 .b. "Bonds" means any bonds or other debt (as defined in the Act), whether in one or more series, issued by CFD-06-I for Improvement Area B under the Act. "Bond Year" means a one-year period beginning on September 2® in each year and ending on September Ist in the following year. Unless defined differently in the applicable Indenture. "CFD Administrator" means an official of the City, or designee thereof, responsible for determining the Special Tax Requirement and providing for the levy and collection of the Special Taxes. "CFD-06-I means City of Chula Vista, Community Facilities District No. 06-1. "City" means the City of Chula Vista. "Commercial Property" means all Assessors' Parcels of Developed Property, for which a building permit(s) was issued for a non-residential use, excluding Community Purpose Facility Property. "Community Purpose Facility Property" means all Assessors' Parcels which are classified as community purpose facilities and meet the requirements of City of Chula Vista Ordinance No. 2452. "Council" means the City Council of the City, acting as the legislative body of CFD-06-I. City of Chula Vista Community Facilities District No. 06-1, improvement Area B EastLake - Land Swap Page 2 "County" means the County of San Diego. "Developed Property" means, for each Fiscal Year, all Taxable Property for which a building permit for new construction was issued prior to March 1 of the prior Fiscal Year. "Exempt Property" means property not subject to the Special Tax due to its classification as either Public Property, Property Owner Association Property Community Purpose Facility Property. "Final Subdivision Map" means a subdivision of property, created by recordation of a Final Subdivision Map, parcel map or lot line adjustment, approved by the City pursuant to the Subdivision Map Act (California Government Code Section 66410 et seq.) or recordation of a condominium plan pursuant to California Civil Code 1352, that creates individual lots for which residential building permits may be issued without further subdivision of such property. "Fiscal Year" means the period starting July 1 and ending on the following June 30. "Improvement Area B" means Improvement Area B of CFD No. 06-I known as the "Land Swap". "Indenture" means the indenture, fiscal agent agreement, trust agreement, resolution or other instrument pursuant to which Bonds are issued, as modified, amended and/or supplemented from time to time, and any instrument replacing or supplementing the same. "Land Use Class" means any of the classes listed in Table 1 of Section C. "Lot{s)" means an individual legal lot created by a Final Subdivision Map for which a building permit for residential construction has been or could be issued. "Master Developer" means the owner of the predominant amount of Undeveloped Property in Improvement Area B. "Maximum Annual Special Tax" means the maximum annual Special Tax, determined in accordance with the provisions of Section C, which may be levied in any Fiscal Year on any Assessor's Parcel of Taxable Property. "Outstanding Bonds" mean all Bonds, which remain outstanding as defined in the Indenture. "Property Owner Association Property" means any property within the boundaries of Improvement Area B owned by or dedicated to a property owner association, including any master or sub-association. "Proportionately" means for Developed Property that the ratio of the actual Special Tax levy to the Assigned Special Tax or the Backup Special Tax is equal for all Assessors' City of Chula Vista Community Facilities District No. 06-1, Improvement Area B EastLake - Land Swap Page 3 Parcels of Developed Property within Improvement Area B. For Undeveloped Property "Proportionately' means that the ratio of the actual Special Tax levy per Acre to the Maximum Annual Special Tax per Acre is equal for all Assessor's Parcels of Undeveloped Property within Improvement Area B. "Public Property" means any property within the boundaries of improvement Area B that is owned by or dedicated to the federal government, the State of California, the County, the City or any other public agency. "Residential Property" means all Assessors' Parcels of Developed Property for which a building permit has been issued for purposes of constructing one or more residential dwelling units. "Residential Floor Area" means all of the square footage of living area within the perimeter of a residential structure, not including any carport, walkway, garage, overhang, patio, enclosed patio, or similar area. The determination of Residential Floor Area shall be made by the CFD Administrator by reference to appropriate records kept by the City's Building Department. Residential Floor Area for a residential structure will be based on the building permit(s) issued for such structure. "Special Tax" means the annual special tax to be levied in each Fiscal Year on each Assessor's Parcel of Taxable Property to fund the Special Tax Requirement. "Special Tax Requirement" means that amount of Special Tax revenue required in any Fiscal Year for Improvement Area B to: (i) pay annual debt service on all Outstanding Bonds (as defined in Section A) due in the Bond Year beginning in such Fiscal Year; (ii) pay other periodic costs on Outstanding Bonds, including but not limited to, credit enhancement and rebate payments on Outstanding Bonds; (iii) pay Administrative Expenses; (iv) pay any amounts required to establish or replenish any reserve funds for all Outstanding Bonds in accordance with the Indenture; and (v) pay directly for acquisition and/or construction of public improvements which are authorized to be financed by CFD- 06-1 provided that the inclusion of such amount does not cause an increase in the levy of Special Tax on the Undeveloped Property for Improvement Area B; less (vi) a credit for Available Funds. "State" means the State of California. "Taxable Property" means all of the Assessor's Parcels within thc boundaries of CFD-06-I, Improvement Area B that are not exempt from the Special Tax pursuant to law or Section E below. "Trustee" means the trustee, fiscal agent, or paying agent under the Indenture. "Undeveloped Property" means, for each Fiscal year, all Taxable Property not classified as Developed Property. City oJ' Chula Vista Community Facilities District No. 06-1, Improvement Area B EastLake - Land Swap Page 4 "Zone 3" means a specific geographic area as depicted in Exhibit A attached hereto. "Zone 4" means a specific geographic area as depicted in Exhibit A attached hereto. B. ASSIGNMENT TO LAND USE CATEGORIES Each Fiscal Year, all Assessor's Parcels of Taxable Property within, Improvement Area B shall be (a) categorized as being located in either Zone 3 or Zone 4, (b) classified as Developed Property or Undeveloped Property and (c) shall be subject to the levy of annual Special Taxes determined pursuant to Sections C and D below. Furthermore, all Developed Property shall then be classified as Residential or Commercial Property. C. MAXIMUM ANNUAL SPECIAL TAX RATE 1. Developed Property The Maximum Armual Special Tax for each Assessor's Parcel of Residential Property or Commercial Property shall be the greater of (1) the Assigned Special Tax described in Table 1 below or (2) the Backup Special Tax computed pursuant to b. below. a. AssiGned SpecialTax The Assigned Special Tax for each Assessor's Parcel of Developed Property is shown in Table 1. TABLE 1 Assigned Special Tax for Developed Property within Zone 3 and Zone 4 Land Use Class Description Assigned Special Tax 1 Residential Property $0.74 per square foot of Residential Floor Area 2 Commercial Property $6,000 per Acre b. Backup Special Tax When a Final Subdivision Map is recorded within Zone 3 or Zone 4, thc Backup Special Tax for Assessor's Parcels of Developed Property classified as Residential Property or Commercial Property shall be determined as follows: City of Chula Vista Community Facilities District No. 06-I, Improvement Area B EastLake - Land Swap Page 5 For each Assessor's Parcel of Residential Property or for each Assessor's Parcel of Undeveloped Property to be classified as Residential Property upon its development within the Final Subdivision Map area, the Backup Special Tax shall be the rate per Lot calculated according to the following formula: Zone 3 $20,563 x A L Zone 4 $6,667 x A L The terms above have the following meanings: B = Backup Special Tax per Lot in each Fiscal Year. A- Acreage classified or to be classified as Residential Property in such Final Subdivision Map. L - Lots in the Final Subdivision Map which are classified or to be classified as Residential Property. For each Assessor's Parcel of Commercial Property or for each Assessor's Parcel of Undeveloped Property to be classified as Commercial Property within the Final Subdivision Map area, the Backup Special Tax shall be determined by multiplying $20,563 for Zone 3 and $6,667 for Zone 4 by the total Acreage of each Assessor's Parcels of the Commercial Property and Undeveloped Property to be classified as Commercial Property within the Final Subdivision Map area. Notwithstanding the foregoing, if Assessor's Parcels of Residential Property, Commercial Property or Undeveloped Property for which the Backup Special Tax has been determined are subsequently changed or modified by recordation of a new or amended Final Subdivision Map, then the Backup Special Tax applicable to such Assessor's Parcels shall be recalculated to equal the amount of Backup Special Tax that would have been generated if such change did not take place. City of Chula l:ista Community Facilities District No. 06-1, Improvement Area B EastLake - Land Swap Page 6 2. Undeveloped Property The Maximum Annual Special Tax for each Assessor's Parcel classified, as Undeveloped Property shall be $20,563 per Acre £or Zone 3 and $6,667 per Acre for Zone 4. D. METHOD OF APPORTIONMENT OF THE SPECIAL TAX Commencing with Fiscal Year 2003-04 and for each following Fiscal Year, the Council shall determine the Special Tax Requirement and shall levy the Special Tax until the amount of Special Taxes equals the Special Tax Requirement. The Special Tax shall be levied each Fiscal Year as follows: First: The Special Tax shall be levied Proportionately on each Assessor's Parcel of Developed Property within Zone 3 and Zone 4 at a rate up to 100% of the applicable Assigned Special Tax to satisfy the Special Tax Requirement. Second: If additional monies are needed to satisfy the Special Tax Requirement after the first step has been completed, the Special Tax shall be levied Proportionately on each Assessor's Parcel of Undeveloped Property within Zone 3 and Zone 4, excluding any Assessor's Parcels classified as Undeveloped Property pursuant to Section E, at a rate up to 100% of the Maximum Annual Special Tax for Undeveloped Property. Third: If additional monies are needed to satisfy the Special Tax Requirement after the first two steps have been completed, the Special Tax to be levied on each Assessor's Parcel of Developed Property whose Maximum Annual Special Tax is derived by the application of the Backup Special Tax shall be increased Proportionately from the Assigned Special Tax up to the Maximum Annual Special Tax for each such Assessor's Parcel. Fourth: If additional monies are needed to satisfy the Special Tax Requirement after the first three steps have been completed, then the Special Tax shall be levied Proportionately on each Assessor's Parcel classified as Undeveloped Property pursuant to Section E at a rate up to 100% of the Maximum Annual Special Tax for Undeveloped Property. Notwithstanding the above, under no circumstances will the Special Tax levied against any Assessor's Parcel of Residential Property be increased by more than ten percent per year as a consequence of delinquency or default in the payment of Special Taxes by the owner of any other Assessor's Parcel. cio/ofChula Vista Community Facilities District No. 06-L Improvement Area B EastLake - Land Swap Page 7 E. EXEMPTIONS 1. The CFD Administrator shall classify the following Assessor Parcel(s) as exempt property: (i) Public Property, (ii) Property Owner Association Property, (iii) Community Purpose Facility Property, and (iv) Assessor's Parcels with public or utility easements making impractical their utilization for other than the purposes set forth in the easement; provided, however, that no such classification shall reduce the sum of all Taxable Property to less than 36.50 Acres in Zone 3 and 52.00 Acres in Zone 4. Assessor's Parcels which cannot be classified as exempt property because such classification would reduce the Acreage of all Taxable Property to less than 36.50 Acres in Zone 3 and 52.00 Acres in Zone 4 will be classified as Undeveloped Property and shall be taxed as such. Tax-exempt status for purposes of this paragraph will be assigned by the CFD Administrator in the chronological order in which property becomes exempt property. 3. The Maximum Annual Special Tax obligation for any property which would be classified as Public Property upon its transfer or dedication to a public agency but which cannot be classified as exempt property as described in paragraph l of Section F shall be prepaid in full by the seller pursuant to Section 1.1, prior to the transfer/dedication of such property to such public agency. Until the Maximum Annual Tax obligation for any such Public Property is prepaid, the property shall continue to be subject to the levy of the Special Tax as Undeveloped Property. F. REVIEW/APPEAL COMMITTEE Any landowner or resident who feels that the amount of the Special Tax levied on their Assessor's Parcel is in error shall first consult with the CFD Administrator regarding such error. If following such consultation, the CFD Administrator determines that an error has occurred; the CFD Administrator may amend the amount of the Special Tax levied on such Assessor's Parcel. If following such consultation and action (if any by the CFD Administrator), the landowner or resident believes such error still exists, such person may file a written notice with the City Clerk of the City appealing the amount of the Special Tax levied on such Assessor's Parcel. Upon the receipt of any such notice, the City Clerk shall forward a copy of such notice to the City Manager who shall establish as part of the proceedings and administration of CFD-06-I and a special three-member Review/Appeal Committee. The Review/Appeal Committee may establish such procedures, as it deems necessary to undertake the review of any such appeal. The Review/Appeal Committee shall interpret this Rate and Method of Apportionment and make determinations relative to the annual administration of the Special Tax and any landowner or resident appeals, as herein specified. The decision of the Review/Appeal Committee shall be final and binding as to all persons. City of Chula Vista Community Facilities District No. 06-I, Improvement Area B EastLake - Land Swap Page 8 G. MANNEROF COLLECTION The annual Special Tax shall be collected in the same manner and at the same time as ordinary ad valorem property taxes; provided, however, that CFD-06-I, Improvement Area B may directly bill the Special Tax, may collect Special Taxes at a different time or in a different manner if necessary to meet its financial obligations, and may covenant to foreclose and may actually foreclose on Assessor's Parcels of Taxable Property that are delinquent in the payment of Special Taxes. Tenders of Bonds may be accepted for payment of Special Taxes upon the terms and conditions established by the Council pursuant to the Act. However, the use of Bond tenders shall only be allowed on a case-by-case basis as specifically approved by the Council. H. PREPAYMENT OF SPECIAL TAX The following definition applies to this Section H: "CFD Public Facilities" means those public facilities authorized to be financed by CFD- 06-1 Improvement Area B. "CFD Public Facilities Costs" means either $12.3 million, or such lower number as shall be determined either by (a) the CFD Administrator as sufficient to finance the CFD Public Facilities, or (b) the Council concurrently with a covenant that it will not issue any more Bonds to be secured by Special Taxes levied under this Rate and Method of Apportionment. "Construction Fund" means an account specifically identified in the Indenture to hold funds ~vhich are currently available for expenditure to acquire or construct the CFD Public Facilities. "Future Facilities Costs" means the CFD Public Facilities Costs minus that (a) portion of the CFD Public Facilities Costs previously funded (i) from the proceeds of all previously issued Bonds, (ii) from interest eamings on the Construction Fund actually earned prior to the date of prepayment and (iii) directly from Special Tax revenues and (b) the amount of the proceeds of all previously issued Bonds then on deposit in the Construction Fund. "Outstanding Bonds" means all previously issued Bonds which will remain outstanding after the first interest and/or principal payment date following the current Fiscal Year, excluding Bonds to be redeemed at a later date with the proceeds of prior prepayments of Maximum Annual Special Taxes. City of Chula Vista Community Facilities District No. 06-1, Improvement Area B EastLake - Land Swap Page 9 1. Prepayment in Full The Maximum Annual Special Tax obligation may only be prepaid and permanently satisfied for an Assessor's Parcel of Developed Property, Undeveloped Property for which a building permit has been issued, or Public Property. The Maximum Annual Special Tax obligation applicable to such Assessor's Parcel may be fully prepaid and the obligation of the Assessor's Parcel to pay the Special Tax permanently satisfied as described herein; provided, however that a prepayment may be made only if there are no delinquent Special Taxes with respect to such Assessor's Parcel at the time of prepayment. An owner of an Assessor's Parcel intending to prepay the Maximum Annual Special Tax obligation shall provide the CFD Administrator with written notice of intent to prepay. Within 30 days of receipt of such written notice, the CFD Administrator shall notify such owner of the Prepayment amount of such Assessor's Parcel. The CFD Administrator may charge a reasonable fee for providing this figure. The Prepayment Amount (defined below) shall be calculated as summarized below (capitalized terms as defined below): Bond Redemption Amount plus Redemption Premium plus Future Facilities Amount plus Defeasance Amount plus Prepayment Fees and Expenses less Reserve Fund Credit less Capitalized Interest Credit Total: equals Prepayment Amount As of the proposed date of prepayment, the Prepayment Amount (defined below) shall be calculated as follows: Step No.: 1. For Assessor's Parcels of Developed Property, compute the Maximum Annual Special Tax for the Assessor's Parcel to be prepaid. For Assessor's Parcels of Undeveloped Property for which a building permit has been issued to be prepaid, compute the Maximum Annual Special Tax for that Assessor's Parcel as though it was already designated as Developed Property, based upon the building permit issued for that Assessor's Parcel. For Assessor's Parcels of Public Property to be prepaid, compute the Maximum Annual Special Tax for that Assessor's Parcel using the Maximum Annual Special Tax for Undeveloped Property. 2. Divide the Maximum Annual Special Tax computed pursuant to paragraph 1 by the sum of the total expected Maximum Annual Special Tax revenues which may be levied within Improvement Area B excluding any Assessors Parcels for which the Maximum Annual Special Tax obligation has been previously prepaid. CiO, of Chula Vista Community Facilities District No. 06-1, Improvement Area B EastLake - Land Swap Page 10 3. Multiply the quotient computed pursuant to paragraph 2 by the principal amount of the Outstanding Bonds to compute the amount of Outstanding Bonds to be retired and prepaid (the "Bond Redemption Amount"). 4. Multiply the Bond Redemption Amount computed pursuant to paragraph 3 by the applicable redemption premium on the next possible Bond call date, if any, on the Outstanding Bonds to be redeemed (the "Redemption Premium"). 5. If all the Bonds authorized to be issued for Improvement Area B have not been issued, compute the Future Facilities Costs. 6. Multiply the quotient computed pursuant to paragraph 2 by the amount determined pursuant to paragraph 5 to compute the amount of Future Facilities Costs to be allocated to such Assessor's Parcel (the "Future Facilities Amount"). 7. Compute the amount needed to pay interest on the Bond Redemption Amount from the first bond interest and/or principal payment date following the current Fiscal Year until the earliest redemption date for the Outstanding Bonds. 8. Confirm that no Special Tax delinquencies apply to such Assessor's Parcel. 9. Determine the Special Taxes levied on the Assessor's Parcel in the current Fiscal Year, which have not yet been paid. 10. Determine the fees and expenses of CFD-06-I, including but not limited to, the costs of computation of the prepayment, the costs to invest the prepayment proceeds, the costs of redeeming Bonds from the proceeds of such prepayment, and the cost of recording any notices to evidence the prepayment and the redemption (the "Prepayment Fees and Expenses"). 11. Compute the amount the CFD Administrator reasonably expects to derive from the reinvestment of the prepayment amount less the Prepayment Fees and Expenses, as determined pursuant to step 10, from the date of prepayment until the redemption date for the outstanding bonds to be redeemed with the prepayment. 12. Add the amounts computed pursuant to paragraphs 7 and 9 and subtract the amount computed pursuant to paragraph 11 (the "Defeasance Amount"). 13. The reserve fund credit (the "Reserve Fund Credit") shall equal the lesser of: (a) the expected reduction in the reserve requirement (as defined in the Indenture), if any, associated with the redemption of Outstanding Bonds as a result of the prepayment, or (b) the amount derived by subtracting the new reserve requirement (as defined in the Indenture) in effect after the redemption of Outstanding Bonds as a result of the prepayment from the balance in the reserve fund on the prepayment date, but in no event shall such amount be less than zero. City of Chula Vista Community Facilities District No. 06-[, Improvement Area B EastLake - Land Swap Page 11 14. If any capitalized interest for the Outstanding Bonds will not have been expended at the time of the first interest payment following the current Fiscal Year, a capitalized interest credit shall be calculated by multiplying the quotient computed pursuant to paragraph 2 by the expected balance in the capitalized interest fund after such first interest payment (the "Capitalized Interest Credit"). 15. The Maximum Annual Special Tax prepayment is equal to the sum of the amounts computed pursuant to paragraphs 3, 4, 6, 10, and 12, less the amounts computed pursuant to paragraphs 13 and 14 (the "Prepayment Amount"). 16. From the Prepayment Amount, the amounts computed pursuant to paragraphs 3, 4, 12, 13, and 14 shall be deposited into the appropriate fund as established under the Indenture and be used to retire Outstanding Bonds or make debt service payments. The amount computed pursuant to paragraph 10 shall be retained by CFD-06-I. The amount computed pursuant to paragraph 6 shall be deposited in the Construction Fund. The Prepayment Amount may be sufficient to redeem other than a $5,000 increment of Bonds. In such cases, the increment above $5,000 or integral multiple thereof will be retained in the appropriate fund established under the Indenture to be used with the next prepayment of bonds or to make debt service payments. As a result of the payment of the current Fiscal Year's Special Tax levy as determined under paragraph 9 above, the CFD Administrator shall remove the current Fiscal Year's Special Tax levy for such Assessor's Parcel from the County tax rolls. With respect to any Assessor's Parcel that is prepaid, the Council shall cause a suitable notice to be recorded in compliance with the Act, to indicate the prepayment of Special Taxes and the release of the Special Tax lien on such Assessor's Parcel, and the obligation of such Assessor's Parcel to pay the Special Tax shall cease. Notwithstanding the foregoing, no Special Tax prepayment shall be allowed unless the amount of Maximum Annual Special Taxes that may be levied on Taxable Property within Improvement Area B both prior to and after the proposed prepayment is at least 1.1 times the maximum annual debt service on all Outstanding Bonds. Tenders of Bonds in prepayment of Maximum Annual Special Taxes may be accepted upon the terms and conditions established by the Council pursuant to the Act. However, the use of Bond tenders shall only be allowed on a case-by-case basis as specifically approved by the Council. 2. Prepayment in Part The Maximum Annual Special Tax on an Assessor's Parcel of Developed Property or an Assessor's Parcel of Undeveloped Property for which a building permit has been issued city of Chula Vista Community Facilities District No. 06-1, Improvement Area B EastLake - Land Swap Page 12 may be partially prepaid. The amount of the prepayment shall be calculated as in Section H 1; except that a partial prepayment shall be calculated according to the following formula: PP- (Pax F) + A These terms have the following meaning: PP = the partial prepayment PE = the Prepayment Amount calculated according to Section H. 1, minus Prepayment Fees and Expenses determined pursuant to Step 10. F - the percent by which the owner of the Assessor's Parcel(s) is partially prepaying the Maximum Annual Special Tax. A-- the Prepayment Fees and Expenses determined pursuant to Step 10. The owner of an Assessor's Parcel who desires to partially prepay the Maximum Annual Special Tax shall notify the CFD Administrator of (i) such owner's intent to partially prepay the Maximum Annual Special Tax, (ii) the percentage by which the Maximum Annual Special Tax shall be prepaid, and (iii) the company or agency that will be acting as the escrow agent, if applicable. The CFD Administrator shall provide the owner with a statement of the amount required for the partial prepayment of the Maximum Annual Special Tax for an Assessor's Parcel within 30 days of the request and may charge a reasonable fee for providing this service. With respect to any Assessor's Parcel that is partially prepaid, the City shall (i) distribute the funds remitted to it according to Step 16 of Section H.1, and (ii) indicate in the records of CFD-06-I, Improvement Area B that there has been a partial prepayment of the Maximum Annual Special Tax and that a portion of the Maximum Annual Special Tax equal to the outstanding percentage (1.00 - F) of the remaining Maximum Annual Special Tax shall continue to be authorized to be levied on such Assessor's Parcel pursuant to Section D. 1. TERM OF MAXIMUM ANNUAL SPECIAL TAX The Maximum Annual Special Tax shall be levied commencing in Fiscal Year 2003-2004 to the extent necessary to fully satisfy the Special Tax Requirement and shall be levied for a period no longer than the 2043-2044 Fiscal Year. City of Chula Vista Community Facilities District No. 06-L Improvement Area B EastLake - Land Swap Page 13 COMMUNITY FACILITIES DISTRICT MELLO-ROOS COMMUNITY FACILITIES ACT 1982 AMENDED SPECIAL TAX REPORT COMMUNITY FACILITIES DISTRICT NO. 06-I IMPROVEMENT AREAS A AND B EASTLAKE-WOODS, VISTAS AND LAND SWAP For the City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 CI'IY OF CHUIA VISI'A Prepared by McGill Martin Self, Inc. 344 F Street Suite 100 Chula Vista, California 91910 August 27, 2002 Revised February 11, 2003 TABLE OFCONTENTS Page I. INTRODUCTION ................................................................................. 1 II. PROJECT DESCRIPTION ......................................................................... 2-4 IlL DESCRIPTION AND ESTIMATED COST OF PROPOSED FACILITIES ........................ 4 A. Description of Proposed Public Improvements ................................... 4-5 B. Estimated Cost of Proposed Public Improvements .............................. 5-6 IV. BONDED INDEBTEDNESS AND INCIDENTAL EXPENSES .................................... 6 A. Projected Bond Sales ............................................................... 6 B. Incidental Bond Issuance Expenses to be Included in the Proposed Bonded 6 Indebtedness ......................................................................... C. Incidental Expenses to be Included in the Annual Levy of Special Taxes. 7 V. RATE AND METHOD OF APPORTIONMENT OF THE SPECIAL TAX ..................... 7 A. Explanation for Special Tax Apportionment .................................... 7-8 B. Assigned Special Tax Rates ....................................................... 9 C. Backup Special Tax ................................................................ 9 D. Accuracy of Information ........................................................... 9 VI. BOUNDARIES OF COMMUNITY FACILITIES DISTRICT .................................. 9 VII. GENERAL TERMS AND CONDITIONS ....................................................... 9 A. Substitution Facilities .............................................................. 9- B. Interim Transportation Facilities .................................................. 9 10 C. Appeals .............................................................................. EXHIBITS Exhibit A Amended Recorded Boundary Map Exhibit B-1 Rate and Method of Apportionment Improvement Area A Exhibit B-2 Amended Rate and Method of Apportionment Improvement Area B Exhibit C Assigned Maximum Special Tax Rates I. INTRODUCTION WHEREAS, the City of Chula Vista did, pursuant to the provision of the Mello-Roos Community Facilities Act of 1982, being Chapter 2.5, Part 1, Division 2, Title 5 of the Government Code of the State of California (hereinafter referred to as the "Act"), and specifically Section 53321.5 thereof, expressly order the filing of a written "Report" with the legislative body of the proposed Community Facilities District. This Community Facilities District being Community Facilities District No. 06-I (EastLake-Woods, Vistas and Land Swap) shall hereinafter be referred to as: "CFD No. 06-I"; and WHEREAS, the Resolution Ordering and Directing the Preparation of a Report for Proposed Community Facilities District No. 06-I (EastLake-Woods, Vistas and Land Swap) did direct that said Report generally contain the following: FACILITIES: A full and complete description of the public facilities the acquisition of which are proposed to be financed through the CFD. COST ESTIMATE: A general cost estimate setting forth costs of acquiring such facilities. SPECIAL TAX: Further particulars and documentation regarding the rate and method of apportiomnent for the authorized special tax. NOW, THEREFORE, I, Cliff Swanson P.E., the Director of Engineering of the City of Chula Vista, and the appointed responsible officer directed to prepare this Special Tax Report or cause the Report to be prepared pursuant to the provisions of the Act, do hereby submit this Report. Community Facilities District No. 06 1 Page 1 EastLake- Woods, !/ixtas and Land Swap August 2002 Revised February 2003 II. PROJECT DESCRIPTION This Community Facilities District No. 06-I (CFD No. 06-I) encompasses approximately 879.73 gross acres of land located in the portion of the south San Diego City of Chula Vista known as "EastLake- Woods, Vistas and Land Swap". Refer to Exhibit A - for a reduced copy of the Amended Recorded Boundary Map. Of this acreage, approximately 486.7 acres is expected to be developed by several merchant builders for residential and commercial development, 12.9 acres for Community Facilities, 16.85 for parks, 40.81 for schools, .84 acres for a fire station. This Community Facilities District (CFD No. 06-I) is divided into two separate areas, Improvement Area A and Improvement Area B. Improvement Area A Improvement Area A consists of approximately 737.10 gross acres of land in CFD No. 06-I. Improvement Area A is divided into two zones, mainly for Special Tax purposes. The Vistas comprises Zone 1 and the Woods comprises Zone 2. Vistas (Zone 1} The Vistas (Zone 1) is bound by Otay Lakes Road to the north and Wueste to the east. Zone 1 has 171.41 acres designated for residential housing space. Davidson, RWR, Fieldstone, Cornerstone, William Lyon and Western Pacific have closed on certain Planning Areas within Zone 1. Davidson has purchased Planning Area VR-3 and will build approximately 116 single- detached units, RWR has purchased Planning Area VR- 4 and will build approximately 82 single-family detached homes, Fieldstone has purchased Planning Area VR-5 and VR-6A and will build approximately 93 single-family detached units, William Lyon has purchased Planning Area VR-9 and VR-11 and will build approximately 162 single-family detached units, Cornerstone has purchased Planning Area VR-8 and will build approximately 168 single-family detached units and Western Pacific has purchased Planning Area VR-10 and will build approximately 111 single family attached units. The remaining single-family detached product will be built as part of Planning Areas VR-1, VR- 2, VR-6b, VR-7, and remaining multi-family product will be part of VR-12. These Planning Areas are anticipated to be sold over the next 24 to 36 months. These residential lots will be sold to other merchant builders and will proceed with construction of the units on their own timeframe. At build-out, it is expected that the Vistas (Zone 1) will consist of approximately 934 Single Family Detached Units, 111 Single Family Attached Units, 300 multi-family units, a 10 acre commercial development, a 19 acre proposed hotel site, a 13.39 acre Park site, 12.9 acres for Community Facilities. The Single Family Uses are anticipated to generate approximately 2,846,379 square feet of residential building square footage. The total taxable acreage for this improvement area including the 10% contingency factor is approximately 180 acres. Community Facilities District No. 06-1 Page 2 EastLake-Woods, Vistas and Land Swap August 2002 Revised February 2003 Woods (Zone 2) The Woods (Zone 2) is bound by Otay Lakes Road to the south with Hunte Parkway meandering north almost bisecting the area. Zone 2 has 184.70 acres designated for residential housing. Colrich, Continental and Cornerstone have closed on certain Planning Areas. Colrich has purchased Planning Area WR-3 and will build approximately 77 single-detached units, Continental has purchased Planning Area WR- 4 and will build approximately 73 single-family detached homes Cornerstone has purchased Planning Area WR-6 and WR-7 and will build approximately 255 single-family detached units. The remaining single-family detached product will be built as part of Planning Areas WR-1, WR-2 and WR-5. These single-family lots will be sold to other merchant builders and will proceed with construction of the units on their own timeframe. At build-out, it is expected that the Woods (Zone 2) will consist of approximately 663 Single Family Detached Units, a 3 acre Park site, 40.81 acres for a school and .84 acres for a fire station. The Single Family Uses are anticipated to generate approximately 1,840,714 square feet of residential building square footage. The total taxable acreage for this improvement area less a 10% contingency factor is approximately 166 acres. Special taxes for CFD No. 06-I (EastLake-Vistas, Woods and Land Swap) Improvement Area A for the Vistas (Zone 1) and the Woods (Zone 2) shall be levied to Taxable Property to satisfy the Special Tax Requirement as follows: · First, to Developed Property up to the Maximum Annual Special Tax; · Second, if necessary, to Undeveloped Property up to the Maximum Annual Special Tax for Undeveloped Property; · Third, if necessary, Maximum Annual Special Tax derived by the application of the Backup Special Tax increased proportionately from the Assigned Special Tax up to the Maximum Annual Special Tax ,and; · Fourth, if necessary, Special Tax increased proportionately, to Undeveloped Property pursuant to Section E of Exhibit B-1 up to the Maximum Armual Special Tax for Undeveloped Property. Improvement Area B Improvement Area B ("Land Swap") consists of approximately 143 gross acres. The "Land Swap" is actually two non-adjacent areas; 1) is the northernmost area being a triangular shaped west of EastLake Parkway bound by Otay Lakes Road to the north, and 2) the southernmost area is bound to the south by Olympic Parkway with EastLake Parkway projecting north just west of the center of the area. Of this acreage, approximately 41 acres is designated for residential housing which is in Zone 3 and 58 acres is proposed for a commercial use which is in Zone 4. Zone 4 currently has approximately 47.94 acres of commercial property which is proposed to have the Special Tax Community Facilities District No~ 06-1 Page 3 EastLake- Woods, Vistas and Land Swap August 2002 Revised February 2003 prepaid and the Special Tax obligation satisfied as soon as the prepa)¢nent is completed. This will result in there not being an Annual Special Tax levied on the 47.94 acres of Commercial Property in Zone 4. At build-out, in Zone 3, it is expected that there ~vill be a mixture of approximately 750 Attached and Multi Family Units. In Zone 4 there will also be an approximately 58 Acres of commercial development. The total taxable acreage for this improvement area less a 10% contingency factor is 89 acres. The proposed Special taxes for CFD No. 06-1 (EastLake-Vistas, Woods and Land Swap) Improvement Area B shall be levied to Taxable Property to satisfy the Special Tax Requirement as follows: · First, to Developed Property up to the Maximum Annual Special Tax; · Second, if necessary, to Undeveloped Property up to the Maximum Annual Special Tax for Undeveloped Property; · Third, if necessary, Maximum Annual Special Tax derived by the application of the Backup Special Tax increased proportionately from the Assigned Special Tax up to the Maximum Annual Special Tax and · Fourth, if necessary, Special Tax increased proportionately, to Undeveloped Property pursuant to Section E of Exhibit B-2 up to the Maximum Annual Special Tax for Undeveloped Property. Ill. DESCRIPTION AND ESTIMATED COST OF PROPOSED FACILITIES A. Description of Proposed Public Improvements A community facilities district may provide for the purchase, construction, expansion, or rehabilitation o£ any real or tangible property, including public facilities and infrastructure improvements with an estimated useful life of five (5) years or longer, which is necessary to meet increased demands placed upon local agencies as a result of development or rehabilitation occurring within the community facilities district. In addition, a community facilities district may pay in full all amounts necessary to eliminate any fixed special assessment liens or to pay, repay, or defease any obligation to pay or any indebtedness secured by any tax, fee, charge, or assessment levied within the area of the community facilities district. The facilities described in this Report are all facilities which the legislative body creating CFD No. 06-I is authorized to own, construct, or finance, and which are required, in part, to adequately meet the needs of CFD No. 06-1. In addition, the facilities meet the criteria for authorized public facilities set forth in the City's Statement of Goals and Policies regarding the establishment of Community Facilities Districts. The actual facilities described herein are those currently expected to be required to adequately meet, in part, the needs of CFD No. 06-I. Because the actual needs of CFD No. 06-1 arising as development progresses therein may differ from those currently anticipated, CFD No. 06- Community Facilities District No. 06-1 Page 4 EastLake - Woods, Vistas and Land Swap August 2002 Revised February 2003 ~ ,r'~ ~:.~ ~. I reserves the right to modify the actual facilities proposed herein to the extent CFD No. 06-I deems necessary, in its sole discretion to meet those needs. The Special Taxes required to pay for the construction or financing of said facilities will be apportioned as described in the Rate and Method of Apportionment (RMA) of the Special Tax for CFD No. 06-I Improvement Area A (Exhibit B-l) and the Amended Rate and Method of Apportionment (RMA) for CFD No. 06-I Improvement Area B (Exhibit B-2). Proceeds of the proposed bonded indebtedness of CFD No. 06-I will be used to finance backbone streets and associated improvements (i.e., grading, sewer, streets, landscaping, utilities, etc.), public facilities DIF Improvements and Traffic Enhancement Facilities. Following is a general description of the proposed facilities: · E. Olympic Parkway · W. Olympic Parkway · Otay Lakes Road · EastLake Parkway · Hunte Parkway · Proctor Valley Road · Telegraph Canyon Road · Traffic Signals B. Estimated Cost of Proposed Public Improvements The facilities and the estimated costs herein are subject to review and confirmation. The costs listed in Table 1, are estimates only, based upon current construction and land costs and actual costs may differ from those estimates herein TABLE 1 Facilities Improvements Estimated Cost · East Olympic Parkway $6,628,980 · W. Olympic Parkway $14,317,392 · Otay Lakes Road $8,113,494 · EastLake Parkway $6,351,966 · Hunte Parkway $1,565,687 Community Facilities District No. 06-1 Page 5 EastLake- Woods, Vistas and Land Swap August 2002 Revised February 2003 · Proctor Valley Road $1,000,000 · Telegraph Canyon Road $2,700,000 · Traffic Signals $2,222,000 IV. BONDED INDEBTEDNESS AND INCIDENTAL EXPENSES A. Proiected Bond Sale For CFD No. 06-I there will be two separate issuance of bonds. One for Improvement Area A and one for Improvement Area B each with its own accounting, processing, and specifics to its obligated improvements within the CFD No. 06-I. The bond amount for CFD No. 06-1 Improvement Area A will be $39 million, which will finance approximately $31 million in facilities. The bonds issued by CFD No. 06-I Improvement Area B assuming the 47.94 acre commercial site prepays, will be $8.7 million, which will finance approximately $6.8 million in facilities. The bonds for Improvement Area A have been sold while the bonds for Improvement Area B are planned to be sold in early to mid 2003. The bonds issued by CFD No. 06-1 Improvement Areas A and B will meet the terms and conditions of special tax bonds set forth in the City's Statement of Goals and Policies Regarding the Establishment of Community Facilities Districts. B. Incidental Bond Issuance Expenses to be Included in the Proposed Bonded Indebtedness for Improvement Areas A and B Pursuant to Section 53345.3 of the Act, bonded indebtedness may include all costs and estimated costs incidental to, or connected with, the accomplishment of the purpose for which the proposed debt is to be incurred, including, but not limited to, the costs of legal, fiscal, and financial consultant fees; bond and other reserve funds; discount fees; interest on any bonds of the district due and payable prior to the expiration of one year from the date of completion of the facilities, not to exceed two years; election costs; and all costs of issuance of the bonds, including, but not limited to, fees for bond counsel, costs of obtaining credit ratings, bond insurance premiums, fees for letters of credit, and other credit enhancement costs, and printing costs. The reserve fund is estimated to be the maximum allowable under Federal Tax Law. All other incidental bond issuance expenses are estimated at 4 percent of the face amount of the bonds. C. Incidental Expenses to be Included in the Annual Levy of Special Taxes for Improvement Areas A and B Pursuant to Section 53340 of the Act, the proceeds of any special tax may only be used to pay, in whole or part, the cost of providing public facilities, services and incidental expenses. As defined by the Act, incidental expenses include, but are not limited to, the cost of planning and designing public facilities to be financed, including the cost of environmental evaluations of those facilities; the costs associated with the creation of the district, issuance of bonds, determination of the amount of taxes, collection of taxes, Community Facilities District No. 06-1 Page 6 EastLake - Woods, Vixtas and Land Swap August 2002 Revised February 2003 payment of taxes, or costs otherwise incurred in order to carry out the authorized purposes of the district; any other expenses incidental to the construction, completion, and inspection of the authorized work; and the retirement of existing bonded indebtedness. While the actual cost of administering CFD No. 06-I may vary, it is anticipated that the amount of special taxes, which can be collected, will be sufficient to fund at least $75,000 in annual administrative expenses prior to build-out of the project. V. RATE AND METHOD OF APPORTIONMENT OF THE SPECIAL TAX All of the property located within CFD No. 06-I, unless exempted by law, shall be taxed for the purpose of providing necessary facilities to serve CFD No. 06-I. Pursuant to Section 53325.3 of the Act, the tax imposed "is a Special Tax and not a special assessment, and there is no requirement that the tax be apportioned on the basis of benefit to any property." The Special Tax "may be based on benefit received by parcels of real property, the cost of making facilities or authorized services available to each parcel or other reasonable basis as determined by the legislative body," although the Special Tax may not be apportioned on an ad valorem basis pursuant to Article XIIIA of the California Constitution. As shown in Exhibit B-1 and B-2, for Improvement Area A and Improvement Area B respectively, the Rate and Method of Apportionment provides information sufficient to allow each property owner within CFD No. 06-I to estimate the maximum annual Special Tax he or she will be required to pay. Sections A through C, below, provide additional information on the Rate and Method of Apportionment (RMA) of the Special Tax for CFD No. 06-I. A. Explanation for Special Tax Apportionment When a community facilities district is formed, a Special Tax may be levied on each parcel of taxable property within the CFD to pay for the construction, acquisition and rehabilitation of public facilities, to pay for authorized services or to repay bonded indebtedness or other related expenses incurred by CFD No. 06-I. This Special Tax must be apportioned in a reasonable manner; however, the tax may not be apportioned on an ad valorem basis. When more than one type of land use is present within a community facilities district, several criteria may be considered when apportioning the Special Tax. Generally, criteria based on building square footage, acreage, and land uses are selected, and categories based on such criteria are established to differentiate between parcels of property. These categories are a direct result of the developer's projected product mix, and are reflective of the proposed land use types within that community facilities district. Specific Special Tax levels are assigned to each land use class, with all parcels within a land use class assigned the same Special Tax rate. The Act does not require the Special Taxes to be apportioned to individual parcels based on benefit received. However, in order to insure fairness and equity, benefit principles have been incorporated in establishing the Special Tax rates for CFD No. 06-1. Community Facilities District No. 06 1 Page 7 EastLake- Woods, Vistas and Land Swap August 2002 Revised February 2003 The major assumption inherent in the Special Tax rates set forth in the Rate and Method of Apportionment is that the level of benefit received from the proposed public improvements is a function of land use. This assumption is borne out through an examination of commonly accepted statistical measures. For example, in measuring average weekday vehicle trip-ends, the Institute of Transportation Engineer's 1995 Trip Generation report identifies land use as the primary determinant of trip-end magnitude. CommemiaI land uses typically generate more trip- ends than do single family residential land use. Similarly, larger single family detached dwellings typically generate a greater number of trip-ends than do smaller single family detached homes, and therefore, will tend to receive more benefit from road grading, road landscaping and road improvements. Drainage and flood control requirements generally vary with the amount of impervious grotmd cover per parcel. It follows that larger homes which have more impervious ground cover will create relatively more drainage flow than smaller homes. Special taxes for CFD No. 06-I Improvement Areas A and B (EastLake-Woods, Vistas and Land Swap) shall be levied to Taxable Property to satisfy the Special Tax Requirement as outlined in the CFD No. 06-I Improvement Areas A and B RMA's. The Land Use Class Categories of Taxation have been established for CFD No. 06-1. The categories are defined as follows: Residential Developed Parcels (single and multi-family residences) are taxed on the square footage of the building; >Commercial Developed Parcels are taxed based on the acreage of the panel; and >Hotel Developed Parcels are taxed based on the acreage of the parcel. Based on the types of public facilities that are proposed for CFD No. 06-I and the factors described above, the Special Taxes assigned to specific land uses are generally proportionate to the relative benefits received by them, and, accordingly, the Special Taxes in CFD No. 06-1 can be considered fair and reasonable. B. Assigned Special Tax Rates Exhibit C lists the Assigned Special Tax rates that may be levied against Developed Property, Commercial and Hotel Property within Improvement Areas A and B of CFD No. 06-1. The City Council will annually determine the actual amount of the Special Tax levy based on the method described in the RMA's. The City will levy a Special Tax to the extent necessary, sufficient to meet the Special Tax Requirement. Community Facilities District No. 06 1 Page 8 EastLake - Woods, Vistas and Land Swap August 2002 Revised February 2003 C. Backup Special Tax When a Final Subdivision Map is recorded within each Improvement Area, the Backup Special Tax for Assessors Parcels of Developed Property classified as Residential Property or Commercial Property will be determined pursuant to Section C.1 .b of Exhibit B-1 for Improvement Area A and C.1 .b of Exhibit B-2 for Improvement Area B. D. Accuracy of Information In order to establish the Maximum Annual Special Tax rates and the Backup Special Tax as set forth in the Rate and Method of Apportionment for CFD No. 06-1, McGill Martin Self, Inc. has relied on information including, but not limited to absorption, land-use types, building square footage, and net taxable acreage which were provided to McGill Martin Self, Inc. by others. McGill Martin Self, Inc. has not independently verified such data and disclaims responsibility for the impact of inaccurate data provided by others, if any, on the Rate and Method of Apportionment for CFD No.06-I (Improvement Area A and B(Amended)), including the inability to meet the financial obligations of CFD No. 06-I. VI. BOUNDARIES OF COMMUNITY FACILITIES DISTRICT The boundaries of CFD No. 06-I include all land on which the Special Taxes may be levied. The Amended Recorded Boundary Map of the area included within CFD No. 06-I is provided as Exhibit A. VII. GENERAL TERMS AND CONDITIONS A. Substitution Facilities The description of the public facilities, as set forth herein, are general in their nature. The final nature and location of improvements and facilities will be determined upon the preparation of final plans and specifications. The final plans may show substitutes, in lieu or modifications to the proposed work in order to accomplish the work of improvement, and any such substitution shall not be a change or modification in the proceedings as long as the facilities provide a service and are of a type substantially similar to that as set forth in this Report. B. Transportation Enhancement Facilities The City may, in its sole discretion, elect to authorize and make the proceeds of any subsequent series of bonds available to pay the cost of construction or the purchase price for the acquisition of Improvements for Transportation Enhancement Facilities. This could result in the revision of the facilities priority structure for the utilization of such proceeds. Community Facilities District No, 06-1 Page 9 EastLake- Woods, Fistas and Land Swap August 2002 Revised February 2003 C. Appeals Any lando~vner who feels that the amount of the Special Tax is in error may file a notice with the City Administrator, appealing the levy of the Special Tax pursuant to the procedure specified in Exhibit B-1 and B-2. As appropriate the City Administrator will then review the appeal and, if necessary, meet with the applicant. If the findings of the City Administrator verify that the amount of the Special Tax should be modified or changed, then, as appropriate, the Special Tax levy shall be corrected, pursuant to Section F of the RMA's. Community Facilities District No. 06-I Page lO EastLake - Woods, Vistas and Land Swap August 2002 Revised February 2003 EXHIBIT A CITY OF CHULA VISTA COMMUNITY FACILITIES DISTRICT NO. 06-I (EASTLAKE-WOODS, VISTAS AND LAND SWAP) AMENDED RECORDED BOUNDARY MAP Community Facilities District No. 06-! Page I l EastLake-14~oods, ~/istas and Land Swap August 2002 Revised February 2003 EXHIBIT B-1 CITY OF CHULA VISTA COMMUNITY FACILITIES DISTRICT NO. 06-I (EASTLAKE-WOODS, VISTAS AND LAND SWAP RATE AND METHOD OF APPORTIONMENT IMPROVEMENT AREA A Community Facilities District No 06-1 Page 12 EastLake - Woods, Vistas and Land Swop August 2002 Revised February 2003 RATE AND METHOD OF APPORTIONMENT FOR CITY OF CHULA VISTA COMMUNITY FACILITIES DISTRICT NO. 06-1 IMPROVEMENT AREA A (Eastlake - Woods and Vistas) A Special Tax as hereinafter defined shall be levied on each Assessor's Parcel of Taxable Property within the City of Chula Vista Community Facilities District No. 06-I, Improvement Area A ("Improvement Area A") and collected each Fiscal Year commencing in Fiscal Year 2003-2004 in an amount determined by the City Council through the application of the appropriate Special Tax for "Developed Property," and "Undeveloped Property" as described below. All of the Taxable Property in Improvement Area A, unless exempted by law or by the provisions hereof, shall be taxed for the purposes, to the extent and in the manner herein provided. A. DEFINITIONS The terms hereinafter set forth have the following meaning: "Acre or Acreage" means the land area of an Assessor's Parcel as shown on an Assessor's Parcel Map, or if the land area is not shown on an Assessor's Parcel Map, the land area shown on the applicable Final Subdivision Map, parcel map, condominium plan, record of survey, or other recorded document creating or describing the land area. If the preceding maps for a land area are not available, the Acreage of such land area shall be determined by the City Engineer. "Act" means the Mello-Roos Community Facilities Act of 1982, as amended, being Chapter 2.5, Division 2 of Title 5 of the Government Code of the State of California. "Administrative Expenses" means the actual or reasonably estimated costs directly related to the administration of Improvement Area A including, but not limited to, the following: the costs of computing the Special Taxes and preparing the annual Special Tax collection schedules (whether by the City or designee thereof or both); the costs of collecting the Special Taxes (whether by the County, the City, or otherwise); the costs of remitting the Special Taxes to the Trustee; the costs of the Trustee (including its legal counsel) in the discharge of the duties required of it under the Indenture; the costs to the City, CFD-06-I, or any designee thereof of complying with arbitrage rebate requirements; the costs to the City, CFD-06-I, or any designee thereof of providing continuing disclosure; the costs associated with preparing Special Tax disclosure statements and responding to public inquiries regarding the Special Taxes; the costs of the City, CFD-06-I, or any designee thereof related to any appeal of the levy or application of the Special Tax; and the costs associated with the release of funds from an escrow account, if any. Administrative Expenses shall also include amounts estimated or advanced by the City or CFD-06-I, for any other administrative purposes of Improvement Area A, including, but not limited to attorney's fees and other costs related to commencing and pursuing to completion any foreclosure of delinquent Special Taxes. City of Chula Vista Community Facilities District No. 06-1, Improvement Area A Eastlake - Woods and Vistas Page 1 "Assessor's Parcel" means a lot or parcel shown in an Assessor's Parcel Map with an assigned Assessor's Parcel number. "Assessor's Parcel Map" means an official map of the County Assessor of the County designating parcels by Assessor's Parcel number. "Assigned Special Tax" means the Special Tax for each Land Use Category of Developed Property as determined in accordance with Section C. 1 .a. "Available Funds" means the balance in the reserve fund established pursuant to the terms of the Indenture in excess of the reserve requirement as defined in such Indenture, delinquent Special Tax payments not required to fund the Special Tax Requirement for any preceding Fiscal Year, and Special Tax prepayments collected to pay interest on Bonds, and other sources of funds available as a credit to the Special Tax Requirement as specified in such Indenture. "Backup Special Tax means the Special Tax amount set forth in Section C. 1.b. "Bonds" means any bonds or other debt (as defined in the Act), whether in one or more series, issued or incurred by CFD-06-I for Improvement Area A under the Act. "Bond Year" means a one-year period beginning on September 2nd in each year and ending on September 1st in the following year, unless defined otherwise in the applicable Indenture. "CFD Administrator" means an official of the City, or designee thereof, responsible for determining the Special Tax Requirement and providing for the levy and collection of the Special Taxes. "CFD-06-I" means City of Chula Vista Community Facilities District No. 06-I. "City" means the City of Chula Vista. "Commercial Property" means all Assessors' Parcels of Developed Property, for which a building permit(s) ~vas issued for a non-residential use, excluding Community Purpose Facility Property and Hotel Property. "Community Purpose Facility Property" means all Assessors' Pamels which are classified as community purpose facilities and meet the requirements of City of Chula Vista Ordinance No. 2452. "Council" means the City Council of the City, acting as the legislative body of CFD-06-I. "County" means the County of San Diego. City of Chula Vista Community Facilities District No. 06-1, Improvement Area A Eastlake Woods and Vistas Page 2 "Developed Property" means, for each Fiscal Year, all Taxable Property for which a building permit for new construction was issued prior to March l of the prior Fiscal Year. "Exempt Property" means property not subject to the Special Assigned Tax due to its classification as either Public Property, Property Owner Association Property, Community Purpose Facility Property, public or utility easements "Final Subdivision Map" means a subdivision of property, created by recordation of a Final Subdivision Map, parcel map or lot line adjustment, approved by the City pursuant to the Subdivision Map Act (California Government Code Section 66410 et seq.) or recordation of a condominium plan pursuant to California Civil Code 1352, that creates individual lots for which residential building permits may be issued without further subdivision of such property. "Fiscal Year" means the period starting July 1 and ending on the following June 30. "Hotel Property" means any Assessor's Parcel(s) of Commercial Property within the boundaries of CFD 06-1 entitled or otherwise designated by the City to be used as a Hotel site. "Hotel" means a building or group of buildings comprising six or more individual sleeping or living units without kitchens, except as otherwise provided herein, for the accommodation of transient guests. "Improvement Area A" means Improvement Area A of CFD No. 06-I known as the Woods and Vistas. "Indenture" means the indenture, fiscal agent agreement, trust agreement, resolution or other instrument pursuant to which Bonds are issued, as modified, amended and/or supplemented from time to time, and any instrument replacing or supplementing the same. "Land Use Class" means any of the classes listed in Tables 1 and 2 of Section C. "Lot" means an individual legal lot created by a Final Subdivision Map for which a building permit for residential construction has been or could be issued. "Master Developer" means the owner of the predominant amount of Undeveloped Property in Improvement Area A. "Maximum Annual Special Tax" means the maximum annual Special Tax, determined in accordance with the provisions of Section C, which may be levied in any Fiscal Year on any Assessor's Parcel of Taxable Property. "Outstanding Bonds" means all Bonds, which remain outstanding as defined in the Indenture. City of Chula Vista Community Facilities District No. 06-I, Improvement Area A Eastlake Woods and Vistas Page 3 "Property Owner Association Property" means any property within the boundaries of Improvement Area A owned by or dedicated to a property owner association, including any master or sub-association. "Proportionately" means for Developed Property that the ratio of the actual Special Tax levy to the Assigned Annual Special Tax or the Backup Special Tax is equal for all Assessors' Parcels of Developed Property within Improvement Area A. For Undeveloped Property "Proportionately" means that the ratio of the actual Special Tax levy per Acre to the Maximum Annual Special Tax per Acre is equal for all Assessor's Parcels of Undeveloped Property within Improvement Area A. "Public Property" means any property within the boundaries of Improvement Area A that is owned by or dedicated to the federal government, the State of California, the County, the City or any other public agency. "Residential Property" means all Assessors' Parcels of Developed Property for which a building permit has been issued for purposes of constructing one or more residential dwelling units. "Residential Floor Area" means all of thc square footage of living area within the perimeter of a residential structure, not including any carport, walkway, garage, overhang, patio, enclosed patio, or similar area. The determination of Residential Floor Area shall be made by the CFD Administrator by reference to appropriate records kept by the City's Building Department. Residential Floor Area for a residential structure will be based on thc building permit(s) issued for such structure. "Special Tax" means thc annual special tax to be levied in each Fiscal Year on each Assessor's Parcel of Taxable Property to fund the Special Tax Requirement. "Special Tax Requirement" means that amount of Special Tax revenue required in any Fiscal Year for Improvement Area A to: (i) pay annual debt service on all Outstanding Bonds (as defined in Section A) due in thc Bond Year beginning in such Fiscal Year; (ii) pay other periodic costs on Outstanding Bonds, including but not limited to, credit enhancement and rebate payments on Outstanding Bonds; (iii) pay Administrative Expenses; (iv) pay any amounts required to establish or replenish any reserve funds for all Outstanding Bonds in accordance with the Indenture; and (v) pay directly for acquisition and/or construction of public improvements which are authorized to be financed by CFD- 06-I provided that the inclusion of such amount does not cause an increase in the levy of Special Tax on the Undeveloped Property and for Improvement Area A; less (vi) a credit for Available Funds. "State" means the State of California. "Taxable Property" means all of the Assessor's Parcels within the boundaries of Improvement Area A that are not exempt from the Special Tax pursuant to law or Section E below. City of Chula Vista Community Facilities District No. 06-1, Improvement Area A Eastlake Woods and Vistas Page 4 "Trustee" means the trustee, fiscal agent, or paying agent under the Indenture. "Undeveloped Property" means, for each Fiscal year, all Taxable Property not classified as Developed Property. "Zone 1" means a specific geographic location known as the Vistas development area as depicted in Exhibit A attached herein. "Zone 2" means a specific geographic location known as the Woods development area as depicted in Exhibit A attached herein. B. ASSIGNMENT TO LAND USE CATEGORIES Each Fiscal Year, all Assessors' Parcels o£ Taxable Property within Improvement Area A shall be classified as Developed Property or Undeveloped Property and shall be subject to the levy of' annual Special Taxes determined pursuant to Sections C and D below. Developed Property shall be assigned to Zone 1 or Zone 2 and shall be further classified as Residential Property, Commercial Property or Hotel Property. C. MAXIMUM ANNUAL SPECIAL TAX RATE 1. Developed Property The Maximum Annual Special Tax for each Assessor's Parcel of Residential Property, Commercial Property or Hotel Property shall be the greater of (1) the Assigned Special Tax described in Tables 1 and 2 below or (2) the Backup Special Tax computed pursuant to b. below. a. Assigned Special Tax The Assigned Special Tax for each Assessor's Parcel of'Developed Property is shown in Tables 1 and 2. TABLE 1 Zone 1 (Vistas) Assigned Annual Special Tax for Developed Property Land Use Class Description Assigned Annual Special Tax I Residential Property $0.58 per square foot of Residential Floor Area 2 Commercial Property $6,000 per Acre 3 Hotel Property $6,000 per Acre city of Chula Vista Community Facilities District No. 06~1. Improvement Area A Eastlake - Woods and Vistas Page 5 TABLE 2 Zone 2 (Woods) Assigned Annual Special Tax for Developed Property Land Use Class Description Maximum Annual Special Tax I Residential Property $0.67 per square foot of Residential Floor Area 2 Commercial Property $6,000 per Acre b. Backup SpecialTax When a Final Subdivision Map is recorded within Zone 1 and 2 of Improvement Area A the Backup Special Tax for Assessor's Parcels of classified as Residential Property, Commercial Property or Hotel Property shall be determined as follows: For each Assessor's Parcel of Residential Property or for each Assessor's Parcel of Undeveloped Property to be classified as Residential Property upon its development within the Final Subdivision Map area, the Backup Special Tax shall be the rate per Lot calculated according to the following formula: Zone 1 (Vistas) $11,037 x A L Zone 2(Woods) $8,332 x A L The terms above have the following meanings: B - Backup Special Tax per Lot in each Fiscal Year. A = Acreage classified or to be classified as Residential Property in such Final Subdivision Map. L = Lots in the Final Subdivision Map which are classified or to be classified as Residential Property. For each Assessor's Parcel of Commercial Property or Hotel Property or for each Assessor's Parcel of Undeveloped Property to be classified as Commercial Property or Hotel Property within the Final Subdivision Map area, the Backup Special Tax shall be determined by multiplying $11,037 for Zone 1 and $8,332 for Zone 2 by the total Acreage of each Assessor's parcels of the Commercial or Hotel Property City of Chula k'ista Community Facilities District No. 06-1, Improvement/~rea A Eastlake - Woods and Vistas Page 6 and Undeveloped Property to be classified as Commemial Property or Hotel Property within the Final Subdivision Map area. Notwithstanding the foregoing, if Assessor's Parcels of Residential Property, Commercial Property, Hotel Property or Undeveloped Property for which the Backup Special Tax has been determined are subsequently changed or modified by recordation of a new or amended Final Subdivision Map, then the Backup Special Tax applicable to such Assessor's Parcels shall be recalculated to equal the amount of Backup Special Tax that would have been generated if such change did not take place. 2. Undeveloped Property The Maximum Annual Special Tax for each Assessor's Parcel classified as Undeveloped Property shall be $11,037 per acre for Zone 1 and $8,332 per acre for Zone 2. D. METHOD OF APPORTIONMENT OF THE SPECIAL TAX Commencing with Fiscal Year 2003-04 and for each following Fiscal Year, the Council shall determine the Special Tax Requirement and shall levy the Special Tax until the amount of Special Taxes equals the Special Tax Requirement. The Special Tax shall be levied each Fiscal Year as follows: First: The Special Tax shall be levied Proportionately on each Assessor's Parcel of Developed Property within Zones 1 or 2 at a rate up to 100% of the applicable Assigned Special Tax to satisfy the Special Tax Requirement. Second: If additional monies are needed to satisfy the Special Tax Requirement after the first step has been completed, the Special Tax shall be levied Proportionately on each Assessor's Parcel of Undeveloped Property, excluding any Assessor's Parcels classified as Undeveloped Property pursuant to Section E, at a rate up to 100% of the Maximum Annual Special Tax for Undeveloped Property. Third: If additional monies are needed to satisfy the Special Tax Requirement after the first two steps have been completed, the Special Tax to be levied on each Assessor's Parcel of Developed Property whose Maximum Annual Special Tax is derived by the application of the Backup Special Tax shall be increased Proportionately from the Assigned Special Tax up to the Maximum Annual Special Tax for each such Assessor's Parcel. Fourth: If additional monies are needed to satisfy the Special Tax Requirement after the first three steps have been completed, then the Special Tax shall be levied Proportionately on each Assessor's Parcel classified as Undeveloped Property pursuant to Section E at a rate up to 100% of the Maximum Annual Special Tax for Undeveloped Property. Notwithstanding the above, under no circumstances will the Special Tax levied against any Assessor's Parcel of Residential Property be increased by more than ten percent per year as City of Chula Vista Community Facilities District No. 06-1, Irnprovement Area A Eastlake Woods and Vistas Page 7 a consequence of delinquency or default in the payment of Special Taxes by the owner of any other Assessor's Parcel. E. EXEMPTIONS 1. The CFD Administrator shall classify the following Assessor Parcel(s) as Exempt Property: (i) Public Property, (ii) Property Owner Association Property, (iii) Community Purpose Facility Property, and (iv) Assessor's Parcels with public or utility easements making impractical their utilization for other than the purposes set forth in the easement; provided, however, that no such classification shall reduce the sum of all Taxable Property within Zone 1 (Vistas) to less than 180.03 Acres and within Zone 2 (Woods) to less than 166.23 acres. Assessor's Parcels which cannot be classified as Exempt Property because such classification would reduce the Acreage of all Taxable Property to less than for Zone 1 (Vistas) 180.03 acres and Zone 2 (Woods) 166.23 acres will be classified as Undeveloped Property and shall be taxed as such. Tax exempt status for purposes of this paragraph will be assigned by the CFD Administrator in the chronological order in which property becomes Exempt Property. 2. The Maximum Annual Special Tax obligation for any property which would be classified as Public Property upon its transfer or dedication to a public agency but which cannot be classified as Exempt Property as described in paragraph I of Section E shall be prepaid in full by the seller pursuant to Section H. 1, prior to the transfer/dedication of such property to such public agency. Until the Maximum Annual Tax obligation for any such Public Property is prepaid, the property shall continue to be subject to the levy of the Special Tax as Undeveloped Property. F. REVIEW/APPEAL COMMITTEE Any landowner or resident who feels that the amount of the Special Tax levied on their Assessor's Parcel is in error shall first consult with the CFD Administrator regarding such error. If following such consultation, the CFD Administrator determines that an error has occurred; the CFD Administrator may amend the amount of the Special Tax levied on such Assessor's Parcel. If following such consultation and action (if any by the CFD Administrator), the landowner or resident believes such error still exists, such person may file a written notice with the City Clerk of the City appealing the amount of the Special Tax levied on such Assessor's Parcel. Upon the receipt of any such notice, the City Clerk shall forward a copy of such notice to the City Manager who shall establish as part of the proceedings and administration of CFD-06-I a special three-member Review/Appeal Committee. The Review/Appeal Committee may establish such procedures, as it deems necessary to undertake the review of any such appeal. The Review/Appeal Committee shall interpret this Rate and Method of Apportionment and make determinations relative to the annual administration of the Special Tax and any landowner or resident appeals, as herein specified. The decision of the Review/Appeal Committee shall be final and binding as to all persons. City of Chula Vista Community Facilities District No, 06-1, Improvement Area A Eastlake - Woods and Vistas Page 8 qo G. MANNER OF COLLECTION The annual Special Tax shall be collected in the same manner and at the same time as ordinary ad valorem property taxes; provided, however, that CFD-06-I, may directly bill the Special Tax, may collect Special Taxes at a different time or in a different manner if necessary to meet its financial obligations, and may covenant to foreclose and may actually foreclose on Assessor's Parcels of Taxable Property that are delinquent in the payment of Special Taxes. Tenders of Bonds may be accepted for payment of Special Taxes upon the terms and conditions established by the Council pursuant to the Act. However, the use of Bond tenders shall only be allowed on a case-by-case basis as specifically approved by the Council. H. PREPAYMENT OF SPECIAL TAX The following definition applies to this Section H: "CFD Public Facilities" means either $34.5 million in 2002 dollars, which shall increase by the Construction Inflation Index on July 1, 2003, and on each July 1 thereafter, or such lower number as (i) shall be determined by the CFD Administrator as sufficient to provide the public facilities under the authorized bonding program for CFD No. 06-I Improvement Area A, or (ii) shall be determined by the Council concurrently with a covenant that it will not issue any more Bonds to be supported by Special Taxes levied under this Rate and Method of Apportionment as described in Section D. "Construction Fund" means an account specifically identified in the Indenture to hold funds which are currently available for expenditure to acquire or construct public facilities eligible under the Act. "Construction Inflation Index" means the annual percentage change in the Engineering News-Record Building Cost Index for the City of Los Angeles, measured as of the calendar year which ends in the previous Fiscal Year. In the event this index ceases to be published, the Construction Inflation Index shall be another index as determined by the CFD Administrator that is reasonably comparable to the Engineering News-Record Building Cost Index for the City of Los Angeles. "Future Facilities Costs" means the CFD Public Facilities minus public facility costs available to be funded through existing construction fund, or funded by the Outstanding Bonds as defined below, minus public facility costs funded by interest earnings on the Construction Fund actually earned prior to the date of prepayment, and minus public facilities costs paid directly with Special Taxes. "Outstanding Bonds" means all previously issued Bonds which will remain outstanding after the first interest and/or principal payment date following the current Fiscal Year, excluding Bonds to be redeemed at a later date with the proceeds of prior prepayments of Maximum Annual Special Taxes. City of Chula Vista Community Facilities District No. 06-l, Improvement Area A Eastlake - Woods and Vistas Page 9 1. Prepayment in Full The Maximum Annual Special Tax obligation may only be prepaid and permanently satisfied for an Assessor's Parcel of Developed Property, Undeveloped Property for which a building permit has been issued, or Public Property. The Maximum Annual Special Tax obligation applicable to such Assessor's Parcel may be fully prepaid and the obligation of the Assessor's Parcel to pay the Special Tax permanently satisfied as described herein; provided, however that a prepayment may be made only if there are no delinquent Special Taxes with respect to such Assessor's Parcel at the time of Prepayment. An owner of an Assessor's Parcel intending to prepay the Maximum Annual Special Tax obligation shall provide the CFD Administrator with written notice of intent to prepay. Within 30 days of receipt of such written notice, the CFD Administrator shall notify such owner of the Prepayment amount of such Assessor's Parcel. The CFD Administrator may charge a reasonable fee for providing this figure. The Prepayment Amount shall be calculated as summarized below (capitalized terms as defined below): Bond Redemption Amount plus Redemption Premium plus Future Facilities Amount plus Defeasance Amount plus Administrative Fees and Expenses less Reserve Fund Credit less Capitalized Interest Credit Total: equals Prepayment Amount As of the proposed date of prepayment, the Prepayment Amount (defined below) shall be calculated as follows: Step No.: 1. For Assessor's Parcels of Developed Property, compute the Maximum Annual Special Tax for the Assessor's Parcel to be prepaid. For Assessor's Parcels of Undeveloped Property for which a building permit has been issued to be prepaid, compute the Maximum Annual Special Tax for that Assessor's Parcel as though it was already designated as Developed Property, based upon the building permit, issued for that Assessor's Parcel. For Assessor's Parcels of Public Property to be prepaid, compute the Maximum Annual Special Tax for that Assessor's Parcel using the Maximum Annual Special Tax for Undeveloped Property. 2. Divide the Maximum Annual Special Tax computed pursuant to paragraph 1 by the sum of the total expected Maximum Annual Special Tax revenues which may be levied within Improvement Area A excluding any Assessors Parcels for which the Maximum Annual Special Tax obligation has been previously prepaid. City of Chula Vista Community Facilities District No. 06-1, Improvement Area A Eastlake Woods and Vistas ~ Page 10 3. Multiply the quotient computed pursuant to paragraph 2 by the principal amount of the Outstanding Bonds to compute the amount of Outstanding Bonds to be retired and prepaid (the "Bond Redemption Amount"). 4. Multiply the Bond Redemption Amount computed pursuant to paragraph 3 by the applicable redemption premium on the next possible Bond call date, if any, on the Outstanding Bonds to be redeemed (the "Redemption Premium"). 5. If all the Bonds authorized to be issued for Improvement Areas A have not been issued, compute the Future Facilities Costs. 6. Multiply the quotient computed pursuant to paragraph 2 by the amount if any, determined pursuant to paragraph 5 to compute the amount of Future Facilities Costs to be allocated to such Assessor's Parcel (the "Future Facilities Amount'). 7. Compute the amount needed to pay interest on the Bond Redemption Amount from the first bond interest and/or principal payment date following the current Fiscal Year until the earliest redemption date for the Outstanding Bonds. 8. Confirm that no Special Tax delinquencies apply to such Assessor's Parcel. 9. Determine the Special Taxes levied on the Assessor's Parcel in the current Fiscal Year, which have not yet been paid. 10. Compute the amount the CFD Administrator reasonably expects to derive from the reinvestment of the Prepayment Amount less the Administrative Fees and Expenses (including the costs of computation of the prepayment, the costs to invest the prepayment proceeds, the costs of redeeming Bonds, and the costs of recording any notices to evidence the prepayment and the redemption) from the date of prepayment until the redemption date for the Outstanding Bonds to be redeemed with the prepayment. 11. Add the amounts computed pursuant to paragraphs 7 and 9 and subtract the amount computed pursuant to paragraph 10 (the "Defeasance Amount"). 12. Determine the administrative fees and expenses of CFD-06-I, applicable prepayment totals, including the costs of computation of the prepayment, the costs to invest the prepayment proceeds, the costs of redeeming Bonds, and the cost of recording any notices to evidence the prepayment and the redemption (the "Administrative Fees and Expenses") 13. The reserve fund credit (the "Reserve Fund Credit") shall equal the lesser off (a) the expected reduction in the reserve requirement (as defined in the Indenture), if any, associated with the redemption of Outstanding Bonds as a result of the prepayment, or (b) the amount derived by subtracting the new reserve requirement (as defined in the Indenture) in effect after the redemption of Outstanding Bonds as a result of the City of Chula Vista Community Facilities District No. 06-1, Improvement Area A Eastlake Woods and Vistas Page ll prepayment from the balance in the reserve fund on the prepayment date, but in no event shall such amount be less than zero. 14. If any capitalized interest for the Outstanding Bonds will not have been expended at the time of the first interest payment following the current Fiscal Year, a capitalized interest credit shall be calculated by multiplying the quotient computed pursuant to paragraph 2 by the expected balance in the capitalized interest fund after such first interest payment (the "Capitalized Interest Credit"). 15. The Maximum Annual Special Tax prepayment is equal to the sum of the amounts computed pursuant to paragraphs 3, 4, 6, 11, and 12, less the amounts computed pursuant to paragraphs 13 and 14 (the "Prepayment Amount"). 16. From the Prepayment Amount, the amounts computed pursuant to paragraphs 3, 4, l 1, 13, and 14 shall be deposited into the appropriate fund as established under the Indenture and be used to retire Outstanding Bonds or make debt service payments. The amount computed pursuant to paragraph 12 shall be retained by CFD-06. The amount computed pursuant to paragraph 5 shall be deposited in the Construction Fund. The Prepayment Amount may be sufficient to redeem other than a $5,000 increment of Bonds. In such cases, the increment above $5,000 or integral multiple thereof will be retained in the appropriate fund established under the Indenture to be used with the next prepayment of bonds or to make debt service payments. As a result of the payment of the current Fiscal Year's Special Tax levy as determined under paragraph 9 above, the CFD Administrator shall remove the current Fiscal Year's Special Tax levy for such Assessor's Parcel from the County tax rolls. With respect to any Assessor's Parcel that is prepaid, the Council shall cause a suitable notice to be recorded in compliance with the Act, to indicate the prepayment of Special Taxes and the release of the Special Tax lien on such Assessor's Parcel, and the obligation of such Assessor's Parcel to pay the Special Tax shall cease. Notwithstanding the foregoing, no Special Tax prepayment shall be allowed unless the amount of Maximum Annual Special Taxes that may be levied on Taxable Property within Improvement Area A both prior to and after the proposed prepayment is at least 1.1 times the maximum annual debt service on all Outstanding Bonds. Tenders of Bonds in prepayment of Maximum Annual Special Taxes may be accepted upon the terms and conditions established by the Council pursuant to the Act. However, the use of Bond tenders shall only be allowed on a case-by-case basis as specifically approved by the Council. 2. Prepayment in Part The Maximum Annual Special Tax on an Assessor's Parcel of Developed Property or an Assessor's Parcel of Undeveloped Property for which a building permit has been issued City of Chula Vista Community Facilities District No. 06-1, Improvement Area A Eastlake Woods and Vistas Pa~,e 12 may be partially prepaid. The amount of the prepayment shall be calculated as in Section H 1; except that a partial prepayment shall be calculated according to the following formula: PP =(PEx F) + A These terms have the following meaning: PP = the partial prepayment PE = the Prepayment Amount calculated according to Section H.1, minus Administrative Expenses and Fees determined pursuant to Step 12. F - the percent by which the owner of the Assessor's Parcel(s) is partially prepaying the Maximum Annual Special Tax. A-- the Administrative Expenses and Fees determined pursuant to Step 12. The owner of an Assessor's Parcel who desires to partially prepay the Maximum Annual Special Tax shall notify the CFD Administrator of (i) such owner's intent to partially prepay the Maximum Annual Special Tax, (ii) the percentage by which the Maximum Annual Special Tax shall be prepaid, and (iii) the company or agency that will be acting as the escrow agent, if applicable. The CFD Administrator shall provide the owner with a statement of the amount required for the partial prepayment of the Maximum Annual Special Tax for an Assessor's Parcel within 30 days of the request and may charge a reasonable fee for providing this service. With respect to any Assessor's Parcel that is partially prepaid, the City shall (i) distribute the funds remitted to it according to Step 16 of Section H. 1, and (ii) indicate in the records of CFD-06-I that there has been a partial prepayment of the Maximum Annual Special Tax and that a portion of the Maximum Annual Special Tax equal to the outstanding percentage (1.00 - F) of the remaining Maximum Annual Special Tax shall continue to be authorized to be levied on such Assessor's Parcel pursuant to Section D. I. TERM OF MAXIMUM ANNUAL SPECIAL TAX The Maximum Annual Special Tax shall be levied commencing in Fiscal Year 2003-2004 to the extent necessary to fully satisfy the Special Tax Requirement and shall be levied for a period no longer than the 2042-2043 Fiscal Year. City of Chula Vista Community Facilities District No. 06-l, Improvement Area A Eastlake Woods and Vistas Page 13 EXHIBIT B-2 CITY OF CHULA VISTA COMMUNITY FACILITIES DISTRICT NO. 06-I (EASTLAKE-WOODS, VISTAS AND LAND SWAP) AMENDED RATE AND METHOD OF APPORTIONMENT IMPROVEMENT AREA B Cornmunity Facilities District No. 06-1 Page 13 EastLake Woods, k'istas and Land Swap August 2002 Revised February 2003 AMENDED RATE AND METHOD OF APPORTIONMENT FOR CITY OF CHULA VISTA COMMUNITY FACILITIES DISTRICT NO. 06-I IMPROVEMENT AREA B (EastLake - "Land Swap") A Special Tax as hereinafter defined shall be levied on each Assessor's Parcel of Taxable Property within the City of Chula Vista Community Facilities District No. 06-I, Improvement Area B ("Improvement Area B") and collected each Fiscal Year commencing in Fiscal Year 2003-2004 in an amount determined by the City Council through the application of the appropriate Special Tax for "Developed Property," and "Undeveloped Property" as described below. All of the Taxable Property in Improvement Area B, unless exempted by law or by the provisions hereof, shall be taxed for the purposes, to the extent and in the manner herein provided. A. DEFINITIONS The terms hereinafter set forth have the following meaning: "Acre or Acreage" means the land area of an Assessor's Parcel as shown on an Assessor's Parcel Map, or if the land area is not shown on an Assessor's Parcel Map, the land area shown on the applicable Final Subdivision Map, parcel map, condominium plan, record of survey, or other recorded document creating or describing the parcel. If the preceding maps for a land area are not available, the Acreage of such land area shall be determined by the City Engineer. "Act" means the Mello-Roos Community Facilities Act of 1982, as amended, being Chapter 2.5, Division 2 of Title 5 of the Government Code of the State of California. "Administrative Expenses" means the actual or reasonably estimated costs directly related to the administration of Improvement Area B including, but not limited to, the following: the costs of computing the Special Taxes and preparing the annual Special Tax collection schedules (whether by the City or designee thereof or both); the costs of collecting the Special Taxes (whether by the County, the City, or otherwise); the costs of remitting the Special Taxes to the Trustee; the costs of the Trustee (including its legal counsel) in the discharge of the duties required of it under the Indenture; the costs to the City, CFD-06-I or any designee thereof of complying with arbitrage rebate requirements; the costs to the City, CFD-06-I or any designee thereof of providing continuing disclosure; the costs associated with preparing Special Tax disclosure statements and responding to public inquiries regarding the Special Taxes; the costs of the City, CFD-06-I or any designee thereof related to any appeal of the levy or application of the Special Tax; and the costs associated with the release of funds from an escrow account, if any. Administrative Expenses shall also include amounts estimated or advanced by the City or CFD-06-I for any other administrative purposes of Improvement Area B, including, but not limited to City of Chula Vista Community Facilities District No. 06-1, Improvement Area B EastLake - Land Swa[~ Page l attorney's fees and other costs related to commencing and pursuing to completion any foreclosure of delinquent Special Taxes. "Assessor's Parcel" means a lot or parcel shown in an Assessor's Parcel Map with an assigned Assessor's Parcel number. "Assessor's Parcel Map" means an official map of the County Assessor of the County designating parcels by Assessor's Parcel number. "Assigned Special Tax" means the Special Tax for each Land Use Category of Developed Property as determined in accordance with Section C. 1 .a. "Available Funds" means the balance in the reserve fund established pursuant to the terms of the Indenture in excess of the reserve requirement as defined in such Indenture, delinquent Special Tax payments not required to fund the Special Tax Requirement for any preceding Fiscal Year, Special Tax prepayments collected to pay interest on Bonds, and other sources of funds available as a credit to the Special Tax Requirement as specified in such Indenture. "Backup Special Tax" means the Backup Special Tax amount set forth in Section C. 1 .b. "Bonds" means any bonds or other debt (as defined in the Act), whether in one or more series, issued by CFD-06-I for Improvement Area B under the Act. "Bond Year" means a one-year period beginning on September 2nd in each year and ending on September 1st in the following year. Unless defined differently in the applicable Indenture. "CFD Administrator" means an official of the City, or designee thereof, responsible for determining the Special Tax Requirement and providing for the levy and collection of the Special Taxes. "CFD-06-I means City of Chula Vista, Community Facilities District No. 06-I. "City" means the City of Chula Vista. "Commercial Property" means all Assessors' Parcels of Developed Property, for which a building permit(s) was issued for a non-residential use, excluding Community Purpose Facility Property. "Community Purpose Facility Property" means all Assessors' Parcels which are classified as community purpose facilities and meet the requirements of City of Chula Vista Ordinance No. 2452. "Council" means the City Council of the City, acting as the legislative body of CFD-06-I. City of Chula k'ista Community Facilities District No. 06-1, Improvement Area B EastLake - Land Swap Page 2 "County" means the County of San Diego. "Developed Property" means, for each Fiscal Year, all Taxable Property for which a building permit for new construction was issued prior to March 1 of the prior Fiscal Year. "Exempt Property" means property not subject to the Special Tax due to its classification as either Public Property, Property Owner Association Property Community Purpose Facility Property. "Final Subdivision Map" means a subdivision of property, created by recordation of a Final Subdivision Map, parcel map or lot line adjustment, approved by the City pursuant to the Subdivision Map Act (California Government Code Section 66410 et seq.) or recordation of a condominium plan pursuant to California Civil Code 1352, that creates individual lots for which residential building permits may be issued without further subdivision of such property. "Fiscal Year" means the period starting July 1 and ending on the following June 30. "Improvement Area B" means Improvement Area B of CFD No. 06-1 known as the "Land Swap". "Indenture" means the indenture, fiscal agent agreement, trust agreement, resolution or other instrument pursuant to which Bonds are issued, as modified, amended and/or supplemented from time to time, and any instrument replacing or supplementing the same. "Land Use Class" means any of the classes listed in Table 1 of Section C. "Lot(s)" means an individual legal lot created by a Final Subdivision Map for which a building permit for residential construction has been or could be issued. "Master Developer" means the owner of the predominant amount of Undeveloped Property in Improvement Area B. "Maximum Annual Special Tax" means the maximum annual Special Tax, determined in accordance with the provisions of Section C, which may be levied in any Fiscal Year on any Assessor's Parcel of Taxable Property. "Outstanding Bonds" mean all Bonds, which remain outstanding as defined in the Indenture. "Property Owner Association Property" means any property within the boundaries of Improvement Area B owned by or dedicated to a property owner association, including any master or sub-association. "Proportionately" means for Developed Property that the ratio of the actual Special Tax levy to the Assigned Special Tax or the Backup Special Tax is equal for all Assessors' City of Chula Vista Community Facilities District No. 06-I, Improvement Area B EastLake - Land Swap Page 3 Parcels of Developed Property within Improvement Area B. For Undeveloped Property "Proportionately" means that the ratio of the actual Special Tax levy per Acre to the Maximum Annual Special Tax per Acre is equal for all Assessor's Parcels of Undeveloped Property within Improvement Area B. "Public Property" means any property within the boundaries of Improvement Area B that is owned by or dedicated to the federal government, the State of California, the County, the City or any other public agency. "Residential Property" means all Assessors' Parcels of Developed Property for which a building permit has been issued for purposes of constructing one or more residential dwelling units. "Residential Floor Area" means all of the square footage of living area within the perimeter of a residential structure, not including any carport, walkway, garage, overhang, patio, enclosed patio, or similar area. The determination of Residential Floor Area shall be made by the CFD Administrator by reference to appropriate records kept by the City's Building Department. Residential Floor Area for a residential structure will be based on the building permit(s) issued for such structure. "Special Tax" means the annual special tax to be levied in each Fiscal Year on each Assessor's Parcel of Taxable Property to fund the Special Tax Requirement. "Special Tax Requirement" means that amount of Special Tax revenue required in any Fiscal Year for Improvement Area B to: (i) pay annual debt service on ali Outstanding Bonds (as defined in Section A) due in the Bond Year beginning in such Fiscal Year; (ii) pay other periodic costs on Outstanding Bonds, including but not limited to, credit enhancement and rebate payments on Outstanding Bonds; (iii) pay Administrative Expenses; (iv) pay any amounts required to establish or replenish any reserve funds for all Outstanding Bonds in accordance with the Indenture; and (v) pay directly for acquisition and/or construction of public improvements which are authorized to be financed by CFD- 06-1 provided that the inclusion of such amount does not cause an increase in the levy of Special Tax on the Undeveloped Property for Improvement Area B; less (vi) a credit for Available Funds. "State" means the State of California. "Taxable Property" means all of the Assessor's Parcels within the boundaries of CFD-06-I, Improvement Area B that are not exempt from the Special Tax pursuant to law or Section E below. "Trustee" means the trustee, fiscal agent, or paying agent under the Indenture. "Undeveloped Property" means, for each Fiscal year, all Taxable Property not classified as Developed Property. City of Chula Vista Community Facilities District No, 06-1, Improvement Area B EastLake - Land Swap Page 4 "Zone 3" means a specific geographic area as depicted in Exhibit A attached hereto. "Zone 4" means a specific geographic area as depicted in Exhibit A attached hereto. B. ASSIGNMENT TO LAND USE CATEGORIES Each Fiscal Year, all Assessor's Parcels of Taxable Property within, Improvement Area B shall be (a) categorized as being located in either Zone 3 or Zone 4, (b) classified as Developed Property or Undeveloped Property and (c) shall be subject to the levy of annual Special Taxes determined pursuant to Sections C and D below. Furthermore, all Developed Property shall then be classified as Residential or Commercial Property. C. MAXIMUM ANNUAL SPECIAL TAX RATE 1. Developed Property The Maximum Annual Special Tax for each Assessor's Parcel of Residential Property or Commercial Property shall be the greater of (1) the Assigned Special Tax described in Table 1 below or (2) the Backup Special Tax computed pursuant to b. below. a. Assigned SpeciaITax The Assigned Special Tax for each Assessor's Parcel of Developed Property is shown in Table 1. TABLE 1 Assigned Special Tax for Developed Property within Zone 3 and Zone 4 Land Use Class Description Assigned Special Tax 1 Residential Property $0.74 per square foot of Residential Floor Area 2 Commercial Property $6,000 per Acre b. Backup Special Tax When a Final Subdivision Map is recorded within Zone 3 or Zone 4, the Backup Special Tax for Assessor's Parcels of Developed Property classified as Residential Property or Commercial Property shall be determined as follows: City of Chula Vista Community Facilities District No. 06 l, Improvement ~tree B Page 5 EastLake - Land Swap For each Assessor's Parcel of Residential Property or for each Assessor's Parcel of Undeveloped Property to be classified as Residential Property upon its development within the Final Subdivision Map area, the Backup Special Tax shall be the rate per Lot calculated according to the following formula: Zone 3 $20,563 x A L Zone 4 $6,667 x A L The terms above have the following meanings: B - Backup Special Tax per Lot in each Fiscal Year. A- Acreage classified or to be classified as Residential Property in such Final Subdivision Map. L = Lots in the Final Subdivision Map which are classified or to be classified as Residential Property. For each Assessor's Parcel of Commercial Property or for each Assessor's Parcel of Undeveloped Property to be classified as Commercial Property within the Final Subdivision Map area, the Backup Special Tax shall be determined by multiplying $20,563 for Zone 3 and $6,667 for Zone 4 by the total Acreage of each Assessor's Parcels of the Commercial Property and Undeveloped Property to be classified as Commercial Property within the Final Subdivision Map area. Notwithstanding the foregoing, if Assessor's Parcels of Residential Property, Commemial Property or Undeveloped Property for which the Backup Special Tax has been determined are subsequently changed or modified by recordation of a ne~v or amended Final Subdivision Map, then the Backup Special Tax applicable to such Assessor's Parcels shall be recalculated to equal the amount of Backup Special Tax that would have been generated if such change did not take place. City of Chula Vista Community Facilities District No. 06-I, Improvement Area B EastLake - Land Swap Page 6 2. Undeveloped Property Thc Maximum Annual Special Tax for each Assessor's Parcel classified, as Undeveloped Property shall bc $20,563 per Acre for Zone 3 and $6,667 per Acre for Zone 4. D. METHOD OF APPORTIONMENT OF THE SPECIAL TAX Commencing with Fiscal Year 2003-04 and for each following Fiscal Year, the Council shall determine the Special Tax Requirement and shall levy the Special Tax until the mount of Special Taxes equals the Special Tax Requirement. The Special Tax shall be levied each Fiscal Year as follows: First: The Special Tax shall be levied Proportionately on each Assessor's Parcel of Developed Property within Zone 3 and Zone 4 at a rate up to 100% of the applicable Assigned Special Tax to satisfy the Special Tax Requirement. Second: If additional monies are needed to satisfy the Special Tax Requirement after the first step has been completed, the Special Tax shall be levied Proportionately on each Assessor's Parcel of Undeveloped Property within Zone 3 and Zone 4, excluding any Assessor's Parcels classified as Undeveloped Property pursuant to Section E, at a rate up to 100% of the Maximum Annual Special Tax for Undeveloped Property. Third: If additional monies are needed to satisfy the Special Tax Requirement after the first two steps have been completed, the Special Tax to be levied on each Assessor's Parcel of Developed Property whose Maximum Annual Special Tax is derived by the application of the Backup Special Tax shall be increased Proportionately from the Assigned Special Tax up to the Maximum Annual Special Tax for each such Assessor's Parcel. Fourth: If additional monies are needed to satisfy the Special Tax Requirement after the first three steps have been completed, then the Special Tax shall be levied Proportionately on each Assessor's Parcel classified as Undeveloped Property pursuant to Section E at a rate up to 100% of the Maximum Annual Special Tax for Undeveloped Property. Notwithstanding the above, under no circumstances will the Special Tax levied against any Assessor's Parcel of Residential Property be increased by more than ten percent per year as a consequence of delinquency or default in the payment of Special Taxes by the owner of any other Assessor's Parcel. City of Chula Vista Community Facilities District No. 06-1, Improvement Area B EastLake - Land Swap Page 7 E. EXEMPTIONS 1. The CFD Administrator shall classify the following Assessor Parcel(s) as exempt property: (i) Public Property, (ii) Property Owner Association Property, (iii) Community Purpose Facility Property, and (iv) Assessor's Parcels with public or utility easements making impractical their utilization for other than the purposes set forth in the easement; provided, however, that no such classification shall reduce the sum of all Taxable Property to less than 36.50 Acres in Zone 3 and 52.00 Acres in Zone 4. Assessor's Parcels which cannot be classified as exempt property because such classification would reduce the Acreage of all Taxable Property to less than 36.50 Acres in Zone 3 and 52.00 Acres in Zone 4 will be classified as Undeveloped Property and shall be taxed as such. Tax-exempt status for purposes of this paragraph will be assigned by the CFD Administrator in the chronological order in which property becomes exempt property. 3. The Maximum Annual Special Tax obligation for any property which would be classified as Public Property upon its transfer or dedication to a public agency but which cannot be classified as exempt property as described in paragraph I of Section F shall be prepaid in full by the seller pursuant to Section 1.1, prior to the transfer/dedication of such property to such public agency. Until the Maximum Annual Tax obligation for any such Public Property is prepaid, the property shall continue to be subject to the levy of the Special Tax as Undeveloped Property. F. REVIEW/APPEAL COMMITTEE Any landowner or resident who feels that the amount of the Special Tax levied on their Assessor's Parcel is in error shall first consult with the CFD Administrator regarding such error. If following such consultation, the CFD Administrator determines that an error has occurred; the CFD Administrator may amend the amount of the Special Tax levied on such Assessor's Parcel. If following such consultation and action (if any by the CFD Administrator), the landowner or resident believes such error still exists, such person may file a written notice with the City Clerk of the City appealing the amount of the Special Tax levied on such Assessor's Parcel. Upon the receipt of any such notice, the City Clerk shall forward a copy of such notice to the City Manager who shall establish as part of the proceedings and administration of CFD-06-I and a special three-member Review/Appeal Committee. The Review/Appeal Committee may establish such procedures, as it deems necessary to undertake the review of any such appeal. The Review/Appeal Committee shall interpret this Rate and Method of Apportionment and make determinations relative to the armual administration of the Special Tax and any landowner or resident appeals, as herein specified. The decision of the Review/Appeal Committee shall be final and binding as to all persons. City of Chula Vista Community Facilities District No. 06-1, Improvement Area B EastLake - Land Swap Page 8 G. MANNER OF COLLECTION The annual Special Tax shall be collected in the same manner and at the same time as ordinary ad valorem property taxes; provided, however, that CFD-06-I, Improvement Area B may directly bill the Special Tax, may collect Special Taxes at a different time or in a different manner if necessary to meet its financial obligations, and may covenant to foreclose and may actually foreclose on Assessor's Parcels of Taxable Property that are delinquent in the payment of Special Taxes. Tenders of Bonds may be accepted for payment of Special Taxes upon the terms and conditions established by the Council pursuant to the Act. However, the use of Bond tenders shall only be allowed on a case-by-case basis as specifically approved by the Council. H. PREPAYMENT OF SPECIAL TAX The following definition applies to this Section H: "CFD Public Facilities" means those public facilities authorized to be financed by CFD- 06-1 Improvement Area B. "CFD Public Facilities Costs" means either $12.3 million, or such lower number as shall be determined either by (a) the CFD Administrator as sufficient to finance the CFD Public Facilities, or (b) the Council concurrently with a covenant that it will not issue any more Bonds to be secured by Special Taxes levied under this Rate and Method of Apportionment. "Construction Fund" means an account specifically identified in the Indenture to hold funds which are currently available for expenditure to acquire or construct the CFD Public Facilities. "Future Facilities Costs" means the CFD Public Facilities Costs minus that (a) portion of the CFD Public Facilities Costs previously funded (i) from the proceeds of all previously issued Bonds, (ii) from interest earnings on the Construction Fund actually earned prior to the date of prepayment and (iii) directly from Special Tax revenues and (b) the amount of the proceeds of all previously issued Bonds then on deposit in the Construction Fund. "Outstanding Bonds" means all previously issued Bonds which will remain outstanding after the first interest and/or principal payment date following the current Fiscal Year, excluding Bonds to be redeemed at a later date with the proceeds of prior prepayments of Maximum Annual Special Taxes. City of Chula Vista Community Facilities' District No. 06-1, Improvement Area B Page 9 EastLake - Land Swap ,~ / 1. Prepayment in Full The Maximum Annual Special Tax obligation may only be prepaid and permanently satisfied for an Assessor's Parcel of Developed Property, Undeveloped Property for which a building permit has been issued, or Public Property. The Maximum Annual Special Tax obligation applicable to such Assessor's Parcel may be fully prepaid and the obligation of the Assessor's Parcel to pay the Special Tax permanently satisfied as described herein; provided, however that a prepayment may be made only if there are no delinquent Special Taxes with respect to such Assessor's Parcel at the time of prepayment. An owner of an Assessor's Parcel intending to prepay the Maximum Annual Special Tax obligation shall provide the CFD Administrator with written notice of intent to prepay. Within 30 days of receipt of such written notice, the CFD Administrator shall notify such owner of the Prepayment amount of such Assessor's Parcel. The CFD Administrator may charge a reasonable fee for providing this figure. The Prepayment An~ount (defined below) shall be calculated as summarized below (capitalized terms as defined below): Bond Redemption Amount plus Redemption Premium plus Future Facilities Amount plus Defeasance Amount plus Prepayment Fees and Expenses less Reserve Fund Credit less Capitalized Interest Credit Total: equals Prepayment Amount As of the proposed date of prepayment, the Prepayment Amount (defined below) shall be calculated as follows: Step No.: 1. For Assessor's Parcels of Developed Property, compute the Maximum Annual Special Tax for the Assessor's Parcel to be prepaid. For Assessor's Parcels of Undeveloped Property for which a building permit has been issued to be prepaid, compute the Maximum Annual Special Tax for that Assessor's Parcel as though it was already designated as Developed Property, based upon the building permit issued for that Assessor's Parcel. For Assessor's Parcels of Public Property to be prepaid, compute the Maximum Annual Special Tax for that Assessor's Parcel using the Maximum Annual Special Tax for Undeveloped Property. 2. Divide the Maximum Annual Special Tax computed pursuant to paragraph 1 by the sum of the total expected Maximum Annual Special Tax revenues which may be levied within Improvement Area B excluding any Assessors Parcels for which the Maximum Annual Special Tax obligation has been previously prepaid. City of Chula Vista Community Facilities District No. 06-1, Improvement Area B EastLake - Land Swap Page 10 3. Multiply the quotient computed pursuant to paragraph 2 by the principal mount of the Outstanding Bonds to compute the amount of Outstanding Bonds to be retired and prepaid (the "Bond Redemption Amount"). 4. Multiply the Bond Redemption Amount computed pursuant to paragraph 3 by the applicable redemption premium on the next possible Bond call date, if any, on the Outstanding Bonds to be redeemed (the "Redemption Premium"). 5. If all the Bonds authorized to be issued for Improvement Area B have not been issued, compute the Future Facilities Costs. 6. Multiply the quotient computed pursuant to paragraph 2 by the amount determined pursuant to paragraph 5 to compute the amount of Future Facilities Costs to be allocated to such Assessor's Parcel (the "Future Facilities Amount'). 7. Compute the amount needed to pay interest on the Bond Redemption Amount from the first bond interest and/or principal payment date following the current Fiscal Year until the earliest redemption date for the Outstanding Bonds. 8. Confirm that no Special Tax delinquencies apply to such Assessor's Parcel. 9. Determine the Special Taxes levied on the Assessor's Parcel in the current Fiscal Year, which have not yet been paid. 10. Determine the fees and expenses of CFD-06q, including but not limited to, the costs of computation of the prepayment, the costs to invest the prepayment proceeds, the costs of redeeming Bonds from the proceeds of such prepayment, and the cost of recording any notices to evidence the prepayment and the redemption (the "Prepayment Fees and Expenses"). 11. Compute the amount the CFD Administrator reasonably expects to derive from the reinvestment of the prepayment amount less the Prepayment Fees and Expenses, as determined pursuant to step 10, from the date of prepayment until the redemption date for the outstanding bonds to be redeemed with the prepayment. 12. Add the amounts computed pursuant to paragraphs 7 and 9 and subtract the amount computed pursuant to paragraph 11 (the "Defeasance Amount"). 13. The reserve fund credit (the "Reserve Fund Credit") shall equal the lesser of.' (a) the expected reduction in the reserve requirement (as defined in the Indenture), if any, associated with the redemption of Outstanding Bonds as a result of the prepayment, or (b) the amount derived by subtracting the new reserve requirement (as defined in the Indenture) in effect after the redemption of Outstanding Bonds as a result of the prepayment from the balance in the reserve fund on the prepayment date, but in no event shall such amount be less than zero. City of Chula Vista Community Facilities District No. 06-1, Improvement Area B EastLake - Land Swa? Page 14. If any capitalized interest for the Outstanding Bonds will not have been expended at the time of the first interest payment following the current Fiscal Year, a capitalized interest credit shall be calculated by multiplying the quotient computed pursuant to paragraph 2 by the expected balance in the capitalized interest fund after such first interest payment (the "Capitalized Interest Credit"). 15. The Maximum Annual Special Tax prepayment is equal to the sum of the amounts computed pursuant to paragraphs 3, 4, 6, 10, and 12, less the amounts computed pursuant to paragraphs 13 and 14 (the "Prepayment Amount"). 16. From the Prepayment Amount, the amounts computed pursuant to paragraphs 3, 4, 12, 13, and 14 shall be deposited into the appropriate fund as established under the Indenture and be used to retire Outstanding Bonds or make debt service payments. The amount computed pursuant to paragraph 10 shall be retained by CFD-06-I. The amount computed pursuant to paragraph 6 shall be deposited in the Construction Fund. The Prepayment Amount may be sufficient to redeem other than a $5,000 increment of Bonds. In such cases, the increment above $5,000 or integral multiple thereof will be retained in the appropriate fund established under the Indenture to be used with the next prepayment of bonds or to make debt service payments. As a result of the payment of the current Fiscal Year's Special Tax levy as determined under paragraph 9 above, the CFD Administrator shall remove the current Fiscal Year's Special Tax levy for such Assessor's Parcel from the County tax rolls. With respect to any Assessor's Parcel that is prepaid, the Council shall cause a suitable notice to be recorded in compliance with the Act, to indicate the prepayment of Special Taxes and the release of the Special Tax lien on such Assessor's Parcel, and the obligation of such Assessor's Parcel to pay the Special Tax shall cease. Notwithstanding the foregoing, no Special Tax prepayment shall be allowed unless the amount of Maximum Annual Special Taxes that may be levied on Taxable Property within Improvement Area B both prior to and after the proposed prepayment is at least 1.1 times the maximum annual debt service on all Outstanding Bonds. Tenders of Bonds in prepayment of Maximum Annual Special Taxes may be accepted upon the terms and conditions established by the Council pursuant to the Act. However, the use of Bond tenders shall only be allowed on a case-by-case basis as specifically approved by the Council. 2. Prepayment in Part The Maximum Annual Special Tax on an Assessor's Parcel of Developed Property or an Assessor's Parcel of Undeveloped Property for which a building permit has been issued City of Chula Vista Community Facilities District No. 06-1, Improvement Area B EastLake - Land Swap Pa~,e 12 may be partially prepaid. The amount of the prepayment shall be calculated as in Section H 1; except that a partial prepayment shall be calculated according to the following formula: PP - (PE x F) + A These terms have the following meaning: PP - the partial prepayment PE = the Prepayment Amount calculated according to Section H. 1, minus Prepayment Fees and Expenses determined pursuant to Step 10. F - the pement by which the owner of the Assessor's Parcel(s) is partially prepaying the Maximum Annual Special Tax. A- the Prepayment Fees and Expenses determined pursuant to Step 10. The owner of an Assessor's Parcel who desires to partially prepay the Maximum Annual Special Tax shall notify the CFD Administrator of (i) such owner's intent to partially prepay the Maximum Annual Special Tax, (ii) the percentage by which the Maximum Annual Special Tax shall be prepaid, and (iii) the company or agency that will be acting as the escrow agent, if applicable. The CFD Administrator shall provide the owner with a statement of the amount required for the partial prepayment of the Maximum Annual Special Tax for an Assessor's Parcel within 30 days of the request and may charge a reasonable fee for providing this service. With respect to any Assessor's Parcel that is partially prepaid, the City shall (i) distribute the funds remitted to it according to Step 16 of Section H.1, and (ii) indicate in the records of CFD-06-I, Improvement Area B that there has been a partial prepayment of the Maximum Annual Special Tax and that a portion of the Maximum Annual Special Tax equal to the outstanding percentage (1.00 - F) of the remaining Maximum Annual Special Tax shall continue to be authorized to be levied on such Assessor's Parcel pursuant to Section D. 1. TERM OF MAXIMUM ANNUAL SPECIAL TAX The Maximum Annual SpeciaI Tax shall be levied commencing in Fiscal Year 2003-2004 to the extent necessary to fully satisfy the Special Tax Requirement and shall be levied for a period no longer than the 2043-2044 Fiscal Year. City of Chula Vista Community Facilities District No. 06-I, Improvement Area B EastLake - Land Swap Pa~e 13 EXHIBIT C CITY OF CHULA VISTA COMMUNITY FACILITIES DISTRICT NO. 06-I IMPROVEMENT AREAS A AND B (EASTLAKE-WOODS, VISTAS AND LAND SWAP) ASSIGNED SPECIAL TAX RATES FOR DEVELOPED PROPERTY AND UNDEVELOPED PROPERTY Assigned Special Tax for Developed Property in Land Use Class 1 Community Facilities District No. 06-1 Residential Developed Parcels Maximum Annual Special Tax Land Use Class 1 - Improvement Area A $.58 per square foot of Residential Floor Zone 1 (Vistas) Area Land Use Class 1 - Improvement Area A $.67 per square foot of Residential Floor Zone 2(Woods) Area Land Use Class 1 - Improvement Area B $.74 per square foot of Residential Floor Zone 3(Land Swap) Area Assigned Special Tax for Developed Property in Land Use Class 2 Community Facilities District No. 06-I Commercial Developed Parcels Maximum Annual Special Tax Land Use Class 2 - Improvement Area A $6,000 per acre of Commercial Property Zone 1 (Vistas) Land Use Class 2 - Improvement Area A $6,000 per acre of Commercial Property Zone 2(Woods) Land Use Class 2 - Improvement Area B $6,000 per acre of Commercial Property Zone 4(Land Swap) Assigned Special Tax for Undeveloped Property in Land Use Class 3 Community Facilities District No. 06-1 Hotel Property Maximum Annual Special Tax Land Use Class 3 - Improvement Area A $6,000 per acre of Hotel Property Zone 1 (Vistas) Community Facilitiex District No. 06-I Page 14 EastLake - Woods, Vistas and Land Swap August 2002 Revised February 2003 RESOLUTION NO. 2003- RESOLUTION OF THE CITY COUNCIL OF THE CiTY OF CHULA VISTA, MAKING CERTAiN DETERMiNATIONS AND AUTHORIZiNG THE SUBMITTAL OF THE PROPOSED MODIFICATIONS OF THE RATE AND METHOD OF APPORTIONMENT FOR IMPROVEMENT AREA B OF COMMUNITY FACILITIES DISTRICT NO. 06-1 (EASTLAKE - WOODS, VISTAS AND LAND SWAP) TO THE QUALIFIED ELECTORS THEREOF WHEREAS, the City Council of the City of Chula Vista, (the "City Council") previously has previously undertaken proceedings to form Community Facilities District No 06-I (EastLake - Woods, Vistas and Land Swap) (the '~District"), to designate two improvement areas therein ("Improvement Area A" and "Improvement Area B") and to authorize the levy of special taxes within each Improvement Area pursuant to the provisions of the Mello-Roos Community Facilities Act of 1982, as amended (Government Code Section 53311 and following) (the "Act") and the City of Chula Vista Community Facilities District Ordinance enacted pursuant to the powers reserved by the City of Chula Vista under Sections 3, 5 and 7 of Article XI of the Constitution of the State of California (the "Ordinance") (the Act and the Ordinance may be referred to collectively as the "Community Facilities District Law") to finance the acquisition or construction of certain authorized facilities. WHEREAS, the qualified electors of each Improvement Area of the Disthct, voting in a special election held on October 22, 2002, approved the authorization to levy special taxes within each Improvement Area pursuant to a separate rate and method of apportionment of such special taxes for each Improvement Area (the rate and method of apportionment of special taxes approved for Improvement Area B shall be referred to as the "Existing Improvement Area B Rate and Method"); and WHEREAS, the qualified electors of each Improvement Area of the District, voting in a special election held on September 17, 2002, approved the authorization to levy special taxes within each Improvement Area pursuant to a separate rate and method of apportionment of such special taxes for each Improvement Area (the rate and method of apportionment of special taxes approved for Improvement Area B shall be referred to as the "Existing Improvement Area B Rate and Method"); and WHEREAS, subsequent to the formation of the District and such election, The EastLake Company, LLC ("EastLake"), the master developer of the property within the District, has notified the City of Chula Vista (the "City") that EastLake intends to prepay the special tax obligation for approximately 48 acres of commercial property located within Improvement Area B pursuant to the Existing Improvement Area B Rate and Method; and WHEREAS, the prepayment of the special tax obligation for such commercial property will 1 result in a decrease in the number of acres of Undeveloped Property (as such term is defined in the Existing Improvement Area B Rate and Method) that will be subject to taxation pursuant to the Existing Improvement Area B Rate and Method; and WHEREAS, as a result of the foregoing, EastLake has requested, and the City staff and City financing team for the District have concurred with such request, that the City Council, acting in its capacity as the legislative body of the District, initiate proceedings to consider modifying the Existing Improvement Area B Rate and Method to adjust for the prepayment of the special tax obligation for the commercial property; and WHEREAS, the City Council has adopted its Resolution No. 2003-109 declaring its intention to consider changes to the Existing Improvement Area B Rate and Method to authorize the levy of special taxes within Improvement Area B pursuant to the Revised Improvement Area B Rate and Method of apportionment of special taxes set forth in Exhibit A attached hereto and incorporated herein by this reference (the "Revised Improvement Area B Rate and Method"); WHEREAS, notice ora public heahng to consider the authorization to levy the special taxes pursuant to the Revised Improvement Area B Rate and Method has been given in the form and manner required by the Community Facilities District Law; and WHEREAS, it has now been determined that written protests have not been received by 50% or more of the registered voters residing within Improvement Area B of the District and/or property owners representing more than one-half(1/2) or more of the area of land within Improvement Area B of the District to the proposed changes to the Existing Improvement Area B Rate and Method; and, WHEREAS, inasmuch as there have been less than twelve (12) persons registered to vote within Improvement Area B for each of the 90 preceding days, this legislative body desires to submit the question of authorizing the changes to the Existing Improvement Area B Rate and Method to the landowners of Improvement Area B, said landowners being the qualified electors as authorized by law. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CHULA VISTA, CALiFORNIA, ACTING IN ITS CAPACITY AS THE LEGISLATIVE BODY OF COMMUNITY FACILITIES DISTRICT NO. 06-I (EASTLAKE - WOODS, VISTAS AND LAND SWAP), DOES HEREBY RESOLVE, DECLARE, FIND, DETERMINE AND ORDER AS FOLLOWS: SECTION 1. RECITALS. The above recitals are all true and correct. SECTION 2. DETERMINATIONS It is determined by this City Council that: A. all proceedings related to the proposed modification to the Existing Improvement Area B Rate and Method prior hereto were valid and taken in conformity with the requirements of law, and specifically the provisions of the Community Facilities District Law; B. the proposed changes to the Existing improvement Area B Rate and Method conform with the City of Chula Vista Statement of Goals and Policies Regarding the Establishment of Community Facilities Districts; C. less than twelve (12) registered voters have resided within Improvement Area B for each of the ninety (90) days preceding the close of the public hearing and, consequently, the qualified electors shall be the landowners of Improvement Area B and each landowner who is the owner of record as of the close of the public hearing, or the authorized representative thereof, shall have one vote for each acre or portion of an acre of land that she or he owns within Improvement Area B; D. the qualified electors have consented to the shortening of time for conducting the special election to present the question to authorize the levy of special taxes within Improvement Area B pursuant to the Revised Improvement Area B Rate and Method, therefore, such special election may be conducted less than 90 following the date of the public hearing to consider the changes to the Existing Improvement Area B Rate and Method. SECTION 3. PROPOSED CHANGES TO THE EXISTiNG IMPROVEMENT AREA B RATE AND METHOD. Except to the extent that funds are otherwise available to the District to pay for the public facilities previously authorized to be financed by the District, this City Council hereby approves, subject to the approval by the qualified electors of Lmprovement Area B, changes to the Existing Improvement Area B Rate and Method to authorize the levy of special taxes within improvement Area B pursuant to the Revised Improvement Area B Rate and Method. Such special taxes shall be secured by recordation of a continuing lien against all non-exempt real property within Improvement Area B, shall be levied annually within Improvement Area B, and shall be collected in the same manner as ordinary ad valorem property taxes, or in such other mariner at this Board or its designee shall determine, including direct billing of the affected property owners. The Revised Improvement Area B Rate and Method shall provide that under no circumstances will the special tax levied against any parcel used for private residential purposes be increased by more than 10% as a consequence of delinquency or default by the owner of any other parcel or parcels within Improvement Area B. A parcel shall be considered "used for private residential purposes" not later than the date on which an occupancy permit or the equivalent for private residential use is issued for such parcel. The Revised Improvement Area B Rate and Method shall set forth the conditions under which the special tax obligation for any parcel may be prepaid and permanently satisfied in whole or in part. SECTION 4. ELECTION The proposition to authorize the levy of special taxes within Improvement Area B pursuant to the Revised Improvement Area B Rate and Method shall be submitted to the qualified electors of Improvement Area B, said electors being the landowners, with each landowner having one (1) vote for each acre or portion thereof of land which he or she owns within said annexed territory. The special election shall be held on May 13, 2003 or such other date as the City Clerk, acting as the election official for such special election (the "Election Official"), and all of the qualified electors within Improvement Area B may agree and consent. If the proposition to authorize the levy of the special tax pursuant to the Revised Improvement Area B Rate and Method receives the approval of more than two-thirds (2/3) of the votes cast on the proposition, the special tax may be levied pursuant to the Revised Improvement Area B Rate and Method as provided for in this Resolution. SECTION 5. BALLOT The ballot proposal to be submitted to the qualified voters at the election shall generally be as follows: PROPOSITION A CITY OF CHULA VISTA COMMUNITY FACILITIES DISTRICT NO. 06-I (EASTLAKE - WOODS, VISTAS AND LAND SWAP) IMPROVEMENT AREA B Shall City of Chula Vista Community Facilities District No. 06-I (Eastlake - Woods, Vistas and Land Swap), subject to accountability measures set forth in the resolution forming and establishing such community facilities district (the "Resolution of Formation"), be authorized to levy a special tax pursuant to the revised rate and method of apportionment as set forth Resolution No. for the purposes of paying debt service on bonds of such district issued for Improvement Area B, replenishing the reserve fund for such bonds, paying costs of administering such indebtedness and such district and paying directly for the types of facilities described in the Resolution of Formation? SECTION 6. VOTE The appropriate mark placed on the line before the word "YES" shall be counted in favor of the adoption of the proposition, and the appropriate mark placed on the line before the word "NO' in the manner as authorized, shall be counted against the adoption of said proposition. SECTION 7. ELECTION PROCEDURE The Election Official is hereby authorized to take any and all steps necessary for the holding of said election. Said Election Official shall perform and render all services and proceedings incidental to and connected with the conduct of said election, and said services shall include, but not be limited to the following: 4 A. Prepare and furnish to the election officers necessary election supplies for the conduct of the election. B. Cause to be printed the requisite number of official ballots, tally sheets and other necessary forms. C. Furnish and address official ballots for the qualified electors of Improvement Area B. D. Cause the official ballots to be mailed and/or delivered, as required by law. E. Receive the returns of the election. F. Sort and assemble the election material and supplies in preparation for the canvassing of the returns. G. Canvass the returns of the election. H. Furnish a tabulation of the number of votes given in the election. I. Make all arrangements and take the necessary steps to pay all costs of the election incurred as a result of services performed for the District and pay costs and expenses of all election officials. J. Conduct and handle all other matters relating to the proceedings and conduct of the election in the manner and form as required by law. PREPARED BY: APPROVED AS TO FORM BY: Clifford Swanson Ann Moore Director of Engineering City Attorney J:Artorney\Reso\ CFD\ CFD No 061 IA B 5 EXHIBIT A REVISED RATE AND METHOD OF APPORTIONMENT COMMUNITY FACILITIES DISTRICT 06-1 (EASTLAKE - WOODS, VISTAS AND LAND SWAP) IMPROVEMENT AREA B [Attach a copy of the revised Rate and Method] A-! EXHIBIT A AMENDED RATE AND METHOD OF APPORTIONMENT FOR CITY OF CHULA VISTA COMMUNITY FACILITIES DISTRICT NO. 06-1 IMPROVEMENT AREA B (EastLake - "Land Swap") A Special Tax as hereinafter defined shall be levied on each Assessor's Parcel of Taxable Property within the City of Chula Vista Community Facilities District No. 06-1, Improvement Area B ("Improvement Area B") and collected each Fiscal Year commencing in Fiscal Year 2003-2004 in an amount determined by the City Council through the application of the appropriate Special Tax for "Developed Property," and "Undeveloped Property" as described below. All of the Taxable Property in improvement Area B, unless exempted by law or by the provisions hereof, shall be taxed for the purposes, to the extent and in the manner herein provided. A. DEFINITIONS The terms hereinafter set forth have the following meaning: "Acre or Acreage" means the land area of an Assessor's Parcel as shown on an Assessor's Parcel Map, or if the land area is not shown on an Assessor's Parcel Map, the land area shown on the applicable Final Subdivision Map, parcel map, condominium plan, record of survey, or other recorded document creating or describing the parcel. If the preceding maps for a land area are not available, the Acreage of such land area shall be determined by the City Engineer. "Act" means the Mello-Roos Community Facilities Act of 1982, as amended, being Chapter 2.5, Division 2 of Title 5 of the Government Code of the State of California. "Administrative Expenses" means the actual or reasonably estimated costs directly related to the administration of Improvement Area B including, but not limited to, the following: the costs of computing the Special Taxes and preparing the annual Special Tax collection schedules (whether by the City or designee thereof or both); the costs of collecting the Special Taxes (whether by the County, the City, or otherwise); the costs of remitting the Special Taxes to the Trustee; the costs of the Trustee (including its legal counsel) in the discharge of the duties required of it under the Indenture; the costs to the City, CFD-06-i or any designee thereof of complying with arbitrage rebate requirements; the costs to the City, CFD-06-I or any designee thereof of providing continuing disclosure; the costs associated with preparing Special Tax disclosure statements and responding to public inquiries regarding the Special Taxes; the costs of the City, CFD-06-I or any designee thereof related to any appeal of the levy or application of the Special Tax; and the costs associated with the release of funds from an escrow account, if any. Administrative Expenses shall also include amounts estimated or advanced by the City or CFD-06-I for any other administrative purposes of Improvement Area B, including, but not limited to Ci(~ oj Chula Vista Community Facilitiex Di3trict No. 06-[, ]mprovement Area B EastLake - Land Swap Page 1 /ff' attorney's fees and other costs related to commencing and pursuing to completion any foreclosure of delinquent Special Taxes. "Assessor's Parcel" means a lot or parcel shown in an Assessor's Parcel Map with an assigned Assessor's Parcel number. "Assessor's Parcel Map" means an official map of the County Assessor of the County designating parcels by Assessor's Parcel number. "Assigned Special Tax" means the Special Tax for each Land Use Category of Developed Property as determined in accordance with Section C. 1 .a. "Available Funds" means the balance in the reserve fund established pursuant to the terms of the Indenture in excess of the reserve requirement as defined in such Indenture, delinquent Special Tax payments not required to fund the Special Tax Requirement for any preceding Fiscal Year, Special Tax prepayments collected to pay interest on Bonds, and other sources of funds available as a credit to the Special Tax Requirement as specified in such Indenture. "Backup Special Tax" means the Backup Special Tax amount set forth in Section C.1 .b. "Bonds" means any bonds or other debt (as defined in the Act), whether in one or mom series, issued by CFD-06-I for improvement Area B under the Act. "Bond Year" means a one-year period beginning on September 2nd in each year and ending on September 1st in the following year. Unless defined differently in the applicable Indenture. "CFD Administrator" means an official of the City, or designee thereof, responsible for determining the Special Tax Requirement and providing for the levy and collection of the Special Taxes. "CFD-06-I means City of Chula Vista, Community Facilities District No. 06-1. "City" means the City of Chula Vista. "Commercial Property" means all Assessors' Parcels of Developed Property, for which a building permit(s) was issued for a non-residential use, excluding Community Purpose Facility Property. "Community Purpose Facility Property" means all Assessors' Parcels which are classified as community purpose facilities and meet the requirements of City of Chula Vista Ordinance No. 2452. "Council" means the City Council of the City, acting as the legislative body of CFD-06-I. CiO, oj~Chula Vista Community Facilities Dixtrict No. 06-1, Improvement Area B EastLake - Land Swap Page 2 "County" means the County of San Diego. "Developed Property" means, for each Fiscal Year, all Taxable Property for which a building permit for new construction was issued prior to Mamh 1 of the prior Fiscal Year. "Exempt Property" means property not subject to the Special Tax due to its classification as either Public Property, Property Owner Association Property Community Purpose Facility Property. "Final Subdivision Map" means a subdivision of property, created by recordation of a Final Subdivision Map, parcel map or lot line adjustment, approved by the City pursuant to the Subdivision Map Act (California Government Code Section 66410 et seq.) or recordation of a condominium plan pursuant to California Civil Code 1352, that creates individual lots for which residential building permits may be issued without further subdivision of such property. "Fiscal Year" means the period starting July 1 and ending on the following June 30. "Improvement Area B" means Improvement Area B of CFD No. 06-1 known as the "Land Swap". "Indenture" means the indenture, fiscal agent agreement, trust agreement, resolution or other instrument pursuant to which Bonds are issued, as modified, amended and/or supplemented from time to time, and any instrument replacing or supplementing the same. "Land Use Class" means any of the classes listed in Table 1 of Section C. "Lot(s)" means an individual legal lot created by a Final Subdivision Map for which a building permit for residential construction has been or could be issued. "Master Developer" means the owner of the predominant amount of Undeveloped Property in Improvement Area B. "Maximum Annual Special Tax" means the maximum annual Special Tax, determined in accordance with the provisions of Section C, which may be levied in any Fiscal Year on any Assessor's Parcel of Taxable Property. "Outstanding Bonds" mean all Bonds, which remain outstanding as defined in the Indenture. "Property Owner Association Property" means any property within the boundaries of Improvement Area B owned by or dedicated to a property owner association, including any master or sub-association. "Proportionately" means for Developed Property that the ratio of the actual Special Tax levy to the Assigned Special Tax or the Backup Special Tax is equal for all Assessors' City qf'Chula ViMa Com~nunity Facilities District No. 06-L hnprovement Area B EastLake - Land Swal; Pa,~e 3 Parcels of Developed Property within Improvement Area B. For Undeveloped Property "Proportionately" means that the ratio of the actual Special Tax levy per Acre to the Maximum Annual Special Tax per Acre is equal for all Assessor's Parcels of Undeveloped Property within Improvement Area B. "Public Property" means any property within the boundaries of Improvement Area B that is owned by or dedicated to the federal government, the State of California, the County, the City or any other public agency. "Residential Property" means all Assessors' Parcels of Developed Property for which a building permit has been issued for purposes of constructing one or more residential dwelling units. "Residential Floor Area" means all of the square footage of living area within the perimeter of a residential structure, not including any carport, walkway, garage, overhang, patio, enclosed patio, or similar area. The determination of Residential Floor Area shall be made by the CFD Administrator by reference to appropriate records kept by the City's Building Department. Residential Floor Area for a residential structure will be based on the building permit(s) issued for such structure. "Special Tax" means the annual special tax to be levied in each Fiscal Year on each Assessor's Parcel of Taxable Property to fund the Special Tax Requirement. "Special Tax Requirement" means that amount of Special Tax revenue required in any Fiscal Year for Improvement Area B to: (i) pay aimual debt service on all Outstanding Bonds (as defined in Section A) due in the Bond Year beginning in such Fiscal Year; (ii) pay other periodic costs on Outstanding Bonds, including but not limited to, credit enhancement and rebate payments on Outstanding Bonds; (iii) pay Administrative Expenses; (iv) pay any amounts required to establish or replenish any reserve funds for all Outstanding Bonds in accordance with the Indenture; and (v) pay directly for acquisition and/or construction of public improvements which are authorized to be financed by CFD- 06-1 provided that the inclusion of such amount does not cause an increase in the levy of Special Tax on the Undeveloped Property for Improvement Area B; less (vi) a credit for Available Funds. "State" means the State of California. "Taxable Property" means all of the Assessor's Parcels within the boundaries of CFD-06-I, Improvement Area B that are not exempt from the Special Tax pursuant to law or Section E below. "Trustee" means the trustee, fiscal agent, or paying agent under the Indenture. "Undeveloped Property" means, for each Fiscal year, all Taxable Property not classified as Developed Property. c/0, of Chula Vista Community Facilitie* District No. 06-1, Improvement Area B EastLake - Land Swap Page 4 "Zone 3" means a specific geographic area as depicted in Exhibit A attached hereto. "Zone 4" means a specific geographic area as depicted in Exhibit A attached hereto. B. ASSIGNMENT TO LAND USE CATEGORIES Each Fiscal Year, all Assessor's Parcels of Taxable Property within, Improvement Area B shall be (a) categorized as being located in either Zone 3 or Zone 4, (b) classified as Developed Property or Undeveloped Property and (c) shall be subject to the levy of annual Special Taxes determined pursuant to Sections C and D below. Furthermore, all Developed Property shall then be classified as Residential or Commercial Property. C. MAXIMUM ANNUAL SPECIAL TAX RATE 1. Developed Property The Maximum Annual Special Tax for each Assessor's Parcel of Residential Property or Commercial Property shall be the greater of (1) the Assigned Special Tax described in Table 1 below or (2) the Backup Special Tax computed pursuant to b. below. a. Assi~ned S~ecial Tax The Assigned Special Tax for each Assessor's Parcel of Developed Property is shown in Table 1. TABLE 1 Assigned Special Tax for Developed Property within Zone 3 and Zone 4 Land Use Class Description Assigned Special Tax 1 Residential Property $0.74 per square foot of Residential Floor Area 2 Commercial Property $6,000 per Acre b. Backup Special Tax When a Final Subdivision Map is recorded within Zone 3 or Zone 4, the Backup Special Tax for Assessor's Parcels of Developed Property classified as Residential Property or Commercial Property shall be determined as follows: City of Chula l/ista Community Facilities District Na. 06-I, lrnprovement Area B EastLake - Land Swap Page 5 For each Assessor's Parcel of Residential Property or for each Assessor's Parcel of Undeveloped Property to be classified as Residential Property upon its development within the Final Subdivision Map area, the Backup Special Tax shall be the rate per Lot calculated according to the following formula: Zone 3 $20,563 x A L Zone 4 $6,667 x A L The terms above have the following meanings: B = Backup Special Tax per Lot in each Fiscal Year. A- Acreage classified or to be classified as Residential Property in such Final Subdivision Map. L - Lots in the Final Subdivision Map which are classified or to be classified as Residential Property. For each Assessor's Parcel of Commercial Property or for each Assessor's Parcel of Undeveloped Property to be classified as Commercial Property within the Final Subdivision Map area, the Backup Special Tax shall be determined by multiplying $20,563 for Zone 3 and $6,667 for Zone 4 by the total Acreage of each Assessor's Parcels of the Commercial Property and Undeveloped Property to be classified as Commercial Property within the Final Subdivision Map area. Notwithstanding the foregoing, if Assessor's Parcels of Residential Property, Commercial Property or Undeveloped Property for which the Backup Special Tax has been determined are subsequently changed or modified by recordation of a new or amended Final Subdivision Map, then the Backup Special Tax applicable to such Assessor's Parcels shall be recalculated to equal the amount of Backup Special Tax that would have been generated if such change did not take place. Ci(y (~f Chula Vista Community Facilities District No. 06-/, Improvement Area B EastLake - Land Swap Page 6 2. Undeveloped Property The Maximum Annual Special Tax for each Assessor's Parcel classified, as Undeveloped Property shall be $20,563 per Acre for Zone 3 and $6,667 per Acre for Zone 4. D. METHOD OF APPORTIONMENT OF THE SPECIAL TAX Commencing with Fiscal Year 2003-04 and for each following Fiscal Year, the Council shall determine the Special Tax Requirement and shall levy the Special Tax until the amount of Special Taxes equals the Special Tax Requirement. The Special Tax shall be levied each Fiscal Year as follows: First: The Special Tax shall be levied Proportionately on each Assessor's Parcel of Developed Property within Zone 3 and Zone 4 at a rate up to 100% of the applicable Assigned Special Tax to satisfy the Special Tax Requirement. Second: If additional monies are needed to satisfy the Special Tax Requirement after the first step has been completed, the Special Tax shall be levied Proportionately on each Assessor's Parcel of Undeveloped Property within Zone 3 and Zone 4, excluding any Assessor's Parcels classified as Undeveloped Property pursuant to Section E, at a rate up to 100% of the Maximum Annual Special Tax for Undeveloped Property. Third: If additional monies are needed to satisfy the Special Tax Requirement after the first two steps have been completed, the Special Tax to be levied on each Assessor's Parcel of Developed Property whose Maximum Annual Special Tax is derived by the application of the Backup Special Tax shall be increased Proportionately from the Assigned Special Tax up to the Maximum Annual Special Tax for each such Assessor's Parcel. Fourth: If additional monies are needed to satisfy the Special Tax Requirement after the first three steps have been completed, then the Special Tax shall be levied Proportionately on each Assessor's Parcel classified as Undeveloped Property pursuant to Section E at a rate up to 100% of the Maximum Annual Special Tax for Undeveloped Property. Notwithstanding the above, under no circumstances will the Special Tax levied against any Assessor's Parcel of Residential Property be increased by more than ten percent per year as a consequence of delinquency or default in the payment of Special Taxes by the owner of any other Assessor's Parcel. City q[' Chu& Vista Community £acilities District No. 06-1, Improvement Area B EastLake - Land Swap Page 7 E. EXEMPTIONS 1. The CFD Administrator shall classify the following Assessor Parcel(s) as exempt property: (i) Public Property, (ii) Property Owner Association Property, (iii) Community Purpose Facility Property, and (iv) Assessor's Parcels with public or utility easements making impractical their utilization for other than the purposes set forth in the easement; provided, however, that no such classification shall reduce the sum of all Taxable Property to less than 36.50 Acres in Zone 3 and 52.00 Acres in Zone 4. Assessor's Parcels which cannot be classified as exempt property because such classification would reduce the Acreage of all Taxable Property to less than 36.50 Acres in Zone 3 and 52.00 Acres in Zone 4 will be classified as Undeveloped Property and shall be taxed as such. Tax-exempt status for purposes of this paragraph will be assigned by the CFD Administrator in the chronological order in which property becomes exempt property. 3. The Maximum Annual Special Tax obligation for any property which would be classified as Public Property upon its transfer or dedication to a public agency but which cannot be classified as exempt property as described in paragraph 1 of Section F shall be prepaid in full by the seller pursuant to Section 1.1, prior to the transfer/dedication of such property to such public agency. Until the Maximum Annual Tax obligation for any such Public Property is prepaid, the property shall continue to be subject to the levy of the Special Tax as Undeveloped Property. F. REVIEW/APPEAL COMMITTEE Any landowner or resident who feels that the amount of the Special Tax levied on their Assessor's Parcel is in error shall first consult with the CFD Administrator regarding such error. If following such consultation, the CFD Administrator determines that an error has occurred; the CFD Administrator may amend the amount of the Special Tax levied on such Assessor's Parcel. if following such consultation and action (if any by the CFD Administrator), the landowner or resident believes such error still exists, such person may file a written notice with the City Clerk of the City appealing the amount of the Special Tax levied on such Assessor's Parcel. Upon the receipt of any such notice, the City Clerk shall forward a copy of such notice to the City Manager who shall establish as part of the proceedings and administration of CFD-06-I and a special three-member Review/Appeal Committee. The Review/Appeal Committee may establish such procedures, as it deems necessary to undertake the review of any such appeal. The Review/Appeal Committee shall interpret this Rate and Method of Apportionment and make determinations relative to the annual administration of the Special Tax and any landowner or resident appeals, as herein specified. The decision of the Review/Appeal Committee shall be final and binding as to all persons. Ci0' of Chu]a Vista Community Facilities District No. 06-1, bnprovement Area B EastLake - Land Swap Page 8 G. MANNEROF COLLECTION The annual Special Tax shall be collected in the same manner and at the same time as ordinary ad valorem property taxes; provided, however, that CFD-06-I, Improvement Area B may directly bill the Special Tax, may collect Special Taxes at a different time or in a different manner if necessary to meet its financial obligations, and may covenant to foreclose and may actually foreclose on Assessor's Parcels of Taxable Property that are delinquent in the payment of Special Taxes. Tenders of Bonds may be accepted for payment of Special Taxes upon the terms and conditions established by the Council pursuant to the Act. However, the use of Bond tenders shall only be allowed on a case-by-case basis as specifically approved by the Council. H. PREPAYMENT OF SPECIAL TAX The following definition applies to this Section H: "CFD Public Facilities" means those public facilities authorized to be financed by CFD- 06-I Improvement Area B. "CFD Public Facilities Costs" means either $12.3 million, or such lower number as shall be determined either by (a) the CFD Administrator as sufficient to finance the CFD Public Facilities, or (b) the Council concurrently with a covenant that it will not issue any more Bonds to be secured by Special Taxes levied under this Rate and Method of Apportionment. "Construction Fund" means an account specifically identified in the Indenture to hold funds which are currently available for expenditure to acquire or construct the CFD Public Facilities. "Future Facilities Costs" means the CFD Public Facilities Costs minus that (a) portion of the CFD Public Facilities Costs previously funded (i) from the proceeds of all previously issued Bonds, (ii) from interest earnings on the Construction Fund actually earned prior to the date of prepayment and (iii) directly from Special Tax revenues and (b) the amount of the proceeds of all previously issued Bonds then on deposit in the Construction Fund. "Outstanding Bonds" means all previously issued Bonds which will remain outstanding after the first interest and/or principal payment date following the current Fiscal Year, excluding Bonds to be redeemed at a later date with the proceeds of prior prepayments of Maximum Annual Special Taxes. ('it)' of Chula Vista Community Facilities District No. 06-1, Improvement Area B EastLake - Land Swap Pa~e 9 1. Prepayment in Full The Maximum Annual Special Tax obligation may only bc prepaid and permanently satisfied for an Assessor's Parcel of Developed Property, Undeveloped Property for which a building permit has been issued, or Public Property. Thc Maximum Annual Special Tax obligation applicable to such Assessor's Parcel may be fully prepaid and thc obligation of thc Assessor's Parcel to pay the Special Tax permanently satisfied as described herein; provided, however that a prepayment may be made only if there are no delinquent Special Taxes with respect to such Assessor's Parcel at thc time of prepayment. An owner of an Assessor's Parcel intending to prepay thc Maximum Annual Special Tax obligation shall provide thc CFD Administrator with written notice of intent to prepay. Within 30 days of receipt of such written notice, the CFD Administrator shall notify such owner of the Prepayment amount of such Assessor's Parcel. The CFD Administrator may charge a reasonable fee for providing this figure. The Prepayment Amount (defined below) shall be calculated as summarized below (capitalized terms as defined below): Bond Redemption Amount plus Redemption Premium plus Future Facilities Amount plus Defeasance Amount plus Prepayment Fees and Expenses less Reserve Fund Credit less Capitalized Interest Credit Total: equals Prepayment Amount As of the proposed date of prepayment, the Prepayment Amount (defined below) shall be calculated as follows: Step No.: 1. For Assessor's Parcels of Developed Property, compute the Maximum Annual Special Tax for the Assessor's Parcel to be prepaid. For Assessor's Parcels of Undeveloped Property for which a building permit has been issued to be prepaid, compute the Maximum Annual Special Tax for that Assessor's Parcel as though it was already designated as Developed Property, based upon the building permit issued for that Assessor's Parcel. For Assessor's Parcels of Public Property to be prepaid, compute the Maximum Annual Special Tax for that Assessor's Parcel using the Maximum Annual Special Tax for Undeveloped Property. 2. Divide the Maximum Annual Special Tax computed pursuant to paragraph 1 by the sum of the total expected Maximum Annual Special Tax revenues which may be levied within Improvement Area B excluding any Assessors Parcels for which the Maximum Annual Special Tax obligation has been previously prepaid. C/0, of Chula Vista Community Facilities District No. 06-1, Improvement Area B EastLake - Land Swap Page 10 3. Multiply the quotient computed pursuant to paragraph 2 by the principal amount of the Outstanding Bonds to compute the amount of Outstanding Bonds to be retired and prepaid (the "Bond Redemption Amount"). 4. Multiply the Bond Redemption Amount computed pursuant to paragraph 3 by the applicable redemption premium on the next possible Bond call date, if any, on the Outstanding Bonds to be redeemed (the "Redemption Premium"). 5. If all the Bonds authorized to be issued for Improvement Area B have not been issued, compute the Future Facilities Costs. 6. Multiply the quotient computed pursuant to paragraph 2 by the amount determined pursuant to paragraph 5 to compute the amount of Future Facilities Costs to be allocated to such Assessor's Parcel (the "Future Facilities Amount"). 7. Compute the amount needed to pay interest on the Bond Redemption Amount from the first bond interest and/or principal payment date following the current Fiscal Year until the earliest redemption date for the Outstanding Bonds. 8. Confirm that no Special Tax delinquencies apply to such Assessor's Parcel. 9. Determine the Special Taxes levied on the Assessor's Parcel in the current Fiscal Year, which have not yet been paid. 10. Determine the fees and expenses of CFD-06-1, including but not limited to, the costs of computation of the prepayment, the costs to invest the prepayment proceeds, the costs of redeeming Bonds from the proceeds of such prepayment, and the cost of recording any notices to evidence the prepayment and the redemption (the "Prepayment Fees and Expenses"). 11. Compute the amount the CFD Administrator reasonably expects to derive from the reinvestment of the prepayment amount less the Prepayment Fees and Expenses, as determined pursuant to step 10, from the date of prepayment until the redemption date for the outstanding bonds to be redeemed with the prepayment. 12. Add the amounts computed pursuant to paragraphs 7 and 9 and subtract the amount computed pursuant to paragraph 11 (the "Defeasance Amount"). l 3. The reserve fund credit (the "Reserve Fund Credit") shall equal the lesser off (a) the expected reduction in the reserve requirement (as defined in the Indenture), if any, associated with the redemption of Outstanding Bonds as a result of the prepayment, or (b) the amount derived by subtracting the new reserve requirement (as defined in the Indenture) in effect after the redemption of Outstanding Bonds as a result of the prepayment from the balance in the reserve fund on the prepayment date, but in no event shall such amount be less than zero. Ci(v qf Chula Vista Community Facilities District No. 06-1, Improvement Area B Ea3'tLake Land Swap Page 11 14. If any capitalized interest for the Outstanding Bonds will not have been expended at the time of the first interest payment following the current Fiscal Year, a capitalized interest credit shall be calculated by multiplying the quotient computed pursuant to paragraph 2 by the expected balance in the capitalized interest fund after such first interest payment (the "Capitalized Interest Credit"). 15. The Maximum AnnuaI Special Tax prepayment is equal to the sum of the amounts computed pursuant to paragraphs 3, 4, 6, 10, and 12, less the amounts computed pursuant to paragraphs 13 and l 4 (the "Prepayment Amount"). 16. From the Prepayment Amount, the an~ounts computed pursuant to paragraphs 3, 4, 12, 13, and 14 shall be deposited into the appropriate fund as established under the Indenture and be used to retire Outstanding Bonds or make debt service payments. The amount computed pursuant to paragraph 10 shall be retained by CFD-06-I. The amount computed pursuant to paragraph 6 shall be deposited in the Construction Fund. The Prepayment Amount may be sufficient to redeem other than a $5,000 increment of Bonds. In such cases, the increment above $5,000 or integral multiple thereof will be retained in the appropriate fund established under the Indenture to be used with the next prepayment of bonds or to make debt service payments. As a result of the payment of the current Fiscal Year's Special Tax levy as determined under paragraph 9 above, the CFD Administrator shall remove the current Fiscal Year's Special Tax levy for such Assessor's Parcel from the County tax rolls. With respect to any Assessor's Parcel that is prepaid, the Council shall cause a suitable notice to be recorded in compliance with the Act, to indicate the prepayment of Special Taxes and the release of the Special Tax lien on such Assessor's Parcel, and the obligation of such Assessor's Parcel to pay the Special Tax shall cease. Notwithstanding the foregoing, no Special Tax prepayment shall be allowed unless the amount of Maximum Annual Special Taxes that may be levied on Taxable Property within Improvement Area B both prior to and after the proposed prepayment is at least 1.1 times the maximum annual debt service on all Outstanding Bonds. Tenders of Bonds in prepayment of Maximum Annual Special Taxes may be accepted upon the terms and conditions established by the Council pursuant to the Act. However, the use of Bond tenders shall only be allowed on a case-by-case basis as specifically approved by the Council. 2. Prepayment in Part The Maximum Annual Special Tax on an Assessor's Parcel of Developed Property or an Assessor's Parcel of Undeveloped Property for which a building permit has been issued ('it), oJ' Chula Vista Community Facilities District No. 06-1, Improvement Area B EastLake - Land Swap Pa,ge 12 may be partially prepaid. The amount of the prepayment shall be calculated as in Section H 1; except that a partial prepayment shall be calculated according to the following formula: PP- (PE x F) + A These terms have the following meaning: PP - the partial prepayment PE = the Prepayment Amount calculated according to Section H. 1, minus Prepayment Fees and Expenses determined pursuant to Step 10. F = the percent by which the owner of the Assessor's Parcel(s) is partially prepaying the Maximum Annual Special Tax. A= the Prepayment Fees and Expenses determined pursuant to Step 10. The owner of an Assessor's Parcel who desires to partially prepay the Maximum Annual Special Tax shall notify the CFD Administrator of (i) such owner's intent to partially prepay the Maximum Annual Special Tax, (ii) the pementage by which the Maximum Annual Special Tax shall be prepaid, and (iii) the company or agency that will be acting as the escrow agent, if applicable. The CFD Administrator shall provide the owner with a statement of the amount required for the partial prepayment of the Maximum Annual Special Tax for an Assessor's Parcel within 30 days of the request and may charge a reasonable fee for providing this service. With respect to any Assessor's Parcel that is partially prepaid, the City shall (i) distribute the funds remitted to it according to Step 16 of Section H.1, and (ii) indicate in the records of CFD-06-I, Improvement Area B that there has been a partial prepayment of the Maximum Annual Special Tax and that a portion of the Maximum Annual Special Tax equal to the outstanding percentage (1.00 - F) of the remaining Maximum Annual Special Tax shall continue to be authorized to be levied on such Assessor's Parcel pursuant to Section D. I. TERM OF MAXIMUM ANNUAL SPECIAL TAX The Maximum Annual Special Tax shall be levied commencing in Fiscal Year 2003-2004 to the extent necessary to fully satisfy the Special Tax Requirement and shall be levied for a period no longer than the 2043-2044 Fiscal Year. Ci(v of Chula Vista Community Facilities District No. 06-], hnprovement Area B EastLake - Land Swap Page 13 RESOLUTION NO. 2003- RESOLUTION OF TIlE CITY COIfNCIL OF THE CITY OF CHULA VISTA, MAKING CERTAIN DETERMINATIONS AND AUTHORIZING THE SUBMITTAl, OF THE PROPOSED CttANGES TO THE RATE AND METHOD OF APPOR'FIONMENT OF SPECIAL TAXES AUTHORIZED TO BE LEVIED WITHIN IMPROVEMENT AREA B OF COMMUNITY FACILITIES DISTRICT NO. 06-I (EASTLAKE - WOODS. VISTAS AND LAND SWAP) TO THE QUALIFIED ELECTORS THEREOF WHEREAS, the City Council of the City of Chula Vista, (the '~City Council") previously has previously undertaken proceedings to lbrm Community Facilities District No 06-1 (EastLake - Woods, Vistas and Land Swap) (the "District"), to designate two improvement areas therein ("Improvement Area A" and "Improvement Area B") and to authorize the levy of special taxes within each Improvement Area pursuant to the provisions of the Mello-Roos Community Facilities Act of 1982, as mnended (Government Code Section 53311 and folloxving) (the "Act") and the City of Chula Vista Community Facilities District Ordinance enacted pursum~t to the poxvers reserved by the City of Chula Vista under Sections 3, 5 and 7 of Article X1 o1' the Constitution of the State of California (the ~Ordinancc") (the Act and the Ordinance may be referred to collectively as the "Community Facilities District Law") to finance the acquisition or construction of certain authorized facilities. WHEREAS, the qualified electors ot' each improvement Area of the District, voting in a special election held on October 22, 2002~ approved the authorization to levy special taxes within each Improvement Area pursuant to a separate rate and method of apportiomnent of such special taxes for each hnprovement Area (the rate and method of apportionment ot'special taxes approved 1'or Improvement Area B shall be referred to as the "Existing lmprove~rrcnt Area B Rate and Method"); and WHEREAS, the qualified electors of each Improvement Area of the District, voting in a special election held on September 17, 2002. approved the authorization to levy special taxes within each Improvement Area pursuant to a separate rate and method ol' apportionment of such special taxes for each Improvement Area (the rate and method of apportionment of special taxes approved for Improvement Area B shall be referred to as the "Existing lmprovenrent Area B Rate and Method"); and WHEREAS, subsequent to the formation of the District and such election, The EastLake Company, LLC ('~l~astLake"). the master developer of the property within the District, has notified the City of Chula Vista (the "City") that EastLake intends to prepay the special tax obligation for approximately 48 acres of comnrercial property located within hrrprovement Area B pursuant to the Existing Improvement Area B Rate and Method; and WHEREAS, the prepayment of the special tax obligation tbr such commercial property will result in a decrease in the number of acres of Undeveloped Property (as such term is defined in the Existing Improvement Area B Rate and Method) that will be subject to taxation pursuant to the Existing Improvement Area B Rate and Method; and WHEREAS, as a result of the lbregoing, EastLake has requested, and the City staffand City financing teton for the District have concurred with such request, that the City Council, acting in its capacity as the legislative body of the District, initiate proceedings to consider modifying the Existing Improvement Area B Rate and Method to adjust for the prepayment of the special tax obligation for the commercial property: and WHEREAS, the City Council has adopted its Resolution No. 2003-109 declaring its intention to consider changes to the Existing hnprovement Area B Rate and Method to authorize the levy of special taxes within Improvement Area B pursuant to the Revised Improvement Area B Rate and Method of apportionment of special taxes set forth in Exhibit A attached hereto and incorporated herein by this reference (the ~'Revised Improvement Area B Rate and Method"); WHEREAS, notice of a public hearing to consider the attthorization to levy the special taxes pursuant to the Revised Improvement Area B Rate and Method has been given in the form and manner required by the Community Facilities District Law; and WHEREAS, it has now been determined that written protests have not been received by 50% or more of the registered voters residing within Improvement Area B of the District and/or property owners representing more than one-half(1/2) or more of the area of land xvithin Improvement Area B of the District to the proposed changes to the Existing Improvement Area B Rate and Method; and, WHEREAS, inasmuch as there have been less than twelve (12) persons registered to vote within Improvement Area B tbr each of the 90 preceding days, this legislative body desires to snbmit the question of anthorizing the changes to the Existing Improvement Area B Rate and Method to the landowners of Improvement Area B, said landowners being the qualified electors as authorized by law. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CHULA VISTA, CALIFORNIA, ACTING IN ITS CAPACITY AS THE LEGISLATIVE BODY OF COMMUNITY FACILITIES DISTRICT NO. 06-I (EASTLAKE - WOODS, VISTAS AND LAND SWAP), DOES HEREBY RESOLVE~ DECLARE, FIND, DETERMINE AND ORDER AS FOLLOWS: SECTION 1. RECITALS. The above recitals are all true and correct. SECTION 2. DETERMINATIONS It is determined by this City Council that: A. all proceedings related to the proposed modification to the Existing Improvement Area B Rate and Method prior hereto were valid and taken in conformity with the requirements of law, and specifically the provisions of the Community Facilities District Law'; B. the proposed changes to the Existing Improvement Area B Rate and Method conform xvith the City of Chula Vista Statement of Goals and Policies Regarding the Establishment of Community Facilities Districts; C. less than twelve (12) registered voters have resided within hnprovement Area B for each of the ninety (90) days preceding the close of the public hearing and, consequently, the qualified electors shall be the landowners of Improvement Area B and each landowner who is the owner of record as of the close of the public hearing, or the authorized representative thereof, shall have one vote for each acre or portion of an acre of land that she or he oxvns within Improvement Area B; D. the qualified electors have consented to the shortening of time for conducting the special election to present the question to authorize the levy of special taxes within Improvement Area B pursuant to the Revised hnprovement Area B Rate and Method, therefore, such special election may be conducted less than 90 following the date of the public hearing to consider the changes to the Existing Ilnprovement Area B Rate and Method. SECTION 3. PROPOSED CHANGES TO THE EXISTING IMPROVEMENT AREA B RATE AND METHOD. Except to the extent that funds are otherwise available to the District to pay fbr the public facilities previonsly authorized to be financed by the District, this City Council hereby approves, subject to the approval by the qualified electors of Improvement Area B, changes to the Existing Improvement Area B Rate and Method to authorize the levy of special taxes within Improvement Area B pursuant to the Revised hnprovement Area B Rate and Method. Such special taxes shall be secured by recordation of a continuing lien against all non-exempt real property within Improvement Area B, shall be levied annually within Improvement Area B, and shall be collected in the same manner as ordinary ad valorem property taxes, or in such other manner at this Board or its designee shall determine, including direct billing of the affected property owners. The Revised hnprovement Area B Rate and Method shall provide that under no circumstances will the special tax levied against any parcel used for private residential purposes be increased by more than 10% as a consequence of delinquency or default by the owner of any other parcel or parcels within Improvement Area B. A parcel shall be considered '~used for private residential purposes" not later than the date on xvhich an occupancy permit or the equivalent for private residential use is issued fbr such parcel. The Revised hnprovement Area B Rate and Method shall set forth the conditions under which the special tax obligation for any parcel may be prepaid and permanently satisfied in xvhole or in part. SECTION 4. ELECTION The proposition to authorize the levy of special taxes within hnprovement Area B pursuant to the Revised Improvement Area B Rate and Method shall be submitted to the qualified electors of Improvement Area B, said electors being the landowners, with each landowner having one (1) vote for each acre or portion thereof of lined which he or she owns within said annexed territory. The special election shall be held on May 20, 2003 or such other date as the City Clerk, acting as the election official for such special election (the "Election Official"), and all of the qualified clectors within hnprovement Area B may agree and consent. If the proposition to authorize the lcvy of thc special tax pursuant to the Revised Improvement Area B Rate and Method receives thc approval of more than two-thirds (2/3) of the votes cast on the proposition, the special tax may be levied pursuant to the Revised Improvement Area B Rate and Method as provided for in this Resolution. SECTION 5. BALLOT The ballot proposal to be submitted to the qualified voters at the election shall generally be as follows: PROPOSITION A CITY OF CHULA VISTA COMMUNITY FACILITIES DISTRICT NO. 06-I (EASTLAKE - WOODS, V1STAS AND LAND SWAP) IMPROVEMENT AREA B Shall City of Chula Vista Community Facilities District No. 06-1 (Eastlake - Woods, Vistas and Land Swap), subject to accountability measures set forth in the resolution forming and establishing such community facilities district (the "Resolution of Formation"), be authorized to levy a special tax pursuant to the revised rate and method of apportionment as set forth Resolution No. for the purposes of paying debt service on bonds of such district issued for Improvement Area B, replenishing the reserve fund for such bonds, paying costs of administering such indebtedness and such district and paying directly for the types of facilities described in the Resolution of Formation? SECTION 6. VOTE The appropriate mark placed on the line befbre the word "YES" shall be counted in favor of the adoption of the proposition, and the appropriate mark placed on the line bcfore the word "NO" in the manner as authorized, shall be counted against the adoption of said proposition. SECTION 7. ELECTION PROCEDURE The ElectionOfficialisherebyauthorizedtotakeanyand all steps necessary for the holding of said election. Said Election Official shall perform and render all services and proceedings incidental to and connected with the conduct of said election, and said serviccs shall include, but not be limited to the following: A. Prepare and furnish to the election officers necessary election supplies fbr the conduct of the election. B. Cause to be printed the requisite nmnber of officia} ballots, tally sheets and other necessary ibrms. C. Furnish and address official ballots for the qualified electors of Improvement Area B. D. Cause the official ballots to be mailed and/or delivered, as required by law. E. Receive the returns of the election. F. Sort and assemble the election material and supplies in preparation for the canvassing of the returns. G. Canvass the returns of the election. H. Furnish a tabulation of the number of votes given in the election. 1. Make all arrangements and take the necessary steps to pay all costs of the election incurred as a result of services performed for the District and pay costs and expenses of all election officials. J. Conduct and handle all other matters relating to the proceedings and conduct of the election in the manner and form as required by law. PREPARED BY: APPROVED AS TO FORM BY: Clifford Swanson Ann Moore Director of Engineering City Attorney AMENDED RATE AND METHOD OF APPORTIONMENT FOR CITY OF CHULA VISTA COMMUNITY FACILITIES DISTRICT NO. 06-1 IMPROVEMENT AREA B (EastLake - "Land Swap") A Special Tax as hereinafter defined shall be levied on each Assessor's Parcel of Taxable Property within the City of Chula Vista Community Facilities District No. 06-I, Improvement Area B ("Improvement Area B') and collected each Fiscal Year commencing in Fiscal Year 2003-2004 in an amount determined by the City Council through the application of the appropriate Special Tax for "Developed Property," and "Undeveloped Property" as described below. All of the Taxable Property in Improvement Area B, unless exempted by law or by the provisions hereof, shall be taxed for the purposes, to the extent and in the manner herein provided. A. DEFINITIONS The terms hereinafter set forth have the following meaning: "Acre or Acreage" means the land area of an Assessor's Parcel as shown on an Assessor's Parcel Map, or if the land area is not shown on an Assessor's Parcel Map, the land area shown on the applicable Final Subdivision Map, parcel map, condominium plan, record of survey, or other recorded document creating or describing the parcel. If the preceding maps for a land area are not available, the Acreage of such land area shall be determined by the City Engineer. "Act" means the Mello-Roos Community Facilities Act of 1982, as amended, being Chapter 2.5, Division 2 of Title 5 of the Government Code of the State of California. "Administrative Expenses" means the actual or reasonably estimated costs directly related to the administration of Improvement Area B including, but not limited to, the following: the costs of computing the Special Taxes and preparing the annual Special Tax collection schedules (whether by the City or designee thereof or both); the costs of collecting the Special Taxes (whether by the County, the City, or otherwise); the costs of remitting the Special Taxes to the Trustee; the costs of the Trustee (including its legal counsel) in the discharge of the duties required of it under the Indenture; the costs to the City, CFD-06-I or any designee thereof of complying with arbitrage rebate requirements; the costs to the City, CFD-06-I or any designee thereof of providing continuing disclosure; the costs associated with preparing Special Tax disclosure statements and responding to public inquiries regarding the Special Taxes; the costs of the City, CFD-06-I or any designee thereof related to any appeal of the levy or application of the Special Tax; and the costs associated with the release of funds from an escrow account, if any. Administrative Expenses shall also include amounts estimated or advanced by the City or CFD-06-I for any other administrative purposes of Improvement Area B, including, but not limited to City of Chula Vista Community Facilities District No. 06-1, Improvement Area B / ~ ~ ~ ~,:~ Page 1 EastLake - Land Swap attorney's fees and other costs related to commencing and pursuing to completion any foreclosure of delinquent Special Taxes. "Assessor's Parcel" means a lot or parcel shown in an Assessor's Parcel Map with an assigned Assessor's Parcel number. "Assessor's Parcel Map" means an official map of the County Assessor of the County designating parcels by Assessor's Parcel number. "Assigned Special Tax" means the Special Tax for each Land Use Category of Developed Property as determined in accordance with Section C. 1 .a. "Available Funds" means the balance in the reserve fund established pursuant to the terms of the Indenture in excess of the reserve requirement as defined in such Indenture, delinquent Special Tax payments not required to fund the Special Tax Requirement for any preceding Fiscal Year, Special Tax prepayments collected to pay interest on Bonds, and other sources of funds available as a credit to the Special Tax Requirement as specified in such Indenture. "Backup Special Tax" means the Backup Special Tax amount set forth in Section C.1 .b. "Bonds" means any bonds or other debt (as defined in the Act), whether in one or more series, issued by CFD-06-I for Improvement Area B under the Act. "Bond Year" means a one-year period beginning on September 2nd in each year and ending on September 1 st in the following year. Unless defined differently in the applicable Indenture. "CFI) Administrator" means an official of the City, or designee thereof, responsible for determining the Special Tax Requirement and providing for the levy and collection of the Special Taxes. "CFD-06-I means City of Chula Vista, Community Facilities District No. 06-I. "City" means the City of Chula Vista. "Commercial Property" means all Assessors' Parcels of Developed Property, for which a building permit(s) was issued for a non-residential use, excluding Community Purpose Facility Property. "Community Purpose Facility Property" means all Assessors' Parcels which are classified as community purpose facilities and meet the requirements of City of Chula Vista Ordinance No. 2452. "Council" means the City Council of the City, acting as the legislative body of CFD-06-I. City of Chula Vista Community Facilities District No, 06-I, Improvement .4rea B.--lC';--7 Page2 EastLake - Land Swap "County" means the County of San Diego. "Developed Property" means, for each Fiscal Year, all Taxable Property for which a building permit for new construction was issued prior to March 1 of the prior Fiscal Year. "Exempt Property" means property not subject to the Special Tax due to its classification as either Public Property, Property Owner Association Property Community Purpose Facility Property. "Final Subdivision Map" means a subdivision of property, created by recordation of a Final Subdivision Map, parcel map or lot line adjustment, approved by the City pursuant to the Subdivision Map Act (California Government Code Section 66410 et seq.) or recordation of a condominium plan pursuant to California Civil Code 1352, that creates individual lots for which residential building permits may be issued without further subdivision of such property. "Fiscal Year" means the period starting July 1 and ending on the following June 30. "Improvement Area B' means Improvement Area B of CFD No. 06-I known as the "Land Swap". "Indenture" means the indenture, fiscal agent agreement, trust agreement, resolution or other instrument pursuant to which Bonds are issued, as modified, amended and/or supplemented from time to time, and any instrument replacing or supplementing the same. "Land Use Class" means any of the classes listed in Table 1 of Section C. "Lot(s)" means an individual legal lot created by a Final Subdivision Map for which a building permit for residential construction has been or could be issued. "Master Developer" means the owner of the predominant amount of Undeveloped Property in Improvement Area B. "Maximum Annual Special Tax" means the maximum annual Special Tax, determined in accordance with the provisions of Section C, which may be levied in any Fiscal Year on any Assessor's Parcel of Taxable Property. "Outstanding Bonds" mean all Bonds, which remain outstanding as defined in the Indenture. "Property Owner Association Property" means any property within the boundaries of Improvement Area B owned by or dedicated to a property owner association, including any master or sub-association. "Proportionately" means for Developed Property that the ratio of the actual Special Tax levy to the Assigned Special Tax or the Backup Special Tax is equal for all Assessors' City of Cbula Vista Community Facilities District No. 06d, Improvement Area B ~ ~ ~ Page 3 EastLake ~ Land Swap Parcels of Developed Property within Improvement Area B. For Undeveloped Property "Proportionately" means that the ratio of the actual Special Tax levy per Acre to the Maximum Annual Special Tax per Acre is equal for all Assessor's Parcels of Undeveloped Property within Improvement Area B. "Public Property" means any property within the boundaries of Improvement Area B that is owned by or dedicated to the federal government, the State of California, the County, the City or any other public agency. "Residential Property" means all Assessors' Parcels of Developed Property for which a building permit has been issued for purposes of constructing one or more residential dwelling units. "Residential Floor Area" means all of the square footage of living area within the perimeter of a residential structure, not including any carport, walkway, garage, overhang, patio, enclosed patio, or similar area. The determination of Residential Floor Area shall be made by the CFD Administrator by reference to appropriate records kept by the City's Building Department. Residential Floor Area for a residential structure will be based on the building permit(s) issued for such structure. "Special Tax" means the annual special tax to be levied in each Fiscal Year on each Assessor's Parcel of Taxable Property to fund the Special Tax Requirement. "Special Tax Requirement" means that amount of Special Tax revenue required in any Fiscal Year for Improvement Area B to: (i) pay annual debt service on all Outstanding Bonds (as defined in Section A) due in the Bond Year beginning in such Fiscal Year; (ii) pay other periodic costs on Outstanding Bonds, including but not limited to, credit enhancement and rebate payments on Outstanding Bonds; (iii) pay Administrative Expenses; (iv) pay any amounts required to establish or replenish any reserve funds for all Outstanding Bonds in accordance with the Indenture; and (v) pay directly for acquisition and/or construction of public improvements which are authorized to be financed by CFD- 06-1 provided that the inclusion of such amount does not cause an increase in the levy of Special Tax on the Undeveloped Property for Improvement Area B; less (vi) a credit for Available Funds. "State" means the State of California. "Taxable Property" means all of the Assessor's Parcels within the boundaries of CFD-06-I, Improvement Area B that are not exempt from the Special Tax pursuant to law or Section E below. "Trustee" means the trustee, fiscal agent, or paying agent under the Indenture. "Undeveloped Property" means, for each Fiscal year, all Taxable Property not classified as Developed Property. City of Chula Vista Community Facilities District No. 06-L Improvement Area B EastLake - Land Swap Page 4 "Zone 3" means a specific geographic area as depicted in Exhibit A attached hereto. "Zone 4" means a specific geographic area as depicted in Exhibit A attached hereto. B. ASSIGNMENT TO LAND USE CATEGORIES Each Fiscal Year, all Assessor's Parcels of Taxable Property within, Improvement Area B shall be (a) categorized as being located in either Zone 3 or Zone 4, (b) classified as Developed Property or Undeveloped Property and (c) shall be subject to the levy of annual Special Taxes determined pursuant to Sections C and D below. Furthermore, all Developed Property shall then be classified as Residential or Commercial Property. C. MAXIMUM ANNUAL SPECIAL TAX RATE 1. Developed Property The Maximum Annual Special Tax for each Assessor's Pamel of Residential Property or Commercial Property shall be the greater of (1) the Assigned Special Tax described in Table 1 below or (2) the Backup Special Tax computed pursuant to b. below. a. Assigned Special Tax The Assigned Special Tax for each Assessor's Parcel of Developed Property is shown in Table 1. TABLE 1 Assigned Special Tax for Developed Property within Zone 3 and Zone 4 Land Use Class Description Assigned Special Tax 1 Residential Property $0.74 per square foot of Residential Floor Area 2 Commercial Property $6,000 per Acre b. Backup Special Tax When a Final Subdivision Map is recorded within Zone 3 or Zone 4, the Backup Special Tax for Assessor's Parcels of Developed Property classified as Residential Property or Commercial Property shall be determined as follows: City of Chula Vista Community Facilities District No. 06-1, lmprovement Area B ~ !~'~ EastLake - Land Swap ':' ~'~ Page 5 For each Assessor's Pamel of Residential Property or for each Assessor's Parcel of Undeveloped Property to be classified as Residential Property upon its development within the Final Subdivision Map area, the Backup Special Tax shall be the rate per Lot calculated according to the following formula: Zone 3 $20,563 x A L Zone 4 $6,667 x A L The terms above have the following meanings: B = Backup Special Tax per Lot in each Fiscal Year. A = Acreage classified or to be classified as Residential Property in such Final Subdivision Map. L = Lots in the Final Subdivision Map which are classified or to be classified as Residential Property. For each Assessor's Parcel of Commercial Property or for each Assessor's Parcel of Undeveloped Property to be classified as Commercial Property within the Final Subdivision Map area, the Backup Special Tax shall be determined by multiplying $20,563 for Zone 3 and $6,667 for Zone 4 by the total Acreage of each Assessor's Parcels of the Commercial Property and Undeveloped Property to be classified as Commercial Property within the Final Subdivision Map area. Notwithstanding the foregoing, if Assessor's Parcels of Residential Property, Commercial Property or Undeveloped Property for which the Backup Special Tax has been determined are subsequently changed or modified by recordation of a new or amended Final Subdivision Map, then the Backup Special Tax applicable to such Assessor's Parcels shall be recalculated to equal the amount of Backup Special Tax that would have been generated if such change did not take place. City of Chula Vista Community Facilities District No. 06-1, Improvement Area B /~ ~/ Page 6 EastLake - Land Swap 2. Undeveloped Property The Maximum Annual Special Tax for each Assessor's Parcel classified, as Undeveloped Property shall be $20,563 per Acre for Zone 3 and $6,667 per Acre for Zone 4. D. METHOD OF APPORTIONMENT OF THE SPECIAL TAX Commencing with Fiscal Year 2003-04 and for each following Fiscal Year, the Council shall determine the Special Tax Requirement and shall levy the Special Tax until the amount o£ Special Taxes equals the Special Tax Requirement. The Special Tax shall be levied each Fiscal Year as follows: First: The Special Tax shall be levied Proportionately on each Assessor's Parcel of Developed Property within Zone 3 and Zone 4 at a rate up to 100% of the applicable Assigned Special Tax to satisfy the Special Tax Requirement. Second: If additional monies are needed to satisfy the Special Tax Requirement after the first step has been completed, the Special Tax shall be levied Proportionately on each Assessor's Parcel of Undeveloped Property within Zone 3 and Zone 4, excluding any Assessor's Parcels classified as Undeveloped Property pursuant to Section E, at a rate up to 100% of the Maximum Annual Special Tax for Undeveloped Property. Third: If additional monies are needed to satisfy the Special Tax Requirement after the first two steps have been completed, the Special Tax to be levied on each Assessor's Parcel of Developed Property whose Maximum Annual Special Tax is derived by the application of the Backup Special Tax shall be increased Proportionately from the Assigned Special Tax up to the Maximum Annual Special Tax for each such Assessor's Parcel. Fourth: If additional monies are needed to satisfy the Special Tax Requirement after the first three steps have been completed, then the Special Tax shall be levied Proportionately on each Assessor's Parcel classified as Undeveloped Property pursuant to Section E at a rate up to 100% of the Maximum Annual Special Tax for Undeveloped Property. Notwithstanding the above, under no circumstances will the Special Tax levied against any Assessor's Parcel of Residential Property be increased by more than ten percent per year as a consequence of delinquency or default in the payment of Special Taxes by the owner of any other Assessor's Parcel. City of Chula Vista Community Facilities District No. 06-l, Improvement Area B ,~/~..~, ~ Page 7 EastLake - Land Swap ~ E. EXEMPTIONS 1. The CFD Administrator shall classify the following Assessor Parcel(s) as exempt property: (i) Public Property, (ii) Property Owner Association Property, (iii) Community Purpose Facility Property, and (iv) Assessor's Parcels with public or utility easements making impractical their utilization for other than the purposes set forth in the easement; provided, however, that no such classification shall reduce the sum of all Taxable Property to less than 36.50 Acres in Zone 3 and 52.00 Acres in Zone 4. Assessor's Parcels which cannot be classified as exempt property because such classification would reduce the Acreage of all Taxable Property to less than 36.50 Acres in Zone 3 and 52.00 Acres in Zone 4 will be classified as Undeveloped Property and shall be taxed as such. Tax-exempt status for purposes of this paragraph will be assigned by the CFD Administrator in the chronological order in which property becomes exempt property. 3. The Maximum Annual Special Tax obligation for any property which would be classified as Public Property upon its transfer or dedication to a public agency but which cannot be classified as exempt property as described in paragraph 1 of Section F shall be prepaid in full by the seller pursuant to Section 1.1, prior to the transfer/dedication of such property to such public agency. Until the Maximum Annual Tax obligation for any such Public Property is prepaid, the property shall continue to be subject to the levy of the Special Tax as Undeveloped Property. F. REVIEW/APPEAL COMMITTEE Any landowner or resident who feels that the amount of the Special Tax levied on their Assessor's Parcel is in error shall first consult with the CFD Administrator regarding such error. If following such consultation, the CFD Administrator determines that an error has occurred; the CFD Administrator may amend the amount of the Special Tax levied on such Assessor's Parcel. If following such consultation and action (if any by the CFD Administrator), the landowner or resident believes such error still exists, such person may file a written notice with the City Clerk of the City appealing the amount of the Special Tax levied on such Assessor's Parcel. Upon the receipt of any such notice, the City Clerk shall forward a copy of such notice to the City Manager who shall establish as part of the proceedings and administration of CFD-06-I and a special three-member Review/Appeal Committee. The Review/Appeal Committee may establish such procedures, as it deems necessary to undertake the review of any such appeal. The Review/Appeal Committee shall interpret this Rate and Method of Apportionment and make determinations relative to the annual administration of the Special Tax and any landowner or resident appeals, as herein specified. The decision of the Review/Appeal Committee shall be final and binding as to all persons. City of Chula Vista Community Facilities District No. 06-1, Improvement Area B Jvs~' ~ ~ ,I¥~'~ Page 8 EastLake - Land Swap G. MANNER OF COLLECTION The annual Special Tax shall be collected in the same manner and at the same time as ordinary ad valorem property taxes; provided, however, that CFD-06-1, Improvement Area B may directly bill the Special Tax, may collect Special Taxes at a different time or in a different manner if necessary to meet its financial obligations, and may covenant to foreclose and may actually foreclose on Assessor's Parcels of Taxable Property that are delinquent in the payment of Special Taxes. Tenders of Bonds may be accepted for payment of Special Taxes upon the terms and conditions established by the Council pursuant to the Act. However, the use of Bond tenders shall only be allowed on a case-by-case basis as specifically approved by the Council. H. PREPAYMENT OF SPECIAL TAX The following definition applies to this Section H: "CFD Public Facilities" means those public facilities authorized to be financed by CFD- 06-I Improvement Area B. "CFD Public Facilities Costs" means either $12.3 million, or such lower number as shall be determined either by (a) the CFD Administrator as sufficient to finance the CFD Public Facilities, or (b) the Council concurrently with a covenant that it will not issue any more Bonds to be secured by Special Taxes levied under this Rate and Method of Apportionment. "Construction Fund" means an account specifically identified in the Indenture to hold funds which are currently available for expenditure to acquire or construct the CFD Public Facilities. "Future Facilities Costs" means the CFD Public Facilities Costs minus that (a) portion of the CFD Public Facilities Costs previously funded (i) from the proceeds of all previously issued Bonds, (ii) from interest earnings on the Construction Fund actually earned prior to the date of prepayment and (iii) directly from Special Tax revenues and (b) the amount of the proceeds of all previously issued Bonds then on deposit in the Construction Fund. "Outstanding Bonds" means all previously issued Bonds which will remain outstanding after the first interest and/or principal payment date following the current Fiscal Year, excluding Bonds to be redeemed at a later date with the proceeds of prior prepayments of Maximum Annual Special Taxes. City of Chula Vista Community Facilities District No. 06-1, Improvement Area B f~'"', ~/'~ , EastLake - Land Swap Page 9 1. Prepayment in Full The Maximum Annual Special Tax obligation may only be prepaid and permanently satisfied for an Assessor's Parcel of Developed Property, Undeveloped Property for which a building permit has been issued, or Public Property. Thc Maximum Annual Special Tax obligation applicable to such Assessor's Parcel may be fully prepaid and the obligation of thc Assessor's Parcel to pay the Special Tax permanently satisfied as described herein; provided, however that a prepayment may bc made only if there are no delinquent Special Taxes with respect to such Assessor's Parcel at the time of prepayment. An owner of an Assessor's Parcel intending to prepay the Maximum Annual Special Tax obligation shall provide the CFD Administrator with written notice of intent to prepay. Within 30 days of receipt of such written notice, the CFD Administrator shall notify such owner of the Prepayment amount of such Assessor's Parcel. The CFD Administrator may charge a reasonable fee for providing this figure. Thc Prepayment Amount (defined below) shall be calculated as summarized below (capitalized terms as defined below): Bond Redemption Amount plus Redemption Premium plus Future Facilities Amount plus Defeasance Amount plus Prepayment Fees and Expenses less Reserve Fund Credit less Capitalized Interest Credit Total: equals Prepayment Amount As of the proposed date of prepayment, the Prepayment Amount (defined below) shall be calculated as follows: Step No.: 1. For Assessor's Parcels of Developed Property, compute the Maximum Annual Special Tax for the Assessor's Parcel to be prepaid. For Assessor's Parcels of Undeveloped Property for which a building permit has been issued to be prepaid, compute the Maximum Annual Special Tax for that Assessor's Parcel as though it was already designated as Developed Property, based upon the building permit issued for that Assessor's Parcel. For Assessor's Parcels of Public Property to be prepaid, compute the Maximum Annual Special Tax for that Assessor's Parcel using the Maximum Annual Special Tax for Undeveloped Property. 2. Divide the Maximum Annual Special Tax computed pursuant to paragraph 1 by the sum of the total expected Maximum Annual Special Tax revenues which may be levied within Improvement Area B excluding any Assessors Parcels for which the Maximum Annual Special Tax obligation has been previously prepaid. City of Chula Vista Community Facilities District No. 06-I, Improvement Area B EastLake - Land Swap Page 10 3. Multiply the quotient computed pursuant to paragraph 2 by the principal amount of the Outstanding Bonds to compute the amount of Outstanding Bonds to be retired and prepaid (the "Bond Redemption Amount"). 4. Multiply the Bond Redemption Amount computed pursuant to paragraph 3 by the applicable redemption premium on the next possible Bond call date, if any, on the Outstanding Bonds to be redeemed (the "Redemption Premium"). 5. If all the Bonds authorized to be issued for Improvement Area B have not been issued, compute the Future Facilities Costs. 6. Multiply the quotient computed pursuant to paragraph 2 by the amount determined pursuant to paragraph 5 to compute the amount of Future Facilities Costs to be allocated to such Assessor's Parcel (the "Future Facilities Amount'S. 7. Compute the amount needed to pay interest on the Bond Redemption Amount from the first bond interest and/or principal payment date following the current Fiscal Year until the earliest redemption date for the Outstanding Bonds. 8. Confirm that no Special Tax delinquencies apply to such Assessor's Parcel. 9. Determine the Special Taxes levied on the Assessor's Parcel in the current Fiscal Year, which have not yet been paid. 10. Determine the fees and expenses of CFD-06-I, including but not limited to, the costs of computation of the prepayment, the costs to invest the prepayment proceeds, the costs of redeeming Bonds from the proceeds of such prepayment, and the cost of recording any notices to evidence the prepayment and the redemption (the "Prepayment Fees and Expenses"). 11. Compute the amount the CFD Administrator reasonably expects to derive from the reinvestment of the prepayment amount less the Prepayment Fees and Expenses, as determined pursuant to step 10, from the date of prepayment until the redemption date for the outstanding bonds to be redeemed with the prepayment. 12. Add the amounts computed pursuant to paragraphs 7 and 9 and subtract the amount computed pursuant to paragraph 11 (the "Defeasance Amount"). 13. The reserve ftmd credit (the "Reserve Fund Credit") shall equal the lesser off (a) the expected reduction in the reserve requirement (as defined in the Indenture), if any, associated with the redemption of Outstanding Bonds as a result of the prepayment, or (b) the amount derived by subtracting the new reserve requirement (as defined in the Indenture) in effect after the redemption of Outstanding Bonds as a result of the prepayment from the balance in the reserve fund on the prepayment date, but in no event shall such amount be less than zero. City of Chula Vista .... , ~ Community Facilities District No. 06-1, Improvement Area B ~ EastLake - Land Swap Page 11 14. If any capitalized interest for the Outstanding Bonds will not have been expended at the time of the first interest payment following the current Fiscal Year, a capitalized interest credit shall be calculated by multiplying the quotient computed pursuant to paragraph 2 by the expected balance in the capitalized interest fund after such first interest payment (the "Capitalized Interest Credit"). 15. The Maximum Annual Special Tax prepayment is equal to the sum of the amounts computed pursuant to paragraphs 3, 4, 6, 10, and 12, less the amounts computed pursuant to paragraphs 13 and 14 (the "Prepayment Amount"). 16. From the Prepayment Amount, the amounts computed pursuant to paragraphs 3, 4, 12, 13, and 14 shall be deposited into the appropriate fund as established under the Indenture and be used to retire Outstanding Bonds or make debt service payments. The amount computed pursuant to paragraph 10 shall be retained by CFD-06-I. The amount computed pursuant to paragraph 6 shall be deposited in the Construction Fund. The Prepayment Amount may be sufficient to redeem other than a $5,000 increment of Bonds. In such cases, the increment above $5,000 or integral multiple thereof will be retained in the appropriate fund established under the Indenture to be used with the next prepayment of bonds or to make debt service payments. As a result of the payment of the current Fiscal Year's Special Tax levy as determined under paragraph 9 above, the CFD Administrator shall remove the current Fiscal Year's Special Tax levy for such Assessor's Parcel from the County tax rolls. With respect to any Assessor's Parcel that is prepaid, the Council shall cause a suitable notice to be recorded in compliance with the Act, to indicate the prepayment of Special Taxes and the release of the Special Tax lien on such Assessor's Parcel, and the obligation of such Assessor's Parcel to pay the Special Tax shall cease. Notwithstanding the foregoing, no Special Tax prepayment shall be allowed unless the amount of Maximum Annual Special Taxes that may be levied on Taxable Property within Improvement Area B both prior to and after the proposed prepayment is at least 1.1 times the maximum annual debt service on all Outstanding Bonds. Tenders of Bonds in prepayment of Maximum Annual Special Taxes may be accepted upon the terms and conditions established by the Council pursuant to the Act. However, the use of Bond tenders shall only be allowed on a case-by-case basis as specifically approved by the Council. 2. Prepayment in Part The Maximum Annual Special Tax on an Assessor's Parcel of Developed Property or an Assessor's Parcel of Undeveloped Property for which a building permit has been issued City of Chula Vista Community Facilities District No. 06-1, Improvement Area B ~,'~,~"~:~ ~ 7 EastLake - Land Swap Page 12 may be partially prepaid. The amount of the prepayment shall be calculated as in Section H 1; except that a partial prepayment shall be calculated according to the following formula: PP = (PE X F) + A These terms have the following meaning: PP = the partial prepayment PE = the Prepayment Amount calculated according to Section H. 1, minus Prepayment Fees and Expenses determined pursuant to Step 10. F -- the pement by which the owner of the Assessor's Parcel(s) is partially prepaying the Maximum Annual Special Tax. A= the Prepayment Fees and Expenses determined pursuant to Step 10. The owner of an Assessor's Parcel who desires to partially prepay the Maximum Annual Special Tax shall notify the CFD Administrator of (i) such owner's intent to partially prepay the Maximum Annual Special Tax, (ii) the percentage by which the Maximum Annual Special Tax shall be prepaid, and (iii) the company or agency that will be acting as the escrow agent, if applicable. The CFD Administrator shall provide the owner with a statement of the amount required for the partial prepayment of the Maximum Annual Special Tax for an Assessor's Parcel within 30 days of the request and may charge a reasonable fee for providing this service. With respect to any Assessor's Parcel that is partially prepaid, the City shall (i) distribute the funds remitted to it according to Step 16 of Section H.1, and (ii) indicate in the records of CFD-06-1, Improvement Area B that there has been a partial prepayment of the Maximum Annual Special Tax and that a portion of the Maximum Annual Special Tax equal to the outstanding percentage (1.00 - F) of the remaining Maximum Annual Special Tax shall continue to be authorized to be levied on such Assessor's Parcel pursuant to Section D. I. TERM OF MAXIMUM ANNUAL SPECIAL TAX The Maximum Annual Special Tax shall be levied commencing in Fiscal Year 2003-2004 to the extent necessary to fully satisfy the Special Tax Requirement and shall be levied £or a period no longer than the 2043-2044 Fiscal Year. City of Chula Vista ~ ~._ ~r~., Community Facilities District No. 06-1, Improvement Area B t~,/,t~;t' - · EastLake - Land Swap Page 13 Page 1, Item / Meeting Date 5/13/03 COUNCIL AGENDA STATEMENT ITEM TITLE: Public Hearing to take public testimony to authorize the annexation of territory to Community Facilities District No. 06-1 (EastLake-Woods, Vistas and Land Swap) and Improvement Area B Resolution of the City Council of the City Of Chula Vista, making certain determinations and authorizing submittal of the levy of special taxes to the qualified electors of certain territory proposed to be annexed to Community Facilities District No. 06-I (Eastlake - Woods, Vistas and Land Swap) and Improvement B thereto SUBMITTED BY: Director of Engineering,~ff Director of Finance ~,t,~'~ REVIEWED BY: City Manager (';_~ ~ (4/Sths Vote: Yes No X__I On March 25, 2003 Council approved Resolution No. 2003-113 declaring the intention of the City Council, acting as the legislative body o f Community Facilities District No. 06-I (EastLake - Woods, Vistas and Land Swap) ("CFD No. 06-I") to authorize the annexation of territory to Community Facilities District No. 06-I and Improvement Area B thereto and set the Public Hearing date for May 6, 2003. Tonight's action will continue the formal proceedings to consider the authorization to annex such territory to CFD No. 06-I and Improvement Area B thereto, subject to the approval of the qualified electors of the levy of special taxes within such territory proposed to be annexed. BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. RECOMMENDATION: That Council: · Open the Hearing, take public testimony, close the public hearing; · Approve the Resolution making certain determinations and authorizing submittal of the levy of special taxes to the qualified electors of the territory proposed to be annexed to Community Facilities District No. 06-I (EastLake - Woods, Vistas and Land Swap). DISCUSSION: Background This public hearing is held for the purpose of considering the annexation of territory to Community Facilities District No. 06-I (EastLake - Woods, Vistas and Land Swap). Page 2, Item I .? Meeting Date 5/13/03 The EastLake Company, LLC had fore, ally requested (letter dated March 10, 2003) (Exhibit A) the City of Chula Vista to authorize the annexation of territory to Community Facilities District No. 06-I (EastLake - Woods, Vistas and Land Swap). In mid-2002, the City Council took action to approve the formation of CFD No. 06-I, to designate two improvement areas therein (improvement Areas A & B), to authorize the levy of special taxes within each improvement area and to authorize CFD No. 06-I to incur a bonded indebtedness for each improvement area to finance the acquisition of certain public improvements. Subsequent to the formation of CFD No. 06-I, the City Council authorized the issuance of bonds by the CFD for Improvement Area A. The current annexation request is to annex territory to CFD No. 06-I and Improvement Area B thereto. Such annexation will, therefore, have no affect on improvement Area A or the Bonds that have been sold. Staff, the legal counsel, the special tax consultant and the City's finance team have reviewed the proposed annexation and its relationship to the previously approved documents and consider this annexation ready for Council approval. Annexation Parcel Description The territory to be annexed will, if approved, add approximately 6.87 acres to the CFD No. 06-1 and Improvement Area B, but will have no affect on the Rate and Method of Apportioarnent of the special tax as it applies to Improvement Area B, since the acreage, unit counts, and land uses for this territory were included in the calculation of the special tax rates in the original rate and method of apportiorunent. Exhibit B illustrates the territory proposed to be annexed, a triangular shaped parcel located on the northeast portion of the Southern Land Swap parcel and is bounded by EastLake Parkway to the West. Staff, the legal counsel, the special tax consultant and the City's finance team have reviewed the proposed annexation and its relationship to the previously approved documents and consider this annexation ready for council approval. Resolution There is one resolution on today's agenda, which, if adopted, will accomplish the following: · Makes determinations that: the annexation proceedings are valid and in conformity with the requirements of law the annexation would conform to the City's Statement of Goals and Policies Regarding the Establishment of Community Facilities Districts the qualified electors of the territory to be annexed have waived the time for holding an election regarding the levy of special taxes within such territory in accordance with the Amended Rate and Method of Apportionment (Exhibit C); and the public facilities to be financed with the proceeds of the special taxes to be levied within the territory to be annexed are necessary to meet increased demands placed upon the City as a result of the development of such territory. · Declares that, except where funds are otherwise available, a special tax shall be levied within the territory to be annexed pursuant to the rate and method of apportionment of such special taxes applicable to Improvement Area B. Page 3, Item I~ Meeting Date 5/13/03 Notice A notice this public hearing has been published in the Star News at least seven days prior to the Public Heating. Future Actions Approval of tonight's Resolution will submit to the qualified electors of the territory to be annexed a proposition to authorize the levy of special taxes within such territory, direct staff to prepare the necessary ballots, and to hold a special election on May 20, 2003. The City Council on May 27, 2003 will certify the election results and assuming the ballot measures are passed by the requisite vote of the qualified electors, will adopt the resolution adding the territory to CFD No. 06-I. FISCAL IMPACT: All costs related to this annexation proceeding for CFD No. 06-1 are being borne by the developer. Attachments: 1. March 10, 2003 -Annexation request letter 2. Amended CFD No. 06-I Annexation Map No. 1 3. Amended Rate and Method of Apportionment for Improvement Area B J:~Engineer~AGENDAhRevised CAS 5-06-03.doc 03/10/2003 09:54 FAX 6194211830 EASTLAKE COMPANY ~]001 March 10. 2003 ~ F. ASTL KE Mr. Cliff Swanson COMPANY, LLC Director of Engineering City Of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 RE: Annexation request for 6.87 acres into Commumty Facilities District No. 06I and 07M Dear Chff: Assessors Parcel Number 6~3-020-056 ia a 6.87 acr~ parcel located within the boundaries oft~e EastLake Greens SPA along EastLake Parkway. This pared is part of EastLake's residential compunant slated for affordable housing within Community Facilities Dia~ict No. 061 (CFD O6I), Improvement Area B and Commumty Facilit/ea District No. 07M (CFD 07M), Improvement Area No. 2. This parcel was not originally included in the boundaries of CFD 061 and 0TM, but was par~ of the overall CFD residential acreage and unit counts as presented within the existing documents that have been approved by the City of Chula Vista to date. Please iintiate the process to annex this parcel into CFD 06I and CFI} 07M~ It is ottr tmderstanding that this aune~.alion will require a parallel process and public hearing, but can move forward along wi~b our previous request for a change o£proceedings related to our commercial prepayment request (O61) and the reduction in maintenance area for 07M. We would like this process m move forward in a timely manner. If you have any questions, please don't hesitate to contact ma. Thank you. D~bi l~Klingn~ Vice President cc: Lombardo Detrinidad, City of Chula Vista Grngg Matann, McG£11 Mart~a Self, Inc. Lynn Gruber, Muni Financial ~ ,I~.1~'~ Warren Divan, Best, Best & Krieger ,, ,: AMENDED RATE AND METHOD OF APPORTIONMENT FOR CITY OF CHULA VISTA COMMUNITY FACILITIES DISTRICT NO. 06-I IMPROVEMENT AREA B (EastLake - "Land Swap") A Special Tax as hereinafter defined shall be levied on each Assessor's Parcel of Taxable Property within the City of Chula Vista Community Facilities District No. 06-1, Improvement Area B ("Improvement Area B") and collected each Fiscal Year commencing in Fiscal Year 2003-2004 in an mount determined by the City Council through the application of the appropriate Special Tax for "Developed Property," and "Undeveloped Property" as described below. All of the Taxable Property in Improvement Area B, unless exempted by law or by the provisions hereof, shall be taxed for the purposes, to the extent and in the manner herein provided. A. DEFINITIONS The terms hereinafter set forth have the following meaning: "Acre or Acreage" means the land area of an Assessor's Parcel as shown on an Assessor's Parcel Map, or if the land area is not shown on an Assessor's Parcel Map, the land area shown on the applicable Final Subdivision Map, parcel map, condominium plan, record of survey, or other recorded document creating or describing the parcel. If the preceding maps for a land area are not available, the Acreage of such land area shall be determined by the City Enghaeer. "Act" means the Mello-Roos Conhmunity Facilities Act of 1982, as amended, being Chapter 2.5, Division 2 of Title 5 of the Government Code of the State of California. "Administrative Expenses" means the actual or reasonably estimated costs directly related to the administration of Improvement Area B including, but not limited to, the following: the costs of computing the Special Taxes and preparing the annual Special Tax collection schedules (whether by the City or designee thereof or both); the costs of collecting the Special Taxes (whether by the County, the City, or otherwise); the costs of remitting the Special Taxes to the Trustee; the costs of the Trustee (including its legal counsel) in the discharge of the duties required of it under the Indenture; the costs to the City, CFD-06-I or any designee thereof of complying with arbitrage rebate requirements; the costs to the City, CFD-06-I or any designee thereof of providing continuing disclosure; the costs associated with preparing Special Tax disclosure statements and responding to public inquiries regarding the Special Taxes; the costs of the City, CFD-06-I or any designee thereof related to any appeal of the levy or application of the Special Tax; and the costs associated with the release of funds from an escrow account, if any. Administrative Expenses shall also include amounts estimated or advanced by the City or CFD-06-I for any other administrative purposes of Improvement Area B, including, but not limited to City of Chula Vista Community Facilities District No. 06-1. Improvement Area B /~ ~ 7 Page 1 EastLake - Land Swap attorney's fees and other costs related to commencing and pursuing to completion any foreclosure of delinquent Special Taxes. "Assessor's Parcel" means a lot or parcel shown in an Assessor's Parcel Map with an assigned Assessor's Parcel number. "Assessor's Parcel Map" means an official map of the County Assessor of the County designating parcels by Assessor's Parcel number. "Assigned Special Tax" means the Special Tax for each Land Use Category of Developed Property as determined in accordance with Section C. 1 .a. "Available Funds" means the balance in the reserve fund established pursuant to the terms of the Indenture in excess of the reserve requirement as defined in such Indenture, delinquent Special Tax payments not required to fund the Special Tax Requirement for any preceding Fiscal Year, Special Tax prepayments collected to pay interest on Bonds, and other sources of funds available as a credit to the Special Tax Requirement as specified in such Indenture. "Backup Special Tax" means the Backup Special Tax amount set forth in Section C. 1 .b. "Bonds" means any bonds or other debt (as defined in the Act), whether in one or more series, issued by CFD-06-I for Improvement Area B under the Act. "Bond Year" means a one-year period beginning on September 2nd in each year and ending on September 1st in the following year. Unless defined differently in the applicable Indenture. "CFD Administrator" means an official of the City, or designee thereof, responsible for determining the Special Tax Requirement and providing for the levy and collection of the Special Taxes. "CFD-06-I means City of Chula Vista, Community Facilities District No. 06-1. "City" means the City of Chula Vista. "Commercial Property" means all Assessors' Parcels of Developed Property, for which a building permit(s) was issued for a non-residential use, excluding Community Purpose Facility Property. "Community Purpose Facility Property" means all Assessors' Parcels which are classified as community purpose facilities and meet the requirements of City of Chula Vista Ordinance No. 2452. "Council" means the City Council of the City, acting as the legislative body of CFD-06-I. City of Chula Vista r, Community Facilities District No. 06-1, Improvement Area B /~ ~ EastLake - Land Swap Page 2 "County" means the County of San Diego. "Developed Property" means, for each Fiscal Year, ail Taxable Property for which a building permit for new construction was issued prior to March 1 of the prior Fiscal Year. "Exempt Property" means property not subject to the Special Tax due to its classification as either Public Property, Property Owner Association Property Community Purpose Facility Property. "Final Subdivision Map" means a subdivision of property, created by recordation of a Final Subdivision Map, parcel map or lot line adjustment, approved by the City pursuant to the Subdivision Map Act (California Government Code Section 66410 et seq.) or recordation of a condominium plan pursuant to California Civil Code .1352, that creates individual lots for which residential building permits may be issued without further subdivision of such property. "Fiscal Year" means the period starting July 1 and ending on the following June 30. "Improvement Area B" means Improvement Area B of CFD No. 06-I known as the "Land Swap". "Indenture" means the indenture, fiscal agent agreement, trust agreement, resolution or other instrument pursuant to which Bonds are issued, as modified, amended and/or supplemented from time to time, and any instrument replacing or supplementing the same. "Land Use Class" means any of the classes listed in Table 1 of Section C. "Lot(s)" means an individual legal lot created by a Final Subdivision Map for which a building permit for residential construction has been or could be issued. "Master Developer" means the owner of the predominant amount of Undeveloped Property in Improvement Area B. "Maximum Annual Special Tax" means the maximum annual Special Tax, determined in accordance with the provisions of Section C, which may be levied in any Fiscal Year on any Assessor's Parcel of Taxable Property. "Outstanding Bonds" mean all Bonds, which remain outstanding as defined in the Indenture. "Property Owner Association Property" means any property within the boundaries of Improvement Area B owned by or dedicated to a property owner association, including any master or sub-association. "Proportionately" means for Developed Property that the ratio of the actual Special Tax levy to the Assigned Special Tax or the Backup Special Tax is equal for all Assessors' City of Chula Vista Community Facilities District No. 06-I, Improvement Area B f ~ EastLake - Land Swap r- Pa~e 3 Parcels of Developed Property within Improvement Area B. For Undeveloped Property "Proportionately" means that the ratio of the actual Special Tax levy per Acre to the Maximum Annual Special Tax per Acre is equal for all Assessor's Parcels of Undeveloped Property within Improvement Area B. "Public Property" means any property within the boundaries of Improvement Area B that is owned by or dedicated to the federal government, the State of California, the County, the City or any other public agency. "Residential Property" means all Assessors' Parcels of Developed Property for which a building permit has been issued for purposes of constructing one or more residential dwelling units. "Residential Floor Area" means all of the square footage of living area within the perimeter of a residential structure, not including any carport, walkway, garage, overhang, patio, enclosed patio, or similar area. The determination of Residential Floor Area shall be made by the CFD Administrator by reference to appropriate records kept by the City's Building Department. Residential Floor Area for a residential structure will be based on the building permit(s) issued for such structure. "Special Tax" means the annual special tax to be levied in each Fiscal Year on each Assessor's Parcel of Taxable Property to fund the Special Tax Requirement. "Special Tax Requirement" means that amount of Special Tax revenue required in any Fiscal Year for Improvement Area B to: (i) pay annual debt service on all Outstanding Bonds (as defined in Section A) due in the Bond Year beginning in such Fiscal Year; (ii) pay other periodic costs on Outstanding Bonds, including but not limited to, credit enhancement and rebate payments on Outstanding Bonds; (iii) pay Administrative Expenses; (iv) pay any amounts required to establish or replenish any reserve funds for all Outstanding Bonds in accordance with the Indenture; and (v) pay directly for acquisition and/or construction of public improvements which are authorized to be financed by CFD- 06-I provided that the inclusion of such amount does not cause an increase in the levy of Special Tax on the Undeveloped Property for Improvement Area B; less (vi) a credit for Available Funds. "State" means the State of California. "Taxable Property" means all of the Assessor's Parcels within the boundaries of CFD-06-I, Improvement Area B that are not exempt from the Special Tax pursuant to law or Section E below. "Trustee" means the trustee, fiscal agent, or paying agent under the Indenture. "Undeveloped Property" means, for each Fiscal year, all Taxable Property not classified as Developed Property. City of Chula Vista Community Facilities District No. 06-1, Improvement Area B/~ _//~ EastLake - Land Swap Page 4 "Zone 3" means a specific geographic area as depicted in Exhibit A attached hereto. "Zone 4" means a specific geographic area as depicted in Exhibit A attached hereto. B. ASSIGNMENT TO LAND USE CATEGORIES Each Fiscal Year, a11 Assessor's Parcels of Taxable Property within, Improvement Area B shall be (a) categorized as being located in either Zone 3 or Zone 4, (b) classified as Developed Property or Undeveloped Property and (c) shall be subject to the levy of annual Special Taxes determined pursuant to Sections C and D below. Furthermore, all Developed Property shall then be classified as Residential or Commercial Property. C. MAXIMUM ANNUAL SPECIAL TAX RATE 1. Developed Property The Maximum Annual Special Tax for each Assessor's Parcel of Residential Property or Commercial Property shall be the greater of (1) the Assigned Special Tax described in Table 1 below or (2) the Backup Special Tax computed pursuant to b. below. a. Assigned SpeciaITax The Assigned Special Tax for each Assessor's Parcel of Developed Property is shown in Table 1. TABLE 1 Assigned Special Tax for Developed Property within Zone 3 and Zone 4 Land Use Class Description Assigned Special Tax 1 Residential Property $0.74 per square foot of Residential Floor Area 2 Commercial Property $6,000 per Acre b. Backup Special Tax When a Final Subdivision Map is recorded within Zone 3 or Zone 4, the Backup Special Tax for Assessor's Parcels of Developed Property classified as Residential Property or Commercial Property shall be determined as follows: City of Chula Vista Community Facilities District No. 06-1, Improvement Area B J~ EastLake - Land Swap Page 5 For each Assessor's Parcel of Residential Property or for each Assessor's Parcel of Undeveloped Property to be classified as Residential Property upon its development within the Final Subdivision Map area, the Backup Special Tax shall be the rate per Lot calculated according to the following formula: Zone 3 $20,563 x A L Zone 4 $6,667 x A L The terms above have the following meanings: B = Backup Special Tax per Lot in each Fiscal Year. A-- Acreage classified or to be classified as Residential Property in such Final Subdivision Map. L = Lots in the Final Subdivision Map which are classified or to be classified as Residential Property. For each Assessor's Parcel of Commercial Property or for each Assessor's Parcel of Undeveloped Property to be classified as Commercial Property within the Final Subdivision Map area, the Backup Special Tax shall be determined by multiplying $20,563 for Zone 3 and $6,667 for Zone 4 by the total Acreage of each Assessor's Parcels of the Commercial Property and Undeveloped Property to be classified as Commercial Property within the Final Subdivision Map area. Notwithstanding the foregoing, if Assessor's Parcels of Residential Property, Commercial Property or Undeveloped Property for which the Backup Special Tax has been determined are subsequently changed or modified by recordation of a new or amended Final Subdivision Map, then the Backup Special Tax applicable to such Assessor's Parcels shall be recalculated to equal the amount of Backup Special Tax that ~vould have been generated if such change did not take place. City of Chula Vista Community Facilities District No. 06-1, Improvement Area B /1~ ./'~..~ Page 6 EastLake - Land Swap 2. Undeveloped ProperD' The Maximum Annual Special Tax for each Assessor's Parcel classified, as Undeveloped Property shall be $20,563 per Acre for Zone 3 and $6,667 per Acre for Zone 4. D. METHOD OF APPORTIONMENT OF THE SPECIAL TAX Commencing with Fiscal Year 2003-04 and for each following Fiscal Year, the Council shall determine the Special Tax Requirement and shall levy the Special Tax until the amount of Special Taxes equals the Special Tax Requirement. The Special Tax shall be levied each Fiscal Year as follows: First: The Special Tax shall be levied Proportionately on each Assessor's Parcel of Developed Property within Zone 3 and Zone 4 at a rate up to 100% of the applicable Assigned Special Tax to satisfy the Special Tax Requirement. Second: If additional monies are needed to satisfy the Special Tax Requirement after the first step has been completed, the Special Tax shall be levied Proportionately on each Assessor's Parcel of Undeveloped Property within Zone 3 and Zone 4, excluding any Assessor's Parcels classified as Undeveloped Property pursuant to Section E, at a rate up to 100% of the Maximum Annual Special Tax for Undeveloped Property. Third: If additional monies are needed to satisfy the Special Tax Requirement after the first two steps have been completed, the Special Tax to be levied on each Assessor's Parcel of Developed Property whose Maximum Annual Special Tax is derived by the application of the Backup Special Tax shall be increased Proportionately from the Assigned Special Tax up to the Maximum Annual Special Tax for each such Assessor's Parcel. Fourth: If additional monies are needed to satisfy the Special Tax Requirement after the first three steps have been completed, then the Special Tax shall be levied Proportionately on each Assessor's Parcel classified as Undeveloped Property pursuant to Section E at a rate up to 100% of the Maximum Annual Special Tax for Undeveloped Property. Notwithstanding the above, under no circumstances will the Special Tax levied against any Assessor's Pamel of Residential Property be increased by more than ten percent per year as a consequence of delinquency or default in the payment of Special Taxes by the owner of any other Assessor's Parcel. City of Chula Vista Community Facilities District No. 06-I, Improvement Area B EastLake - Land Swap Pa~,e 7 E. EXEMPTIONS 1. The CFD Administrator shall classify the following Assessor Parcel(s) as exempt property: (i) Public Property, (ii) Property Owner Association Property, (iii) Community Purpose Facility Property, and (iv) Assessor's Parcels with public or utility easements making impractical their utilization for other than the purposes set forth in the easement; provided, however, that no such classification shall reduce the stun of all Taxable Property to less than 36.50 Acres in Zone 3 and 52.00 Acres in Zone 4. Assessor's Parcels which cannot be classified as exempt property because such classification would reduce the Acreage of all Taxable Property to less than 36.50 Acres in Zone 3 and 52.00 Acres in Zone 4 will be classified as Undeveloped Property and shall be taxed as such. Tax-exempt status for purposes of this paragraph will be assigned by the CFD Administrator in the chronological order in which property becomes exempt property. 3. The Maximum Annual Special Tax obligation for any property which would be classified as Public Property upon its transfer or dedication to a public agency but which catmot be classified as exempt property as described in paragraph 1 of Section F shall be prepaid in full by the seller pursuant to Section 1.1, prior to the transfer/dedication of such property to such public agency. Until the Maximum Annual Tax obligation for any such Public Property is prepaid, the property shall continue to be subject to the levy of the Special Tax as Undeveloped Property. F. REVIEW/APPEAL COMMITTEE Any landowner or resident who feels that the amount of the Special Tax levied on their Assessor's Parcel is in error shall first consult with the CFD Administrator regarding such error. If following such consultation, the CFD Administrator determines that an error has occurred; the CFD Administrator may amend the amount of the Special Tax levied on such Assessor's Parcel. If following such consultation and action (if any by the CFD Administrator), the landowner or resident believes such error still exists, such person may file a written notice with the City Clerk of the City appealing the amount of the Special Tax levied on such Assessor's Parcel. Upon the receipt of any such notice, the City Clerk shall forward a copy of such notice to the City Manager who shall establish as part of the proceedings and administration of CFD-06-I and a special three-member Review/Appeal Committee. The Review/Appeal Committee may establish such procedures, as it deems necessary to undertake the review of any such appeal. The Review/Appeal Committee shall interpret this Rate and Method of Apportionment and make determinations relative to the annual administration of the Special Tax and any landowner or resident appeals, as herein specified. The decision of the Review/Appeal Committee shall be f'mal and binding as to all persons. City of Chula Vista Community Facilities District No. 06-I, Improvement Area B /~ "~'~ EastLake - Land Swap ~ r ~ Page 8 G. MANNER OF COLLECTION The annual Special Tax shall be collected in the same manner and at the same time as ordinary ad valorem property taxes; provided, however, that CFD-06-I, Improvement Area B may directly bill the Special Tax, may collect Special Taxes at a different time or in a different manner if necessary to meet its financial obligations, and may covenant to foreclose and may actually foreclose on Assessor's Parcels of Taxable Property that are delinquent in the payment of Special Taxes. Tenders of Bonds may be accepted for payment of Special Taxes upon the terms and conditions established by the Council pursuant to the Act. However, the use of Bond tenders shall only be allowed on a case-by-case basis as specifically approved by the Council. H. PREPAYMENT OF SPECIAL TAX The following definition applies to this Section H: "CFD Public Facilities" means those public facilities authorized to be financed by CFD- 06-I Improvement Area B. "CFD Public Facilities Costs" means either $12.3 million, or such lower number as shall be determined either by (a) the CFD Administrator as sufficient to finance the CFD Public Facilities, or (b) the Council concurrently with a covenant that it will not issue any more Bonds to be secured by Special Taxes levied under this Rate and Method of Apportionment. "Construction Fund" means an account specifically identified in the Indenture to hold funds which are currently available for expenditure to acquire or construct the CFD Public Facilities. "Future Facilities Costs" means the CFD Public Facilities Costs minus that (a) portion of the CFD Public Facilities Costs previously funded (i) from the proceeds of all previously issued Bonds, (ii) fi.om interest earnings on the Construction Fund actually earned prior to the date of prepayment and (iii) directly fi-om Special Tax revenues and (b) the amount of the proceeds of all previously issued Bonds then on deposit in the Construction Fund. "Outstanding Bonds" means all previously issued Bonds which will remain outstanding a~er the first interest and/or principal payment date following the current Fiscal Year, excluding Bonds to be redeemed at a later date with the proceeds of prior prepayments of Maximum Annual Special Taxes. City of Chula Vista Community Facilities District No. 06-1, Improvement Area B/~ ~ ~ EastLake - Land Swap ' · Pa~,e 9 1. Prepayment in Full The Maximum Annual Special Tax obligation may only be prepaid and permanently satisfied for an Asscasor's Parcel of Developed Property, Undeveloped Property for which a building permit has been issued, or Public Property. Thc Maximum Annual Special Tax obligation applicable to such Assessor's Parcel may be fully prepaid and the obligation of the Assessor's Parcel to pay the Special Tax permanently satisfied as described herein; provided, however that a prepayment may be made only if there arc no delinquent Special Taxes with respect to such Assessor's Parcel at the time of prepayment. An owner of an Assessor's Parcel intending to prepay the Maximum Annual Special Tax obligation shall provide the CFD Administrator with written notice of intent to prepay. Within 30 days of receipt of such written notice, thc CFD Administrator shall notify such owner of thc Prepayment amount of such Assessor's Parcel. The CFD Administrator may charge a reasonable fee for providing this figure. The Prepayment Amount (defined below) shall be calculated as summarized below (capitalized terms as defined below): Bond Redemption Amount plus Redemption Premium plus Future Facilities Amount plus Defeasance Amount plus Prepayment Fees and Expenses less Reserve Fund Credit less Capitalized Interest Credit Total: equals Prepayment Amount As of the proposed date of prepayment, the Prepayment Amount (defined below) shall be calculated as follows: Step No.: 1. For Assessor's Parcels of Developed Property, compute the Maximum Annual Special Tax for the Assessor's Parcel to be prepaid. For Assessor's Parcels of Undeveloped Property for which a building permit has been issued to be prepaid, compute the Maximum Annual Special Tax for that Assessor's Parcel as though it was already designated as Developed Property, based upon the building permit issued for that Assessor's Parcel. For Assessor's Parcels of Public Property to be prepaid, compute the Maximum Annual Special Tax for that Assessor's Parcel using the Maximum Annual SpeciaI Tax for Undeveloped Property. 2. Divide the Maximum Annual Special Tax computed pursuant to paragraph 1 by the sum of the total expected Maximum Annual Special Tax revenues which may be levied within Improvement Area B excluding any Assessors Parcels for which the Maximum Annual Special Tax obligation has been previously prepaid. City of Chula Vista Community Facilities District No. 06-1, Improvement Area B //[~o -f /,~ EastLake - Land Swap " ~ ' '~ Pa~e 10 3. Multiply the quotient computed pursuant to paragraph 2 by the principal amount of the Outstanding Bonds to compute the amount of Outstanding Bonds to be retired and prepaid (the "Bond Redemption Amount"). 4. Multiply the Bond Redemption Amount computed pursuant to paragraph 3 by the applicable redemption premium on the next possible Bond call date, if any, on the Outstanding Bonds to be redeemed (the "Redemption Premium"). 5. If all the Bonds authorized to be issued for Improvement Area B have not been issued, compute the Future Facilities Costs. 6. Multiply the quotient computed pursuant to paragraph 2 by the amount determined pursuant to paragraph 5 to compute the amount of Future Facilities Costs to be allocated to such Assessor's Parcel (the "Future Facilities Amount'). 7. Compute the amount needed to pay interest on the Bond Redemption Amount from the first bond interest and/or principal payment date following the current Fiscal Year until the earliest redemption date for the Outstanding Bonds. 8. Confirm that no Special Tax delinquencies apply to such Assessor's Parcel. 9. Determine the Special Taxes levied on the Assessor's Parcel in the current Fiscal Year, which have not yet been paid. 10. Determine the fees and expenses of CFD-06-I, including but not limited to, the costs of computation of the prepayment, the costs to invest the prepayment proceeds, the costs of redeeming Bonds from the proceeds of such prepayment, and the cost of recording any notices to evidence the prepayment and the redemption (the "Prepayment Fees and Expenses"). 11. Compute the amount the CFD Administrator reasonably expects to derive from the reinvestment of the prepayment amount less the Prepayment Fees and Expenses, as determined pursuant to step 10, from the date of prepayment until the redemption date for the outstanding bonds to be redeemed with the prepayment. 12. Add the amounts computed pursuant to paragraphs 7 and 9 and subtract the amount computed pursuant to paragraph 11 (the "Defeasance Amount"). 13. The reserve fund credit (the "Reserve Fund Credit") shall equal the lesser of: (a) the expected reduction in the reserve requirement (as defined in the Indenture), if any, associated with the redemption of Outstanding Bonds as a result of the prepayment, or (b) the amount derived by subtracting the new reserve requirement (as defined in the Indenture) in effect after the redemption of Outstanding Bonds as a result of the prepayment from the balance in the reserve fund on the prepayment date, but in no event shall such amount be less than zero. City of Chula Vista Community Facilities District No. 06-1, Improvcment Area B /~ . f7 EastLake - Land Swap Page l I 14. If any capitalized interest for the Outstanding Bonds will not have been expended at the time of the first interest payment following the current Fiscal Year, a capitalized interest credit shall be calculated by multiplying the quotient computed pursuant to paragraph 2 by the expected balance in the capitalized interest fund after such first interest payment (the "Capitalized Interest Credit"). 15. The Maximum Annual Special Tax prepayment is equal to the sum of the mounts computed pursuant to paragraphs 3, 4, 6, 10, and 12, less the amounts computed pursuant to paragraphs 13 and 14 (the "Prepayment Amount"). 16. From the Prepayment Amount, the amounts computed pursuant to paragraphs 3, 4, 12, 13, and 14 shall be deposited into the appropriate fund as established under the Indenture and be used to retire Outstanding Bonds or make debt service payments. The amount computed pursuant to paragraph 10 shall be retained by CFD-06-I. The amount computed pursuant to paragraph 6 shall be deposited in the Construction Fund. The Prepayment Amount may be sufficient to redeem other than a $5,000 increment of Bonds. In such cases, the increment above $5,000 or integral multiple thereof will be retained in the appropriate fund established under the Indenture to be used with the next prepayment of bonds or to make debt service payments. As a result of the payment of the current Fiscal Year's Special Tax levy as determined under paragraph 9 above, the CFD Administrator shall remove the current Fiscal Year's Special Tax levy for such Assessor's Parcel from the County tax rolls. With respect to any Assessor's Parcel that is prepaid, the Council shall cause a suitable notice to be recorded in compliance with the Act, to indicate the prepayment of Special Taxes and the release of the Special Tax lien on such Assessor's Parcel, and the obligation of such Assessor's Parcel to pay the Special Tax shall cease. Notwithstanding the foregoing, no Special Tax prepayment shall be allowed unless the amount of Maximum Annual Special Taxes that may be levied on Taxable Property within Improvement Area B both prior to and after the proposed prepayment is at least 1.1 times the maximum annual debt service on all Outstanding Bonds. Tenders of Bonds in prepayment of Maximum Annual Special Taxes may be accepted upon the terms and conditions established by the Council pursuant to the Act. However, the use of Bond tenders shall only be allowed on a case-by-case basis as specifically approved by the Council. 2. Prepayment in Part The Maximum Annual Special Tax on an Assessor's Parcel of Developed Property or an Assessor's Parcel of Undeveloped Property for which a building permit has been issued City of Chula Vista Community Facilities District No. 06-I, Improvement Area B /~ EastLake - Land Swap Pa~. e 12 may be partially prepaid. The amount of the prepayment shall be calculated as in Section H 1; except that a partial prepayment shall be calculated according to the following formula: PP = (PE x F) + A These terms have the following meaning: PP = the partial prepayment PE = the Prepayment Amount calculated according to Section H. 1, minus Prepayment Fees and Expenses determined pursuant to Step 10. F = the percent by which the owner of the Assessor's Parcel(s) is partially prepaying the Maximum Annual Special Tax. A= the Prepayment Fees and Expenses determined pursuant to Step 10. The owner of an Assessor's Parcel who desires to partially prepay the Maximum Annual Special Tax shall notify the CFD Administrator of (i) such owner's intent to partially prepay the Maximum Annual Special Tax, (ii) the percentage by which the Maximum Annual Special Tax shall be prepaid, and (iii) the company or agency that will be acting as the escrow agent, if applicable. The CFD Administrator shall provide the owner with a statement of the amount required for the partial prepayment of the Maximum Annual Special Tax for an Assessor's Parcel within 30 days of the request and may charge a reasonable fee for providing this service. With respect to any Assessor's Parcel that is partially prepaid, the City shall (i) distribute the funds remitted to it according to Step 16 of Section H. 1, and (ii) indicate in the records of CFD-06-I, Improvement Area B that there has been a partial prepayment of the Maximum Annual Special Tax and that a portion of the Maximum Annual Special Tax equal to the outstanding percentage (1.00 - F) of the remaining Maximum Annual Special Tax shall continue to be authorized to be levied on such Assessor's Parcel pursuant to Section D. I. TERM OF MAXIMUM ANNUAL SPECIAL TAX The Maximum Annual Special Tax shall be levied commencing in Fiscal Year 2003-2004 to the extent necessary to fully satisfy the Special Tax Requirement and shall be levied for a period no longer than the 2043-2044 Fiscal Year. City of Chula Vista ~ Community Facilities District No. 06-1, Improvement A rea B //~ ';; '7 EastLake - Land Swap Pa~,e 13 RESOLUTION NO. 2003- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA, MAKING CERTAIN DETERMINATIONS AND AUTHORIZING THE SUBMITTAL OF THE LEVY OF SPECIAL TAXES TO THE QUALIFIED ELECTORS OF CERTAIN TERRITORY PROPOSED TO BE ANNEXED TO COMMUNITY FACILITIES DISTRICT NO. 06-| (EASTLAKE - WOODS, VISTAS AND LAND SWAP) AND IMPROVEMENT AREA B THERETO WHEREAS, thc City Council of the City of Chula Vista (the "City Council"), has previously declared its intention and held and conducted proceedings relating to the annexation of territory (the "Annexation Area") to an existing community facilities district and an improvement area thereto pursuant to the terms and provisions of the "Mello-Roos Community Facilities Act of 1982", being Chapter 2.5, Part 1, Division 2, Title 5 of the Government Codc of the State of California, and specifically Article 3.5 thereof (the "Act") and the City of Chula Vista Community Facilities District Ordinance enacted pursuant to the powers reserved by the City of Chula Vista under Sections 3, 5 and 7 of Article XI of the Constitution of the State of California (the ~Ordinance") (the Act and the Ordinance may be referred to collectively as the "Community Facilities District I,aw"). The existing Community Facilities District has been designated as COMMUNITY FACILITIES DISTRICT NO. 06-1 (EASTLAKE - WOODS, VISTAS AND LAND SWAP) (the "District") and the improvement area has been designated as IMPROVEMENT AREA B; and, WHEREAS, notice ora public hearing relating to the annexation of such territory to the District and hnprovement Area B thereto, the extent of such territory, the financing of certain public improvements and all other related matters has been given; and, WHEREAS, it has now been determined that written protests have not been received by 50% or more of the registered voters residing either within the Annexation Area or the District and/or property owners representing more than one-half (1/2) or more of the area of land within the Annexed Area or within the District; and, WHEREAS, inasmuch as there have been less than twelve (12) persons registered to vote within the Annexation Area for each of the 90 preceding days, this legislative body desires to submit the levy of the required special tax to the landowners of the Annexation Area, said landowners being the qualified electors as authorized by law. NOW, THEREFORE, BE IT RESOLVED AS FOLLOWS: SECTION 1. RECITALS The abovc recitals are all true and correct. SECTION 2. DETERMINATIONS It is determined by this City Council that: A. all proceedings to consider the annexation of the Annexation Area to the District and Improvement Area B thereto prior hereto were valid and taken in conformity with the requirements of law, and specifically the provisions of the Community Facilities District Law, and this finding is made 1 pursuant to the provisions and authorization of Section 53325.1 of the Government Code of the State of California; B. the annexation of the Annexation Area to the District and Improvement Area B thereto as proposed conforms with the City of Chula Vista Statement of Goals and Policies Regarding the Establishment of Community Facilities Districts; C. less than twelve (12) registered votcrs have resided within the Annexation Area for each of the ninety (90) days preceding the close of the public hearing and, consequently, the qualified electors shall be the landowners of the Annexation Area and each landowner who is the owner of record as of the close of the public hearing, or the authorized representative thereof, shall have one vote for each acre or portion of an acre of land that she or he owns within the Annexation Area; D. the time limit specified by the Community Facilities District Law for conducting an election to submit the levy of the special taxes to the qualified electors of the Annexation Area and the requirements for impartial analysis and ballot arguments have been waived with the unanimous consent of the qualified electors of the Annexation Area; E. the City Clerk, acting as the election official, has consented to conducting any required election on a date which is less than 125 days following the adoption of any resolution annexing the Annexation Area to the District and hnprovement Area B thereto; and F. the public facilities proposed to be financed from the proceeds of special taxes to be levied within the Annexation Area are necessary to meet increased demands placed upon the City of Chula Vista as a result of development and/or rehabilitation occurring in the Annexation Area. SECTION 3. BOUNDARIES OF ANNEXED AREA. The boundaries and parcels of land in the Annexation Area and on which special taxes are proposed to be levied in order to pay the costs and expenses for the public facilities described in Section 4 below are generally described as follows: All that property and territory proposed to be annexed to the District, as said property is shown on a map as previously approved by this legislative body, said map designated as Annexation Map No. 1 of Community Facilities District No. 06-1 (Eastlake - Woods, Vistas and Land Swap), a copy of which is on file in the Office of the City Clerk and shall remain open for public inspection. SECTION 4. DESCRIPTION OF PUBLIC FACILITIES. The facilities that are authorized to be financed by the District from the proceeds of special taxes levied within the District (the "Facilities") are generally described in Exhibit A attached hereto and incorporated herein by this reference. The District shall finance all direct, administrative and incidental annual costs and expenses neccssary to provide the Facilities. 2 The Facilities authorized to be financed by the District from the proceeds of special taxes levied within Improvement Area B are the types of facilities to be provided in the Annexation Area. If and to the extent possible the Facilitics shall be provided in common within Improvement Area B and the Annexation Area. SECTION 5. SPECIAL TAXES. Except where funds are otherwise available a special tax, secured by recordation ora continuing lien against all non-exempt real property in the Armexation Area, is hereby authorized, subject to voter approval, to be levied within the boundaries of the Annexation Area. For particulars as to the rate and method of apportionment of the special tax proposed to be levied within the Annexation Area, reference is made to thc attached and incorporated Exhibit "B" (the "Amended Rate and Method of Apportionment"), which sets forth in suft~cicnt detail the method of apportionment of the special tax to allow each landowner or resident within thc Annexation Area to estimate the maximmn amount that such person will have to pay. Such special tax shall be utilized to pay directly for the previously described types of facilities, to pay debt service on bonds issued by the District for Improvement Area B to assist in financing such types of facilities, to replenish any reserve fund established for such bonds, and to pay the costs of administering the bonds, the District and Improvement Area B. Thc special taxes herein authorized, to the extent possible, shall be collected in the same manner as ad valorem property taxes and shall be subject to the same penalties, procedure, sale and lien priority in any case o f delinquency as applicable for ad valorem taxes; provided, however, the District may utilize a direct billing procedure for any special taxes that cannot be collected on the County tax roll or may, by resolution, elect to collect the special taxes at a different time or in a different manner if necessary to meet its financial obligations. Under no circumstances will the special tax to be levied against any parcel ~vithin the Armexation Area used for private residential purposes be increased as a consequence of delinquency or default by the owner of any other parcel or parcels within hnprovement Area B by more than 10 percent. This legislative body further authorizes that special taxes may be prepaid and satisfied by payment of the prepayment amount calculated pursuant to the Amended Rate and Method of Apportionment. Upon recordation of a Notice of Special Tax Lien pursuant to Section 3114.5 of the Streets and Highways Code of the State of California against the property within the Annexation Area, a continuing lien to secure each levy of the special tax shall attach to all non-exempt real property in the Annexation Area and this lien shall continue iii force and effect until the special tax obligation is prepaid and permanently satisfied and the lien canceled in accordance with law or until collection of the tax by the legislative body ceases. SECTION 6. SPECIAL TAX ACCOUNTABILITY MEASURES. Pursuant to and in compliance with the provisions of Government Codc Section 50075.1, this City Council hereby establishes the following accountability measures pertaining to the levy by the District of the special taxes within the Annexation Area as described in Section 5 above: A. Each such special tax shall be levied for the specific purposes set forth in Section 5. above. B. The proceeds of the levy of each such special tax shall be applied only to the specific applicable purposes set forth in Section 5. above. C. The District shall establish a separate account into which the proceeds of the special taxes levied within Improvement Area B shall be deposited. D. The City Manager or his or her designee, acting for and on behalf of the District, shall annually file a report with the City Council as required pursuant to Government Code Section 50075.3. SECTION 7. ELECTION. The proposition related to the levy of the special tax shall be submitted to the qualified electors of the Annexation Area, said electors being the landowners, with each landowner having one (1) vote for each acre or portion thereof of land which he or she owns within said annexed territory. The special election shall be held on May 20, 2003, and such election shall be a special election to be conducted by the City Clerk (hereinafter "Election Official"). If the proposition for the levy of the special tax receives the approval of more than two-thirds (2/3) of the votes cast on the proposition, the special tax may be levied as provided for in this Resolution. SECTION 8. BALLOT The ballot proposal to be submitted to the qualified voters at the election shall generally be as follows: PROPOSITION A CiTY OF CHULA VISTA COMMUNITY FACILITIES DISTRICT NO. 06-I, IMPROVEMENT AREA B ANNEXATION MAP NO. 1 AUTHORIZATION FOR SPECIAL TAX LEVY Shall Community Facilities District No. 06-1 (Eastlake - Woods, Vistas and Land Swap) of the City of Chula Vista be attthorized to levy special taxes, subject to the accountability measures set forth in Resolution No. , within the territory identified in Annexation Map No. 1 to such district and Improvement Area B therein pursuant to the rate and method of apportionment of special taxes (the "Amended Rate and Method") set forth in such resolution for the purpose of paying debt service on bonds of such district issued for Improvement Area B, replenishing the reserve fund for such bonds, paying costs of administering such indebtedness and such district and paying directly for the types of facilities described in such resolution? SECTION 8. VOTE The appropriate mark placed in the line before the word "YES" shall be counted in favor of the adoption of the proposition, and the appropriate mark placed in the line before the word ~'NO" in the manner as authorized~ shall be coonted against the adoption of said proposition. 4 SECTION 9. ELECTION PROCEDURE This City Council hereby authorizes the Election Official to take any and all steps necessary for the holding of said election and ratifies any such steps previously taken by such Elcction Official which were necessary for the holding ofsuch election. Said Election Official shall pcrform and rcnder all services and proceedings incidental to and connected with the conduct of said election, and said services shall include, but not be limited to the following: A. Prepare and furnish to the election officers necessary election supplies for the conduct of the clection. B. Causc to be printed the requisite number of official ballots, tally sheets and other necessary forms. C. Furnish and address official ballots for the qualified electors of the Annexation Area. D. Cause the official ballots to be mailed and/or delivered, as required by law. E. Receive the returns of the election. F. Sort and assemble the election material and supplies in preparation for the canvassing of the returns. G. Canvass the returns of the election. H. Furnish a tabulation of the number of votes given in the election. I. Make all arrangements and take the necessary steps to pay all costs of the election incurred as a result of services performed by the District and pay costs and expenses of all election officials. J. Conduct and handle all other matters relating to the proceedings and conduct of the election in the manner and form as required by law. PREPARED BY: APPROVED AS TO FORM BY: Clifford Swanson Ann Moore Director of Engineering City Attorney 5 EXHIBIT "A" DESCRIPTION OF TYPES OF FACILITIES The types of public facilities authorized to be financed by the levy of special taxes within Improvement Area B shall include streets, landscaping within public rights-of-way, sewers and public utilities within Improvement Area B as may be authorized by the goals and policies of the City Council pertaining to the use of the Community Facilities District Law. A-I CITY COUNCIL AGENDA STATEMENT Item: ! ~/ Meeting Date: 05/13/03 ITEM TITLE: Public Hearing PCM 95-017 and GPA 03-07; Consideration of the Final Chula Vista Multiple Species Conservation Program (MSCP) Subarea Plan, Final Supplemental Environmental Impact Report and Environmental Assessment (EIR No. 03-01), Revised Mitigation and Implementing Agreement Monitoring Program, Amendment to the Chula Vista General Plan, Draft Implementing Agreement between the City of Chula Vista and the United States Fish and Wildlife Service and the California Department of Fish and Game, and Introduction of Draft Implementing Ordinances. Public Hearing PCM 02-11 and PCS 92-02A; Consideration of an Amendment the Salt Creek Ranch General Development Plan, Sectional Planning Area Plan and Tentative Map (C.V.T. Map No 92-02A) and supporting regulatory documents for the Rolling Hills Ranch project (previously known as "Salt Creek"), and Addendum to Final EIR No. 91- 03 for the Salt Creek Ranch Sectional Planning Area Plan. (4/Sths Vote: Yes No X~ (Staff Recommendation: Council conduct the public hearing and adopt the matters as set forth under RECOMMENDATIONS) BY: Director of Planning and Buildin~.g_~~'~ SUBMITTED REVIEWED BY: City Manager ~r ~t~' ~ The Final Chula Vista MSCP Subarea Plan ("MSCP Subarea Plan") has been prepared to implement the MSCP Subregional Plan within the City of Chula Vista. In addition to the MSCP Subarea Plan, an Implementing Agreement has been drafted between the City and the United States Fish and Wildlife Service and the California Department of Fish and Game ("Wildlife Agencies"). The Implementing Agreement, along with the MSCP Subarea Plan, forms the basis for the granting of incidental take permits by the Wildlife Agencies for the incidental "take" of the 86 species covered by the MSCP Subarea Plan. Also provided are several implementing actions that will need to be considered concurrently with the adoption and approval of the MSCP Subarea Plan and Implementing Agreement. An amendment to the City of Chula Vista General Plan is proposed to incorporate the MSCP Subarea Plan as a new element of the General Plan (Part 2, Chapter 7A). In addition, Draft Implementing Ordinances have been prepared to ensure implementation of the MSCP Subarea Plan. Amendments to the Salt Creek Ranch General Development Plan (GDP), Sectional Planning Area (SPA) Plan and Tentative Map (C.V.T. Map No 92-02A) for the Rolling Hills Ranch project (previously known as "Salt Creek") are also proposed in order to implement the MSCP Subarea Plan. Page 2, Item Meeting Date 05/13/03 Environmental Status The City's Environmental Review Coordinator has determined that any impacts associated with the approval of the MSCP Subarea Plan and corresponding implementing documents have been evaluated under Final Supplemental Environmental Impact Report (SEIR) and Environmental Assessment tEA) No. 03-01. The Final SEIR and EA incorporate by reference the previously certified Final EIR/EIS prepared for thc MSCP Subregional Plan (January 1997) and the Addendum to the Final EIR/EIS (October 2000). The Final EIR/EIS, the Addendum to the Final EIR/EIS and the Mitigation and Implementing Agreement Monitoring Program were previously reviewed and considered and/or certified by the City Council in October 2000. The City's Environmental Review Coordinator has also determined that any impacts associated with the approval of the amendments to the Salt Creek Ranch GDP, SPA Plan and Tentative Map (C.V.T 92-02A) have been evaluated under Addendum to the Final Supplemental EIR No. 91-03 for the Salt Creek Ranch SPA Plan. RECOMMENDATION: That the City Council adopt: Resolution of the City Council of the City of Chula Vista to take the following actions: A. Certifying the SEIR and EA No. 03-01 prepared for the City of Chula Vista MSCP Subarea Plan and approve the Revised Mitigation and Implementing Agreement Monitoring Program, dated February 2003. B. MSCP Policy Actions 1) Adopt the MSCP Subarea Plan, dated February 2003, conditioned on the following: a) the future execution by all parties of an Implementing Agreement substantially in the form of the Implementing Agreement, dated February 2003; b) the issuance of a Biological Opinion, by the United States Fish and Wildlife Service, consistent with the MSCP Subarea Plan and the Implementing Agreement, dated February 2003; and c) the issuance of Take Authorizations with conditions that are consistent with the MSCP Subarea Plan and the Implementing Agreement, dated February 2003; 2) Adopt the Implementing Agreement, dated February 2003. Authorize the May°r to execute the Implementing Agreement in substantial form of the Implementing Agreement, dated February 2003, with minor changes approved by the City Attorney and City Manager. The effectiveness of said Agreement is conditioned upon the issuance of Take Authorizations and execution of the Implementing Agreement by the Wildlife Agencies; Page 3, Item t ~? Meeting Date 05/13/03 3) Amend the Chula Vista General Plan to incorporate the MSCP Subarea Plan as a new element of the General Plan (Part 2, Chapter 7A). C. MSCP Implementation Actions Imroduce the following MSCP Implementing Ordinances: a) Ordinance No. Repealing Section 17.30 of the Chula Vista Municipal Code relative to the Interim Habitat Loss Permit Ordinance and introduce Section 17.30 the Otay Ranch Grazing Ordinance; and b) Ordinance No. Establishing the Habitat Loss and Incidental Take Ordinance as Section 17.35 of the City of Chula Vista Municipal Code; and c) Ordinance No. Amending Section 15.04 o f the City of Chula Vista Municipal Code (Excavation, Grading and Fills Ordinance). Resolution of the City Council of the City of Chula Vista to take the following actions: A. Consider the Addendum to Final SEIR No. 91-03 for the Salt Creek Ranch project (n°w known as Rolling Hills Ranch); and B. Amend the Salt Creek Ranch General Development Plan, Sectional Planning Area Plan and Tentative Map (C.V.T. Map No 92-02A) for the Rolling Hills Ranch project (previously known as "Salt Creek") to implement the MSCP Subarea Plan; and C. Introduce an Ordinance amending the Salt Creek Ranch Planned Community District Regulations. BOARDS/COMMISSIONS RECOMMENDATION: The Resource Conservation Commission held a meeting on Monday, December 2, 2002 to discuss and make a recommendation on the draft MSCP Subarea Plan. The RCC recommended certification of the SEIR and EA and adoption of the MSCP Subarea Plan. On April 23, 2003, the City of Chula Vista Planning Commission held a public hearing to consider the MSCP Subarea Plan, implementing documents and associated SEIR and EA No. 03-01 for a recommendation to the City Council. The Planning Commission voted 6-0 to recommend that the City Council adopt the MSCP Subarea Plan and implementing documents and certify the associated envirorLmental documents. The Plarming Commission also voted 6-0 to recommend that the City Council consider the associated Addendum to Final SEIR No. 91-03 for the Salt Creek Ranch project and amend to the Salt Creek Ranch GDP, SPA Plan, implementing regulations and Tentative Map. DISCUSSION: This report provides the City Council with an overview of the MSCP Subarea Plan (February 2003) and focuses on the policy issues resolved and major changes to the MSCP Subarea Plan since the Page 4, Item [~ Meeting Date 05/13/03 Planning Commission a~td City Council's conditional approval of the City's MSCP Subarea Plan on October 17, 2000. Subsequent to that hearing, the City decided to pursue "coverage" for an additional federally listed species, the Quino checkerspot butterfly, due to the potential impact that the proposed critical habitat designation could have on future public and private project developments within the City of Chula Vista. This species was not previously covered under the MSCP Subregional Plan or the City's previous draft MSCP Subarea Plan. The addition of the Quino checkerspot butterfly to the list of proposed covered species required the preparation and evaluation of additional technical biological information and extensive discussions with the Wildlife Agencies. Staff also worked with the Wildlife Agencies towards resolving a number of outstanding issues raised by the Wildlife Agencies after the joint Planning Commission and City Council hearing in October 2000. Upon completion of the revisions to the MSCP Subarea Plan and preparation of the associated SEIR and EA to address the MSCP Subarea Plan changes, the documents were noticed in the Federal Register and circulated for a 60-day public comment period. Upon completion of the public review period, staff prepared responses to approximately 135 comments and prepared the Final MSCP Subarea Plan and Final SEIR and EA. Following public hearing's by the Planning Commission and City Council, the Wildlife Agencies will be prepared to complete the permit process and issue Take Authorizations to the City within 30-60 days. A. Background The MSCP is a comprehensive, long-term habitat conservation plan developed to address the needs of multiple species and the preservation of natural vegetation communities in south San Diego County. The MSCP Subregional Plan was adopted by the City of San Diego and County of San Diego in 1997 and conditionally approved by the City of Chula Vista in October 2000. The MSCP Subregional Plan addresses the potential impacts of urban growth, natural habitat loss and species endangerment, and creates a plan to mitigate for the potential loss of "covered species" and their habitat due to the direct impacts of future development of both public and private lands within the MSCP study area. The MSCP Subarea Plan for the City of Chula Vista is the policy document through which the MSCP Subregional Plan is implemented within the City's jurisdiction. The MSCP Subarea Plan will form the basis for federal and state permits, specific for and issued to the City of Chula Vista, to allow development where impacts to sensitive species habitat could occur. Existing federal and state permitting requirements for listed species will be delegated to the City, thus streamlining the process. In addition, the MSCP Subarea Plan provides coverage for unlisted species which may potentially be listed in the future, thereby affording added assurance that development can proceed in a planned and timely manner in the future. By comprehensively addressing the needs of multiple species, the City will avoid costly delays that could occur while responding to new individual species listings. Over the last several years, the City has been working on the preparation ofa MSCP Subarea Plan, Implementing Agreement, and associated implementing ordinances in order to receive Take Authorizations from the Wildlife Agencies. In 1996, City Council authorized staff to forward a /7'¢ Page 5, Item [7 Meeting Date 05/13/03 Draft MSCP Subarea Plan (" 1996 Subarea Plan") for inclusion in the Draft MSCP Subregional Plan. The U.S. Fish and Wildlife Service and the City of San Diego, acting as lead agencies, considered the 1996 Subarea Plan in their environmental review of the Draft MSCP Subregional Plan. The 1996 Subarea Plan was then incorporated into the Final MSCP Subregional Plan as well as the Final EIR/EIS. In April 1999, the City embarked on revising the original 1996 Subarea Plan and hired MNA Consulting to assist the City in completing the MSCP Subarea Plan. The revisions to the 1996 Subarea Plan focused primarily on preserve design issues related to the University site to provide greater certainty of both the development and open space footprint. In February 2000, a revised draft Subarea Plan which reflected resolution of negotiations with the Wildlife Agencies was distributed for public review. The City received numerous comments on the draft MSCP Subarea Plan which were incorporated into a revised draft MSCP Subarea Plan. The draft MSCP Subarea Plan (dated September 11,2000) was conditionally approved at a joint meeting with the Planning Commission and City Council on October 17, 2000. B. Major Changes to the Chula Vista MSCP Subarea Plan - Post October 2000 A number of changes have occurred since the draft MSCP Subarea Plan was conditionally approved in October 2000. The following discussion provides a brief summary of the major changes that have been incorporated into the Final MSCP Subarea Plan that is being presented to the City Council for approval. L Additional Conservation Additional lands have been conserved or identified for conservation in the City's proposed Preserve for various reasons. The following is a summary of the additional conservation areas: · Inverted "L" Property - The northern portion (139.25-acres) of the Inverted "L" property has been purchased by the Otay Water District for siting of a reservoir facility and conservation purposes. The southern, 175.8-acreportionofthelnverted"L"propertyhas been acquired by the USFWS for conservation purposes. · San Miguel Ranch Annexation- In December 2000, following the October 2000 MSCP hearing, the southern parcel of the San Miguel Ranch property was annexed to the City of Chula Vista. A final Annexation Agreement was negotiated between the Wildlife Agencies, the County of San Diego, the City of Chula Vista and the property owner Trimark. The Annexation Agreement resulted in conservation of 186 acres on the southern parcel within the City's jurisdiction as well as conservation of 1,852 acres on the northern parcel within the County. · Rolling Hills Ranch and Bella Lago - Revisions have been made to the preserve boundaries on both the Rolling Hills Ranch and Bella Lago projects, resulting in additional conservation of Otay tarplant (beyond the previously anticipated conservation Page 6, Item I~ Meeting Date 05/13/03 levels) and expanded conservation along the western ridgeline in Subarea III of Rolling Hills Ranch to avoid impacts to the Quino checkerspot butterfly. An amendment to the approved Salt Creek Ranch (now known as Rolling Hills Ranch) GDP, SPA Plan and Tentative Map is proposed in order to implement the MSCP Subarea Plan. The area affected is entirely within Subarea III, the remaining undeveloped easternmost portion of Rolling Hills Ranch. The following is a brief summary of the modifications of the project that will make it consistent with the Final MSCP Subarea Plan. The specific amendments to the GDP, SPA and Tentative Map for Rolling Hills Ranch Subarea III include: a) elimination of Neighborhood 13 and replacing this area as MSCP Preserve; b) reduction of the minimum lot size requirement for Neighborhood 9 from 15,000 square feet to 10,000 square feet (in order to accommodate 36 units from former Neighborhood 13 to be transferred to Neighborhood 9); c) adjustment to the land use boundaries of Neighborhoods 9, 10A, 1 OB, 11 and 12; and d) provision of an easement that would accommodate a 128 foot wide right-of-way for the furore alignment of Proctor Valley Road from the easternmost edge of Neighborhood 9 to the Rolling Hills Ranch eastern boundary, and removal of street connections from Neighborhood 9 to 13 and from Neighborhood 11 to the northerly portion ofBella Lago. The resulting amending Tentative Map for Subarea III will accommodate 425 single-family units, substantially the same number of units as the original project. 2. Coverage for the Quino Checkerspot Butterfly In early 2001, the USFWS distributed a Draft Recovery Plan and proposed critical habitat designation for the federally endangered Quino checkerspot butterfly. At the time that the MSCP Subregional Plan was being developed and approved there was insufficient information on the extent and range of the species, and therefore the species was not a "covered" species under the MSCP Subregional Plan nor the 1996 Subarea Plan. However, due to the potential ramifications of the proposed critical habitat designation on planned development within the City's jurisdiction, the City decided to pursue coverage of this species under its Subarea Plan. In order to gain coverage, the City had to prepare a conservation strategy for the Quino checkerspot butterfly. The following is a brief summary of the major components of the draft conservation strategy for the Quino checkerspot butterfly that have been incorporated into the Final MSCP Subarea Plan and that were analyzed in the SEIR and EA. The draft conservation strategy proposes to: · Preserve all areas designated as Quino checkerspot butterfly critical habitat within the City of Chula Vista; · Maintain connectivity along key corridors within MSCP Subarea; · Provide management strategies for the benefit of Quino checkerspot butterfly, including restoration/enhancement of Quino checkerspot butterfly habitat; and · Establish Facilities Siting Criteria to minimize impacts to Quino checkerspot butterfly habitat. Page 7, Item [4 Meeting Date 05/13/03 To date, the City ofChula Vista's MSCP Subarea Plan would be the only plan in San Diego County to provide extended coverage for this federally endangered species. 3. Implementing Actions The previous consideration of the draft MSCP Subarea Plan, in October 2000, was conditioned upon the subsequent preparation and approval of a number of implementing actions. The Wildlife Agencies were resolute that in order for the City to receive Take Authorizations implementing documents would need to be prepared concurrent with the MSCP Subarea Plan. Since October 2000, staff has worked with the Wildlife Agencies to develop an Implementing Agreement which reflects the requirements of the Subarea Plan, and has also drafted three implementing ordinances, as described further below, to ensure that the Subarea Plan is implemented as expected. In addition to the amendment to the Chula Vista General Plan to incorporate the MSCP Subarea Plan as a new element ~Part 2, Chapter 7A) of the General Plan, the following implementing actions are proposed concurrent with the adoption of the MSCP Subarea Plan: a) Implementing Agreement The Implementing Agreement is the contract between the City and the Wildlife Agencies and forms the basis for the granting of the Take Authorizations from the Wildlife Agencies. The purpose of the agreement is to ensure implementation of the MSCP Subarea Plan, bind each of the parties to perform the obligations, responsibilities, and tasks assigned, and to provide remedies and recourse should any of the parties fail to perform. The Implementing Agreement, dated February 2003, has been negotiated with the Wildlife Agencies and incorporates the major provisions of the MSCP Subarea Plan. The Implementing Agreement, dated February 2003, was based on the Model Implementing Agreement developed with the MSCP Subregional Plan and has been utilized as the basic Agreement for all participating jurisdictions. b) Implementing Ordinances - The City has drafted implementing ordinances to ensure the successful implementation of the MSCP Subarea Plan. The City's Excavation, Grading and Fills Ordinance ("Grading" Ordinance) has been revised and includes regulations for the clearing and grubbing of sensitive biological resources, requires that federal and state permits for wetlands be issued prior to issuance of a grading permit for projects with impacts to wetland habitats or species, and provides exemptions for projects less than one-acre in size. In addition to the revisions to the Grading Ordinance, two new ordinances, the Habitat Loss and Incidental Take (HLIT) Ordinance and the Otay Ranch Grazing Ordinance, have also been prepared as implementing tools for the Subarea Plan. The HLIT Ordinance will establish mitigation standards and regulate development projects, located outside of Covered Projects, which may have an impact on Covered Species and sensitive habitat. The Otay Ranch Grazing Ordinance will implement the Otay Ranch Range Management Plan, included in the adopted Otay Ranch - Resource Management Plan (Phase 2) and ensure that grazing activities are consistent with the adopted policies. /7 7 Page 8, Item,/? Meeting Date 05/13/03 4. Other Resolved Policy Issues Changed Circumstances Subsequent to the conditional approval of the draft MSCP Subarea Plan in October 2000, the City was asked by the Wildlife Agencies to further define "Changed Circumstances" under the City's Subarea Plan. Changed Circumstances are generally considered foreseeable events that could result in an adverse effect on Covered Species and their habitat and thus should be planned and funded for in the Subarea Plan. The request from the Wildlife Agencies had the potential to place an overwhelming financial burden on the City related to responding to Changed Circumstances. Through extensive research and subsequent negotiations with the Wildlife Agencies, the Final MSCP Subarea Plan, dated February 2003, now clearly defines the scope of Changed Circumstances as well as the extent of planned responses to Changed Circumstances. Changed Circumstances are limited to repetitive fire, flood, drought, invasion of exotic species and future listing of non-covered species. The MSCP Subarea Plan also addresses "Unforeseen Circumstances" which are generally events that affect a species or geographic area covered by a habitat conservation plan that could not be reasonably anticipated at the time the habitat conservation plan was negotiated and results in substantial and adverse change in the status of the covered species. In the case of an Unfbreseen Circumstance, neither the City nor its third-party beneficiaries would be required to provide additionai land, land restrictions, or financial compensation beyond that required by the MSCP Subarea Plan at the time the Take Authorizations are issued without prior consent. The Wildlife Agencies would be responsible to respond to and fund responses to Unforeseen Circumstances. Wetlands The Wildlife Agencies requested that the City take a more comprehensive approach to wetland protection in order to receive coverage for wetland dependent species. The change in position was primarily based on recent litigation that the Wildlife Agencies felt weakened existing federal wetlands regulations. The Wildlife Agencies indicated that in order for the City to receive coverage for wetland dependent species, the City must assure that wetlands are provided sufficient local protection, in the absence of federal and state law. The MSCP Subarea Plan proposes a comprehensive approach, outlined as the "Wetlands Protection Program", which will assure conservation of wetland habitat and thereby allow coverage of wetland dependent species. The program utilizes both the existing California Environmental Quality Act (CEQA) review process and new wetland regulations for development areas outside of Covered Projects. The Subarea Plan emphasizes avoidance and minimization of impacts and also establishes wetland mitigation ratios for any unavoidable impacts to wetlands. As is currently the case today, specific mitigation measures will be developed during the project's CEQA review and incorporated into the project's Mitigation Monitoring and Reporting Program (MMRP). The MMRP will provide the enforcement mechanism to ensure the wetland mitigation measures are carried forward during project construction. Finally, the City also proposes as part of the revisions to the Excavation, Page 9, Item t '/ Meeting Date 05/13/03 Grading and Fills Ordinance to provide processing and review oversight of approved project related wetland mitigation measures. The following flowchart summarizes the review process for the City's proposed Wetlands Protection Program: WETLANDS PROTECTION PROGRAM Covered HLIT Projects Projects CEQA REVIEW CEQA REVIEW · Demonstrate impacts to wetlands · Demonstrate impacts to wetlands avoided to greatest extent practicable avoided to greatest extent practicable · Determine wetland impacts and Determine wetland impacts and appropriate mitigation consistent with appropriate mitigation consistent with Wetland Mitigation Ratios (Table 5-6 Wetland Mitigation Ratios (Table 5-6 of of Subarea Plan) Subarea Plan) Mitigation Monitoring and Reporting Mitigation Monitoring and Reporting Program Program required as condition of required as condition of HLIT Permit SPA/Precise Plan/TM I GRADING PERMIT Prior to Issuance of Grading Permit Review for Compliance with HLIT or SPA/Precise Plan/TM Preserve Management and Associated Funding Management of the Preserve is an important element in the long-term success of the MSCP program. An overall goal is to ensure that the biological values of natural resources, where land is set aside as part of the MSCP, are maintained over time. Along with the approval of the MSCP Subarea Plan and Implementing Agreement will be a commitment from the City that lands set aside as Preserve will be managed and monitored. Land may be managed by the City, the Otay Ranch Preserve Owner Manager, or other management entity deemed acceptable to the City. In addition, Federal and State agencies will maintain, manage and monitor their land holdings. Page 10, Item ~ ' Meeting Date 05/13/03 The MSCP Subarea Plan provides for an overall management framework for the Preserve and is broken down into the three distinct Preserve Management Areas (PMAs) described as Central City, North City and Otay Ranch. The management framework also identifies a schedule for the preparation of management plans and studies to ensure timely implementation of the MSCP Subarea Plan. Preserve management wilI include short-term management activities as well as long-term management tasks. Area specific management directives have been or will be developed for logical discrete areas of the preserve. The ASMDs will provide the future preserve manager with the specific blueprint on how to manage the various components of the Preserve, including habitat and species unique to particular areas of the Preserve. Biological monitoring of selected target species and habitats will also be conducted pursuant to the MSCP Subregional Biological Monitoring Plan (Ogden 1996) and the Otay Ranch RMP. In addition, a monitoring strategy has been developed for the Quino checkerspot butterfly. Monitoring for the Quino checkerspot butterfly includes a three-pronged approach that will consist of: 1) monitoring of overall habitat quality; 2) monitoring the effectiveness of Quino checkerspot butterfly habitat enhancement/restoration efforts; and 3) limited census monitoring of Quino checkerspot butterfly populations. Funding for the management activities within the three PMAs has been identified in the MSCP Subarea Plan and varies based on the type and intensity of management activities anticipated for the individual PMAs (e.g. Quino checkerspot butterfly habitat restoration in the Otay Ranch PMA). For the Central City PMA, funding of the existing open space districts averages approximately $54 per acre. The existing management budget will be augmented with additional monies to provide enhancement of the currently on-going management and maintenance activities. The City proposes to establish the Biological Enhancement Program (BEP) with an annual budget of $20,000 resulting in an approximate increase of $10 per acre over the Central City PMA. A variety of funding sources may be used to insure the annual funding of the BEP. Such funding will include: grants, Federal and State funding programs, funds that may be made available through the Otay Valley Regional Park JEPA, other regional Preserve management funding sources, the City General Fund revenue and/or other local funding sources. For as long as the City has Take Authority, the BEP will increase the average per acre budget in the Central City by approximately $10.00 to a total average of $64.00 per acre (exclusive of administrative costs) and ~vill fund additional management activities identified and prioritized by the ASMDs being prepared for the Central City PMA. In the North City and Otay Ranch PMAs, community facilities districts or other financing mechanisms will be established concurrent with on-going development. Within Otay Ranch, the existing CFD will annex additional areas as lands are conveyed into the Preserve concurrent with development as anticipated by the RMP. The average per acre cost for management is estimated to be about $55 per acre. Added funding for biological management within the North City and Otay Ranch will be derived through establishment of a Preserve Management Endowment Fund (PMEF). The PMEF will create an endowment program of up to $1.85 million, funded through capital improvement programs associated with several large planned facilities which are essential to the future development of both Otay Ranch and North City. The PMEF will be funded incrementally, simultaneous with the commencement of construction of four key Planned Facilities: the Salt Creek Page 11, Item Meeting Date 05/13/03 trunk sewer line (under construction), the Wolf Canyon trunk sewer line, Main Street and La Media Road. Although the endowment contributions are required to be provided simultaneous with commencement of construction of each of these four infrastructure projects, the endowment program is established in consideration for all Planned Facilities described in the Subarea Plan. The PMEF will add up to $33.00 per acre of enhanced funding to the Otay Ranch and North City PMAs, creating a total available budget of approximately $88.00 per acre (exclusive of administrative costs) dedicated to Preserve management activities in these areas. The following flowchart summarizes the City's proposed long-term funding strategy for management of the Preserve: Long-Term Funding For Preserve Management Central Cit[ PMA North City and Ot~y Ranch PMAs / / Primary Biological Primary Preserve Management E~hancemcnt Management Management $54/ac Program $55/ac Endowment $10/ac Fund $33/ac North City Otay Ranch Existing Open Space Annual [ I Districts Budget New CFD 97-2 Endowment Financing I I Mechanism [ S64/Acre I $88/Acre In addition to the above management funding commitments, the MSCP Subarea Plan also outlines funding strategies for Changed Circumstance events. The adaptive management strategy built into the City's Framework Management Plan would provide sufficient funding for all of the Changed Circumstance events, except Repetitive Fire, and therefore no further funding requirements are proposed for these other events. The Subarea Plan defines a Repetitive Fire as a repeat fire event in the same location within a specified regrowth period and limited in extent. Repetitive fires could have negative effects on the Preserve due to potential inability for the habitat to naturally regenerate. The restoration efforts associated with a Repetitive Fire event could be extensive; therefore, staff is recommending that for Repetitive Fire (only), a new funding source be created to assure adequate funding for any necessary remedial actions, such as weeding and restoration of habitat. This funding Meeting Date 05/13/03 source would be above and beyond existing and proposed Preserve management funding programs described above. The Repetitive Fire "Restoration Reserve Fund" will be funded through proportionate annual contributions from reserve funds in existing and new open space financing districts. Such reserve funds are established to enable the city to fund, among other needs, unanticipated maintenance requirements, such as repetitive fires. Once established, the fund will grow through interest earnings and, if funds are drawn for the purpose of funding program requirements, the fund will be replenished through continued annual open space financing district reserve contributions. This method would spread the costs associated with unanticipated maintenance due to repetitive fires over the entire preserve with the exception of lands owned and managed by federal and/or state agencies. Costs are anticipated to be approximately $8.25 per habitat acre which would then be spread on a per unit basis within the individual assessment boundaries. For existing open space districts, any cost increase would not exceed the limits established by existing assessments. Future open space districts would need to consider this armual commitment when establishing overall costs. C. Key Features of the Final MSCP Subarea Plan The MSCP Subarea Plan has been prepared to implement the MSCP Subregional Plan within the City of Chula Vista. The MSCP Subarea Plan will form the basis for a Federal 10(a)(1)(B) permit and a State 2835 permit/NCCP Authorization for the incidental "take" of the 86 species covered by the Chula Vista MSCP Subarea Plan. The MSCP Subarea Plan encompasses approximately 33,045 acres located within the incorporated limits of the City. The MSCP Subarea Plan proposes to create a city-wide open space system of approximately 4,993 acres within the City limits with an additional 4,250 acres conserved outside the City of Chula Vista's Subarea primarily as a result of development of Covered Projects within the City's Subarea. Total conservation estimates will be approximately 9,243 acres within the Subregional MSCP. The Preserve will provide conservation for 86 "covered" species, one more than either the City or County of San Diego's MSCP Subarea Plans. Additional key features of the MSCP Subarea Plan include: The Preserve is 99% hard lined which provides greater certainty as to where development and open space preservation will occur; · The majority of the Preserve will be assembled through development exactions resulting in minimal public acquisition; · The Subarea Plan creates a Wetlands Protection Program allowing conservation of nearly 99% of the wetlands in the Preserve; · Assures long term management funding of nearly 5,000 acres; · Establishes funding, through the Preserve Management Endowment Fund, for the habitat enhancement, restoration and management for the Quino checkerspot butterfly. Page 13, Item ] ? Meeting Date 05/13/03 Preserve Assembly The City's MSCP Preserve will be comprised of existing publicly owned open space and other lands that will be conveyed as open space in conjunction with the development entitlement process. The majority of the Preserve will be assembled through "Covered Projects" and their associated conditions of coverage. Covered Projects are those developments which have specifically delineated areas for development and 100% conservation. Preserve boundaries have been established on a project-by-project basis after evaluation of habitat and species data, and review by the Wildlife Agencies. Covered Projects include Rolling Hills Ranch, Bella Lago, Otay Ranch (including the University Site), and San Miguel Ranch. Coverage for these projects is based on assured dedication of open space, implementation of project-specific mitigation programs, and implementation of specific management directives identified in Table 3-5 of the MSCP Subregional Plan (and incorporated as Appendix A of the MSCP Subarea Plan). In addition, a small portion of the planned Preserve will be assembled in areas designated as 75- 100% Conservation Areas. These areas consist primarily of private landholdings located within the Otay River Valley area, which based an previous biological assessments, have been determined to contain sensitive habitats primarily associated with the river habitat. Development in these areas will be subject to the HLIT Ordinance which allows development of 25% of the least sensitive area of the site, assuring a minimum conservation level of 75% of the parcel. A number of these properties are being considered for acquisition through the Otay Valley Regional Park land acquisition efforts. A minor component of the Preserve will be assembled through mitigation associated with Development Areas outside of Covered Projects. Compliance with the new HLIT Ordinance will be required for all projects greater than one acre in size in mapped development areas outside of Covered Projects. The ordinance will require biological evaluation of all resources onsite. Encroachment into narrow endemic species and wetlands will be limited and any impact to wetlands or listed non-covered species must be in accordance with applicable federal and state laws. Mitigation for impacts will be guided to lands within the proposed Preserve. The exact delineation of Preserve and development areas was not resolved for all properties within the Chula Vista Subarea. Approximately 137 acres are designated as Minor Amendment Areas and will require completion of a Subarea Plan amendment and written concurrence from the Wildlife Agencies prior to take authorization from the City of Chula Vista. Further, approximately 7 acres are designated as a Major Amendment Area. Development of this area will require completion ora Subarea Plan amendment and approval of a Habitat Conservation Plan through the Wildlife Agencies before take authorization is issued from the Wildlife Agencies to the City for this area. For all areas designated as preserve, the Subarea Plan provides that boundary adjustments to the Preserve may be made without amendment to the Subarea Plan, if certain equivalency findings can be made. Such findings are to be made by the City and must have concurrence by the Wildlife Page 14, Item [ -? Meeting Date 05/13/03 Agencies. The Subarea Plan contains language that differentiates between "mapping conflicts" and "boundary adjustments," and outlines a process for notifying the Wildlife Agencies. Land Uses Within the Preserve Land uses within the Preserve are limited to those uses which are considered compatible or conditionally compatible with the need to permanently protect Covered Species and their habitats. All existing uses allowed by the current underlying zone on a property, as well as any uses designated as compatible will continue to be allowed until such time as the property has been conveyed into the Preserve or is subject to an agreement with the City through an offer of dedication. The Subarea Plan identifies compatible uses ( e.g. public access and recreation, emergency, safety and police services, preserve management, and scientific and biologic activities) as well as those uses which are considered conditionally compatible. Conditionally compatible uses include mining, extraction and processing facilities, flood control and planned and future facilities (e.g. roads, sewer/water infrastructure, trails, ancillary park uses, utilities). Two categories of facilities are contemplated under the Subarea Plan. Planned Facilities are those that have been specifically identified by the City of Chula Vista to serve development approved by the City. Planned Facilities will be permitted in the preserve through take authorization pursuant to the Subarea Plan, subject only to narrow endemic species restrictions. Future facilities are those facilities that may be necessary to support City services or planned development in the future, or are ancillary to Planned Facilities. Because future facility needs cannot be specified at this time, Future Facilities have been defined by facility categories. Impacts to covered species and habitats from Future Facilities will be limited as described in the Subarea Plan. Overall, the provisions of the Subarea Plan would provide a streamlined review of conditionally compatible uses. CONCLUSION: Staff considers the MSCP to be a necessary program that will provide for the protection of sensitive species both locally and regionally. By actively participating in this program which is based on preserving large blocks of connected habitat necessary for species survival, the City will both protect vital resources in the region and implement the open space vision of the General Plan. The City has carefully planned for the protection of large open space areas while delineating future urban boundaries. As cited above, staff recommends that the City Council approve the MSCP Subarea Plan and Implementing Agreement and associated implementing actions, necessary for its successful implementation. FISCAL IMPACT: Upon adoption of the MSCP Subarea Plan, the City will be obligated to implement the various components of the MSCP Subarea Plan as described above. A preliminary MSCP Implementation Work Program is currently being developed which will detail the individual tasks to be implemented over the short and long term. The MSCP Implementation Work Program is expected to include such t7.? ! Page 15, Item ! Meeting Date 05/13/03 tasks as: 1) preparation of implementation plans and studies; 2) project tracking, reviews and permit issuance; 3) preserve management and monitoring; 4) training; and 5) reporting. To the extent possible, individual tasks will be funded through cost recoverable sources or through other mechanisms such as federal and/or state funding programs to minimize effects on the City's General Fund. The first year of implementation of the MSCP Subarea Plan is expected to be absorbed at existing staff levels, consisting of one full-time Environmental Projects Manager ($96,258) with oversight by the Environmental Review Coordinator. The long-term MSCP Implementation Work Program will be further evaluated as management activities increase (commensurate with the conveyance of lands to the Preserve) and implementation of the Quino checkerspot butterfly management strategies get underway. Enhancement to existing management budgets (i.e. open space districts and Otay Ranch CFD 97-02) will be necessary and will consist of: 1) the Biological Enhancement Program which is an annual augmentation of $20,000 to the Central City management program utilizing a variety of potential local, state and/or federal funding sources. The General Fund would only be impacted if no other funding can be obtained; and 2) the Preserve Management Endowment Fund (PMEF) will be established for the North City and Otay Ranch areas (further described above under Section 4 of this report). The PMEF will be funded with up to $1.85 million dollars, through four key capital improvement projects. The initial endowment of $1 million dollars has already been included in the Salt Creek Sewer budget and will be provided upon adoption of the MSCP Subarea Plan. Additional endowments will only be made at commencement of construction of the other capital improvement projects. ATTACHMENTS The following attachments to this staff report were already provided to the City Council on April 30, 2003: 1. Final City of Chula Vista MSCP Subarea Plan, dated February 2003 2. City of Chula Vista MSCP Subarea Plan Appendices, dated February 2003 3. Responses to Comments Received on the October 2002 Public Review Draft MSCP Subarea Plan, dated February 2003 4. Final Supplemental Environmental Impact Report and Environmental Assessment, Dated January 2003 5. Revised Mitigation and Implementing Agreement Monitoring Program (MIAMP), dated February 2003 The following attachments are provided with this staff report: A. MSCP Subarea Plan Map B. Planning Commission Resolution PCM 95-017 and GPA 03-07 B-1. Letters submitted at the 4-23-03 Planning Commission hearing on the MSCP with staff' responses. C. MSCP Implementing Agreement, dated February 2003 Page 16, Item )4 Meeting Date 05/13/03 Rolling Hills Ranch: D. Planning Commission Resolution No. PCM 02-11 E. Planning Commission Resolution No. PCS 92-02A F. Original Tentative Map Resolution No. 16834 G. Addendum to Final SEIR 91-03 for the Salt Creek Ranch Sectional Planning Area Plan H. Rolling Hills Ranch Proposed GDP Revisions I. Rolling Hills Ranch Proposed Sectional Planning Area Revisions RESOLUTION NO. PCM 95-017 and GPA 03-07 RESOLUTION OF THE CITY OF CHULA VISTA PLANNING COMMISSION RECOMMENDING THAT THE CITY COUNCIL CERTIFY THE SUPPLEMENTAL ENVIRONMENTAL IMPACT REPORT AND ENVIRONMENTAL ASSESSMENT (NO. 03-01) PREPARED FOR THE CITY OF CHULA VISTA MSCP SUBAREA PLAN; ADOPT THE CITY OF CHULA VISTA MSCP SUBAREA PLAN SUBJECT TO THE CONDITIONS CONTAiNED HEREIN; FiND THAT THE IMPLEMENTiNG AGREEMENT, DATED FEBRUARY 2003, IS CONSISTENT WITH THE CHULA VISTA MSCP SUBAREA PLAN; AUTHORIZE THE MAYOR TO EXECUTE THE iMPLEMENTING AGREEMENT IN SUBSTANTIAL FORM OF THE IMPLEMENTiNG AGREEMENT, DATED FEBRUARY 2003, WITH MINOR CHANGES APPROVED BY THE CITY ATTORNEY AND CITY MANAGER WITH THE EFFECTIVENESS OF SAID AGREEMENT CONDITIONED AS STATED HEREIN; AMEND THE CITY OF CHULA VISTA GENERAL PLAN TO iNCORPORATE THE MSCP SUBAREA PLAN AS PART 2, CHAPTER 7A; APPROVE THE REVISED MSCP MITIGATION AND IMPLEMENTING AGREEMENT MONITORING PROGRAM, DATED FEBRUARY 2003. WHEREAS, the Multiple Species Conservation Program (MSCP) Subregional Plan was developed as a comprehensive, long-term habitat conservation plan which addressed multiple species and the preservation of natural habitat within a 900 square mile study area in south San Diego County; and WHEREAS, MSCP Subregional Plan contemplated that local jurisdictions, including the City of Chula Vista ("City"), would participate in the MSCP Subregional Plan and seek federal and state take authorization by adopting a subarea plan consistent with the conservation strategies contained in the MSCP Subregional Plan; and WHEREAS, the City prepared and submitted a Draft MSCP Subarea Plan to the U.S. Fish and Wildlife Service and the City of San Diego in At, gust, 1996, for inclusion in the Draft MSCP Subregional Plan and for consideration by the lead agencies in their environmental review of the Draft MSCP Subregional Plan; and WHEREAS, as lead agencies for the Multiple Species Conservation Program ("MSCP') Subregional Plan, the U.S. Fish and Wildlife Service and the City of San Diego prepared and certified a Final Environmental Impact Report/Environmental Impact Statement for the Issuance of Take Authorizations for Threatened and Endangered Species due to urban growth within the Multiple Species Conservation Program ("MSCP") planning area ("Final EIP, JEIS") in January, 1997 and adopted the Final MSCP Subregional Plan in August, 1998; and WHEREAS, as a responsible agency, the City of Chula Vista ("City") participated in the preparation of the Final EIR/EIS through consultation and comment; and WHEREAS, after the adoption of the MSCP Subregional Plan, the City, and the U.S. Fish and Wildlife Service and the California Department of Fish and Game (hereinafter referred to as the "Wildlife Agencies") further negotiated a number of aspects of the 1996 Draft Subarea Plan, including but not limited to, the refinement of the conditions of coverage for covered projects, the type and extent of protection for narrow endemic species, the amount and type of public facilities and infrastrncture to be allowed in the Preserve, and an acceptable configuration for the university site adjacent to the Preserve; and WHEREAS, following a review by the Wildlife Agencies and public comment period, the City issued a draft MSCP Subarea Plan dated September 11, 2000, and a Draft Implementing Agreement dated September 20, 2000, to the Wildlife Agencies and the general public; and WHEREAS, on September 22, 2000, the City submitted to the U.S. Fish and Wildlife Service an application for a Section 10(a)(1)(B) permit for incidental take pursuant to the U.S. Endangered Species Act of 1973, as amended, and submitted to the California Department of Fish and Game an application for a take authorization permit pursuant to Section 2835 of the California Endangered Species Act, with both applications including the Draft MSCP Subarea Plan dated September 11, 2000, and a Draft Implementing Agreement dated September 20, 2000; and WHEREAS, the Planning Commission and the City Council set the time and place for a joint hearing on said project and notice of said hearing, together with its purpose, was given by its publication in a newspaper of general circulation in the City at least 10 days prior to the hearing; and WHEREAS, the hearing was held at the time and place as advertised on October 17, 2000, in the Council Chambers, 276 Fourth Avenue, before the Planning Commission and City Council; and WHEREAS, approval of the MSCP Subregional Plan and adoption of the Chula Vista MSCP Subarea Plan dated September 11, 2000 were discretionary actions covered by the Final EIR/EIS, and therefore, as a responsible agency, the City had a more limited role than does a lead agency under the California Environmental Quality Act ("CEQA"); and WHEREAS, the City prepared an Addendum dated September 11, 2000, pursuant to CEQA Guidelines section 15164 to fulfill the City's obligations as a responsible agency; and WHEREAS, the City issued Findings of Fact for each of the significant environmental effects of implementing the Chula Vista MSCP Subarea Plan, dated September 11, 2000, in conformance with the CEQA and the CEQA Guidelines, which enabled the City to make full use of the Final EIR/EIS and the Addendum (CEQA Guidelines, sections 15101, 15093 and 15096, subd. (h)); and WHEREAS, the City considered the Final EIR/EIS prepared by the lead agency together with the Chula Vista MSCP Subarea Plan dated September 11, 2000 and the Draft Implementing Agreement dated September 20, 2000, and reached its own conclusion about whether and how to approve the MSCP Subregional Plan and the Chula Vista MSCP Subarea Plan dated September 11,2000; and WHEREAS, the City also prepared an MSCP Mitigation and Implementing Agreement Monitoring Program For Biological Resources dated October 12, 2000, in compliance with Public Resources Code section 21081.6, subd. (a)(1); and WHEREAS, the City Council reviewed and considered the Final EIR/EIS prepared and certified by the U.S. Fish and Wildlife Service and the City of San Diego in January, 1997, the Addendum to the Final EIRfEIS (October 2000), the Findings of Fact and Statement of Overriding Considerations, and the MSCP Mitigation and Implementing Agreement Monitoring Program for Biological Resources (October 2000) and found that the documents were prepared in accordance with the requirements of CEQA, the CEQA Guidelines, and the Environmental Review Procedures of the City of Chula Vista, and also found that the Final EIR/EIS (January 1997) and Addendum to the Final EIR/EIS adequately addressed the environmental impacts of the MSCP Subregional Plan and the Draft Chula Vista MSCP Subarea Plan, dated September 11, 2000; and WHEREAS, on October 17, 2000, the City Council approved the MSCP Subregional Plan dated August, 1998, as the framework plan for the Chula Vista MSCP Subarea Plan; conditionally adopted the MSCP Subarea Plan, dated September 11, 2000, and the Mitigation and Implementing Agreement Monitoring Program for Biological Resources dated October, 2000; and WHEREAS, subsequent to the City Council conditional approval on October 17, 2000, the City decided to make further changes to the Draft MSCP Subarea Plan, dated September 11, 2000, including but not limited to additional information not previously available about the Quino checkerspot butterfly, a federally listed endangered species. The City believed it was prudent to add coverage for the Quino checkerspot butterfly into the draft MSCP Subarea Plan prior to the Subarea Plan and associated implementing documents being published in the Federal Register; and WHEREAS, since October 2000, changes to the Draft MSCP Subarea Plan have been made as necessary to complete a final Draft MSCP Subarea Plan, including 1) measures to provide coverage for the Quino checkerspot butterfly; 2) the preparation of three implementing ordinances; 3) final revisions to the Implementing Agreement, 4) conservation of additional lands not previously anticipated to be preserved; and 4) other revisions to address unresolved issues including, but not limited to, changed circumstances, wetlands, and funding for long term management; and WHEREAS, the City determined that as part of the implementation of the MSCP Subarea Plan, the City of Chula Vista General Plan would be amended to incorporate the MSCP Subarea Plan as a separate element of the General Plan; and WHEREAS, the City has prepared a Supplemental Environmental Impact Report and Environmental Assessment (No. 03-01) to address all of the changes to the revised final Draft MSCP Subarea Plan; and WHEREAS, on October 8, 2002, the City submitted a revised application to the Wildlife Agencies for a Section 10(a)(1)(B) permit for incidental take pursuant to the U.S. Endangered Species Act of 1973, as amended, and submitted to the California Department of Fish and Game an application for a take authorization permit pursuant to Section 2835 of the California Endangered Species Act, with all of the required application materials including the revised Draft MSCP Subarea Plan, the revised Draft Implementing Agreement, Draft Implementing Ordinances and the Draft Supplemental EIR and EA; and WHEREAS, on October 10, 2002 a Federal Register notice was published commencing a 60-day public comment period on the Incidental Take Applications, Public Review Draft MSCP Subarea Plan, dated October 2002, implementing documents and associated environmental documents. A public notice was also published on October 11, 2002 announcing the availability of the Draft SEIR and EA to meet the requirements of the California Environmental Quality Act; and WHEREAS, public review of the Draft MSCP Subarea Plan and implementing documents closed on December 9, 2002. The City received 12 letters of comment from the public and has prepared responses to the comments and made changes to the Public Review Draft MSCP Subarea Plan, dated October 2002 and implementing documents, and has prepared a final City of Chula Vista MSCP Subarea Plan, dated February 2003, Draft Implementing Agreement, dated February 2003; and final draft implementing ordinances; and WHEREAS, the Planning Commission and the City Council set the time and place for a joint heating on said project and notice of said heating, together with its purpose, was given by its publication in a newspaper of general circulation in the City at least 10 days prior to the hearing; and WHEREAS, the hearing was held at the time and place as advertised on April 9, 2003 in the Council Chambers, 276 Fourth Avenue, before the Planning Commission and City Council; and WHEREAS, the conditional adoption of the Chula Vista MSCP Subarea Plan, dated February 2003 and associated implementing ordinances will not constitute a binding set of obligations on any public or private entity within the City of Chula Vista unless and until 1) the U.S. Fish and Wildlife Service issues a biological opinion which affirms the conservation strategies in the Chula Vista MSCP Subarea Plan, dated February 2003 and the Draft Implementing Agreement, dated February 2003, 2) take permits are issued by both Wildlife Agencies that are consistent with the Chula Vista MSCP Subarea Plan, dated February 2003, and Draft Implementing Agreement, dated February 2003, and 3) the City approves and executes an Implementing Agreement substantially in the form of the Implementing Agreement, dated February 2003; and WHEREAS, implementation of the MSCP Subarea Plan will also require an amendment to the City of Chula Vista General Plan to incorporate the MSCP Subarea Plan as an element of the General Plan (Part 2, Chapter 7A) and adoption of three MSCP Implementing Ordinances, including the Habitat Loss and Incidental Take Ordinance, the Otay Ranch Grazing Ordinance and revisions to the Excavation, Grading and Fills Ordinance. These ordinances will only take effect after issuance of the take permits and the necessary timelines for ordinances pursuant to the City Charter have passed; and NOW, THEREFORE, BE IT RESOLVED that the Planning Commission adopts Resolution No. PCM 95-017 and GPA 03-07 recommending that the City Council of the City of Chula Vista do the following: / 7' .Z/ A. Find that the Final Supplemental Environmental Impact Report and Environmental Assessment No. 03-01 and the Revised MSCP Mitigation and Implementing Agreement Monitoring Program, dated February 2003 have been prepared in accordance with the requirements of CEQA, the CEQA Guidelines, and the Environmental Review Procedures of the City of Chula Vista; and B. Certify that the Final Supplemental Environmental Impact Report and Environmental Assessment (No. 03-01) adequately addressed the environmental impacts of the Chula Vista MSCP Subarea Plan, as revised; and C. Approve the Revised MSCP Mitigation and Implementing Agreement Monitoring Program, dated February 2003; and D. Adopt the Chula Vista MSCP Subarea Plan and find that the Chula Vista MSCP Subarea Plan is consistent with the MSCP Subregional Plan and will provide for the conservation, protection, restoration and enhancement of biological resources for protected species while at the same time allowing the City to carry out its development plans, and conditions the adoption of the Chula Vista MSCP Subarea Plan and the amendment to the City of Chula Vista General Plan to incorporate the MSCP Subarea Plan as Part 2, Chapter 7A of the General Plan on all of the following: 1. The issuance of a biological opinion, by the United States Fish and Wildlife Service, that is consistent with the City of Chula Vista MSCP Subarea Plan (February 2003) and the Draft Implementing Agreement dated February, 2003; and 2. The issuance of a Section 10(a)(1)(B) permit pursuant to the U.S. Endangered Species Act of 1973, as amended and a take authorization permit pursuant to Section 2835 of the State of California Endangered Species Act with conditions that are consistent with the Chula Vista MSCP Subarea Plan (February 2003) and the Implementing Agreement, dated February 2003; and 3. The execution of an Implementing Agreement substantially in the form of the Draft Implementing Agreement dated February 2003; and F. Find that the Implementing Agreement, dated February 2003, is consistent with the Chula Vista MSCP Subarea Plan, dated February 2003 and does hereby affirm the submittal and execution of the Implementing Agreement, dated February 2003, to the Wildlife Agencies; and G. Authorize the Mayor to execute the Implementing Agreement, in substantial form of the Implementing Agreement, dated February 2003, with minor changes approved by the City Attorney and City Manager with the effectiveness of said agreement conditioned as stated herein; and H. Amend the City of Chula Vista General Plan to incorporate the Chula Vista MSCP Subarea Plan, dated February 2003, as a new element of the General Plan, Part 2, Chapter 7A. BE IT FURTHER RESOLVED that a copy of this resolution be transmitted to the City Council. PASSED AND APPROVED by the Planning Commission of Chula Vista, California on the 23rd day of April, 2003 by the following vote, to wit: A'~rES: HALL, MADRID, O'NEILL, CORTES, CASTANEDA, HOM NAYS: ABSTENTIONS: Russ Hall, Chair ATTEST: Diana Vargas, Secreta~ ATTACHMENT B-1 SUMMARY RESPONSES TO LETTERS SUBMITTED TO THE PLANNING COMMISSION AT THE 4-23-03 PUBLIC HEARING ON THE CHULA VISTA MSCP SUBAREA PLAN The City received three letters (attached) on April 23, 2003 at or just prior to the Planning Commission hearing on the MSCP Subarea Plan and associated implementing documents. The following provides a brief summary of the letters and the response provided at the Planning Commission: 1. ORRICK (Michael McAndrews) - The letter received from ORRICK was submitted on behalf of the Stephen and Mary Birch Foundation, Inc. The letter requested a continuation to the next regularly scheduled Planning Commission in order to allow additional time to review the staff report and associated proposals before the Planning Commission. The Planning Commission considered the request and concluded that the planning effort associated with development of the MSCP has spanned a number of years and has allowed ample opportunity for review through a variety of venues. In addition, staff indicated that the noticing of the hearing was conducted in accordance with applicable requirements. Therefore, the Planning Commission did not provide a continuance of the matter. 2. Hewitt and O'Neil, LLP (Andrew Hartzell) - The letter submitted by Mr. Hartzell on behalf of the San Miguel Ranch reiterated issues previously raised in their letter of comment submitted during the 60 day public review period on the MSCP Subarea Plan. Formal written responses to all letters of comment received during the public review have been prepared. The following is a summary of the issues and response. For a detailed response please refer to Responses to Comments received on the October 2002 Public Review Draft MSCP Subarea Plan, dated February 2003 included in the City Council agenda package (specifically responses to comments # 4a, 40, 4r and 4q). The letter submitted to the Planning Commission requested further clarification on the issue of additional mitigation requirements being potentially imposed as a result of the onset of an unforeseen circumstance. The written response to comments # 4a, 40, and 4r indicated that any imposition of additional mitigation by the City would need to follow the "substantive and procedural requirements of state and local laws" thereby preventing the arbitrary application of additional mitigation. Mr. Hartzell requested clarification as to which "state and local laws" the response was referring to. The written response was intentionally broad so as not to omit any applicable state and local laws that may apply to individual circumstances in the future. For clarification, examples of state and local laws that may apply include, but are not limited to, the California Environmental Quality Act and local land use regulations. The letter also requested two modifications to the proposed Implementing Agreement regarding Third Party Beneficiaries' right to sue for violations of the MSCP Program that affect their interests, and their explicit right to intervene if others bring litigation. The City's outside counsel for MSCP reiterated to the Planning Commission the written response previously prepared with input from the U.S. Solicitor to the United States Fish and Wildlife Service (see response to comment # 4q.). In brief, the response states that the City is the sole permittee with an express right under the Implementing Agreement and that landowners, who are not "permittees" but potential Third Party Beneficiaries retain whatever rights that they may have under existing local, state and federal laws to sue the USFWS, CDFG and/or the City if they believe their legally protected rights have been violated. 3. Otay Land Company (OLC) - The letter submitted to the Planning Commission raised issues that were previously identified in their letter submitted during the 60-day public review period for the MSCP Subarea Plan. As previously stated, formal written responses to all letters of comment received during the public review have been prepared. The following is a summary of the issues and response. For a detailed response please refer to Responses to Comments received on the October 2002 Public Review Draft MSCP Subarea Plan, dated February 2003 included in the City Council agenda package (specifically responses to comments # 5c. and 5w). The first issue addressed a desire to have periodic m-evaluation of the conveyance ratio for lands dedicated in conjunction with development of the Otay Ranch. Staff indicated that the conveyance ratio is unique to the implementation of the Otay Ranch Resource Management Plan (RMP) and that the conveyance ratio is considered to be adequate at this time. It should be noted that as part of the overall implementation of the City's MSCP Subarea Plan, annual reporting is already proposed to be required to ensure that conservation (preserve-wide) is occurring in rough step with development. The second issue related to the preparation of Area Specific Management Directives (ASMDs) which are required to be developed as discrete areas of land are conveyed to the Preserve. The OLC letter requested that ASMDs only be approved after consultation with all developers and property owners. The proposed process for the preparation of ASMDs already includes public participation as they am required to be prepared as part of the environmental document for individual projects. Apdl 9_3, 2003 M~c~ael ^. McAndr~,~ (21]) 612.2449 mmcandre~ffi~.cm~ VIA FACSIMI~ (619) Ch~ Pla~ Co~m~ion Ci~ of Ch~ V~a 276 Four~ AvcnCe Ch~ V~ C~fom 91910 Re: ~e Step~n & M~ Bkch Fo~fion, Inc.: F~ MSCP Sub.ca P~n De~ M. Chain: T~ ~m repr~e~.ts ~e S~phen & Ma~ B~ch Fo~on, Inc. As you ~ow, ~e Founda~,n o~s ~d ~ ~e Ci~ of Ch~ Vi, ta whch ~ affected by ~e M~fiple Spedes Conv~ahoq~ Pro.m, w~ch h~, ~e subject of Pubic H~g PCM 95-017 agen~ of ~e Pla~.ning Co~ssion ~s eve~g, The Foun~don ~d t~ copies of ~e Comsion~ agen~ and ~e Smff~cpo~ for ~e above agen~ items today, a=d : consequen~y hav~ not had an oppom~ to tcdew ~ese do~menB. Accor~gl7, ~e Founda~on r*quesm ~t ~e ~nmg Comsmn adjo~ the referenced pubic he~ ~out fi~l action on ~c r~amd At.on Itms ~ ~e next sched~ed mee~ of~e Foundation and ~ representatives my consider ~e S~ff Repom and ~e subsmce of ~e proposes ~ advance of ~e P~mg Co~sion's action. Th~k you for your consideta~on. Ve~ ~y yo~s, ~ ~chael A. cc: Ms. Mary Ladiana (da facsimile 619/585-5698) /7' .2 HEWITT & ~J J.,~ r,,~,s~'~J='' LLP ATTORNEYS A T LAW THIA M. COCHKAN DEA~ DUNN-RaNI~N 19900 M^cARTHUP. BOULEV~Va), SUIIE 1050 SANDRA A. GALLE IRVINE, CAIJFOKNIA 92612 WILLIAM E. HALLE (949) 798-0500 · (949) 798-0511 (FAX) ANDREW K. HARTZELL EMAIL: counsel@hewittoneil.com ~-'~ WILLIAM L. TWOMEY HUGH HEWITT JOhN P. YEAGER LAWRENCE J. HILTON WRrl ER'S DIRECT DIAL: (949) 798-0714 JOHN D. HUDSON EMAIL: ahar t zell ~Jaewitt oneil.corn OF COI/HSEL AMY W. LAP. KIN April 23, 2003 VIA FACSIMILE AND U.S. CERTIFIED MAlL Planning Commission City of Chula Vista c/o Mary Ladiana Environmental Projects Manager/Plamfing and Building Dept. Chula Vista Civic Center 276 Fourth Avenue Chula Vista, California 91910 Re: Chula Vista MSCP Subarea Plan and Implementing Agreement Dear Chairmen Hall and Members of the Commission: This firm represents NNP-Trimark San Miguel Ranch, LLC, owners, planners and developers of the San Miguel Ranch (SMR) mixed-use residential project. SMR and its predecessors have worked diligently for many years with the City, the County of San Diego, the U.S. Fish & Wildlife Service (USFWS) and the California Department ofFish and Game, among others, to help establish the San Diego-area Multiple Species Conservation Program and the City of Chula Vista's MSCP Subarea Plan. These Hoteworthy species and habitat conservation efforts have resulted in more than 2,038 acres of the SMR property -- more than 78% of our lands - being dedicated for permanent wildlife conservation and management. SMR supports the concept behind the MSCP and believes that the City has developed a Subarea Plan which, if implemented, will provide substantial conservation benefits to the region's wildlife, including the many rare and sensitive species unique to this area of California. We also wish to acknowledge and commend the hard work of City Staff involved in the Subarea Plan development process. 4/22/03 5017-6 H&O:#6904 vl Planning Commission April 23, 2003 Page 2 SMR submitted comments to the USFWS and City on December 9, 2002 concerning the City Subarea Plan and the proposed MSCP Implementing Agreement. Those comments were aimed at improving the operation and long-term success of the Subarea Plan. We have carefully reviewed the responses provided by the City and Wildlife Agencies on all the comments raised by ourselves and others. We write to request one clarification from the City and two modifications to the Subarea Plan (specifically, the Implementing Agreement). Details regarding the importance of these requests to the ultimate success of the MSCP and City Subarea Plan are included in our earlier comment letter of December 9, 2002 (attached). We strongly urge the Planning Commission to request that the City provide this clarification and adopt these two modifications, which are in the best interests of the conservation program and which would correct a major imbalance in the rights of the Program's major contributing stakeholders to ensure the proper implementation of the Program. 1. The City should specifically identify which State and local laws the City refers to as currently protecting landowners and Third Party Beneficiaries against further requests for biological mitigation in the future under the Subarea Plan. In responding to our December request that landowners and Third Party Beneficiaries of the MSCP be given the same protection against increased biological mitigation demands that the City is obtaining for itself, the City stated that existing State and local laws already exist to provide an equivalent level of protection to such persons. (See City Response to Comments 4a, 40, and 4r). Unfortunately, the City does not identify these laws. We respectfully request that the City specifically identify the laws to which it is referring so landowners may evaluate the level of protection being offered by the City. We request that we be provided with this information within the next 7 days. 2. The City should provide Third Party Beneficiaries under the Subarea Plan with the explicit right to bring a lawsuit for violations of the MSCP program that effect their interests. The MSCP and Subarea Plan were largely forged out of a scientific and consensus-building process among the environmental community, local government, the State and federal wildlife agencies and the landowner/development community. The law already recognizes and provides the right of the environmental community to bring legal challenges to the MSCP and the implementation of the program. The Wildlife Agencies and City are provided similar rights under the MSCP, yet the Implementing Agreement explicitly purports to deny Third Party Beneficiaries these same rights. Thus, the Implementing Agreement, as currently drafted, allows all who participated in creating the MSCP the right to seek the redress of grievances in a court of law except the landowners who contributed so much to this program. The Implementing Agreement therefore inappropriately discriminates against Third Party Beneficiary landowners. These persons should not be denied the same right enjoyed by the City, the Wildlife Agencies and the biocentrists. We respectfully request that the IA be modified to provide landowners with equal rights in this regard. 4/22/03 5017-6 H&O:#6904 v I Planning Commission April 23, 2003 Page 3 3. The City should provide landowners and Third Party Beneficiaries with the explicit right to intervene if others bring litigation challenging the MSCP or City Subarea Plan. At a minimum, landowners and Third Party Beneficiaries, who worked so hard to help create the MSCP, should not be excluded from helping to defend it if others initiate litigation to undermine the conservation program. Providing landowners and Third Party Beneficiaries with an explicit right to intervene in existing litigation will not provide any opportunities for increased litigation and may well help to discourage any future litigation aimed at undermining the program. The active participation of landowners in the City was essential to the development of the Subarea Plan. To allow the possibility that these landowners might be the only stakeholder excluded from the table in the event of litigation against the program would be patently unfair. We request that the City correct this deficiency to avoid this potential injustice. We respectfully ask that the Planning Commission support these three requests. Thank you for you thoughtful consideration of the above. Sincerely, AKH/pm Enclosure cc: Ann Moore, City Attorney (via fax and U.S. mail) Robert Leiter, City of Chula Vista (via fax and U.S. mail) Steve Thompson, Director, USFWS Cai/Nevada Operations Office (via U.S. mail certified) The Honorable H. Craig Manson, United States Department of the Interior (via U.S. mail, certified) 4/22/03 5017-6 H&O:#6904 v I HEWITT & O'NEIL LLP ATTORNEYS AT LAW THIA M. COCHRAN STEVElq B. IM~qOOF DF~AN DLn, rtq-RANrdN 19900 M^cA~.THUR BOULEVARD, SUITE 1050 D~,a, nSD. O'N ElL SANDKA A. OALLE IP, VIh'E, CALIFOK~IA 92612 JAY F. PALCHIKOFF WILLIAM E. HALLE (949) 798-0500 ' (949) 798-0511 {FAX) PAULA. ROWE WILLIAM L. TWOMEY ANDREW K. HARTZELL EMAIL: c~un s~lt~hcwiRon¢il.com 'JOHN P. yEAO£R HUGH HEW1Tr LAWRENCE J. HILTON WRITER'S DIKECT DIAL: (949) 798-0714 JOHN D. HUDSON AMY W. LARKIN December 9, 2002 VIA MESSENGER AND FAX Mr. Jim Barrel Field Supervisor U.S. Fish & Wildlife Service 6010 Hidden Valley Road Carlsbad, CA 92009 Re: Comments on the Chula Vista MSCP Subarea Plan and Implementing Agreement Dear Mr. Barrel: This finn represents NNP-Trimark San Miguel Ranch, LLC, owners, planners and developers of the San Miguel Ranch (SMR) mixed use residential project in the City of Chula Vista. SMR has worked with the U.S. Fish & Wildlife Service (FWS), County of San Diego and City of Chula Vista (City) for more than eight years in designing the San Diego-area Multiple Species Conservation Program - both in the County and in the City of Chula Vista. Such cooperative efforts for permanent species and habitat conservation have resulted in more than 2,038 acres of the SMR - more than 78% of the property - being permanently protected and managed for wildlife conservation. SMR is pleased to see that the City and FWS have reached the final stages in the development of the Chula Vista Subarea Plan. We recognize and applaud the tremendous efforts that City staff, as well as the wildlife agencies, have made to develop this plan to the point where it soon can become a reality. SMR strongly supports the MSCP and believes that the City's Subarea Plan will be able to provide substantial species conservation. We wish to continue our strong support for a Subarea Plan coveting Chula Vista. However, SMR cannot support the Subarea Plan and Implementing Agreement in their current form! Mr. Jim Bartel December 9, 2002 Page 2 The Subarea Plan -- in particular, the Implementing Agreement (IA) -- currently falls short of providing the minimum necessary level of take authorization assurances for SMR, other Third Party Beneficiaries, and other Covered Projects. Unless these deficiencies are corrected, the Subarea Plan cannot provide the minimally necessary assurances to SMR that it will be able to complete its development of the San Miguel Ranch. Other landowners in the City would be similarly prevented t~om obtaining a basic level of certainty as to the extent of their biological mitigation obligations during the development of their projects. Before SMR can support adoption of the Subarea Plan and Implementing Agreement, several corrections to the plan and IA need to be made. The necessary corrections to the Subarea Plan and IA are relatively few in number - although extremely important. Thus, SMR hopes that the FWS and City will carefully consider the attached comments and modify the Subarea Plan and IA to adequately address the concerns identified herein. To assist with completion and correction of the Subarea Plan and IA without significant delay, we have enclosed our suggestions for correcting the identified deficiencies. Should you have any questions regarding the following or wish to discuss these matters further, please do not hesitate to contact the undersigned. Sincerely, Andrew i~. Hartzell ~- -~ AKH/sml Encls. cc: Robert Leiter, City of Chula Vista Steve Thompson, Director, FWS Cal./Nevada Operations Offic The Honorable H. Craig Manson David P. Smith Stephen Hester #3785 vi Mr. Jim Bartel December 9, 2002 Page 3 bcc: Laurie Madigan Julie MacDonald Ann Moore SECTION I. COMMENTS ON CHULA VISTA SUBAREA PLAN The necessary modifications to the Subarea Plan, briefly identified below, are discussed in this Section I. For each of the issues requiring correction, we have provided suggested modifications to improve the Subarea Plan and satisfy the concern. In many cases, these issues also require modification to the Implementing Agreement (IA). Necessary modifications to the IA are discussed in Section H · The Subarea Plan must provide stronger assurances for Third Party Beneficiaries. · The Subarea Plan must provide Incidental Take Authority for plant species, and thus be consistent with the MSCP Subregional Plan and the City of San Diego and County of San Diego subarea plans. · The future listing of an unknown non-covered species must not result automatically in changes to the biological mitigation requirements of the Subarea Plan in ways that are unknown today. · The Subarea Plan must provide greater specificity as to "Chula Vista Covered Species" and "Species Adequately Conserved" and the effect on species coverage should specific other subarea plans become inoperable. · The description of incidental take for San Miguel Ranch must be clarified and must not be reduced fi.om that provided by the MSCP Annexation Agreement. · The Subarea Plan must be more clear regarding the Covered Projects' obligations for management activities. 1. The Need for Stronger Assurances Protecting Third Party Beneficiaries Page 5-30, Section 5.7, Paragraph 2; Page 5-32, Second full paragraph; and Page 5-44, Section 5.8.6. The last sentence of all three paragraphs must be modified to require the need for the Third Party Beneficiary's consent for any increased mitigation/conservation measures affecting Third Party Beneficiaries. Page 5-31; Section 5.7.3. This paragraph should also provide that Third Party Beneficiaries are protected in the same manner and degree as is the City. #3661 v3 1 /7' 2. The Future Listing ora Non-Covered Species in this Subarea Plan is Not Properly Classified as a Changed Circumstance Pages 5-33 and 5-43. The listing of an unknown Non-Covered Species is not properly characterized as a Changed Circumstance under the Chula Vista Subarea Plan. In some instances the future listing of a species whose conservation was not provided for in the MSCP to a level sufficient to grant incidental take authority pursuant to Section 10(a)(1)(B) can be viewed as a Changed Circumstance. 63 Fed. Reg. 8859 (Feb. 23, 1998) CLISFWS discussion of its Habitat Conservation Plan Assurances ('No Surprises') Rule). However, certain conditions must exist for such an event to qualify as a Changed Circumstance. Under the regulation, the listing of a Non-Covered Species would constitute a "Changed Circumstance" where the City and USFWS recognized that one or more specifically identified unlisted species: (1) occupied portions of the Chula Vista Subarea Plan Area, (2) was/were likely to be listed as "threatened" or "endangered" at some time during the life of the permit, and (3) the City nevertheless chose not to provide sufficiently for this/these species' conservation in the Chula Vista Subarea Plan. A future listing of a Non-Covered Species can constitute a "Changed Circumstance" requiring some a priori agreed-to response by the City only when the above three conditions are met, because the City, USFWS and the Chula Vista Subarea Plan can only identify a meaningful set of responses and additional conservation measures to address this change, and incorporate such in the HCP, when they know/understand the biological and conservation needs of the particular species at issue. In such an instance, the change in circumstance can be "planned for in the conservation plan," and the plan can "describe the modifications in the project or activity that will be implemented if these circumstances arise." 63 Fed. Reg. at 8868. When the above three conditions are not met, the appropriate response for the City to take on a generic, apriori basis, is to recognize that its Subarea Plan and Section 10(a) Permit do not authorize incidental take of such species and to acknowledge that it will not "take" any members of such species unless and until it has obtained federal authorization to do so. Under such a circumstance, and consistent with the USFWS's own regulations, the Subarea Plan cannot provide for more than this, as no specific modifications in the functioning of the Subarea Plan can be identified in advance without knowing the species at issue and its particular biological and conservation needs. In addition, the listing of a Non-Covered Species does not inherently effect the plan's protection of any of the Covered Species, a characteristic which differentiates the listing of a Non-Covered Species from other, legitimate categories of "Changed Circumstances." If the regulation had intended to classify any listing of a Non-Covered Species as a Changed Circumstance, the regulation would have incorporated the proactive federal control language being proposed in this Subarea Plan as standard required language in all HCP las. However, the regulation did no such thing. Furthermore, the Subarea Plan's proposal to provide FWS with potentially unlimited proactive authority to control land use within Chula Vista should it decide to list a non-covered species directly undermines the central purpose behind the No Surprises Rule, which is that #3661 v3 2 "non-Federal property owners should be provided economic and regulatory certainty regarding the overall cost of species conservation and mitigation .... Specifically, permittees, who are properly implementing their HCP will not be required to provide additional conservation and mitigation measures involving the commitment of additional land, water or financial compensation or addition restrictions on the use of land, water or other natural resources without their consent." 63 Fed. Reg. 35242, 25242-35243. The principal behind the "Changed Circumstances" provision is that this category of events can be planned for in advance, and the HCP developers can put in the plan specific measures that will beimplemented to respond to the event. Thus, those affected by the HCP will know in advance how the HCP program will be modified if such Changed Circumstance occurs. However, no certainly regarding specific mearsure to be taken I nthe event of the listing of an unknown non-covered species can be identified - and none are identified in the Subarea Plan. We recognize that the Subarea plan calls for the City, FWS and CDFG to "jointly identify measures that the City will follow to avoid take, jeopardy and/or adverse modification of critical habitat" of a non-covered species. However, under the Subarea Plan, the Wildlife Agencies would, in many cases, be able to effectively coerce the City into agreeing to a set of proactive land use mitigation measures which exceed the requirements of the ESA. As there is no legal or statutory authority requiring the Wildlife Agencies to make the City susceptible to this extra federal land use control, we respectfully request that the Wildlife Agencies not attempt to obtain such unlimited and unchecked authority, but rather simply enforce the existing ESA, CESA and NCCP regulations in the event of a non-covered species listing and allow the City to freely choose whether to apply for incidental take authority for this newly listed species. Neither the City nor the FWS has identified any particular species occupying a portion of the Subarea Plan area which is likely to become listed within the life of the permit but for which take authorization is not being applied for under the City's permit application. Accordingly, the Subarea Plan has not identified any non-listed species whose future listing could qualify as a Changed Circumstance. The steps to be undertaken by the City as the result of the listing of a Non-Covered Species are unnecessary and go beyond the requirements of the ESA. The language proposed in Section 5.8.5 could result in the Wildlife Agencies unfairly leveraging the City and landowners within the City to agree to new land use restrictions and mitigation obligations which are beyond the existing requirements of the ESA. Nothing in Section 5.8.5 prevents this potential problem. Since the City and FWS are unable to identify any non-covered species which is likely to be listed during the life of the permit, the simple response for such a listing should merely be to note that the City's Section 10(a) permit and NCCP Authorization will not apply to that species. Thus, the City and landowners in the City will need to comply with the provisions of the ESA. The USFWS should have to identify a list of possible uncovered species which it believes may likely be listed in next 50 years, and then the City and FWS can identify specific changes in the Subarea Plan now that they may invoke in the future if the species is listed. Otherwise, the FWS should simply note that the City will not have any legal authority to "take" the species until specific authorization to do so is obtained. A listing of new uncovered species shouldn't be seen #3661 v3 3 17' 3 5 to federalize the entire area within the Subarea Plan just because the applicant has a Section 10(a) permit from Service 3. "Chula Vista Covered Species" and "Species Adequately Conserved" Page 1-5 - Chula Vista Covered Species. The City's definition of"Chula Vista Covered Species" needs to provide a specific list of these species. Such a list would greatly alleviate future uncertainty as to whether Take Authorization is being provided to a particular species. This approach is consistent with the City of San Diego and County of San Diego's Subarea Plans. Page 1-11 - Species Adequately Conserved. It is not clear fxom this definition whether the full suite of species meeting this definition are being listed in Table 4-1, or whether the species qualifying for this definition are just a subset of the larger group in Table 4-1, which subset is vaguely defined as "the species in the table for which the Chula Vista Subarea Plan provides substantial conservation .... "If the latter, the Subarea Plan creates an illusory definition. The Subarea Plan should provide a concrete, objective list for "Species Adequately Conserved," "Covered Species," and "Chula Vista Covered Species." Otherwise, individuals trying to understand the MSCP agreements and the program's operation in the City will be subjected to great uncertainty and confusion. If the City intended to provide a specific concrete list of these species in Table 4-1, then the definition should be reworded to state: "Those species listed in Table 4-1 of this Subarea Plant ^The Chula Vista Subarea Plan provides substantial conservation for these species, and the City shall receive Take Authorization regardless .... " Page 4-6; Table 4-3. The Subarea Plan needs to provide a list of the entire set of species for which the City is being granted incidental take (including those species that are not expected to occur within the City). This number of species should not be lower than the number of species authorized for incidental take under the County of San Diego's Subarea Plan and IA. The Chula Vista Subarea Plan is confusing on this issue. Page 1-6. "Covered Species" should be defmed concretely, with reference to a list of specific species so that the reader can easily understand which specific species are "Covered Species." It should be made clear in this definition that all "Covered Species" of the larger, regional MSCP Plan and the Quino checkerspot butterfly are Chula Vista Covered Species under the Chula Vista Subarea Plan. #3661 v3 4 Page 4-20; Section 4.2. The Subarea Plan needs to be specific as to which particular subarea plans within the larger Subregional MSCP must be in effect to provide the City of Chula Vista, its Third Party Beneficiaries, Covered Projects, etc. with incidental take authority for which particular species. Each Chula Vista Covered Species should be listed in one column, and next to each species' name should be listed the other subarea plans which must be in effect in order for the City to have incidental take authority for it. 4. Incidental Take for Plant Species Page 1-10 - Plant Species. The Chula Vista Subarea Plan is proposing to not issue federal incidental take authority for plant species, despite the fact that such take authority was provided to the City and County of San Diego in their subarea plans and IAs, was anticipated to be provided to all Participating Local Jurisdictions under the MSCP Subregional Plan, and despite the fact that such take authority may be necessary during the 50-year life of the permit. Contrary to the statements in the Subarea Plan, in some cases the take of federally-listed plants is prohibited, and a Section 10(a) permit may be necessary for such incidental take. 16 U.S.C. Section 1538(a). The Chula Vista Subarea Plan (CVSP) should provide that to the extent that the take of covered plants requires a federal 10(a) permit under the particular circumstances of the Covered Activity, the City's federal incidental take permit (ITP) provides such incidental take authorization. Although in many cases under currently existing federal law the take of federally-listed plants is not prohibited, the fact remains that (1) such take may be prohibited in some circumstances, and (2) the ESA may be modified during the 50-year period of the permit to increase the circumstances under which such incidental take authority may be required under Section 10(a). 5. Description of Incidental Take for San Miguel Ranch Section 2.1.9 (first bullet item) and Section 3.1.4 (first bullet item). The incidental take authorization being provided SMR under the MSCP Annexation Agreement is take authorization for those species on the list of"Covered Species Subject to Incidental Take" under the County of San Diego's Implementing Agreement (IA) with the Wildlife Agencies, as well as take authorization for any additional species for which take is authorized under the City ofChula Vista's IA/ITP. The City Subarea Plan should not reduce the scope of take authorization already given to SMR under the County's IA, as SMR is a Third Party Beneficiary. This point should be made clear in the Chula Vista Subarea Plan, and the reference to those species authorized for incidental take on SMR should refer to the "Covered Species Subject to Incidental Take" defined in the County IA and the "Chula Vista Covered Species." If there is intended to be any difference in these lists (except for the added take authority for the Quino checkerspot butterfly under the City ITP), the City should inform SMR immediately as to those species which the City is proposing to eliminate from SMR's current incidental take authority. #3661 v3 5 The San Miguel Ranch (SMR) project has coverage for 85 species under the MSCP Annexation Agreement and County Subarea Plan. It would be wholly inappropriate and unfair for the City to remove the federal incidental take authority which SlvlR currently has for approximately 46 plants under the County's ITP and MSCP Annexation Agreement, especially where SMR has contributed substantially more to the MSCP program than it was required to do under the County Subarea Plan. Is the FWS prepared now to place in writing a guarantee to SMR that for the next 50 years it will not claim that SMR needs an incidental take permit for one or more of the 46 covered plant species, regardless of any change in federal law? 6. Covered Projects' Obligations for Management Activities Under Table 3-5 Section 4. I. The Subarea Plan is unclear regarding the extent to which Covered Projects must provide any of the general management requirements for these species if such requirements have not otherwise been imposed on these approved projects. The Subarea Plan should be clarified to note that these "Relevant Management Requirements" and the requirements in the MSCP Subregional Plan Table 3-5 do not apply for Covered Projects unless such management requirements have already individually and specifically been imposed on such Covered Projects apart fi.om the Chula Vista Subarea Plan. This seems to be the intent of the statements at page 5- 3, but such clarification should be provided at Section 4.1. 7. Critical Habitat Page 5-49. Since the Subarea Plan will provide the necessary special management considerations for the gnatcatcher, the Quino checkerspot butterfly and Otay tarplant within the Chula Vista Subarea, the FWS should announce its intention to remove the critical habitat designation for those species within the boundaries of the Chula Vista Subarea Plan concurrent with the approval of the Subarea Plan under Section 10(a)(1)(B). Minor Items Page 3-5. The final bullet point on this page should reference the "SDNWR" (San Diego National Wildlife Refuge), as opposed to simply the "NWR." Page 2-6, Section 2.1.9, Paragraph 2. Consistent with the abbreviations at the front of this document, the abbreviation for the San Diego National Wildlife Refuge should be "SDNWR," not "NWR." Section 3.1.4 (fourth bullet). Reference should be made to "SDNWR," instead of'~iWR." Section 4.1, Paragraph 1. The second sentence of this paragraph needs clarification. Perhaps the final two words of the sentence ("in the") simply need to be removed. #3661 v3 6 SECTION II. DRAFT IMPLEMENTING AGREEMENT (FOR CHULA VISTA SUBAREA PLAN) Thc necessary modifications to the Subarea Plan Implementing Agreement (IA), briefly identified below, are discussed in this Section II. For each of the issues requiring correction, we have provided suggested modifications to improve the IA and satisfy the concern. Several minor corrections to the IA have also been noted at the end of Section 1I. · The rights and assurances extended to Third Party Beneficiaries and Covered Projects must not be diluted, as currently proposed. Additionally, these assurances need to be real, and not an illusion. Therefore, the IA needs to provide Third Party Beneficiaries with the right to bring suit for violations of the IA and to intervene if others bring suit to challenge the Subarea Plan.. * The IA must provide Incidental Take Authority for plant species. · The future listing of an unknown non-covered species must not result automatically in changes to the biological mitigation requirements of the Subarea plan in ways that are unknown today. The Migratory Bird Treaty Act protections must extend to all birds which are Chula Vista Covered Species, not just those listed under the ESA. · The protections against future disruptions to the plan as a result of furore critical habitat designations must be strengthened. · The IA needs clarity in identifying "Chula Vista Covered Species" and "Sufficiently Conserved Species." 1. Third Party Beneficiaries - Necessary Rights and Assurances In the Service's final rule adopting the "No Surprises" Rule, the FWS stated its belief that the "No Surprises" assurances should be available to Third Party Beneficiary landowners and developers who participate through a larger regional planning process such as the Chula Vista Subarea Plan and MSCP Subregional Plan. 63 Fed. Reg. 8859, 8865. However, under the current language of the draft IA, the FWS is proposing less assurances to Third Party Beneficiaries and Covered Projects than it is proposing to give to the City. We believe that there is no legal or regulatory justification for giving Third Party Beneficiaries and Covered Projects diluted assurances, and we respectfully request that the assurances be modified to correct this #3661 v3 7 City. Perhaps this was simply an oversight, since the CDFG has agreed to this assurance for Third Party Beneficiaries in Section 9.2(a)(2). Unforeseen Circumstances (Section 9.2(a)(3)). The final sentence of this subsection should require not only the consent of the City, but also the consent of Third Party Beneficiaries if such "additional conservation and mitigation measures" would involve the commitment of additional land, water or financial compensation or additional restrictions on the use of land, water or other natural resources on the part of Third Party Beneficiaries. Both the City and County of San Diego's IAs provide this assurance to Third Party Beneficiaries, and the City should insist that its IA does the same. Degree of Assurance to Third Party Beneficiaries that Mitigation Obligations will not be Changed (Section 17.1(c)). The City and FWS have inappropriately diluted the assurances provided to Third Party Beneficiaries by insertion of the final sentence to this paragraph (a limitation, we note, which does not exist for the City or County of San Diego Subarea Plans or IAs). Such a sentence demonstrates another compelling reason why Third Party Beneficiaries must be provided with the right to bring claims for specific performance, injunctive relief or declaratory relief against the Wildlife Agencies or City for any breaches of the IA. If the Wildlife Agencies and City are going to reserve the right to unilaterally impose additional - potentially significant - mitigation burdens on Third Party Beneficiaries after they have relied on a different set of mitigation obligations, then Third Party Beneficiaries must be able to provide a check on this reserved, unilateral authority via the courts. Revocation, Termination or Suspension of Incidental Take Authority (Section 17.2). Again, the last phrase of the final sentence ("unless USFWS or CDFG determines that continuing to authorize take by Third Party Beneficiaries would likely result in jeopardy to a listed species") should be removed. The Wildlife Agencies are inappropriately viewing their grant of incidental take authority to Third Party Beneficiaries via the issuance of the take permits to the City as some sort of ongoing and continuous action - as opposed to a discrete act of authorization. Neither the law nor applicable judicial decisions require such a view. The decision to authorize incidental take for a particular project (or "Covered Activity") is a discrete event and decision. See, e.g., Environmental Protection Information Center v. Simpson Timber Company, 255 F. 3d 1073 (9th Cir. 2001). The attempted reserved right of the Wildlife Agencies to revoke or suspend a Third Party Beneficiary's take authorization is not subjected to any set of review procedures by an independent and impartial authority. Moreover, the standard proposed for revocation of the take authority is very low; the standard does not use the "jeopardize the continued existence of the species" standard found in ESA Section 7, but rather uses a vague and arbitrary "jeopardy to the species" standard which has no parallels in the ESA or NCCP Act. #3661 v3 8 The attempted reserved right of the Wildlife Agencies to revoke or suspend a Third Party Beneficiary's take authorization is not subjected to any set of review procedures by an independent and impartial authority. Moreover, the standard proposed for revocation of the take authority is very low; the standard does not use the "jeopardize the continued existence of the species" standard found in ESA Section 7, but rather uses a vague and arbitrary "jeopardy to the species" standard which has no parallels in the ESA or NCCP Act. This extra reserved right of revocation is inappropriate, not required by law and unnecessarily undermines the intent behind the "No Surprises" regulation. Furthermore, this right was not reserved to the Wildlife Agencies or the local jurisdiction in either the City or County of San Diego IAs. It should be eliminated fi.om the IA. Moreover, this provision provides yet another example of why Third Party Beneficiaries must be provided with the acknowledged right under the IA to bring a legal claim against FWS, CDFG or the City for any violations of the IA. Third Party Beneficiary Right to Sue Upon a Violation of Subarea Plan or IA and Right to Intervene in Litigation Challenging the MSCP (Section 17.4). This section must be changed to clearly provide Third Party Beneficiaries with the explicit right to bring suit against the FWS, CDFG, and City for specific performance, injunctive relief and declaratory relief ifFWS, CDFG, or City are violating the terms of the IA, the MSCP Subregional Plan or the Chula Vista Subarea Plan. The ongoing litigation brought by the Center for Biological Diversity against the FWS and City of San Diego to undermine the San Diego MSCP is but one example of why the IA must be changed. It is inappropriate for the Wildlife Agencies and City, knowing that various so-called environmental interests have the ability to bring suit against them relating to the Subarea Plan, to attempt to preclude Third Party Beneficiaries - who have contributed so much land and money to the MSCP program - from similarly looking to the courts should the FWS, CDFG or City violate the terms of the IA. Moreover, the Service's final rule promulgating the "No Surprises" assurances specifically notes that Third Party Beneficiaries should receive the same degree of assurances as that of the direct local jurisdiction permit holder: 63 Fed. Reg. 8859, 8865. Such level of protection can only be given Third Party Beneficiaries if they have an actual right to hold the Wildlife Agencies and City accountable for the assurances that they are purportedly being provided. Furthermore, given the various rights which the Wildlife Agencies and/or City are trying to reserve through the IA to modify, delay, suspend or revoke the take authorizations to Third Party Beneficiaries, Third Party Beneficiaries will have no recourse against actions which improperly administer or revise the MSCP regulatory program, a program which they have done so much to help create and the reliance upon which is so important to their continued existence. Finally, should one or more entities challenge the MSCP Subregional Plan or Chula Vista Subarea Plan or IA in court, Third Party Beneficiaries must be given the explicit right in the IA to intervene in the litigation. Not only is such a right appropriate for public policy reasons (i.e., #3661 v3 9 why should some non-Party organizations (such as environmental advocates) who helped form the MSCP be allowed to initiate litigation while others (such as landowners) would be denied the fight to even intervene if litigation was brought by others), but such a right has now been firmly rec°gnized bY the 9th Circuit Court of Appeals. Southwest Center for Biological Diversity v. Berg, 268 F.3d. 810 (9th Cir. 2001). Third Party Beneficiaries and Covered Projects (if not landowners within the City in general) need to have the explicit right to intervene in any lawsuit filed against the MSCP Subregional Plan, the City of Chula Vista Subarea plan, or any other integral document to the MSCP Subregional Plan or Chula Vista Subarea Plan, such as the IA. Recent litigation against the MSCP has uncontrovertibly demonstrated the essential need for the IA to recognize this right. SMR requests that the IA be modified at Section 17.4 to add the following: "The Parties agree and acknowledge that Third Party Beneficiaries and owners of undeveloped land within the City have a significant and independent interest in maintaining the validity and effectiveness of the Permit and Take Authorizations issued to City and that the interests of those Third Party Beneficiaries and landowners would not be adequately protected or represented in the event of a judicial challenge seeking to invalidate or suspend, in whole or in part, the Permit, Take Authorization, HCP, EIR/EIS, MSCP Subregional Plan, Chula Vista. Subarea Plan or the supporting documentation unless such Third Party Beneficiaries and landowners are able to intervene to participate in such litigation. Therefore the Parties recognize that such Third Party Beneficiaries and landowners should be entitled to intervene and participate as independent parties in any such litigation." Critical Habitat Protections for Third Party Beneficiaries (Section 9.13). The protections regarding future critical habitat designations should extend equally to Third Party Beneficiaries and Covered Projects, as well as the City. The provisions should be modified to clearly accomplish this. As currently worded, the City is allowed to consent unilaterally to the imposition by the Wildlife Agencies of additional mitigation obligations on Third Party Beneficiaries and Covered Projects. Accordingly, the consent of potentially affected Third Party Beneficiaries or Covered Projects, as applicable, should be required in the final sentence of this paragraph. As currently worded, the City has elected to allow itself the power to impose additional mitigation (such as land donations, land use restrictions or conservation dollars) beyond those akeady established by the Subarea Plan in the event the FWS designates critical habitat for a species within the Chula Vista Subarea. Exposing Th/rd Party Beneficiaries and Covered Projects to the uncertainty of potential additional biological mitigation is improper - especially in light of the fact that the City negotiated such protection for itself. Neither the City of San Diego nor County of San Diego Implementing Agreements exposed Third Party Beneficiaries and Covered Projects this way. Thus, currently San Mignel Ranch has this protection under its MSCP Annexation Agreement. It would be improper for the FWS or City to attempt to dilute the existing regulatory protections provided to SMR under the MSCP Annexation Agreement through the adoption or approval of a Subarea Plan that is less protective of SMR's rights. #3661 v3 10 17' On-Set of Third Party Beneficiary Statna (Section 17.1(A)). It is inappropriate to delay Third Party Beneficiary status until completion ora Section 7 consultation. Neither ESA nor any other law requires this, and allowing such a delay in Third Party Beneficiary status removes critical certainty to landowners and developers that they will not be subject to duplicative mitigation for the same biological impacts fi.om a particular land use or project. The City and FWS should both provide a solid, credible legal explanation of why Third Party Beneficiary status must be delayed. Absent such a credible explanation - and we believe none exists - the City and FWS should remove the following phrase fi.om Paragraph A: "provided that within [sic] regard to projects with a federal nexus that are required to undergo consultation under Section 7 of the ES~4, Third Party Beneficiary Status shall not attach until the Section 7 consultation is also completed." 2. Incidental Take Authority for Plant Species Recital 1.4. The recital is incorrect with respect to its characterization of the prohibition on the take of plant species under the ESA. [See Comment No. 4 in Section I, above.] In some cases Section 9 of the ESA does make it a federal violation to take listed plants. Therefore the IA should be revised to provide authorization under the IA and the ITP for incidental take of covered plant species, to the extent such authorization is required under the ESA. Moreover, the fact that the ESA could well be modified during the 50-year life of the Chula Vista 1TP to require a Section 10(a) permit for the take of plant species provides another reason why the IA and ITP should provide now for such incidental take authority. Since the City Subarea Plan (as well as the City of San Diego and County of San Diego subarea plans) satisfies the 10(a)(1)Co) permit issuance criteria for these plant species, the permit should provide for such take authorization - to the extent such authority may be required (now, or in the future). Section 2.21 - Incidental Take. Again, the IA inappropriately limits incidental take authorization to animals and not plants. The IA is incorrect to suggest that there will not be instances or circumstances during the 50-year life of the permit in which federal incidental take authorization for plants will be necessary. The City should clearly redraft the IA to make it clear that incidental take authority is given now for plants, to the extent that such authority may be necessary under the ESA. A similar change to provide incidental take authority for plant, species should be made at Section 2.38, "Section 10(a)(1)(B) Permit 3. Future Listings of Non-Covered Species and City Obligations Section 9.3(c)(2)(e). The IA and Subarea Plan inappropriately require the City to become the local enforcer of the Wildlife Agencies' essentially unchecked interpretatiofi of the ESA and CESA in the event of the Agencies' listing ora Non-Covered Species. The City and the FWS staff are misreading the FWS regulation on "Changed Cimumstances." The regulation does not require the measures set forth in Section 9.3(c)(2)(e) and Subarea Plan Section 5.8.5. The regulation does not require the City to simply follow the instructions of FWS staff as to land use #3661 v3 ll activities (or "Covered Activities") within the City of Chula Vista Subarea. [See Comment No. 2 in Section I, above for a more in-depth discussion.] The Wildlife Agencies and the City endanger the proper and reliable functioning of the Subarea Plan and seriously weaken the certainty for landowners in Chula Vista who wish to rely on the Subarea Plan by unnecessarily establishing an unknown set of "no take/no adverse modification/no jeopardy" measures. The Changed Circumstances regulation does not require anything more than what the City and County of San Diego agreed to on. this issue in their respective IAs. The "No Surprises" regulation (63 Fed. Reg. 8859) does not require the language or approach proposed in Section 9.3(c)(2)(e) of the draft IA. The second sentence of paragraph (e) should be replaced with the following sentence: "Upon the listing ora non-covered species and until such non-covered species is added to the list of Chula Vista Covered Species and, if appropriate, to the list of Species Adequately Conserved, the Take of such species will be governed by applicable state and federal law." This is all that the law requires, unless the Wildlife Agencies and City have identified specific Non-Covered species which are likely to be (or may be) listed and have provided specific response measures in the Subarea Plan tailored to the individual conservation needs of those species during the period between their listing and any take authorization for such species issued to the City. Section 2.7 - Changed Circumstances. The listing of a Non-Covered Species which the parties did not anticipate could be listed during the life of the ITP (and hence, for which the parties could not develop planned responses for in the MSCP in the event of the subsequent listing) is not properly characterized as a "Changed Circumstance" and should not be included as an example of one. 4. ' Migratory Bird Treaty A ct Section 9.4(A) - Migratory Bird Treaty Act. The Section 10(a) Permit ought to be treated as a Special Purpose Permit under the MBTA for the take of unlisted Chula Vista Covered Species - as well as the ones that are currently federally listed under the ESA. Nothing in the MBTA prevents the FWS fi.om extending this protection for these species to the City (and Third Party Beneficiary and Covered Projects). After all, the IA (see, e.g. Section 1.9) and the Subarea Plan specifically note that the Chula Vista Subarea Plan is treating the unlisted Chula Vista Covered Species as if they were already federally listed in terms of the degree of conservation measures being directed at such unlisted species. 5. Critical Habitat Section 9.13. We suggest that the Parties add the following language to Section 9.13 to provide more explicit assurances and greater certainty to land use planning within the Subarea: #3661 v3 12 ESA Section 4(b)(2)provides that critical habitat designations shall take into consideration "the economic impact, and any other relevant impact, of specifying any particular area as critical habitat." The USFWS acknowledges that the MSCP provides an extraordinary conservation benefit to the Chula Vista Covered Species and their habitats within the MSCP Plan Area. The MSCP has been designed to provide for the sustained, healthy functioning of multiple habitats and ecosystems within the 900-square mile plan area. Because of the large number of sensitive species and habitats sought to be conserved by the MSCP and the large amount of land to be permanently conserved by the Subarea Plan, conservation/preserve area boundaries and allowable development area boundaries have been carefully demarcated in many instances. The significant large, interconnected open space preserve areas could only have been achieved, in many cases, after assuring the availability (from a biological perspective) of a certain amount of off-setting future development area. Accordingly, future designations of critical habitat could have substantial economic and other relevant impacts that will cause substantial disruptive effects to the ability of the MSCP to continue to be an ongoing conservation program should such designations include any lands outside of those planned for species conservation by the MSCP. The potential for such future disruptions provides a strong disincentive to continuing efforts to maintain the conservation program created by the MSCP and a strong disincentive for the City to adopt the City of Chula Vista Subarea Plan. Accordingly, for any future critical habitat designation for any Chula Vista Covered Species, the USFWS will not designate critical habitat within the City of Chula Vista Subarea Plan Area unless the Secretary of the Interior determines, based on the best scientific and commercial data available, that the failure to designate certain areas within the City of Chula Vista Subarea Plan Area as critical habitat will result in the extinction of the species concerned. 6. Clarity in Identifying "Chula Vista Covered Species" and "Sufficiently Conserved Species" The Recital also makes reference in Section 1.4 to "all other approved MSCP subarea plans on which the conservation of the particular Chula Vista Covered Species depends" needing to "remain in effect and [be] properly implemented" in order for the Take Authorization of the Section 10(a) permit to be valid for these species. The IA (and ITP) need to specify clearly which other subarea plans must remain in effect and be properly implemented, because take authorization is not to depend on functioning subarea plans for some of the smaller subarqa plans, such as Coronado, Del Mar, Lemon Grove and National City. The MSCP Subregional Plan and City of San Diego Subarea Plan were clear that for all - or nearly all - of the Chula Vista Covered Species, take authorization should be provided and maintained as long as the City of San Diego, County of San Diego and Chula Vista had operating MSCP subarea plans. Section 3.40 - Species Adequately Conserved. This definition fails to concretely define the term and, consequently, is illusory. As currently worded, the reader does not know which species the Parties are agreeing are "Species Adequately Conserved." We agree that these particular species should be concretely identified · in an Exhibit to the IA. Perhaps the deficiency in the definition can be corrected by breaking the definition into two sentences, as follows: #3661 v3 13 Subarea Plan and the City shah receive take authority for them, regardless of .... " Section 2.8 - Chula Vista Covered Species. The definition should specifically identify which subarea plans (in addition to Chula Vista's) need to be approved and fimctioning in order to grant Chula Vista incidental take authority for which particular "Chula Vista Covered Species." Minor IA Comments The assurances related to Section 7 Consultations should be strengthened for Covered Projects. Section 13.1. This provision should also extend protections to Covered Projects in the same manner as protection is extended to existing and prospective Third Party Beneficiaries. The final sentence of this paragraph should reference "reasonable andprudent alternatives" in addition to "take avoidance and take minimization measures," such that the start of the last sentence should begin: "Any take avoidance and take minimization measures and any reasonable and prudent alternatives included under the terms and conditions o£the Section 7 biological opinion .... " The permit revocation provisions must comply with existing regulations and should not allow for partial revocation of the Section 10(a) permit Section 16.2(c). The language purports to allow the FWS to only partially revoke or terminate the City's permit. Existing FWS regulations do not allow for only apartial revocation of the permit. The IA should not try to incorporate hundreds of other document,*.. Section 25.4. The final sentence of this paragraph is inappropriately vague. The sentence contains the phrase "and other documents associated with these plans," which should be eliminated - as no one possibly can tell what "other documents" are to be viewed as integral to the IA. The administrative record of the MSCP Subregional Plan and Chula Vista Subarea Plan consists of hundreds - perhaps thousands - of such documents. Although it may be appropriate to reference the Subregional Plan and Subarea Plan, no other documents should be referenced in this sentence. Section 3.2. Similar to the City and County of San Diego's Implementing Agreements, we suggest the following sentence be added to the end of Section 3.2: #3661 v3 14 Section 3.2. Similar to the City and County of San Diego's Implementing Agreements, we suggest the following sentence be added to the end of Section 3.2: The three-volume MSCP Subregional Plan Resource Document, and all M$CP-related drafts, position papers, worMng documents and other documents, are specifically not incorporated into this Agreement. The provision for termination of the IA by the City must be clarified. Section 22([I). The obligations which the City would be required to continue to carry out must be limited to those obligations which are tied to, or directly associated with, the incidental take which is going to be continued to be authorized by the Subarea Plan and City ITP. A reference date should be corrected. Section 2.19. The MSCP Subregional Plan prepared by the City of San Diego is dated 1997, not August 1998. #3661 v3 15 /7- ¢'7 April 23, 2003 Chula Vista Planning Commission City of Chula Vim 276 Fourth Avenue (;hula Vista, California 91910 RE: cOMMENT TO CHULA VISTA PLANNING COMMISSION RE MSCP SUBAKEA PLAN Dear Honorable Members oftbe Chula Vista Plannlng Commission. Two topics, raised in the City response to the RMA comment letter, require further comment. The fa'st mimes to how the Otay Ranch Conveyance Plan will be updated from time to time to insure that the entire 11,375 acre presexve is conveyed m public ownership. The second relates to the area-specific management directives, for the Otay Ranch Preserve, and by whom they are prepared. Updatinp~ the Mitigation Ratio of tl~e Conveyance Plan Like the Omy Ranch Resource Management Plan, the MSCP Subarea Plan remains committed to making sure that all 11,375 acres oftha Otay Ranch Preserve is eventually dedicated to the public. The mechanism is simple - for each acre of land developed, a corresponding mount of the Preserve must be dedicated. In 1996, the Phase 2 RMP calculated the ratio at 1.188 acres of preserve land for each acre of development land, but warned that this calculation might not remain the same for all time, "lilt should be emphasized that as SPA plans are processed, the actual conveyance obligation may vary slightly from the forecast referenced above due to more precise planning and engineering." The Subarea Plan correctly echoes this point, and remains committed to the Phase 2 RMP's principle that "[t]hese differences will not result in a change in the tOtal acres eventually conveyed to the Resource Preserve." As the amounts of ltmd actually conveyed to the Preserve deviate from the original forecast, the conveyance ratio will have to change to make sure that the last development approval in Olay Ranch is accompanied by the d~lication of the last acreage in the Preserve. The Subarea Plan does not sl>ecifically address when the necessary adjustments.to thc mitigation ratio should be made, but a staffmsponse to a comment letter does - it states that the conveyance ratio will be re-evaluated "based on f't~xu'e amendments to the RMP presex've boundary." 1903 Wrlgh~ PI&coo Sulto 2~0 * $1rlsbld CsII[ornl8 98008 T 780.918.8200 * g 760.918.8210 24-~?k-U3 IHU U~:Z~ FN Chula Vista Planning Commission April 23, 2003 Page 2 of 2 That response is inadequate. The MSCP relies on the dedication of the Otay Po, nch Preserve by the development of Otay Ranch. if the current ratio does not result in completed dedication of the Otay Ranch Preserve, them this MSCP will not have a chance to be successful because it will have been based on dedications that will not occur. Amendments to ~he RMP preserve boundary should trigger a re-evaluation of the conveyance ratio, to be sure, but the re- evaluation should not wait until then. There should be a regular, periodic re-evaluation of the conveyance ratiO, so that the inevitable adjustments to the conveyance ratio will be small, and easy to digest by both developers and land owners in Otay Ranch. We urge the City to incorporate into the MSCP Subarea Plan, and k0llmatety the R-]~~, an annual re-evaluation of the conveyance ratio until the entire Otay Ranch Preserve is dedicated to the public, Prftmrin~ the .4rea-Specific Management Directives for Ota¥ Ranch Area-Specific Management Directives ("ASMDs") are an impozCant t0ol under the MSCP. They set the ground rules for management of the presexve lands, and while the details may va~ with specific sites, the ASMDs should be consistent throughout the MSCP preserve, particularly large sub-seclions such as Otay Ratteh. The ftrst ASMDs approved will set the precedent for later ASMDs fbr the rest of the Otay Ranch preserve. The process of POM approval, particularly of the early ASMDs, should include the public and other Otay Ranch developers and property owners, so that precedent is set only after considering the potential impact of principles in the early ASMDs on all portion.q of the Otay Ranch Preserve. We urge the City to incorporate into the MSCP Subarea Plan a commitment to review and approve ASMDs only after consultation with all other developers and property owners expected to dedicate land to the preserve. S,afl has noted in a response to a comment letter that the ASMDs will be prepared by thc developers. We understand that the identification of the lands to be conveyed, and to which the propo~d ASMDs will apply, will be consistent with the Otay Ranch Conveyance Plan. Thank you tbr your attention to this matter. Sincerely, . . Simon Malk cc: Rikki Alberson IMPLEMENTING AGREEMENT by and among UNITED STATES FISH AND WILDLIFE SERVICE CALIFORNIA DEPARTMENT OF FISH AND GAME CITY OF CHULA VISTA TO ESTABLISH A MULTIPLE SPECIES CONSERVATION PROGRAM ("MSCP") FOR THE CONSERVATION OF THREATENED, ENDANGERED AND OTHER SPECIES IN THE VICINITY OF CHULA VISTA, CALIFORNIA FEBRUARY 2003 This Implementing Agreement ("Agreement") is entered into as of the day of ,2002, by and among the UNITED STATES FISH AND WILDLIFE SERVICE ("USFWS"), an Agency of the United States Department of the Interior; the CALIFORNIA DEPARTMENT OF FISH AND GAME ("CDFG"), a Subdivision of the California Resources Agency; and THE CITY OF CHULA VISTA ("CITY"), a municipal corporation, hereinafter collectively called the "Parties." AGREEMENT Based upon the recitals, definitions, mutual covenants and obligations, and other provisions set forth below, and other valuable consideration, the Parties agree as follows: 1.0 RECITALS 1.1 The Multiple Species Conservation Program ("MSCP Subregional Plan") describes a cooperative federal, state and local program of conservation for a number of"Covered Species" of plants and animals. The MSCP Subregional Plan is a product of lengthy study and negotiation by the Parties and other interested persons and entities, and represents coordination of private development and conservation interests with federal, state and local governments. 1.2 The MSCP Subregional Plan Area is depicted on the map attached to this Agreement as Exhibit A. The MSCP Subregional Area includes the territory of 12 general purpose agencies of government, listed in Exhibit B. These agencies may elect to participate in the MSCP, and upon preparing a Subarea Plan and obtaining Federal and State take authorizations, such agencies ~vill become a "Participating Local Jurisdiction." Some regional public facility providers and special districts which operate ~vithin the MSCP Subregional Plan Area may also elect to participate in the MSCP. Upon preparing a Subarea Plan and obtaining Federal and State take authorizations, such entities will become a "Participating Special Entity." 1.3 A goal of the MSCP Subregional Plan is to conserve biodiversity in the MSCP Subregional Plan Area and to achieve certainty in the land development process for both private sector and public sector land development projects. 1.4 Pursuant to the federal Endangered Species Act ("ESA") and the Califomia Endangered Species Act ("CESA"), the United States and the State of California, respectively, have identified certain plant and animal species which are or may be found in the MSCP Subregional Plan Area and which, pursuant to the ESA or CESA or other laws or programs, have been listed as threatened or endangered, have been proposed for listing as threatened or endangered, are candidates for listing as threatened or endangered, or which are otherwise of concern. Of such species, those which will be adequately conserved by the MSCP Subregional Plan when the MSCP Subregional Plan is fully implemented through subarea plans are referred to in this Agreement as "Covered Species." The independent and severable take authorizations issued to the CITY apply to Species Adequately Conserved (as defined herein) by the Chula Vista Subarea Plan, ("Subarea Plan") which are listed in Exhibit E. The take authorizations also apply to those species adequately conserved by the Chula Vista Subarea Plan in conjunction with other Subarea Plans currently in effect within the Page 2 of 48 MSCP Subregional Plan Area which are collectively referred to as "Chnla Vista Covered Species." These species are also listed in Exhibit E. While the take authorizations are effective as to all Species Adequately Conserved so long as the CITY properly implements the Chula Vista Subarea Plan and without regard to the status of any other approved MSCP Subarea Plans, take authorizations for all other Chula Vista Covered Species shall remain effective for so long as the CITY, and all other approved MSCP subarea plans on which the conservation of the particular Chula Vista Covered Species depends, remain in effect and are properly implemented. Because take oflisted plant species is not prohibited under the Federal ESA and therefore is not authorized under the Section ! 0(a)(1)(B) Permit issued to the CITY, plant species included on the list of Chula Vista Covered Species and Species Adequately Conserved are listed on the Section 10(a)(1)(B) Permit in recognition of the conservation measures and benefits provided for such plant species under the Chula Vista Subarea Plan. Any reference in this Agreement or in the Chula Vista Subarea Plan to Incidental Take or Take of Chula Vista Covered Species or Species Adequately Conserved shall, for the purpose of incidental take authorized under the Section 10(a)(1)(B) Permit, refer solely to species other than plants on the Chula Vista Covered Species list. 1.5 Future growth and land development within the MSCP Subregional Plan Area, including both public and private projects, may result in a reduction of Covered Species habitat and/or the taking of Covered Species incidental to the carrying out of other~vise lawful activities. 1.6 The CITY participated in the development of the MSCP Subregional Plan to meet the requirements of the ESA, the CESA, the Natural Community Conservation Planning Act of 1991 ("NCCP Act"), the National Environmental Policy Act ("NEPA") and the California Environmental Quality Act ("CEQA") with respect to public and private development in the greater San Diego area and to avoid potential obstacles posed by project-by-project review under the ESA and CESA. Consistent with the NCCP Act, the MSCP Subregional Plan is a broad-based planning effort intended to provide for effective protection and conservation of the region's wildlife and plant heritage while continuing to allow appropriate development and growth. Such planning is an effective tool in protecting the region's biodiversity while reducing conflicts between protection of wildlife and plants and the reasonable use of natural resources for economic development. The MSCP Subregional Plan has been developed through a cooperative effort involving the USFWS, CDFG, local government agencies, property owners, development interests, environmental groups, and the public within the MSCP Subregional Plan Area. 1.7 The MSCP Subregional Plan is a comprehensive, long-term habitat conservation plan for the Covered Species which addresses the needs of multiple species and the preservation of natural vegetation communities. The MSCP Subregional Plan addresses the potential impacts of urban growth, natural habitat loss and species endangerment, and creates a plan to mitigate for the potential loss of Covered Species and their habitat due to the direct, indirect, and cumulative impacts of future development of both private and public lands within the MSCP Subregional Plan Area. 1.8 The MSCP Subregional Plan as implemented through the CITY's Subarea Plan and this Agreement establishes the conditions under which the CITY, for the benefit of itself and of public and private landowners and other land development project proponents within its Subarea boundaries, will receive from the USFWS and the CDFG certain long-term take authorizations (and Page 3 o1'48 an acknowledgment that the MSCP Subregional Plan satisfies the conditions established in the Section 4(d) Special Rule for the coastal California gnatcatcher) which will allow the taking of Chula Vista Covered Species and Species Adequately Conserved incidental to land development, construction of public facilities, and other lawful land uses which are authorized by the CITY. 1.9 As more particularly described in Section 1.4 of this Agreement, the take authorizations will authorize the Incidental Take of all Chula Vista Covered Species and Species Adequately Conserved, including those Chula Vista Covered Species and Species Adequately Conserved which are not presently listed as threatened, endangered or candidate species under the ESA or CESA. Conserving unlisted Chula Vista Covered Species and Species Adequately Conserved (the "taking" of which is not unlawful under the ESA or CESA) the same as listed Chula Vista Covered Species and Species Adequately Conserved (the taking of which is unlawful in the absence of a take authorization) equally in the MSCP Subregional Plan and the City of Chula Vista Subarea Plan may prevent such species from ever becoming threatened or endangered and will provide certainty regarding how the subsequent listing of such species under the ESA and CESA will affect permitting and mitigation requirements for future land development within the Chula Vista Subarea Plan. 1.10 Implementation of the MSCP Subregional Plan will allow the Participating Local Jurisdictions and Participating Special Entities to maintain development flexibility by proactively planning a regional preserve system which can meet future development project mitigation needs, while recognizing the independent land use planning and permitting authority of those entities. 1.1 1 Preservation of natural vegetation communities and wildlife will significantly enhance the quality of life in the MSCP Subregional Plan Area and set aside lands for the future use and enjoyment of the citizens within the MSCP Subregional Plan Area, the state and the nation. 1.12 The MSCP Subregional Plan was submitted to the USFWS and CDFG in support of, respectively, an application for a Section 10(a) Permit and aNCCP Authorization. The CDFG has approved the MSCP Subregional Plan, and the USFWS has issued written concurrence that the MSCP Subregional Plan meets the statutory criteria for issuance of a Section 10(a) Permit. The MSCP Subregional Plan is implemented through individual Subarea Plans, including the City of Chula Vista Subarea Plan, by having Participating Local Jurisdictions execute separate but coordinated agreements in a form substantially similar to this Agreement. Such agreements need not be executed at the same timel Instead, the USFWS and CDFG anticipate that implementation of the MSCP Subregional Plan will be phased in over time, through both the periodic addition of Participating Local Jurisdictions and Participating Special Entities, and the phased implementation of their respective MSCP-related obligations. 1.13 Any project approved by the CITY must be in conformance with the City of Chula Vista Subarea Plan, which incorporates the requirements of the MSCP Subregional Plan, including the habitat and species conservation goals and requirements found in Table 3-5 of the MSCP Subregional Plan (Appendix A of the City of Chula Vista Subarea Plan). In the event of any conflicts, the provisions of the City of Chula Vista Subarea Plan and this Agreement, which reflect a more particularized analysis of the conservation needs of Covered Species and their habitats within Page 4 of 48 the Chula Vista Subarea, supersede those of the MSCP Subregional Plan with respect to implementation of the City of Chula Vista Subarea Plan. The terms of this Agreement and the Subarea Plan shall be interpreted as supplementary to each other. In the event of any direct conflict between the provisions of this Agreement and the Subarea Plan, this Agreement shall control. 1.14 The purposes of this Agreement are: A. To ensure the implementation of the City of Chula Vista Subarea Plan; B. To contractually bind each of the Parties to fulfill and faithfully perform the obligations, responsibilities, and tasks assigned to it pursuant to the terms of the City of Chula Vista Subarea Plan and this Agreement; and, C. To provide remedies and recourse should any of the Parties fail to perform its obligations, responsibilities, and tasks as set forth in the MSCP, the City of Chula Vista Subarea Plan, and this Agreement. 2.0 DEFINITIONS The following terms as used in this Agreement shall have the meanings set forth below: 2.1 "Additional Conservation Measures" means the conservation measures beyond those provided by the MSCP and the Subarea Plan which the USFWS and CDFG may seek from the CITY under the cimumstances described in Sections 9.2(a) and 9.3 of this Agreement. 2.2 "Agreement" means this document. 2.3 "Appropriate Managing Entity" means the manager of any portion of the Preserve, including but not limited to, the CITY, a third-party under the direct control of the CITY, or the Otay Ranch Preserve Owner/Manager. 2.4 "CDFG" means the California Department ofFish and Game, a subdivision of the California Resoumes Agency charged with administering the California Endangered Species Act and the Natural Community Conservation Planning Act. 2.5 "CEQA" means the California Environmental Quality Act (Cal. Public Resources Code § 21000 et seq.), including all regulations promulgated pursuant to that Act. 2.6 "CESA" means the California Endangered Species Act (California Fish and Game Code § 2050 et seq.), including all regulations promulgated pursuant to that Act. CESA prohibits CDFG from authorizing any incidental take of a state-listed threatened or endangered species if that take would jeopardize the continued existence of the species. 2.7 "Changed Circumstances" means, pursuant to 50 C.F.R. 17.3, changes in Page 5 of 48 r circumstances affecting a species or geographic area covered by the Chula Vista Subarea Plan that can reasonably be anticipated by plan developers, the USFWS, and CDFG and that can be planned for (e.g., the listing of new species, or a fire or other natural catastrophic event in areas prone to such events.) Changed Circumstances and planned responses to Changed Circumstances are identified in section 5.8 of the Chula Vista Subarea Plan. 2.8 "Chula Vista Covered Species" means those Covered Species adequately conserved by the Chula Vista Subarea Plan in conjunction with other approved MSCP subarea plans and for which Take is granted under the Section 10(a)(1)(B) Permit and NCCP Authorization, to the extent that take of one or more of such species is otherwise prohibited under state or federal law, for so long as the Chula Vista Subarea Plan and other MSCP subarea plans identified as necessary for the conservation of such species remain in effect. Chula Vista Covered Species include Species Adequately Conserved, as defined below, and are listed in Exhibit E of this Agreement. 2.9 "Chula Vista MSCP Planning Area" means the land within the CITY's General Plan boundaries, which includes area within the incorporated boundaries of the CITY and unincorporated areas of the County of San Diego, as depicted in Exhibit C and in Figure 1-2 of the Chula Vista Subarea Plan. 2.10 "Chula Vista Subarea" means the land within the incorporated boundary of the CITY as depicted in Exhibit C and in Figure 1-2 of the City of Chula Vista Subarea Plan, as may be modified from time to time by annexation in accordance with this Agreement. 2.1 1 "Chula Vista Subarea Plan" means the plan prepared by the CITY and reviewed and approved by the USFWS and CDFG, and adopted by the CITY as part of the CITY's General Plan, to implement the MSCP Subregional Plan within the Chula Vista Subarea. 2.12 "Covered Activities" means land uses, land and public infrastructure development, and conservation activities identified in the Chula Vista Subarea Plan and subject to the CITY's jurisdiction and control that may result in Incidental Take of Covered Species during the term of the Subarea Plan and for which Incidental Take coverage is provided under the take authorizations. 2.13 "Covered Project" means several specific projects involving land use development within the CITY in which hard-line Preserve boundaries have been established pursuant to the approved Chula Vista Subarea Plan, and where conservation measures consistent with the MSCP Subregional Plan and Chula Visa Subarea Plan have been or will be specified as binding conditions of approval in such Projects' plans and approvals. Covered Projects are shown on Figure 5-1 of the City of Chula Vista Subarea Plan, and are listed in Exhibit D to this Agreement. The conditions of coverage for each Covered Project are specified at 7.5.6 of the Subarea Plan. 2.14 "Covered Species" means all species within the MSCP Subregional Plan that will be adequately conserved by the MSCP and for which Take will be authorized when the MSCP is implemented through the Subarea Plans. Covered Species includes Species Adequately Conserved and Chula Vista Covered Species (for which Take Authorizations will be provided within in the Subarea), and all other MSCP Covered Species identified in the MSCP Subregional Plan, as listed in Page 6 of 48 Exhibit E and Table 4-1 of the City of Chula Vista Subarea Plan. For purposes of this Agreement, the City of Chula Vista Subarea Plan, and the Section 10(a)(1)(B) Permit and NCCP Authorization, "Covered Species" also includes the Quino checkerspot butterfly (Euphrdrayas editha quino), even though the species is not on the MSCP Subregional Plan's list of MSCP Covered Species. 2.15 "Dependent upon" a significantly or sufficiently conserved vegetation community, as described in Section 4.2.4 of the MSCP Subregional Plan and as listed in Exhibit F to this Agreement, means that vegetation community provides the primary space for individuals of the species to feed, grow, reproduce, and/or undertake essential behavior patterns. A species is likely dependent upon a vegetation community if that vegetation community provides its primary sources of food, nutrition, substrate, cover and/or shelter, including sites for breeding, reproduction, pollination, and rearing of offspring on a continual or seasonal basis. Ifa species is considered dependent upon a sufficiently or significantly conserved vegetation community, then that vegetation community would provide the primary biological physical elements essential for the conservation of the species. 2.16 "Effective Date of Agreement" means the date following execution of this Agreement by all Parties, on which the last of the required take authorizations is issued. 2.17 "Effective Date of Take Authorizations" means the date upon which the Subarea Plan becomes effective through enactment of the last of the General Plan amendments and ordinances specified in the Chula Vista Subarea Plan. 2.18 "ESA" means the federal Endangered Species Act of 1973, as amended (16 U.S.C. § 1531 et seq.), including all regulations promulgated pursuant to that Act. 2.19 "Habitat Conservation Plan" and "HCP" mean the Multiple Species Conservation Program ("MSCP Subregional Plan") prepared by THE CITY OF SAN DIEGO for the MSCP Subregional Plan Area pursuant to Section 10(a) of the ESA (16 U.S.C. § 1539(a)) and the NCCP Act, and dated August 1998, and the Chula Vista Subarea Plan dated __ as adopted by the CITY and approved by USFWS and CDFG. 2.20 "HLIT" means the Habitat Loss and Incidental Take Ordinance(s) of the CITY which establishes mitigation standards for biological resources and implements the Chula Vista Subarea Plan outside of Covered Projects. Third Party Beneficiary status will be extended to persons and entities under the jurisdiction and control of the CITY through permits issued pursuant to the HLIT. 2.21 "Incidental Take" means the Take of a species which is incidental to and not the purpose of the carrying out of an otherwise lawful activity. For purposes of the Section 10(a)(1)(B) Permit, Incidental Take refers solely to animal species. 2.22 "MBTA' means the federal Migratory Bird Treaty Act (16 U.S.C. § 701 et seq.), including all regulations promulgated pursuant to that Act. 2.23 "MSCP Subregional Plan" means the Multiple Species Conservation Program, a comprehensive habitat conservation planning program, adopted in August 1998, which addresses Page 7 of 48 multiple species habitat needs and the preservation of native vegetation for a 900-square mile area in southwestern San Diego County, California. 2.24 "MSCP Subregional Plan Area" consists of approximately 900 square miles in southwestern San Diego County, referred to in the MSCP Subregional Plan as the "MSCP Subregional Plan Study Area." The MSCP Subregional Plan Area is depicted on Exhibit A. 2.25 "Multi-Habitat Planning Area" or "MHPA" means the portion of the MSCP Subregional Plan Area, as described in Section 3.0 of the MSCP Subregional Plan, within which preserve planning is focused and within which permanent conservation of habitat lands will be accomplished through implementation of the subarea plans. Within each subarea, the MHPA is further defined by mapped boundaries and/or by quantitative targets for habitat conservation and other criteria as specified in the individual subarea plans. 2.26 "NCCP Act" means the Califomia Natural Community Conservation Planning Act of 1991, as amended (California Fish and Game Code § 2800 et seq.), including all regulations promulgated pursuant to the Act. Amendments to the NCCP Act effective January 1, 2003 (Chapter 4, sections 1 and 2 of California statutes 2002 (S.B. 107)) expressly provide that the Chula Vista Subarea Plan will be solely governed in accordance with the NCCP Act as it read on December 31, 2001, and not by the other substantive provisions S.B. 107. 2.27 "NCCP Authorization" means the authorization issued in accordance with this Agreement by CDFG under California Fish and Game Code § 2835. The NCCP Authorization permits the Take of Chula Vista Covered Species, including those species listed under CESA as threatened or endangered, species that are candidates for such a listing, and unlisted species except that the NCCP Authorization does not as of the Effective Date authorize Take of five fully protected birds that are listed in Fish and Game Code section 3511 (golden eagle, American peregrine falcon, bald eagle, California brown pelican and California least tern) or the mountain lion, which is protected by Fish and Game Code section 4800. 2.28 "NCCP Plan" means a plan developed in accordance with the NCCP Act which provides comprehensive management and conservation of multiple wildlife species, and which identifies and provides for the regional or area-wide protection and perpetuation of natural wildlife diversity while allowing compatible and appropriate development and growth. 2.29 "No Surprises Rule" means the rule promulgated by USFWS and currently codified at 50 C.F.R. 17.3, 17.22(b)(5) and 17.32(b)(5) that extends certain assurances regarding future mitigation obligations to permittees obtaining incidental take permits under Section 10(a) of the Federal ESA. 2.30 "Operating Conservation Program" means the totality of the conservation and management measures provided for under the Chula Vista Subarea Plan to minimize, mitigate and monitor the impacts of take of the Covered Species as described in Sections 5 through 8 of the Plan. The Operating Conservation Program includes the CITY'S reporting obligations under the Section 10(a)(1)(B) Permit and NCCP Authorization and the CITY's responses to Changed Circumstances Page 8 of 48 /7.57 described in Section 5 of the Plan. 2.31 "Otay Ranch Planning Component" means all territory within the Chula Vista MSCP Planning Area which is located within the Otay Ranch General Development Plan, which includes area within the incorporated boundaries of the CITY and unincorporated areas of the Cotmty of San Diego, as depicted in Figure 2-1 of the City of Chula Vista Subarea Plan. 2.32 "Participating Local Jurisdiction" means any of the local governments identified in Exhibit B which prepares and receives USFWS and CDFG approval of a Subarea Plan, and which enters into an Implementing Agreement with the USFWS and CDFG. It is anticipated that such Implementing Agreement will be substantially similar in form to this Agreement. 2.33 "Participating Special Entity" means any regional public facility provider (such as a utility company) or special district which operates and/or owns land within the MSCP Subregional Plan Area and which enters into an Implementing Agreement with the USFWS and CDFG pursuant to and consistent with the MSCP Subregional Plan and which is substantially similar in form to this Agreement. 2.34 "Party" and "Parties" mean the signatories to this Agreement, namely the United States Fish and Wildlife Service, the California Department offish and Game, and the CITY. 2.35 "Preserve" means areas within the CITY incorporated limits which have been dedicated and accepted by the CITY for permanent conservation and which will be managed for their biological resources. 2.36 "Preserve Owner/Manager" means the entity responsible for overseeing the day-to-day and long-range preserve management activities within the Otay Ranch Preserve, including but not limited to management of resources, restoration of habitat, and enforcement of open space restrictions. 2.37 "Section 4(d) Special Rule" means the regulation concerning the coastal California gnatcatcher, published by the USFWS on December 10, 1993 (58 Federal Register 65088) and codified at 50 C.F.R. § 17.41 (b), which describes on particular set of conditions under which the Incidental Take of the coastal California gnatcatcher in the course of certain land use activities is lawful. 2.38 "Section 10(a)(1)(B) Permit" means the permit issued by the USFWS to the CITY under section 10(a)(1)(B) of the E SA (16 U.S.C. § 1539(a)(1)(B)) to allow the Incidental Take of animal species on the list of Species Adequately Conserved and the list of Chula Vista Covered Species and which identifies plant species which are adequately conserved by the Chula Vista Subarea Plan alone or in combination with other approved MSCP Subarea Plans. 2.39 "Significantly Conserved Vegetation Communities" means those vegetation communities described in Section 4.2.4 of the MSCP Subregional Plan and as listed on Exhibit F to this Agreement, which will be significantly conserved through implementation of the MSCP Subregional Plan and the approved Chula Vista Subarea Plan. Page 9 of 48 2.40 "Species Adequately Conserved" means those species listed in Exhibit E and Table 4-1 of the City of Chula Vista Subarea Plan which are adequately conserved by the Chula Vista Subarea Plan, and the CITY shall receive Take Authorizations for them regardless of the participation or continued participation of any other Participating Local Jurisdiction. 2.41 "Subarea" means the area encompassed by the Chula Vista Subarea Plan, as depicted in Exhibit C, and those areas within the Chula Vista Planning Area that are armexed to the CITY pursuant to the terms of this Agreement and to which the Section 10(a)(1)(B) Permit and/or NCCP Authorization shall apply. 2.42 "Sufficiently Conserved Vegetation Communities" means those vegetation commtmities described in Section 4.2.4 of the MSCP Subregional Plan and as listed on Exhibit F to this Agreement, which will be sufficiently conserved through implementation of the MSCP Subregional Plan and the approved Chula Vista Subarea Plan. 2.43 "Take" and "Taking" have the meaning provided by the ESA and the California Fish and Game Code, including relevant regulations and case law. 2.44 "Take Authorizations" means the authority granted through the Section 10(a)(1)(B) Permit and the NCCP Authorization. 2.45 "Third Party Beneficiary" means any landowner or other public or private entity, including those undertaking Covered Projects, that obtains and maintains Third Party beneficiary status in compliance with Sections 10 and 17 of this Agreement. 2.46 "USFWS" means the United States Fish and Wildlife Service, an agency of the United States Department of the Interior charged with administering the ESA. 2.47 "Wetlands" means generally those areas that are inundated or saturated by surface or ground water at a frequency or duration sufficient to support a prevalence of vegetation typically adapted for life in saturated soil conditions. For purposes of the Chula Vista MSCP Subarea Plan, Wetlands are those lands which contain one or more of the naturally occurring wetland communities listed on Table 5-6 of the Chula Vista MSCP Subarea Plan and further described in Appendix B of the Chula Vista MSCP Subarea Plan. Wetlands also include areas lacking wetland communities due to non-permitted filling of previously existing Wetlands. 3.0 HABITAT CONSERVATION PLAN/NCCP PLAN 3.1 Pursuant to Section 10(a) of the ESA (16 U.S.C. § 1539(a)), the City of San Diego has prepared a Habitat Conservation Plan known as the "Multiple Species Conservation Program" or "MSCP Subregional Plan." The City of Chula Vista Subarea Plan, in conjunction with the MSCP Subregional Plan, qualifies as an NCCP Plan under the NCCP Act. The MSCP Subregional Plan and Chula Vista Subarea Plan propose a program of conservation for the Covered Page 10 of 48 Species and protection of their habitat in perpetuity through land use regulation, acquisition and management. ~ The CITY has submitted its Subarea Plan to the USFWS and the CDFG, and the CITY has requested that the USFWS issue a Section 10(a) Permit and that the CDFG issue a NCCP Authorization, each of which actions will allow the Incidental Take within the Subarea of those Covered Species determined by USFWS and CDFG to be adequately conserved by the MSCP Subregional Plan and the Chula Vista Subarea Plan in accordance with this Agreement (such species are designated as Chula Vista Covered Species and Species Adequately Conserved and are listed in Exhibit E). The CITY has also requested that the USFWS acknowledge that the MSCP Subregional Plan and the Chula Vista Subarea Plan satisfy the conditions under the Section 4(d) Special Rule to allow the Incidental Take of the coastal California gnatcatcher within the Subarea. 3.2 The MSCP Subregional Plan and Chula Vista Subarea Plan and each of their provisions are intended to be and by this reference are incorporated herein. This Agreement is intended to specify, in contract language, the obligations of the Parties under the MSCP Subregional Plan and Subarea Plan, recognizing that the MSCP Subregional Plan and Chula Vista Subarea Plan set forth in planning documents the components of a conservation plan and were not drafted as contract documents. In the event of any direct contradiction, conflict or inconsistency between the MSCP Subregional Plan and the Chula Vista Subarea Plan, the Chula Vista Subarea Plan shall control with respect to issues relating to the Subarea. In the event of any direct contradiction, conflict or inconsistency between the MSCP Subregional Plan or the Chula Vista Subarea Plan on the one hand, and this Agreement on the other, the terms of this Agreement shall control with respect to issues relating to the Subarea. In all other cases, the terms of this Agreement and the terms of the MSCP Subregional Plan and Subarea Plan shall be interpreted to be consistent with and complementary to each other. 4.0 PHASED IMPLEMENTATION The MSCP Subregional Plan Area includes land within the jurisdictional boundaries of twelve local jurisdictions listed in Exhibit B. The USFWS and CDFG recognize and agree that the entire MSCP Subregional Plan will not be implemented simultaneously. Some local jurisdictions may be prepared to implement the MSCP Subregional Plan before others. Implementation of the MSCP Subregional Plan as a whole can and may be phased, with some local jurisdictions joining as Participating Local Jurisdictions (and some regional public facility providers and special districts joining as Participating Special Entities) earlier than others. As of the Effective Date, the USFWS and CDFG recognize and acknowledge that the County of San Diego, City of San Diego, the City of La Mesa, the City of Poway, and the City of Chula Vista have approved subarea plans and are considered Participating Local Jurisdictions. Furthermore, those local jurisdictions which become Participating Local Jurisdictions will receive take authorizations and will obtain the benefits of and incur the obligations imposed by those take authorizations irrespective of whether other local jurisdictions have also joined as and/or currently serve as a Participating Local Jurisdiction. The take authorizations will cover only those covered species determined by USFWS and CDFG to be adequately covered by the Chula Vista Subarea Plan (Species Adequately Conserved) and those The CDFG has approved the MSCP Subregional Plan, and the USFWS has issued written concurrence that the MSCP Subregional Plan meets the statutory criteria for issuance of a Section 10(a)(1)(B) Permit. Page 11 of 48 species determined by USFWS and CDFG to be adequately conserved by the Chula Vista Subarea Plan in conjunction with other approved Subarea Plans (Chula Vista Covered Species). These species are specifically identified in Exhibit E to the Chula Vista Implementing Agreement. The USFWS and CDFG also recognize and agree that the implementation of each Participating Local Jurisdiction's Subarea Plan will likewise be phased in over time in accordance with the schedule provided in each Subarea Plan and/or Implementing Agreement. 5.0 SEVERABILITY The USFWS and CDFG recognize and agree that the take authorizations received by the CITY with respect to Species Adequately Conserved are independent and severable fi.om the other take authorizations which have been or will be issued to other Participating Local Jurisdictions or Participating Special Entities, except as otherwise provided in this section. Subject to other provisions of this Agreement, the CITY's take authorizations for Species Adequately Conserved will remain effective so long as the CITY fulfills its obligations under the Subarea Plan, this Agreement, and the Section 10(a)(1)(B) Permit and NCCP Authorization to implement the MSCP Subregional Plan through the Chula Vista Subarea Plan, including its obligation under Section 9.14 to enfome the terms of the Subarea Plan, this Agreement and the Section 10(a)(1)(B) Permit and NCCP Authorization as to itself and to all Third Party Beneficiaries who receive Incidental Take authorization through the CITY's Section 10(a)(1)(B) Permit and NCCP Authorization. As to all other persons and entities within the City's jurisdiction and control, the City agrees to prohibit, through enforcement of its municipal code, development or other activities contrary to the Subarea Plan, whether or not those parties receive Incidental Take authorization through the CITY's take authorizations. The CITY's take authorizations with respect to Species Adequately Conserved may not be suspended, revoked or terminated without its consent due solely to the actions or inactions of any other person or entity, including the other local jurisdictions identified in Exhibit B (whether or not they have become Participating Local Jurisdictions) unless USFWS or CDFG determine that continuation of the permitted activity would appreciably reduce the likelihood of the survival and recovery in the wild of a Species Adequately Conserved or the actions or inactions of such persons or entities renders the CITY unable to implement the Chula Vista Subarea Plan. Notwithstanding the foregoing, the CITY's Take Authorization for each Chula Vista Covered Species that is not also a Species Adequately Conserved does depend on the continued effectiveness and proper implementation of one or more of the subarea plans of other Participating Local Jurisdictions. In the event a Participating Local Jurisdiction with an approved MSCP Subarea Plan on which Take Authorization for a particular Chula Vista Covered Species depends, withdraws from the MSCP Subregional Plan or such Participating Local Jurisdiction's take authorization for such species is terminated for any reason, then the Take Authorizations for such Chula Vista Covered Species provided to the CITY shall automatically terminate unless the Chula Vista Covered Species is also a Species Adequately Conserved. The USFWS and CDFG shall immediately notify the CITY in the event the CITY's Take Authorizations terminate for any Chula Vista Covered Species due to the withdrawal, or termination of the take authorization of another Participating Local Jurisdiction. Page 12 of 48 /7- / 6.0 LEGAL AUTHORITY OF THE USFWS The USFWS enters into this Agreement pursuant to the ESA, the Fish and Wildlife Coordination Act (16 U.S.C. § 661 - 666c), and the Fish and Wildlife Act of 1956 (16 U.S.C. § 742(1) et seq.). Section 10(a)(1)(B) of the ESA, 16 U.S.C. § 1539(a)(1)(B), expressly authorizes the USFWS to issue a Section 10(a) Permit to allow the Incidental Take of animal species listed as threatened or endangered under the ESA. The legislative history of Section 10(a)(1)(B) and the No Surprises Rule codified at 50 C.F.R. 17.22(b)(5) and 17.32(b)(5) clearly indicates that Congress also contemplated that the USFWS may approve Habitat Conservation Plans that protect unlisted species as if they were listed under the ESA, and that in doing so the USFWS may provide Section 10(a)(1)(B) assurances for such unlisted species. 7.0 LEGAL AUTHORITY OF THE CDFG The CDFG enters into this Agreement pursuant to the NCCP Act. CDFG may authorize the Take of Chula Vista Covered Species pursuant to Fish and Game Code section 2835 without respect to whether those species are listed under CESA. 8.0 SATISFACTION OF LEGAL REQUIREMENTS In order to fulfill the legal requirements that will allow the USFWS to issue the Section 10(a)(1)(B) Permit, an HCP must provide measures that are intended to ensure that any Take occurring within the Subarea will be incidental; that the impacts of such Incidental Take will, to the maximum extent practicable, be minimized and mitigated; that adequate funding to implement the HCP will be provided; and that the Incidental Take will not appreciably reduce the likelihood of the survival and recovery of the Covered Species in the wild. The USFWS has found that the MSCP Subregional Plan and the Chula Vista Subarea Plan as implemented pursuant to this Agreement provides such measures, and satisfies the legal requirements necessary for the USFWS to issue a Section 10(a)(1)(B) Permit authorizing the Incidental Take of Chula Vista Covered Species, and to provide certainty in the form of specific assurances contained in the No Surprises Rule. Likewise, the CDFG finds that the Chula Vista Subarea Plan as implemented pursuant to this Agreement satisfies the legal requirements necessary for the CDFG to issue a NCCP Authorization authorizing the Incidental Take of Chula Vista Covered Species, and to provide certainty in the form of specific assurances contained in this Agreement. Page 13 of 48 9.0 MUTUAL ASSURANCES 9.1 Purpose. The primary purpose of this Agreement is to provide for the long- term reconciliation of new land development within the MSCP Subregional Plan Area, including the Chula Vista Subarea, with the conservation and protection of the Chula Vista Covered Species. Based on and in consideration of this Agreement, the MSCP Subregional Plan, and the Chula Vista Subarea Plan, the Parties hereby agree on and the USFWS and CDFG hereby provide assurances pursuant to their respective regulatory authorities to the CITY, other Participating Local Jurisdictions, Participating Special Entities, and Third Party Beneficiaries with regard to the following provisions contained in this Section 9.0. 9.2. 'No Surprises' Assurances of USFWS and CDFG Assurances. (a) Unforeseen Circumstances. As provided in 50 C.F.R. 17.3, the term "Unforeseen Circumstances" shall mean changes in circumstances affecting a species or geographic area covered by the Chula Vista Subarea Plan that could not reasonably have been anticipated by the plan developers, USFWS, and CDFG at the time of the Plan's negotiation and development, and that results in a substantial and adverse change in the status of a Covered Species. (1) "No Surprises" Assurances. Pursuant to the No Surprises Rule at 50 C.F.R. Sections 17.3, 17.22(b)(5) and 17.32(b)(5), and provided that the CITY is properly implementing the Chula Vista Subarea Plan, USFWS shall not require the CITY to provide additional land, water or other natural resources, or financial compensation or additional restrictions on the use of land, water, or other natural resources beyond the level provided for under the Chula Vista Subarea Plan, this Agreement and the Section 10(a)(1)(B) Permit with respect to Covered Activities without the consent of the CITY. Adaptive Management modifications and plan responses to Changed Circumstances are provided for under the Chula Vista Subarea Plan and therefore are not subject to the restrictions on additional mitigation contained in the No Surprises Rule. IfUSFWS makes a finding of unforeseen circumstances, during the period necessary to determine the nature and location of additional or modified mitigation, the CITY will avoid contributing to appreciably reducing the likelihood of the survival and recovery of the affected species and will exercise its enforcement authorities as provided by law as to third persons under the CITY's jurisdiction and control that are carrying out Covered Activities, to avoid such third persons contributing to appreciably reducing the likelihood of the survival and recovery of the affected species. (2) CDFG Assurances. Except as otherwise Page 14 of 48 //7 provided in this subsection or required by law, CDFG shall not require the CITY to provide, without its consent, additional land, water or financial compensation, or additional restrictions on the use of land, water, or other natural resoumes, for the purpose of conserving Chula Vista Covered Species with respect to Covered Activities in the event of Unforeseen Circumstances, provided the CITY is properly implementing this Agreement and the Chula Vista Subarea Plan. The provisions of this Agreement and the Chula Vista Subarea Plan that address adaptive management and Changed Cimumstances, including changes to the legal status of fully protected species and non-covered species, are not Unforeseen Circumstances and therefore are not subject to these assurances. (3) Unforeseen Cimumstances Finding. In the event that USFWS, CDFG or the CITY believes that Unforeseen Circumstances may exist in accordance with the "No Surprises" mle, it shall immediately notify the other Parties. Within 30 days of such notice, ifUSFWS believes an Unforeseen Circumstance exists, it shall provide written notice of its proposed finding of Unforeseen Cimumstances to the other Parties. USFWS shall clearly document the basis for the proposed finding regarding the existence of Unforeseen Circumstances pursuant to the requirements of 50 CFR §17.22(b)(5)(iii)(C) and 17.32(b)(5)(iii)(C). Within fifteen (15) days of receiving such notice, the CITY, USFWS and CDFG shall meet or confer to consider the facts cited in the notice and potential changes to the Chula Vista Subarea Plan's Operating Conservation Program or management and operation of the Preserve lands. Pursuant to 50 C.F.R. 17.22(b)(5)(iii)(C) and 50 C.F.R. 17.32(b)(5)(iii)(C) USFWS shall make an Unforeseen Cimumstances finding based on the best scientific evidence available, after considering any responses submitted by the CITY pursuant to this section, and USFWS and/or CDFG shall have the burden of demonstrating that Unforeseen Circumstances exist. (4) Effect of Unforeseen Circumstances Finding. Pursuant to 50 C.F.R. 17.22(b)(5) and 17.32(b)(5), in the event that USFWS makes a finding of Unforeseen Circumstances and additional conservation and mitigation measures are deemed necessary to respond to such Unforeseen Circumstances, USFWS may require Additional Conservation Measures from the CITY where the Chula Vista Subarea Plan is being properly implemented, but only if such measures are limited to modifications within the Preserve lands and the Chula Vista Subarea Plan's Operating Conservation Program for the affected species and maintain the original terms of the Chula Vista Subarea Plan to the maximum extent possible. Additional conservation and mitigation measures shall not involve the Page 15 of 48 conunitment of additional land, water or financial compensation or additional restrictions on the use of land, water or other natural resources without the consent of the CITY. (5) Interim Obligations Upon a Finding of Unforeseen Circumstances. IfUSFWS makes a finding of Unforeseen Circumstances, during the period necessary to determine the nature and extent of additional measures required and available, if any, to address the unforeseen circumstances, the CITY will avoid appreciably reducing the likelihood of the survival and recovery of the affected species and will exercise its enforcement authorities as provided by law as to third persons under the CITY's jurisdiction and control that are carrying out Covered Activities, to avoid such third persons contributing to appreciably reducing the likelihood of the survival and recovery of the affected species. (b) Changed Circumstances. (1) Changed Circumstances Defined. As provided in 50 C.F.R. 17.3, the term "Changed Circumstances" means changes in circumstances affecting a species or the geographic area covered by the Chula Vista Subarea Plan that can reasonably be anticipated by CITY, USFWS, and CDFG and that can be planned for in the Chula Vista Subarea Plan (e.g. the listing of a new non-covered species, or a fire or other natural catastrophic event in areas prone to such events.) Changed circumstances and planned responses to those circumstances are described in Section 5 of the Chula Vista Subarea Plan. (2) CITY- Initiated Response to Changed Circumstances. The CITY will immediately notify USFWS and CDFG upon learning that any of the Changed Circumstances listed in Section 5 of the Chula Vista Subarea Plan has occurred, and shall provide written notice within seven (7) days. Within 30 days, the CITY shall modify its activities and shall require affected third persons under its direct control to modify their activities, as appropriate, in accordance with Chapter 5 of the Chula Vista Subarea Plan, to the extent necessary to minimize and mitigate the effects of the Changed Circumstances. The CITY shall report to USFWS and CDFG on its actions. Such modifications will be initiated without awaiting notice from USFWS or CDFG. Such modifications are provided for in the Chula Vista Subarea Plan and do not constitute Unforeseen Circumstances or require amendment of the Section 10(a)(1)(B) Permit, NCCP Authorization, or the Chula Vista Subarea Plan. Page 16 of 48 (3) USFWS-Initiated or CDFG-Initiated Response to Changed Circumstances. If USFWS or CDFG determines that Changed Circumstances have occurred and that the CITY has not responded in accordance with Section 5 of the Chula Vista Subarea Plan, the USFWS or CDFG will so notify the CITY and, as appropriate, direct the CITY to make the required changes. Within thirty (30) days after receiving such notice, the CITY, will make the required changes and report to USFWS and CDFG on its action. Such changes are provided for in the Chula Vista Subarea Plan, and do not constitute Unforeseen Circumstances or require amendment of the Section 10(a)(1)(B) Permit, NCCP Authorization, or the Chula Vista Subarea Plan. The USFWS may extend the period of time in which to implement the CITY's planned responses upon the CITY's showing of good cause, which extension will not be unreasonably withheld. 9.3. Future Listings. A. Consideration of the MSCP Subregional Plan and Similar Plans. To the extent required and permitted by the ESA, the CESA and the NCCP Act, the USFWS and CDFG shall take into account the species and habitat conservation provided under the MSCP Subregional Plan, the Chula Vista Subarea Plan, this Agreement, and the species and habitat conservation provided through all other existing conservation efforts (including, but not limited to, other plans approved under the ESA, CESA, or NCCP Act, and any relevant conservation agreements), as well as all information and data developed in the course of these efforts which is made available to them, in any future determinations, and in any future recommendations from the CDFG to the California Fish and Game Commission, concerning the potential listing as threatened or endangered of any Chula Vista Covered Species or any other species which is not so listed as of the Effective Date, or the potential designation of any critical habitat for any species. B. Chula Vista Covered Species. If a Chula Vista Covered Species is not listed as threatened or endangered under the ESA as of the Effective Date, and becomes so listed during the term of this Agreement, then the Section 10(a)(1)(B) Permit shall become effective with respect to such species concurrent with its listing as threatened or endangered. The NCCP Authorization authorizes incidental take of all Chula Vista Covered Species except five fully protected species from the Effective Date of Take Authorizations; for that reason, the subsequent CESA listing or candidate status ofa Chula Vista Covered Species will have no effect on the scope of the NCCP Authorization. C. Non-Covered Species. If a species which is not a Chula Vista Covered Species is subsequently proposed for listing as threatened or endangered under the ESA or CESA or is accepted by the California Fish and Game Commission as a candidate for listing under CESA after the Effective Date, and it is determined by the USFWS or CDFG based on reliable scientific evidence that such species occurs in the Subarea, the USFWS and CDFG will (1) work with the CITY to identify, within six (6) months, the conservation measures, if any, that are necessary to adequately protect the species, and (2) determine whether such conservation measures are beyond those Page 17 of 48 prescribed by the MSCP Subregional Plan and/or the City of Chula Vista Subarea Plan. Although such conservation measures may be identified after such species is proposed for listing, the CITY may choose not to approve and implement such measures until the species is actually listed. Upon application by the CITY which meets the requirements of the ESA and the NCCP Act, and following compliance with applicable procedures, Incidental Take of a non-covered, listed species shall be authorized provided the legal standards for such authorization have been met. 1. Adequate Conservation Measures Already in the MSCP Subregional Plan. If the conservation measures already contained in the MSCP Subregional Plan, as implemented through the Chula Vista Subarea Plan and other approved Subarea Plans, are adequate to fulfill the conservation measures identified pursuant to subsection 9.3.C above, then upon application by the CITY for Take Authorization for such species and following satisfaction of applicable review procedures as required by the ESA and the NCCP Act, the Parties will amend this Agreement to add such species to the list of Chula Vista Covered Species and, if appropriate, to the list of Species Adequately Conserved and, following compliance with all applicable statutory and regulatory requirements, the USFWS and CDFG shall issue Section 10(a)(1)(B) Permit and NCCP Authorization for such species effective for the remaining term of this Agreement. 2. Inadequate Conservation Measures in the MSCP Subregional Plan. a. Additional Conservation Measure Priorities. If the conservation measures already contained in the MSCP Subregional Plan, the Chula Vista Subarea Plan, this Agreement, and other approved Subarea Plans do not adequately fulfill the conservation measures identified pursuant to subsection 9.3.C above, then the USFWS and CDFG will work with the CITY and other Participating Local Jurisdictions to identify and jointly implement the Additional Conservation Measures necessary to add such species to the list of Chula Vista Covered Species or the list of Species Adequately Conserved. In developing a set of Additional Conservation Measures, the Parties will look to the following, in order of preference: i. Habitat management practices and enhancement opportunities within the MHPA using existing management resources, provided the redirection of such resources does not adversely affect any Covered Species. ii. Habitat acquisition through the reallocation of Federal, State, regional and/or local funds identified for MSCP Subregional Plan implementation, provided such reallocation does not adversely affect any Covered Species. b. Developing Additional Conservation Measures. If the foregoing options are not adequate to fulfill the conservation measures identified pursuant to subsection 9.3.C above, then the USFWS and CDFG will work with the CITY to identify, consistent with the ESA and the NCCP Act, the Additional Conservation Measures necessary to add such species to the list of Chula Vista Covered Species and, if appropriate, to the list of Species Adequately Conserved, including measures beyond those required by the MSCP Subregional Plan. Preference Page 18 of 48 will be given by the USFWS and CDFG to Additional Conservation Measures that do not require additional mitigation or dedications of land. Although the Additional Conservation Measures necessary to add such species to the list of Chula Vista Covered Species and the list of Species Adequately Conserved may be identified at or after the time the species is proposed for listing, the CITY will not be required to approve or implement these Additional Conservation Measures until such time as the species is actually listed and take authorization for such species is granted to the CITY. c. Significantly Conserved Vegetation Communities. If any species described in subsection 9.3.C, above, is dependent upon a Significantly Conserved Vegetation Community listed on Exhibit F to this Agreement, and if the Subarea Plans for the City of San Diego, County of San Diego, and the CITY are in effect and are being implemented consistent with their terms, then the USFWS and CDFG will, subject to the availability of appropriated funds, contribute in partnership, to the same extent committed within the MSCP Subregional Plan for Covered Species, with the CITY toward the land acquisition, management, and monitoring required to achieve the level of conservation necessary within the Significantly Conserved Vegetation Communities, for such species to be added to the list of Chula Vista Covered Species or list of Species Adequately Conserved once such species become listed under the ESA or CESA. The commitment of the USFWS and CDFG to contribute their proportionate share(s) to the conservation of the species shall be contingent on the CITY's commitment of its proportionate share. In addition, if the USFWS or CDFG fail to provide their proportionate contributory share(s), neither the CITY nor Third Party Beneficiaries will be obligated to provide the USFWS and/or CDFG share(s), in which case the species would not be added to the list of Chula Vista Covered Species or list of Species Adequately Conserved. d. Sufficiently Conserved Vegetation Communities. If any species described in subsection 9.3.C, above, is dependent upon a Sufficiently Conserved Vegetation Community listed on Exhibit F to this Agreement, and if the take authorizations for the City of San Diego, the County of San Diego, the City of Poway, and the CITY are in effect and are being implemented consistent with their respective Subarea Plans, then the USFWS and CDFG will use all of their legal authorities to provide for the conservation and management, maintenance and monitoring of the habitat of such species, within the Sufficiently Conserved Vegetation Communities, sufficient to enable the addition of such species to the list of Chula Vista Covered Species or list of Species Adequately Conserved, and to enable the issuance of the Section 10(a)(1)(B) Permit and NCCP Authorization take authorizations for such species in the event they become listed under the ESA or CESA. For purposes of this paragraph, steps within the legal authority of USFWS include, but are not limited to, USFWS-funded habitat acquisition, USFWS-funded species relocation, and land exchanges to secure necessary habitat. For purposes of this paragraph, steps within the legal authority of CDFG include, but are not limited to, CDFG-funded acquisition, CDFG-funded species management and CDFG-funded species relocation. Consequently, the CITY shall not be required, without its consent, to provide any conservation or management, maintenance and monitoring for such species beyond that provided in the MSCP Subregional Plan and the Chula Vista Subarea Plan. e. Application for Take Authorization. The CITY makes no representation or commitment to pursue a Section 10(a)(1)(B) Permit fi.om the USFWS or a NCCP Authorization fi.om the CDFG for such non-covered species. Upon the listing of a non-covered Page 19 of 48 species and until such non-covered species is added to the list of Chula Vista Covered Species and, if appropriate, to the list of Species Adequately Conserved, the CITY shall comply with the no take/no adverse modification/no jeopardy measures identified pursuant to Section 5.8.5 of the Chula Vista Subarea Plan with respect to such non-covered species. The USFWS and CDFG shall process any applications for take authorization which may be submitted for such species in accordance with the requirements of the ESA, CESA and/or the NCCP Act. f. Applicability of Significantly and Sufficiently Conserved Vegetation Communities Assurances. The assurances provided under subsections c and d above are not applicable to the Pacific pocket mouse as a currently listed species, and shall not apply to evaluated species identified in Table 3-5 of the MSCP Subregional Plan which are not Chula Vista Covered Species or Species Adequately Conserved and which are not dependent on Significantly or Sufficiently Conserved Vegetation Communities. Those species are: Dean's milk vetch Astragalus deanei Orcutt's spineflower Chorizanthe orcuttiana Mexican flannelbush Frernontodendron mexicanurn Mission Canyon bluecup Githopsis diffusa ssp. Filicaulis Tecate tarplant Hemizonia floribunda Little mousetail Myosurus minimus ssp. Apus Hermes copper butterfly Lycaena thornei Grasshopper sparrow Arnmondratnus savannarum The following evaluated species identified in Table 3-5 of the MSCP Subregional Plan are covered by the assurances in subsection c, above (Significantly Conserved Vegetation Communities), and are not covered by the assurances in subsection d, above (Sufficiently Conserved Vegetation Communities): Harbison's dun skipper Euphyes vestris harbisoni Townsend's western big-eared bat Plecotus townsendii California mastiff bat Eumopsperotis californicus 9.4. Migratory Bird Treaty Act. A. Migrator,/Birds other than Bald Eagle. The Section 10(a)(1)(B) Permit issued pursuant to this Agreement also constitutes a Special Purpose Permit under 50 C.F.R. § 21.27 for the Take of Chula Vista Covered Species, and Species Adequately Conserved which are listed as threatened or endangered under the ESA and which are also protected by the Migratory Bird Treaty Act, except for the Bald Eagle. The Take of such species in conjunction with any public or private land development project authorized and approved by the CITY in accordance with this Agreement, the Chula Vista Subarea Plan and the Section 10(a)(1)(B) Permit will not constitute a violation of the MBTA. Such Special Purpose Permit shall be valid for a period of three years from the Effective Date, provided the Section 10(a)(1)(B) Permit remains in effect for such period. Such Special Purpose Permit shall be renewed, provided that the CITY continues to fulfill its obligations under this Page 20 of 48 /7 Agreement. Each such renewal shall be valid for the maximum period of time allowed by 50 C.F.R. § 21.27 or its successor at the time of renewal. B. Bald Eagle. Should the Take of the Bald Eagle occur incidental to any public or private land development project authorized and approved by the CITY in accordance with this Agreement, the USFWS will not refer such Take for prosecution under either the MBTA or the Bald Eagle Protection Act of 1940, as amended (16 U.S.C. §§ 668 - 668d). C. Future Environmental Documentation. In issuing any permits or other approvals pertaining to land development activities within the CITY for any Chula Vista Covered Species, and subject to all of the requirements of NEPA, the USFWS shall rely on and shall utilize the EIR/EIS prepared in conjunction with the MSCP and Subarea Plan as the NEPA environmental document for such permits and approvals and for any other approval process subject to its jurisdiction or involvement with regard to potential impacts on Chula Vista Covered Species. To the maximum extent possible under CEQA, CDFG shall rely on and shall utilize the EIR/EIS prepared in conjunction with the MSCP Subregional Plan and Chula Vista Subarea Plan as appropriate CEQA documentation for any future approvals regarding potential impacts to Chula Vista Covered Species related to land development within the Subarea. Subsequent activities will be examined in light of the program EIR/EIS to determine whether additional environmental documentation is required under NEPA or CEQA. D. Use of EIR/EIS as "Program EIR/EIS". The Parties understand and intend that the EIR/EIS prepared in conjunction with the MSCP Subregional Plan and Chula Vista Subarea Plan will operate as a "program" EIS and EIR to the extent such use is consistent with applicable provisions of the NEPA and CEQA, including the Council on Environmental Quality's NEPA regulations (40 C.F.R. § 1500 et seq.) and the CEQA Guidelines (14 C.C.R. § 15000 et seq.). Accordingly, the CITY shall, consistent with the provisions of CEQA, rely on and utilize the EIR prepared in conjunction with the MSCP Subregional Plan and Chula Vista Subarea Plan in evaluating future land use decisions, and in issuing any permits or other approvals within the Subarea. Subsequent activities will be examined in light of the program EIR/EIS to determine whether additional environmental documentation is required under NEPA or CEQA. 9.5. Federal and State Contributions. The USFWS and CDFG shall apply their best efforts to contribute public lands and funds to the acquisition and management, maintenance and monitoring of habitat lands within the MHPA. Habitat land acquired and added to the Preserve through such means shall not be counted as mitigation for any public or private project but will be counted towards the conservation goals of the Chula Vista Subarea Plan. To the maximum extent appropriate after considering the location of the impacts, the USFWS and CDFG shall direct that the acquisition of land for offsite mitigation of impacts from federal and state projects within the MSCP Subregional Plan Area, and lands banked for such projects, be located within the MHPA. 9.6. Public Facility Provider and Special Districts. The Parties shall cooperate to encourage regional public facility providers, and local special districts such as water districts and sewer districts, to become Participating Special Entities. However, the Parties acknowledge that regional public facility providers and special districts may apply for separate incidental take authorization from the USFWS and CDFG separate and apart from the MSCP Subregional Plan. Page 21 of 48 9.7. Special Rules Under Section 4(d). In the event that the USFWS promulgates a new special rule for a Covered Species pursuant to Section 4(d) of the ESA (16 U.S.C. § 1533(d), as implemented by 50 C.F.R. § 17.31 (c)), the USFWS shall consider the MSCP Subregional Plan and Chula Vista Subarea Plan in developing the special rule, and shall ensure that the special rule will not affect the validity or alter the terms of any take authorization for Covered Species issued in accordance with an approved subarea plan. 9.8. Contribution and Banking of Excess Conservation. Lands contributed to the Preserve by persons or public or private entities in excess of the conservation requirements imposed by the CITY in accordance with Section 10 of this Agreement may either be used by such owner as mitigation for that owner's subsequent development project(s), or it may be "banked" by those owners in accordance with Section 9.9 of this Agreement. Such banked lands can later be used to provide mitigation for future development projects of other owners within the Subarea subject to the provisions of an approved conservation bank. 9.9. Conservation Banks. The USFWS and CDFG agree that the CITY is author/zed to enter into agreements with the USFWS, CDFG and other third parties to establish and implement Conservation Banks for land contributed in perpetuity to the Preserve in excess of any conservation requirement imposed by the CITY in accordance with Section 10 of this Agreement. These Conservation Banks shall be consistent with the Chula Vista Subarea Plan and shall comply with all applicable laws, policies and procedures existing at the time of bank approval, including but not limited to the "Official Policy on Conservation Banks" issued by the California Resources Agency (April 7, 1995) and the "Supplemental Policy Regarding Conservation Banks Within the NCCP Area of Southern California" issued by the USFWS and CDFG (January 24, 1996), as they may be modified. The Parties agree that existing Conservation Bank agreements approved by the USFWS and CDFG prior to the Effective Date shall remain in full force and effect and be honored by the Parties after execution of this Agreement. This Section 9.9 shall apply to any public lands within the Preserve banked as mitigation for future development by the CITY, in accordance with this Agreement. 9.10. Habitat Conservation Measures. Habitat conservation measures provided for in the Chula Vista Subarea Plan, including habitat management within the Preserve, shall be consistent with the MSCP Subregional Plan and shall be implemented through the policies and local regulations established by the CITY pursuant to Section 10.0 of this Agreement. Such policies and local regulations may differ as between the CITY and other Participating Local Jurisdictions, and as between different MHPA habitat types within the Subarea. 9.11. Growth Inducing Impacts. Because the MSCP Subregional Plan as implemented through the Chula Vista Subarea Plan and other approved Subarea Plans is designed to mitigate for the direct, indirect and cumulative impacts of development within the MSCP Subregional Plan Area, including within the Subarea, once mitigation has been imposed upon the CITY or a Third Party Beneficiary for a proposed land development project in conformance with Sections 10 and 17.1 .A of this Agreement, the CITY or a Third Party Beneficiary shall not be required by USFWS or CDFG to provide any additional mitigation for any growth inducing impacts such project may have Page 22 of 48 on a Chula Vista Covered Species and its habitats within that portion of the MSCP Subregional Plan Area covered by approved Subarea Plans. 9.12. Assurances for Covered Projects. For Covered Projects set forth in Table 5-1 of the Chula Vista Subarea Plan and Exhibit D to this Agreement, the Parties have determined that both the design of such projects and the mitigation related to Chula Vista Covered Species conforms to the MSCP Subregional Plan and the Chula Vista Subarea Plan. Consequently, as long as the Covered Projects comply with their respective conditions of coverage, and any additional measures as may be imposed on the projects pursuant to the Chula Vista Subarea Plan and this Agreement, and maintain their status as Third Party Beneficiaries in accordance with Section 17 of this Agreement, Additional Conservation Measures will not be required of those projects for purposes of Incidental Take of Chula Vista Covered Species, and the Parties shall not seek further mitigation related to such species for these projects except as specifically provided for under the Subarea Plan and this Agreement. Incidental Take shall be granted for such projects by the CITY through the land development approval process and associated land development or clearing/grubbing permit issued to each Covered Project prior to the start of land development on the site. 9.13. Critical Habitat. The USFWS agrees that it will consider the Chula Vista Subarea Plan in its preparation of any proposed designation of critical habitat concerning any Covered Species and agrees that, consistent with 50 C.F.R. 424.12, the Chula Vista Subarea Plan incorporates those special management considerations necessary to manage the Covered Species and their habitats in a manner that will provide "for the conservation of the species involved" within the Chula Vista Subarea. Consistent with the No Surprises Rule set forth in Section 9.2 of this Agreement in the event that a critical habitat designation is made for any Chula Vista Covered Species upon a determination by USFWS that CITY is properly implementing the Chula Vista Subarea Plan, no additional mitigation in the form of land, land restrictions or financial compensation, beyond that provided for under the Chula Vista Subarea Plan, shall be required of the CITY or Third Party Beneficiaries to mitigate for the impacts of Take resulting from a Covered Activity within the Chula Vista Subarea as a result of such critical habitat designation without the consent of the CITY. 9.14. Duty to Enforce. The CITY agrees to take all available and feasible actions within its legal authority to enforce the terms of the Section 10(a)(1)(B) Permit and NCCP Authorization, the Subarea Plan, and this Agreement as to itself and to all persons or entities subject to the requirements of the Chula Vista Subarea Plan, this Agreement and the Section 10(a)(1)(B) Permit and NCCP Authorization, specifically including the land development permitting and approval requirements set forth in Section 10 of this Agreement. The CITY shall reasonably exercise its legal authority to ensure that its local share of lands identified for preservation under the Chula Vista Subarea Plan are conserved in perpetuity. Notwithstanding any other provision of this Agreement, if at any time following the expiration, termination, or any other end of this Agreement the CITY proposes to exercise its discretionary authority to modify the regulatory protections or legal encumbrances provided for such lands under the Chula Vista Subarea Plan, the proposed modifications must be accomplished through a public process in which the public, the USFWS and CDFG receive advance notice and the opportunity to comment, and must be consistent with the MSCP Subregional Plan and the Chula Vista Subarea Plan such that there is no net loss of habitat value or acreage for the Covered Species. The CITY must promptly notify USFWS and CDFG or their respective successor agencies of such proposed modifications in advance, and explain how they Page 23 of 48 achieve such consistency. 9.15. Annexation of Lands. To the extent permitted by law, the CITY shall enfome, as set forth in this Agreement, the terms of the Section 10(a)(1)(B) Permit and NCCP Authorization, Chula Vista Subarea Plan, and this Agreement as to all persons or entities owning or developing land within the Chula Vista MSCP Planning Area that become subject to the CITY's jurisdictional authority in the event of annexation or reorganization of such land fi.om another jurisdiction, provided an annexation agreement is reached as described herein and approved by the Wildlife Agencies and provided further, that if the lands are annexed from another Participating Local Jurisdiction, that Local Participating Jurisdiction's take authorization for the annexed lands is transferred to the CITY. In all other cases, Take shall not be authorized on any lands that are the subject of an annexation proposal unless and until an am~exation agreement is reached between the CITY, USFWS, CDFG and the other affected jurisdiction, as may be appropriate, as part of the annexation process, and the Section 10(a)(1)(B) Permit and NCCP Authorization, Subarea Plan and, if necessary, this Agreement are amended to include the annexed lands to ensure that any development of the annexed lands proceeds in accordance with the conservation goals of the MSCP Subregional Plan and the Chula Vista Subarea Plan. Such annexation agreement shall set forth the resulting responsibilities pursuant to the MSCP Subregional Plan for the ongoing maintenance and enforcement of the terms of this Agreement and the MSCP Subregional Plan as it relates to the annexed lands. 10.0 IMPLEMENTATION RESPONSIBILITIES OFTHE CITY I 0.1 Introduction. The MSCP Subregional Plan establishes a plan to conserve the Covered Species by ultimately providing permanent protection for such species' habitat through implementation of individual subarea plans. The USFWS and CDFG agree to phased implementation of the CITY's portion of the MSCP Subregional Plan based on the Agreement of the CITY to comply with and implement the MSCP Subregional Plan through the Chula Vista Subarea Plan with respect to all lands within the Subarea over which it has land use authority. In particular, the CITY agrees to take the following specific actions: 10.2 Compliance and Implementation. A. Lands to be Preserved. As provided in Section 3 of the City of Chula Vista Subarea Plan and Section 22 of this Agreement, the CITY commits to preserve and manage in perpetuity for the benefit of the Covered Species and their habitats approximately 4,993 acres placed into the Preserve as the result of development pursuant to the take authorizations and designated as habitat on Figure 2-1 of the MSCP Subregional Plan (Vegetation Communities for MSCP Study Area) within the CITY's current jurisdictional boundaries. The CITY further commits to preserve and manage in perpetuity for the benefit of the Covered Species and their habitats approximately 4,250 additional acres that are currently outside the Subarea within the jurisdiction of the County of San Diego (if certain approved development occurs within the CITY Subarea), unless such lands are owned or managed by the state or federal government. B. Habitat Conservation Accounting Model. The CITY agrees that the habitat conservation accounting system known as "Habitrak" shall be used by the CITY, the USFWS, Page 24 of 48 and CDFG as a tool to assess whether the CITY is meeting its obligation to ensure that habitat preservation is proceeding in rough step with development, within the context of the acreage accounting and annual reporting process set forth in Section 14 of this Agreement. 10.3 Preserve Management. A. Lands to be Managed. The CITY agrees to be responsible, either directly or through an Appropriate Managing Entity under the direct control of the CITY, for managing the Preserve in accordance with Section 7 of the City of Chula Vista Subarea Plan. B. Preserve Management Program. The Chula Vista Subarea Plan incorporates Framework Management Plans for the Central and North City Preserve Management Areas (Section 7.5 of the Chula Vista Subarea Plan) and the Otay Ranch Preserve Management Area (Section 7.6 of the Chula Vista Subarea Plan). The Framework Management Plans have been prepared consistent with the framework management guidelines of the MSCP Subregional Plan. The Framework Management Plans outline principal Preserve maintenance activities and requirements, provide specifications to limit "edge effects" and impacts from adjacent development, furnish a framework to address potential impacts to the Preserve from invasive, exotic species, and create a blueprint for managing public access, trails and recreational uses within the Preserve. Because each area of the Preserve will be unique in terms of existing conditions, Preserve configuration, ownership of land, the existence and location of sensitive species and management needs, area-specific management directives for logical and discreet areas of land within the Preserve have been or will be prepared, pursuant to Section 7.3 and Table 7-1 of the Subarea Plan. Pursuant to Section 7.3 of the Subarea Plan, area-specific management directives must incorporate requirements of the Framework Management Plan and species-specific management actions set forth in Table 3-5 of the MSCP Subregional Plan, as appropriate. 10.4 Preserve Boundary Adjustments. Adjustments to the CITY's Preserve boundaries may be made in limited circumstances as set forth in Section 5.4 of the City of Chula Vista Subarea Plan. This Agreement need not be amended to reflect such adjustments. 10.5 Assembly and Protection of the Preserve. A. General Conservation Methods. In general, Preserve lands will be conserved by the following methods, consistent with Section 5.2 of the Chula Vista Subarea Plan: (1) dedication of 100% Conservation Areas associated with Covered Projects in accordance with Section 5.1 of the Subarea Plan; (2) conservation of private property located within the MHPA using the Chula Vista Excavation, Grading and Fills Ordinance as specified in the Subarea Plan, Section 5.2.1, the HLIT Ordinance as specified in the Subarea Plan, Section 5.2.2, and the Otay Ranch Grazing Ordinance as specified in the Subarea Plan, Section 5.2.5; and (3) conservation of existing public lands. B. Conserved Habitat Acreage. Within its portion of the MHPA, the CITY shall permanently conserve an estimated 4,993 acres in approximately the amount of habitat acreage of listed vegetation communities specified in Table 3-5 of the Chula Vista Subarea Plan. Page 25 of 48 C. Amendment of Chula Vista Excavation, Grading and Fills Ordinance. The CITY shall, after any necessary environmental documentation, amend and implement the Chula Vista Excavation, Grading and Fills Ordinance as set forth in Section 5.2.1 of the Chula Vista Subarea Plan. D. Adoption of HLIT Ordinance. The CITY shall, after any necessary environmental documentation, adopt and implement the HLIT Ordinance as set forth in Section 5.2.2 of the Chula Vista Subarea Plan. E. Adoption of Otay Ranch Grazing Ordinance. The CITY shall, after any necessary environmental documentation, adopt and implement the Otay Ranch Grazing Ordinance as set forth in Section 5.2.5 of the Chula Vista Subarea Plan. F. Covered Projects. The CITY will ensure that all Conditions of Coverage specified in Section 7.5.6 of the Chula Vista Subarea Plan are included as enfomeable conditions of the CITY's approvals of Covered Projects. If the CITY identifies site specific physical conditions including but not limited to geology, slope, or location of infrastructure that make goals, criteria or other requirements in the Chula Vista Subarea Plan infeasible, but the project could be constructed without compromising conservation of species and habitats pursuant to the Subarea Plan, the CITY may approve a deviation from the Chula Vista Subarea Plan requirements for the project with the concurrence of the USFWS and CDFG in accordance with the procedures set forth in Section 5 of the Chuta Vista Subarea Plan. The deviation shall be the minimum necessary to afford relief and accommodate the Covered Project. G. Amendments to General Plan. The CITY acknowledges that it has chosen to implement several of the commitments made by it under the Chula Vista Subarea Plan through the exercise of its land use authorities. In particular, the CITY shall adopt the Subarea Plan as a new element of the CITY's General Plan, in order to make that plan consistent with the MSCP Subregional Plan and the Chula Vista Subarea Plan. H. Habitat Conservation and Upland Mitigation Ratios. The classifications of habitat types and associated mitigation ratios into tiers shall be as set forth in Exhibit G and Section 5.2 of the Chula Vista Subarea Plan. Modifications to these ratios may be made upon mutual agreement of the Parties following all legally required public heatings and environmental review, without the need to amend the Subarea Plan, the Section 10(a)(1)(B) Permit and NCCP Authorization or this Agreement, provided that USFWS and CDFG concur that such modifications provide for the same or higher levels of conservation and are consistent with the MSCP Subregional Plan and the Subarea Plan. The City acknowledges that ifUSFWS and CDFG conclude that the modifications will not provide the same or higher levels of conservation, or are not otherwise consistent with the MSCP Subregional Plan and the Chula Vista Subarea Plan, then this Agreement and potentially the Section 10(a)(1)(B) Permit and NCCP Authorization may have to be amended or reevaluated in accordance with Sections 16.2 and 16.3 of this Agreement. The CITY shall apply the mitigation ratios shown in Exhibit G to development project impacts in the manner set forth in Section 5.2.2 of the Chula Vista Subarea Plan. Page 26 of 48 I. Protection of Narrow Endemic Species. For certain species identified as "narrow endemic species" in the Chula Vista Subarea Plan and listed on Exhibit H to this Agreement, impacts will be avoided to the maximum extent practicable as set forth in Section 5.2.3 of the Chula Vista Subarea Plan. Impacts that cannot be avoided shall be minimized and mitigated in accordance with the Subarea Plan and implementing regulations consistent with this Agreement. J. Wetlands Protection Program. For Wetlands, impacts will be avoided to the maximum extent practicable as set forth in Section 5.2.4 of the Chula Vista Subarea Plan. Impacts that cannot be avoided shall be minimized and mitigated in accordance with the wetland mitigation ratios set forth on Table 5-6 of the Chula Vista Subarea Plan. Mitigation consistent with the Chula Vista Subarea Plan will be identified through environmental review documents prepared pursuant to CEQA and associated mitigation monitoring and reporting programs, and required by the City as legally enforceable conditions of approval (i.e., tentative maps, HLIT permits, and the CITY's Excavation, Grading and Fills Ordinance require compliance with wetlands mitigation prior to issuance of grading permits). 10.6 CITY Compliance with Subarea Plan Provisions. The City Manager of the CITY will take all actions within his authority to ensure that all CITY departments comply with the policies, regulations and management obligations established as a result of the Chula Vista Subarea Plan on all CITY projects and day-to-day operations. 11.0 FUNDING RESPONSIBILITIES OF THE CITY 11.1 Introduction. The MSCP Subregional Plan contains estimates for the costs of habitat acquisition, management and monitoring on a regional basis. To fully implement the MSCP Subregional Plan and the Chula Vista Subarea Plan, private property must be added to the Preserve within the MHPA. Assembly of the Chula Vista Preserve does not rely on public acquisition of private property: 100% of the Preserve will be acquired through the entitlement process and/or pursuant to agreements between lando~vners, the CITY, and the wildlife agencies, as provided in Section 5.1 of the Chula Vista Subarea Plan. 11.2 Funding. The CITY commits to funding Preserve maintenance, management and monitoring as provided in Section 8.0 of the Chula Vista Subarea Plan, including:'(1) Covered Project Conditions of Coverage (short-term management); (2) Open Space Management Financing Mechanisms (long-term management); (3) Central City Biological Enhancement Program (BEP) (long-term management); and (4) North City/Otay Ranch Preserve Management Endowment Fund (PMEF) (long-term management). Combined, these four financing programs are intended to ensure that the CITY will meet the maintenance, management and monitoring requirements of Sections 7.5 and 7.6 of the Subarea Plan, and Planned Responses to Changed Circumstances identified in Section 5.8 of the Subarea Plan. 11.3 Regional Funding. Not~vithstanding that the Chula Vista Preserve will be fully assembled pursuant to 11.1 of this Agreement and as described further in Section 5.1 of the Chula Vista Subarea Plan, and funding for short term and long term maintenance, management and Page 27 of 48 monitoring of the Preserve will be assured pursuant to Section 11.2 of this Agreement and as described further in Section 8.0 of the Chula Vista Subarea Plan, the CITY will continue to support and participate with the other Participating Local Jurisdictions and the County of San Diego in efforts to secure a regional funding soume consistent with the MSCP Plan. It is anticipated that any regional funding method will require voter approval. If regional funds are approved, an equitable portion of such funds will be made available to the City to offset anticipated implementation costs. 11.4 Effect of Inadequate Funding on Take Authorizations. In the event that adequate funding to implement the MSCP Subregional Plan through the Chula Vista Subarea Plan is not provided by the CITY, the USFWS and CDFG will assess the impact of the funding deficiency on the scope and validity of the take authorizations. Unless the CITY exercises its authority to terminate pursuant to Section 22.0 of this Agreement, the Parties agree that they will then meet and confer to cooperatively develop a strategy to address the funding shortfall, and to undertake all practicable efforts to maintain the level of conservation and Incidental Take authorization afforded by the Section 10(a)(1)(B) Permit and NCCP Authorization until the funding situation can be remedied. Should CITY elect to terminate the Section 10(a)(1)(B) Permit and NCCP Authorization, CITY shall remain obligated to mitigate fully in accordance with the Subarea Plan for all Incidental Take authorized prior to termination of the Section 10(a)(1)(B) Permit and NCCP Authorization, including management of Preserve lands in perpetuity in accordance with the Plan. 12.0 ISSUANCE OF THE TAKE AUTHORIZATIONS 12.1 Findings - USFWS - Covered Species. The USFWS has found, following opportunity for public comment, that (a) the taking of Covered Species within the MSCP Subregional Plan Area in accordance with the MSCP Plan as implemented by the subarea plans will be incidental to the carrying out of otherwise lawful activities; (b) the MSCP Subregional Plan as implemented by the Chula Vista Subarea Plan will, to the maximum extent practicable, minimize and mitigate the impacts of such incidental taking; (c) the funding sources identified and provided for herein will ensure that adequate funding for the MSCP Subregional Plan and the Chula Vista Subarea Plan will be provided; (d) the requested taking of Covered Species will not appreciably reduce the likelihood of the survival and recovery of such species in the wild; and (e) the MSCP Subregional Plan as implemented through the Chula Vista Subarea Plan will satisfy and fulfill all measures required by the USFWS as being necessary or appropriate for the purposes of the MSCP Subregional Plan (including procedures determined by the USFWS to be necessary to address Unforeseen Circumstances). 12.2 Findings - USFWS - Species Adequately Conserved and Chula Vista Covered Species. In addition to the findings in Section 12.1 above, the USFWS has found that the Species Adequately Conserved will be adequately conserved in the Subarea through implementation of the Chula Vista Subarea Plan and this Agreement and that the Chula Vista Covered Species will be adequately conserved in the Subarea through implementation of the Chula Vista Subarea Plan, other approved MSCP Subarea Plans, and this Agreement. Accordingly, concurrent with the Effective Date and consistent with the Subarea Plan and the terms of this Agreement, the USFWS shall issue the Section 10(a)(1)(B) Permit to the CITY authorizing the Incidental Take of the Species Adequately Conserved and Chula Vista Covered Species. The Section 10(a)(1)(B) Permit will become effective Page 28 of 48 with adoption of the HLIT, and other Ordinances specified in Section 10.5 of this Agreement, will be effective for 50 years, and may be renewed subject to and in accordance with the ESA statutory and regulatory requirements in effect at the time of renewal. 12.3 Section 10(a) Permit and Future Listings. As to any Chula Vista Covered Species or Species Adequately Conserved that is not listed as threatened or endangered under the ESA as of the Effective Date, the Section 10(a)(1)(B) Permit shall become effective with respect to such species concurrent with its listing as threatened or endangered under the ESA. 12.4 Findings - CDFG. The CDFG has found, following opportunity for public comment, that the MSCP Subregional Plan, the Chula Vista Subarea Plan and this Agreement (1) adequately provide for the conservation and management of the Chula Vista Covered Species and Species Adequately Conserved and their habitat within the MSCP Subregional Plan Area and the Subarea, (2) satisfy all legal requirements under the NCCP Act necessary for the CDFG to issue a NCCP Authorization for such species, and (3) are consistent with the NCCP Process and Conservation Guidelines. The CDFG has found that the Chula Vista Subarea Plan, in combination with the MSCP Subregional Plan, meets the requirements of the NCCP Act for an NCCP Plan, and has approved the Chula Vista Subarea Plan as an NCCP Plan. The CDFG has found further that the MSCP Subregional Plan, the Chula Vista Subarea Plan and this Agreement provide adequately for the mitigation of potential "significant effects on the environment" (as defined in California Public Resources Code § 21068) which may result to Chula Vista Covered Species and Species Adequately Conserved and their habitat (pursuant to California Govemment Code § 66474) that may result from the land development activities in the Subarea. 12.5 Issuance of NCCP Authorization. CDFG will approve the Chula Vista Subarea Plan and a issue a NCCP Authorization that authorizes the Take of Chula Vista Covered Species and Species Adequately Conserved in the Subarea, subject to the terms of, and consistent with, the MSCP Subregional Plan, the Chula Vista Subarea Plan and this Agreement. The NCCP Authorization will take effect on the Effective Date and be effective for 50 years unless it is terminated, suspended or revoked sooner. The NCCP Authorization will be renewable utilizing the applicable procedures in effect at the time of renewal. 12.6 Findings - Section 4(d) Special Rule. The USFWS has found that the MSCP Subregional Plan meets the standards set forth in 50 C.F.R. § 17.32(b)(2). Accordingly, the USFWS finds that the MSCP Subregional Plan and the Chula Vista Subarea Plan are consistent with and satisfy the conditions under the Section 4(d) Special Rule, and therefore the Incidental Take of the coastal California gnatcatcher resulting from Covered Activities under the jurisdiction and control of the CITY within that portion of the MSCP Subregional Plan Area covered by approved the Chula Vista Subarea Plan is lawful. 12.7 State Fully Protected Species. Califomialaw does not authorize CDFG to permit the Take of six Chula Vista Covered Species: Fish and Game Code section 3511 prohibits Take of the golden eagle, American peregrine falcon, bald eagle, Califomia brown pelican and Califomia least tern. Although these species are included as ( !hula Vista Covered Species, Take of these species is not authorized by the NCCP Authorization as of the Effective Date. CDFG acknowledges and agrees that if the measures set forth in this Agreement and the Chula Vista Subarea Plan are complied with, Page 29 of 48 Covered Activities are not anticipated to result in unauthorized Take of these species. If CDFG determines during the term of this Agreement that existing measures are inadequate to prevent the Take of a Chula Vista Covered Species for which Take is not authorized under the NCCP Authorization, CDFG shall notify the City in writing of that determination and propose new, modified or alternative conservation measures that it believes are necessary to avoid Take of these species. The City shall implement either the measures proposed by CDFG or other measures agreed to by the Parties as adequate to avoid Take of the fully protected species resulting from Covered Activities. CDFG has determined that the Chula Vista Subarea Plan provides for the conservation of all Chula Vista Covered Species, including the five species of fully protected birds that are Chula Vista Covered Species. The NCCP Authorization therefore provides that Take of golden eagle, American peregrine falcon, bald eagle, California brown pelican and California least tern will be automatically authorized upon a whiten legal determination by CDFG that changes in Califomia law provide CDFG the authority to permit the Take of these birds. The determination will only assess whether newly enacted statutes provide CDFG the legal authority to authorize Take of these species as part of an NCCP plan. CDFG will provide its legal determination promptly after enactment of any relevant legislation; the determination will be attached to the NCCP Authorization. 13.0 CONSULTATIONS WITH OTHER PUBLIC AGENCIES 13.1 Section 7 Consultations. Nothing in this agreement is intended to eliminate or modify the obligation of a federal agency to consult with the USFWS pursuant to section 7(a) of the ESA (16 U.S.C. Section 1536(a)). To the maximum extent appropriate, in any consultation under said provision involving CITY or a prospective or existing Third Party Beneficiary with regard to Chula Vista Covered Species or Species Adequately Conserved which are listed or proposed for listing under the ESA, the USFWS shall ensure that the biological opinion issued in connection with the proposed public or private development project which is the subject of the consultation is consistent with the biological opinions issued in connection with the MSCP Subregional Plan and the Chula Vista Subarea Plan, provided that the proposed public or private development project is consistent with the MSCP Subregional Plan and Chula Vista Subarea Plan. Any take avoidance and take minimization measures included under the terms and conditions of the Section 7 biological opinion shall, to the maximum extent appropriate, be consistent with the requirements imposed on the development project under the City of Chula Vista's Subarea Plan, provided that, unless otherwise required by law, the USFWS shall not impose measures on the prospective or existing Third Party Beneficiary in excess of those that have been or will be required by the CITY pursuant to the MSCP Subregional Plan, the Chula Vista Subarea Plan, this Agreement and the Section 10(a)(1)(B) Permit and NCCP Authorization except in accordance with the No Surprises Rule. 13.2 Consultations by CDFG. Except as otherwise required by law, CDFG shall not recommend or otherwise seek to impose through consultation with other public agencies any mitigation, compensation or habitat enhancement requirements regarding impacts of Covered Activities on Chula Vista Covered Species within the Subarea that are in excess of the requirements prescribed in and pursuant to the MSCP Subregional Plan, the Chula Vista Subarea Plan and this Agreement. Page 30 of 48 14.0 REPORTING, BIOLOGICAL MONITORING AND PRESERVE MANAGEMENT 14.1 Habitrak. So long as this Agreement and the take authorizations remain in effect, the CITY will continually account, by project and cumulatively, for the amount and location of habitat acreage (by habitat type) lost and preserved within the Subarea, including acres conserved within the MHPA and acres committed to land development both within and outside of the MHPA. The results of such accounting will be applied to Habitrak to assure that adequate progress toward implementation of the MSCP Subregional Plan and the Chula Vista Subarea Plan is being achieved and that habitat preservation is proceeding in rough step with development. 14.2 AnnualReporting and Public Workshop. In accordance with Section 6.4.1 of the MSCP Subregional Plan, the CITY shall prepare and submit to the USFWS and the CDFG by February 15 of each year a public report containing an annual accounting, by project and cumulatively, of habitat acreage lost and conserved within the Subarea during the previous calendar year. This accounting shall specify acres conserved within the MHPA by habitat type, as well as acres cormnitted to land development both within and outside of the MHPA, and compare these figures with results obtained utilizing Habitrak. This report shall also describe how habitat preservation is proceeding in rough step with development. The report will be used by the USFWS and CDFG to evaluate whether adequate progress toward implementation of the MSCP Subregional Plan and the Chula Vista Subarea Plan is being achieved. A public workshop or meeting will be jointly conducted on an annual basis by staff from the USFWS, the CDFG and the CITY to disseminate and discuss the annual report. 14.3 Annual Implementation Meeting. Once each year, the CITY shall meet with the USFWS and the CDFG to review and coordinate implementation of the Chula Vista Subarea Plan. The Parties will review the Annual Report described in Section 14.2 above for the purposes of evaluating the implementation of the MSCP Subregional Plan during the preceding year and the adequacy of the overall progress being made towards reaching the conservation goals of the MSCP Subregional Plan and the Chula Vista Subarea Plan, utilizing Habitrak. Items to be considered in the evaluation include, but are not limited to, all contributions towards the preservation of habitat lands, such as public lands, private mitigation lands, land donations, land acquisitions, and management activities undertaken or proposed on habitat lands. Habitat management issues will also be discussed. No Participating Local Jurisdiction or Participating Special Entity will be subject to any annual, quantitative habitat preservation requirement, given the uncertainties created by natural economic and land development fluctuations. If the USFWS and the CDFG determine that adequate progress towards implementation of the Chula Vista Subarea Plan is not being achieved, CDFG and USFWS shall set forth their findings and the basis for such findings in writing; and the USFWS, the CDFG, and the CITY will take the actions specified in the Chula Vista Subarea Plan and this Agreement to remedy that situation. If the USFWS and CDFG determine that adequate progress towards implementation of the Chula Vista Subarea Plan is being achieved, but the Subarea Plan is nevertheless not providing sufficient protection to Chula Vista Covered Species, CDFG and USFWS shall set forth their findings and the basis for such findings in writing; and then the Parties shall work cooperatively and take appropriate actions consistent with the MSCP Subregional Plan and Chula Vista Subarea Plan (such as altering management activities or redirecting mitigation and acquisition) Page 31 of 48 in order to address the situation. 14.4 Public Report/Heating. Every three years the CITY, in conjunction with the other Participating Local Jurisdictions, shall prepare a public report on the status of the MSCP Subregional Plan and shall hold a public hearing in conjunction with the issuance of the report. The report shall incorporate information on the amount of land preserved within the MHPA and otherwise to date, the amount of land added to the MHPA or otherwise preserved within the previous three years, and the total expenditures made toward habitat acquisition to date and over the preceding three years. This report shall also include a subarea by subarea accounting of all funds received and expended during the previous three years to implement the subarea plans, including the amounts received and expended on habitat acquisition, management and monitoring. 14.5 Biological Monitoring. The Parties agree that biological monitoring, which involves the collection and analysis of data on specific species and habitats, is necessary to determine whether Covered Species and their habitats are being maintained by the MSCP Subregional Plan as expected. Biological monitoring will be jointly funded by the federal and state governments and the Participating Local Jurisdictions and Participating Special Entities through the federal, state and regional funding programs. As described in the Subarea Plan, the CITY will be responsible for the biological monitoring of its own, specified public lands, as well as mitigation lands obtained by it in fee title or easement, and lands acquired by it for the MSCP Subregional Plan using the regional funding program or other local sources. The federal and state agencies will monitor their present identified lands and those acquired for the MSCP Subregional Plan with federal and state funds, as described in the MSCP Subregional Plan. Proper management of the MHPA will require ongoing and detailed analysis of the data collected through biological monitoring activities. To ensure uniformity in data gathering and analysis, the USFWS and CDFG will assume primary responsibility for coordinating the monitoring program, analyzing data, and providing information and technical assistance to the Participating Local Jurisdictions and Participating Special Entities. Biological monitoring will focus on selected Covered Species and representative habitats. The USFWS and CDFG will prioritize specific monitoring activities based on available budget and specific needs of individual species and habitats, and will produce a summary report on monitoring activities every three years at the same time as the report described in Section 14.4, above. 14.6 Audit. Once every three or more years, as needed, the USFWS and CDFG may conduct an audit of (1) all development approvals and mitigation imposed through land use regulations or otherwise within approved subareas; (2) all lands acquired by each Participating Local Jurisdiction toward meeting its habitat acquisition obligation under the MSCP Subregional Plan; and (3) all monies received, invested and expended on acquisition, management and monitoring activities within approved Subareas during the previous three years or other applicable time period. The CITY shall cooperate fully with USFWS and CDFG to insure a complete and accurate audit. 14.7 Coordination of Preserve Management. A. Regional Habitat Management Technical Committee. Within 120 days of the Effective Date, the CITY will join a regional habitat management technical committee to serve as a coordination forum for technical issues associated with MHPA management. The USFWS and Page 32 of 48 CDFG will work with this committee to furnish information and advice on habitat management. The committee will have the responsibilities identified in Section 5.8.3 of the MSCP Subregional Plan. B. Federal and State Obligations. Federal and state agencies will manage, maintain and monitor all lands they contribute to the MSCP Subregional Plan (whether owned or administered by them as of the Effective Date or later acquired) consistent with the MSCP Subregional Plan. C. Private Owners of Land Within the MHPA. This Agreement, the MSCP Subregional Plan and the Chula Vista Subarea Plan do not impose upon private owners of land within the MHPA who are not Third-Party Beneficiaries any additional obligations for the management or maintenance of their land. 15.0 USFWS AND CDFG OBLIGATIONS 15.1 USFWS. The USFWS shall include in its annual budget requests for sufficient funds to fulfill its obligations under the MSCP Subregional Plan, this Agreement, and all Sectionl0 (a)(1)(B) Permits it issues pursuant to the MSCP Subregional Plan. 15.2 CDFG. The CDFG shall include in its annual budget requests for sufficient funds to fulfill its obligations under the MSCP Subregional Plan, this Agreement, and all NCCP Authorizations it issues pursuant to the MSCP Subregional Plan. 15.3 Failure to Provide State or Federal Contribution. The USFWS and CDFG acknowledge that the MSCP Subregional Plan is long-term in nature and that the MHPA will be established over a 50-year period. Contributions of the USFWS and CDFG will be made at varying levels throughout the life of the program, with contributions to habitat acquisition to occur within the first 30 years of the program. State and federal contributions may include, but are not limited to, state and federally funded habitat acquisitions, land exchanges, personnel, and habitat restoration and enhancement. If, following the exercise of all available authority and utilization of all available resoumes, the state and/or federal contribution committed to the MSCP Subregional Plan cannot be provided, the MSCP will be reevaluated by the USFWS and CDFG in consultation with the CITY to consider possible adjustments to the take authorizations of Participating Local Jurisdictions and Participating Special Entities, in light of the extent of the state and federal contribution. Prior to such reevaluation of the MSCP Subregional Plan, the USFWS and CDFG shall first attempt to address the shortfall in the state and/or federal contribution through (1) habitat management practices and enhancement opportunities within the MHPA using existing management resources, provided the redirection of such resources does not adversely affect any Covered Species, and (2) habitat acquisition through the reallocation of existing state, federal and/or regional funds identified for MSCP Subregional Plan implementation, provided such reallocation does not adversely affect any Covered Species. Page 33 of 48 16.0 REMEDIES AND ENFORCEMENT 16.1 Remedies in General. Except as set forth below each Party shall have all of the remedies available in equity (including specific performance and injunctive relief) and at law to enforce the terms of this Agreement and the Section 10(a)(1)(B) Permit and NCCP Authorization, and to seek remedies and compensation for any breach or violation thereof, consistent with and subject to the following: A. None of the Parties shall be liable in damages to the other Parties or to any other person or entity, including Third Party Beneficiaries, for any breach of this Agreement, any performance or failure to perform a mandatory or discretionary obligation imposed by this Agreement, or any other cause of action arising from this Agreement. Notwithstanding the foregoing, each Party shall retain whatever liability it would possess for its present and future acts or failure to act apart from and independent of, this Agreement. B. The Parties acknowledge that the Covered Species are unique and that their loss as species would be irreparable and that therefore injunctive and temporary relief may be appropriate in certain instances involving a breach of this Agreement. 16.2 Federal Take Authorization. A. Permit Suspension. The Service may suspend the Section 10(a)(1)(B) Permit, in whole or in part, for cause in accordance with the laws and regulations in force at the time of such suspension. (See 50 C.F.R. §§ 1327-29, 17.22(b) and 17.32(b). However, except where the USFWS determines that emergency action is necessary to avoid irreparable harm to a Covered Species, it will not suspend the Section 10(a)(1)(B) Permit without first (1) requesting the CITY to take appropriate remedial actions, and (2) providing the CITY with written notice of the facts or conduct which may warrant the suspension and an adequate and reasonable opportunity for the CITY to demonstrate why suspension is not warranted. B. Reinstatement of Suspended Permit. In the event the USFWS suspends the Section 10(a)(1)(B) Permit, in whole or in part, as soon as possible but no later than ten (10) days after such suspension, the USFWS shall confer with the CITY concerning how the suspension can be lifted. At the conclusion of any such conference, the USFWS shall identify reasonable specific actions, if any, necessary to effectively redress the suspension. In making this determination the USFWS shall consider the requirements of the ESA, regulations issued thereunder, the conservation needs of the Covered Species, the terms of the Section 10(a)(1)(B) Permit and of this Agreement and any comments or recommendations received during the meet and confer process. As soon as possible, but not later than thirty (30) days after the conference, the USFWS shall send the CITY written notice of any available, reasonable actions, necessary to effectively redress the suspension. Upon performance of such actions, the Service shall immediately reinstate the federal Section 10(a)(1)(B) Permit. It is the intent of the Parties that in the event of any total or partial suspension of the Section 10(a)(1)(B) Permit all Parties shall act expeditiously and cooperatively to reinstate the Section 10(a)(1)(B) Permit. Page 34 of 48 C. Permit Revocation or Termination 1. Pursuant to 50 C.F.R. section 13.28-13.29 and 50 C.F.R. 17.22(b)(8)and 17.32(b)(8), the USFWS agrees that it will revoke or terminate the Section 10(a)(1)(B) Permit, in whole or in part only (a) for a material violation of the Section 10(a)(1)(B) Permit or material breach of this Agreement by the CITY where (1) the CITY fails to cure the violation or breach after receiving actual notice of it from the USFWS and a reasonable opportunity to cure it, or (2) the USFWS determines in writing that such violation or breach cannot be effectively redressed by other remedies or enforcement action; or (b) where revocation of the Section 10(a)(1)(B) Permit, in whole or in part, is necessary to avoid the likelihood of jeopardy to a listed species. 2. The USFWS agrees that it will not revoke or terminate the Section 10(a)(1)(B) Permit, in whole or in part, for a material violation of the Section 10(a)(1)(B) Permit or a material breach of this Agreement without first (a) requesting the CITY take appropriate remedial action, and (b) providing the CITY with notice in writing of the facts or conduct which warrant the partial or total revocation or termination and a reasonable opportunity (but not less than sixty (60) days) to demonstrate or achieve compliance with the ESA, the Section 10(a)(1)(B) Permit and this Agreement. The USFWS agrees that it will not revoke or terminate the Section 10(a)(1)(B) Permit, in whole or in part, to avoid the likelihood of jeopardy to a listed species, without first notifying the CITY of those measures, if any, that the CITY may undertake to prevent jeopardy to the listed species and maintain the Section 10(a)(1)(B) Permit and a reasonable opportunity, consistent with section 16.5 of this Agreement, to implement such measures. 16.3 TheNCCP Authorization. A. Authorization Suspension. In the event of any material violation ofthe NCCP Authorization or material breach of this Agreement by the CITY the CDFG may suspend the NCCP Authorization in whole or in part; provided, however, that it may not suspend the NCCP Authorization without first (I) requesting the CITY take appropriate remedial actions, and (2) providing the CITY with written notice of the facts or conduct which may warrant the suspension and an adequate and reasonable opportunity for the CITY to demonstrate why suspension is not warranted or to take steps necessary to cure the violation or breach. B. Reinstatement of Suspended Authorization. In the event the CDFG suspends the NCCP Authorization, as soon as possible but no later than ten (10) days after such suspension, the CDFG shall confer with the CITY concerning how the violation or breach that led to the suspension can be remedied. At the conclusion of any such conference, the CDFG shall identify reasonable specific actions necessary to effectively redress the violation or breach. In making this determination the CDFG shall consider the requirements of the NCCP Act, any regulations issued thereunder, the conservation needs of the Chula Vista Covered Species, the terms of the NCCP Authorization and of this Agreement and any comments or recommendations received during the meet and confer process. As soon as possible, but not later than thirty (30) days after the conference, the CDFG shall send the CITY written notice of the reasonable actions necessary to effectively redress the violation or breach. Upon full or substantial performance of such necessary actions, the CDFG shall immediately reinstate the NCCP Authorization. It is the intent of the Parties that in the Page 35 of 48 event of any suspension of the NCCP Authorization all Parties shall act expeditiously and cooperatively to reinstate the NCCP Authorization. C. Authorization Revocation or Termination. 1. CDFG may revoke or terminate the NCCP Authorization for a material violation of the NCCP Authorization or material breach of this Agreement by the CITY, if the CDFG determines in writing that (a) such violation or breach cannot be effectively redressed by other remedies or enfomement action, or (b) revocation or termination is required to avoid jeopardizing the continued existence of a Covered Species and to fulfill a legal obligation of the CDFG under the CESA and/or the NCCP Act. 2. CDFG agrees that it will not revoke or terminate the NCCP Authorization without first (a) requesting the CITY take appropriate remedial action, and (b) providing the CITY with notice in writing of the facts or conduct which warrant the revocation or termination and a reasonable opportunity (but not less than sixty (60) days) to demonstrate or achieve compliance with the CESA, the NCCP Act, the NCCP Authorization and this Agreement. 16.4 Circumstances Likely to Constitute Jeopardy to Species. In the event of circumstances which appreciably reduce the likelihood of survival and recovery ora species in the wild, USFWS or CDFG may suspend the take authorizations, in whole or in part, without resorting to the procedures specified above. The period of such emergency suspension shall not last longer than 90 days. During such 90 day period, FWS shall comply with 50 C.F.R. 13.27 and Section 16.2 A and B. 16.5 The CITY's Obligations In The Event of Suspension or Revocation. In the event that the USFWS and/or CDFG suspend or revoke the Section 10(a)(1)(B) Permit and NCCP Authorization issued to the CITY under this Agreement, the CITY will remain obligated to fulfill its mitigation, enforcement management, and monitoring obligations, and its other MSCP Subregional Plan and Subarea Plan obligations, in accordance with this Agreement and applicable statutory and regulatory requirements for all land development activities authorized for Take prior to the breach which led to the suspension or revocation. 17.0 THIRD PARTY BENEFICIARIES 17.1 Authorization. Upon execution of this Agreement by the Parties and the issuance of take authorizations by USFWS and CDFG, the CITY may allow within the Subarea the Incidental Take of Chula Vista Covered Species by Third Party Beneficiaries under the direct control of the CITY, specifically including landowners and public and private entities undertaking land development activities in conformance with an approval granted by the CITY in compliance with this Agreement. A. Creation of Third-Party Beneficiary Status. The creation of Third-Party Beneficiary status shall occur during the CITY's permitting process at the point in time when (1) Page 36 of 48 review of the project's impacts on biological resources and a determination of necessary mitigation has occurred in compliance with this Agreement and the Chula Vista Subarea Plan and other applicable law (e.g. CEQA), (2) the determined mitigation includes an immediately-effective requirement to maintain the biological values of the land committed for mitigation, and (3) the mitigation has been imposed through a condition of development (such as a development agreement or a tentative map condition) that is recorded and runs with the land and is enforceable against and binding upon the Third-Party Beneficiary and any successor-in-interest to the Third-Party Beneficiary, provided that within regard to projects with a federal nexus that are required to undergo consultation under Section 7 of the ESA, Third Party Beneficiary status shall not attach until the Section 7 consultation is also completed. Third-Party Beneficiary status may be attained for a project as a whole, or for a discrete phase(s) of a project so long as the mitigation for the discrete phase(s) is not functionally dependent in the context of the MSCP Subregional Plan and Chula Vista Subarea Plan upon the mitigation proposed for subsequent phases. B. Maintenance of Third-Party Beneficiary Status. Third-Party Beneficiary status will remain in effect unless, prior to the issuance of take authorization in accordance with paragraph 17.1 .D below, the Third-Party Beneficiary alters the project in a manner that increases or substantially alters impacts to biological resources evaluated pursuant to Paragraph 17.1.A above or fails to maintain the biological values of the land committed for mitigation pursuant to Paragraph 17.1 .A above. In such circumstance, the Third-Party Beneficiary status is automatically extinguished, and the subsequent creation of Third-Party Beneficiary status will require biological review and imposition of mitigation for the increased or altered impacts pursuant to Paragraph 17.1 .A above. However, Third- Party Beneficiary status shall not be extinguished as a result of impacts to biological values resulting from natural or other causes beyond the Third-Party Beneficiary's control, as determined by the USFWS and CDFG, including fire, flood, storm, and earth movement, or from any prudent action taken by the Third-Party Beneficiary to prevent, abate, or mitigate significant injury to the land evaluated pursuant to Paragraph 17.1 .A above resulting from such causes. C. Assurances to Third-Party Beneficiaries. For a project or portion thereof where Third-Party Beneficiary status has been attained and is effective, the Parties shall not alter existing mitigation obligations imposed by the CITY on the Third-Party Beneficiary, except as otherwise specifically allowed under this Agreement or the Subarea Plan, provided that the Third-Party Beneficiary satisfies all mitigation obligations imposed by the CITY in conformance with this Agreement. These assurances do not apply to circumstances under which this Agreement provides that USFWS or CDFG may require additional mitigation or conservation measures from the CITY; under such circumstances, the Parties may require Third Party Beneficiaries to provide any additional mitigation or conservation that is required. D. Authorization for Take Conferred by Local Jurisdiction to Third-Party Beneficiary. The authorization for incidental take issued by the CITY to the Third-Party Beneficiary shall be for the length of time and run concurrent with the specific land development approval granted by the CITY. However, no grading, clearing and/or grubbing activities may be commenced by the Third-Party Beneficiary pursuant to the CITY's development approval until the mitigation established pursuant to paragraph 17.1 .A above has been fully satisfied (via conservation easement, transfer of fee title, etc.) or is guaranteed (via irrevocable offer of dedication, mitigation bond, letter of credit, pledged savings account or other equivalent mechanism) to occur within a time frame approved by Page 37 of 48 the CITY, which time frame shall not under any circumstance exceed one year from the date the permit for grading, clearing and/or grubbing is issued. 17.2 Effect of Take Authorization Revocation, Termination or Suspension. In the event that the USFWS and/or CDFG revoke, terminate or suspend the Section 10(a)(1)(B) Permit and NCCP Authorization issued to the CITY in connection with this Agreement and provided the CITY continues to carry out its obligation under the Subarea Plan, this Agreement and the Take Authorizations with regard to Third Party Beneficiaries, the assurances provided to Third Party Beneficiaries under this Agreement and the right to Take Chula Vista Covered Species and Species Adequately Conserved extended by the CITY to the Third Party Beneficiaries under the Permit and/or NCCP Authorization, will remain in effect as to every individual Third Party Beneficiary which fulfills the mitigation obligations imposed on it by the CITY in compliance with this Section and Section 10 of this Agreement unless USFWS or CDFG determines that continuation of the City's Permit and/or NCCP Authorization with regard to Take by Third Party Beneficiaries would likely jeopardize the continued existence of a listed species. 17.3 Enforcement. The Parties reserve the right to enforce all applicable federal, state or local laws against persons or entities which engage in unlawful land development activity without obtaining proper permits and approvals from the Parties. Also, the Parties reserve the right to enforce all applicable federal, state or local laws against Third-Party Beneficiaries that conduct land development activities in the Subarea which are not in compliance with land development approvals granted by the C1TY in conformance with this Agreement and the Chula Vista Subarea Plan. 17.4 No Right to Sue Under this Agreement. Notwithstanding the use of the term "Third- Party Beneficiary" or any other provision of this Agreement, this Agreement shall confer no right upon Third-Party Beneficiaries or any other person or entity to sue the USFWS, the CDFG, or the CITY. 18.0 ENVIRONMENTAL REVIEW 18.1 Federal Law - NEPA. Issuance of a Section 10(a) (1)(B) Permit to the CITY by USFWS is an action subject to NEPA review. USFWS is a lead agency under NEPA. The Chula Vista Subarea Plan has been evaluated pursuant to NEPA under the MSCP Subregional Plan Final EIR/EIS (1997); the Addendum to the Final EIR/EIS (2000); and the Supplemental EIR and EA (2002). 18.2 State Law - CEQA. Implementation and approval of the MSCP Subregional Plan and each of the subarea plans are actions subject to CEQA review. The CITY is the lead agency for the Chula Vista Subarea Plan, which has been evaluated pursuant to CEQA under the MSCP Subregional Plan Final EIR/EIS (1997); the Addendum to the Final EIR/EIS (2000); and the Supplemental EIR and EA (2002). CDFG is a responsible agency under CEQA for purposes of approving the Chula Vista Subarea Plan and issuing the NCCP Authorization under the NCCP Act. 19.0 COOPERATIVE EFFORT In order that each of the legal requirements summarized in Section 8.0 of this Page 38 of 48 Agreement are fulfilled, each of the Parties to this Agreement must perform certain specific tasks. The MSCP Subregional Plan thus describes a cooperative program by federal, state and local agencies to conserve the Covered Species. 20.0 TERMS USED Terms defined and utilized in the MSCP Subregional Plan, the ESA, the CESA, and the NCCP Act shall have the same meaning ~vhen utilized in this Agreement, except as specifically noted. 21.0 TERM 21.1 Fifty-year Agreement. This Agreement takes effect on the Effective Date, and shall remain in full force and effect for a period of 50 years, or until revocation or termination of the Section 10(a)(1)(B) Permit and NCCP Authorization pursuant to Section 16 or Section 22 of this Agreement, whichever occurs sooner. 21.2 Fifty-'fear Take Authorizations. The Section 10(a)(1)(B) Permit and NCCP Authorization issued to the CITY shall be issued for a period of 50 years from the Effective Date, unless revoked or terminated sooner in accordance with applicable laws and regulations. 21.3 Permanent Preservation. Notwithstanding the stated term as herein set forth, the Parties agree and recognize that once Take of a Covered Species has occurred and/or their habitat modified within the Subarea, such Take and habitat modification will be permanent. The Parties, therefore, agree that the preservation and maintenance of the habitat provided for under this Agreement is likewise intended to be permanent and to extend beyond the term of this Agreement. 22.0 TERMINATION A. Upon 90 days written notice to USFWS and CDFG and all other Participating Local Jurisdictions, the CITY may unilaterally withdraw from this Agreement provided: (1) the CITY and all Third Party Beneficiaries have complied with all mitigation obligations incurred under the Section 10(a)(1)(B) Permit and NCCP Authorization, the MSCP Subregional Plan, Chula Vista Subarea Plan and this Agreement up to the date of withdrawal; the city has complied with its obligation to record all habitat losses and gains in Habitrak; and the CITY provides written evidence of such compliance to USFWS and CDFG; and (2) the CITY and Third Party Beneficiaries shall remain obligated to carry out all of their long term management and monitoring obligations assumed under the MSCP Subregional Plan, Chula Vista Subarea Plan and this Agreement with respect to habitat conservation lands included in, or required to be included in, the Preserve as a result of Incidental Take associated with land development projects authorized for Take by the CITY prior to withdrawal from the Agreement. Page 39 of 48 B. Any Incidental Take associated with land development projects approved by the CITY for which mitigation has been assured as provided in Section 17 shall, subject to the limitations in Section 17, continue to be authorized under the terms of the Section 10(a)(1)(B) Permit and NCCP Authorization provided the CITY continues to carry out its obligations under this Agreement. Except as provided in this Section 22.B, the Take Authorizations may not qualify for Incidental Take authorization under Section 17.0 after that date. C. Withdrawal of the CITY from this Agreement shall be deemed to constitute a surrender of the CITY's take authorizations issued pursuant to this Agreement. 23.0 AMENDMENTS 23.1 Standard Amendments and Modifications. Standard amendments to the Section 10(a)(1)(B) Permit and NCCP Authorization and this Agreement and modifications to the Subarea Plan may be proposed by any Party to this Agreement. The Party proposing the amendment or modification shall provide to each other Party a written statement of the reasons for the amendment or modification and an analysis of the effect of the amendment or modification on the environment, including the effects on Covered Species and the implementation of the Subarea Plan. Any amendment shall comply ~vith all applicable laws, including but not limited to the ESA and implementing regulations, NEPA, the NCCP Act and any implementing regulations, and CEQA. All modifications to the Subarea Plan and all amendments to this Agreement, except those described in Sections 5.1.3.1, 5.3.1, and 5.4 of the Chula Vista Subarea Plan, shall be processed as standard amendments and modifications pursuant to this paragraph. 23.2 Minor Modifications and Amendments Any Party may propose a minor modification to the Subarea Plan or amendment to this Agreement for the changes described in Sections 5.1.3.1, 5.3.1, and 5.4 of the Chula Vista Subarea Plan using the amendment procedures contained in those sections. All other modifications or amendments shall be standard amendments and modifications governed by Section 23.1. It is contemplated that minor modifications to the Chula Vista Subarea Plan and minor amendments to this Agreement may be agreed to by the Parties in writing without the need for amending the Section 10(a)(1)(B) Permit and NCCP Authorization. 24.0 FORCE MAJEURE In the event that the CITY is wholly or partially prevented from performing obligations under this Agreement because of unforeseeable causes beyond the reasonable control of and without the fault or negligence of the CITY ("force majeure"), including but not limited to acts of God, labor disputes, sudden actions of the elements, or actions of federal or state agencies or other local jurisdictions, the CITY shall be excused from whatever performance is affected by such unforeseeable cause to the extent so affected, and such failure to perform shall not be considered a material violation or breach, provided that nothing in this Section shall be deemed to authorize any Party to violate ESA or CESA, and provided further that: Page 40 of 48 A. The suspension of performance is of no greater scope and no longer duration than is required by the force majeure; B. Within two weeks after the occurrence of the rome majeure the CITY gives the USFWS and CDFG written notice describing the particulars of the occurrence; C. The CITY uses its best efforts to remedy its inability to perform (however, this paragraph shall not require the settlement of any strike, walk-out, lock-out or other labor dispute on terms which in the sole judgment of the CITY are contrary to its interest); and D. When the CITY is able to resume performance of its obligations, the CITY shall give USFWS and CDFG written notice to that effect. E. Changed Circumstances not Subject to Fome Majeure. Events or causes identified as Changed Circumstances in the Subarea Plan and this Agreement are not considered unforeseeable events or Acts of God within the meaning of this Section 24 and the CITY shall be responsible for implementing the responses to Changed Circumstances provided for in Section 9.2 (b) of this Agreement. 25.0 MISCELLANEOUS PROVISIONS 25.1 No Partnership. Except as otherwise expressly set forth herein, neither this Agreement nor the Chula Vista Subarea Plan shall make or be deemed to make any Party to this Agreement the agent for or the partner of any other Party. 25.2 Successors and Assigns. This Agreement and each of its covenants and conditions shall be binding on and shall inure to the benefit of the Parties and their respective successors and assigns. The CITY may only assign its rights and obligations under this Agreement with the approval of the USFWS and CDFG, which approval shall not be unreasonably withheld. Assignment or other transfer of the Section 10(a)(1)(B) Permit or NCCP Authorization shall be governed, respectively, by then-current USFWS regulations and any applicable NCCP regulations. 25.3 Notice. Any notice permitted or required by this Agreement shall be delivered personally to the persons set forth below or shall be deemed given five (5) days after deposit in the United States mail, certified and postage prepaid, return receipt requested and addressed as follows or at such other address as any Party may from time to time specify to the other Parties in writing: United States Fish and Wildlife Service Operations Manager California/Nevada Operations Office 2800 Cottage Way, Room W-2606 Sacramento, California 95825 United States Fish and Wildlife Service Page 41 of 48 Field Supervisor, Carlsbad Field Office 2730 Loker Avenue West Carlsbad, California 92008 Page 42 of 48 /?- ¥/ Director, Califomia Department ofFish and Game 1416 9th Street, 12th Floor Sacramento, California 95814 Regional Manager South Coast Region California Department of Fish and Game 4949 Viewridge Avenue San Diego, California 92123 The City of Chula Vista Office of the City Manager 276 Fourth Avenue Chula Vista, California 91910 25.4 Entire Agreement. This Agreement supersedes any and all prior agreements, either oral or in writing, among the Parties with respect to the subject matter hereof and contains all of the covenants and agreements among them with respect to said matters; and each Party acknowledges that no representation, inducement, promise or agreement, oral or otherwise, has been made by the other Party or anyone acting on behalf of the other party that is not embodied herein. 25.5 Attorneys' Fees. If any action at law or equity, including any action for declaratory relief, is brought to enforce or interpret the provisions of this Agreement, each Party to the litigation shall bear its own attorneys' fees and costs. 25.6 Duplicate Originals. This Agreement may be executed in any number of duplicate originals. A complete original of this Agreement shall be maintained in the official records of each of the Parties. 25.7 Federal and State Appropriations. The duty of the USFWS and CDFG to carry out its obligations under the MSCP Subregional Plan, the Chula Vista Subarea Plan and this Agreement shall be subject to the federal Anti-Deficiency Act and the availability of appropriated funds. Nothing in this Agreement shall be construed by the Parties to require the obligation, appropriation, or expenditure of any money from the U.S. Treasury. The Parties acknowledge that USFWS will not be required under this Agreement to expend any federal agency's appropriated funds unless and until an authorized officer of that agency affirmatively acts to commit to such expenditures as evidenced in writing. The duty of CDFG to carry out its obligations under the MSCP Subregional Plan, the Chula Vista Subarea Plan and this Agreement shall be subject to the availability of appropriated funds. Nothing in this Agreement shall be construed by the Parties to require the obligation, appropriation, or expenditure of any money from the Treasury of the State of California. The Parties acknowledge that CDFG will not be required under this Agreement to expend any State of California agency's appropriated funds unless and until an authorized officer of that agency affirmatively acts to commit to such expenditures as evidenced in writing. Page 43 of 48 25.8 Elected Officials. No member of Congress shall be entitled to any share or part of this Agreement, or to any benefit that may arise from it. 25.9 Governing Law. This Agreement shall be governed by and construed in a manner consistent with the statutory and regulatory authority of the USFWS under the ESA, its implementing regulations and other applicable federal laws, and of the CDFG under the CESA, the NCCP Act and other applicable state laws and regulations. Nothing in this Agreement is intended to nor shall be construed to limit or compromise the authority of the USFWS to fulfill its responsibilities under the ESA or CDFG under CESA and the NCCP Act, including but not limited to seeking penalties against the CITY. Further, nothing in this Agreement is intended or shall be construed to limit or diminish the responsibility of the USFWS as an agency of the federal government or CDFG as an agency of the State or California. 25.10 Counterparts. This Agreement may be executed in counterparts. This Agreement shall become operative as soon as one counterpart hereof has been executed by each member. The counterparts so executed shall constitute one Agreement notwithstanding that the signatures of all members do not appear on the same page. 25.11 References to Regulations. Any reference in this Agreement, the MSCP Subregional Plan, the Chula Vista Subarea Plan or the Section 10(a)(1)(B) Permit and NCCP Authorization to any regulation or role of USFWS or CDFG, shall be deemed to be a reference to such regulation or rule in existence at the time an action is taken. 25.12 Applicable laws. Notwithstanding any other provisions of this Agreement, all activities covered under the MSCP Subregional Plan, Chula Vista Subarea Plan, this Agreement and the Section 10(a)(1)(B) Permit and NCCP Authorization must be in compliance with all applicable state or federal laws and regulations including CESA (including § 2080) and the ESA (including the provisions of§{} 7 and 10). 25.13 Due Authorization. Each Party warrants that the signatory is authorized to execute this Agreement on behalf of that Party. Page 44 of 48 SIGNATURE PAGE TO IMPLEMENTING AGREEMENT BY AND AMONG UNITED STATES FISH AND WILDLIFE SERVICE, CALIFORNIA DEPARTMENT OF FISH AND GAME, AND CITY OF CHULA VISTA IN WITNESS WHEREOF, THE PARTIES HERETO have executed this Implementing Agreement to be in effect as of the date last signed below. BY: Date Regional Director United States Fish and Wildlife Service Portland, Oregon BY: Date Director California Department of Fish and Game Sacramento, California BY: Date City Manager The City of Chula Vista Chula Vista, California Page 45 of 48 SIGNATURE PAGE TO IMPLEMENTING AGREEMENT BY AND AMONG UNITED STATES FISH AND WILDLIFE SERVICE, CALIFORNIA DEPARTMENT OF FISH AND GAME, AND CITY OF CHULA VISTA IN WITNESS WHEREOF, THE PARTIES HERETO have executed this Implementing Agreement to be in effect as of the date last signed below. BY: Date Regional Director United States Fish and Wildlife Service Portland, Oregon BY: Date Director California Department of Fish and Game Sacramento, California BY: Date City Manager The City of Chula Vista Chula Vista, California Page 46 of 48 SIGNATURE PAGE TO IMPLEMENTING AGREEMENT BY AND AMONG UNITED STATES FISH AND WILDLIFE SERVICE, CALIFORNIA DEPARTMENT OF FISH AND GAME, AND CITY OF CHULA VISTA IN WITNESS WHEREOF, THE PARTIES HERETO have executed this Implementing Agreement to be in effect as of the date last signed below. BY: Date Regional Director United States Fish and Wildlife Service Portland, Oregon BY: Date Director California Department of Fish and Game Sacramento, California BY: Date City Manager The City of Chula Vista Chula Vista, California Page 47 of 48 ,/7' LIST OF EXHIBITS Exhibit A MSCP Subregional Plan Area Map Exhibit B List of 12 Agencies in MSCP Subregional Plan Area Exhibit C Chula Vista Subarea Plan Area Map Exhibit D Covered Projects Exhibit E Covered Species List - By Category and By Other Subarea Plans Exhibit F Significantly Conserved Vegetation Communities Sufficiently Conserved Vegetation Communities Exhibit G Upland Mitigation Ratios Exhibit H Narrow Endemic Species for Chula Vista Subarea Page 48 of 48 SolaNa ~ ~- Boat'k- Oel ~ Unincorporated /'v' Jurisdictional Boundaries ~-~ Military Lands Source: SANDAG JurisdlcUons ~.." Major S~am$ o EXHIBIT A LIST OF 12 AGENCIES IN MSCP PLAN AREA County of San Diego City of Chula Vista City of San Diego City of Coronado City of Del Mar City of E1 Cajon City of Imperial Beach City of La Mesa City of Lemon Grove City of National City City of Poway City of Santee EXHIBIT B /7-?? LIST OF COVERED PROJECTS Covered Projects San Miguel Ranch Rolling Hills Ranch (Salt Creek Ranch) Bella Lago Otay Ranch University Project EXHIBIT D / 7". Chula Vista Covered Species plants Acanthomintha ilicifolia San Diego thom-mint Agave shawii Shaw's agave Ambrosia pumila San Diego ambrosia Aphanisma blitoides Aphanisma Arctostaphylos glandulosa var. ~wassifolia Del Mar manzanita Arctostaphylos otayensis Otay manzanita Astragalus tener var. titi Coastal dunes milk vetch Baccharis vanessae Encinitas baccharis Berberis nevinii Nevin's barberry Brodiaeafilifolia Thread-leaved brodiaea Brodiaea orcuttii Orcutt's brodiaea Calamagrostis densa Dense reed grass Calochortus dunnii Dunn's mariposa lily Caulanthus stenocarpus Slender-pod jewelfloxver Ceanothus cyaneus Lakeside ceanothus Ceanothus verrucosus Wart-stemmed ceanothus Cordylanthus maritimus ssp. maritimus Salt marsh bird's-beak Cordylanthus orcuttianus OrcuWs bird's-beak Corethrogynefilaginifolia var. linifolia Del Mar Mesa sand aster Cupressusforbesii Tecate cypress Deinandra [Hemizonia] conjugens Otay tarplant Dudleya blochmaniae ssp. brevifolia Short-leaved dudleya Dudleya variegata Variegated dudleya Dudleya viscida Sticky dudleya Ericameria palmeri ssp. palmeri Palmer's ericameria Eryngium aristulatum var. parishii San Diego button-celery Erysimum ammophilum Coast wallflower Ferocactus viridescens San Diego barrel cactus Lepechinia cardiophylla Heart-leaved pitcher sage Lepechinia ganderi Gander's pitcher sage Lotus nuttallianus Nuttall's lotus EXHIBIT E-1 Chula Vista Covered Species Plant~ (continued) Monardella hypoleuca ssp. lanata Felt-leaved monardella Monardella linoides ssp. viminea Willowy monardella Muilla clevelandii San Diego goldenstar Navarretiafossalis Spreading navarretia Nolina interrata Dehesa bear-grass Opuntia parryi var. serpentina Snake cholla Orcuttia californica California Orcutt grass Pinus torreyana Torrey pine Pogogyne abramsii San Diego mesa mint Pogogyne nudiuscula Otay Mesa mint Rosa minutifolia Small-leaved rose' Satureja chandleri San Miguel savory Senecio ganderi Gander's butterweed Solanum tenuilobatum Narrow-leaved nightshade Tetracoccus dioicus Parry's tetracoccus Invertebrates, Amphibians and Reptiles Branchinecta sandiegoensis San Diego fairy shrimp Bufo microscaphus californicus Arroyo southwestem toad Clemmys marmorata pallida Southwestern pond turtle Cnemidophorus hyperythrus beldingi Orange-throated whiptail Euphydryas editha quino Quino checkerspot butterfly Mitoura thornei Thorne's hairstreak butterfly Panoquina errans Salt marsh skipper Phrynosoma coronatum blainvillei San Diego homed lizard Rana aurora draytoni California red-legged frog Streptocephalus woottoni Riverside fairy shrimp EXHIBIT E-1 Chula Vista Covered Species Birds Accipiter cooperii Cooper's hawk Agelaius tricolor Tricolored blackbird Aimophila ruficeps canescens California rufous-crowned sparrow Aquila chrysaetos Golden eagle Branta canadensis Canada goose Buteo regalis Fermginous hawk Buteo swainsoni Swainson's hawk Campylorhynchus brunneicapillus couesi Coastal cactus ~wen Charadrius alexandrinus nivosus Western snowy plov~r Charadrius montanus Mountain plover Circus cyaneus Northern harrier Egretta rufescens Reddish egret Empidonax traillii extimus Southwestern willow flycatcher Falco peregrinus anatum American peregrine falcon Haliaeetus leucocephalus Bald eagle Numenius americanus Long-billed curlew Passerculus sandwichensis beldingi Belding's Savannah sparrow Passerculus sandwichensis roxtratus Large-billed Savannah sparrow Pelecanus occidentalis californicus California brown pelican Plegadis chihi White-faced ibis Polioptila californica californica California gnatcatcher Rallus longirostris levipes Light-footed clapper rail Speotyto cunicularia hypugaea Burrowing owl Sialia mexicana Western bluebird Sterna antillarum browni California least tern Sterna elegans Elegant tern Vireo belliipusillus Least Bell's vireo Animals Felis concolor Mountain lion Odocoileus hemionusfuliginata Southern mule deer Taxidea taxus American badger EXHIBIT E-1 Species Adequately Conserved by the Chula Vista Subarea Plan Plants Cordylanthus maritimus ssp. maritimus Salt marsh bird's-beak Cordylanthus orcuttianus Orcutt's bird's-beak Deinandra [Hemizonia] conjugens Otay tarplant Dudleya variegata Variegated dudleya Ferocactus viridescens San Diego barrel cactus Opuntia parryi var. serpentina Snake cholla Invertebrates Euphydryas editha quino Quino checkerspot butterfly Panoquina errans Salt marsh skipper Birds Aimophila ruficeps canescens California mfous-crowned sparrow Campylorhynchus brunneicapillus couesi Coastal cactus wren Charadrius alexandrinus nivosus Western snowy plover Numenius americanus Long-billed curlew Passerculus sandwichensis beldingi Betding's Savannah sparrow Passerculus sandwichensis rostratus Large-billed Savannah sparrow Polioptila californica californica California gnatcatcher Rallus longirostris levipes Light-footed clapper rail Speotyto cunicularia hypugaea Burrowing owl Sterna antillarum browni California least tern Vireo bellii pusillus Least Bell's vireo EXHIBIT E-2 Species Adequately Conserved by the Chula Vista Subarea Plan in Conjunction with the City of San Diego Subarea Plan Plants Acanthomintha ilicifolia San Diego thom-mint Agave shawii Sha~;'s agave Ambrosia pumila San Diego ambrosia Aphanisma blitoides Aphanisma Arctostaphylos glandulosa var. crassifolia Del Mar manzanita Arctostaphylos otayensis Otay manzanita Astragalus tenet var. titi Coastal dunes milk vetch Baccharis vanessae Encinitas baccharis Berberis nevinii Nevin's barberry Brodiaeafilifolia ~read-leaved brodiaea Calamagrostis densa Dense reed grass Calochortus dunnii Dunn's mariposa lily Caulanthux stenocarpus Slender-pod jewelflower Ceanothus ryaneus Lakeside ceanothus Cordylanthus maritimus ssp. maritimus Salt marsh bird's-beak Cordylanthus orcuttianus Orcutt's bird's-beak Corethrogynefilaginifolia var. linifolia Del Mar Mesa sand aster Cupressusforbesii Tecate cypress Deinandra [Hemizonia] conjugens Otay tarplant Dudleya blochmaniae ssp. brevifolia Short-leaved dudleya Dudleya variegata Variegated dud]eya Dudleya viscida Sticky dudleya Ericameria palmeri ssp. palmeri Palmer's ericameria Eryngium aristulatum var. parishii San Diego button-celery Erysimum ammophilum Coast wallflower Ferocactus viridescens San Diego barrel cactus Lepechinia cardiophylla Heart-leaved pitcher sage Lepechinia ganderi Gander's pitcher sage Lotus nuttallianus Nuttall's lotus EXHIBIT E-3 Species Adequately Conserved by the Chula Vista Subarea Plan in Conjunction with the City of San Diego Subarea Plan Plants (continued) Monardella hypoleuca ssp. lanata Felt-leaved monardclla Monardella linoides ssp. viminea Willowy monardella Muilla clevelandii San Diego goldcnstar Navarretiafossa[is Spreading navarrctia Nolina interrata Dehesa bear-grass Opuntia parryi var. serpentina Snake cholla Orcuttia californica Califomia Orcutt grass Pinus torreyana Torrey pine Pogogyne abramsii San Diego mesa mint Pogogyne nudiuscula Otay Mesa mint Rosa minutifolia Small-leaved rose Satureja chandleri San Miguel savory Senecio ganderi Gander's butterweed Solanum tenuilobatum Narrow-leaved nightshade Tetracoccus dioicus Party's tetracoccus Invertebrates Branchinecta sandiegoensis San Diego fairy shrimp Bufo microscaphus californicus Arroyo southwestern toad CIemmys marmorata palIida Southwestern pond turtle Cnemidophorus hyperythrus beldingi Orange-throated whiptail Euphydryas editha quino Quino checkerspot butterfly Mitoura thornei Thorne's hairstreak butterfly Panoquina errans Salt marsh skipper Phrynosoma coronaturn blainvillei San Diego horned lizard Rana aurora draytoni California red-legged frog Streptocephalus woottoni Riverside fairy shrimp EXHIBIT E-3 7 Species Adequately Conserved by the Chula Vista Subarea Plan in Conjunction with the City of San Diego Subarea Plan Birds Accipiter cooperii Cooper's hawk Agelaius tricolor Tricolored blackbird Aimophila ruficeps canescens California rufous-crowned sparrow Aquila chrysaetos Golden eagle Branta canadensis Canada goose Buteo swainsoni Swainson's hawk Buteo regalis Ferruginous hawk Campylorhynchus brunneicapillus couesi Coastal cactus wren Charadrius alexandrinus nivosus Western snowy plover Charadrius montanus Mountain plover Circus cyaneus Northern harrier Egretta rufescens Reddish egret Empidonax traillii extimus Southwestern willow flycatcher Falcoperegrinus anatum American peregrine falcon Haliaeetus leucocephalus Bald eagle Numenius americanus Long-billed curlew Passerculus sandwichensis beldingi Belding's Savannah sparrow Passerculus sandwichensis rostratus Large-billed Savannah sparrow Pelecanus occidentalis californicus California brown pelican Plegadis chihi White-faced ibis Polioptila californica californica California gnatcatcher Rallus Iongirostris levipes Light-footed clapper rail Speotyto cunicularia hypugaea Burrowing owl Sterna antillarum browni California least tern Sterna elegans Elegant tern Sialia mexicana Western bluebird Vireo belliipusillus Least Bell's vireo Animals Taxidea taxus American badger Fells concolor Mountain lion Odocoileus hemionusfuliginata Southern mule deer EXHIBIT E-3 Species Adequately Conserved by the Chula Vista Subarea Plan in Conjunction with the County of San Diego Subarea Plan Plants Acanthomintha ilicifolia San Diego thom-mint Agave shawii Shaw's agave Ambrosia pumila San Diego ambrosia Aphanisma blitoides Aphanisma A rctostaphylos glandulosa var. crassifolia Del Mar manzanita Arctostaphylos otayensis Otay manzanita Astragalus tenet var. titi Coastal dunes milk vetch Baccharis vanessae Encinitas baccharis Berberis nevinii Nevin's barberry Brodiaeafilifolia Thread-leaved brodiaea Brodiaea orcuttii Orcutt's brodiaea Calamagrostis densa Dense reed grass Calochortus dunnii Dunn's mariposa lily Caulanthus stenocarpus Slender-pod jewelflower Ceanothus cyaneus Lakeside ceanothus Ceanothus verrucosus Wart-stemmed ceanothus Cordylanthus maritimus ssp. maritimus Salt marsh bird's-beak Cordylanthus orcuttianus Orcutt's bird's-beak Cupressusforbesii Tecate cypress Deinandra [Hemizonia] conjugens Otay tarplant Dudleya blochmaniae ssp. brevifolia Short-leaved dudleya Dudleya w~riegata Variegated dudleya Dudleya viscida Sticky dudleya Ericameria palmeri ssp. palmeri Palmer's ericameria Eryngium aristulatum var. parishii San Diego button-celery Erysimum ammophilum Coast wallflower Ferocactus viridescens San Diego barrel cactus Lepechinia cardiophylla Heart-leaved pitcher sage Lepechinia ganderi Gander's pitcher sage Lotus nuttallianus Nuttall's lotus EXHIBIT E-4 Species Adequately Conserved by the Chula Vista Subarea Plan in Conjunction with the County of San Diego Subarea Plan Plants (continued) Monardella hy, ooleuca ssp. lanata Felt-leaved monardella Monardella linoides ssp. viminea Willowy monardella Muilla clevelandii San Diego goldenstar NaYarretiafossalis Spreading navarretia Nolina interrata Dehesa bear-grass Opuntia parryi var. serpentina Snake cholla Orcuttia californica California Orcutt grass Pinus torreyana Ton-ey pine Pogogyne abratnsii San Diego mesa mint Pogogyne nudiuscula Otay Mesa mint Rosa minutifolia Small-leaved rose Satureja chandleri San Migue] savory Senecio ganderi Gander's butterweed Solanwn tenuilobatum Narrow-leaved nightshade Tetracoccus dioicus Party's tetracoccus Invertebrates Branchinecta sandiegoensis San Diego fairy shrimp Bufo microscaphus californicus Arroyo southwestern toad Clemmys tnarmorata pallida Southwestern pond turtle Cnemidophorus hyperythrus beldingi Orange-throated whiptail Euphydryas editha quino Quino checkerspot butterfly Mitoura thornei Thome's hairstreak butterfly Panoquina errans Salt marsh skipper Phrynosoma coronatum blainvillei San Diego homed lizard Rana aurora draytoni California red-legged frog EXHIBIT E-4 Species Adequately Conserved by the Chula Vista Subarea Plan in Conjunction with the County of San Diego Subarea Plan Birds, ~4ccipiter cooperii Coopcr's hawk Agelaius tricolor Tricolored blackbird Aimophila ruficeps canescens California rufous-crowned sparrow Aquila chrysaetos Golden eagle Branta canadensis Canada goose Buteo swainsoni Swainson's hawk Buteo regalis Ferruginous hawk Campylorhynchus brunneicapillus couesi Coastal cactus wren Charadrius alexandrinus nivosus Western snowy plover Charadrius montanus Mountain plover Circus cyaneus Northern harrier Egretta rufescens Reddish egret Empidonax traillii extimus Southwestc~-n willow flycatcher Falcoperegrinus anatum American peregrine falcon Haliaeetus leucocephalus Bald eagle Numenius americanus Long-billed curlew Passerculus sandwichensis beMingi Belding's Savannah sparrow Passerculus sandwichensis rostratus Large-billed Savannah sparrow Plegadis chihi White-faced ibis Polioptila californica californica California gnatcatcher Rallus longirostris levipes Light-footed clapper rail Speotyto cunicularia hypugaea Burrowing owl Sterna antillarum browni California least tern Sterna elegans Elegant tern Sialia mexicana Western bluebird Vireo bellii pusillus Least Bell's vireo Animals Taxidea taxus American badger Felis concolor Mountain lion Odocoileus hemionusfuliginata Southern mule deer EXHIBIT E-4 /7-,':"/ Sufficiently Conserved Vegetation Communities Southern coastal bluff scrub Riparian scrub Disturbed wetlands Riparian forest Southern coastal saltmarsh Saltpan Coastal sage scrub (that portion of coastal sage scrub that comprises the range of the California gnatcatcher) Southern foredunes Riparian woodland Torrey pine forest Natural flood channel Tecate cypress forest Significantly Conserved Vegetation Communities Beach Oak riparian forest Freshwater marsh Coastal sage scrub Maritime succulent scrub Southern maritime chaparral Open water EXHIBIT F /7'/'2- MITIGATION RATIOS Upland Habitat Mitigation Ratios Tier Habitat Type Location Location of Preservation of Impact Inside Outside Preserve Preserve TIER I: Southern Foredunes Inside (rare uplands) Coastal Bluff Scrub Preserve 2:1 3:1 Maritime Succulent Scrub Outside Native Grasslands Preserve 1:1 2:1 Oak Woodlands TIER II: Coastal Sage Scrub Inside (uncommon CSS/Chaparral Preserve 1.5:1 2:1 uplands) Outside Preserve 1:1 1.5:1 TIER III: Mixed Chaparral Inside (common Chamise Chaparral Preserve 1:1 1.5:1 uplands) Non-native Grassland Outside ScrubOak/Chaparralt 3 Preserve 0.5:1 1:1 TIER IV: Disturbed Lands Inside No No Mitigation (other uplands) Agricultural Lands Preserve Mitigation Required Eucalyptus Required Outside No No Mitigation Preserve Mitigation Required Required Covered Narrow Listed on Table 5 -4 of N/A 1:1 to 3:1 1:1 to 3:1 Endemic Subarea Plan Species EXHIBIT G NARROW ENDEMIC SPECIES FOR CHULA VISTA SUBAREA Common Name Scientific Name Species that occur in Chula Vista Subarea and for which Subarea Plan provides a significant contribution to subregional conservation Salt marsh bird's-beak Cordylanthus maritimus ssp. maritimus Variegated dudleya Dudleya variegata Otay tarplant Deinandra [Hemizonia] con. jugens Snake cholla Opuntia parryi var. serpentina Species with known occurrences or suitable habitat within the Chula Vista Subarea San Diego thom-mint Acanthomintha ilicifolia San Diego ambrosia Ambrosia pumila Orcutt's brodiaea Brodiaea orcutti Palmer's ericameria Ericameria palmeri ssp. palmeri Species not likely to occur within the Chula Vista Subarea Shaw's agave 4gave shawii Encinitas baccharis Baccharis vanessae Nevin's barberry Berberis nevinii Thread-leaved brodiaea Brodiaeafilifolia Dunn's mariposa lily Calochortus dunnii Lakeside ceanothus Ceanothus qvaneus Short-leaved dudleya Dudleya blochmaniae ssp. brevifolia Gander's pitcher sage Lepechinia g, anderi Felt-leaved monardella Monardella h. vpoleuca spp. lanata Willowy monardella Monardella linoides var. viminea Dehesa bear-grass Nolina interrata EXHIBIT H RESOLUTION NO PCM 02-11 RESOLUTION OF THE CITY OF CHULA VISTA PLANNING COMMISSION RECOMMENDING THAT THE CITY COUNCIL APPROVE AMENDMENTS TO THE SALT CREEK RANCH GENERAL DEVELOPMENT PLAN AND SALT CREEK RANCH SECTIONAL PLANNING AREA (SPA) PLAN- McMiLLIN WHEREAS, a duly verified application was filed with the City of Chula Vista Planning and Building Department on October 15, 2001 by Pacific Bay Properties and as assumed by its successor in interest (Developer") for amendments to the Salt Creek ranch General Development Plan and Sectional Planning Area Plan (Project"); and WHEREAS, the area of land, which is the subject on this Resolution commonly known as Roiling Hills Ranch Subarea III consists of 606.9 acres located north of Proctor Valley Road and east of Hunte Parkway, within the Rolling Hills Ranch (Formerly Salt Creek Ranch) Planned Community ("Project Site"); and WHEREAS, amendments to the Salt Creek Ranch General Development Plan and Sectional Planning Area Plan are necessary in order to: 1) elimination of Neighborhood 13 and replace this area as open space, 2) adjust the land use boundaries of Neighborhood 9, 10A, 10B, 11 and 12; 3) transfer residential units lost by the elimination of Neighborhood 13 to other neighborhoods within Subarea III and 4) change the land use designation of Neighborhood 9 from SF1 to SFE and reduce the minimum lot size requirement from 15,000 to 10,000 square feet and; and WHEREAS, the amendments to the Salt Creek Ranch General Development Plan and Salt Creek Ranch Sectional Planning Area (SPA) Plan consist of changes to figures and tables contained in these documents, as further depicted in Exhibit B of draft City Council Resolution; and WHEREAS, the Environmental Review Coordinator has determined that any impacts associated with the proposed tentative subdivision map have been previously addressed by FSEIR 91-03, Salt Creek Ranch and has, therefore, prepared an Addendum to said FSE1R. The Tentative Map is in substantial conformance with the conceptual tentative map and grading plans on which the FSE1R analysis was based and, therefore, approval and implementation of the Tentative Map does not change the basic conclusions of the FSE1R. The Addendum has been prepared in accordance with requirements of the California Environmental Quality Act, State EIR Guidelines and the Environmental Review Procedures of the City of Chula Vista; and. WHEREAS, the Planning and Building Director set the time and place for a heating on the tentative map and notice of said heating, together with its propose, was given by its publication in a newspaper of general circulation in the city and its mailing to property owners and tenants within 500 feet of the exterior boundaries of the property at least 10 days prior to the hearing; and, WHEREAS, the hearing was held at the time and place as advertised, namely 6:00 p.m., April 23, 2003, in the Council Chambers, 276 Fourth Avenue, before the Planning Commission and said hearing was thereafter closed; and, WHEREAS, the Planning Commission hereby considered the first Addendum to FSEIR 91-03 (Salt Creek Ranch). NOW, THEREFORE, BE IT RESOLVED THAT THE PLANNING COMMISSION hereby recommends that the City Council adopt the Addendum to FSEIR 91-03 and the attached draft City Council Resolution and Ordinance, approving the Project in accordance with the findings and subject to the conditions contained therein. BE IT FURTHER RESOLVED THAT a copy of this Resolution be transmitted to the City Council. BE IT FURTHER RESOLVED THAT THE PLANNING COMMISSION voted (xxxx to recommend approval of the Project. AYES: NOES: ABSENT: Russ Hall, Chairperson ATTEST: RESOLUTION NO PCS-92-02A RESOLUTION OF THE CITY OF CHULA VISTA PLANNING COMMISSION RECOMMENDING THAT THE CITY COUNCIL APPROVE AND ESTABLISH CONDiTiONS OF THE AMENDING TENTATIVE SUBDIVISION MAP FOR ROLLiNG HILLS RANCH SUBAREA III (FORMERLY SALT CREEK RANCH), 92-02A-McMILLIN WHEREAS, a duly verified application for a tentative subdivision map was filed with the Planning and Building Department of the City of Chula Vista on October 15, 2001 by Pacific Bay Properties and as assumed by its successor in interest ("DeveIoper") requesting approval of the amending Tentative Subdivision Map for Rolling Hills Ranch Subarea III, Chula Vista Tract 02-02Ain order to modify the Project Site to create 425 single-family lots and 6 open space lots (CC, EE-GG, DDD, HHH), 29 Master HOA open space lots, 4 HOA lots and 1 recreational lot (Rec Lot 9A); and various special lots (i.e., slopoe lots) throughout the subdivision ("Project"); and, WHEREAS, the area of land which is the subject matter of this resolution is commonly known as Rolling Hills Ranch Subarea III amending tentative subdivision map, Chula Vista Tract 92-02A; and for the purpose of general description heroin consists of 606.9 acres located north of Proctor Valley Road and east of Hunte Parkway, within the Rolling Hills Ranch (formerly Salt Creek Ranch) Planned Community ("Project Site"); and, WHEREAS, said amending tentative map includes an easement that would accommodate a 128 foot wide right-of-way for the future alignment of Proctor Valley Road from the easternmost edge of Neighborhood 9 to the Rolling Hills Ranch eastern boundary, and approved street connections from Neighborhood 9 to 13 and from Neighborhood 11 to the northerly portion of Bella Lago would be removed; and WHEREAS, the Environmental Review Coordinator has determined that any impacts associated with the proposed tentative subdivision map have been previously addressed by FSEIR 91-03, Salt Creek Ranch and has, therefore, prepared an Addendum to said FSEIR. The Tentative Map is in substantial conformance with the conceptual tentative map and grading plans on which the FSEIR analysis was based and, therefore, approval and implementation of the Tentative Map does not change the basic conclusions of the FSEIR. The Addendum has been prepared in accordance with requirements of the California Environmental Quality Act, State E1R Guidelines and the Environmental Review Procedures of the City of Chula Vista; and,. WHEREAS, the Planning and Building Director set the time and place for a heating on the tentative map and notice of said hearing, together with its purpose, was given by its publication in a newspaper of general cimulation in the city and its mailing to property owners and tenants within 500 feet of the exterior boundaries of the property at least 10 days prior to the hearing; and, WHEREAS, the heating was held at the time and place as advertised, namely 6:00 p.m., April 23, 2003, in the Council Chambers, 276 Fourth Avenue, before the Planning Commission and said heating was thereafter closed; and, WHEREAS, the Planning Commission hereby considered the first Addendum to FSEIR 91-03 (Salt Creek Ranch). NOW, THEREFORE, BE IT RESOLVED THAT THE PLANN1NG COMMISSION hereby recommends that the City Council adopt the attached draft City Council Resolution approving the amending Tentative Subdivision Map for Rolling Hills Ranch Subarea III, Chula Vista Tract 92-02A in accordance with the findings and subject to the conditions contained therein. BE IT FURTHER RESOLVED THAT a copy of this Resolution be transmitted to the City Council. BE IT FURTHER RESOLVED THAT THE PLANNING COMMISSION voted (xxxx to recommend approval of the Project. AYES: NOES: ABSENT: Russ Hall, Chairperson ATTEST: RESOLUTION NO. 16834 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE TENTATIVE SUBDIVISION ~tAP FOR SALT CREEK RANCH, CHULA VISTA TRACT 92-02 AND I~AKING THE NECESSARY FINDINGS, RECERTIFYING SUPPLEMENTAL ENVIRONMENTAL IMPACT REPORT SEIR 91-03 (SCH #89092721) AND READOPTING THE STATEMENT OF OVERRIDING CONSIDERATIONS AND THE MITIGATION MONITORING PROGRAM FOR THE SEIR WHEREAS, the property which is the subject matter of this resolution is identified and described on Chula Vista Tract 92-02, and is commonly known as Salt Creek Ranch {"Property"}; and, WHEREAS, the Baldwin Company fi)ed a duly verified application for the subdivision of the Property in the form of the tentative subdivision map known as Salt Creek Ranch, Chula Vista Tract 92-02, with the Planning Department of the City of Chula Vista on June 15, 1992 ('Project"); and, WHEREAS, said application requested the approval for the subdivision of approximately 1197.4 acres located on both sides of Proctor Valley Road, east of the easterly terminus of East H Street, into 2,609 residential lots, open space areas, two school lots, two parks and two community purpose facility lots; and, WHEREAS, the development of the Property has been the subject matter of a General Development Plan {"GDP"} previously approved by the City Council on September 25, lggo by Resolution No. 15875 ("GDP Resolution") wherein the City Council, in the environmental evaluation of said GDP, relied in part on the Salt Creek Ranch, General Development Plan, Environmental Impact Report No. 89-03, SCH No, 89092721 ("Program EIR 89-03"), a program environmental impact report as same is defined in CEQA Guideline Section 15168; and, WHEREAS, the development of the Property has been the subject matter of a Section Planning Area Plan ("SPA Plan") previously approved by the City Council on March 24, 1992 by Resolution No. 16554 ("SPA Plan Resolution") wherein the City Council, in the environmental evaluation of said SPA Plan, relied in part on the "Salt Creek Ranch, Sectional Planning Area {SPA) Plan Final Supplemental Environmental Impact Report No. 91-03", SCH No. 89092721 ("SEIR 91-03"); and, WHEREAS, this Project is a subsequent activity in the program of development environmentally evaluated under Program EIR 89-03 and SEIR 91-03 that is virtually identical in all relevant respects, including lot size, lot numbers, lot configurations, transportation corridors, etc., to the project descriptions in said former environmenta) evaluations; and, WHEREAS, the City Environmental Review Coordinator has reviewed the proposed Tentative Map and determined that is in substantial conformance with the SPA Plan, therefore no new environmental documents are necessary; Resolution No. 16834 Page 2 WHEREAS, the Planning Commission held an advertised public hearing on said project on September 23, 1992 and recertified SEIR 91-03, voted to recommend that the City Council approve the Tentative Map in accordance with the findings and conditions listed below and readopted the Statement of Overriding Considerations and the Mitigation Monitoring Program; and, WHEREAS, the City Council set the time and place for a hearing on said tentative subdivision map application and notice of said hearing, together with its purpose, was given by its publication a newspaper of general circulation in the City and its mailing to property owners within 1,000 feet of the exterior boundaries of the property at least ten days prior to the hearing; and, WHEREAS, the hearing was held at the time and place as advertised, namely 4:00 p.m., October 6, 1992, in the Council Chambers, 276 Fourth Avenue, before the City Council and said hearing was thereafter closed. NOW THEREFORE, THE CITY COUNCIL finds, determines and resolves as follows: SECTION 1. CEQA Finding re Previously Examined Effects. The City Council hereby finds that the Project, as a later activity to that evaluated in the Program EIR 89-03 and SEIR 91-03, would have no new effects that were not examined in the preceding Program EIR 89-03 and SEIR 91-03 (Guideline 15168 (c)(1); and, SECTION 2. CEQA Finding re Project within Scope of Prior Program EIR. The City Council hereby finds that (1) there were no changes in the project from the Program EIR and the SEIR which would require revisions of said reports; (2) no substantial changes have occured with respect to the circumstances under which the project is undertaken since the previous reports; (3) and no new information of substantial importance to the project has become available since the issuance and approval of the prior reports; and that therefore, no new effects could occur or no new mitigation measures will be required in addition to those already in existence and current made a condition for Project implementation. Therefore, the City Council approves the Project as an activity that is within the scope of the project covered by the Program EIR and SEIR, and therefore, no new environmental documents are required (Guideline 15168{c)(2)). SECTION 3. Incorporation of All Feasible Mitigation Measures and Alternatives. The City does hereby adopt and incorporate herein as conditions for all approvals herein granted all mitigation measures and alternatives, if any, which it has determined, by the findings made in the GDP Resolution and the SPA Resolution, to be feasible in the approval of the General Development Plan and the SPA Plan, respectively. Resoluti'on No. 16834 Page 3 SECTION 4. Notice with Later Activities. The City Council does hereby give notice, to the extent required by law, that this Project is an activity within the scope of the program approved earlier in the GDP Resolution and the SPA Plan Resolution and the Program EIR and SEIR adequately describes the activity for the purposes of CEQA (Guideline 15168 {el). SECTION 5. General Plan Findings--Conformance to the General Plan. Pursuant to Government Code Section 66473.5, in the Subdivision Map Act, finds that the tentative subdivision map as conditioned herein for Salt Creek Ranch, Chula Vista Tract no. 92-02, is in conformance with all the various elements of the City's General Plan, the Salt Creek Ranch General Development Plan and Sectional Planning Area Plan based on the following: a. Land Use - The project is a planned community which provides a variety of land uses and residential densities ranging between 1.2 and 17.g dwelling units per acre. The project is also consistent with General Plan policies related to grading and landforms. b. Circulation - All of the on-site and off-site public and private streets required to serve the subdivision consist of Circulation Element roads and local streets in locations required by said Element. The applicant shall construct those facilities in accordance with City standards or pay in-lieu fees in accordance with the Salt Creek Ranch Public Facilities Financing Plan. c. Housing - The applicant is required to enter into an agreement with the City to provide and implement a low and moderate income program within the project prior to the approval of any Final Map for the project. d. Conservation and Open Space - The project provides 452 acres of open space, 37% of the total 1197.4 acres. Grading has been limited on steep hillsides and grading plan approval will require the revegetation of slopes in natural vegetation. e. Parks and Recreation - The project will provide a 22 acre {gross) community park, a 7 acre {gross} neighborhood park and the payment of PAD fees or additional improvements as approved by the Director of Parks and Recreation. In addition, equestrian and recreational trail systems will be provided throughout the project, ultimately connecting with other open space areas and trail systems in the region. f. Seismic Safety - No seismic faults have been identified in the vicinity of the property. Resolution No. 16834 Page 4 g. Public Safety - All public and private facilities will be reachable within the threshold response times for fire and police services. h. Public Facilities - The applicant will provide all on-site and off-site streets, sewers and water facilities necessary to serve this project. In addition, the project is preserving a potential fire station site. The developer will also contribute to the Otay Water District's improvement requirements to provide terminal water storage for this project as well as other major projects in the eastern territories. i. Noise - The project will include noise attenuation walls as required by an acoustic study dated July 15, 1992 prepared for the project. In addition, all units are required to meet the standards of the UBC with regard to acceptable interior noise levels. j. Scenic Highway - The roadway design provides wide landscaped buffers along the two scenic highways, Proctor Valley Road and Hunte Parkway. k. Bicycle Routes - Bicycle paths are provided throughout the _ project. l. Public Buildings - The project provides a fire station site and two school sites to serve the area. The project is also be subject to RCT and DIF fees. SECTION 6. Subdivision Map Act Findings. A. Balance of Housing Needs and Public Service Needs. Pursuant to Section 66412.3 of the Subdivision Map Act, the Council certifies that it has considered the effect of this approval on the housing needs of the region and has balanced those needs against the public service needs of the residents of the City and the available fiscal and environmental resources. The development will provide for a variety of housing types from single family detached homes to attached single family and multiple family housing and will provide low and moderate priced housing consistent with regional goals. B. Opportunities for Natural Heating and Cooling Incorporated. The configuration, orientation and topography of the site partially allows for the optimum siting of lots for passive or natural heating and cooling opportunities as required by - Government Code Section 66473.1. Resolution No. 16834 Page 5 C. Finding re Suitability for Residential Development. The site is physically suitable for residential development and the proposal conforms to all standards established by the City for such projects. SECTION 7. Conditional Approval of Tentative Subdivision Map. The City Council does hereby approve, subject to the following conditions, the tentative subdivision map for Salt Creek Ranch, Chula Vista Tract g2-02 (Unless otherwise specified, all Conditions and Code Requirements shall be fully completed to the City's satisfaction prior to the approval of the First Final Map. Unless otherwise specified, "dedicate" means grant the appropriate easement, rather than fee title): The developer shall: §eneral/Preliminar¥ 1. Prepare amendments to the Public Facilities Financing Plant {PFFP} to reflect the modifications to the sequence o~ de- velopment as indicated on Exhibit A (attached) and condition No. 2 herein and which indicates a reduction in Phase 1 to 1,137 dwelling units by deleting lots/dwelling units in locations and numbers, subject to the approval of the Director of Planning and the City Engineer. For purposes of these conditions, Phases 1-3 cited in these conditions shall be composed of those neighborhoods or portions of neighborhoods as inuicated on Exhibit A. (P[onn~ng, Engineering) 2. Install public facilities in accordance with the Pub)ic Facilities Financing Plan as amended or as required by the City Engineer to meet threshold standards adopted by the City of Chula Vista. In addition, the sequence that improvements are constructed shall correspond to any future East Chula Vista Transportation Phasing Plan as may be amended in accordance with the final HNTB SR-125 Financing Study adopted by the City. The City Engineer and Planning Director may, at their discretion, modify the sequence of improvement construction should conditions change to warrant such a revision. (Engineering) 3. The mitigation measures required before Final Map approval by Final Supplemental Environmental Impact Report for Salt Creek Ranch (FSEIR) 91-03 are hereby incorporated into this Resolution by reference. 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. Mitigation measures sha)l be monitored via the Mitigation Monitoring Program approved in conjunction Resolution No. 16834 Page 6 with the FSEIR. Modification of the sequence of mitigation shall be at the discretion of the Director of Planning should changes in circumstances warrant such revision. (PlanningJ 4. Unless otherwise conditioned, the developer shall comply with, remain in compliance with, and implement, the terms, conditions and provisions of the Salt Creek General Development Plan, Sectional Planning Area Plan, and such Master Plan of Reclaimed Water, Urban Runoff Report, Habitat Enhancement Plan, Master Plan of Sewage, Water Conservation Plan, the Air Quality Improvement Plan Design Guidelines and the Public Facilities Financing Plan approved by the Council {"Plans") as are applicable to the property which is the subject matter of this Tentative Map, prior to approval of the Final Map, or shall have entered 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, assuring that, after approval of the Final Map, the developer shall continue to comply with, remain in compliance with, and implement such Plans. Developer shall agree to waive any claim that the adoption of a final Water Conservation Plan or Air Quality Plan constitutes an improper subsequent imposition of the condition. (£[ann(ng, £ngineering) Streets, Riqhts-of-Way and Improvements 5. Provide security in accordance with Chapter 18.16 of the Municipal Code and dedicate construct full street improvements for all public and portions of private streets shown on the Tentative Map within the subdivision boundary or off-site, as required for each unit or phase. Said improvements shall include, but not be limited to, asphalt concrete pavement, base, concrete curb, gutter and sidewalk, sewer reclaimed water and water utilities, drainage facilities, street lights, signs, fire hydrants and transitions to existing improvements. All streets shall conform to the City's Street Design Standards Policy adopted by City Council Resolution #15349 unless otherwise conditioned or approved by the City Engineer. Construct transitions to existing improvements in the manner required by the City Engineer. (£ngineer(ngJ 6. Dedicate for public use all the streets shown on the tentative map within the subdivision boundary except private streets. (Engineering) 7. Construct or enter into an agreement to construct the following street improvements prior to the approval of the corresponding Final Map for the neighborhoods identified. The required security shall be provided for each facility prior to approval of the Final Map for the corresponding neighborhood or portion thereof. Construction of appropriate full or Resoluti'On No. 16834 Page 7 partial improvements for each neighborhood or portion thereof, as indicated in Matrix A {full) or Matrix B {partial) shall be completed prior to issuance of occupancy perraits for each affected neighborhood or portion thereof. ~See Table I for description o1' each facility. Resolution No. 16834 Page 8 ' ' Facility 11: Deposit cash with the City Engineer to provide security for the future construction of full street improvements for Hunte Parkway, including underground utilities, north of its intersection with Street IIII to the northerly subdivision boundary in lieu of constructing said full improvements. The amount of deposit shall be based on a developer's cost estimate submitted to and improved by the City Engineer. The deposit shall be paid prior to approval of the Final Map for Neighborhood 2. Notwithstanding the foregoing, construct a 24- foot wide paved access road between street "IIII" and the northerly subdivision boundary at the time Hunte Parkway, between Proctor Valley Road and Street "IIII", is constructed, or at such time as the existing access road is removed, whichever occurs first. (Engineerin(.]} Facility 19: Provide security for facility #19 (Proctor Valley Road offsite) prior to issuance of the building permit for the 1138th unit. Complete full grading and construct two lanes prior to occupancy of the 1756th unit. Construct full improvements prior to issuance of the 2176th building permit. Resoluti_on No. 16834 Page g ~En~-ineenns~) Resolution No. 16834 Page 10 8. Provide on the Final Map City rejection of an irrevocable offer to dedicate (IOD) the right-of-way for Hunte Parkway north of Street "III" in Neighborhood 2. Grant an open space easement over the balance of the right-of-way within the IOD subject to the condition that it revert to street purposes if and when the City later accepts the IOD. (Engineer(ng) 9. Provide red curbs and "no parking" signs to prohibit on-street ?rking on Lane Avenue and stripe bicycle lanes. Engineering) 10. Provide red curbs and "no parking" signs to prohibit on-street parking on the westerly side of Hunte Parkway between Proctor Valley Road and the southerly subdivision boundary. (Engineering) 11. Design and construct Lane Avenue as a Class I collector. (Engineering) 12. Requested Waiver 1 is approved subject to compliance with parking requirements in Street Design Standard Policy, item #20, page 12. Requested waivers 2 through 7 as listed on the tentative map and reduction of the centerline radius of Street "CCC" to 150 feet are hereby approved subject to submission of a letter from a registered civil engineer indicating that the results of the waivers requested conform with common engineering practice and standards in consideration of public safety. (Engineering, Planning) 13. Construct a temporary turnaround at the end of any streets which are not constructed to their full lengths that are greater than 150 feet in length as measured from the nearest intersection, except as approved by the City Engineer. (Engineering) 14. Construct or provide to the specifications or satisfaction of the City Engineer the following features to all neighborhoods with private streets with controlled access devices, such as gates: a. Gates located to provide sufficient room to queue up without interrupting traffic on public streets. b. Turn arounds at the gates. c. Delineation of border between public street and private street by enhanced pavement. No enhanced pavement shall be located within public right-of-way. d. Emergency vehicle access. (Engineering) 15. Install fully activated traffic signals including interconnect Resdlution No. 16834 Page 11 wiring at the following intersections: a. Proctor Valley Road/Lane Avenue b. Proctor Valley Road/Hunte Parkway c. Proctor Valley Road/Duncan Road d. Proctor Valley Road/Oak Creek Road e. Proctor Valley Road/Street "YYYY" f. Lane Avenue/Otay Lakes Road g. Hunte Parkway/Otay Lakes Road Install underground improvements, standards and luminaries with construction of street improvements, and install mast arms, signal heads and associated equipment when signal warrants are met, as determined by the City Engineer. (Engineering) 16. Install interconnect conduit, pull boxes and pull rope to connect the traffic signals along Proctor Valley Road within the subdivision. (Engineering) 17. Install traffic counting station loops at seven locations determined by the City Engineer. (Engineering) 18. Submit to and obtain approval by the City Engineer striping plans for all major and collector streets simultaneously with the associated improvement plans. (Engineering) lg. Grant in fee the City a 1-foot control lot at the northerly terminus of Hunte Parkway and Street "YYYY" and the southerly terminus of Duncan Ranch Road. (Engineering} 20. Install transit amenities on both sides of Proctor Valley Road (East "H" Street) at the following locations, or appropriate alternative locations as approved by the City Engineer: a. Proctor Valley Road (East "H" Street)/Hunte Parkway intersection. b. Proctor Valley Road (East "H" Street)/Lane Avenue intersection Transit amenities include, but are not limited to benches and/or shelters, and are subject to the approval of the City Engineer. Pay a $10,000 cash deposit to the City to fund transit Resolution No. 16834 Page 12 amenities when required. (Engineering) 21. Dedicate to the City right-of-way at the easterly end of Street IIII to provide for the future extension of said street. Said dedication shall extend to the subdivision boundary the exact configuration and location of which are subject to approval of the City Engineer and the Director of Planning. All right-of-way which is not utilized by the street to be constructed shall be rejected by the City on the Final Map. This dedication shall be in lieu of the easement indicated on the Tentative Map over lot 76, Neighborhood 11 which shall not be shown on the Final Map. (Engineering, PZonning) 22. Provide public street access to the northern adjacent properties upon development of Neighborhood 11 by means of Street YYY stubbing into said area, as depicted on the Tentative Map, subject to approval of the City Engineer and the Director of Planning. Prior to approval of the first Final Map for Neighborhood 12, the northern adjacent property owners of record shall demonstrate to the satisfaction of the City Engineer and Director of Planning that alternate public street access to the northern adjacent properties can be reasonably and feasibly constructed by them, at their own expense, from an economic, planning, environmental, engineering and legal standpoint. Upon such a showing, the developer shall provide private easement access up to the existing dirt roads located at the end of Street MMMM and Street NNNN, by means of Street SSSS, as depicted on the Tentative Map. (Engineering, PZonning) 23. Grant to the City an easement or easements for street tree planting and maintenance, and landscape buffer areas along all public streets in the width required by the City's Street Design Standards. (Engineering) 24. Acquire and then grant to the City all offsite rights-of-way necessary for the installation of required street improvements for the affected phase or unit, prior to approval of each Final Map for each affected phase or unit of the subdivision. (Engineering) 25. Notify the City at least 60 days prior to consideration of the affected Final Map by City, if offsite right-of-way cannot be obtained as required by Condition 24. (Only offsite right-of- way or easements affected by Section 66462.5 of the Subdivision Map Act are covered by this condition). After said notification and prior to the approval of the affected Final Map, the developer shall: Resolut~Jn No. 16834 Page 13 a. Pay the full cost of acquiring offsite right-of-way or easements required by the Conditions of Approval of the Tentative Map. b. Deposit with the City the estimated cost of acquiring said right-of-way or easements. The amount of the deposit is subject to the approval of the City Engineer. c. Prepare and submit all easement and/or right-of-way documents, plats and appraisals necessary to commence condemnation proceedings. If the developer so requests, the City may use its power of eminent domain to acquire right-of-way, easements or licenses needed for offsite improvements or work related to the tentative map. The developer shall pay all costs, both direct and indirect incurred in said acquisition. The condition to construct the related offsite improvements which fall under the purview of Section 66462.5 of the State Subdivision Map Act are waived in accordance with that section of the Act, if the City does not acquire or commence proceedings for immediate possession of the property within the 120 day time limitation specified in that section. (Engineering) 26. Widen intersection approaches for Proctor Va]ley Road/Hunte Parkway to the satisfaction of the City Engineer. (Engineering} 27. Construct private streets in accordance with the standards contained in the subdivision manual and street design standards unless otherwise approved by the City Engineer. Private street cross sections shall conform to those shown on the tentative map for curb-to-curb width and right-of-way width, with the exception of the private street section for Neighborhood 13 which shall have a 48 ft. right-of-way width, and 32 ft. curb-to-curb. (Engineering) 28. Provide standard curb and gutter for all public streets. Street sections as shown on the Tentative Map are approved unless otherwise conditioned. (Engineer(rig) Sewers 29. Grant the City fee title to a parcel within which the Salt Creek Ranch sewer pump station shall be located. Design and construct the sewer pump station subject to the approval of the Cities of Chula Vista and San Diego. (Engineer(ng) 30. Provide security and construct the following offsite sewer improvements prior to approval of any Final Map which requires Resolution No. 16834 Page 14 the Eastlake sewer pump station on Otay Lakes Road to provide sewer service: a. A gravity sewer right-of-way from the southerly subdivision boundary to the EastLake pump station. b. Upgrade the EastLake pump station, as determined by the City Engineer, to provide pumping capacity and emergency measures to accommodate temporary sewage flows from Salt Creek Ranch. Obtain approval of the design of said improvements from the City Engineer. (Engineering) 31. Request and complete incorporation into the existing sewer service surcharge district to provide for future maintenance of the Salt Creek Ranch and Eastlake pump stations, prior to approval of the first Final Map of a phase or unit served by the Eastlake pump station. Deposit $2,000 to cover costs of incorporation. Pay the full cost of said incorporation. (Engineering) 32. Provide access to all sanitary sewer manholes via an improved access road with a minimum width of 12 feet, designed an H-20 wheel load, or other loading, subject to the approval of the City Engineer. (Engineering) Gradinq and Drainage 33. Grade rear or side yard access to all public storm drain structures, including inlet and outlet structures, and construct paved access thereto except as otherwise directed by the City Engineer. (Engineering) 34. Place all lot lines at top of slope, except in Neighborhoods 9-13, where the SPA concept allows for this exception. Final grading plans and lot line locations shall be subject to approval of the City Engineer and Directors of Planning, and Parks and Recreation and the Fire Marshal. (Engineering, Planning, Parks & Recreotion, Fire) 35. Submit a list of proposed lots indicating whether the structure will be located on fill, cut, or a transition between the two situations prior to approval of each Final Map for single family residential use. (Engineering) 36. Submit grading proposals for review and approval by the City Engineer and the Directors of Planning and Parks and Recreation for consideration of balanced cut and fill, contour grading, utilization of appropriate soil types, effective landscaping and re-vegetation where applicable. Grade in separate phases unless a single phase operation is approved Resolution No. 16834 Page with the grading plan. (Engineering, PZanning, Parks & Recreation) 37. Provide a letter of permission for grading from SOG&E prior to any grading within or adjacent to an SDG&E easement or which would affect access thereto. FEngineering) 38. Construct retention/detention facilities as approved by the City Engineer prior to issuance of grading permits to reduce the quantity of runoff to an amount equal to or less than present flows for the 100 year frequency storm. (£ngineering) 39. Prepare and obtain approval by the City Engineer and the Director of Planning an erosion and sedimentation control plan and landscape/irrigation plans as part of the mass grading plans. (Engineering, Planning, Parks and Recreation) 40. Obtain notarized letters of permission for all offsite grading prior to issuance of a grading permit for work requiring said offsite grading. (Engineering) 41. Accomplish the following prior to approval of a Final Map for any unit or phase which requires drainage detention and/or filtration basin(s): a. Prepare a maintenance program including a schedule and a financing mechanism for said detention and/or filtering basins. Said program shall be subject to approval of the City Engineer. b. Enter into an agreement with the City of Chula Vista and the State Department of Fish and game wherein the parties agree to implement the basin maintenance program. (Engineering) 42. Provide a comprehensive Best Management Practices (BMPs) study regarding off-site drainage satisfactory to the City Engineer and the City of San Diego's Water Utilities Director prior to approval of any Final Map in Neighborhoods 9-13. Install all facilities as recommended in the study and shall implement a maintenance district for these drainage facilities, satisfactory to the Water Utilities Director. (Engineering) 43. Design the storm drains and other drainage facilities to include BMPs to minimize non-point source pollution, satisfactory to the City Engineer and the City of San Diego Water Utilities Director. (Engineering) 44. Present evidence to the satisfaction of the City Engineer that an agreement has been reached between the developer and the City of San Diego Water Utilities Director to provide for the protection of the reservoirs from urban pollutants prior to Resolution No. 16834 Page 16 the approval of any Final Maps, implementing permits, or issuance of any grading permits in Neighborhoods 9-13. Such measurement shall include, but not be limited to ensuring BMPs for stormwater and/or urban runoff including erosion control. (Engineering) Water 45. Gain approval by the City Engineer and the Otay Water District (OWD) of a Master Plan of Water for Salt Creek Ranch prior to approval of any Final Map. This plan shall include a discussion of implementation and phasing, and participation in the water allocation program and TSF financing for this project and other projects in the OWD Master Plan service area. (Engineering, OWD) 46. Determine the exact locations for the proposed pump station and reservoir to serve the 1296 Zone prior to approval of the first Final Map requiring said facilities. (Engineering, Planning, OWD) 47. Annex the project site to the OWO into Improvement District No. 22, or establish a new improvement district for the project area prior to approval of any final map. Obtain - written verification from OWD at each phase or unit of development that the tract or parcel will be provided adequate water service and long term water storage facilities. (Engineering, OWD) 48. Make consistent with the Water Conservation Plan for Salt Creek Ranch dated October 1991 water conservation measures for roadside landscaping and landscape maintenance subject to the approval of the Director of Planning. (Planning, Porks and Recreation) Reclaimed Water 49. Enter into an agreement with OWD to commit to use of reclaimed water at the earliest possible date so that OWD can ensure that an adequate supply is available prior to approval of any Final Map. Make all reclaimed water use conform to the applicable regulations of Chula Vista, Regional Water Quality Control Board and the State Department of Health. (Engineering, OWD) 50. Pay all costs incurred from retrofitting the reclaimed water system, when reclaimed water becomes available. Determine the amount of said deposit, subject to City approval, and pay said deposit prior to approval of each associated Final Map. (Engineering) 51. Install reclaimed water lines as outlined in the Public Resolution No. 16834 .-- Page 17 Facilities Financing Plan at such time as the' road improvements are constructed or the City Engineer determines that the facilities are necessary to provide a link to a live system. (Engineering) Fees/Payments 52. Pay the following fees: a. Spring Valley Sewer Trunk connection fees ($130/acre) and Frisbee trunk sewer fee prior to Final Map approval for any phase or unit thereof contributing flow to the Spring Valley Trunk Sewer. b. Telegraph Canyon drainage fees in accordance with ordinance 2384 prior to Final Map approval for any phase or unit tributary to said basin. (Engineering) 53. Deposit $5,000 to provide for the first year's maintenance costs prior to approval of the Final Map of any phase or unit which requires the Salt Creek Ranch pump station to provide sewer service. ~Engineering) Aqreements/Covenants 54. Enter into and execute an agreement to fund the project's fair share of a park-and-ride facility to be located in the vicinity of the East H Street and SR-125 interchange. (Engineering) 55. Enter into an agreement with the City for each phase or unit thereof, whereby: a. The developer agrees the City may withhold occupancy permits for any units in the subject subdivision if any one of the following occur: (I) Regional development threshold limits set by the East Chula Vista Transportation Phasing Plan have been reached. (2) Traffic volumes, levels of service, public utilities and/or services exceed the adopted City threshold standards. b. 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) if the required public facilities, as identified in the PFFP or as amended or otherwise conditioned have not been completed or constructed to satisfaction of the City. The property owner may propose changes in the timing and sequencing of Resolution No. 16834 Page 18 development and the construction of improvements affected. In such case, the PFFP may be amended as approved by the City Planning Director and Public Works Director. (Engineering, PZonn~ngJ 56. The developer shall agree to comply with the requirements of the revised Eastern Chula Vista Transportation Phasing Plan and Transportation Development Impact Fee Program or as said documents may be revised based on the conclusions of the H.N.T.B. State Route 125 financing study. (Engineering) 57. Enter into an agreement with the City agreeing not to protest formation of a district for the maintenance of landscaped medians and parkways along streets within and adjacent to the subject property prior to approval of any Final Map which includes those facilities. (Engineering) 58. Enter into an agreement to defend, indemnifyand 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 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. (Engineering) 59. Enter into an agreement with the City wherein the City is held harmless from any liability for erosion, siltation or increase flow of drainage resulting from this project. (Engineering) 60. Develop an interim urban runoff management plan and agree to install required facilities to protect the water quality of the Otay Lakes prior to approval of any Final Map for any lot, unit or phase which drains to the Otay Lakes drainage basin, subject to the satisfaction of the Cities of Chula Vista and San Diego and the State Office of Health Services. (Engineering) 61. Agree to participate in funding the development of a comprehensive Otay Lakes watershed management plan and to pay a fair share of the construction cost of long term facilities as may be determined by said plan. Enter into and execute an agreement with the Cities of Chula Vista and San Diego and the County of San Diego wherein the parties agree to implement the management plan, said to be executed prior to Final Map approval for any lot, unit or phase which drains to the Otay Lakes drainage basin. (Engineering) 62. Obtain permission from the City to deposit sewage in a foreign basin and enter into an agreement whereby the City shall agree Resolution No. 16834 Page 19 to such transfer, and the circumstances under which said permission may be revoked. (Engineering) 63. Enter into an agreement and provide appropriate security to guarantee the ability to restore the sewer systems' reserve capacity to that which currently exists, on a length-by-length basis, for sewage diverted into the Telegraph Canyon Basin. (Engineering) 64. Agree to participate in the monitoring of existing sewage flows in the Telegraph Canyon Trunk Sewer and, pursuant to any adopted Basin Plan, agree to participate in the financing of improvements set forth therein, in an equitable manner. Execute said agreement prior to Final Map approval for any phase or unit thereof proposing to discharge sewage into Telegraph Canyon trunk sewer. (Engineering) 65. Enter into an agreement with the City to participate in funding of the offsite Salt Creek Sewer Interceptor. (Engineering) 66. Enter into an agreement with the City to insure 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 prior to the approval of Final Maps for each phase or unit. Restrict access to the conduit to only those franchised cable television companies who are, and remain in compliance with, all of the terms and conditions of the franchise and which are in further 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 bythe City of Chula Vista. (Engineering) Public Parks and Trails 67. Prepare, submit and obtain Director of Parks and Recreation approval, for a recreation needs analysis which identifies the demand for various park facilities, to ensure that the parks are equipped to meet the expressed needs of the community. (Parks and Recreation) 68. Prepare, submit and obtain Director of Parks and Recreation approval of a comprehensive Master Plan for the open space system, recreation trails and parks which shall include, but not be limited to, phasing of the installation of facilities in accordance with the recreation needs analysis. The Master Plan shall reflect: a. More precise location, size and configuration of parks, Resolution No. 16834 Page 20 recreation and equestrian trails and fencing than indicated on the Tentative Map. b. A multi-use bridged trail crossing of Salt Creek to the community park in Phase i to create an east/west link over Salt 6reek. c. The extension of equestrian and recreation trail systems to the eastern property boundary on the south side of Proctor Valley Road. d. Pedestrian walkways from cul-de-sac ends on Streets DD, FF, and GG designed with open ends along Proctor Valley Road west of Hunte Parkway to the walk system adjacent to Proctor Valley Road. e. All open space access points shall have a minimum of 10 ft. clear vehicular surface, with an additional 2 ft. clear on either side of any vertical obstructions. f. Determination of the open space district parcel boundaries and maintenance responsibilities. g. An equestrian-style fence adjacent to the 10 foot recreation trail along the north side of the Community Park, adjacent to Proctor Valley Road, and continuing along the trail at the east side of the park to the point where the trail enters the park. h. Extension of the recreation trail within lots K and L adjacent to EastLake, along the southerly property line of Neighborhood 4d, along the westerly property line of said Neighborhood (future San Miguel Road), and the westerly edges of the Neighborhood Park and the Fire Station site. This trail shall be a minimum of 10 feet in width and provide maintenance vehicle access to each adjacent open-ended residential cul-de-sac. i. All aspects of work in the open space network and the park sites shall comply with all approved landscape and irrigation standards. j. The design, and installation and improvement of the parks/open spaces shall be in accordance with the standards set forth in the City Landscape Manual as may be amended from time to time. (Parks and Recreation, PZann(ng, Engineering) 69. Prepare agreement(s) to phase the parks as follows: a.Complete construction of the portions of Proctor Valley Road and Duncan Ranch Road necessary to access the parking Reso.lu~on No. 16834 Page 21 lot driveway of the community park shall be constructed. These streets shall be constructed prior to the completion of the initial 12.0 acre phase of the community park. The streets shall be to the satisfaction of the City Engineer and the Director of Parks and Recreation. b. The initial 12 net usable acres of the Community Park shall be dedicated in fee and improvements commenced prior to or concurrent with the recordation of the Final Map for the 592nd lot in Phase I. Complete construction of all the facilities required for the first 12 acres of the community park within one year following the recordation of the Final Map for the 592nd lot. c. The remainder of the Community Park (8.23 net usable acres, 10 gross acres) shall be dedicated in fee and improvements commenced prior to, or concurrent with the recordation of the Final Map for the 1447th lot. Complete construction of all the facilities required for the remaining 10 acres of the community park within one year following the recordation of the Final Map for the 144/th lot. d. The Neighborhood Park (5.71 net usable acres, 7.1 gross acres), shall be dedicated in fee and improvements commenced prior to the recordation of the Final Map of the 2200th lot. Complete construction of all the facilities required for the neighborhood park within one year following the recordation of the Final Map for the 2200th lot. e. At no time is the project to be deficient in park acreage. If the standard of 3 acres per 1000 residents is exceeded at any time, then the next phase of the community park or the neighborhood park shall begin immediately, 70. Dedicate all required park)and (22 gross acres, Community Park, 7 gross acres, Neighborhood Park) and park improvements in accordance with the Master Plan and construction documents prepared pursuant'to Condition 73 as "turn-key" projects. The Director of Parks and Recreation shall have the right of final approval in the selection process of the general contractor for both of the park sites. ~Parks and Recreation) 71. Prepare, submit and obtain approval from the City Engineer, and Directors of Planning and Parks and Recreation for the design of the equestrian crossing of Proctor Valley Road at Hunte Parkway where ~ndicated on the Tentative Map. The crossing sha)l inc]ude staging areas, the design shal] be approved prior to any Final Map for Phase 2. (Park$ and Recreation, Engineering, PZanning) 72. Locate underground, surface or overhead easements off-site of Resolution No. 16834 Page 22 either park site, except for the necessary and required easements for the on-site park and recreation facilities. (Parks and Recreation, Engineering) 73. Enter into a Chula Vista standard three party agreement with the City of Chula Vista and a design consultant, for the design of all aspects of the neighborhood and community parks in accordance with the Master Plan whereby the Parks and Recreation Director selects the design consultant. The agreement shall include, but not be limited to, the design development phase, the construction document phase and the construction supervision phase for the park sites. The construction documents shall reflect the then current requirements of the City's Code/Manual requirements. {Porks and Recreation) 74. Prepare the Final Map in accordance with Exhibits B and C, to indicate: a.The modification in size and configuration to the community park as set forth in the Master Plan. b.Dedication in fee of the community and neighborhood parks in corrected configuration. c. Grading of the sites in accordance with the revised grading schemes as indicated on Exhibits B and C. (Parks and Recreation) Street Trees/Open Space 75. Grant all open space lots to the City in fee on the applicable Final Map and a deed executed and recorded for each lot. (Engineering} 76. Submit a schedule out]ining the proposed turnover of maintenance for open space areas to the City, subject to approval of the Directors of Planning Parks and Recreation. (Planning, Parks & Recreation) 77. Submit a list of open space items to be maintained and a rough estimate of maintenance costs to allow City staff to determine a preliminary cost and spread for the open space district. (Engineering, Parks & Recreation) 78. Request that the City form an Open Space District to maintain public Open Space lots and submit to the City the associated lagram, cost estimate, description of work and a deposit of $8,000 for processing the formation of the district. (Engineering, Porks & Recreation) - 79. Gain approval of access to a]l of the open space areas for Reso]u~:ion No. 16834 Page 23 maintenance purposes by the Directors of Parks and Recreation and Planning, Fire Marshal and City Engineer during the Open Space Ma~ter Plan stage as indicated in Condition 68. (Porks & Recreation, Planning, Fire, Engineering) 80. Provide a 10 ft. wide access path for maintenance vehlcles in the greenbelt open space area (lots D-8 through G-8) bisecting Neighborhoods 1 & 2. Final landscape materials and design for this area shall be consistent with open space criteria, subject to approval of the Director of Parks and Recreation prior to approval of the final subdivision map for Subarea 1. (Parks & Recreation) 81. Prepare, submit to and obtain approval of the Directors of Parks and Recreation and Planning and the Fire Marshal, prior to approval of final grading and landscape plans for Phase 3, of final details of habitat enhancement, protective measures for sensitive habitat/species and temporary irrigation in open space areas within Phase 3. (Parks & Recreation, Planning, Fire) 82. Indicate on all affected grading plans that a)l walls which are to be maintained by open space districts shall be constructed entirely within open space lots dedicated to the City. (Planning, Engineering) 83. Dedicate Lots A through HH to the City for open space purposes. As biological habitat, lots Z and CC through GG shall generally be restricted from any use except that access roads to serve the SDG&E transmission towers and the drainage retention ponds shall be permitted. In addition, in accordance with Condition 22, a road providing access to northerly adjacent properties may be permitted subject to the approva) of the Director of Planning and the City Engineer. (Planning, Engineering) 84. Establish Homeowners Associations for Neighborhoods 5 (Lot 93), 8, 12 and 13 to provide for the maintenance of private open space and streets prior to the approval of Final Maps for said neighborhoods, subject to the approval of the Director of Planning. (Planning) 85. Submit a comprehensive landscape plan for review and approval of the City Landscape Architect and Director of Parks and Recreation prior to approval of the first Final Map. Submit comprehensive, detailed landscape and irrigation plans, erosion control plans and detailed water management guidelines for all landscape irrigation in accordance with the Chula Vista Landscape Manual for the associated landscaping in each Final Map. These detailed landscape and irrigation plans shall be for the review and approval of the City Landscape Architect and Director of Parks and Recreation prior to the Resolution No. 16834 Page 24 approval of each Final Map. The landscaping format within the ~roject shall be in substantial conformance with Section 3.2 Landscape Concept) of the Salt Creek Ranch SPA. (Planning, P~rks & Recreation) 86. Maintain a width on all open space )ors adjacent to public rights-of-way so as to provide 10 feet of landscaping treatment behind the back of sidewalk. (PZann~ng) 87. Include in the CC&R's that the maintenance of all private facilities and improvements within open space areas are managed by home owners associations. Submit to and gain approval of said CC&Rs by the Director of Planning prior to approval of the associated Final Map. (PZanning) Fire and Brush Manaqement 88. Provide the initial cycle of fire management/brush clearance within lots adjacent to natural open space areas in Subarea 3 subject to approval of the Fire Marshal and the Director of Parks and Recreation. (Fire, Parks & Recreation) 89. Install fire hydrants every 500 ft. for single family residential and every 300 ft. for multi-family dwellings. Install and make operable the hydrants prior to delivery of combustible bui]din9 materials. {Fire} 90. Locate fuel modification areas in Subarea 3 entirely within affected lots. Indicate lot line extensions required to accommodate said areas on the Final Map(s) of Subarea 3, subject to the approval of the City Engineer, Fire Marshal, and Director of Planning. (Engineering, Fire, Planning) gl. Dedicate to the City open space easements (OSE) over all downhill side or rear slopes adjacent to Open Space lots Z, AA and CC through GG in Subarea 3. These OSE's shall preclude the construction of any structures within said easements and shall limit activities within the easements to landscape maintenance of fuel modification plant materials. The wording of the OSE's shall be subject to the approval of the Director of Planning and the City Attorney. (PZanning, C.A.) 92. Prepare and execute fuel modification plans consistent with Section 3.6 of the Sa)t Creek Ranch SPA subject to the approval of the Directors of Planning and Parks and Recreation and the Fire Marshal prior to approval of any Final Map in Subarea 3. (Planning, F~re, Porks & Recreation) 93. Offer lot FS-1 (fire station site) for dedication in fee to the City prior to or concurrent with the recordation of the first Final Map in Phase 2. (Fire, Engineering) Resolution No. 16834 Page 25 94. Provide fire.prevention facilities and equipment, including the construction of a fire station, if required, in accordance with the Salt Creek Ranch Public Facilities Financing Plan. Provide or secure said facilities and equipment in accordance with a schedule as approved by the Fire Chief. Miscellaneous g5. Include in the Declaration of Covenants, Conditions and Restrictions provisions assuring maintenance of private facilities including the private streets, sewer, and drainage systems. Name the City of Chula Vista as. party to said Declaration authorizing the City to enforce the terms and conditions of the Declaration in the same manner as any owner within the subdivision. (Engineering, Pionn~ng) 96. Tie the boundary of the subdivision to the California System - Zone VI (1983). (Engineering) 97. Submit copies of Final Maps in a digital format such as (DXF) graphic file prior to approval of each Final Map for any unit. Provide computer aided Design {CAD) copy of the Final Map based on accurate coordinate geometry calculations and submit the information in duplicate on 5 1/2 HD floppy disk prior to the approval of each Final Map. (Engineering} 98. Agree to participate in a regional or subregional multispecies coastal sage scrub conservation plan prior to the approval of the first Final Map. (PZ~nning) 99. Suspend development of Neighborhood lOb and reconfigure the northeastern Subarea 3 neighborhood to provide a wider open space area for a regional wildlife corridor if, at the time development is proposed for Neighborhoods lOa, lob, and 11, an off-site regional wildlife corridor linking San Miguel Mountain with the Upper Otay Reservoir has not been approved as part of a habitat conservation plan. Make the width of the open space area sufficient to ensure long-term viability of the wildlife corridor, as indicated in the SPA Plan (PCM 91-4) subject to the approval of the Director of Planning. (PZonn~ng) 100. Submit and gain approval by the Design Review Committee Precise Plans for the multiple family area within Neighborhoods 4a (reference lot 1) and S {reference lot 93) at gross densities of 18 dwelling units per acre and 6 dwelling units per acre respectively. (PZann(ng} 101. Provide sales disclosure documents which identify the allowable uses in the Eastlake Business Center, subject to review by the Director of Planning prior to the approval of Final Maps in Neighborhoods 5 and 6. (Plonn~ng) 17' Resolution No. 16834 Page 26 . - 102. Mitigate noise impacts on the residences along Proctor Valley Road by the placement of solid walls or wall/bermcombinations on the building pads at the top of the slopes adjacent to the roadway. The walls shall be solid masonry construction with a material weight of at least 3.5 pounds per square foot which would not allow any air spaces along their entire length. The end of each noise wall shall wrap around the building pad enough to block the line of sight from all points in the exterior living space to any portion of the impacting roadway. Indicate on the grading plans for Neighborhoods ], 3, lB and 8 said walls in compliance with the Salt Creek Ranch SPA SEIR, subject to the approval of the City Engineer and the Director of Planning. (P[onn~ng, Engineering) 103. Retain a qualified biologist/environmental specialist to oversee the construction of Proctor Valley Road, Hunte Parkway and the reservoir and associated waterline and to monitor the implementation of the mitigation measures related to Biological Resources as required by City Council Resolution 16555-Mitigation Monitoring Program. (PZonn~ng} 104. Retain a qua)ified archaeologist to monitor the implementation of the mitigation measures relative to Cultural Resources required by the City Council Resolution 16555-Mitigation Monitoring Program. (PZanning} 105. Provide the proposed list of fertilizers, pesticides, herbicides and fungicides, and the landscaping plans to the City of San Diego Water Utilities Department for approval prior to approval of any Final Map in Neighborhoods 9-13. (PZann~ng) 106. Submit for approval by the Director of Planning and the City Engineer copies of proposed CC&Rs for the subdivision prior to approval of each Final Map. (PZonning, Engineering) 107. Design and improve lot A-3 in Neighborhood 3 (private park) subject to the approval of the Director of Planning. Design the park prior to the approval of any Final Map in Neighborhood 3 and improve the park concurrently with the immediate surrounding area, as determined by the Director of Planning. (P~ann~ng} 108. Design and improve lots D-8 through G-8 in Neighborhood 8 (private recreation area) subject to the approval of the Director of Planning. Design these areas prior to the approval of any Final Map in Nei§hborhood 8 and improve the areas concurrent with the immediate surrounding area as required by the Director. (PlonningJ 109. Show evidence satisfactory to the Director of Planning that the CC&R's for Neighborhood 12 include a statement that Reso)u~i-on No. 16834 Page 27 Streets MMMM and NNNN may be required to provide access to roads which provide access to properties to the north, prior to the approval of any Final Map for Neighborhood 12. (Planning, Engineering) 110. Reserve lots S-1 and S-2 (school sites) for school purposes to be offered for dedication in fee to the Chula Vista City Elementary School District in accordance with a schedule as indicated in a Hello-RoDs Community Facilities District, as approved by the School District, which shall be established to the satisfaction of the District. (Planning) 111. Establish and participate in a school facility financing plan as well as providing classroom space as required by the Sweetwater Union High School District. Provide a letter from the District verifying compliance with this condition. (Planning) 112. Reflect on the Final Hap for Neighborhood 7B the provision of a minimum setback of 100 feet between lots 103 and 104 and the northerly right-of-way line of Proctor Valley Road. Accomplish this setback by deleting said lots and shortening Street FFFF accordingly or by rearranging lots along said street to provide the required setback, subject to the approval of the Director of Planning. (PZanning) 113. Enter into an Affordable Housing Agreement with the City subject to the approval of the City Council. (Community Development) 114. Submit to the Director of Planning and gain approval by the City Council of all street names for this project. (Plonning) 115. Note 10 on Sheet 3 of 8 regarding quitclaiming of a right-of- way dedication is denied until such time as the City Engineer and the Director of Planning determine that said right-of-way is not required to provide access to the subject property or adjacent property. (Engineering, PZonningJ 116. Prepare an amendment to the Salt Creek Ranch Mitigation Monitoring Program to require subsequent environmental review to be conducted on the urban runoff detention basins in Phase 3 when the final configuration of said basins are determined. Should this environmental review result in the requirement for measures to mitigate any perceived environmental impacts, such measures shall be incorporated into the revised Mitigation Monitoring Program, subject to the approva] of the Director of Planning. (Planning) 117. Reflect on the Final Map for Neighborhood 9 the deletion of one lot from the north side of Street AAAA and consolidation of the remaining lots to create larger lots subject to the Resolution No. 16834 Page 28 approval of the Director of Planning. (Planning) 118. Reflect on the Final Map for Neighborhood 9 the deletion of two lots from the east side of Street CCCC (Neighborhood 9) and consolidation of the remaining lots to create larger lots, subject to the approval of the Director of Planning. (PZannin9) 119. Reflect on the Final Hap for Neighborhood 13 the deletion of one lot from the west side of Street RRRR south of Lot 33 to expand open space lots B-13 and C-13, subject to the approval of the Director of Planning. {Planning) 120. Pay off all existing deficit accounts associated with the processing of this application to the satisfaction of the Director of Planning. a. Provide permanent City bench marks tied to the City system at the following locations: 1. East "H" Street/Mt. Miguel Road 2. Lane Avenue/Otay Lakes Road 3. Hunte Parkway/Otay Lakes Road 4. Mt. Miguel Road/Mackenzie Creek Road 5. East "H" Street/Both Subdivision Boundaries 6. East "H" Street/Lane Avenue 7. East "H" Street/Hunte Parkway 8. Otay Lakes Road/Rutgers Said bench marks shall be tied to the existing City bench mark system at points 465, 1350, and 1655. Completion shall occur prior to acceptance of the associated street improvements. The monumentation bond for the corresponding final map which contains the intersection shall include the cost of this work. Offsite bench marks shall be set prior to approval of the first final map. b. Provide the City with a copy of the disclosure to homeowners of costs associated with Mello-Roos, Assessment, and Open Space Districts as required by Ordinance 2275 prior to approval of each final map. {Planning) Code Requirements 121. Comp)y with all applicable sections of the Chula Vista Municipal Code. Preparation of the Final Map and al) plans shall be in accordance with the provisions of the Subdivision Map Act and the City of Chula Vista Subdivision Ordinance an Subdivision Manua). (Engineering, Plonn(ng) 122. Underground all utilities within the subdivision in accordance with Municipal Code requirements. (Eng(neerZng) Resolution No. 16834 Page 29 123. Provide some lots with residential fire sprinkler systems due to access requirements as determined by the Fire Marshal. In multi-family dwellings, if a sprinkler system is required for one building, all buildings in the project shall be sprinklered. (Fire) 124. Make all proposed development consistent with the Salt Creek Ranch SPA Planned Community District Regulations, subject to the approval of the Director of Planning. (PZonning) 125. Comply with Title 24 and any other energy conservation ordinances and policies in effect at the time construction occurs on the property in conformance with this Tentative Map. (BuiZding and Housing, PZonn~ng) 126. 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. (Engineering) 127. Comply with the Community Purpose Facility Ordinance. The developer shall provide areas proposed to show compliance with said ordinance and obtain approval of said areas from the Director of Planning. [Plonning) 128. Pay the following fees in accordance with the City Code and Council Policy: a. The Transportation and Public Facilities Development Impact Fees prior to the issuance of any building permit. b. Signal Participation Fees c. School fees d. All applicable sewer fees, including but not limited to sewer connection fees Pay the amount of said fees in effect at the time of issuance of building permits. (Engineering) failing any of which conditions, or failing the continued maintenance of same as the condition may require, this conditional approval and any entitlement accruing hereunder, shall, following a public hearing by the City Council at which the Applicant or his successo'r in interest is given notice and the opportunity to appear and be heard with regard thereto, be terminated or modified by the City Council. Resolution No. 16834 Page 30 SECTION 8. CEQA Findings (1) Re-adoption of Findings. The Council does hereby re-approve, accept as its own, and re- incorporate as if set forth full herein, and make each and every one of the CEQA Findings attached hereto as Exhibit D. {2) Certain Mitigation Measures Feasible and Re-dopted. As more fully identified and set forth in the Program EIR and the SEIR, and in the CEQA Findings for this Project, which is hereby attached hereto as Exhibit D, the Council hereby finds that pursuant to Public Resources Code Section 21081 and CEQA Guidelines Section 15091, that the mitigation measures described in the above referenced document are feasible and will become binding upon the appropriate entity such as the Applicant, the City, or other special districts which has to implement these specific mitigation measures. (3) Feasibility of Alternatives. As is also noted in the environmental documents referenced in the immediately preceding paragraph, alternatives to the - Project which were identified as potentially feasible are hereby found not to be feasible. {4) Adoption of Mitigation Monitoring Program. As required bythe Public Resources Code Section 21081.6, City Council hereby re-adopts the Mitigation Monitoring and Reporting Program ("Program") set forth as Exhibit E to this resolution and incorporated herein by reference as set forth in full. The City Council recommends that the Council find that the Program is designed to ensure that during the project implementation and operation, the Applicants and other responsible parties implement the project components and comply with the feasible mitigation measures identified in the Findings and in the Program. (5) Statement of Overriding Considerations. Even after the re-adoption of all feasible mitigation measures, certain significant or potentially significant environmental affects caused by the project or cumulatively will remain. Therefore, the City Council of the City of Chula Vista re-issues, pursuant to CEQA Guidelines Section 15093, as set forth and attached hereto, a Statement of Overriding Considerations identifying the specific economic, social, and other considerations that render the unavoidable significant adverse environmental effects still significant but acceptable. Reso]ution No. 16834 Page 31 SECTION 9. Notice of Determination. City Council directs the Environmental Review Coordinator to post a Notice of Detemination and file the same wi th the County Clerk. Robert A. Leiter a Director of Planning Resolution No. 16834 Page 32 PASSED, APPROVED and ADOPTED by the City Council of the City of Chula Vista, California, this 6th day of October, 1992, by the following vote: YES: Councilmembers: Horton, Moore, Rindone, Nader NOES: Councilmembers: None ABSENT: Councilmembers: Malcolm ABSTAIN: Councilmembers: None Tim Nader, Mayor ATTEST: Beverly At Authelet, City Clerk STATE OF CALIFORNIA ) COUNTY OF SAN DIEGO ) ss. CITY OF CHULA VISTA ) I, Beverly A. Authelet, City Clerk of the City of Chula Vista, California, do hereby certify that the foregoing Resolution No. 16834 was duly passed, approved, and adopted by the City Council held on the 6th day of October, lgg2. Executed this 6th day of October, 1992. Beverly ~Authelet, City Clerk ADDENDUM TO FINAL EIR-91-03 SALT CREEK RANCH SECTIONAL PLANNING AREA PLAN SCH #89092721 PROJECT NAME: Rolling Hills Ranch General Development Plan, Sectional Planning Area Plan and Tentative Map Revisions PROJECT LOCATION: City of Chula Vista PROJECT APPLICANT: Corky McMillin Companies DATE: February 26, 2003 1.0 INTRODUCTION The Final Supplemental EIR, Salt Creek Ranch Sectional Planning Area Plan contains a comprehensive disclosure and analysis of potential environmental effects associated with the implementation of the Salt Creek Ranch Sectional Planning Area (SPA) project. The Salt Creek Ranch project, which is now referred to as Rolling Hills Ranch, has an approved General Development Plan (GDP), SPA Plan and Tentative Map (TM). The purpose of this Addendum is to discuss proposed revisions to the SPA Plan and TM, as well as changes to the GDP to provide consistency with the revised SPA Plan. The proposed changes would remove development in certain areas containing sensitive biological resources, and would add development in less sensitive areas. Since the time that EIR 91-03 was certified, additional biological data has been collected on the site, revealing the presence of Quino checkerspot butterfly (Euphydryas editha quino; hereafter referred to as "QCB"), a federally listed endangered species, Otay tarplant (Deinandra conjugans), a federally and state listed species, and populations of sensitive plant species, including variegated dudieya (Dudleya variegata) within proposed development areas. As a result of discussions with the U.S. Fish and Wildlife Service, California Department of Fish and Game (collectively referred to as the "Wildlife Agencies"), and the City of Chula Vista, the project applicant has agreed to modify the development boundaries in exchange for designation as a Covered Project under the Chula Vista Draft MSCP Subarea Plan ("Subarea Plan"). The net effect of the revisions would be a reduction in total development area for the purposes of increasing conservation of species that are covered in the Subarea Plan. This Addendum will document the relationship of the proposed changes in the GDP, SPA Plan, and TM to what was analyzed in the Final EIR 91-03. 3271-01 - / 1 3/27/2003 · ~ / ADDENDUI~I TO FINAL EIR-91-03 SALT CREEK RANCH SECTIONAL PLANNING AREA PLAN SCH #89092721 2.0 CEQA REQUIREMENTS Sections 15162 through 15164 of the CEQA guidelines discuss a lead agency's responsibilities in handling new information that was not included in a project's final environmental impact report (EIR). Section 15162 of the CEQA Guidelines provides: (a) When an EIR has been certified...for a project, no subsequent EIR shall be prepared for that project unless the City determines, on the basis of substantial evidence in the light of the whole record, one or more of the following: 1. Substantial changes are proposed in the project which will require major revisions of the EIR...due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; 2. Substantial changes occur with respect to the circumstances under which the project is undertaken which will require major revisions of the EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; or 3. New information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the EIR was certified as complete, shows any of the following: (A) The project will have one or more significant effects not discussed in the IFinal] EIR; (]~) Significant effects previously examined will be substantially more severe than shown in the [Final] EIR; (C) Mitigation measures or alternatives previously found not to be feasible would in fact be feasible and would substantially reduce one or more significant effects of the project, but the project proponents decline to adopt the mitigation measure or alternative; or 3271-01 3/27/2003 ,~ ,~ ADDENDUM TO FINAL EIR-91-03 SALT CREEK RANCH SECTIONAL PLANNING AREA PLAN SCH #89092721 (D) Mitigation measures or alternatives which are considerably different from those analyzed in the [Final] EIR would substantially reduce one or more significant effects on the environment, but the project proponents decline to adopt the mitigation measure or alternative. In the event that one of these conditions would require preparation of a subsequent EIR, but "only minor additions or changes would be necessary to make the [Final] EIR adequately apply to the project in the changed situation," the City could choose instead to issue a supplement to the Final EIR (CEQA Guidelines, ~ 15163, subd. (a)). In the alternative, where the changes or new information will result in no new impacts, or no more severe impacts, than any that were disclosed in the Final EIR for the Project, it is appropriate for the City to prepare an addendum pursuant to CEQA Guideline, ~ 15164. That section states that an addendum should include a "brief explanation of the decision not to prepare a subsequent EIR pursuant to ~ 15162," and that the explanation needs to be supported by substantial evidence (CEQA Guidelines, ~ 15164, subd. (e).) The addendum need not be circulated for public review, but may simply be attached to the Final EIR (Ibid.; CEQA Guideline, ~ 15164, subd. (c)). Likewise, under CEQA Guideline Section 15088.5, where the Final EIR has not yet been certified, recirculation for public review is not required unless ~significant new information" is added to the document (CEQA Guideline, ~ 15088.5, subds. Iai, lb]). ~Significant new information" requiring recircuiation includes, for example, a disclosure showing that: (1) A new significant environmental impact would result from the project or from a new mitigation measure proposed to be implemented. (2) A substantial increase in the severity of an environmental impact would result unless mitigation measures are adopted that reduce the impact to a level of insignificance. (3) A feasible project alternative or mitigation measure considerably different from others previously analyzed would clearly lessen the significant environmental impacts of the project, but the project's proponents decline to adopt it. 3271-01 3/27/2003 /?.~,~.;;'~.~.~. 3 ADDENDUH TO FINAL EIR-91-03 SALT CREEK RANCH SECTIONAL PLANNING AREA PLAN SCH #89092721 (4) The draft EIR was so fundamentally and basically inadequate and conclusory in nature that meaningful public review and comment were precluded. Recirculation is not required when new information added to the EIR merely clarifies or amplifies or makes insignificant modifications to an adequate EIR (CEQA Guideline, 15088.5, subd. (b)). Thus, in the following inquiry the City considers under the standards articulated above whether each of these three changed circumstances reveal or create previously-undisclosed significant environmental impacts or a substantial increase in the severity of previously disclosed impacts (CEQA Guidelines, ~15162, 15163, 15164, subd. (a); 15088.5, subds. [a], [b]). As the discussion demonstrates, it is appropriate for the City to prepare this Addendum to the Final Supplemental Environmental Impact Report for the Sectional Planning Area Plan (EIR 91-03), pursuant to CEQA Guideline, ~ 15164. 3.0 PROJECT SETTING Rolling Hills Ranch encompasses approximately 1,200 acres in the southern foothills of the San Miguel Mountains in the City of Chula Vista. Elevations on the project site range from 550 feet above mean sea level (AMSL) to over 1,100 feet AMSL. The project is located east of 1-805, north of Otay Lakes Road and the Eastlake Business Park, and northwest of the Otay Lakes Reservoir. More specifically, the area affected by the revisions to the SPA Plan is located in the undeveloped, eastern portion of the Rolling Hills Ranch parcel, north of "H" Street and east of Hunte Parkway referred to as "Subarea III" (Figures i and 2, Regional and Site Vicinity Maps). Existing adjacent land uses include the proposed Bella Lago residential community to the east, Otay Lakes Reservoir to the southeast, Eastlake development to the south, San Miguel Ranch to the northwest and Otay Water District Auld golf course to the west. Regional roadway improvements have been constructed on and off-site, about 40 percent of the residential units have been completed to date, and approximately 50 percent of the overall project has been graded. The portion of the project that is subject to this Addendum (the eastern portion) has not been graded. Vegetation primarily consists of coastal sage scrub and annual grasslands. 3271-01 County .... ~ -.-,.._ ] Riverside County Fallbrook C~mp Pendleton Valley "'~ Oceanside" Vista Center Escondido Rancho Del Mar Poway t? '~' ., Alpine San Diego j~ Chula (~ Imperial ' Tijuana 1" = 8 Miles Addendum to Final EIR-91-03 Salt Creek Ranch Sectional Planning Area Plan FIGURE Regional Vicinity Map BASE MAP SOURCE: USGS 7.5 Minute Series, Jamul Quadrangle 1" -2000' Addendum to Final EIR-91-03 Salt Creek Ranch Sectional Planning Area Plan 8ire ~i~init~ ADDENDUM TO FINAL EIR-91-03 SALT CREEK RANCH SECTIONAL PLANNING AREA PLAN SCH #89092721 PROJECT DESCRIPTION The Rolling Hills Ranch project currently has an approved TM that identifies development in areas that would be redesignated as Preserve under the Subarea Plan. Based on the changes proposed in July 2001, an amendment to the approved Salt Creek Ranch (now known as Rolling Hills Ranch) GDP, SPA Plan and Tentative Map are proposed to implement the agreed upon development and conservation boundaries (see Figure 3, Rolling Hills Ranch Revised Boundaries). The area affected is entirely within Subarea III, the remaining undeveloped area of Rolling Hills Ranch. The following is a brief summary of the modifications of the project. The specific amendments to the GDP, SPA and Tentative Map for Roiling Hills Kanch Subarea III include: a) elimination of development in Neighborhood 13 and replacing this area as MSCP Preserve open space; b) reducing the minimum lot size requirement for Neighborhood 9 from 15,000 square feet to 10,000 square feet (in order to accommodate 36 units from former Neighborhood 13 to be transferred to Neighborhood 9); c) adjust the land use boundaries of Neighborhoods 9, 10A, 10B, 11 and 12; and d) revise the circulation plan to include an easement that would accommodate a 128 foot wide right-of-way for the future alignment of Proctor Valley Road from the easternmost edge of Neighborhood 9 to the Rolling Hills Ranch eastern boundary, and to remove street connections from Neighborhood 9 to 13 and from Neighborhood 11 to the northerly portion of Bella Lago. The resulting amending Tentative Map for Subarea III will accommodate a total of 425 single-family units. 5.0 IDENTIFICATION OF ENVIRONMENTAL EFFECTS The following environmental analysis provided in Section 6.0 determines that approval and implementation of the Rolling Hills Ranch SPA and TM revisions would not result in any additional significant environmental effects beyond those previously covered under EIR 91-03 for the project. 3271-01 ADDENDUH TO FINAL EIR-91-03 SALT CREEK RANCH SECTIONAL PLANNING AREA PLAN SCH #89092721 6.0 ANALYSIS Land Use, Planning and Zoning The net result of the proposed modifications would be the deletion of 63 residential lots and the addition of 60, resulting in the net loss of three residential lots. While the proposed modifications would require amendments to the GDP, SPA and TM for the project to maintain technical conformity with those plans, the overall land use impact represented by the proposed modifications is not considered to be significant. In addition, the resulting changes to the development plan area provide conservation and habitat linkage for QCB. The additional conservation provided by the revised project design is therefore consistent with the goals of the Subarea Plan. Landform Alterations/Aesthetics View impacts of the Rolling Hills Ranch would not substantially change as a result of the implementation of the revised SPA Plan, which include a net loss of three residential lots and an additional 82.5 acres of open space contributed to the MSCP Preserve. The approximately seven-acre area previously proposed for open space that would be developed under the proposed modifications does not contain unique landforms or other visual or aesthetic resources whose loss would be considered significant. The proposed revisions do, however, result in preservation of additional unique topographical features in Neighborhood 13. Therefore, no new or increased levels of impact to landforms or aesthetics beyond those identified in EIR 91-03 would occur as a result of the proposed project modifications. Biological Resources The proposed project involves boundary adjustments that result in increased conservation of species and habitats covered in the Subarea Plan. Conservation of additional areas within Rolling Hills Ranch would enhance conservation primarily for QCB, Otay tarplant, and variegated dudieya. The additional conservation that is currently proposed is a result of additional data collected on the project site and an agreement between the Wildlife Agencies and property owner to preserve additional biologically sensitive areas within the project site. The net effect of the proposed changes in the Rolling Hills Ranch development boundaries is to add conservation areas to the MSCP Preserve and/or to shift development from higher sensitivity areas to lower sensitivity areas. 3271-01 3/27/2003 /~ '¢' , ' ,~',, 6 ADDENDUM TO FINAL EIR-91-03 SALT CREEK RANCH SECTIONAL PLANNING AREA PLAN SCH #89092721 The additional conservation of lands within Rolling Hills Ranch would also contribute to the increase of habitat linkage opportunities within the Subarea Plan. In addition to facilitating wildlife movement, the reduction in total development area within Rolling Hills Ranch would increase habitat areas for sensitive plant and wildlife species. The additional conservation proposed would not have a significant adverse impact upon the movement of any resident or migratory species. Because the proposed revisions would increase conservation of species and habitats and would enhance wildlife movement and habitat connectivity, no new or increased levels of impacts to biological resources beyond those identified in EIR 91-03 would result from implementation of the proposed modifications. Cultural Resources EIR 91-03 prepared for Rolling Hills Ranch determined that the project site contained 27 archaeological sites. The EIR indicated that direct and indirect impacts to a number of those archaeological sites would occur, and with implementation of mitigation measures recommended in the EIR, all impacts would be reduced to below significant. The proposed project modifications would involve development in areas previously identified as Preserve. These areas have been reviewed using the archaeological survey data assembled as part of the analysis conducted for EIR 91-03. Based on that review, no significant archaeological resources area located in the area to be added as development. Therefore, the proposed project modifications would not impact any additional archaeological sites and no increase in the level of impacts to these resources beyond those identified in EIR 91-03 would occur. Geology and Soils Pacific Soils Engineering prepared a Revised Geotechnical Feasibility and Due Diligence Study Report in September 2001, which evaluated the geotechnicai conditions of the project site based on the revised SPA Plan. The 2001 geotechnical investigation determined that there were no geologic or geotechnicai issues which would preclude development as proposed in the revised SPA Plan, and development of the site would not require extraordinary mitigation or practices beyond those customary or previously identified in EIR 91-03 (Pacific Soils Engineering 2001). Findings and recommendations presented in the 2001 geotechnical study are similar to those included in geotechnical studies prepared for EIR 91-03. Therefore, the proposed project modifications would not result in new or 3271-01 3/27/2003 /7~ ~ ADDENDUM TO FINAL EIR-91-03 SALT CREEK RANCH SECTIONAL PLANNING AREA PLAN SCH #89092721 intensification of impacts related to geologic or soil constraints beyond those identified in EIR 91-03. Paleontological Resources EIR 91-03 determined that the project site possess a high potential for the existence of paleontological resources and implementation of mitigation measures including paleontological monitoring during grading would reduce potential impacts to less than significant. No new impacts or intensification of impacts to paleontological resources would result from the proposed project revisions and the same mitigation measures would apply. Agricultural Resources EIR 91-03 determined that impacts to agricultural resources would not be significant on a project-specific basis but would contribute to the cumulative loss of these resources. No new impacts or intensification of impacts to agricultural resources would result from the proposed project since the adjustment in the development boundary would not change the total acreage of agricultural areas being converted to other uses (residential or open space). Under the original SPA Plan, all of the land v~thin the project boundary would be unavailable for future agricultural uses, as it would either be developed or placed into permanent conservation for biological purposes, precluding the ability to continue agricultural production. The proposed revisions to the SPA Plan would not change this condition. Population and Housing The proposed project involves a net loss of three residential lots and additional lands conserved as part of the MSCP Preserve. Removal of these lands from potential development and inclusion into the Preserve would result in the substantial reduction in the developable land supply within the City. Growth projections provided by the San Diego Association of Governments (SANDAG) forecast the housing supply in Chuia Vista to be approximately 96,000 units in 2020. From a regional perspective, the total reduction of three residential lots is not considered to substantially reduce the housing supply in the City of Chula Vista. Therefore, the decrease in the developable land supply would not preclude the City from meeting its projected General Plan residential land needs. 3271,.01 3/27/2003 ,',,,~ 8 ADDENDUM TO FINAL EIR-91-03 SALT CREEK RANCH SECTIONAL PLANNING AREA PLAN SCH #89092721 Water Resources and Water Quality The proposed project would result in a net loss of three residential lots and an overall reduction in graded areas. No additional demand for water or substantial increase in impervious surface would occur with implementation of the proposed project. Therefore, no new impacts, or intensification of impacts to water resources or water quality would occur from implementation of the proposed project modifications. Transportation, Circulation and Access As a result of the additional conservation, density has been increased in some portions of the Rolling Hills Ranch development; however, there will be a net decrease in the number of residential units proposed within Rolling Hills Ranch, and a net decrease in residential development overall. Therefore, a slight decrease in the projected average daily trips on roadways within the City would be anticipated. In addition, the minor increases in density within Rolling Hills Ranch would not affect traffic or circulation systems since the proposed roadways are designed with adequate capacity to accommodate such densities. Therefore, no increase in traffic congestion or unacceptable level of service as a result of the proposed project modifications are anticipated to occur. The addition of these lands would also not result in significant modifications to circulation patterns or significant reconfiguration of roads to access existing or proposed development. Minor modifications to residential/collector roadway alignments and intersections within Rolling Hills Ranch may occur to address changes in lot configurations and boundary adjustments for neighborhoods, but planned major access points to the development and within the proposed development remain largely unchanged. Therefore, no significant impacts to circulation patterns would result from the addition of development lands to the Preserve. Modifications to the improvement requirements resulting in payment of a Traffic Development Impact Fee (TDIF) in lieu of construction of Proctor Valley Road between the project's easternmost access point and the eastern project boundary would not result in any significant traffic impacts, because no project traffic is projected to travel on that segment of road, since the remainder of the road off-site to the east is unimproved. At the point in time when the offsite easterly extension of Proctor Valley Road is aligned and constructed, the easterly segment within the project boundary can be constructed using the TDIF money that will be collected in lieu of the road improvements. As proposed, there will be flexibility in the alignment of Proctor Valley Road to accommodate future 3271-01 ,, o ADDENDUM TO FINAL EIR-9 !-03 SALT CREEK RANCH SECTIONAL PLANNING AREA PLAN SCH #89092721 alignment considerations for the easterly extension of the road within the unincorporated County area. EIR 91-03 determined that the Rolling Hills Ranch project would contribute to both short-term construction and cumulative local air quality impacts. The revised SPA Plan would not result in any substantial difference in air emissions from what was assumed in the impact analysis in the EIR because the same types of land uses and similar traffic patterns would be maintained. Therefore, no new or increased level of air quality impacts beyond those identified in EIR 91-03 would occur with implementation of the revised SPA Plan. Noise The proposed project would not change any of the traffic assumptions used as the basis for the noise analysis in the EIR. Therefore, the additional conservation and net loss of three residential lots would not result in any new or increased level of noise impacts beyond those identified in EIR 91-03. Public Services and Utilities Portions of the Rolling Hills Ranch have been removed from proposed development and designated as part of the MSCP Preserve. Dedication of these additional lands as part of the MSCP Preserve would not result in the elimination or relocation of existing utility corridors, nor would it prohibit the siting of future utility corridors through these areas. Future utility corridors are considered compatible uses within the Preserve, and are subject to the Facilities Siting Criteria described in Section 6.3.3.4 of the Chula Vista Subarea Plan. The additional conservation occurring on the Rolling Hills Ranch would also not affect public service facilities, or existing and future recreational facilities. None of these types of facilities were previously identified within those areas, therefore, elimination or relocation of public service facilities and recreational facilities as a result of the proposed modifications would not occur. 3271-01 3/27/2003 / "~ ~ 10 ADDENDUM TO FINAL EIR-91-03 SALT CREEK RANCH SECTIONAL PLANNING AREA PLAN SCH #89092721 While the Chula Vista Subarea Plan requires the application of siting and design criteria that may affect the specific alignment and location of future facilities within the Preserve, public utilities, public service facilities and recreational facilities would not be eliminated as a result of the proposed additional conservation. Therefore, no significant impact related to the need for or provision of public services and utilities would result from the proposed project modifications. 7.0 CONCLUSION This document has identified all changed circumstances and potentially significant new information since certification of EIR 91-03, and memorializes in detail the City's reasoned conclusion that none of these changes create the conditions requiring the preparation of a Subsequent or Supplemental EIR pursuant to CEQA Guidelines, Sections 15162 and 15163. Pursuant to Section 15164 of the State CEQA Guidelines and based upon the above discussion, I hereby find that approval and implementation of the proposed project will result in only minor technical changes or additions, which are necessary to make the Final Supplemental EIR 91-03 for the project adequate under CEQA. Marilyn Ponseggi Date Environmental Review Coordinator REFERENCES Chula Vista, City of. Salt Creek Ranch Sectional Planning Area (SPA) Plan Final Supplemental Environmental Impact Report (EIR-91-03). February 1992. Linscott, Law & Greenspan. Rolling Hills Ranch Traffic Assessment. January 2003. Pacific Soils Engineering, Inc. Revised Geotechnical Feasibility and Due Diligence Study, Rolling Hills Ranch Project, Sub Area 3, Neighborhoods 9 through 1,2, in the City of Chula Vista, California. September 2001. 3271-01 3/27/2003 ~ · 11 RESOLUTION NO. 2003- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA CERTIFYING THE SUPPLEMENTAL ENVIRONMENTAL IMPACT REPORT AND ENVIRONMENTAL ASSESSMENT (NO. 03-01) PREPARED FOR THE CITY OF CHULA VISTA MSCP SUBAREA PLAN; ADOPTING THE CITY OF CHULA VISTA MSCP SUBAREA PLAN SUBJECT TO THE CONDITIONS CONTAINED HEREIN; FINDING THAT THE IMPLEMENTING AGREEMENT, DATED FEBRUARY 2003, IS CONSISTENT WITH THE CHULA VISTA MSCP SUBAREA PLAN; AUTHORIZING THE MAYOR TO EXECUTE THE IMPLEMENTING AGREEMENT IN SUBSTANTIAL FORM OF THE IMPLEMENTING AGREEMENT, DATED FEBRUARY 2003, WITH MINOR CHANGES APPROVED BY THE CITY ATTORNEY AND CITY MANAGER WITH THE EFFECTIVENESS OF SAID AGREEMENT CONDITIONED AS STATED HEREIN; AMENDING THE CITY OF CHULA VISTA GENERAL PLAN TO INCORPORATE THE MSCP SUBAREA PLAN AS PART 2, CHAPTER 7A; APPROVING THE REVISED MSCP MITIGATION AND IMPLEMENTING AGREEMENT MONITORING PROGRAM, DATED FEBRUARY 2003. WHEREAS, the Multiple Species Conservation Program (MSCP) Subregional Plan was developed as a comprehensive, long-term habitat conservation plan which addressed multiple species and the preservation of natural habitat within a 900 square mile study area in south San Diego County; and WHEREAS, MSCP Subregional Plan contemplated that local jurisdictions, including the City of Chula Vista (~'City"), would participate in the MSCP Subregional Plan and seek federal and state take authorization by adopting a subarea plan consistent with the conservation strategies contained in the MSCP Subregional Plan; and WHEREAS, the City prepared and submitted a Draft MSCP Subarea Plan to the U.S. Fish and Wildlife Service and the City of San Diego in August, 1996, for inclusion in the Draft MSCP Subregional Plan and for consideration by the lead agencies in their environmental review of the Draft MSCP Subregional Plan; and WHEREAS, as lead agencies for the Multiple Species Conservation Program Subregional Plan, the U.S. Fish and Wildlife Service and the City of San Diego prepared and certified a Final Environmental Impact Report/Environmental Impact Statement for the Issuance of Take Authorizations for Threatened and Endangered Species due to urban growth within the Multiple Species Conservation Program planning area ("Final EIR/EIS") in January, 1997 and adopted the Final MSCP Subregional Plan in August, 1998; and WHEREAS, as a responsible agency, the City of Chula Vista ("City") participated in the preparation of the Final EIR/EIS through consultation and comment; and WHEREAS, after the adoption of the MSCP Subregional Plan, the City, and the U.S. Fish and Wildlife Service and the California Department of Fish and Game (hereinafter referred to as the "Wildlife Agencies") further negotiated a number of aspects of the 1996 Draft Subarea Plan, including but not limited to, the refinement of the conditions of coverage for covered projects, the type and extent of protection for narrow endemic species, the amount and type of public facilities and infrastructure to be allowed in the Preserve, and an acceptable configuration for the university site adjacent to the Preserve; and WHEREAS, following a review by the Wildlife Agencies and public comment period, the City issued a draft MSCP Subarea Plan dated September 11, 2000, and a Draft Implementing Agreement dated September 20, 2000, to the Wildlife Agencies and the general public; and WHEREAS, on September 22, 2000, the City submitted to the U.S. Fish and Wildlife Service an application for a Section 10(a)(1)(B) permit for incidental take pursuant to the U.S. Endangered Species Act of 1973, as amended, and submitted to the California Department of Fish and Game an application for a take authorization permit pursuant to Section 2835 of the California Endangered Species Act, with both applications including the Draft MSCP Subarea Plan dated September 11, 2000, and a Draft Implementing Agreement dated September 20, 2000; and WHEREAS, the Planning Commission and the City Council set the time and place for a joint hearing on said project and notice of said hearing, together with its purpose, was given by its publication in a newspaper of general circulation in the City at least 10 days prior to the hearing; and WHEREAS, the hearing was held at the time and place as advertised on October 17, 2000, in the Council Chambers, 276 Fourth Avenue, before the Planning Commission and City Council; and WHEREAS, approval of the MSCP Subregional Plan and adoption of the Chula Vista MSCP Subarea Plan dated September 11, 2000 were discretionary actions covered by the Final EIR/EIS, and therefore, as a responsible agency, the City had a more limited role than does a lead agency under the California Environmental Quality Act ("CEQA"); and WHEREAS, the City prepared an Addendum dated September 11, 2000, pursuant to CEQA Guidelines section 15164 to fulfill the City's obligations as a responsible agency; and WHEREAS, the City issued Findings of Fact for each of the significant environmental effects of implementing the Chula Vista MSCP Subarea Plan, dated September 11, 2000, in conformance with the CEQA and the CEQA Guidelines, which enabled the City to make full use of the Final EIR/EIS and the Addendum (CEQA Guidelines, sections 15101, 15093 and 15096, subd. (h)); and WHEREAS, the City considered the Final EIR/EIS prepared by the lead agency together with the Chula Vista MSCP Subarea Plan dated September 11, 2000 and the Draft Implementing Agreement dated September 20, 2000, and reached its own conclusion about whether and how to approve the MSCP Subregional Plan and the Chula Vista MSCP Subarea Plan dated September 11, 2000; and WHEREAS, the City also prepared an MSCP Mitigation and Implementing Agreement Monitoring Program For Biological Resources dated October 12, 2000, in compliance with Public Resources Code section 21081.6, subd. (a)(1); and WHEREAS, the City Council reviewed and considered the Final EIR/EIS prepared and certified by the U.S. Fish and Wildlife Service and the City of San Diego in January, 1997, the Addendum to the Final EIR/EIS (October 2000), the Findings of Fact and Statement of Overriding Considerations, and the MSCP Mitigation and Implementing Agreement Monitoring Program for Biological Resources (October 2000) and found that the documents were prepared in accordance with the requirements of CEQA, the CEQA Guidelines, and the Environmental Review Procedures of the City of Chula Vista, and also found that the Final EIR/EIS (January 1997) and Addendum to the Final EIR/EIS adequately addressed the environmental impacts of the MSCP Subregional Plan and the Draft Chula Vista MSCP Subarea Plan, dated September 11, 2000; and WHEREAS, on October 17, 2000, the City Council approved the MSCP Subregional Plan dated August, 1998, as the framework plan for the Chula Vista MSCP Subarea Plan; conditionally adopted the MSCP Subarea Plan, dated September 11, 2000, and the Mitigation and Implementing Agreement Monitoring Program for Biological Resources dated October, 2000; and WHEREAS, subsequent to the City Council conditional approval on October 17, 2000, the City decided to make further changes to the Draft MSCP Subarea Plan, dated September 11, 2000, including but not limited to additional information not previously available about the Quino checkerspot butterfly, a federally listed endangered species. The City believed it was prudent to add coverage for the Quino checkerspot butterfly into the draft MSCP Subarea Plan prior to the Subarea Plan and associated implementing documents being published in the Federal Register; and WHEREAS, since October 2000, changes to the Draft MSCP Subarea Plan have been made as necessary to complete a final Draft MSCP Subarea Plan, including 1) measures to provide coverage for the Quino checkerspot butterfly; 2) the preparation of three implementing ordinances; 3) final revisions to the Implementing Agreement, 4) conservation of additional lands not previously anticipated to be preserved; and 4) other revisions to address unresolved issues including, but not limited to, changed circumstances, wetlands, and funding for long term management; and WHEREAS, the City detemfined that as part of the implementation of the MSCP Subarea Plan, the City of Chula Vista General Plan would be amended to incorporate the MSCP Subarea Plan as a separate element of the General Plan; and WHEREAS, the City has prepared a Supplemental Environmental Impact Report and Environmental Assessment (No. 03-01) to address all of the changes to the revised final Draft MSCP Subarea Plan; and WHEREAS, on October 8, 2002, the City submitted a revised application to the Wildlife Agencies for a Section 10(a)(1)(B) permit for incidental take pursuant to the U.S. Endangered Species Act of 1973, as amended, and submitted to the California Department of Fish and Game an application for a take authorization permit pursuant to Section 2835 of the California Endangered Species Act, with all of the required application materials including the Draft Supplemental EIR and EA, revised Draft MSCP Subarea Plan, and the revised Draft Implementing Agreement, Draft Implementing Ordinances (hereinafter referred to collectively as "implementing Documents"); and WHEREAS, on October 10, 2002 a Federal Register notice was published commencing a 60-day public comment period on the Incidental Take Applications, Public Review Draft MSCP Subarea Plan, dated October 2002, implementing documents and associated environmental documents. A public notice was also published on October 11, 2002 announcing the availability of the Draft SEIR and EA to meet the requirements of the California Environmental Quality Act; and WHEREAS, public review of the Draft MSCP Subarea Plan and implementing documents closed on December 9, 2002. The City received 12 letters of comment from the public and has prepared responses to the comments and made changes to the Public Review Draft MSCP Subarea Plan, dated October 2002 and implementing documents, and has prepared a final City of Chula Vista MSCP Subarea Plan, dated February 2003, Draft Implementing Agreement, dated February 2003; and final draft implementing ordinances; and WHEREAS, the Planning Commission set the time and place for a public hearing on said project and notice of said hearing, together with its purpose, was given by its publication in a newspaper of general circulation in the City at least 10 days prior to the hearing; and WHEREAS, the hearing was held at the time and place as advertised on April 9, 2003 in the Council Chambers, 276 Fourth Avenue, before the Planning Commission; WHEREAS, the Planning Commission recommended to the City Council the approval of the MSCP Subarea Plan and associated implementing documents; and WHEREAS, the City Council set the time and place for a public hearing on said project and notice of said hearing, together with its purpose, was given by its publication in a newspaper of general circulation in the City at least 10 days prior to the hearing; and WHEREAS, the hearing was held at the time and place as advertised on May 13, 2003 in the Council Chambers, 276 Fourth Avenue, before the City Council; and WHEREAS, the conditional adoption of the Chula Vista MSCP Subarea Plan, dated February 2003 and associated implementing documents will not constitute a binding set of obligations on any public or private entity within the City of Chula Vista unless and until 1) the U.S. Fish and Wildlife Service issues a biological opinion which affirms and is consistent with the in the Chula Vista MSCP Subarea Plan, dated February 2003 and the Draft Implementing Agreement, dated February 2003, 2) take permits and its conditions are issued by both Wildlife Agencies that are consistent with the Chula Vista MSCP Subarea Plan, dated February 2003, and Draft Implementing Agreement, dated February 2003, and 3) the City and Wildlife Agencies approves and executes an Implementing Agreement substantially in the form of the Implementing Agreement, dated February 2003; and WHEREAS, implementation of the MSCP Subarea Plan will also require an amendment to the City of Chula Vista General Plan to incorporate the MSCP Subarea Plan as an element of the General Plan (Part 2, Chapter 7A) and adoption of three MSCP implementing Ordinances, including the Habitat Loss and Incidental Take Ordinance, the Otay Ranch Grazing Ordinance and revisions to the Excavation, Grading and Fills Ordinance. These ordinances will only take effect after issuance of the take permits and the necessary timelines for ordinances pursuant to the City Charter have passed; and NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby find, recommend, determine, resolve and order as follows: A. The proceedings and all evidence introduced before the Planning Commission and City Council at the public hearing on this project are hereby incorporated into the record of proceedings. These proceedings, evidence and documents, along with any documents submitted to the decision makers, shall comprise the entire record of the proceedings for any California Environmental Quality Act claims. B. The City Council has reviewed and analyzed and considered the Supplemental EIR and EA, the environmental impacts therein identified, and the Mitigation Monitoring Ad Reporting Program, a copy of which are on file in the office of the City Clerk. C. The City Council does hereby find that the Final Supplemental Environmental Impact Report and Environmental Assessment and the Revised MSCP Mitigation and Implementing Agreement Monitoring Program for Biological Resources are prepared in accordance with the requirements of CEQA, the CEQA Guidelines, and the Environmental Review Procedures of the City of Chula Vista. In addition, the City Council finds the Final Supplemental EIR and EA reflects the independent judgment of the City of Chula Vista City Council. D. The City Council does hereby consider that the Final Supplemental Environmental Impact Report and Environmental Assessment (No. 03-01) adequately addressed the environmental impacts of the Chula Vista MSCP Subarea Plan, as revised; and E. The City Council does hereby approve the Revised MSCP Mitigation and Implementing Agreement Monitoring Program, dated February 2003; and F. The City Council reviewed and finds that the Chula Vista Subarea Plan (dated February 2003) addresses the economic feasibility of preserve assembly for the proposed plan in light of current and forecasted economic ad fiscal factors. Issues that was considered in this analysis included, but not limited to the completion of key infrastructure. G. The City Council does hereby adopt the Chula Vista MSCP Subarea Plan (dated February 2003) and does hereby find that the Chula Vista MSCP Subarea Plan is consistent with the MSCP Subregional Plan and will provide for the conservation, protection, restoration and enhancement of biological resources for protected species while at the same time allowing the City to carry out its development plans, and conditions the adoption of the Chula Vista MSCP Subarea Plan on all of the following: 1. The issuance of a biological opinion that is consistent with the City of Chula Vista MSCP Subarea Plan (February 2003) and the Draft Implementing Agreement dated February, 2003; and 2. The issuance of a Section 10(a)(1)(B) permit pursuant to the U.S. Endangered Species Act of 1973, as amended and a take authorization permit pursuant to Section 2835 of the State of California Endangered Species Act with conditions that are consistent with the Chula Vista MSCP Subarea Plan (February 2003) and the Draft Implementing Agreement dated February 2003; and 3. The execution by the Wildlife Agencies and the City of an Implementing Agreement substantially in the form as determined by the City Attorney of the Draft Implementing Agreement dated February 2003. H. The City Council does hereby approved the Implementing Agreement, dated February 2003, and find said agreement is consistent with the Chula Vista MSCP Subarea Plan, dated February 2003 and does hereby affirm the submittal and execution of the Draft Implementing Agreement dated February 2003, to the Wildlife Agencies. The City Council does hereby authorize the Mayor to execute the Implementing Agreement, in substantially the form of the Implementing Agreement, dated February 2003, with minor changes approved by the City Attorney. I. The City Council does hereby amend the City of Chula Vista General Plan to incorporate Chula Vista MSCP Subarea Plan, dated February 2003 as a new element of the General Plan, Part 2, Chapter 7A, based upon the following findings: Findings of Consistency with the General Plan. The City Council hereby finds that the MSCP Subarea Plan Element contains policies and guidelines that will be consistent with the general plan as amended by this Resolution based on the following: Land Use The MSCP Subarea Plan Element, prepared pursuant the Government Code Section 2800 et. al., is a habitat conservation plan and would not change land use designations established in the General Plan but instead would act to compliment the existing general plan polices with regard to open space conservation. In addition the Subarea Plan reflects the land uses, open space, circulation, active recreational uses, and public facilities uses anticipated by the General Plan. The MSCP Subarea Plan Element consists of policies and guidelines that will provide direction for the protection of sensitive open space areas and are generally consistent with the adopted Land Use Diagram of the general plan Land Use Element (Fig. 1-2). Objective 21 of the Land Use Element calls for the preservation of "natural /7 open space areas and corridors, particularly the major canyons and valleys," and this reinforces the Chula Vista Greenbelt concept of an open space system that encircles the city identified in Section 7.3. The Land Use Element identifies three general categories of land in the city, including urban development, transportation corridors, and open space. This element states that "the open space areas are established to protect and preserve sensitive natural land forms, vegetation, wildlife habitat, canyons, drainage courses, and mountains." Public Facilities The MSCP Subarea Plan Element contains policies and guidelines that are consistent with policies of the Public Facilities Element of the general plan, including Section 5.3(6) that states that "the city shall discourage disruption of the natural landforms and encourage the maximum use of natural drainage in new development." Growth Management The MSCP Subarea Plan Element contains policies and guidelines that implement the Growth Management Element of the general plan, including Section 2.3 which recognizes that "Chula Vista is particularly blessed with significant vistas and open spaces with a variety of natural resources, and the City has taken a multiple-track approach to their conservation and management: preservation of critical landforms, such as Mother Miguel Mountain, requirements for open space dedication as part of large-scale development in the Eastern Territories, incorporating natural resource preservation in Bayfront redevelopment plans, and integration of open space elements in a City-wide Greenbelt and Trail System around the City from the Otay Lakes to the Bay." Conservation and Open Space The MSCP Subarea Plan Element contains policies and guidelines that are consistent ~vith the policies contained in the Conservation and Open Space Element of the general plan. Policy 6.1 of the Conservation and Open Space Element (Undeveloped Natural Areas) calls for the retention of natural open space and "...other areas actively managed for enhancement of wildlife and plant habitat..." Policy 6.7 (Plant and Animal Resources) is further implemented by the policies and guidelines of the MSCP Element stating that "designated wildlife and plant habitat areas are to be retained in their natural state or are to be subject to a program of preservation and/or enhancement for educational or recreational purposes." Parks and Recreation The MSCP Subarea Plan Element contains policies and guidelines that are consistent with the policies contained in the Parks and Recreation Element of the general plan. Policy 6.1 (Chula Vista Greenbelt) of the Parks and Recreation Element) addresses the formation of a regional system of open space surrounding the city. The MSCP Element contains policies that reinforce this open space concept. Policy 6.2 (Regional Parks) recognizes the formation of regional parks within the Chula Vista Greenbelt and provides guidelines that are consistent with those policies and guidelines of the MSCP Element. Safety Element The MSCP Subarea Plan Element contains policies and guidelines that address the issue of fire prevention and protection within open space preserve areas. These policies and guidelines are not in conflict with the Safety Element and address fire protection adjacent to open space preserves where the Safety Element is silent on this type of protection. Eastern Territories Area Plan The MSCP Subarea Plan Element contains policies and guidelines that am consistent with open space preservation policies of the Eastern Territories Area Plan of the general plan, including the Chula Vista Greenbelt concept. J. The amendment to the City of Chula Vista Plan shall become effective upon ali the conditions of paragraph G of this Resolution occurring. Presented by: Approved as to form by: Robert Leiter Ann Moore Planning and Building Director City Attorney PASSED AND ADOPTED at an adjourned meeting of the City Council of the City of Chula Vista, California, this day of , by the following vote: AYES: Councilmembers: NAYS: Councilmembers: ABSENT: Councilmembers: Stephen C. Padilla, Mayor ATTEST: Susan Bigelow, CMC/AAE, City Clerk STATE OF CALIFORNIA ) COUNTY OF SAN DIEGO ) ss. CITY OF CHULA VISTA ) I, Susan Bigelow, City Clerk of the City of Chula Vista, California, do hereby certify that the foregoing Resolution No. was duly passed and adopted by the City Council at an adjourned meeting of the Chula Vista City Council held on the Executed this Susan Bigelow, CMC/AAE, City Clerk ORDINANCE NO. AN ORDINANCE OF THE CITY OF CHULA VISTA AMENDING TITLE 15, CHAPTER 15.04 OF THE CHULA VISTA MUNICIPAL CODE RELATING TO EXCAVATION, GRADING AND FILLS AS IT RELATES TO IMPLEMENTATION OF THE MSCP SUBAREA PLAN WHEREAS, the Multiple Species Conservation Program (MSCP) Subregional Plan was developed as a comprehensive, long-term habitat conservation plan which addressed multiple species and the preservation of natural habitat within a 900 square mile study area in south San Diego County; and WHEREAS, MSCP Subregional Plan contemplated that local jurisdictions, including the City of Chula Vista ("City"), would participate in the MSCP Subregional Plan and seek federal and state take authorization by adopting a subarea plan consistent with the conservation strategies contained in the MSCP Subregional Plan; and WHEREAS, the City prepared and submitted a Draft MSCP Subarea Plan to the U.S. Fish and Wildlife Service and the City of San Diego in August, 1996, for inclusion in the Draft MSCP Subregional Plan and for consideration by the lead agencies in their environmental review of the Draft MSCP Subregional Plan; and WHEREAS, as lead agencies for the Multiple Species Conservation Progran~ ("MSCP") Subregional Plan, the U.S. Fish and Wildlife Service and the City of San Diego prepared and certified a Final Environmental Impact Report/Environmental Impact Statement for the Issuance of Take Authorizations for Threatened and Endangered Species due to urban growth within the Multiple Species Conservation Program ("MSCP") planning area ("Final EIR/EIS") in January, 1997 and adopted the Final MSCP Subregional Plan in August, 1998; and WHEREAS, as a responsible agency, the City of Chula Vista ("City") participated in the preparation of the Final EIR/EIS through consultation and comment; and WHEREAS, after the adoption of the MSCP Subregional Plan, the City, and the U.S. Fish and Wildlife Service and the California Department of Fish and Game (hereinafter referred to as the "Wildlife Agencies") further negotiated a number of aspects of the 1996 Draft Subarea Plan, including but not limited to, the refinement of the conditions of coverage for covered projects, the type and extent of protection for narrow endemic species, the amount and type of public facilities and infrastructure to be allowed in the Preserve, and an acceptable configuration for the university site adjacent to the Preserve; and WHEREAS, following a review by the Wildlife Agencies and public comment period, the City issued a draft MSCP Subarea Plan dated September 11, 2000, and a Draft Implementing Agreement dated September 20, 2000, to the Wildlife Agencies and the general public; and WHEREAS, on September 22, 2000, the City submitted to the U.S. Fish and Wildlife Service an application for a Section 10(a)(1)(B) permit for incidental take pursuant to the U.S. Endangered Species Act of 1973, as amended, and submitted to the California Department of Fish and Game an application for a take authorization pemfit pursuant to Section 2835 of the California Endangered Species Act, with both applications including the Draft MSCP Subarea Plan dated September 11, 2000, and a Draft Implementing Agreement dated September 20, 2000; and WHEREAS, the Planning Commission and the City Council set the time and place for a joint hearing on said project and notice of said hearing, together with its purpose, was given by its publication in a newspaper of general circulation in the City at least 10 days prior to the hearing; and WHEREAS, the hearing was held at the time and place as advertised on October 17, 2000, in the Council Chambers, 276 Fourth Avenue, before the Planning Commission and City Council; and WHEREAS, approval of the MSCP Subregional Plan and adoption of the Chula Vista MSCP Subarea Plan dated September 11, 2000 were discretionary actions covered by the Final EIR/EIS, and therefore, as a responsible agency, the City had a more limited role than does a lead agency under the California Environmental Quality Act ("CEQA"); and WHEREAS, the City prepared an Addendum dated September 11, 2000, pursuant to CEQA Guidelines section 15164 to fulfill the City's obligations as a responsible agency; and WHEREAS, the City issued Findings of Fact for each of the significant environmental effects of implementing the Chula Vista MSCP Subarea Plan, dated September 11, 2000, in conformance with the CEQA and the CEQA Guidelines, which enabled the City to make full use of the Final EIR/EIS and the Addendum (CEQA Guidelines, sections 15101, 15093 and 15096, subd. (h)); and WHEREAS, the City considered the Final EIR/EIS prepared by the lead agency together with the Chula Vista MSCP Subarea Plan dated September 11, 2000 and the Draft Implementing Agreement dated September 20, 2000, and reached its own conclusion about whether and how to approve the MSCP Subregional Plan and the Chula Vista MSCP Subarea Plan dated September 11, 2000; and WHEREAS, the City also prepared an MSCP Mitigation and Implementing Agreement Monitoring Program For Biological Resources dated October 12, 2000, in compliance with Public Resources Code section 21081.6, subd. (a)(1); and WHEREAS, the City Council reviewed and considered the Final EIR/EIS prepared and certified by the U.S. Fish and Wildlife Service and the City of San Diego in January, 1997, the Addendum to the Final EIR/EIS (October 2000), the Findings of Fact and Statement of Overriding Considerations, and the MSCP Mitigation and Implementing Agreement Monitoring Program for Biological Resources (October 2000) and found that the documents were prepared in accordance with the requirements of CEQA, the CEQA Guidelines, and the Environmental Review Procedures of the City of Chula Vista, and also found that the Final EIR/EIS (January 1997) and Addendum to the Final EIR/EIS adequately addressed the environmental impacts of the MSCP Subregional Plan and the Draft Chula Vista MSCP Subarea Plan, dated September 11, 2000; and WHEREAS, on October 17, 2000, the City Council approved the MSCP Subregional Plan dated August, 1998, as the framework plan for the Chula Vista MSCP Subarea Plan; conditionally adopted the MSCP Subarea Plan, dated September l 1, 2000, and the Mitigation and Implementing Agreement Monitoring Program for Biological Resources dated October, 2000; and WHEREAS, subsequent to the City Council conditional approval on October 17, 2000, the City decided to make further changes to the Draft MSCP Subarea Plan, dated September 11, 2000, including but not limited to additional information not previously available about the Quino checkerspot butterfly, a federally listed endangered species. The City believed it was prudent to add coverage for the Quino checkerspot butterfly into the draft MSCP Subarea Plan prior to the Subarea Plan and associated implementing documents being published in the Federal Register; and WHEREAS, since October 2000, changes to the Draft MSCP Subarea Plan have been made as necessary to complete a final Draft MSCP Subarea Plan, including l) measures to provide coverage for the Quino checkerspot butterfly; 2) the preparation of three implementing ordinances; 3) final revisions to the Implementing Agreement, 4) conservation of additional lands not previously anticipated to be preserved; and 4) other revisions to address unresolved issues including, but not limited to, changed circumstances, wetlands, and funding for long term management; and WHEREAS, the City determined that as part of the implementation of the MSCP Subarea Plan, the City of Chula Vista General Plan would be amended to incorporate the MSCP Subarea Plan as a separate element of the General Plan; and WHEREAS, the City has prepared a Supplemental Environmental Impact Report and EnvironmentaI Assessment (No. 03-01) to address all of the changes to the revised final Draft MSCP Subarea Plan; and WHEREAS, on October 8, 2002, the City submitted a revised application to the Wildlife Agencies for a Section 10(a)(1)(B) permit for incidental take pursuant to the U.S. Endangered Species Act of 1973, as amended, and submitted to the California Department ofFish and Game an application for a take authorization permit pursuant to Section 2835 of the California Endangered Species Act, with all of the required application materials including the Draft Supplemental EIR and EA, the revised Draft MSCP Subarea Plan, the revised Draft Implementing Agreement, and Draft Implementing Ordinances (referred to herein collectively as "implementing documents"); and WHEREAS, on October I0, 2002 a Federal Register notice was published commencing a 60-day public comment period on the Incidental Take Applications, Public Review Draft MSCP Subarea Plan, dated October 2002, implementing documents and associated environmental documents. A public notice was also published on October 11, 2002 announcing the availability of the Draft SEIR and EA to meet the requirements of the California Environmental Quality Act; and WHEREAS, public review of the Draft MSCP Subarea Plan and implementing documents closed on December 9, 2002. The City received 12 letters of comment from the public and has prepared responses to the comments and made changes to the Public Review Draft MSCP Subarea Plan, dated October 2002 and implementing documents, and has prepared a final City of Chula Vista MSCP Subarea Plan, dated February 2003, Draft hnplementing Agreement, dated February 2003; and final draft implementing ordinances; and WHEREAS, the Planning Commission set the time and place for a public hearing on said project and notice of said hearing, together with its purpose, was given by its publication in a newspaper of general circulation in the City at least 10 days prior to the hearing; and WHEREAS, the hearing was held at the time and place as advertised on April 23, 2003 in the Council Chambers, 276 Fourth Avenue, before the Planning Commission; WHEREAS, the Planning Commission recommended to the City Council the approval of the MSCP Subarea Plan and associated implementing documents; and WHEREAS, the City Council set the time and place for a public hearing on said project and notice of said hearing, together with its purpose, was given by its publication in a newspaper of general circulation in the City at least 10 days prior to the hearing; and WHEREAS, the hearing was held at the time and place as advertised on May 13, 2003 in the Council Chambers, 276 Fourth Avenue, before the City Council; and WHEREAS, the conditional adoption of the Chula Vista MSCP Subarea Plan, dated February 2003 and associated implementing ordinances will not constitute a binding set of obligations on any public or private entity within the City of Chula Vista unless and until 1) the U.S. Fish and Wildlife Service issues a biological opinion which affirms and is consistent with the conservation strategies in the Chula Vista MSCP Subarea Plan, dated February 2003 and the Draft Implementing Agreement, dated February 2003, 2) take permits and its conditions are issued by both Wildlife Agencies that are consistent with the Chula Vista MSCP Subarea Plan, dated February 2003, and Draft Implementing Agreement, dated February 2003, and 3) the City and Wildlife Agencies approves and executes the Implementing Agreement substantially in the form of the Implementing Agreement, dated February 2003; and WHEREAS, the City Council considered the Supplemental EIR and EA at its hearing of May 13, 2003 and adopted the Chula Vista MSCP Subarea Plan (dated February 2003) with said conditions; and WHEREAS, implementation of the MSCP Subarea Plan adoption of three MSCP Implementing Ordinances, including the Habitat Loss and Incidental Take Ordinance, the Otay Ranch Grazing Ordinance and revisions to the Excavation, Grading and Fills Ordinance. These ordinances will only take effect after issuance of the take permits and the necessary timelines for ordinances pursuant to the City Charter have passed. NOW, THEREFORE, the City Council of the City of Chula Vista does hereby ordain as lbllows: Section I. That Chapter 15.04 of the Chula Vista Municipal Code be and the same is hereby amended to read as follows: EXCAVATION, GRADING, CLEARING, GRUBBING AND FILLS~ Sections: 15.04.005 Purpose and intent of provisions. 15.04.010 Definitions. 15.04.015 Permil required for all land development work and soil investigations. 15.04.017 Other Required Permits. 15.04.020 Compliance with conditions and specifications required-Deviations from standards permitted when. 15.04.025 Provisions not to affect other code requirements. 15.04.030 Facilities within public rights-ot~way-Assignment of costs. 15.04.035 Cmnmencement and completion of work-Extension of time. 15.04.040 Slopes-Design requirements generally. 15.04.045 Building pads-Design requirements. 15.04.050 Embankment requirements-Soil engineer may be required. 15.04.055 Expansive soil grading requirements. 15.04.060 Landscaping and irrigation system. 15.04.065 Slopes-Tops and toes to be rounded. 15.04.070 Slopes-Blending into existing terrain. 15.04.075 Slopes-Horizontal slope rounding. 15.04.080 Preservation of existing monuments. 15.04.085 Work in conj unction with subdivision of property-Requirements generally. 15.04.090 Work in conjunction with subdivision of property-Standard land development permit-Requirements. 15.04.095 Work in conjunction with subdivision of property-Contract for completion of improvements-Requirements-Bonds. 15.04.100 Building construction-Land development permit required- Prerequisite to building permit. 15.04.105 Damaged or disused public improvements-Notification- Corrective action required. 15.04.110 Public to be protected 1¥om hazards during construction-Fences and barricades required when. 15.04.115 Sal~ty precautions. 15.04.120 Fence specifications-Modification permitted when. 15.04.125 Noncompliance. 15.04.130 Modification of approved plans. 15.04.135 Responsibility of permittee-Compliance with plans and requirements. 15.04.140 Completion of work-Final reports. 15.04.145 Notification of completion. 15.04.150 Exemptions t¥om applicability designated. 15.04.155 Contractor-Qualifications required. 15.04.160 Work to be performed by licensed contractor. 15.04.165 Inspection of land development work -Responsibility therefore. 15.04.170 Transl~r of responsibility l~r approval. 15.04.175 Plans and reports to be prepared by engineers. 15.04.180 Private contract perl~rmance bond-Required when-Issuance conditions generally. 15.04.185 Private contract performance bond-Conditions-Notice of default-Contents-Effect. 15.04.190 Private contract performance bond-Principal or surety liable for cost of completing work when. 15.04.195 Private contract performance bond-Liability of City for performance of certain work. 15.04.200 Private contract performance bond-Cash deposit accepted in lieu when-Default correction procedure. 15.04.205 Private contract perl~rmance bond-Not required when. 15.04.210 Private contract performance bond-Required from certain contractors when-Exception. 15.04.215 Private contract performance bond-Conditions-Compliance with certain terms and provisions required. 15.04.220 Private contract performance bond-Method of estimating amount-Schedule. 15.04.225 Release of bonds/security. 15.04.230 City Engineer-Enforcement responsibility and permit issuance authority. 15.04.235 City Engineer-Powers and duties generally. 15.04.240 City Engineer-Authority to determine applicable fees. 15.04.245 City Engineer-Duty to consider certain recommendations and deny certain applications. 15.04.250 City Engineer-Grounds tBr cancelling permit or amending plans. 15.04.255 Appeals-Authorized when-Determination authority. 15.04.260 Appeals-Time limit for filing-Form. 15.04.265 Permits-Application-Procedure generally-Detail plan required. 15.04.270 Permits-Application-Detail plans and specifications required. 15.04.275 Permits-Issuance-Prerequisites and contents. 15.04.280 Investigations authorized and required when-Fee. 15.04.285 Agreement required for uncontrolled embankments-Additional specifications. 15.04.290 Fees-Collection-Method of estimation-Verification-Payment required-Exemptions. 15.04.295 Fees-Schedule tBr cmnputafion. 15.04.305 Fees-To be doubled in certain cases-Effect of imposition. 15.04 310 Violations-Declared unlawful and public nuisance-Abatement authority. 15.04.315 Abatement of dangerous conditions. 15.04.320 Emergency abatement by City-Liability for costs. 15.04.325 Costs of abatement-Special assessment procedure-Statutory authority. 15.04.326 Confiicts. 15.04.005 Purpose and intent of provisions. The purpose of this chapter is to establish mini~num requirements for land development work to provide for the issuance of permits and for the enforcement of the requirements. These provisions are supplementary and additional to the subdivision and zoning regulations of this code and shall be read and construed as an integral part of said regulations and the land development patterns and controls established thereby. It is the intent of the City Council to protect life and property and promote the general welfare; enhance and improve the physical environment of the community; and preserve, subject to economic feasibility, the natural scenic character of the city. in administering these provisions, the following goals should be respected: A. Ensuring that future development of lands, particularly in the hilly areas of the city, occurs in the manner most compatible with surrounding areas and so as to have the least adverse effect upon other persons or lands, or upon the general public; B. Ensuring that soil will not be stripped und removed from lands in the more scenic parts of the city, leaving thc same barren, unsightly, unproductive, and subject to erosion and the hazards of subsidence and faulty drainage; C. Encouraging the plauniug, design and development of building sites in such fashion as to provide the maximum in safety and human enjoyment, while adapting development to and taking advantage of the best use of the natural ten-ain; D. Encouraging and directing special attention toward the retaining, insofar as practical, the natural planting and a maximum number of existing ri'ecs. E. Ensuring any impact to sensitive biological resources, as defined by Section 17.35.030 of the Chula Vista Municipal Code, is consistent with the goals and policies of the Chun Vista MSCP Subarea Plan. (Ord. 1797 1 (pmk.), 1978). 15.04.010 Definitions. 17".;?? The follo~ving words and plu-ases, ~vhen used in this chapter, shall be construed as defined in this section: "Appurtenant structures*' means man-made structures related to and necessitated by the proposed grading and includes paved drainage ditches, inlet structures, lined channels, culverts, outlet structures and retaining walls. "Building pad" ~neans that portion of an embankment and/or excavation contained within an area bounded by a line five feet outside the foundation Iboting. "Building site" means that portion of an embankment and/or excavation containing the building pad(s) and lying within an area bounded by the top of slopes and/or toe of slopes within the lot or parcel. "Certify" or "certification" means a signed writ[eh statement that the specific inspection and tests which were required have been perlbrmed and that the works comply with the applicable requirements of this chapter, the plans, and the permit. "Clearing" means the cutting of natural vegetation by any means, without disturbance to the soil and root system. ~'Clearing and Grubbing Permit" means a permit issued pursuant to this chapter that allows clearing and grubbnig that is not in association with other Land Development Work. "Compaction" means densification of a soil or rock fill by mechanical or other acceptable procedm-es. "Contractor" means a contractor licensed by the state to do work covered by this chapter. A contractor may be authorized to act lbr a property o~vner in doing such work. "Contract, private" means an agreement between a property owner and a qualified contractor to do land development work. "Embankment" or "fill" means any act by which earth, sand, gravel, rock or any other material is deposited, placed, pushed, dumped, pulled, transported or moved to a new location and the condition resulting therefrom. "Embankment, uncontrolled" means any embmtkment constructed as land development on which no soil testing was perlbrmed or no compaction reports or other soil reports ~vere prepared or subruitted. "Engineer, private" means a civil engineer registered by the state. A private engineer may be authorized to act for a property owner in doing work covered by this chapter. "Engineering Geologist" means a certified engineering geologist, registered by the state, who is engaged in the practice of applying geological principles and data to engineering problems dealing with naturally occurring rock and soils fox' the purpose of assuring that geological factors are recognized and adequately interpreted in engineering practice. "Erosion" means the process by which the ground surface is worn away by the action of water or wind. "Excavation or cut" means any earth, sand, gravel, rock or any similar material which is cut into, dug, quarried, uncovered, removed, displaced, relocated or bulldozed by man, and the conditions resulting therefrom. "Grade" means the elevation and cross-sections established for the finished surface. All grades shall be based upon the official datum of the city. "Grading" means any excavating or filling or combination thereof and shall include the land in its excavated or filled conditions. "Grubbing" means the removal of natural vegetation by any means including removal of the root system. "Land development permit" means a permit, issued pursuant to this chapter, to conduct Land Development Work.. "Land Development Work" means making of excavations and embankments on private property and the construction of slopes, drainage slructures, fences and other facilities incidental thereto, ~vhere it is necessary to safeguard lifk, limb, health, property and public welfare by regulating and controlling the design, construction and quality of materials. Land development work also includes other associated grading, and clearing ancFor grubbing conducted in preparation for such development. "Landscape architect" means a landscape architect, registered by the state, ~vho performs professional work in physical land planning and integrated land development, including the design of landscape planting programs. "Landscape manual" means the current "City of Chula Vista Landscape Manual" approved by resolution of the City Council. "Minor slope" means a slope four feet or less in vertical dimension in either cut or fill, between single family lots and not parallel to any roadway. "Natural terrain" means the original contour of a site prior to any grading. "Pennittee" means any person to whom a permit is issued pursuant to this chapter. "Property owner" means the owner, subdivider or developer of real property which will be benefited by the proposed land development ~vork. "Property, public" means property owned in fee by the City, or dedicated for public use. "Public improvement" means publicly owned construction, structures or facilities in the public right-of-way designed for tl~e public use, safety or general welfare. "Public rights-of-way" means public easements or dedications for streets, alleys and/or other use. "Rough grading" is the condition where the ground surface approximately conforms to the design grade, generally within 0.5 feet. "Slope" means the inclined exposed surface of a fill, excavation or natural terrain. "Slope, natural" means the predonrinant slope or slopes of land in its original condition prior to any grading. "Soil engineer" means a civil engineer registered by the state who submits evidence to the satisfaction of the City Engineer that: 1. He is engaged in the practice of civil engineering and spends a majority of his time in the field of applied soil mechanics and foundations engineering; 2. He has at least four years of responsible practical experience in the field of applied soil mechanics; 3. He is qualified to make the investigations and detem~/nations, render the reports and opinions and perform the duties ora soil engineer as required by this chapter. All persons meeting the qualifications set tbrth above shall be recognized by the City Engineer as qualified to perform soil engineering under the provisions of this chapter. "Soil, expansive" means any soil which swells more than tN'ce percent when prepared and tested by a method approved by the City Engineer. "Subdivider" means a person, firm, corporation, partnership or association who causes land to be divided into une or more subdivisions 1hr himself or others as defined by those sections of the Government Code known as the Subdivision Map Act. (Ord. 2128 1 (part), I985; Ord. 1877 . 1, 1979; Ord. 1797 . 1 (part), 1978). 15.04.015 Permit required for all land development work and soil investigations. No person, either as property owner, contractor, private engineer or otherwise, shall do or shall cause to be done any land development work without first having obtained either a land development permit or clearing and grubbing permit to do such work and having held a pre-grading or pre-clearing meeting if requix-ed by the City Engineer, except as provided in Section 15.04.150 of this Chapter. Soil investigations by a soils engineer or engineering geologist which involves trenching or scarifying of the natural terrain shall require a permit. A special investigation fee shall be paid prior to issuance of such permit. (Ord. 1797 1 (part), 1978). 15.04.017 Other Required Permits Prior to the City's issuance of a land development permit or clearing and grubbing permit, the applicant shall show compliance with a Habitat Loss and Incidental Take (HLIT) Pem~it issued pm'suant to Chapter 17.35 of the Chula Vista Municipal Code, for areas that contain sensitive biological resources, as def'med by Section 17.35.030 of the Chula Vista Municipal Code, and are within: 1) development areas outside of Covered Projects, as defined by Section 17.35.030 of the Chula Vista Municipal Code; 2) 75%-100% Conservation Areas, as defined by Section 17.35.030 of the Chun Vista Municipal Code; or 3) 100% Conservation Areas, as defined by Section 17.35.030 of the Chula Vista Municipal Code. Prior to the City's issuance of a land development permit or clearing and grubbing permit for areas that contain sensitive biological resources, as defined by Section 17.35.030 of the Chula Vista Municipal Code, and are within the development areas of (overed Projects, as defined by Section 17.35.030 of the Chula Vista Municipal Code, the applicant shall sho~v compliance with all applicable provisions of previous project entitlements issued by the City and with any applicable conditions of coverage listed in the Chula Vista MSCP Subarea Plan, as determined by the Director of Planning and Building or designee. Prior to the City's issuance of a [and development permit or clearing and grubbing permit for areas that will result in mipacts to wetlands or to listed non-covered species, as defined by Section 17.35.030 of the Chun Vista Municipal Code, the applicant shall obtain, and show compliance with, all applicable federal anddor state permits. 15.04.020 Compliance with conditions and specifications required-Deviations from standards permitted when. Except as herein provided, all land developnrent work shall be done in accordance with the conditions of the required permit, and shall conlbrm to the approved plans, standard drawings, specifications, landscape manual, subdivision manual, and general conditions as nmy be determined by the City Engineer to be applicable to the ~vork. Such documents are on file in the office of the City Engineer and shall be kept for public distribution in accordance with fee schedules in said office. In connection with land develop~nent work, deviations from the requirements of these standards may be permitted by the City Engineer based upon wriiten reports and recorramendations by qualified and recognized authorities subject to review by the City. (Ord. 1797 1 (part), 1978). 15.04.025 Provisions not to affect other code requirements. This chapter shall not affect the requirements of any other chapter of this code requiring permits, fees or other charges, including those for sewer and services, or affect any provisions concerning the granting of franchises. (Ord. 1797 . 1 (part), 1978). 15.04.030 Facilities within public rights-of-way-Assignment of costs. The following provisious of this section shall apply unless provision is made by an agreement pursuant to Sections 15.04.085 tlzrough 15.04.095 of this chapter: A. The property owner shall pay the City for all the cost of placing, repairing, replacing or maintaining a city-owned facility within a public right-of-way when the City's facility has been damaged or has failed as a result of the construction or existence of the owner's land development work during the process of such work. B. The costs of placing, replacing or maintaining the city-owned facility shall include the cost of obtaining a necessary alternate easement. (Ord. 1797 . I (part), 1978). 15.04.035 Commencement and completion of work-Extension of time. All land development work shall be executed in accordance with the provisions of this chapter and the terms of the permit issued by the City Engineer. Once conunenced, work shall be cm2-ied out diligently until completed. Unless othe~Mse specified upon the permit, all work shall be completed within one hundred eighty days from the date of issuance of the perinit. The City Engineer may grant one extension of time for the completion of the work. Such extension shall not exceed the original length of time designated on the permit. (Ord. 1797 1 (part), 1978). 15.04.040 Slopes-Design requirements generally. The inclination of each cut or fill surface resulting in a slope shalI not be steeper than two horizontal to one vertical except for minor slopes as herein defined. All consn-ucted m/nor slopes shall be designed lbr proper stability considering both geological and soil propml, ies. A minor slope may be constructed no steeper than one and one-half horizontal to one vertical (1.5:1) contingent upon: A. Submission of reports by both a soils engineer and a certified engineering geologist containing the results of surf:ace and subsurface 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 sn'ength characteristics sufficient to provide a stable slope and will not pose a danger to persons or property, and B. The installation of an approved special slope planting program and irrigation system. (Ord. 2128 2, 1985; Ord. 1797 . 1 (part), 1978). 15.04.045 Building pads-Design requirements. All building pads and building sites shall drain to an approved drainage facility unless otherwise approved by the City Engineer. (Ord. 1877 . 2 (part), 1979; Ord. 1797 . 1 (part), 1978). 15.04.050 Embankment requirements - Soil engineer may be required. A. Unless other~vise specified on the permit, all embankment for land development work shall be compacted in confomrance with the provisions of the standard specifications. The pernfit may require that an engineering geologist and/or soils engineer, as appropriate, be responsible for the inspection and testing of the embankment work and inspection of excavations. The soils engineer and engineering geologist, if one or both are required by the permit, shall file with the City Engineer reports as required by Sections 15.04.140 and 15.04.270B. B. Where, in the opinion of the City Engineer, the construction of an uncontrolled embamkxnent would not be contrary to the public interest or welfare, a permit for such land development work may be issued in accordance with Section 15.04.285. Plans for uncontrolled embankment shall be complete in all respects except for soil analysis and compaction requirements. Uncontrolled embankment slopes shall not be steeper than tN-ee horizontal to one vertical. (Ord. 1877 . 2 (part), 1979; Ord. 1797 . 1 (part), 1978). 15.04.055 Expansive soil grading requirements. If, during the land development work, expansive soil is fotmd within two feet in cut or three feet in fill of the finished grade of any area intended or designed as the location for a building, the permitlee shall cause such expansive soil to be removed from such building area to a minimum depth of two feet in cut or three feet in fill and replaced with non-expansive soil properly compacted; provided, however, the City Engineer may, upon receipt of a report by a soils engineer certifying that he has investigated the property and recommending a design or footings or floor slab or other procedure that in his opinion ~vill alleviate any problem created by such expansive soil, waive the requirement that such expansive soil be removed and replaced with non-expansive soil. (Ord. 1797 . 1 (part), 1978). 15.04.060 Landscaping and irrigation system. All cut and fill slopes shall be planted and irrigated in accordance with an approved plan. Said plan shall be prepared in accordance with the city landscape manual and shall be approved by the City Laudscape Architect, and the Director of Plamfing and Building or designee, as necessary. (Ord 3678 . 2, 1996; Ord 2128 · 3, 1985; Ord 1797 1 (part), 1978). 15.04.065 Slopes-Tops and toes to be rounded. The tops and toes of all major slopes in public vie~v shall be rounded in accordance with the city standard drawings. (Ord. 1797 . 1 (part), 1978). 15.04.070 Slopes-Blending into existing terrain. All man-made slopes shall be blended into existing terrain to produce a natural-appearing transition from the face of man-made slopes into natural ground. This blending shall be accomplished in accordance with City of Chula Vista Standard Drawings. Undulating top and toe of slopes and vm'iable slope ratios should be used to achieve natural-appearing slopes. (Ord. 1797 . 1 (part), 1978). 15.04.075 Slopes-Horizontal slope rounding. Rounding shall be accomplished io accordance with the City of Chula Vista Standard Drawings. (Ord. 1797 . 1 (part), 1978). 15.04.080 Preservation of existing monuments. All existing survey monuments shall be shown on the grading plan. Evidence indicating that arrangements have been made for the preservation and/or relocation of existing monuments shall be submitted to ',he City Engineer prior to issuance ora land development permit. (Ord. 1797 . 1 (part), 1978.) 15.04.085 Work in conjunction with subdivision of property-Requirements generally. A subdivider of land required to do land development work as the result or condition of the approval of the tentative map shall perform such work under one of the following procedures, as set forth in Sections 15.04.090 and 15.04.095. (Ord. 1797 . I (part), 1978; Ord. 1596 . 1 (part), 1974; Ord. 1455 . 1 (part), 1973; prior code 29.2.6 (part)). 15.04.090 Work in conjunction with subdivision of property-Standard land development permit-Requirements. Should the subdivider desire to do certain land development work prior to entering into contract with the City to install and complete all subdivision and land development work, he may make application to do so under a standard land development permit or clearing and grabbing permit, if the land development work is limited to clearing and grabbing only. This application shall be accompanied by detailed plans and specifications based upon the approved tentative map and h~ conformity with the provisions of Sections 15.04.017 and 15.04.040 through 15.04.075 of this chap',er. A schedule and estimate based upon such plans and specifications shall accompany the application. (Ord. 1797 . 1 (part), 1978). 15.04.095 Work in conjunction with subdivision of property-Contract for completion of improvements-Requirements-Bonds. A. Should the subdivider desire to do certain land development work in conjunction and concurrently with installation and construction of required public improvements, he may enter into a contract with the City to make. install and complete all improvements and land developments in accordance with approved plans and specifications. B. Prior to any construction of improvements and/or land development work, the subdivider shall have complied with and perfom~ed the following requirements: 1. Subdivider shall file with the City Clerk detailed plans and specifications (or statement that work will be accomplished in accordance with standards and specifications of the city) approved by the City Engineer for all public improvements and land development together with a detailed cost estimate approved by the City Engineer and an estimate of time reasonably necessary to complete the same. 2. Subdivider shall enter into a corm'act with the City to make, install and complete within the time fixed by the City Engineer but in no case more than two years from the date of execution of said contract, all improvements and land development in accordance with the approved plans, and shall cause to be filed with the City Clerk a faithful performance bond payable to the City which shall insure the performance of the contract and the completion of the improvements and land development work. The subdivider shall additionally file with the City Clerk a labor and material bond to inure to the benefit of those persons entitled to the protection of Part III, Title IV, Chapter 11 of the Code of Civil Procedure. A cash deposit or letter of credit may be submitted in lieu of bonds herein before described. Bonds and other forms of guarantee shall be in full conformity with the requirements fur subdivision guarantees as set forth in the subdivision ordinance codified at Title 18 of this code. 3. The bond or other guarantee shall be based on the City Engineer's estimate of the cost of the work and in accordance with the following schedule: a. Faithful perfurmance bond: Public improvements ............ 50% of cost estimate, Land development .............. 50% of cost estimate; b. Labor and material bond: Public improvements ............ 50% of cost estimate, Land development .............. 50% of cost estimate. (Ord. 1797 . 1 (part), 1978). 15.04.100 Building construction-Land development permit required-Prerequisite to building permit. A. An owner of land desiring to do land development work incidental to and in connection with the construction of a building or structure shall present an application and obtain a land development permit or clearing and grabbing permit. The City Engineer may require an on-site field inspection of the rough grading phase of the work between representatives o1' the City's Engineering, Planning and Building Departments and the permittee, civil engineer, soils engineer, biologist, as defined by Section 17.35.030 of the Chula Vista Mtmicipal Code, and engineering geologist, as appropriate, before the issuance of a building permit. The permittee shall request a field inspection of the rough grading phase, if required, five working days prior to the inspection. The rough grading phase of the land development work described on fo~ PW-E-106B shall be completed prior to the issuance of a building permit except as provided below. The City may suspend any boilding permit ~vhere it is found that land development work is being done or has been done without a land development permit or clearing and gx<bbing permit until a land development permit or clearing and grubbing permit is issued. The city may not certify to the completion of the building where land development ~vork has been done until a land development permit is obtained and certified as complete. B. Notwithstanding any provisions to the contrary in Subsection A, walls which are designed and constructed to retain earth and are also integral portions of buildings may be consm~cted under building permits concurrently with land development work within the project site. (Ord. 2128 . 4, 1985; Ord. 1877 . 2 (part). 1979: Ord. 1797 . I (part), 1978). 15.04.105 Damaged or disused public improvements-Notification-Corrective action required. The City Engineer shall notify the property owner of such damage or failure as set forth in Section 15.04.030. The City may withhold certification of the completion of a building or other permitted work where a notice has been issued. (Ord. 1797 I (part), 1978). 15.04.110 Public to be protected from hazards during construction-Fences and barricades required when. During the land development work, the contractor and owner shall take all necessary measures to ehinthate any hazard resulting from the work to the public in its normal use of public property or right-of-way. Any fknces or barricades installed shall be substaotially constructed and shall be properly maintained as long as the hazard resulting from the work exists. (Ord. 1797 . 1 (part), 1978). 15.04.115 Safety precautions. If at any stage of the work the City Engineer determines that further land development work as authorized is likely to endanger any public or private property or result in the deposition of debris on any public way or interfere witb any existing drainage course, the City Engineer may require, as a condition to allowing the work to be continued, that such reasonable safety precautions be taken as he considers advisable to avoid such likelihood of danger. The pemfittee will be responsible for removing any silt and debris, deposited upon adjacent and downstream public or private property, resulting from his grading operations. Silt and debris shall be removed and damage to adjacent and downstream property repaired, as directed by the City Engineer. Erosion and siltation control may require temporary or permanent siltation basins, energy dissipators, or other measures as field conditions warrant, whether or oot such measures are a part of approved plans. (Ord. 1877 .2 (part), 1979; Ord. 1797 . 1 (part), 1978). 15.04.120 Fence specifications-Modification permitted when. A. Where a slope is created adjacent to a public right-of-way or other publicly used property, and the top of slope is within ten feet of the property line and the height of the slope is three feet or greater and steeper than 4:1, a forty-eight inch high fence shall be erected between property line and the top of slope. The design of said fence shall be approved by thc City Enghieer. Publicly used property is that property used freqnently by persons other than the residents. B. The City Engineer may modify or delete the above requirements where it is evident that the land development work will present no hazard to the adjacent property or public right-of-way. (Ord. 1797 . 1 (part), 1978). 15.04.125 Noncompliance. A. If, in the course of fullilling his responsibility under this chapter, the private engineer, soils engineer or biologist, as defined in Section 17.35.030 of the Chula Vista Municipal Code, finds that the work is not being done in substantial cootbrmance with this chapter or the plans approved by the City Engineer or in accordance with accepted practices, he shall immediately notify the permittee, the person in charge of the land development work, and the City Engineer, in ~vriting, on the nonconformity and of the con'ective meastu-es which should be taken. B. In the event the work does not conform to the pernfit or the plans or specifications or any instructions of the City Engineer, notice to comply shall be given in writing by the City Engineer to the permittee. As soon as practical after a notice to comply is given, the permittee or his contractor shall begin to make the corrections. C. If the City Engineer finds any existing conditions not as stated in the application, land development permit, clearing and grabbing permit, or approved plans, he may refuse to approve work until approval is obtained for a revised grading or clearing and grabbing plan which will conform to the existing conditions. (Ord. 1797 . 1 (part), 1978). 15.04.130 Modification of approved plans. A. Modifications of the approved grading or clearing and grubbing plan must be in writing and be approved by the City Engineer and/or his designated representative. All necessary soils and geological reports shall be submitted with any substantial proposal to modify thc approved grading plan. B. No land development work in com~ection with any proposed modifications shall be permi~ed without the approval of the City Engineer and/or his designated representative. (Ord. 1797 . 1 (part), 1978). 15.04.135 Responsibility of per mittee-Compliance with plans and requirements. All permits issued hereunder shall be presumed to include the provision that the permittee, his agent, contractors and employees, shall carry out the proposed work in accordance with the approved plans and specifications and in compliance vvith all the requirements of the permit and this chapter. The civil engineer shall file a report as specified in Section 15.04.140. (Ord. 1797 . 1 (part), 1978). 15.04.140 Completion of work-Final reports. Upon completion of the work the ~bllowing reports shall be filed with the City Engineer unless waived by him: A. A written statement by the private engineer that all land development work and/or associated drainage facilities have been completed in conformance with Sections 15.04.165 and 15.04.225. B. An as-built plan of the completed work prepared by a civil engineer. C. A final as-built soil engineer's report which shall include a va-itten statement that inspections and tests were made during the grading, and that in his opinion all embankments and excavations are in accordance with the provisions of this chapter and the permit and are acceptable for their intended use. Soil bearing capacity (except where the City Eogineer determines such is inapplicable), summaries of field and laboratory tests and locations of tests if not previously submitted, and the limits of compacted fill on an "as-built" plau shall be included in the report. The report shall include reference to the presence of any expansive soils or other soil problems which, if not corrected, would lead to structm-al defects in buildings constructed on the site. If such report discloses the presence of such expansive soils or such other soil problems, it shall include recommended corrective action designed to prevent structural damage to each building proposed to be constructed upon the site. The final "as-built" report shall also contain a seepage statement or study as appropriate. D. A final "as-built" engineering geology report by an engineering geologist based on the "as-budt" plan including specific approval of the grading as affected by geological factors. Where required by the City Engineer, the report shall include a revised geologic imp and cross-sections and recommendations regarding building restrictions or tbundation setbacks. /7-:.7 E. A final biology report, if determined necessary by the Director of Planning and Building or designee, which includes an assessment of the impacts on sensitive biological resources affected by the land development work. (Ord. 1877 2 (part), 1979; Ord. 1797 . 1 (part), 1978). 15.04.145 Notification of completion. The permi~ee shall notify the City Engineer when the land development work is ready for final inspection. He shall also notify the City Landscape Architect and the Director of Planning and Building, or designee, when planting and irrigation are completed. Final approval shall not be given until all work, including installation of all drainage structures and facilities, sprinkler irrigation systems, planting and all protective devices have been completed and any required planting established and all as-built plans and reports have been submitted. The City Engineer may accept in writing the completion of all work, or any portion of the work, required by the permit issued in accordance with this chapter and thereupon accept said work or portion thereof. (Ord 2678 3, 1996; Ord 1797 . 1 (part), 1978). 15.04.150 Exemptions from applicability designated. No person shall do any land development work without first having obtained a Land Development Permit or Clearing and Grubbing Permit except lbr the following: A. The depositing of materials in any disposal area operated or licensed by the City; B. The making of excavation on any site or contiguous sites held under one ownership, in which all of the following are characteristic of the work: 1. A cut slope having a maximum steepness of three horizontal to one vertical. 2. A cut having a maximum vertical depth of three feet at any point and a maximum average depth of eighteen inches. 3. No adverse eflhct upon an existing drainage pattern. 4. A top of slope no closer than one foot from an exterior boundary line, and 5. The movement of less than two hundred fifiy cubic yards of material; C. The making of embankment on any site or contiguous sites held under one ownership, in which all of the following are characteristic of the work: 1. None of the embatflmlent exceeds three feet in vertical depth or has an average maximum depth in excess of eighteen inches, 2. None of the embankmeut is placed on existing ground having a slope steeper than five horizontal to one vertical, 3. Proposed fill slopes are no steeper than three horizontal to one vertical, 4. The embankment does not change or adversely affect the existing drainage pailern, 5. Adequate provisions are proposed to protect the embm~anent fi'om erosion, 6. The toe of the embankment is no closer than one and one-half feet to an exterior propel~y line, and 7. The total volume of embankment does not exceed two hundred fifty cubic yards of material; D. Excavation for fonndations of buildings, structures, basements, cellars, swimrmng pools or basins which are authorized by appropriate permits obtained from the Planning and Building Department; E. Excavation or embankment per/brmed by a governmental agency, franchise holder, or their contractor incidental to the const~xtction of roadways, pipelines, or utility lines within their rights of way; F. Foundations, as referred to herein, shall not be construed to include thundations for retaining walls, drainage structures, or other structures appurtenant to the land development; G. Routine maintenance of ornamental landscaping,' H. Agricultm-al operations, as defined pursuant to the Chula Vista Municipal Code Section 17.35.030; I. Maintenance of vegetation in accordance with an approved habitat management plan, or other such similm plan, if consistent with such plan, and prepared pursuant to the Chula Vista MSCP Subarea Plan; J. Maintenance of vegetation in a designated ihel modification zone, consistent with the Chula Vista MSCP Subarea Plan; K. Clearing and grabbing in an area located entirely within a mapped Development Area, as defined by Section 17.35.030 of the Chula Vista Municipal Code, where it has been demonstrated to the satisfaction of the Director of Planning and Building, or designee, that no sensitive biological resources, as defined by Section 17.35.030 of the Chula Vista Municipal Code, exist: L. Clearing and grabbing entirely located in a development area outside of a Covered Project, as defined by Section 17.35.030 of the Chula Vista Municipal Code, in an area that is one acre or less in size, is not part of a larger contiguous clearing and grabbing project, and does not impact sensitive biological resources, wetlands or listed non-covered species, as defined by Section 17.35.030 of the Chula Vista Municipal Code. (Ord. 1797 . 1 (part), 1978). 15.04.155 Contractor-Qualifications required. Every person doing land development work shall meet such qualifications as may be determined by the City Engineer and/or Director of Plaiming and Building to be necessary to protect the public interest. The City Engineer and/or Director of Planning and Building may require an application for qualification which shall contain all information necessary to determine the person's qualifications to do the land development work. (Ord. 1797 I (part), 1978). 15.04.160 Work to be performed by licensed contractor. All land development ~vork shall be perlbrmed by a contractor licensed by the state. (Ord. 1797 . 1 (part), 1978). 15.04.165 Inspection of land development work -Responsibility therefor. A. City Engineer. The City Engineer shall be responsible for all inspections of work not otherwise delegated to some other person. These inspections include, but are not limited to: drainage facilities, fencing, and compliance with state and city regulations in regard to the health and safety of the general public. B. Private Engineer. The private engineer shall be responsible for all surveying work necessmy for proper construction of the grading and drainage facilities. He shall inspect the site to insure that the embankment and cut slopes are placed at their proper line and grade. He shall, prior to the release of bonds and surety, provide a written statement that in his professional opinion, all work incorporated in the grading and drainage plans, authorized under the grading permit to include grading, drainage, and construction of appurtenant structures, have been constructed to the lines and grades in substantial conformance with the approved plans, and any approved revisions thereto. C. Soil Engineer. The soil engineer shall be responsible for the testing of compaction and determination of stability of the various slopes. He shall, prior to release of the bond and surety, provide a wriVten statement that inspections and tests were made by him, or under his supervision, and that th his professional opinion, all embankments have been compacted to city standards and in accordance with the earthwork specifications for the project. D. Landscape Architect. All landscaping work shall be designed under the supervision of a landscape architect; however, a registered civil engineer or registered architect may be responsible for the inspection of all landscaping and irrigation required th accordance with the grading permit and plans if it is in conjunction with a project he has been contracted to do. He shall, prior to the release of the bond and surety, provide a written statement that in his professional opinion all work incorporated in the landscape and irrigation plans authorized under the permit have been consn'acted in accordance with the approved plans and revisions thereto. E. Biologist. A biologist, as defined by Section 17.35.030 of the Chula Vista Municipal Code, shall be required to inspect all land development or clearing and gmbbnig sites prior to work occurring in areas of sensitive biological resources, as defined by Section 17.35.030 of the Chula Vista Municipal Code, to insure compliance with the permit issued pursuant to this Chapter. The biologist shall identify areas to be protected with appropriate staking and fencing, insure that these sensitive biological resources, as defined by Section 17.35.030 of the Chula Vista Municipal Code, are correctly identified on the grading or clearing and grubbing plan, anti inspect the staking and fencing after installation to thsure installation according to plan. In addition, the biologist shall conduct an inspection after the work is completed. Prior to the release of the bond and surety, the biologist shall provide a written statement that in his/her professional opinion all work was conducted as authorized under the permit in accordance with approved plans and revisions thereto. F. Prior to the release of building permits Ibr any given lot or lots, the private engineer shall submit a statement (Form PW-E-106B) as evidence that rough grading for land development has been completed within standard tolerance in accordance with the approved plans, and that all embankments and cut slopes and pad sizing are as shown on the approved plans. The soils engineer will submit a statement that all embankments, under his direction, have been completed to an indicated ninety percent relative compaction of dry density. (Ord. 1877 . 2 (part), 1979; Ord. 1797 1 (part), 1978). 15.04.170 Transl~r of responsibility for approval. If the private engineer, soil engineer, landscape architect, ov engineering geologist, or biologist, as defined by Section 17.35.030 of the Chula Vista Municipal Code, of record are changed during the course of the xvork, the work shall be stopped m~til the replacement has agreed to accept the responsibility within the area of their technical competence for approval upon completion of the work. (Ord. 1797 . 1 (part), 1978). 15.04.175 Plans and reports to be prepared by engineers. A. Plans for public improvements and land development work authorized under this chapter shall be prepared by a civil engineer. Where soil or geologic reports or soils and geologic investigations are required, the reports and investigations shall be prepared and conducted by an engineering geologist and/or Soils engineer as appropriate. B. A seepage statement or study is required as a part of all soils reports. All soils engineering, geologic, and geologic engineering reports shall consist of a preliminary and a final "as-built" report. Whenever blasting is to be perlbrmed or bedrock is to be exposed, a seepage study must be performed to deternfine method of handling excess water infiltration. C. Plans prepared for land development work which includes clearing and grabbing only, shall be prepared with input from a biologist. (Ord. 1877 . 2 (part), 1979; Ord. 1797 . 1 (part), 1978). 15.04.180 Private contract performance bond-Required when-Issuance conditions generally. Persons performing private conn'act work under a permit issued in accordance with this chapter shall furnish a bond/bonds or cash deposit or instrument of credit executed by the owner or his agent, or both, as principal in accordance with the provisions codified in Sections 15.04.180 through 15.04.215. The performance bond/bonds shall be issued by a surety company authorized to do business in the state and shall be approved as to form by the City Attorney. The bond/bonds shall be in favor of the City and shall be conditioned upon the completion, free of liens, of the work authorized by the permit in accordance with the requirements of this chapter and the conditions prescribed by the permit. Slope planting and irrigation bond will be separate fi'om the performance bond requirements for appurtenant sm~cmres and grading. They will be held in the office of the Director of Planning and Building until satisfactory compliance with landscaping and irrigation has been accepted. (Ord. 1797 . 1 (part), 1978). 15.04.185 Private contract performance bond-Conditions-Notice of default- Contents-Effect. The bond/bonds shall be conditioned upon the payment to the City of any costs incurred by the City or its agent in completing the required work or performing work necessary to leave the site in a non hazardous condition and restoring habitat as may be needed. The bond;bonds shall be further conditioned upon the payment to the City or its agents in completing the work required to protect or repair adjacent public or private properties from damage l¥om work performed under the permit. Whenever the City Engineer finds that a default has occurred in the performance of any term or condition of work authorized by a permit, he shall give written notice of such default to the principal and surety of the bond. Such notice shall state the work remaining to be done, the estimated cost of completion and the time estimated by the City Engineer to be necessary fbr tim completion of the work. After the receipt of such notice, the principal or the surety must, within the time specified, either complete the work satisfhctorily or deposit with the City an amount equal to the City Engineer's estimate of tile completion cost plus an additional sum equal to twenty-five percent of such cost. (Ord. 1797 . 1 (part), 1978). 15.04.190 Private contract performance bond-Principal or surety liable for cost of completing work when. In the event that the principal or sm-ety fails to complete such work within the time specified in the notice, or fails to deposit the estimated cost plus twenty-five percent with the City, the City Engineer may cause the required work to be completed. The principal and the surety shall be liable for the cost of completing such work. (Ord. 1797 1 (part), 1978). 15.04.195 Private contract performance bond-Liability of City for performance of certain work. If the principal or surety deposits the estimated cost plus twenty-five percent as set forth in the notice, the City Engineer shall cause the required work to be completed. The unexpended money shall be term-ned to the depositor at the completion of such work, together with an itemized accounting of the cost. The principal and surety shall hold the City blameless fi'oin any liability in connection with the work so performed by the City or contractor employed by the City. ]'he City shall not be liable in connection with such work other than for the expenditure of'said money. (Ord. 1797 1 (part), 1978). 15.04.200 Private contract pertbrmance bond-Cash deposit accepted in lieu when-Default correction procedure. In lieu of a bond, the permirtee may post a cash deposit with the Director of Finance in an amount equal to the required bond. Notice of default as provided above shall be given to the principal, and if the default is not corrected within the time specified, the City Engineer shall proceed without delay and without further notice of proceeding whatever to use the cash deposit or any portion of such deposit to complete the required work. The balance, if any, of such cash deposit shall, upon the completion of the work, be returned to the depositor or to his successors or assigns after deducting the cost of the work. (Ord. 1797 . 1 (part), 1978). 15.04.205 Private contract performance bond-Not required ~vhen. No performance bond under the provisions of this chapter shall be required from the state, or any of its political subdivisions or any goverrmaental agency. (Ord. 1797 . 1 (part), 1978). 15.04.210 Private contract performance bond-Required from certain contractors when-Exception. A contractor working for the state or any of its political subdivisions or any governmental agency shall present a pertbrmance bond unless proof is submitted that the work is covered by a bond inuring to the benefit of the state or agency. (Ord. 1797 . 1 (part), 1978). 15.04.215 Private contract perlBrmance bond-Conditions-Compliance with certain terms and provisions required. Every bond or other performance guarantee shall include conditions that the peri,tree shall: A. Comply with all provisions of this chapter; B. Comply with all terms and conditions of the land development permit or clearing and grabbing permit; C. Complete the land development work within the time limit specified in the land development permit or clearing and grubbing permit. (Ord. 1797 . 1 (part), 1978). 15.04.220 Private contract performance bond-Method of estimating amount- Schedule. The amount of the bonds or cash deposits covering a specific job shall be based on the amount of the estimate submitled by the person doing the work and approved by the City Engineer and in accordance with the following schedule: A. Appurtenant structures.....100% of the estimated cost of retaining walls, drainage facilities or other grading appurtenances; B. Grading.....25% of the estimated cost. This percentage may be varied by the City Engineer to fit conditions which are unusual in his opinion; C. Slope planting and imgatiou.....100% of the estimated cost of required landscaping and irrigation f:acilities; D. Maintenance of landscaping.....100% of the estimated cost of maintaining landscaping for the period specified upon the permit. E. Habitat restoration ...... 100% of the estimated cost of repairing or replacing sensitive biological resources, as defined by Section 17.35.030 of the Chula Vista Municipal Code, including short-term maintenance and long-term monitoring (typically five-years), as specified by a biologist. (Ord. 1797 1 (part), 1978). 15.04.225 Release of bonds/security. Bonds and other security shall be released thirty-five days after filing a "Notice of Completion" with the County Recorder (recorded copy to City Engineer) for improvements accepted by this City and upon acceptance of completed Form PW-E-106 (Request for Release of Bonds) submitted by the pe~nirtee. This form is available in the office of the City Engiueer. Such tbrm may not be accepted until the end of the maintenance period for the required landscaping, unless a separate bond is or has been submitted to guarantee maintenance of landscaping. (Ord. 1877 . 2 (part), 1979; Ord. 1797 1 (part), 1978). 15.04.230 City Engineer-Enforcement responsibility and permit issuance authority. The City Engineer shall enforce the provisions of this chapter. He shall, upon application by qualified persons, issue permits in connection with land development work when all applicable conditions established by this chapter for such permits have been met. (Ord. 1797 I (part), 1978). 15.04.235 City Engineer-Powers and duties generally. The City Engineer e shall cause land development work being done without a permit to be stopped tmtil a permit has been obtained. He may require that such work done without a permit be removed or corrected, including habitat restoration, at the expense of the responsible person. Where land development work involves an embankment improperly constructed or constructed without adequate testing, he shall cause such embankment to be reconstructed or, in lieu thereof, shall cause a declaration of improper land development to be recorded in the office of the County Recorder. He shall have work done in co~mection with land development to insure compliance with the provisions of this chapter and shall release the bond when such work is properly completed. (Ord. 1797 . I (part), 1978). 15.04.240 City Engineer-Authority to determine applicable fees. The City Engineer shall determine the fees applicable under the provisions of this chapter. (Ord. 1797 1 (part), 1978). 15.04.245 City Engineer-Duty to consider certain recommendations and deny certain applications. When the nature of the work requested is such that it comes within the requirements of, or affects the operation of any other department of the City, the City Engineer shall obtain and consider the recommendations of applicable City departments in determining the disposition of the application. He shall deny applications which are not in the interest of the public health, safety or general welfare, or do not constitute a reasonable use of land as indicated by the existing zoning or an approved land use plan. (Ord. 1797 . 1 (part), 1978). 15.04.250 City Engineer-Grounds lbr canceling permit or amending plans. The City Engineer may cancel a permit or nmy require the plans to be amended when it is in the interest of public health, safety and welt:are and under aoy of the following: A. Upon the request of the permittee; B. When the facts are not as presented by the permitlee in application; C. When work as constructed or as proposed to be constructed creates a hazard to public health, safety and wellhre. (Ord. 1797 . i (part), 1978). 15.04.255 Appeals-Authorized when-Determination authority. An applicant may appeal the City Engineer's denial of, or the conditions of approval of, an application for a land development or clearing and grabbing permit to the City Council. (Ord. 1797 . 1 (part), 1978.) 15.04.260 Appeals-Time limit li}r filing-Form. The applicant for a permit issued pursuant to this chapter, or the permittee, may appeal to the City Council from any decision of the City Engineer within ten working days after said decision. Appeals shall be in writing and shall state the specific nature of the appeal. Appeals shall be filed with the City Clerk. (Ord. 1797 . 1 (part), 1978). 15.04.265 Permits-Application-Procedure generally-Detail plan required. Applications for permits authorizing land development work shall be made in accordance with procedures established by the City Engineer. Applications shall be accompanied by such detailed plans, specifications and schedules as listed in the subdivision manual, landscape manual, and as otherwise required by the City Engineer. See Sections 15.04.290 and 15.04.295 of this chapter regarding fees. (Ord. 1797 . 1 (part), 1978). 15.04.270 Permits-Application-Detail plans and specifications required. A. Detailed plans and specifications for land development work shall include, but not be limited to: 1. Those requirements listed in the subdivision manual; 2. A vicinity sketch or other data adequately indicating the site location; 3. A plot plan showing the location of the land development boundaries, lot lines, and public and private rights-of-way lines; 4. A contour map showing the present contours of the land and the proposed contours or grid elevations. Contours will extend beyond the limits of grading at least one hundred feet; 5. The location of any buildings or structures within the land development boundaries, and the location of auy building or structure on adjacent property which is within fifteen feet of the land development boundary; 6. Typical sections showing details concerning proposed cut and fill slopes; 7. Adequate plans of all drainage devices, walk or other protective devices to be constructed in connection with, or as a result of the proposed work, together with a map showing the drainage area of land tributary to the site and the estimated runoff of the area served by any drainage facilities and devices; 8. An estimate of the quantity of excavation and ftll involved, quantities relative to construction of appurtenant structures, estimate of cost and estimated starting and completion dates; 9. A landscape and irrigation plan indicating the total landscaped square footage, plant quantity, spacing, type and location and the layout of the irrigation system, and an estimate of cost of the landscaping and irrigation facilities. 10. A map, prepared by a biologist, as defined by Section 17.35.030 of the Chula Vista Municipal Code, illustrating the proposed land development work relative to sensitive biological resources in compliance with the applicable Habitat Loss and Incidental Take Permit issued pursuant to Chapter 17.35 of the Chula Vista Municipal Code. 11. An erosion control plan as may be required by the City Engineer or the Director of Planning and Building. B. A soils investigation may be required to correlate sm-face and subsurface conditions with the proposed land development plan. The results of the investigation shall be presented in a soils report by a soils engineer which shall include, but not be limited to location of faults; data regarding the nature, distribution, and strength of existing soils and rock on the site; the soils engineer's conclusion; recommendations for grading requirements, including the correction of weak or unstable soil conditions and treatment of any expansive soils that may be present; and his opinion as to the adequacy of building sites to be developed by the proposed land development operations. The soils engineer shall provide an engineering geology report by an engineering geologist when required by the City Engineer. A seepage statement or a study is required as a part of all soil reports. Whenever blasting is to be performed or bedrock is to be exposed, a seepage study must be performed to determine method of handling excess water infiltration. C. The City Engineer may require other data or information as he deems necessary. He may eliminate or modify any of these requirements where, in his opinion, they will serve no practical propose. (Ord. 1887 . 2 (part), 1979; Ord. 1797 . 1 (part), 1978). 15.04.275 Permits-Issuance-Prerequisites and contents. The City Engineer shall issue permits 1bt land development work upon approval of applications, plans, receipt of the prescribed fees and bonds and receipt of letters from the private engineer, soils engineer, eogineering geologist, landscape architect, biologist, and others as required by the City Engineer, that they have been retained by the permittee to perform the work specified in Section 15.04.165. The permits shall include, or refer to, the conditions, plans and specifications which shall govern the work authorized. (Ord. 1877 . 2 (part), 1979; Ord. 1797 1 (part), 1978). 15.04.280 Investigations authorized and required when-Fee. The City Engineer may require the payment of the prescribed fees for special investigations when the proposed work or inquiries necessitate that special work be performed by the City. Special investigations shall include all requests for time extensions or variance requests and shall be accompanied by the special investigation fee. (Ord. 1797 . I (part), 1978). 15.04.285 Agreement required for uncontrolled embankments-Additional specifications. A. Applications for land development permits involving uncontrolled embankment shall be accompanied by an agreement signed by the properr~ o,vnet. The agreement shall be prepared by the City Engineer and shall contain the following provisions and such other provisions as may in the opinion of the City Engineer afibrd protection to the property owner and City: 1. The land development work shall be designated as uncon~'olled embmff, ment and shall be constructed in accordance with plans approved by the City Engineer. 2. The owner aclmowledges that as an unconu'olled embankment, the site is not eligible for a building permit unless special soils analysis and foundation design are submitted. 3. The land development work shall be done and maintained in a safe and sanitary manner at the sole cost, risk and responsibility of the owner and his successors in interest, who shall hold the City harmless with respect thereto. B. The agreement for uncontrolled emba~ff, ment shall be approved by the City Coturcil and recorded by the City Clerk in the Office of the County Recorder as an obligation upon the land involved. The notice shall remain in effect until release of the agreement is filed by the City Engineer. (Ord. 1797 . 1 (part), 1978). 15.04.290 Fees-Collection-Method of estiinafion-Verification-Payment required- Exemptions. A. Fees required by this chapter shall be collected by the City Engineer and deposited with the Director of Finance. Such fees shall be as presently designated, or as may in the futm-e be amended, in the master fee schedule. B. No permit shall be issued, and no land development work shall be permitted until the fees applicable under this chapter have been received by the City Engineer. 7-, '77 C. The state or any of its political subdivisions or any governmental agency shall file applications for permits and shall be issued pernfits as required by this chapter. No fees shall be required when the work is done by persons working directly for the state or agency. D. The City Manager, or Iris designee, may authorize, without advance appropriation, the refund of fees required by this Chapter to be collected, or such portion of the fees deemed appropriate for refund by the City Manager (net of costs incurred by the City in processing the permit application or unless the City has used the fees to construct l:acilities for a development for which the fees ~vere paid), if the City Manager finds that the permit for which they were collected has been revoked, surrendered or terminated without use by the permittee and the refund is less than $100,000. All other refunds shall be authorized by the City Council. (Ord. 2594 1, 1994; Ord. 2011 . 1 (part), 1982; Ord. 1797 . 1 (part), 1978). 15.04.295 Fees-Schedule for computation. Fees shall be as presently designated, or as may in the future be amended, in the master fee schedule. (Ord. 2506 1 (part), 1992; Ord. 1961 1 (part), 1982; Ord. 1797 . 1 (part), 1978). 15.04.305 Fees-To be doubled in certain cases-Ellect of imposition. In the event that land development work is commenced without a land development or clearing and grubbing permit, the City Engineer shall cause such work to be stopped until a permit is obtained. The permit fee, in such instance, shall then be the normally required permit fee, plus $500. The payment of the increased permit fees shall not relieve any person from fully complying ~vith the requirements of this chapter in the performance of the work. Such fee shall defray the expense of enforcement of the provisions of this chapter in such cases. When land development work commences without a permit and results in damage to sensitive biological resources, as defined by Section 17.35.030 of the Chula Vista Municipal Code, restoration requirements (including maintenance and monitoring) shall be imposed at the sole discretion of the Director of Planning and Building and the full cost of the restoration shall be borne by the property owner. When land development work is inconsistent with a pemfit issued pursuant to Chapter 17.35 of the Chula Vista Municipal Code and results in damage to sensitive biological resom:ces, as defined by Section 17.35.030 of the Chula Vista Municipal Code, restoration requirements (including maintenance and monitoring) shall be imposed at the sole discretion of the Director of Plmming and Building and the full cost of the restoration shall be borne by the property owner. The payment of such fees or penalties as described above shall not prevent the imposition of any penalty prescribed or i~nposed by this chapter, Chapter 1.41, or other federal or state law. (Ord 2718 . 1 (part), 1998; Ord. 1797 . 1 (part), 1978). 15.04.310 Violations-Declared unlawful and public nuisance-Abatement authority. Any land development ~vork commenced, done, maintained or allowed contrary to the provisions of this chapter, shall be, and the same is hereby declared to be, unla~vful and a public nuisance. Upon order of the City Council. or upon the determination of the City Manager or the City Attorney, necessary proceedings for the abatement, removal and~or enjoinment of any such public nuisance shall be commenced in the manner provided by law. Alternatively the procedures to abate under Chapter 1.30 may be used. Any failure, refusal, or neglect by a responsible party to obtain a permit as required by this chapter shall be prima facie evidence of the fact that a public nuisance has been cormmtted in connection with any land developmeut work commenced or done contrary to the provisions of this chapter. (Ord 2718 . 1 (part), 1998; Ord. 1797 . 1 (part), 1978). 15.04.315 Abatement of dangerous conditions. Where the City Engineer determines that land development work has created a danger to public or private property or has resulted in the deposition of debris on any public way or interferes with any existing draiuage course, the City Engineer shall serve wri~len notice on the property owner, describing the condition and requiring that the properly ow~er abate the dangerous condition within ten days after the notice is received. If the property owner fails to so abate the condition, the City Engineer may do so, in which event the property owner shall be liable for all costs of such abatement, including but not limited to reasonable attorney fees. The expenses of abatement shall be a lien against the property on which it is maintained and a personal obligation against the property owner. (Ord. 1877 3 (part), 1979). 15.04.320 Emergency abatement by City-Liability for costs. If it appears to the City Engineer that an emergency exists because land development work has resulted in a danger to public or private property, then, without following the procedure established by Section 15.04.315, the City Engineer may order all work necessary to remove, abate or mitigate the condition creating such emergency. The City Engineer may do the work with his own employees or may contract to have the work done; in either event, the City Engineer shall keep a record of the costs of the work and charge the cost of the work to the property owner who shall repay the City Ibr the cost thereof. (Ord. 1877 . 3 (part), 1979). 15.04.325 Costs of abatement-Special assessment procedure-Statutory authority. The costs of abating a dangerous condition within the meaning of this chapter shall be imposed as a special assessment against the land on which such abatement was done. Costs and assessment procedures will be in accordance with Chapters 1.40 and 1.41. The property owner may raise and the City Manager shall consider, as a complete or partial defense to the imposition of the assessment, questions as to the necessity of the abatement and the means in which it was accomplished. Pursuant to Government Code . 38773.5 abatement costs shall be transmitted to the tax collector for collection. This assessment shall have the same priority as other city taxes. (Ord 2718 I (part), 1998: Ord. 1877 . 3 (part), 1979). 15.04.330 Conflicts Except for exempt projects, if a conflict occurs between this Chapter and Chapter 17.35 of the Chula Vista Municipal Code, the stricter regulation shall apply. Section 1I. Adoption of this ordinance (Second Reading) is conditioned upon and shall not occur unless and until the issuance of Take Authorizations from the USFWS and CDFG to the City of Chula Vista has occurred in a form acceptable to the City.. Section III. This ordinance shall take effect and be in force on the thirtieth day from and after the of the ordinance (Second Reading) which shall occur as stated above. Presented by Approved astoformby Robert A. Leiter Ann Moore Planning and Building Director City Attorney ORDINANCE NO. AN ORDINAN(?E OF THE CITY OF (?HULA VISTA AMENDING CHAPTER 17 OF THE (?HULA VISTA MUNI(?IPAL (?ODE TO REPEAL SE(?TION 17.30 RELATING TO INTERIM COASTAL SAGE SCRUB HABITAT LOSS PERMIT PROCESS AND IN ITS PLACE ADD THE OTAY RAN(?H GRAZING FOR IMPLEMENTATION OF THE MS(?P SUBAREA PLAN WHEREAS, as lead agencies for the Multiple Species Conservation Program ("MSCP") Subregional Plan, the U.S. Fish and Wildlife Service and the City of San Diego prepared and certified a Final Environmental Impact Report/Environmental Impact Statement for the Issuance of Take Authorizations for Threatened and Endangered Species due to urban growth within the Multiple Species Conservation Program ("MSCP") planning area ("Final EIR/EIS") in January, 1997 and adopted the Final MSCP Subregional Plan in August, 1998; and WHEREAS, as a responsible agency, the City of Chula Vista ("City") participated in the preparation of the Final EIR/EIS through consultation and comment; and WHEREAS, the MSCP Subregional Plan contemplated that local jurisdictions including the City of Chula Vista would participate in the MSCP Subregional Plan and seek federal and state take authorization by adopting a subarea plan consistent with the conservation strategies contained in the MSCP Subregional Plan; and WHEREAS, the City prepared and submitted a Draft MSCP Subarea Plan to the U.S. Fish and Wildlife Service and the City of San Diego in August, 1996, for inclusion in the Draft MSCP Subregional Plan and for consideration by the lead agencies in their environmental review of the Draft MSCP Subregional Plan; and WHEREAS, after the adoption of the MSCP Subregional Plan, the City, and the U.S. Fish and Wildlife Service and the California Department of Fish and Game (hereinafier referred to as the "Wildlife Agencies") further negotiated a number of aspects of the 1996 Draft Subarea Plan, including but not limited to, the refinement of the conditions of coverage for covered projects, the type and extent of protection for narrow endemic species, the amount and type of public facilities and infrastructure to be allowed in the Preserve, and an acceptable configuration for the university site adjacent to the Preserve; and WHEREAS, following a review by the Wildlife Agencies and public comment period, the City issued a draft MSCP Subarea Plan dated September 11, 2000, and a Draft Implementing Agreement dated September 20, 2000, to the Wildlife Agencies and the general public; and WHEREAS, on September 22, 2000, the City submitted to the U.S. Fish and Wildlife Service an application for a Section 10(a)(1)(B) permit for incidental take pursuant to the U.S. Endangered Species Act of 1973, as amended, and submitted to the California Department of Fish and Game an application for a take authorization permit pursuant to Section 2835 of the California Endangered Species Act, with both applications including the Draft MSCP Subarea Plan dated September 11, 2000, and a Draft Implementing Agreement dated September 20, 2000; and WHEREAS, the Planning Commission and the City Council set the time and place for a joint hearing on said project and notice of said hearing, together with its purpose, was given by its publication in a newspaper of general circulation in the City at least 10 days prior to the hearing; and WHEREAS, the hearing was held at the time and place as advertised on October 17, 2000, in the Council Chambers, 276 Fourth Avenue, before the Planning Commission and City Council; and WHEREAS, approval of the MSCP Subregional Plan and adoption of the Chula Vista MSCP Subarea Plan dated September 11, 2000 were discretionary actions covered by the Final EIR/EIS, and therefore, as a responsible agency, the City had a more limited role than does a lead agency under the California Environmental Quality Act ("CEQA"); and WHEREAS, the City prepared an Addendum dated September 11, 2000, pursuant to CEQA Guidelines section 15164 to fulfill the City's obligations as a responsible agency; and WHEREAS, the City issued Findings of Fact for each of the significant environmental effects of implementing the Chula Vista MSCP Subarea Plan, dated September 11, 2000, in conformance with the CEQA and the CEQA Guidelines, which enabled the City to make full use of the Final EIR/EIS and the Addendum (CEQA Guidelines, sections 15101, 15093 and 15096, subd. (h)); and WHEREAS, the City considered the Final EIR/EIS prepared by the lead agency together with the Chula Vista MSCP Subarea Plan dated September 11, 2000 and the Draft Implementing Agreement dated September 20, 2000, and reached its own conclusion about whether and how to approve the MSCP Subregional Plan and the Chula Vista MSCP Subarea Plan dated September 11,2000; and WHEREAS, the City also prepared an MSCP Mitigation and Implementing Agreement Monitoring Program For Biological Resoumes dated October 12, 2000, in compliance with Public Resources Code section 21081.6, subd. (a)(1); and WHEREAS, the City Council reviewed and considered the Final EIR/EIS prepared and certified by the U.S. Fish and Wildlife Service and the City of San Diego in January, 1997, the Addendum to the Final EIR/E1S (October 2000), the Findings of Fact and Statement of Overriding Considerations, and the MSCP Mitigation and Implementing Agreement Monitoring Program for Biological Resources (October 2000) and found that the documents were prepared in accordance with the requirements of CEQA, the CEQA Guidelines, and the Environmental Review Procedures of the City of Chula Vista, and also found that the Final EIR/EIS (January 1997) and Addendum to the Final EIR/EIS adequately addressed the environmental impacts of the MSCP Subregional Plan and the Draft Chula Vista MSCP Subarea Plan, dated September 11,2000; and WHEREAS, on October 17, 2000, the City Council approved the MSCP Subregional Plan dated August, 1998, as the framework plan for the Chula Vista MSCP Subarea Plan; conditionally adopted the MSCP Subarea Plan, dated September 11, 2000, and the Mitigation and Implementing Agreement Monitoring Program for Biological Resources dated October, 2000; and WHEREAS, subsequent to the City Council conditional approval on October 17, 2000, the City decided to make further changes to the Draft MSCP Subarea Plan, dated September 11, 2000, based on additional information not previously available about the Quino checkerspot butterfly, a federally listed endangered species. The City believed it was prudent to add coverage for the Quino checkerspot butterfly into the draft MSCP Subarea Plan prior to the Subarea Plan and associated implementing documents being published in the Federal Register; and WHEREAS, since October 2000, changes to the Draft MSCP Subarea Plan have been made as necessary to complete a final Draft MSCP Subarea Plan, including 1) measures to provide coverage for the Quino checkerspot butterfly; 2) the preparation of three implementing ordinances; 3) final revisions to the Implementing Agreement, 4) conservation of additional lands not previously anticipated to be preserved, including lands within the approved Rolling Hills Ranch subdivision; and 4) other revisions to address unresolved issues related to changed circumstances, wetlands, and funding for long term management; and WHEREAS, the City has prepared a Supplemental Environmental Impact Report and Environmental Assessment (No. 03-01) to address all of the changes to the revised final Draft MSCP Subarea Plan; and WHEREAS, on October 8, 2002, the City submitted a revised application to the Wildlife Agencies for a Section 10(a)(1)(B) permit for incidental take pursuant to the U.S. Endangered Species Act of 1973, as amended, and submitted to the California Department of Fish and Game an application for a take authorization permit pursuant to Section 2835 of the California Endangered Species Act, with all of the required application materials including the Draft Supplemental EIR and EA, Draft MSCP Subarea Plan, and the revised Draft Implementing Agreement, and Draft Implementing Ordinances (referred to herein collectively as "implementing documents"). WHEREAS, on October 10, 2002 a Federal Register notice was published commencing a 60-day public comment period on the Incidental Take Applications, Public Review Draft MSCP Subarea Plan, dated October 2002, implementing agreement and implementing ordinances and associated environmental documents. A public notice was also published on October 11, 2002 announcing the availability of the Draft SEIR and EA to meet the requirements of the California Environmental Quality Act; and WHEREAS, public review of the Draft MSCP Subarea Plan and implementing documents closed on December 9, 2002. The City received 12 letters of comment from the public and has prepared responses to the comments and made changes to the Public Review Draft MSCP Subarea Plan, dated October 2002 and implementing documents, and has prepared a final City of Chula Vista MSCP Subarea Plan, dated February 2003, and Draft Implementing Agreement, dated February 2003; and WHEREAS, the Planning Commission set the time and place for a public hearing on said project and notice of said hearing, together with its purpose, was given by its publication in a newspaper of general circulation in the City at least 10 days prior to the hearing; and WHEREAS, the hearing was held at the time and place as advertised on April 23, 2003 in the Council Chambers, 276 Fourth Avenue, before the Planning Commission; WHEREAS, the Planning Commission recommended to the City Council the approval of the MSCP Subarea Plan and associated implementing documents; and WHEREAS, the City Council set the time and place for a public hearing on said project and notice of said hearing, together with its purpose, ,,vas given by its publication in a newspaper of general circulation in the City at least 10 days prior to the hearing; and WHEREAS, the hearing was held at the time and place as advertised on May 13, 2003 in the Council Chambers, 276 Fourth Avenue, before the City Council; and WHEREAS, the conditional adoption of the Chula Vista MSCP Subarea Plan, dated February 2003 and associated implementing ordinances will not constitute a binding set of obligations on any public or private entity within the City of Chula Vista unless and until 1) the U.S. Fish and Wildlife Service issues a biological opinion which affirms and is consistent with the Chula Vista MSCP Subarea Plan, dated February 2003 and the Draft Implementing Agreement, dated February 2003, 2) take permits and its conditions are issued by both Wildlife Agencies that are consistent with the Chula Vista MSCP Subarea Plan and Draft Implementing Agreement dated February 2003, and 3) the City and Wildlife Agencies approves and executes the Implementing Agreement substantially in the form of the Implementing Agreement dated February 2003; and WHEREAS, the City Council considered the Supplemental EIR and EA at its hearing of may 13, 2003 and adopted the Chula Vista MSCP Subarea Plan (dated February 2003) with said conditions; and WHEREAS, implementation of the MSCP Subarea Plan adoption of three MSCP Implementing Ordinances, including the Otay Ranch Grazing Ordinance. This ordinance will only take effect after issuance of the take permits and the necessary timelines for ordinances pursuant to the City Charter have passed. NOW, THEREFORE, the City Council of the City of Chula Vista does hereby ordain as ibllows: Section I. That Chapter 17 of the Chula Vista Municipal Code be and the same is hereby amended by repealing Section 17.30 Interim Coastal Sage Scrub Habitat Loss Permit Process and in its place add Section 17.30 to read as follows: Sec. 17.30 OTAY RANCH GRAZING Sections: 17.30.010 Purpose and Intent 17.30.020 General Authorization 17.30.030 Definitions 17.30.040 General Application of Chapter 17.30.050 General Regulations 17.30.060 Violations 17.30.010 Purpose and Intent The purpose of these regulations is to implement the Otay Ranch General Development Plan and Resource Management Plan within the City of Chula Vista. Specifically, these regulations implement the preserve management goals and recommendations for the Otay River Valley Management Area of the Range Management Plan (Appendix F7 of the Otay Ranch Phase 2 Resource Management Plan). 17.30.020 General Authorization As a participating jurisdiction in the MSCP Subregional Planning effort, the City of Chula Vista is promulgating these regulations to implement the Chula Vista MSCP Subarea Plan as a condition of receiving an incidental take permit to be issued to the City pursuant to Section 10(a)(1)(B) of the Federal Endangered Species Act and take authorization to be issued to the City pursuant to Section 2835 of the California Fish and Game Code. 17.30.030 Definitions 100% Conservation Area - Lands within the City of Chula Vista for which hard-line Preserve boundaries have been established and where the conserved portion will be managed for its biological resources. These areas are shown on Figure 1-2 of the Chula Vista MSCP Subarea Plan, as adopted on , and as may be amended from time to time. Ota¥ Ranch Preserve - The land mapped as "resource preserve" in the Otay Ranch General Development Plan and the 11,375-acre habitat conservation area established by the Otay Ranch Phase 1 Resource Management Plan. Pasture - Defined areas used for grazing, demarcated by fences and gates that allow for control of grazing patterns. Preserve Areas within the City of Chula Vista incorporated limits which have been dedicated and accepted by the City for permanent MSCP conservation and which will be managed for their biological resources. 17.30.040 General Application of Chapter It is unlawful to conduct grazing activities in the City of Chula Vista on land designated by the Otay Ranch General Development Plan as Otay Ranch Preserve, except as provided for by this chapter. 17.30.050 General Regulations The following General Regulations shall apply to all land designated by the Otay Ranch General Development Plan as Otay Ranch Preserve and as 100% Conservation Area in the Chula Vista MSCP Subarea Plan, as adopted on , and as may be amended from time to tinre: A. Existing grazing uses shall be permitted to continue in compliance with all applicable regulations, only where the uses have occurred continuously within previous years; and B. No increase in irrigation shall be allowed, except for temporary irrigation that may be installed as part of restoration plans; and C. Grazing by sheep and goats shall not be allowed; and D. Any existing or future fencing and gating installed for range management purposes shall be maintained and kept in good repair; and E. Grazing of cattle in pastures 6 (Horse), 10a, 10b, 10c (River Valley West), 1 la, llb, llc (River Valley East), 12a, 12b, and 12c (O'Neal), as set forth in Exhibit 4 of the Otay Ranch Range Management Plan, shall be prohibited from January 1 through August 31, annually; and F. Grazing of cattle in pastures 12 (O'Neal) and 15 (Salt Creek), as set forth in Exhibit 4 of the Otay Ranch Range Management Plan, shall be prohibited during the breeding season of the California gnatcatcher from February 15 through August 15, annually; and G. In areas designated for restoration, grazing shall be removed for a period of time prior to initiation of restoration activities to facilitate soil preparation and exotic plant control. 17.30.060 Violations The provisions of this chapter shall be enforced pursuant to the provisions of Chapters 1.20 through 1.41 of the Chula Vista Municipal Code. Section 11. Adoption of this ordinance (second reading) is conditioned upon and shall not occur unless and until the issuance of Take Authorizations from the USFWS and CDFG to the City of Chula Vista has occurred in a form acceptable to the City. Section Ill. This ordinance shall take effect and be in force on the thirtieth day from and after the adoption of the ordinance (second reading) which shall occur as stated above. Presented by Approved as to form by Robert A. Leiter Ann Moore Planning and Building Director City Attorney ORDINANCE NO. AN ORDINANCE OF THE CITY OF CHULA VISTA AMENDING CHAPTER 17 OF THE CHULA VISTA MUNICIPAL CODE TO ADD SECTION 17.35 RELATING TO HABITAT LOSS AND INCIDENTAL TAKE FOR IMPLEMENTATION OF THE MSCP SUBAREA PLAN WHEREAS, as lead agencies for the Multiple Species Conservation Program ("MSCP") Subregional Plan, the U.S. Fish and Wildlife Service and the City of San Diego prepared and certified a Final Environmental Impact Report/Environmental impact Statement for the Issuance of Take Authorizations for Threatened and Endangered Species due to urban growth within the Multiple Species Conservation Program ("MSCP") planning area ("Final EIR/EIS") in January, 1997 and adopted the Final MSCP Subregional Plan in August, 1998; and WHEREAS, as a responsible agency, the City of Chula Vista ("City") participated in the preparation of the Final EIR/EIS through consultation and comment; and WHEREAS, the MSCP Subregional Plan contemplated that local jurisdictions including the City of Chula Vista would participate in the MSCP Subregional Plan and seek federal and state take authorization by adopting a subarea plan consistent with the conservation strategies contained in the MSCP Subregional Plan; and WHEREAS, the City prepared and submitted a Draft MSCP Subarea Plan to the U.S. Fish and Wildlife Service and the City of San Diego in August, 1996, for inclusion in the Draft MSCP Subregional Plan and for consideration by the lead agencies in their enviromnental review of the Draft MSCP Subregional Plan; and WHEREAS, after the adoption of the MSCP Subregional Plan, the City, and the U.S. Fish and Wildlife Service and the California Department of Fish and Game (hereinafter referred to as the "Wildlife Agencies") further negotiated a number of aspects of the 1996 Draft Subarea Plan, including but not limited to, the refinement of the conditions of coverage for covered projects, the type and extent of protection for narrow endemic species, the amount and type of public facilities and infrastructure to be allowed in the Preserve, and an acceptable configuration for the university site adjacent to the Preserve; and WHEREAS, following a review by the Wildlife Agencies and public comment period, the City issued a draft MSCP Subarea Plan dated September 11, 2000, and a Draft Implementing Agreement dated September 20, 2000, to the Wildlife Agencies and the general public; and WHEREAS, on September 22, 2000, the City submitted to the U.S. Fish and Wildlife Service an application for a Section 10(a)(1)(B) permit for incidental take pursuant to the U.S. Endangered Species Act of 1973, as amended, and submitted to the California Department of Fish and Game an application for a take authorization permit pursuant to Section 2835 of the California Endangered Species Act, ~vith both applications including the Draft MSCP Subarea Plan dated September 11, 2000, and a Draft Implementing Agreement dated September 20, 2000; and WHEREAS, the Planning Commission and the City Council set the time and place for a joint hearing on said project and notice of said hearing, together with its purpose, was given by its publication in a newspaper of general circulation in the City at least 10 days prior to the hearing; and WHEREAS, the hearing was held at the time and place as advertised on October 17, 2000, in the Council Chambers, 276 Fourth Avenue, before the Planning Commission and City Council; and WHEREAS, approval of the MSCP Subregional Plan and adoption of the Chula Vista MSCP Subarea Plan dated September 11, 2000 were discretionary actions covered by the Final EIR/EIS, and therefore, as a responsible agency, the City had a more limited role than does a lead agency under the California Environmental Quality Act ("CEQA"); and WHEREAS, the City prepared an Addendum dated September 11, 2000, pursuant to CEQA Guidelines section 15164 to fulfill the City's obligations as a responsible agency; and WHEREAS, the City issued Findings of Fact for each of the significant environmental effects of implementing the Chula Vista MSCP Subarea Plan, dated September 11, 2000, in conformance with the CEQA and the CEQA Guidelines, which enabled the City to make full use of the Final EIR/EIS and the Addendum (CEQA Guidelines, sections 15101, 15093 and 15096, subd. (h)); and WHEREAS, the City considered the Final EIR/EIS prepared by the lead agency together with the Chula Vista MSCP Subarea Plan dated September 11, 2000 and the Draft Implementing Agreement dated September 20, 2000, and reached its own conclusion about whether and how to approve the MSCP Subregional Plan and the Chula Vista MSCP Subarea Plan dated September I 1, 2000; and WHEREAS, the City also prepared an MSCP Mitigation and Implementing Agreement Monitoring Program For Biological Resources dated October 12, 2000, in compliance with Public Resources Code section 21081.6, subd. (a)(1); and WHEREAS, the City Council reviewed and considered the Final EIR/EIS prepared and certified by the U.S. Fish and Wildlife Service and the City of San Diego in January, 1997, the Addendum to the Final EIR/EIS (October 2000), the Findings of Fact and Statement of Overriding Considerations, and the MSCP Mitigation and Implementing Agreement Monitoring Program for Biological Resources (October 2000) and found that the documents were prepared in accordance with the requirements of CEQA, the CEQA Guidelines, and the Environmental Review Procedures of the City of Chula Vista, and also found that the Final EIR/EIS (January 1997) and Addendum to the Final EIR/EIS adequately addressed the environmental impacts of the MSCP Subregional Plan and the Draft Chula Vista MSCP Subarea Plan, dated September 11, 2000; and WHEREAS, on October 17, 2000, the City Council approved the MSCP Subregional Plan dated August, 1998, as the framework plan for the Chula Vista MSCP Subarea Plan; conditionally adopted the MSCP Subarea Plan, dated September 11, 2000, and the Mitigation and Implementing Agreement Monitoring Program for Biological Resources dated October, 2000; and WHEREAS, subsequent to the City Council conditional approval on October 17, 2000, the City decided to make further changes to the Draft MSCP Subarea Plan, dated September 11, 2000, based on additional information not previously available about the Quino checkerspot butterfly, a federally listed endangered species. The City believed it was prudent to add coverage for the Quino checkerspot butterfly into the draft MSCP Subarea Plan prior to the Subarea Plan and associated implementing documents being published in the Federal Register; and WHEREAS, since October 2000, changes to the Draft MSCP Subarea Plan have been made as necessary to complete a final Draft MSCP Subarea Plan, including 1) measures to provide coverage for the Quino checkerspot butterfly; 2) the preparation of three implementing ordinances; 3) final revisions to the Implementing Agreement, 4) conservation of additional lands not previously anticipated to be preserved, including lands ~vithin the approved Rolling Hills Ranch subdivision; and 4) other revisions to address unresolved issues related to changed circumstances, wetlands, and funding for long term management; and WHEREAS, the City has prepared a Supplemental Environmental Impact Report and Environmental Assessment (No. 03-01) to address all of the changes to the revised final Draft MSCP Subarea Plan; and WHEREAS, on October 8, 2002, the City submitted a revised application to the Wildlife Agencies for a Section 10(a)(1)(B) permit for incidental take pursuant to the U.S. Endangered Species Act of 1973, as amended, and submitted to the California Department of Fish and Game an application for a take authorization permit pursuant to Section 2835 of the California Endangered Species Act, with all of the required application materials including the Draft Supplemental EIR and EA, Draft MSCP Subarea Plan, and the revised Draft Implementing Agreement, and Draft Implementing Ordinances (referred to herein collectively as "implementing doculnents"); and WHEREAS, on October 10, 2002 a Federal Register notice was published commencing a 60-day public comment period on the Incidental Take Applications, Public Review Draft MSCP Subarea Plan, dated October 2002, implementing agreement and implementing ordinances and associated environmental documents. A public notice was also published on October 11, 2002 announcing the availability of the Draft SEIR and EA to meet the requirements of the California Environmental Quality Act; and WHEREAS, public review of the Draft MSCP Subarea Plan and implementing documents closed on December 9, 2002. The City received 12 letters of comment from the public and has prepared responses to the comments and made changes to the Public Review Draft MSCP Subarea Plan, dated October 2002 and implementing documents, and has prepared a final City of Chula Vista MSCP Subarea Plan, dated February 2003, and Draft Implementing Agreement, dated February 2003; and WHEREAS, the Planning Commission set the time and place for a public hearing on said project and notice of said hearing, together with its purpose, was given by its publication in a newspaper of general circulation in the City at least 10 days prior to the hearing; and WHEREAS, the hearing was held at the time and place as advertised on April 23, 2003 in the Council Chambers, 276 Fourth Avenue, before the Planning Commission; WHEREAS, the Planning Commission recommended to the City Council the approval of the MSCP Subarea Plan and associated implementing documents; and WHEREAS, the City Council set the time and place for a public hearing on said project and notice of said hearing, together with its purpose, was given by its publication in a newspaper of general circulation in the City at least 10 days prior to the hearing; and WHEREAS, the hearing was held at the time and place as advertised on May 13, 2003 in the Council Chambers, 276 Fourth Avenue, before the City Council; and WHEREAS, the conditional adoption of the Chula Vista MSCP Subarea Plan, dated February 2003 and associated implementing ordinances ~vill not constitute a binding set of obligations on any public or private entity within the City of Chula Vista unless and until 1) the U.S. Fish and Wildlife Service issues a biological opinion which affirms and is consistent with the in the Chula Vista MSCP Subarea Plan, dated February 2003 and the Draft Implementing Agreement, dated February 2003, 2) take permits and its conditions are issued by both Wildlife Agencies that are consistent with the Chula Vista MSCP Subarea Plan and Draft Implementing Agreement dated February 2003, and 3) the City and Wildlife Agencies approves and executes the Implementing Agreement substantially in the form of the Implementing Agreement dated February 2003; and WHEREAS, the City Council considered the Supplemental E1R and EA at its hearing of May 13, 2003 and adopted the Chula Vista MSCP Subarea Plan (dated February 2003) with said conditions; and WHEREAS, implementation of the MSCP Subarea Plan requires adoption of three MSCP Implementing Ordinances, including the Habitat Loss and Incidental Take Ordinance. This ordinance will only take effect after issuance of the take permits and the necessary timelines for ordinances pursuant to the City Charter have passed. NOW, THEREFORE, the City Council of the City of Chula Vista does hereby ordain as follows: Section I. That Chapter 17 of the Chula Vista Municipal Code be and the same is hereby amended by adding Section 17.35 to read as follows: Sec. 17.35 HABITAT LOSS AND INCIDENTAL TAKE Sections: 17.35.010 Purpose and Intent 17.35.020 General Authorization 17.35.030 Definitions 17.35.040 General Application of Chapter 17.35.050 Exemptions 17.35.060 Application for HLIT Permit 17.35.070 Permit Process 17.35.080 Required Findings for Issuance of HLIT Permit 17.35.090 GeneralMSCP Development Regulations 17.35.100 Specific MSCP Development Regulations 17.35.1t0 Mitigation 17.35.120 Biological and Open Space Easement 17.35.130 Deviation from Habitat Loss and Incidental Take Regulations 17.35.140 Emergencies 17.35.150 City Responsibility to Publish Guidelines 17.35.160 Violations and Remedies 17.35.170 Conflicts 17.35.180 Local Coastal Program 17.35.010 Purpose and Intent The purpose of the Habitat Loss and Incidental Take (HLIT) regulations is to protect and conserve native habitat within the City of Chula Vista and the viability of the species supported by those habitats. These regulations are intended to implement the City of Chula Vista Multiple Species Conservation Program (MSCP) Subarea Plan by placing priority on the preservation of biological resources within the planned and protected Preserve. These regulations are intended to assure that development occurs in a manner that protects the overall quality of the habitat resources, encourages a sensitive lbrm of development, and retains biodiversity and interconnected habitats. The habitat-based level of protection achieved through implementation of the MSCP, is intended to meet the conservation obligations of the Covered Species identified therein. These regulations are also intended to protect the public health, safety, and welfare while being consistent with sound resource conservation principles and the rights of private property owners. 17.35.020 General Authorization As a participating jurisdiction in the MSCP Subregional Planning effort, the City of Chula Vista is promulgating these regulations to implement the Chula Vista MSCP Subarea Plan as a condition of receiving an incidental take permit to be issued to the City pursuant to Section 10(a)(1)(B) of the Federal Endangered Species Act and take authorization to be issued to the City pursuant to Section 2835 of the California Fish and Game Code. 17.35.030 Definitions The following words and phrases, when used in this Chapter, shall be construed as defined in this section: 75-100% Conservation Area - Lands for which hard-line Preserve boundaries have not yet been established, but where development or impact is limited to 25% or less of the mapped area and Preserve will total between 75% and 100% of the mapped area and where the conserved portion will be managed for its biological resources. These mapped areas are shown on Figure 1-2 of the Chula Vista MSCP Subarea Plan, as adopted on , and as may be amended from time to time. 100% Conservation Area - Lands within the City of Chula Vista for which hard-line Preserve boundaries have been established and where the conserved portion will be managed for its biological resources. These areas are shown on Figure 1-2 of the Chula Vista MSCP Subarea Plan, as adopted on , and as may be amended from time to time. Agricultural Operations Soil disturbance activity for the preparation or maintenance of a site for the cultivation of crops or other agricultural purposes where the activity has occurred continuously within previous years, in compliance with all applicable regulations, and involves no intensification of the use. Appropriate Managing EntiW The entity that manages any portion of the Preserve, including but not limited to, the City, a third-party under the direct control of the City, or the Otay Ranch Preserve O~vner/Manager. Biological and Open Space Easement - A permanent legal encumbrance to protect biological resources and dedicate land to the Preserve. The biological and open space easement is also referred to as a conservation easement. Biological Functional Equivalency - A modification to a Preserve boundary which results in a Preserve configuration with a biological value that is equal to or higher than the original Preserve configuration. The comparison of biological value is based on the "like or equivalent" exchange concept for biological factors identified in Section 5.4.2 of the MSCP Subregional Plan. Biologist - A person meeting the qualifications as established by the Director of Planning and Building and approved by the same. At a minimum, the person shall have at least a four-year college degree in biology, zoology, botany, wildlife management, or other closely related field, with at least two years experience conducting field investigations in San Diego County. Candidate Species - Those native species or subspecies of bird, mammal, fish, amphibian, reptile, or plant that the Cali~bmia Fish and Game Commission has formally noticed as being under review by CDFG lbr addition to either the list of endangered species or the list of threatened species, or a species for which the Fish and Game Commission has published a notice of proposed regulation to add the species to either list, pursuant to Section 2068 of the California Fish and Game Code. CDFG - California Department of Fish and Game, a subdivision of the State of California charged with administering the California Endangered Species Act and the Natural Community Conservation Planning Act. CEQA The Caliibmia Environmental Quality Act (Cal. Public Resources Code Section 2100 et seq.), including all regulations promulgated pursuant to that Act. Chula Vista Covered Species ]"hose Covered Species which are adequately conserved by the Chula Vista MSCP Subarea Plan, together with other Subarea Plans within the MSCP Subregional Plan Area in effect during the duration of the City's Section 10(a)(I)(B) permit issued by the United States Fish and Wildlife Service (USFWS) and Take Authorization issued by CDFG, and including Species Adequately Conserved. Adequate conservation for certain Chula Vista Covered Species shall include the measures contained in the findings for those species in Table 3-5 of the MSCP Subregional Plan. Clearing The cutting of Natural Vegetation by any means, without disturbance to the soil and root system. Clearing and Grubbing Permit - A permit issued pursuant to this chapter that allows clearing and grubbing that is not in association with other Land Development Work. Covered Project - Those projects within the City of Chula Vista or annexed into the City in which hard-line Preserve boundaries have been established pursuant to the approved Chula Vista MSCP Subarea Plan and where conservation in those designated areas shall be consistent with the MSCP Subregional Plan and Chula Vista MSCP Subarea Plan and have or will be specified as binding conditions of approval in such projects' plans and approvals. Covered projects are identified on Table 5-I of the Chula Vista MSCP Subarea Plan, as adopted on , and as may be amended from time to time. Covered Species - Those species within the MSCP Subregional Plan which will be adequately conserved by the MSCP when the MSCP is implemented through the Subarea Plans, and includes Species Adequately Conserved and Chula Vista Covered Species. Development - The uses to which land shall be put, including construction of buildings and structures and all alterations of the land incidental thereto, excluding Agricultural Operations. Development Areas Mapped areas planned lbr development pursuant to the Chula Vista MSCP Subarea Plan and within which the take of Chula Vista Covered Species is authorized by the Section 10(a)(l)(B) Incidental Fake Permit and Section 2835 Permit. These mapped areas are shown on Figure 1-2 of the Chula Vista MSCP Subarea Plan, as adopted on _, and as may be amended from time to time. Endangered Species - A species listed as "endangered" under the Federal Endangered Species Act or the California Endangered Species Act. Future Facilities Facilities that are necessary to support City services or planned development in the future and are not specifically listed in the Chula Vista MSCP Subarea Plan as a Planned Facility. Gradin~ - Any excavating or filling or combination thereof and shall include the land in its excavated or filled condition. Grubbing The removal of NaturaI Vegetation by any means, including removal of the root system. Land Development Permit - A permit issued pursuant to the Chula Vista Municipal Code Chapter 15.04. Listed Non-Covered Species - A species listed as threatened or endangered under the Federal E.S.A or California Endangered Species Act, but for which a Section 10(a)(1)(B) Incidental Take Permit or a Section 2835 Take Authorization has not been granted pursuant to the Chula Vista MSCP Subarea Plan. MSCP Implementation Guidelines - Guidelines formulated by the City of Chula Vista to aid in the interpretation and facilitate implementation of the Chula Vista MSCP Subarea Plan and HLIT Ordinance. These Guidelines are complementary to the Chula Vista MSCP Subarea Plan and HLIT Ordinance and do not include new substantive information or requirements. MSCP Subregional Plan The Multiple Species Conservation Program Plan, dated August I998, which addresses multiple species habitat needs and the preservation of native vegetation for a 900- square mile area in southwestern San Diego County, California. MSCP Subregional Plan Area Consists of approximately 900 square miles in Southwestern San Diego County, California, referred to in the MSCP Subregional Plan as the "MSCP Subregional Plan Study Area." Narrow Endemic Species - Species that are highly restricted by their habitat affinities or other ecological factors. These species are listed in Table 5-4 of the Chula Vista MSCP Subarea Plan, as adopted on , and as may be amended from time to time. Natural Vegetation - Vegetation identified as Tier I, II or III on Table 5-3 of the Chula Vista MSCP Subarea Plan, as adopted on , and as may be amended from time to time. NCCP Act - The California Natural Community Conservation Planning Act of 1991, as amended (California Fish and Game Code Section 2800 et seq.), including all regulations promulgated pursuant to the Act. Amendments to the NCCP Act enacted effective January 1, 2003 (Chapter 4, sections 1 and 2 of California statutes 2002 (S.B. 107)) expressly provide that the Chula Vista Subarea Plan ~vill be solely governed in accordance with the NCCP Act as it read on December 31, 2001, and not by the substantive provisions of S.B. 107. Participating Local Jurisdiction Any of the 12 local governments within the MSCP Study Area that may prepare a MSCP Subarea Plan and receive a Section 10(a)(1)(B) permit from the USFWS and Section 2835 Permit f~om the CDFG. Planned Facilities Facilities that have been specifically identified by the City of Chula Vista to serve development approved by the City and specified in Table 6-1 of the Chula Vista MSCP Subarea Plan, as adopted on , and as may be amended from time to time. Preserve Areas within the City of (;hula Vista incorporated limits which have been dedicated and accepted by the City for permanent MSCP conservation and which will be managed for their biological resources. Project Area - An area considered tbr development and shall include the entire contiguous land under the same ownership or like property interest, or in the case of development proposed by a public agency, the area required for development as determined by the Director of Planning and Building. Section 10(a)(1)(B) Permit - The permit issued by the USFWS to the City of Chula Vista under Section 10(a)(1)(B) of the Federal Endangered Species Act (16 U.S.C 1539 (a)(1)(B)) to allow the Incidental Take of Species Adequately Conserved and/or Chula Vista Covered Species, as identified in the Chula Vista MSCP Subarea Plan, as adopted on , and as may be amended from time to time, to the extent Take of such species is otherwise prohibited under Section 9 of the Act. The Take of listed plant species is not prohibited under the ESA or authorized under the Section 10(a)(1)(B) permit. However, plant species adequately conserved by the Chula Vista Subarea Plan, or by the Chula Vista Subarea Plan in conjunction with other approved MSCP Subarea Plans, are listed in the 10(a)(1)(B) permit in recognition of the conservation measures and benefits provided for them under the approved Subarea Plans. Such plant species receive assurances pursuant to the USFWS "No Surprises" Rule. Section 2835 Permit - A permit issued by the CDFG to the City of Chula Vista under Section 2835 of the California NCCP Act to authorize the 'Fake of Species Adequately Conserved and/or Chula Vista Covered Species, as identified in the Chula Vista MSCP Subarea Plan, as adopted on , and as may be amended from time to time. Sensitive Biological Resources Lands that contain Natural Vegetation and/or Wetlands; and/or habitat occupied by Covered Species, other Listed Non-Covered Species, and/or Narrow Endemic Species. Species Adequately Conserved Those species for which the Chula Vista MSCP Subarea Plan provides substantial conservation and for which the City of Chula Vista shall receive Take Authorization regardless of the participation or continued participation of any other Participating Local Jurisdiction. Take Authorization Permit authority granted through a Section 10(a)(1)(B) permit pursuant to the ESA and/or the Section 2835 permit pursuant to the NCCP Act. Temporary Impacts Anticipated impacts that result during the course of construction but are not part of the permanent developed condition of a Project Area. Threatened Species- A species listed as "threatened" under the ESA or CESA. USFWS United States Fish and Wildlife Service, an agency of the United States Department of Interior, charged with administering the Federal Endangered Species Act. Wetlands Wetlands are generally defined as those areas that are inundated or saturated by surface or ground water at a frequency or duration sufficient to support a prevalence of vegetation typically adapted for life in saturated soil conditions. For purposes of the Chula Vista MSCP Subarea Plan, Wetlands are those lands which contain naturally occurring wetland communities listed on Table 5-6 of the Chula Vista MSCP Subarea Plan and further described in Appendix B of the Chula Vista MSCP Subarea Plan. Wetlands also include areas lacking wetland communities due to non-permitted filling of previously existing Wetlands. Wildlife Agencies - The USFWS and the CDFG. 17.35.040 General Application of Chapter A. In conjunction with the earliest decision on any entitlement related to a Project Area after (the effective date of the ordinance), such as Sectional Planning Area (SPA) Plan approval, Design Review approval, conditional use permit, variance, parcel map approval, tentative map approval, Land Development Perm/t, or Clearing or Grubbing permit the applicant shall obtain a HLIT Permit in the following mapped areas identified in the Chula Vista MSCP Subarea Plan, unless exempt pursuant to Section 17.35.050 of this Chapter: 1. 100% Conservation Areas; 2. 75-100% Conservation Areas; and 3. Development Areas outside of Covered Projects B. It is unlawful to begin development on lands in mapped 100% Conservation Areas, 75-100% Conservation Areas, and Development Areas outside of Covered Projects without submitting required documentation and obtaining a HLIT permit (including CEQA compliance), or obtaining an exemption as required pursuant to this Chapter. If unlawful development occurs on such lands and an enforcement action has been commenced by the City, no development permit application may be processed until the enforcement action has been concluded. Enforcement action may include penalties assessed for unpermitted clearing and grubbing and could include increased replacement mitigation ratios. 17.35.050 Exemptions A. The fbllowing are exempt from the requirements of this Chapter: 1. Development of a Project Area that is one acre or less in size and located entirely in a mapped Development Area outside of Covered Projects. 2. Development of a Project Area which is located entirely within the mapped Development Area outside Covered Projects, and where it has been demonstrated to the satisfaction of the Director of Planning and Building, or his/her designee, that no Sensitive Biological Resources exist on the Project Area. 3. Development that is limited to interior modifications or repairs and any exterior repairs, alterations or maintenance that does not increase the footprint of an existing building or accessory structure, that will not encroach into identified Sensitive Biological Resources during or after construction. 4. Any project within the Development Area of a Covered Project. 5. Any project that has an effective incidental take permit from the Wildlife Agencies. 6. Continuance of Agricultural Operations. 17.35.060 Application for HLIT Permit The following are submittal requirements fbr projects that are not exempt from this Chapter: A. General Submittal Requirements The following are general submittal requirements for all HLIT Permits: 1. Submit a completed application form to the City of Chula Vista Planning and Building Department - Planning Division: 2. Provide copies of a biological survey for the entire Project Area that is consistent with the MSCP Implementation Guidelines and prepared by a Biologist. If the biological surveys are conducted outside the acceptable time of year for identifying covered Narrow Endemic Species, but the Biologist identifies indicators that Narrow Endemic Species could be present in the Project Area, then surveys for Narrow Endemic Species must be conducted during the acceptable time of year in accordance with the MSCP Implementation Guidelines and must be conducted prior to consideration of issuance of an HLIT Permit by the City. The HLIT Permit application will be held in abeyance until the applicant submits subsequent surveys for Narrow Endemic Species conducted during the acceptable time of year. 3. For Project Areas located in 100% Conservation Areas, 75-100% Conservation Areas, Development Areas outside of Covered Projects with indicators or the presence of Narrow Endemic Species or Wetlands, or as otherwise deemed necessary by the biological survey as determined by the Director of Planning and Building, or his/her designee, the applicant /;/-.,,' :'z-' shall prepare and submit an Opportunities and Constraints Analysis to evaluate the proposed development and its relationship to the Sensitive Biological Resources. The opportunities and constraints identified shall be used to determine the portions of the Project Area that are most suitable for development and those that should be conserved for biological purposes. The Opportunities and Constraints Analysis shall include: a. Written evaluation of such factors as biological resources, Sensitive Biological Resources, historical resources, visual resources, public facilities needs, public safety issues, conserved Sensitive Biological Resources on adjacent lands, and adjacent land uses; b. For Project Areas in 75-100% Conservation Areas, written description of how the proposed project has been limited to the least environmentally sensitive portions of the mapped 75-100% Conservation Area within the Project Area in accordance with the MSCP Implementation Guidelines; c. For Project Areas containing the siting of proposed Planned or Future Facilities in 100% Conservation Areas and 75-100% Conservation Areas, a written analysis that demonstrates to the satisfaction of the decision maker that the facilities siting criteria in Section 17.35.100.A.4.c have been met. d. Map of the Project Area at a suitable scale, which includes and clearly delineates, to the satisfaction of the Director of Planning and Building, the following information: (1) Identification of Sensitive Biological Resources; (2) Limits of proposed development, including areas to be impacted on a temporary basis, if Sensitive Biological Resources are avoided; (3) Limits of the proposed development, including areas to be impacted on a temporary basis, if Sensitive Biological Resources are impacted; and (4) Limits of any mitigation area(s) proposed within the Project Area. e. Written description of proposed mitigation, including: (1) How biological values of the mitigation area are equal to or greater than the impacted area; (2) Biological and Open Space Easement or other legal method proposed to ensure permanent conservation of the land for biological purposes; (3) Long-term methods to ensure protection and management of the habitats and Covered Species, which may include but not be limited to funding; and (4) Long-term biological viability of the proposed mitigation if it is not within or immediately adjacent to a 100% Conservation Area. 4. Any other requirements deemed necessary by the Director of Planning and Building for consideration of the proposed HLIT Permit application. 5. Payment of applicable fees and/or deposits in accordance with the City's Master Fee Schedule. B. Additional Submittal Requirements for Project Areas that Contain any Covered Narrow Endemic Species 1. In addition to the submittal requirements listed in Section 17.35.060 (A), the following written information shall be provided by the applicant when the biological survey identifies any Narrow Endemic Species ~vithin the Project Area: a. A graphic depiction of all covered Narrow Endemic Species located in the Project Area: b. A written biological description of the status of the covered Narrow Endemic Species; c. Quantification of both preservation of Narrow Endemic Species and impacts to Narrow Endemic Species associated with the project including direct and indirect effects on an area and individual plant basis; d. Written report of the feasibility or infeasibility of total avoidance of Narrow Endemic Species' population(s); e. Written description of project design features that reduce indirect effects such as edge treatments, landscaping, elevation differences, minimization and/or compensation through restoration or enhancement; f. Any other requirements deemed necessary by the Director of Planning and Building for consideration of the proposed HLIT Permit application. 2. When the applicant proposes to impact any Narrow Endemic Species population within the Project Area in excess of the 5% threshold in 100% Conservation Areas, as identified in Section 5.2.3.4 of the Chula Vista MSCP Subarea Plan, and the 20% threshold in 75- 100% Conservation Areas and Development Areas outside of Covered Projects, as identified in Section 5.2.3.5 and 5.2.3.3, respectively, of the Chula Vista MSCP Subarea Plan, the applicant shall submit a written analysis that demonstrates the project would result in an overall Preserve design and configuration biologically superior to that ~vhich would occur under a project alternative within the 5% or 20% threshold. The applicant shall submit to the City a written analysis addressing the following factors that demonstrates to the satisthction of the City the proposed project is the biologically superior alternative: Effects on conserved habitats: b. Effects on Covered Species; c. Effects on habitat linkages and function of Preserve areas; d. Effects on Preserve configuration and management; e. Effects on ecotones or other conditions affecting species diversity; and /7' .22 9 f. Effects on Listed Non-Covered Species or other species of concern not covered by the Chula Vista MSCP Subarea Plan. C. Additional Submittal Requirements for Project Areas that Contain Wetlands 1. In addition to the submittal requirements listed in Section 17.35.060 (A) and (B), as applicable, the tbllowing written information shall be provided by the applicant when the biological survey identifies Wetlands within the Project Area: a. A graphic depiction of all Wetlands located in the Project Area; b. A ~vritten biological description of the status of the Wetlands; c. Quantification of proposed impacts to Wetlands associated with the project; d. Written analysis of the inability to avoid impacts to Wetlands; e. Written description of project design features that minimize impacts to Wetlands; Any other requirements deemed necessary by the Director of Planning and Building for consideration of the proposed HLIT Permit application. 17.35.070 Permit Process The HLiT Permit shall be acted upon in one of the following manners: A. When an applicant applies for more than one permit, map, or other approval for a single development, the applications shall be consolidated for processing and shall be reviewed by a single decision maker. The decision maker shall act on the consolidated application at the highest level of authority for that development. The findings required for approval of each permit shall be considered individually, consistent with Section 17.35.080 of this Chapter. B. The HLIT Permit may be approved, approved with conditions, or denied by the Director of Planning and Building, or his/her designee without a public hearing in accordance with Section 19.14.030 of the Chula Vista Municipal Code, in the following circumstances: 1. Any Planned Facility project listed in Table 6-I of the Chula Vista MSCP Subarea Plan that only impacts Natural Vegetation and does not impact habitat occupied by Covered Species, Listed Non-Covered Species, Narrow Endemic Species, or Wetlands. 2. Any Future Facility project listed in Table 6-2 of the Chula Vista MSCP Subarea Plan associated with a Covered Project that only impacts Natural Vegetation and does not impact habitat occupied by Covered Species, Listed Non-Covered Species, Narrow Endemic Species or Wetlands. C. For all other HLIT Permit applications, the Director of Planning and Building, and or his/her designee, may approve, conditionally approve, or deny such permit at a public hearing noticed in accordance with Section 19.14.180 of the Chula Vista Municipal Code. The Director of Planning and Building decision may be appealed to the City Council in accordance with Sections 19.14.110 and 19.14.130 of the Chula Vista Municipal Code. 17.35.080 Required Findings for Issuance of an HLIT Permit A. In order to approve or conditionally approve a HLIT Permit, all of the following written findings shall be made by the decision-maker: 1. The proposed development in the Project Area and associated mitigation is consistent with the Chula Vista MSCP Subarea Plan, as adopted on , and as may be amended from time to time, the MSCP Implementation Guidelines, and the development standards set forth in Section 17.35.100 of this Chapter. 2. The Project Area is physically suitable for the design and siting of the proposed development and the development results in minimum disturbance to Sensitive Biological Resources, except impacts to Natural Vegetation in mapped Development Areas. 3. The nature and extent of mitigation required as a condition of the permit is reasonably related to and calculated to alleviate negative impacts created in the Project Area. B. In order to approve or conditionally approve an HLIT Permit where the Project Area contains Narrow Endemic Species, all of the following additional written findings shall be made by the decision maker: 1. Narrow Endemic Species' populations within the Project Area have been avoided or total avoidance is infeasible. 2. If impacts to Narrow Endemic Species have not been avoided, one of the lbllowing findings shall be made: a. In cases where impacts to covered Narrow Endemic Species' populations within the Project Area have been limited to 5% in 100% Conservation Areas, and 20% in 75-100% Conservation Areas and Development Areas outside of Covered Projects, the proposed project design, including mitigation, will result in conservation of the species that is functionally equivalent to its status without the project, including species numbers and area, and must ensure adequate Preserve design to protect the species in the long-term; or b. In cases where the 5% or 20% Narrow Endemic Species impact threshold has been exceeded, the proposed project design, including mitigation, results in a Preserve design for the Narrow Endemic Species population within the Project Area that is biologically superior to the Preserve design that would occur if the impact had been limited to 5% in 100% Conservation Areas or 20% in 75-100% Conservation Areas and Development Areas outside of Covered Projects. C. In order to approve or conditionally approve an HLIT Permit where the Project Area contains Wetlands, all of the following additional written findings shall be made by the decision maker: 1. Prior to issuance of a Land Development Permit or Clearing and Grubbing Permit, the project proponent will be required to obtain any applicable state and federal permits, with copies provided to the Director of Planning and Building, or his/her designee. 2. Where impacts are proposed to Wetlands the following findings shall be made: a. Impacts to Wetlands have been avoided and/or minimized to the maximum extent practicable, consistent with the City of Chula Vista MSCP Subarea Plan Section 5.2.4; and b. Unavoidable impacts to Wetlands have been mitigated pursuant to Section 17.35.110 of this Chapter. 17.35.090 GeneralMSCP Development Regulations The following development regulations apply to all development proposals in a Project Area that do not qualify for an exemption from this Chapter and are proposed in 100% Conservation Areas, 75-100% Conservation Areas, or Development Areas outside of Covered Projects: A. All development proposals regulated by this Chapter shall be consistent with the Chula Vista MSCP Subarea Plan and MSCP Implementation Guidelines. 1. Overall development within the Project Area, including public facilities and circulation, shall be located to minimize impacts to Sensitive Biological Resources, in accordance with this Chapter, the Chula Vista MSCP Subarea Plan and the MSCP Implementation Guidelines. 2. Pursuant to Chapter 15.04 of the Chula Vista Municipal Code, no Land Development or Clearing and Grubbing Permit which allows clearing, grubbing, or grading of Natural Vegetation shall be issued/hr any portion of a Project Area where impacts are proposed to Wetlands or Listed Non-covered Species until all applicable federal and state permits have been issued. 3. Impacts to Wetlands shall be avoided to the maximum extent practicable. Where impacts to Wetlands are not avoided, impacts shall be minimized and mitigated pursuant to Section 17.35.110 of this Chapter. 4. No temporary disturbance or storage of material or equipment is permitted in Sensitive Biological Resources, unless the disturbance or storage occurs within an area approved by the City for development or unless it can be demonstrated that the disturbance or storage will not cause permanent habitat loss and the land will be revegetated and restored in accordance with the MSCP Implementation Guidelines. 5. Grading during wildlife breeding seasons shall be avoided or modified consistent with the requirements of the Chula Vista MSCP Subarea Plan and in accordance with the MSCP hnplementation Guidelines. 6. All fuel modification (brush management) zones required as a result of new development, and as required by the City of Chula Vista Fire Marshal, shall be located outside the Preserve. 17.35.100 Specific MSCP Land Use and Development Regulations In addition to the General MSCP Development Regulations listed in Section 17.35.090 of this Chapter, the lbllowing specific land use and development regulations shall apply to all land uses and to development proposals in a Project Area that do not qualify for an exemption from this Chapter: A. Land uses and development are permitted within the 100% Conservation Areas consistent with the Chula Vista MSCP Subarea Plan and this Section. If any portion of the Project Area is located ~vithin a 100% Conservation Area, the following regulations shall apply to that portion of the Project Area located within the 100% Conservation Area: 1. Uses Permitted The following uses are permitted in 100% Conservation Areas: a. Access for litter and trash removal, maintenance, repair, and refurbishment; b. Replacement of structures in existing locations; c. Passive recreation such as hiking and bird watching; d. Other recreation such as mountain biking, horse back riding, boating, sun bathing, fishing, and swimming as in accordance with an approved project, an approved area- specific management directive or as determined by the appropriate managing entity; e. Fencing that does not significantly, adversely effect the full functioning of the Preserve, including wildlife movement as approved by the appropriate managing entity; f. Scientific research related to habitat conservation, monitoring and habitat restoration and enhancement activities, subject to approval by the appropriate managing entity; and g. Access for law enforcement agencies, fire control agencies, the National Guard, the Immigration and Naturalization Service (1NS), and Border Patrol; h. Existing uses operating legally at the time take authorization is granted to the City by the Wildlife Agencies until the land has been provided to the City or other entity by an Irrevocable Offer of Dedication or conveyed by easement or fee title to the Preserve, whichever comes first, including: (1) Existing, permitted uses allowed by right in Chapter 19 of the Chula Vista Municipal Code (Zoning Ordinance); (2) Uses deemed to be legal, non-conforming uses pursuant to Chapter 19 of the Chula Vista Municipal Code (Zoning Ordinance); (3) Accessory and conditionally permitted uses pursuant to Chapter 19 of the Chula Vista Municipal Code (Zoning Ordinance); (4) Existing agricultural and [,,razing uses outside of Otay Ranch; (5) Existing agricultural and grazing uses within Otay Ranch in accordance with Chapter 17 of the Chula Vista Municipal Code (Otay Ranch Grazing Ordinance); and (6) Existing mining, extraction and processing facilities consistent with the Chula Vista MSCP Subarea Plan. 2. Conditionally Compatible Uses The following uses are conditionally permitted in 100% Conservation Areas, consistent with the Chula Vista Subarea Plan: a. New Mining Extraction and Processing Facilities; and b. Flood control; and c. Roads and infrastructure; and d. Other Planned Facilities not covered under c above; and e. Other Future Facilities not covered under c above; and f. Otay Valley Regional Park Plan Uses. 3. The following uses are not permitted: a. The following uses shall not be permitted without prior issuance of the appropriate permit f¥om the City: 1. Clearing and/or grubbing of Natural Vegetation, for purposes unrelated to biological enhancement, prior to issuance of a Clearing and Grubbing Permit; 2. Clearing and/or grubbing of Natural Vegetation, for purposes unrelated to biological enhancement, grading, excavation, or placement of soil, rock, sand, gravel or other material prior to issuance of a Land Development Permit; 3. Construction or placement of any building or structure prior to the issuance of a Building Permit; b. Recreational off-highway vehicle use; and c. Storage of materials such as chemicals and equipment; and d. Dispersal ofbiosolids. 4. Development Standards a. Development shall be limited to the maximum extent practicable to achieve project objectives and shall be located on the least environmentally sensitive portions of the Project Area in accordance with the MSCP Implementation Guidelines. Such development shall be designed to avoid impacts to covered species to the maximum extent practicable. Encroachment into more environmentally sensitive areas shall only be authorized to achieve project objectives. b. Development must avoid impacts to covered Narrow Endemic Species to the maximum extent practicable. A list of the covered Narrow Endemic Species is included in the Chula Vista MSCP Subarea Plan and MSCP Implementation Guidelines. Measures for protection of Narrow Endemic Species shall be required such as management, enhancement, restoration and/or transplantation in accordance with the MSCP Implementation Guidelines. (1) Where impacts to a covered Narrow Endemic Species population are demonstrated to be unavoidable, impacts shall be limited to 5% of the total Narrow Endemic Species population within the Project Area, except as provided by Section 17.35.100.A.4.b(2) of this Chapter. Written findings of equivalency must be made by the City in accordance with Section 17.35.080.B of this Chapter. The City will lbrward its written findings of equivalency to the Wildlife Agencies. The Wildlife Agencies may submit to the City, within 30 days of a receipt of mailed notice of written findings from the City, a written finding of non- concurrence on the facts of the City's findings. If such written finding of non- concurrence is made within 30 days of receipt of mailed notice of findings from the City, the City must confer with the Wildlife Agencies to resolve Narrow Endemic Species issues with the proposed development. If the Wildlife Agencies do not respond ~vithin 30 days after receipt of mailed notice, the City shall deem the written findings accepted. (2) If, alter comprehensive consideration of avoidance and minimization measures, impacts exceed 5% of the covered Narrow Endemic Species population within the Project Area, a determination of biologically superior preservation, must be made in accordance with Section 17.35.080.B of this Chapter. The City will forward its ~vritten determination of biologically superior preservation to the Wildlife Agencies for review. The Wildlife Agencies may submit to the City, within 30 days of receipt of mailed notice of findings from the City, a written finding of non-concurrence on the facts of the City's findings. If such written finding of non-concurrence is made within 30 days of receipt of mailed notice of findings from the City, the City must confer with the Wildlife Agencies to resolve Narrow Endemic Species issues with the proposed development. If the Wildlife Agencies do not respond ~vithin 30 days after receipt of mailed notice, the City shall deem the written findings accepted. c. Development of Planned and Future Facilities shall be in accordance with the following siting criteria: (1) Planned and Future Facilities shall be located through developed or developing areas where feasible and shall use existing roads, trails, and disturbed areas to the maximum extent practicable. (2) Planned and Future Facilities shall avoid, to the maximum extent practicable, impacts to Sensitive Biological Resources and Covered Species. Where avoidance of Sensitive Biological Resources and Covered Species has been demonstrated by the applicant to be infeasible, impacts to Sensitive Biological Resources and Covered Species resulting from Planned and Future Facilities shall be minimized and located in the least environmentally sensitive portion of the Project Area in accordance with the MSCP Implementation Guidelines. (3) Planned and Future Facilities shall avoid, to the maximum extent practicable, impacts to Wetlands. If avoidance of Wetlands is not possible, any impacts to Wetlands shall require mitigation in accordance with Section 5.2.4 and Table 5-6 of the Chula Vista MSCP Subarea Plan, as adopted on _, and as may be amended from time to time. (4) Where roads traverse the Preserve, they shall, to the maximum extent practicable, provide for wildlife movement in areas that are graphically depicted on and listed in the MSCP Subregional Plan Generalized Core Biological Resource Areas and Linkages map (see Figure 1- 4 of the Chula Vista MSCP Subarea Plan) as a core biological area or a regional linkage between core biological areas. (5) At wildlife crossings, road bridges for vehicular traffic shall be preferred over box culverts and pipe culverts. Box culverts shall only be used when they can achieve the wildlife movement goals for the specific location. To the maximum extent practicable, wildlife crossings shall be designed as follows: (a) The substrate shall be left in a natural condition and planted with native vegetation if appropriate; (b) A line-of-sight from one end to the other shall be provided; and (c) Low-level illumination shall be installed. (6) To minimize habitat disruption, habitat fragmentation, impediments to wildlife movement, and impacts to breeding areas, roads and/or right-of-way widths shall be narrowed from existing City desi[,m and engineering standards to the maximum extent practicable. d. No single Future Facility project shall permanently impact more than two acres of covered habitat without concurrence from the Wildlife Agencies. Temporary Impacts associated with Future Facilities shall not be included in the limitations for permanent impacts to Natural Vegetation, however, all areas of Temporary Impacts shall be revegetated pursuant to the MSCP Implementation Guidelines. If the two-acre single project threshold is to be exceeded, the City shall notify in writing and provide applicable project information to the Wildlife Agencies. The Wildlife Agencies may submit to the City, within 30 days of a receipt of mailed notice and information from the City, a ~vritten response of non-concurrence. If such written finding of non- concurrence is made within 30 days of receipt of mailed notice from the City, the City shall confer with the Wildlife Agencies to resolve the Future Facility issue. If the Wildlife Agencies do not respond within 30 days after receipt of mailed notice, the City shall deem the written findings accepted. e. The cumulative permanent impacts to covered habitats from all Future Facilities for all projects shall not exceed a total of 50 acres without concurrence from the Wildlife Agencies. If the 50-acre threshold is to be exceeded, the City shall notify in writing 7 and provide applicable project information to the Wildlife Agencies. The Wildlife Agencies may submit to the City, ~vithin 30 days of a receipt of mailed notice and information from the City, a written response of non-concurrence. If such written finding of non-concurrence is made within 30 days of receipt of mailed notice from the City, the City shall confer with the Wildlife Agencies to resolve the Future Facility issue. If the Wildlife Agencies do not respond within 30 days after receipt of mailed notice, the City shall deem the written findings accepted. f. Mitigation shall be provided pursuant to Section 17.35.110 of this Chapter. g. For construction areas adjacent to occupied Quino checkerspot butterfly habitat, dust control measures (e.g. watering) will be applied during grading activities. B. Land uses and development are permitted within 75-100% Conservation Areas consistent with the Chula Vista MSCP Subarea Plan and this Section. If any portion of the Project Area is located within a 75-100% Conservation Area, the following shall apply to that portion of the Project Area located within the 75-100% Conservation Area: 1. Land Uses Permitted a. Permitted land uses include those uses permitted in the underlying zone. 2. Development Standards a. Development shall be permitted in 25% of the 75-100% Conservation Area within the Project Area. Projects shall be designed to avoid impacts to Covered Species to the maximum extent practicable and the 25% Development Area shall be located on the least environmentally sensitive portions of the 75-100% Conservation Area within the Project Area. The following list, in order of increasing sensitivity, shall be used to determine the least environmentally sensitive portions of the 75-100% Conservation Area within the Project Area. This list shall be used in combination with site-specific biological information submitted pursuant to Section 17.35.060 of this Chapter, and with other considerations such as but not limited to, potential edge-effects from existing and proposed development, Preserve configuration, habitat quality, wildlife movement, and topography. (1) Areas devoid of vegetation, including previously graded areas and agricultural fields; (2) Areas of non-native vegetation, disturbed habitats and eucalyptus woodlands; (3) Areas of chamisc or mixed chaparral, and non-native grasslands; (4) Areas containing coastal scrub communities; (5) All other upland habitat communities; (6) Occupied habitat of listed species, Narrow Endemic Species, and all Wetlands; and (7) All areas necessary to maintain the viability of wildlife corridors. b. Development shall avoid impacts to covered Narrow Endemic Species to the maximum extent practicable. A list of the covered Narrow Endemic Species is included in the Chula Vista MSCP Subarea Plan and MSCP Implementation Guidelines. Measures for protection of Narrow Endemic Species shall be required such as management, enhancement, restoration and/or transplantation in accordance xvith the MSCP Implementation Guidelines. (1) Where impacts to a covered Narrow Endemic Species population are demonstrated to be unavoidable, impacts shall be limited to 20% of the total Narrow Endemic Species population within the Project Area, except as provided by Section 17.35.100.B.2.b(2) of this Chapter. Written findings of equivalency ~vill be made by the City in accordance with Section 17.35.080.B of this Chapter. (2) II; after comprehensive consideration of avoidance and minimization measures, impacts exceed 20% of the covered Narrow Endemic Species population within the Project Area, a written determination of biologically superior preservation, must be made by the City in accordance with Section 17.35.080.B of this Chapter. The City will ~brward its written determination of biologically superior preservation to the Wildlife Agencies for review. The Wildlife Agencies may submit to the City, within 30 days of receipt of mailed notice of findings from the City, a written finding of non-concurrence on the facts of the City's findings. If such written finding of non-concurrence is made within 30 days of receipt of mailed notice of findings l¥om the City, the City must confer with the Wildlife Agencies to resolve Narrow Endemic Species issues with the proposed development. If the Wild}lie Agencies do not respond within 30 days after receipt of mailed notice, the City shall deem the ~vritten findings accepted. c. Mitigation shall be provided pursuant to Section 17.35.110 of this Chapter. C. Land uses and development are permitted within Development Areas outside of Covered Projects consistent with the Chula Vista MSCP Subarea Plan and this Section. If any portion of the Project Area is located within a Development Area, the following regulations shall apply to that portion of the Project Area located within the Development Area outside of Covered Projects: 1. Land Uses Permitted a. Permitted land uses include those uses permitted in the underlying zone. 2. Development Standards a. Encroachment into Natural Vegetation is not limited except as may be provided by Section 17.35.090 (A)(2) and/or (A)(3) of this Chapter. b. Development shall avoid impacts to covered Narrow Endemic Species to the maximum extent practicable. A list of the covered Narrow Endemic Species is included in the Chula Vista MSCP Subarea Plan and the MSCP Implementation Guidelines. Measures fbr protection of Narrow Endemic Species shall be required such as management, enhancement, restoration and/or transplantation in accordance with the MSCP Implementation Guidelines. (1) Where impacts to a covered Narrow Endemic Species population are demonstrated to be unavoidable, impacts shall be limited to 20% of the total Narrow Endemic Species population within the Project Area, except as provided in Section 17.35.100.C.2.b(2) of this Chapter. Written findings of equivalency will be made by the City in accordance with Section 17.35.080.B of this Chapter. (2) If, after comprehensive consideration of avoidance and minimization measures, impacts exceed 20% of the covered Narrow Endemic Species population within the Project Area, a written determination of biologically superior preservation, will be made by the City in accordance with Section 17.35.080.B of this Chapter. The City will forward its written determination of biologically superior preservation to the Wildlife Agencies for review. The Wildlife Agencies may submit to the City, ~vithin 30 days of receipt of mailed notice of findings from the City, a written finding of non-concurrence on the facts of the City's findings. If such written finding of non-concurrence is made within 30 days of receipt of mailed notice of findings from the City, the City must confer with the Wildlife Agencies to resolve Narrow Endemic Species issues with the proposed development. If the Wildlife Agencies do not respond within 30 days after receipt of mailed notice, the City shall deem the written findings accepted. c. Mitigation shall be provided pursuant to Section 17.35.110 of this Chapter. 17.35.110 Mitigation Where mitigation for project impacts is required pursuant to this Section, the level and type of mitigation shall be consistent with the Chula Vista MSCP Subarea Plan, as adopted on , and as may be amended from time to time and the MSCP Implementation Guidelines. The following mitigation standards shall be applied to impacts within 100% Conservation Areas, 75-100% Conservation Areas and Development Areas outside of Covered Projects: A. The following mitigation standards shall be applied to 100% Conservation Areas: 1. Permanent impacts to Natural Vegetation resulting from construction of Planned Facilities associated with Covered Projects shall not require mitigation. These impacts have already been considered in the project-specific conditions of coverage and/or mitigation for each Covered Project. 2. Permanent impacts to Natural Vegetation resulting from construction of Future Facilities associated with Covered Projects where the impact to Sensitive Biological Resources is less than or equal to two acres and the 50-acre threshold identified in Section 17.35.100.A..4.d of this Chapter has not been exceeded shall not require mitigation. 3. Permanent impacts to Natural Vegetation resulting from construction of Future Facilities not associated with Covered Projects shall be mitigated pursuant to the mitigation standards contained in Table 5-3 of the Chula Vista MSCP Subarea Plan, as adopted on , and as may be amended from time to time. 4. Mitigation for permanent impacts to Narrow Endemic Species populations shall be determined on a case-by-case basis by the Director of Planning and Building, or his/her designee, and may include such measures as management, enhancement, restoration and/or transplantation. Mitigation shall be in-kind and mitigation ratios for such measures shall be required at a 1:1 to 3:1 ratio depending on the sensitivity of the species and population size and in accordance ~vith Section 5.2.3 of the Chula Vista MSCP Subarea Plan, as adopted on , and as may be amended from time to time and the MSCP Implementation Guidelines. 5. Impacts to Wetlands shall be mitigated pursuant to Section 5.2.4 and Table 5-6 of the Chula Vista MSCP Subarea Plan, as adopted on _, and as may be amended from time to time. 6. Temporary impacts to Sensitive Biological Resources resulting from construction of Planned and Future Facilities shall be revegetated pursuant to the MSCP Implementation Guidelines. B. The following mitigation standards shall be applied to 75-100% Conservation Areas: 1. Impacts to Natural Vegetation shall not require mitigation. As a condition of permit issuance, Natural Vegetation outside the Development Area as determined by the HLIT Permit, shall be left in a natural state and uses shall be consistent with Section 17.35.100.A.1-3. 2. Mitigation for impacts to Narrow Endemic Species populations shall be determined on a case-by-case basis by the Director of Planning and Building, or his/her designee, and may include such measures as management, enhancement, restoration and/or transplantation. Mitigation shall be in-kind and mitigation ratios for such measures shall be at a 1:1 to 3:1 ratio depending on the sensitivity of the species and population size and in accordance with Section 5.2.3 ol' the Chula Vista MSCP Subarea Plan, as adopted on ., and as may be amended from time to time and the MSCP Implementation Guidelines. 3. Impacts to Wetlands shall be mitigated pursuant to Section 5.2.4 and Table 5-6 of the Chula Vista MSCP Subarea Plan, as adopted on , and as may be amended from time to time. C. The following mitigation standards shall be applied to Development Areas outside of Covered Projects: 1. Permanent impacts to Natural Vegetation shall be mitigated pursuant to the mitigation standards contained in Table 5-3 of the Chula Vista MSCP Subarea Plan, as adopted on , and as may be amended from time to time. 2. Mitigation for permanent impacts to Nan'ow Endemic Species populations shall be determined on a case-by-case basis by the Director of Planning and Building, or his/her designee, and may include such measures as management, enhancement, restoration and/or transplantation. Mitigation shall be in-kind and mitigation ratios for such measures shall be at a 1:I to 3:1 ratio depending on the sensitivity of the species and population size and in accordance with Section 5.2.3 of the Chula Vista MSCP Subarea Plan, as adopted on , and as may be amended from time to time and the MSCP Implementation Guidelines. 3. Impacts to Wetlands shall be mitigated pursuant to Section 5.2.4 and Table 5-6 of the Chula Vista MSCP Subarea Plan, as adopted on _, and as may be amended from time to time. 17.35.120 Biological and Open Space Easement A. When required, the applicant shall draft and submit a Biological and Open Space Easement (Conservation Easement) that includes the lbllowing: 1. A legal description of the premises affected by the permit with a description of the mitigation area and the Sensitive Biological Resources that will be preserved; 2. To impart notice to all persons to the extent afforded by the recording laws of the state regarding the restrictions affecting use of the Sensitive Biological Resoumes covered by the permit; 3. To ensure that the burdens of the easement shall be binding upon, and the benefits of the easement shall ensure to, all successors an interest to the affected land; 4. To ensure enforceability of the biological and open space easement by the City, or jointly and severally by the City, the U.S. Fish and Wildlife Service, and the California Department of Fish and Game in those instances ~vhen the biological and open space easement affects land containing Sensitive Biological Resources or other lands that have been accepted as mitigation, and 5. Uses consistent with those listed in Section 17.35.100.A. 1-2 of this Chapter. B. A public hearing shall be held to consider a formal, written request directed to the City by any person requesting the release of a biological and open space easement recorded pursuant to this Chapter. A release of any biological and open space easement recorded pursuant to this Chapter shall be recorded by the City only when it is determined by the City that restriction of the property is no longer necessary to achieve the land use goals of the City. A determination by the City to release said easement may be made only with the written concurrence of the U.S. Fish and Wildlife Service and the California Department ofFish and Game. 17.35.130 Deviation from Habitat Loss and Incidental Take Regulations A. When a deviation is requested from this Chapter because the applicant contends that strict application of this Chapter would result in denial of all economically viable use, the HLIT Permit shall include a determination of economically viable use. Where a deviation is requested fi-om this Chapter, it may be approved or conditionally approved only if the decision-maker makes all of the following supplemental findings in addition to the applicable findings in Section l 7.35.080 of this Chapter: 1. Based on the economic information provided by the applicant, as well as any other relevant evidence, each use provided for in this Chapter would not provide any economically viable use of the applicant's property; 2. The use proposed by the applicant is consistent ~vith the applicable zoning; 3. The use and project design, siting, and size are the minimum necessary to provide the applicant with an economically viable use of the Project Area; and 4. The development proposal is the least environmentally damaging alternative and is consistent with all provisions of the Chula Vista MSCP Subarea Plan, as adopted on , and as may be amended from time to time and this Chapter, with the exception of the provisions t3r which the deviation is requested. B. The process for a deviation shall be in accordance with Section 17.35.070 of this Chapter. 17.35.140 Emergencies Whenever development activity within Sensitive Biological Resources, as identified in the City of Chula Vista MSCP Subarea Plan, is deemed necessary by order of the City Manager to protect the public health or safety, the City Manager may authorize, without a public hearing, the minimum amount of impact necessary to protect the public health or safety, subject to the following: A. If the emergency work involves only temporary impacts to Sensitive Biological Resources, a HLIT Permit is not required, provided the Sensitive Biological Resources are restored to their natural state in accordance with a revegetation plan approved by the Director of Planning and Building, or his/her designee. The revegetation plan shall be submitted to the City within 60 days of completion of the emergency work. B. If the emergency work results in permanent impacts to Sensitive Biological Resources, a subsequent HLIT Permit is required in accordance with all regulations of this Chapter. The application for the HLIT Permit shall be submitted within 60 days of completion of the emergency work. 17.35.150 City Responsibility to Publish Guidelines The City Manager is authorized to promulgate and publish MSCP Implementation Guidelines and other support documents as necessary to implement this Chapter. These administrative guidelines shall serve as baseline standards for processing SPA Plans, Design Review applications, conditional use permits, variances, parcel maps, tentative maps, Land Development Permits or Clearing and Grubbing Permits pursuant to this Chapter. Any revisions to the MSCP Implementation Guidelines will require review and approval by the City Manager. 17.35.160 Violations and Remedies The provisions of this Chapter shall be enforced pursuant to the provisions of Chapters 1.20 through 1.41 of the Chula Vista Municipal Code. 17.35.170 Conflicts Except for exempt projects, if a conflict occurs between this Chapter and Chapter 15.04 of the Chula Vista Municipal Code, the stricter regulation shall apply. 17.35.180 Local Coastal Program Prior to issuance of an HLIT Permit tbr any project located within the Chula Vista Local Coastal Plan (LCP) area, the applicant shall obtain a determination of project consistency with the Chula Vista LCP from the Director of Planning and Building. If the project cannot be deemed consistent with the LCP, an LCP amendment must be completed prior to issuance of the HLIT Permit. Section Il. Adoption of this ordinance (Second Reading) is conditioned upon the issuance of Take Authorizations from the USFWS and CDFG to the City of Chula Vista has occurred in a form acceptable to the City. Section III. This ordinance shall take effect and be in force on the thirtieth day from and after the adoption of the ordinance (Second Reading) which shall occur as stated above. Presented by Approved as to form by Robert A. Leiter Ann Moore Planning and Building Director City Attorney J:Attomey'Ordmance~,HLlT I doc RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AND ESTABLISHING CONDITIONS OF THE AMENDING TENTATIVE SUBDIVISION MAP FOR ROLLING HILLS RANCH SUBAREA II1 (FORMERLY SALT CREEK RANCH), 92-02A 1. RECITALS A. Project Site WHEREAS, the area of land which is the subject matter of this resolution is diagrammatically represented in Exhibit A, copies of which are on file in the Office of the City Clerk, incorporated herein by reference, and commonly known as Rolling Hills Ranch Subarea III amending Tentative Subdivision Map, Chun Vista Tract 92-02A; and for the purpose of general description herein consists of 606.9 acres located north of Proctor Valley Road and east of Hnnte Parkway, within the Rolling Hills Ranch (formerly Salt Creek Ranch) Planned Community ("Project Site"); and, B. Project; Application for Discretionary Approval WHEREAS, on October 15, 2001, Pacific Bay Properties and as assumed by its successor in interest ("Developer") filed an amending tentative subdivision map with the Planning and Building Department of the City of Chula Vista requesting approval of the amending Tentative Subdivision Map for Rolling Hills Ranch Subarea III, Chula Vista Tract 02-02a in order to modify the Project Site and create 425 single-family lots and 6 open space lots (CC, EE-GG, DDD, HHH), 29 Master HOA open space lots, 4 HOA lots and 1 recreational lots (Rec Lot 9A); and various special lots (i.e., slope lots) throughout the subdivision ("Project"); and, C. Prior Discretionary Approval WHEREAS, the development of the Project Site has been the subject matter of various entitlements and agreements, including: 1) Salt Creek Ranch General Development Plan (GDP) approved by City Council Resolution 15875 on September 25, 1990 and amended by City Council Resolution 2001-103 on April 10, 2001; 2) Salt Creek Ranch Sectional Planning Area (SPA) Plan approved by the City Council Resolution No 16555 on March 24, 1992 and amended by City Council Resolution 2001-103 on April 10, 2001; 3) the Rolling Hills Ranch Planned Community District Regulations and Land Use Map approved by City Council Ordinance No. 2499 on April 7, 1992 and amended by Ordinance No. 2833 on April 24, 2001; 4) Public Facilities Financing Plan approved by City council Resolution 16555 on March 24, 1992 and amended by Resolution 2000-190 on April 10, 2001; 5)Tentative Subdivision Map for Salt Creek Ranch, Chula Vista Tract 92-02 previously approved by City Council Resolution Number 16834 on October 6, i992 and amended by City Council Resolution 2000-190 on June 13, 2000; and 6) Agreement for Resolution No. Page 2 of 20 Monitoring of Building Permits approved by City Council Resolution 2003-166 on April 15, 2003; and WHEREAS, this constitutes a supplemental Resolution which only affects Subarea llI and whose only intent is to modify, delete or add to previously adopted conditions of approval as they relate to said subarea, and W H EREAS, the TM conditions of approval pursuant to Resolution 16834 and 2000- 190 except as specifically modified, deleted, or added as to Subarea III remain in full force and effect as to the entirety of CVT 92-02, and WHEREAS, the Planning Commission held an advertised public hearing on the Project on April 23, 2003 and, after hearing staff presentation and public testimony, voted ( ...... ) recommend that the City Council approve the Project, in accordance with the findings and subject to the conditions listed below; and, Council Record of Applications WHEREAS, a duly called and noticed public heating on the Project was held before the City Council of the City of Chula Vista on May 13, 2003., on the Project and to receive the recommendations of the Planning Commission, and to hear public testimony with regard to the same; and, WHEREAS, the City Clerk set the time and place for a heating on said tentative subdivision map application, and notice of said hearing, together with its purpose, was given by its publication in a newspaper of general circulation in the City, and its mailing to property o~vners within 500 ft. of the exterior boundary of the project, at least ten (10) days prior to the hearing; and, WHEREAS, the hearing was held at the time and place as advertised, namely 6:00 p.m. October 13, 2002, in the Council Chambers, 276 Fourth Avenue, before the City Council and said hearing was thereafter closed. 1i. PLANNiNG COMMISSION RECORD The proceedings and all evidence introduced before the Planning Commission at their public hearing on the Project held on April 23, 2003, and the minutes and resolutions resulting therefrom, are hereby incorporated into the record of this proceeding. III. PREVIOUS SEIR 91-03 REVIEWED AND CONSIDERED; FINDINGS; APPROVALS The City Council of the City of Chula Vista has previously reviewed, analyzed, considered, and certified FSEIR 91-03, Salt Creek Ranch and Addendum. Resolution No. Page 3 of 20 IV. COMPLIANCE WITH CEQA The Environmental Review Coordinator has determined that any impacts associated with the proposed tentative subdivision map have been previously addressed by FSEIR 91-03, Salt Creek Ranch and has, therefore, prepared an Addendum to said FSEIR. The Tentative Map is in substantial conformance with the conceptual tentative map and grading plans on which the FSE1R analysis was based and, therefore, approval and implementation of the Tentative Map does not change the basic conclusions of the FSE1R. The Addendum has been prepared in accordance with requirements of the California Environmental Quality Act, State EIR Guidelines and the Environmental Review Procedures of the City of Chula Vista. V. INDEPENDENT JUDGMENT OF CITY COUNCIL The City Council finds that the Addendum to FSEIR 91-03, reflects the independent judgment of the City Council of the City of Chula Vista and hereby considers the Addendum to FSEIR 91-03, Salt Creek Ranch. VI. TENTATIVE SUBDIVISION MAP FINDINGS A. Pursuant to Government Code Section 66473.5 of the Subdivision Map Act, the City Council finds that the amending Tentative Subdivision Map, as conditioned herein for Rolling Hills Ranch Subarea III, Chula Vista Tract No. 92-02a, is in confom~ance with the elements of the City's General Plan, based on the following: 1. Land Use The Rolling Hills Subarea Ill Plan (Residential Neighborhoods 9-12) provides for low density residential development with densities ranging between 1.05 and 2.0 dwelling units per acre. The project will provide for 425 single-family units. The project as conditioned, is in substantial compliance with the amended Salt Creek Ranch GDP and SPA, and since the GDP and SPA are in substantial conformance with the General Plan, the Tentative Map is also in substantial conformance with the General Plan. 2. Circulation All on-site and off-site streets required to serve the subdivision will be constructed or DIF fees paid by the developer. The public streets within the Project will be sized as prescribed in the circulation element of the General Plan and designed per City design standards and/ or requirements, or modifications accepted by the City Engineer. The required and anticipated off-site improvements would be designed to handle this Project and future projects in the area. Resolution No. Page 4 of 20 3. Housing The applicant has entered into an agreement with the City to provide for required low and moderate income housing and in currently ahead of schedule in terms of meeting the conditions of this agreement. 4. Conservation The Environmental Impact Report SEIR 91-03 and Addendum addresses the goals and policies of the Conservation Element of the General Plan and found the development of this site to be consistent with these goals and policies. In addition, subarea III boundaries and densities have been modified to specifically comply with the requirements of the Multiple Species Conservation Plan (MSCP) being adopted concurrently. 5. Parks and Recreation, Open Space Subarea II1 is a portion of the overall Salt Creek Ranch Development which will provide a 29 acre (gross) community park, a 7.3 acre (gross) neighborhood park and the payment of pad fees or additional improvements as approved by the Director of Building and Park Construction. In addition, equestrian and recreational trail systems will be provided throughout the project, ultimately connecting with other open space areas and trail systems in the region including the Chula Vista City-wide "Greenbelt" trail. 6. Seismic Safety The proposed subdivision is in conformance with the goals and policies of the Seismic Element of the General Plan for this site 7. Safety The Fire Department and other emergency service agencies have reviewed the proposed subdivision for conformance ~vith City safety policies and have determined that the proposal meets the City Threshold Standards for emergency services. 8. Noise Noise mitigation measures included in the Environmental Impact Report FSIER 91- 03 and Addendum adequately address the noise policy of the General Plan. The project has been conditioned to require that all dwelling units be designed to preclude interior noise levels of 45 dBA and exterior noise exposure over 65 dBA for all outside private patio areas 9. Scenic Highway Resolution No. Page 5 of 20 The Subarea III portion of the Rolling Hills Ranch project is located east of the intersection of Hunte Parkway and East H Street. The portion of Proctor Valley Road adjacent to Subarea III, which serves the eastward extension of East H Street is not delineated as a scenic highway within the Land Use Element of the General Plan. 10. Bicycle Routes Although no designated regional off-street bicycle routes are included as components of the internal cimulation network, bicyclists will be readily able to share the internal streets with motor vehicles due to low traffic volume and limited speeds allowed. Bicycle route segments to connect to regional systems have been incorporated as prescribed by the Circulation Element of the General Plan. On- street bike lanes are included on the adjacent arterial highways. The bike lanes will be paved components of the street systems indicated. 11. Public Buildings No public buildings are proposed on the project site. The project is subject to RCT fees prior to issuance of building pemfits. B. Pursuant to Section 66412.3 of the Subdivision Map Act, the Council certifies that it has considered the effect of this proposal on the housing needs of the region and has balanced those needs against the public service needs of the residents of the City and the available fiscal and environmental resources. C. The configuration, orientation and topography of the site partially allows for the optimum setting of lots for passive or natural heating and cooling opportunities as required by Government Code Section 66473.1 D. The site is physically suited for residential development and the proposal conforms to all standards established by the City for such project. E. The conditions herein imposed on the grant of permit or other entitlement herein contained is approximately proportional both in nature and extend to the impact created by the proposed development. BE IT FURTHER RESOSLVED that the City Council does hereby approve the Project subject to the general and special conditions set forth below. VII GENERAL CONDITIONS OF APPROVAL A. Project Site is Improved with Project Resolution No. Page 6 of 20 Developer, or their successors in interest, shall improve the Project Site with the Project as described in the Tentative Subdivision Map, Chula Vista Tract 92-02A and FSEIR 91-03 and Addendum, except as modified by this Resolution. B. Implement Mitigation Measures Developer shall diligently implement, or cause the implementation of all mitigation measures pertaining to the Project identified in the Final Subsequent Environmental Impact Report, (FSEIR) 91-03 and Addendum. 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 Program approved in conjunction with the FSEIR and Addendum. Modification of the sequence shall be at the discretion of the Director of Planning and Building should changes in the circumstances warrant such revision. C. Implement Public Facilities Financing Plan Developer shall install public facilities in accordance with the Project's Public Facilities Financing Plan, as amended or as required by the City Engineer, to meet the threshold standards adopted by the City of Chula Vista. The City Engineer and Planning and Building Director may, at their discretion, modify the sequence of improvement construction should conditions change to warrant such a revision. D. Design Approval Per section 2.3.1.3 of the Community Design Section of the approved Salt Creek Ranch SPA, single family detached residential areas with lots 4,500 s.f. or larger in any residential district may use the tentative tract map with typical building elevations and typical building locations on lots as a substitute for elevations and siting of all buildings. Specific requirements for application and review procedures are published in the City's Zoning Ordinance. VIII SPECIAL CONDITIONS OF APPROVAL All conditions listed below are either modified conditions of previous Resolution No's.16834 and 2000-190 or are new conditions which only affect Subarea III. As such, the numbering of conditions shown is consistent with the existing condition number shown in Resolution No. 16834 which is herewith shown for purposes of being modified or deleted. All other conditions of approval adopted pursuant to Resolution 16834 and 2000-190 remain in full force and effect as to Subarea III and the entirety of CVT 92-02 Streets~ Rights-Of-Way and Improvements 19. Grant in fee the City a 1-foot control lot at the northerly terminus of Hunte Parkway and 8tm~ "¥YYY" the easterly terminus of both Ranch Estate Place and Ranch Lakes Wa,/ and the southerly terminus of Duncan Ranch Road. (Engineering) /7-090 Resolution No. Page 7 of 20 to approval of the first Final Map for Neighborhood 12, the no,hem adjacent property owners of record shall demonstrate to the satisfaction of the City Engineer and Director of Planning that alternative public street access to the no,hem adjacent prope~ies can be reasonably and feasibly constructed by them, at their own expense, from ~ economic, planning, environmental, engineering ~d legal standpoint. Upon such a showing, the developer shall provide private easement access up to the existing dirt roads located at the end of Street MMMM and Street ~, by means of Street SSSS, as depicted on the Tentative Map. (Engineering, Planning) 27. Construct private streets in accordance with the stand,ds contained in the subdivision manual and street design standards unless othe~ise approved by the City Engineer. Private street cross sections shall confo~ to those shown on the tentative map for curb-to-curb idth d ight f- idth ,..;,k ,k ....... ,;~ f m~ ~: .............. *;~- (Engineeringj Sewers 29. Gr~t to the City fee title to a p~cel ~vithin which the Salt Creek R~ch sewer prop station shall be located. Desi~ ~d construct the sewer prop station subject to ~e approval of the Cities of Chula Vista ~d San Diego. Developer shall comply with Co~cil Policy 570-03 ~d provide the City of Chula Vista with a deposit for the maintenance ~d operation of said faciliW as outlined in Council Policy No. 570-03 for pe~ent sewer prop stations. (Engineering) 31. Delete Gradine and Drainage Water 43. Design the storm drains and other drainage facilities to include BMP's to minimize non-point source pollution, satisfactory to the City Engineer and the City of San Diego Water Utilities Director. a. 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 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 Constmction Activity and shall implement a Storm Water Pollution Resolution No. Page 8 of 20 Prevention Plan (SWPPP) concurrent with the commencement of grading activities. The SWPPP shall include both construction and post constmction pollution prevention and pollution control measures and shall identify funding mechanisms for post construction control measures. b. The developer shall comply with all the provisions of the NPDES Permit 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 d~velling units. c. Prior to approval of the first final map for the Project, Developer shall enter into an agreement with the City 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 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. dr At such time as required by the City Engineer for the Proiect, the Developer shall submit and obtain approval from the City Engineer of a maintenance program for the proposed post-construction BMP's. The maintenance 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 schedule and activities, and 3) a funding mechanism for financing the maintenance program. In addition, the Developer shall enter into a Maintenance A~'eement with the City to ensure the maintenance and operation of said facilities. Prior to approval of each 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 and the adopted City of Chula Vista's Storm Water Management Standards Requirements Manual, which includes the Local SUSMP. The Developer shall incorporate into the project planning and design effective post-construction BMP's and provide all necessary 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 to the Maximum Extent Practicable (MEP) from certain project feature, land use, areas and activities. The Developer shall incorporate in the Proiect design, water quality and watershed protection principles and all post construction Best Management Practices (BMPs) selected for the Project, in compliauce with the NPDES Permit. (Engineering) Fees/Payments Resolution No. Page 9 of 20 53. Deposit~,~,,,vv¢¢ ~ $30,000 or a sum up to that amount if otherwise approved by the City Engineer in his/her discretion to provide for the first years' maintenance costs prior to approval of the Final Map of any phase or unit, which requires the Salt Creek Ranch pump station to provide server service. (Engineering) Resolution No. Page 10 of 20 Agreements/Covenants Director; r'~; 55. Enter into a supplemental a~eement with the City, phor to approval of each Final Map, where the developer a~ees to the followin¢: a. That the City may withhold building pe~its for the subject subdivision if any one of the following occur: 1. Regional development threshold limits set by the Chula Vista Tr~spo~ation Phasing PI~, as amended from time to time, have been reached or in order to have the Project comply with the Growth Management Pro,m, as may be amended from time to time. 2. Traffic volumes, levels of se~ice, public utilities and/or se~ices either exceed the adopted City threshold standards or fail to comply with the then effective Growth Management Ordinance, and Growth Management Program ~d any amendments thereto. Public utilities shall include, but not be limited to, air quality, drainage, sewer and water. 3. The required public facilities, as identified in the PFFP or as ~ended or othe~ise conditioned have not been completed or constructed to the satisfaction of the City. The developer may propose ch~ges in the timing ~d sequencing of development and ~e construction of improvements affected. In such case, the PFFP ma~ be ~ended as approved by the City's Director of Pla~ing and Building and the Public Works Director. The Applic~t a~ees that the City may wit~o]d building pe~its ~or ~y of the phases of development identified in the Public Facilities Financing PI~ (PFFP) for the Resolution No. Page 11 of 20 Project if the required public facilities, as identified in the PFFP u ~ ..................... ,~..v~ ~,l have not been completed. b. That the City may withhold the issuance of building permits for the Proiect, 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 A~reement. The City shall provide the Developer of notice of such determination and allow the Developer reasonable time to cure said breach 66. Pe~it all cable television companies franchised by the City of Chula Vista equal oppo~unJty to place conduit and provide cable television se~ice for each lot or unit within the final 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 prope~ies situated within the final map only to those cable television companies franchised by the City of Chula Vista, the condition of such grant being that: (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 Jn compli~ce ~vJth, and promises to remain in comp]i~ce with the te~s and conditions of the franchise and with all other roles, regulations, ordinances and procedures regulating ~d affecting the operation of cable television companies as sine may have been, or may from time to time be, issued by the City of Chu]a Vista. Developer hereby conveys to the City of Chula Vista the authority to enforce said covenant by such remedies as the City dete~ines appropriate, including revocation of said grant upon detemination bY the City of Chula Vista that they have violated the conditions of grant. (Engineering, Planning Building) Public Parks and Trails Resolution No. Page 12 of 20 i. aspect: ................v .... v ..................... r ................... 68. Within 60 days from Ciw Council approval of the Amending Tentative Map, prep~e, submit ~d obtain the approval of the Director of Plying ~d Building for a comprehensive L~dscape Master Plan for Submea II1. The L~dscape Master PI~ shall reflect ~e requirements of the Landscape ~chitecture Division's checklist and the City of Chula Vista Landscape M~ual. Resolution No. Page 13 of 20 70. Developer shall provide a title report showing the Community Park site is flee and clear of all encumbrances prior to acceptance of the park except for those easements of record in favor of the City on the Final Map for the site. Street Trees/Open Space 82. a. Concurrently with approval of the first final map for the Project, the MSCP Preserve lots (Lots CC, Er, FF and GG) and Tarplant Management Areas (Lots DDD and HHH) shall be conveyed through an irrevocable Offer of Dedication to the City or other appropriate management entity deemed acceptable to the Director of Planning and Building. Prior to the first final map, the Developer shall enter into an agreement with the City which requires the Developer to assure interim management of the lots for a period not to exceed two years. A conservation easement or other similar restriction, acceptable to the Director of Planning and Building, shall also be provided that precludes the use of lots CC, rE, FF, GG for any use other than preserve, as set forth in the MSCP Subarea Plan, unless agreed to by the City and the Wildlife Agencies. b. Fencing and/or walls shall be installed, to the satisfaction of the Environmental Review Coordinator, adjacent to both the MSCP Preserve lots (Lots CC, rE, FF and GG) and the Tarplant Management Areas (Lots DDD and HHH) in order to prevent impacts to the biological resources from domestic pets and human activity. An alternative to fencing would be the planting of native barrier plants subject to the approval of the Environmental Review Coordinator at his/her sole discretion. Perpetual maintenance of the fence or barrier shall be provided by the HOA (Planning & Building. Engineering) c. Indicate on all affected grading plans that all fencing and/or walls to be maintained by the HOA shall be constructed entirely within HOA-maintained open space lots or easements granted to the HOA and irrevocably offered to the City of Chula Vista. ~4. E~tab ......................................... ~, ............ ~ .....~, ~ ...... v 84. Prior to the approval of final maps for Neighborhoods 9, 10a, 1 Ob, 11 and 12 and subiect to the approval of the Director of Planning and Building, establish homeowners associations (HOA) for said neighborhoods to provide for the maintenance of those areas as identified by the Director of Planning and Building and the City Engineer, including open space areas, private streets, drainage facilities and fencing, walls or other barriers as identified on the amending tentative map (CVT 92-02A) (Planning & Building) Resolution No. Page 14 of 20 85. a. Prior to issuance of each the ,qrst grading permit for the Project, prepare, submit and obtain approval of the Director of Planning and Building for Landscape slope erosion control plans for the area encompassed within each hhe grading permit in accordance with the City of Chula Vista Grading Ordinance and the Landscape Manual. Revegetation of slopes external to Subarea III and/or adjacent to open space lots or undisturbed areas shall be accomplished with native plant species, which are appropriate to the area as determined by the City's Landscape Architecture Division and Environmental Review Coordinator. b. Prior to issuance of the first building permit for the Project, prepare, submit and obtain approval of the Director of Planning and Building for landscape and irrigation plans in accordance with the City of Chula Vista Landscape Manual for all streets, common areas and open space lots. 87. Include in the CC&R's that the maintenance of all private facilities and improvements within open space areas are managed by home owners associations. Prior to approval of the first final map for the Project, the Developer shall: 1) create a Master Homeowners Association ("HOA") to own and maintain in a professional manner open space areas, medians, parkways, and all other improvements not maintained by community facilities district or other entity; and 2) complete the formation of the HOA which shall be structured to allow annexation of future tentative map areas in the event the City Engineer and Director of Planning and Building requires such annexation of future tentative map areas. Submit to and gain approval of said CC&R's by the Director of Planning prior to approval of the associated final map.The CC&R's shall include the following; a Maintain all the facilities and improvements within the open space lots offered for dedication to the City until acceptance of the open space lots for maintenance by a community facilities district. b. The HOA shall not seek to dedicate or convey for public streets, land used for private streets without approval of 100% of all the HOA members or holders of first mortgages within the HOA. Notwithstanding the above, if the Developer chooses to annex into an existing HOA and provide supplemental CC&R's, all above requested provisions apply and shall be incorporated into said CC&R's to the satisfaction of the City Attorney, Director of Planning & Building and City Engineer. (Planning and Building, Engineering, City Attorney) Resolution No. Page 15 of 20 Fire and Brush Management space ................ j ...... ~,v ................................................. 88. Provide the initial cycle of fire management/brush clearance within designated brush management HOA lots in Subarea IIi and conduct slective thinning on Parcel YY subiect to the approval of the Fire Marshal and the Landscape Architecture Division and Environmental Review Coordinator. (Planning & Building, Fire, Building and Parks Construction) ' 90. Prior to the issuance of the first grading permit, the Developer shall contribute, in an amount and form acceptable to the Director of Planning and Building, to the City of Chula Vista's Repetitive Fire Restoration Reserve Fund ("Reserve Fund"). The contribution shall satisfy the Developer's long-term proportionate share to the Reserve Fund and is in lieu of annual contributions (Planning and Building). OSE'; ~'~" bc ~'"';~+ to ......... j ....... approval cf 91. Dedicate to the City open space easements (OSE) over all downhill side and rear slopes adjacent to MSCP Preserve lots in Subarea III. These open space lots shall preclude the construction of any structures within said easements and shall limit activities within the easements to landscape maintenance of fuel modification plant materials. The wording of the OSE's shall be subject to the approval of the Director of Planning and Building. and the City Attorney. (Planning & Building, C.A.) 92. Prepare and execute fuel modification plans consistent with Section 3.6 of the Rolling Hills Ranch SPA subiect to the approval of the Directors of Planning & Building, Building and Parks Construction, and the Fire Marshal prior to approval of an,/Final Map in Subarea III. An,/new plantings within the Fuel Modification Zone shall be non-invasive and subject to the approval of the Environmental Review Coordinator and Landscape Architecture Division. (Planning & Bui/ding, Fire, Building and Parks Construction Resolution No. Page 16 of 20 Miscellaneous 99. Delete 117. Delete 118. Delete 119. Delete NEW CONDITIONS 129. Upon conveyance of the Tarplant Management Areas (TMA) (Lots DDD and HHH) as depicted on C.V.T. Map 92-02A, the TMA will be managed by a qualified preserve manager subiect to the approval of the City of Chula Vista after consultation with the Wildlife Agencies. Prior to the issuance of the first Fading permit for the Project, the applicant shall provide a $100,000 cash deposit to the City of Chula Vista or management entity as approved by the City to be placed in a non-wasting endowment for long-term management of the TMA. Maintenance of all drainage facilities through the TMA shall be the sole responsibility of the HOA. (Planning & Building, Engineering) 130. Grading plans for Neighborhood 11 shall provide for the removal of topsoil containing tar- plant in Neighborhood 11 to be relocated to graded slopes within the TMA (Lots HHH and DDD). A qualified biologist, as approved by the Environmental Review Coordinator, shall supervise movement of topsoil containing tarplant. (Planning & Building. En£ineerin.~) 131. Prior to the issuance of the first ~ading permit for Subarea III, the Developer shall provide offsite mitigation for tarplant to include: (1) preservation of 5.8 acres (containing approximately 15,080 plants) within the San Miguel Mitigation Bank; and, (2) conservation of one 10 acm parcel containing a minimum of 15,000 plants in a location within the MSCP Preserve subiect to the approval of the Director of Planning & Building. An endowment for perpetual management of the 10 acre offiste mitigation parcel, shall be provided to the City or designated management entity approved by the City. The endowment shall be in an amount and form acceptable to the City or the designated management entity approved by the City. (Planning & Building) 132. Prior to the issuance of the first Mading permit for Subarea III, Area Specific Management Directives (ASMDs) for the MSCP Preserve lots (Lots CC, EE, FF, and GG) and the TMA lots (Lots DDD and HHH) shall be prepared by the Developer subject to the approval of the Director of Planning and Building. The ASMDs will contain short-term management measures, to be implemented by the Developer during the construction of the project, and long-term management measures which will be implemented by the City or designated management entity. Developer shall assure funding, in an amount consistent with funding levels identified in the MSCP and form approved by the Director of Planning and Building, for implementation of the ASMDs. (Planning & Building) /7' Resolution No. Page 17 of 20 133. The approval of this map by the City of Chula Vista does not authorize the applicant to violate any Federal, State or City laws, ordinances, regulations or policies, including but not limited to the Federal Endangered Species Act of 1973 and any amendments thereto (16 U.S.C. Section 1531 et seq.) 134. in accordance with authorization ~'anted to the City of Chula Vista from the U.S. Fish & Wildlife Service (USFWS) pursuant to Section 10(a) of the ESA and by the Californ/a Department of Fish & Game (CDFG) pursuant to Fish & Game Code Section 2835 as part of the Multiple Species Conservation Program (MSCP), the City of Chula Vista through the approval/issuance of this permit/map hereby confers upon permittee the status of Third Party Beneficiary as provided for in Section 17 of the City of Chula Vista Implementing A~reement (IA) approved by the City Council on 2003. Third Party Beneficiary status is conferred upon permittee by the City: (1) to grant permittee the legal standing and legal fight to utilize the take authorization granted to the City of Chula Vista pursuant to the MSCP in accordance with those limitations imposed under this permit and the provisions of the IA, and (2) to assure permittee that no existing mitigation obligation imposed by the City of Chula Vista pursuant to this permit shall be altered in the future by the CiW of Chula Vista, USFWS, or CDFG, except in the circumstances described in the IA. If mitigation lands are identified but not yet accepted by the City or other designated management entity or preserved in perpetuity, maintenance and continued recogyfition of Third Party Beneficiary status by the City is contingent upon permittee maintaining the biological values of any and all lands conanitted for mitigation pursuant to this permit and of full satisfaction by permittee of mitigation obligations required by this permit, as described in accordance with the IA. 135. Construct or enter into an agreement to construct the following street improvements prior to the approval of the corresponding Final Map for the neighborhoods identified. The required security shall be provided for each facility prior to approval of the Final Map for the corresponding neighborhood or portion thereof. Construction of appropriate improvements for each neighborhood portion thereof shall be completed prior to issuance of the first building permit for each affected neighborhood or portion thereof. NEIGHBORHOOD Facilities Needed * 9 A,B, C, G,H, 10A A, B, C, D, E,F, G, H 10B I A, C,D, G, H, L 11 I A, B, C, D, E, F, G, H, I, K 12 A,B, C, D, E, F, G, H, I, J · Should there be a conflict between this condition and condition no. 7 of Resolution No. 16834, this condition shall control. Facility Description A Proctor Valley Road from Coastal Hills Drive to Agua Vista Drive, including transition to existing dirt road and dedicate to the City in a form acceptable to the City Engineer, the "future Proctor Valley Road Resolution No. Page i8 of 20 easement" as shown on the Tentative Map east of Agua Vista Drive. B Coastal Hills Drive from Proctor Valley Road, to north boundary of Neighborhood 9 ( & cul-de sac within SDG&E Easement) C Agua Vista Drive from Proctor Valley Road, to north boundary of Neighborhood 9 D Agua Vista Drive from north boundary of Neighborhood 9 to Ranch Estate Place E Agua Vista Drive from Ranch Estate Place to north boundary of Neighborhood 10A (& cul-de sac within SDG&E Easement) F Coastal Hills Drive from north boundary of Neighborhood 9 (SDG&E Easement) to sewer access road easement within Lot GGG, at the southerly boundary of Neighborhood 11, Lot 8. Sewer access road from Coastal Hills Drive to Adams Ranch Court; Adams Ranch Court G Stormwater detention and diversion facility at south end of Neighborhood 9 (Lot AA) H Sewer Pump Station on Agua Vista Drive, north of Proctor Valley Road (Lot BB) i 1296 Zone Hydropneumatic Pump (Lot GGG) and complete the 980 zone water distribution loop from Agua Vista Dr to Coastal Hills Dr. such that the pump will have two sources of 980 zone water. J iron Gate and Butterfly Way to Coastal Hills Drive. K Ranch Lakes Way and Agua Vista Dr. to easterly subdivision boundary. L Ranch Estate Place from Agua Vista Dr to easterly subdivision boundary and off-site cul-de-sac. 136.In the event of a final map, which requires over-sizing of the improvements necessary to serve other properties, said final map shall be required to include the installation of all necessary improvements to serve the Project, plus the necessary improvements for over- sizing of facilities required to serve such other properties. At the request of Developer, City gh~ll consider formation of a reimbursement district or any other reimbursement mechanism in accordance with the restrictions of State Law and CiW Ordinances. (Engineering) 137.Prior to approval of each Final Map containing any public streets, the Applicant shall agree to contract with the City's current street sweeping franchisee, or other server approved by the Assistant Director of Public Works (ADPW0) 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 shall cause street sweeping to conunence 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 occurs earlier. The developer further agrees to provide the ADPWO 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. (Public Works) Resolution No. Page 19 of 20 138.Prior to approval of the first final map for the Proiect, developer shall enter into an agreement assuring HOA membership in advance notice service such as USA Dig Alert in perpetuity. X. CONSEQUENCE OF FAILURE OF CONDITIONS If any of the foregoing conditions fail to occur, or if they are, by their terms, to be implemented and maintained over time, if any of such conditions fail to be so implemented and maintained according to their terms, the City shall have the right to revoke or modify all approvals herein granted, deny, or further condition issuance of all future building permits, deny, revoke, or further condition all certificates of occupancy issued under the authority of approvals herein granted, institute and prosecute litigation to compel their compliance with said conditions or seek damages for their violation. No vested rights are gained by Developer or a successor in interest by the City's approval of this Resolution. XI. INVALIDITY; AUTOMATIC REVOCATION It is the intention of the City Council that its adoption of this Resolution is dependent upon the enforceability of each and every term, provision and condition herein stated; and that in the event that any one or more terms, provision, or conditions are determined by a Court of competent jurisdiction to be invalid, illegal or unenforceable, this resolution shall be deemed to be automatically revoked and of no further force and effect ab initio. It is in the public's interest for City to require McMillin to indemnify the City against the adverse risks and costs of a challenge to City's actions in preparing and approving an Addendum to FSEIR 91-03 and approving the Amendment to the Tentative Subdivision Map for Rolling Hills Ranch, Chula Vista Tract 92-02(A) and related discretionary approvals, if any; and Presented by: Approved as to form by: Robert A. Leiter Ann Moore Planning & Building Director City Attorney [l:Atto~ney,MSCP Rcsos and Ordinances\CC Reso I'M RHR Ill Resolution No. Page 20 of 20 PASSED, APPROVED AND ADOPTED by the City Council of the City of Chula Vista, California, this xxxx day ofxxxxxxxxxxxx, by the following vote: AYES: Concilmembers: NAYS: Councilmembers: ABSENT: Councilmembers: ABSTA1N: Councilmembers: Steve 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. was duly passed, approved and adopted by the City Council at a regular meeting of the Chula Vista City Council held on the 13th day of May, 2003. Executed this 13 th day of May, 2003. Susan Bigelow, City Clerk ORDINANCE NO. AN OP. DINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPP. OVING AMENDMENTS TO THE SALT CP. EEK P. ANCH PLANNED COMMUNITY DISTI~ICT P. EGULATIONS TO AMEND THE ZONING DISTPdCTS MAP AND PP. OPEP. TY DEVELOPMENT STANDAI~DS TO DELETE NEIGHBOP. HOOD 13, CHANGE THE DESIGNATION OF NEiGHBOIllqOOD 9 FI~OM SFE TO SI~I AND i~EDUCI~ THE MINIMUM LOT SIZE OF NEIGHBOP. HOOD 9 FP. OM 15,000 TO 10,000 SQUAP. I~ FEET. I. RECITALS A Project Site WHEP. EAS, the areas of land which are the subject of this P. esolution are diagrammatically represented in Exhibit "A" and hereto incorporated herein by this P. esolution, and commonly known as P. olling Hills P. anch Subarea Ill and consist o£ 606.9 acres located north of Proctor Valley P. oad and east ot' Hunte Parkway, within the P. olling Hills llanch (£ormerly Salt Creek P. anch) Planned Community("Project Site"); and B. Project; Application for Discretionary Approvals WHI~I~EAS, on October 15, 2001, Pacific Bay Properties and as assumed by its successor in interest ("Developer") filed applications with the Planning and Building Department of the City of Chula Vista requesting, amendments to the City of Chula Vista General Plan and Salt Creek P. anch General Development Plan and Sectional Planning Area Plan due to density changes within 606,9 acres within the P. olling Hills l~anch development known as Subarea III ("Project"); and WHEPd~AS, the amendments to the Salt Creek P. anch General Development Plan and Sectional Planning Area Plan consist o£: 1 ) elimination of Neighborhood 13 and replace this area as open space, 2) adjust the land use boundaries of Neighborhood 9, 10A, 10B, 11 and 12;3) transfer residential units lost by the elimination of Neighborhood 13 to other neighborhoods within Subarea III and 4) change the land use designation of' Neighborhood 9 kom SF1 to SFE and reduce the minimum lot size requirement from 15,000 to 10,000 square feet and; and C. Prior Discretionary Approvals WHER. EAS, the development of the Project Site has been the subject matter of various entitlements and agreements, including: 1) Salt Creek P. anch General Development Plan (GDP) approved by City Council P. esolution 15875 on September 25, 1990 and amended by City Council P. esolution 2001-103 on April 10, 2001; 2) Salt Creek P. anch Sectional Planning Area (SPA) Plan approved hy the City Council P. esolution No 16555 on March 24, 1992 and amended by City Council P. esolution 2001-103 on April 10, 2001; 3) the P. olling Hills P. anch Planned Community District l~egulations and Land Use Map approved by City Council Ordinance No, 2499 on April 7, 1992 and amended by Ordinance No, 2533 on April 24, 2001; 4) Public Facilities Financing Plan approved by City council l~esolution 16555 on March 24, 1992 and amended by P. esolution 2000- Ordinance No. Page 2 190 on April 10, 2001; 5)Tentative Subdivision Map for Salt Creek Ranch, Chula Vista Tract 92-02 previously approved by City Council Resolution Number 16834 on October 6, 1992 and amended by City Council Resolution 2000-190 on June 13, 2000; and 6) Agreement for Monitoring of Building Permits approved by City Council Resolution 2003-166 on April 15, 2003; and D. Planning Commission Record of Application WHEREAS, the Planning Commission held an advertised public hearing on the Project on April 23, 2003, and voted xxxxxx to forward a recommendation to the City Council on a proposal to amend the Salt Creek Ranch General Development Plan and Sectional Planning Area (SPA) Plan; and WHEREAS, The proceedings and all evidence introduce before the Planning Commission at the public hearing on this project held on April 23, 2003, and the minutes and resolution resulting there from, are hereby incorporated into the record of this proceedings; and E. City Council Record of Application WHEREAS, the City Clerk set the time and place for the hearing on the Project applications and notices of said hearings, together with its purposes given by its publication in a newspaper of general circulation in the city, and its mailing to property owners within 500 ft. of the exterior boundaries of the Project Sites at least ten days prior to the heating. F. City Council Hearing WHEREAS, a duly called and noticed public heating was held before the City Council on May 13, 2003 on this Project. NOW THEREFORE BE IT RESOLVED that the City Council hereby find, determine and resolve as follows: 1I. PREVIOUS SEIR 91-03 REVIEWED AND CONSIDERED; FINDINGS; APPROVALS The City Council of the City o fChula Vista has previously reviewed, analyzed, considered, and certified FSEIR 91-03, Salt Creek Ranch and Addendum. 111. COMPLIANCE WITH CEQA The Environmental Review Coordinator has determined that any impacts associated with the proposed tentative subdivision map have been previously addressed by FSEIR 91-03, Salt Creek Ranch and has, therefore, prepared an Addendum to said FSEIR. The Tentative Map is in substantial conformance with the conceptual tentative map and grading plans on which the FSEIR analysis ;vas based and, therefore, approval and implementation of the Tentative Map does not change the basic conclusions of the FSEIR. The Addendum has been prepared in Ordinance No.. Page 3 accordance with requirements of the California Environmental Quality Act, State EIR Guidelines and the Environmental Review Procedures of the City of Chula Vista. IV. INDEPENDENT JUDGMENT OF CITY COUNCIL The City Council finds that the Addendum to FSE1R 91-03, reflects the independent judgment of the City Council of the City of Chula Vista and hereby considers the Addendum to FSEIR 91-03, Salt Creek Ranch. NOW, THEREFORE, the City of Chula Vista does hereby find, determine and ordain as follows: A. FINDINGS FOR P-C PLANNED COMMUNITY ZONE AMENDMENTS The City Council hereby finds that the proposed amendments to the Salt Creek Ranch Planned Community District Regulations are consistent with the City of Chula Vista General Plan, as concurrently amended, and public necessity, convenience, the general welfare and good zoning practice support the amendment. B. APPROVAL OF ZONE AMENDMENTS The City Council does hereby approve the amendments to the Planned Community District Zoning District Map and Residential Property Development Standards as as represented in Exhibit B and C. V. INVALIDITY; AUTOMATIC REVOCATION It is the intention of the City Council that its adoption of this Ordinance is dependent upon the enforceability of each and every term, provision and condition herein stated; and that in the event that any one or more terms, provisions or conditions are determined by a Court of competent jurisdiction to be invalid, illegal or unenforcable, this resolution shall be deemed to be automatically revoked and of no further fome and effect ab initio. VI. EFFECTIVE DATE This ordinance shall take effect and be in full force on the thirtieth day from and after its adoption. Presented by Approved as to form by Bob Leiter Ann Moore Planning and Building Director City Attorney £1~' OF CHUL& ¥1~1'^ May 13, 2003 TO: The Honorable Mayor and City Council FROM: Ann Moore, City Attorney SUBJECT: Revised Ordinance for Item Cf 17 This is the same Ordinance, but includes a strikeout version to indicate, for your convenience, the changes that were made. ORDINANCE NO, AN ORDINANCE OF THE CiTY OF CHULA VISTA AMENDING TITLE 15, CHAPTER 15.04 OF THE CHULA VISTA MUNICIPAL CODE RELATING TO EXCAVATION, GRADING AND FILLS AS IT RELATES TO IMPLEMENTATION OF THE MSCP SUBAREA PLAN WHEREAS, the Multiple Species Conservation Program (MSCP) Subregional Plan was developed as a comprehensive, long-term habitat conservation plan which addressed multiple species and the preservation of natural habitat within a 900 square mile study area in south San Diego County; and WHEREAS, MSCP Subregional Plan contemplated that local jurisdictions, including the City of Chula Vista ("City"), would participate in the MSCP Subregional Plan and seek federal and state take authorization by adopting a subarea plan consistent with the conservation strategies contained in the MSCP Subregional Plan; and WHEREAS, the City prepared and submitted a Draft MSCP Subarea Plan to the U.S. Fish and Wildlife Service and the City of San Diego in August, 1996, for inclusion in the Draft MSCP Subregional Plan and for consideration by the lead agencies in their environmental review of the Draft MSCP Subregional Plan; and WHEREAS, as lead agencies for the Multiple Species Conservation Program ("MSCP") Subregional Plan, the U.S. Fish and Wildlife Service and the City of San Diego prepared and certified a Final Environmental Impact Report/Environmental Impact Statement for the Issuance of Take Authorizations for Threatened and Endangered Species due to urban growth within the Multiple Species Conservation Program ("MSCP") planning area ("Final EIR/EIS") in January, 1997 and adopted the Final MSCP Subregional Plan in August, 1998; and WHEREAS, as a responsible agency, the City of Chula Vista ("City") participated in the preparation of the Final EIR/EIS through consultation and comment; and WHEREAS, after the adoption of the MSCP Subregional Plan, the City, and the U.S. Fish and Wildlife Service and the California Department of Fish and Game (hereinafter referred to as the "Wildlife Agencies") further negotiated a number of aspects of the 1996 Draft Subarea Plan, including but not limited to, the refinement of the conditions of coverage for covered projects, the type and extent of protection for narrow endemic species, the amount and type of public facilities and infrastructure to be allowed in the Preserve, and an acceptable configuration for the university site adjacent to the Preserve; and WHEREAS, following a review by the Wildlife Agencies and public comment period, the City issued a draft MSCP Subarea Plan dated September 11, 2000, and a Draft Implementing Agreement dated September 20, 2000, to the Wildlife Agencies and the general public; and WHEREAS, on September 22, 2000, the City submitted to the U.S. Fish and Wildlife Service an application for a Section 10(a)(l)(B) permit for incidental take pursuant to the U.S. Endangered Species Act of 1973, as amended, and submitted to the California Department of Fish and Game an application for a take authorization permit pursuant to Section 2835 of the California Endangered Species Act, with both applications including the Draft MSCP Subarea Plan dated September 11, 2000, and a Draft Implementing Agreement dated September 20, 2000; and WHEREAS, the Planning Commission and the City Council set the time and place for a joint hearing on said project and notice of said hearing, together with its purpose, was given by its publication in a newspaper of general circulation in the City at least 10 days prior to the hearing; and WHEREAS, the hearing was held at the time and place as advertised on October 17, 2000, in the Council Chambers, 276 Fourth Avenue, before the Planning Commission and City Council; and WHEREAS, approval of the MSCP Subregional Plan and adoption of the Chula Vista MSCP Subarea Plan dated September 11, 2000 were discretionary actions covered by the Final EIR/EIS, and therefore, as a responsible agency, the City had a more limited role than does a lead agency under the California Environmental Quality Act ("CEQA"); and WHEREAS, the City prepared an Addendum dated September 11, 2000, pursuant to CEQA Guidelines section 15164 to fulfill the City's obligations as a responsible agency; and WHEREAS, the City issued Findings of Fact for each of the significant environmental effects of implementing the Chula Vista MSCP Subarea Plan, dated September 11, 2000, in conformance with the CEQA and the CEQA Guidelines, which enabled the City to make full use of the Final EIR/EIS and the Addendum (CEQA Guidelines, sections 15101, 15093 and 15096, subd. (h)); and WHEREAS, the City considered the Final EIR/EIS prepared by the lead agency together with the Chula Vista MSCP Subarea Plan dated September 11, 2000 and the Draft Implementing Agreement dated September 20, 2000, and reached its own conclusion about whether and how to approve the MSCP Subregional Plan and the Chula Vista MSCP Subarea Plan dated September 1 l, 2000; and WHEREAS, the City also prepared an MSCP Mitigation and Implementing Agreement Monitoring Program For Biological Resources dated October 12, 2000, in compliance with Public Resources Code section 21081.6, subd. (a)(1); and WHEREAS, the City Council reviewed and considered the Final EIR/EIS prepared and certified by the U.S. Fish and Wildlife Service and the City of San Diego in January, 1997, the Addendum to the Final EIR/EIS (October 2000), the Findings of Fact and Statement of Overriding Considerations, and the MSCP Mitigation and Implementing Agreement Monitoring Program for Biological Resoumes (October 2000) and found that the documents were prepared in accordance with the requirements of CEQA, the CEQA Guidelines, and the Environmental Review Procedures of the City of Chula Vista, and also found that the Final EIR/EIS (January 1997) and Addendum to the Final EIR/EIS adequately addressed the environmental impacts of the MSCP Subregional Plan and the Draft Chula Vista MSCP Subarea Plan, dated September 11, 2000; and WHEREAS, on October 17, 2000, the City Council approved the MSCP Subregional Plan dated August, 1998, as the framework plan for the Chula Vista MSCP Subarea Plan; conditionally adopted the MSCP Subarea Plan, dated September 11, 2000, and the Mitigation and Implementing Agreement Monitoring Program for Biological Resources dated October, 2000; and WHEREAS, subsequent to the City Council conditional approval on October 17, 2000, the City decided to make further changes to the Draft MSCP Subarea Plan, dated September 11, 2000, including but not limited to additional information not previously available about the Quino checkerspot butterfly, a federally listed endangered species. The City believed it was prudent to add coverage for the Quino checkerspot butterfly into the draft MSCP Subarea Plan prior to the Subarea Plan and associated implementing documents being published in the Federal Register; and WHEREAS, since October 2000, changes to the Draft MSCP Subarea Plan have been made as necessary to complete a final Draft MSCP Subarea Plan, including 1) measures to provide coverage for the Quino checkerspot butterfly; 2) the preparation of three implementing ordinances; 3) final revisions to the Implementing Agreement, 4) conservation of additional lands not previously anticipated to be preserved; and 4) other revisions to address unresolved issues including, but not limited to, changed circumstances, wetlands, and funding for long term management; and WHEREAS, the City determined that as part of the implementation of the MSCP Subarea Plan, the City of Chula Vista General Plan would be amended to incorporate the MSCP Subarea Plan as a separate element of the General Plan; and WHEREAS, the City has prepared a Supplemental Environmental Impact Report and Environmental Assessment (No. 03-01) to address all of the changes to the revised final Draft MSCP Subarea Plan; and WHEREAS, on October 8, 2002, the City submitted a revised application to the Wildlife Agencies for a Section 10(a)(1)(B) permit for incidental take pursuant to the U.S. Endangered Species Act of 1973, as amended, and submitted to the California Department of Fish and Game an application for a take authorization permit pursuant to Section 2835 of the California Endangered Species Act, with all of the required application materials including the revised Draft MSCP Subarea Plan, the revised Draft Implementing Agreement, Draft Implementing Ordinances and the Drafl Supplemental EIR and EA; and WHEREAS, on October 10, 2002 a Federal Register notice was published commencing a 60-day public comment period on the Incidental Take Applications, Public Review Draft MSCP Subarea Plan, dated October 2002, implementing documents and associated environmental documents. A public notice was also published on October 11, 2002 announcing the availability of the Draft SEIR and EA to meet the requirements of the California Environmental Quality Act; and WHEREAS, public review of the Draft MSCP Subarea Plan and implementing documents closed on December 9, 2002. The City received 12 letters of comment from the public and has prepared responses to the comments and made changes to the Public Review Draft MSCP Subarea Plan, dated October 2002 and implementing documents, and has prepared a final City of Chula Vista MSCP Subarea Plan, dated February 2003, Draft Implementing Agreement, dated February 2003; and final draft implementing ordinances; and WHEREAS, the Planning Commission set the time and place for a public hearing on said project and notice of said hearing, together with its purpose, was given by its publication in a newspaper of general circulation in the City at least 10 days prior to the hearing; and WHEREAS, the hearing was held at the time and place as advertised on April 9, 2003 in the Council Chambers, 276 Fourth Avenue, before the Planning Commission; WHEREAS, the Planning Commission recommended to the City Council the approval of the MSCP Subarea Plan and associated implementing documents; and WHEREAS, the City Council set the time and place for a public hearing on said project and notice of said hearing, together with its purpose, was given by its publication in a newspaper of general circulation in the City at least 10 days prior to the hearing; and WHEREAS, the hearing was held at the time and place as advertised on May 2, 2003 in the Council Chambers, 276 Fourth Avenue, before the City Council; and WHEREAS, the conditional adoption of the Chula Vista MSCP Subarea Plan, dated February 2003 and associated implementing ordinances will not constitute a binding set of obligations on any public or private entity within the City of Chula Vista unless and until 1) the U.S. Fish and Wildlife Service issues a biological opinion which affirms the conservation strategies in the Chula Vista MSCP Subarea Plan, dated February 2003 and the Draft Implementing Agreement, dated February 2003, 2) take permits and its conditions are issued by both Wildlife Agencies that are consistent with the Chula Vista MSCP Subarea Plan, dated February 2003, and Draft Implementing Agreement, dated February 2003, and 3) the City approves and executes an Implementing Agreement substantially in the form of the Implementing Agreement, dated February 2003; and WHEREAS, the City Council considered the Supplemental E1R and EA at its hearing of May 13, 2003 and adopted the Chula Vista MSCP Subarea Plan (dated February 2003) with said conditions; and WHEREAS, implementation of the MSCP Subarea Plan adoption of three MSCP Implementation Ordinances, including the Habitat Loss and Incidental Take Ordinance, the Otay Ranch Grazing Ordinance and revisions to the Excavation, Grading and Fills Ordinance. These ordinances will only take effect after issuance of the take permits and the necessary timelines for ordinances pursuant to the City Charter have passed. NOW, THEREFORE, the City Council of the City of Chula Vista does hereby ordain as follows: Section I. That Chapter 15.04 of the Chula Vista Municipal Code be and the same is hereby amended to read as follows: EXCAVATION, GRADING, £' _ij~.'_~ING~.GR[,~JI1NG AND FILLS~ Sections: 15.04.005 Purpose and intent of provisions. 15.04.010 Definitions. 15.04.015 Permit required for all laud development work and soil investigations. 15.04.020 Compliance with conditions and specifications required-Deviations from standards permitted when. 15.04.025 Provisions not to affect other code requirements. 15.04.030 Facilities within public rights-of-way-Assignment of costs. 15.04.035 Commencement and completion of work-Extension of time. 15.04.040 Slopes-Design requirements generally. 15.04.045 Building pads-Design requirements. 15.04.050 Embankment requirements-Soil engineer may be required. 15.04.055 Expansive soil grading requirements. 15.04.060 Landscaping and irrigation system. 15.04.065 Slopes-Tops and toes to be rounded. 15.04.070 Slopes-Blending into existing terrain. 15.04.075 Slopes-Horizontal slope rounding. 15.04.080 Preservation of existing monuments. 15.04.085 Work in conj unction with subdivision of property-Requirements generally. 15.04.090 Work in conjunction with subdivision of property-Standard land development permit-Requirements. 15.04.095 Work in conjunction with subdivision of property-Contract for completion of improvements-Requirements-Bonds. 15.04.100 Building construction-Land development permit required- Prerequisite to building permit. 15.04.105 Damaged or disused public improvements-Notification- Corrective action required. 15.04.110 Public to be protected from hazards during construction-Fences and barricades required when. 15.04.115 Safety precautions. 15.04.120 Fence specifications-Modification permitted when. 15.04.125 Noncompliance. 15.04.130 Modification of approved plans. 15.04.135 Responsibility of permittee-Compliance with plans and requirements. 15.04.140 Completion of work-Final reports. 15.04.145 Notification of completion. 15.04.150 Exemptions from applicability designated. 15.04.155 Contractor-Qualifications required. 15.04.160 Work to be performed by licensed contractor. 15.04.165 Inspection of laud deveh~ment ~ork gr~t~!iug ~perat~:n~, -Responsibility therefore. 15.04.170 Transfer of responsibility for approval. 15.04.175 Plans and reports to be prepared by engineers. 15.04.180 Private contract performance bond-Required when-Issuance conditions generally. 15.04.185 Private contract performance bond-Conditions-Notice of default-Contents-Effect. 15.04.190 Private contract performance bond-Principal or surety liable for cost of completing work when. 15.04.195 Private contract performance bond-Liability of c4ty~_~'_~ for performance of certain work. 15.04.200 Private contract performance bond-Cash deposit accepted in lieu when-Default correction procedure. 15.04.205 Private contract performance bond-Not required when. 15.04.210 Private contract performance bond-Required from certain contractors when-Exception. 15.04.215 Private contract performance bond-Conditions-Compliance with certain terms and provisions required. 15.04.220 Private contract performance bond-Method of estimating amount-Schedule. 15.04.225 Release of bonds/security. 15.04.230 Cit? eng~:rc','rCity ~llgiuee~-Enforcement responsibility and permit issuance authority. 15.04.235 ~:3~yenghiee~,City Eng, ineer-Powers and duties generally. 15.04.240 CityengiaeerCity Em, ineer-Authority to determine applicable fees. 15.04.245 Cil~ eugin~(~}~ En~in~e£-Duty to consider certain recommendations and deny certain applications. 15.04.250 Cily e~}ginee~City ~n~ineer-Grounds for cancelling permit or amending plans. 15.04.255 Appeals-Authorized when-Determination authority. 15.04.260 Appeals-Time limit for filing-Form. 15.04.265 Permits-Application-Procedure generally-Detail plan required. 15.04.270 Permits-Application-Detail plans and specifications required. 15.04.275 Permits-Issuance-Prerequisites and contents. 15.04.280 Investigations authorized and required when-Fee. 15.04.285 Agreement required for uncontrolled embankments-Additional specifications. 15.04.290 Fees-Collection-Method of estimation-Verification-Payment required-Exemptions. 15.04.295 Fees-Schedule fur computation. 15.04.305 Fees-To be doubled in certain cases-Effect of imposition. 15.04 310 Violations-Declared unlawful and public nuisance-Abatement authority. 15.04.315 Abatement of dangerous conditions. 15.04.320 Emergency abatement by c~City-Liability for costs. 15.04.325 Costs of abatement-Special assessment procedure-Statutory authority. 15A)4.326 Cnnflicts. 15.04.005 Purpose and intent of provisions. The purpose of this chapter is to establish minimum requirements for land dev~lopmeut work gr~d.mg, e~¥e~:at~n~ nnd i~tlmg o~: tm~d~ to provide for the issuance of pem~its and for the enforcement of the requirements. These provisions are supplementary and additional to the subdivision and zoning regulations of this code and shall be read and construed as an integral part of said regulations and the land development patterns and controls established thereby. It is the intent of the cCi~ ~Council to protect life and property and promote the general welfare; enhance and improve the physical environment of the community; and preserve, subject to economic feasibility, the natural scenic character of the city. In administering these provisions, the following goals should be respected: A. Enst~rhig that future development of lands, particularly in the hilly areas of the city, occurs hi the manner most compatible with surrounding areas and so as to have the least adverse effect upon other persons or lands, or upon the general public; B. Ensuring that soil will not be stripped and removed fi'om lands in the more scenic parts of the city, leaving the same barren, unsightly, unproductive, and subject to erosion and the hazards of subsidence and faulty drainage; C. Encouraging the planning, design and development of building sites in such fashion as to provide the maximum in safety and human enjoyment, while adapting development to and taking advantage of the best use of the natural terrain; D. Encouraging and directing special attention toward the retaining, insofar as practical, the natural planting and a maximum number of existing trees. E. Eusuring a~impact to sensitive !~iologica! resonrces~ as defi!~ed by Section 17.35,030 of the Chu!a Vista Mgnicilml Code~ is con~is!ent with the goals and polieies of the Chula Vista MSCP Subarea Plau. (Ord. 1797 . 1 (part), 1978). 15.04.010 Definitions. The following words and ptn-ases, when used in this chapter, shall be construed as defined in this section: "Appurtenant structures" means man-nmde structures related to and necessitated by the proposed grading and includes paved drainage ditches, inlet structures, lined channels, culverts, outlet structures and retaining walls. "Building pad" means that portion of an embankment and/or excavation contained within an area bounded by a line five feet outside the foundation footing. "Building site" means that portion of an embankment and/or excavation containing the building pad(s) and lying ~vithin an area bounded by the top of slopes and/or toe of slopes within the lot or parcel. "Certify" or "certification" means a signed written statement that the specific inspection and tests which were required have been performed and that the works comply with the applicable requirements of this chapter, the plans, and the permit. !~Ciearit~g" mean~ thc cutting of natural vegetatio~ ~ any ntcans,_ without disturbance t~ the soil and root system. t~Clcaring and Grabbing Pe!Tni[7 means a permit !ssucd~ur~uatu lo this chapter that allows clearing and grubbing that isnot in association with ¢!ther I ~md Dcve!opment Work. "Compaction" means densification of a soil or rock fill by mechanical or other acceptable procedures. "Contractor" means a contractor licensed by the state to do work covered by tiffs chapter. A contractor may be authorized to act for a property owner in doing such work. "Contract, private" means an agreement between a property owner and a qualified contractor to do land development work. "Embankment" or "fill" means any act by which earth, sand, gravel, rock or any other material is deposited, placed, pushed, dumped, pulled, transported or moved to a new location and the condition resulting therefrom. "Embankment, uncontrolled" means any embamkJnent constructed as land development on which no soil testing was performed or no compaction reports or other soil reports were prepared or submitted. "Engineer, private" means a civil engineer registered by the state. A private engineer may be authorized to act for a property owner in doing work covered by this chapter. "Engineering Geologist" means a certified engineering geologist, registered by the state, who is engaged in the practice of applying geological principles and data to engineering problems dealing with naturally occurring rock and soils for the purpose of assuring that geological factors are recognized and adequately interpreted in engineering practice. "Erosion" means the process by which the ground surface is worn away by the action of water or wind. "Excavation or cut" means any earth, sand, gravel, rock or any similar material which is cut into, dug, quarried, uncovered, removed, displaced, relocated or bulldozed by man, and the conditions resulting therefrom. "Grade" means the elevation and cross-sections established for the finished surface. All grades shall be based upon the official datum of the city. "Grading" means any excavating or filling or combination thereof and shall include the land in its excavated or filled conditions~ ~'G 'u ~bing" neans tbc removal of_t)atural vcgetatinn by any me~ns includthg ren~oval of the root ~m. "Land development permit" means a permit, issued pursuant to this chapter,to c~)nduc[ !,a id Deve opment X~ ork.. "Land Development Work" means nutking of excavations and embankments on private property and the construction of slopes, drainage structures, fences and other facilities incidental thereto, where it is necessary to safeguard life, limb, health, property and public welfare by regulating and controlling the design, construction and quality of materials, l.an~ devc!opment work also includes other assoc!atcd grading, and 9!eartpg a~&qr g tbb l!g conducted in prepaladon for s3c ! de~ elopment. "Landscape architect" means a landscape architect, registered by the state, who performs professional work in physical land planning and integrated land development, including the design of landscape planting programs. "Landscape manual" means the current City of Chula Vista Landscape Manual approved by resolution of the (ity Council. "Minor slope" means a slope fora- feet or less in vertical dimension in either cut or fill, between single family lots and not parallel to any roadway. "Natural terrain" means the original contour of a site prior to any grading. "Permittee" means any person to ~vhom a permit is issued pursuant to this chapter. "Property owner" means the owner, subdivider or developer of real property which will be benefited by the proposed land development work. "Property, public" means property owned in fee by the ~ i{y~ ~[y, or dedicated for public use. "Public th~provement" means publicly owned construction, structures or facilities in the public right-of-way designed for the public use, safety or general welfare. "Public rights-of-way" means public easements or dedications for s~'eets, alleys and/or other use. "Rough grading" is the condition where the ground surface approximately conforms to the design grade, generally within 0.5 feet. "Slope" means the inclined exposed surface of a fill, excavation or natural terrain. "Slope, natural" means the predominant slope or slopes of land in its original condition prior to any grading. "Soil engineer" means a civil engineer registered by the state who submits evidence to the satisfaction of the city engineer(, i!y Engi!!eel that: 1. He is engaged in the practice of civil engineering and spends a majority of his time in the field of applied soil mechanics and foundations engineering; 2. He has at least four years of responsible practical experience in the field of applied soil mechanics; 3. He is qualified to make the investigations and determinations, render the reports and opinions and perform the duties of a soil engineer as required by this chapter. All persons meeting the qualifications set forth above shall be recognized by the C¢ity Eengineer as qualified to perform soil engineering under the provisions of this chapter. "Soil, expansive" means any soil which swells more than three percent when prepared and tested by a method approved by the Ccity Eengineer. "Subdivider" means a person, firm, corporation, partnership or association who causes land to be divided into one or more subdivisions for himself or others as defined by those sections of the Government Code known as the Subdivision Map Act. (Ord. 2128 . I (part), 1985; Ord. 1877 . 1, 1979; Ord. 1797 . 1 (part), 1978). 15.04.015 Permit required for all land development work and soil investigations. No person, either as property owner, contractor, private engineer or otherwise, shall do or shall cause to be done any land development wo!'k without first having obtained eithe' a a~d dele opme~12ermJt or clearing and grubbingpem~it to do such work and hay v,= held: an~ 'e-o~'ad ng or l~'e- cica 'lng meeting if required h¥ the (ity t t~eineeK?ity Entdneer, except as provided in Section 15.04.150 o 'this Chapter. Soil investigations by a soils engineer or engineering geologist which involves trenching or scarifying of the natural ten-ain shall require a permit. A special investigation fee shall be paid prior to issuance of such permit. (Ord. 1797 . 1 (part), 1978). 15.04.017 Other Required Perrllits P~or to t ~x: Ci!y's B~u~nc¢ at' a la~d dcYe!op~n~ot pcnmt or ~fi~d grubbing Pe~h ~be ~pp~ga~t sh~!! ~ho~x c~mp!i~nce with a !fabit~ !,os~ and Iacid~ta! Tak~ (HLIT) Pe~I issu~:pursu~ ~o Ctl~ 17.35 of the ('h~Ia Vb!a Municipal Cod~, !hr ~rc~5 b~o!pg~! re~9~[ges, Se~ion 7 xs 03( oflhe Cbt la V sta M ~ c pa Code and are within !) dc~te~mcnt ~eas o[~l~id~ o! Co~ercd Eroiect~,. ~ defiued bg Section~ 17 35 )10 of he Chula Vista Code; or Prior to he ( Jty~x Bsuaacc ~tTa !aM d~xtclopmcut pegni! or ~eafing ~d gr~ing p~t ~r c ) tam ~cBsi ~ bi,long resogrces~ as deit~mc! by S~c!!gn !~75 030 ~lhe Chu~qstg Mun ~!oal Code: a~d are ~ithin thc development areas of Cad,red Projects, a~ defingd by S~ign !~5,03~!he ~4v~. M~icipal Code, the applicant shall sho~: cor~liance with aILa~lic~ provisio~ o! previou~ pr~e~ ca!j!!cmen[s [ss~zcd by the City and with any gpp!icab!e conditio~!~c~ver~ge Sub~a pla~n, o~ detcnmn~d hy ~hc Director of Pl~m~ing andB[ ild~or des Pfiorm fl~c C t ~s s~m ~cc o 'a a ~d ceve ap uen pcrnfit or c c~i~ ~l~d znbb~ng VsaMtt c$a Code ~eapplca tshallobt f. ~ds o~xcompI~cewJh.~llapplcablefkderaland/orstate permits. 15.04.020 Compliance with conditions and specifications required-Deviations from standards permitted when. Except as herein provided, all Izind devclopme!~t work ~ork 4~m~' in la-n4 de.velopmen~ shall be done in accordance with the conditions of the required perm/t, and shall conform to the approved plans, standard drawings, specifications, landscape manual, subdivision manual, and general conditions as may be determined by the ~iLv engineevCity Engineer to be applicable to the work. Such documents are on file in the office of the Ccity Eengineer and shall be kept for public distribution in accordance with fee schedules in said office. In co~mection with land development work, deviations from the requirements of these standards may be permitted by the Ceity Eengineer based upon written reports and recommendations by qualified and recognized authorities subject to review by the ei[yCity. (Ord. 1797 . 1 (part), 1978). 15.04.025 Provisions not to affect other code requirements. This chapter shall not affect the requirements of any other chapter of this code requiring permits, fees or other charges, including those for sewer and se~ices, or affect any provisions concerning the granting of franchises. (Ord. 1797 . 1 (part), 1978). 15.04.030 Facilities within public rights-of-way-Assignment of costs. The following provisions of this section shall apply unless provision is made by an agreement pursuant to Sections 15.04.085 through 15.04.095 of this chapter: A. The property owner shall pay the ~ ib-CiIy for all the cost of placing, repairing, replacing or maintaining a city-owned facility within a public right-of-way when the ~'ityCit~'s facility has been damaged or has failed as a result of the constmction or existence of the owner's land development work during the process of such work. B. The costs of placing, replacing or maintaining the city-owned facility shall include the cost of obtaining a necessary altemate easement. (Ord. 1797 . 1 (part), 1978). 15.04.035 Commencement and completion of work-Extension of time. All gnMb~[~ and land development work shall be executed in accordance with the provisions of this chapter and the temps of the permit issued by the ('city Eengineer. Once commenced, work shall be carded out diligently until completed. Unless otherwise specified upon the permit, all work shall be completed within one hundred eighty days from the date of issuance of the permit. The Ceity Eengineer may grant one extension of time for the completion of the work. Such extension shall not exceed the original length of time designated on the permit. (Ord. 1797 . 1 (part), 1978). 15.04.040 Slopes-Design requirements generally. The inclination of each cut or fill surface resulting in a slope shall not be steeper than two horizontal to one vertical except for m/nor 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. Submission of reports by both a soils engineer and a certified engineering geologist containing the results of surface and subsurface 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 or property, and B. The installation of an approved special slope planting program and irrigation system. (Ord. 2128.2, 1985; Ord. 1797.1 (part), 1978). 15.04.045 Building pads-Design requirements. All building pads and building sites shall drain to an approved drainage facility unless otherwise approved by the Ceity Eengineer. (Ord. 1877 . 2 (part), 1979; Ord. 1797 . 1 (part), 1978). 15.04.050 Embankment requirements - Soil engineer may be required. A. Unless otherwise specified on the permit, all embankment for land development work shall be compacted in conformance with the provisions of the standard specifications. The permit may require that an engineering geologist and/or soils engineer, as appropriate, be responsible for the inspection and testing of the embankment work and inspection of excavations. The soils engineer and engineering geologist, if one or both are required by the permit, shall file with the Ceity Eengineer reports as required by Sections 15.04.140 and 15.04.270B. B. Where, in the opinion of the (dty Eengineer, the construction of an unconU'olled embankment would not be contrary to the public interest or welfare, a permit for such land development work may be issued in accordance with Section 15.04.285. Plans for uncontrolled embankment shall be complete in all respects except for soil analysis and compaction requirements. Uncontrolled embankment slopes shall not be steeper than three horizontal to one vertical. (Ord. 1877 . 2 (part), 1979; Ord. 1797 . 1 (part), 1978). 15.04.055 Expansive soil grading requirements. If, during the land developn!enl work g~,tin?, opera, fiord, expansive soil is found within two feet in cut or three feet in fill of the finished grade of any area intended or designed as the location for a building, the permittee shall cause such expansive soil to be removed from such building area to a minimum depth of two feet in cut or three feet in fill and replaced with non-expansive soil properly compacted; provided, however, the Ceity Eel~gineer may, upon receipt of a report by a soils engineer certifying that he has investigated the property and recommending a design or footings or floor slab or other procedure that in his opinion will alleviate any problem created by such expansive soil, waive the requirement that such expansive soil be removed and replaced with non-expansive soil. (Ord. 1797 . 1 (part), 1978). 15.04.060 Landscaping and irrigation system. All cut and fill slopes shall be planted and imgated in accordance with an approved plan. Said plan shall be prepared in accordance with the city landscape manual and shall be approved by the City Landscape Architect.. and the Director of P!annin~and Buildi!~ or dcsit~nce, as !~eccssa!'y (Ord 2678 . 2, 1996; Ord 2128 3, 1985; Ord 1797 . 1 (part), 1978). 15.04.065 Slopes-Tops and toes to be rounded. The tops and toes of all major slopes in public view shall be rounded in accordance with the city standard drawings. (Ord. 1797 . 1 (pan), 1978). 15.04.070 Slopes-Blending into existing terrain. All man-made slopes shall be blended into existing terrain to produce a natural-appearing ttansition fxom the face of man-made slopes into natural ground. This blending shall be accomplished in accordance with City of Chula Vista Standard Drawings. Undulating top and toe of slopes and variable slope ratios should be used to achieve natural-appearing slopes. (Ord. 1797 . 1 (part), 1978). 15.04.075 Slopes-Horizontal slope rounding. Rounding shall be accomplished in accordance with the City of Chula Vista Standard Drawings. (Ord. 1797 . 1 (part), 1978). 15.04.080 Preservation of existing monuments. All existing survey monuments shall be shown on the grading plan. Evidence indicating that arrangements have been made for the preservation and/or relocation of existing monuments shall be submitted tothe~ vei~inee~'C y ~ngi~ccrprior toissnanceofalanddevelopmentpermit. (Ord. 1797 . 1 (part), 1978.) 15.04.085 Work in conj unction with subdivision of proper ty-Requirements generally- A subdivider of land required to do land development work as the result or condition of the approval of the tentative map shall perform such work under one of the following procedures, as set forth in Sections 15.04.090 and 15.04.095. (Ord. 1797 . 1 (part), 1978; Ord. 1596 . 1 (part), 1974; Ord. 1455 . i (part), 1973; prior code . 29.2.6 (part)). 15.04.090 Work in conjunction with subdivision of property-Standard land development permit-Requirements. Should the subdivider desire to do certain land development work prior to entering into cont.'act with the t i~¥City to install and complete all subdivision and land development work, he may make application to do so un~er a standard land development pertint or c!earingatid grubbing permiL if the land d~velopm~nt work is limited to c!eari~ and ~mrubbing only. This application shall be accompanied by detailed plans and specifications based upon tbe approved tentative map and in conformity with the provisions of Sections 15~04 Q17 and: 15.04.040 tlu'ough 15.04.075 of this chapter. A schedule and estimate based upon such plans and specifications shall accompany the application. (Ord. 1797 . 1 (part), 1978). 15.04.095 Work in conjunction with subdivision of property-Contract for completion of improvements-Requirements-Bonds. A. Should the subdivider desire to do certain land development work in conjunction and concurrently with installation and construction of required public improvements, he may enter into a contract with the ei',y(ity to make, install and complete all improvements and land developments in accordance with I approved platts and specifications. B. Prior to any construction of improvements and/or land development work, the subdivider shall have complied with and performed the following requirements: 1. Subdivider slxall file with the Ccity (clerk detailed plans and specifications (or statement that work ~vill be accomplished in accordance with standards and specifications of the city) approved by the Ccity Eengineer for all public improvements and land development together with a detailed cost estimate approved by the Ccity !:engineer and an estimate of time reasonably necessary to complete the same. 2. Subdivider shall enter into a contract with the ~it3*Ci~y to make, install and complete within the time fixed by the ~:i~y e~inee~'(i!y Engineer but in no case more than two years from the date of execution of said contract, all improvements and land development in accordance with the approved plans, and shall cause to be filed with the ~'it? t~let:l~City Clerk a faithful performance bond payable to the eilyCily which shall insure the performance of the contract and the completion of the improvements and land development work. The subdivider shall additionally file with the tit3 elelleC!ty Clerk a labor and material bond to inure to the benefit of those persons entitled to the protection of Part III, Title IV, Chapter 11 of the Code of Civil Procedure. A cash deposit or letter of credit may be submflted in lieu of bonds hereinbefore described. Bonds and other forms of guarantee shall be in full conformity with the requirements for subdivision guarantees as set forth in the subdivision ordinance codified at Title 18 of this code. 3. The bond or other guarantee shall be based on the ( i~y enginee~£'it?' Engineer's estimate of the cost of the work and in accordance with the following schedule: a. Faithful performance bond: Public improvements ............ 50% of cost estimate, Land development .............. 50% of cost estimate; b. Labor and material bond: Public improvements ............ 50% of cost estimate, Land development .............. 50% of cost estimate. (Ord. 1797 . 1 (part), 1978). 15.04.100 Building construction-Land development per mit required-Prerequisite to building permit- A. An o~vner of land desiring to do land development work incidental to and in connection with the construction of a building or stmc~re shall present an application and obtain a land development permit or c!ear~ng ag~gr~bbi~g P_ermit. The c~y engineer,( ity E!~gi!~er may require an on-site field inspection of the rough grading phase of the work bet~veen representatives of the Ceity's Eengineering, Pplanning and Bbuilding Ddepamxtents and the permittee, civil engineer, soils engineer, bio!ogibt, as defined by Scctinn ! 7,33.030 of the Chula V mm M u!ficipal (ode5 and engineering geologist, as appropriate, before the issuance of a building permit. The permittee shall request a field inspection of the rough grading phase, if required, five working days prior to the inspection. The rough grading phase of the land development ;vork described on form PW-E-106B shall be completed prior to the issuance of a building permit except as provided below. The cilyCity may suspend any building permit where it is found that land development work is being done or has been done without a land development permit or clearing and grabbing permit until a land development permit or clearing and grubbing permit is issued. The city may not certify to the completion of the building where land development work has been done until a land development permit is obtained and certified as complete. B. Notwithstanding any provisions to the contrary in Subsection A, walls which are designed and constr'ucted to retain earth and are also integral portions of buildings may be constructed under building pemtits concun-ently with !ond developmcn[ g~,admg work within the project site. (Ord. 2128 . 4, 1985; Ord. 1877 . 2 (part), 1979; Ord. 1797 . 1 (part), 1978). 15.04.105 Damaged or disused public improvements-Notification-Corrective action required. The ~:ityengi~lee~:City !')~incer shall notify the property owner of such damage or failure as set forth in Section 15.04.030. The ci~yCity may withhold certification of the completion of a building or other permitted work where a notice has been issued. (Ord. 1797 . 1 (part), 1978). 15.04.110 Public to be protected from hazards during construction-Fences and barricades required when. During the con~,m~fio~ o~' land development work, the contractor and owner shall take all necessary measures to eliminate any hazard resulting from the work to the public in its normal use of public property or right-of-way. Any fences or barricades installed shall be substantially constructed and shall be properly maintained as long as the hazard resulting from the work exists. (Ord. 1797 . 1 (part), 1978). 15.04.115 Safety precautions. If at any stage of the work the ei~y e~gine~:City EEngmccr determines that further land development workk gtm]mg as authorized is likely to endanger any public or private property or result in the deposition of debris on any public way or interfere with any existing drainage course, the eity.engmt~t,City Engineer may require, as a condition to allo~ving the work to be continued, that such reasonable safety precautions be taken as he considers advisable to avoid such likelihood of danger. The permittee will be responsible for removing any silt and debris, deposited upon adjacent and downstream public or private property, resulting from his grading operations. Silt and debris shall be removed and damage to adjacent and downstream property repaired, as directed by the city e~gmee~City Engi~!eet. Erosion and siltation control may require temporary or permanent siltation basins, energy dissipators, or other measures as field conditions warrant, whether or not such measures are a part of approved plans. (Ord. 1877 . 2 (part), 1979; Ord. 1797 . 1 (part), 1978). 15.04.120 Fence specifications-Modification permitted when. A. Where a slope is created adjacent to a public right-of-way or other publicly used property, and the top of slope is xvithin ten feet of the property line and the height of the slope is three feet or greater and steeper than 4:1, a forty-eight inch high fence shall be erected between property line and the top of slope. The design of said fence shall be approved by the city eogi~ee~,City l~h~ioeer. Publicly used property is that property used frequently by persons other than the residents. B. The ei~ enghieerCity E~gineer may modify or delete the above requirements where it is evident that the land development work will present no hazard to the adjacent property or public right-of-way. (Ord. 1797 . 1 (part), 1978). 15.04.125 Noncompliance. A. If, in the eom'se of fulfilling Iris responsibility under this chapter, the private engineer, ~r-'~soils engineer o! biok~ist, as defined i!~Section !7,35.030 ol'the Chula Vista Municipal Cod% finds that the work is not being done in substantial conformance with this chapter or the plans approved by the ~ et~im~t~City Engineer or in accordance with accepted practices, he shall immediately notify the permittee, the person in charge of the ~i d d~clopment work grading., and the city eu:3it~,e~'Cit~ Engineer, in writing, on the nonconformity and of the corrective measures which should be taken. B. In the event the work does not conform to the permit or the plans or specifications or any instructions of the ~,ity en~m~,m,Cily [~n~neer, notice to comply shall be given in writing by the uity e,gin~:eff, Jity E!'~gineer to the permittee. As soon as practical after a notice to comply is given, the permittee or his contractor shall begin to make the corrections. C. If the ~itv e~gi,ec~City Engineer finds any existing conditions not as stated in the application, land developn~ent permit, clearing and grubbing permit, or approved plans, he may refuse to approve work until approval is obtained for a revised grading or clearing and grubbing plan which will conform to the existing conditions. (Ord. 1797 . 1 (part), 1978). 15.04.130 Modification of approved plans. A. Modifications of the approved grading or clea lng and g!¥bbing::~plan must be in writing and be approved by the eit? engineevCit2,' Engineer and/or his designated representative. All necessary soils and geological reports shall be submitted ~vith any substantial proposal to modify the approved grading plan. B. No land development work g~'ading in connection with any proposed modifications s~ll be pem~ed without the approval of the city e~gineevCity } ngineer anWor his designated representative. An addi~io~al l~e shatt Ix~ paid lo~ ~he e~t incubated by ~he e~tY in ~eviewing-amt ~4~[ng ~evised plans~ g~t~ ~t ~-~0~) t~tour ami ~ha~t ~ pau~or to~ro',;a! t~f {he re~ is~ ?!ans. (Ord. 1797.1 (p~), 1978). 15.04.135 Responsibility of permittee-Compliance with plans and requirements. All permits issued hereunder shall be presmned to include the provision that the permittee, his agent, contractors and employees, shall can'y out the proposed work in accordance with the approved plans and specifications and in compliance with all the requirements of the permit and this chapter. The civil engineer shall file a report as specified in Section 15.04.140. (Ord. 1797 . 1 (part), 1978). 15.04.140 Completionofwork-Final reports. Upon completion of the work the following reports shall be filed with the city engmee~City Engineer unless waived by him: A. A written statement by the private engineer that all and des!~k?pmeu~ work gmding-a ~d<or associoted drainage facilities have been completed in conformance with Sections 15.04.165 and 15.04.225. B. An as-built plan of the completed work prepared by a civil engineer. C. A final as-built soil engineer's report which shall include a written statement that inspections and tests were made during the grading, and that in his opinion all embankments and excavations axe in accordance with the provisions of this chapter and the permit and are acceptable for their intended use. Soil bearing capacity (except where the e4~y e%~erCil2' E!!gineer determines such is inapplicable), summaries of field and laboratory tests and locations of tests if not previously submitted, and the limits of compacted fill on an "as-built" plan shall be included in the report. The report shall include reference to the presence of any expansive soils or other soil problems which, if not corrected, would lead to structural defects in buildings constructed on the site. If such report discloses the presence of such expansive soils or such other soil problems, it shall include recommended corrective action designed to prevent slrucmral damage to each building proposed to be constructed upon the site. The final "as-built" report shall also contain a seepage statement or study as appropriate. D. A final "as-built" engineering geology report by an engineering geologist based on the "as-built" plan including specific approval of the grading as affected by geological factors. Where required by the e~:¢nee~{ty l~!~ine~r, the report shall include a revised geologic map and cross-sections and reconunendations regarding building restt'ictions or foundation setbacks. E. A tinal biology r~port, ii' deternm~ed neces~ar) b3 !he Dh'cc!or of P!~mfing and Bui!~hig or design~e~ wbich includes an assessment of the impacts on sensitive biological resom:ce3 aflkcted by the land dc~ elopment work, (Ord. 1877 . 2 (part), 1979; Ord. 1797 . I (part), 1978). 15.04.145 Notification of completion. The permittee shall notify the ~4[~ e~gmee~City Enghieer when the lar~d development work grading ~¢era~io~ is ready for final inspection. He shall also notify the City Landscape Architect and thc Director of ?la!min~, a!l¢ Buildin,g, or dcsignee~ when planting and irrigation are completed. Final approval shall not be given until all ~vork, including installation of all drainage slructm-es and facilities, sprinkler irrigation systems, planting and all protective devices have been completed and any required planting established and all as-built plans and reports have been submitted. The city engineerCity ~ineer maY accept in writing the completion of all work, or any portion of the work, required by the permit issued in accordance with this chapter and thereupon accept said work or portion thereof. (Ord 2678 . 3, 1996; Ord 1797 . 1 (part), 1978). 15.04.150 Exemptions from applicability designated. No person shall do any land dcvelopnxcnt work gn~i~ ~without first having obtained a L~and dDevelopment Perinit orC!earix~ and Grabbing Ppermit except for the following: A. The depositing of materials in any disposal area operated or licensed by the eityC~y; B. The making of excavation on any site or contiguous sites held under one ownership, in which all of the following are characteristic of the work: 1. A cut slope having a maximum steepness of three horizontal to one vertical. 2. A cut having a maximum vertical depth of ttu'ee feet at any point and a maximum average depth of eighteen inches. 3. No adverse effect upon an existing drainage pattern. 4. A top of slope no closer than one foot fi'om an exterior boundary line, and 5. The movement of less than two hundred fifty cubic yards of material; C. The making of embankment on any site or contiguous sites held under one ownership, in which all of the following are characteristic of the work: 1. None of the embankment exceeds three feet in vertical depth or has an average maximum depth in excess of eighteen inches, 2. None of the embankment is placed on existing ground having a slope steeper than five horizontal to one vertical, 3. Proposed fill slopes are no steeper than three horizontal to one vertical, 4. The embankment does not change or adversely affect the existing drainage pattern, 5. Adequate provisions are proposed to protect the embankment from erosion, 6. The toe of the embankment is no closer than one and one-half feet to an exterior property line, and 7. The total volume of embankment does not exceed two hundred fifty cubic yards of material; D. Excavation for foundations of buildings, structures, basements, cellars, swimrmng pools or basins which are authorized by appropriate permits obtained from the ?!annilig ~ind Building building ami J~;u:;iug D~tepartment; E. Excavation or embankment performed by a governmental agency, franchise holder, or their contractor incidental to the construction of roadways, pipelines, or utility lines within their rights of way; F. Foundations, as refen'ed to herein, shall not be consmxed to include foundations for retaining walls, drainage structures, or other structures appurtenant to the land development; O. Routh e m~intcnanc~ ofo na ncnt~l Igndsc0pi!~g,' H. Agricultur~ ope'a OhS. as dehned pursuanl to lhe (hula Vtsta~ k' u~uc~pal Code Section 17 ~,5.0~0, 1. Ma ute tance nf vegeta[ic, n it! acco 'da ~c w th an app ~'cd habitat ma~)agem~ot plan Or oth~! ~uch stun a plan, ! cons!st¢ '~ w th s ~ch plan. and p epa~ed pus[ a ~t to !he (,:tnl!~ Vista MS(! ~gbarea J. Maiuteuance of vc2getafion in a designated !'uel mnd~fica[iou zone. consistent with the (?hula ¥ ista MSCP Subarea: K. Clearing and gmbbi~!g in an m'ea located entirely *¥itbi~t a mapped Development Arc'p, as defiu~d by Sc(mm 17.35.030 of Ihe Cbula x, ~sta Mumctpal Code, where it has been demonstrated to t!!e sat!sfaetton of th~ l)irector of Plamting and Building, or designee, that no sensitix.'e bio!{)gica! rcs~)urces, as defined ~LS¢~tion 7.35. 30 ( f~¢ Chula V sta Municipal Code, exist; L. ( leari~g and grubbing c~tirely located i ~ a deve!opn~gnt area patside of a C~,;~cred Pro cot as defioed Sec!jun ! 7D5,030 of the Chula Vista Mtmic~ga! (7odc~ 1~ ~m m'ea!!~at ~ on~ acre 9r J~55 ~ 5~ is no[ p~rt urger co,It guous c!e~ng and grubbing ¢r¢~ ect~gJ~d doe~ m;t i~act sensil/x:~ biok~gical resources, wetlagda or 1 stcg n~ ?c~ered spec~s, as defined b>: Section !7,35.(130 9! thc~l~!~ist3 ~um~!~l (Ord. 1797 . 1 (pa~), 1978). 15.04.155 Contractor-Qualifications required. Every person doing land development work shall meet such qualifications as may be determined by the *:ily.engi~e,e~:City Eugineer an~'orDi!cctor of Pl~tini!lg ~lnd Buildh~to be necessary to protect the public interest. The ei~v e~gi~ee~C ity k~neer an&'o!; Dkector o[' Plmmiug nod Bui[dhlg may require an application for qualification ~vhich shall contain all information necessary to determine the person's qualifications to do the land development work. (Ord. 1797 . 1 (part), 1978). 15.04.160 Work to be performed by licensed contractor. All land development work shall be performed by a contractor licensed by the state. (Ord. 1797 . 1 (part), 1978). 15.04.165 Inspection o f ?_a?~d ~c[eveh~c~lt ~'oi([,~r a din~. opera }io~s-Responsibility therefor. A. ~:.~? [iagme~,~:City [ ngi~r. ~e ~i~y e~ im~*'~City E~gineer shall be responsible for all inspections of work not othenvise delegated to some other person. ~ese inspections include, but are not li~ted to: drainage hcilities, fencing, and compliance with state and ciW regulations ~ reg~d to the health and safety of the general public. B. Private Engineer. The private engineer shall be responsible for all s~eying work necessaw for proper cons~cfion of the grading and &ainage hcilities. He shall inspect the site to ~s~e that ~e emba~ent and cut slopes are placed at ~e~ proper line and ~ade. He shall, prior to ~e release of bon~ and sureW, provide a wri~en statement that in his professional opinion, all work inco~orated the grading and ~amage plans, author~ed under the grading pe~t to include ~ading, dramge, and cons~ction of app~enant stmct~es, have been cons~cted to ~e lines and grades in substantial confom~ance with the approved plans, and any approved revisions thereto. C. Soil Engineer. The soil engineer shall be responsible for the testing of compaction and dete~nation of stabiliW of the various slopes. He shall, prior to release of the bond and s~eW, provide a ~i~en statement ~t ~spections and tests were made by him, or ~der his supe~ision, and that in ~s professional opinion, all emba~ents have been compacted to ciW smdards and in accordm~ce wi~ the ea~work specifications for the project. D. Landscape Arc~tect. All landscaping work shall be designed under the supe~ision of a l~dscape arc~tect; however, a registered civil engineer or registered architect ~y be responsible for the inspection of all landscaping and imgation required in accordance wi~ the grad~g pemt and plans if it is in conjunction with a project he has been contracted to do. He shall, prior to ~e release of~e bond and s~ety, provide a m-i~en statement that in his professional opimon all work inco~orated ~ ~e landscape and ~igation plans author~ed under the petit have been cons~cted in accordance with the approved plans and revisions thereto. E. Biologist. A biologist, as defined b~ Sectkm !7,35,030 office Chu!a ~ista Municipal shall be required to inspect all land dexelopmcnt t)r cleming and grubbing si~<s~fior to work occu~ng ] a~cgs ~f 5~n5 [~ ~[~ ~?g ~ cst u ecs, as d~fit!cd ~5 Scct!~)~ 17 _ b 030 o~¢ crt !a ~ sca Munic~al Code, to insm'e c )np ~ ~ce w t thc pc' n t issued purst ant o th s C ~a~cr ~:~o~ogist sba deutify areas to bc protected with appropriate stoking and t~aci~g, ~sur~ that these scasiiix:e biological r~so rc~s, as de ned by Sec! ~m [ > ( ) pi ti c ( } u aS~s~ Mun clpa[ Code. me c~c~t!y ~c!en~hcd on g or c ear nga ~d grubb ng p an~ and i!!sPeC[ tke stoXiug and lkncing *ier ~tallation to ~a5 r~ ~s a ation accard ~g ! ~ pla ~. !n acid ti~n he b o o~[~all condu~t o~ i~ection aB<r ~h¢ is con~ eted Pr or ~o ~hc re e~ se ot' the b~od a~ ~tu'e!y, Itc bi~!~s~!~all provide a written with app~ox~d plan5 ~gl rcyisions }F. Prior to ~e release of building pe~ts for any given lot or lots, the private engineer shall sub~t a statement (Fo~ PW-E-106B) as evidence that rough grading for land development has been completed wi~n standard tolerance in accordance with the approved plans, and that all emba~ents and cut slopes and pad sizing are as sho~ on the approved plans. The soils engineer will sub~t a statement that all embm~ents, under his direction, have been completed to an indicated nine~ percent relative compaction of dry densi~. (Ord. 1877 .2 (pan), 1979; Ord. 1797 . 1 (pa~), 1978). 15.04.170 Transfer of responsibility lbr approval. If the private engineer, soil engineer, landscape architect, ov engineering geologist, orbiol~gist, as defined by Section 17 35,03Oof the Chi!Ia Vis!a Mun!cipal Code~ of record are changed during the course of the work, the work shall be stopped until the replacement has agreed to accept the responsibility within the area of their technical competence for approval upon completion of the work. (Ord. 1797 . l (part), 1978). 15.04.175 Plans and reports to be prepared by engineers. A. Plans for public improvements and !~!)ct ~!~,e!op!]!en~ work invo~vi~v~ ~""-~ -~.".'~ .......... authorized under this chapter shall be prepared by a civil engineer. Where soil or geologic reports or soils and geologic investigations are required, the reports and investigations shall be prepared and conducted by an engineering geologist and/or Soils engineer as appropriate. B. A seepage statement or study is required as a part of all soils reports. All soils engineering, geologic, and geologic engineering reports shall consist of a preliminary and a final "as-built" report. Whenever blasting is to be performed or bedrock is to be exposed, a seepage study must be performed to determine method of handling excess water infiltration. !hr !a~d dc~:ck~pmcnt work which inc!t des c!~a[ing:a~!~ ~ubbing mfly~slmll be prcvgrecl?ith input from ~ bio!ogler. (Ord. 1877 .2 (part), 1979; Ord. 1797 . 1 (part), 1978). 15.04.180 Private contract performance bond-Required when-Issuance conditions generally. Persons performing private contract work under a permit issued in accordance with this chapter shall tirmish a bond/bonds or cash deposit or instrument of credit executed by the owner or his agent, or both, as principal in accordance with the provisions codified in Sections 15.04.180 through 15.04.215. The perfonmnce bond/bonds shall be issued by a surety company authorized to do business in the state and shall be approved as to form by the C~ity Aattomey. The bond/bonds shall be in favor of the ~it~Ci.w and shall be conditioned upon the completion, flee of liens, of the work authorized by the permit in accordance with the requirements of this chapter and the conditions prescribed by the permit. Slope planting and M-igation bond will be separate from the performance bond requirements for appurtenant sm~cmres and grading. They will be held in the office of the Ddirector of Pplamfing and Building until satisfactory compliance with landscaping and m-igation has been accepted. (Ord. 1797 . 1 (part), 1978). 15.04.185 Private contract per formance bond-Conditions-Notice of default- Contents-Effect. The bond/bonds shall be conditioned upon the payment to the ci~y(?i~ of any costs incurred by the c'ity~ or its agent in completing the required work or performing work necessary to leave the site in a non hazardous condition and rcstoring habitatas may be needed. The bond/bonds shall be further conditioned upon the payment to the e~tyCity or its agents in completing the work required to protect or repair adjacent public or private properties from damage from work performed under the permit. Whenever the city Engineer finds that a default has occurred in the performance of any term or condition of ~vork authorized by a permit, tie shall give written notice of such default to the principal and surety of the bond. Such notice shall state the work remaining to be done, the estimated cost of completion and the time estimated by the city ~r~gineerCity F, ngineer to be necessary for the completion of the work. A~er the receipt of such notice, the principal or the surety must, within the time specified, either complete the work satisfactorily or deposit with the ~[yCily an amount equal to the city ~,n?,ime~City En~eer's estimate of the completion cost plus an additional sum equal to twenty-five percent of such cost. (Ord. 1797 . 1 (part), 1978). 15.04.190 Private contract performance bond-Principal or surety liable for cost of completing work when. In the event that the principal or surety fails to complete such work within the time specified in the notice, or fails to deposit the estimated cost plus twenty-five percent with the 6i{yCit.~, the eib? en~i~ee~,City Engineer may cause the required work to be completed. The principal and the surety shall be liable for the cost of completing such work. (Ord. 1797 . 1 (part), 1978). 15.04.195 Private contract performance bond-Liability of city-City for performance of certain work. If the principal or surety deposits the estimated cost plus twenty-five percent as set forth in the notice, the eib? e]~gi{~eevCity Engineer shall cause the required work to be completed. The unexpended money sball be returned to the depositor at the completion of such work, together with an itemized accounting of the cost. The principal and surety shall hold the eityCity blameless from any liability in connection with the work so performed by the ci~yCi~7 or contractor employed by the eityCity. The e~yCity shall not be liable in connection with such work other than for the expenditure of said money. (Ord. 1797 . 1 (part), 1978). 15.04.200 Private contract performance bond-Cash deposit accepted in lieu when-Default correction procedure. In lieu of a bond, the perinittee may post a cash deposit with the Ddirector of Ftinance in an amount equal to the required bond. Notice of default as provided above shall be given to the principal, and if the default is not corrected within the time specified, the ci{y e~g~neerCily Eiigi~eer shall proceed without delay and without further notice of proceeding whatever to use the cash deposit or any portion of such deposit to complete the required work. The balance, if any, of such cash deposit shall, upon the completion of the work, be returned to the depositor or to his successors or assigns after deducting the cost of the work. (Ord. 1797 . 1 (part), 1978). 15.04.205 Private contract performance bond-Not required ~vhen. No performance bond under the provisions of this chapter shall be required from the state, or any of its political subdivisions or any govermnental agency. (Ord. 1797 . 1 (part), 1978). 15.04.210 Private contract performance bond-Required from certain contractors when-Exception. A contractor working for the state or any of its political subdivisions or any governmental agency shall present a performance bond unless proof is subini~ed that the work is covered by a bond inuring to the benefit of the state or agency. (Ord. 1797 . 1 (part), 1978). 15.04.215 Private contract performance bond-Conditions-Compliance with certain terms and provisions required. Every bond or other performance guarantee shall include conditions that the perrmt~ee shall: A. Comply with all provisions of this chapter; B. Comply with all teiTns and conditions of the land development permit or c!ear!iig and grabbing ~ernfit; C. Complete the land development work within the time limit specified in the land development pernth or c!caring and grubbi~4 permit. (Ord. 1797 . 1 (part), 1978). 15.04.220 Private contract perlbrmance bond-Method of estimating amount- Schedule. The amount of the bonds or cash deposits covering a specific job shall be based on the amount of the estimate submitted by the person doing the work and approved by the city engi~veerCiLv Engineer and in accordance with the following schedule: A. Appurtenant structures.....100% of the estimated cost of retaining walls, drainage facilities or other grading appurtenances; B. Grading.....25% of the estimated cost. This percentage may be varied by the uityengmeeK;it_y Engine~ to fit conditions which are unusual in his opinion; C. Slope planting and irrigation.....100% of the estimated cost of required landscaping and irrigation facilities; D. Maintenance of landscaping..... 100% of the estimated cost of maintaining landscaping for the period specified upon the permit. Habi?.t r~tgration .. ~ . 100% of the estim~ted cost of repalring or replaci~lg sensitwe bipJogical resunrces, as. Aefined by Scctiun. 17,35.030 of tl~ Chula Vista Mumcipal:C~de, inclpding slnnl-lerm maintenance apd lung-tcr!n/monimring (t~ically:five-years): as specified by a bjplogist: (Ord. 1797 . 1 (part), 1978). 15.04.225 Release of bonds/security. Bonds and other security shall be released thirty-five days al2er filing a "Notice of Completion" with the Ceotmty Rrecorder (recorded copy to < iLv engm~:Ci!y E[~gineer) for improvements accepted by this ~m:yCitY and upon acceptance of completed Form PW-E-106 (Request for Release of Bonds) submitted by the permittee. This form is available in the office of the e~ty ~,%~i,tee~,City E!~gineer. Such form may not be accepted until the end of the maintenance period for the required landscaping, unless a separate bond is or has been submilxed to guarantee maintenance of landscaping. (Ord. 1877 . 2 (part), 1979; Ord. i797 . 1 (part), 1978). 15.04.230 ( :ity e~gi.eer£it}- E nEin _e_e['-Enforcement responsibility and permit issuance authority' The city enginccrCi!y Engthcer shall enforce the provisions of this chapter. He shall, upon application by qualified persons, issue permits in connection with land development wo1;k when all applicable conditions established by this chapter for such permits have been met. (Ord. 1797 . I (part), 1978). 15.04.235 Ci~'y engineer¢ :ity J~h~:~ineer-Powers and duties generally. 'Ihe City Engj[~eer Itc shall cause land development work being done without a permit to be stopped until a permit has been obtained. He may require that such work done without a permit be removed or corrected, including habitat restoratm~ at the expense of the responsible person. Where land development work involves an embankment improperly constructed or constructed without adequate testing, he shall cause such embankment to be reconsu~cted or, in lieu thereof, shall cause a declaration of improper land development to be recorded in the office of the ~mmty County t,Recorder. He shall have work done in connection with land development to insure compliance with the provisions of this chapter and shall release the bond when such work is properly completed. (Ord. 1797 1 (part), 1978). 15.04.240 City en~i,t~'rCij~);,~r-Authority to determine applicable fees. The city ,,mginee[City Engineer shall determine the fees applicable under the provisions of this chapter. (Ord. 1797 . I (part), 1978). 15.04.245 City engim~erCity En!:iin!cr-Duty to consider certain recommendations and deny certain applications. When the nature of the work requested is such that it comes within the requirements of, or affects the operation of any other department of the ci{yCity, the t:ity e*~gm~rCity Engineer shall obtain and consider the recommendations of applicable tityCity departments in determining the disposition of the application. He shall deny applications which are not in the interest of the public healttk safety or general welfare, or do not constitute a reasonable use of land as indicated by the existing zoning or an approved land use plan. (Ord. 1797 . I (part), 1978). 15.04.250 C,ity en~,hmer( ity ~nEiueer-Grounds for canceling permit or amending plans. The eiiy engmee*(jty End2.inccr may cancel a permit or may require the plans to be amended when it is in the interest of public health, safety and welfare and under any of the following: A. Upon the request of the pei~nittee; B. When the facts are not as presented by the permittee in application; C. When ~vork as constructed or as proposed to be constructed creates a hazard to public health, safety and welfare. (Ord. 1797 . I (part), 1978). 15.04.255 Appeals-Authorized when-Determination authority. An applicant may appeal the ~:iiy eaginee[C!ty E~dj~incer's denial of, or the conditions of approval of, an application for a land development or clearing and ~rubbi~lg permit to the Ccity Ceouncih (Ord. 1797 . 1 (part), 1978.) 15.04.260 Appeals-Time limit for filing-Form. The applicant for a permit issued pursuant to this chapter, or the permittee, may appeal to the Ceity Ceouncil from any decision of the <'~? *mgmeefCi~y P;ngmcer within ten working days after said decision. Appeals shall be in writing and shall state the specific nature of the appeal. Appeals shall be filed with the eity etm-kCity Clerk. (Ord. 1797 . 1 (part), 1978). 15.04.265 Permits-Application-Procedure generally-Detail plan required. Applications for permits authorizing land development work shall be made in accordance with procedures established by the c~t5, v~ginee~:Ci!y Engineer. Applications shall be accompanied by such detailed plans, specifications and schedules as listed in the subdivision manual, landscape manual, and as othe~vise required by the ¢iL'~ engineer,City Eugniccr. See Sections 15.04.290 and 15.04.295 of this chapter regarding fees. (Ord. 1797 . I (part), 1978). 15.04.270 Permits-Application-Detail plans and specifications required. A. Detailed plans and specifications for land development work sha 1 include, but not be limited to: 1. Those requirements listed in the subdivision mannal; 2. A vicinity sketch or other data adequately indicating the site location; 3. A plot plan showing the location of the land development boundaries, lot lines, and public and private rights-of-way lines; 4. A contom- map showing the present contours of the land and the proposed contours or grid elevations. Contours will extend beyond the limits of grading at least one hundred feet; 5. The location of any buildings or structures within the land development boundaries, and the location of any building or structure on adjacent property which is within fifteen feet of the land development boundary; 6. Typical sections showing details concerning proposed cut and fill slopes; 7. Adequate plans of all drainage devices, waHc or other protective devices to be constructed in connection with, or as a result of the proposed work, together with a map showing the drainage area of land tributary to the site and the estimated rnnoff of the area served by any drainage facilities and devices; 8. An estimate of the quantity of excavation and till involved, quantities relative to construction of appurtenant structures, estnime of cost and esti~nated starting and completion dates; 9. A landscape and irrigation plan indicating the total landscaped square footage, plant quantity, spacing, type and location and the layout of the in-igation system, and an estimate of cost of the landscaping and irrigation facilities. 10. A map~ prqgm ed by ~ bio!Qgi~! as dc!incd by Sca!yon ! 7 3~ 03~ o~fthc Chula Vista Mt aicipal Code, illustrath~ lhe proposcc at d c evelupxcn ~x, ork rca vc o sens tire biolo~ica resources n ~(~mP!igace v4 h ~he ~pp!i~ab!c Hab~!a~ L:oss and !ncid~nxa! Take Pmmil i~[ed pLU'S[ an o Ch~er 17.~5 o23the Chu!a vi~a Mutficip~! Code, 1 1. A~! erosion ~oam)! plaa as m~3: b~ ~quircd hy thc' ~ily Eugin~e[pr the Director of'planning and B!!ildnig, B. A soils investigation may be required to correlate surface and subsnrface conditions with the proposed land development plan. The results of the investigation shall be presented in a soils report by a soils engineer which shall include, but not be limited to location of faults; data regarding the nature, distribution, and strength of existing soils and rock on the site; the soils engineer's conclusion; recommendations for grading requirements~ including the correction of weak or unstable soil conditions and treatment of any expansive soils that may be present; and his opinion as to the adequacy of building sites to be developed by the proposed land development operations. The soils engineer shall provide an engineering geology report by an engineering geologist when required by the c~?. hngineer. A seepage statement or a study is required as a part of all soil reports. Whenever blasting is to be performed or bedrock is to be exposed, a seepage study must be performed to determine method of handling excess water infiltration. C. The ei~y en~ineerCity E~k~ucer may require other data or information as he deems necessary. He may eliminate or modify any of these requirements where, in his opinion, they will serve no practical purpose. (Ord. 1887 . 2 (part), 1979; Ord. 1797 . 1 (part), 1978). 15.04.275 Permits-Issuance-Prerequisites and contents. The city e~,';i~ee~City Engi~cer shall issue permits for land development work upon approval of applications= plans, receipt of the prescribed fees and bonds and receipt of letters from the private engineer, soils engineer, engineenng geologist, landscape architect, biolo~, and others as required by the ei~y engiueerC!ty l".n~nee~, that they have been retained by the permittee to perform the work specified in Section 15.04.165. The permits shall include, or refer to, the conditions, plans and specifications which shall govern the work authorized. (Ord. 1877 . 2 (part), 1979; Ord. 1797 . 1 (part), 1978). 15.04.280 Investigations authorized and required when-Fee. The ~ity e~i~eeK'ity E~gmcer may require the payment of the prescribed fees for special investigations when the proposed work or inquiries necessitate that special work be performed by the c/tyCity. Special investigations shall include all requests for time extensions or variance requests and shall be accompanied by the special investigation fee. (Ord. 1797 . 1 (part), 1978). 15.04.285 Agreement required for uncontrolled embankments-Additional specifications. A. Applications for land development permits involving uncontrolled embankment shall be accompanied by an agreement signed by the property owner. The agreement shall be prepared by the e:i~y e~gmee~:City Engineer and shall contain the following provisions and such other provisions as nmy in the opinion of the *'ity *~r~g.mee*( ily Eng~uee!; afford protection to the property o~vner and diyCity: 1. The land development work shall be designated as uncontrolled embankment and shall be consn~ucted in accordance with plans approved by the eit3- e~gineeFC~ncer. 2. The owner acknowledges that as an uncontrolled embankment, the site is not eligible for a building permit unless special soils analysis and foundation design are submitted. 3. The land development work shall be done and maintained in a safe and sanitmT manner at the sole c°st, risk and resp°nsibiliw of the owner and his successors in interest, who shall hold the eiiyCity harmless with respect thereto. B. The agreement for uncontrolled embankment shall be approved by the (;city Ceouncil and recorded by the *iiy deal<City (%rk in the Ouffice of the C~,ounty Rrecorder as an obligation upon the land involved. The notice shall remain in effect until release of the agreement is filed by the ¢4ty,mgmeerCity Engineer. (Ord. 1797.1 (part), 1978). 15.04.290 Fees-Collection-Method of estimation-Verification-Payment required- Exemptions. A. Fees required by this chapter shall be collected by the ~ity e~gineerCi~ Engit!e~r and deposited with the Ddirector of Flinance. Such lees shall be as presently designated, or as may in the future be amended, in the master fee schedule. B. No permit shall be issued, and no land development work shall be permitted until the fees applicable under this chapter have been received by the ei~y e~gme,:'rCi~' l ngineer. C. The state or any of its political subdivisions or any governmental agency shall file applications for permits and shall be issued permits as required by this chapter. No fees shall be required when the work is done by persons working directly for the state or agency. D. The City Manager, or his designee, may authorize, without advance appropriation, the refund of fees required by this Chapter to be collected, or such portion of the fees deemed appropriate for refund by the City Manager (net of costs incurred by the City in processing the permit application or unless the City has used the fees to construct facilities for a development for which the fees were paid), if the City Manager finds that the permit for which they were collected has been revoked, surrendered or terminated without use by the permi~ee and the refund is less than $100,000. All other refunds shall be authorized by the City Council. (Ord. 2594 1, 1994; Ord. 2011 . 1 (part), 1982; Ord. 1797 . 1 (part), 1978). 15.04.295 Fees-Schedule for computation. Fees shall be as presently designated, or as may in the future be amended, in the master fee schedule. (Ord. 2506 . I (part), 1992; Ord. 1961 . I (part), 1982; Ord. 1797 . 1 (part), I978). 15.04.305 Fees-To be doubled in certain cases-Effect of imposition. In the event that land development work is commenced without a land development 0r clearing and grubbing permit, the city e~tginee~:Ciiy Engil!eet shall cause such work to be stopped until a permit is obtained. The pe~-zrdt fee, in such instance, shall then be the normally required permit fee, plus $500. The payment of the increased permit fees shall not relieve any person from fully complying with the requirements of this chapter in the performance of the work. Such fee shall defray the expense of enfomement of the provisions of this chapter in such cases. ~he pa~,me~t ~ sm!t~ l~,, qmtl ~ot p~e,::em die ~mp~sitio~.o~;.ot'ty pet~al~y ~reserihed ot imp~iby this ehapier~m Chapter 1:4t (,%!:d ~[g t 4pu~t. t9c;'8! Ord: t797..1 tpaa~; 10783: When land dcvelopmm~t work commences w!thout a permit and results in damagq to se!~sitivc biological rc~ources~ aa defined by Section 12.35.030 of the (-hula Vis!a Nfunicipal ('?ode, rcst~xatio!~ rcq~rement~ (including ma ~te~a ce a~c no~ or ~g) sm be ~p)se a the so e d sc'eto of the Di'cctor of Plann~4anc Building anti thc fifll cos > 't ~c restoration shall be born~ by thc pmpe~z5~B~ Whgl~ land de¥c!0p.Be ~t work s aconsistent with a ~ern~t ~$t<cl purst ~t [p:~: apter 17.35 of the Chula h !sta M~!c~pal ¢.¢!d< ami resul ~ !a da[rage to sens~m'e hlolo~al~E$lurccs~ as defined 6~; ~E~{i~;h 17.35.030 of the Chula Vista Municipal Co~ restoration requirements lincludhm nmiutenance and the restoration ~hall be ~9me b~ the propert5' turner. I'he payment of such ~bes or pcn~lties as described above shall ~ot pre55ent the imposition of a~>~enalty prescribed or imposed by this chapter, Chapter 1.41, or other tbdcral or state law. (Ord 2718 , 1 pa~}, 19985 Ord. 1797 . I (pat~), !978). 15.04.310 Violations-Declared unlawful and public nuisance-Abatement authority. Any land development work commenced, done, maintained or allowed contrary to the provisions of this chapter, shall be, and the same is hereby declared to be, unlawful and a public nuisance. Upon order of the Ccity Ceouncil, or upon the determination of the Ceity Mmanager or the Ceity Aattomey, necessary proceedings for the abatement, removal and/or enjoinment of any such public nuisance shall be commenced in the manner provided by law. Alternatively the procedm-es to abate under Chapter 1.30 may be used. Any failm-e, refusal, or neglect by a responsible party to obtain a permit as required by this chapter shall be prima facie evidence of the fact that a public nuisance has been committed in connection with any land development v, ork commenced or done contrary to the provisions of this chapter. (Ord 2718 . I (part), 1998; Ord. 1797 . 1 (part), 1978). 15.04.315 Abatement of dangerous conditions. Where the c%~ e~g/nee~:CiLv Enginccr determines that land development work g~'ad~g has created a danger to public or private property or has resulted in the deposition of debris on any public way or interferes with any existing drainage course, the cily eugmee*City Ei!~!~ee!- shall serve written notice on the property owner, describing the condition and requiring that the property owner abate the dangerous condition within ten days after the notice is received. If the property owner fails to so abate the condition, the city e~meer~ tingh~ccr may do so, in which event the property owner shall be liable for all costs of such abatement, including but not limited to reasonable attorney fees. The expenses of abatement shall be a lien against the property on which it is maintained and a personal obligation against the property owner. (Ord. 1877 . 3 (part), 1979). 15.04.320 Emergency abatement by ei~y~-Liability for costs. If it appears to the cit? ~'ngmee~,City Engineer that an emergency exists because land d¢,,elo~mcg~ ~grk ~ding has resulted in a danger to public or private property, then, without following the procedure established by Section 15.04.315, the city engi~City EngiBeer may order all work necessary to remove, abate or mitigate the condition creating such emergency. The e;t? i~ngi}~erCit7 :Et~ineer may do the work with his own employees or may contract to have the work done; in either event, the eit5 c::gi::ccrCij}L~ngineer shall keep a record of the costs of the work and charge the cost of the work to the property owner who shall repay the eityC'ity for the cost thereo£ (Ord. 1877 . 3 (part), 1979). 15.04.325 Costs of abatement-Special assessment procedure-Statutory authority. The costs of abating a dangerous condition within the meaning of this chapter shall be imposed as a special assessment against the land on which such abatement was done. Costs and assessment procedures will be in accordance with Chapters 1.40 and 1.41. The property owner may raise and the Ceity Mmanager shall consider, as a complete or partial defense to the imposition of the assessment, questions as to the necessity of the abatement and the means in which it was accomplished. Pursuant to Government Code . 38773.5 abatement costs shall be transmitted to the tax collector for collection. This assessment shall have the same priority as other city taxes. (Ord 2718 . 1 (part), 1998; Ord. 1877 . 3 (part), 1979). 15.04.330 Conflicts Exceptfor exempt prqjects, il' a conflict occurs be!wcen this Chapter and Chapter 17.35 of the Chula Vista Municipal Code~the stricter regulation shall apply, Section Il. Adoption of this ordinance (Second Reading) is conditioned upon and shall not occur unless and until the issuance of Take Authorizations from the USFWS and CDFG to the City of Chula Vista has occurred in a form acceptable to the City. Section III. This ordinance shall take effect and be in force on the thirtieth day from and after the ordinance (Second Reading) which shall occur as stated above. Presented by Approved as to form by Robert A. Leiter Ann Moore Planning and Building Director City Attorney Promoliag Chul~ Vi~'s future by preaerving i~ pa~. May13,2003 Chula Vista City Council City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 RE: COMMENT TO CHULA VISTA CITY COUNCIL CONCERNING MSCP SUBAREA PLAN Dear Honorable Members of the Chula Vista City Council: As previously presented to the Chula Vista Planning Commission, two topics, raised in the City response to Otay Land Company, LLC's ("OLC") comment letter (sent by OLC's consultant RMA Consultants), require further comment. The first relates to how the Otay Ranch Conveyance Plan will be updated from time to time to insure that the entire 11,375 acre preserve is conveyed to public ownership. The second relates to the area-specific management directives for the Otay Ranch Preserve, and by whom they are prepared. Updating the Mitigation Ratio of the Conveyance Plan Like the Otay Ranch Resource Management Plan, the MSCP Subarea Plan remains committed to making sure that all 11,375 acres of the Otay Ranch Preserve is eventually dedicated to the public. The mechanism is simple - for each acre of land developed, a corresponding amount of the Preserve must be dedicated. In 1996, the Phase 2 RMP calculated the ratio at 1.188 acres of preserve land for each acre of development land, but warned that this calculation might not remain the same for all time. "[I]t should be emphasized that as SPA plans are processed, the actual conveyance obligation may vary slightly from the forecast referenced above due to more precise planning and engineering." The Subarea Plan correctly echoes this point, and remains committed to the Phase 2 RMP's principle that "[t]hese differences will not result in a change in the total acres eventually conveyed to the Resource Preserve." As the amounts of land actually conveyed to the Preserve deviate from the original forecast, the conveyance ratio will have to change to make sure that the last development approval in Otay Ranch is accompanied by the dedication of the last acreage in the Preserve. To date, the City's calculations of development acreage on the Final Maps for Village One, One West and Five, which OLC has confirmed, have decreased by 183 acres as compared to the projections in the Phase 2 RMP. This is additionally concerning as the development in Village One West was increased by 112 acres due to the conversion of preserve to development per the 1903 Wright Place, Suite 220 * Carlsbafl California 92008 · T 760.918.8200 · F 760.918.8210 Otay Land LLC is a Wholly Owned Subsidiary of HomeFed Corporation Chula Vista City Council May 13, 2003 Page 2 of 2 March 10, 1998 Agreement between Otay Ranch Company and United States Fish and Wildlife Service. It is imperative that the Conveyance Plan and ratio be evaluated on a regular basis to verify that it is in balance, given the acreage discrepancies that are occurring between the development of the villages and the Phase 2 RMP. The Subarea Plan does not specifically address when the necessary adjustments to the mitigation ratio should be made, but a staff response to a comment letter does - it states that the conveyance ratio will be re-evaluated "based on future amendments to the RMP preserve boundary." That response is inadequate. The MSCP relies on the dedication of the Otay Ranch Preserve by the development of Otay Ranch. If the current ratio does not result in completed dedication of the Otay Ranch Preserve, then this MSCP will not have a chance to be successful because it will have been based on dedications that will not occur. Amendments to the RMP preserve boundary should trigger a re-evaluation of the conveyance ratio, to be sure, but the re- evaluation should not wait until then. There should be a regular, periodic re-evaluation of the conveyance ratio, so that the inevitable adjustments to the conveyance ratio will be small, and easy to digest by both developers and land owners in Otay Ranch. Per section 5.5 of the MSCP, the City must prepare "an annual report of total habitat area lost and habitat area conserved," which is called the Preserve Assembly Accounting. This process provides an excellent opportunity for the City to conduct an annual evaluation of the conveyance ratio. We urge the City to incorporate into Section 5.5, the Preserve Assembly Accounting, of the MSCP Subarea Plan, and ultimately the RMP, an annual re-evaluation of the conveyance ratio until the entire Otay Ranch Preserve is dedicated to the public. Preparing the Area-Specific Management Directives for Otav Ranch Area-Specific Management Directives ("ASMDs") are an important tool under the MSCP. They set the ground rules for management of the preserve lands, and while the details may vary with specific sites, the ASMDs should be consistent throughout the MSCP preserve, particularly large sub-sections such as Otay Ranch. The first ASMDs approved will set the precedent for later ASMDs for the rest of the Otay Ranch preserve. The process of POM approval, particularly of the early ASMDs, should include the public and other Otay Ranch developers and property owners, so that precedent is set only after considering the potential impact of principles in the early ASMDs on all portions of the Otay Ranch Preserve. We are pleased that staff has noted in a response to a comment letter that the ASMDs will be prepared by the developers and urge staffto include all effected parties. We further understand that the identification of the lands to be conveyed, and to which the proposed ASMDs will apply, will be consistent with the Otay Ranch Conveyance Plan. Thank you for your attention to this matter. Sincerely, Simon Malk Chula Vista City Council May 13, 2003 Page 3 of 3 cc: Paul Borden Curt Noland Randy Goodson CITY COUNCIL AGENDA STATEMENT Item: Meeting Date: ITEM TITLE: Chula Vista City/Schools Community Task Force Report £ . SUBMITTED BY: t~tyiv~anager,~, 0~ On July 9, 2002 the City Council approved a motion to create a joint City/Schools Task Force comprised of 15 representatives. Five members each were appointed by the Chula Vista City Council, the Sweetwater Union High School District (SUHSD) and the Chula Vista Elementary School District (CVESD). John Moot was appointed as the Chair. The Task Fome was created in response to parental concern about overcrowded schools and was asked to make recommendations to improve City and school district financing, planning, and the development of school facilities. There were eight task force meetings over the period from September 23, 2002 through March 24, 2003. In addition a tour of school facilities throughout the city was conducted. The Task Force adopted a mission statement, objectives, and has made 15 recommendations. RECOMMENDATION: That Council: 1. Refer study to staff. Attachments: 1. Chula Vista City/Schools Community Task Force Report May 7, 2003 The Honorable Po~' ~ On behalf of the members appointed by City of Chula Vista, thank you for the opportunity to serve on the City/Schools Community Task Force for the City of Chula Vista, Sweetwater Union High School District and Chula Vista Elementary School District. As a result of participating in the Task Force process, we have a greater appreciation of the complexity of providing school facilities in a high-growth area and have identified what we believe to be reasonable and effective ways to monitor high enrollment in our schools and ensure new schools come on line when needed, while also providing information about our schools to members of the community and obtaining their input. During the course of our meetings and discussions, several experts presented valuable information that allowed us to come up with several recommendations that we believe will improve the current situation. These recommendations include such items as creating an ad hoc committee to look at and recommend solutions for high enrollment schools. We have also identified procedures for informing new homeowners about school funding, identifying city/schools joint use facilities and improving the system for enforcing residency requirements. We believe the recommendations we are providing will simplify the flow of , information between the agencies and facilitate timely construction of school facilities in Chula Vista as well as improve the overall quality of schools in Chula Vista. We believe we have accomplished our mission statement and objectives, and are pleased to present our report and recommendations to you. Sincerely, John Moot, Esq. Task Force Chair Enclosed: list of appointed Task Force members List of Task Force Members Appointed by the City of Chula Vista John Moot, Chair, City of Chula Vista Mike Bell, City of Chula Vista Mike Green, City of Chula Vista Tris Hubbard, City of Chula Vista Kimberly Longo~ City of Chula Vista TABLE OF CONTENTS INTRODUCTION AND BACKGROUND 1 LIST OF TASK FORCE MEMBERS 3 MISSION STATEMENT AND PRINCIPLES OF PARTICIPATION 4 MEETING SCHEDULE 7 CONCLUSIONS AND RECOMMENDATIONS 8 Recommendations Create an Ad Hoc Committee of the Agencies to Regularly Examine and 8 Recommend Solutions for High Enrollment Schools Growth Management Oversight Commission (GMOC) Threshold Standard 9 The Next High School 10 Inform New Homeowners About School Funding 10 Joint Use of City/School Facilities 11 Residency 11 Overcrowding 12 Legislative Changes 12 APPENDICES A - Meeting Agendas and Summaries B - California State Senate Bill 50 Memorandum C - Frequently Asked Questions Chula Vista City/Schools Community Task Force Report: Effective City/School Planning to Ensure Strong Community Growth and Quality Education Chula Vista, like many growing communities throughout California and other areas in the United States, has experienced high enrollment in its elementary, middle and high schools. This has coincided with a recent period of economic growth and high demand for housing in the City of Chula Vista. Parents and others, particularly in eastem Chula Vista, have expressed concerns about crowded school classrooms and campuses. As questions and issues were raised, the City of Chula Vista and both school districts, whose jurisdiction boundaries include the City of Chula Vista, recognized the need to take action. The Task Fome was established as a collaborative process among the City of Chula Vista, Chula Vista Elementary School Distdct and Sweetwater Union High School Distdct to address community concerns related to high enrollment schools in Chula Vista. Proposed by former Chula Vista Mayor Shidey Horton, each agency appointed five members to the Task Force, chaired by John Moot (a complete list of Task Force members is on page 3}. The Task Force examined several issues including the City's Growth Management Oversight Commission Threshold Standard for schools, the forecasting methodology used in projecting the City's population and number of students expected in the schools, the effectiveness of the joint city/schools planning processes, funding options for constructing schools and the means by which the City and school districts can cooperate to provide joint school/park facilities (from former Mayor Horton's proposal to the Chula Vista City Council on July 9, 2002) and, if appropriate, make recommendations for changes in processes. Task Force members attended eight meetings, including a tour of school facilities throughout the city, between September 23, 2002 and March 24, 2003. The group adopted a mission statement and objectives {the full text is included on page 4) that defined the parameters for their efforts: Mission Statement Through a process of open dialogue and consensus building, the Task Force will provide informed and sound recommendations to ensure the future of quality educational facilities that provide for excellence in education, as well as the timely delivery of school facilities and school dependent projects for the residents of Sweetwater Union High School District, Chula Vista Elementary School Distdct and the City of Chula Vista. Obiectives The objectives of the City/Schools Community Task Force are to: · Examine the current standards, forecasting methodology, planning processes and funding options used by each of the three agencies and determine how these approaches affect one another; · Recommend that staff of the three agencies work in coordination when proposing and implementing changes to their standards, methodologies and planning processes as appropriate; Chula V~sta City/Schools Community Task Force March 2QQ5 Page 1 · Review alternative delivery systems as warranted for joint city/school facility development; and · Recommend, if appropriate, legislative or other changes that will enhance the funding of educational facilities and encourage continued collaboration among the three agencies. Members of the Task Force heard presentations and entered into a dialogue about various issues including: · High enrollment schools in California, · Historical trends in local school enrollment and actions the districts have taken to accommodate fluctuations in enrollment, · Planning for new public facilities (including schools) in Chula Vista, · Current approaches to funding, including the community facility distdct financing program in Chula Vista and its cumulative revenue and expenditures, · Legal principles pertaining to the City's ability to regulate development as expressed primarily in SB 50, · The City's growth forecast and school threshold monitoring process, · The"typical" high school planning process, · Residency requirements, and · Joint use of facilities. The meeting agendas and summaries, which provide a record of the Task Force discussions, are included in Appendix A of this report. Chula Vista C~ty/$chools Community Task Force March 2003 Page 2 List of Task Force Members John Moot, Chair, City of Chula Vista Mike Bell, City of Chula Vista Mike Green, City of Chula Vista Tris Hubbard, City of Chula Vista Kimberly Longo, City of Chuta Vista Guy Asaro, Chula Vista Elementary School Distdct Aurora Clark, Chula Vista Elementary School District Hector Martinez, Chula Vista Elementary School District Rey Monzon, Chula Vista Elementary School District Kevin O'Neill, Chula Vista Elementary School District Kent Aden, Sweetwater Union High School Distdct Maya Bloch, Sweetwater Union High School District Rudy Gonzalez, Sweetwater Union High School District Patdcia Rivera, Sweetwater Union High School District Al Sides, Sweetwater Union High School District Chula V~s'ca C~ty/.~chools Community Task Force March 2003 Page 3 Mission Statement and Principles of Participation Mission Statement Through a process of open dialogue and consensus building, the Task Force will provide informed and sound recommendations to ensure the future of quality educational facilities that provide for excellence in education, as well as the timely delivery of school facilities and school dependent projects for the residents of Sweetwater Union High School District, Chula Vista Elementary School District and the City of Chula Vista. Objectives The objectives of the City/Schools Community Task Fome are to: · Examine the current standards, forecasting methodology, planning processes and funding options used by each of the three agencies and determine how these approaches affect one another; · Recommend that staff of the three agencies work in coordination when proposing and implementing changes to their standards, methodologies and planning processes as appropriate; · Review altemative delivery systems as warranted for joint city/school facility development; and · Recommend, if appropriate, legislative or other changes that will enhance the funding of educational facilities and encourage continued collaboration among the three agencies. Role of Task Force Members To achieve the mission of the Task Force, members are being asked to accept the following roles and responsibilities: · Become familiar with the existing standards, forecasting methodology, planning processes, funding options and joint use policies of the three agencies. · Communicate community concerns and priorities regarding school/community issues. · Commit to the Task Force timetable, which may require individuals to participate in an intensive process requiring attendance at regular meetings and respond to critical issues that may present short timelines or deadlines. · A willingness to keep an open mind and listen to others. · A willingness to suspend judgment on solutions while the Task Force is examining various processes and options. · A commitment to work collaboratively with other Task Force members. · An ability to represent a significant stakeholder group, while still taking a regional perspective in evaluating issues. · A duty to keep the entire stakeholder group they represent informed of progress throughout the process. Chula Vista City~$chools Community Tas* Force March 2Q03 Pa;~e 4 Communication of Task Force Activities The Task Force Chair, assisted by the facilitator, designated task force members and staff, as necessary, will provide quarterly updates to the City Council and School Boards regarding the current status of events undertaken by the Task Force. Discussion Process Task Force members agree to abide by the following discussion process: · All perspectives are valued. · Everyone will have an equal opportunity to participate. · One person speaks at a time. · The preferred deliberation process is collaborative problem solving. · In cases of non-consensus, alternative perspectives will be documented. · Task Force members treat each other with respect. · A neutral third-party will facilitate the meetings. · The consensus of the Task Force will take precedence over individual preferences. Meeting Attendance In order for the process to work effectively, full participation of members will be essential. Task Force members are expected to attend all meetings. If a member cannot attend a meeting, please contact the group facilitator. Support A neutral third-party facilitator will conduct all Task Force meetings. The role of the facilitator is to ensure all perspectives are heard through a collaborative discussion process. Staff from the three agencies and appropriate consultants will provide technical and logistical support, including making presentations, answering questions, coordinating meetings and documenting meeting content. Meeting discussions may be audio taped to aid in the preparation of meeting summaries. Meeting A.qendas The facilitator will be responsible for preparing the agendas in collaboration with the Task Force chair and members and staff of the three agencies. At the conclusion of each meeting, staff and Task Force members will recommend items for inclusion in the next agenda and any action items requiring additional research. Observers The public is welcome at Task Force meetings. However, meetings are intended for the benefit of the Task Force members to promote balanced, constructive interaction. Observers will be asked to introduce themselves and the organization they represent at the beginning of the meeting and to refrain from commenting during the proceedings. There will be an opportunity for public comment, typically at the end of each meeting. Work Product The Task Force will be asked to summarize in written form its discussions and recommended changes, if the Task Force finds changes are appropriate. It is suggested the summary document the following: · The scope and content of Task Force discussions about: Chula Vista City/Schools Cornrnuni~y Tas~ Force March 2003 Page 5 1. Their review of issues related to high enrollment schools in Chula Vista and the associated impacts, such as student achievement, before and after-school programs, sports programs, managing enrollment growth spikes, traffic, safety, traditional, single- track and multi-track year-round schedules, class size reduction, and community expectations related to these issues 2. Their examination of types and timing of funding available to schools, what funds can be used for, and related effects on utilization of facilities, school schedules, school construction, etc. 3. Their evaluation of joint city/school planning processes, including related issues such as threshold standards used by the city's Growth Management Oversight Commission, boundaries, forecasting, school capacity, transportation and school construction. 4. Additional ways the city and school districts may cooperate to provide joint school/park facilities to meet community needs. 5. Recommend, if appropriate, legislative or other changes that would help to accomplish the Task Force mission and objectives. · Findings and conclusions on the issues considered. · Recommendations for further study and analysis beyond the mission of the Task Force. · Individual opinions and observations that may not be reflected in the main body of the report. Recommendations will be assembled into a draft summary for Task Force review and comment. The summary may also be reproduced as a stand-alone document. Media In order to enhance and promote creative and candid discussions of the issues, it may be inappropriate for members to make statements about Task Force deliberations to the media while the group is studying or weighing issues. If necessary, the chair will be asked to be the official contact between the media and the Task Force dudng the deliberation process. All meetings are open to the public and the media are encouraged to attend all meetings. Chula Vista City/Schools Community Task Force March 2Q03 Page 6 Meeting Schedule MEETING DATE LOCATION TIME 1 Monday, September Conference Room at Chula Vista City Hall, 276 Fourth Avenue, Chula Vista, 6:30- 9 PM 23, 2002 CA Monday, October 7, Conference Room at Chula Vista City 2 2002 Hall, 276 Fourth Avenue, Chula Vista, 6:30 - 9PM CA 3 Tuesday, October 22, Tour will depart from the Vons parking Facilities 2002 lot at Eastlake Parkway and Otay 6:30 AM - 11 AM Tour Lakes Road 4 Monday, November 4,Conference Room at Chula Vista City 2002 Hall, 276 Fourth Avenue, Chula Vista, 6:30- 9 PM CA Conference Room at Chula Vista City Monday, December 2,Hall, 276 Fourth Avenue, Chula Vista, 6:30 - 9 PM 5 2002 CA Monday, January 13,Conference Room at Chula Vista City 6 2003 Hall, 276 Fourth Avenue, Chula Vista, 6:30 - 9 PM CA City of Chula Vista Corporation Yard, 7 Monday, February 3,Training Room, 1800 Maxwell Road, 6:30 - 9 PM 2003 Chula Vista, CA City of Chula Vista Corporation Yard, 8 Monday, March 3, 2003 Training Room, 1800 Maxwell Road, 6:30 - 9 PM Chula Vista, CA City of Chula Vista Corporation Yard, 9 Monday, March 24, : Training Room, 1800 Maxwell Road,6:30 - 9 PM 2003 Chula Vista, CA Chula Vista City/Schools Cornmunl[y Task Force ~aarch 2003 Page 7 Conclusions and Recommendations Task Fome members heard presentations and engaged in active discussion about a range of topics, many of which were complex in nature. The members of the Task Force came from diverse backgrounds and had varying levels of knowledge and experience with respect to the planning, financing and construction of new schools. Staff from the City of Chula Vista, the Chula Vista Elementary School District and the Sweetwater Union High School District, as well as the Task Force facilitator, arranged for presentations and provided materials on many of the issues that impact high enrollment at existing schools, as well as the financing and construction of new schools. Ultimately a consensus was reached that improvements could be made in a number of areas. The staff of each of the school districts and the City provided a series of recommended changes in various processes, as did the Task Force chair and individual members. There was not unanimous agreement on all recommendations; however, the recommendations presented in the report represented those as to which there was a clear consensus of opinion. Recommendations have been grouped in categories for ease of access. There may be some overlap or strong relationship between the categories - for example, there are recommendations in several categories that propose changes in communication, the proposed Ad Hoc Committee will address both forecast methodology and planning, and recommendations related to the Growth Management Oversight Commission are closely tied to both the city/school planning process and forecast methodology. In order to provide a quick way to find particular recommendations, each one has been numbered consecutively regardless of category. Recommendations Create an Ad Hoc Committee of the Agencies to Re.qularl¥ Examine and Recommend Solutions for Hi.qh Enrollment Schools 1. Form an Ad Hoc Committee consisting of two representatives from the policy boards of each of the jurisdictions, the City of Chula Vista, Chula Vista Elementary School District and Sweetwater Union High School District, to meet biannually at a publicly noticed and recorded meeting to discuss and analyze the following issues: A. Current student population of each school and how this compares to the design capacity for the school, as well as any significant projected changes in student population for any particular school anticipated to occur during the next 12 months. B. Building permits issued year-to-date and number of projected building permits for the next 12 months. C. Projected student generetion for the next 12 months and any factors which could affect student generation rates, such as the type of housing permitted and any changes such as mix of apartment versus rental housing that might affect student generation rates. D. Status of any new schools under construction and projected completion dates. E. Status of any new schools in the planning process and projected compfefion dates. F. Needed infrastructure and status of completion/funding for infrastructure needs such as roads or support infrastructure, sewer, water, power, etc., necessary for any planned new schools. G. Status of funding for any projected new schools, including source of potential funding, any projected bond issuances for funding, an explanation of projects Chula Vista C~ty/Schools Community Tas~ Force ~larch 2003 Pa~e 8 funded by Proposition BB and J J, and the relationship of funded projects to SUHSD's Facilities Improvement Plan. H. Potential for joint city/school facilities use, such as parks, recreational facilities, libraries, transportation infrastructure and meeting space. I. Develop recommendations and/or a resolution for adoption by the respective council/boards to ensure new schools come on line as needed for projected student population growth. 2. Create a parent's advisory committee, which would include interested parents, members of the general public, and PTA and PTSA representatives. This advisory committee is to meet at least 30 days prior to each Ad Hoc Committee meeting to review staff reports for the biannual meeting and review GMOC Threshold Standard data for schools. The advisory committee would provide input to the Ad Hoc Commiltee both before and at the biannual meeting. While the community planning process is used to identify sites for schools and there are other avenues for input into the process, the Task Force felt there should be a way for policymakers, administrators, teachers, staff and parents to hear about opportunities and challenges the community faces with regard to constructing schools in advance of need. Because of the overlapping jurisdiction of the City and school districts, the Task Force felt a more formal process is needed to accomplish this objective and that there should be a single place and time where parents, community leaders and the general public could address all three agencies on the many divergent issues that affect high enrollment at the schools within the City of Chula Vista. Growth Management Oversight Commission (GMOC) Threshold Standard 3. Amend the GMOC Threshold Standard to request a report on each new school that is needed during the next five-year period and the status of each of those schools in the planning process based on key milestones, such as site designation and entitlements, site acquisition, facility plan completion, etc. 4. Develop a Threshold Standard for schools, consistent with the other ten quality of life standards, by June 2004.~ 5. Request that the GMOC, in conjunction with a working group identified below, prepare a new questionnaire for schools for use in the 2002J2003 data year. It is recommended that this be a broad based working group that could include a representative of the school districts, school site representatives, tenured department heads from schools in different areas of the district, representatives of distinct academic subject areas, parents including a Task Force member, and students representing various tracks. Post the questionnaire responses on each district's Web site and inform parents that the responses are posted. Update the questionnaire for subsequent data years. Include the following as part of the questionnaire: A. The student generation factor used and date last modified. B. The odginal design capacity of the school, including square feet per student. C. The current capacity with portables. D. The square footage of the school with portables. E. A comparison of data for each school in relation to state standards. ~ If the standard is not developed by June 2004, staff should alert the Task Force members and the Ad Hoc Committee that this schedule cannot be met. Chula V~sra C~cy/~chools Community Task Force March 2003 Page 9 F. Class size, especially for math, English and science. G. Nontraditional classroom spaces or techniques used, such as separating a large classroom into two with the use of trifold boards. H. A determination of whether there is a reduced ability to accommodate class offerings because of limited classroom space. 6. The City and two districts should meet at least annually to review the forecast information in order to ensure a better understanding of the data being provided and address specific circumstances that may not be reflected in the data, such as how residential projects are being occupied. Consider enhancing the flexibility of student generation forecasts by incorporating probabilistic techniques, student absorption rates and surveys of new homebuyers into the forecasting methodologies. A number of questions were raised about the timeliness of the information provided for the GMOC Threshold Standard for schools and the relationship between findings of the GMOC and the City's ability to take action to address impacts of growth on school enrollment. The City's community planning process for new development in eastern Chula Vista includes designation of future school sites and reservation for acquisition in order to ensure adequate land is available to meet future school needs. The City is also updating its General Plan and considering possible plan changes as staff analyzes public facility needs related to future residential development in westem Chula Vista. Nevertheless, the Task Force concluded there are several additional actions that could improve the GMOC process as it relates to schools. The Next HiRh School 7. Identify a new high school site by June 30, 2003, identify a date by which the associated infrastructure will be completed, and identify a completion date for the high school in order for the school to be on line by 2006. Inform New Homeowners About School Fundin.cl 8. Prepare a single one- to two-page white paper that explains in a balanced manner Mello- Roos/community facility district (CFD) financing and how these funds are pooled to build new schools. Form a small task group of one or two developer representatives, one city staff person and a representative from each school district to create this "plain English" white paper. 9. The white paper should be distributed as follows: ,, To all prospective and new homebuyers in planned communities. · In a schools information packet. Also included in this packet should be forms for gathering information regarding the number of students in the household and any other important data, as well as disclosure documents that should be used by builders and realtors to explain school construction funding, district policies and boundaries. · To the Pacific Southwest Association of Realtors for dissemination to realtors representing persons buying homes in communities with Uello-Roos/CFD financing. Mello-Roos or (CFD) financing engendered a great deal of discussion and a number of presentations frem staff of the three jurisdictions and consultants who helped to design and administer the financing plan for the two districts. The districts and their consultants decided that Chula Vista City/Schools Community Task Force March 2005 Pa~ge 10 "pooling" revenues from all community facility districts would expedite school construction in newly developing areas of the city. This methodology has been in effect since the inception of the program and provides "a seat in the school district" for students who live in the districts, although that seat may not be in the student's neighborhood. Pooling of funds is viewed by the districts as padicularly effective for high school construction since an individual CFD does not generate enough revenue to construct a high school. However, this concept is not widely known or understood and, in the opinion of the Task Force members, has not been adequately explained to new homeowners. A new homeowner may assume that all the funds collected in his/her CFD will be used within that CFD and provide for schools in the homeowner's neighborhood. The Task Force concluded there were actions that could improve this situation. Joint Use of City/School Facilities 10. Establish a "joint use committee" with key city and school district staff: A. Establish user fee schedules or in-kind services to cover or mitigate maintenance costs. B. Consider lighted playing fields wherever possible to maximize usable time. C. Evaluate a master field allocation system; this allocation system would establish the equitable use of the playing fields among competing interests. D. Identity other recreation opportunities, such as aquatics and court sports, as well as library opportunities, that could be supported through joint use. E. Design schools so that their fields, sports areas, libraries and parking are easily accessible to the public and can be used by the public after normal school hours. F. Consider financial participation of the SUHSD in the construction and maintenance of city pools when the school distdct depends on access to city pools for use by high school swim teams, water polo teams, and, occasionally, diving teams. G. Utilize the Sports Council to create recommendations and work with stakeholder groups, the school boards and the City. 11. Identify locations for joint recreation use between the City and the school districts in the General Plan Update. The City and districts have an existing joint use policy and have implemented joint facility use at a number of locations within the city. However, as development continues in both eastern and western Chula Vista and public funding grows scarce, the agency staff and Task Force agree there are additional changes that would further the joint use objectives and maximize the public's investment in school and city facilities. Residency 12. Each school district should require A, B and C (below) on initial registration and A and C (below) on an annual basis to verify residency in the district: ^. Legal California driver's license or non-driver's license photo identification of the adult parent/guardian registering the student. B. Birth certificate or other legal document establishing the legal relationship between the student and parent/guardian. C. Title to residential property in the school district boundary or valid, unexpired lease agreement or receipts for payment of rent in the school district boundary, plus one Chula Vista Ci;y/Schools Community Task Force March 2QQ3 Page 11 of the following: voter registration card, vehicle registration showing the names of parents or guardians, two utility bills (with the exception of a telephone bill). 13. The school districts should accommodate parent/guardian schedules by conducting registration in the evenings and weekends, as well as during normal school hours. In addition, the registration pedod should last for one month to accommodate parent/guardian schedules. 14. If there are any changes to their residency information - change of address, change of name, etc. - the student and parent/guardian must present new documentation to verify their residency as outlined in recommendation 12. 15. Review the effectiveness of this new residency policy after a one-year trial and provide a report to the City, school distdct boards and Task Force members before continuing it. Although the school districts have recently made changes and improvements to the residency requirements for students attending school in the districts, the Task Fome concluded that more should be done - especially at the middle and high school level and given the continuing high enrollment in both districts - to ensure students and their parent/guardian reside in the district. Overcrowdin.q Ovemrowding is one of the factors that may affect student achievement, but the Task Force did not explore the issue to the extent that it can offer an opinion about specific impacts on programs and test scores. However, the Task Fome suggests the districts take a proactive approach to provide students with adequate services when schools dramatically increase in size in such areas as student/teacher ratio, counseling services, access to health services and food services. This may be an issue for fudher exploration and study. Legislative Changes The Task Fome reviewed the impacts of SB 50 legislation on the City's authority to regulate growth based on inadequacy of school facilities and suggests the City and school districts consider the impacts of SB 50 and whether amendments should be considered. {A more detailed explanation of SB 50 appears in Appendix C of this report.) Chula Vista C~ty/Schools Cornmunl~;y Tas~ Force March 2003 Page 12 City of Chula VistaJChula Vista Elementary School DistrictJ Sweetwater Union High School District Community Task Force Agenda Meeting #1 Monday, September 23, 2002 City Hall, Council Conference Room, 276 Fourth Avenue, Chula Vista, CA 6:00- 6:30 p.m. - Beet and Greet 6:30 - 9:00 p.m. - Task Force meeting 1. Welcome Chula Vista Mayor Shirley Horton 10 minutes 2. Introductions Chair John Moot, Facilitator Patricia 30 minutes Tennyson, Task Force Members, Staff 3. Overview of High Enrollment Schools- A Ron Bennett, 20 minutes Statewide Perspective and Local Impacts President and CEO of School Services of California 4. Task Force QUestions and 60 minutes Public Comment 5. Review Draft Mission Statement and Patricia Tennyson 15 minutes Principles of Participation 6. Review Proposed Meeting schedule and Patricia Tennyson 20 minutes Draft Meeting Agendas 7. Look Ahead to the Next Meeting Patricia Tennyson 5 minutes Chula Vista City/Schools Community Task Force March 2QQ3 Appendix A Page 1 City of Chula Vista/Chula Vista Elementary School District/ Sweetwater Union High School District Community Task Fome Agenda Meeting #1 Monday, September 23, 2002 City Hall, Council Conference Room, 276 Fourth Avenue, Chula Vista, CA 6:00- 6:30 p.m. - Meet and Greet 6:30- g:o0 p.m. - Task Force meeting 1. Welcome Chula Vista Mayor Shidey Horton 10 minutes 2. Introductions Chair John Moot, Facilitator Patdcia 30 minutes Tennyson, Task Force Members, Staff 3. Overview of High Enrollment Schools- A Ron Bennett, 20 minutes Statewide Perspective and Local Impacts President and CEO of School Services of Califomia 4. Task Force Questions and 60 minutes Public Comment 5. Review Draft Mission Statement and Patricia Tennyson 15 minutes Principles of Participation 6. Review Proposed Meeting Schedule and Patricia Tennyson 20 minutes Draft Meeting Agendas 7. Look Ahead to the Next Meeting Patricia Tennyson 5 minutes Chula Vista City/Schools Cornrnu~lty Tas~ Force i~arcb 2003 Appendlz A - Page 1 City/Schools Community Task Force Meeting Notes Monday, September 23, 2002 6:30 - 9 p,m. Task Force Members Present: Kent Aden Hector Uartinez Guy Asaro Rey Uonzon Mike Bell John Moot Maya Bloch Kevin O'Neill Aurora Clark Patdcia Rivera Rudy Gonzalez Al Sides Kimberly Longo Mikki Zbikowski Others Present: Shirley Horton, Mayor of Chula Vista Staff Present: Dave Rowlands, City Manager, 619.691.5031, Drowlands@ci.chula-vista.ca.us Sid Morris, Assistant City Manager, 619.691.5031, Sid.morfis@ci.chula-vista.ca.us Bob Leiter, City of Chula Vista, 619.691.5101, Bleiter@ci.chula-vista.ca.us Dan Forster, City of Chula Vista, 619.476.5378, Dforster@ci.chula-vista.ca.us Lowell Billings, CVESD, 619.425.9600 x1371, Ibilling@cvesd.k12.ca.us Dennis Doyle, CVESD, 619.425.9600, Ddoyle@cvesd.k12.ca.us Oscar Esquivel, CVESD, 619.425.9600, Oesquive@cvesd.kl2.ca.us Maria Zadorozny, CVESD, 619.425.9600, mzadroroz@cvesd.k12.ca.us Susan Fahle, CVESD, 619.425.9600 x1451, sfahle@cvesd.k12.ca.us Ed Brand, SUHSD, 619.691.5555, Edward.brand@suhsd.k12.ca.us Bruce Husson, SUHSD, 619.585.6060, Bruce.husson@suhsd.k12.ca.us Rafael Uunoz, SUHSD, 619.691.5553, rafael.munoz@suhsd.k12.ca.us Patsy Tennyson, Katz & Associates, 858.452.0031 x366, pat@katzandassociates.com Shannon Reed, Katz & Associates, 858.452.0031 x361, sreed@katzandassociates.com Kerry Kops, Katz & Associates, 858.452.0031 x398, kkops@katzandassociates.com Opening Remarks: Mayor Shirley Horton opened the first committee meeting and discussed the importance of the task force and why she created it. She read excerpts from the proposed mission statement and said that working together we will accomplish all of our goals- with the main goal being to provide a better education and facility for our children. Bruce Husson and Superintendent Lowell Billings also welcomed the task force members and expressed their commitment to working together to address various issues for the benefit of students in the districts. Chula Vista City/Schools Community Tas* Force ~larch 2003 A~pe~eti, A Page 2 Administrative Issues: · John Moot then invited the board members and facilitator Patsy Tennyson to introduce themselves and speak about their interest in serving on the task force. · John discussed the importance of the task force and the way the task force should operate. He suggested that the group work as a team and not be cdtical of other member's thoughts or ideas. · Patsy said a new updated roster will be produced. She asked the members to make sure their mailing addresses were correct on the sheet being passed around to ensure they receive their materials. She also requested e-mail addresses be included. Presentation: Ron Bennett, President of the School Services of California, gave a presentation about the state of schools in California. He stated that not only are schools in California more crowded than in other states, they are also in more disrepair. Ron then posed the question, "What can schools do?" and said that many schools look to portables as one answer to that question. The problem with portables is they become permanent. When you seek eligibility for state funds, podables count against your eligibility for getting a new school since you must document the number of "unhoused" students to get state funding. Many districts now lease portables so they do not count as a permanent structure. In continuing to focus on state funding eligibility programs, Ron also reviewed the state department of education guidelines for elementary schools: an elementary school site should be 150 square- feet per student. Schools that would be below that mark must be justified to the state. The average site for an elementary school is 10 acres. The square footage for high schools is higher due to a number of factors, including athletics. The state provides funding for operating costs on the basis of the number of students who attend classes. There is no regular state funding source for school construction. Ron suggested year-round schedules as one solution to the overcrowding. If there is a multi-track schedule, there are four teachers to every three classrooms. Students are in school for three months and off for one month. He stated that while some question the year-round schedule from an academic perspective, there is no proof that students actually do better or worse with year- round school. Some say that year-round is better because students retain more information. One of the problems with year-round schools is that they cost more money to maintain since the schools are operating for 12 months instead of nine months. Another option schools employ to address overcrowding is "zero to eight period" extended school days. (In this option, students come in early and stay later.) Local bonds are also a funding option for new school construction in growing areas. Schools can be built without state money, or bonds can provide the local match needed to get state money. In some areas, developer fees are used to help build schools. The current fees are $2.14 per square- foot for residential development and $0.34 per square-foot for commercial development. This funding source can only be used for facilities; it cannot be used for sataries or to pay for raises. Chula Vista Ch:y/Schools Community Tase Force March 2QQ3 Appendix A - Page 3 It was mentioned that the City of Chula Vista uses Mello-Roos fees which go directly to the school district. To form a Mello-Roos district, an election must be held, but this might only constitute the developer if they are the only land owner. The assessment is then passed on to the homebuyer. Generally Uello-Roos is only used in areas where there is high growth for the benefit those in the area. Ron explained Community Facilities Districts are somewhat like Mello-Roos districts but they tax only a portion of the community. Only residents in the areas that need a school and have approved the district will be charged. Ron discussed various state propositions that have provided school construction funding, as well as those that are proposed for the ballot. He also reviewed the number of local bond elections that have passed recently in both the Prop 39~55% bond elections as well as the traditional two-thirds majodty elections. One significant state bill, Senate Bill 50, has made a dramatic change in the ability of a city to stop development based on deficient facilities. While a city can cite development of school facilities as one area of deficiency, school facilities cannot be used singularly as a reason to halt development in a community. One member stated that we have already explored all the issues presented by Ron and asked: "What can we do right now to remedy the situation?" Ron stated that dght now they can work on doing what is dght. For the short term they can put up a temporary portable classroom school on a site while they are waiting to accumulate enough funding to build a permanent facility. This way they can also get a long-term solution. Questions and Comments: There were a number of questions raised and comments made by task force members and public in attendance. Since many of these will be addressed in subsequent meetings, they are grouped accordingly: To be addressed at the October 7 meetinq: · What is the number of new K-12 students by 2010 in Chula Vista? · What is the ratio of square footage per student in elementary/secondary (acreage + building) in CVESD and SUHSD? For elementary schools, the limit is 150 square feet per student, but what about middle school and high school? Do we fit within the guidelines for the State of California? · Can we get a comparison of all school footprints, number of students and number of buildings (including the amount of land that is fiat and useable vs. on a slope)? · Portable schools - is it an option for us? Are there other creative options or quick temporary solutions? Fundinq issues (proposed for meeting 4): · Can we obtain a written description of Community Facility Districts and Mello- Roos? · There is a timing issue regarding what monies are available now for school construction. Where are we in that cycle? Are there state funds available? Did we run out of state funds? Chula Vista City/Schools Oornrnunity Tas< Force March 2003 Ap~endl~ A - Page 4 · How is the money from developer fees and Mello-Roos collected end when does it go to schools? · How is the money allocated? · Do our districts have plans ready to go forward so we can "get in line' if a new state bond is passed? · What is actually funded by the various fees? · What are the problems that the districts encounter in matching state funds? · What is the difference between operating funds vs. maintenance and construction funds? What are operating costs and where do they go? Are there reserves to maintain buildings? · Were funds from Prop BB and Prop JJ spent the way they were intended? · Can we get more detailed information on Mello-Roos vs. developer taxes? · Can we define the terms Community Facility District, Mello-Roos and "your community' in regards to the fees and taxes? · What about the impact of developers who pay Mello-Roos completely up front vs. the assessment being paid over time by the homeowners? · Can you cladfy developer fees? Where do they go/stay? Are they shared within the district or go outside where they came from? Do developer fees remain in Chula Vista or go to the entire school district? How does the school distdct decide to build a school? Planning processes of the three agencies (proposed for meetings 5 and 6): · Where was the foresight of the city/districts? An example was given of how Heritage Elementary was built and less than a year later they tore out pad of the playground and put in portables. Kids that live next door to the school can't go to that school. Control measures are needed to prevent this from happening again. · What is the procedure that developers have as to when to notify the city of the number of units they will construct? At what point does this information get to the school district? · What is a realistic expectation for accommodating growth and what do we do with kids while we are waiting for full capacity? · Can we get a flowchart that shows how the information goes through the city to the school distdct when developers put through a housing project? Is there a way we can improve the way that the school districts get this information? · Can we get an example that shows us how we can understand the planning process as it exists today - within each agency and among the three agencies? · Can we have pdvate industry/developers build schools sooner than the districts can? A packet of information on this topic was passed around. Patsy will obtain copies for each task force member. · GMOC school standards are qualitative. Should they change in relation to what we heard about SB50? · A comment was made that there are more issues than just the school districts, such as quality of life. The task force should also address issues that go with growth such as water, development, etc. Patsy commented that the task force might recommend looking into these other issues, but the primary focus of this task force should be on the schools. Task Force Member O'Neill indicated that the GMOC already addresses growth-related quality of life issues such as traffic and water. Chula Vista City/Schools Community Tas< Force March 2003 Appendix A Page 5 · Can we get information on the availability of land; including city land; and ensuring its availability? · Should we review the thresholds of the City's growth management plan? · What has been the history/pattern of growth in Chula Vista and what are the mechanisms in place to make sure that school districts are informed of growth? · We should look at the factors we can and cannot control, such as the economy, number of new students moving in, etc. · Can we create a simple questionnaire for new homeowners to get accurate real- time data about the number of school age children? Can we create a database from this in order to have this real-time data? · Can we get someone from SANDAG to talk about population and demographics in the region and South Bay specifically? A motivational or futuristic speaker maybe? Questions that do not readily fall into a specific cate.qory: · What about the proof of residency issue in Chula Vista? I think that should be addressed. · What are the implications of unification? · How does the economy relate to high enrollment? Do enrollment impacts vary with market-segment housing? Mission Statement and Principles of Participation: The proposed mission statement and principles of participation were reviewed briefly and will be discussed and adopted at the next meeting. It was noted that if members represent a specific group, such as the chamber of commerce, they should keep stakeholders or members of that group updated on the task force discussions. Members should feel free to get comments from the group they represent, if appropriate, since the task force needs to hear as many opinions as possible. Discussion of Meeting Schedule: It was noted that a tentative meeting schedule and proposed agenda topics for upcoming meetings were included in the task force binders. Meeting agendas will be revised as necessary to reflect task force discussions. Patsy noted that the next meeting will be on Monday, October 7 and the facilities tour is scheduled for Tuesday, October 22 at 6:30 a.m. Ohula Vis~:a City/Schools Community Tas~ Force March 2Q03 Appendix A - Page 6 City of Chula Vista/Chula Vista Elementary School DistrictJ Sweetwater Union High School District Community Task Force Agenda Meeting #2 Monday, October 7, 2002 City Hall, Council Conference Room, 276 Fourth Avenue, Chula Vista, CA 6:00 - 6:30 p.m. - Meet and Greet 6:30- 9:00 p.m. - Task Force Meeting 1. Agenda Review John Moot 5 minutes 2. Administrative Items Patricia Tennyson 5 minutes · Facility site visit details 3. Discussion/Adoption of Mission Task Fome 30 minutes Statement and Principles of Participation 4. School Enrollment in Chula Vista Lowell Billings, CVESD 60 minutes Bruce Husson, SUHSD (30 minutes each) 5. Task Force Discussion 30 minutes 6. Public Comment John Moot 5minutes 7. Look Ahead to the Next Meeting Patricia Tennyson 15 minutes Chula V~sta City/Schools Cornrrun~ty Task Force March 2003 Appendix A - Page 7 City/Schools Community Task Force Meeting Notes Monday, October 7, 2002 6:30- 9 p.m. Task Force Members Present: Kent Aden Kimberly Longo Guy Asaro Rey Monzon Mike Bell John Moot Maya Bloch Kevin O'Neill Aurora Clark Patricia Rivera Rudy Gonzalez Al Sides Tris Hubbard Mikki Zbikowski Staff Present: Dave Rowlands, City Manager, 619.691.5031, Drowlands@ci.chula-vista.ca.us Sid Morris, Assistant City Manager, 619.691.5031, Sid.morfis@ci.chula-vista.ca.us Bob Leiter, City of Chula Vista, 619.691.5101, Bleiter@ci.chula-vista.ca.us Dan Forster, City of Chula Vista, 619.476.5378, Dforster~,,ci.chula-vista.ca.us Joe Cline, Chula Vista Police Department, 619.691.5124, jcline~,,chulavistapd.or.q Tm Peltekian, Chula Vista Police Department, 619.585.5670 Ralph Leyva, Chula Vista Public Works, 619.691.5116, rleyva@ci.chul-vista.us Lowell Billings, CVESD, 619.425.9600 x1371, Ibilling@cvesd.k12.ca.us Dee Pemlta, CVESD, 619.425.9600 x1375, dperalta@cvesd.k12.ca.us Oscar Esquivel, CVESD, 619.425.9600, oesquive@cvesd.kl2.ca.us Susan Fahle, CVESD, 619.425.9600 x1451, sfahle~cvesd.k12.ca.us Elva Melior, CVESD, 619.421.2892 Don Kemp, SUHSD, 619.585.4425 Katy Wright, SUHSD, 619.691.5553 Memedes Richardson, SUHSD, 619.691.5564, memedes.dchardson@suhsd.k12.ca.us Bruce Husson, SUHSD, 619.585.6060, bruce.husson@suhsd.k12.ca.us Rafael Uunoz, SUHSD, 619.691.5553, rafaehmunoz~,suhsd.k12.ca.us Earl Wiens, SUHSD, 619.691.5564, ead.wiens@suhsd.k12.ca.us Patsy Tennyson, Katz & Associates, 858.452.0031 x366, pat@katzandassociates.com Kerry Kops, Katz & Associates, 858.452.0031 x398, kkops@katzandassociates.com Others: Ad Garcia - Chair, City of Chula Vista Growth Management Oversight Committee (GMOC) Steve Palma - GMOC Mike Speihman - GMOC Maty Adato Angle Barton Wayne Barton Vista City/Schools Community Task Force March 2QQ3 Appendix A - Page 8 Chair John Moot opened the meeting with a discussion of the procedure for Task Force members to ask for information to be developed by staff from the three agencies. If any Task Force member desires a report on a specific issue or additional information materials, the member should bring the issue up at one of the Task Force meetings. If other members agree that the material is needed, a request will be made to the appropriate agency. John also asked for Task Force members to discuss the issue of responding to calls from media representatives during the review of the Mission Statement/Principles of Padicipation. Several Task Force members were contacted after the first meeting and since the Principles of Participation had not been adopted by the group, it was not clear how such requests for information should be handled. Questions from Task Force Members During a bdef discussion among Task Fome members, the following questions were posed: · Can we get an 8.5-by-11-inch map that outlines the jurisdictional boundaries of the City of Chula Vista, Sweetwater Union High School Distdct and Chula Vista Elementary School District? Can the map have all the schools labeled by name? · Kimberly Longo asked why the Task Force had been established if the group can't slow, delay or modify growth to help address some of the overcrowding issues as a result of SB 50. Kimbedy pointed out that she had found a case and discussed it with Assembly Member Wayne, who explained the legislation was a trade: "whereby developers had their fees reduced in return for supporting an education bond." The resulting bond was spent quickly, primarily in Los Angeles. Kimberly suggested the Task Force should get an analysis of SB 50 from the Chula Vista City Attorney's office. John Moot suggested the analysis be provided at the December meeting and should include the legal parameters and any case law interpreting it. · Several members asked if the Task Force should consider proposing legislative changes as part of their work product. Examples of areas where legislative changes might be helpful include: changing SB 50, modifying the 150-square-foot-per-student state guideline, and changing the state funding cdteria so that portables do not count against a district. Administrative Issues Patsy noted the following changes to the meeting minutes: page 2, paragraph 2 should read an elementary school "site" instead of an elementary school "facility," and page 3 should read "$2.14" per square foot residential and "$0.34" per square foot commemial. Maya added that on page 3, the paragraph 4 should be changed to more clearly state that the city can cite development issues as a reason to stop growth, but cannot singularly cite ovemmwded schools as a reason. Also, the word "temporary" should be added before "portables." Patsy reminded the group about the facilities site tour on October 22. The Task Fome members will be driven past several schools and school sites on one of CVESD's school buses and will walk around at a few sites. A suggestion was made that Task Fome members walk to Eastlake High School to meet the bus. Also, members of the group observed that it would be helpful to adjust the tour time so that the Task Force could observe a nutrition or lunch break. Patsy said that the final itinerary will be sent to Task Force members as soon as the times are established. Chul~ Vista Qty/Schools Community Tas< Force March 2003 Appendi× A ~ Page 9 Principles of Participation/Mission Statement During the last meeting, it was suggested that the Mission Statement be more streamlined. Patsy noted that the Mission Statement for the Task Fome was different from that of an organization and due to the many diverse perspectives of members of the group, it is beneficial to have more information in the statement than less. However, Patsy said she had attempted to reduce the Mission Statement to one sentence and a list of objectives. Two versions of her revision were distributed. Rudy suggested that the Mission Statement read, "To provide quality educational facilities for the citizens of Sweetwater Union High School District, Chula Vista Elementary School District and the citizens of the City of Chula Vista." After some discussion, John suggested that a revision be sent by e-mail to Rudy, Kimbedy and Maya for their review and comment. There was fudher discussion regarding responding to media inquiries. The consensus of the group was to refer any requests for information regarding Task Force deliberations to the Chair until the final Task Force recommendations are made. It was explained that this decision was in no way an attempt to infringe upon the rights of any member to talk to media representatives. Each member needs to make his or her decision regarding speaking to the media during the period of time when the Task Force is deliberating. Presentations: Chula Vista Elementary School District Lowell Billings Lowell presented the history and demographics of CVESD. Because his presentation, along with a variety of supporting documents, was distributed to the Task Force, the presentation will not be repeated in this summary. However, highlights or additional points made to respond to previous Task Force discussion, as well as questions from Task Force members, will be summarized. In response to the question about the district's jurisdictional boundary, Lowell stated that CVESD encompasses part of south San Diego, all of Chula Vista, the Dennery Ranch and Vista Pacifica, Bonita, part of La Mesa, part of Spring Valley, part of National City to the border of Jamul, and wraps to the border for a total of 103 square miles. Many of these boundaries were set a long time ago based on agrarian principles. There are four schools in south San Diego, two schools in Bonita and the remaining schools fall within the boundary of Chula Vista. In 1970, the enrollment was16,543, now it is 24,688. Lowell showed the various elementary schools and explained traditional normalization and how schools experience different growth pattems. One of the historic options for managing growth was to utilize open space schools, where big, open warehouses housed desks and walls that could be moved to accommodate growth needs. Multi- track year-round schools were another way to have more students and teachers housed in one facility. Those two options were employed in the early 70's when the district experienced growth. Sometimes boundaries were adjusted sometimes when there was a large growth spike, but always with the same result - too many kids in one school. CVESD has not utilized that option recently. Class size reduction for grades K through 3 has been found to be educationally beneficial. Lowell's presentation described the effect of reducing class sizes on the availability of numbers of Chula Vista City/$chools Community Task Force March 2003 Appendix A - Page 10 classrooms, as well as on the school as a whole. The current average of upper grade class size at CVESD is lower than neighboring school districts. In grades 4 to 6, the class cap at CVESD is 31 students. Many neighboring school districts either have no cap or have a cap that allows from 32 to 34 students per class. Increasing the number of students per classroom makes more classrooms available per school, which can have the effect of building a new school. CVESD does not offer inter-district transfers for students outside the distdct into high enrollment schools. There are two exceptions to this rule: ongoing transfers that have been approved historically (so as to not break up families) and transfers for teacher's children (in order to ensure that the district has and retains the best teachers). This past year CVESD opened three schools; by 2005, CVESD is planning to open three more. The California Department of Education recommends guidelines for school size and typical land requirements, however, there is flexibility and room to negotiate depending on specific situations. There are approximately 2,500 to 3,000 homes built each year, and 400 to 800 new students enter the CVESD schools each year. In 2010, CVESD expects to have 29,400 students enrolled in the district. That is an increase of 5,000 students over today's enrollment. Compared to other schools in the U.S., CVESD has a lower enrollment per school than many other high-growth areas. Eastlake community schools were planned and funded for multi-track operation. When CVESD schools changed to single-track operation, it took more classrooms to house the same number of students. Class size reduction also increased the number of classrooms required in the primary grades with no mitigation. Lowell stated that this is a funding challenge rather than a planning problem. Questions: · Is there information regarding whether multi-track or single-track is better?. Lowell said the research is inconclusive. Children seem to learn best when parents are happy with the schedule and teachers are happy with working conditions. · How many schools have different times for recess? Most have staggered recesses. The recess intervals are dependent on the number of students at the school. At some sites, it is physically impossible to have all the students at recess or on the playground at the same time. · Does CVESD have any multi-track schools right now? No. · Are we bussing students now and, if we are, how many students are bussed? How much time do they spend on the bus? There are students who are bussed for a variety of reasons, but only a small number for space reasons. The bussing affects Heritage, McMillan, Lauderbach and Feaster-Edison and involves around 250 -300 students. If students are bussed, they are not bussed very far from the school nearest their homes. · What residency verification does CVESD do? CVESD collects a series of documents that state where the child is domiciled. In addition, district principals and staff do home visits and other follow-up. Chula Vista Qty/Schools Community Task Force March 2003 Appeedix A - Pa~e 11 · What are acceptable documents for residency verification? CVESD takes utility bills, mortgage slips, moving documents, rent receipts, etc. If a child lives with a guardian in the district, the child can attend school in the district. All inter-district transfers are denied, with a few exceptions, such as for children of teachers in the district. · How much of the tax monies (Uello-Roos and other fees) go to construction? This subject will be discussed at the next meeting. Sweetwater Union High School District Bruce Husson - Chief Operations Officer Bruce introduced the SUHSD presentation and described the options the distdct has to manage growth. These include boundary adjustments, overflow transportation, class size increases, school choice, longer school days, multi-track year-round calendar, double sessions, night high school, portable classrooms and new construction. He also showed a chart illustrating the enrollment from 1990 to the present. The presentation, and a series of handouts that provided additional information, were distributed to members of the group. Katy Wright - Planning Ms. Wright discussed the number of students in SUHSD schools in Chula Vista. In 1999, there were 34,004 students. In 2001, there were 37,275 students. Ms. Wright also reviewed state guidelines for the typical square footage per student, but pointed out they are only guidelines and individual schools may vary. For elementary schools, the building target is 65 square feet (sO/student and the site, 692 sf/student; the middle school building target is 83 sf/student and site, 838 sf/student; and the high school building target is 94 sf/student and site, 918 sf/student. Ms. Wright stated that Eastlake is the most populous high school and Rancho del Rey is the most populous middle school in the district, based on the number of students enrolled. However, National City is the most densely populated middle school and Sweetwater is the most densely populated high school when you sort the schools by number of students per acre. Questions: · Is the acreage shown in Handouts 5 and 6 for usable land or does it include slopes? The figure for usable (non-sloped) land. The acreage of non-usable or sloped land is not available. · What about learning center students -- how are they are counted? A learning center student is only on campus for a couple of hours each day. · Can you ask schools how much of the open space area they use in order to dedve the usable land figure? Such information would not be reliable. The district needs to develop a project to analyze its sites for net usable acreage. · When students in gym class leave the school grounds to exemise, is that calculated into the site figures? No. Dr. Don Kemp- Student Achievement Dr. Kemp discussed APl values and growth for schools in the district. The statewide performance target is 800. The APl for SUHSD schools is between 500 and 800. The reason why SUHSD Chula Vista City/Schools Community Task Force March 2003 Appendix A - Page 12 wanted to bring in APl scores is to show how growth and major growth spikes affect those scores. All APl scores were based on the SAT 9 exam. Eastlake had one of the biggest gains this year. The Scholastic Achievement Test scores in the distdct are the same as they were ten years ago, but 46% of the students are taking the test now compared to 35% of students ten years ago. Questions: · Is there a correlation between student population size and achievement? There does not appear to be a direct correlation between school population and student achievement. There are many other variables that correlate more directly than population. · Can you provide a comparison of 9t~ and 10th graders in SUHSD to 9t~ and 10th graders in another high enrollment district such as Poway? The APl scores provide comparisons to similar schools using a variety of characteristics to determine "similar". This is a much more meaningful comparison of schools than using merely high enrollment as the basis of comparison. · Is it possible to compare grades to see how the same students score as they move through 9th and 10· grades? The district is unable to obtain "matched data" (data that follows individual students as they progress through the grades) from its current student information system. Obtaining and analyzing such data is a labor intensive effort. A new student information system is in development stages, but is not expected to be fully operational until 2004 at the earliest. Mercedes Richardson. Programs and Welfare Ms. Richardson discussed before- and after-school programs, student transfers, attendance patterns and residency verification. She provided the reasons that a transfer might occur, as well as a chart showing the number of students per school attendance zone and the number of students that attended a variety of schools in and outside of the district. Ms. Richardson said there is a moratorium on all transfers right now. The residency verification handout lists the documents that are required and accepted. The verification is done the district's Student Services office and caregivers must provide an affidavit, a note that tells where the parents are and some proof as to why the parents cannot take care of the student. She also explained that SUHSD relies on the type of documentation outlined on the handout along with the honesty of the person registering the student. SUHSD staff also does home visits. Questions: · There were a number of questions related to the residency issue and what constitutes adequate verification of residency. Task Force Biscussion/Public Comment · A member of the public in attendance criticized the organization of the backup material presented by SUHSD. · When you say "residency verification," do you mean that you live in the district and attend the school that you are within the boundary for, not another school in the district that you are not within the boundary for?. Residency also includes joint residency and caregivers, as well as students who reside in the distdct and attend schools other than the school in their home attendance area because they are in a choice, magnet, or other program. · Do Mello-Roos funds have to remain in the CDF? No. (]hula V~s~a City/Schools Cornrnunlty Tas~ Force March 2005 Appendix A Page ]3 · Another member of the public asked if the Task Fome is going to look into the excessive number of apartments being constructed in eastem Chula Vista. John stated that this was not really an issue for the Task Force. Meeting Wrap-Up · Patsy reminded the group that the facilities tour is on October 22 and that an agenda wilt follow soon. The next regular meeting is November 4 and the Task Force wilt adopt the Mission Statement and begin the discussion of funding options and issues. The Task Force will also receive additional information to clarify information presented at the meeting tonight, such as the initial APl scores for each school. · One member commented that the Task Force members should not have side conversations dudng the presentations as they may miss what the speaker is saying, they distract other members who are listening and the conversations are taking attention away from those who have come to make a presentation. John stated he would like for SUHSD to provide some historical information comparable to the information CVESD conveyed. It would be helpful to see the ebb and flow of school population in the district over the years. Chula Vista City/Schools Community 7ask Force March 2QQ3 A?pendlx A - Page 14 City of Chula Vista/Chula Vista Elementary School DistrictJ Sweetwater Union High School District Community Task Force Agenda Meeting #3 Facilities Site Tour Tuesday, October 22, 2002 LOCATION SCHEDULED TIMES Park at Vons parking lot near McDonald's - You can either 6:30 - 6:45 a.m. board the bus this location or walk to Eastlake High School Board Bus at Easttake High School near intersection of Club 7:20 a.m. House Drive and Eastlake Parkway Rancho Del Rey/Casillas - Drive by schools 7:35 - 7:40 a.m. Hedtage School - This school was built in a community that 7:50 a.m. was planned as a "walking community," however this has not been the case when residents moved there and the resulting traffic is an issue. Otay Ranch - This is the newest high school being 8 a.m. constructed by SUHSD. We will drive by here to see where it is and view how the construction is proceeding. Drive by to view the future location of CVESD school 40, 8:05 a.m. where site work is under way. Lauderbach School - This school was converted from a 8:15 - 8:55 a.m, multi-track to single track schedule. The bus will stop and tour participants will walk around the school to see how it operates. Chula Vista Learning Community Charter School - This is 9 a.m, located on the route to the CV Middle. The distdct purchased this small site on the west side and added two story modular buildings to maximize playground space. Chula Vista Middle School - There is an elementary school 9:05 - 9:45 a.m. across the street; the middle school is in the process of being "modernized" and tour participants will be able to walk around to see what the modemization process consists of. Chula Vista High School - Tour participants will get off the 9:50 - 10:35 a.m. bus during the nutrition break and walk around the campus of one of the older high schools in the district. Return to Vons parking lot Approximately 11 a.m, Chula Vista Oty/Schools Community Tas< Force March 2003 Appene~ix A - Page 15 City of Chula Vista/Chula Vista Elementary School District/ Sweetwater Union High School District Community Task Fome Agenda Meeting ~ Monday, November 4, 2002 City Hall, Council Conference Room, 276 Fourth Avenue, Chula Vista, CA 6:00 - 6:30 p.m. - Meet and Greet 6:30 - 9:00 p.m. - Task Force Meeting 1. Agenda Review John Moot 5 minutes 21 Administrative Items Patricia Tennyson 2 minutes 3. Discussion/Adoption of Revised Mission Task Forae 30 minutes Statement and Principles of Participation 4. Funding Issues and Options in Chula Bob Leiter, City of Chuia Vista: 30 minutes Vista Planning for New Public Facilities, Including Schools, in Chula Vista Jeff Hamill: CFD Financing Program in Chula Vista 30 minutes City of Chula Vista, CVESD and SUHSD Staff available to respond to questions 5. Task Force Discussion of Planning and 45 minutes Funding Issues/Public Comment 6. Look Ahead to the Next Meeting Patricia Tennyson 5 minutes Chula Vista City/Schools Community Tas< Force March 2005 Appendix A Page 16 City/Schools Community Task Force Meeting Notes Monday, November 4, 2002 6:30 - 9 p.m. Task Force Members Present: Kent Aden Kimberly Longo Guy Asaro Hector Martinez Mike Bell Rey Monzon Maya Bloch John Moot Aurora Clark Kevin O'Neill Rudy Gonzalez , Patricia Rivera Tris Hubbard Al Sides Staff Present: Dave Rowlands, City Manager, 619.691.5031, Drowlands@ci.chula-vista.ca.us Sid Morris, Assistant City Manager, 619.691.5031, Sid.morris@ci.chula-vista.ca.us Bob Leiter, City of Chuia Vista, 619.691.5101, Bleiter@ci.chula-vista.ca.us Dan Forster, City of Chula Vista, 619.476.5378, Dforster~ci.chula-vista.ca.us Lowell Billings, CVESD, 619.425.9600 x1371, Ibiiling@cvesd.k12.ca.us Dee Peralta, CVESD, 619.425.9600 x1375, dperalta@cvesd.k12.ca.us Dennis Doyle, CVESD, 619.425.9600, ddoyle@cvesd.k12.ca.us Oscar Esquivel, CVESD, 619.425.9600, oesquive@cvesd.kl2.ca.us Susan Fahte, CVESD, 619.425.9600 x1451, sfahle~,cvesd.k12.ca.us Ed Brand, SUHSD, 619.691.5555 Barry Dragon, SUHSD, 619.691.5550 Kathy Tanner, SUHSD 619.691.5553 Anthony Uillican, SUHSD, 619.691.5578, anthony.millican@suhsd.k12.ca.us Katy Wright, SUHSD, 619.691.5553 Bruce Husson, SUHSD, 619.585.6060, bruce.husson@suhsd.k12.ca.us Rafael Uunoz, SUHSD, 619.691.5553, rafael.munoz~,,suhsd.k12.ca.us Patsy Tennyson, Katz & Associates, 858.452.0031 x366, pat@katzandassociates.com Kerry Kops, Katz & Associates, 858.452.0031 x398, kkops@katzandassociates.com Others: Charles Longo Debbie Allen Bob McAlister Jill Galvez Natasha Martinez Maria Kauladacri Chair John Moot opened the meeting commenting on the facilities site tour and how it was informative and offered an opportunity to see the variety of elementary, middle and high schools all over Chula Vista - and leam about: · Various ways the districts deal with growth and growth cycles in schools, such as permanent modular and two-story modular buildings · Staggered times for recess · Rules for walking on the sidewalks during nutrition break Chula V~sta City/~chool5 Comrnunity Tas< Force March 2003 Appendi~ A - Page 17 · Other ways the districts are managing high enrollment schools. The group also saw what modernization programs are like and what a school looks like before and after modernization, how Prop 47 might affect both districts if it passes tomorrow, how the districts deal with constrained sites, and observed traffic patterns and discussed some traffic issues dudng the moming drop off period. City staff and members of the GMOC were on board the bus and taking notes. Thanks to the Chula Vista Elementary School Distdct for arranging bus transportation for the task force. He also noted that task force members suggested there should be more meetings than the ones currently scheduled. As there are additional presentations and opportunities to discuss and formulate recommendations over the next few months, the decision whether to have more meetings can be made then. The presentations for this meeting will provide background for discussing funding issues in the schools. There will be some questions specific to each district that may not get answered tonight that can be discussed at the December meeting. Also at the December meeting, Sweetwater will provide additional information about school population and historical data similar to that provided by CVESD at the October 7 meeting. The critical activity tonight is to agree on the task force Mission Statement. There are a wide variety of issues that we could discuss, but I believe this task force needs to focus on facilities and communication between the three agencies and show that we can address those complex issues in a collaborative fashion. Administrative Issues In response to a question about the agenda, facilitator Patsy Tennyson stated that if you counted the facilities tour, this should technically be meeting four, not three. Patsy also reviewed some changes to the minutes that were submitted by CVESD. These revisions will be made and a revised copy of the summary distributed at the next meeting. There were no additional changes from the task force members. A first draft of a matrix of issues raised at task force meetings was distributed. Task force members agreed that in the future they will receive meeting materials via e-mail; a hard copy will be distributed at the meeting. The materials will no longer be mailed. Principles of Participation/Mission Statement Patsy noted the Mission Statement changes from last meeting that were added by Maya Bloch, Rudy Gonzalez, Kimberly Longo and Rey Monzon. Discussion ensued related to several points: · Technically the task force deals with issues beyond the jurisdictional boundaries of the City of Chula Vista and that it should not state "citizens of Chula Vista." John noted that the districts do have schools outside the City of Chula Vista, but the pdmary focus of the task force is growth in the City of Chula Vista. The Mission Statement was revised to state "residents" instead of "citizens." Ciaula Vista City/Schools Cornrnu~i[y Task Force March 2003 Appendix A Page 18 · Kimberly noted that the three agencies could not "ensure" anything; the Mission Statement should say that the task force will "make recommendations to ensure that." The task force members agreed. · Kevin asked if the school boards were getting briefings on the task force meetings. Patsy noted that they will have formal quarterly briefings in addition to the informal briefings that they currently receive from staff. There will also be a written report at the completion of the Task Force meetings. The person that typically gives the presentation summarizing the Task Force's work is the chair, so John Moot will make presentations to the three agency boards, perhaps assisted by some task force members depending on time constraints. Kimberly observed that the presentation might be worth televising. · Guy suggested the fourth bullet in the Mission Statement the objectives should read "Recommend if appropriate, legislative or other changes that will enhance..." Task force members agreed. This same change should be made to point five under the task force work product description. · On page three, it should say that task force members should report to Patsy if someone will be absent. · On the last page under media, task force members agreed that the last sentence should be revised to substitute the word "encouraged" for "welcome." The revised Mission Statement and Principles of Participation was approved as amended. Presentations: Bob Leiter Director of Planning and Building City of Chula Vista Bob's presentation covered three basic issues: how the City's general plan provides the framework for planning public facilities including schools, how the City's growth management plan guides the creation for financing mechanisms for creating public facilities and how the City's community planning process ensures new development builds and/or finances all the needed public facilities. Because his presentation was distributed to the Task Force, the presentation will not be repeated in this summary. However, highlights or additional points made to respond to the Task Force discussion, as well as questions from the Task Force members, will be summarized. Master plans develop financing for projects within the City. The City spreads facilities costs to new and existing developments, however the City cannot charge the new development for the existing deficiencies of public facilities in the area; this has to be funded from another source such as a grant program from the state or some other source. The City does charge new developments for all the new facilities as a result of the new development. The way the developer is charged is through a development impact fee (DIF) where you charge a fee per new home built or through community facility districts (CFD's or Mello-Roos), which is allocated on a formula developed for each dwelling and is typically paid annually. Chula V~sta City/Schools Community Tas< Force Ivlarc h 2003 Appendix A - Parde/9 Bob noted that the school districts use the master plan to help plan for growth. Questions/Comments (in italics if a response is included): · Are the City's growth management standards from 19877 Yes. · Are those growth management standards updated or reviewed? There are two ways that the City works on this: the general plan update and the Growth Management Oversight Committee (GMOC). As part of their annual review, the GMOC looks at each of the 11 growth management standards and formulates recommendations on whether those need to be updated or revised. Also, city staff studies issues annually and may make recommendations. We have just started the comprehensive general plan update, which will be a major review and overhaul/update of all the standards. · Have there been significant revisions over the years with the thresholds? There were revisions to the traffic thresholds seven to eight years ago and there were refinements in the last year to the police, fire and library thresholds. The school thresholds have been reviewed, but there have been no changes. · If a school is not in place, does the city have the authority to put a hold on occupancy? While the City can do this if some elements (water, to fight fires for example) are not in place, the City cannot put a hold on occupancy because of schools. · How do school facility and availability relate to the City's ability to regulate development? The Chula Vista City Attorney's office prepared a report on this issue that will be reviewed at the December meeting. (This memo was distributed at the end of the meeting). · What if the GMOC or the task force comes up with a more defined threshold for schools (for example, the capacity of the school cannot be exceeded) - will the City be able to enfome it since the City does not have the authority? There are two ways to approach this issue: from the legal perspective and what are the practical ways that the city and the school districts can work together to reach those goals. If you look at the track record overall in the past 15 years since the growth management plan has been in effect, the City and the school districts have been able to coordinate their planning projections to provide school facilities very well. There have been some recent situations that have been unique. Because there are some legal issues, we do not have the authority to deal with those. They need to be recognized to ensure that schools are getting built when they are needed. · How does the City address density? When you are addressing older neighborhoods, you should look at how you develop an impact fee program that determines how many facilities need to be built (cost per unit) and you spread the cost to the dwelling units. Generally the school distdct looks at the type of dwelling and estimates how many students come from that type of dwelling. They use this type of prediction to estimate the school facilities needs. · What about parks? They are not used only by residents in that area, but they paid for it. What is the City doing so that the inner-city has those facilities? The GMOC recommended that the City establish a standard and as part of updating the general plan, we will update where there can be additional development in the neighborhoods to address the existing deficiencies. The City cannot charge the developers for existing deficiencies but they can charge for new development. The City can decide through a capital improvement program what is a priodty and apply for additional state funds and federal grant money. · What is the reason you cannot charge a new development for an existing upgrade? It is a state law. · What are the criteria for school site selection? Is it population? If you look at the general development plan sectioned into areas, the City worked with the school district to make Chula Vista City/Schools Community Task Force March 2003 Appendix A - Page 2Q projections for the student generation rate. At that point we looked at the housing plan and tried to distribute schools geographically. For instance, we place elementary schools in each village since this tends to serve the needs of the villages. Middle and high schools tend to be larger and serve a larger area and they are intended to be placed within a reasonable distance of the homes. Every time we update the general plan, we update projections and meet with both districts to ensure the site facilities meet the overall need, are located in the appropriate area and are constructed in a timely manner. · Doyouknowthethresholdforstudentgeneration? Idonotknow, butlcanfindoutforyou. · Regarding the communities that were designed to be "walking communities,' will that be reevaluated?. Yes. · Ontheslide, thephasingofthecommunityiswithinthecontroloftheCity. Isthatcorrect? Yes. · IsthewaythattheprejectissetoutbythedeveloperwithinthecontroloftheCity? Atthe general development plan level in Otay Ranch for example, the phasing plan stated the first villages to be developed would be one and five, north to south, west to east. With the adoption of this plan, the City can predict the timing of these facilities. · Isthefunctionofthe Citytolookattheplanandsay, "Buildone, two, andthree?"Yes. The City can order the phasing, not the development. · Does the City have the ability to hold back the growth and development so schools can catch up? That is related to SB 50 and I am not qualified to answer, but that is in the memo from the City Attomey that will be distributed tonight. Jeff Hamill Principal with Special District Financing Because his presentation was distributed to the Task Fome, the presentation will not be repeated in this summary. However, highlights or additional points made to respond to Task Fome discussion, as well as questions from the Task Force members, will be summarized. Questions/Comments: · On page 5 regarding debt service and management, does that include principle? Yes. · On page 4, take for example the high school - we paid $14,000 per student to build the high school. What would the number be in 2001 dollars? Is it just inflation or does it really cost more today to build a school? The cost to build schools is outpacing inflation; it is more costly now than it was ten years ago. Schools now are much more involved. Materials are more expensive in San Diego versus other pads of the country. San Diego is not an inexpensive place to live. This is definitely a factor in school construction. · Is there a benefit to being unified versus not being unified? The school districts have a fee sharing agreement, that fee cannot increase. That is really immaterial because since 1998 the amount the districts can collect is limited by state law. For example, they can collect $2.14 per square foot for residential projects that are not in a Mello-Roos district. · What is your definition for pooled financing? Using special tax revenues from multiple CFD's to both repay bonds and pay directly for construction of new school facilities intended to serve the needs of the vadous CFD's. · To what extent should residents reasonably expect how much Mello-Roos can be shared throughout an entire school district? How does pooled financing relate to that? This is really a qualitative question and I cannot answer it. Chula Vista Crty/Schools Corr~rnunity Task Force March 2OQ,~ Ap~elnd~x A Page 21 · Is the money paid in CFD #1 used anywhere in the district? I wes specifically told the money I paid would be used for CFD one. The developers are misrepresenting themselves, it is not very clear. The pooled CFD concept in the district helps everybody. For example, there are CFD's outside the Eastlake CFD that are paying for Eastlake High School. · Where are the CFD's that are specifically paying for Eastlake? How large are they? Fastlake is the largest, with approximately 7,000 currently. Since we still have to pay off Eastlake's loan, the CFD's in other areas are helping to pay for Eastlake. · Barry Dragon, Chief Financial Officer for SUHSD, commented that the pool concept has paid for Eastlake, Rancho del Rey Middle School, Otay Ranch High School and Eastlake Middle School and about one-quarter of San Ysidro High School. The reason why it is only one- quarter is the population is composed of existing student population from students in ovemmwded high schools at Montgomery, Mar Vista and Southwest. Some of the additional funding is coming from Proposition BB, new development and state money. · Comment: Homeowners are told that the money they pay goos into the high school in the area. To keep this information from homebuyers is a lie and is something the Task Force should address. · Were the special tax rates for CFD #1 based on construction cost estimates for Eastlake? Yes, Eastlake residents support its schools ultimately. · Are the students that were sleted to go to East/eke High School going to East/eke High School? Yes. However, Eastlake High School's boundary is larger than the Eastlake CFD. Task Force Discussion, Questions and Comments · Is the CFD under the same legislation as the Mello-Roos and is there en election? Is this a planning process where a CFD is designated by a city or school district? Yes, there is an election process. Also the terms CFD and Mello-Roos are inter-changeable. · Can planning money be set aside in the state bond issue (Proposition 47 on the November 5, 2002 ballot)? This can be a key element for the future. · I would like to hear from the experts: Dm. Billings and Brand. In a per[ect world, what type of system would they use to make this process work most effectively and efficiently? · Regarding unification and residency, how are legal constraints determined? The Task Force needs to have more discussion regarding these issues. · We need to get a handle on the planning issues. If we solve the lack of space, other issues are less acute. · What are the current student generation rates and do they need to be adjusted? · How much of the Propositions BB/JJ monies are being dedicated to new school construction as opposed to renovating existing facilities? · How will the November 5 election and Proposition 47 impact the schools? How will this impact timing issues of new construction of schools? Bruce Husson commented that if Proposition 47 passes, SUHSD will have potential eligibility for up to $75 million. · Can we get a master chart of debt services back to 1986 and projected means of repayment? · What is the desirability of DIF versus CFD? · What about developers building schools? · Why don't we look into multi-level high schools and their effect on long-term costs? It seems they would provide for lower operations costs because they are more compact, as well as provide for better security. Chula Vista City/Schools Community Task Force March 2QQ3 Appendix A Page 22 · Can we have a chart of the number of communities still paying Mello-Roos in Chula Vista and a breakdown of CFD's and the amount of bonds issued? · Is there a different number for student generation rate forecasting and demographics for elementary and high school students? · The GMOC reports cover information from the prior year, so they are not really current. We need to look at that when we discuss planning processes of the three agencies. Is information evaluated objectively? How many permits are issued in the City? · How can developers communicate better?. Can we get the number of people moving into houses? Public Comment · A member of the community stated they were interested in forecasting and demographics statistics for elementary students when they go on to high school and whether these differ. Meeting Wrap-Up The next meeting is December 2. There was no further discussion and the meeting adjoumed at 9:15. Chula V~sta City/Schools Community Tas< Force March 2Q03 S,ppendix A Page 23 City of Chula Vista/Chula Vista Elementary School DistrictJ Sweetwater Union High School District Community Task Force Agenda Beefing #5 Monday, December 2, 2002 City Hall, Council Conference Room, 276 Fourth Avenue, Chula Vista, CA 6:00 - 6:30 p.m. - Meet and Greet 6:30 - 9:00 p.m. - Task Force Meeting 1. Agenda Review John Moot 5 minutes 2. Administrative Items Patricia Tennyson 3 minutes 3. SB 50 Memorandum Prepared by Ann Moore Ann Moore/Task Fome Membem 20 minutes - Questions from Task Force Members 4. Tax Revenue in Chula Vista - How Is II Dave Rowlands, Chula Vista City 20 minutes Divided? Manager Bruce Husson and Lowell Billings will 20 minutes distribute handouts regarding soumes of revenue for Chula Vista schools and take questions from Task Fome membem 5. Forecasting and School Facility Planning Dan Fomter: GMOC Residential 15 minutes Process Forecast Process and School Thresholds Katy Wright: Forecasting futura student 20 minutes enrollment and needs for new schools, and the planning and construction cycle of a typical high school Lowell Billings: Applying for State Funding 15 minutes 6. Task Force Discussion/Public Comment 30 minutes 7. Look Ahead to the Next Meeting 2 minutes Chula Vista City/Schools Community Task Force March 2QQ3 Appendix A - Pa~e 24 City/Schools Community Task Force Meeting Notes Monday, December 2, 2002 6:30 - 9 p.m. Task Force Members Present: Kent Aden Hector Uartinez Guy Asaro Rey Uonzon Aurora Clark John Moot Mike Green Kevin O'Neill Rudy Gonzalez Patricia Rivera Kimberly Longo Al Sides Staff Present: Dave Rowlands, City Manager, 619.691.5031, Drowlands@ci.chula-vista.ca.us Sid Morris, Assistant City Manager, 619.691.5031, Sid.mords@ci.chula-vista.ca.us Bob Leiter, City of Chula Vista, 619.691.5101, Bleiter@ci.chula-vista.ca.us Dan Forster, City of Chula Vista, 619.476.5378, Dforster~,ci.chula-vista.ca.us Lowell Billings, CVESD, 619.425.9600 x1371, Ibilling~cvesd.k12.ca.us Dee Peralta, CVESD, 619.425.9600 x1375, dperalta@cvesd.k12.ca.us Dennis Doyle, CVESD, 619.425.9600 x1325, ddoyle@cvesd.k12.ca.us Oscar Esquivel, CVESD, 619.425.9600, oesquive@cvesd.kl2.ca.us Susan Fahle, CVESD, 619.425.9600 x1451, sfahle~cvesd.k12.ca.us Mada Zadorozny, CVESD, 619.425.9600 x1325, mzadoroz@cvesd.k12.ca.us Ed Brand, SUHSD, 619.691.5555 Kathy Tanner, SUHSD 619.691.5553 Katy Wright, SUHSD, 619.691.5553 Bruce Husson, SUHSD, 619.585.6060, bruce.husson@suhsd.k12.ca.us Rafael Uunoz, SUHSD, 619.691.5553, rafael.munoz~suhsd.k12.ca.us Patsy Tennyson, Katz & Associates, 858.452.0031 x366, pat@katzandassociates.com Kerry Kops, Katz & Associates, 858.452.0031 x398, kkops@katzandassociates.com Others: Bryan Felber Debbie Alien Jim Smyth Linda Hasper Chair John Moot opened the meeting by asking Task Fome members to begin thinking about what other items need to be addressed before the last few meetings. John also noted that due to family commitments Mikki Zbikowski would no longer be able to participate as a Task Force member. He introduced Mike Green, a local attorney active in the Chula Vista community, who will join the Task Force in Mikki's place. Administrative Issues Patsy asked if there were any changes to the November meeting summary, and there were none. Chula V~sta City/Schools Community Tas< Force March 2003 Appendix A Page 25 Presentations: Dave Rowlands, Chula Vista City Manager Dave reviewed the sources of revenue and described how that revenue is divided in the city of Chula Vista. He noted that the city is very fortunate to have diverse sources of revenue; this helps the city absorb cutbacks in one specific source if/when that situation occurs. The largest generator of money for the city is the sales tax, followed by property taxes and vehicle licensing taxes. There have been a couple of cuts to the vehicle licensing tax, and it may pose a problem in the future due to the state budget deficit. Other local taxes cover garbage franchise fees, cable television franchise fees and SDG&E franchise fees. There are also property taxes, the transient occupancy tax or TOT, and development fees. Questions/Comments (in italics if a response is included): · What schools did the funds from the elementary portion of CFD #1 go to finance? I would also like to find out how the distribution worked for the high school portion of CFD #1. · Assessment maintenance district #1 is only for maintenance and it does not pay for the park and does not pay for the other public facilities in the area. All of the city parks are paid for by the city general fund. Pocket parks such as Augusta Place are maintained by the homeowner's association. · We asked Mr. Hamill to bring a copy of an actual CFD (mitigation language) since the language of the CFD may or may not restrict where (geographical location) the money is spent. We have not seen a CFD agreement and some of us would like to see one. Bruce Husson, Chief Operating Officer, SUHSD Bruce's presentation reviewed Community Facility District cumulative revenue and expenditures for SUHSD. (Because his presentation was distributed to the Task Fome, it will not be repeated in this summary. However, highlights or additional points made in response to Task Force discussion, as well as questions from the Task Fome members, will be summarized.) Questions/Comments: · InCFD#1, isthemabreakdowntosayCFD#1paysacertainamountforEastlakeHigh School, CFD #2 will pay a certain amount for Eastlake and so on? I do not believe that we have a breakdown the way that you describe it, but I will find out. · If I heard you right at the last meeting, you said that one CFD did not finance everything in one area and there are other CFD's involved. Also, I heard you say money was taken from one CFD to be used in another CFD. I thought it would be loaned and it would be paid back. For example, if the district borrows from CFD #15 in order to have cash, isn't this just an interdepartmental loan that needs to be paid back because the project it was borrowed for was not the intent of CFD #137 That is not the way the CFDs are structured. All of the CFD revenues end up in a pool. The pool is the sum total of all the money that you see on the top half of the handout provided; that pool is the combination of the tax collections, the interest and the bonds that we issued to be repaid with those tax collections and interest. Every CFD contributes to that pool and how the pool is allocated is determined by the recommendations to the board of education. The debt service accumulated for all the projects must be repaid. Chula Vista C~cy/Schools Community Task Force March 2003 Appe~di~ A - Page 26 · UnderMello-Roos, isitisrequiredthatthefundsfromaCFDonlybeusedinthatarea?No. The board of education has the ability to determine which method it will use for the allocation of the money. The board policy on CFD formation is residents of that CFD have the first slots in the school built in that CFD before other people can use those slots. The provision in the CFD agreement assures the residents a seat in a school in the district. · Under Mello-Roos, the money can be used in any area of the school district even though it was voted on by the developer. Can that money be used for development in San Ysidro? Yes, the money can be used to develop a school there. · If we did not build another house in the existing CFD's, how much of the income is left to be realized? I do not know exactly, but we issue bonds on development that has occurred, not development that is anticipated. · Is the debt that currently exists from bond sales able to be retired with the existing development? Yes. · Would we be able to complete EastLake Middle School without additional development? We have a bond sale coming up that will allow us to complete the construction of EastLake Middle School. Lowell Billings, Superintendent, CVESD Lowell reviewed two handouts regarding revenue sources for CVESD. (Because the handouts were distributed to the Task Force, the presentation will not be repeated in this summary. However, highlights or additional points made in response to Task Force discussion, as well as questions from the Task Force members, will be summarized. Questions/Comments: · WhenyoulookattheconstructioncostsforOlympicviewln 1994, CasillasandMarshallin 1997, the costs almost doubled. Why did costs almost double? At the time there was a construction recession and the contractors and sub-contractors were ambitious to take on a job. The bids at that time were extremely competitive. Now there are many fewer contractors to build schools. Also, the schools have to have additional square footage due to the initiative to lower class size. · The citycannotrequire mitigation fordevelopment, butcan the schooldistrict? The school district cannot. The developer can come in and pay statutory fees and let the state of California pay the rest. The school district would then have to find a way to build a school without all the money because the developer fees will not finance the construction cost of an entire school site. Ann Moore, Senior Assistant City Attorney, City of Chula Vista Ann spoke briefly about the memo she prepared about SBS0 and responded to questions from Task Force members. Chula Vista City/Schools Community Task Force March 2QQ3 Appendl× A Page 27 Questions/Comments: · How is a CFD formed? Developers establish a CFD and the city takes a variety of legislative action. In this case, the CFDs are handled by the school district with regard to school facilities. There is a public notice and a public hearing, and then the council acts on it and the bonds are issued. In the case of the school district, the respective board acts on the CFD formation. · So there is no vote by the people being affected by it? Yes, initially the property owner(s) votes on the establishment of the CFD and they establish the assessment on the property. This is usually done in the eady stages of development and it is usually the developer(s) who votes on forming the CFD, not the eventual homeowners. · Once a CFD is formed, can whatever money is collected within the district be used however the district wants to use it? That is outside the City's jurisdiction. It is within the school district's jurisdiction since they are the ones that formed the CFD. · Isn'titamatterofcontractbetweentheschooldistrictandthedeveloper? lunderstandthat there is a contract between the school district and the developer. There is a mitigation agreement and there is an assessment rate established. Also, there is a voting process with the landowner(s), which is usually the developer. · Can CFD money be spent any way that the school districts want to spend the CFD money? It can only be spent on new construction for schools. Ultimately the money will benefit the CFDs. The school distdct could send children to school anywhere in the district, but they look at that as unfair and do not do that. · The term "for the benefit of the CFD" is somewhat broad. Is the language in the contract part of a negotiation, or is there set language or a certain stipulation that comes from the state? That is something that I am not comfortable answering. · Does the money always have to go into a pool? I cannot tell you what types of conditions that the school distdct had in their agreements prior to SB50. · We have an assembly bill that requires the state to reimburse for any mandated programs. I assume that the problems that come out of SB50 in terms of not having a zero sum program are exempt from that. Yes. · Whenyouaresoldyourproperty, youaretoldthatthemoneystaysinyourcommunity. The state's priority is education and yet this memo completely contradicts what the state says. What I interpret is schools are of first importance, so the state should take care of schools and the cities will not take care of them anymore. · The city takes care of all the permits for construction, but has no say in the population or density around a school. That is between a school and the developer. The people actually making the decisions and agreements with developers to build and construct houses in the area is the city. The city enters into an agreement with the developer, the city issues the permit and the city knows what is going on as far as the development, right? The developers come in and have to go through the city "hoops" and then the city issues the building permit. We used to be able to say that they should set aside a certain amount of land for a school site. · If a developer purchases a parcel of land to develop and they go to the city and they buy it and develop it, there is no one to tell them how quickly they can build it? Schools have nothing to do with it. The developer can put up 10,000 homes and not build one school. By law they are required to pay statutory fees which are by a square foot basis, $1.51 just for elementary schools. That fee will build about half of a school. Chula Vis'ca City/Schools CommuNty Task Force March 2003 Appendix A Page 28 · Ifadeveloperdoesnotwanttodedicateanareaforaschool, theydonothaveto? Thecity can designate where a school should go. Most districts do not have a problem locating a school site. · If a developer builds on a site and decides that they do not want to do Mello-Roos, what do they have to pay? They have to pay statutory fees, $I .49 to $1.51 per square- foot to each district, which does not even cover half of the cost. · SB 50 is silent on whether it pre-empts all local planning authority pertaining to development and impacts on schools. Has that question gone to court? There has been no court decision on that issue. Dan Forster, Growth Management Coordinator, City of Chula Vista Dan's presentation reviewed the Growth Management Oversight Committee (GMOC) growth forecasting and school threshold monitoring processes. (Because his presentation was distributed to the Task Force, it will not be repeated in this summary. However, highlights or additional points made in response to Task Force discussion, as well as questions from the Task Force members, will be summarized.) Dan stated that the GMOC provides a 12- to 18-month forecast as well as a five-year forecast to the two school districts because early on the city realized that with high schools more time is needed to build a school. The five-year forecasts are normally 82 to 92 ~ercent accurate. Questions/Comments: · In the GMOC process, do they take into account multiple families living in one dwelling? No, the city does not. We rely on the school district to inform us that they have enough capacity to manage the growth. · Do the school districts know the number of families per household? It is difficult to assess, but we hope to have that data with the 2000 Census information. · Is the GMOC addressing multiple families living in households? It is not really a GMOC issue. The school districts annually produce a fee justification study where each district looks at the dwelling unit and the students generated out of that dwelling unit. The school districts have a school facilities needs analysis that is done periodically that includes those same variables. This is a school distdct responsibility. · Is there a report that says "There are three elementary students living at this address as well as three high school students"? School districts look at numbers of dwelling units and students that are being produced. Then the school districts run the attendance lists and the student data to look at common addresses. School districts normally look at the number of new kids coming in based on the number of dwelling units. · TheGMOCIooksattrafficlevelofserviceandpoliceandfireresponse, butwhentheylookat schools, no level of service is measured. Is there a way of finding what is acceptable or what is not? Eve~thing that I read in the GMOC said that everything is fine. The GMOC does say that technically both school districts have met the cdteda, but they do raise issues. "Even though the threshold is being met, the strains of growth are nevertheless less being felt. As school design capacity is exceeded, students are either bussed outside their school service area or new classrooms constructed on existing school campuses. This is particularly evident at the older schools and the high school level with even more 'relocatable' classrooms being placed on campuses consuming what was once outdoor activity space." Chula Vista C~ty/$chools Community Task. Force March 2Q03 Apperldix A Page 29 · As a parent I am saying that the threshold is not being met. You should be able to house every student, and as a parent I think that we should better define the threshold. · The questions need to be a little more defining than just a simple yes or no. They need to define more about what is happening at school sites. Part of the GMOC process is to allow recommendations for changing the thresholds. Such recommendations should be brought to the direct attention of the GMOC. Katy Wright, Director of Planning and Facilities, SUHSD Katy's presentation showed the forecasting of future student enrollment and the planning and construction cycle of a "typical" new high school. (Because her presentation was distributed to the Task Force, it will not be repeated in this summary. However, highlights or additional points made in response to Task Force discussion, as well as questions from the Task Force members, will be summarized.) Katy stated the cost to build a high school is approximately $60 million, a middle school is approximately $35 million and usually half of the money comes from the state. SUHSD tries to build a new high school when the design capacity of a school has been exceeded by approximately 300 students. This is very aggressive; many other comparable school districts do not open another school until they reach 600 to 1000 past design capacity. By the time Otay Ranch High School opens, we will be in the 400 to 600 range over capacity. Questions/Comments: · The GMOC forecast in your presentation contradicts what was passed out earlier tonight (in Dan Forster's presentation). The 1997 forecast is presented in a cumulative number. If you go out two years to 3788, it is two times the 1894. Every six months you add 900 new housing units. · What is the process in terms of timing if you have two schools on-line for construction? How do you determine which school will be built first? If funding is available, we can construct both schools concurrently. It isn't a matter of priorities, it is a matter of financing. · How does infrastructure near Otay Ranch High School or lack of it affect the construction? The timing of the infrastructure has not impacted construction. We worked with the City and the developer to provide temporary utilities needed to start construction. If the school had been built earlier, the roads would have been constructed sooner. Task Force Discussion, Questions and Comments · I would like to add to the agenda the issue of developer disclosures relative to schools. · The CFD agreement is still unclear. It may be complicated, so maybe we could do a workshop to understand it better. · If the task force members have an issue or subject they would like to address, maybe because this is going so quickly we can do some workshops in addition to the meetings that we have. For instance, I think we should look into unification. · Is it possible to get a mitigation agreement for one of the CFDs? Maybe you could walk us through one of the typical agreements and explain how the money is allowed to be used. · Is there time to schedule an education lecture on unification and what it can offer the community? John stated that he would like to sit down with the city and the school districts to discuss this issue before a decision is made about whether to discuss it at the Task Force Chula Vista City/Schools Community Tas~ Force March 2QQ3 A~pe~dix A Page 3Q meeting. John noted there was not necessarily a common understanding by the three jurisdictions as to whether we would discuss this issue in depth or whether it is within the mission of the Task Force. Since the Task Force is funded jointly by the three jurisdictions, there needs to be consensus regarding whether an issue is within the purview of this process. He will meet with representatives of the various agencies to see if there is agreement on this issue and an appropriate way for information about it to come to the Task Force. · I would like to see residency addressed. · Rudy stated that he would like to thank staff for their hard work and patience on the Task Force and that their work is appreciated. Public Comment None. Meeting Wrap-Up The next meeting is January 13, the second Monday of the month. There was no further discussion and the meeting adjourned at 9:10 p.m. Chul~a Vista City/Schools Community Vas< Force March 2QQ3 &ppenr)ix A - Pa~e 31 City of Chula Vista/Chula Vista Elementary School District/ Sweetwater Union High School District Community Task Force Agenda Meeting #6 Monday, January 13, 2003 City Hall, Council Conference Room, 276 Fourth Avenue, Chula Vista, CA 6:00 - 6:30 p.m. - Meet and Greet 6:30- 9:00 p.m. - Task Force Meeting 1. Agenda Review John Moot 5 minutes 2. Administrative Items Patricia Tennyson 3 minutes 3. Sales Office/Developer Disclosure Relative to Kent Aden and Guy Asam 10 minutes Schools 4. Community Facility District Agreements Understanding CFD agreements and 30 minutes legal restrictions regarding where the revenues go - Warren Divert 5. Funding Chula Vista Schools New Construction Funding soUrCes for20 minutes CVESD and SUHSD: Susan Fahle and Katy Wdght 6. Otay Ranch High School Development: A Katy Wdght 20 minutes Case Study 7. Task Force Discussion/Public Comment 60 minutes 8. Look Ahead to the Next Meeting patriCia Tennyson 2 minutes Chula Vista City/Schools Community Task Force March 2003 Appendix A - Page 32 City/Schools Community Task Force Meeting Notes Monday, January 13, 2003 6:30 - 9 p.m. Task Force Members Present: Kent Aden Hector Uartinez Guy Asaro Mike Bell Maya BIoch Rey Monzon Aurora Clark John Moot Mike Green Kevin O'Neill Rudy Gonzalez Al Sides Kimberly Longo Others Present: Art Garcia Uelanie Stuart-Emery Maggie Uartinez Jeff Hamill Earl Jenty Staff Present: Dave Rowlands, City Manager, 619.691.5031, Drowlands@ci.chula-vista.ca.us Sid Morris, Assistant City Manager, 619.691.5031, Sid.morris@ci.chula-vista.ca.us Dan Forster, City of Chula Vista, 619.476.5378, Dforster~,ci.chula-vista.ca.us Lowell Billings, CVESD, 619.425.9600 x1371, Ibilling@cvesd.k12.ca.us Dee Peralta, CVESD, 619.425.9600 x1375, dperalta@cvesd.k12.ca.us Oscar Esquivel, CVESD, 619.425.9600, oesquive@cvesd.kl2.ca.us Susan Fahle, CVESD, 619.425.9600 x1451, sfahle~cvesd.k12.ca.us Maria Zadorozny, CVESD, 619.425.9600 x1325, mzadoroz@cvesd.k12.ca.us Kathy Tanner, SUHSD 619.691.5553, kathy.tanner@suhsd.k12.ca.us Katy Wright, SUHSD, 619.691.5553, katy.wright@suhsd.k12.ca.us Bruce Husson, SUHSD, 619.585.6060, bruce.husson@suhsd.k12.ca.us Lillian Leopold, SUHSD, 619.691.5578, lillian.leopold@suhsd.k12.ca.us Rafael Munoz, SUHSD, 619.69I .5553, rafael.munoz~,suhsd.k12.ca.us Patsy Tennyson, Katz & Associates, 858.452.0031 x366, pat@katzandassociates.com Kerry Kops, Katz & Associates, 858.452.0031 x398, kkops@katzandassociates.com Opening Remarks: Chair John Moot stated that he had an opportunity to meet with the three agencies to discuss the suggestion of making a presentation to the Task Force on unification. The three agencies that formed the Task Force agreed that they would interact by consensus throughout the Task Force process. Also, when the Task Force was formed, it was not anticipated that an issue of the complexity of unification would come before it. The consensus among the agencies was that the Task Force could not address such a complex issue as unification with the time remaining in the process, and it would be best to defer this issue to a different forum. Chula Vista City/Schools Comrnu~icy Tas< Force March 2Q03 Al~pendix A Page 33 John further explained that he had contacted Nick Aguilar, Member of the San Diego County Board of Education, to assist with providing information about the unification issue. If Task Force members are interested in setting up a workshop outside of the regularly scheduled Task Force meetings, Nick has agreed to do that. John informed the group that while Nick is on the committee that would rule on a unification petition should one come before the County Board of Education, he would not be able to discuss the merits or lack of merits of unification for these two districts. Nick passed out his business cards to the Task Force members and informed them that information is also available about unification on the County Board of Education Web site or through the County Superintendent. Members may call the Superintendent at 858.292.3515 and request information as a result of Nick Aguilar's presentation to the Chula Vista City/Schools Community Task Force. John also stated that Nick informed him that this issue did adse a few years ago. Maya Bloch asked members to sign a list she circulated if they would like to participate in a workshop to learn more about the unification process. Once a date and time for the workshop is established, John agreed to circulate that information to Task Force members. Kevin pointed out that, in his opinion, unification is not a short-term solution and he felt the Task Force should focus on what can be done now to try to make sure overcrowding does not negatively impact students. Administrative Issues: Patsy asked if there were any changes to the December meeting summary, and none were offered. John noted that due to the State of Califomia's budget cdsis and proposed decreases in funding both to the school districts and cities, there would be no funding for the Task Force to meet beyond the currently scheduled meetings. He also said he had asked Patsy to develop a suggestion for bringing the work of the Task Force to a meaningful closure. He will also ask staff of the three agencies to assist in that process. Presentations: Sales Office/Developer Disclosure Relative to Schools Kent Aden and Guy Asaro gave a brief presentation and distributed several documents related to sales office and developer disclosures regarding Mello-Roos financing and schools. Documents included in the packet related to the Eastlake development were: excerpts from the CFD 1 Mello-Roos Financing Plan for both the Sweetwater Union High School District and Chula Vista Elementary School District, a developer disclosure provided by the Eastlake Company to builders, and a sample builder disclosure. Three documents related to the Otay Ranch development were also distributed including: training documents used to educate builder sales representatives on community issues including schools, the California Department of Real Estate "White Report" that a buyer receives and signs acknowledging receipt, and a sample disclosure for Countryside. Chula Vista City/Schools Community Task Force March 2003 Appendix A Page 34 Documents developed with both CVESD and SUHSD state that the financing of facilities is to provide capacity in the districts only - the actual site and size of the school facility can be located in the Eastlake CFD or entirely outside of the Eastlake CFD. Guy also explained that the Eastlake Company holds quarterly real estate agents' seminars. Part of the information disseminated at the seminars is that the districts' determine enrollment status and agents should advise buyers to discuss where their child will go to school with the appropriate district. Questions/Comments (if a response is included, the response is in italics): · What you have underscored here is that all facilities are located in/and or will serve the Eastlake community where the home you are purchasing is located. So, are these documents saying that the monies that are collected within that CFD will be spent within that CFD? No, "in/and or will serve" means, in the case of schools, that the monies will provide for capacity in the district. · Does that mean that the monies from a CFD could be used in National City? It essentially means that you are buying capacity in the district and the district determines where the monies are used. · So the monies collected within the CFDs are not necessarily spent in the community where it was collected; but are to add capacity to the school district? Yes. · The people that are buying homes in these communities should not be misled into thinking that their Mello-Roos money is being spent in their community. · Perhaps the Task Force should make a recommendation that the disclosures should be written in clearer language and be less "legalese." It might also be helpful to have a sign in the sales office that explains the point that funds can be used anywhere in the disthct and your child is not necessarily guaranteed to go to the school in your neighborhood. We might also want to suggest revisions to brochures, such as the one that purpods to explain Mello-Roos in a simple fashion. [Guy and Kent asked if the issue is that this Task Force member's money is not being spent in the CFD or that his child cannot get into the school in that CFD, and the Task Force member responded that "It is a little bit of both."] · Was this a negotiated agreement with the two school districts? No, it was a result of the financing plan. · How was Thurgood Marshall school funded: with a direct transfer of funds from the developer or some other way? The developer did not want to establish a community financing district and paid the entire fee up front. · Is it unique to our area that we pay an additional tax on property that most people do not have to pay in the district? That would be a better question for Warren Diven. We draff the disclosure notice. · When our recommendations are complete, perhaps we should disthbute them to the Pacific Southwest Association of Realtors also. Warren Diven, Best Best & Krieger, legal adviser to both districts Warren distributed and discussed a paper titled: School Facilities Financing in Chula Vista, Community Facilities District Financing - Understanding the Mitigation Agreements and Legal Restrictions on CFD Financing. In addition, copies of the school mitigation agreements for CFDs one and 13 were distributed to the Task Force. Warren explained that when Proposition 13 passed in 1978, it put a cap on property taxes and initially prohibited general obligation bonds. Mello-Roos was enacted to provide another form of Chula Vista Cir. y/$chools Community Task Force Iv~arch 2Q03 Appendix A Page 35 financing for school district infrastructure. Pooling is one of the provisions under the Mello-Roos act. In all CFDs formed after 1994, students that live in the district are supposed to be given priority to the school in that CFD. However, this does not mean that funds from a CFD have to be used in that district. Under Uello-Roos, a school district is authorized to finance the pumhase, construction, expansion, rehabilitation or improvement of any real or tangible property with an estimated use of five yearn or more, and those facilities do not need to be located in the CFD. There are very few agreements that specifically state the money paid by a CFD will stay within that CFD. An example where this would occur is in a small school district with only one or two schools. Development companies generally want a mitigation agreement to document they have fulfilled their obligation to the school district. Questions/Comments (if a response is included, the response is in italics): · Who tracks if a credit is to be given? If the purpose of the mitigation agreement is to fully mitigate each developer's entire obligation, how is it determined if their entire obligation is comparable to what a statutory fee would be if they did not form a CFD? Is Uello-Roos always in excess of what the statutory fee would be. Is there some sort of method that calculates what the entire obligation is? There was a formula that established a baseline for the different levels of schools. The school distdct keeps track of the credits against the general obligation bond. · How long is a CFD and does that "life span" relate to the student generation rate? Yes, that is the way that they are set up. The smaller ones generate less revenue, but they also have a shorter life. Theoretically, each CFD has a 25-yearterm. · I thought Uello-Roos was supposed to address the impact of new development. Is this a new revenue stream for the districts? Mello-Roos, or community facilities districts, provides an alternative method of financing infrastructure, particularly in new areas of development. · What are the benefits and detriments of pooling? The school districts came to the realization if they were to fund the completion of Eastlake, Otay Mesa and Otay Ranch, they could not wait until they were able to generate sufficient tax revenue in one of those CFDs and then sell bonds. They would never get to the point where there was sufficient revenue to fund school facilities, especially in the case of a high school. The determination was made that pooling is the most cost efficient way to fund a high school. Also, pooling saves a considerable amount in both interest costs and costs of bond issuance. A single bond issue for each CFD would cost 3 to 5 pement each. With pooling, the cost of bond issuance is about 1.5 percent, the financing is insured and the bond has a AAA rating. · When did pooled funding go into effect? In the mid-1990s. Susan Fahle, Assistant Superintendent, Business Services and Support, CVESD - Susan's presentation reviewed new construction funding soumes for both CVESD and SUHSD. (Because her presentation was distributed to the Task Fome, it will not be repeated in this summary. However, highlights or additional points made in response to Task Fome discussion, as well as questions from the Task Force membere, will be summarized.) Each district has three different methodologies they can use to generate revenue to construct school facilities and each requires an analysis, study or agreement. The developer fee justification study is the base required to collect any sort of fee from residential or non-residential development. The school facility needs analysis quantifies the impact of new residential development and establishes the Chula Vista C~ty/$chools Community Task Force March 2003 Appendix A - Page 36 development fee. A developer can elect to pay this fee before construction begins or can establish a Mello-Roos district and enter into a mitigation agreement. Questions/Comments (if a response is included, the response is in italics): · is there a cap where someone who has a larger home does not pay much more than someone who lives in a smaller home? There is a flat fee of $1.49 per square foot across the district, no ma~ter what the size of the home. · Was Thurgood Marshall fully paid for?. Some of the construction qualified forstate funding, so I do not believe that it was fully mitigated. While we did do the construction, there were a number of items that were added to the facility. The Pacific Bay developers paid monies up front that largely took care of the mitigation for the development that was going on in that project, but the school was in proximity to also sene adjacent projects. · It is my understanding that the student generation rate should be reevaluated. An example is Hedtage Elementary, which was filled within one year. Do you anticipate reevaluating the student generation rate? Every year we look at the student generation rate. We learn from the rate of the previous year and see how it coincided with our predicted generation rate. · Have you looked at the predicted generation rate and the actual generation rate? Yes. However, the student generation rate for a specific CFD cannot change once it has been set. We do not have any options to change that methodology. There is a prescribed manner in which we address the last five years of development. · Is what we are experiencing the last three to five years just a "hiccup" and normally the system does take care of itself to regulate growth? I think so. We are looking at a convergence of a number of very favorable indicators for the building industry, such as the readiness of people with cash in their pockets. · Can you clarify student generation rates and absorption? The absorption rate is the numberof dwellings in a community and then the generation rate applies to that. For instance, Iow interest rates, the market demand for new housing and the fact that home sales were booming created a rapid absorption of homes and the crowding factor was due to these factors more than the deviation from year to year in the student generation rate. · Can you predict absorption rates? The current spike is beyond our general predictions, and the climate was perfect for purchasing homes. · Can absorption rates be predicted for the future? You can predict them if you can predict the economy. · How do you handle infill in the communities? These people pay the developer fee and it doesn't cover the cost of construction since the land costs more. Katy Wright, Director of Planning and Facilities, SUHSD Katy's presentation described the development of Otay Ranch High Schoot and the steps that allowed the district to cut time from the "typical" high school development timeline - and the critical element that delayed the start of construction for this high school by six months. (Because her presentation was distributed to the Task Force, it will not be repeated in this summary. However, highlights or additional points made in response to Task Force discussion, as well as questions from the Task Force members, will be summarized.) Vista C~ty/Schools Community Tas< Force March 2003 Appendix A - Page 37 Questions/Comments (if a response is included, the response is in italics): · So we do not see the same overcrowding in the next high school, can we start working on a timeline right now? We are working on that plan fight now and if we continue to be aggressive, the plan may be done as early as 2005. · One of the productive things that the Task Force can do is to make recommendations that will enable this next high school to come online on time. · What will the impact be on Eastlake High School's enrollment when Otay Ranch High School opens? Ninth and tenth grades will go to Otay Ranch High School at the end of July. There will be 600 to 1000 students that will move from Eastlake to Otay Ranch. Task Force Discussion, Questions and Comments · A recommendation that we can make is to the GMOC: schools cannot exceed their capacity, and if they do, they are not incompliance with the GMOC threshold. · I think we should see how we can do better forecasts. We should take the next school that is going through the planning process and go through the planning efforts. We should also look at Eastlake next year when the population drops and project what the new population will be based on the new housing that is being built. If we come up with an issue through these projections, let's come up with some ideas to help mitigate the issue. · I think we should look closer at the language in the disclosure agreements. We can recommend language that is more appropriate for the disclosure agreements. · Patsy stated that through the presentations we have heard, one observation is there may be some situations where there were one-time problems, and others where there are recurring or systemic problems. She asked if, as a result of our observations, the Task Force members thought the group should focus their recommendations on the systemic or recurring problems? If so, at the next meeting the group could begin to identify which were one-time problems and which were systemic problems. · John Moot asked staff from the three agencies to identify what were one-time problems and what were recurring or systemic problems from their perspective, and provide that information at the next meeting. · I think it would be helpful to see what the agencies see as some of the problems and how they think the problems should be addressed. · Task Force members asked if they could submit their identification of one-time vs. recurring problems to Patsy in the next two weeks so that information can be included at the next meeting. The group agreed those who want to provide this input would e-mail it to Patsy. · Is there an incentive for districts to build schools below their capacity? There used to be an incentive, but schools in the CFDs were designed to operate as multi-track, year-round schools. The community did not like multi-track schools, which has impacted the number of classrooms available in the district. · John also asked if the group felt it would productive to "watch" the planning process for the next high school, and the Task Force members agreed they would like to do that. District staff observed that this topic would not be ready for discussion at the Task Force until the first meeting in March. · Some Task Force members suggested that looking at the planning process for the construction of the next elementary or middle school should also be considered. · Maybe members of the Task Force should continue to meet with SUHSD after this process ends to make sure that they are on track with the construction of the next high school. Chula Vista City/Schools Community T~SK Force March 2Q03 Appendix A - Page 38 Public Comment One member of the public in attendance suggested that she believed there are enough seats in the SUHSD, but the fact that those seats might be in a high school that is not near your home should not be considered to be such a great problem. She stated that there was reom within the district. Meeting Wrap-Up Patsy noted at the next meeting there would be a discussion of joint-use facilities and a presentation on developer-built schools. She also reminded members of the group to be thinking about one-time and systemic problems. The next meeting will be at a different location. Task Force members will notified of the location when the agenda is distributed by e-mail. Chula Vista C~ty/Schools Community Task Force March 2QQ~ Appendix A - Pa~e 39 City of Chula Vista/Chula Vista Elementary School District/ Sweetwater Union High School District Community Task Fome Agenda Meeting #7 Monday, February 3, 2003 City of Chula Vista Corporation Yard, Training Room, 1800 Maxwell Road, Chula Vista, CA 6:00 - 6:30 p.m. - Meet and Greet 6:30 - 9:00 p.m. - Task Force Meeting 1. Agenda Review John Moot 5 minutes 2. Administrative Items Patricia Tennyson 3 minUtes 3. Developer Built Schools Gary Gibbs, Gibbs & Associates 15 minutes Gary Dulgar and Tom Donohue, Turner Construction 15 minutes Lowell Billings, CVESD 15 minutes 4. Proposed Task Force Report John Moot 75 minutes Task Force Input/Discussion 5. Additional Task Force Discussion/Public 20 minutes Comment 6. Look Ahead to the Next Meeting Patricia Tennyson 2 minutes Chula Vista City/Schools Community Tas< Force Ivlarc h 2Q05 Appendi× A - Page 40 City/Schools Community Task Force Meeting Notes Monday, February 3, 2003 6:30 - 9 p.m. Task Force Members Present: Kent Aden Kimberly Longo Guy Asaro Hector Martinez Mike Bell Rey Uonzon Maya Bloch John Moot Aurora Clark Kevin O'Neill Rudy Gonzalez Patricia Rivera Mike Green Al Sides Others Present: Uaty Adato Staff Present: Dave Rowlands, City Manager, 619~691.5031, Drowlands@ci.chula-vista.ca.us Sid Moms, Assistant City Manager, 619.691.5031, Sid.morris@ci.chula-vista.ca.us Dan Forster, City of Chula Vista, 619.476.5378, Dforster(~,ci.chula-vista.ca.us Lowell Billings, CVESD, 619.425.9600 x1371, Ibilling@cvesd.k12.ca.us Dennis Doyle, CVESD, 619.425.9600, ddoyle@cvesd.k12.ca.us Oscar Esquivel, CVESD, 619.425.9600, oesquive@cvesd.kl2.ca.us Susan Fahle, CVESD, 619.425.9600 x1451, sfahle~,cvesd.k12.ca.us Maria Zadorozny, CVESD, 619.425.9600 x1325, mzadoroz@cvesd.kl 2.ca.us Katy Wright, SUHSD, 619.691.5553, katy.wright@suhsd.k12.ca.us Bruce Husson, SUHSD, 619.585.6060, bruce.husson@suhsd.k12.ca.us Rafael Uunoz, SUHSD, 619.691.5553, rafael.munoz~suhsd.k12.ca.us Patsy Tennyson, Katz & Associates, 858.452.0031 x366, pat@katzandassociates.com Kerry Kops, Katz & Associates, 858.452.0031 x398, kkops@katzandassociates.com Opening Remarks: Chair John Moot reminded the task force the remainder of the meetings would be held at the City of Chula Vista Corporation Yard in the Training Room. The March 31 meeting has been moved to Uamh 24 due to a holiday at the City of Chula Vista. John also informed the group that Maya Bloch had arranged for Carol Parks from the San Diego County Office of Education to make a presentation about unification on February 20 from 5:30 to 6:30 p.m. at Hilltop High School. A reminder will be sent to Task Force members. The public is welcome and there is seating for up to 100 people. The March 3 meeting will include a presentation about the joint use of school/city facilities, a review of the planning process for the new high school and a discussion about residency, as well as continuing work to develop recommendations for the Task Force's final report. Chula Vista Ci[y/Schoois Community Tas< Force March 2003 Appeneix A Page 41 Administrative Issues: Patsy asked if there were any changes to the January meeting summary, and none were made. Patsy also noted that the issues matdx had been updated (the large 11 x 17 handout) and requested that Task Force members review it to see if there are still some areas that need to be covered or need elaboration. She said Gary Gibbs had an unavoidable client conflict and was unable to attend the meeting to make a presentation on developer built schools. Depending on the schedule for the remaining meetings and the discussion of this issue, we may want to ask Gary to present later in March. Presentations: Gary Dulgar and Tom Donohue, Turner Construction Developer Built Schools Gary and Tom's presentation reviewed developer built schools strengths and weaknesses, schedules and examples of the districts they have worked with. (Their presentation is included in this summary since it was not distributed to the Task Fome.) Questions/Comments (if a response is included, the response is in italics): · Is the timeline presented an elementary or high school? It is an elementary school. · I think that 30 months is a little short for the building of a high school. · Did SUHSD reuse the plans from Otay Ranch for San Ysidro? Yes. · What about off-site construction? It is my understanding that there are substantial savings with off-site construction. (A clarification was made that this comment referred to modular or pre-fab construction.) We don't really address this, but generally you can save money. It does not necessarily speed up construction. · In your experience in developer built schools, do they build under Davis-Bacon? My understanding is that they were not. It goes deeper than the wages that the workers earn; it also means that there is a larger pool of contractors from which to choose. · Patsy asked for a clarification of "Davis-Bacon" - Davis-Bacon is where the State of California requires any public agency that uses public funds to build under set of pre-determined wage rates, or prevailing wage. · If the district leases back the school constructed by a developer, where does the lease money come from? CFDs. · Can you do a non-profit tax-exempt organization and then the public will lease it back? An entity can set-up a non-profit organization and lease it back to a facility, but that will not exempt the district from paying prevailing wages for the work. Anytime you use state money for school construction the work is required to be publicly bid and prevailing wages paid. · The San Diego Police Department would not have the building it does now without the design- build lease factor. · If we did design-build with a high school, how much longer would it take versus the elementary school timeline that you presented to us? Probably another year. · The schools currently under design-build in Orange County, are they multi-story or single story? They are multi-story buildings. · Is it cheaper to build multi- or single-story buildings? They are about the same. Chula Vista City/Schools Community Tas< Force March 2003 Appendix A Page 42 · How is the contract structured when payment is made? I can't address this, the developer works with the school districts to make payments. · What kind of savings can you see with pre-fabricated buildings? I have heard up to 30 percent savings, but I have not seen that. · Does a developer bring his own financing to construct the school? Theybring the financing to the project. · This does not change the fact that the school district still has to have the money or bonds to pay for the project and have the correct timing for the school, right? There is a project that I am working on right now where the school district will not pay until the school is turned over to the district. · Will the developer front all the money for the construction of the school? Yes. · If you are leasing the school back, it is going to be at a much lower rate? Where does that money come from? · The prevailing wage issue could be circumvented if a developer builds a school independent of the school district with a good-faith relationship understanding that when construction is complete, they will donate it to the distdct and have it fit the DSA requirement and other standards. That is a big undertaking for a developer. · Currently CVESD and SUHSD use construction managers and front-load projects to improve on the construction process to facilitate prompt construction. · Will developers foot the bill only if the school district has secured funding or will the distdct be able to pay debt service to the developer if they do not have funding? That depends on the negotiations between the school districts and the developers. · A district cannot enter a contract and assume debt without an identified revenue or mechanism to provide that debt service, Task Force Discussion, Questions and Comments · What is the basis of having the Mello-Roos over 25 years vs. something where you pay up front? The more that you have to pay up front, the higherthe cost of your home. So the developer has to evaluate if the homebuyer would rather pay an extra $180 with your tax bill or $50,000 more for the cost of the home. · This question is for the representatives from the school districts: If you could have any type of financial structure for school facility construction, what would you like? If we could have something like Pacific Bay Homes writing a check for the school, that would be the best. That is not likely to happen. However, if you look at some of the other rapidly developing school districts in California (i.e. Anaheim, Elk Grove), I believe that you will see that things are not as bad here as you may think. The developers work well with the districts. Also, most other high enrollment districts use multi-track, year round programs as that provides about 25 percent more capacity at each school We have not made that choice in Chula Vista. I think that our standards are higher than many other areas. · Ithink one of the reasons why people are upset is because you pay into the system, the schools are not ready, so you really do not get your "bang for the buck" with what you pay. · In the communities that paid the lump sum (i.e. Rolling Hills Ranch), did the money go directly to you to build those schools, or did it go into the general fund? It went to a construction fund, not the general fund. It went into a dedicated building fund, and it built a school in that neighborhood. The school in the neighborhood also serves as a joint.use facility. Chula Vista Qty/Schools Cornrnunrt~v Task Force March 2003 A~endix A - Page 43 · If you slow the issuance of building permits, would that equate to schools coming on line in a more timely way? Not necessarily. · Someone brought up a few meetings ago that maybe elementary schools were not the problem; it was more the middle and senior high schools. I think that we can all agree that if Otay Ranch was open, we would not be in this task force process today. I think that maybe we can look at the beginning of the process and speed it up a little, and maybe we could have had Otay Ranch open this past September. · One school was paid for 50 percent by Mello-Roos and 50 percent by the state, is that accurate? Well, San Ysidro was paid for 25 percent by Mello-Roos. · Since the developer has to put the cost of the school mitigation into the price of their homes, they have to then charge the homebuyer more and if fewer people qualify to purchase those homes, the homes do not get sold as quickly. · I am interested in finding a way that as soon a pe~it is issued, the developer could put up the money for a new school. · When looking at the reason why most people buy a house in an area, most of the people say because of the schools. · What will be the financing program when the City of Chula Vista builds schools to the west versus the east? · In the western areas of the city, we will need to be very creative with such items as shared-use facilities? We will talk about this at the March 3rd meeting. · The bottom line is that the city cannot do anything about limiting the developers in regards to the GMOC thresholds. · I think that our perception of what crowded means is different than other people's perception. · It would be great if there were a forum where staff, parents and teachers got together so we could evaluate how the distdct is doing a couple times a year. You can create an ordinance where this is required. · Isn't it difficult to get all agencies cooperating when you have multi-jurisdictional projects? Dave Rowlands stated that a multi-jurisdictional program had been created in Chula Vista for after- school programs and police security. The city and school districts pay jointly for the program. · One suggestion is for the Chula Vista City Council and school boards to meet jointly at least two times a year with the possibility of more frequent subcommittee meetings. It is not clear, however, how would this work in practice and what would come from such meetings. · There seems to be a situation where staff from SUHSD have disseminated different information to the public about the number of students that will attend Otay Ranch High School. This makes people question who has the correct information and contributes to dissatisfaction among parents. · Why can't we have the people who are buying homes provide the name, address and ages of their children that will enter schools here so we can get a better idea of who we are sending to the schools? I don't believe with the privacy protection regulations that people are required to provide that information. · At closing the buyer should be asked the number of kids going to the schools. Maybe there could be a data collection center in all the buying offices. · Would polling give us more data? · Regarding the information collecting for the GMOC, should it be on an annual basis or a six- month basis and then have the verification on an annual basis? Isn't data that is collected annually really older than that by the time it gets to the GMOC? Chula Vista City/Schools Community Task Force March 2QQ3 Appendix A Page 44 · Can we include in our final repod the 20 most frequently asked questions regarding the problems in the district that we are addressing, such as why was Otay Ranch late coming on line? Public Comment None. Meeting Wrap-Up John asked that the group review the issues table and suggestions for changes that he requested from the agency staff and be prepared to comment on it at the next meeting. Klm had asked the elementary school district for a report on ADA in a specific emergency situation, and the information was distributed to the task force members. The next meeting will be at the same location, the City of Chula Vista Corporation Training Yard on Monday, March 3 at 6:30 p.m. Ohula Vista City/Schools Community Tas< Force March 2003 A~pendi× A Page 45 City of Chula Vista/Chula Vista Elementary School District/ Sweetwater Union High School District Community Task Force Agenda Meeting ~8 Monday, March 3, 2003 City of Chula Vista Corporation Yard, Training Room, 1800 Maxwell Road, Chula Vista, CA 6:00- 6:30 p.m. - Meet and Greet 6:30- 9:00 p.m. - Task Force Meeting 1. Agenda Review John Moot 5 minutes 2. AdminiStrative Items Patricia Tennyson 3 minUtes 3. Joint Use of School/City Facilities A report with suggested 10 minutes recommendations will be provided to the Task Force before the meeting. Agency staff will be available to respond to questions 4, Review New High School Planning Process Katy Wright 30 minutes 5. Residency Brace Husson 20 minutes Earl Wiens, SUHSD, Director, Student Support Services 6. Proposed Task Force Report Review Schools Task Fome - Issues 50 minutes Matrix (dated 3~3~03) Task Force Discussion of recommendations from agency staff/input regarding Task Force recommendations 7. Additional Task Force Discussion/Public 30 minutes Comment 8. Look Ahead to the Next Meeting Patdcia Tennyson 2 minutes Chula Vista City/Schools Community Tas~ Force March 2003 &ppendix A - Page 46 City/Schools Community Task Force Meeting Notes Monday, March 3, 2003 6:30 - 9 p.m. Task Force Members Present: Kent Aden Hector Uartinez Guy Asam Rey Monzon Mike Bell John Moot Aurora Clark Kevin O'Neill Mike Green Patricia Rivera Kimberly Longo Al Sides Others Present: Art Gamia Mike Spethman Bill Tripp Diane Cumming Staff Present: Shauna Stokes, City of Chula Vista Buck Martin, City of Chuta Vista Brian Cox, City of Chula Vista Bob Leiter, City of Chula Vista, 619.691.5101, Bleiter@ci.chula-vista.ca.us Sid Morris, Assistant City Manager, 619.691.5031, Sid.morris@ci.chuta-vista.ca.us Dan Forster, City of Chula Vista, 619.476.5378, Dforster~ci.chula-vista.ca.us Lowell Billings, CVESD, 619.425.9600 x1371, Ibilling@cvesd.k12.ca.us Dennis Doyle, CVESD, 619.425.9600, ddoyle@cvesd.k12.ca.us Oscar Esquivel, CVESD, 619.425.9600, oesquive@cvesd.kl2.ca.us Susan Fable, CVESD, 619.425.9600 x1451, sfahle~cvesd.k12.ca.us Maria Zadorozny, CVESD, 619.425.9600 x1325, mzadoroz@cvesd.k12.ca.us Katy Wright, SUHSD, 619.691.5553, katy.wright@suhsd.k12.ca.us Bruce Husson, SUHSD, 619.585.6060, bruce.husson@suhsd.k12.ca.us Rafael Munoz, SUHSD, 619.691.5553, rafael.munoz~,suhsd.k12.ca.us Earl Wiens, SUHSD, 619.691.5564, earl.wiens@suhsd.k12.ca.us Kathy Tanner, SUHSD 619.691.5553, kathy.tanner@suhsd.k12.ca.us Patsy Tennyson, Katz & Associates, 858.452.0031 x366, pat@katzandassociates.com Kerry Kops, Katz & Associates, 858.452.0031 x398, kkops@katzandassociates.com Administrative Issues: Patsy asked if there were any changes to the February meeting summary, and there were none. Chula Vista City/Schools Comrnun~ty Tas< Force March 2QO3 Appendix A - Page 47 Presentations: Dan Forster, City of Chula Vista Joint Use of City/School Facilities The joint use paper that had been previously distributed to the task force members was discussed by task force members and staff. There was consensus that the staff recommendations presented in the paper should be included in the final report, but that joint use should apply to libraries as well as parks facilities. Katy Wright, SUHSD Review of New High School Planning Process Katy's presentation outlined the planning process for high school 13. (Because her presentation was distributed to the Task Force, it will not be repeated in this summary. However, highlights or additional points made in response to Task Force discussion, as well as questions from the Task Force members, will be summarized.) Questions/Comments (if a response is included, the response is in italics): · Is it feasible to meet the 42 month deadline for the next high school? It is feasible, but many different things have to fall into place in order to make the 42 month deadline. · Are there any concerns with the FAA property regarding health issues (for example EMFs, MTBE, etc)? That will have to be looked into at a later date; they may have to relocate some of the buildings. · Will the middle school be completed within the next four months? That is ourgoal, however there have been 20 workdays lost due to rain so SUHSD has been authorizing overtime and construction crews have been working weekends. · Would it help if citizens contacted their elected officials to try and acquire the FAA property? We are working with a consultant right now to assess all the options and avenues that it will take to acquire the FAA property. Earl Wiens, SUHSB Director of Student Support Services Earl's presentation reviewed the residency verification for SUHSD and other districts throughout the region. (Because his presentation was distributed to the Task Fome, it will not be repeated in this summary. However, highlights or additional points made in response to Task Force discussion, as welt as questions from the Task Fome members, will be summarized.) Questions/Comments {if a response is included, the response is in italics): · What documents do students and parents need for initial registration in the CVESD? You need a birth certificate, and one parent that is on the birth certificate. · Do you ask for any sort of identification from the person that is registering the student? No, we do not ask for identification from the person. If people want to cheat the system, they can cheat the system. Task Force Discussion, Questions and Comments · Did SUHSD ever discuss what was done with Prop BB money? The Proposition BB and JJ information will be distributed to the group again. Chula Vista City/Schools Community Task Force Ivlarch 2003 A~pen~i× A Page 48 · If San Ysidro High School were open to the full capacity, how would that affect the rest of the district? This information is not available now and will need to be determined. · How many years have residents in the San Ysidro area been paying into a Mello-Roos district? There are about four or five Mello-Roos districts in the San Ysidro area that have been paying Mello-Roos for about six or seven years. · What is the cost of a football field for the Otay Ranch High School? A swimming pool? SUHSD does not have that figure at this meeting; it will be provided it at a later date. · Proposed recommendation related to residency: There should positive identification with the person registering the student. The person registering the student should provide a picture ID issued by the state of California, such as a California driver's license, ID card, or military ID and the birth certificate of the student registering to attend school in the district. Registration hours should be extended to include evening and Saturday hours to accommodate the needs of working parents. All parents of students registering for the first time to attend school in the SUHSD, including those moving from elementary to middle school, must show proof of linkage between the student who resides in the district and the adult who registers that student. · There was a discussion of the plan for presenting the final report to the sponsoring jurisdictions and to members of the community who are interested in the outcome of the task force process. Patsy recommended that the chair and the Task Force members schedule a time to present the final report recommendations to the school boards or council council. Tentative dates for these presentations suggested by staff are: Monday, April 21 to SUHSD, Tuesday, Apd122 to the City of Chula Vista, and Tuesday, April 29 to CVESD. John noted that the report would be distributed to the media also. · Task force members felt strongly that there should be a community meeting where the task force chair and members present the recommendations and suggested the first Monday in May for this meeting. · Bruce recommended that the report be released to the agencies on the same day and to try and have the presentations within the same week. · It was suggested that the task force presentation should also be televised so that more members of the community could be aware of its recommendations. Public Comment None. Meeting Wrap. Up The issues matdx and John's recommendations will be distributed via e-mail so that all task rome members can review the documents and make any additional recommendations they feel are appropriate. Task force members should submit their individual recommendations or comments by e-mail to either Patsy or Kerry by close of business, Monday, March 10. At the next meeting, the task force will review the draft summary report and make final revisions to the document. The report draft will be projected onto the screen and changes will be made in "real time" at the meeting. John reminded the task force the final meeting would be on Monday, March 24 at the Corporation Yard from 6:30 to 9 p.m. Chula Vista City/Schools Community Tas< Force March 2003 Appendi*, A - Page City of Chula Vista/Chula Vista Elementary School District/Sweetwater Union High School District Community Task Force Agenda Meeting #9 Monday, Mamh 24, 2003 City of Chula Vista Corporation Yard, Training Room, 1800 Maxwell Road, Chula Vista, CA 6:00 - 6:30 p.m. - Meet and Greet 6:30- 9:00 p.m. - Task Force Meeting 1. Administrative Items Patricia Tennyson 2 minutes 2. Review Draft Task Force Report John Moot 130 minutes 3. Public Comment John Moot 10 minutes 4. Presentation Schedule patricia TennYson 8 minutes Chula Vista City/Schools Cornmuni~;y Task Force March 2003 Appendix A Page 5Q MEMORANDUM OF LAW DATE: November 1, 2002 TO: City/Schools Community Task Force FROM: Ann Y. Moore, Senior Assistant City Attorney SUBJECT: SB 50 The Chula Vista City Council approved the creation of a joint agency task force comprised of members of the public and representatives from the Sweetwater Union High School District and Chula Vista Elementary School District ("Task Force"). The Task Force was formed in response to community concerns of over crowding at local schools. A number of questions have arisen concerning the City's ability to address the impact of development on school facilities. The Task Force requested our Office provide an overview of the key legal principles that pertain to the City's ability to regulate school facilities. BACKGROUND The legal authority that enables cities or counties to provide for public infrastructure, such as parks, libraries and schools, is derived from a local agency's police powers and statutory authorization established by the Legislature. The common law recognized the police power of a city or county to regulate land use to protect the public health, safety and welfare of its residents. Berman v. Parker, (1954) 348 U.S. 26 (75 S.Ct. 98). See also Metro media, Inc. v. City of San Dieqo, (1980) 26 Cal.3d 848, 861. However, a city or county may not regulate pursuant to its police powers in an area preempted by state law. Candid Enterprises, Inc., v. Grossmont Union Hi.qh School District (1985) 39 Cal.3d 878, 885. In 1986, the Legislature adopted the School Facilities Legislation (commonly known as the "Sterling Act") that capped the amount of school fees that could be charged for residential, commercial and industrial development. The Sterling Act declared the financing of school facilities a matter of statewide concern and the Legislature occupied the subject matter to the exclusion of all local measures. In addition, the Sterling Act amended former Government Code § 65996 to prohibit public agencies from denying a development project under the California Environmental Chula Vista City/Schools Communi~:y Task Force March 2QO3 Appendix 5 Pa~e I Beginning in 1988, the courts expanded the power of local agencies to deal with the impacts of development on schools. A line of appellate cases interpreted the phrase "development project" to apply only to quasi-adjudicator~ actions such as tentative map approvals and not to legislative decisions like general plan amendments~. The courts held that cities and counties could consider the availability of school facilities when making legislative decisions. Mira Development Corp. v. City of San Diego, (1988) 205 Cal. App.3d 1201 (the Court held a rezoning application denied on basis of inadequate school facilities is not a development project subject to school facilities law); William S. Hart Union Hiqh School Dist. v. Reqional Planninq Commission, (1991) 226 Cal. App3d 1612 (the Court determined that the school facilities law did not prohibit an agency from denying a zoning change based on inadequacy of school facilities where a zoning change is an essential condition of the project); and Murrieta Valley Unified School Dist. v. County of Riverside (1991) 228 Cal. App.3d 1212 (the school facilities law did not preempt authority and duty of county to examine the environmental impact of a general plan amendment on school facilities and to impose appropriate mitigation measures). The courts in the Mira-Hart-Murrieta trilogy of cases allowed cities and counties to conditionally approve or deny legislative approvals for development projects based upon the inadequacy of school facilities. This gave local jurisdictions an avenue in which to encourage developers to fully mitigate the impacts on schools caused by new development. In 1998, the Legislature enacted Senate Bill 50 ("SB 50"), which made significant amendments to the statutory scheme for imposing school fees. SB 50 included a $9.2 billion state bond measure, which was approved by the voters as Proposition lA in the November 3, 1998, general election. SB 50 is based upon the premise that the financing of school facilities and the mitigation of land use approvals for such facilities is a matter of statewide concern. Therefore, only the State should be responsible for the financing of such facilities. SB 50 also invalidated the Mira-Hart-Murrieta trilogy of cases that previously held that the limitations regarding permissible methods of mitigating school facilities did not apply to projects requiring legislative approvals. Instead, the fee provisions of SB 50 now provide the only mitigation for school facilities for all development projects, whether legislative or quasi-adjudicatory in nature.2 ANALYSIS ~ A legislative act involves the enactment of legislation that established a broad, generally applicable rule of conduct on the basis of general public policy. San Diego Building Contractors Assn. v. City Council, (1974) 13 Cal.3d 205, 213. In addition, only the governing body of a city or county may make legislative decisions. Kuglar v. Yocum, 69 Cal.2d 371 (1968) and Groch v. City of Berkley, (1981) 118 Cal. App.3d 518. A quasi-adjudicatory decision describes an individual development project that is considered in accordance with standards and policies. It involves the application of a rule to a specific set of existing facts. Pacific Corp. (1983) 149 Cal. App3d at 175. : SB 50 provides for three levels of statutory fees. The level of fee imposed depends on whether: (1) State funding is available; (2) the school district is eligible for State funding; and (3) the school district meet certain additional criteria. (Government Code § 65995 and Education Code § 17071.75(a) and § 17072.20(b).) This analysis occurs among the school districts and State Allocation Board. Chula Vista City/Schools Community Task Force March 2003 Apperlctix B - Page 2 In general, a city or county may impose land use regulations providing for public infrastructure when such actions are reasonably related to the public welfare. However, with respect to school facilities, the Legislature has "preempted" the field. The Legislature has determined that the financing of school facilities and the mitigation of development based on the need of such facilities are of such state importance that state law should take precedence over local rules. In particular, Government Code § 65995(e) provides: ...For this reason, the Legislature hereby occupies the subject matter of requirements related to school facilities levied or imposed in connection with, or made a condition of, any land use approval.., on the need for school facilities to the exclusion of all other measures, financial or no financial, on the subjects. Thus cities, like Chula Vista, are specifically excluded from imposing development requirements regarding school facilities in a manner inconsistent with state law on the subject. This means that only school districts can provide mitigation for school facilities by imposing the school impact fees authorized by state statute under Education Code § 17620. However, the most significant change resulting from the passage of SB 50 concerns the local agency's ability to condition its legislative actions to mitigate the impact of development on schools. SB 50 amended Government Code § 65995(a) to prohibit cities from imposing conditions in connection with any "adjudicative or legislative act." In addition, Government Code § 65995(b) specifically eliminated a city's ability to deny a "legislative or adjudicative" act based on inadequate school facilities. These two statues effectively repealed the Mira-Hart-Murrieta line of cases that allowed local agencies to either deny or conditionally approve legislative land use decisions for development projects based upon a project's impact on school facilities. For most jurisdictions, common legislative actions include the adoption of planning and zoning ordinances or the General Plan. In the City of Chula Vista common legislative acts include the adoption or amendments of General Development Plans ("GDP"), Sectional Planning Area ("SPA") Plans or Public Facilities Finance Plans ("PFFP"). These planning documents are unique to Chula Vista and are used by the City to provide for the systematic planning and the implementation of such planning within specific areas of master developers such as Eastlake or Otay Ranch. In particular, the PFFP document is used by the City to describe the types and timing of constructing the public facilities that would be needed as a result of the development of a project. Schools were historically considered and dealt with in this analysis. For Chula Vista, the invalidation of the Mira- Hart-Murrieta line of cases, means the City can no longer consider the adequacy of school facilities when considering a development project's GDP, SPA or PFFP documents. In addition, the City can no longer condition the approval of such documents in order to mitigate school impacts. This suspension of local authority will last until at least 2006. At that time, depending on Legislative and electorate action, the suspension may or may not Chula Vista Qty/$chools Community Task Force March 2Q05 Appendix 5 - Page 3 continue, if the voters approve a school bond initiative in 2006 or thereafter, the Mira- Hart-Murrieta repeal will be lifted, and cities will again be able to deny or condition the approval of a legislative decision involving a development project on the basis of its impact on school facilities. If a bond measure is not placed on the ballot in 2006, the suspension of the ability to deny a project will continue indefinitely. (Government Code § 65996(0 and § 65997). Prior to the passage of SB 50, cities also used a number of other tools to mitigate the impact of development on school facilities, such as requiring developers to dedicate land for school facilities or to participate in a Mello-Roos Financing District for school facilities. However with the passage of SB 50 such mechanisms are no longer available. SB 50 amended Government Code § 65995(a) to prohibit state or local agencies from imposing school impact mitigation fees, dedications or other requirements (emphasis added) in excess of those provided in the statute in connection with "any legislative or adjudicative act ... by any state or local agency involving ... the planning, use or development of real property..." This means a city can no longer require the dedication of school sites in connection with taking legislative actions such as approving SPA Plans, However, Government Code § 65996 still allows cities to reserve or designate real property for school sites. Government Code § 65998(a) provides "Nothing in this [Act] shall be interpreted to limit or prohibit the authority of a local agency to reserve or designate real property for a school site." Therefore, local agencies can still designate space for school facilities in its general plan or other planning documents. But cities can no longer require the dedication of such property in connection with approving development projects. In addition, Government Code § 65995(f) and (g) was amended to prohibit cities from requiring a developer to join a Mello-Roos district to finance school facilities as a condition of approval of a legislative or adjudicative act. (Government Code § 65995(0 and (g).) SB 50 is silent as to whether it preempts all local planning authority pertaining to development impacts on schools. For instance, a question has been asked whether SB 50 impacts the City's ability to impose a building moratorium on development if there was a violation of the City's Growth Control Ordinance's (Municipal Code § 19.09.010 et. seq.) threshold standards for schools. The City's Growth Management Ordinance is a program that identifies facilities and improvements necessary to accommodate development and establishes a series of threshold standards for a number of identified facilities (one of which are schools). It provides that if the City Council determines, after a noticed public hearing, that a deficiency exists in one of the threshold standards, the City Council can decide to stop the issuance of building or development permits until an amendment to the applicable PFFP which mitigates the deficiency is approved by the City Council. (Municipal Code § 19.09.100(c).) Chula Vista Cizy/$chools Community Task Force ivlarc h 2003 A~i~ene~ix B Page 4 Since SB 50 was enacted a relatively short time ago, there is no case law to turn to with respect to interpreting the full extent of its application to other types of actions taken by local agencies. Since there is no case law on. this subject, we suggest looking at the language of SB 50 for guidance. The Legislature clearly intended to occupy this field and in a large part eliminate the ability of cities from exercising their police power to mitigate school impacts. (Government Code § 65995(e).) Government Code § 65995(a) reads in part: "...a fee, charge .... or other requirement for the construction...of school facilities may not be levied or imposed in connection with...any legislative...act.., involving, but not limited to, the planning, use or development of real property..." The City's Growth Control Ordinance was intended to provide the City with a mechanism to mitigate school impacts if necessary. The Growth Control Ordinance provides that the City Council with the ability to stop the issuance of building permits if there is a threshold deficiency until a development project's PFFP is amended to mitigate that deficiency. This clearly appears to contradict the intent of the Legislature in the passage of SB 50 to limit the ability of cities to mitigate school impacts. The question of whether SB 50 preempts all local planning authority will most likely be the subject of future litigation. Therefore, due to the uncertainty in this area of law, we would advise the City take a conservative approach when considering taking any action in connection with the Growth Management Ordinance pertaining to school facilities. If the City is found to have acted inappropriately, it could trigger inverse condemnation claims. In any event, SB 50 has no effect on the City's ability to exemise its authority with respect to other threshold standards under its Growth Control Ordinance. SB 50 is also silent as to its impact on state and local laws requiring general plan consistency and other consistency requirements. For instance, California Government Code § 65300 mandates that all cities and counties adopt an adequate general plan. The land use element of the General Plan is required to discuss the general distribution and location of uses of land for education. (Government Code § 65302) However, local agencies no longer have any authority to provide for such sites. In addition, a number of laws require land use actions to be consistent with the General Plan. Government Code § 65860 provides that all zoning ordinances be consistent with the general plan. Although, charter cites are excluded from this provision, the City of Chula Vista adopted a similar consistency requirement. (Municipal Code § 19.06.030). Also, the court in Corona-Norco USD v. Corona (1983) 13 Cal. App.4th 1577, 1585, held that the Sterling Act preempted the use of the consistency doctrine as it applied to subdivision maps under Government Code § 66473.5. This raises a number of question as to whether the same principles would apply to other consistency requirements pertaining to land use decisions. No doubt such questions will probably be the topic of future litigation. Finally, SB 50 makes even the application of CEQA a great deal more difficult. CEQA requires a city to prepare an EIR and propose mitigation measures for any Chula Vista City/Schools Community Task Force March 2003 Appendix B - Page 5 significant impacts that would result from the approval of a development project. In addition, the local agency must make a finding for each significant impact; either that the project has been changed to void or substantially reduce the impact or that mitigation measures will be adopted. If the lead agency cannot make this finding, it must make the finding that economic, social, legal, technical or other considerations make the mitigation measure infeasible. (Guideline 15091) Under CEQA a project that has significant impacts that cannot be mitigated cannot be approved unless such a finding is made by the local agency. This means that as a result of the enactment of SB 50, even if a development project has a significant impact on school facilities, the city cannot impose any mitigation measures on the project. In addition, a city could not deny the project on the basis of the development project's significant impact on school facilities. Therefore, the local agency would have to make a finding when approving the project that mitigation measures pertaining to school facilities are legally infeasible because of the limitations placed on local agencies by SB 50. It seems this approach would ensure procedural compliance with CEQA and allow the City to comply with the provisions of SB 50. CONCLUSION SB 50 has severely limited the options of cities to assist in the financing of new school facilitates. Thus a planning and/or development project resulting in an impact on school facilities: (1) may be approved with mitigation measures taken from those identified in Government Code Section 65996(a); or (2) may be approved without mitigation measures if none of the subdivision measures are feasible, or (3) may be disapproved for a reason unrelated to school facilities impacts; but (4) may not be disapproved or conditioned due to school impacts. cc: Honorable Mayor and City Council Members David D. Rowlands, Jr., City Manager Sid Morris, Assistant City Manager Bob Leiter, Director of Building & Planning John Kaheny, City Attorney Chula Vista City/Schools Corni~lunity Task Force March 2003 Appendix 5 Pa~e 6 City of Chula Vista/Chula Vista Elementary School District/Sweetwater Union High School District Frequently Asked Questions 1. Why are schools in Chula Vista so overcrowded? Chula Vista is one of the fastest growing communities in San Diego County, as well as in the state, and our schools reflect this. There are other reasons for high enrollment in our schools. First, when the new communities were planned, schools were to be operated year-round, which required fewer classrooms would be needed. The community did not want year-round schools, as it turned out, so many of the original schools house fewer students than was planned. Also, the historically Iow interest rates have resulted in a rapid absorption of homes that have generated students at a faster rate than projected. High enrollment schools are a state and national phenomena and are not unique to Chula Vista. The school districts are working more closely with the development community and the city, however, to address the situation in Chula Vista and minimize the crowding. 2. Would the construction of Otay Ranch High School have kept Eastlake High School from being so overcrowded? Yes, Otay Ranch High School would have decreased some of the overcrowded conditions at Eastlake High School if it had been constructed earlier. 3. So why was the construction of Otay Ranch High School delayed? The main reason construction was delayed was State funding was not available on the projected schedule. State funds were depleted due to passage of state legislation that gave the Los Angeles Unified School District preferred status to receive funding from the last state education bond. Once LA Unified school facility needs were funded, there were no bond funds left for any other districts. 4. My child goes to a brand new school, and there are portables already located on the facility. Did the school districts plan poorly? No. School districts plan to use portables for all new schools in order to ensure they have not constructed a permanent facility that will be too large. All neighborhoods go through periods of Iow to high student generation rates. The permanent facility needs to be designed and constructed to accommodate the average number of students expected to attend from a single area. Portables allow for the wax and wane of student population historically experienced at all schools. Chula Vista City/Schools Community Task Force March 20O3 A~pendi× C - Page 1 5. Why do developers keep building houses if there is not enough room to house the students? The development community works with the districts and the City to provide adequate school capacity for the number of homes they build. Typically, the projections of number of students have been accurate. However, the recent economic boom combined with the phenomena of multiple families occupying one dwelling has skewed the projections somewhat. The districts and the City are working closely with the developers to improve the projections and address the issue. 6. Do apartments generate more students than single family homes? When comparing single family homes with apartments on a dwelling by dwelling basis, there is no large difference between the two. 7. Does the City communicate growth projections to the two school districts? Yes. Since 1989 the City annually submits a five year growth forecast of new residential development to the school districts, and requests that the districts comment on their ability to service this additional growth. 8. Can cities regulate development to ensure that the schools are not overcrowded? No, due to Senate Bill 50 the City is prohibited from regulating development based on school impacts. 9. What do the school districts do to ensure students actually live in the district? Sweetwater Union High School District requires parent(s)/legal guardian(s) to have two of the following documents: · Affidavit (all parents) · Utility bill (except phone bill) · Cable television bill · Lease agreement (current lease with all residents listed and landlord's name and telephone number) · Confirming letter on apartment complex/mobile part letterhead signed by landlord) · Escrow paper · Mortgage · Home owners association · Home owners insurance · Social services · Home visits Chula Vista Elementary School District requires parent(s)/legal guardian(s) to provide one of the following documents: · Escrow papers Chula V~sta City/Schools Community Task Force March 2003 A~endix C Page 2 · Mortgage statement · Property tax bill · Home owners association · Lease/rental statement · Letter from apartment complex/mobile park · Utility bill · Government social security · Residence insurance 10. How is school construction funded? Grants, bond funding from the State of California, local bonds, Developer Impact Fees (DIFs) and revenue from Mello-Roos or Community Facility Districts all provide funds to construct schools. 11.What are Community Facility Districts (CFDs) and Mello-Roos? These are both types of assessment districts that assess a fee on property located within the district. The terms are sometimes used to mean the same thing, but there are technical differences between them. Tax- exempt bonds are sold to fund public improvements, and the property owners in the district pay a "special tax" to repay the bonds. Chuia Vista established Mello-Roos districts and CFDs as a way to raise revenue from the development community to finance services and facilities such as: police protections, fire protection, ambulance services, schools, parks, streets, libraries, museums and cultural facilities. 12.When I pay my Mello-Roos assessment, where does the money go? The money goes to the jurisdiction for which the fee is assessed. In the case of assessments for schools, it goes to the Chula Vista Elementary School District and the Sweetwater Union High School District according to an established formula. Typically the revenue received from CFDs is "pooled" for financing the construction of new schools throughout the school district. While the revenue from one CFD may not generate enough money to build a school in that CFD right away, it does guarantee that students in that CFD will have a seat in the district. Funds from all CFDs are used to build schools as they are needed in the districts. 13.What happened to the Proposition BB and JJ funds? The Proposition BB and JJ funds are being spent on construction and improvements to new and existing schools. Schedules outlining the expenditures from these bonds are available at each school district office. Vista City/Schools Community Tas* Force ~aarch 2003 Appendix C Pa~e 3 14.Will the upcoming state budget cuts affect current school construction? The schools currently under construction are funded, however, to the extent that funds come from sources other than bonds, state budget cuts could affect future school construction. This is still a situation that is developing and there is no definitive answer at this time. 15. How long does it take to build a school? Planning and construction for an elementary school takes two years and planning and construction for a high school takes four to five years. 16. Can the private industry (developers) build schools quicker and cheaper than school districts? Not necessarily. The developer has to go through the same processes that the school district would go through to construct a school and the cost to build a school is approximately the same whether developers or school districts construct the school. All public agencies within the State of California that use public funds (developers would also use public funds for school construction) are required to build under a set of predetermined wage rates, or prevailing wage. 17.1s there land available if we need to build a school west of Interstate 805? Available land west of 1-805 is limited. One way the City of Chula Vista and the school districts are addressing this limitation is to emphasize joint use of facilities. 18.1f land is an issue in the western part of Chula Vista, can we have more joint use of school and city facilities? The city of Chula Vista, Chula Vista Elementary School District, Sweetwater Union High School District and local social service agencies already have an extensive list of joint use efforts including after school programs, a joint use library, joint use recreational facilities and fields as well as the scheduling for some of these facilities. Additional joint use of school and city facilities in both eastern and western Chula Vista is possible. The update of the city's General Plan will include opportunities for joint use. 19.1s there a way school districts can gather information from new homeowners to obtain accurate, up-to-date information about the children that will attend schools in the district? Currently, there is nothing that is set up to obtain information from new homeowners about the children that will attend schools in the districts. 20.Are there improvements that can be made to relieve traffic congestion near schools during drop-off and pick up times? Chula Vista City/Schools Cornrrun~ty ~ ask Force March 2Q03 Appendix C Page 4 Congestion will be an on-going concern in any facility that experiences peak arrivals and departures over a short span of time as schools do. However, improvements to relieve traffic congestion are possible and are implemented by the City. For instance, a signal has recently been activated at Eastlake High School and a drop off lane has been reconfigured at Rancho del Rey Middle School. Chula Vista City/School5 Community Task Force March 2Q03 A~per/e~lx C - Page 5 To: Ann Moore, City Attorney ////~ From: Elizabeth Wagner Hull, Deputy City Attorney Date: May 13, 2003 Subject: Conflict of lnterest Analysis for Counciimember Salas Councilmember Salas has placed in an escrow account good faith funds toward the purchase of property located at 245 Davidson Street in Chula Vista. Councilmember Salas has requested an analysis of the potential conflict of interest issues raised by this prior to tonight's action on the Exclusive Negotiating Agreement with Pacific Scene Homes for a proposed project on Landis Avenue. The infom~ation below provides the general framework for the analysis of this issue. Political Reform Act ("PRA") The PRA prohibits a public official from making, participating in the making or in any~vay attempting to use his official position to influence a governmental decision if he or she knows or has reason to know that he or she has a financial interest in that governmental decision. California Government Code §87100. The PRA's conflict of interest rules apply only to financial conflicts. Is the individual a Public Official? "Public official" includes any member, ofricer, employee or consultant ora state or local government agency. A city councilmember is a "public official" within the meaning of the PRA. Will the official be making, participating in making or otherwise using his official position to influence a governmental decision'? Participating in a governmental decision has been broadly defined to include voting, making an appointment, committing an agency to a course of action, entering into a contractual agreement on behalf of the agency, determining not to act, negotiating, advising, or making recommendations to the decision-maker. The Council is the final decision-making authority within the City and as a member of the Council, Ms. Salas makes governmental decisions within the meaning _of PRA. What are the economic interests of the official and are they directly or indirectly involved in the decision? The next concern is what is the economic interest that could create a financial conflict of interest. A public official will have an economic interest in real property in which there is an investment of $2000 or more. Real property in which a public official has an economic interest is directly involved in a governmental decision if any of the following apply: 1. The real property is located within 500 feet of the boundaries of the property which is the subject of the governmental decision. 2. The governmental decision involves the zoning or rezoning, annexation or deannexation, sale, purchase, or lease, or inclusion in or exclusion from any city, county, district or other local governmental subdivision. 3. The governmental decision involves the issuance, denial or revocation of a license, permit or other land use entitlement authorizing a specific use or uses of the real property in which the official has an interest. 4. The governmental decision involves the imposition, repeal or modification of any taxes or fees assessed or imposed on the property. 5. The governmental decision is to designate the survey area, to select the project area, to adopt the preliminary plan, etc. 6. The decision involves construction of, or improvements to, streets, water sewer, storm drainage or similar facilities, and the real property in which the official has an interest will receive new or improved services Real property in which a public official has an interest is not directly involved in a governmental decision, but is indirectly involved iff 1. The decision solely concerns the amendment of an existing zoning ordinance or other land use regulation which is applicable to all other properties. 2. The decision solely concerns repairs, replacement or maintenance of existing streets, water, sewer, storm drainage or similar facilities. At this date, Ms. Salas has placed $5000 in an escrow account as earnest money towards the purchase of the property. Presumably a failure to close escrow will result in the loss of this earnest money. Arguably this creates an economic interest in the property. The next issue presented is whether this economic interest is directly involved in the decision. The property Ms. Salas has in escrow is approximately 780 feet from the boundary of the project described within the Exclusive Negotiation Agreement. Additionally, the action does not meet any of the other listed criteria for the property to be directly or indirectly involved in the decision. What is the applicable materiality standard?- Once a determination is made that the interest is directly or indirectly involved the materiality standard is applied. The materiality standard for economic interests in real property are as follows: 1. Directly involved real property, other that leaseholds, the financial effect of a governmental decision is presumed to be material. 2. Indirectly involved real property, other than leaseholds, the financial effect of a govenunental decision is presumed not to be material. These presumptions may be rebutted by proof that it is or is not reasonably foreseeable that the governmental decision will have any financial effect on the real property. Consequently, if the real property is directly involved the effect is presumed to be material and a conflict exists. If the real property is indirectly involved the effect is presumed not to be material and a conflict does not exist. Even ifa conflict is determined to be present the public official may be able to participate if the action would fall within the "public generally" exception or her participation is legally required. Prior to relying on either of these exceptions the facts would need to be analyzed on a case-by-case basis. As previously indicated the deposit of funds into an escrow account may create a economic interest in the real property but because of the contemplated actions and the distance between the escrowed property and the proposed action by the redevelopment agency no financial conflict of interest covered by the PRA is present. cc: Councilmember Salas J Attorney E Hull',Rindone doc Sweem,aterSchools Date_ May 10: 2003 Oj~fice o? the Superintendent Report tackles problem of crowded schools By LIz Neely den~ ~d ci~ o~ci~ ~y the more i~o~ation about ~nd Amy Oakes ~h~ls were not ~ff built ~ ~ ~e ~. ~ch ye~, 5T~FFW~IT~5 ~St enot~h to acco~ate the City Council-appointed GMOC r~e~ ~e effe~ of new reeidents mo~g here. In re~den~ ~o~ on ci~ CHIJ~ ~S~'A ~ A ~sk EasY.e, ~ents of s6~dents lorce created last ye~ to de~ fom~ a ~oup mid held ~ver- ~ces, ~hools, ~e en~onment ~ crowded schools has r~ al meetings with ci~ and ~d ~. ~e s~d~ds for ]ea~d a re~g ~ recon~n- sch~I officios. ~ ~ ~e d~s ~o~ m~- ~fimxs for ~pro~ co~u- B~ce Husson, chief operat- . ~ca~on be~een ~en~, ~e ~xg officer for ~e Swee~ater ~e~t o~ce, which ~hooldis~c~dtheciW. dis~ict, ~id communication ~o~19~. The Chula Vista be~n ~e communi~, ~e ~C~a~~w Ci~/~hools Co~ Ta~ cib, mid ~e ~hool dis~c~ ~5 ho~e~ Forcerepo~c~lsfor~efonna' already improved. Fu~her, n~inhowMe~R~ fion ot sevcr~ co~aees to Sweetwat~ is ~ a lo~- ~ ~ s~dy ~d mo~tor s~dent eh- r~ge f~fies m~ ~ ~ ~ ~ why rodent, school cons~cfion, ~B ~c~ ~h of ~ ~or- po~ ~ ~i~ n~ ~h~. ~as~c~ve ~d more. Fuv marion ~e ~sk fo~ is ~ek- m C~ea~ a co~R~ ~de · er. ~e rusk fore ou~l~ ~g. ~le repo~ is e~cted to up of ~ ~om ways ~e ~ ~d ~ go before the ~chool bo~ ~ ~c~ ~d ~e d~ ~wo~d ~ c~ ~ ~ July, Huron s~d. di~ ~d ~ ~ r~ a~ut ~w MeB~Ro~/c~ Chula Vista Mayor Steve a~o~ ~ ~ ~ ~ ~d ~ ~ ~ ~ ~ Pad~la, who had not yet looked ~h~l dis~. u~ ~ ~r n~ ~hoo~. at ~ere~.s~d~es~teoI MelloRoo5 is a ~ p~d by ~c ci~s ~hools has been a mCh~e ~oof~f-r~id~ homeowilers in sonle new ~o~ng concern for h~. req~emen~ to be more s~- hous~ developments. "l~s a major issue ~ &e corn- gent "1 rely ~k ~s is a ~e mu~," he ~d. mendous oppo~ to put But, he s~d. he ~s d[sa~ ~ocedur~ ~ place ~at ~ ~ted ~at the ~k fore did ensure we won't be ha~g ~- ~t l~k ~ ~e i~ue of r~rg~- o~er ~sk fore ~ ~o~er four ~ ~ ~1 di~cts as a ye~s to look at ~e ~e i~ ~option. ~es," ~d ~sk force Ch~ ~ong the ~sk force's rec- John Moot. ~c ~k force was o~endafions ~e: crated last August under ~e · Fo~ ~ ad h~ co~ dffec~ono1~enMayorSh~ley co~d of ~ from Ho~on. ~e l~member corn- the Ci~ Council and each ~ee ~s made up of appo~- ~ bo~. ~e co~Ree tees from ~e ciW ~d ~e would m~t ~ ay~to dis- Sw~ater Union High ~d cuss~d~zestudente~o~- Chula ~ Elemen~ ~hool merit projections, building dis~cts, pl~s, s~s of ~hools und~ Moot ~ pre~nt ~h~h~s cons~c~on, m~d o~er issue. of &e re~ to ~e Chula ~s~ Addifion~y, ~e re~ c~s for Ci~ Council on Tu~day. ~e ~e~e~nofa~ Chula ~sta sch~l dis~ct on ~ ~ ~ ~ ~ May 20 ~d ~e Swee~ater di~ ~de ~t to ~e ad h~ com- ~ict on June 16. ~ ~vem- l~fiRee bo~ before ~d ~er ~ bo~d ~ d~de ~ each to ~o~ ~e reco~enda~ons, m~end ~e Gro~ ~ ~e past few ye~s, the ~ agement Over.bt Commis- hase~fiencedm~expect~ sion (GMOC) Threshold l~gh rate of~o~h ~me rest- Smd~d so t~t [I