HomeMy WebLinkAboutAgenda Packet 2004/04/20
CITY COUNCIL AGENDA
April 20, 2004 6:00 p.m.
Council Chambers
Public Services Building
276 Fourth Avenue, Chula Vista
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CllY OF
CHUlA VISTA
City Council City Manager
Patty Davis David D. Rowlands, Jr.
John McCann City Attorney
Jerry R. Rindone Ann Moore
Mary Salas City Clerk
Stephen C. Padilla, Mayor Susan Bigelow
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The City Council meets regularly on the fIrst calendar Tuesday at 4:00 p.m.
and on the second, third and fourth calendar Tuesdays at 6:00 p.m.
Regular meetings may be viewed at 7:00 p.m. on Wednesdays on
Cox Cable Channel 24 or Chula Vista Cable Channel 68.
Agendas are available on the City's website at:
www.chulavistaca.gov
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AGENDA
I declare under penalty of perjury that I am
employed by the City of Chula Vista in the
Office of the City Clerk and that I posted this
document on the bulletin board according to
BrownAc re iremønta. ~'
Dated /w 0 Signed
, 6:00P. .
"
April 20, 2004
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
· INTRODUCTION BY POLICE CHIEF EMERSON OF THE EMPLOYEE OF THE
MONTH, NANCI PLOUFFE, INTEL ANALYST
· PRESENTATION BY MAYOR PADILLA OF THE CONSTITUENT SERVICE
AWARD
· OATHS OF OFFICE:
Armida Martin Del Campo, Housing Advisory Commission
Jerrold Siegel, Mobilehome Rent Review Commission
· PRESENTATION BY MAYOR PADILLA OF A PROCLAMATION TO DAVID
MCCLURG, PRESIDENT OF THE DOWNTOWN BUSINESS ASSOCIATION,
COMMENDING THEM FOR THEIR PROACTIVE EFFORTS IN ERADICATING
GRAFFITI IN THE DOWNTOWN CHULA VISTA AREA
CONSENT CALENDAR
(Items I through 12)
The Council will enact the Consent Calendar staff recommendations by one
motion, without discussion, unless a Councilmember, a member of the public, or
City staff requests that an item be removed for discussion. If you wish to speak on
one of these items, please fill out a "Request to Speak" form (available in the
lobby) and submit it to the City Clerk prior to the meeting. Items pulled from the
Consent Calendar will be discussed after Action Items.
1. APPROVAL OF MINUTES of March 23, March 25, and March 30, 2004.
Staff recommendation: Council approve the minutes.
2. ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
AMENDING SECTION 19.54.020 AND ADDING SECTIONS 19.58.148 AND
19.58.245 TO THE CHULA VISTA MUNICIPAL CODE TO ALLOW AND
REGULATE CERTIFIED FARMERS' MARKETS AND AMBULANCE SERVICES
(SECOND READING)
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Adoption of the ordinance provides new regulations for certified farmer's markets and
provides more flexibility for locating small-scale ambulance dispatch services throughout
the City of Chula Vista. This ordinance was introduced on April 6, 2004. (Director of
Planning and Building)
Staff recommendation: Council adopt the ordinance.
3. ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
AMENDING ORDINANCE 2579, RELATING TO INTERIM PRE-SR-125
DEVELOPMENT IMPACT FEE (SECOND READING)
In 1994, the Interim Pre-SR-125 Development Impact Fee (SR-125 DIP) was established
to ensure that sufficient funds would be available to construct a contingent north-south
transportation corridor should the SR-125 freeway not be constructed by CalTrans or not
be constructed in time to serve impending development. With financing now secured,
environmental constraints addressed, and construction underway for SR-125, City staff
recommends that the fee be tolled. Staff also recommends that Ordinance 2579 be
amended to allow transportation capacity enhancement improvements to be funded from
fees already collected for SR-125 DIF. This ordinance was introduced on April 6, 2004.
(Director of General Services, City Engineer)
Staff recommendation: Council adopt the ordinance.
4. ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
DECREASING THE EXISTING SPEED LIMIT ON ALBANY A VENUE BETWEEN
ORANGE AVENUE AND MAIN STREET TO 25 MPH (FIRST READING)
The California Vehicle Code requires that existing speed limits be verified every seven
years and increased or decreased as needed. A recent traffic survey for Albany Avenue
between Orange Avenue and Main Street was completed and it is recommended that the
existing speed limit on this roadway be reduced to 25 mph. (Director of General
Services, City Engineer)
Staff recommendation: Council place the ordinance on first reading.
5. ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
ESTABLISHING A 25-MPH SPEED LIMIT ON PASEO DEL REY, BETWEEN EAST
H STREET AND LAZO COURT, THEREBY AMENDING SCHEDULE X OF A
REGISTER MAINTAINED IN THE OFFICE OF THE CITY ENGINEER (FIRST
READING)
The California Vehicle Code authorizes the establishment oflocal speed limits based on a
traffic survey. A recent survey for Paseo del Rey between East H Street and Lazo Court
was completed, and it is recommended that a 25-mph speed limit be established on this
roadway. (Director of General Services, City Engineer)
Staffrecommendation: Council place the ordinance on first reading.
Page 2 - Council Agenda April 20, 2004
6A. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
APPROVING THE JOINT USE AGREEMENT WITH THE SAN DIEGO COUNTY
WATER AUTHORITY
B. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
APPROVING THE JOINT USE AGREEMENT WITH SDG&E
C. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
APPROVING THE FINAL MAP OF CHULA VISTA TRACT NO. 01-11, OTAY
RANCH VILLAGE 11 "A" MAP NO.2, ACCEPTING ON BEHALF OF THE CITY
OF CHULA VISTA THE VARIOUS PUBLIC STREETS AND EASEMENTS,
APPROVING THE SUBDIVISION IMPROVEMENT AGREEMENT FOR THE
COMPLETION OF IMPROVEMENTS, AND APPROVING A SUPPLEMENTAL
SUBDIVISION IMPROVEMENT AGREEMENT FOR CHULA VISTA TRACT NO.
01-11, OTAYRANCH VILLAGE 11 "A" MAP NO.2
D. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
APPROVING THE DESIGNATING AND SETTING ASIDE OF CERTAIN CITY-
OWNED REAL PROPERTY AS RIGHT-OF-WAY FOR STREET AND PUBLIC
UTILITY PURPOSES FOR HUNTE PARKWAY
E. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
APPROVING THE GRANT OF EASEMENTS AND MAINTENANCE AGREEMENT
FOR OT A Y RANCH VILLAGE 11 "A" MAP NO.2
Approval of joint use agreements with the San Diego County Water Authority and
SDG&E provides the rights-of-way needed to proceed with approval of the Final "A"
Map for Brookfield Shea Otay Village 11, Windingwa1k. This development will provide
369 multi-family residential, a small amount of commercial, and "super block" lots that
can be later subdivided with "B" maps. (Director of General Services, City Engineer)
Staff recommendation: Council adopt the resolutions.
7. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
APPROVING THE SUBMITTAL OF FOUR GRANT APPLICATIONS TO THE SAN
DIEGO ASSOCIATION OF GOVERNMENTS (SANDAG) FOR FISCAL YEAR
2004/2005 TRANSPORTATION DEVELOPMENT ACT AND TRANSNET FUNDING
FOR BICYCLE AND PEDESTRIAN CAPITAL IMPROVEMENTS
The Transportation Development Act (TDA) and the TransNet Program provide funding
support for regional bicycle and pedestrian capital improvement projects. SANDAG will
allocate those project funds to the City, based upon availability and our four Council-
approved Fiscal Year 2004/2005 grant applications. (Director of General Services, City
Engineer)
Staff recommendation: Council adopt the resolution.
Page 3 - Council Agenda April 20, 2004
8. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
ACCEPTING BIDS AND A WARDING A CONTRACT FOR CONSTRUCTION OF
THE TRAFFIC SIGNAL INSTALLATIONS AT EAST J STREETIPASEO DEL REY
(PROJECT TF-294) AND CLUBHOUSE DRiVEfNORTH AND SOUTH
GREENSVIEW DRIVE (PROJECT TF-308) TO ABC GRADING & PAVING, A
JOINT VENTURE, DBA ACE ELECTRIC/ABC CONSTRUCTION
Installation of traffic signals at the two subject intersections were approved and budgeted
as part of the Fiscal Year 2003/2004 Capital Improvements Program (CIP). The scope of
the projects includes the installation of fully actuated traffic signal systems and other
work necessary to complete the projects. (Director of General Services, City Engineer)
Staff recommendation: Council adopt the resolution.
9A. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
APPROVING AN ACQUISITION/FINANCING AGREEMENT IN COMMUNITY
FACILITIES DISTRICT NO. 07-1 (OTAY RANCH VILLAGE ELEVEN)
B. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
ACTING IN ITS CAPACITY AS THE LEGISLATIVE BODY OF COMMUNITY
FACILITIES DISTRICT NO. 07-1 (OTAY RANCH VILLAGE ELEVEN),
AUTHORIZING AND PROVIDING FOR THE ISSUANCE OF SPECIAL TAX
BONDS OF THE DISTRICT, APPROVING THE FORM OF BOND INDENTURE,
BOND PURCHASE AGREEMENT, PRELIMINARY OFFICIAL STATEMENT, AND
OTHER DOCUMENTS, AND AUTHORIZING CERTAIN ACTIONS IN
CONNECTION WITH THE ISSUANCE OF SUCH BONDS
The Mello-Roos Community Facilities Act of 1982 is a financing mechanism for funding
the acquisition or construction of public infrastructure improvements from the proceeds
of Community Facilities Districts bonds, which are repaid from an annual special tax,
collected from the property owners within the district. There is no direct cost to the City.
CFD 07-1 is primarily an acquisition district, wherein the developer constructs the public
improvements and the City acquires them upon completion with funds derived solely
from the sale of bonds. (Director of General Services, City Engineer)
Staff recommendation: Council adopt the resolutions.
10. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
APPROVING A BUDGET TRANSFER FROM THE PAVEMENT REHABILITATION
PROGRAM FISCAL YEAR 2004 OVERLAY IN THE CITY OF CHULA VISTA
PROJECT (STL-293) TO THE LOCAL STREETS PAVEMENT REHABILITATION
PROGRAM IN THE CITY OF CHULA VISTA PROJECT (STL-300), ACCEPTING
BIDS, AND A WARDING THE CONTRACT
On March 3, 2004, the Director of General Services received sealed bids for this project.
The work to be done consists of the application of rubberized emulsion aggregate slurry
on various pavement locations in the City. It also includes the preparation, repairs, and
other miscellaneous work related to the project. (Director of General Services)
Staff recommendation: Council adopt the resolution.
Page 4 - Council Agenda April 20, 2004
11. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
APPROVING THE TRANSFER OF UNCLAIMED MONIES IN THE AMOUNT OF
$86,373.08 FROM THE CASH BOND DEPOSIT FUND TO THE GENERAL FUND
Currently the City has unclaimed monies in the amount of $86,373.08 in the cash bond
deposit fund. This money was deposited by the Police Department in accordance with
Article 3, Section 50050 of the Government Code. According to Government Code
provisions, money that remains unclaimed for three years may become the property of the
City after certain advertising requirements are met. This money is now eligible for
transfer to the General Fund. (Police Chief)
Staff recommendation: Council adopt the resolution.
12. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
AMENDING THE FISCAL YEAR 2004 LIDRARY DEPARTMENT BUDGET BY
APPROPRIATING UNANTICIPATED TASTE OF THE ARTS SPONSORSHIPS
REVENUE IN THE AMOUNT OF $9,000 (4/5THS VOTE REQUIRED)
Since January 1,2004, the Office of Cultural Arts has received sponsorships from various
local businesses for the Taste of the Arts Festival to be held on April 18, 2004. Adoption
of the resolution approves the appropriation of those funds. (Assistant City Manager
Palmer)
Staff recommendation: Council adopt the resolution.
ORAL COMMUNICATIONS
Persons speaking during Oral Communications may address the Council on any
subject matter within the Council's jurisdiction that is not listed as an item on the
agenda. State law generally prohibits the Council from taking action on any issue
not included on the agenda, but, if appropriate, the Council may schedule the
topic for future discussion or refer the matter to staff. Comments are limited to
three minutes.
ACTION ITEMS
The items listed in this section of the agenda will be considered individually by
the Council, and are expected to elicit discussion and deliberation. 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.
13. CONSIDERATION OF ACCEPTANCE OF A STATUS REPORT ON VARIOUS
CITY ENERGY ISSUES
In response to direction from the Council, this report presents various energy issues
currently being addressed by the City. (City Manager)
Staff recommendation: Council accept the report.
Page 5 - Council Agenda April 20, 2004
14. CONSIDERATION OF APPROVAL OF APPROPRIATION OF FUNDS FOR THE
PURPOSE OF FUNDING ELECTRICITY AND GAS CONSULTANTS
Adoption of the resolution approves the appropriation of $69,000 to fund work by the
Municipal Energy Utility consultants, and to support the development of rules for
implementing Community Choice Aggregation. Approximately $59,000 will fund the
additional work by the Municipal Energy Utility consultants to conclude the peer review
process, and to provide a more detailed analysis of SDG&E rate/revenue issues. The
additional $10,000 is the City's potential contribution to the Local Govemment
Commission to share costs for expert testimony before the Public Utilities Commission
with twelve jurisdictions regarding the implementation of Community Choice
Aggregation. (City Manager)
Staff recommendation: Council adopt the following resolution:
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
APPROPRIATING $69,000 FROM THE AVAILABLE FUND BALANCE OF
THE GENERAL FUND TO THE ENVIRONMENTAL SERVICES RESOURCE
MANAGEMENT SUPPLY AND SERVICES BUDGET FOR THE PURPOSE
OF FUNDING ELECTRICITY AND GAS CONSULTANTS (4/5THS VOTE
REQUIRED)
15. CONSIDERATION OF AUTHORITY TO ENTER INTO A DIRECT ACCESS
AGREEMENT FOR ELECTRICITY SUPPLY FOR ELIGIBLE CITY FACILITIES
On May 8, 2003, the California Public Utilities Commission (CPUC) issued a decision
that determined the rights and obligations of "Direct Access" customers to switch
between bundled electricity service and direct access. Under the decision, the CPUC
authorized previous Direct Access customers to receive, evaluate, and state an intent to
switch to direct access by April 17, 2004. Once a final selection is made, all eligible
accounts are required to switch to direct access service on or before June 17, 2004.
Adoption of the resolution authorizes the City Manager to enter into a direct access
agreement with an energy service provider for electricity supply for eligible City
facilities. (City Manager)
Staff recommendation: Council adopt the following resolution:
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
WAIVING THE FORMAL BID PROCESS PURSUANT TO MUNICIPAL
CODE SECTION 2.56.070 AND AUTHORIZING THE CITY MANAGER TO
ENTER INTO A DIRECT ACCESS AGREEMENT WITH AN ENERGY
SERVICE PROVIDER FOR ELECTRICITY SUPPLY FOR ELIGIBLE CITY
FACILITIES
16. CONSIDERATION OF ACCEPTANCE OF A REPORT REGARDING CURRENT
CODE ENFORCEMENT ACTIVITIES (Continued from April 6, 2004)
The report includes a description of the expanded Code Enforcement section and
emphasizes new proactive enforcement programs. Also provided is a status update of
current activities and additional planned enhancements. (Director of Planning and
Building)
Staff recommendation: Council accept the report.
Page 6 - Council Agenda April 20, 2004
17. CONSIDERATION OF APPROVAL OF A FINAL DRAFT PARK MASTER PLAN
FOR THE 5.21-ACRE PUBLIC NEIGHBORHOOD PARK ON OXFORD STREET IN
CHULA VISTA, NAMING THE PARK, "HARBORSIDE PARK," AND
APPROPRIATING FUNDS TO COMPLETE THE DESIGN OF THE PARK
The City purchased a 5.21-acre site on Oxford Street for the purpose of developing a new
neighborhood park in western Chula Vista. Adoption of the resolution approves the final
draft park master plan for this park. (Director of General Services)
Staff recommendation: Council adopt the following resolution:
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
APPROVING THE FINAL DRAFT PARK MASTER PLAN FOR THE 5.21-
ACRE PUBLIC NEIGHBORHOOD PARK SITE ON OXFORD STREET IN
WESTERN CHULA VISTA, THAT THE NAME OF THE PARK BE,
"HARBORSIDE PARK," AND THE APPROPRIATION OF FUNDS TO
COMPLETE THE DESIGN OF THE PARK (4/5THS VOTE REQUIRED)
18. CONSIDERATION OF APPROVAL OF THE SAN DIEGO COUNTY MULTI-
JURISDICTIONAL HAZARD MITIGATION PLAN AS IT RELATES TO THE CITY
OF CHULA VISTA
The Disaster Management Act of 2000 requires that, in order to remain eligible for post-
disaster Federal Emergency Management Assistance funding after November 2004, every
jurisdiction in the United States must have an approved Hazard Mitigation Plan. (Fire
Chief)
Staff recommendation: Council adopt the following resolution:
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
ACCEPTING AND APPROVING THE SAN DIEGO COUNTY MULTI-
JURISDICTIONAL HAZARD MITIGATION PLAN AS IT RELATES TO THE
CITY OF CHULA VISTA
19. CONSIDERATION OF ACCEPTANCE OF TRANSPORTATION DEMAND
MANAGEMENT GRANTS FROM THE COUNTY AIR POLLUTION CONTROL
DISTRICT FOR A TOTAL OF $414,325, AUTHORIZATION FOR THE CITY
MANAGER TO SIGN AN AGREEMENT WITH SAN DIEGO ASSOCIATION OF
GOVERNMENTS FOR TDM IMPLEMENTATION, AND APPROPRIATION OF
$414,325 FROM THE GENERAL FUND TO BE REIMBURSED FROM GRANT
REVENUE
The Eastern Chu1a Vista Traffic Enhancement Program was first presented to the Council
in May 200 I. A component of that effort was the development and implementation of a
Traffic Demand Management program. That program has now been identified with full
funding secured. Adoption ofthe resolution allows the implementation of the program to
begin. (Director of Planning and Building)
Staff recommendation: Council adopt the following resolution:
Page 7 - Council Agenda April 20, 2004
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RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
ACCEPTING THREE TRANSPORTATION DEMAND MANAGEMENT
GRANTS FROM THE SAN DIEGO COUNTY AIR POLLUTION CONTROL
DISTRICT FOR A TOTAL OF $414,325, AUTHORIZING THE CITY
MANAGER TO SIGN AN AGREEMENT WITH SANDAG FOR TDM
IMPLEMENTATION, AND APPROPRIATING $414,325 FROM THE
GENERAL FUND TO BE REIMBURSED FROM GRANT REVENUE (4/5THS
VOTE REQUIRED)
ITEMS PULLED FROM THE CONSENT CALENDAR
OTHER BUSINESS
20. CITY MANAGER'S REPORTS
21. MAYOR'S REPORTS
22. COUNCIL COMMENTS
CLOSED SESSION
Announcements of actions taken in Closed Session shall be made available by
noon on Wednesday following the Council Meeting at the City Attorney's office in
accordance with the Ralph M. Brown Act (Government Code 54957. 7).
23. CONFERENCE WITH REAL PROPERTY NEGOTIATORS PURSUANT TO
GOVERNMENT CODE SECTION 54956.8
Property: San Diego Gas & Electric - Gas and Electricity Franchise
(pertaining to public rights-of-way throughout the City of Chula
Vista)
Agency negotiators: David Rowlands, Jr., Sid Morris
Negotiating Parties: City of Chula Vista and San Diego Gas & Electric (various
representatives)
Under Negotiation: Price and terms of franchise conveyance
ADJOURNMENT to the Regular Meeting of April 27, 2004, at 6:00 p.m. in the Council
Chambers.
Page 8 - Council Agenda April 20, 2004
AMENDED
þ..\)O?'\O~
ORDINANCE NO. - ~~G þ..~\)
~t.þ..\)
ORDINANCE OF THE CITY COUNfSUC/Q~~ CITY OF
CHULA VISTA AMENDING SECTION 19.54.020 AND
ADDING SECTIONS 19.58.148 AND 19.58.245 OF THE
CHULA VISTA MUNICIPAL CODE TO ALLOW AND
REGULATE CERTIFIED FARMERS MARKETS AND
AMBULANCE SERVICES
WHEREAS, the City of Chula Vista has been approached by an organizer of farmer's
markets who is interested in establishing such an event at Southwest College; and
WHEREAS, the Chula Vista Municipal Code does not currently have specific regulations
for this unique method of selling food; and
WHEREAS, the City Council believes that well regulated certified farmers' markets can
be of benefit to the community; and
WHEREAS, small scale ambulance dispatch service offices disbursed to a variety of
locations are necessary to provide an adequate emergency response system for the City of Chula
Vista; and
WHEREAS, the Environmental Review Coordinator has determined that the proposed
ordinance amendment is exempt pursuant to Section 15060(c)(3) of the State CEQA Guidelines;
and
WHEREAS, the Planning Commission held a duly noticed public hearing on March 10,
2004, and has forwarded a recommendation to the City Council to adopt the proposed
amendments and additions to the City's Zoning Ordinance.
NOW, THEREFORE, the City Council of the City of Chula Vista does hereby ordain:
SECTION I. That Section 19.54.020 of the Chula Vista Municipal Code is amended to read as
follows:
19.54.020 Designated. Limitations and Standards.
The following uses may be considered for location in any zone, subject to the provisions set forth
herein, and additional conditions set forth in Chapter 19.58 CVMC (references indicated for
uses):
A. Borrow pits and quarries for rock, sand and gravel;
B. Campgrounds: See CVMC 19.58.040;
C. Cemeteries: See CVMC 19.58.080;
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Ordinance No.
Page 2 of 5
D. Colleges, universities, private schools, and elementary and secondary public schools;
E. Columbariums, crematoriums and mausoleums; provided, that these uses are specifically
excluded from all R zones unless inside of a cemetery: See CYMC 19.58.080;
F. Churches: See CYMC 19.58.110;
G. Dumps, public or private;
H. Hospitals, including, but not limited to, emergency, general, convalescent, rest homes,
nursing homes (for the aged, crippled, and mentally retarded of all ages), psychiatric, etc.:
See CYMC 19.58.110.
Further, approval shall not be granted until the following findings can be made (homes for
mentally retarded children):
1. The size of the parcel to be used shall provide adequate light and air in proportion to the
number of residents,
2. The location of windows and open play areas shall be so situated as to not adversely
impact adjoining uses,
3. Spacing between these facilities shall be such that the character of the neighborhood is
not affected by the grouping of these homes;
I. Mortuaries: See CVMC 19.58.080;
J. Establishments or enterprises involving large assemblages of people or automobiles, as
follows; provided, that these uses shall be deemed to be generally undesirable in the R zones:
1. Airports and heliports: See CVMC 19.58.180,
2. Amusement parks and amusement enterprises: See CVMC 19.58.040,
3. Arenas: See CVMC 19.58.040,
4. Fairgrounds: See CVMC 19.58.040,
5. Museums,
6. Open air theaters, except drive-in theaters: See CVMC 19.58.120(B),
7. Race tracks and rodeos: See CVMC 19.58.040,
8. Recreational centers, commercially operated: See CVMC 19.58.040,
:;2 ~d-
Ordinance No.
Page30f5
9. Stadiums,
10. Shooting clubs: See CVMC 19.58.290,
11. i\mbulaHce service (excluded from all residential zones UBless locat@d within a hospital I
complex);
K. Golf courses: See CVMC 19.58.090;
1. Passenger stations for rail or bus travel;
M. Public and quasi-public uses;
N. Radio or television transmitters;
O. Trailers (commercial coaches): See CVMC 19.58.330;
P. Senior housing developments: See CVMC 19.58.390;
Q. Recreational vehicle storage yards: See CVMC 19.58.400;
R. Off-site advertising signs: See CVMC 19.58.225;
S. Water distribution facilities: See CVMC 19.58.420.
L- Certified farmers' markets: See CVMC 19.58.148. I
U. Ambulance Services: See CVMC 19.58.245.
Conditional use permit applications for the uses listed in this section shall be considered and I
approved by the following body or official. The zoning administrator shall approve all
ambulances services uses. The planning commission shall approve~ campgrounds,
recreational vehicle storage yards, churches, amusement arcades and centers, trailers
(commercial coaches), water distribution facilities and borrow pits of not more than two acres.
shall b@ considered by tIhe city council, subsequent to its receipt of recommendations thereon
from the planning commission, shall approve all other unclassified uses not mentioned in this
paragraph.
)--3
Ordinance No.
Page40f5
SECTION II. That Section 19.58.148. is hereby added to Chapter 19 of the Chula Vista
Municipal Code to read as follows:
19.58.148 Certified Farmers' Markets
"Certified farmers' market" means a retail sales operation, generally outdoors, selling
predominantly fresh produce and/or flowers which is subject to the certification regulations of
the State of California Department of Agriculture, Weights and Measures, and the County of San
Diego's Department of Environmental Health.
A certified farmers' market shall operate under the following rules:
A. Operational requirements.
1. A farmers' market shall operate no more than once a week, with the day and hours of
operation established by the conditional use permit.
2. The sales area shall maintain a 25-foot setback from the street.
3. The market shall be located on a paved surface, except for areas used for animal rides.
4. The sales area shall be kept in a neat and well-kept manner at all times.
B. Signs. The operator of a farmers' market shall obtain approval of a planned sign program for
all signs. The development and approval of the planned sign program shall comply with the
provisions of CVMC 19.60.050 and the following:
1. Temporary signs, whether a part of or not part of the planned sign program, identifying
the farmers' market and hours thereof may only be displayed during the event, and not
more than four (4) hours before and one (1) hour after said event.
2. Pennants may be used only for safety and precautionary purposes.
3. Price signs may be used only when of a size and location as to benefit the pedestrian
shopper and not passing vehicles.
C. Required conditions. The conditional use permit shall include requirements or standards for
the following:
1. Live animals, live entertainment or rides if any are proposed.
2. On- and off-site security and traffic controls.
3. Emergency access provisions.
4. Restrooms.
5. Waste management and recycling.
6. The initial term of a certified farmers' market use permit shall be for a period not to
exceed one year. Any extension or renewal of said use permit must be heard and acted
upon by the city council, unless the city council expressly delegates such authority to the
Ql<lIlIl!IIg.(;()lllmission.
D. Parking. A certified farmer's market shall provide customer parking at a ratio of one space
per 200 square feet of the maximum shopping area proposed. The term "shopping area"
d~tf
Ordinance No.
PageS ofS
includes the area occupied by produce stands, vendor storage, walkways and aisles. If
adequate parking is not available on-site, the operator shall provide off-site parking within
300 feet of the market area as measured along permanently available pedestrian routes. Said
off-site parking shall be clearly identified as parking for the farmers market, including signs
at the market directing patrons to the offsite parking location.
E. If a certified farmers' market is located in a residential zone, it must be on property used
primarily for public or quasi-public uses.
F. Any other conditions of approval set forth in the conditional use permit.
SECTION III. That Section 19.58.245. is hereby added to Chapter 19 of the Chula Vista
Municipal Code to read as follows:
19.58.245 Ambulance Services
Ambulance services may be located in any zone. Ambulance services can be incorporated into a
hospital complex or other govemmental facility. When approving a conditional use permit for
ambulance services in a residential zone that is not part of a hospital complex and not located in
a federal, state or local govemment facility, the planning commission shall incorporate the
following conditions:
A. The service must be limited to the staging and dispatching of one ambulance from a
residential structure or unit.
B. At least three dedicated parking spaces for an ambulance and two employees are required.
The parking spaces shall be on-site and meet City standards for size, paving, access and
screenIng.
C. Except for shift changes and periodic inspections by managers, no more than three
employees shall be on-site at any given time.
D. Any other requirements the planning commission deems appropriate to minimize impacts on
the residential neighborhood.
Fleet maintenance or the storing of multiple ambulances shall not be allowed in a residential
zone, even if the use is part of a hospital complex or located at a government facility. Vehicles
that are on-call shall not be considered "stored."
SECTION IV. This Ordinance shall take effect and be in full force on the thirtieth day from and
after its adoption.
Submitted by Approved as to form by
Ü eM.--- "7, (4 c:...-...-. .-.
James D. Sandoval, AICP Ann Moore
Planning and Building Director City Attorney
;2-6
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ORDINANCE NO'-----r:§:.CO~O ~t.P;,O
AN ORDINANCE OF THE CITY OF CHULA VISTA, CALIFORNIA
AMENDING ORDINANCE 2579, RELATING TO INTERIM RE-SR125
DEVELOPMENT IMP ACT FEE
WHEREAS the City's General Plan Land Use and Circulation Elements
require adequate, safe transportation facilities be available to accommodate the
increased traffic created by new development; and
WHEREAS, the City Council determined that potential delays in the
construction of State Route 125 (SR125) by Caltrans or others will adversely
impact the City's ability to accommodate said increased traffic; and
WHEREAS, Ordinance 2579 established an Interim Pre-SR125
Development Impact Fee which recognized the importance of State Route 125 to
the City's circulation system in the Eastern Territories and levied a fee on new
development to pay for an interim facility in the event State Route 125 could not
be built; and
WHEREAS, State Route 125 has received financing and is now under
construction.
NOW, THEREFORE, the City Council of the City ofChula Vista does
ordain as follows:
SECTION I: FINDINGS
The City Council finds that the construction of State Route 125 will
provide a greater benefit in accommodating the increased traffic than will
construction of an interim facility within the general SR125 corridor which has
limited traffic capacity; and,
The City Council finds that the construction of SR125 is no longer delayed
and has began construction; and,
The City Council finds that collecting the fees from the Interim Pre-SR125
Development Impact Fee Program is no longer needed to protect the public's
health, safety, and welfare or to assume effective implementation of the City's
General Plan because of the progress of construction ofSR-125; and
SECTION 2: Ordinance 2579, is hereby amended to add a new paragraph as
follows:
The City shall not collect interim SR125 fees based upon the
findings set forth herein. If the findings are no longer valid the
City shall have the discretion to reinstate said fees in accordance
with the requirements of state law. If the fee is reinstated, funding
received from the reinstated fees will be used solely for the
purposes set forth in Ordinance 2779, Section I(c) I through 5.
SECTION 3 Ordinance 2579, Section 1 (c), Establishment of Fees, is hereby
amended to add a new paragraph as follows:
6. To advance the construction or financing of transportation
enhancing projects or transportation programs related to SR-125.
SECTION 4: 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 time period as
established by law.
In accordance with Government Code Section 66020(d)(I), the
ninety-day approval period in which parties may protest begins
upon the effective date of this ordinance.
SECTION 5: Those portions of Ordinances 2579, 2759, and 2770 not amended
by this ordinance.
SECTION 6: This ordinance shall take effect and be in full force on the thirtieth
day from and after its adoption.
Presented by Approved as to fonTI by
~
JACK GRIFFIN Ann Moore
DIRECTOR OF GENERAL SERVICES City Attorney
JAttomcyIO,dinanccIO,.dinancc htte"m P'c-SRI25
.3
COUNCIL AGENDA STATEMENT
Item ~
Meeting Date 4/20/04
ITEM TITLE: Ordinance decreasing the existing speed limit on Albany A venue between
Orange Avenue and Main Street to 25 mph
SUBMITTED BY: Director of General Services/City Engineer ~
REVIEWED BY: City Manager~~ 9-¡/ (4/5ths Vote: Yes- NoX)
California Vehicle Code (CVC) Section 40803 requires that existing speed limits be verified every seven
(7) years and increased or decreased as needed. A recent Engineering and Traffic Survey for Albany
Avenue between Orange Avenue and Main Street was completed which recommends decreasing the
existing speed limit on this roadway to 25 mph.
RECOMMENDATION: That Council adopt the ordinance.
BOARDS AND COMMISSIONS: The Safety Commission, at their meeting of March 11,2004, voted to
concur with staffs recommendation to decrease the existing speed limit on this roadway to 25 mph.
DISCUSSION:
Albany A venue is a north-south street in the Montgomery area that runs between Orange Avenue and Main
Street west of Hilltop Drive. The street is currently posted with a 30 mph speed limit. A recent survey of
the roadway was completed which recommends decreasing the speed limit on this street to 25 mph.
Speed limits should be established at or below the 85th percentile speed in increments offive (5) mph. The
85th percentile speed is defined as the speed at or below which 85 percent ofthe traffic is moving. Speed
limits set in this manner provide law enforcement officers with the means to control drivers who will not
conform to what the majority considers reasonable and prudent.
In accordance with the California Vehicle Code the existing speed limit is verified every seven (7) years,
and increased or decreased depending on the results of the survey investigation. The latest survey, which
will be valid through October 6, 201O,justifies reducing the speed limit based on the 85th percentile speed,
the design speed of the vertical curve, the accident rate, and the land uses along the segment.
Therefore, based on the provisions of the California Vehicle Code, and pursuant to authority under Chula
Vista Municipal Code Section 10.48.020 titled "Established Speed Limits In Certain Zones", and the
Engineering and Traffic Surveys, the City Engineer recommends that the speed limit on Albany Avenue
between Orange Avenue and Main Street be decreased from the existing 30 mph speed limit to 25 mph.
'1-1
Page 2, Item-
Meeting Date 4/20/04
Upon approval of the proposed speed limit by City Council, Schedule X of the register maintained in the
office of the City Engineer will be revised to include the following information:
10.48.020 Schedule X - Established Speed Limits in Certain Zones - Designated
Name of Street Beginning At Ending At Proposed Speed Limit
Albany Avenue Orange Avenue Main Street 25 M.P.H.
The existing characteristics for Albany Avenue are shown in the following table:
Se!!ment Limits Oran!!e Avenue to Main Street
Len!!th/Width 0.46 mi. /40'
Classification Residential Collector
A vg. Daily Traffic 2,998 (2002)
-(Year)
Exist. Sneed Limit 30 mph
8Sth% Sneed 29 mph
Number of Lanes 2
Striping School crosswalks crossing Albany Avenue at Zenith Street and
Montgomerv Street
On-Street Parkin!! Allowed
Land Use Single family residential on the west side, a park, an elementary
school, and a mobile home park on the east side
Horizontal Tangent
AIÌlmment
Vertical Alignment A vertical curve exists between Anita Street and Tremont Street,
which meets the desil!tl standard for a desil!tl speed of 25 mph
Accident Rate: 3.25/3.05
Se!!ment / State (per million vehicle miles)
FISCAL IMPACT:
The cost to install signs and pavement legends is approximately $550, which is included in the Public
Works Operations operating budget.
Attachments: Engineering Traffic Survey
Radar Speed Survey
Aerial
J:\EngineerIAGENDAlAlbany speed Orange to Main.sm.doc
Rev. 4/7/2004 8:05 AM
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SPEED LIMIT - ENGINEERING/TRAFFIC SURVEY
STREET: Albanv Avenue
LIMITS: Orange Avenue to Main Street
Length of Segment (ft): 2.475' (0.469 mi)
Existing Posted Limit (mph): 30 mph
SUMMARY OF SPEED SURVEYS
Segment: 0ran2e Ave. to Main St.
Date Taken: 10/ 06 / 2003
No. ofVehicIes on Sample (cars): 100
85" Percentile (mph): 29 IDDh
Range of Speeds Recorded (mph): 16 - 36 IDDh
ROADWAY CHARACTERISTICS
Width (ft): 40' curb to curb.
Total No. of Lanes: 2 lanes (1 per direction).
Horizontal Alignment: Tangent.
Vertical Alignment: GL = -14.20%. G, = 1.93% creating a grade difference ofl6.13% over a length of
390' producing a design speed of25 mph between Anita St. and Tremont St.
TRAFFIC CHARACTERISTICS
Average Daily Traffic: 2.998 (2002)
On-Street Parking: Allowed along both sides of the entire length of segment.
Special Conditions: Single-familv dwellings with direct-drivewav access. Citv park on east side
between Tremont St. and Montgomery St. Otav Elementary School on east side
at Montgomery St. Mobile home park on east side between Carver St. and Anita
St.
Accident History: The accident rate at this segment is 3.25 per million vehicle miles. which is
higher than the average rate of3.05 for similar highways in the State of
California.
SURVEY RESULTS
Study was Prepared by: Leia B. Cabrera
Date: 10 / 06/2003
Recommendation: Reduce speed limit to 25 mph based
on 85th percentile speed. vertical
alignment. special conditions and
accident rate.
Date Recommendation Approved: /~Zi6~3
By: M led A1-Ghafrv. P.E..T.E.
Approved Speed Limit (mph): 25 mph
Per CVC 40803, Survey Expires: 10/06/2010
J:\lEngin=lTRAFFIClENGINEERING & TRAFFIC SURVEYSlSpced Limit SurveyslAlbany Ave (Orange - Main).doc
,+-3
CITY OF CHULA VISTA - VEHICLE SPEED SURVEY
SEGMENT UNDER STUDY Albanv Ave.
DATE 10/06/2003 SURVEY SITE Oranqe Avenue to Main Street POSTED SPEED 30 moh
TIME START -1.1J.L AM TIME END J.1AL AM WEATHER Cloudy
DIRECTION: North =0 South =/
MPH 5 10 15 20 TOTAL % CUM%
40
39
38
37
36 0 1 1 100
35
34 0 1 1 99
33
32 0 0 0 3 3 98
31 0 0 I 3 3 95
30 0 0 0 0 0 I I 7 7 92
28 0 0 I 3 3 80
27 0 0 0 / I / / I I 9 9 77
26 0 0 0 0 / 5 5 68
25 0 0 0 0 I I I I I / I 11 11 63
24 0 0 0 0 / I I I I I I I 12 12 52
23 0 0 0 0 I / / I / 9 9 40
22 0 0 0 0 / / 6 6 31
21 0 0 0 I / 5 5 25
20 0 0 0 I I I I I I 9 9 20
19 I I I I 4 4 11
18 0 / / 3 3 7
17 0 0 2 2 4
16 / / 2 2 2
15
14
13
12
11
10
9
8
7
6
5
4
3
2
1
RECORDER: Leia Cabrera TOTAL NUMBER OF VEHICLES: 100
H:IHOMEIENGINEERITRAFFICISpeed_SurveyslAlbany Ave (Orange - Main).xls
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ORDINANCE NO. -
ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA DECREASING THE EXISTING SPEED LIMIT
ON "ALBANY AVENUE BETWEEN ORANGE AVENUE AND
MAIN STREET TO 25 MPH
WHEREAS, based on the provisions of the California Vehicle Code, Engineering and
Traffic Surveys, and pursuant to authority under Chula Vista Municipal Code Section 10.48.020,
titled "Established Speed Limits In Certain Zones," the City Engineer, in the interest of
minimizing traffic hazards and for the promotion of public safety, has recommended that the
speed limits on Albany A venue between Orange A venue and Main Street decreased from the
existing 30 mph speed limit to 25 mph; and
WHEREAS, this recommendation and other information in the City Engineer's report has
been fully considered by the City Council; and
WHEREAS, the Safety Commission of the City of Chula Vista, at its meeting of March
11, 2004, voted to concur with the City Engineer's determination stated above.
NOW, THEREFORE, the City Council of the City of Chula Vista does hereby ordain as
follows:
SECTION I: A 25 mph speed limit for all segments of Albany Street between Orange Avenue
and Main Street is hereby established.
SECTION II: 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 information:
Chu1a Vista Municipal Code Section 10.48.020 - SCHEDULE X
ESTABLISHED SPEED LIMITS IN CERTAIN ZONES
Name of Street Beginning At Ending At Speed Limit
Albany Avenue Orange Avenue Main Street 25 MPH
SECTION III: 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
~~ (,r-4--~
Jack Griffin Ann Moore
Director of General Services City Attorney
J:Attomey\OrdinancelAlbany Ave speed limit
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COUNCIL AGENDA STATEMENT
Item '5
Meeting Date 4/20/04
ITEM TITLE: Ordinance establishing a 25 mph speed limit on Paseo Del Rey
between East "H" Street and Lazo Court
SUBMITTED BY: Director of General Services/City Engineer ¥
REVIEWED BY: City Manageq£ 9V (4/5ths Vote: Yes- NoX)
The California Vehicle Code authorizes the establishment of local speed limits based on an
Engineering and Traffic Survey. A recent survey for the currently unposted portion of Pas eo del Rey
between East "H" Street and Lazo Count was completed which recommends establishing a 25 mph
speed limit on this roadway.
RECOMMENDATION: That Council adopt the ordinance.
BOARDS AND COMMISSIONS: The Safety Commission, at their meeting of March 11,2004,
voted to concur with staffs recommendation to establish a 25 mph speed limit on this roadway.
DISCUSSION:
Paseo del Rey is a north-south street, which leads into the Rancho del Rey shopping center located
north of East H Street. There is currently no speed limit posted on the portion of Pas eo del Rey from
East H Street north to Lazo Court. Staff has surveyed the roadway and recommends establishing a
25 mph posted speed limit in this area.
Speed limits should be established at or below the 85th percentile speed in increments of five (5)
mph. The 85th percentile speed is defined as the speed at or below which 85 percent ofthe traffic is
moving. Speed limits set in this manner provide law enforcement officers with the means to control
drivers who will not conform to what the majority considers reasonable and prudent.
In accordance with the California Vehicle Code, the City is authorized to establish speed limits based
on the results of an Engineering and Traffic Survey. A recent survey for Paseo del Rey, which will
be valid through November 17, 2010, recommends establishing a 25 mph speed limit on this
roadway based on the 85th percentile speed and the design speed ofthe horizontal and vertical curves
along the segment.
Therefore, based on the provisions of the California Vehicle Code, and pursuant to authority under
Chula Vista Municipal Code Section 10.48.020 titled "Established Speed Limits In Certain Zones",
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Page 2, Item~
Meeting Date 4/20/04
and the Engineering and Traffic Survey, the City Engineer recommends that a 25 mph speed limit be
established on Paseo Del Rey between East "H" Street and Lazo Court.
Upon approval of the proposed speed limit by City Council, Schedule X ofthe register maintained in
the office of the City Engineer will be revised to include the following information:
10.48.020 Schedule X - Established Speed Limits in Certain Zones - Designated
Name of Street Beginning At Ending At Proposed Speed Limit
Paseo Del Rey East "H" Street Lazo Court 25 M.P.H.
The existing characteristics for Paseo del Rey are shown in the following table:
Striping
On-Street Parkin
Land Use
Horizontal Ali nment
Vertical Ali nment
Accident Rate:
Se ment / State
FISCAL IMPACT:
The cost to install signs and pavement legends is approximately $1,250, which is included in the
Public Works Operations operating budget.
Attachments: Engineering Traffic Survey
Radar Speed Survey
Aerial
J:\EngineerIAGENDAlPaseo Del Rey Speed.sm.doc
Rev. 4/7/2004 7:51 AM
5:;;;"
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SPEED LIMIT - ENGINEERING/TRAFFIC SURVEY
/
STREET: Paseo Del Rev
LIMITS; East "H" St - Lazo Ct
Length of Segment (ft): 1.270 feet (0.24 miles)
Existing Posted Limit (mph): Not Posted
SUMMARY OF SPEED SURVEYS
Segment: E "H" St to Lazo Ct
Date Taken: 11/17/2003
No. of Vehicles on Sample (cars): 100
85th Percentile (mph): 25 mDh
Range of Speeds Recorded (mph): 15-28 mph
ROADWAY CHARACTERISTICS
Width (ft): Varies from 52' to 64' (curb to curb)
Total No. of Lanes: 4 total lanes (2 Der direction with dual left-turn lanes at the northbound apvroach
to Plaza Ct and at the southbound aDDroach to E "H" St.)
Horizontal Alignment: Minimum radius of200'over a length of281.87' along the centerline Droduces a
design speed of 25 moho
Vertical Alignment: G¡ = 0.86% and GI = 5.02% over 150' VC Droduces a design sDeed of 33 moho
TRAFFIC CHARACTERISTICS
Average Daily Traffic: 15.400 (1999)
On-Street Parking: Parking is Drohibited.
Special Conditions: Lazo Ct and Plaza Ct lead to businesses such as The Home Deoot and
Brunswick Bowling Allev. There is also direct drivewav access to commercial
centers east of Pas eo Del Rev.
Accident History: The accident rate at this segment is 2.22 accidents Der million vehicle miles.
which is lower than the average rate of 3.35 for similar highwavs in the State of
California.
SURVEY RESULTS
Study was Prepared by: Kristin Steiner -~~"
"~;"¡':ËS~
Date: 12/17/2003 / ~....., :""'¡/¡;~:\,
Recommendation: Establish 25 MPH sDeed limit. )"')/~4è~'~.\
Date Recommendation Approved: ?'K~~r/~ âf2? ,---, ~;;'~~;~J
By: aied Al-Ghafrv. P.E.. T.E. .., ",'"" \~
Approved Speed Limit (mph): 25 MPH \,';::..\.,~J:~;;
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Per CVC 40803, Survey Expires: 11/17/2010 \"",,\, "í/
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CITY OF CHULA VISTA - VEHICLE SPEED SURVEY
SEGMENT UNDER STUDY Paseo Del Rev - (E "H" SI - Lazo CI\
DATE 11/17/2003 SURVEY SITE 150' N of Plaza Ct. POSTED SPEED 25 MPH
TIME START 9:40 am TIME END 10:30am WEATHER Clear
DIRECTION:_S- =0 _N- =/
MPH 5 10 15 20 TOTAL % CUM%
45
44
43
42
41
40
39
. 38
37
36
35
34
33 '
32
31
30
29
28 0 \ \ 3 3 100
27 \ \ \ 3 3 97
26 0 0 0 0 \ \ 6 6 94
24 0 0 0 0 0 \ \ \ \ \ \ \ 12 12 78
23 0 0 0 0 0 0 0 0 \ \ \ \ \ \ 14 14 66
22 0 0 0 0 0 0 \ \ \ \ 10 10 52
21 0 0 0 0 0 \ \ \ \ 9 9 42
20 0 0 0 0 0 0 \ \ \ \ \ 11 11 33
19 0 0 0 0 0 \ \ \ \ \ 10 10 22
18 0 0 0 \ \ \ 6 6 12
17 0 0 2 2 6
16 0 \ 2 2 4
15 0 \ 2 2 2
14
13
12
11
10
9
8
7
6
RECORDER: Kristin Steiner TOTAL NUMBER OF VEHICLES: 100
H:\HOME\ENGINEER\TRAFFIC\Speed_Surveys\Paseo Del Rey (E H SI - Laze CI).xls
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ORDINANCE NO. -
ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA ESTABLISHING A 25 MPH SPEED LIMIT ON
P ASEO DEL REY BETWEEN EAST "H" STREET AND LAZO
COURT, THEREBY AMENDING SCHEDULE X OF A
REGISTER MAINTAINED IN THE OFFICE OF THE CITY
ENGINEER.
WHEREAS, based on the provisions of the California Vehicle Code, and pursuant to
authority under Chula Vista Municipal Code Section 10.48.020, titled "Established Speed Limits
in Certain Zones," the City Engineer has determined that, in the interest of minimizing traffic
hazards and for the promotion of public safety, the speed limit on Paseo Del Rey between East
"H" Street and Lazo Court be established at 25 MPH; and
WHEREAS, this recommendation and other information in the City Engineer's report has
been fully considered by the City Council; and
WHEREAS, the Safety Commission of the City of Chula Vista, at its meeting of March
11, 2004, voted to concur with the City Engineer's determination stated above.
NOW, THEREFORE, the City Council of the City of Chula Vista does hereby ordain as
follows:
SECTION I: A 25 mph speed limit on Paseo Del Rey between East "H" Street and Lazo Court
is hereby established.
SECTION II: 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 information:
Chula Vista Municipal Code Section 10.48.020 - SCHEDULE X
ESTABLISHED SPEED LIMITS IN CERTAIN WNES
Name of Street Beginning At Ending At Speed Limit
Paseo Del Rey East "H" Street Lazo Court 25 MPH
SECTION III: 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
Da-- "7. ~~ tf-t<-
Jack Griffin Ann Moore
Director of General Services City Attorney
J:AttomeyIO,dinancelP"eo Del Rey speed limitdoc 5-(c;
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COUNCIL AGENDA STATEMENT
Item~
Meeting Date: 4/20/04
ITEM TITLE: A) Resolution Approving the Joint Use Agreement with the
San Diego County Water Authority.
B) Resolution Approving the Joint Use Agreement with the
SDG&E.
C) Resolution Approving the Final Map of Chula Vista Tract
No. 01-11, Otay Ranch Village 11 "A" Map No.2; accepting on
behalf of the City of Chula Vista the various public streets and
easements; approving the Subdivision Improvement Agreement for
the completion of improvements; and approving a Supplemental
Subdivision Improvement Agreement for Chula Vista Tract No. 01-
II, Otay Ranch Village II "A" Map No.2.
D) Resolution Approving the designating and setting aside of
certain City-owned real property as right-of-way for street and public
utility purposes for Hunte Parkway.
E) Resolution Approving the Grant of Easements and
Maintenance Agreement for Otay Ranch Village 11 "A" Map No.2.
SUBMITTED BY: Director of General Services/City Engineer &-
r
REVIEWED BY: City Manager (:) ~;) \" (4/5ths Vote: Yes_NoXJ
Approval of joint use agreements with the San Diego County Water Authority and SDG&E will
provide the necessary rights of way to proceed with approval of the Final "A" Map for Brookfield
Shea Otay' s Village 11, Windingwalk. This development will provide 369 multifamily residential, a
small amount of commercial, and "super block" lots that can be later subdivided with "B" maps.
RECOMMENDATION: That Council adopt the resolutions. The first resolution must occur
before or concurrent with Council action on the second resolution.
BOARD/COMMISSIONS RECOMMENDA nONS: None
DISCUSSION:
On October 23,2001, Council approved the Tentative Subdivision Map for Tract No. 01-11, Otay
Ranch Village 11 (Resolution 2001-364). Village 11 is generally located south of Olympic Parkway
between Hunte Parkway and Eastlake Parkway (see Exhibits 1 and 2).
The Final "A" Map creates two multifamily planning areas -- R-24 (169 units) and R-25 (200 units).
It also creates other "super block" lots that the developer intends to further subdivide with "B" maps
(Exhibit 2), and a number oflots for open space and other public uses. The development is primarily
residential except for one planning area, MU-l, which is zoned mixed use for commercial and
residential.
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Page2,Item~
Meeting Date: 4/20/04
Residential! Open Space, Public
Final Man Commercial Lots UtilitieslPublic Use Lots Total Acreal!e
Otay Ranch Village 11 II 13 311.2 acres
"A" Map No.2
The final map for the subdivision has been reviewed by the Engineering Department and Department
of Planning & Building and found to be in substantial conformance with the approved Tentative
Map.
Approval of the Final Map constitutes:
. Acceptance by the City of all general utility and access easements, drainage and access
easement, sewer easement, landscape buffer and access easements, and sight visibility
easements within the subdivision.
. Acceptance, on behalf of the public, of the following streets:
0 Windingwalk Street
0 Hidden Path Drive
0 Birch Road
0 Discovery Falls Drive
0 Crossroads Street
0 Portions of Eastlake Parkway
0 Portions of Hunte Parkway
Approval of the final map does not constitute acceptance ofthe Open Space lots, since the Village 11
Homeowners' Association will maintain these. At this time, the City is only acknowledging the
offer of dedication of the lots on the final map; however, the offer of dedication will remain open and
subject to future acceptance by the City (California Government Code Section 7050).
The following agreements related to this Final Map approval have been reviewed by staff, and by the
City Attorney as to form.
. Joint Use Agreements
The Countv Water Authoritv (CWA) owns two aqueducts that bisect Village 11 within two
existing exclusive easements. Two roadways which are planned to cross those easements cannot
proceed without CW A approval. Currently the City has a sewer line crossing agreement with
CW A for the easement at Crossroads Street. The form of the joint use agreement is identical to
the last joint use agreement approved by Council for the Windingwalk street crossing.
Agreement provisions require the City to reconstruct City roads within the easements after the
CW A improves their existing aqueducts or installs a new aqueduct.
6
Page3,Item~
Meeting Date: 4/20/04
SDG&E also has major facilities parallel to the CW A easement. Approval of this joint use
agreement provides the terms and conditions for the City to maintain right of way within the
existing SDG&E easement.
. City-owned real property as right-of-way
At issue is 0.251 acres of land where Hunte Parkway encroaches upon the existing University
property to the south of Village 11 (see Attachment B). A portion of this area also lies within
both the CW A easement and the SDG&E easement. Approval of the resolution will designate
this V. acre of City-owned property as right-of-way.
Final Map-related agreements
1. Supplemental and Subdivision Improvement Agreement: Requires the developer to install
public facilities associated with the project, and obligates the developer to comply with any
unfulfilled Tentative Map conditions. It is important to note that since the entire Village II
project depends on completion of the Salt Creek Sewer, the developer has agreed to limit
development to 533 final inspections until the Salt Creek Sewer main is complete.
2. Grant of Easements and Maintenance Agreement: Sets forth the obligations of the
Homeowners' Association to maintain landscaping within the public right of way.
3. Amended Slope and Drainage Maintenance Agreement: Sets forth the developer obligation
to maintain the private temporary slopes along Eastlake Parkway until future development
occurs, and a permanent maintenance district forms.
PAD Fee agreement
Brookfield Shea Otay LLC has met its initial parkland acquisition obligation through the dedication
of the neighborhood park site, Windingwalk Park. Park construction documents are currently being
prepared for the site. Construction of the neighborhood park is anticipated to occur next quarter. The
developer's additional parkland dedication and development obligation will be met either through
the payment of in-lieu fees at subsequent final map stages for single family dwelling units, or prior to
building permit issuance for multi-family and condominium dwelling units.
FISCAL IMPACT: There are no impacts to the General Fund. Staff costs associated with
processing improvement plans, final maps and associated agreements will be reimbursed from the
developer deposit account.
Exhibits: I. Location plat for Otay Ranch Village II Project
2. Plat for Otay Ranch Village II "A" Map No.2
3. Developer's Disclosure Statement
Attachments: A. Designating and Setting Aside of Certain City-Owned Real Property as Right-of-Way
B. Joint Use Agreement with San Diego County Water Authority and SDG&E
C. Grant of Easement & Maintenance Agreement
D. Amended Slope & Drainage Maintenance Agreement
J:IEngineerl!ANDDEV\ProjectsIOtayRanch Village 11 IA map No.210R-ó 1 OF CAS.doc
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ATTACHMENI ~
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Brookfield Shea Olaf, LLC
6-4 ._"- - - - -"-
CHULA VISTA TRACT NO. 01-11
OTAY RANCH
VILLAGE 11 "A" MAP NO. 2
ATIACHMENT ~~
"A"
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SCALE 1 "= 800'
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INGI""'NG 50, 0,,", C. '2111
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Ro\O341\&Mop\AX A.IIAP NO 2 CITY OVERlAWWG[ 1220}Mor-25-2004c¡Oc44 - WO, 2366-163
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ATIACHMENT
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- Planning & Building Department
CIlY OF Planning Division I Development Processing
CHUIA VISTA
APPLICATION APPENDIX B
Disclosure Statement
Pursuant to Council Policy 101-01, prior to any action upon matters that will require discretionary action by the Council,
Planning Commission and all other official bodies of the City, a statement of disclosure of certain ownership or 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. ., 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 in stment in the business (corporation/partnership) entity.
t-J
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.
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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.
~ ,L¡tj','~
, I,
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5. Has any perso ' associated with this contract had any financial dealing~ 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 contributi~f 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?
276 Fourth Avenue Chula Vista California 91910 (619) 691-5101
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-11-
Planning & Building Department
CIlY OF Planning Division I Development Processing
CHUlA VISfA
APPLICATION APPENDIX B
Disclosure Statement - Page 2
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- NoÄ
If Yes, which official" and what was the nature of item provided?
Date: 3!2-~I?oZ¡4
Print or
. Person is defined as: any individual, firm, co-partnership, joint venture, association, social club, fraternal
organization, corporation, estate, trust, receiver, syndicate, any other county, city, municipality, district, or other
political subdivision, -or any other group or combination acting as a unit.
.. Official includes, but is not limited to: Mayor, Council member, Planning Commissioner, Member of a board,
commission, or committee of the City, employee, or staff members.
276 Fourth Avenue Chula Vista California 91910 (619) 691-5101
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bJ.. San Diego County Water Authority
~ 4677 Overland Avenue. San Diego, California 92123.1233
(8581 522.6600 FAX [858) 522-6568
www.sdcwa.org
April 15,2004
Tom Adler
City of Chula Vista
276 Fourth Avenue
Chula Vista, CA 91910
Re: Tentative Map: Chula Vista Tract No. 01-11 and 01-11A, Ph2
Dear Mr. Adler:
Please be advised that the land division shown on the above-referenced map will
not unreasonably interfere with the existing San Diego County Water Authority (Water
Authority) easements recorded as listed below:
San Diego County Water Authority easement per Doc. Rec. March 26, 1959 in Book
7568, Page 585 OR
San Diego County Water Authority easement per Doc. Rec. August 4,1959 in Book 7806
Page 558 O.R.
San Diego County Water Authority easement per Doc. Rec. October 3,1983 as File No.
83-353521, O.R.
San Diego County Water Authority easement per Doc. Rec. September 3,1993 as File
No. 1993-0585949, O.R.
Pursuant to Section 66436 (a)(3)(A)(i) of the Subdivision Map Act, the signatures
of the Water Authority may be omitted from the title sheet.
Recording the said map without the Water Authority signature does not relinquish any
prior rights the Water Authority has by said easements. The Water Authority reserves the
ability to review and approve any grading, improvement, utility, or other plans that may
impact the Water Authority's rights of way or facilities.
~I~~~
Fred W. Clark, Sr.
Right of Way Supervisor
FWC/jac
R:\CDnsult\Letters\Otay Ranch Village 11 Ph2.dDC MEMBER AGENCIES
IRRIGATION DISTRICTS WATER DISTRICTS MUNICIPAL WATER DISTRICTS
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PUBLIC ~~~\,~;:"~ISTRICT . "~:~':~~~I'~~:~'~:"""
RESOLUTION NO. 2004- -
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING THE JOINT USE AGREEMENT
WITH THE SAN DIEGO COUNTY WATER AUTHORITY
WHEREAS, the alignment of a proposed sewer line construction within Crossroads
Street and Hunte Parkway encroaches upon an existing 120-foot, 80-foot, and 30-foot San Diego
County Water Authority (SDCW A) Easements; and
WHEREAS, SDCW A has approved the form of the Joint Use Agreement (JUA) with the
City of Chula Vista for the sewer easement within Crossroads Street; and
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula
Vista does hereby approve the Joint Use Agreement within the San Diego County Water
Authority Easements, 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.
Presented by Approved as to form by
~ 9-Jrt '~
Sohaib AI-Agha Ann (/
City Engineer City Attorney
JIEngineecll.ANDDEVIl'mJ,,"IOt,y Ranch Village IlIA map No2IResn.SDCWA Agceement.doc
~
THE A TT ACHED AGREEMENT HAS BEEN REVIEWED
AND APPROVED AS TO FORM BY THE CITY
ATTORNEY'S OFFICE AND WILL BE
FORMALL Y SIGNED UPON APPROVAL BY
THE CITY COUNCIL
~17'1(Y\ !()¿~
Ann Moore
City Attorney
Dated: 4~ IS . Ó Y
Joint Use Agreement with the
San Diego County Water Authority
m~_--_._m._-~
Apr-14-1DO4 04:36pm From-SDCWA +858 m 5558 T-m POD1!D!1 HOT
PLEASE RECORD THIS DOCUMENT AT NO FEE
AS IT IS TO THE BENEFIT OF THIS DISTRICT
(GOV.CODE [6103])
RECORDING REQUESTED BY AND
WHEN RECORDED, PLEASE MAIL TO:
San Diego County Water Authority
Right of Way Department
4677 Overland Avenue
San Diego, CA 92123-1233
Þ,PN # 643-070-10 and 643-612..Q1 SPACE ABOVE FOR RECORDER'S USE
JOINT USE AGREEMENT
BETWEEN THE CITY OF CHULA VISTA AND
THE SAN DIEGO COUNTY WATER AUTHORITY
This Agreement is made between the San Diego County Water Authority
(hereinafter "Authority") and the City of Chula Vista (hereinafter .City") this
day of ,200_, to allow public streets and associated Improvements
and utilities to cross the Authority's easement and right of way,
WHEREAS, Authority owns certain easements described in Exhibit "A" and shown
on Exhibit "8" and Exhibit "c" in which it has pipelines and other facilities for the
transmission of water ("Authority Easements"); and
WHEREAS, Brookfield Shea Otay, LLC (850) and the City of Chula Vista, a
Municipal Corporation (City) are the fee owners of the property that is subject to the
Authority's easements; and
WHEREAS, BSO has irrevocably dedicated to the City of Chula Vista property or
interests therein for public street, utility and appurtenant purposes, and the City has
reserved property or interests therein for public street, utility and appurtenant purposes,
both as shown on Exhibit "8" and Exhibit "C" for Crossroads Street and Hunte Parkway,
per City of Chula Vista Tract No. 01-11 (refer to the Grading and Improvement plans
reviewed and signed by the Authority - City of Chula Vista Work Order No. OR-610G
and OR-6151 and OR-6111 ; Drawing Number Series 03053 and 03100 and 03071).
which dedication is subject to the Authority's easement; and
WHEREAS, City and the Authority desire to establish the terms and conditions for
the construction, operation and maintenance of a public street and appurtenant and
associated improvements and utilities including but not limited to: stOITT1 drains, brow
ditches, sewer mains, sewer force main, water mains, reclaimed water mains, street light
improvements, traffic signal improvements, asphalt, curb, gutter, sidewalk, trails, and
landscape and irrigation improvements ("City Facilities") in, over, under and across
Authority's easement and right of way along the route particularly shown on Exhibit "8"
and Exhibit "C" ("Designated Route");
R:IROWlMgmtlJointu.e\O3\JUA 03-07BgFINALdoc 1
- --------.--------
Apr-14-2004 04:36pm From-SDCWA +B5B 522 B5BB T-12T P.003/011 HOT
NOW, THEREFORE, the parties mutually hereby agree as follows:
1. The City, Its successors in interest and assigns, may construct, operate and
maintain the City Facilities within the property subject to the Authority's Easements along
the Designated Route, under the tenns and conditions stated herein.
2. Plans for the installation of the City Facilities, including work or
improvements reasonably necessary to protect the Authority pipelines and other
structures and facilities, shall be approved by the Authority in advance of construction.
Authority's approval shall not be unreasonably withheld. City shall give written notice to
the Authority not more than 30 days nor less than 15 days before the date of
commencement of construction of the City Facilities. Authority inspectors shall have
access to the property during construction.
3. Neither this Agreement nor the construction, operation or maintenance of
the City Facilities shall, in any way, limit, alter, modify, expand, or tenninate any of the
Authority's or City's rights or obligations under the Authority's Easements or any of the
rights of the owner of the servient tenement.
4. City agrees not to interrupt the use or operation of Authority's facilities.
5. Authority shall be deemed the "party first in place" and its rights and
interests shall be prior in time and superior in title to those of City. Nothing herein
contained shall constitute a grant of easement or other interest in property by Authority
to City.
6. Following the completion of the City Facilities, whenever the Authority so
requests. the parties agree to work cooperatively to assess reasonable construction
alternatives, coordinate traffic control and otherwise manage the City Facilities as
deemed necessary by the Authority for the full exercise of the Authority's rights under
the Authority Easements. Except to the extent specifically provided in an Authority
Easement, City shall, at is sole expense and within a reasonable time established by
the Authority and agreed to by City, remove and replace, rearrange, restore or relocate
the City Facilities as may be necessary for the Authority's use imd enjoyment of its
easements. Except in the event of an emergency, Authority agrees to gi\7e City 180
days' written notice to remove and replace, rearrange or relocate the City Facility.
Plans for removal and replacement, rearranging, or relocation ofthe Facilities shall be
subject to paragraph 2, above. In the event of an emergency affecting the public health,
safety or welfare, as determined by the Authority, or in the event of either (a) City's
failure to remove and replace, rearrange, or relocate the City Facility within 180 days
after the Authority has given written notice or, (b) City's failure to remove and replace,
rearrange, or relocate the City Facifity according to a schedule approved in writing by
the Authority within 180 days after the Authority has given written notice, then the
Authority may remove the City Facility without obligation to City. This Agreement shall'
apply to City Facilities removed and replaced or restored, rearranged, or relocated
pursuant to this paragraph. Authority acknowledges that with respect to the 120-foot
wide strip of land subject to Authority Easements recorded as Document 59321,
recorded March 26, 1959, Book 7568, Page 585: Document No. 157508, recorded
R:IROVVIMgmIIJointuseIO3UUA 03..078gFINALdoc 2
" -IL
Apr-I4-2004 04:3Tpm From-SDCWA +858 5ZZ 8588 T-m P.oo4/011 HOT
August 4, 1959, Book 7806, Page 558; Final Order of Condemnation (Parcel 204-A)
recorded October 3, 1983 as Document No. 83.353521; Document No. 1993-0585949,
recorded September 3, 1993, the Authority has the obligation to restore the City
Facilities pursuant to the terms of those certain easements.
7. This A9reement shall run with the land and be binding upon both parties, its
representatives, agents, successors, and assigns.
8. The parties understand and agree that this Agreement grants only the
consent of the Authority to the activities identified under the terms and conditions stated
herein. City is responsible for acquiring any other property rights, licenses, or permits
needed to conduct the Identified activities.
9. City shall save, indemnify and hold harmless the Authority against any
liability, loss, cost, damage and expense caused by or arising from (i) an act(s) or
omission(s) of City. its employees, agents, contractors, successors and assigns or (ii) the
construction, reconstruction, location, relocation, maintenance and existence of the City
Facilities, including, but not limited to any such lass, cost, damage, liability and expense
arising from damage to or destruction of real and personal property or injury to or death of
any person; provided, however, that City duty to indemnify and hold harmless shall not
include any claims or liability arising from the established negligence or misconduct of the
Authority, its agents, officers, or employees. City shall cause the Authority, and its officers
and employees, to be named as an additional insured on any policy or policies of
insurance required by the City with respect to the construction, reconstruction, location,
relocation, maintenance or existence of the City Facilities.
10. The City Facilities shall be maintained in a safe and sanitary condition at the
sole cast, risk, and responsibility of City and its successors in interest.
11. In the event either party commences legal action against the other by reason
of an alleged breach of this Agreement or in connection with the use of the Authority's
easement and right of way, the prevailing party shall be entitled to recover court costs and
attorney's fees as set by the court. "Prevailing Party" means the party in whose favor final
judgment Is rendered.
12, Any notice required, permitted, or contemplated under this Agreement shall
be deemed given when actually delivered or when deposited in the mail, certified or
registered, postage prepaid, addressed as fallows:
TO AUTHORITY: San Diego County Water Authority
Right of Way Department
4677 Overland Avenue
San Diego, CA 92123
TO CITY: City of Chula Vi$ta
276 fourth Avenue
Chula Vista, CA 91910
R:IROWIMgmtIJointuse\O3\JUA 03.078gFINALdoc t ;/.:;
Apr-14-2004 04:37pm From-SOCWA +858 522 6668 T-127 P 005/011 H07
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be
executed by a duly authorized officer on the day and year first above written.
'-'
By: ~- -1tfr~4z/ Dated: 't~I""'-oy
i..SAN EGO COUN WATER AUTHORITY
rø William J. Rose, Director of Right of Way
By: Dated:
CITY OF CHULA VISTA
Stephen C. Padilla, Mayor
Dated: YI't/oy
Approved as to form:
By: Dated:
Ann Moore, City Attorney
City of Chura Vista
R;IROWIMgmtIJojntUS9103IJUA 03-078gFINAL.doc
Apr-14-2004 04:38pm FrDm-SOCWA +858 522 85S8 T-m P.DDS/O11 HOT
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of califo~
County of c; \.Q.q i)
On ~ before me,
D.,. .
personally appeared Q.
personally known to me
0 proved to me on the basis of satisfactory
evidence
to be the perso~ose name~s/~
subscribed to t e within instrument and
acknowledged to me that he/~ executed
~~ the same in his/Þl6r/t~ authorized
ø PAT~ICIA A. 5Tl;PHENS . cepecity((:(c, and that by hiS/~
- Comm;..!"n ff 12sno:) ~ signature on the instrument the person, or
~ . "~"~ ;~;;~~~~~~~~;~.;~c~:;~:;;~ f the entity upon behalf of which the person(.¡Jf
acted, executed the instrument.
~"'-"""-".."--' '_:-~~._.- '.." ".. ---:
Pm", No'"" So" _vo
I.
OPTIONAL
Though tho InformoUon balolN is nó/ mqu;md Þy law. n may provo valuaÞI. /0 pa""ons mlying on the docum.nt
and could plY;lvont fraudulent ",moval and ",orrachm.nl of this form /0 another document.
1 Description of Attached Documed: ;;:jj ~ C
1 Tg~T~~l)t<:,~~I~Q>~~~þ '. iJ
Doaument Date: frï& f i ~ I qðJ 1 Number of Pages: 3
1
I Signer(o) Other Than Name<j AÞove:
Capacity(ies) Claimed by Signer
Signer's Name:
0 Individual lbp 01 ,"umb ~.r.
0 Corporate Officer - Trtle(s):
I 0 Partner - 0 limited 0 General
1 0 Attorney in Fact
1 0 Trustee
1 0 Guardian or Conservator
I
,. 0 Other:
Signer Is Representing: ~CrJft
- -
" '"'" NoI"'" No"", ^"~"u"". ""D Do 3DID AVO" P.o. ."" "" . CheIOWOM. CA .""""", ",00. ND."'" Roo""" COlilbll-F".10600-B1I>ð6"
- ----~.. ----.-- ... .
Apr-14-2004 04:38pm F rom-SOCWA +85B 522 B5BB T-m P OOTlo II HOT
EXHIBIT "An REGARDING
JOINT USE AGREEMENT NO. 2003.0786
APPLICANT
City of Chula Vista
276 Fourth Avenue
Chula Vista, California 91910
OWNERS
Brookfield Shea Otay, LLC City of Chura Vista
a California Limited Liability Company 276 Fourth Avenue
12865 Pointe Del Mar Way, Suite 200 Chula Vista, California 91910
Del Mar. California 92014
EASEMENT
San Diego County Water Authority
4677 Overland Avenue
San Diego, California 92123-1233
BENEFITTED PROPERTY
Assessor's Parcel Number: 643-070-10 and 643-612-01
Authority's Parcel Number: Parcels 204, 204-A (Pipeline 3, Second Aqueduct)
Parcels 204-B (Pipeline 4E2, Second Aqueduct)
AUTHORITY PROPERTY
A strip of land 120 feet in width in a portion of Lots 9 and 10 of Otay Rancho, in the
County of San Diego. State Of California, according to Map No. 862 filed in the office of
the County Recorder of said County, February 7, 1900, more particularly described in
DocumenfNo. 59321, recorded March 26,1959, Book 7568. Page 585; in Document No.
157508, recorded August 4, 1959, Book 7806, Page 558; in Final Order of
Condemnation (Parcel 204-A) recorded October 3, 1983 as Document No. 83-353521;
and in Grant of Easement to the San Diego County Water Authority for Parcel 204-8 as
Document No.1 993-0585949, recorded September 3, 1993, all of Official Records of
said County.
PURPOSE
This agreement is granted exclusively for a public street (Crossroads Street and Hunte
Parkway) and associated improvements and utilities to cross the Authority's Second
Aqueduct right of way per City of Chula Vista Tract No. 01-11 (refer to the Grading and
Improvement plans reviewed and signed by the Authority - City of Chura Vista Work
Order No. OR-610G, OR-6111, and OR-6151; Drawing Number Series 03053, 03071, and
03100. This agreement does not authorize other construction, grading or planting
of trees within the Authority's easement.
Apr-t4-ZDD4 D4:36pm From-SDCWA +858 52Z 5568 T-127 P.DD8/Dtt HD7
EXHIBIT
NIJMBfR B~flING OISTANCE
L1 N 4tT23'17 Of: 120.00'
L2 N 40"23'17'"£ 50.00'
L3 N 4Q'2J"'"£ 70,00'
~
.
.
-
¡¡¡
IÕ\ INOIC4T£S JO.OO FOOT WIDE EASEMENT ....
~ REC. 8-04-7959 IN BOOK 7806, PAGE ~
-~ ~
( ) ~ RE:CORO DATA
@ IN/JIC4ÆS 80.00 FOOT WIDE EASEMENT PER R.O.S. 74605 ~
REC. 70-03-1983 AS ALE NO. r-.J
8J-3S3521, 0.1'1. . Fa. J/"'" I.P. WITH
DISC srAMPED I
@ IN/JIC4T£S 120.00 FOOT WIDE £AS£MENT 'LS. 3997" PER
RfIC. 09-03-7993 AS ALfI NO. ROs. 74605
. HUNS.A:KÍR3-05859"'9, O.R. . . . .
& ASSOCIATES a - '00 200 ~
SA. ."... ,.. I"""'-. -
SCALE ,"= 100
...= ::~..:-"" SHEET 1 OF 2
---11M
I/: ...... .... o:sø-J$
/.ç.-17
--..- .._------~
Apr-14-2004 04:3gpm Fram-SOCWA +B5B 522 S5SB T-m P.OOg/OII F-TDr
EXHIBIT "B"
LEGAL DESCRIPTION
A 128.00 FOOTWIDE STRIP OF LAND IN A PORTION OF lOT 9 OF OTAY RANCHO, IN
THE COUNTY OF SAN DIEGO, STATE OF CAlll"ORNIA, ACCORDING TO MAP THEREOF
NO. 882, FILED IN THE OFFICE OF THE SAN DIEGO COUNTY RECORDER, FEBRUARY 7,
1900, TOGETHERWrTHAPORTION OF LOT'C" OF CHULA VISTA TRACT NO. 01-11,
OTAY RANCH VilLAGE 11, 'An MAP NO.1, IN THE COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA ACCORDING TO MAP THEREOF NO.14559, FILED IN THE OFFICE OF THE
SAN DIEGO COUNTY RECORDER, MARCH 17, 2003.
, ,
THE CENTERLINE OF SAID 128.00 FOOT WIDE STRIP OF LAND BEING MORE
PARTICULARLY DESCRIBED AS FOllOWS:
COMMENCING AT A 3/4" IRON PIPE WITH DISC STAMPED "l.S. 3997" SHOWN AND
DESCRIBED ON RECORD OF SURVEY NO. 14605 RECORDED IN THE OFFICE OF SAID
COUNTY RECORDER, AUGUST 11, 1994, SAID 3/4" IRON PIPE BEING ON THE
CENTERLINE OF THE SECOND AQUEDUCT (PIPELINE 4 PHASE 2) DISTANT THEREON
SOUTH 49°36'57" EAST, 1,668.96 FEET (SOUTH 49°36'46" EAST, 1,669.41 FEET CAlCED
PER SAID RO.S. NO. 14605) FROM THE NORTHWESTERLY TERMINus OF THAT
CERTAIN COURSE SHOWN ON SAID RECORD OF SURVEY AS' N 49°36'46" W 5669.42'
"SAID NORTHERLY TERMINUS BEING AT STATION 5110+72,07 OF SAID RECORD OF
SURVEY; THENCE ALONG SAID CENTERLINE. SOUTH 49°36'57' EAST, 72:7.62 FEET;
THENCE lEAVING SAID CENTERLINE, SOUTH 40°23'11" WEST, 70.00 FEET TO A POINT
ON THE SOUiHWESTERl Y SIDELINE OF THE 120.00 FOOT WIDE EASEMENT TO THE
SAN DIEGO COUNTY WATER AUTHORITY RECORDED SEPTEMBER 3, 1993 AS FilE NO.
1993-0585949 OF OFFICIAL RECORDS, AND THE 1'RUE POINT OF BEGINNING; THENCE
NORTH 40°23'11" EAST, 120.00 FEET TO A POINT ON THE NORTHEASTERLY SIDELINE
OF SAID 120.00 FOOT WIDE EASEMENT AND THE POINT OFTERMINU5.
THE SIDELINES OF THE HEREIN DESCRIBED 128.00 FOOT WIDE STRIP OF LAND SHALL
BE LENGTHENED OR SHORTENED 50 AS TO TERMINATE IN THE SIDELINES OF SAID
120.00 FOOT WIDE EASEMENT.
~
------.----..
Apr-14-Z004 04:39pm From-SDCWA +858 m 5588 T-IZ7 P.OIO/OII HOT
"c"
NUMBER BEARING OIYfANCE
L1 N 36"02'00"£ 113.40'
LZ N 36"OZ'OO"£ 43.20'
LJ N 36"OZ'OO"E: 70.Z0"
Ò
~
II
~
~
çS
U
@ INDICATES 30.00 FOOT WIDE EASEMENT
REC. 8-04-1959 IN BOOK 7806. PAGE
5513, 0.Ff.
@ INDICIoTES 80.00 FOOT WIDE EASEMENT
REC. 10-o.J-1983 AS F1LE NO.
83-353521. O.R.
. @ INOICATES 120.00 FOOT WtDE EASEMENT
HUNSAKER REC. 09-03-1993 AS ALE NO.
&.ASSOCIATES 1993-0585949, O.R.
... .11." 'Me SCALE: 1" = 100'
--_St._"" SHEET 1 OF 2
-,",_0II1II
---
....- bFl/:l__ . ---'s
~
- -------------.--
Apr-14-2004 04:40pm From-SPCWA +858 522 6568 T-127 P.PIl/oll HO7
EXHIBIT "C"
LEGAL DESCRIPTION
A 58.00 FOOT WIDE STRIP OF lAND IN A PORTION OF LOT'C" OF CHULA VISTA TRACT
NO. 01-11, OTAY RANCH VILLAGE 11, "A" MAP NO.1, IN THE COUNTY OF SAN DIEGO,
STATE OF CALIFORNIA ACCORDING TO MAP THEREOF NO.14559, FILED IN THE OFFICE
OF THE SAN DIEGO COUNTY RECORDER, MARCH 17, 2003, THE CENTERLINE OF SAID
58.00 FOOT WIDE STRIP OF LAND BEING MORE PAR'-'ICULARL Y DESCRIBED AS
FOLLOWS:
COMMENCING AT A 3/4" IRON PIPE WITH DISC STAMPED -LoS. 3997" SHOWN AND
DESCRIBED ON RECORD OF SURVEY NO. 14605 RECORDED IN THE OFFICE OF SAID
COUNTY RECORDER, AUGUST 11,1994. SAID 3/4-IRON PIPE BEING ON THE CENTERLINE
OF THE SECOND AQUEDUCT (PIPELINE 4 PHASE 2) DISTANT THEREON SOUTH 49.36'57"
EAST, 669.35 FEET (SOUTH 49.36'48" EAST 669.41 FEET PER SAID R.O.S. NO. 14605) FROM
THE NORTHWESTERLY TERMINUS OF THAT CERTAIN COURSE SHOWN ON SAID RECORD
OF SURVEY AS - N 49"36'48" W 5669.42' -SAID NORTHERLY TERMINUS BEING AT STATION
5110+72.07 OF SAID RECORD OF SURVEY; THENCE ALONG SAID CENTERLINE, SOUTH
49.36'57" EAST, 611.05 FEET: THENCE LEAVING SAID CENTERLINE, SOUTH 36.02'00"
WEST, 70.20 FEET TO A POINT ON THE SOUTHWESTERLY SIDELINE OF THE 120.00 FOOT
WIDE EASEMENT TO THE SAN DIEGO COUNTY WATER AUTHORITY RECORDED
SEPTEMBER 3,1993 AS FILE NO. 1993-0585949 OF OFFICIAL RECORDS. AND THE TRUE
POINT OF BEGINNING; THENCE NORTH 36.02'00" EAST, 113.40 FEET TO THE BEGINNING
OF A CURVE CONCAVE SOUTHEASTERLY HAVING A RADIUS OF 800.00 FEET; THENCE
NORTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL !<NGLS OF
00"29'51" A DISTANCE OF 6.94 FEET TO THE NORTHEASTERLY SIDELINE OF SAID 120.00
FOOT WIDE EASEMENT AND THE POINT OF TERMINUS,
THE SIDEliNES OF THE HEREIN DESCRIBED 58.00 FOOT WIDE STRIP OF LAND SHALL BE
LENGTHENED OR SHORTENED SO AS TO TERMINATE IN THE SIDELINES OF SAID 120.00
FOOT WIDE EASEMENT.
e;"
RESOLUTION NO. 2004- ~
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING THE JOINT USE AGREEMENT
WITH THE SDG&E
WHEREAS, the Hunte Parkway right-of-way encroaches upon an existing 120-foot San
Diego Gas and Electric (SDG&E) Easement; and
WHEREAS, SDG&E has approved the form of the Joint Use Agreement (JUA) with the
City ofChula Vista for the crossing of Hunte Parkway Right-of-Way; and
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula
Vista does hereby approve the Joint Use Agreement within the San Diego Gas and Electric
Easement, 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.
Presented by Approved as to form by
ól ~þ1c~
Sohaib Al-Agha An~
City Engineer City Attorney
nEng'oee,'ILANDDEVIPmJed,IOtoy Ranch Y;Jlage IlIA map No2IReso-SDGE Agccementdoc
6 p J-I
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
~ jrv"~
~ Moore
City Attorney
Dated: 1--( t(-- 0 if
Joint Use Agreement with the
San Diego Gas & Electric
~
Recording Requested by
City of Chula Vista
When recorded, mail to:
San Diego Gas & Electric
8335 Century Park Court, Suite 100
San Diego, CA 92123-1569
Attn: Kathy Babcock, CP11D
SPACE ABOVE FOR RECORDER'S USE
APN: Portion of643-070-10
THE UNDERSIGNED DECLARES
CONSIDERATION IS LESS THAN
$100 AND TRANSFER TAX IS NONE.
JOINT USE AGREEMENT
THIS AGREEMENT, dated March 30, 2004, by and between SAN DIEGO GAS & ELECTRIC,
a corporation (SDG&E), and THE CITY OF CHULA VISTA, a municipal corporation (CITY),
is made with reference t6 the following facts:
A. SDG&E is engaged in the business of transmitting and distributing gas and
electricity within the City of Chula Vista, County of San Diego, State of
California, and has facilities for such purposes located in, upon, over, under, and
across that certain easements and right-of-way granted to SDG&E per documents
recorded June 7, 1983, File/Page No. 83-190254, April 3, 1979, FilelPage
No. 79-137184 and July 24, 1979, File/Page No. 79-306480, and January 29,
1997, File/Page No. 97-0038452, all of Official Records.
B. CITY is now acquiring or has acquired, easements for public street purposes in,
upon, over and across the real property described in Exhibit "A", which is
attached hereto and by this reference made a part hereof, and intends to construct,
operate and maintain therein a public dedicated street the location of which is
shown on Exhibit "B" attached hereto and made a part hereof; and
.IU-OlympicPkwy.doc 3
C. The street dedication referred hereto is shown on City Drawing No. 3071, Sheet 4
of 21, City of Chula Vista Improvement Plans for Hunte Parkway, a copy of
which is on file in the Office of the City Engineer of the City of Chula Vista. And
D. CITY and SDG&E desire to provide for the joint use of the area common to both
the SDG&E easement and right-of-way and the CITY's dedicated street right-of-
way for the construction, operation, and maintenance of both parties' facilities in,
over, under, and across the aforesaid common area.
NOW, THEREFORE, for valuable consideration, receipt of which is hereby acknowledged, the
parties hereby agree as follows:
In lieu of dedication, SDG&E hereby consents that a public street may be constructed and
maintained over, upon and across that portion of SDG&E's aforementioned easement and right-
of-way lying within the limits of the proposed public street as shown on said Exhibit "B"
hereinafter referred to as area subject to the following:
(a) In the event that the future use or alteration of said area by the CITY for streets or
public improvements incidental thereto shall at any time or times necessitate the
rearrangement, relocation or reconstruction of any of SDG&E's facilities or the
acquisition of additional property easements, or both, pursuant thereto, the same
shall be performed by SDG&E, or by any other party with the consent of SDG&E,
at the cost of the CITY.
(b) In the event that the future use of SDG&E's easement or properties by SDG&E
shall at any time or times necessitate a rearrangement, relocation, or
reconstruction of the public improvements incidental thereto, the same shall be
performed at the cost ofSDG&E.
(c) All uses of said area by either party shall be such as will not permanently interrupt
the use or operation of the facilities therein of the other party; uses of said area by
either party which temporarily interfere with the use of the other party will be
made only when reasonably necessary and will be promptly terminated as soon as
the necessity therefore no longer exists.
(d) SDG&E retains the right to review and approve of specific 'locations of all
facilities within its easement to avoid conflict with existing and future SDG&E
facilities. Such approvals shall be granted by SDG&E's "Letter of Permission for
£2
Grading and Construction of Improvements" and approvals shall not be
umeasonably withheld.
(e) If the CITY shall hereafter vacate, in whole or in part, the area which is occupied
by SDG&E's easement, the CITY shall, in the vacation proceedings, reserve to
SDG&E all rights owned by SDG&E prior to the execution of this agreement.
(t) Except as expressly herein set forth, this agreement shall not in any way alter,
modify, or terminate any of SDG&E's rights in said area.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed by duly
authorized officers.
SAN DIEGO GAS & ELECTRIC CO., CITY OF CHULA VISTA,
a California --.. a Municipal Corporation
rpora
By: Jr By:
Stephen C. Padilla, Mayor
APPROVED as to form
By:
Ann Moore, City Attorney
DATE: 3/23/04
R/W NO.: 80855, 114234
DWG. NOS.:
~~~::r
STATE OF CALIFORNIA)
COUNTY OF SAN DIEGO)
On ~, ...:f' /3 , ';:¿oo'¡ before me Cecilia Echeverria, Notary Public,
perso ally appeared John B. Burton, personally known to me to be the person whose
name is subscribed to the within instrument and acknowledgement to me that he executed
the same in his authorized capacity, and that by his signature on the instrument he or the
entity upon which he acted, executed the instrument.
WITNESS my hand and official seal.
***OPTIONAL INFORMA TION***
TITLE OR TYPE OF DOCUMENT
DATE OF DOCUMENT NUMBER OF PAGES
~ ,¿
EXHIBIT "A"
LEGAL DESCRIPTION
BEING A PORTION OF LOT 9 OF OTAY RANCHO, IN THE CITY OF CHULA VISTA,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO.
862, FILED IN THE OFFICE OF THE SAN DIEGO COUNTY RECORDER, FEBRUARY 7,
1900, SAID PORTION OF LOT 9 BEING A PORTION OF THAT PARCEL OF LAND
DESCRIBED IN GRANT DEED TO THE CITY OF CHULA VISTA RECORDED DECEMBER
31,2001 AS FILE NO. 2001-0975075 OF OFFICIAL RECORDS, BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT A 3/4" IRON PIPE WITH DISC STAMPED "loS. 3681" AT STATION
254+68.00 (TOWER NO. 283984) AS SHOWN AND DESCRIBED ON RECORD OF SURVEY
NO. 11218 RECORDED IN THE OFFICE OF SAID COUNTY RECORDER, SEPTEMBER 17,
1987, SAID POINT BEING ON THE CENTERLINE OF THE 120.00 FOOT WIDE EASEMENT
TO SAN DIEGO GAS AND ELECTRIC COMPANY RECORDED JUNE 7, 1983 AS FILE NO.
83-190254 OF OFFICIAL RECORDS; THENCE ALONG SAID CENTERLINE, SOUTH
49°37'03" EAST, (SOUTH 49°36'44" EAST PER RO.S. NO. 11218) 2599.01 FEET TO A
POINT ON THE NORTHERLY LINE OF SAID GRANT DEED TO THE CITY OF CHULA VISTA
AND THE TRUE POINT OF BEGINNING, SAID POINT BEING ON THE ARC OF A 2800.00
FOOT RADIUS CURVE CONCAVE NORTHWESTERLY, A RADIAL LINE TO SAID POINT
BEARS SOUTH 45°31'39" EAST; THENCE NORTHEASTERLY ALONG THE NORTHERLY
LINE OF SAID GRANT DEED AND THE ARC OF SAID CURVE THROUGH CENTRAL ANGLE
OF 01°21'11" A DISTANCE OF 66.12 FEET TO A POINT ON THE NORTHEASTERLY
SIDELINE OF THE 6.00 FOOT WIDE EASEMENT TO SAN DIEGO GAS AND ELECTRIC
COMPANY RECORDED APRIL 3,1979 AS FILE NO. 79-137184 OF OFFICIAL RECORDS;
THENCE LEAVING THE NORTHERLY LINE OF SAID GRANT DEED ALONG THE
NORTHEASTERLY SIDELINE OF SAID EASEMENT, SOUTH 49°37'03" EAST 23.10 FEET TO
THE SOUTHERLY SIDELINE OF PROPOSED HUNTE PARKWAY; THENCE ALONG SAID
PROPOSED SIDELINE, SOUTH 40°23'11" WEST 126.00 FEET TO A POINT ON THE
SOUTHWESTERLY SIDELINE OF THE 120.00 FOOT WIDE EASEMENT TO SAN DIEGO
GAS AND ELECTRIC COMPANY RECORDED JUNE 7,1983 AS FILE NO. 83~190254 OF
OFFICIAL RECORDS; THENCE ALONG THE SOUTHWESTERLY SIDELINE OF SAID
EASEMENT, NORTH 49°37'03" WEST 31.97 FEET TO A POINT ON THE NORTHERLY LINE
OF SAID GRANT DEED TO THE CITY OF CHULA VISTA AND THE ARC OF SAID 2800.00
PAGE 1 OF 2
:ML M:\2366\16\Legal Descriptions\A13 JUA SDG&E HUNTE.doc 6 . ~ 7
wo 2366-03 3/22/04 .
FOOT RADIUS CURVE, A RADIAL LINE TO SAID POINT BEARS SOUTH 44°17'44" EAST;
THENCE NORTHEASTERLY ALONG SAID NORTHERLY LINE AND THE ARC OF SAID
CURVE THROUGH CENTRAL ANGLE OF 01°13'55" A DISTANCE OF 60.20 FEET TO THE
TRUE POINT OF BEGINNING.
THE HEREINABOVE DESCRIBED PARCEL OF LAND CONTAINS 3409 SQUARE FEET,
MORE OR LESS
d~ø/ t2it/ 3-22-2(><:>4
DAVID W. AMBLER loS. 7322
HUNSAKER & ASSOCIATES SAN DIEGO, INC.
PAGE 2 OF 2
:ML M:\2366\16\Legal Descriptions\A13 JUA SOG&E HUNTE.doc t. -ð
WQ 2366-03 3/22/04
¡SHEET 1 OF 1 SHEETS
EXHIBIT "8"
DEDICATION PLAT c
CHUI A VJ~PF¡OPOSED
- DT A TRACT NO, O'J-'J-J
OTAY RANe' I
H. VJLi AG¡:; 'J'J "A" vr
-CiA {LaTE: "'I" .-B" - r\ IlliAp No, ?
1/ \ \\ r , AND "C' r - -
\ \ \ \ \ \ \ \ \ Or MAp NO,JL)559J
SCALt 1 "= 50 "'\ \ \ \ \
pac \ \ \
FD. 3/4" I.P. WITH DISC f ;'\ \
STAMPED "LS. 3681" PER
R,D.S. 11218. (TOWER NO.
283984 STA. 254+68.00)
120.00 FOOT WIDE
EASEMENT TO SDG&E
REC. 06-07-1983 AS
FILE NO. 83-190254,
AND 01-29-1997 AS
FILE NO. 1997-0038452,
BOTH OF OR.
\
\
\
\
\ \
SOUTHERLY LINE OF \
PROPOSED HUNTE
~~Y \
9 \0
\ Óí '¡\v'í
'::1 Ç\f'. 'ò'ç/2.- \
Óíf'. c '¡\O'
\'-J\f'.?
CITY OF CHULA VISTA PROPERTY GRANTED
{BY DEED REC. DECEMBER 31, 2001 AS FILE
NO. 2001-0975075, OR.
. - LEGEND:
HUNSAKER APN OF PROPERTY 643-070-10
I & ASSOCIATES
'^' O"co. '" ~j~ INDICATES STREET DEDICATION
AREA OF PARCEL 'f¡" = 3409 SQ. FT.
PLANN"G 10179 ",,"""'," "."
E~~'~~:::~~ ::(~;);~;~~:~n~(8S8)5581414 () RECORD DATA PER R.O.S. 11218
R,\OJ47\"Uap\OP JVA HUNTE PKWY ROW os SHI 01.',,[ '220jUar-JO-2004,'0,J4 - w.o. 2366-16
-4
RESOLUTION NO. 2004- -
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING THE FINAL MAP OF CHULA
VISTA TRACT NO. 01-11, OTAY RANCH VILLAGE 11 "A"
MAP NO.2; ACCEPTING ON BEHALF OF THE CITY OF
CHULA VISTA THE VARIOUS PUBLIC STREETS AND
EASEMENTS; APPROVING THE SUBDIVISION
IMPROVEMENT AGREEMENT FOR THE COMPLETION OF
IMPROVEMENTS; AND APPROVING A SUPPLEMENTAL
SUBDIVISION IMPROVEMENT AGREEMENT FOR CHULA
VISTA TRACT NO. 01-11, OTAY RANCH, VILLAGE 11 "A"
MAP NO.2
WHEREAS, Developer Brookfield Shea Otay has submitted an A Map for the second
phase ofOtay Ranch Village 11; and
WHEREAS, developer has executed a Subdivision Improvement Agreement to install
public facilities associated with the project; and
WHEREAS, the developer has executed a Supplemental Subdivision Improvement
Agreement to satisfy remaining conditions of City Council Resolution No. 2001-364.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula
Vista hereby finds that certain map survey entitled Chura Vista Tract 01-11, Otay Ranch Village
II "A" Map No.2, and more particularly described as follows:
Being a subdivision of Lots A, B, and C ofChula Vista Tract No. 01-11, Otay Ranch Village 11
"A" Map No.1, in the City of Chula Vista, State of California, according to map thereof No.
14559, filed in the Office of the County Recorder of San Diego County on March 17,2003:
Area: 311.239 Acres No. of Lots: 25
Numbered Lots: 11 Lettered Lots: 14
Open Space Lots: 15.865 Acres
is made in the manner and form prescribed by law and conforms to the surrounding surveys; and
that said map and subdivision of land shown thereon is hereby approved and accepted.
BE IT FURTHER RESOLVED, that the City Council accepts on behalf of the public the
public streets, to-wit: Windingwalk Street, Hidden Path Drive Birch Road, Discovery Falls
Drive, Crossroads Street, and a portion of Eastlake Parkway and Hunte Parkway, and said streets
are hereby declared to be public streets and dedicated to the public use all as shown on Otay
Ranch Village II "A" Map No.2 within said subdivision.
BE IT FURTHER RESOLVED, said Council hereby accepts on behalf of the City of
Chula Vista the sewer and storm drain, landscape buffer and sidewalk, sight visibility, and
general utility and access easements all shown on Otay Ranch Village 11 "A" Map No.2 within
said subdivision.
BE IT FURTHER RESOLVED that said Council hereby acknowledges on behalf of the
City of Chula Vista the Irrevocable Offer of Dedication of Fee Interest of Lots "c" tluough "L"
6
------------.--
Resolution 2004- -
Page 2
and Lot "N" for open space and other public purposes all as shown on Otay Ranch Village 11
"A" Map No.2 within said subdivision.
BE IT FURTHER RESOLVED the City Council of the City of Chula Vista does hereby
approve certain Subdivision Improvement Agreement dated April 20, 2004 for the completion of
improvements in said subdivision, a copy of which is on file in the office of the City Clerk.
BE IT RESOLVED the City Council of the City of Chula Vista does hereby approve the
Supplemental Subdivision Improvement Agreement for Chula Vista Tract No. 01-11, Otay
Ranch, Village II "A" Map No.2, a copy of which shall be kept on file in the office of the City
Clerk.
BE IT FURTHER RESOLVED that the City Clerk of the City ofChula Vista is hereby
authorized and directed to endorse upon said map the action of said Council; that said Council
has approved said subdivision map, and that said public streets are accepted on behalf of the
public as therefore stated and that the Irrevocable Offer of Dedication of the fee interest of said
lots be acknowledged, and that those certain easements as granted on Otay Ranch Village 11 "A"
Map No.2 within said subdivision are accepted on behalf of the City of Chula Vista as
hereinabove state.
BE IT FURTHER RESOLVED that the City Clerk is hereby directed to transmit said
map to the Clerk of the Board of Supervisors of the County of San Diego after San Diego County
Water Authority has executed the Joint Use Agreement.
BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby
authorized to execute said agreements for and on behalf of the City of Chula Vista.
Presented by Approved as to form by
JJ; W Jft\ ~
Sohaib Al-Agha Ann 0
City Engineer City Attorney
.r,IEngmeeI'ILANDDEVIPl'ojectsIOtay Ranch ViJ1age II IA map No21Reso A Map no lodoc
6
THE ATTACHED AGREEMENT HAS BEEN REVIEWED
AND APPROVED AS TO FORM BY THE CITY
ATTORNEY'S OFFICE AND WILL BE
FORMALL Y SIGNED UPON APPROVAL BY
THE CITY COUNCIL
~ ;J7l1 < ~.
~ Ann Moore
City Attorney
Dated: 1~!S-{}f
Approving the Subdivision Improvement
Agreement for the completion of Improvements for Otay
Ranch Village II "A" Map No.2
. :-J;..,
Recording Requested by:
CITY CLERK
When Recorded, Mail to:
CITY OF CHULA VISTA
276 Fourth Avenue
Chula Vista, CA 91910
Declarant
SUBDIVISION IMPROVEMENT AGREEMENT
THIS AGREEMENT, made and entered into this - day of , 2004, by and
between THE CITY OF CHULA VISTA, a municipal corporation, hereinafter called "City", and
BROOKFIELD SHEA OTA Y, LLC, a California limited liability company, 12865 Pointe Del
Mar, Suite 200, Del Mar, CA 92014, hereinafter called "Subdivider" with reference to the facts
set forth below, which Recitals constitute a part of this Agreement;
RECITALS:
WHEREAS, Subdivider is about to present to the City Council of the City of Chula Vista
for approval and recordation, a final subdivision map of a proposed subdivision, to be known as
OTA Y RANCH, VILLAGE 11 "A" MAP, NO.2 (CVT 01-11) pursuant to the provisions of the
Subdivision Map Act of the State of California, and in compliance with the provisions of Title 18
of the Chula Vista Municipal Code relating to the filing, approval and recordation of subdivision
map; and
WHEREAS, the Code provides that before said map is finally approved by the Council of
the City of Chula Vista, Subdivider must have either installed and completed all of the public
improvements and/or land development work required by the Code to be installed in subdivisions
before final maps of subdivisions are approved by the Council for purpose of recording in the
Office of the County Recorder of San Diego County, or, as an alternative thereto, Subdivider shall
enter into an agreement with City, secured by an approved improvement security to insure the
performance of said work pursuant to the requirements of Title 18 of the Chula Vista Municipal
Code, agreeing to install and complete, free of liens at Subdivider's own expense, all of the public
improvements and/or land development work required in said subdivision within a definite period
of time prescribed by said Council; and
WHEREAS, Subdivider is willing in consideration of the approval and recordation of said
map by the Council, to enter into this agreement wherein it is provided that Subdivider will install
and complete, at Subdivider's own expense, all the public improvement work required by City in
-1-
6-j~
connection with the proposed subdivision and will deliver to City improvement securities as
approved by the City Attorney; and
WHEREAS, a tentative map of said subdivision has heretofore been approved, subject to
certain requirements and conditions, as contained in Resolution No. 2001-364, approved on the
23rd day of October, 2001 ("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 set forth on Exhibit "A" hereto and on file in the office of the City Engineer; and
WHEREAS, an estimate of the cost of constructing said public improvements according to
said plans and specifications has been submitted and approved by the City in the amount as set
forth on Exhibit "A" hereto and incorporated herein.
NOW, THEREFORE, IT IS MUTUALLY UNDERSTOOD AND AGREED AS
FOLLOWS:
1. Subdivider, for itself and his successors in interest, an obligation the burden of which
encumbers and runs with the land, agrees to comply with all of the terms, conditions and
requirements of the Tentative Map Resolution; to do and perform or cause to be done and
performed, at its own expense, without cost to City, in a good and workmanlike manner, under the
direction and to the satisfaction and approval of the City Engineer, all of the public improvement
and/or land development work required to be done in and adjoining said subdivision, including the
improvements described in the above Recitals ("Improvement Work"); and will furnish the
necessary materials therefore all in strict conformity and in accordance with the plans and
specifications, which documents have heretofore been filed in the Office of the City Engineer and
as described in the above Recitals this reference are incorporated herein and made a part hereof.
2. It is expressly understood and agreed that all monuments have been or will be installed
within thirty (30) days after the completion and acceptance of the Improvement Work, and that
Subdivider has installed or will install temporary street name signs if permanent street name signs
have not been installed.
3. It is expressly understood and agreed that Subdivider will cause all necessary materials
to be furnished and all Improvement Work required under the provisions of this contract to be
done on or before the second anniversary date of Council approval of the Subdivision
Improvement Agreement.
4. It is understood and agreed that Subdivider will perform said Improvement Work as set
forth hereinabove, or that portion of said Improvement Work serving any buildings or structures
ready for occupancy in said subdivision, prior to the issuance of any certificate of clearance for
utility connections for said buildings or structures in said subdivision, and such certificate shall not
be issued until the City Engineer has certified in writing the completion of said public
improvements or the portion thereof serving said building or structures approved by the City;
provided, however, that the improvement security shall not be required to cover the provisions of
-2-
6-!;
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 as set forth on
Exhibit "A" hereto which security shall guarantee the faithful performance of this contract by
Subdivider and is attached hereto, marked Exhibit "B" and made a part hereof.
7. Subdivider further agrees to furnish and deliver to the City of Chula Vista
simultaneously with the execution of this agreement, an approved improvement security from a
sufficient surety, whose sufficiency has been approved by the City in the sum as set forth to secure
the payment of material and labor in connection with the installation of said public improvements,
which security is attached hereto, marked as 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 set forth to secure
the installation of monuments, which security is attached hereto, marked Exhibit "B" and made a
part hereof.
9. It is further agreed that if the 'Improvement Work is not completed within the time
agreed herein, the sums provided by said improvement securities may be used by City for the
completion of the Improvement Work within said subdivision in accordance with such
specifications herein contained or referred, or at the option of the City, as are approved by the City
Council at the time of engaging the work to be performed. Upon certification of completion by the
City Engineer and acceptance of said work by City, and after certification by the Director of
Finance that all costs hereof are fully paid, the whole amount, or any part thereof not required for
payment thereof, may be released to Subdivider or its successors in interest, pursuant to the terms
of the improvement security. Subdivider agrees to pay to the City any difference between the total
costs incurred to perform the work, including design and administration of construction (including
a reasonable allocation of overhead), and any proceeds from the improvement security.
10. It is also expressly agreed and understood by the parties hereto that in no case will the
City of Chula Vista, or any department, board or officer thereof, be liable for any portion of the
costs and expenses of the work aforesaid, nor shall any officer, his sureties or bondsmen, be liable
for the payment of any sum or sums for said work or any materials furnished 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
-3-
6"3
-'--'--'
plan checking, inspection, materials furnished and other incidental expenses) incurred by City in
connection with th~ 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.
-4-
6--"
The City Manager in his/her sole discretion may, if such assignment is requested, permit a
substitution of secl)rities 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-
6 -.!>7
--------
SIGNATURE PAGE
SUBDIVISION IMPROVEMENT AGREEMENT
OTA Y RANCH, VILLAGE 11 "A" MAP. NO.2
(CVT 01-11)
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
Stephen C. Padilla, Mayor
ATTEST
Susan Bigelow, City Clerk
Approved as to form by
Ann Moore, City Attorney
BROOKFIELD SHEA OT A Y, LLC, a California Limited Liability Company
By: Brookfield Otay LL , -
, Dol"" Limi'" Lia ili" em"¡>my, Momb" ~ t1c~ ßk<.
B '. By: ~ ¡£( ¡1
Name: E I:J,. 5kJ
By: Shea Otay Village 11, a California Limited Liability Company, Member
By: Shea Homes Limited Partnership, a California Limited Partnership, its Sole Member
By: J.F. Shea LLC, ~ware Limited Liability coýy, its General Partner
BY/£ 5> ~ By: \--~
Name: ~ () (¡ '1 15". t< '" ~ Name: !au / L L-, f3a rrllI'\'
(Attach Notary Acknowledgment)
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EXHIBIT "A"
TO SUBDIVISION IMPROVEMENT AGREEMENT
FOR OTA Y RANCH VILLAGE 11 "A" MAP NO.2 (CVT 01-11)
ESTIMATED
PUBLIC COST OF F AlTHFUL LABOR AND
IMPROVEMENTS IMPROVEMENTS PERFORMANCE MATERIALS ORA WING NOS.
Otay Ranch Village II $1,592,550.00 $796,275.00 $796,275.00 03100
Backbone
Hunte Parkway $2,941,377.00 $1,470,690.00 $1,470,690.00 03071
Improvements
Monumentation $84,500.00 Survey Monumentation Bond All monuments on
for Backbone this map and subsequent
record of survey for
horizontal control
Securities approved as to form and amount by
Ann Moore, City Attorney
Improvement Completion Date: Two (2) years from date of Council approval of the Subdivision
Improvement Agreement
J:IEng;neerILANDDEVIProjectsIOtay Ranch VHlage IlIA map No.2\SIA Map No. 2.doc
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/; -;#f
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California } ss
County of San Diego
On April 13, 2004, before me, Colette Kavanagh, Notary Public,
personally appeared John W. Norman and E. Dale Gleed,
personally known to me to be the person
whose names are subscribed to the within
instrument and acknowledged to me that
they executed the same in their authorized
capacity, and that by their signatures on the
instrument the persons, or the entity upon
behalf of which the persons acted, executed
the instrument.
WITNESS my hand and official seal.
C- ",-ilco l,~ " c-~
Place Nola", Seal Above Slgeal",e of Nola", Public '.
OPTIONAL
Though the information beiow is not required by taw, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reaffachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Capacity Claimed by Signer
RighI Thumbp"el
of Sigee,
Signer's Name: T'p,!thumb he"
II Individual
rJ Corporate Officer - Title: Vice President
Partner - J Limited U General
[] Attorney in Fact
0 Trustee
[J Guardian or Conservator
II Other: ;.
Signer is Representing:
. "
State of California )
) S.S.
County of San Diego )
On April 13, 2004 before me, Debra E. Young, Notary Public, personally appeared
John B. Vance and PaulL. 1. Barnes personally known to me to be the persons whose
names are subscribed to the within instrument and acknowledged to me that they executed
the same in their authorized capacities, and that by their signatures on the instrument the persons,
or the entity upon behalf of which the persons acted, executed the instrument.
WITNESS my hand and official seal.
DEBRA E. YOUNG ~
~j;. ~.. n Comm. # 1333971
NOTARY PUBLIC-CALIfORNIA (f
San Diego County -
My Comm. Expire, Dee 9.200;1
C
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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
(ß ,T(Yl"'~
~Ann Moore u
City Attorney
Dated: 'i-IS- -0 r
Approving the Supplemental Subdivision Improvement
Agreement for the completion of Improvements for
Chula Vista Tract No. 01-11,
Otay Ranch Village II "A" Map No.2
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RECORDING REQUEST BY: )
)
City Clerk )
)
WHEN RECORDED MAIL TO: )
)
CITY OF CHULA VISTA )
276 Fourth Avenue )
Chula Vista, CA 91910 )
Above Space for Recorder's Use
OR-610F
SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT
FOR OTAY RANCH VILLAGE ELEVEN,
CHULA VISTA TRACT NO. 01-11
A MAP NO. 2
(Conditions 1-6, 8, 12, 13, 27, 32, 36, 39, 40, 43, 46, 48, 49,
50, 51, 55, 56, 57, 60, 63, 69, 72, 78, 96, 108, 109, 114, 115,
116, 118-121, 124, 130, 131, 134, 140, 141, 142, 143, 150, 151,
158, 159, 164, 172, 174-177, 179, 180, 181, 183, 184, 185, 189,
192, 193, 195, 196, 197, 198-200, 203-205 of Resolution 2001-364)
This Supplemental Subdivision Improvement Agreement
("Agreement") is made this day of , 2004, by
and between THE CITY OF CHULA VISTA, California ("City" for
recording purposes only) and the signatories to this Agreement,
BROOKFIELD SHEA OTAY, 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 Agreement concerns and affects certain real
property located in Chula Vista, California, more particularly
described on Exhibit "A" attached hereto and incorporated herein
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("Property"). The Property is approved Tentative Subdivision Map
Chula Vista Tract 01-11 Otay Ranch Village Eleven and is commonly
known as Windingwalk. For purposes of this Agreement the term
"Project" shall also mean "Property".
B. "Owner" or "Developer" means the person, persons or
entity having a legal or an equitable interest in the property or
parts thereof and includes Owner's successors-in-interest and
assigns of any property within the boundaries of the Property.
C. Developer and/or Developer's predecessor in interest
has applied for and the City has approved Tentative Subdivision
Map commonly referred to as Chula Vista Tract 01-11 ("Tentative
Subdivision Map" or "Tentative Map") for the subdivision of the
Property.
D. The City has adopted Resolution No. 2001-364
("Resolution") pursuant to which it has approved the Tentative
Subdivision Map subject to certain conditions as more particularly
described in the Resolution.
E. The City has adopted Resolution 2003-075 approving a
Supplemental Subdivision Improvement Agreement associated with
Otay Ranch Village Eleven "A" Map No.1 and subsequently approved
Resolutions 2003-353 and 2003-486 amending that agreement.
F. City is willing, on the premises, security, terms and
conditions herein contained to approve the Final Map for which
Developer has applied and Developer has agreed to the terms and
conditions set forth herein.
G. The following defined terms shall have the meaning set
forth herein, unless otherwise specifically indicated:
a. "Complete Construction" shall mean that the
construction of the improvements have been completed and have
been inspected and accepted by the City.
b. "Guest Builder" means those entities obtaining any
interest in the Property or a portion of the Property, after
the Final Map has been recorded.
c. "SPA Plan" means the Otay Ranch Village Eleven
Sectional Planning Area Plan as adopted by the City Council
on October 17, 2001 pursuant to Resolution No. 2001-363 and
as amended by Resolution No. 2003-230 and Ordinance No. 2917.
d. "PFFP" means the Otay Ranch Village Eleven Public
Facilities Financing Plan adopted by Resolution No: 2001-363,
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and as may be further amended from time to time.
e. "EIR 01-02" means Environmental Impact Report and
its attendant Addendum for the Otay Ranch General Development
Plan Amendments/Village Eleven Sectional Area Plan and
Conceptual Tentative Map.
f. "Improvement Plans" means all the onsite and
offsite improvements required to serve the lots created by
the Final Map, in accordance with improvement plans to be
approved by the City. Said improvements shall include, but
not limited to, asphalt concrete pavement, base, concrete
curb, gutter and sidewalk, sewer, reclaimed and potable water
utilities, drainage facilities, street lights, signage,
landscaping, irrigation, fencing and fire hydrants.
NOW, THEREFORE, in exchange for the mutual covenants, terms
and conditions herein contained, the parties agree as set forth
below.
1. Agreement Applicable to Subsequent Owners.
a. Agreement Binding Upon Successors. This Agreement
shall be binding upon and inure to the benefit of the
successors, assigns and interests of the parties as to any or
all of the Property as described on Exhibit "A" until
released by the mutual consent of the parties.
b. Agreement Runs with the Land. The burden of the
covenants contained in this Agreement ("Burden") is for the
benefit of the Property and the City, its successors and
assigns and any successor in interest thereto. City is
deemed the beneficiary of such covenants for and in its own
right and for the purposes of protecting the interest of the
community and other parties public or private, in whose favor
and for whose benefit of such covenants running with the land
have been provided without regard to whether City has been,
remained or are owners of any particular land- or interest
therein. If such covenants are breached, the City shall
have the right to exercise all rights and remedies and to
maintain any actions or suits at law or in equity or other
proper proceedings to enforce the curing of such breach to
which it or any other beneficiaries of this agreement and the
covenants may be entitled.
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
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expressly assumed by the Guest Builder, provided Developer
obtains the prior written consent of the City to such
release. Such assignment to the Guest Builder shall,
however, be subject to this Agreement and the Burden of this
Agreement shall remain a covenant running with the land. The
City shall not withhold its consent to any such request for a
release so long as the assignee acknowledges that the Burden
of the Agreement runs with the land, assumes the obligations
of the Developer under this Agreement, and demonstrates, to
the satisfaction of the City, its ability to perform its
obligations under this Agreement as it relates to the portion
of the Project which is being acquired by the Assignee.
d. Partial Release of Developer's Assignees. If
Developer assigns any portion of the Project subj ect to the
Burden of this Agreement, upon request by the Developer or
its assignee, the City shall release the assignee of the
Burden of this Agreement as to such assigned portion if such
portion has complied with the requirements of this Agreement
to the satisfaction of the City and such partial release will
not, in the opinion of the City, jeopardize the likelihood
that the remainder of the Burden will not be completed.
e. Release of Individual Lots. Upon the occurrence
of any of the following events, Developer shall, upon receipt
of the prior written consent of the City Manager (or
Manager's designee), have the right to release any lot(s)
from Developer's obligation under this Agreement upon:
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; or
iii. The conveyance of a school site as identified
in the SPA Plan to a school district;
The City shall not withhold its consent to such release so long as
the City finds in good faith that such release will not jeopardize
the City's assurance that the obligations set forth in this
Agreement will be performed. At the request of the Developer, the
City Manager (or Manager's designee) shall execute an instrument
drafted by Developer in a recordable form acceptable to the City
Manager (or Manager's designee), which confirms the release of
such lot or parcel from the encumbrance of this Agreement.
Notwithstanding the foregoing, at the close of an individual
homeowner's escrow on any lot or parcel encumbered by this
Agreement, such lot or parcel shall be automatically released from
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the encumbrance hereof.
2. Condition No. 1 - (Agreement to all terms, covenants
and condi tions). In satisfaction of Condition No. 1 of the
Resolution, Developer agrees that all of the terms, covenants and
conditions contained herein shall that binding upon and inure to
the benefit of the heirs, successors, assigns and representatives
of the Developer as to any or all of the Property.
3. Condition No. 2 - (Requirements and guidelines). In
satisfaction of Condition No. 2 of the Resolution, Developer
agrees to comply with all requirements and guidelines of the City
of Chula Vista General Plan; the City's Growth Management
Ordinance; Chula Vista Landscape Manual, Chula Vista Design Plan;
Otay Ranch General Development Plan, Otay Ranch Resource
Management Plan, Phase 1 and Phase 2; Ranch Wide Affordable
Housing Plan; Otay Ranch Overall Design Plan; FSEIR # 01-02; Otay
Ranch Village Eleven Sectional Planning Area (SPA) Plan and
supporting documents including: Village Eleven Public Facilities
Finance Plan; Village Eleven Parks, Recreation, Open Space and
Trails Plan; Village Eleven SPA Affordable Housing Plan and the
Non-Renewable Energy Conservation Plan all as may be amended from
time to time, unless specifically modified by the appropriate
department head, with the approval of the City Manager. These
plans may be subject to minor modifications by the appropriate
department head, with the approval of the City Manager, however,
any material modifications shall be subject to approval by the
City Council.
4. Condition No. 3 - (City's Right to Revoke or Modify
Approvals). In satisfaction of Condition No. 3 of the Resolution,
if any of the terms, coven'ants or conditions contained herein
shall fail to occur or if they are, by their terms, to be
implemented and maintained over time, if any of such conditions
fail to be so implemented and maintained according to their terms,
the City shall have the right to revoke or modify all approvals
herein granted including issuance of building permi~s, deny, or
further condition the subsequent approvals that are derived from
the approvals herein granted, institute and prosecute litigation
to compel their compliance with said conditions or seek damages
for their violation. The Developer shall be notified 10 days in
advance prior to any of the above actions being taken by the City
and shall be given the opportunity to remedy any deficiencies
identified by the City.
5. Condition No. 4 - (Hold City Harmless). In
satisfaction of Condition No. 4 of the Resolution, Developer
agrees to indemnify, protect, defend and hold the City harmless
from and against any and all claims, liabilities and costs,
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including attorney's fees, arising from challenges to the
Environmental Impact Report and subsequent environmental review
for the Project and any or all entitlements and approvals issued
by the City in connection with the Project.
6. Condi tion No. 5 - (Comply with SPA Conditions). In
satisfaction of Condition No. 5 of the Resolution, the Developer
agrees to comply with all applicable Village Eleven SPA
conditions of approval, (PCM 99-15) as may be amended from time
to time. Developer further agrees as follows:
a. To implement the final Otay Ranch Village Eleven
Air Quality Improvement Plan (AQIP) approved measures and
include the measures as part of the Project. The Developer
further:
i. Agrees to comply and remain in compliance
with the AQIP;
ii. Wai ves any claim that adoption of the final
AQIP constitutes an improper subsequent imposition of
the condition;
iii. Acknowledges that the City Council may, from
time-to-time, modify air quality improvement and energy
conservation measures related to new development as
various technologies and/or programs change or become
available; and
iv. Agrees prior to or concurrent with each Final
Map for the Project to modify the AQIP to incorporate
those new measures, which are in effect at the time.
Developer further acknowledges that the new measures
shall apply, as applicable, to development within all
future final map areas, but shall not be retroactive to
those areas which receive final map approval prior to
effect of the subject new measures.
b. To implement the final Otay Ranch Village Eleven
Water Conservation Plan (WCP) approved measures and include
the measures as part of the proj ect. The Developer further:
i. Agrees to comply and remain iR compliance
with the WCP;
ii. Waives any claim that the adoption of a final
WCP constitutes an improper subsequent imposition of
the condition;
iii. Acknowledges that the City Council may, from
time-to-time, modify water conservation measures
related to new development as various technologies
and/or programs change or become available; and 4)
agrees prior to or concurrent with each final map for
the Project to modify the WCP to incorporate those new
measures, which are in effect at the time.' Developer
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further acknowledges that the new measures shall apply
to development within all future final map areas, but
shall not be retroactive to those areas which received
final map approval prior to effect of the subject
measures.
7. Condition No. 6 - (Submittal of SPA). In satisfaction
of Condition No. 6 of the Resolution, the Developer agrees to
prepare and submit, to the satisfaction of, and as deemed
necessary by the Director of Planning and Building, an updated
Sectional Planning Area (SPA) Plan, and supporting regulating
documents incl uding, but not limited to text, exhibits, and
tables for the Village Eleven SPA Plan; Planned Community
District Regulations; Village Design Plan; Public Facilities
Finance Plan; Affordable Housing Plan Air Quality Improvement
Plan; Water Conservation Plan; Non-Renewable Energy Conservation
Plan; Parks, Recreation, Open Space and Trails Plan; and
applicable environmental documents.
8. Condition No. 8 - (Consistency with Land Offer
Agreement). In satisfaction of Condition No. 8 of the Resolution,
the Developer agrees that the terms, conditions and time limits
associated with this tentative map shall be consistent with the
Land Offer Agreement approved by Resolution No. 2000-116 by the
City Council on April 11, 2000 ("Land Offer Agreement") and as
amended on August 7, 2001. The Developer and City of Chula Vista
hereby agrees to comply with the provisions of the Land Offer
Agreement and all Amendments thereto, and to remain in compliance
with the entire Land Offer Agreement and Amendments for the life
of the Agreement.
9. Condition No. 12 - (Olympic Parkway Agreement). In
satisfaction of Condition No. 12 of the Resolution, Developer
hereby agrees that if any of these conditions conflict with the
Olympic Parkway Financing and Construction Agreement approved by
Council Resolution 19410, the Olympic Parkway Financing and
Construction Agreement shall control.
10. Condition No. 13 - (Environmental). In satisfaction of
Condition No. 13 of the Resolution, Developer hereby agrees, to
implement, to the satisfaction of the Director of Planning and
Building, all environmental impact mitigation measures identified
in Final EIR 01-02 (SCH#2001031120), the candidate CEQA Findings
and Mitigation Monitoring and Reporting Program (Final EIR 01-02)
for this Project.
11. Condition No. 27 - (Multi-Family). In satisfaction of
Condition No. 27 of the Resolution, Developer agrees that the
subsequent development of a multi-family lot which does not
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require the filing of a "B" map shall meet, prior to issuance
of a building permit for that lot, all the applicable conditions
of approval of the tentative map, as determined by the City
Engineer.
12. Condition No. 32 - (Street Trees). In satisfaction of
Condition No. 32 of the Resolution, Developer agrees to the
following:
a. The Developer shall install all street trees in
accordance with Section 18.28.10 of the Chula Vista
Municipal Code. All street trees shall be planted in
parkways, or as otherwise approved by the Director of
Planning and Building. Street trees, which have been
selected from the revised list of appropriate tree species
described in the Village Design Plan, shall be approved by
the Director of Planning and Building and City Engineer.
b. Prior to the installation of any dry utilities,
including but not limited to cable, telephone, gas or
electric lines, Developer agrees to complete preliminary
street improvement plans that show the location of all
future street trees, which will be subject to the review and
approval of the Director of General Services and the
Director of Planning & Building. Prior to any utility
installation, wood stakes shall be placed by the Developer
on site according to approved preliminary street tree plans
and shall be painted a bright color and labeled as future
street tree location. Developer further agrees to provide
City documentation, acceptable by the Director of General
Services and the Director of Planning and Building, that all
utility companies have been given notice that no dry utility
line shall be located within five feet of the wood stake in
any direction. Developer will maintain street tree
identification stakes in location as shown on approved
preliminary plans until all dry utilities are in place.
c. The Developer shall provide root contro~ methods per
the requirements of the Director of Planning and Building,
and provide a deep watering irrigation system for the trees.
d. A street tree improvement plan shall be submitted
for review and subject to the approval of the Director of
Planning and Building and the City Engineer prior to or
concurrent with the second submittal of street improvement
plans within the subdivision. Approval of the street tree
improvement plans shall constitute final approval of the
selection of street trees for the street parkways,'
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13. Conditions No. 36 - (Pub1.ic Improvements). In
satisfaction of Condition No. 36 of the Resolution, Developer
agrees to dedicate for public use all the public streets shown on
the tentative map within the subdivision boundary. Developer
further agrees to construct and secure all street improvements as
required by the PFFP, for each particular phase, as may be
amended from time to time. The Developer further agrees to
construct the public improvements and provide security
satisfactory to the City Engineer and City Attorney.
14. Conditions No. 39 - (Off-Site Rights-Of-Way). In
satisfaction of Condition No. 39 of the Resolution, Developer
agrees prior to approval of each final map, acquire and then
grant to the City all off-site rights-of-way and easements
necessary for the installation of required street improvements
and/or utilities.
15. Condition No. 40 - ( Improvement Construction). In
satisfaction of Condition No. 40 of the Resolution, Developer
agrees to secure in accordance with Section 18.16.220 of the
Municipal Code, the construction and construct full street
improvements for all on-site and off-site streets as identified
in the Otay Ranch Village Eleven SPA, PFFP, as may be amended
from time to time as deemed necessary to provide service to the
Project. 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, traffic signals, signs, landscaping,
irrigation, fencing and fire hydrants. Street light locations
shall be subject to the approval of the City Engineer.
16. Condition No. 43 and 46- (Street Improvements). In
partial satisfaction of Conditions No. 43 and 46 of the
Resolution, Developer agrees to construct and secure, in
accordance with Section 18.16.220 of the Municipal Code, the
required street improvements listed below and pursuant to Exhibit
"B" per the PFFP and/or Specific Planning Area Trigg~rs as may be
amended from time to time to time.
. Eastlake Parkway, Kestrel Falls Road to Birch Road,
. Eastlake Parkway, Birch Road to Hunte Parkway, including
Landscaping Improvements
. Otay Lakes Road Widening, H Street to Telegraph Canyon
Road, including Landscaping Improvements,
. Fully Activated Traffic Signals:
0 Eastlake Pkwy at Birch Rd
0 Hunte Pkwy at Hidden Path Drive
Developer agrees to remove the temporary sales trailer located on
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Hunte Parkway at Evening Star Street within 30 days after being
noticed by the City Engineer and to restore the street
improvements to the satisfaction of the City Engineer. Developer
further agrees to submit a Landscape and Irrigation Bonds for Otay
Lakes Road Widening, H Street to Telegraph Canyon Road and Birch
Road to Hunte Parkway pursuant to Exhibit "B" within 30 days of
recordation of this agreement.
17. Condition No. 4B - (Fire). In partial satisfaction of
Condition No. 48 of the Resolution, Developer agrees to comply
with the Fire Department's codes and policies for Fire
Prevention, as may be amended from time to time. Developer
further agrees that prior to the issuance of any building
permit(s) for the Project, to provide the following items prior
to delivery of combustible materials on any construction site on
the Project:
a. Water supply consisting of fire hydrants as approved
and indicated by the Fire Department during plan check to the
satisfaction of the Fire Department. Any temporary water
supply source is subject to prior approval by the Fire
Marshal; and
b. Emergency vehicle access consisting of a minimum
first layer of hard asphalt surface or concrete surface, with
a minimum standard width of 20 feet; and
c. Street signs installed to the satisfaction of the
Department of Engineering. Temporary street signs shall be
subject to the approval of the Department of Engineering and
Fire Department. Locations and identification of temporary
street signs shall be subject to review and approval by the
Department of Engineering and Fire Department.
lB. Conditions No. 49 - (Construction Timing). In
satisfaction of Condition No. 49 of the Resolution, Developer
agrees to obtain the approval of the City's Fire Marshal for the
timing of construction of all internal streets in the Project.
19. Conditions No. 50 - (Fire Hydrants). In satisfaction of
Condition No. 50 of the Resolution, Developer agrees that in
addition to those fire hydrants depicted on the tentative map,
the Developer shall install additional fire hydrants upon request
and to the satisfaction of the Fire Department.
20. Conditions No. 51 - (Turnaround). In satisfaction of
Condition No. 51 of the Resolution, Developer agrees to construct
a temporary turnaround or street improvements, upon the request
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of and as determined necessary by the City Engineer and Fire
Marshal, at the end of temporarily stubbed streets greater than
150 ft. in length (as measured from the nearest street centerline
intersection).
21. Condition No. 55 (Schools). In partial satisfaction of
Condition No. 43 of the Resolution, Developer agrees to construct
to the satisfaction of the City Engineer all necessary
improvements for providing ingress and egress to each school
site. This requirement shall also include but is not limited to
the installation of traffic signals, any required modification to
medians, storm drainage system, street lights, and irrigation
improvements.
22. Condition No.s 56, 177 and 192 - (Transit Stops). In
satisfaction of Condition No.s 56, 177 and 192 of the Resolution,
Developer agrees to:
a. (Condition No. 177) Not protest the formation of
any future regional benefit assessment district to finance
the MTDB San Diego Trolley LRT System.
b. (Condi tion No.s 56 and 192) Construct and has
provided security to guarantee the transit stop facilities
as set forth in the PFFP. The schedule for constructing the
transit stops shall be subject to the approval of the City
Engineer prior to approval of each applicable final map.
Developer further agrees to design, subject to the approval
of the City Engineer said transit stops in conjunction with
the improvement plans for the related street. Developer
further agrees that the improvement plans for said stops
shall be prepared in accordance with the transit stop
details described in the Village Eleven Design Plan and
Village Eleven PFFP and as approved by the Director of
Planning and Building and City Engineer. Developer
acknowledges and agrees that the City Engineer may require
that Developer provides additional security guaranteeing the
construction of said transit stops at the time of City's
construction thereof in a form of cash or any other form
approved by the city Engineer at his/her sale discretion
upon City's determination that the cost of construction will
exceed Developer's deposit of $13,900 of four (4) transit
stops. Since transit service availability may not coincide
with Project development, the Developer further agrees to
install said improvements when directed by the City.
Alternatively, the City may choose in its sole discretion to
install the transit stop improvements.
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23. Condition No. 57 - (ADA). In satisfaction of Condition
No. 57 of the Resolution, Developer agrees to construct sidewalks
and construct pedestrian ramps on all walkways to meet "Americans
with Disabilities Act" standards and as approved by the City
Engineer. In the event the E'ederal 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.
24. Condition No. 60 - (Private water in public street) In
satisfaction of Condition No. 60 of the Resolution, Developer
agrees to not install privately owned water, reclaimed water, or
other utilities crossing any public street. Developer further
acknowledges and agrees that the installation of sleeves for
future construction of privately owned facilities may be allowed
subject to the review and approval of the City Engineer if the
following is accomplished:
a. The Developer enters into an agreement with the City
where the Developer agrees to the following:
i. Apply for an encroachment permit for
installation of the private facilities within the
public right-of-way; and,
ii. Maintain membership in an advance notice such
as the USA Dig Alert Service; and,
iii. Mark out any private facilities owned by the
Developer whenever work is performed in the area; and,
iv. The terms 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.
25. Condition No. 63 - (Street Name Signs). In-satisfaction
of Condition No. 63 of the Resolution, Developer agrees to
install permanent street name signs prior to the issuance of the
first building permit for the applicable final map.
26. Condition No. 69 - (LOMR). In satisfaction of Condition
No. 69 of the Resolution, Developer agrees that prior to transfer
of responsibility of maintenance of any basins on the Project,
and release of the grading bond to obtain a Letter of Map
Revision (LOMR) from the E'ederal Emergency Management Agency
revising the current National !"lood Insurance Program Maps to
reflect the effect of the drainage improvements. Developer
12
acknowledges and agrees that it shall be the responsibility of
the Developer to revise the flood plain map to reflect all
modifications and to ensure that no proposed lot will be created
in said flood plain.
27. Condition No. 72 - (Temporary Slopes). In partial
satisfaction of Condition No. 72 of the Resolution, Developer
agrees to the following:
a. Construction of Slope and Drainage Improvements.
Developer hereby agrees to construct in strict
conformity and in accordance with City Standards at its
own cost and expense Slope and Drainage Improvements as
more particularly described in a legal description
thereof, marked Exhibit "C", and as shown on Exhibit
"0" attached hereto, as further set forth in certain
instruments recorded as document no. in the
Official Records of the San Diego County Recorder's
Office. Developer shall complete the construction of
the Slope and Drainage Improvements to the satisfaction
of the City Engineer prior to acceptance by the City of
Eastlake Parkway and Kestrel Falls Road. It is
expressly understood and agreed to by the Developer
that, in the performance of the construction of said
Slope and Drainage Improvements, Developer shall
conform to and abide by all the prOVlSlonS 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.
b. Slope and Drainage Improvements Maintenance
Obligations.
i. Developer agrees to maintain the Slope and
Drainage Improvements in accordance with the City's
Landscape Manual.
ii. Developer understands and agrees that all cost
associated with the maintenance of the Slope and
Drainage Improvements shall be paid by the
Developer, and that in no case will the City, or any
department, board, or officer thereof or Owner be
liable for any portion of the Maintenance Cost as
defined herein below.
iii. Developer hereby agrees that Developer's
obligations and right of entry hereunder shall
terminate once sufficient funding for maintaining
13
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the Slope and Drainage Improvements, as determined
by the City Engineer in his/her sole discretion, is
available from a City approved Community Facility
District or alternative permanent financing
mechanism approved by the City.
iv. Developer has prepared an estimate of the
annual cost for maintaining the Slope and Drainage
Improvements, which is attached as Exhibit "E"
("Maintenance Cost"). As set forth below, Developer
shall provide the City with cash deposit equal to
the Maintenance Cost to cover the cost of
maintaining the Slope and Drainage Improvements for
a three year period.
c. Security for Slope and Drainage Improvements
Maintenance Obligations.
i. Cash Deposit. Contemporaneous with the signing
of this Agreement, Developer shall provide City with
a cash deposit for Developer's three years
obligation to maintain the Slope and Drainage
Improvements under this Agreement, ("Security
Deposit") in the sums set forth in Exhibit "8" and
"E". City shall hold the Security Deposit for the
duration of Developer's obligations hereunder, and
expend such Security Deposit solely for purposes of
said performance obligations in the event of
Developer's default in the performance of such
obligations. Should the City expend the Security
Deposit due to Developer's default of its
performance obligations, Developer agrees to
redeposit the equivalent sum of money needed to
equal the amount of the Security Deposit required by
this Agreement, within 30 days of the City's request
for such Security Deposit. All interest earnings on
the Security Deposit shall be retained by the City
during this period. Any unexpended amount of the
Security Deposit, including any interest earned,
shall be released and remitted to Developer upon the
termination of its obligations as set forth in this
Section of Agreement.
d. Noncompliance by Developer
i. Developer understands and agrees that the
performance of Developer's obligations hereunder are
required for the health and safety of the residents
of the City of Chula Vista. Therefore; Developer
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agrees that the City shall have the absolute and
unfettered right to withhold the issuance of any
grant of approval or permit for any entitlements
(including but not limited to SPA plans, Tentative
Maps, Site Plans, Final Maps, grading/construction
permits, and building permits) for the Project, if
the Developer is determined by the City not to be in
compliance with the terms of this Section of
Agreement.
ii. If Developer is determined by the City not to
be in compliance with any term of this Section of
Agreement, the City shall notify Developer of its
noncompliance and provide Developer with 30 days to
cure said noncompliance. The City Engineer in
his/her sole discretion may extend the time to cure
such noncompliance if the City Engineer determines
that Developer is making a good faith and diligent
effort to cure such noncompliance.
e. Right of Entry
i. City hereby grants Developer permission to
enter upon the dedicated easements and as described
on that certain instrument recorded as document
No for the purposes of
providing Slope and Drainage construction and
maintenance pursuant to the terms of this Agreement.
28. Condition No. 78 - (NPDES). In satisfaction of
Condition No. 78 of the Resolution, Developer agrees to comply
wi th all applicable regulations established by the United States
Environmental Protection Agency (USEPA) as set forth in the
National Pollutant Discharge Elimination System (N.P.D.E.S.)
permit requirements for urban runoff and storm water discharge
and any regulations adopted by the City of Chula Vista pursuant
to the N.P.D.E.S. regulations or requirements. Developer further
agrees to file a Notice of Intent with the State Wa~er Resources
Control Board to obtain coverage under the N.P.D.E.S. General
Permit for Storm Water Discharges Associated with Construction
Activity and shall implement a Storm Water Pollution Prevention
Plan (SWPPP) concurrent with the commencement of grading
activities. The SWPPP shall include both construction and post
construction pollution prevention and pollution control measures
and shall identify funding mechanisms for post construction
control measures. The Developer further agrees to comply with all
the provisions of the N.P.D.E.S. and the Clean Water Program
during and after all phases of the development process, including
but not limited to: mass grading, rough grading, construction of
15
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..._._-~--_....
street and landscaping improvements, and construction of dwelling
units. The Developer shall design the Project's storm drains and
other drainage facilities to include Best Management Practices to
minimize non-point source pollution, satisfactory to the City
Engineer. The San Diego Regional Water Quality Control Board has
issued a new Municipal Storm Water Permit (Order No. 2001-01).
The permit includes regulations such as implementation of
Standard Urban Storm Water Mitigation Plans (SUSMPS) and Numeric
Sizing Criteria for new residential development. The Developer
agrees to comply with all relevant City regulations, when ~hey
become effective, including but not limited to incorporation into
the design and implementation of the Project temporary and
permanent structural Best Management Practices and non-structural
mitigation measures that would reduce pollution of storm water
runoff to the maximum extent practicable.
29. Condition No. 96 - (Permitting agencies). In partial
satisfaction of Condition No. 96 of the Resolution, Developer
agrees to obtain approval from all applicable permitting
agencies, including but not limited to FEMA, prior to any work
within each of the agencies jurisdiction. Developer further
acknowledges and agrees that all mitigation requirements will be
the responsibility of the Developer.
30. Condition 108 (Sewer Pump Station). In partial
satisfaction of Condition No. 108 of the Resolution, Developer
agrees that until such time as the Salt Creek Sewer is
constructed, the project is dependent on the diversion of flows
from the Olympic Parkway Sewer Pump Station. Developer agrees to
fund maintenance costs of said pump station which exceed the
maintenance costs currently the responsibility of the Eastlake
Company as determined by the City Engineer within 30 days of a
request by the City Engineer.
31. Condition 109 (Salt Creek Sewer) In partial
satisfaction of Condition No. 109 of the Resolution, Developer
agrees:
a. not to seek more than 722 building permits for the
Project, and;
b. not to seek final inspection for more than 533 dwelling
units for the Project until the Salt Creek Trunk Sewer
Improvements have been provided for as indicated in the
report entitled "Overview of Sewer Service for Village
Eleven SPA at the Otay Ranch Proj ect" (Village Eleven
SPA Sewer Report) prepared by Wilson Engineering dated
March, 2001, or as amended by the Applicant and
approved by the City Engineer
16
32. Condition No. 114 - (Parks). In partial satisfaction
of condition 114 of the Resolution, the Developer agrees that the
Project shall satisfy the requirements of the Park Land
Dedication Ordinance (PLOO). Project Developer further agrees
that the Project's Neighborhood Park portion of the local park
requirement shall be satisfied through the provision of a 7.0
net-acre Neighborhood Park (P-1). Developer further agrees that
the remaining requirement shall be satisfied in a future
Community Park through the payment of fees, dedication of land,
or a combination thereof in a manner acceptable to the Director
of General Services.
33. Condition No. 115 - (Parks). In partial satisfaction
of Condition No. 115 of the Resolution, Developer agrees to
provide an all weather access road to the neighborhood park site
(P-l) to the satisfaction of the Fire Marshal and Chief of Police
and at no cost to the City, upon request from the Director of
General Services.
34. Condition No. 116 - (PAD Fees). In satisfaction of
Condition No. 116 of the Resolution, Developer agrees to pay all
applicable Parkland Acquisition and Development fees (PAD Fees)
to the City in accordance with C.V.M.C Chapter 17.10 prior to
approval of each final "8" Map, or, prior to issuance of building
permits for condominiums, community apartments, or stock-
cooperatives not requiring the filing of a final "8" Map.
35. Conditions Nos. 118, 119, and 120 - (Park Site
Requirements). In satisfaction of Conditions Nos. U8, U9, 120
of the Resolution, Developer agrees to comply with the following
schedule for commencement of construction and delivery to the
City of the Project's park site (P-l):
a. (Condition No. U8)
i. Prior to issuance of a building permit for
the 360th dwelling unit for the Project, Developer
shall have commenced construction of Project's Park (P-
1), to the satisfaction of the Director of General
Services. Developer shall complete construction of the
park within nine (9) months of commencement of
construction. For purposes of this Condition No. U8,
the term "complete construction" shall mean park
construction has been completed according to the City
approved construction plans and accepted by the
Director of General Services. Furthermore "compete
construction" shall mean prior to and shall not include
the City's established maintenance period required
17
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----.------.
prior to acceptance by the City for Public use.
ii. Prior to commencement of park construction,
and Developer shall prepare, submit and obtain the
approval from the Director of General Services, City
Engineer of a Park Master Plan for the Project and
prepare, submit and obtain the approval from the
Director of General Services of park construction
documents and improvement bonds.
iii. At any time the Director of General Services
may, at his sole discretion, modify the neighborhood
development phasing and construction sequence for the
Project's park should conditions change to warrant such
reVlSlon.
b. (Condition No. 119) Developer agrees to rough
grade the Project's park site (P-I) to conform to the
approved Park Master Plan to the satisfaction of the City
Engineer and the Director of General Services and at no cost
to the City.
c. (Condition No. 120) Developer agrees to install
underground utilities to the property line of the Project's
park site (P-1) to the satisfaction of the Director of
Building and Parks Construction and the City Engineer
concurrently with the installation of underground utilities
for any portion of the Project adjacent to the park site or
upon request of the Building and Park Construction Director,
whichever occurs earlier.
36. Condition No. 121 - (Withhold Building Permits). In
satisfaction of Condition No. 121 of the Resolution, Developer
agrees that at no time shall there be a deficit in ~constructed
neighborhood park". Developer further acknowledges, understands
and agrees that the City shall withhold the issuance of building
permits for the Project should the Project fail to comply with
the conditions herein. For purposes of this conditi-on, the term
"constructed park" shall mean the construction of the Project's
park has been completed and accepted by the City as being in
compliance with the Parks Master Plan, but prior to the City's
required mandatory maintenance period. Developer acknowledges
that this is not intended to supersede any of the City's
maintenance guarantee requirements.
37. Condition No. 124 - (Town Square Park). In
satisfaction of Condition No. 124 of the Resolution, Developer
agrees, prior to issuance of the building permit for the 300th
dwelling unit issued within Phase Two of the Project, that
18
Developer shall complete construction of the Town Square (P-4),
within Phase Two, to the satisfaction of the Director of General
Services. The term "complete construction" shall mean park
construction has been completed according to the City approved
construction plans and accepted by the Director of General
Services. For purposes of this condition, the term "constructed
park" shall mean the construction of the Project's park has been
completed and accepted by the City as being in compliance with
the Parks Master Plan, but prior to the City's required mandatory
maintenance period. Developer acknowledges that this is not
intended to supersede any of the City's maintenance guarantee
requirements.
38. Condition No. 130 - (Easements for trail.s). In
satisfaction of Condition No. 130 of the Resolution, Developer
agrees that prior to the approval of each Final Map that contains
a proposed public trail, Developer shall provide an easement to
the City, in a form approved by the City Attorney, for the trail
alignment.
39. Condition No. 131 - (Trail.s). In satisfaction of
Condition No. 131 of the Resolution, Developer agrees that all
trails shall be bonded/secured and constructed with the approved
rough grading, and connect to adjoining existing and/or proposed
trails in neighboring development Projects, as determined by the
Director of General Services.
40. Condition No. 134 - (Trail.s). In partial satisfaction
of Condition No. 134 of the Resolution, Developer é\grees to
construct and secure, in accordance with Section 18.16.220 of the
Municipal Code, the required regional trail, concurrent with the
construction of Hunte Parkway, on the south/east side of Hunte
Parkway (within the Chula Vista Greenbelt) from the future
Pedestrian Bridge No. 2 between Neighborhoods R-17 and R-17 as
depicted on the Parks, Trails and Open Space Plan in the Village
Eleven SPA Plan north to the intersection of Hunte Parkway and
Olympic Parkway listed below and pursuant to Exhibit "B" per the
Project Landscape Master Plan as approved by the Ci~y and as may
be amended from time to time.
41. Condition No. 140 - (Landscape Pl.ans). In satisfaction
of Condition No. 140 of the Resolution, Developer agrees that
prior to the issuance of each construction permit for the
Project, the Developer shall prepare, submit and obtain the
approval of the City Engineer and the Director of General
Services, landscape and irrigation plans, for open space,
parkway, medians and trails. Developer further agrees that all
plans shall be prepared in accordance with the current Chula
Vista Landscape Manual and the Village Eleven SPA, as may be
19
(,~. /
amended from time to time. Concurrently with installation of
improvements immediately thereto, Developer further agrees to
install all improvements in accordance with approved plans to the
satisfaction of the Director of General Services.
42. Condition No. 141 - (Landscape Plans). In partial
satisfaction of Condition No. 141 of the Resolution and prior to
the approval of the first final "B" map, Developer agrees to:
a. Submit evidence, acceptable to the City Engineer
and the Director of Planning and Building of the formation of
a Master Homeowner's Association (MHOA) , or another financial
mechanism acceptable to the City Manager. The MHOA shall be
responsible for the maintenance of those landscaping
improvements that are not to be included in the proposed
financial mechanism. The City Engineer and the Director of
Planning and Building may require that some of those
improvements shall be maintained by the Open Space District.
The final determination of which improvements are to be
included in the Open Space District and those to be
maintained by the MHOA shall be made during the Open Space
District Proceedings. The MHOA 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. The MHOA
formation documents shall be subject to the approval of the
City Attorney; and,
b. Submit for City's approval the CC&R's, grant of
easements and maintenance standards and responsibility of the
MHOA's for the Open Space Areas within the Project area.
Developer acknowledges that the MHOA's maintenance of public
open space, trails, etc. may expose the City to liability.
Developer agrees to establish a MHOA that will hold the City
harmless from any actions of the MHOA in the maintenance of
such areas; and,
c. Submit and obtain approval of the C-ity Engineer
and the Director of Planning and Building of a list of all
Otay Ranch Village Eleven SPA and MHOA facilities and other
items to be maintained by the proposed district. Separate
lists shall be submitted for the improvements and facilities
to be maintained by the Open Space District and those to be
maintained by a Master Homeowner's Association. Include a
description, quantity and cost per year for the perpetual
maintenance of said improvements. These lists shall include
but are not limi ted to the following facilities and
improvements:
20
( -~ .L
i. All facilities located on open space lots such
as walls, fences, water fountains, lighting structures,
paths, trails, access roads, drainage structures and
landscaping. Each open space lot shall also be broken
down by the number of acres of: 1) turf, 2) irrigated,
and 3) non-irrigated open space to aid in the
estimation of a maintenance budget thereof.
ii. Medians and parkways along Olympic Parkway,
Eastlake Parkway and Hunte Parkway, Birch Road, (onsite
and offsite) and all other street parkways proposed for
maintenance by the applicable Community Facilities
District or Homeowners' Association.
iii. The proportional share of the proposed
detention basin (temporary or permanent) located in the
Salt Creek Sewer Basin. This includes the cost of
maintenance and all cost to comply with the Department
of Fish and Game and the Corps of Engineers permit
requirements.
i v . The proportional share of the maintenance of
the median and parkways along that portion of Olympic
Parkway adjoining the development as determined by the
Ci ty Engineer.
v. All water quality basins serving the Project.
43. Condition No. 142 - (Open Space Lots). In satisfaction
of Condition No. 142 of the Resolution, Developer agrees to
execute and record an irrevocable offer of dedication of fee
interest to the City on all final maps for all open space lots
shown on the tentative map and to be maintained by the City
through the open space district.
44. Condition No. 143- (Maintenance Plan). In satisfaction
of Condition No. 143 of the Resolution, Developer agrees to
provide, at the direction and upon request of the Director of
Planning and Building, a revised Village Eleven (C.V.T. 01-11)
Maintenance Responsibility Map and amend it from time to time as
deemed necessary by the Director of Planning and Building, which
map shall include delineation of private and public property.
45. Condition No. 150 - (Maintenance District). In
satisfaction of Condition No. 150 of the Resolution, Developer
agrees to not protest formation or inclusion in a maintenance
district or zone for the maintenance of landscaped medians and
scenic corridors along streets within or adjacent to the Project.
46. Condition No. 151 - (Landscape Funding Mechanism). In
satisfaction of Condition No. 151 of the Resolution, Developer
agrees and City acknowledges that Developer has placep a funding
mechanism acceptable to the City, in the City's sole discretion,
21
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with the City which will guarantee the maintenance of the L&I
improvements until the City accepts said improvements. Developer
further acknowledges and agrees that in theevent the improvements
are not maintained to City standards, as determined by the City
Engineer and the Director of General Services, the deposit shall
be used to perform the maintenance. Developer further agrees
that 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, ("Minimum Deposit Amount"),
as determined by the City Engineer. Developer further agrees that
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. If, 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 months of the maintenance period if the
maintenance is being accomplished to the satisfaction of the
Director of General Services.
47. Condition No. 158 - (Sight Visibility). In satisfaction
of Condition No. 158, the Developer agrees not to place street
trees in conflict with the sight visibility of any traffic
signage. The Developer further agrees to remove any obstructions
within the sight visibility of said traffic signs to the
satisfaction of the City Engineer.
48. Condition No. 159 - (Grant Easements). In satisfaction
of Condition No. 159, the Developer agrees to grant easements to
subsequent owners pursuant to Section 18.20.150 of the City Code
on any final map that proposes private utili ties - or drainage
facilities crossing property lines as directed by the City
Engineer.
49. Condition No. 164 - (Off Site Right of Way). In partial
satisfaction of Condition No. 164, the Developer agrees to notify
the City at least 60 days prior to consideration of a map by City
if any off-site right-of-way cannot be obtained as required by
the Conditions of approval. (Only off-site right-of-way or
easements affected by Section 66462.5 of the Subdivision Map Act
are covered by this condition.) After said notifiçation, the
Developer shall:
22
a. Pay the full cost of acquiring off-site right-of-
way and/or easements required by the Conditions of Approval
of the tentative map.
b. Deposit with the City the estimated cost of
acquiring said right-of-way and/or easements. Said estimate
to be approved by the City Engineer.
c. Have all easements and/or right-of-way documents
and plats prepared and appraisals complete which are
necessary to commence condemnation proceedings as determined
by the City Attorney.
d. Request that the City use its powers of Eminent
Domain to acquire right-of-way, easements or licenses needed
for off-site improvements or work related to the final map.
The Developers shall pay all costs, both direct and
indirect incurred in said acquisition.
50. Condi tion No. 172 - (Withhold Permits per PFFP). In
satisfaction of Condition No. 172 of the Resolution, Developer
agrees:
a. That the City may withhold building permits for the
subject subdivision if anyone of the following occur:
i. Regional development threshold limits set by
the Chula Vista Transportation Phasing Plan, as amended
from time to time, have been reached or in order to
have the Project comply with the Growth Management
Program, as may be amended from time to time.
ii. Traffic volumes, levels of service, public
utilities and/or services either exceed the adopted
City threshold standards or fail to comply with the
then effective Growth Management Ordinance, and Growth
Management Program and any amendments thereto. Public
utilities shall include, but not be limited to, air
quality, drainage, sewer and water.
iii. The required public facilities, as identified
in the PFFP or as amended or otherwise conditioned have
not been completed or constructed to the satisfaction
of the City. The Developer may propose changes in the
timing and sequencing of development and the
construction of improvements affected. In such case,
the PFFP may be amended as approved by the City's
Director of Planning and Building and the Public Works
Director. The Developer agrees that the' City may
23
,.
withhold building permits for any of the phases of
development identified in the Public Facilities
Financing Plan (PFFP) for Otay Ranch Village Eleven SPA
if the required public facilities, as identified in the
PFFP or as amended by the Annual Monitoring Program
have not been completed.
b. To defend, indemnify and hold harmless the City and
its agents, officers and employees, from any claim, action or
proceeding against the City, or its agents, officers or
employees, to attack, set aside, void or annul any approval
by the City, including approval by its Planning Commission,
City Council or any approval by its agents, officers, or
employees with regard to this subdivision pursuant to Section
66499.37 of the State Map Act provided the City promptly
notifies the Developer of any claim, action or proceeding and
on the further condition that the City fully cooperates in
the defense.
c. To ensure that all franchised cable television
companies ("Cable Company") are permitted equal opportunity
to place conduit and provide cable television service to each
lot within the subdivision. Developer agrees that the City
of Chula Vista may grant access to cable companies franchised
by the City of Chula Vista to place conduit within the City's
easement situated within the Project. Developer shall
restrict access to the conduit to only those franchised cable
television companies who are, and remain in compliance with,
all other rules, regulations, ordinances and procedures
regulating and affecting the operation of cable television
companies as same may have been, or may from time to time be
issued by the City of Chula Vista.
d. That the City may withhold the issuance of building
permits for the Project, should the Developer be determined
by the City to be in breach of any of the terms of the
Tentative Map Conditions or any Supplemental Agreement. The
City shall provide the Developer of noti.ce of such
determination and allow the Developer reasonable time to cure
said breach
e. To hold the City harmless from any liability for
erosion, siltation or increase flow of drainage resulting
from this Project.
51. Condition No. 174 - (Previous Agreements). In
satisfaction of Condition No. 174 of the Resolution, Developer
agrees to comply with all previous agreements as they pertain to
the Tentative Map including but not limited to the "supplemental
24
subdivision improvement agreement for Village 11" approved by
City Council Resolution 2003-075 on March 4, 2003 and "Agreement
for Monitoring of Building Permits" approved by City Council
pursuant to City Resolution 2003-167
52. Condition No. 175 - (Street Sweeping). In satisfaction
of Condition No. 175 of the Resolution, Developer agrees to
contract with the City's current street sweeping franchisee, or
other server approved by the City Engineer to provide street
sweeping for each phase of development on a frequency and level
of service comparable to that provided for similar areas of the
City. The Developer further agrees to cause street sweeping to
commence immediately after the final residence, in each phase, is
occupied and shall continue sweeping until such time that the
City has accepted the street or 60 days after the completion of
all punch list items, whichever is shorter. The Developer further
agrees to provide the City Special Operations Manager with a copy
of the memo requesting street sweeping service, which memo shall
include a map of areas to be swept and the date the sweeping will
begin.
53. Condition No. 176 - (Regional Impact Fees). In
satisfaction of Condition No. 176 of the Resolution, Developer
agrees to not protest the formation of any future regional
benefit assessment district formed to finance regional
facilities.
54. Condition No. 179 - (No Protest LRT Assessment
Formation). In satisfaction of Condition No. 179 of the
Resolution, Developer agrees to not protest the formation of any
potential future regional benefit assessment district formed to
finance the Light Rail Transit (LRT).
55. Condition No. 180 - (Open Space Lots). In satisfaction
of Condition No.180 of the Resolution, Developer agrees to
construct and secure open space landscape improvements within the
map area as set forth on Exhibit "B". Developer f\gther agrees
to deliver within 30 days of the recordation of this agreement,
in a form acceptable to the City Engineer, an Irrevocable Offer
to Dedicate open space along Eastlake Parkway, including but not
limited to those areas abutting Eastlake Parkway and planning
areas R-24, R-25, and MU-1 as shown on the approved Tentative
Map.
56. Condition No. 181 - (Schools). Condition No. 181 -
(Schools). In partial satisfaction of Condition No. 181 of the
Resolution, Developer agrees to provide, prior to January 1,
2005, a 25-net usable acre graded junior (middle) high school
25
,;
site to the Sweetwater Union High School District as shown as "S-
2" on the Tentative Map. All utilities shall be provided to the
site including an all weather access road acceptable to the
District and the Fire Department. This schedule is subject to
modification by the School District as based on District facility
needs.
57. Condi.ti.on No. 183 - (PFFP). In satisfaction of
Condition No. 183 of the Resolution, Developer agrees to install
all public facilities in accordance with the Village Eleven
Public Facilities Finance Plan (PFFP), or as required to meet the
Growth Management Threshold standards adopted by the City.
Developer acknowledges and agrees that the City Engineer may
modify the sequence of improvement construction should conditions
change to warrant such a revision. The Developer further agrees
to comply with Chapter 19.09 of the Chula Vista Municipal Code
(Growth Management Ordinance) as may be amended from time to time
by the City. Said Chapter includes but is not limited to
Threshold Standards (19.09.040) Public Facilities Plan
Implementation (19.09.090) and Threshold Compliance Procedures
(19.09.100).
58. Condi.ti.on No. 184 - (Interi.m faci.li.ti.es). In
satisfaction of Condition No. 184 of the Resolution, Developer
agrees that the maintenance and demolition of all interim
facilities (public facilities, utilities and improvements) is the
Developer's responsibility, and that construction and demolition
bonds will be required to the satisfaction of the City Engineer.
59. Condi. ti.on No. 185 - (Offsi.te ROW). In satisfaction of
Condition No. 185 of the Resolution, Developer agrees to acquire
offsite right of way and easements necessary to comply with the
PFFP schedule to be dedicated to the City. Developer also agrees
to bond for the off-site improvements as required by the City
Engineer.
60. Condi.ti.on No. 189 - (Annual revi.ew). In satisfaction of
-
Condition No. 189 of the Resolution, Developer agrees that
pursuant to the provisions of the Growth Management Ordinance
(Section 19.09 of the CVMC) and the Otay Ranch General
Development Plan (GDP), and as they may be amended from time to
time, the Developer shall complete the following: (1) Fund the
preparation of an annual report monitoring the development of the
community of Otay Ranch. The annual monitoring report will
analyze the supply of, and demand for, public facilities and
services governed by the threshold standards. An annual review
shall commence following the first fiscal year in which
residential occupancy occurs and is to be completed- during the
second quarter of the following fiscal year. The annual report
26
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shall adhere to those guidelines noted on page 353, Section D of
the GDP/SRP; and (2) Prepare a five year development phasing
forecast identifying targeted submittal dates for future
discretionary applications (SPA's and tentative maps), Projected
construction dates, corresponding public facility needs per the
adopted threshold standards, and identifying financing options
for necessary facilities.
61. Condition No. 193 - (Phasing Plan). In satisfaction of
Condition No. 193 of the Resolution, Developer agrees that any
proposals to modify the Village Eleven SPA approved that any
proposals to modify the Village Eleven SPA approved phasing plan,
shall be submitted to the City for review and approval prior to
approval of the first final "B" Map. The Developer further
acknowledges and agrees that the PFFP shall be revised where
necessary to reflect the revised phasing plan.
62. Condition No. 195 - (Phasing Plan). In satisfaction of
Condition No. 195 of the Resolution, Developer agrees that if
phasing is proposed within an individual map or through multiple
final maps, the Developer shall submit and obtain approval for a
development phasing plan by the City Engineer and Director of
Planning and Building prior to approval of any final map.
Developer further acknowledges and agrees that improvements,
facilities and dedications to be provided with each phase or unit
of development shall be as determined by the City Engineer and
Director of Planning and Building. Developer acknowledges that
the City reserves the right to require said improvements,
facilities and/or dedications as necessary to provide adequate
circulation and to meet the requirements of police and fire
departments, and that the City Engineer and Director of Planning
and Building may, at their discretion, modify the sequence of
improvement construction should conditions change to warrant such
a revision. The Developer further agrees that the City Engineer
may change the timing of construction of the public facilities.
63. Condition No. 196 - (Phasing Plan). In satisfaction of
Condition No. 196 of the Resolution, Developer agrees that the
Public Facility Finance Plan or revisions thereto shall be
adhered to for the SPA and tentative map with improvements
installed in accordance with said plan or as required to meet
threshold standards adopted by the City of Chula Vista.
Developer acknowledges that the PFFP identifies a facility
phasing plan based upon a set of assumptions concerning the
location and rate of development within and outside of the
Project area; that throughout the build-out of Village Eleven
SPA, actual development may differ from the assumptions contained
in the PFFP; and that neither the PFFP nor any otl:1er Village
Eleven SPA Plan document grant the Developer an entitlement to
27
--______m --
develop as assumed in the PFFP, or limit the Village Eleven SPA's
facility improvement requirements to those identified in the
PFFP. Developer acknowledges that compliance with the City of
Chula Vista threshold standards, based on actual development
patterns and updated forecasts in reliance on changing
entitlements and market conditions, shall govern Village Eleven
SPA development patterns and the facili ty improvement
requirements to serve such development. In addition, Developer
acknowledges and agrees that the sequence in which improvements
are constructed shall correspond to any future Chula Vista
Transportation Phasing Plan or amendment to the Growth Management
Program and Ordinance adopted by the City and that the City
Engineer may modify the sequence of improvement construction
should conditions change to warrant such a revision.
64. Condition No. 197 - (Phasing Plan). In satisfaction of
Condition No. 197 of the Resolution, Developer agrees that prior
to approval of any final map proposing the creation of a Multi-
family housing for the Project including Planning Areas R-17, R-
18, R-19, R-23, R-24, R-25 or MU-l as a condominium Project,
community apartment Project, or stock cooperative, as defined in
the applicable sections of the Government Code, Developer agrees
to process a subsequent tentative map, upon request of the City
Engineer, for said proposed condominium, community apartment, or
stock cooperative Project in said Planning Area pursuant to
Section 66426 of the Subdivision Map Act.
65. Condition No. 198 - (Code Requirements). In
satisfaction of Condition No. 198 of the Resolution, Developer
agrees to comply with all applicable sections of the Chula Vista
Municipal Code. Developer acknowledges and agrees that
preparation of the Final Map and all plans shall be in accordance
with the provisions of the Subdivision Map Act and the City of
Chula Vista Subdivision Ordinance and Subdivision Manual.
Developer further agrees to underground all utilities within the
subdivision in accordance with Municipal Code requirements.
66. Condition No. 199 - (Code Requirements). In
satisfaction of Condition No. 199 of the Resolution, Developer
agrees to pay the following fees in accordance with the City Code
and Council Policy:
a. The Transportation and Public Facilities Development
Impact Fees.
b. Signal Participation Fees.
c. All applicable sewer fees, including but not limited
to sewer connection fees.
c. Interim SR-125 impact fee.
d. Salt Creek Sewer Basin and Poggi Canyon Sewer Basin
28
,
DIF.
e. The Pedestrian Bridge DIF.
f. The FIND Model reserve Fund Fee.
Developer agrees to pay the amount of said fees in effect at the
time of issuance of building permits
67. Condition No. 200 - (Code Requirements). In partial
satisfaction of Condition No. 200 of the Resolution, Developer
agrees to comply with all relevant Federal, State, and Local
regulations, including the Clean Water Act. The Developer agrees
to be responsible for providing all required testing and
documentation to demonstrate said compliance as required by the
City Engineer.
68. Condition No. 203 - (Code Requirements). In partial
satisfaction of Condition No. 203 of the Resolution, Developer
agrees that all proposed development should be consistent with
the Otay Ranch Village Eleven SPA Planned Conununity District
Regulations.
69. Condition No. 204 - (Code Requirements). In partial
satisfaction of Condition No. 204 of the Resolution, Developer
agrees to comply with Chapter 19.09 of the Chula Vista Municipal
Code (Growth Management) as may be amended from time to time by
the City. Said chapter includes but is not limited to: threshold
standards (19.09.04), public facilities finance plan
implementation (19.09.090), and public facilities finance plan
amendment procedures.
70. Condition No. 205 - (Code Requirements). In partial
satisfaction of Condition No. 205 of the Resolution, Developer
acknowledges that the City amending its Growth Management
Ordinance to add Section 19.09.105, to establish provisions
necessary to ensure compliance with adopted threshold standards
(particularly traffic) prior to construction of State Route 125.
Developer acknowledges and agrees that said proyisions will
require the demonstration, to the satisfaction of the City
Engineer, of sufficient street system capacity to acconunodate a
proposed development as a prerequisite to final map approval for
that development, and the Developer hereby agrees to comply with
adopted amendments to the Growth Management Ordinance.
71. Satisfaction of Conditions. City agrees that the
execution of this Agreement constitutes satisfaction or partial
satisfaction of Developer's obligation of Condition Nos. 1-6, 8,
12, 13, 27, 32, 36, 39, 40, 43, 46, 48, 49, 50, 51, 55, 56, 57,
60, 63, 69, 72, 78, 86, 96, 108, 109, 114, 115, 116, 118-121,
124, 130, 131, 134, 140, 141, 142, 143, 150, 151, 155, 158, 159,
29
~11
------
164, 172, 174-177, 179, 180, 181, 183, 184, 185, 189, 192, 193,
195, 196, 197, 198-200, 203-205 of Resolution 2001-364.
Developer further understands and agrees that the some of the
provisions herein may be required to be performed or accomplished
prior to the approval of subsequent final maps for the Project,
as may be appropriate.
72. Unfulfilled Conditions. Developer hereby agrees,
unless otherwise conditioned, that Developer shall comply with
all unfulfilled conditions of approval of the Tentative Map,
established by Resolution No. 2001-364 and shall remain in
compliance with and implement the terms, conditions and
provisions therein.
73. Recording. This Agreement, or an abstract hereof shall
be recorded simultaneously with the recordation of the Final Map.
74. Building Permits. Developer and Guest Builders
understand and agree that the City may withhold the issuance of
building permits for the Project, should the Developer be
determined by the City to be in breach of any of the terms of
this Agreement. The City shall provide the Developer of notice
of such determination and allow the Developer with reasonable
time to cure said breach.
75. Miscellaneous'
a. Notices. Unless otherwise provided in this
Agreement or by law, any and all notices required or
permitted by this Agreement or by law to be served on or
delivered to either party shall be in writing and shall be
deemed duly served, delivered, and received when personally
delivered to the party to whom it is directed, or in lieu
thereof, when three (3) business days have elapsed following
deposit in the U.S. mail, certified or registered mail,
return receipt requested, first-class postage prepaid,
addressed to the address indicated in this Agreement. A
party may change such address for the purpose of this
paragraph by giving written notice of such change to the
other party.
CITY OF CHULA VISTA
276 Fourth Avenue
Chula Vista, CA. 91910
Attn: City Engineer
DEVELOPER:
Brookfield Shea Otay, LLC
12865 Pointe Del Mar, Suite 200
30
~
Del Mar, CA 92014
Attn: John Norman, Vice President
Tel: (858) 481-8500
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
limi t the scope or intent of this Agreement or any of its
terms.
c. Entire Agreement. This Agreement contains the
entire agreement between the parties regarding the subject
matter hereof. Any prior oral or written representations,
agreements, understandings, and/or statements shall be of no
force and effect. This Agreement is not intended to
supersede or amend any other agreement between the parties
unless expressly noted.
d. Preparation of Agreement. No inference, assumption
or presumption shall be drawn from the fact that a party or
his attorney prepared and/or drafted this Agreement. It
shall be conclusively presumed that both parties participated
equally in the preparation and/or drafting this Agreement.
e. Recitals; Attachments' Any recitals set forth above
and exhibits attached hereto are incorporated by reference
into this Agreement.
f. Attorneys' Fees. If either party commences
litigation for the judicial interpretation, reformation,
enforcement or rescission hereof, the prevailing party will
be entitled to a judgment against the other for an amount
equal to reasonable attorney's fees and court costs incurred.
The "prevailing party" shall be deemed to be the_party who is
awarded substantially the relief sought.
[NEXT PAGE IS PAGE ONE OF TWO SIGNATURE PAGES]
31
[PAGE ONE OF TWO SIGNATURE PAGES TO THE SUPPLEMENTAL SUBDIVISION
IMPROVEMENT AGREEMENT FOR OTAY RANCH VILLAGE ELEVEN, CHULA VISTA
TRACT NO. 01-11]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed the day and year first hereinabove set forth.
CITY OF CHULA VISTA
Stephen C. Padilla
Mayor
Attest:
Susan Bigelow
City Clerk
Approved as to form:
Ann Moore
City Attorney
[NEXT PAGE IS PAGE TWO OF TWO SIGNATURE PAGES]
32
¡-7f
[PAGE TWO OF. TWO SIGNATURE PAGES TO THE SUPPLEMENTAL SUBDIVISION
IMPROVEMENT AGREEMENT FOR OTAY RANCH VILLAGE ELEVEN, CHULA VISTA
TRACT NO. 01-11]
DEVELOPERS/OWNERS:
BROOKFIELD SHEA OTAY, LLC, a California Limited Liability Company
By: Brookfield Otay LLC,
a Delawar imHe~ èi bilHy compo::: M~' ~
By:
,7::> Name: ¿;:~ 'ee
By: Shea Otay Village 11, a California Limited Liability
Company, Member
By: Shea Homes Limited Partnership, a California Limited
Partnership, its Sole Member
By: J. F. Shea LLC, a Delaware Limited Liability Company, its
General par~ By: ~~ J
By: A.L"> ~.
Name: Jdm ß. Vtl.f1f!e. Name: PaLl! L. L. ðßfl1-t5
(Attach Notary Acknowledgment)
33
6.
-_.~_._--
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California } ss
County of San Diego
On April 13, 2004, before me, Colette Kavanagh, Notary Public,
personally appeared John W. Norman and E. Dale Gleed,
personally known to me to be the person
whose names are subscribed to the within
instrument and acknowledged to me that
they executed the same in their authorized
capacity, and that by their signatures on the
instrument the persons, or the entity upon
behalf of which the persons acted, executed
the instrument.
WITNESS my hand and official seal.
C:~.'r <""'\ "'-L \C,.,. d.~ -_oL_.~..
PI,ce Nota')' Seal Abo,e S;go,tuce of Nota')' P"bl;c
OPTIONAL
Though the information below is not required by law. it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reaffachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date: Number of Pages:
,.
Signer(s) Other Than Named Above:
Capacity Claimed by Signer
R;ghf Th"rnb,"nt
of S;gne,
Signer's Name: Topofth"mbh",
II Individual
0 Corporate Officer - Title: Vice President
0 Partner - 0 Limited 0 General
0 Attorney in Fact
IJ Trustee
IJ Guardian or Conservator
0 Other:
Signer is Representing:
State of California )
) S.S.
County of San Diego )
On April 13, 2004 before me, Debra E. Young, Notary Public, personally appeared
John B. Vance and PaulL. 1. Barnes personally known to me to be the persons whose
names are subscribed to the within instrument and acknowledged to me that they executed
the same in their authorized capacities, and that by their signatures on the instrument the persons,
or the entity upon behalf of which the persons acted, executed the instrument.
WITNESS my hand and official seal. . ~ DEBRA f. YOUNG ~
~J;.~ -.., Comm.U1333971
If) ,-lit. NOTARVPUBUC-CAUfORNIA (J)
" ~, San 0"90 County -
1 ,." MyCOmmExp""oec9,200S!
- --.--- --- ------~--.-
EXHIBIT "A"
PROPERTY DESCRIPTION
Lots A, B, and C of Chula Vista Tract No. 01-11 Otay Ranch Village
11 "A" Map No.1 in the City of Chula Vista, County of San Diego,
State of California, according to Map thereof No.14559, filed in
the Office of the County Recorder of San Diego County on March 17,
2003 as File No. 2003-0293202 of Official Records.
34
It
EXIllBIT "B"
LIST OF SECURITIES
cv WO No Description Bond $ Bonding Company Bond
IDrawin" #) Name number
1 Eastlake Parkway, Bircb Road $1,300,000Faitbful Insurance Company of 2125678
to Hunte Parkway perfonnaoce tbe West
Improvements per Public $1,300,000Labor and
Facilities Financing Plan Material
(PFFP) for Olay Ranch
Village 11 SPA
2 Eastlake Parkway, Birch Road $2,3l0,000GradingiDrainage Insurance Company of 2125680
to Hunte Parkway Grading per Bond the West
Public Facilities Financing
Plan (PFFP) for Otay Ranch
Village 11 SPA
3 Olay Lakes Road Widening, H $1,000,000 Faithful Insurance Company of 2125679
Street to Telegraph Canyon perfonnance tbe West
Road (widen to 6 lanes) per $1,000,000 Labor and
Public Facilities Financing Material
Plan (PFFP) for Otay Ranch
ViII~ II SPA
4 03101 Eastlake Parkway, Kestrel $925,500 Faithful Insurance Company of 2084618
Falls Road to Birch Road perfonnance the West
including Traffic Signal @ $925,500 Labor and Material
Birch Road
5 03071 Hunte Pkwy @ Hidden Path $190,413 Faithful Insurance Company of 2125672
Drive Traffic Signal perfonnance the West
$190 413 Labor and Material
6 Temporary Slopes west of $56,481 Cash Deposit Engineering Penult
Eastlake Parkwav No.
7 Transit Stop Facilities $13,900 Cash Deposit Engineering Pennit
No.
OR-613 I Landscape & Irrigation for OR $401,972.10 Fidelity and Deposit
8 (03104-01 to Village 1 I Phase 2 Eastlake Landscape and Irrigation Compa!1yofMaryland 08741712
24) Parkway (Station 22+00 to Bond
41+68)
Landscape & Irrigation for OR $ To be submitted within
9 Village 11 Phase 3 Eastlake Landscape and Irrigation 30 days after
Parkway (Station 41+68 to Bond recordation of this
Hunte Parkway) Agreement
OR-6ll I Landscape & Irrigation for OR $ 544,606.17 Fidelity and Deposit
10 (03094-01 to Village II Phase 2 Hunte Landscape and Irrigation Company of Maryland 08741711
33) Parkway Bond
11 OR-615l Landscape & Irrigation for OR $ 461,612.58 Fidelity and Deposit
103105-01 to Vill~ II Phase 2 Backbone Landscaoe and Jrri"ation ComoanvofMarvland 08741710
35
6
..-..--..----...
II 26) Streets Bond
OR-610 0) Landscape & Irrigation for OR $ 1,012,827.75 Safeco Insurance
12 (03062-01 to Village 11 Phase 2 Slopes Landscape and Irrigation Company of America 6239859
62) (CFD Sloees) Bond
OR-610 0) Landscape & Irrigation for OR $ 1,359,902.60 Safeco Insurance
13 (03062-0] to Village II Phase 2 Slopes Landscape and Irrigation Company of America 6239864
62) IHOA Slones) Bond
OR-610 0) Landscape & Irrigation for OR $ 262,284.05 Safeco Insurance
14 (03062-0 I to Village II Phase 2 Slopes Landscape and Irrigation Company of America 6239860
62) ! IPaseo HOA Sloees) Bond
OR-610 0) Landscape & Irrigation for OR $ 985,206.29 Safeco Insurance
15 (03062-01 to Village II Phase 2 Slopes Landscape and Irrigation Company of America 6239863
62) !Private Slones) Bond
OR-610 0) Landscape & Irrigation for OR $ 722,238.86 Safeco Insurance
16 (03062-01 to Village I I Phase 2 Slopes Landscape and Irrigation Company of America 6239862
62) (Temeorary SloDes) Bond
OR-610 0) Landscape & Irrigation for OR $ 142,985.52 Safeco Insurance
17 (03062-01 to Village II Phase 2 Slopes Landscape and Irrigation Company of America 6239861
62) (School Site S-I Slones) Bond
18 Landscape & Irrigation for To be submitted within
Otay Lakes Road Widening, H 30 days after
Street to Telegraph Canyon recordation of this
Road (widen to 6 lanes) per Agreement
Public Facilities Financing
Plan (PFFP) for Otay Ranch
Villaae II SPA
36
EXHIBIT "C"
(TEMPORARY SLOPES LEGAL DESCRIPTION)
37
6
- ~------
LEGAL DESCRIPTION
PARCEL "B" - SLOPE EASEMENT:
BEING A PORTION OF PARCEL 3 OF PARCEL MAP NO. 18481, IN THE CITY OF CHULA
VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, FILED IN THE OFFICE OF THE
SAN DIEGO COUNTY RECORDER ON MAY 31,2000, BEING MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF LOT "A" OF CHULA VISTA TRACT NO. 01-
11, OTAYRANCH VILLAGE 11 "A" MAP NO. 2,ACCORDING TO MAP THEREOF NO.
, FILED IN THE OFFICE OF SAID COUNTY RECORDER
2004, SAID POINT BEING ON THE EASTERLY LINE OF SAID PARCEL 3. SAID POINT ALSO
BEING THE EASTERLY TERMINUS OF THAT COURSE IN THE SOUTHERLY LINE OF
EASTLAKE PARI<mAY AS DEDICATED PER DOCUMENT RECORED OCTOBER 17,2003
AS DOCUMENT NO. 2003-1277077 OF OFFICIAL RECORDS, BEARING NORTH 68°43'48"
EAST, 101.39 FEET; THENCE ALONG SAID SOUTHERLY LINE SOUTH 68°43'48" WEST,
101.39 FEET; THENCE LEAVING SAID SOUTHERLY LINE OF EASTLAKE PARI<mAY,
SOUTH 21°16'12" EAST. 102.89 FEET TO THE TRUE POINT OF BEGINNING; THENCE
SOUTH 21°16'12" EAST, 616.77 FEET TO THE BEGINNING OF A 3651.00 FOOT RADIUS
CURVE CONCAVE SOUTHWESTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF
SAID CURVE THROUGH A CENTRAL ANGLE OF 07°00'00" A DISTANCE OF 446.05 FEET;
THENCE SOUTH 14°16'12" EAST, 280.45 FEET TO THE BEGINNING OF A 2376.00 FOOT
RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE SOUTHERLY ALONG THE ARC
OF SAID CURVE THROUGH A CENTRAL ANGLE OF 21°21 '25" A DISTANCE OF 885.65
FEET TO THE SOUTHERLY LINE OF SAID PARCEL 3; THENCE ALONG SAID SOUTHERLY
LINE, SOUTH 71°57'57" WEST, 129.27 FEET; THENCE LEAVING SAID SOUHERL Y LINE
NORTH 23°59'00" WEST, 521.53 FEET; THENCE NORTH 13°48'00" WEST, 193.00 FEET;
THENCE NORTH 03'49'00" EAST, 41.00 FEET; THENCE NORTH 23°22'00" WEST, 885.00
FEET; THENCE NORTH 16°09'00" WEST, 194.00 FEET;THENCE NORTH 19°59'00" WEST,
412.00 FEET; THENCE NORTH 03°25'00" EAST, 39.00 FEET TO AN ANGLE POINT IN THE
PAGE 1 OF 2
LL:DS M:\23661161Legal DescnplionslAOQ EST LAKE PKWY PH3 OS SLOPE.doc
WO 2366-8 213/04 6 -f,L
-_._---~------_.-
WESTERLY LINE OF THE SLOPE EASEMENT GRANTED TO THE CITY OF CHULA VISTA
PER DOCUMENT RECORDED OCTOBER 17, 2003 AS FILE NO. 2003-1277081 OF
OFFICIAL RECORDS OF SAID SAN DIEGO COUNTY; THENCE ALONG SAID EASEMENT.
SOUTH 58°01 '00" EAST, 52.63 FEET; THENCE NORTH 89°38'00" EAST, 43.90 FEET;
THENCE NORTH 77°25'00" EAST, 33.59 FEET TO THE TRUE POINT OF BEGINNING.
THE HEREIN DESCRIB,ED PARCEL OF LAND CONTAINS 5.399 ACRES, MORE OR LESS.
/QJ// ~ dJL 2:- 3 -2604-
DAVID W. AMBLER LS, 7322
HUNSAKER & ASSOCIATES SAN DIEGO, INC.
PAGE 2 OF 2
LL:DS M:\2366\16\Legal DescrlpiionslAO9 EST LAKE PKWY PH3 OS SLOPE,doc
WQ 2366.8 213/04 -Pj
EXHIBIT "D"
(TEMPORARY SLOPES PLAT)
38
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EXHIBIT "E"
(TEMPORARY SLOPES MAINTENANCE COST)
Cost for maintenace of the slope improvements
Slope area to be maintened: 427,890 sq. ft.
Cost per sq. ft. : $0.04/sq.ft/yr
427,890 sq.ft. X $0.04/sq.ft/yr = $17,115.60/yr
10% contingency = $1711. 56/yr
Total Cost = $18,827.16/yr
Total cost for maintenace of Slope & Drainage Improvements
$18,827 /vr
Assume maintenance for 3 yrs = $56,481
CASH DEPOSIT REQUESTED TO FULFILL THIS OBLIGATION IS $56.481
J,\Engineer\LANDDEV\Projects\Otay Ranch Village ll\A map No.2\OR-610F SSlA.DOC
39
~
_._...~~._-
RESOLUTION NO. 2004- -
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING DESIGNATING AND SETTING
ASIDE OF CERTAIN CITY-OWNED REAL PROPERTY AS
RIGHT-OF-WAY FOR STREET AND PUBLIC UTILITY
PURPOSES FOR HUNTE P ARKW A Y
WHEREAS, the City of Chula Vista is the fee owner of that certain real property,
situated in the City of Chula Vista, County of San Diego, State of California, more particularly
described as Lot 9 of the Otay Rancho, in the City of Chula Vista, County of San Diego, State of
California, according to Map thereof No. 862, filed in the Office of the County Recorder of said
County, February 7,1900; said land currently designated as Assessors Parcel No. 643-070-010;
and
WHEREAS, said property was acquired in fee subject only to the condition that property
shall be used for educational, active public recreation, commercial, industrial, and all other uses
except non-university related residential; and
WHEREAS, the public need and convenience required that certain public street and
highway improvements and appurtenant works be constructed and placed through, in, on, across,
over, under and above a portion of the above described real property, for the improvement of
Hunte Parkway, said portion of said Lot 9 as more particularly described in a legal description
thereof, marked Exhibit "A", and as shown on a sketch thereof, marked Exhibit "B", both
attached hereto and incorporated herein by this reference; and
WHEREAS, this City Council desires to designate and set aside said real property
described in said Exhibit "A" as right-of-way for street and public utility purposes.
NOW, THEREFORE, the City Council of the City of Chula Vista does resolve as
follows:
SECTION I. That this City Council hereby designates and sets aside a perpetual
right-of-way for street and public utility purposes through, in, on, across, over, under and above
the real property described in saId Exhibit "A".
SECTION 2. That said right-of-way is to continue in full force and effect so long as said
property is used for the above stated purposes and uses and until such time that said right-of-way
has been lawfully vacated or abandoned by the duly constituted public authorities, at which time
said property shall revert to the person, persons or entity entitled thereto.
SECTION 3. That the City Clerk shall cause a certified copy of this resolution to be
recorded in the Office of the County Recorder of the County of San Diego evidencing this
actIon.
-----------
Resolution -
Page 2
SECTION 4. That said designation and set aside shall be effective upon the filing of
said certified copy in the official records of San Diego County.
Presented by Approved as to form by
~'~
Sohaib AI-Agha A! {(f{¡ ~
City Engineer City Attorney
6~
RESOLUTION NO.2004-
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING THE GRANT OF EASEMENTS
AND MAINTENANCE AGREEMENT FOR OT A Y RANCH
VILLAGE 11 "A" MAP NO.2
WHEREAS, the Grant of Easements and Maintenance Agreement for Otay Ranch
Village II "A" Map No.2 for the grant of easements and maintenance agreement sets forth the
developer's obligation to maintain landscaping in the public right of way; and
WHEREAS, the obligation will be assigned to the homeowner's association (HOA)
after the landscaping has been established and turned over to the HOA to maintain; and
WHEREAS, further agreements will be brought before council with each subsequent
map for HOA maintained public property within the subdivision boundary.
NOW, THEREFORE, BE IT RESOLVED the City Council of the City ofChula Vista
does hereby approve the Grant of Easements and Maintenance Agreement for the grant of easements
and maintenance forChula Vista Tract No. 01-11, Otay Ranch, Village 11 "A" Map No.2, a copy of
which shall be kept on file in the office of the City Clerk.
BE IT FURTHER RESOLVED that the Mayor of the City ofChula Vista is hereby
authorized to execute said Agreement on behalf of the City ofChula Vista.
Presented by Approved as to form by
~~/1(1\ '~
Sohaib AI-Agha Ann e
City Engineer City Attorney
JlEngmcc,.ILANDDEYIProjectsIOt,y Ronch Y,II'gc ] 1 \A m,p No.2IReso.G,.oo' of Eosements.doc
-.--.----------
THE ATTACHED AGREEMENT HAS BEEN REVIEWED
AND APPROVED AS TO FORM BY THE CITY
ATTORNEY'S OFFICE AND WILL BE
FORMALL Y SIGNED UPON APPROVAL BY
THE CITY COUNCIL
~~~o~
City Attorney
Dated: 'i~ / S- --() 7'
Grant of Easements and Maintenance
Agreement for Otay Ranch Village II "A" Map No.2
. -..--.-----.
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City Clerk
City ofChula Vista
276 Fourth Avenue
Chula Vista, CA 91910
No transfer tax is due as this is a conveyance to
a public agency for less than a fee interest for
which no cash consideration has been paid or
received.
(ABOVE SPACE FOR RECOROER'S USE)
GRANT OF EASEMENTS, LICENSE AND MAINTENANCE
AGREEMENT
CHULA VISTA TRACT NO. 01-11 "A" MAP NO.2
(DEDICATED EASEMENTS)
This GRANT OF EASEMENTS, LICENSE AND MAINTENANCE AGREEMENT
("Agreement") is made as of this - day of ,200_, by and between the CITY OF
CHULA VISTA, a municipal corporation ("City"), and BROOKFIELD SHEA OT A Y LLC, a California
limited liability company ("BSO, LLC").
RECITALS
A. This Agreement concerns and affects certain improvements within portions of the real
property located in Chula Vista, California, more particularly described in Exhibit "A" attached
hereto and incorporated herein ("Property"). The Property is part of a planned residential development
project commonly known as WindingwalkPlanned Development (and also referred to as "Otay Ranch
Village II "), Chula Vista Tract No. 01-11, being the subjectofthe City Council Resolution No. 2001-
364 (the "City Resolution"). For purposes of this Agreement, the term "Project" shall refer to the
overall Windingwalk Planned Development project, including, but not limited to the "Property."
B. BSO, LLC is the owner of the Property and the Declarant under that certain Master
Declaration of Restrictions For Windingwalk filed or to be filed for record in the Official Records
of San Diego County, California (the "Master Declaration"). The Master Declaration provides for
WINDINGW ALK MASTER ASSOCIA nON, a California Nonprofit Mutual Benefit Corporation
("MHOA") to maintain certain areas in the Project. Furthennore, one or more sub-associations may
be fonned ("SHOA") for a particularproject(s) within WindingwalkPlanned Development, the purposes
of which would include the maintenance of certain amenities within the project over which the SHOA
has jurisdiction.
4/5104 -1- 075022.0001 248ms
-~~~----~.-
C. The Property is or will become covered by that the certain final map(s) (the "Final
Maps") described on Exhibit "A" attached hereto and referenced in the title to this Agreement.
D. In order for BSO, LLC to obtain the Final Maps and for the City to have assurance
that the maintenance of certain areas within the Project would be provided for, the City and BSO,
LLC entered into a Supplemental Subdivision Improvement Agreement pursuant to the City Resolution,
in which BSO, LLC agreed that maintenance of such areas shall be accomplished by the creation
of a home owners association. The Parcels shown on Exhibit "B" attached hereto describe those
particular areas which were dedicated to the public on one ormoreofthe Final Maps but which include
landscaping and drainage improvements to be maintained by the MHOA. The public areas to be
maintained by the MHOA are collectively referred to as the "MHOA Maintained Public Areas."
E. The City desires to grant to BSO, LLC easements for landscape maintenance purposes
upon, over and across the MHOA Maintained Public Areas as shown on Exhibit "8," in order to
facilitate the obligations of BSO, LLC as set forth in Supplemental Subdivision Improvement
Agreements, adopted pursuant to the City Resolution.
NOW, THEREFORE, in consideration ofthe mutual covenants herein contained, the parties
agree as set forth below.
I. Grant of Easements. The City hereby grants to BSO, LLC and its agents, successors
and assigns, non-exclusive easements and rights-of-way over and across the MHOA Maintained Public
Areas for the purpose of maintaining, repairing and replacing landscaping improvements located
thereon. These grants are made without any warranties of any kind, express or implied, other than
the warranty stated in Paragraph 14(1) below.
2. Maintenance Obligations
(a) BSO, LLC to Initially Maintain. BSO, LLC hereby covenants and agrees,
at its sole cost and expense, to maintain, repair and replace, or cause to be maintained, repaired
or replaced, those improvements within the MHOA Maintained Public Areas which are
described on Exhibit "C" attached hereto, at a level equal to or better than the level of
maintenance which is acceptable to the Director of Public Works Operations, at his/her
discretion and equivalent to City or Community Facilities District maintained right-of-way
facilities. For purposes ofthis Agreement, the term "Maintenance" or "Maintain" shall mean
the maintenance, repair, the provision of water and replacement obligations described herein
and on Exhibit "C" hereto and shall also include repair and replacement at no cost to the
City of any City owned property that is damaged during performance of the maintenance
responsibilities pursuant to this Agreement. Exhibit "C" also refers to the maintenance
responsibilities of the City.
(b) Transfer to MHOA. Upon BSO, LLC's transfer of maintenance obligations
to the MHOA, (i) the MHOAshali become obligated to perform the obligations so transferred,
and (ii) subject to the City determining that the requirements of Paragraph 3 below have
4/5104 .2- O7son-OOOI 24m7.5
6
been satisfied, BSO, LLC shall be released ITom such obligation. Transfer of maintenance
obligations to the MHOA may be phased (that is, there may be multiple transfers).
BSO, LLC represents to City that it intends to, and has the authority to, unilaterally
transfer said maintenance obligations either (i) to the MHOA and that such transfer has been
provided for in the Master Declaration, and that such document(s) include the provisions
described in Paragraph 3( a)(ii) below, or alternatively (ii) to a new homeowners association
(the "New Association") established for maintenance of the open space and thoroughfare median
areas in the Property, and that such transfer shall be provided for in the declaration of
restrictions (the "New Declaration") for the New Association, and that such document(s) shall
include the provisions described in Paragraph 3(a)(ü) below. References below in this
Agreement to the "Association" shall include the New Association and "Declaration" shall
include the New Declaration ifBSO, LLC elects to form a new homeowners association for
the Property.
(c) Transfer By MHOA. The MHOA shall have the right to transfer Maintenance
obligations to a sub-association ("SHOA") or to the owner of an apartment project
("Transferee"). Upon the MHOA's transfer of Maintenance obligations to a Transferee, (i)
the Transferee shall become obligated to perfonn the obligations so transferred, (ii) the MHOA
shall retain the right to perform the Maintenance should the Transferee fail to do so, and (iii)
the MHOA shall be released ITom the obligations so transferred subject to the City detennining
that the requirements of Paragraph 4 below have been satisfied. Although it is possible that
Maintenance obligations might be transferred to an apartment owner, BSO, LLC does not
believe it is likely that Maintenance obligations will be transferred to an apartment owner.
3. Assi~nment bv BSO. LLC and Release of BSO. LLC
(a) Assignment. Upon BSO, LLC's transfer of the Maintenance obligations to
the MHOA, it is intended by the parties that the MHOA shall perform the Maintenance
obligations either itself or by contractors. Such transfer will release BSO, LLC ITOm its
obligations only if all of the following occur:
(i) MHOA Accepts Oblil¡ation. The MHOA has unconditionally accepted
and assumed all of BSO, LLC's obligations under this Agreement in writing, such
assignment provides that the burden of this Agreement remains a covenant running
with the land, and the assignee expressly assumes the obligations ofBSO, LLC under
this Agreement. The assignment shall also have been approved by the appropriate
governing body of the MHOA by resolution or similar procedural method and approved
as to form and content by the City Attorney. The City shall not unreasonably withhold
its consent to such assignment.
(ii) MHOA's Master Declaration. The City has confinned that there have
been no modifications to the recorded Master Declaration previously approved by
City, to any of the following provisions: the MHOA shall be responsible for the
maintenance of the MHOA Maintained Public Areas, the MHOA shall'indemnityCity
4/5/04 -3- 0750ll-000124'I77.5
b
-.-.-.-.-..-.,-
for all claims, demands,causes of action, liability or loss related to or arising ftom
the maintenance activities, and the MHOA shall not seek to be released by City from
the maintenance obligations ofthis Agreement, without the prior consent of City and
one hundred percent (100%) of the holders offirst mortgages or owners of the Property.
(iii) MHOA Insurance. The MHOA procures and fonnally resolves to
maintain at its sole cost and expense, commencing no later than the City's release of
all ofBSO, LLC's landscape maintenance bonds, a policy of public liability insurance
which at least meets the requirements of Section 5.1 (a) of the Master Declaration
which reads as follows:
(a) General Liability Insurance. The Master Association
shall obtain a comprehensive general liability and
property damage insurance policy insuring the Master
Association and the Owners against liability incident
to ownership or use ofthe Master Association Property.
The limits of such insurance shall not be less than
$3 Million covering all claims for death, personal injury
and property damage arising out of a single occurrence.
The insurer issuing such insurance shall have rating by
A.M. Best of "A, Class V" or better with no modified
occurrences and as admitted by Best's Insurance Guide.
Such insurance shall include the following additional
provisions provided they are available on a
commercially reasonable basis:
(i) The City of Chula Vista shall be named as an
additionally insured party to such insurance pursuant
to the City's requirements the Master Association do
so;
(ii) The policy shall not contain a cross-suit exclusion
clause which would abrogate coverage should litigation
ensue between insureds;
(iii) The policy shall contain the following severability
clause (or language which is substantially the same):
"The coverage shall apply separately to each insured
except with respect to the limits of liability."
This Section 5.1(a) may not be amended without the written consent
of the City Planning Director or City Attorney.
The MHOA shall provide the City with a Certificate oflnsurance upon procurement
of the policy as set forth above.
4/5104 -4. 075022-000124"77.5
(b) Release. When all conditions precedent in Paragraph 3(a) are fulfilled, BSO,
LLC shall be released from its obligations under this Agreement, including its security and
insurance requirements. BSO, LLCacknowledges that it has a contractual obligation to perform
the terms and conditions of this Agreement until and unless released by the City ITom this
Agreement. At least sixty (60) days prior to such transfer, BSO, LLC shall give a notice to
the City ofBSO, LLC's intent to transfer its Maintenance obligations herein and provide the
City with the appropriate documents listed in Paragraph 3(a).
4. AssÏ!mment bv MHOA and Release of MHOA.
(a) Assignment. Upon MHOA's transfer of the Maintenance obligations to a
Transferee, it is intended by the parties that the Transferee shall perform the Maintenance
obligations either itself or by contractors. Such transfer will release the MHO A from its
obligations only if all of the following occur:
(i) Transferee Accevts Obligation. The Transferee has unconditionally
accepted and assumed all of the MHOA's obligations under this Agreement in writing,
such assignment provides that the burden of this Agreement remains a covenant running
with the land, and the assignee expressly assumes the obligations of the MHOA under
this Agreement. If the Transferee is an SHOA, the assignment shall also have been
approved by the appropriate goveming body of the SHOA by resolution or similar
procedural method and approved as to form and content by the City Attorney. The
City shall not unreasonably withhold its consent to such assignment.
(ii) SHOA's Declaration of Restrictions. If the Transferee is an SHOA,
the City has reviewed and approved the SHOA's recorded Declaration of Restrictions
to confirm that said document contains appropriate maintenance and insurance
provIsIOns.
(iii) SHOA Insurance. The Transferee procures and formally resolves to
Maintain at its sole cost and expense, a policy of public liability insurance which meets
the requirements set forth in Paragraph 3 (a) (iii) above. The SHOA shall provide
the City with a Certificate of Insurance upon acceptance of the transfer of the
Maintenance obligations herein.
(b) Release. When all conditions precedent in Paragraph 4(a) are fulfilled, the
MHOA shall be released from its obligations under this Agreement, including its security
and insurance requirements. At least sixty (60) days prior to such transfer, MHOA shall give
notice to the City of MHO A's intent to transfer its Maintenance obligations herein and provide
the City with the appropriate documents listed in Paragraph 4(a).
5. BSO. LLC'sInsurance. Until such time as the MHOAhas obtained the general liability
insurance required by Section 5.1 (a) of the Master Declaration, BSO, LLC agrees to procure and
formally resolves to maintain at its sole cost and expense, commencing no later than the date that
the landscape architect of record has submitted a letter of substantial confonnance pertaining to work
415104 -5- 075022.0001 "8177.5
t
-----_.~.--
being completed to the General Services Department and the General Services Department Director
or his designee has deemed the workcomplete and satisfactory, a policy of public liability insurance
that would include, but is not limited to the following:
General Liability Insurance. BSO, LLC shall obtain a comprehensive general liability and
property damage insurance policy insuring BSO, LLC against liability incident to ownership or use
of the Property. The limits of such insurance shall not be less than $3 Million covering all claims
for death, personal injury and property damage arising out of a single occurrence. The insurer issuing
such insurance shall have rating by A.M. Best "A, Class V" or better with modified occurrences and
as admitted by Best's Insurance Guide. Such insurance shall include the following additional provisions
provided they are available on a commercially reasonable basis:
(i) The City ofChula Vista shall be named as an additionally insured party to such
insurance pursuant to the City's requirements BSO, LLC do so;
(ii) The policy shall not contain a cross-suit exclusion clause which would abrogate
coverage should litigation ensue between insureds and;
(iii) The policy shall contain the following severability clause (or language which
is substantially the same): 'The coverage shall apply separately to each insured
except with respect to the limits of liability."
BSO, LLC shall provide the City with a Certificate ofInsurance upon procurement of the policy as
set forth above.
6. Indemnity. BSO, LLC shall defend, indemnify and hold hannless the City, its officers,
agents and employees, from any and all actions, suits, claims, damages to persons or property, costs
including attorney's fees, penalties, obligations, errors, omissions, demands, liability, or loss ofany
sort (herein "claims or liabilities"), that may be asserted or claimed by any person, firm, or entity
because of or arising out of or in connection with the use, maintenance, or repair of the MHOA
Maintained Public Areas. BSO, LLC shall not have any liability under this section by reason ofthe
Transferee's failure to maintain.
7. Indemnity If Transferee. The document whereby BSO, LLC transfers a Maintenance
obligation to a Transferee shall be signed by both BSO, LLC and the Transferee and shall set forth
an express assumption of Maintenance and other obligations hereunder and shall include the following
indemnification provision:
Indemnity. The Transferee shall defend, indemnify, and hold harmless the City, its
officers, agents and employees, from any and all actions, suits, claims, damages to
persons or property, costs including attorney's fees, penalties, obligations, errors,
omissions, demands, liability, or loss of any sort (herein "claims or liabilities"), which
result from the Transferee's failure to comply with the requirements ofthe obligations
transferred hereby to Transferee. Transferee shall not have any liability under this
Indemnity by reason of another party's failure to maintain. !tis specifically intended
415104 -6- 0750nOOOI 2"177.5
¡;
that the City shall have the right to enforce this Indemnity. This Indemnity may not
be amended without the written consent of the City Director of Planning and Building
or City Attomey.
8. Agreement Binding Upon Any Successive Parties. This Agreement shall be binding
upon BSO, LLC and any successive Declarant under the Master Declaration. This Agreement shall
be binding uponMHOA and any Transferees upon transfer of maintenance obligations to the MHOA
or Transferee, respectively. This Agreement shall inure to the benefit of the successors, assigns and
interests of the parties as to any or all of the Property.
9. Agreement Runs With the Land. The burden of the covenants contained in this
Agreement ("Burden") is for the benefit ofthe Property and the City, its successors and assigns, and
any successor-in-interest thereto. The City is deemed the beneficiary of such covenants for and in
its own right and for the purposes of protecting the interest of the community and other parties, public
or private, in whose favor and for whose benefit such covenants running with the land have been
provided, without regard to whether the City has been, remained or are owners of any particular land
or interest therein. If such covenants are breached, the City shall have the right to exercise all rights
and remedies and to maintain any actions or suits at law or in equity or other proper proceedings to
enforce the curing of such breach to which it or any other beneficiaries of this Agreement and the
covenants may be entitled.
10. Governinl! Law. This Agreement shall be govemed and construed in accordance with
the laws of the State ofCalifomia.
II. Effective Date. The terms and conditions of this Agreement shall be effective as of
the date this Agreement is recorded in the Official Records of the San Diego County Recorder's Office.
12. Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall be original and all of which shall constitute one and the same document.
13. Recordinl!. The parties shall cause this Agreement to be recorded in the Official Records
of the San Diego County Recorder's Office within thirty (30) days after this Agreement has been
approved by the City Council.
14. Miscellaneous Provisions.
(a) Notices. Unless otherwise provided in this Agreement or by law, any and all
notices required or permitted by this Agreement or by law to be served on or delivered to either
party shall be in writing and shall be deemed duly served, delivered and received when
personally delivered to the party to whom it is directed or, in lieu thereof, when three (3)
business days have elapsed following deposit in the United States mail, certified orregistered
mail, return receipt requested, first-class postage prepaid, addressed to the address indicated
in this Agreement. A party may change such address for the purposeofthis Paragraph by giving
written notice of such change to the other party.
4/5/04 - 7- 075022-0001 24m7.5
6
~------~._--.
IfTo City:
CITY OF CHULA VISTA
Department of Public WorkslEngineering Division
276 Fourth Avenue
Chula Vista, CA 91910
Attn: City Engineer
If To BSO, LLC:
BROOKFIELD SHEA OT A Y LLC
c/o Brookfield Otay LLC
12865 Pointe Del Mar, Suite 200
Del Mar, CA 92014
Attn: Mr. John Nonnan
With a Copy To:
Shea Otay Village II LLC
10721 Treena Street, Suite 200
San Diego, CA 92131
Attn: Ms. Marcia Goodman
(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 tenus.
(c) Entire Agreement. This Agreement, together with any other written document
refelTed to herein, embody the entire agreement and understanding between the parties regarding
the subject matter hereof, and any and all prior or contemporaneous oral or written
representations, agreements, understandings and/or statements shall be of no force and effect.
This Agreement is not intended to supersede or amend any other agreement between the parties
unless expressly noted.
(d) Recitals; Exhibits. Any recitals set forth above and any attached exhibits are
incorporated by reference into this Agreement.
(e) Compliance With Laws. In the performance of its obligations under this
Agreement, BSO, LLC, its agents and employees, shall comply with any and all applicable
federal, state and local rules, regulations, ordinances, policies, permits and approvals.
(f) Authority of Signatories. Each signatory and party hereto hereby warrants
and represents to the other party that it has legal authority and capacity and direction from
its principal to enter into this Agreement, and that all resolutions and/or other actions have
been taken so as to enable said signatory to enter into this Agreement.
4/5/04 + 075022-0001248177.5
(g) Modification. This Agreement may not be modified, tenninated or rescinded,
in whole or in part, except by written instrument duly executed and acknowledged by the parties
hereto, their successors or assigns, and duly recorded in the Official Records of the San Diego
County Recorder's Office.
(h) Severability. If any term, covenant or condition of this Agreement or the
application thereof to any person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Agreement, or the application of such term, covenant
or condition to person or circumstance, shall not be affected thereby and each term, covenant
or condition shall be valid and be enforced to the fullest extent permitted by law.
(i) Preparation of Agreement. No inference, assumption or presumption shall
be drawn from the fact that a party or its attorney prepared and/or drafted this Agreement.
It shall be conclusively presumed that both parties participated equally in the preparation andlor
drafting of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed the day and year first set forth above.
CITY OF CHULA VISTA, a municipal corporation
By:
Stephen C. Padilla, Mayor
Attest:
Susan Bigelow, City Clerk
APPROVED AS TO FORM:
By:
Ann Moore, City Attorney
4/5/04 -9- 075022-000 I 24" 77.5
6 -/(J.J....
...------.-
BROOKFIEW SHEA OTA Y LLC, a California limited liability company
By: Brookfield Otay LLC, a Delaware limited liability company, Member
By ~¿
Its
By ~
Its ~
By: Shea Otay Village II LLC, a California limited liability company,
Member
By
Its
STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN DIEGO )
On , 200_, before me,
Notary Public in and for said State, personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s)
whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in hislher/their authorized capacity(ies), and that by his/her/their signature( s) on
the instrument, the person(s), or the entity upon behalf of which the person(s) acted, executed the
Instrument.
WITNESS my hand and official seal.
Signature (Seal)
3/18/04 -10- 075022-0001248177.2
6
Brookfield Shea Otay LLC, a California limited liability company
By: elaware limited liability company, Member
Date: ~
By: ~t ~~t::..~ ~~~' Date: 3, h (:, \ () "'-
Name: "". II . ><-ìê.'~ "';of>,
Its: "">""",,,,-~~v.
,
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California }ss.
County of San Diego
On March 30, 2004, before me, Colette Kavanagh, Notary Public,
personally appeared John W. Norman and Elizabeth Zepeda,
personally known to me to be the person
whose names are subscribed to the within
instrument and acknowledged to me that
they executed the same in their authorized
capacity, and that by their signatures on the
instrument the persons, or the entity upon
behalf of which the persons acted, executed
the instrument.
WITNESS my hand and official seal.
C~ ~~ \~v¿~ ~ -..
Place Nota,y Seal Abo,e Sigoatu,e of Nolar¡ Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reaftachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Capacity Claimed by Signer Righi Thumbpriol
of Sigoe,
Signer's Name: Top oflhumbh"e
0 Individual
0 Corporate Officer - Title: Vice President
[j Partner - 0 Limited IJ General
[] Attorney in Fact
10 Trustee
n Guardian or Conservator
0 Other:
Signer is Representin\J:
State of California)
) S.s.
County of San Diego)
On March 30, 2004, before me, Elizabeth G. Blust, Notary Public, personally appeared Paul 1.1.
Barnes and John B. Vance, personally known to me to be the persons whose names are subscribed
to the within instrument, and acknowledged to me that they executed the same in their authorized
capacity, and that by their signatures on the instrument the persons, or the entity upon behalf of
which the persons acted, executed the instrument.
WITNESS my hand and official seal.
')""""""~"'-'.:~"'"'f
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~ Nowry Public - California ~ --"
San Diego County
~~~~Ju~1:.~f Not ublicin ountyandState
- The Remainder of this Page is Blank-
____m_--'_'_----
EXHIBIT "A"
Le!!a1 Descriotion
'ISIO' 075022-000124"775
~
EXHIBIT "A"
LEGAL DESCRIPTION
PARCEL A:
A PORTION OF BIRCH ROAD AS DEDICATED TO PUBLIC USE ON CHULA VISTA TRACT
NO. 01-11, OTAY RANCH VILLAGE 11 "A" MAP NO.2, ACCORDING TO MAP THEREOF NO.
FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO
COUNTY ON ,2004 BEING A SUBDIVISION OF A PORTION OF
LOTS A, B, AND C OF CHULA VISTA TRACT NO. 01-11, OTAY RANCH, VILLAGE 11, "A"
MAP NO.1, IN THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, ACCORDING TO MAP THEREOF NO. 14559, FILED IN THE OFFICE OF SAID
COUNTY RECORDER, ON MARCH 17,2003.
PARCEL A-1:
A PORTION OF DISCOVERY FALLS DRIVE AS DEDICATED TO PUBLIC USE ON CHULA
VISTA TRACT NO. 01-11, OTAY RANCH VILLAGE 11 "A" MAP NO.2, ACCORDING TO MAP
THEREOF NO. FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN
DIEGO COUNTY ON , 2004 BEING A SUBDIVISION OF A PORTION
OF LOTS A, B, AND C OF SAID MAP NO. 14559
PARCEL A-2:
A PORTION OF WINDINGWALK STREET AS DEDICATED TO PUBLIC USE ON CHULA
VISTA TRACT NO. 01-11, OTAY RANCH VILLAGE 11 "A" MAP NO.2, ACCORDING TO MAP
THEREOF NO. FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN
DIEGO COUNTY ON , 2004 BEING A SUBDIVISION OF A PORTION
OF LOTS A, B, AND C OF SAID MAP NO. 14559.
PARCEL A-3:
A PORTION OF HIDDEN PATH DRIVE AS DEDICATED TO PUBLIC USE ON CHULA VISTA
TRACT NO. 01-11, OTAY RANCH VILLAGE 11 "A" MAP NO.2, ACCORDING TO MAP
THEREOF NO. FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN
DIEGO COUNTY ON ,2004 BEING A SUBDIVISION OF A PORTION
OF LOTS A, B, AND C OF SAID MAP NO. 14559.
PAGE 1 OF 2
:os M:\2366\03\LEGAL OESCRIPTIONS\A42 ESMT & LlC AGREE.doc
WO 2366--03 3/4/04
PARCEL A-4:
A PORTION OF CROSSROADS STREET AS DEDICATED TO PUBLIC USE ON CHULA
VISTA TRACT NO. 01-11, OTAY RANCH VILLAGE 11 "A" MAP NO.2, ACCORDING TO MAP
THEREOF NO. FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN
DIEGO COUNTY ON -' 2004 BEING A SUBDIVISION OF A PORTION
OF LOTS A, B, AND C OF SAID MAP NO. 14559.
f)~/4Y. /2b/ 3 -4-Zc:o4-
DAVID W. AMBLER loS. 7322
HUNSAKER & ASSOCIATES SAN DIEGO, INC.
,I'
PAGE 2 OF 2 "
.DS M:\2366\03\LEGAL OESCRIPTIONS\A42 ESMT & LlC AGREE.doc
WO 2366-03 314104
EXHIBIT "B"
Plats Showing Public Areas To Be Privately Maintained
4/5104 IJ75022-000! 248177.5
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EXHIBIT "C"
Maintenance Responsibilities
City of Chula Vista
Area HOA Maintenance Maintenance
Median and parkways within Landscaping in the medians Maintenance of curb, gutter,
those portions of those public and parkways including sidewalks and pavement
road shown on Exhibit "B" irrigation, trimming and
pruning of trees, and
maintenance and irrigation of
turf areas.
4/5104 075022-0001 "'177.5
6 -I/¿¡'
COUNCIL AGENDA STATEMENT
-Î
Item
Meeting Date 04/20/04
ITEM TITLE: Resolution approving the submittal of four grant applications to
the San Diego Association of Govemments (SANDAG) for FY 2004-05
TDA and TransNet funding for bicycle and pedestrian capital
improvements
SUBMITTED BY: Director of General Services / City Engineer ~
REVIEWED BY: City Manager~i¿ )¡f:"
,J (4/Sth vote: Yes - No--XJ
The Transportation Development Act (TDA) and the TransNet Program provide funding support
for regional bicycle and pedestrian capital improvement projects. SANDAG will allocate those
project funds to the City, based upon availability and our four Council-approved FY 2004-05
grant applications.
RECOMMENDATION: That Council approve submittal of the applications.
BOARDS/COMMISSIONS: Not applicable
DISCUSSION:
Transportation Development Act (TDA): This fund provides support for the region's non-
motorized transportation projects including sidewalk and bicycle lane improvements. The
revenue comes from V. % of the total 7 %% sales tax assessed in the region. Each year, SANDAG
is responsible for the allocation of TDA funds in conformance with legislative and region-wide
priorities.
TransNet Program: In 1987, San Diego County voters approved a half-cent tax to finance
transportation projects. The resulting TransNet funding is combined with local, state and federal
dollars to improve the region's transportation network. $1 million is earmarked annually for
bicycle paths and facilities. As with the TDA Fund, SANDAG administers this major public
works program using guidelines that reflect both the agency's policy and State law (see
Attachment I).
City of Chota Vista applications for FY 2004-0S
Each year, the City participates in the claim process for TDA and TransNet bicycle and pedestrian
project funds by submitting an updated list of projects to SANDAG. For FY 2004-05, the City is
requesting funding for the following proposed sidewalk improvement projects, which are further
detailed in Attachment 2:
-I
.---------
Page 2, Item ~
Meeting Date 04/20/04
1. East "H" Street Sidewalk Improvements (Hidden Vista Drive to Del Rev Boulevard): The
proposed project consists of constructing the missing sidewalk improvements necessary
for the continuation of pedestrian traffic along East "H" Street. The total application
request for TDA funds is $460,118.
2. Moss Street Sidewalk Improvements (Jefferson Avenue to Fourth Avenue): This proposed
project is intended to construct any sidewalk improvements, north and south sides, that are
missing and are interrupting the pedestrian traffic flow along Moss Street. The total
application request for TDA funds is $502,601.
3. "F" Street/Hilltop Drive Sidewalk Improvements (approximatelv 445 feet east from the
First Avenue/"F" Street Intersection to Hilltop Drive/Center Intersection): This proposed
project consists of constructing the missing sidewalk improvements on the south side of
"F" Street necessary for the continuation of pedestrian traffic. The total application
request for TDA funds is $226,103.
4. "I" Street Sidewalk Improvements (First Avenue to Hilltop Drive): This proposed project
consists of constructing the missing sidewalk improvements on the north side of the street
necessary for the continuation of pedestrian traffic along "I" Street. The total application
request for TDA funds is $131,516.
These four projects were selected because they closely follow the eligibility guidelines for TDA
and TransNet funding. The Council-adopted resolution for the funding applications must be
received by SANDAG by May 4, 2004. The projects will then be subject to review by a regional
inter-agency Bicycle and Pedestrian Advisory Committee. Based on their recommendation,
SANDAG will authorize allocation of available TDA and TransNet funds to the City.
FISCAL IMPACT: There is no impact to the General Fund. Potential revenue to the City from
TransNet and TDA is approximately $1,320,338 for all of the proposed projects. The City will
match $40,000 for the construction of all four projects with other TransNet funds from the
Sidewalk Installation/Rehabilitation Program (Regional Transportation Improvements Program).
If funded, these projects will be submitted for inclusion in the FY 2004-05 CIP Program.
Attachment I: SANDAG's "Bicycle and Pedestrian Claims Guidelines"
Attachment 2: Grant Applications for Transportation Development Act/TransNet Bicycle and
Pedestrian Projects
File #: 0690-20-KY036
J:IEngineerIAGENDAIA 113 TDA & TramNet Fundingsh.cb.doc
T 4CHMEN r h-I
BICYCLE AND PEDESTRIAN CLAIMS
Introduction
The following discussion describes the claim process for Transportation Development Act (TDA) bicycle
and pedestrian projects, and TransNet bicycle projects. Unless specified otherwise, the discussion applies to
the administration of TransNet bicycle funds as well as TDA funds.
TDA Project Eligibility
The TDA specifies that the money should be allocated according to the regulations adopted by SANDAG
as the transportation planning agency. It also identifies certain categories of eligible projects. These specific
project types represent neither an exhaustive list, nor are they listed as priorities (99233.3 and 99234). They
are summarized below for reference. Project selection criteria, established by SANDAG Board policy are
discussed later.
. Construction, including related engineering expenses, of bicycle and pedestrian facilities.
. Maintenance of bicycle trails provided they are closed to motorized traffic.
. Projects serving the needs of commuting bicyclists, including but not limited to new trails serving
major transportation corridors, secure bicycle parking at employment centers, park and ride lots and
transit centers where other funds are not available.
. A comprehensive bicycle and pedestrian facilities plan (no more than once every five years), with an
emphasis on bicycle projects intended to primarily accommodate non-recreational bicycle trips.
. Up to 20-percent of the cost to restripe Class II bicycle lanes.
. Up to five-percent of the amount available to a city or the county may be expended in conjunction with
other funds to support bicycle safety education programs, so long as the funds are not used to fully
fund the salary of anyone person.
Certain costs at times associated with bicycle and pedestrian projects are not eligible when the benefit
provided is not the exclusive use of bicyclists or pedestrians. These instances are listed below:
. Curb and gutter are part of the roadway drainage system. As such, newly installed curb and gutter
cannot be considered an improvement exclusively for the benefit of the sidewalk or bike lane, and are
not an eligible expense.
. Driveway ramps installed across sidewalks are not for the benefit of pedestrians, and in fact, degrade
the pedestrian environment. Claimants may not include the cost of driveway ramps in applications for
sidewalk projects. However, the distance across the driveway may be included when computing the per
square foot cost of the sidewalk.
. Where design standards require a roadway shoulder width at least as wide as would be required for a
standard bike lane, the cost of the shoulder construction will not be eligible. Appropriate bikeway
signage is eligible.
Under some circumstances, it may be necessary to remove and replace curb and gutter, driveway ramps,
drainage facilities and other existing improvements in order to construct a bikeway or sidewalk. In such
cases the cost of this work is most likely eligible, but claimants should carefully document why this is so in
the claim submittal.
TransNet Project Eligibility
rransNet bicycle funds may be expended for all purposes necessary and convenient to the design, right-of-
way acquisition, and construction of facilities intended for use by bicyclists. These funds may also be used
for programs that help to encourage the use of bicycles such as secure parking facilities, bicycle promotion
programs and safety programs. Pedestrian projects are not eligible under the rransNet program.
The Regional Transportation Plan, as well as state and federal policy support the idea that the transportation
infi"astructure should accommodate bicyclists and pedestrians as a matter of routine. All new construction
and major roadway reconstruction should include facilities for bicyclists and pedestrians that are
appropriate for the setting. Because the demand for TDA and rransNet bicycle and pedestrian funds far
exceeds the available funding, SANDAG will not entertain applications for the bicycle or pedestrian
portions of new construction projects or major reconstruction projects.
SANDAG Claim Requirements
SANDAG has the authority to establish criteria applicable to analyzing and evaluating claims for non-
motorized transportation facilities (99401). Under that authority, the following criteria must be met.
0 The project must be consistent with SANDAG's adopted Regional Transportation Plan.
0 Pedestrian projects must be consistent with the design guidelines in Planning and Designing for
Pedestrians, and the design requirements of the Americans with Disabilities Act.
0 Bicycle projects must be designed consistent with the requirements of Chapter 1000 of California
Highway Design Manual.
0 Project applications must be approved by the City Council or Board of Supervisors, by the community
planning group or planning commission, or be included in a bicycle or pedestrian master plan that was
approved within the last five years. (see pages xx)
In addition, the following requirements must also be met where applicable:
0 If the project abuts other jurisdictions, it must be shown on the adopted plans of the adjacent
jurisdictions, or a letter must be submitted fi"om the abutting jurisdiction showing that cooperative
efforts are underway.
0 Other sources offunding for cooperative projects must be identified.
Application Process
Applications for TDA and rransNet non-motorized claims must be received by SANDAG by April 1 of
each year. A completed application will include the following materials:
0 A completed and signed Annual Grant Application.
0 A completed Project Selection Criteria Matrix except item 5, Geographic Factors/GIS Analysis, and
item 10, Cost Benefit.
0 An engineer's estimate or other documentation supporting the project cost estimate.
0 Applications for construction projects must include typical cross sections identifying the significant
features of the project related to its design and cost.
0 For projects not in an adopted non motorized plan, documentation of council, governing board,
planning commission, or other relevant action approving the application for the project.
1~1-
. A location map clearly identifYing the location and limits to the project.
Photographs of the project site may be included at the applicant's discretion.
Claims for Plans, Studies, and Programs
Plans. Applications for funding to support bicycle or pedestrian plans must include the following materials:
. A preliminary work program identifYing the objectives of the plan, tasks, and products that the plan
will produce.
. A project schedule including, as appropriate, consultant selection, beginning of the planning process,
major milestones and products in the process, and completion date.
. A cost estimate detailing consultant costs, if any, and direct local agency costs. Any other revenue
sources dedicated to the project, or anticipated to be available, including in-kind services, should also
be identified.
Applications for bicycle transportation plans (master plans) will be given the highest priority for use of the
funds. An agency may submit an application for a plan no more /Tequently than once every five years.
Jurisdictions with a population over 150,000 may submit applications for up to $150,000, and jurisdictions
with a population under 150,000 may submit applications up to $75,000. In either case, the amount of the
application must be substantiated by the project budget. Applications for pedestrian master plans will be
evaluated on a case by case basis until standards for local pedestrian plans are developed.
Studies. Applications for feasibility studies related to proposed capital projects should include the
application forms required for capital projects using the agency's best estimates for the cost to complete the
project. In addition, the application should include an itemized budget and schedule of revenues, a work
program, and a project schedule for the study. Applications for feasibility studies will be evaluated based
on the merits of the proposed capital project.
Programs. Application for programs such as safety or skills education and promotional activities must
include a detailed project work program, a project budget and revenue schedule, and a project work
schedule.
Evaluation Process
A new evaluation process for TDA bicycle and pedestrian projects, and TransNet bicycle projects has been
developed for the FY 2005 claim cycle to be consistent with the way SANDAG evaluates and prioritizes
other components of the transportation system such as arterial, highway, and transit projects.
Transportation project priorities are used to establish a framework for transportation infrastructure in such
planning documents as the Regional Transportation Plan (RTP), MOBILITY 2030. Priorities also are used
for funding decisions that are programmed in the Regional Transportation Improvement Program (RTlP).
These new selection criteria support the overall goals and objectives SANDAG has for improving the
regional transportation system and promoting smart growth in the region by giving priority to projects that
enhance the existing transportation network and coordinate transportation improvements with land use
development. The criteria to be used in the evaluation process are specified in the Project Selection Criteria
matrix (page -.J.
Claimants for TDA bicycle and pedestrian projects, and TransNet bicycle projects will be responsible for
accurately filling out the Project Selection Criteria matrix. SANDAG will be responsible for performing the
GIS Analysis in Category 4 and the Cost Benefit Analysis in Category 10 of the Project Selection Criteria
based on the process outlined below. SANDAG will compile the results /Tom the Grant Applications and
produce a prioritized list of projects that will be reviewed by the Bicycle-Pedestrian Working Group
(BPWG). The committee will then recommend a final priority list of projects to the SANDAG
Transportation Committee.
.
The GIS Analysis will be based on the following five factors: total population, total employment,
population density, employment density, and number of activity centers. Using the project limits provided
by the claimant, SANDAG will perform the GIS Analysis using data for population and employment
forecasts for 2010. A buffer will be created around each project area. Pedestrian projects will be given a Y,
mile buffer and bicycle projects will be given a I mile buffer. The buffered areas will be used along with
the population and employment data to generate population and employment densities. The number of
Activity Centers will be identified and tallied. Each factor will be scored ITom I to 4 points, for a possible
total of 20 points for the GIS Analysis category. Projects will be scored in each category relative to each
other by taking the raw scores and distributing them ITom highest to lowest. The highest 25-percent will
receive 4 points, the second highest quartile will receive 3 points, the third highest quartile will receive 2
points, and the lowest quartile will receive 1 point.
The Cost Benefit Analysis will be computed by dividing the total project cost the Subtotal score from
categories I thru 8 on the Project Selection Criteria matrix. Projects will be scored relative to each other by
taking the raw scores and distributing them ITom highest to lowest, with the project with the highest cost
benefit ratio receiving 15 points and the project with the lowest cost benefit ratio receiving I point.
ATTACHMENT 2
GRANT APPLICATIONS
FOR
TRANSPORTATION DEVELOPMENT ACT/
TRANSNET BICYCLE AND PEDESTRIAN PROJECTS
7# 1
Annual Grant Application
Transportation Development Act I TransNet Bicycle Projects
Applicant (Agency): City of. Chula Vista
Project Name: Moss Street Sidewalk Improvements
Project Limits: Alóng Moss Street from Jefferson Avenue to Fourth Avenue
Project Type:
Bicycle Capital Improvement/Construction
X Pedestrian Capital Improvement/Construction
Restriping bicycle lanes
Bicycle Parking
Bicycle Plan
Pedestrian Plan
Planning Study
Safety/Education Program
Contact Person: Sandra Hernandez
Title: Assistant Engineer
Address: 276 Fourth Avenue, Chula Vista, CA 91910
Phone: (619) 476-5363
Fax: (619) 691-5171
E-mail: shemandez¡Q)ci. chula-vista. ca. us
-
Person Authorized to Submit Application:
~ Samir Nuhaily Senior Civil Engineer
Name Title
~t(.h;¿ ~ m¿ 3q,:;:¡¿/~
Date
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Project Fundine::
Total Estimated Project Cost (please attach a detailed project estimate
based on best available engineering) $512,601
Estimated cost for the portion of the project in this application $502,601
Revenues (Source and Amount):
Matching Funds (Category 9 of Project Selection Criteria) $ 10,000
Source of Funds Amount
Local Funds $ 10,000
TDAffransNet $502,601
(Application Amount as shown in Category 10
of Project Selection Criteria)
Total Revenues $512,601
Selection Criteria Support Materials
A. The councilor governing board of the applicant must authorize this grant application.
Please attach a copy of the resolution or minute order documenting that action. Or, if the
project is part of an approved Bicycle Plan, please attach a copy of the section that includes
the project (Category 1 of Project Selection Criteria).
City Staff will submit a Resolution on April 20, 2004 to Council approving application.
See Attachment 1.
B. Typical cross-sections and photographs (if applicable) that indicate project conditions and
any significant features that affect feasibility and/or cost (Category 2 of Project Selection
Criteria).
See Attachment 6, 7 & 8.
7 q
C. Project Schedule (Category 3 of Project Selection Criteria):
Phase Begin Complete
Feasibility Study Oct-O4 Dec-O4
Preliminary Engineering Jan-O5 Mar-O5
Environmental Document/Certification N/A N/A
Final Design Apr-O5 May-O5
Advertise for Construction Jun-O5 Jul-O5
Begin Construction Jul-O5 Jul-O5
Project Completion Nov-O5 Nov-O5
D. Project map. Briefly, describe project limits. Please provide a location map clearly
showing the project alignment (Category 4 of Project Selection Criteria). In addition,
clearly show and label the following elements:
a. Major traffic generators within the project area (112 mile buffer for pedestrian projects
and 1 mile buffer for bicycle projects)
b. Linkage or connections to existing bicycle or pedestrian facilities
c. Linkage to any regional bikeway or public transit stop
The proposed sidewalk improvements are located along Moss Street between Jefferson
Avenue and Fourth Avenue. See Attachment 9.
E. List and briefly describe major traffic generators served by the project (Category 4 of
Project Selection Criteria).
The proposed sidewalk improvement project is located along Moss Street, from
Jefferson Avenue to Fourth Avenue. The proposed improvements are located within
0.5 miles from:
Abutting the proposed sidewalk improvements, there are several major traffic
generators. They are: -=-
1. Adult and Continuing Education Resource Center
2. Alternative Education Independent Study
3. Del Rey Vocational Center
4. Rice Elementary School
5. Chura Vista High School
6. South Bay Baptist Church of Chura Vista
7. One MTS and one CVT bus stops
3 7~/O
F. List and briefly describe the linkages or connections to existing facilities (Category 5 of
Project Selection Criteria).
The proposed project will correct and improve an existing condition along Moss Street,
between Jefferson Avenue and Fourth Avenue by completing the missing sidewalk
improvements necessary for the continuation of pedestrian traffic. Segments of
sidewalks are present on the north and south of Moss Street.
The proposed project will connect one Chula Vista Transit bus stop that serves Route
704 (nHn Street Trolley Station/Southwestern College) and the MTS Route 932 (San
Ysidroillowntown SD). For the location of the public transit stops, please see
Attachment 9.
G. Describe the safety issues addressed by the project. If applicable, please attach support
documentation for safety and accident history (Category 6 of Project Selection Criteria).
Along Moss Street, there are existing segments of sidewalk that are used by pedestrians
to access the two public transit stops located at Moss Street & Broadway and Moss
Street & Fourth Avenue, the elementary and high schools, the two education centers
and the church. Due to the missing sidewalk improvements in the proposed area,
pedestrians, in particular elderly and disabled, do not have easy access. See
Attachment 8 that illustrate existing conditions along Moss Street.
Please note that the Average Daily Traffic (ADT) along Moss Street is approximately
7,940 vehicles per day. Attachment 10 shows the number of traffic incidents in the
vicinity of the project that have occurred in the past four years.
H. Describe any design innovations for bicycle/pedestrian priority measures that are
included within the project limits (Category 7 of Project Selection Criteria).
I. Please list the project's linkages to any regional bikeway or public transit (Category 8 of
Project Selection Criteria).
IiI the benefit area of the proposed project, there are two public transit bl!S stops:
. Broadway & Moss Street that serves the regional (MTS) Route 932 (San
Ysidroillowntown SD).
. Fourth Avenue & Moss Street that serves the Chula Vista Transit Route 704
(nHn Street Trolley Station/Southwestern College).
Is this project in your agency's adopted capital improvement program? (Y/N) No
1-
If the project is part of a larger capital improvement project, briefly discuss how the bicycle
or pedestrian project costs were identified, and a description of the other sources of funds for
the overall project.
Briefly, describe any other aspects of the project that is relevant to its evaluation.
-=-
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ATTACHMENT # 7
Existing conditions along Moss Street.
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City of Chula Vista
General Services Department
COST ESTIMATE
Moss Street Sidewalk Project No.
Project Title: Improvements from Date: OB-Mar-04
Jefferson Avenue to Prepared by: J. Moneda
Fourth Avenue Checked by: S Nuhaily
ITEM NO. DESCRIPTION QUANTITY UNIT UNIT PRICE AMOUNT
1 Clearing & Grubbing 1 LS $ 25,000 $ 25,000
2 5.5-feet Sidewalk 16,940 SF $ 9 $ 152,460
3 Survey 1 LS $ 15,000 $ 25,000
4 Traffic Control 1 LS $ 15,000 $ 25,000
5 Pedestrian Ramps 4 EA $ 1,500 $ 6,000
6 Utility Relocation 1 LS $ 15,000 $ 30,000
7 Asphalt Concrete 1 LS $ 5,000 $ 10,000
4 Replace AC Curb-and-Gutter with concrete 3120 LF $ 16 $ 49,920
5 Tree Removal 1 LS $ 20,000 $ 20,000
6 Fence Relocation 1 LS $ 20,000 $ 20,000
9 Strip! and Markin 1 LS 5,000 $ 5,000
Staff Costs (Design)
TOTAL
-=-
j:\engineeMdvplan\TDA\TDA 2004\Bike & Pad Project Selection Criteria.xlslMoss St Cost Estimate
1 of1
/f
Project: Moss Street Sidewalk Improvements
Pedestrian Project Selection Criteria
Category Criteria Potential Points Score
Must have at least one of the following to
qualify. Please attach supporting
documentation. 1.
1. Community Support/Consistency Resolution or minutes from City Council,
with Community Plan County Board of Supervisors, local planning Pass/Fail Pass
group, or Planning Commission. Or,
2. Project is part of a Non-Motorized Plan
that has been approved within the last five
years.
Must meet the minimum geometric
standards set forth in the SANDAG Planning
and Designing for Pedestrians Manual and
2. Meet Minimum Standards in the Americans with Disabilities Act. Design
Design Criteria exceptions may be presented for Pass/Fail Pass
consideration by the Bicycle-Pedestrian
Working Group with the understanding that
initial project proposals must include a
design that meets minimum standards.
3. Project Readiness'- Projects are Feasibility Study 4 1
Preliminary Engineering" 4 0
eligible for points following Environmental Clearance 4 4
completion of each phase- Right-of-Way Acquisition 4 0
20 Points Maximum Final Design" 4 0
Factors contributing to score are: proximity
4. Geographic Factors/GIS Analysis- to population and employment, population Ot020
20 Points Maximum and employment densities and activity
centers.
5. Completes
Connection/Linkage in Existing Completes or improves connection in 10 10
Pedestrian Network- existing network.
10 Points Maximum
Improves safety within existing network. 12 12
Completes connection in existing network at
location with documented safety or accident
history A. One to 4 4
two correctable crashes involving non-
6. Safety Improvements - motorized users within the last three years.
20 Points Maximum B. Three to four correctable crashes
involving non-motorized users within the last 6 0
three years.
C. Five to six correctable crashes involving
non-motorized users within the last three 8 0
years.
..-/ 1-
j/:~
Project: Moss Street Sidewalk Improvements
Pedestrian Project Selection Criteria
Category Criteria Potential Points Score
Pedestrian priority measures such as
pedestrian controlled signals, bulb-outs,
raised crosswalks, signal lead time, etc. 4 0
A. Animated eye Indicators, accessible push
button signal, flashing crosswalk.
7. Innovation and Design - B. Early pedestrian release interval, passive
10 Points Maximum pedestrian detection, audible pedestrian 6 a
signal.
C. Raised crosswalk, speed table, raised 8 a
intersection, pedestrian refuge island.
D. Pedestrian bulb-out, cul-de-sac 10 a
connector.
Project is a part of, or connects to, a
regional bikeway corridor as identified in the 10 a
8. Connection to Regional Regional Transportation Plan (RTP).
Transportation Corridor or Transit Project provides a direct connection to iocal
Linkage or Regional- 14 a
20 Points Maximum transit stop.
Project provides a direct connection to 20 20
regional transit station.
Subtotal 51
Matching funds can be from any of the
following sources: 1.
Identified and approved capital funding from
9. Matching Funds identified source. Please provide proof in (Matching Funds I a
the form of a resolution or letter of approval. Project Cost) X 25
2. Approved match grant. 3.
In-kind services. Please provide adequate
support documentation.
10. Cost Benefit Subtotal Score I Grant Application Amount Oto 15
Total Score 51
. PrevIous project milestones must be met before qualifying fo, subsequent funding
.. P,elimina", Engineering and Final Oesigns wHI be subject to design ,.view by SANDAG
r¡-
I
Annual Grant Application
Transportation Development Act / TransNet Bicycle Projects
Applicant (Agency): City of Chula Vista
Project Name: "I" Street Sidewalk Improvements
Project Limits: Along "I" Street from First Avenue to Hilltop Drive
Project Type: Sidewalk Improvements
Bicycle Capital Improvement/Construction
X Pedestrian Capital Improvement/Construction
Restriping bicycle lanes
Bicycle Parking
Bicycle Plan
Pedestrian Plan
Planning Study
Safety/Education Program
Contact Person: Sandra Hernandez
Title: Assistant Engineer
Address: 276 Fourth Avenue, Chura Vista, CA 91910
Phone: (619) 476-5363
Fax: (619) 691-5171
E-mail: shernandez@ci.chula-vista.ca.us
Person Authorized to Submit Application:
,/) .
re' ~amir Nuhaily Senior Civil Engineer
Name Title
4ffßJ ~ $¿£,. 5q 5? ¡¿~
. r;r ~ r;'¡ Date
! .,
Project Fundinl!::
Total Estimated Project Cost (please attach a detailed project estimate
based on best available engineering) $141,516
Estimated cost for the portion of the project in this application $131,516
Revenues (Source and Amount):
Matching Funds (Category 9 of Project Selection Criteria) $10,000
Source of Funds Amount
local Funding $10,000
TDAlTransNet $131,516
(Application Amount as shown in Category 10
of Project Selection Criteria)
Total Revenues $141,516
Selection Criteria Support Materials
A. The council or governing board of the applicant must authorize this grant application.
Please attach a copy of the resolution or minute order documenting that action. Or, if the
project is part of an approved Bicycle Plan, please attach a copy of the section that includes
the project (Category 1 of Project Selection Criteria).
City Staffwill submit a Resolution on April 20, 2004 to Council approving application.
See Attachment 1
B. Typical cross-sections and photographs (if applicable) that indicate project conditions and
any significant features that affect feasibility and/or cost (Category 2 of Project Selection
Criteria).
See Attachment 11,12 & 13
C. Project Schedule (Category 3 of Project Selection Criteria):
Phase Begin Complete
Feasibility Study Oct-O4 Nov-O4
Preliminary Engineering Dec-04 Jan-O5
Environmental Document/Certification N/A N/A
Final Design Feb-O5 Mar-O5
Advertise for Construction Apr-O5 May-O5
Begin Construction May-O5 Sep-O5
Project Completion May-O5 Sep-O5
D. Project map. Briefly, describe project limits. Please provide a location map clearly
showing the project alignment (Category 4 of Project Selection Criteria). In addition, clearly
show and label the following elements:
a. Major traffic generators within the project area (1/2 mile buffer for pedestrian projects
and 1 mile buffer for bicycle projects)
b. Linkage or connections to existing bicycle or pedestrian facilities
c. Linkage to any regional bikeway or public transit stop
The proposed sidewalk improvements are along "I" Street between First Avenue and
Hilltop Drive. See Attachment 14
E. List and briefly describe major traffic generators served by the project (Category 4 of
Project Selection Criteria).
The proposed sidewalk improvement project is located along "I" Street, from First
Avenue to Hilltop Drive. The proposed improvements are located within 0.5 miles to:
1. Hilltop High School
2. Hilltop Middle School -=-
3. Hilltop Drive Elementary School
4. St Mark's Evangelical Lutheran Church
5. First Church of Christ Scientist
6. Church of J.C. of L.D.S.
7. Hilltop Baptist Church
F. List and briefly describe the linkages or connections to existing facilities (Category 5 of
Project Selection Criteria).
/f
-----------.-
The proposed project will correct and improve an existing condition along "I" Street,
between First Avenue and Hilltop Drive by completing the missing sidewalk
improvements necessary for the continuation of pedestrian traffic.
Pedestrian traffic wiD be facilitated when traveling east and westbound along the
northerly side of "I" Street. Surrounding the improvements, following the half-mile
buffer, there are three schools, one public park and four congregation centers.
G. Describe the safety issues addressed by the project. If applicable, please attach support
documentation for safety and accident history (Category 6 of Project Selection Criteria).
The proposed project will increase the traffic safety of all pedestrians, vehicles and
bicycles at the proposed locations.
Along "I" Street, there are existing sidewalks that are used by pedestrians to access the
neighboring public schools, public park and churches, since there are several residential
dwellings around the area. Constructing the missing sidewalk improvements wiD
provide a better access for pedestrians, in particular, our disable and elderly
constituents.
H. Describe any design innovations for bicycle/pedestrian priority measures that are included
within the project limits (Category 7 of Project Selection Criteria).
I. Please list the project's linkages to any regional bikeway or public transit (Category 8 of
Project Selection Criteria).
In the benefit area of the proposed sidewalk improvements, there are one Chula Vista
Transit bus stops that serve Route 701 ("H" Street Trolley StationlPalomar Street
Trolley Station). For the location of the public transit stop, please see Attachment 14.
Is this project in your agency's adopted capital improvement program? (Y/N)-=- No
If the project is part of a larger capital improvement project, briefly discuss how the bicycle or
pedestrian project costs were identified, and a description of the other sources of funds for the
overall project.
Briefly, describe any other aspects of the project that is relevant to its evaluation.
Driveway aprons, pedestrian ramps, curb and gutter are existing. This project will only
complete the missing sidewalk to give continuity to the existing pedestrian network.
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ATTACHMENT # 12
EXISTING CONDITIONS
AT "I" STREET BETWEEN FIRST AVENUE AND HILLTOP DRIVE
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City of Chura Vista
General Services Department
COST ESTIMATE
Project No.
Project Title: "I" Street Sidewalk Improvements Date: 26-Mar-O4
from First Avenue to Hilltop Drive Prepared by: 5 Hernandez
Checked by: 5 Nuhaily
ITEM NO. DESCRIPTION QUANTITY UNIT
1 Clearing & Grubbing 1 LS
2 5-feet Sidewalk 6,300 SF
3 Traffic Control 1 LS
4 Utility Relocation 1 LS
5 Survey 1 LS
-=
Project: "I" Street Sidewalk Improvements
Pedestrian Project Selection Criteria
Category Criteria Potential Points Score
Must have at ieast one of the following to
qualify. Please attach supporting
documentation. 1.
1. Community Support/Consistency Resolution or minutes from City Council.
with Community Plan County Board of Supervisors, local planning Pass/Fall Pass
group. or Planning Commission. Or.
2. Project is part of a Non-Motorized Plan
that has been approved within the last five
years.
Must meet the minimum geometric
standards set forth in the SANDAG Planning
and Designing for Pedestrians Manual and
2. Meet Minimum Standards in the Americans with Disabilities Act. Design
Design Criteria exceptions may be presented for Pass/Fail Pass
consideration by the Bicycle-Pedestrian
Working Group with the understanding that
initial project proposals must include a
design that meets minimum standards.
3. Project Readiness'- Projects Feasibility Study 4 3
Preliminary Engineering" 4 1
are eligible for points following Environmental Clearance 4 4
completion of each phase- Right-of-Way Acquisition 4 4
20 Points Maximum Final Design" 4 0
Factors contributing to score are: proximity
4. Geographic Factors/GIS Analysls- to population and employment. population 0 to 20
20 Points Maximum and employment densities and activity
centers.
5. Completes
Connection/Linkage in Existing Completes or Improves connection in 10 10
Pedesman Network- existing network.
10 Points Maximum
Improves safety within existing network. 12 12
Completes connection in existing network at
location with documented safety or accident
history A. One to 4 0
two correctable crashes involving non-
6. Safety Improvements - motorized users within the last three years.
20 Points Maximum B. Three to four correctable crashes
involving non-motorized users within the last 6 0
three years.
C. Five to six correctable crashes involving
non-motorized users within the last three 8 0
years.
Project: "I" Street Sidewalk Improvements
Pedestrian Project Selection Criteria
Category Criteria Potentia' Points Score
Pedestrian priority measures such as
pedestrian controlled signals, bulb-outs,
raised crosswalks. signal lead time. etc. 4 0
A. Animated eye indicators, accessible push
button signal, flashing crosswalk.
7. Innovation and Design - B. Early pedestrian release interval, passive
10 Points Maximum pedestrian detection. audible pedestrian 6 0
signal.
C. Raised crosswalk, speed table, raised 8 a
intersection, pedestrian refuge island.
D. Pedestrian bulb-out, cul-de-sac 10 0
connector.
Project is a part of, or connects to, a
regional bikeway corridor as identified in the 10 0
8. Connection to Regional Regional Transportation Plan (RTP).
Transportation Corridor or Transit Project provides a direct connection to local
Linkage or Regional- 14 14
20 Points Maximum transit stop.
Project provides a direct connection to 20 0
regional transn station.
Subtotal 48
Matching funds can be from any of the
following sources: 1.
Identified and approved capital funding from
9. Matching Funds identified source. Please provide proof in (Matching Funds I 2
the form of a resolution or letter of approval. Project Cost) X 25
2. Approved match grant. 3.
In-kind services. Please provide adequate
support documentation.
10. Cost Benefit Subtotal Score I Grant Application Amount Oto 15
Total Score 50
. Prev,cus pro¡act m,lesto'es must be met before quoHfl"'9 for subseque,t fu'd"9.
.. PreHml,ery E'91,ee"'9 o,d FI,.I Desl9" will be subject to desl9' ",view by SANDAG
'=
/)7 7
I
Annual Grant Application
Transportation Development Act I TransNet Bicycle Projects
Applicant (Agency): City of Chula Vista
Project Name: East "H" Street Sidewalk Improvements
Project Limits: Along East "H" Street from Hidden Vista Drive to Del Rey Boulevard
Project Type: Sidewalk Improvements
Bicycle CapitallmprovemenVConstruction
X Pedestrian CapitallmprovemenVConstruction
Restriping bicycle lanes
Bicycle Parking
Bicycle Plan
Pedestrian Plan
Planning Study
SafetylEducation Program
Contact Person: Sandra Hernandez
Title: Assistant Engineer
Address: 276 Fourth Avenue, Chula Vista, CA 91910
Phone: (619) 476-5363
Fax: (619) 691-5171
E-mail: shernandez~ci. ch u la-vista. ca. us
--
-
Person Authorized to Submit Application:
~samir Nuhaily Senior Civil Engineer
Name Title
~4:~¡tL ~ ~- 3~ r:< t/O~
Date
Sign e¿ ¡ ~ e£-
, þ¡ JO1t!3.
r¡
Project Fundine::
Total Estimated Project Cost (please attach a detailed project estimate
based on best available engineering) $470,118
Estimated cost for the portion of the project in this application $460,118
Revenues (Source and Amount):
Matching Funds (Category 9 of Project Selection Criteria) $ 10,000
Source of Funds Amount
Local Funding $ 10,000
TDAlTransNet $460,118
(Application Amount as shown in Category 10
of Project Selection Criteria)
Total Revenues $470,118
Selection Criteria Support Materials
A. The councilor governing board of the applicant must authorize this grant application.
Please attach a copy of the resolution or minute order documenting that action. Or, if the
project is part of an approved Bicycle Plan, please attach a copy of the section that includes
the project (Category 1 of Project Selection Criteria).
City Staff will submit a Resolution on April 20, 2004 to Council approvingapplication.
See Attachment 1
B. Typical cross-sections and photographs (if applicable) that indicate project conditions and
any significant features that affect feasibility and/or cost (Category 2 of Project Selection
Criteria).
See Attachment 2 & 3
r7
C. Project Schedule (Category 3 of Project Selection Criteria):
Phase Begin Complete
Feasibility Study Oct-04 Nov-O4
Preliminary Engineering Dec-O4 Jan-OS
Environmental Document/Certification N/A N/A
Final Design Feb-OS Mar-OS
Advertise for Construction Apr-OS May-OS
Begin Construction May-OS Sep-OS
Project Completion May-OS Sep-OS
D. Project map. Briefly, describe project limits. Please provide a location map clearly
showing the project alignment (Category 4 of Project Selection Criteria). In addition, clearly
show and label the following elements:
a. Major traffic generators within the project area (1/2 mile buffer for pedestrian projects
and 1 mile buffer for bicycle projects)
b. Linkage or connections to existing bicycle or pedestrian facilities
c. Linkage to any regional bikeway or public transit stop
The proposed sidewalk improvements are along East H Street between Hidden Vista
Drive and Del Rey Boulevard. See Attachment 4
E. List and briefly describe major traffic generators served by the project (Category 4 of
Project Selection Criteria).
The proposed sidewalk improvement project is located along East H Street, from Hidden
Vista Drive to Del Rey Boulevard. The proposed improvements are located within 0.5
miles to:
1. Clear View Elementary School -
2. Terra Nova Park
3. Marina Congregation of Jehovah's Witnesses
4. Terra Nova Plaza
5. Rancho Del Rey Plaza
6. Three Chula Vista Transit Bus Stops
F. List and briefly describe the linkages or connections to existing facilities (Category 5 of
Project Selection Criteria).
3ó 7- 31
The proposed project will correct and improve an existing condition along East H Street,
between Hidden Vista Drive and Del Rey Boulevard by completing the missing sidewalk
improvements necessary for the continuation of pedestrian traffic.
The proposed project will connect three Chula Vista Transit bus stops that serve Route
707 ("H" Street Trolley Station/Sharp Medical Clinic) and Route 709 ("H" Street
Trolley StationlEastlake). For the location of the public transit stops, please see
Attachment 4.
G. Describe the safety issues addressed by the project. If applicable, please attach support
documentation for safety and accident history (Category 6 of Project Selection Criteria).
The proposed project will increase the traffic safety of all pedestrians, vehicles and
bicycles at the proposed locations.
Along East H Street, there are existing sidewalks that are used by pedestrians to access
the neighboring shopping centers, elementary school, public park and church, since
there are several multifamily complexes and residential dwellings around the area.
Constructing the missing sidewalk improvements will provide a better access for
pedestrians, in particular, our disable and elderly constituents.
Please note that the Average Daily Traffic (ADT), during 2002, along East H Street was
approximately 60,474 vehicles per day. Attachment 5 shows the number of traffic
incidents in the vicinity of the project that have occurred in the past four years.
H. Describe any design innovations for bicycle/pedestrian priority measures that are included
within the project limits (Category 7 of Project Selection Criteria).
1. Please list the project's linkages to any regional bikeway or public transit (Category 8 of
Project Selection Criteria).
In the benefit area of the proposed sidewalk improvements, there are three Chula Vista
Transit bus stops that serve Route 707 ("H" Street Trolley Station/Sharp Medical
Clinic) and Route 709 ("H" Street Trolley StationlEastlake). For the location of the
public transit stops, please see Attachment 2.
In addition, this segment of East H Street is a Class 2 bike route highly utilized by all
types of cyclists.
Is this project in your agency's adopted capital improvement program? (Y IN) No
~)I
?
If the project is part of a larger capital improvement project, briefly discuss how the bicycle or
pedestrian project costs were identified, and a description of the other sources of funds for the
overall project.
Briefly, describe any other aspects of the project that is relevant to its evaluation.
-
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City of Chula Vista
General Services Department
COST ESTIMATE
East "H" Street Sidewalk Project No.
Project Title: Improvements from Terra Nova Date: 24-Mar-04
Drive to Hidden Vista Drive Prepared by: S Hemandez
Checked by: S Nuhaily
ITEM NO. DESCRIPTION QUANTITY UNIT UNIT PRICE
1 Clearing & Grubbing 1 LS $ 5,000
2 5.5-feet Sidewalk 23,650 SF $ 9
3 Traffic Control 1 LS $ 15,000
4 Utility Relocation 1 LS $ 10,000
5 Retaining Walls 1 LS $ BO,OOO
6 Survey 1 lS $ 15,000
Staff Costs (Design)
TOTAL..
--
j:\engineerlAdvplan\TDA\TDA 2004\Design's Estimate.xlslE "H" St Cost Estimate
10f1
7-50
- ._---------~-
Project: East "H" Slreet Sidewalk Improvements
Pedestrian Project Selection Criteria
Category Criteria Potential Points Score
Must have at least one of the following to
qualify. Please attach supporting
documentation. 1.
1. Community support/Consistency Resolution or minutes from City Council.
County Board of Supervisors. local planning Pass/Fail Pass
with Community Plan group, or Planning Commission. Or.
2. Project is part of a Non-Motorized Plan
that has been approved w~hin the last five
years.
Must meet the minimum geometric
standards set forth in the SANDAG Planning
and Oesigning for Pedestrians Manual and
2. Meet Minimum Standards in the Americans with Disabilities Act. Design
Design Criteria exceptions may be presented for Pass/Fail Pass
consideration by the Bicycle-Pedestrian
Working Group with the understanding that
Initial prolect proposals must Indude a
design that meets minimum standards.
3. Project Readlness"- Projects are Feasibility Study 4 3
Preliminary EngineeringH 4 4
eligible for points following Environmental Clearance 4 4
completion of each phase- Right-of-Way Acquls~ion 4 4
20 Points Maximum Final DeslgnH 4 0
Factors contributing to score are: proximity
4. Geographic Factors/GIS Analysis- to population and employment, population 0 to 20
20 Points Maximum and employment dens~les and activity
centers.
5. Completes
Connection/Linkage in Existing Completes or Improves connection in 10 10
Pedestrian Network- existing network.
10 Points Maximum
Improves safety within existing network. 12 12
Completes connection in existing network at
location with documented safety or accident
history A. One to 4 4
two correctable crashes involving non-
6. Safety Improvements - motorized users within the last three years.
20 Points Maximum B. Three to four correctable crashes
Involving non-motorized users within the last 6 0
three years. -
C. Ave to six correctable crashes involving
non-motorized users within the last three 8 0
years.
ï] I :;t:fL
--------
Project East "H' Street Sidewalk Improvements
Pedestrian Project Selection Criteria
Category Criteria Potential Points Score
Pedestrian priority measures such as
pedestrian controlled signals, bulb-outs,
raised crosswalks, signa/lead time. etc. 4 0
A. Animated eye indicatora, accessible push
button signal, flashing crosswalk.
7. Innovation and Design - B. eariy pedestrian release interval, passive
10 Points Maximum pedestrian detection, audible pedestrian 6 0
signal.
C. Raised crosswalk, speed lable, raised 8 0
in!eraectlon, pedestrian refuge isiand.
D. Pedestrian bulb-<>ut, cul-de-sac 10 0
connector.
Project is a pari of, or connects to, a regional
bikeway corridor as identified In the Regional 10 0
8. Connection to Regional Transportation Plan (RTP).
Transportation Corridor or TransIT Project provides a direct connection to local
LInkage or Regiona~ 14 14
20 Points Maximum tranSIT stop.
Project provides a direct connection to 20 0
regional lransit station.
Subtotal 55
Matching funds can be from any of the
following sources: ,.
Identified and approved capital funding from
g. Matching Funds Identified source. Please provide proof in (Matching Funds I 1
the form of a resolution or letter of approval. Project Cost) X 25
2. Approved match grant. 3.
In-kind services. Please provide adequate
support documentation.
10. Cost Benefit Subtotal Score I Grant Application Amount 0 to 15
Total Score 56
. P..."" ,"'¡'d ml~"on.. m,"" mol befono ","ify., to>" ,",,'oq~nt fund,no.
- p..llmln"" Enolnee.n, "" FIn" 0....., will" "'~'d 10 ,..1"" nwlow by SANOAD
-
1/5
. . \
Annual Grant Application
Transportation Development Act I TransNet Bicycle Projects
Applicant (Agency): City of Chula Vista
Project Name: "F" Street/Hilltop Drive Sidewalk Improvements
From approx. 445ft east from the First Avef'F" St Intersection to
Project Limits: Hilltop Dr/Center St Intersection.
Project Type: Sidewalk Improvements
Bicycle Capital Improvement/Construction
X Pedestrian Capital Improvement/Construction
Restriping bicycle lanes
Bicycle Parking
Bicycle Plan
Pedestrian Plan
Planning Study
Safety/Education Program
Contact Person: Sandra Hernandez
Title: Assistant Engineer
Address: 276 Fourth Avenue, Chula Vista, CA 91910
Phone: (619) 476-5363
Fax: (619) 691-5171
E-mail: shernandez@ci.chura-vista.ca.us
-
Person Authorized to Submit Application:
(k Samir Nuhaily Senior Civil Engineer
Name Title
~o.tU' ~ ~ gó .;?~
Date /
~ /1 ~/~tf?
/) fL~
...-- _--_n- -
Project Fundin¡~:
Total Estimated Project Cost (Please attach a detailed project estimate
based on best available engineering) $236,103
Estimated cost for the portion of the project in this application $226,103
Revenues (Source and Amount):
Matching Funds (Category 9 of Project Selection Criteria) $10,000
Source of Funds Amount
Local Funding $10,000
TDAlTransNet $226,103
(Application Amount as shown in Category 10
of Project Selection Criteria)
Total Revenues $236,103
Selection Criteria Support Materials
A. The councilor governing board of the applicant must authorize this grant application.
Please attach a copy of the resolution or minute order documenting that action. Or, if the
project is part of an approved Bicycle Plan, please attach a copy of the section that includes the
project (Category 1 of Project Selection Criteria).
City Staff will submit a Resolution on April 20, 2004 to Council approving application.
See Attachment 1
B. Typical cross-sections and photographs (if applicable) that indicate project conditions and
any significant features that affect feasibility and/or cost (Category 2 of Project Selection
Criteria).
See Attachment 15 & 16
ry
C. Project Schedule (Category 3 of Project Selection Criteria):
Phase Begin Complete
Feasibility Study Oct-O4 Nov-O4
Preliminary Engineering Dec-O4 Jan-O5
Environmental Document/Certification N/A N/A
Final Design Feb-O5 Mar-O5
Advertise for Construction Apr-o5 May-O5
Begin Construction May-O5 Sep-O5
Project Completion May-O5 Sep-O5
D. Project map. Briefly, describe project limits. Please provide a location map clearly showing
the project alignment (Category 4 of Project Selection Criteria). In addition, clearly show and
label the following elements:
a. Major traffic generators within the project area (1/2 mile buffer for pedestrian projects and
1 mile buffer for bicycle projects)
b. Linkage or connections to existing bicycle or pedestrian facilities
c. Linkage to any regional bikeway or public transit stop
The proposed sidewalk improvements begin approximately 445ft east of the First
Avenue/"F" Street intersection to the Hilltop Drive/Center intersection. This project will -,.
complete the missing sidewalk along the south side of "I" Street within the limits above
mentioned. See Attachment 17.
E. List and briefly describe major traffic generators served by the project (Category 4 of Project
Selection Criteria).
The proposed sidewalk improvement project is located along "F" Street/Hilltop Drive.
The proposed improvements are located within 0.5 miles to: --
1. Rosebank Elementary School
2. Norman Park
3. Norman Park Senior center
4. Southern Christian Assembly Church
5. First Southern Baptist Church
F. List and briefly describe the linkages or connections to existing facilities (Category 5 of
Project Selection Criteria).
The proposed project will correct and improve an existing condition along "F"
StreetlHiIltop Drive, between the First Avenuel"F" Street intersection and the Hilltop
Drive/Center Street intersection by completing the missing sidewalk improvements
necessary for the continuation of pedestrian traffic.
Pedestrian traffic will be facilitated when traveling east and westbound along the
southerly side of "F" Street and Hilltop Drive. Surrounding the improvements, following
the half-mile buffer, there are one elementary school, one public park, one senior center
and two churches.
G. Describe the safety issues addressed by the project. If applicable, please attach support
documentation for safety and accident history (Category 6 of Project Selection Criteria).
The proposed project will increase the traffic safety of all pedestrians, vehicles and
bicycles at the proposed locations.
Along "F" Street and Hilltop Drive, there are existing sidewalks that are used by
pedestrians to access the neighboring public schools, public park and churches, since there
are several residential dwellings around the area. Constructing the missing sidewalk
improvements will provide a better access for pedestrians, in particular, our disable and
elderly constituents.
H. Describe any design innovations for bicycle/pedestrian priority measures that are included
within the project limits (Category 7 of Project Selection Criteria).
1. Please list the project's linkages to any regional bikeway or public transit (Category 8 of
Project Selection Criteria).
In the benefit area of the proposed sidewalk improvements, there are one Chula Vista
Transit bus stops that serve Route 701 ("H" Street Trolley StationlPalomar Street Trolley
Station). For the location of the public transit stop, please see Attachmenj) 7.
Is this project in your agency's adopted capital improvement program? (Y/N) No
If the project is part of a larger capital improvement project, briefly discuss how the bicycle or
pedestrian project costs were identified, and a description of the other sources of funds for the
overall project.
Briefly, describe any other aspects of the project that is relevant to its evaluation.
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City of Chula Vista
General Services Department
COST ESTIMATE
"F" Street/Hilltop Project No.
Project Title: Drive Sidewalk Date: 26-Mar-04
Improvements Prepared by: S. Hernandez
Checked by: S Nuhaily
ITEM NO. QUANTITY UNIT
1 1 LS
2 6,075 SF
3 1 LS
4 1 LS
5 1 LS
6 1 LS
Staff Costs (Construction Inspection)
Staff Costs (Design)
TOTAL
-=-
II
.
Project: F Street/Hilltop Drive Sidewalk Improvements
Pedestrian Project Selection Criteria
Category Criteria Potential Points Score
Must have at least one of the following to
qualify. Please attach supporting
documentation. 1.
1. Community Support/Consistency Resolution or minutes from City Council, Pass/Fail Pass
with Community Plan County Board of Supervisors, local planning
group, or Planning Commission. Or,
2. Project is part of a Non-Motorized Plan that
has been approved within the last five years.
Must meet the minimum geometric standards
set forth in the SANDAG Planning and
Designing for Pedestrians Manual and the
2. Meet Minimum Standards in Americans with Disabilities Act. Design
Design Criteria exceptions may be presented for Pass/Fail Pass
consideration by the Bicycle-Pedestrian
Working Group with the understanding that
initial project proposals must include a design
that meets minimum standards.
3. Project Readiness'- Projects are Feasibility Study 4 1
eligible for points following completion Preliminary Engineering" 4 1
of each phase- Environmental Clearance 4 4
Right-at-Way Acquisition 4 4
20 Points Maximum Final Design" 4 0
4. Geographic Factors/GIS Analysis- Factors contributing to score are: proximity to
20 Points Maximum population and employment, population and Oto 20
employment densities and activity centers.
5. Completes
Connection/Linkage in Existing Completes or improves connection in existing 10 10
Pedestrian Network- network.
10 Points Maximum
Improves safety within existing network. '\.2 12
Completes connection in existing network at
location with documented safety or accident
history A. One to two 4 0
correctable crashes involving non-motorized
6. Safety Improvements - 20 users within the last three years.
Points Maximum B. Three to four correctable crashes involving
non-motorized users within the last three 6 0
years.
C. Five to six correctable crashes involving
non-motorized users within the last three 8 0
years.
¡
,
Pedestrian priority measures such as
pedestrian controlled signals, bulb-outs,
raised crosswalks, signal lead time, etc. A. 4 0
Animated eye indicators, accessible push-
button signal, flashing crosswalk.
7. Innovation and Design - 10 B. Early pedestrian release interval, passive
Points Maximum pedestrian detection, audible pedestrian 6 0
signal.
C. Raised crosswalk, speed table, raised 8 0
intersection, pedestrian refuge island.
D. Pedestrian bulb-out, cul-de-sac connector. 10 0
Project is a part of, or connects to, a regional
bikeway corridor as identified in the Regional 10 0
8. Connection to Regional Transportation Plan (RTP).
Transportation Corridor or Transit Project provides a direct connection to local
Linkage or Regional- 14 14
20 Points Maximum transit stop.
Project provides a direct connection to 20 0
regional transit station.
Subtotal 46
Matching funds can be from any of the
following sources: 1.
Identified and approved capital funding from
9. Matching Funds identified source. Please provide proof in the (Matching Funds I 1
form of a resolution or letter of approval. Project Cost) X 25
2. Approved match grant. 3.
In-kind services. Please provide adequate
support documentation.
10. Cost Benefit Subtotal Score I Grant Application Amount Oto 15
Total Score 47
. PrevIous project milestones must be met before qualifying for subsequent funding.
.. Preliminary Engineering and Final Designs will be subject to design review by SANDAG
-=-
-I:;
RESOLUTION NO. 2004--
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING THE SUBMITTAL OF FOUR
GRANT APPLICATIONS TO SAN DIEGO ASSOCIATION OF
GOVERNMENTS (SANDAG) FOR FY 2004-05 TDA AND
TRANSNET FUNDING FOR BICYCLE AND PEDESTRIAN
CAPITAL IMPROVEMENTS
WHEREAS, the City annually participates in the claim process for Transportation
Development Act (TDA) and Transportation Sales Tax (TransNet) bicycle and pedestrian project
funds by submitting an updated list of projects to the San Diego Association of Goverrunents
(SANDAG); and
WHEREAS, SANDAG regulations require that official applications be submitted to
SANDAG in order for projects to be considered by its Board of Directors for funding; and
WHEREAS, in order for the application to be official, the City Council must approve a
resolution authorizing submittal of the FY 2004-05 project applications; and
WHEREAS, for FY2004-05, the City is requesting funds for the following improvement
projects:
1. East "H" Street Sidewalk Improvements (Hidden Vista Drive to Del Rey Blvd.).
2. Moss Street Sidewalk Improvements (Jefferson Avenue to Fourth Avenue).
3. "F" Street/Hilltop Drive Sidewalk Improvements (approximately 445 feet east from
the First Avenue/"F" Street Intersection to Hilltop Drive/Center Intersection).
4. "I" Street Sidewalk Improvements (First Avenue to Hilltop Drive).
WHEREAS, these four projects were selected because they closely follow the eligibility
guidelines for TDA and TransNet funding; and
NOW, THEREFORE, BE IT RESOLVED the City Council ofthe City ofChula Vista does
hereby authorize the submittal of four grant applications to the San Diego Association of
Govemments (SANDAG) for FY 2004-05 TDA and TransNet Funding for bicycle and pedestrian
capital improvements.
Presented by Approved as to form by
Dev-- ( . t-t'^--
Jack Griffin Ann Moore
Director of General Services City Attorney
A 1TORNE't1moIGmnt,IGRANTSANDA G 2004.doc
COUNCIL AGENDA STATEMENT
Item }1
Meeting Date 4/20/04
ITEM TITLE: Resolution accepting bids and awarding a contract for construction
ofthe Traffic Signal Installations at East "J" Street/Paseo Del Rey (TF-294)
project and the Clubhouse Drive/North and South Greensview Drive (TF-
308) project, to ABC Grading & Paving a Joint Venture dba ACE
Electric/ABC Construction
SUBMITTED BY: Director of General Services/City Engineer .~
. Gt' <V
REVIEWED BY: CIty Manager ,{~9' (4/5thsVote:Yes.x. No->
Installation oftraffic signals at the two subject intersections were approved and budgeted as part of
the FY 2003-04 Capital Improvements Program (CIP). The scope of the projects includes the
installation of fully actuated traffic signal systems and other work necessary to complete the projects.
RECOMMENDATION: That Council adopt the resolution.
BOARDS/COMMISSIONS: Not applicable.
DISCUSSION:
The work to be done for these proj ects includes the installation of new traffic signal standards and all
other work necessary to make the systems complete and operational. The scope of work is
summarized in Attachment 1.
As part of the Clubhouse Drive/North and South Greensview Drive (TF-308) project, temporary
parking on both the north and south sides of Clubhouse Drive between Eastlake Parkway and
North/South Greensview Drive will be eliminated and the bike lanes restored. These parking spaces
had been provided to temporarily accommodate students attending Eastlake High School while Otay
Ranch High School was under construction. Staff is preparing a letter to inform Eastlake High
School of the change. The letter will be mailed before the start of construction.
On March 10,2004, bids were received ITom the following contractors:
r .. Contractor Bid Amount ~
I AEC Grading & Paving a Joint Venture dba ACE' $228,328" ~
Electric/AEC Construction (San IJiego, CA) , , II
T & M Electric dba Perry Electric (Santee, CA) $236,913 j
HMS Construction, Incorporated (San Marcos, CA) $253,241 II
~:~~~~~:~;a~~~T;:=:1ul~~lcc;rn, CÄ) .. ,., ~~~~:~~~ . ',11
Moore Electrical Contracting (Corona, CA) -~~.... $293,153
Hi¡¡hlightElect~c~corporated (Ri~:r~ide,c:A) $295,431
.. _..~-.._-,,-_.
Page 2, Item ~
Meeting Date 4/20/04
The low bid by AEC Grading & Paving was $26,672 (10.5'%) below the Engineering estimate of
$255,000 for construction of the two projects. The Engineering estimate was based on the average
unit prices of recently received bids from contractors on similar types of projects. The references
provided by ABC Grading & Paving were verified by Traffic Engineering staff and the contractor's
work performance history was found to be acceptable.
Disclosure Statement: The Contractor's Disclosure Statement is provided as Attachment 2.
Environmental Status: The work involved in these projects is categorically exempt under
Section 15303 of the California Environmental Quality Act (Minor Alterations of Existing Public
Improvements or Public Structures).
"._~~.~.~.... "'-'-"'-"-___'__n-----""
""'__nn-----'--"-"""-'---
FUNDS REQUIRED FOR CONSTRUCTION
A. Contract Amount (AEC Grading and Paving) $ 228,328
B. City Furnished Materials $ 5,431
Preli~~ary _~~ineering ------------------.--- $ 38,336
----
20% Contract Contingencies $ 45,655
E. Inspection & Contract Administration $ 32,250
TOTAL FUNDS FOR CONSTRUCTION $
FUNDS AVAILABLE FOR CONSTRUCTION
A. Traffic Fund TF-294 $
B. Traffic Signal Fund TF-308 $
TOTAL FUNDS AVAILABLE FOR CONSTRUCTION $
FISCAL IMPACT: There is no impact to the General Fund for construction. Construction will be
entirely funded from Traffic Signal funds. Upon completion of construction, normal annual signal
energy and maintenance costs are estimated to be $3,500 for each of the two intersections.
Attachments:
Attachment 1: Scope of Work Summary for projects TF-294 and TF-308
Attachment 2: Contractor's Disclosure Statement
J:IEngineerIAGENDAITF294-TF308AI13.mlcm.cb.doc
Page 3, Item L
Meeting Date 4/20/04
Attachment 1
Scope of Work Summary
Projects TF-294 and TF-308,
Install:
. new traffic signal standards
. mast arms
. signal light emitting diode (LED) indications
. wmng
. video detection systems
. conduits
. luminaries
. pull boxes
. internally illuminated street name signs (TISNS)
. signal controllers and cabinets
. meter pedestals
. uninterruptible power supply (UPS) units
. SignS
. striping
. traffic control and emergency vehicle pre-emption (EVPE) systems
Other work:
. grinding/sandblasting and resurfacing pavement on conflicting striping and legends
. removal and salvage of existing street lights, mast arms, luminaires, existing signs
. furnishing and installation of new signs
. protection, restoration, removal and disposal of existing conflicting improvements
. construction of all appurtenances and other miscellaneous work necessary to make the traffic
signal systems complete and operational.
C¡-3
.,...
THE CITY OF CHULA VISTA DISCLOSURE STATEMENT
Pursuant to Council Policy 101-01, prior to any action upon matters, that wilJ require disc;retionllJ)' action by the
Council, Planning Commission and all other official bodies of the City, a staUoment of disclosure of certa.ÎJ\
ownersbip or financial interests, payments, or campaign contributions for a City of Chula Vista election must be
med. The following infonnation 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 con ct, e.g., owner, applicant, contractor, subcontractor, and material supplier.
2. If any person. identified pursuant to (I) above is a corporation or partnership, list the names of alJ
individuals with a $2000 investtnent ill the business (corporation/partnership) entity.
!/QfJr;-
3. If any person. identified pursuant to (I) above is a non-profit organization or tnJBt, list the names of any
person~ serving as director of the non-profit organization or as trustee or beneficiary or trustor of the trust.
O>J1IIs
I
4. Pleasc¡identify eve!)' person, inc1nding any agents, employees, consultants, or independent contractors
you have assigned to represent you before the City in this matter.
AðV
I
J ;lEnsinccrIADMIN\CONTRACT SVCSItf-294- 4_l.doc 16 ~-
=~~"
.
5- 811$ any person. associated with this contract had any financial dealings with an ;:YïcWJ** ofrhe City of
Chula Vista 11$ it relates to this contract within the past 12 months? Yes_No-
If Yes, briefly describe the nature ofthe 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 CUITent
member of the ChuJa Vista City Council? YèS_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 ofChuJa Vista in the past twelve (12) months? (This includes be, a source of
income, money to retire a legal debt, gift, loan, etc.) Yes - No ~
Which official" and what was tho nature of item provided if yes?
Date: š'lft:(°Ý
J~~ JA- 1-hNPc, ~
Print or type nam of Contractor/Applicant
. Person is derIDed as: any individual, firm, eo-partnership, joint venture, association, social
club, fraternal organization, corporation, estate, trust, roceiver, syndicaœ, any other county, city,
municipality, diStrict, or other political subdivision, -or any other group or combination acting as a
W1it.
.. Official includes, but is not limited to: Mayor, Council member, Planning Commissioner,
Member of a board, commissiol1, or committee of the City, employee, or staffmembers.
J:\EngmeorlADMIN\CON1'RACT SVCSltf-2943_J _doc 17 9'-
RESOLUTION NO. 2004- -
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA
VISTA ACCEPTING BIDS AND AWARDING CONTRACT FOR THE
CONSTRUCTION OF THE TRAFFIC SIGNAL INSTALLATIONS AT
EAST "J" STREET/PASEO DEL REY (TF-294) PROJECT AND THE
CLUBHOUSE DRIVEINORTH AND SOUTH GREENVIEW DRIVE
(TF-308) PROJECT, TO AEC GRADING & PAVING A JOINT
VENTURE DBA ACE ELECTRIC! AEC CONSTRUCTION
WHEREAS, installation of traffic signals at the two subject intersections were approved
and budgeted as part ofthe FY 2003-04 Capital Improvements Program (CIP); and
WHEREAS, on March 10, 2004, bids were received from the following contractors:
Contractor Base Bid Amount
AEC Grading & Paving a Joint Venture dba ACE $ 228,328
Electric!AEC Construction (San Diego, CA).
T & M Electric dba Perry Electric (Santee, CA) $236,913
HMS Construction, Incorporated (San Marcos, CA) $253,241
Lekos Electric, Incorporated (El Cajon, CA) $273,370
DBX, Incorporated (Temecula, CA) $276,903
Moore Electrical Contracting (Corona, CA) $293,153
Highlight Electric Incorporated (Riverside, CA) $295,431
WHEREAS, the low bid by AEC Grading & Paving is below the Engineering estimate of
$255,000 for construction of the two projects; and
WHEREAS, staff has reviewed the low bid and recommends awarding the contract to
AEC Grading & Paving a Joint Venture dba ACE Electric!AEC Construction (San Diego, CA) in
the amount of$228,328; and
NOW, THEREFORE, be it resolved the City Council of the City of Chura Vista does
hereby accept bids and award the contract for the construction of the Traffic Signal Installations
at East "J" Street/Paseo Del Rey (TF-294) project and the Clubhouse DrivelNorth and South
Greensview Drive (TF-308) project, to AEC Grading & Paving a Joint Venture dba ACE
Electric! AEC Construction.
BE IT FURTHER RESOLVED that the City Manager of the City of Chula Vista is
hereby authorized and directed to execute said contracts on behalf of the City ofChula Vista.
Presented by Approved as to form by
Ad~~
Jack Griffin
Director of General Services City Attorney
J:\attorney\reso\bids\traffic signal installation \4 20 04
I
- -------.----... .
Item~
Meeting Date 4/20/04
COUNCIL AGENDA STATEMENT
ITEM TITLE: A) Resolution of the City Council of the City ofChula Vista,
California, approving an Acquisition/Financing Agreement in Community
Facilities District No. 07-1 (Otay Ranch Village Eleven)
B) Resolution of the City Council ofthe City ofChula Vista,
acting in its capacity as the legislative body of Community Facilities District
No. 07-1 (Otay Ranch Village Eleven), Authorizing and providing for the
issuance of special tax bonds of the district, Approving the form of Bond
Indenture, Bond Purchase Contract and other documents and authorizing
certain actions in connection therewith.
SUBMITTED BY: Director of General Services/City Engineer ~
Director of Financec..Jt:...
REVIEWED BY: þ(( (4/5ths Vote: Yes_No.X)
City Manage ¡~ CÁ On November 11, 2003 the City Council held the public hearing forming and establishing
Community Facilities District No. 07-1 (CFD-07-I). The District was formed for the purpose of
providing for the financing and acquisition for certain authorized public facilities. On November 18,
2003 City Council heard the election results, which declared that 100% of the votes cast, were in
favor for the authorization to issue bonds of the District, also the first reading of the Ordinance to
authorize the Levy of a Special Tax was read.
Tonight, Council will consider approving an Acquisition/Finance Agreement (A/FA) with
Brookfield Shea Otay LLC that establishes the procedure for acquiring the improvements from the
developer, which will require each individual component of the projects to be 100% completed
before acquisition and reimbursement. In addition, Council will consider the authorization of the
issuance of special tax bonds of CFD-07-I in the amount of approximately $27,970,000 and the
approval of the form of certain documents related to the issuance of the bonds including a Bond
Indenture, Bond Purchase Agreement, and Preliminary Official Statement.
RECOMMENDATION: That Council:
. Approve the Resolution (A) approving the Acquisition/Financing Agreement that (i)
establishes the terms and conditions pursuant to which the City will acquire the authorized
public improvements, (ii) establishes the terms and conditions pursuant to which the District
will agree to issue special tax bonds to finance the acquisition of such improvements and (iii)
establishes the procedure for acquiring the improvements from the developer within
Community Facilities District No. 07-1, and
q-I
..-------
Page 2, Item~
Meeting Date 4/20/04
. Approve the Resolution (B) authorizing the issuance of Bonds, approving the form of the
Bond Indenture, Bond Purchase Agreement, and other documents for Community Facilities
District No. 07-1 and authorizing certain actions in connection therewith.
BOARDS/COMMISSIONS RECOMMENDATION: Not applicable.
DISCUSSION:
Backl!:round
On November 11, 2004, a public hearing was held which formed and established Community
Facilities District No. 07-1 (CFD-07-I). On November 18,2003 City Council heard the election
results which declared that 100% of the votes cast, were in favor. On November 25,2003 Council
heard the second reading of the Ordinance authorizing the Levy of a Special Tax. The Mello-Roos
Community Facilities Act of 1982 is a financing mechanism for funding the acquisition or
construction of public infrastructure improvements from the proceeds of Community Facilities
Districts bonds, which are repaid from an annual special tax collected from the property owners
within the district. There is no direct cost to the City. CFD-07-I is primarily an acquisition district
wherein the developer constructs the public improvements and the City acquires them upon
completion with funds derived solely from the sale of bonds.
District Boundaries
Exhibit I illustrates the amended boundaries of the proposed CFD-07-I. Two major builders,
Brookfield, Shea or the combined entity Brookfield Shea Otay LLC own the parcels within CFD-07-1
that have not been sold to private homeowners. The Village Eleven project area is bounded on the
south and east by Hunte Parkway, a curving arterial from south to northeast, the north edge is formed
by Olympic Parkway and to the west is the extension of the Eastlake Parkway.
At buildout, the current Tentative Map has approved 1,101 single-family detached residential units,
1,164 single family attached units, with 10 acres of Mixed Use for Residential and Commercial Use,
four Parks, two CPF sites and two school sites.
Relationship with the Buildinl!: Permit Monitorinl!: Al!:reement
The building permit monitoring agreement allows CFD-07-1 to pull I ,438 building permits by March
31,2006.
Period Authorized Permits
April 03 thru March 04 378
April 04 thru March 05 568
April 05 thru March 06 492
Total 1,438
q,,(f
Page 3, Item~
Meeting Date 4/20/04
The market absorption study for this CFD is consistent with the building permit monitoring
agreement in that there is no assumption of more than 1,438 permits being pulled prior to March 31,
2006.
The Improvements
The developer is proposing the financing of backbone streets and associated improvements (i.e.,
grading, sewer, streets, landscaping, and utilities) and public facilities. Following is a general
description of the proposed facilities including, but not limited to:
. Hunte Parkway
. EastLake Parkway
. Olympic Parkway
. Otay Lakes Road
. Kestral Falls Road
. Hidden Path Drive
. Windingwalk Street
. Discovery Falls Drive
. Birch Road
. Exploration Falls Drive
. Crossroads Street
. Evening Star Street
In addition to the above improvements, this CFD's bonding capacity maybe used for certain
"Traffic Enhancement "facilities within the greater eastern territories of Chula Vista. These
transportation facilities will be traffic capacity adding improvements and could include the
following projects:
. Telegraph Canyon Road East of 1-805
. I-805/Telegraph Canyon Road an additional on-ramp lane to 1-805
. Heritage Road(Olympic Parkway to Main Street)
. I-805/H Street additional on-ramp lane to 1-805
In addition to the above facilities, this CFD's bonding capacity may be used to pay for other
facilities to be financed by any of the Development Impact Programs.
Bond Aspects
At formation, preliminary estimates showed that the maximum tax revenue (using the proposed
taxes) from all the taxable properties could support a total bonded indebtedness of approximately
$42 million (assuming a 6.00% interest rate and a 30-year term on the bonds). A bonded
indebtedness amount of $42 million could finance approximately $34.3 million in facilities (i.e.
grading, landscaping, streets, utilities, drainage, sewer, etc). The balance would provide for a reserve
fund, capitalized interest and pay district formation and bond issuance costs.
q-s
.-----.-----
/ì
Page 4, Item~
Meeting Date 4/20/04
As noted above, it is currently estimated that only $42 million will be available for funding by this
district. However, the district will be sized for $45 million to give the City flexibility in sizing the
bonds and to take advantage of lower interest rates should they occur. A final priority list and cost
estimates for each of the eligible improvements for CFD-07-I financing is be consider tonight's
Council actions in conjunction with the Acquisition/Financing Agreement and other bond
documents.
These bonds are planned to be sold in two series of parity bonds. The current proposed bond series
for approximately $27.9 million and the second bond series to be sold at a later date for up to $13.5
million depending on the interest rates, value to lien ratio and facilities cost to finance.
The City may, in its sole discretion, elect to authorize and make the proceeds of any series ofbonds
issued for the District available to pay the cost of construction or the purchase price for the
acquisition of Improvements for the "Traffic Enhancement Program". This could result in the
revision of the facilities priority structure for the utilization of such proceeds.
Ultimately, as subdivision exactions, the developer will finance required improvements that this
CFD district cannot finance. In addition, the proposed CFD lies within the City ofChula Vista's
Transportation Development Impact Fee (TDlF) benefit area that places a cap on the CFD's ability to
finance certain TDIF improvements. Staff and the consultant team are working with the developer to
maximize the TDIF facilities to be constructed by the District
Special Tax Report
A copy of the Amended Special Tax Report for Community Facilities District No. 07-1 for Otay
Ranch Village Eleven prepared by the Special Tax Consultant, McGill Martin Self, Inc., is on file,
and available for public review in the City Clerk's Office. Said report incorporates the "Rate and
Method of Apportionment" (RMA) (approved by Council on September 16, 2003).
Development Impact Fee Credit. Payment and Reimbursement
The Improvements include public facilities that are included in several City development impact fee
programs (each, a "DlF Program"). These Improvements are identified in Exhibit A of the A/FA as
either Improvements otherwise eligible to be financed through the City's Traffic Development
Impact Fee program ("TDIF Improvements") or Improvements otherwise eligible to be financed
through the City's Public Facilities Development Impact Fee program ("PFDlF Facilities"). Except
as supplemented herein, credits against the applicable DIF Program fees shall be granted in
accordance with the applicable City ordinances, regulations and policies.
Developer proposes to construct the Project in three distinct phases ("Phase I," "Phase 2" and
"Phase 3"). Developer has requested that proceeds from the first series of the Bonds (Series A) be
used to fund the acquisition ofTDlF Improvements related to only Phases 1 & 2 (approximately $9.5
million of eligible TDIF facilities), PFDIF Improvements (approximately 69% ofthe full amount of
the PFDIF) and some non- TDIF facilities (see Table A of Exhibit 3). The Developer will receive a
credit against such TDIF and PFDIF fee obligations upon the issuance of such series of the Bonds.
Credit shall be given against only the TDIF and PFDIF fee obligations for Phase 1 and Phase 2 as
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PageS, Item~
Meeting Date 4/20/04
requested. Proceeds of the first Series A Bonds in the amount of the requested credit will be set
aside in separate accounts within the Project Fund established by the Bond Indenture for such series
ofthe Bonds. The use of such proceeds shall be restricted to payment of either (a) the Purchase Price
forTDIF orPFDIF Improvements, as applicable, (b) the cost of construction of such TDIF orPFDIF
Improvements, if the City elects to construct such Improvements and/or (c) the cost of construction
of other improvements eligible to be funded through the TDIF or PFDIF programs.
The Acquisition/Financing agreement (Exhibit 3) stipulates that the Developer shall not request and
the City shall withhold the issuance of any building permit for construction above $9.5 million for
TDIF or from any Phase ill permit for PFDIF until a second series ofthe Bonds (Series B) has been
issued and proceeds of such Bonds have been set aside set aside in separate accounts within the
Project Fund established by the Bond Indenture for such series ofthe Bonds in amounts equal to the
aggregate TDIF (remaining obligation for Phases 1 & 2) and PFDIF (percentage) fee obligations for
Phase 3 facilities.
City Financial Criteria
Value to Lien Ratio: The City's Statement of Goals and Policies for Community Facilities Districts
("CFD policy") requires a minimum value to lien ratio of 4: I. In addition, the policy establishes the
following criteria:
The required value-to-debt ratio shall be determined with respect to all taxable
property within the community facilities district in the aggregate and with respect to
each development area for which no final subdivision map has been filed. A
community facilities district with a value-to-debt ratio of less than 4: 1 but equal to or
greater than 3:1 may be approved, in the sole discretion of the City Council, upon a
determination by the City Manager, after consultation with the finance director, the
bond counsel. the underwriter and the financial advisor, that a value to debt ratio of
less than 4: 1 is financially prudent under the circumstances of the particular
community facilities district. "
Bruce W. Hull & Associates conducted an appraisal (December 1,2003) on the property. Exhibit
2 illustrates a bond sale of$27,970,000 which will result in an overall lien ratio of8.07: 1. Within
CFD-07-I, all of the individual planning areas have a lien ratio of over 7.50 to 1.
Resolutions
There are two resolutions on today's agenda that, if adopted, will accomplish the following:
(A) The RESOLUTION APPROVING AN ACQUISITION/FINANCING AGREEMENT for
Community Facilities District No. 07-1 (Otay Ranch Village Eleven) is the formal action
approving the Acquisition/Finance Agreement (A/FA), (Exhibit 3) that establishes the procedure
for acquiring the improvements from the developer requiring the project be fully completed and
accepted by the City prior to acquisition.
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Page 6, Item-9-
Meeting Date 4/20/04
. The NFA provides that the City may reimburse 75% of the total cost of the grading,
drainage, paving, utilities, and landscaping improvements upon the determination by the City
Engineer that those improvements have been installed per approved plans with required City
Inspection. Those facilities may not be functional at that time, and certain activities (i.e.
testing, completion of punch list, preparation of as-built drawings) may still be pending. The
25% final payment may be made once all projects within a phase are fully complete and
accepted by the City.
. The NF A also conditions the purchase of said improvements to developer's compliance with
all the applicable conditions and obligations imposed on the property within CFD-07-I
pursuant to the land use entitlements approved by the City, including but not limited to,
payment of all applicable fees, dedication of right- of-ways or other property (i.e. parks, open
space, etc), payment of assessments installments or special taxes, and construction of all
applicable public improvements.
. Staff has reviewed the proposed agreement and believes that I) the 25% payment retention,
and 2) the condition that require compliance with approved land use entitlement will provide
enough security to guarantee completion of the improvements while ensuring the financial
health ofCFD-07-I.
. The City retained the firm of Best, Best and Krieger, LLP as Bond Counsel for CFD-07-I.
Bond Counsel drafted this agreement for and on behalf of the City with input and review by
City staff, developer legal council, developer and financial team.
(B) THE RESOLUTION AUTHORIZING THE ISSUANCE OF BONDS AND APPROVING THE
FORM OF CERTAIN RELATED DOCUMENTS" shall authorize an aggregate principal amount
of 2004 Bonds, pursuant to the Mello-Roos Act in a principal amount not to exceed $27,900,000.
The final bond sales amounts will be known once the interest on the bonds is determined at the bond
sales. In addition, the resolution approves the form of the following documents:
. The Preliminarv Official Statement (Exhibit 4): describing the Community Facilities District
and type of bonds, including terms and conditions thereof, for the bondholders.
. The Bond Indenture (Exhibit 5): between the City and the Fiscal Agent, US Bank Trust
National Association, that sets forth the terms and conditions relating to the issuance and sale
of the bonds. The Indenture also establishes the Escrow Account and the conditions to be
met for releasing the funds deposited in said Escrow Account.
. The Bond Purchase Agreement (Exhibit 6): The Bond Purchase Contract authorizes the sale
of bonds to the designated Underwriter (Stone & Youngberg LLC). The underwriter's
discount for this negotiated sale is not to exceed 1.75% of the Par.
. Continuing Disclosure Agreement: between the City and u.s. Bank Trust National
Association, as dissemination agent, pursuant to whom the City is required to disclose certain
financial information on an annual basis regarding the Community Facilities District and
certain significant events. These disclosures include but are not limited to:
q-(p
Page 7, Item~
Meeting Date 4/2 104
Special tax delinquencies
Bond calls
Events reducing density or causing modifications
Other events reflecting financial difficulties of CFD-07 -I
It should be noted that Council would only be approving the form of the aforementioned documents.
The proposed resolution authorizes the Director of Finance to approve the final form and to execute
such documents on behalf of the City following review by and consultation with the City Attorney,
Bond Counsel, and Financial Consultant. No additions or changes in the documents are permitted
which would result in the annual interest rate on the bonds to exceed 6.50 %.
Future Actions
Adoptions of tonight's Resolutions will approve the AcquisitionlFinancing Agreement for CFD-07-1
and authorize the issuance of bonds, and approve the form of related documents. The first series of
bonds - Series A will be issued by end of May 2004, if Council approves tonight's action. The
second bond sale - Series B is anticipated to be sold in the spring of2005.
FISCAL IMPACT:
The City's General Fund receives 1 % of the bond sale amount in accordance with the CFD Policy for
the use of the City's bonding capacity. This totals to $279,700 for Series A bonds. The developer
will pay all formation costs and has deposited money to fund initial consultant costs, and City costs
in accordance with the approved Reimbursement Agreement.
Attachments:
Exhibit 1: Recorded Amended Boundary Map for CFD-O7-I
Exhibit 2: Estimated Value to Lien Ratios Based on Appraisal
Exhibit 3: Acquisition/Financing Agreement for CFD-07-I
Exhibit 4: Preliminary Official Statement for CFD-07-I
Exhibit 5: Bond Indenture for CFD-07-I
Exhibit 6: Bond Purchase Agreement for CFD-07-I
nEngin,e,IaGENDAICAS 4-2Q-O4.doc
q-'7
RESOLUTION NO. 2004-
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA,
CALIFORNIA, APPROVING THE FORM OF AN ACQUISITION/FINANCING
AGREEMENT IN COMMUNITY FACILITIES DISTRICT NO. 07-1 (OTAY
RANCH VILLAGE ELEVEN)
WHEREAS, the CITY COUNCIL of the CITY OF CHULA VISTA, CALIFORNIA (the
"City Council"), has held and conducted proceedings relating to formation of a community
facilities district and the authorization to levy special taxes and to issue of bonds of such
community facilities district to finance the acquisition or construction of certain public
improvements, as authorized pursuant to the terms and provisions of the "Mello-Roos Community
Facilities Act of 1982", being Chapter 2.5. Part 1, Division 2, Title 5 of the Government Code of
the State of California (the "Act") and the City of Chula Vista Community Facilities District
Ordinance enacted pursuant to the powers reserved by the City of Chula Vista under Sections 3, 5
and 7 of Article XI of the Constitution of the State of California (the "Ordinance") (the Act and
the Ordinance may be referred to collectively as the "Community Facilities District Law"). Such
community facilities district is designated as COMMUNITY FACILITIES DISTRICT NO. 07-1
(aT A Y RANCH VILLAGE ELEVEN) (the "District"); and,
WHEREAS, the District was formed for, among other purposes, the purpose of financing
the acquisition of such public improvements from Brookfield Shea Otay, LLC, the master
developer of the property within the District (the "Developer"); and,
WHEREAS, the City and the Developer have negotiated the terms and conditions pursuant
to which the public improvements are to be constructed or acquired and bonds are to be issued to
finance the acquisition of such public improvements and such terms and conditions have been
memorialized in an Acquisition/Financing Agreement by and between the City and the Developer
(the "Acquisition/Financing Agreement"), the form of which has been presented to this City
Council for its consideration and approval.
NOW, THEREFORE, IT IS HEREBY RESOLVED:
SECTION 1. The above recitals are all true and correct.
SECTION 2. The form of Acquisition/Financing Agreement, herewith submitted, is approved
substantially in the form submitted. The Mayor is hereby authorized to execute the final form of
such agreement on behalf of the City. The City Manager, subject to the review of the City
Attorney and Bond Counsel, is authorized to approve changes in such agreement deemed to be in
the best interests of the City, approval of such changes to be evidenced by the execution of such
agreement.
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..--..----
Presented by Approved as to form by
0--- ~
Jack Griffin Ann Moore
Director of General Services City Attorney
q-q
RESOLUTION NO.
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA,
CALIFORNIA, ACTING IN ITS CAPACITY AS THE LEGISLATIVE BODY OF
COMMUNITY FACILITIES DISTRICT NO. 07-1 (OTAY RANCH VILLAGE
ELEVEN), AUTHORIZING AND PROVIDING FOR THE ISSUANCE OF
SPECIAL TAX BONDS OF THE DISTRICT, APPROVING THE FORM OF
BOND INDENTURE, BOND PURCHASE AGREEMENT, PRELIMINARY
OFFICIAL STATEMENT AND OTHER DOCUMENTS AND AUTHORIZING
CERTAIN ACTIONS IN CONNECTION WITH THE ISSUANCE OF SUCH
BONDS
WHEREAS, the CITY COUNCIL of the CITY OF CHULA VISTA, CALIFORNIA (this
"City Council"), did previously conduct proceedings to form and did form a community facilities
district pursuant to the terms and provisions of the "Mello-Roos Community Facilities Act ofl982",
being Chapter 2.5, Part 1, Division 2, Title 5 ofthe Government Code of the State of California (the
"Act") and the City ofChula 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 maybe referred
to collectively as the "Community Facilities District Law"), such Community Facilities District
designated as COMMUNITY FACILITIES NO. 07-I (OTAY RANCH VILLAGE ELEVEN) (the
"Community Facilities District") for the purpose of financing the acquisition or construction of
certain public improvements; and,
WHEREAS, this City Council has previously declared its intention to issue bonds for the
Community Facilities District to finance the acquisition or construction of such improvements, such
bonds be issued pursuant to the terms and provisions of the Act and the City of Chula Vista
Statement of Goals and Policies Regarding the Establishment of Community Facilities Districts, as
amended to date (the "Goals and Policies"); and,
WHEREAS, at this time this City Council desires to set forth the general terms and
conditions relating to the authorization, issuance and administration ofthe first series of such bonds
for the Community Facilities District; and,
WHEREAS, the forms ofthe following documents have been presented to and considered for
approval by this City Council:
A. Bond Indenture by and between the Community Facilities District and U.S. Bank,
National Association, as fiscal agent (the "Fiscal Agent") setting forth the terms and
conditions relating to the issuance and sale of2004 Bonds (defined below), the first
series of bonds of the Community Facilities District (the "Bond Indenture");
B. Bond Purchase Agreement authorizing the sale of the 2004 Bonds to Stone &
Youngberg LLC, the designated underwriter (the "Bond Purchase Agreement");
I q-Io
._~-_._--- -
C. Preliminary Official Statement containing information including but not limited to
the Community Facilities. District and the 2004 Bonds, including the terms and
conditions thereof (the "Preliminary Official Statement"); and
D. Continuing Disclosure Agreement by and between the Community Facilities District
and MuniFinancial, as dissemination agent (the "Dissemination Agent"), pursuant to
which the Community Facilities District will be obligated to provide ongoing annual
disclosure relating to the 2004 Bonds (the "Continuing Disclosure Agreement"); and
WHEREAS, this City Council, with the aid of City staff, has reviewed and considered the
Bond Indenture, the Bond Purchase Agreement, the Continuing Disclosure Agreement and the
Preliminary Official Statement and finds those documents suitable for approval, subject to the
conditions set forth in this resolution; and
WHEREAS, all conditions, things and acts required to exist, to have happened and to have
been performed precedent to and in the issuance of the 2004 Bonds as contemplated by this
resolution and the documents referred to herein exist, have happened and have been performed or
have been ordered to have been preformed in due time, form and manner as required by the laws of
the State of California, including the Act and the applicable policies and regulations ofthe City of
Chula Vista.
NOW, THEREFORE, IT IS HEREBY RESOLVED AS FOLLOWS:
SECTION 1. Recitals. The above recitals are true and correct.
SECTION 2. Determinations. This legislative body hereby makes the following
determinations pertaining to the proposed issuance of the 2004 Bonds:
(a) The Goals and Policies generally require that the full cash value of the properties
within the Community Facilities District subject to the levyofthe special taxes must
be at least 4 times the principal amount of the 2004 Bonds and the principal amount
of all other bonds outstanding that are secured by a special tax levied pursuant to the
Act on property within the Community Facilities District or a special assessment
levied on property within the Community Facilities District (collectively, "Land
Secured Bonded Indebtedness").The Act authorizes the City Council, acting as the
legislative body of the Community Facilities District, to sell the 2004 Bonds only if
the City Council has determined prior to the award of the sa1e of the 2004 Bonds that
the value of such properties within the Community Facilities District will be at least 4
times the amount of such Land Secured Indebtedness.
The value of the property within the Community Facilities District which will be
subject to the special tax to pay debt service on the 2004 Bonds will be at least 4
times the amount of the Land Secured Bonded Indebtedness.
The Goals and Policies further provide that the full cash value of each development
area for which no final subdivision map has been filed must also be at least 4 times
2 q-II
the Land Secured Bonded Indebtedness allocable to each such property. The full cash
value of each development area is at least 4 times the Land Secured Bonded
Indebtedness allocable to such properties.
The foregoing determinations are based upon the full cash value of such properties
and development areas as shown upon an appraisal of the subject properties prepared
by Bruce W. Hull & Associates, a state certified real estate appraiser, as defined in
Business and Professions Code Section 11340(c). Such determination was made in a
manner consistent with the Goals and Policies.
(b) The terms and conditions of the 2004 Bonds as contained in the Bond Indenture are
consistent with and conform to the Goals and Policies.
(c) As a result of the current status of development of the property within the
Community Facilities District and the relative overall lack of diversity of ownership
of property therein, the private sale of the 2004 Bonds will result in a lower overall
cost to the Community Facilities District.
SECTION 2. 2004 Bonds Authorized. Pursuant to the Community Facilities District Law,
this Resolution and the Bond Indenture, the first series of special tax bonds of the Community
Facilities District designated as "City ofChula Vista Community Facilities District No. 07-1 (Otay
Ranch Village Eleven) 2004 Special Tax Bonds" (the "2004 Bonds") in an aggregate principal
amount not to exceed $32,000,000 are hereby authorized to be issued. The date, manner ofpayment,
interest rate or rates, interest payment dates, denominations, form, registration privileges, manner of
execution, place of payment, terms of redemption and other terms, covenants and conditions ofthe
2004 Bonds shall be as provided in the Bond Indenture as finally executed.
SECTION 3. Authorization and Conditions. The City Manager, an Assistant City Manager,
the Director of Finance and such other official or officials ofthe City as may be designated in writing
by this City Councilor the City Manager (each, an "Authorized Officer") are each hereby authorized
and directed to execute and deliver the final form of the various documents and instruments
described in this Resolution, with such additions thereto or changes therein as such Authorized
Officer may deem necessary and advisable provided that no additions or changes shall authorize an
aggregate principal amount of2004 Bonds in excess of$32,000,000, an annual interest rate on the
2004 Bonds in excess of six and one half percent (6.50%) per year and a purchase price for the 2004
Bonds not less than one and seventy five hundredths percent (1.75%) of the par amount ofthe 2004
Bonds (excluding original issue discount, if any). The approval of such additions or changes shall be
conclusively evidenced by the execution and delivery of such documents or instruments by an
Authorized Officer, upon consultation with and review by the City Attorney and Best Best & Krieger
LLP, the Community Facilities District's bond counsel.
SECTION 4. Bond Indenture. The form of Bond Indenture by and between the Community
Facilities District and the Fiscal Agent, with respect to the 2004 Bonds as presented to this City
Council and on file with the City Clerk is hereby approved. An Authorized Officer is hereby
authorized and directed to cause the same to be completed and executed on behalf of the Community
Facilities District, subject to the provisions of Section 3 above.
3 q-j ()--
..---.- --.- .. - - ----------- - . ---.-------.
SECTION 5. Official Statement and Continuing Disclosure Agreement. The City Council
hereby approves the form ofthe Preliminary Official Statement as presented to this City Council and
on file with the City Clerk, together with any changes therein or additions thereto deemed advisable
by the Director of Finance or, in the absence ofthe Director of Finance, another Authorized Officer.
Pursuant to Rule 15c2-12 under the Securities Exchange Act of 1934 (the "Rule") the Director of
Finance or, in the absence of the Director of Finance, another Authorized Officer is authorized to
determine when the Preliminary Official Statement is deemed final, and the Director of Finance or
such other Authorized Official is hereby authorized and directed to provide written certification
thereof. The execution of the final Official Statement, which shall include such changes and
additions thereto deemed advisable by the Director of Finance or, in the absence of the Director of
Finance, another Authorized Officer pursuant to the Rule, shall be conclusive evidence of the
approval of the final Official Statement by the Community Facilities District. The City Council
hereby authorizes the distribution of the final Official Statement by the Underwriter as the initial
purchaser of the 2004 Bonds.
The form of Continuing Disclosure Agreement by and between the Community Facilities
District and the Dissemination Agent as presented to this City Council and on file with the City
Clerk is hereby approved. An Authorized Officer is hereby authorized and directed to cause the same
to be completed and executed on behalf of the Community Facilities District, subject to the
provisions of Section 3 above.
SECTION 6. Sale of2004 Bonds. This City Council hereby authorizes and approves the
negotiated sale of the 2004 Bonds to the Underwriter. The form of the Bond Purchase Agreement is
hereby approved and an Authorized Officer is hereby authorized and directed to execute the Bond
Purchase Agreement on behalf of the Community Facilities District upon the execution thereof by
the Underwriter, subject to the provisions of Section 3 above.
SECTION 7. 2004 Bonds Prepared and Delivered. Upon the execution of the Bond
Purchase Agreement, the 2004 Bonds shall be prepared, authenticated and delivered, all in
accordance with the applicable terms of the Community Facilities District Law and the Bond
Indenture, and any Authorized Officer and other responsible City officials, acting for and on behalf
of the Community Facilities District, are hereby authorized and directed to take such actions as are
required under the Bond Purchase Agreement and the Bond Indenture to complete all actions
required to evidence the delivery of the 2004 Bonds upon the receipt of the purchase price thereof
from the Underwriter.
SECTION 8. Actions. All actions heretofore taken by the officers and agents of the City
with respect to the establishment of the Community Facilities District and the sale and issuance of
the 2004 Bonds are hereby approved, confirmed and ratified, and the proper officers of the City,
acting for and on behalf of the Community Facilities District, are hereby authorized and directed to
do any and all things and take any and all actions and execute any and all certificates, agreements,
contracts, and other documents, which they, or any of them, may deem necessary or advisable in
order to consummate the lawful issuance and delivery of the 2004 Bonds in accordance with the
Community Facilities District Law, this Resolution, the Bond Indenture, the Bond Purchase
4 q~
Agreement, the Continuing Disclosure Agreement, and any certificate, agreement, contract, and other
document described in the documents herein approv.ed.
SECTION 9. Effective Date. This resolution shall take effect from and after its adoption.
Presented by Approved as to form by
CA ~~~
Jack Griffin Ann Moore
Director of General Services City Attorney
5 q-I¥
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EXHIBIT -3
"
RECORDING REQUESTED BY
City ofChula Vista
WHEN RECORDED MAIL TO:
City Clerk
City ofChula Vista
276 Fourth Avenue
Chula Vista, California 91910
ACQUISITION/FINANCING AGREEMENT
COMMUNITY FACILITIES DISTRICT NO. 07-1
(OT A Y RANCH VILLAGE ELEVEN)
THIS AGREEMENT, dated as of April 20, 2004, is made and entered into by and
between the CITY OF CHULA VISTA, a charter city duly organized and validly existing under
the Constitution and laws of the State of California, (the "City"), COMMUNITY FACILITIES
DISTRICT NO. 07-1 (OTA Y RANCH VILLAGE ELEVEN), a community facilities district
formed and existing pursuant to the laws of the State of California (the "CFD No. 07-1"),
BROOKFIELD SHEA OTA Y, LLC, a California limited liability company (the "Developer")
and OT A Y R2/3 LLC, a Delaware limited liability company, OT A Y MF1 LLC, a Delaware
limited liability company, OT A Y R 7/10 LLC, a Delaware limited liability company and SHEA
HOMES LIMITED PARTNERSHIP, a California limited partnership (each, a "Merchant
Builder" and collectively, the "Merchant Builders").
WHEREAS, the Developer is the master developer of certain property within that portion
of the City known as the Otay Ranch Village Eleven (the "Development Project") and Developer
has obtained certain land use entitlements from the City which permit the development of the
Development Project; and
WHEREAS, the Developer and the Merchant Builders own the real property within the
Development Project described in Exhibit E attached hereto and incorporated herein by this
reference (the "Property"); and
WHEREAS, as a part of the development of the Development Project, the Developer will
be constructing certain public improvements to serve the Development Project including the
improvements identified as Improvements Nos. 3 through 55 in Exhibit A attached hereto and
incorporated herein by this reference (the "Development Project Improvements") ; and
WHEREAS, in order to mitigate the adverse impact that the Development Project will
have on the City's existing public facilities, the Development Project will be responsible for
~~~e:;~~~nICitieSICity of Chula VistalCFD 07-1 Otay Villar 11 IAcquisition Agrq:t'ì1sition Financing Agreement v6.DOC
_0_""____0._-
financing its proportionate share of the cost of the construction of those public facilities
identified in Section 3.50.030 of the Chula Vista Municipal Code and as Improvement No.2 in
Exhibit A hereto (the "Public Facilities"); and
WHEREAS, the land use entitlements referred to in the first recital hereinabove also
describe the threshold of building permits that may be issued for the Development Project as the
result of traffic impacts on roadways within the City; and
WHEREAS, the City's Growth Management Oversight Committee, in its annual
threshold compliance report, noted that development in the eastern portion of the City which
includes the Development Project was starting to strain the capacity of existing roadways
resulting in added congestion and traffic delays; and
WHEREAS, the City has determined that it is necessary to expedite the construction of
certain traffic enhancement projects, including the Traffic Enhancement Improvements defined
below (individually, a "Traffic Enhancement Improvement" and collectively, the "Traffic
Enhancement Improvements"), located in the eastern part of the City in order to maintain the
City's threshold standard and quality of life until the completion of more of the overall
transportation network in the eastern part ofthe City; and
WHEREAS, in order for the Developer and the master developers of other properties
located in the City east of the 1-805 freeway to continue to receive building permits beyond the
current thresholds identified in the existing land use entitlements for the Development Project
and other developments in the eastern portion of the City, such developers must contribute to the
financing of the construction of the Traffic Enhancement Improvements; and
WHEREAS, in order to provide for the financing of one of the Traffic Enhancement
Improvements, the Developer, together with certain other master developers (the "Other Master
Developers"), have entered into that certain Agreement for the Construction of Roadway
Improvements for Traffic Enhancement (the "Traffic Enhancement Improvement Agreement")
made as of September 17, 2002, to establish a system for the financing and construction of
certain roadway improvements identified in the Traffic Enhancement Improvement Agreement
(the "Traffic Enhancement Improvements"); and
WHEREAS, the Developer requested that the City consider and the City did consider and
form CFD No. 07-1 under the terms and conditions of the "Mello-Roos Community Facilities Act
of 1982," as amended (Govemment Code Section 53311 and following) (the "Act"), for the
purpose of financing the acquisition or construction of the Development Project Improvements, a
portion of the cost of the construction of the Public Facilities allocable to the Development
Project and Developer's fair share of the cost of the acquisition or construction of the Traffic
Enhancement Improvements, together with appurtenances and appurtenant work (the
Development Project Improvements and the Traffic Enhancement Improvements are referred to
herein individually as an "Improvement" or collectively as the "Improvements"); and,
~:~e~.~~~~nICitieSICity of Chula VistalCFD 07-1 Otay villa~e IllAcquisition Agrr;¡:tI7iisition Financing Agreement v6.DOC
Developer at the prices as determined by the City pursuant to this Agreement upon: (a) the sale
and delivery of bonds by CFD No. 07-1 the proceeds of which shall be authorized and designated
to make the payments to acquire such Improvements and (b) the completion of the construction
of each such Improvement; and,
WHEREAS, CFD No. 07-1 is willing to fmance the acquisition of the Improvements to
be constructed by the Developer, a portion of the cost of the construction of the Public Facilities
allocable to the Development Project and to finance the Developer's Fair Share of the cost of the
Traffic Enhancement Improvements if constructed by a party other than the Developer subject to
the requirements of the Act, the City of Chula Vista Statement of Goals and Policies Regarding
the Establi~hment of Community Facilities Districts adopted by the City Council (the "Goals and
Policies"), this Agreement, the Traffic Enhancement Improvement Agreement and any Future
Traffic Enhancement Improvement Agreement and Developer desires that CFD No. 07-1 so
finance the acquisition of such Improvements, a portion of the cost of the construction of the
Public Facilities allocable to the Development Project and finance Developer's Fair Share of the
cost of the Traffic Enhancement Improvements and Developer's Future Fair Share, if any, of the
cost of other Traffic Enhancement Improvements.
NOW, THEREFORE, IT IS MUTUALLY AGREED between the respective parties as follows:
SECTION 1. Recitals. The above recitals are all true and correct.
SECTION 2. Plans and Specifications. All plans, specifications and bid documents for the
Traffic Enhancement Improvements, if any, to be constructed by the Developer and the
Development Project Improvements (the "Plans and Specifications") and all changes in the Plans
and Specifications necessitated by change orders shall be prepared by the Developer at the
Developer's initial expense, subject to City approval. The costs of acquisition of such
Improvements shall include costs of the preparation of the Plans and Specifications and all
related documentation as set forth in Section 8 below.
Developer shall not award bids for construction, commence construction or cause
commencement of construction of any Improvement until the Plans and Specifications for such
Improvement have been approved by the City.
SECTION 3. Design, Bid and Construction of Improvements. With the exception of the
Completed Improvements (defined below) the construction of which was completed prior to
November 12,2003, the date of formation ofCFD No. 07-1, Developer covenants and agrees that
each Improvement to be acquired from Developer pursuant to this Agreement shall be designed,
bid and constructed
(a) in substantial compliance with the approved Plans and Specifications for such
Improvement;
(b) in a good and workmanlike manner by well-trained adequately supervised
workers;
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(c) in strict compliance with all governmental and quasi-govemmental rules,
regulations, laws, building codes and all requirements of Developer's insurers and
lenders;
(d) free of any known design flaws and defects; and
(e) except as provided below, in substantial compliance with the requirements of
Exhibit C hereto which is incorporated herein by this reference.
The Improvements identified as Improvement Nos. 3, 4, 12, 13, 23, 25, 33 and 35 in
Exhibit A hereto are the "Completed Improvements." Developer certifies that Developer
solicited bids for the construction of the each of the Completed Improvements from not less
than three (3) contractors and that Developer, awarded the construction contract for each of
the Compl¡¡:ted Improvements to that contractor submitting the lowest responsible bid for such
work and that the design and the construction of each of the Completed Improvements was
undertaken in conformity with (a) through (d) above in the preceding paragraph. The City
agrees to acquire the Completed Improvements notwithstanding the fact that such
Improvements may not have been bid and the award of the construction contracts may not have
been made in accordance with all of the requirements of Exhibit C hereto.
In the event of a protest by a bidder to the award of a contract for the construction of an
Improvement or Improvements to the apparent low bidder, the Developer may, in its sole
discretion, elect to:
(a) award the contract to the apparent low bidder pursuant to the provisions of Exhibit
C hereto if the Developer has determined that the bid of the apparent low bidder
was, in fact, responsive and that the irregularity upon which the protest is based
was minor in nature, i.e., the irregularity did not create an unfair competitive
advantage for the apparent low bidder;
(b) reject the bid of the apparent low bidder if the Developer determines that the
irregularity upon which the protest is based did create an unfair competitive
advantage for the apparent low bidder and the bid of the apparent low bidder was,
therefore, not responsive and award the contract to the lowest responsive bidder;
or
(c) reject all bids and solicit new bids for the construction of the applicable
Improvement or Improvements.
Should a legal action be filed challenging the validity of the Developer's decision regarding any
such bid protest and/or the award of any contract for the construction of any Improvement,
including any Completed Improvement, the Developer shall, at Developer's sole expense, defend
such action and shall defend, indemnify, and hold harmless the City, its officers, directors,
SolWarren.DivenlCitieslCity of Chula VistalCFD 07.1 Otay viIIa~e lllAcquisition Agreement\Acquisition Financing Agreement v6.DOC
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employees and agents and CFD No.7, its officers, directors, employees and agents (each, an
"Indemnified Party" and collectively, the "Indemnified Parties").
SECTION 4. Inspection and Acceptance of the Improvements. The construction activities
relating to the Improvements to be constructed by the Developer shall be subject at all reasonable
times to inspection by authorized representatives of City. Once an Improvement to be acquired
by City is substantially completed in accordance with the approved Plans and Specifications, then
such Improvement shall be eligible for payment of the Base Increment of the Purchase Price (as
defined in Section 8 below) therefor.
Prior to acceptance by the City of any Improvement constructed by the Developer for
purposes of paying the Retained Increment (as defined in Section 8 below) of the Purchase Price,
the Developer shall provide to the City Engineer of the City, or his or her designee (the "City
Engineer"), the documentation set forth in this Section 4 and Section 8(c)(ii) below and obtain
approval of as-built drawings for the Improvement in accordance with the process described
below in this Section 4. The engineer of record for any such Improvement ("Engineer of
Record") shall file form PW-E-106 (Request for Release of Bonds) with the City Engineer.
Within 20 working days of such filing, the field inspector of the City or his or her designee
("Field Inspector") shall issue and transmit to the Engineer of Record a letter requesting (i) as-
built drawings and soils reports (when applicable) and (ii) a punchlist of work to be completed or
corrections to work to be completed before such Improvement will be eligible for payment of the
Retained Increment. Within 20 working days of receipt of the Field Inspector's letter, the
Engineer of Record shall prepare redline as-built drawings and submit them, together with any
necessary soils reports, to the Field Inspector and the Developer shall complete the items of work
and/or corrections specified in the punchlist. Within 10 working days of the Engineer of
Record's submittal of the red lined as-built drawings, the Field Inspector shall review such
drawings and provide comments. The Engineer of Record shall revise the redline as-built
drawings per the Field Inspector's comments and resubmit within 10 working days. The Field
Inspector shall make his final review within 5 working days of the Engineer of Record's
resubmittal and notify the Engineer of Record to prepare mylar as-built drawings and a
microfiche copy and submit both to the City Engineer or his designee and notify the Developer of
any punchlist items which remain to be completed. The City and Developer shall make best
efforts to perform within the time periods described above. The inability of City or Developer to
perform within each time period, notwithstanding its best efforts, shall not constitute a breach of
this Agreement.
SECTION 5. Warranty .of Improvements Constructed by the Developer. At all times prior
to the City's acceptance of any Improvement constructed by the Developer, the Developer shall
be responsible for maintaining such Improvement at the Developer's expense. The Developer
shall be obligated for the period of twelve (12) months immediately following the City's
acceptance of such an Improvement to repair or replace, at Developer's expense, any defects or
failures resulting from the work of Developer, its contractors or agents. Upon the expiration of
such twelve (12) month period, Developer shall assign to City and CFD No. 07-1 its rights in and
to any warranties, guarantees or other evidence of contingent obligations of third persons with
respect to such Improvement. As a condition precedent to the payment of the Retained
~:;:::e:;~~~~nICilÍesICity ofChula VistalCFD 07-1 Otay villa~e lllAcquisition Agë/:~A7uisition Financing Agreement v6.DOC
Increment (as defined in Section 8 below) of the Purchase Price, Developer shall post a
maintenance bond in a form reasonably approved by the City, cause such a maintenance bond to
be posted, or assign Developer's rights under such a maintenance bond naming City and/or CFD
No. 07-1 as beneficiary in an amount equal to fifteen percent (15%) of the Purchase Price of such
Improvement in order to secure Developer's obligations pursuant to this Section. Upon posting
of such maintenance bond, the City shall release any performance, labor and material bonds for
such Improvement.
SECTION 6. Notice of Completion and Lien Releases. Upon completion of the construction
of an Improvement, Developer shall notify the City Engineer in writing of such completion and
shall prepare and execute a Notice of Completion for such Improvement in the form prescribed
by Section 3093 of the California Civil Code and shall record such notice in the Official Records
of the County of San Diego. Developer shall cause its contractors to provide unconditional lien
releases for such Improvement m accordance with Section 3262 of the Civil Code.
Notwithstanding the foregoing, City may waive the requirement for a Notice of Completion and
lien releases if City determines that as of the date of payment of the Retained Increment of the
Purchase Price for an Improvement, title to such Improvement or portion thereof satisfies the
requirements for Acceptable Title (as hereinafter defined).
SECTION 7. Construction of the Traffic Enhancement Improvements or other Traffic
Enhancement Improvements. If and to the extent that the provisions of the Traffic
Enhancement Improvement Agreement or Future Traffic Enhancement Improvement Agreement
pertaining to the design, construction, acceptance and warranty of the Traffic Enhancement
Improvements or any other Traffic Enhancement Improvements conflict with the provisions of
this Agreement, the provisions of the Traffic Enhancement Improvement Agreement or Future
Traffic Enhancement Improvement Agreement, as applicable, shall prevail over the conflicting
provisions of this Agreement.
SECTION 8. Payment of Purchase Price.
(a) Amount of Purchase Price. The amount to be paid by City for the Improvements to be
constructed by and acquired from Developer (the "Purchase Price") shall, as to each such
Improvement, (i) be determined by City in accordance with the provisions of this Section 8, (ii)
equal the lesser of the cost or the value thereof, (iii) include the reasonable cost or value of
eligible appurtenant public facilities, (iv) include the costs of the title insurance policy described
in Section 1 I (a), and (v) include all other costs of construction and incidental costs eligible
under the Act and the Goals and Policies as a part of the cost of the Improvements; provided,
however, the Purchase Price to be paid pursuant to this Agreement for (y) any Traffic
Enhancement Improvements constructed by the Developer shall not exceed the Developer's Fair
Share of the cost of the construction of such Traffic Enhancement Improvements determined
pursuant to the provisions of the Traffic Enhancement Agreement or (z) any other Traffic
Enhancement Improvement constructed by Developer shall not exceed the Developer's Future
Fair Share of the cost of construction of such Traffic Enhancement Improvement determined
pursuant to the provisions of the applicable Future Traffic Enhancement Improvement
Agreement. In addition, the aggregate Purchase Price for any Improvements included in the
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City's Traffic Development Impact Fee ("TDIF") program (each, a "TDIF Improvement") shall
not exceed the aggregate TDIF obligation for the property within CFD No. 07-1 except to the
extent the Purchase Prices include cost items that are eligible to be included in the Purchase Price
pursuant to this Agreement that may not be eligible for purposes of determining credits against
such TDIF obligations.
Incidental costs eligible to be included in the Purchase Price of any Improvement shall
include the following:
(i) Usual and customary design and engineering costs not to exceed the following
percentages:
a. Civil engineering - 7.5% of the cost of the construction of the
Improvement for which the service was performed.
b. Soils engineering - 15% of the cost of the grading for the Improvement.
c. Landscape architecture - 10% of the cost of applicable landscaping and
irrigation relating to the Improvement.
d. Survey and construction staking - 2% of the combined cost of the
construction and grading for the Improvement.
e. Utility engineering/coordination - 3% of the cost of the construction of the
applicable dry utilities.
(ii) Construction administration and supervision not to exceed, in aggregate, 1.75% of
the total construction cost of the Improvement.
(iii) Special engineering studies related to "collector" or "transmission" facilities as
reviewed and approved by the City Engineer.
(iv) Plan check and inspection fees (less any refunds).
(v) Capacity or connection fees related solely to the Improvement.
(vi) Costs of acquisition of off-site rights-of-way and/or easements including the
following:
a. Appraisal and title insurance costs.
b. Costs of preparing acquisition plats.
c. The appraised value or actual cost of right-of-way or easement, whichever
is less.
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d. Legal fees and costs related to eminent domain proceedings approved by
the City Attorney.
(vii) Costs of environmental review, permitting and mitigation related to the
Improvement.
In no event shall the cost or value of the construction of the Improvements be deemed to
exceed the construction contract prices set forth in the contracts and change orders approved by
City ("Approved Change Orders") pursuant to the applicable provisions of Exhibit C hereto,
which is incorporated herein by this reference, or otherwise authorized pursuant to this
Agreement.
Notwithstanding the foregoing, the aggregate Purchase Price of the acquisition of all new
utilities to be owned by a public utility or public utilities may not exceed 5% of the proceeds of
the series of the Bonds to be utilized to pay such Purchase Price less that portion of the reserve
fund, costs of issuance and other incidental costs allocable to such amount.
(b) Incremental Payment of Purchase Price of an Improvement other than a Traffic
Enhancement Improvement. The Purchase Price for any Improvement constructed by the
Developer, other than a Traffic Enhancement Improvement, shall be payable in not to exceed two
increments: (i) the "Base Increment" which shall be an amount equal to 75% of the audited,
eligible costs as reflected in the written request for payment of the Base Increment submitted by
the Developer and as approved by the Director of Public Works and shall not exceed 75% of the
cost estimate set forth in Exhibit A for such Improvement; and (ii) the "Retained Increment"
which shall be an amount not to exceed the remaining, unpaid portion of the Purchase Price for
such Improvement determined pursuant to the provisions of (a) above.
(c) Requisition for Incremental Payment of Purchase Price of an Improvement other than a
Traffic Enhancement Improvement.
(i) Base Increment. The Developer may submit only one (1) written request to the
City Engineer for the payment of the Base Increment for an Improvement constructed by
the Developer, other than a Traffic Enhancement Improvement, upon the substantial
completion of the construction of such Improvement in accordance with the approved
Plans and Specifications. The criteria for determining "substantial completion" of each
such Improvement is described in Exhibit A and shall mean generally that construction,
or work with respect to such Improvement has progressed to the point where it is
sufficiently complete so that such Improvement can be utilized for the purpose for which
it was intended. Substantial completion of such an Improvement shall also mean that all
components of such Improvement are substantially complete, e.g., in the case of
Improvement including streets (other than streets included in the Traffic Enhancement
Improvements), the components are described in footnote 1 to Exhibit A. Each Base
Increment payment request must be in the form attached hereto as Exhibit D-1, which is
incorporated herein by this reference, and conform to the requirements of (f) below. The
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request for payment of the Base Increment for an Improvement shall be accompanied by a
copy of the following documents. related to the construction of such Improvement: (1)
each construction contract and copy of bid notice for such contract, (2) each change order,
(3) each invoice submitted pursuant to such construction contracts, (4) evidence of
payment of each such invoice such as copies of cancelled checks or other evidence of
payment satisfactory to the City Engineer, and (5) written conditional lien releases
executed by each applicable contractor, subcontractor and materialman in a form
satisfactory to the City Attorney of the City (the "City Attorney") for such Improvement.
(ii) Retained Increment. The Developer may submit only one (1) written request to the
City Engineer for the payment of the Retained Increment for an Improvement, other than
a Traffic Enhancement Improvement, in the form attached hereto as Exhibit D-2, which is
incorporated herein by this reference, upon the submission to the City Engineer of (1) as-
built drawings or other equivalent plans and specifications for such Improvement in a
form reasonably acceptable to the City, (2) evidence that the Developer has posted a
maintenance bond for such Improvement as required by Section 5 hereinabove, (3)
evidence of the satisfaction of the requirements of Section 11 hereinbelow directly related
to such Improvement and (4) written unconditional lien releases from all contractors,
subcontractors and materialmen satisfactory to the City Attorney for such Improvement.
For any costs not included in the Developer's written request for payment of the Base
Increment but requested for payment in the Retained Increment the request shall conform
to the requirements of (f) below and also be accompanied by the following documents
related to such additional costs of the construction of such Improvement if not done so
with the written request for payment of the Base Increment: (1) each construction
contract, (2) each change order, (3) each invoice submitted pursuant to such construction
contracts, and (4) evidence of payment of each such invoice such as copies of cancelled
checks or other evidence of payment satisfactory to the City Engineer.
(d) Incremental Pavment of Purchase Price of Traffic Enhancement Improvements. The
Purchase Price for any Traffic Enhancement Improvement shall be payable in not to exceed two
increments: the "Base Increment" which shall be an amount not to exceed 50% of (i) the
Developer's Fair Share of the cost of the construction of such Traffic Enhancement Improvement
or (ii) the Developer's Future Fair Share of the cost of construction of any other Traffic
Enhancement Improvement, as applicable, and the "Retained Increment" which shall be an
amount not to exceed the remaining, unpaid portion of (y) the Developer's Fair Share of the cost
of the Traffic Enhancement Improvement or (z) the Developer's Future Fair Share of the cost of
any other Traffic Enhancement Improvement, as applicable.
(e) Requisition for Incremental Pavment of Purchase Price of a Traffic Enhancement
Improvement.
(i) Base Increment. The Developer may submit a written request to the City
Engineer in the form attached hereto as Exhibit D - 3, which is incorporated herein by this
reference, for the payment of all or any portion of the Base Increment for a Traffic
Enhancement Improvement upon the completion of fifty percent (50%) the construction
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by the Developer of such Traffic Enhancement Improvement. A Traffic Enhancement
Improvement will be deemed to be 50% complete when the City Engineer has determined
that the Developer has expended an amount equal to 50% of the contract price for such
Traffic Enhancement Improvement.
(ii) Retained Increment. The Developer may submit a written request to the City
Engineer for the payment of the Retained Increment for a Traffic Enhancement
Improvement in the form attached hereto as Exhibit D - 4, which is incorporated herein
by this reference, upon the completion of the construction of such Traffic Enhancement
Improvement and acceptance thereof by the City.
(iii) Required Documentation. Any request for payment of the Base Increment,
Retained Increment or any portion thereof of the Purchase Price for a Traffic
Enhancement Improvement constructed by the Developer shall be accompanied by a copy
of the following documents related to the construction of such Traffic Enhancement
Improvement and the payment requested in such request for payment: (1) evidence of
payment of each invoice such as copies of cancelled checks or other evidence of payment
satisfactory to the City Engineer upon which the request for payment is based and (2)
written conditional lien releases executed by each applicable contractor, subcontractor
and materialman in a form satisfactory to the City Attorney.
(f) Documentation. Any payment request submitted by Developer shall be properly executed
and shall include copies of all supporting documents required by subsection (c) (i), (c)(ii), (d) or
(e), as applicable.
(g) Review ofPavment Request for an Improvement. The City Engineer or his designee shall
review each payment request and the supporting documentation accompanying such payment
request. If the City Engineer finds that any such payment request is incomplete, improper or
otherwise not suitable for approval, the City Engineer shall inform Developer in writing within
twenty (20) working days after receipt thereof, the reasons for his finding. Developer shall have
the right to respond to this finding by submitting further documentation after receipt of the
denial. The City Engineer shall review any further documentation received from the Developer in
support of a payment request and inform Developer of his approval or denial of the payment
request as supplemented in accordance with this Section within ten (10) working days after
receipt of the supplemental documentation. A resubmittal of a payment request shall be deemed a
new payment request for purposes of this Section.
Subject to the limitations set forth herein, costs incurred under a construction contract for
an Improvement entered into pursuant to the requirements of this Agreement, the Traffic
Enhancement Improvement Agreement or a Future Traffic Enhancement Improvement
Agreement, as applicable, and Approved Change Orders shall be deemed to be reasonable and,
subject to the other provisions of this Agreement, shall be included in the Purchase Price for such
Improvement.
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The City Engineer shall, after the sale of the series of Bonds (defined in Section 20
below) pursuant to Section 20 the proceeds of which are intended to be used to acquire the
subject Improvements and after his or her approval of a payment request, immediately forward a
request to the Director of Finance of the City notifying the Director of Finance of his or her
approval of the payment request and requesting that such payment be made to the appropriate
payee. The Director of Finance shall process any such request of the City Engineer pursuant to
the applicable procedures of the Finance Department and shall make or authorize such payment
pursuant to such procedures and subsection (h) below.
(h) Payment.
(i) Priority of Payment of Cost of Construction or Purchase Price for
Improvements. The City and the Developer acknowledge and agree that the cost of
acquisition or construction of all Improvements may exceed the aggregate amount of the
Bond proceeds which will be available for the payment of that portion of cost of
construction or the Purchase Price, as applicable, for all of such Improvements eligible to
be paid from the proceeds of the Bonds. As a result the City and Developer agree that the
payment of the cost of construction or the Purchase Price, as applicable, for
Improvements shall be prioritized as follows:
Priority I: Improvement No.1 in Exhibit A.
Priority 2: Improvement Nos. 3 through 55 in Exhibit A.
The cost of construction or Purchase Price for any lower priority Improvement
shall not be paid unless the cost of construction or Purchase Price for all higher priority
Improvements has been paid or the City Engineer has reasonably determined that
sufficient proceeds of the Bonds are available to fully fund the cost of construction or
Purchase Price of the higher priority Improvements, e.g., such funds have been deposited
in a separate account or sub-account and the use of such funds has been restricted to
funding the cost of construction or the Purchase Price of such higher priority
Improvements, based upon the estimates of the cost of construction or the estimates or
approved Purchase Prices, as applicable, for such higher priority Improvements on
Exhibit A.
(ii) Timing of the Payment of the Purchase Price for an Improvement. Subject
to the limitations contained in (i) above and (iii) and (iv) below, the increment of the
Purchase Price for each Improvement shall be paid to Developer within thirty (30) days
after the date of the City Engineer's approval of the payment request for any such
increment; provided, however, no Retained Increment for any Improvement other than
Traffic Enhancement Improvements shall be paid earlier than thirty-five (35) days after
the recording of a Notice of Completion for such Improvement.
(iii) Source of Payment. The Purchase Price or any increment thereof for an
Improvement shall be payable to the Developer solely from those proceeds ("Eligible
Improvement Proceeds") of the sale of that series of Bonds as provided in Section 20
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hereof authorized and designated for the payment for such Improvement, after all costs of
formation of CFD No. 07-1 and all costs of issuance of such Bonds have been paid and
deposits of accrued and capitalized interest to the redemption fund and the initial deposit
to the reserve fund have been made.
(iv) Withholding of Payment. In addition to the foregoing, the City shall have the
right to withhold payment of the Purchase Price or any increment thereof of any
Improvement if (a) the Developer is delinquent in the payment of any assessment
installments or special taxes levied by the City or a community facilities district
established by the City on properties then owned by the Developer within CFD No. 07-1,
(b) the City Engineer reasonably determines that the Developer is not then in substantial
compliance with all applicable conditions and obligations imposed upon the Developer
hereunder or upon the Development pursuant to the land use entitlements approved by the
City for the Development, including but not limited to, payment of all applicable fees,
dedication of all applicable rights-of-way or other property and construction of all
applicable public improvements. The City Engineer shall provide written notice to the
Developer of the decision to withhold any such payment and shall specify the reason for
such decision. If the payment is withheld as a result of the delinquency in the payment of
assessment installments or special taxes, the notice shall identify the delinquent parcels
and the amount of such delinquency. If the payment is withheld as a result of substantial
non-compliance with a condition or obligation, the notice shall specify such condition or
obligation and what action will be necessary by the Developer to substantially comply
with such condition or obligation. Upon receipt by the City Engineer of evidence
reasonably satisfactory to the City Engineer of the payment of the delinquent special taxes
or assessments or upon the determination by the City Engineer that the Developer has
substantially complied with the subject condition or obligation, the City shall forthwith
make any payment which has been withheld pursuant to the provisions of this paragraph.
SECTION 9. Financing of Developer's Fair Share or Future Fair Share of Traffic
Enhancement Improvements.
(a) Financing Developer's Fair Share of Traffic Enhancement Improvements.
(i) Traffic Enhancement Improvement Account. Subject to adjustment as provided
for in the following paragraph, a portion of the proceeds of the Bonds in an amount equal to the
Developer's Fair Share, currently estimated to be $1,200,000 shall be deposited in a separate
account (the "Traffic Enhancement Improvement Account") of the project fund (the "Project
Fund") to be established pursuant to the bond indenture setting forth the terms and conditions
pursuant to which the Bonds shall be issued and sold (the "Bond Indenture"). Pursuant to the
requirements of this Section 9(a), the City may from time to time authorize the disbursement of
funds on deposit in the Traffic Enhancement Improvement Account to pay for the acquisition or
construction of the Traffic Enhancement Improvements in accordance with the provision hereof
and the Traffic Enhancement Improvement Agreement.
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(ii) Adjustment of Developer's Fair Share. The Developer's Fair Share is subject to
adjustment pursuant to the terms of the Traffic Enhancement Improvement Agreement. If the
Fair Share specified-in the preceding paragraph is modified pursuant to the Traffic Enhancement
Improvement Agreement subsequent to the issuance of the Bonds, the portion of the proceeds of
the Bonds deposited in the Traffic Enhancement Improvement Account shall be increased or
reduced, as applicable, to equal the Fair Share as modified- If the Fair Share is modified so that
the amount on deposit in the Traffic Enhancement Improvement Account then exceeds the Fair
Share as modified, the City shall authorize the release of such excess amount from the Traffic
Enhancement Improvement Account and the transfer of such amount therefrom pursuant to the
provisions of the Bond Indenture. If the Fair Share is modified so that the amount on deposit in
the Traffic Enhancement Improvement Account, together with all prior disbursements from the
Traffic Enhancement Improvement Account to pay Developer's Fair Share of the cost of
construction of the Traffic Enhancement Improvements, is then less than the Fair Share as
modified, the City shall notify the Developer in writing of such deficit and request that within
fifteen (15) business days of the date of such notice the Developer either (A) deposit funds in the
amount of such deficit with Director of Finance or (B) provide written authorization to the
Director of Finance to transfer an amount equal to such deficit from Eligible Improvement
Proceeds on deposit in the facilities improvement account (the "Facilities Improvement
Account") of the Project Fund established pursuant to the Bond Indenture to the Traffic
Enhancement Improvement Account. If the Developer fails to deposit such funds or provide such
written authorization with such time period, the City shall be authorized to transfer or cause the
transfer of an amount equal to such deficit from Eligible Improvement Proceeds to the Traffic
Enhancement Improvement Account.
(iii) Construction of Traffic Enhancement Improvements by Party Other than
Developer. If the Traffic Enhancement Improvements are constructed pursuant to the Traffic
Enhancement Improvement Agreement by a party other than the Developer, the City may request
pursuant to the Traffic Enhancement Improvement Agreement that the Fiscal Agent disburse
funds from the Traffic Enhancement Improvement Account to pay Developer's Fair Share of the
cost of construction of the Traffic Enhancement Improvements pursuant to the Traffic
Enhancement Improvement Agreement.
(iv) Surplus Funds. If funds remain on deposit in the Traffic Enhancement
Improvement Account upon completion of the construction or acquisition of Traffic
Enhancement Improvements and the payment of Developer's final Fair Share amount, such funds
shall be released from the reservation established pursuant to this Section 9(a) and such funds
shall be transferred to the Facilities Improvement Account and made available to pay the
Purchase Price of other Improvements.
In the event that the City elects not to require the construction or acquisition of all or
some portion of the Traffic Enhancement Improvements, the funds then on deposit in the Traffic
Enhancement Improvement Account and not then allocated or necessary to pay Developer's Fair
Share of the costs of the acquisition or construction of Traffic Enhancement Improvements shall
be released from the reservation established pursuant to this Section 9(a) and such funds shall be
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transferred to the Facilities Improvement Account and made available to pay the Purchase Price
of other Improvements.
(v) Limitation on Use of Funds in Traffic Enhancement Improvement Account.
Except as provided in this Section 9(a), funds on deposit in the Traffic Enhancement
Improvement Account may not be utilized to pay all or any portion of the Purchase Price of any
other Improvements.
(vi) Investment of Funds on Deposit in Traffic Enhancement Improvement
Account. The Bond Indenture shall provide that all funds on deposit in the Traffic Enhancement
Improvement Account shall be invested in such permitted investments as may be established by
the terms of the Bond Indenture. All earnings on such investments shall be deposited in the
Facilities Improvement Account and shall be available to pay for the acquisition or construction
of the Improvements pursuant to the terms of such Bond Indenture and this Agreement.
(b) Financing Developer's Future Fair Share of other Traffic Enhancement Improvements.
(i) Traffic Enhancement Improvement Account. Subject to adjustment as provided
for in the following paragraph, a portion of the proceeds of the Bonds in an amount equal to the
Developer's Future Fair Share of the cost of the acquisition or construction of other Traffic
Enhancement Improvements may be deposited in the Traffic Enhancement Improvement
Account. Pursuant to the requirements of this Section 9(b), the City may from time to time
authorize the disbursement of funds on deposit in the Traffic Enhancement Improvement
Account to pay for the acquisition or construction of other Traffic Enhancement Improvements in
accordance with the provision hereof and the Future Traffic Enhancement Improvement
Agreement.
(ii) Adjustment of Developer's Future Fair Share. The Developer's Future Fair
Share is subject to adjustment pursuant to the terms of the Future Traffic Enhancement
Improvement Agreement. If the Future Fair Share specified in the preceding paragraph is
modified pursuant to the Future Traffic Enhancement Improvement Agreement subsequent to the
issuance of the Bonds, the portion of the proceeds of the Bonds deposited in the Traffic
Enhancement Improvement Account shall be increased or reduced, as applicable, to equal the
Future Fair Share as modified. If the Future Fair Share is modified so that the amount on deposit
in the Traffic Enhancement Improvement Account then exceeds the Future Fair Share as
modified, the City shall authorize the release of such excess amount from the Traffic
Enhancement Improvement Account and the transfer of such amount therefrom to the Facilities
Improvement Account pursuant to the provisions of the Bond Indenture. If the Future Fair Share
is modified so that the amount on deposit in the Traffic Enhancement Improvement Account,
together with all prior disbursements from the Traffic Enhancement Improvement Account to pay
Developer's Future Fair Share of the cost of construction of other Traffic Enhancement
Improvements, is then less than the Future Fair Share as modified, the City shall notify the
Developer in writing of such deficit and request that, within fifteen (I5) business days of such
notice, the Developer either (A) deposit funds in the amount of such deficit with Director of
Finance or (B) provide written authorization to the Director of Finance to transfer an amount
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equal to such deficit from Eligible Improvement Proceeds on deposit in the Facilities
Improvement Account to the Traffic Enhancement Improvement Account. If the Developer fails
to deposit such funds or provide such written authorization with such time period, the City shall
be authorized to transfer or cause the transfer of an amount equal to such deficit from Eligible
Improvement Proceeds to the Traffic Enhancement Improvement Account.
(iii) Construction of Traffic Enhancement Improvements by Party Other than
Developer. If other Traffic Enhancement Improvements are constructed pursuant to the Future
Traffic Enhancement Improvement Agreement by a party other than the Developer, the City may
request pursuant to the Future Traffic Enhancement Improvement Agreement that the Fiscal
Agent disburse funds from the Traffic Enhancement Improvement Account to pay Developer's
Future Fair Share of the cost of construction of other Traffic Enhancement Improvements
pursuant to the Future Traffic Enhancement Improvement Agreement.
(iv) Surplus Funds. If funds remain on deposit in the Traffic Enhancement
Improvement Account upon completion of the construction or acquisition of Traffic
Enhancement Improvements and the payment of Developer's final Future Fair Share amount,
such funds shall be released from the reservation established pursuant to this Section 9(b) and
such funds shall be transferred to the Facilities Improvement Account and made available to pay
the Purchase Price of other Improvements.
In the event that the City elects not to require the construction or acquisition of all or
some portion of other Traffic Enhancement Improvements, the funds then on deposit in the
Traffic Enhancement Improvement Account and not then allocated or necessary to pay
Developer's Future Fair Share of the costs of the acquisition or construction of Traffic
Enhancement Improvements shall be released from the reservation established pursuant to this
Section 9(b) and such funds shall be transferred to the Facilities Improvement Account and made
available to pay the Purchase Price of other Improvements.
SECTION 10.Audit. The authorized representatives of City shall have the right, upon two (2)
days prior written notice to Developer and during normal business hours, to review all books and
records of Developer pertaining to costs and expenses incurred by Developer in construction of
the Improvements.
SECTION 11. Ownership and Transfer of Improvements. The conveyance of the
Improvements by Developer to City shall be in accordance with the following procedures:
(a) Improvements Constructed on Land not Owned bv Citv. As a condition to the payment
of the Retained Increment of the Purchase Price, Developer shall cause an irrevocable
offer of dedication to be made to City or an outright grant of a fee interest or easement
interest as apprøpriate, in the sole discretion of the City of the appropriate right, title and
interest in and to the portion of the applicable property owned by the Developer related to
the applicable Improvement, including any temporary construction or access easements.
Developer, whether or not it is the entity constructing the Improvements, agrees to
execute and deliver to the City the documents required to complete the transfer of
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Acceptable Title for property owned by the Developer upon or within which such
Improvements are to be located. For purposes of this Agreement, the term "Acceptable
Title" shall mean title to the portion of the property to be conveyed free and clear of all
taxes, liens, encumbrances, assessments, easements, leases, whether any such item is
recorded or unrecorded, except (i) non-delinquent taxes and assessments and (ii) those
non-monetary encumbrances and easements which are reasonably determined by the City
not to interfere with the intended use of the portion of the property. As a further
condition to the payment of the Retained Increment of the Purchase Price for any
Improvement, Developer at its sole initial cost and expense, subject to reimbursement
pursuant to Section 8, shall cause to be issued a policy of title insurance for such portion
of the property in an amount not to exceed the Purchase Price and in the form normally
required by City in connection with the dedication of land for subdivision improvements
and containing such title endorsements as may be reasonably requested by City. City's
final acceptance of the portion of the property and the Improvements constructed thereon
shall not be unreasonably withheld or delayed.
(b) Improvements Constructed on Land Owned bv Citv. If Developer is authorized to
construct an Improvement on land owned in fee by City or on land over which the City
owns an easement Developer shall obtain the necessary encroachment permits to enter
such land for purposes of constructing such Improvement. City shall cooperate with
Developer in issuing such encroachment permits. The Improvements shall be inspected
by City on an ongoing basis.
SECTION 12. Grading and Subdivision Improvement Bonds. Except as provided below or as
may be provided in the Traffic Enhancement Agreement or any Future Traffic Enhancement
Improvement Agreement, Developer shall be required to post or cause the posting of bonds or
other security acceptable to the City to guarantee completion of the Improvements in accordance
with City's standard subdivision requirements and conditions of approval of the Development
(the "Conditions of Approval"). Labor and materials bonds shall also be required to be provided
by the Developer's contractor for all Improvements to be constructed under this agreement. Such
bonds shall name the City of Chula Vista as additional obligee and shall remain in effect until the
final acceptance of the Improvements by the City Engineer. The presence of Bond proceeds shall
not relieve the Developer of requiring this obligation of the Developer's contractor.
Performance and labor and material bonds for specific Improvements shall not be
required or may be released if: (I) such Improvements constitute a portion of the required
subdivision improvements, (2) Bond proceeds equal to 125% of the estimated cost to construct or
acquire such Improvements are available and set aside for such purpose, and (3) the
Improvements are to be constructed or acquired entirely with the proceeds of the Bonds.
Provided that conditions (1) and (2) are satisfied, if an Improvement is to be constructed or
acquired only in part with the proceeds of the Bonds, performance and labor and material bonds
shall not be required for that portion of the Improvements to be so constructed or acquired except
with respect to the portion that will not be acquired or constructed with Bond proceeds. In the
event that the Bond proceeds that are available and may be set aside to fund the cost to construct
or acquire an Improvement are less than 125% of the estimated cost thereof, the Developer shall
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be required to provide a performance and labor and material bond or other security satisfactory to
the City Engineer and the City Attorney in the amount of such deficiency. City will cooperate
with Developer in the termination or exoneration of any performance and labor and material
bonds assuring completion of Improvements for which bonds have been sold. The City Engineer
shall be the sole judge of determining release of such bonds.
SECTION 13. Indemnification by Developer. Developer shall defend, indemnify and hold
harmless all Indemnified Parties from and against any and all claims, losses, liabilities, damages,
including court costs and reasonable attorneys' fees by reason of, or resulting from, or arising out
of the design, engineering, solicitation of bids, award of contracts, administration of contracts
and construction of the Improvements by the Developer, its employees, agents, independent
contractors and/or representatives; provided that any claims for personal injury or property
damage which relate to the Improvements shall be limited to those arising out of personal injury
or property damage caused by actions or omissions by Developer or Developer's employees,
agents, independent contractors or representatives which occurred during the period prior to the
transfer of title to the Improvements by City, whether or not a claim is filed prior to the date of
acceptance of the Improvements. Nothing in this Section 13 shall limit in any manner the rights
of the City and/or CFD No. 07-1 against any of the architects, engineers, contractors or other
consultants employed by the Developer which has performed work in connection with
construction or financing of the Improvements. Notwithstanding the foregoing, Developer shall
have no obligation to defend, indemnify or hold harmless the Indemnified Parties from and
against any claims, liabilities, losses or damages (including court costs and attorneys' fees) which
result from or arise out of the sole negligence or willful misconduct of an Indemnified Party.
Except as set forth in this Section 13, no provision of this Agreement shall in any way
limit the extent of the responsibility of Developer for payment of damages resulting from the
operations of the Developer, its agents, employees or contractors.
SEÇTION 14. Obligation of City. Neither the City nor CFD No. 07-1 has a legal or financial
obligation to construct or finance the actual construction of the Improvements. Except with
respect to any portion of the cost of the construction by the Developer of the Traffic
Enhancement Improvements above an amount equal to the Developer's Fair Share or Future Fair
Share which is reimbursable pursuant to the Traffic Enhancement Agreement or a Future Traffic
Enhancement Improvement Agreement or as otherwise provided for herein, all costs incurred for
actual construction of. the Improvements, including all incidentals thereto, shall be borne by
Developer, and the obligations of the City and Community Facilities District are limited to the
acquisition of the Improvements pursuant to the provisions of this Agreement.
SECTION 15. Failure by Developer to Construct Improvements.
(a) Improvements Other Than Traffic Enhancement Improvements. At any time following
commencement of the construction of any Improvements, other than Traffic Enhancement
Improvements, by Developer City determines that such construction is not progressing within a
reasonable time in accordance with the Conditions of Approval or the Developer fails to
demonstrate a continuing ability to complete the construction of such Improvement in accordance
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with the Conditions of Approval, the City may give written notice of such failure of performance
to the Developer. Developer shall have sixty (60) days from the date of receipt of such notice to
either (i) cure such failure of performance by demonstrating to the satisfaction of the City during
such cure period reasonable progress in the construction of the Improvement and a continuing
ability to complete the construction of such Improvement in accordance with the Conditions of
Approval or (ii) reasonably demonstrate that such failure of performance is due to circumstances
or conditions beyond Developer's reasonable control ("Force Majeure") including, without
limitation, the City's actions, omissions or inaction which result in a delay of performance by
Developer, labor disputes, acts of God, war, riots, insurrections, civil commotions, moratoriums,
inability to obtain labor or materials or reasonable substitutes for either, fire, unusual delay in
transportation, and adverse weather conditions. Should Developer fail to reasonably demonstrate
such reasonable progress or such continuing ability to complete the construction of such
Improvement or Force Majeure, the obligation of the City to pay the Purchase Price for the
acquisition of such Improvement pursuant to this agreement may be terminated by the City by
providing ten (10) days written notice to the Developer. Upon termination, the City may in its
sole discretion then proceed to advertise and bid the balance of the construction of such
Improvement, and there will be no further obligation on the part of the City for payment of the
Purchase Price for such Improvement due to Developer pursuant to this Agreement.
In the event that the City chooses not to advertise and bid the balance of the construction
of any such Improvement following such a termination, any monies remaining in the Facilities
Improvement Account and set aside for the acquisition of such Improvement shall be transferred
to the redemption fund established by the Bond Indenture and used to call outstanding Bonds.
(b) Traffic Enhancement Improvements. Any delay in the construction by the
Developer of the Traffic Enhancement Improvements shall be subject to and governed by the
provisions of the Traffic Enhancement Improvement Agreement. Any delay in the construction
by the Developer of any other Traffic Enhancement Improvement shall be subject to and
governed by the provisions of the applicable Future Traffic Enhancement Improvement
Agreement.
SECTION 16. Agreement Contingent. As a precondition to the sale of each series ofthe Bonds
of CFD No. 07-1, Developer shall pay in cash to City an origination charge of 1.0% of the
amount of the principal amount of such series of the Bonds ("Origination Payment"). Each such
Origination Payment shall be at Developer's own expense and not recoverable from the proceeds
of the special taxes or from the proceeds of the Bonds. In the event that any series of the Bonds
are, for any reason, not sold, the amount of the Origination Payment made for such series of the
Bonds shall be returned to the Developer.
This Agreement is contingent upon the successful sale of Bonds, and it shall be null and
void if the first series of Bonds are not sold within a three (3) year period following the date of
this Agreement, or any mutually agreed extension; however, this time can be extended by request
of the Developer and concurrence of the legislative body.
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The City may, at its option, suspend the performance of its obligations under this
Agreement if any legal challenge is filed relating to the validity or enforceability of this
Agreement, CFD Nø. 07-1 proceedings or the issuance of the Bonds. The obligations of the City
and CFD No. 07-1 hereunder shall be reinstated upon the entry of a final judgment in any such
proceedings upholding the validity and enforceability of the Agreement, CFD No. 07-1
proceedings and the issuance of the Bonds. In the event that a final judgment or other final and
non-appealable resolution is entered invalidating or declaring unenforceable this Agreement,
CFD No. 07-1 proceedings or the issuance of the Bonds, the City and CFD No. 07-1 may, at their
option, terminate this Agreement.
SECTION 17. Notice of Special Tax. Developer and the Merchant Builders, or the successor or
assigns of the Developer and the Merchant Builders, shall provide written notice to all potential
purchasers of lots in the form required pursuant to Government Code Section 53341.5 and/or
such additional requirements as may be established by the City so advising the potential owner of
the fact of CFD No. 07-1, with said document being executed by the potential purchaser. Such
notice shall be provided to the potential purchaser a reasonable time before the potential
purchaser becomes contractually committed to purchase the lot so that the potential purchaser
may knowingly consider the impact of the special tax in the decision to purchase the lot. A copy
of all such notices executed by actual purchasers shall be sent to the City Engineer.
SECTION 18. Limitation of Aggregate Taxes and Assessments. Developer and each
Merchant Builder agrees to include in any future agreement to sell all or any portion of the
property to any person or entity for the purpose of constructing and marketing owner-occupied
residential dwelling units (each, an "Other Builder") provisions requiring the inclusion of the
following "escrow instructions" in all sales by such Other Builder to residential home owners
and each Merchant Builder agrees to the inclusion of such escrow instructions in all sales by each
such Merchant Builder to residential home owners:
(a). At or prior to the close of each such escrow with a residential homeowner, the escrow
company shall apply a "calculation formula" previously approved by the City Engineer and
deposited with the escrow company by the Merchant Builder or Other Builder to determine the
aggregate of all annual ad valorem property taxes, all special taxes authorized to be levied to
finance the construction or acquisition of public facilities and all assessment installments
authorized to be levied to finance the construction or acquisition of public facilities (the "Total
Annual Taxes and Assessments") applicable to the parcel subject to such escrow (the
"Applicable Parcel").
(b). If the Total Annual Taxes and Assessments exceed 2% of the sales price of the
Applicable Parcel, the Escrow Company will make immediate written demand upon the
Merchant Builder or Other Builder for deposit into the escrow of the funds necessary to partially
prepay the special tax obligation for CFD No. 07-1 or any other community facilities district so
that the Total Annual Taxes and Assessments will thereafter be equal to or less than 2% of the
sales price of the Applicable Parcel. Such funds must be received by the escrow company prior to
the close of escrow of the sale of the Applicable Parcel. The calculation of the prepayment
amount for CFD No. 07-1 shall be in accordance with the method of prepayment of special tax as
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set forth in the rate and method of apportionment of special taxes approved by the qualified
electors of CFD No. 07-1. Upon closing of such escrow, the amount so deposited by the
Merchant Builder or. Other Builder pursuant to this escrow instruction shall be sent by the escrow
company to the Director of Finance, together with written instructions that such amount is to be
used to partially prepay the special tax obligation of the Applicable Parcel for CFD No. 07-1 or
shall' be sent to the other community facilities district for which the special tax obligation has
been prepaid with similar written instructions.
The provisions of this Section 18 related to sales by Builders to residential homeowners
shall also apply to any sale by Developer of a parcel to a residential home owner.
In addition to any other remedy provided for by law or in equity, the City may enforce the
provisions of this Section 18 by an action for specific performance or injunctive relief or both.
SECTION 19. Relationship to Public Works. This Agreement is for the construction and
acquisition of certain Improvements by City and the sale of the Bonds for the payment of
construction and acquisition costs for such Improvements and such other amounts as are herein
provided, and is not intended to be a public works contract. In performing its obligations under
this Agreement, Developer is an independent contractor and not the agent of City. City shall
have no responsibility for payment to any contractor or supplier of Developer. Notwithstanding
the foregoing, Developer may be subject to certain public contract requirements as provided in
Section 3 of this Agreement.
SECTION 20. Sale of Bonds. The City shall, immediately upon execution of this Agreement by
the parties hereto, proceed with the issuance and sale of an initial series of bonds secured by the
levy of special taxes within CFD No. 07-1 (the "Bonds") to be issued pursuant to the Act. The
Bonds shall be issued in one or more series and each series shall be sized so that as of the date of
issuance of such series of the Bonds the aggregate appraised value of all taxable properties within
CFD No. 07-1 for which such Bonds are being issued shall comply with the value-to-lien
standards set forth in the Goals and Policies or as otherwise approved by the City Council
pursuant to the Goals and Policies. In addition, as to any subsequent series of Bonds, the issuance
of such Bonds shall comply with such parity bonds test as may be set forth in the Bond Indenture.
The appraised value of taxable property for purposes of this paragraph shall be determined by an
independent appraisal undertaken for the City utilizing appraisal assumptions approved by the
City and, as to each subsequent series of the Bonds, consistent with the applicable parity bonds
requirements.
The proceeds of each series of the Bonds shall be used in the following priority to (i) fund
a reserve fund for the payment of principal and interest with respect to such Bonds; (ii) fund
capitalized interest on such Bonds in an amount not to exceed the amount required to pay interest
on such Bonds until sufficient special taxes may be placed on the tax roll to pay the scheduled
debt service on such Bonds; (iii) pay for costs of issuance of such Bonds including, without
limitation, underwriter's discount, bond counsel fees, printing, and paying agent fees; (iv) as to
the first series ofthe Bonds, pay for the costs of forming CFD No. 07-1, including reimbursement
of advances of funds to the City by Developer to pay for the City's legal, engineering, financial,
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special tax, appraisal and market absorption consulting expenses incurred relating to the
formation of CFD No. 07-1 and issuance of the Bonds; (v) pay the costs of the construction or
acquisition of the .Traffic Enhancement Improvements pursuant to the provisions of this
Agreement, (vi) pay the costs of the acquisition or construction the Transportation Facilities
(defined hereinbelow) to be financed from the proceeds of the Bonds, (vii) pay the portion of the
cost of the construction of the Public Facilities to be financed from the proceeds of the Bonds
and (viii) pay the costs of the acquisition or construction of the other Improvements excepting
those Improvements that are Transportation Facilities.
The timing of the issuance and sale of each series of the Bonds, the terms and conditions
upon which such Bonds shall be issued and sold, the method of sale of such Bonds and the
pricing thereof shall be determined solely by the City and shall conform to the Goals and Policies
and this Agreement. The sale of each series of the Bonds shall be subject to receipt by the City of
a competitively bid or negotiated bond purchase agreement which is acceptable to the City. The
sale of each series of the Bonds shall also be conditional upon the preparation of an official
statement that is, in the sole judgment of the City, "deemed final" as such term is used in Rule
15c2-12 of the Securities and Exchange Commission (the "Rule").
The principal amount of each series of the Bonds to be issued shall be determined in
accordance with the Goals and Policies such that the maximum projected annual special tax
revenues securing such Bonds and all outstanding parity Bonds, equals at least 110% of the
projected annual gross debt service on all of the Bonds following the issuance of such series of
the Bonds.
Developer, on behalf of itself, any affiliates of the Developer and any successor or assign
of the Developer, agrees (a) to provide all information regarding the development of its property
within the District, including the financing plan for such development, which are necessary to
ensure that the official statement for each series of the Bonds complies with the requirements of
the Rule and all other applicable federal and state securities laws; (b) to enter into a continuing
disclosure agreement to provide such continuing disclosure pertaining to the Financing District,
the development thereof and the Developer as necessary to ensure ongoing compliance with the
continuing disclosure requirements of the Rule and (c) to cause its counsel to provide an opinion
of such counsel in a form satisfactory to the underwriter of such series of the Bonds and
underwriter's counselor disclosure counsel, as applicable.
SECTION 21. Development Impact Fee Credit, Payment and Reimbursement. The
Improvements include certain improvements ("Transportation Facilities") that are otherwise
eligible to be financed through the City's Traffic Development Impact Fee program ("TDIF") set
forth in Chapter 3.54 of the Chula Vista Municipal Code (the "Code"). In addition, the Public
Facilities identified in Exhibit A are otherwise eligible to be financed through the City's Public
Facilities Development Impact Fee program ("PFDlF") set forth in Chapter 3.50 of the Code.
Except as supplemented herein, credits against the applicable Development Impact Fee Program
fee obligation for the Development Project shall be granted in accordance with the applicable
City ordinances, regulations and policies.
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Developer has requested that proceeds from the first series of the Bonds in the amount of
$9,531,884 be used to fund the acquisition or construction of Transportation Facilities and that
Developer or Merchant Builders, as applicable, receive a credit against the TDIF fee obligation
for the Development Project upon the issuance of such series of the Bonds. Developer has
requested and the City agrees that such credit shall be applied as building permits are issued for
development within the Development Project in the full amount of the TDIF fee obligation
applicable to each building permit as such obligation exists as of the dated date of this
Agreement (the "Current TDIF Fee Obligation"). In the event that the TDiF fee obligation is
increased prior to the issuance of building permits for particular dwelling units within the
Development Project and prior to the use of all TDIF fee credits provided for hereunder, the
TDiF fee credit for building permits issued after the effective date of the increase in the TDIF fee
shall be limited to the amount of the Current TDIF Fee Obligation.
Proceeds of the first series of the Bonds in the amount of the requested credit shall be set
aside in a separate account within the Project Fund established by the Bond Indenture for such
series of the Bonds. The use of such proceeds shall be restricted to payment of (a) the Purchase
Price for Transportation Facilities, (b) the cost of construction of such Transportation Facilities if
the City elects to construct such Improvements pursuant to the provisions of Section 15 hereto
and/or (c) the cost of construction of other Transportation Facilities if the Purchase Price for the
Transportation Facilities is less than the amount set aside in such account.
In exchange for the agreement of the City to grant the credit against the TDIF fee
obligation for the Development Project as described in the preceding paragraph, Developer and
the Merchant Builders agree that upon the exhaustion of the TD1F fee credits represented by the
proceeds of the first series of the Bonds and the investment earnings on such proceeds neither the
Developer nor the Merchant Builders shall request and the City shall withhold the issuance of
any building permit for construction until a second series of the Bonds has been issued and
proceeds of such Bonds have been set aside in a separate account within the Project Fund
established by the Bond Indenture for such series of the Bonds in an amount equal to the
aggregate TDiF fee obligation for the remainder of the Development Project. Notwithstanding
the foregoing, building permits for construction within the remainder or any portion of the
Development Project may be issued prior to the issuance of such second series of Bonds if the
Developer or a Merchant Builder shall have posted a letter of credit with the City in an amount
equal to the aggregate TDiF fee obligation for the remainder of the Development Project or the
applicable portion thereof issued by a financial institution satisfactory to the Director of Finance
of the City (the "Director of Finance") and in a form satisfactory to the Director of Finance and
the City Attorney of the City.
Developer has requested that that portion of the cost of the construction of the Public
Facilities allocable to the Development Project specified in Exhibit A hereto be funded from the
proceeds of the first series of the Bonds and that Developer or Merchant Builders, as applicable,
receive a credit against the PFDlF fee obligation for the Development Project in such amount.
Credits shall be applied pro rata among all entitled dwelling units within the Development
Project. Credit shall be only be given against the PFDlF fee obligation as requested if proceeds of
the first series of the Bonds in the amount of the requested credit are set aside in a separate
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account within the Project Fund established by the Bond Indenture for such series of the Bonds.
The use of such proceeds shall be restricted to payment of the cost of construction of Public
Facilities.
SECTION 22. Conflict with Other Agreements. Except as specifically provided herein,
nothing contained herein shall be construed as releasing Developer or the Merchant Builders
from any condition of development or requirement imposed by any other agreement with City.
SECTION 23. General Standard of Reasonableness. Any provision of this Agreement which
requires the consent, approval, discretion or acceptance of any party hereto or any of their
respective employees, officers or agents shall be deemed to require that such consent, approval or
acceptance not be unreasonably withheld or delayed, unless such provision expressly
incorporates a different standard.
SECTION 24. Entire Agreement; Amendment. This Agreement and the agreements expressly
referred to herein contains all of the agreements of the parties hereto with respect to the matters
contained herein and no prior or contemporaneous agreement or understandings, oral or written,
pertaining to any such matters shall be effective for any purpose. No provision of this Agreement
may be modified, waiver, amended or added to except by a writing signed by the party against
which the enforcement of such modification, waiver, amendment or addition is or may be sought.
SECTION 25. Notices. Any notice, payment or instrument required or permitted by this
Agreement to be given or delivered to either party shall be deemed to have been received when
personally delivered or seventy-two (72) hours following deposit of the same in any United
States Post Office in California, registered or certified, postage prepaid, addressed as follows:
S,IWarren.DivenICiriesICity of Chula VistalCFD 07-1 Otay Village lllAcquisition AgreementlAcquisitioo Finaociog Agreement v6.DOC
DRAFr 4/12/04 24 q... 3 q
-.----------------
Developer: Brookfield Shea Otay, LLC
12865 Pointe Del Mar, Suite 200
Del Mar, CA 92014-3859
Attn: Chief Financial Officer
Merchant Builders: Otay R2/3 LLC
12865 Pointe Del Mar, Suite 200
Del Mar, CA 92014-3859
Attn:
Otay MFI LLC
12865 Pointe Del Mar, Suite 200
Del Mar, CA 92014-3859
Attn:
Otay R7/10 LLC
12865 Pointe Del Mar, Suite 200
Del Mar, CA 92014-3859
Attn:
Shea Homes Limited
10721 Treena Street, Suite 200
San Diego, California 92131
Attn: Division President
City: City ofChula Vista
276 Fourth Avenue
Chula Vista, CA 91910
Attn: City Manager
Each party may change its address for delivery of notice by delivering written notice of such
change of address to the other party.
SECTION 26. Severability. If any provision of this Agreement is held to be illegal or
unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be
given effect to the fullest extent reasonably possible.
SECTION 27. Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the successors and assigns of the parties hereto. Developer may not assign its rights or
obligations hereunder except upon written notice to City within ten (10) days of the date of such
assignment indicating the name and address of the assignee. Upon such notice and the
assumption by the assignee of the rights, duties and obligations of the Developer arising under or
from this Agreement, Developer shall be released by City from all future duties or obligations
rising under or from this Agreement. Notwithstanding the preceding sentence, Developer may
assign its rights and obligations hereunder as security to lenders for the purpose of obtaining
S,IWarren.DivenICities\City of Chura VistalCFD 07-1 Otay Village ll\Acquisition AgreementlAcquisition Financing Agreement v6.DOC
DRAFT 4/12/04 25 0/ ~ iJ{)
loans to finance development within CFD No. 07-1, but no such assignment shall release
Developer from its obligations hereunder to City.
SECTION 28. Governing Law. This Agreement and any dispute arising hereunder shall be
governed by and interpreted in accordance with the laws of the State of California, Additionally,
this Agreement and the construction of the Improvements shall be subject to all City ordinances
and regulations relating to the requirement of improvement agreements, land division,
improvement security or other applicable development requirements.
SECTION 29. Waiver. Failure by a party to insist upon the strict performance of any of the
provisions of this Agreement by any other party, or the failure by a party to exercise its rights
under the default of any other party, shall not constitute a waiver of such party's right to insist
and demand strict compliance by any other party with the terms of this Agreement thereafter.
SECTION 30. Singular and Plural; Gender. As used herein, the singular of any work includes
the plural, and terms in the masculine gender shall include the feminine.
SECTION 31. Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original.
SECTION 32. Construction of Agreement. This Agreement has been reviewed by legal counsel
for both the City and the Developer and shall be deemed for all purposes to have been jointly
drafted by the City and the Developer. No presumption or rule that ambiguities shall be construed
against the drafting party shall apply to the interpretation or enforcement of this Agreement. The
language in all parts of this Agreement, in all cases, shall be construed as a whole and in
accordance with its fair meaning and not strictly for or against any party and consistent with the
provisions hereof, in order to achieve the objectives of the parties hereunder. The captions of the
sections and subsections of this Agreement are for convenience only and shall not be considered
or referred to in resolving questions of construction.
SECTION 33. Recitals; Exhibits. Any recitals set forth above and any attached exhibits are
incorporated by reference into this Agreement.
SECTION 34. Authority of Signatories. Each signatory and party hereto hereby represents and
warrants to the other party that it has legal authority and capacity and direction from its principal
to enter into this Agreement, and that all resolutions and/or other actions have been taken so as to
enable such party to enter into this Agreement.
SECTION 34. Recordation. The parties shall execute, acknowledge and cause this Agreement,
or a memorandum of this Agreement in a form satisfactory to the parties hereto, to be recorded
against the Development Project in the Official Records of San Diego County.
[End of page. Next page is signature page.]
SolWarren.DivenlCitieslCity of Chula VistalCFD 07.] Otay Village 1IIAcquisition AgreementlAcquisition Financing Agreement v6.DOC
DRAFT 4/12/04 26 CJ ~¥/
Signature Page to
AcquisitionlFinancing Agreement by and between
. the City of Chula Vista, Brookfield Shea Otay, LLC,
Otay R2/3 LLC, Otay MF1 LLC, Otay R7/10 LLC
and Shea Homes Limited Partnership
EXECUTED by and between the parties hereto on the day and year first hereinabove written.
"CITY"
CITY OF CHULA VISTA
MAYOR
CITY OF CHULA VISTA
STATE OF CALIFORNIA
ATTEST: APPROVED AS TO FORM:
CITY CLERK ANN MOORE, CITY ATTORNEY
CITY OF CHULA VISTA CITY OF CHULA VISTA
STATE OF CALIFORNIA STATE OF CALIFORNIA
Sol
S:IWarren.DivenICitiesICity of Chula Visr.ICFD 07-1 Or.y Village ¡¡IAcquisition AgreementlAcquisition Financing Agreement v6.DOC
DRAFT 4/12/04 q~'I;;;..
"DEVELOPER"
BROOKFIELD SHEA OT A Y, LLC, a California
limited liability company
By:
By:
Name:
Title:
By: ¿J:U:j',J..,.. t,C, I~,-?:u-l,.
Name: ~lI. A~;;>'¿Ì\-1 - ii.,\:>I;.l'Ik
Title: ";~ """",",;,.,."
\
By: SHEA OTAY VILLAGE II, LLC, a
California limited liability company,
member
By: SHEA HOMES LIMITED
PARTNERSHIP, a California
limited partnership
By: J.F. SHEA, LLC, a
Delaware limited
partnership, its General
Partner
By:
Name:
Title:
BY'~ ~
N~e: 'Zi L¿. arí¡es
Title: 11%1. 5e(!).
S-2
S,IWarren.DivenICitiesICity of Chu!a VistalCFD 07-1 Otay Village lllAcquisition AgreementlAcquisition Financing Agreement v6.DOC
DRAFT 4/12/04
1- if 3
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California } ss
County of San Diego
On April 13, 2004, before me, Colette Kavanagh, Notary Public,
personally appeared John W. Norman and Elizabeth Zepeda,
personally known to me to be the person
whose names are subscribed to the within
instrument and acknowledged to me that
they executed the same in their authorized
capacity, and that by their signatures on the
instrument the persons, or the entity upon
behalf of which the persons acted, executed
the instrument.
WITNESS my hand and official seal.
~ l... ~ \ (.~Ø-V-=-l-
-'"
Place Nola", 8eal Abo,e 8Ig,,'",e of Nola", PubHc
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reaffachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Capacity Claimed by Signer Right Thumbpn"1
ofSlgoe'
Signer's Name: Top ofthomb hece
D Individual
D Corporate Officer - Title: Vice President
D Partner - 0 Limited 0 General
0 Attorney in Fact
0 Trustee
C Guardian or Conservator
D Other:
Signer is Representing:
c¡ - '-pI
... . e' _. ,.' . . '.' w w ..
State of California )
) S.S.
County of San Diego )
On April 13, 2004 before me, Debra E. Young, Notary Public, personally appeared
John B. Vance and PaulL. 1. Barnes personally known to me to be the persons whose
names are subscribed to the within instrument and acknowledged to me that they executed
the same in their authorized capacities, and that by their signatures on the instrument the persons,
or the entity upon behalf of which the persons acted, executed the instrument.
WITNESS my hand and official seal. r ~ "BRA ,. YOUNG ~
~é.~ -.It. Comm. # 1333971
(j). ~ . NOTARY PUBLIC. CALIfORNIA (f
,. San O"Qo COUnty -
. MyComm.hp"esO".9.200S'"
q-Lf5
"MERCHANT BUILDERS"
OT A Y R2/3 LLC, a Delaware limited liability
,=p~~ ~
:~, ~~?~~ ~
Title: ,
By: IS:> J ;~.....t\~ ,f\... '~
Name: t' I ~f'"Cr'\-'\/ ..~rf' [\ -
Title: '-') ¡' d, 't.l--I+n..\
OTAY MF1 LLC, a Delaware limited liability
,om"o, ~
. ,
~:~~i~b ~
Title: :
By: (~ c~ X::+, f"-,.~~ ."
Name: ~\ i?!.?z..n-\ ? 'C~é~Ç\
Title: ~" c \1...'- my ""
\
7~~~C' , J,re limired ¡"bili"
By: I. \ -
~~~~: . JW ~~ð;rO
By: t ~ J..... ic-:", j"-. "-'ii' .,L
Name: "L. \ è/'I\-I",ct\..\-¿ C'P",C k-
Title: '> ' '- \L'<.'\;-Y~.,,--.;,
S.3
S:\Warren.Diven\Cities\City of Chula Vista\CFD 07-1 Otay Village ll\Acquisition Agreement\Acquisition Financing Agreement v6.DOC
DRAFT 4/12/04
9-tftp
SHEA HOMES LIMITED PARTNERSIDP, a
California limited partnership
By: J.F. SHEA, LLC, a Delaware
limited liability company, it General
~, ~
By: ~ "3:, ~
N-~ì ~'; 1<-<
Title. $.".,.
By: ~~~
Name: 1.1./ L.L, f-i'Ç
Title: /49;1, Ýt'.
S-4
S,\Warren.Diven\Cities\City of Chula VisulCFD 07-1 Ouy Village 1l\Acquisition AgreementlAcquisition Financing Agreement v6.DOC
DRAFT 4/12/04
9-'1-1
State of California )
) S.S,
County of San Diego )
On April 13, 2004 before me, Debra E, Young, Notary Public, personally appeared
John B. Vance and PaulL. 1. Barnes personally known to me to be the persons whose
names are subscribed to the within instrument and acknowledged to me that they executed
the same in their authorized capacities, and that by their signatures on the instrument the persons,
or the entity upon behalf of which the persons acted, executed the instrument.
WITNESS my hand and official seal. DEBRA E, YOUNG ~
,!
~ !;. 7t---3 Comm, # 1333971 (J)
NOT ARY PUBLIC, CALIfORNIA
San Oi'go C""t', -
My Comm. bo"" Doc 9,200.'1
Q-'f8
State of California )
) S.S.
County of San Diego)
On April 13, 2004 before me, Debra E. Young, Notary Public, personally appeared
John B. Vance and PaulL. 1. Barnes personally known to me to be the persons whose
names are subscribed to the within instrument and acknowledged to me that they executed
the same in their authorized capacities, and that by their signatures on the instrument the persons,
or the entity upon behalf of which the persons acted, executed the instrument.
WITNESS my hand and official seal. i f
.. DEBRA E. YOUNG <:
W é. Comm.#1333971 UJ
UJ NOTARY PUBLIC. CALIfORNIA -
" San 0;'90 C'""tv
'D'rß . ~ j """"""""""'.'1
q-41
-- ".'
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California } ss
County of San Diego
On April 13, 2004, before me, Colette Kavanagh, Notary Public,
personally appeared John W Norman and Elizabeth Zepeda,
personally known to me to be the person
whose names are subscribed to the within
instrument and acknowledged to me that
-- .. ...~",."....", E""1 they executed the same in their authorized ..
~' --~, CC'-ETr£ KÞ:VANAGH .' capacity, and that by their signatures on the
¡. Cor","".:;!cn ¡,. 1317064 -:- instrument the persons, or the entity upon ..
'ii " "'c"'. ",,"He -- California ~
" ""';;n Diego CO~ behalf of which the persons acted, executed
~"y c"",rrl s"<1'iros &~P 6, ;¿aca the instrument.
. ,~-- WITNESS my hand and official seal.
C~~~ ~~
Pla,e Nota,., Seal Abo'e Sigoal",e of Nola,y pobn,
..
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and couid prevent fraudulent removai and reaffachment of this form to another document.
Description of Attached Document
Title or Type of Document.
Document Date: Number of Pages:
Signer(s) Other Than Named Above: ,.
Capacity Claimed by Signer
Righi Thornbp"ol
oiSlgoe,
Signer's Name: Top 01 thcmb he"
0 Individual
0 Corporate Officer - Title: Vice President
0 Partner - 0 Limited 0 General
0 Attorney in Fact
0 Trustee
0 Guardian or Conservator
0 Other:
Signer is Representing:
9-50
.,.', w '.' . . ... ... '.' w ,. ....
Exhibit "A"
A,aai,ition and Finoncine A-reement For cm 07-1 IOTA Y RANCH VILLAGE ELEVEN)
Improvement Dmciptlnn and Est;mated Costs
tmp""m,", Imp""m,aID""ipliua' Ca""'im",,'
Namh"
1 Teaffie Eahaacomeal "
2 Pablie Faeiliti., tu be Fiaaoeed by Oevelopmeol Impact Fee '"
3 Haole Paekwa ,Steeet 1m covemeets (01 mpie Paekwa to E,"nia St., Steeet}-TOIF Eli ible
4 Haole Paekwa Stceet 1m co,"meets (01 m ie Paekwa to E -Noa-TDIFEIi ible
5 Hante Paekwa ,l,"dsca e & IITi ation, 01 m ic Paekwa to )- TO IF Eli ible
6 H""te P.,kwa Stceellm co,"ments Stae Stceel to O""t Watec Aathori Easemeol} - TOIF Eli ible
7 Haole Parkwa Stceet 1m co,"meots O"" Walec Aathoci Easemenl}- Noa.TOIF Eli ible
& H""te Parkwa , l,"dseape & IITI ati to SDGE/Co""t Water Aathoc" Easemeol) - TOIF Eli Ible
9 H""te Packwa Steeet 1m co,"meots (SDGE/Coaa Water Aathoc" Easemeat to Eastlake Packwa . TDIF Eh ible
10 H""te Packwa Steeet 1m covemeots (SDGE/Coua Watec Aathoci Easemeol to Eastlake Packwa ) - Noa- TOIF Eli ible
11 H""te Packwa , l,"dsca e & ',n atioa (SDGE/Coun Watec Authoc" Easement to Eastlake Packwa - TDIF Eli ible
12 Eastlake Parkwa Street 1m covements 01 m ie Packwa to Kestral Falls Road) . TOIF Eli ible 51,022,385
13 Eastlake Packwa , Stce" 1m covements (01 m ic Packwa to Kestral Falls Road - Non-TOIF Eli Ible 191,609
14 Eastlake Parkwa landsca e & Irn ation (01 m ic Packwa to Kestcal Falls Road)- TO IF Eli ible 1219,843
15 Eastlake Packwa ,Stceet 1m covements Kestcal Falls Road to Plannia Acea MU-I, R-19 Bounda - TOIF Eli Ible 11,60',888
16 Eastlake Packwa , Street 1m covements oadtoPlannin AceaMU-l,R.19Bounda - N ible 5268,590
17 Eastlake Packwa ,landsea e & IITi atioa Kestral a s Road to Plannin Acea MU-l, R-19 Bo""da 5295,644
18 Eastlake Packwa , Stceet 1m covemeats Planmn cea MU-I, R-19 Bounda to Hante Packwa . TOIF 53,426,070
19 EastlakeParkwa Steeelim covements Plannia AceaMU-I,R.19Bounda toHantePackwa -Non-TOIFEIi ible 1287,830
20 EastlakePackwa,landscae&IITiationPlanain AceaMU.1,R-19Bounda toHuatePackwa -TOIFEliible 5392,217
21 OIa lak., Road Wideoin . TOIF Eli ible 15,592,000
22 01 m ,c Packwa Eastlake Packwa to Hunle P.,kwa - Non-TOIF Eli ible 5460,000
23 Kestcel Falls Stceet Stceet Impcovements (Easllake P.,kway to Exploration) - Non-TDIF Eli ible 1604,284
24 Kestcel Falls Stceet landscape & 1m ation, (Eastlake P.,kway to Explocation)- Non-TOIF Eli9ible 188,071
25 Explocahon Falls Orive. Street Impco,"ments, (Olympic P"kwa to Hante Parkwa )- Non.TDIF Eli ible 11,483,242
26 Explocation Falls Dtlve, laodscape & IITi ation, (Olympic P"kway to Hunte P"kwa )- Noa.TOIF Eli ible 1216,173
27 Explocation Falls Drive, Stceet Improvements, (Windin walk Street to Hunte Parkway)- Noa.TOIF Eligible 1603,342
28 Explocation Falls Dtlve, landsea e & IITi ation, (Windiagwalk Street to Haate P.,kway)- Non- TOIF Eli ible 150,559
29 Windingwalk Stceet Stceet Improvements, (Olymp,c Parkway to Explocation Falls Drive). Non- TOIF Eligible 11,565,645
30 Wind in walk Stceet landscape & IITi atioa, (01 mpic P.,kwayto Explocahoa Falls Drive). Noa-TOIF Eligible 1228,183
31 Wiadiagwalk Stceet Street Impcovements (Explocatioa Falls Drive to Discove Falls Drive). Non-TOIF Eligible 1460,000
32 Wiadmgwalk Stceet landseape & Imgallon, (Explocation Falls Dtlve to DIScove" Falls Orive). Non- TOIF Eli ible 539,921
33 Eveoiag Star Ste..t Street Improvements, (Hante P"kway to Wind in walk Stceel). Non- TOIF Eligible 51,208,568
34 Eveoin SI., Siceet landscape & IITi allon. (Hunte P.,kwa to Windin walk Siceet)- Non-TOIF Eli ible 1176,141
3S Hidden Path Orive, Siceet Improvements (Evenln Star to Crossroads Sireet)- Non-TOIF Eligible 5384,544
36 Hidden Palh Otlve. landscape & Imgatioa, (Even in Slar to CrossrOads}- Non. TO IF Eligible 156,045
37 Hidden Path Drive, Street 1m rovements, (Crossroads 10 Hunte Parkway). Non.TDIF Eli ible $368,000
38 H'dden Path Orive, landscape & lITigation, (Crossroads to Hante Parkwa ) - Non- TOIF Eligible 531,937
39 Oiseove" Falls Orive. Slteet Improvements, Exploration Falls Orive to south of MU.l}. Non-TOIF Elig'ble 5552,000
40 Discove Falls Drive. landsea e & IITi ation, IE,ploration Falls Dnve to sooth of MU-1}- Non.TOIF Eligible 147,9OS
41 Discove" Falls Drive, Streetlmprovemenls, (South of MU-l to Hunte Parkway - Non- TOIF Eli ible 5656,578
42 Discove" Falls Dtlve, landseape & Irngatioa, (Sooth of MU-Tlo Hante Parkwa )- Non.TOIF Eli ible 555,129
43 Birch Road, Street 1m covements, (Eastlake Parkway 10 Discove" Falls Drive). Noa-TOIF Eli ible 5257,600
44 Birch Road, laodscape & Imgation, (Eastlake Parkway to Dlscove" Falls Deive). Non- TOIF Elig,ble 122,356
45 Ceossroads Street Street Improvements, (Hidden Path Orive throa h SOGE easement)- Non.TDIF Eli ible " 1386,400
46 Crossroads Street laodscape & Irrigation (Hidden Path Drive thcou h SOGE easemeat)- Non-TOIF Eli ible 533,533
47 Crossroads Slteet Sireet Improvements, (SDGE Easement to Discove Falls Otlve)- Noa.TOIF Eli ible 51,153,448
48 Crossroads Sireet, landseape & 1m ation, (SOGE Easement to Oiscove" Falls Drive)- Non- TOIF Eli ible 596,849
49 CFO Slope Planting & IITi ation (See Footnote S)- Noo.TOIF Eli ible 11,119,869
50 CFD Slope Plaotm & Irrigation, (See Footnote 6)- Noa-TOIF Elig,ble 1871,650
51 CFOSlopePlantin &IITi atioa. (See Footnote7}. Noa-TOIF Eli ible 51,OOS,750
52 Perimeter Souad Walls, See Footnote 5 . Non- TDIF Eli ible 1705,034
53 Perimeter Souad Walls, See Footnote 5 . Non- TOIF Eli ible 1379,950
54 Perimeter Soand Walls, See Footnote 7 - Non-TDIF Eli ible 1250 320
55 Traffic Counters - TOIF Eligible 150,000
TOTAL 549,875,64'
~
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----,----.---..
EXHIBITB
SUBSTANTIAL COMPLETION CRITERIA FOR IMPROVEMENTS
OTHER THAN TRAFFIC ENHANCEMENT IMPROVEMENTS
General:
1. Substantial completion of an Improvement, other than a Traffic Enhancement Improvement,
for purposes of determining the eligibility of such Improvement for the payment of the "Base
Increment" therefore shall mean that the construction or work with respect to such
Improvement, including each component of such Improvement, has progressed to the point
where it is sufficiently complete so that it can be utilized for the purpose for which it was
intended. Substantial completion criteria for each Improvement or component of an
Improvement is further described below.
2. Payment for the "Retained Increment" of the Purchase Price for an Improvement shall be in
accordance with Section 8, paragraph (c)(ii) and shall be made after submittal of a payment
request form, as-built plans and such other documentation as is required pursuant to Section
8 paragraph (c )(ii), posting of maintenance bonds, and submittal of lien release evidence.
Substantial Completion Criteria:
A. Grading: Grading shall be deemed to be complete upon (1) completion of all preliminary
grading work (mobilization, site clearing, remedial grading, overexcavation, installation of
subdrainage systems) (2) certification of compaction by the geotechnical engineer, quantity
verification by the civil engineer, and confirmation by the City inspector and (3) installation
of all surface grading improvements (brow ditches, retaining walls, slope protection and
similar improvements) and the certification thereof by the geotechnical engineer and
confirmation by the City inspector.
B. Sewer: Sewer construction shall be deemed substantially complete upon the installation,
flushing, and testing of sewer main line, laterals, cleanouts, manholes, and all other
appurtenances of the sewer system as shown on the approved plans and specifications
therefore and in accordance with the City standard plans and specifications and the
verification of such installation by the civil engineer and confirmation of such installation by
the City inspector.
C. Storm Drain: Box culverts and headwall structures shall be deemed substantially complete
upon installation as shown on the approved plans and specifications therefore and in
accordance with the City standard plans and specifications and verification of such
installation by the civil engineer, and confirmation of such installation by the City inspector.
D. Drainage Facilities: Drainage structures including energy dissipation devices (rip-rap, drop
structures, cut-off walls, etc), drainage diversion structures, facilities required as part of the
environmental mitigation measures, and other drainage channel appurtenances including
drainage pipes connecting the brow ditches to the channel, shall be deemed substantially
B-1
S,IWarren.DivenICitiesICity of Chula VistalCFD 07-1 Otay Village 111Acquisition AgreementlAcquisition Financing Agreement v6.DOC
DRAFT 4/12/04 q-
complete for payment of the Base Increment upon the installation thereof as shown on the
approved plans and specifications therefore and in accordance with City standard plans and
specifications and the verification of such installation by the civil engineer and confirmation
of such installation by the City inspector.
E. Drv Utility Backbone Svstem: Dry utilities (electric, gas, telephone, CATV) shall be deemed
substantially complete upon the installation of the conduits, junction boxes, payment of
utility fees, and written acceptance of the facilities by the utility companies.
F. Roadwav Pavement and Roadwav Drainage Svstem: Roadway pavement and drainage
improvements shall be deemed substantially complete upon the installation thereof as shown
on the approved improvement plans therefore and in accordance with City standard plans and
specifications and confirmation of such installation by the City inspector of all storm drain
pipes, catch basins, drainage inlets and cleanouts for the roadway storm drain system,
installation of roadway base material, concrete curb and gutter, and AC pavement including
the preparation of the sub grade and base material.
G. Other Street Surface Improvements: Street surface improvements including street lights,
traffic signals and conduits, signal interconnect, street name signs, roadway signing and
striping, and appurtenances shall be deemed substantially complete when installed as shown
on the improvement plans and in accordance with City standard plans and specifications and
upon confirmation of such installation by the City inspector.
H. Street Landscape Irrigation and Planting: Parkway landscaping within the roadway right of
way including planting, irrigation, concrete sidewalks, median maintenance strip, pedestrian
ramps, channel maintenance roads and all associated subgrade and base material preparation
shall be deemed substantially complete upon installation thereof as shown on the approved
improvement plans therefore and in accordance with City standard plans and specifications
and confirmation of such installation by the City inspector.
1. Slope Landscaping: Landscape planting and irrigation improvements for the slopes outside
of the roadway and channel right of way and the regional trail (DG) and fencing shall be
deemed substantially complete upon installation thereof as shown on the approved
improvement plans therefore and in accordance with City standard plans and specifications
and confirmation of such installation by the City inspector.
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EXHIBIT "C"
DESIGN, BID, CONTRACT AND CHANGE ORDER REQUIREMENTS
1. General
These requirements shall be applied to all improvements proposed to be acquired through
CFD No. 07-1. Except as expressly provided otherwise in the body of this Agreement
itself, anv deviation from these requirements must be approved in writinl!: in advance
.!!y the City Engineer.
References to the City Engineer means the City Engineer or his or her designee.
The City reserves the right to make the final determination of cost of the Improvements to
be acquired in accordance with this Agreement.
2. Design Phase
A. Only design costs directly related to the public improvements to be acquired are
eligible for inclusion.
B. Bidding Documents. Two complete sets of bidding documents, including
improvement plans, general provisions, and bid proposal forms shall be submitted to the
Engineering Division for review and approval within 15 working days of submittal.
Advertising for bids shall not take place until the bidding documents are approved in
writing by the City. This procedure shall be followed for each contract proposed to be
advertised. Unless otherwise noted, the bidding documents shall conform to the
following minimum requirements:
1. Unless impractical due to the nature of the improvement, the bid proposal
shall be unit priced rather than lump sum. A.C. pavement, base and sub-base
shall be bid on a square foot per inch thickness basis.
2. The bidding documents shall require the bidder/contractor to provide the
following bonds:
a. Bid Bond - 10% of the amount of the bid.
b. Material and Labor Bond - 50% of the contract amount.
c. Performance Bond - 100% of the contract amount.
The Contractor shall post performance and labor and material bonds for all
improvements as part of the bid. The City of Chula Vista shall be named as
additional obligee with the right to call such bonds if needed. Such bonds shall
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remain in effect until such time as all improvements are completed and accepted
by the City Engineer. The City Engineer shall be the sole judge in determining
the réIease of such bonds.
3. The bidding documents shall require the successful bidder to provide
evidence of comprehensive or commercial general public liability insurance in the
amount of at least $1,000,000 prior to the award of the contract.
4. Unless otherwise required by the City, the contractor is not required to pay
prevailing wages.
5. The bidding documents must clearly state the time, date, and place where
bids are to be submitted and opened.
6. The bidding documents shall clearly state the amount of time to complete
the work. The time allowed must be reasonable for the amount of work.
Accelerated construction time allowances must be supplementally bid, and are not
eligible for public finance unless previously approved by the City Engineer.
3. Bidding Phase
A. The Notice inviting Sealed Bids shall be published in the Chula Vista Star News
and the San Diego Daily Transcript. The notice inviting bids shall state where
bidding documents are available.
B. The bidding period following the advertisement of the Notice Inviting Sealed Bids
shall be a minimum of 14 calendar days.
C. Developer shall provide complete sets of bidding documents to all contractors,
subcontractors, or suppliers requesting them. A reasonable price may be charged
for bidding documents.
D. Developer shall keep a log of all persons obtaining bidding documents, and their
mailing address.
E. Addenda shall be mailed by first class mail to all bidding document holders and
the City Engineer. If an addendum is required within five working days of the
noticed bid opening date, the bid opening date shall be extended.
F. Submitted bids shall be in sealed envelopes.
G. Bids shall not be accepted after the stated time for submission.
H. Bid opening shall be conducted by the Developer at the Developer's place of
business or other site mutually acceptable to the Developer and City Engineer.
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E. Sealed bids shall be opened and read aloud immediately following the submission
time.' A City representative shall be invited to attend the bid opening.
J. Conditioned bids, unless the bid proposal lists them for all to bid on, shall not be
accepted.
K. The bid proposals shall conform to all state and local laws governing the listing of
subcontractors and suppliers.
1. The arithmetic of the two lowest bid proposals received shall immediately be
checked for errors.
M. A tabulation of all bids received shall be provided to the City Engineer within five
working days of the bid opening.
N. Award shall be made to the lowest responsible bidder within a reasonable period
of time following approval by the City Engineer.
O. A preconstruction meeting shall be held with the contractor prior to beginning the
work. A City representative shall be invited to attend the meeting.
P. The Notice to Proceed shall be issued within a reasonable period of time
following the contract execution.
4. Construction Phase
A. The City shall be provided a copy of the construction schedule.
B. Developer shall require the contractor to conduct weekly construction status
meetings to which a City representative shall be invited.
C. Any additional costs incurred for the benefit of the Developer, such as
accelerating the construction schedule, shall not be eligible for public financing
unless previously approved by the City Engineer.
D. Any additional construction costs incurred due solely to delays caused by the
Developer shall not be eligible for public financing.
E. All contracts and construction related records shall be available to the City as and
when required for the final determination of eligible costs for the.public financing.
This shall include trip tickets and other confirmations of material delivered to the
Improvement.
5. Change Orders
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A. No single change order for a TDIF Improvement shall be eligible for inclusion in
the PUrchase Price for such Improvement that increases or decreases the original
contract amount for the construction of such Improvement by more than $50,000
without City Council approval.
B. All change orders shall be fully documented and be in a format consistent and be
in a format consistent with the original bid items (i.e., show units, unit costs,
extensions and total costs). The City Engineer, in hislher sole discretion shall
determine the eligibility of each change order for inclusion in the Purchase Price
for an Improvement.
C. The aggregate of all change orders for TDIF Improvements, including those for
differences between estimated and actual quantities shall not increase the contract
amount by more than the amount specified below without City Council approval:
Original Contract Range Maximum Aggregate Increase
Up to $100,000 10%
$100,001 to $1,000,000 $10,000 plus 7% of amount over $100,000
More than $1,000,000 $73,000 plus 5% of amount over $1,000,000
The aggregate of all change orders for any non- TDIF Improvement shall not
increase the Purchase Price thereof so as to cause such Purchase Price to exceed
the cost estimate for such Improvement as set forth in Exhibit A by more than
25% without City Council approval.
D. All change orders involving changes in scope of the project, or increases of
contract amounts greater than outlined in C. above shall be submitted to the City
Council for approval after the construction of the Improvement is completed, but
before the payment of any portion of the Purchase Price for such Improvement is
authorized by the City Engineer. Change orders that the Developer does not wish
to include in the Purchase Price for an Improvement do not need to go to City
Council for approval.
E. Negotiated set price change orders are acceptable where most of the items of work
in the change order have unit prices from the bids. Where change orders are for
work that does not have unit prices for a substantial portion of the work contained
within the bids, time and materials change orders are preferred.
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EXHIBIT "D -1"
BASE INCREMENT
PAYMENT REQUEST NO. -
(IMPROVEMENT OTHER THAN TRAFFIC ENHANCEMENT IMPROVEMENTS)
The undersigned (the "Developer") hereby requests payment in the total amount
of $ for the Base Increment for the Improvements (as defined in the
Acquisition/Financing Agreement by and among the City of Chula Vista (the "City") and
Developer and described in Exhibit A to that Agreement), all as more fully described in
Attachment 1 hereto. In connection with this Payment Request, the undersigned hereby certifies,
represents and warrants to the City as follows:
A. He(she) is a duly authorized representative or signatory of Developer, qualified
to execute this Payment Request for payment on behalf of Developer and is
knowledgeable as to the matters set forth herein.
B. The Improvements that are the subject of this Payment Request have been
substantially completed in accordance with Exhibits Band C.
C. This request for payment of the Base Increment for the improvements has been
calculated in conformance with the terms of the Agreement. All costs for which
payment is requested hereby are eligible costs (as permitted in the Agreement) and
have not been inflated in any respect. The Base Increment for which payment is
requested has not been the subject of any prior payment request paid by the City.
D. All items have been clearly delineated as DIF/Non-DIF eligible (all DIP's) and
detailed backup and cost breakdown is provided supporting each item.
E. Supporting documentation (such as third party invoices, change orders and
checks) is attached with respect to each cost for which payment is requested.
F. The Improvements for which payment is requested were constructed in
accordance with the requirements of the Agreement.
G. Developer is in compliance with the terms and provisions of the Agreement.
H. No mechanics liens or other encumbrances have attached, or to the best
knowledge of Developer, after due inquiry, will attach to the Improvements.
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I. A cop(ies) of the letter(s) of unconditional lien release for the Improvements for
which payment is requested is included this request. Alternatively, a copy of a
letter' of conditional lien release for the Improvements for which payment is
requested together with a letter from the contractor(s) stating that they have
been paid in full by the Developer for the Improvements for which payment is
requested is also included in this request.
I hereby declare under penalty of perjury that the above representations and warranties
are true and correct.
DEVELOPER:
Dated:
CITY
Payment Request Approved for Submission to
Director of Finance
Director of Engineering
Dated:
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q,
.._--_.~..... .-----..--- .---.....-. -"'~------
ATTACHMENT I
SUMMARY OF IMPROVEMENTS
TO BE ACQUIRED AS PART OF PAYMENT REQUEST NO.-
Improvement Cost Estimate Base Increment Disbursement
Re uested
[List here all Improvements for which payment is requested, and attach supporting
documentation]
D - 1 - 3
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EXHIBIT "D - 2"
RETAINED INCREMENT
PAYMENT REQUEST NO. -
(IMPROVEMENT OTHER THAN TRAFFIC ENHANCEMENT IMPROVEMENT)
The undersigned (the "Developer") hereby requests payment in the total amount
of $ for the Retained Increment of the Purchase Price of the Improvements (as
defined in the Acquisition/Financing Agreement by and among the City of Chula Vista (the
"City") and Developer and described in Exhibit A to that Agreement), all as more fully described
in Attachment 1 hereto. In connection with this Payment Request, the undersigned hereby
certifies, represents and warrants to the City as follows:
A. He(she) is a duly authorized representative or signatory of Developer, qualified to
execute this Payment Request for payment on behalf of Developer and is
knowledgeable as to the matters set forth herein.
B. Developer has submitted or submits herein to the City, if applicable, as-built
drawings or similar plans and specifications for the Improvements and such
drawings or plans and specifications, as applicable, are true, correct and complete.
C. The Purchase Price for the Improvements has been calculated in conformance
with the terms of the Agreement. All costs for which payment is requested hereby
are eligible costs (as permitted in the Agreement) and have not been inflated in
any respect. The Retained Increment for which payment is requested has not been
the subject of any prior payment request paid by the City.
D. All items have been clearly delineated as DIFlNon-DIF eligible (all DlF's) and
detailed backup and cost breakdown is provided supporting each item.
E. Supporting documentation (such as third party invoices, change orders, lien
releases and checks) is attached with respect to each cost for which payment is
requested.
F. The Improvements for which payment is requested were constructed III
accordance with the requirements of the Agreement.
G. Developer is in compliance with the terms and provisions of the Agreement.
H. No mechanics liens or other encumbrances have attached, or to the best
knowledge of Developer, after one inquiry, will attach to the Improvements.
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q-(¿'I
.-------
I hereby declare under penalty of perjury that the above representations and warranties are
true and correct.
DEVELOPER:
Dated:
CITY
Payment Request Approved for Submission to
Director of Finance
City Engineer
Dated:
D - 2 - 2
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ATTACHMENT 1
SUMMARY OF IMPROVEMENTS
TO BE ACQUIRED AS PART OF PAYMENT REQUEST NO.-
Improvement Purchase price Base Increment Retained Disbursement
Increment R~uested
[List here all Improvements for which payment is requested,
and attach supporting documentation]
D - 2 - 3
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q~(P3
EXHIBIT "D - 3"
BASE INCREMENT
PAYMENT REQUEST NO. -
(TRAFFIC ENHANCEMENT IMPROVEMENTS)
The undersigned (the "Developer") hereby requests payment in the total amount
of $ for the Base Increment of the Purchase Price of the Traffic Enhancement
Improvements (as defined in the AcquisitionlFinancing Agreement by and among the City of
Chula Vista (the "City") and Developer and described in Exhibit A to that Agreement), all as
more fully described in Attachment 1 hereto. In connection with this Payment Request. the
undersigned hereby certifies, represents and warrants to the City as follows:
A. He(she) is a duly authorized representative or signatory of Developer, qualified
to execute this Payment Request for payment on behalf of Developer and is
knowledgeable as to the matters set forth herein.
B. The Traffic Enhancement Improvements that are the subject of this Payment
Request have been substantially completed in accordance with Exhibits Band C.
C. The Purchase Price for the Traffic Enhancement Improvements has been
calculated in conformance with the terms of the Agreement. All costs for which
payment is requested hereby are eligible costs (as permitted in the Agreement) and
have not been inflated in any respect. The portion of the Base Increment for
which payment is requested has not been the subject of any prior payment request
paid by the City.
D. All items have been clearly delineated as DIF/Non-DIF eligible (all DIP's) and
detailed backup and cost breakdown is provided supporting each item.
E. Supporting documentation (such as third party invoices, change orders and
checks) is attached with respect to each cost for which payment is requested.
F. The Traffic Enhancement Improvements for which payment is requested were
constructed in accordance with the requirements of the applicable Traffic
Enhancement Agreement.
G. Developer is in compliance with the terms and provisions of the Agreement.
H. No mechanics liens or other encumbrances have attached, or to the best
knowledge of Developer, after due inquiry, will attach to the Traffic Enhancement
Improvements.
1. A copy of a letter of conditional lien release for the Traffic Enhancement
Improvements for which payment is requested is included this request. In
D - 3 - I
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addition, a letter from the contractor(s) stating that have been paid in full by the
Developer for the Traffic Enhancement Improvements for which payment is
requested is also included in this request.
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I hereby declare under penalty of perjury that the above representations and warranties are
true and correct.
DEVELOPER:
Dated:
CITY
Payment Request Approved for Submission to
Director of Finance
City Engineer
Dated:
D-3-3
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ATTACHMENT 1
SUMMARY OF TRAFFIC ENHANCEMENT IMPROVEMENTS
TO BE ACQUIRED AS PART OF PAYMENT REQUEST NO. -
Traffic Purchase Price Base Increment Disbursement
Enhancement Requested
Imorovement
[List here all Traffic Enhancement Improvements for which payment is requested, and attach
supporting documentation]
D-3-4
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EXHIBIT "D - 4"
RETAINED INCREMENT
PAYMENT REQUEST NO. -
(TRAFFIC ENHANCEMENT IMPROVEMENT)
The undersigned (the "Developer") hereby requests payment in the total amount of
$ for the Retained Increment of the Purchase Price of the Traffic Enhancement
Improvements (as defined in the Acquisition/Financing Agreement by and among the City of Chula
Vista (the "City") and Developer and described in Exhibit A to that Agreement), all as more fully
described in Attachment 1 hereto. In connection with this Payment Request, the undersigned
hereby certifies, represents and warrants to the City as follows:
A. He(she) is a duly authorized representative or signatory of Developer, qualified to
execute this Payment Request for payment on behalf of Developer and IS
knowledgeable as to the matters set forth herein.
B. The Traffic Enhancement Improvements have been accepted by the City.
C. The Purchase Price for the Traffic Enhancement Improvements has been calculated in
conformance with the terms of the Agreement. All costs for which payment is
requested hereby are eligible costs (as permitted in the Agreement) and have not been
inflated in any respect. The Retained Increment for which payment is requested has
not been the subject of any prior payment request paid by the City.
D. Supporting documentation (such as third party invoices, change orders, lien releases
and checks) is attached with respect to each cost for which payment is requested.
E. The Traffic Enhancement Improvements for which payment is requested were
constructed in accordance with the requirements of the applicable Traffic
Enhancement Agreement.
F. Developer is in compliance with the terms and provisions of the applicable Traffic
Enhancement Agreement and the Acquisition/Financing Agreement.
G. No mechanics liens or other encumbrances have attached, or to the best knowledge of
Developer, after one inquiry, will attach to the Traffic Enhancement Improvements.
D-4-1
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I hereby declare under penalty of perjury that the above representations and warranties are true
and correct.
DEVELOPER:
Dated:
CITY.
Payment Request Approved for Submission to Director
of Finance
City Engineer
Dated:
D-4-2
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-----.-
ATTACHMENT 1
SUMMARY OF TRAFFIC ENHANCEMENT IMPROVEMENTS
TO BE ACQUIRED AS PART OF PAYMENT REQUEST NO. ~
Traffic Purchase Price Base Increment Disbursement
Enhancement Requested
Imnrovement
[List here all Traffic Enhancement Improvements for which payment is requested,
and attach supporting documentation]
D -4 - 3
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()
EXHIBIT "E"
LEGAL DESCRIPTION
ALL OF CHULA VISTA TRACT NO. 01-11, OTAY RANCH, VILLAGE 11, "A" MAP NO.1, IN
THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA,
ACCORDING TO MAP THEREOF NO. 14559 FILED IN THE OFFICE OF THE SAN DIEGO
COUNTY RECORDER MARCH 17,2003.
EXCEPTING THEREFROM, LOTS 2 THROUGH 5 INCLUSIVE AND 7 THROUGH 56
INCLUSIVE OF CHULA VISTA TRACT NO. 01-11A, OTAY RANCH, VILLAGE 11,
NEIGHBORHOOD R-1, IN THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE
OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 14666 FILED IN THE OFFICE OF
THE SAN DIEGO COUNTY RECORDER AUGUST 28, 2003.
ALSO EXCEPTING THEREFROM, LOTS 1 THROUGH 16 INCLUSIVE LOTS 18 THROUGH
47 INCLUSIVE OF CHULA VISTA TRACT NO. 01-11A, OTAY RANCH, VILLAGE 11,
NEIGHBORHOOD R-2, IN THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE
OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 14665 FILED IN THE OFFICE OF
THE SAN DIEGO COUNTY RECORDER AUGUST 28,2003.
ALSO EXCEPTING THEREFROM, LOTS 7 THROUGH 49 AND 52 THROUGH 55 INCLUSIVE
OF CHULA VISTA TRACT NO. 01-11A, OTAY RANCH, VILLAGE 11, NEIGHBORHOOD R-4,
IN THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA,
ACCORDING TO MAP THEREOF NO. 14663 FILED IN THE OFFICE OF THE SAN DIEGO
COUNTY RECORDER AUGUST 28,2003.
ALSO EXCEPTING THEREFROM, LOTS 6 THROUGH 62 AND 65 THROUGH 67 INCLUSIVE
OF CHULA VISTA TRACT NO. 01-11, OTAY RANCH, VILLAGE 11, NEIGHBORHOOD R-7, IN
THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA,
ACCORDING TO MAP THEREOF NO. 14664 FILED IN THE OFFICE OF THE SAN DIEGO
COUNTY RECORDER AUGUST 28,2003.
ALSO EXCEPTING THEREFROM, LOTS 10 THROUGH 21 INCLUSIVE, 25, THROUGH 27
INCLUSIVE, 38 THROUGH 47 INCLUSIVE, AND 59 THROUGH 71 INCLUSIVE OF CHULA
VISTA TRACT NO. 01-11A, OTAY RANCH, VILLAGE 11, NEIGHBORHOOD R-23, IN THE
PAGE 1 OF2
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WO2366.3 4/15/04
----.- ----..---------- -----------
CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING
TO MAP THEREOF NO. 14717 FILED IN THE OFFICE OF THE SAN DIEGO COUNTY
RECORDER DECEMBER 9, 2003.
ALSO EXCEPTING THEREFROM, UNITS 24, 25, 26, 142, 143 AND 144 OF PROPOSED
CONDOMINIUM PLANS FOR LOT 1 OF CHULA VISTA TRACT NO. 01-11A, OTAY RANCH,
VILLAGE 11, NEIGHBORHOOD R-20, R-21, R-22 AND P-1, IN THE CITY OF CHULA VISTA,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA. ACCORDING TO MAP THEREOF NO.
14766 FILED IN THE OFFICE OF THE SAN DIEGO COUNTY RECORDER APRIL 6, 2004.
PAGE 2 OF 2
:os M:\2366\16\Legal Oescriptions\A15 AFA agreementl.doc 7c9w-
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EXHIBIT ~ Stradling Yocca Carlson & Rauth
~ ¿ Draft of 4/13/04
~ .s 'B PRELIMINARY OFFICIAL STATEMENT DATED AS OF ,2004
.§! "" '§ NEWISSUE-BOOK-ENTRY-ONLY NO RATING
'::.;¡; '§ In the opinion oj Best Best & Krieger LLP, Bond Counsel, based on an analysis oj existing laws, regulations. rulings and court
] g € decisions, and assuming, among other matters, compliance with certain covenants, interest on the 2004 Bonds is exciudedfrom gross income
ít .:; ¡;¡ for federal income tax purposes under Section ]03 of the Internnl Revenue Code of ]986 and is exempt from State of California personal
~ ~ § income taxes. ]n the further opinion of Bond Counsel, interest on the 2004 Bonds is not a specific preference item for purposes of federal
li :: ~ IndIVIdual or corporate alternate mInImum taxes, although Bond Counsel observes that such Interest IS mciuded m a4Justed current earnings
!j é! ~ in calculating federal corporate alternative minimum taxable income. Bond Counsel expresses no opinion regarding any other Jederal or
;S 0 ~ state income tax consequences relating to the ownership or disposition of, or the accrual or receipt oj interest on, the 2004 Bonds. See
5' ~ ~ "TAX MATTERS" herein.
~ ~:Ë $27,970,000'
~ .~ ~ CITY OF CHULA VISTA
'S :11 ~ COMMUNITY FACILITIES DISTRICT NO. 07-1
¡;. ~ -¡; (OTAY RANCH VILLAGE ELEVEN)
: ~ 2! 2004 SPECIAL TAX BONDS
2, i5 ~ Dated: Date of Delivery Due: September I, as shown ou the inside page
::s! :¡¡ ê The City of Chula Vista Community Facilities District No. 07-[ (Otay Ranch Village Eleven) 2004 Special Tax Bonds (the "2004
~ .9 i5 Bonds") are being issued and delivered to finance various public improvements needed to develop property located within Community
:: t; c Facilities District No. 07-1 (Otay Ranch Village Eleven) (the "District"). The District has been fonned by and is located in the City of Chula
2 'S .~ Vista (the "City"), County of San Diego, California.
¡;. ;¡ ~ The 2004 Bonds are authorized to be issued pursuant to the Mello-Roos Community Facilities Act of 1982, as amended
~ 5 ~ (Sections 53311 et seq. of the Government Code of the State of California), and pursuant to a Bond Indenture (the "[ndenture") dated as of
:€'15 ~ May 1, 2004, by and between the District and U.S. Bank National Association, as fiscal agent (the "Fiscal Agent"). The 2004 Bonds are
Š §.S! special, limited obligations of the District and are payable solely ITom revenues derived ITom certain annual Special Taxes (as defined herein)
~ ~ ï! to be levied on and collected ITom tbe owners of the taxable property within the District and ITOm certain other funds pledged under the
1l ¡¡.m Indenture, all as further described herein. The Special Taxes are to be levied according to the rate and method of apportionment approved by
~ jJ 1f the City Council of the City and the qualified electors within the District. See "SOURCES OF PAYMENT FOR THE BONDS - Rate and
. Æ 3 Method of Apportionment." The City Council of the City is the legislative body of the District.
~ Æ .g The 2004 Bonds are issuable in fully registered fonD and when issued will be registered in the name of Cede & Co., as nominee of
'" ~ : The Depository Trust Company, New York, New York ("DTC"). Individual purchases may be made in principal amounts of $5,000 and
¡¡ (; .a integral multiples thereof and will be in book-entry fonD only. Purchasers of 2004 Bonds will not receive certificates representing their
~ ~.§ beneficial ownership of the 2004 Bonds but will receive credit balances on the books of their respective nominees. The 2004 Bonds will not
0 .5 § be transferable or exchangeable except for transfer to another nominee of DTC or as otherwise described herein. Interest on the 2004 Bonds
.S! Jj li will be payable on September I, 2004 and semiannually thereafter on each March I and September I. Principal of and interest on the 2004
.!! ~::s! Bonds will be paid by the Fiscal Agent to DTC for subsequent disbursement to DTC Participants who are obligated to remit such payments to
~ ~ ~ the beneficial owners of/he 2004 Boods. See "THE 2004 BONDS - Description of the 2004 Bonds" herein.
u ::! ,!,! Neither the faith and credit nor the taxing power of the City, the County of San Diego. the State of California or any political
~ ]!:ii subdivision thereof is pledged to the payment of the 2004 Bonds. Except for the Special Taxes, no other taxes are pledged to the payment of
.~ ~ i5 the 2004 Bonds. The 2004 Bonds are special, limited tax obligations of the District payable solely ITom Special Taxes and other amounts
.g 1J § held under the Indenture as more fully described herein.
~ ~ :~ The 2004 Bonds are subject to optional redemption, extraordinary mandatory redemption and mandatory sinking fund redemption
.~ ~ i prior to maturity as set forth herein. See "THE 2004 BONDS - Redemption of Bonds" herein.
¡¡.¡¡ :; CERTAIN EVENTS COULD AFFECT THE ABILITY OF THE DISTRICT TO PAY THE PRINCIPAL OF AND
:; g é! INTEREST ON THE 2004 BONDS WHEN DUE. THE PURCHASE OF THE 2004 BONDS INVOLVES SIGNIFICANT RISKS,
.Š t; ~ AND THE 2004 BONDS ARE NOT SUITABLE INVESTMENTS FOR ALL INVESTORS. SEE THE SECTION OF THIS
)'! 2! g OFFICIAL STATEMENT ENTITLED "SPECIAL RISK FACTORS" FOR A DISCUSSION OF CERTAIN RISK FACTORS
8;:0 ;; THAT SHOULD BE CONSIDERED, IN ADDITION TO THE OTHER MATTERS SET FORTH HEREIN, IN EVALUATING
§ g:E THE INVESTMENT QUALITY OF THE 2004 BONDS.
.¡;¡ '" ~ This cover page contains certain infonnation for general reference only. It is not intended to be a summary of/he security or tenus
E 1'! .~ of this issue. Investors are advised to read the entire Official Statement to obtain infonnation essential to the making of an infonned
~ '" .g investment decision.
] ~ :å MATURITY SCHEDULE
~ ~ 1 (See Inside Cover Page)
~:g § The 2004 Bonds are offered when, as and if issued and accepted by the Underwriter, subject to approval as to their legality by Best
Ë .~ .5 Best & Krieger LLP, Bond Counsel, and subject to certain other conditions. Certain legal matters will be passed on for the City and the
1;í C 1) District by the City Attorney and for the Underwriter by Stradling Yocca Carlson & Rauth, a Professional Corporation. Newport Beach,
¡); Ë:f! California, as counsel to the Underwriter. It is anticipated that the 2004 Bonds in book-entry fonn wìll be available for delivery to DTC in
Æ 1;í ¡¡ New York, New York, on or about May ,2004.
IE ~ ~ - Stone & Youngberg LLC
0 .~ 1) Dated: May, 2004
~~:, -
Ë v ~.
'¡j ~ "§i P"liminary, subjecllD change.
~g§
¡§ ~ liDOCSOC\IOI8657v7\2224S.0139 q-1:3
DOCSOCII 018657v7/22245-0139
MATURITY SCHEDULE'
(Base CUSlpt: )
Malurity Dale Principal Interest Mamrity Dale Principal Interest
(September 1) Amount Rale Yietd CUSIP' (September 1) Amount Rate Yield CUSIpt
$ _% Tenn Bonds due September 1,2026 Yield: _% - CUSIP':
$ _% Tenn Bonds due September 1,2034 Yield: _% - CUSIP':
. Preliminary, ,ubject/O change.
, Copyright 2003, American Bank", A"ociation, CUSIP date herein i, provided by Standard & Poor ',. CUSIP Service Bureau. a divi,ion of
The McGraw.Hill Campani". Inc. Neither the Undemriter nor the Di'/ricttake, any re'pon,ihi/ity for the accuracy of 'uch data.
DOCSOC\1 018657v7\22245.0139 q-11
DOCSOC/l 018657v7/22245-0 139
CITY OF CHULA VISTA, CALIFORNIA
CITY COUNCIL
Steve C. Padilla, Mayor
Jerry Rindone, Mayor Pro Tern
John C. McCann, Councilmernber
Patty Davis, Councilrnember
Mary Salas, Councilrnember
CITY STAFF
David D. Rowlands, Jr., City Manager
Sid Morris, Assistant City Manager
George Krernpl, Assistant City Manager
Cheryl Fruchter, Assistant City Manager
Ann Moore, City Attorney
Maria Kachadoorian, Director of Finance
Susan Bigelow, City Clerk
Alex Al-Agha, City Engineer
BOND COUNSEL
Best Best & Krieger LLP
San Diego, California
FINANCIAL ADVISOR TO THE CITY
Fieldrnan, Rolapp & Associates
Irvine, California
SPECIAL TAX CONSULTANT REAL ESTATE APPRAISER
McGill Martin Self, Inc. Bruce W. Hull & Associates, Inc.
Chula Vista, California Ventura, California
MARKET ABSORPTION CONSULTANT FISCAL AGENT
The Meyers Group U.S. Bank National Association
Solana Beach, California Los Angeles, California
DOCSOC\1018657v7\22245.0]39 q~15
DOCSOC/I 018657v7/22245-0139
Except where otherwise indicated, all infonnation contained in this Official Statement has
been provided by the District. No dealer, broker, salesperson or other person has been authorized by
the District, the City, the Fiscal Agent or the Underwriter to give any infonnation or to make any
representations in connection with the offer or sale of the 2004 Bonds other than those contained
herein and, if given or made, such other infonnation or representations must not be relied upon as
having been authorized by the District, the City, the Fiscal Agent or the Underwriter. This Official
Statement does not constitute an offer to sell or the solicitation of an offer to buy nor shall there be
any sale of the 2004 Bonds by a person in any jurisdiction in which it is unlawful for such person to
make such an offer, solicitation or sale.
This Official Statement is not to be construed as a contract with the purchasers or Owners of
the 2004 Bonds. Statements contained in this Official Statement which involve estimates, forecasts
or matters of opinion, whether or not expressly so described herein, are intended solely as such and
are not to be construed as representations of fact. This Official Statement, including any supplement
or amendment hereto, is intended to be deposited with a nationally recognized municipal securities
depository.
The Underwriter has provided the following sentence for inclusion in this Official Statement:
The Underwriter has reviewed the infonnation in this Official Statement in accordance with,
and as part of, its responsibilities to investors under the federal securities laws as applied to the facts
and circumstances of this transaction, but the Underwriter does not guarantee the accuracy or
completeness of such infonnation.
The infonnation set forth herein which has been obtained from third party sources is believed
to be reliable but is not guaranteed as to accuracy or completeness by the District or the City. The
infonnation and expressions of opinion herein are subject to change without notice, and neither the
delivery of this Official Statement nor any sale made hereunder shall, under any circumstances,
create any implication that there has been no change in the affairs of the District, the City or any
other parties described herein since the date hereof. All summaries of the Indenture or other
documents are made subject to the provisions of such documents respectively and do not purport to
be complete statements of any or all of such provisions. Reference is hereby made to such
documents on file with the District for further infonnation in connection therewith.
All information considered material to the making of an informed investment decision with
respect to the 2004 Bonds is contained in this Official Statement. While the City maintains an
internet website for various purposes, none of the infonnation on its website is incorporated by
reference into this Official Statement. Any such infonnation that is inconsistent with the infonnation
set forth in this Official Statement should be disregarded.
Certain statements included or incorporated by reference in this Official Statement constitute
"forward-looking statements" within the meaning of the United States Private Securities Litigation
Refonn Act of 1995, Section 21E of the United States Securities Exchange Act of1934, as amended,
and Section 27 A of the United States Securities Act of 1933, as amended. Such statements are
generally identifiable by the tenninology used such as "plan," "expect," "estimate," "project,"
"budget" or other similar words. Such forward-looking statements include, but are not limited to,
certain statements contained in the infonnation under the caption "THE COMMUNITY
F ACILITlES DISTRICT" and "THE DEVELOPMENT AND PROPERTY OWNERSHIP."
DOCSOC\1 018657v7\22245.0139
DOCSOCII 0 18657v7/22245-0 139
THE ACHIEVEMENT OF CERTAIN RESULTS OR OTHER EXPECTATIONS
CONTAINED IN SUCH FORWARD-LOOKING STATEMENTS INVOLVE KNOWN AND
UNKNOWN RISKS, UNCERTAINTIES AND OTHER FACTORS WHICH MAY CAUSE
ACTUAL RESULTS, PERFORMANCE OR ACHIEVEMENTS DESCRIBED TO BE
MATERIALLY DIFFERENT FROM ANY FUTURE RESULTS, PERFORMANCE OR
ACHIEVEMENTS EXPRESSED OR IMPLIED BY SUCH FOR WARD-LOOKING
STATEMENTS. THE DISTRICT DOES NOT PLAN TO ISSUE ANY UPDATES OR
REVISIONS TO THE FORWARD-LOOKING STATEMENT SET FORTH IN THlS OFFICIAL
STATEMENT.
IN CONNECTION WITH THE OFFERING OF THE 2004 BONDS, THE
UNDERWRITER MAY OVERALLOT OR EFFECT TRANSACTIONS WHICH
STABILIZE OR MAINTAIN THE MARKET PRICE OF SUCH BONDS AT A LEVEL
ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH
STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
THE 2004 BONDS HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, IN RELIANCE UPON AN EXEMPTION CONTAINED IN
SUCH ACT. THE 2004 BONDS HAVE NOT BEEN REGISTERED OR QUALIFIED
UNDER THE SECURITIES LAWS OF ANY STATE.
DOCSOC\I 018657v7\22245.0139 q-
DOCSOCII 018657v7/22245-0l39
TABLE OF CONTENTS
Page
INTRODUCTION..................................................................................................................................1
General.............................................................................................................................................1
The District """""""""""""""""""""""""""""'".........................................................................1
Sources of Payment for the Bonds...................................................................................................3
Description of the Bonds """"""""""""""""""""""""""""'"......................................................5
Tax Matters ...................................................,..................................................................................5
Professionals Involved in the Offering ............................................................................................5
Continuing Disclosure """"""""""""""""""""""""""""'"..........................................................6
Bond Owners' Risks ............................................................""""""""""""""""""""""""""""""6
Forward Looking Statements...........................................................................................................6
Other Information .............................................."............................................................................ 7
ESTIMATED SOURCES AND USES OF FUNDS.............................................................................. 7
THE 2004 BONDS ...............................................................""""""""""""""""""""""""""""""'"..8
Authority for Issuance........................................................."""""""""""""""""""""""""""""'"8
Purpose of the 2004 Bonds ..............................................................................................................8
Description of the Bonds .................................................................................................................8
Redemption of Bonds ......................................................................................................................9
Notice and Selection of Bonds for Redemption............................................................................. 1 0
Notice of Redemption.................................................. ..................................................................11
Effect of Redemption..................................................... """""""""""""""""""""""""""""'"...11
Transfer and Exchange of Bonds..................................................................................... ..............12
Debt Service Schedule for the 2004 Bonds ...................................................................................13
SOURCES OF PAYMENT FOR THE BONDS .................................................................................13
Limited Obligations """""""""""""""""""""""""""'""""""""""""""""""""""""""""""'".13
Special Taxes """"""""""""""""""""""""""""'"""""""""""""""""""""""""""""""..........14
Reserve Fund .................................................................................................................................20
Issuance of Parity Bonds................................................................................................................20
THE COMMUNITY FACILITIES DISTRICT...................................................................................20
General Description of the District ................................................................................................20
Description of Authorized Facilities..............................................................................................21
Status of Facilities.............................................. """"""""""""""""""""""""""""'".................22
Principal Taxpayers .......................................................................................................................23
Estimated Direct and Overlapping Indebtedness ...........................................................................24
Expected Tax Burden...................................................."""""""""""""""""""""""""""""""".26
Estimated Value-to-Lien Ratios.....................................................................................................27
Permitted Land Use...............................................................................,........................................30
THE DEVELOPMENT AND PROPERTY OWNERSHIP ................................................................32
General Description and Location of the District ..........................................................................32
The Developer................................................................................................................................33
Development Plan........................................................"""""""""""""""""""""""""""""........33
Development Status ..............................................................""'.................................................,..35
Financing Plan """"""""""""""""""""""""""""""""""""""""""""""""""""""""""".........37
Status of Entitlement Approvals ......................."...........................................................................40
Environmental Constraints................................................"""""""""""""""""""""""""""".....41
Infrastructure Requirements and Construction Status ...................................................................41
Potential Limitations on Development """"""""""""""""""""""""""""""..............................41
Appraisal...........................................................,............................................................................43
Market Absorption Study...............................................................................................................44
-i-
DOCSOCII OIS657v7\22245.0139
DOCSOCII 018657v7/22245-0l39
SPECIAL RISK FACTORS.................................................................................................................45
Concentration of Ownership ..........................................................................................................45
Limited Obligations .......................................................................................................................46
Insufficiency of Special Taxes.............,.........................................................................................46
Special Tax Delinquencies.............................................................................................................46
Failure to Develop Properties ........................................................................................................47
Future Land Use Regulations and Growth Control Initiatives ......................................................48
Water Availability..........................................................................................................................49
Endangered Species .......................................................................................................................49
Natural Disasters............................................................................................................................50
Hazardous Substances....................................................................................................................50
Parity Taxes, Special Assessments and Land Development Costs................................................51
Disclosures to Future Purchasers .................................................................""""""""""""""""" 51
Non-Cash Payments of Special Taxes ...........................................................................................52
Payment of the Special Tax is not a Personal Obligation of the Owners ......................................52
Land Values ...................................................................................................................................52
Terrorism........................................................................................................................................53
FDIClFederal Government Interests in Properties.........................................................................54
Bankruptcy and Foreclosure ..........................................................................................................54
No Acceleration Provision.............................................................................................................56
Loss of Tax Exemption..................................................................................................................56
Limitations on Remedies ...............................................................................................................56
Limited Secondary Market ............................................................................................................56
Proposition 218..............................................................................................................................57
Ballot Initiatives.............................................................................................................................58
CONTINUING DISCLOSURE...........................................................................................................58
TAX MATTERS..................................................................................................................................59
CIRCULAR 230 DISCLOSURE.........................................................................................................60
Proposed Regulations: Potential Change in Form of Bond Counsel Opinion ..............................60
LEGAL MATTERS .............................................................................................................................61
LITIGATION .......................................................................................................................................61
NO RATING ........................................................................................................................................62
UNDERWRITING...............................................................................................................................62
FINANCIAL INTERESTS ..................................................................................................................62
PENDING LEGISLATION .................................................................................................................62
ADDITIONAL INFORMATION ........................................................................................................63
APPENDIX A RATE AND METHOD OF APPORTIONMENT OF SPECIAL T AX...............A-1
APPENDIX B SUMMARY OF MARKET ABSORPTION STUDY.........................................B-l
APPENDIX C APPRAISAL REPORT ........................................................................................C-I
APPENDIX 0 INFORMATION REGARDING THE CITY OF CHULA VISTA .....................D-l
APPENDIX E SUMMARY OF INDENTURE ...........................................................................E-l
APPENDIX F CONTINUING DISCLOSURE AGREEMENT OF THE DISTRICT """""""" F-I
APPENDIX G CONTINUING DISCLOSURE AGREEMENT OF THE DEVELOPER...........G-l
APPENDIX H FORM OF OPINION OF BOND COUNSEL .....................................................H-I
APPENDIX I DTC AND THE BOOK ENTRY SYSTEM ......................................................... I-]
-ii- q '11
DOCSOC\1 018657v7\22245.0 139
DOCSOC/] 018657v7/22245-0 ]39
~ un_- -
[AERIAL PHOTO]
DOCSOC\IOI8657v7\22245.0139 q 0
DOCSOC/IOI8657v7122245-0J39 . - ()
$27,970,000'
CITY OF CHULA VISTA
COMMUNITY FACILITIES DISTRICT NO. 07-1
(OTAY RANCH VILLAGE ELEVEN)
2004 SPECIAL TAX BONDS
INTRODUCTION
General
This introduction is not a summary of this Official Statement. It is only a brief description of
and guide to, and is qualified by, more complete and detailed information contained in the entire
Official Statement and the documents summarized or described herein. A full review should be
made of the entire Official Statement. The sale and delivery of the 2004 Bonds to potential investors
is made only by means of the entire Official Statement. All capitalized terms used in this Official
Statement and not defined shall have the meaning set forth in Appendix A - "RATE AND
METHOD OF APPORTIONMENT OF SPECIAL TAXES" or Appendix E - "SUMMARY OF
INDENTURE" herein.
The purpose of this Official Statement, which includes the cover page, the table of contents
and the attached appendices (collectively, the "Official Statement"), is to provide certain information
concerning the issuance of the $27,970,000' City of Chula Vista Community Facilities District
No. 07-1 (Otay Ranch Village Eleven) 2004 Special Tax Bonds (the "2004 Bonds"). The proceeds of
the 2004 Bonds will be used to construct and acquire various public improvements needed with
respect to the proposed development within Community Facilities District No. 07-1 (Otay Ranch
Village Eleven) (the "District") formed by the City of Chula Vista (the "City"), to fund the Reserve
Fund securing the 2004 Bonds, to pay costs of administration and issuance of the 2004 Bonds and to
pay a portion of capitalized interest on the 2004 Bonds through September 1, 2005.
The 2004 Bonds are authorized to be issued pursuant to the Act (as defined herein) and a
Bond Indenture (the "Indenture") dated as of May I, 2004, by and between the District and U.S.
Bank National Association (the "Fiscal Agent"). The 2004 Bonds are secured under the Indenture by
a pledge of and lien upon Special Tax Revenues and all moneys in the funds and accounts under the
Indenture other than the Rebate Fund, the Project Fund, the Cost of Issuance Fund and the
Administrative Expense Fund.
The District
Formation Proceedings. The District has been formed by the City pursuant to the Mello-
Roos Community Facilities Act of 1982, as amended (Sections 53311 et seq. of the Government
Code of the State of California) (the "Act"), and the City of Chula Vista Community Facilities
District Ordinance. The City Council of the City acts as legislative body ofthe District.
The Act was enacted by the California legislature to provide an alternative method of
financing certain public capital facilities and services, especially in developing areas of the State.
Any local agency (as defined in the Act) may establish a community facilities district to provide for
and finance the cost of eligible public facilities and services. Generally, the legislative body of the
Preliminary, subjecllo change.
I
DOCSOCIlOI8657v7\22245.0139
DOCSOC/I 018657v7/22245-0l39
.- - ----.------- ..-
local agency which fonns a community facilities district acts on behalf of such district as its
legislative body. Subject to approval by two-thirds of the votes cast at an election and compliance
with the other provisions of the Act, a legislative body of a local agency may issue bonds for a
community facilities district and may levy and collect a special tax within such district to repay such
indebtedness.
Pursuant to the Act, the City Council adopted the necessary resolutions stating its intent to
establish the District, to authorize the levy of Special Taxes on taxable property within the
boundaries of the District, and to have the District incur bonded indebtedness for the purpose of
financing an authorized list of facilities. Following public hearings conducted pursuant to the
provisions of the Act, the City Council adopted resolutions establishing the District, and calling a
special election to submit the levy of the Special Taxes and the incurring of bonded indebtedness to
the qualified voters of the District. On November 12, 2003, at an election held pursuant to the Act,
the landowners who comprised the qualified voters of the District authorized the District to incur
bonded indebtedness in the aggregate principal amount not to exceed $45,000,000 to be secured by
the levy of Special Taxes (defined below) on taxable property within the District. The 2004 Bonds
represent the first series of bonds to be issued pursuant to such authorization. On November ]2,
2003, the landowners within the District approved the rate and method of apportionment of the
Special Taxes on land within the District (the "Special Taxes") to pay the principal of and interest on
the bonds of the District. The rate and method of apportionment of special tax (the "Rate and
Method") is set forth in Appendix A hereto. The facilities authorized to be financed by the District
are referenced to herein as the "Facilities." See "THE COMMUNITY FACILITIES DISTRICT-
Description of Authorized Facilities."
Description and Development. The District consists of approximately 489 gross acres and is
located approximately 3 miles east of Interstate 805 at the south side of Olympic Parkway between
Hunte Parkway and Eastlake Parkway. The District is divided into 25 residential planning areas and
one mixed-use planning area. The District is located in the newly developing eastern portion of the
City and is bounded to the north by Olympic Parkway and the previously developed villages of
Eastlake Greens, to the west by Eastlake Parkway, undeveloped commercial lands and Village Six of
The Otay Ranch, and to the south and east by Hunte Parkway, beyond which are undeveloped lands.
The land use entitlements for the District penn it development in sub-areas known as
"planning areas." The District has been divided into 25 residential planning areas and one mixed-use
planning area. Based on current land use approvals and projections, the land within the planning
areas is expected to be developed into l,lOl single family detached "fee simple" units, 1,164 single
family attached and detached "condominium" units and a multi-use area containing commercial uses
and] 15 of the single family attached units accounted for above. See "THE DEVELOPMENT AND
PROPERTY OWNERSH]P - Potential Limitations on Development."
The Developer plans to complete land development in the District in three phases. The
grading within Phase 1 is complete, and construction of both the backbone infrastructure and the
intract infrastructure is essentially complete with the exception of landscaping and entry monuments.
Grading in Phases 2 and 3 is in progress and scheduled for completion in 2004. For a more detailed
description of development activity within the District, see "THE COMMUNITY FAC]LITIES
DISTR]CT ~ Status of Facilities."
Developer. The master developer of the property in the District is Brookfield Shea Otay
LLC, a California limited liability company (the "Developer"). The Developer has two members,
2
DOCSOCIIO18657v7\22245.0139
DOCSOCII 0 1 8657v7/22245-0 139
Brookfield Otay LLC and Shea Otay Village II LLc. For certain infonnation concerning the
Developer, see "THE DEVELOPMENT AND PROPERTY OWNERSHIP - The Developer."
The Developer purchased the land within the District in May 2000. The Developer has
distributed 8 of the planning areas to its members, who have, in turn, contributed the planning areas
to various related entities. The land currently owned by the related entities is proposed to be
developed with 598 single family detached units and 123 single family attached units. The
remaining land within the District is currently owned by the Developer and is expected to be
developed into 768 single family detached units, 661 single family attached units and a mixed-use
area containing commercial uses and 115 single family attached units. See "THE DEVELOPMENT
AND PROPERTY OWNERSHIP - Development Plan" and "- Developer Related Entities."
Appraisal. Bruce W. Hull & Associates, Inc. (the "Appraiser") has conducted an appraisal
(the "Appraisal") ofthe land within the District and has concluded, based upon the assumptions and
limiting conditions contained in the Appraisal that as of December 1,2003, the aggregate value of
such land was $209,762,000. The Meyers Group (the "Market Absorption Consultant") has prepared
a Market Analysis and Absorption Projection report dated December], 2003 (the "Market
Absorption Study") for the purpose of developing a build-out projection for the 1,366 single family
detached lots and 899 single family attached units planned in the District. The Market Absorption
Study concludes that the residential units within the District should be built-out and sold-out in the
2004 to 2007 period assuming continued development with no unanticipated delays in construction
and with competitive pricing of the units. See "THE DEVELOPMENT AND PROPERTY
OWNERSHIP - Appraisal" and "- Market Absorption Study," Appendix B - "SUMMARY OF
MARKET ABSORPTION STUDY" and Appendix C - "APPRAISAL REPORT."
Monitoring Program. Based on a 2003 traffic study, the City has implemented a building
penn it monitoring program for a number of projects in The Otay Ranch, including those within the
District. The Developer and the City have entered into Monitoring Agreement which provides that
up to 378 building penn its may be issued for units within the District between April ], 2003 and
March 31,2004,568 penn its between April I, 2004 and March 31,2005 and 492 pennits between
April], 2005 and March 31, 2006. It is possible that the City could impose further controls on the
issuance of building permits under its Growth Management Ordinance for those units covered by the
Monitoring Agreement, as well as for the 827 units not covered by the Monitoring Agreement. The
Monitoring Agreement also conditions the release of certain building pennits on construction by the
Developer of certain roadway improvements. See "THE DEVELOPMENT AND PROPERTY
OWNERSHIP - Potential Limitations on Development. The Market Absorption Consultant has
concluded that, under current market conditions, the proposed units in the District could be absorbed
more quickly than is currently allowed under the Monitoring Agreement. The Appraisal and the
Market Absorption Study assume that building penn its will be made available as set forth in the
Monitoring Agreement. See "THE DEVELOPMENT AND PROPERTY OWNERSHIP -
Appraisal" and "- Market Absorption Study."
Sources of Payment for the Bonds
Special Taxes. As used in this Official Statement, the tenD "Special Tax" is that tax which
has been authorized pursuant to the Act to be levied against certain land within the District pursuant
to the Act and in accordance with the Rate and Method. See "SOURCES OF PAYMENT FOR THE
BONDS - Special Taxes" and Appendix A - RATE AND METHOD OF APPORTIONMENT OF
SPECIAL TAX." Under the Indenture, the District has pledged to repay the 2004 Bonds from the
3
DOCSOC\I 018657v7\22245.0 139
DOCSOCII 018657v7/22245-0 139 Cj-g3
Special Tax Revenues remaining after the funding of the annual Administrative Expense
Requirement of $75,000 and amounts on deposit in the funds and accounts established under the
Indenture other than the Project Fund, the Rebate Fund, the Cost of Issuance Fund and the
Administrative Expense Fund. Special Tax Revenues are defined in the Indenture to include the
proceeds of the Special Taxes received by the District, including any scheduled payments and
prepayments thereof, interest and penalties thereon and the proceeds of the redemption or sale of
property sold as a result of foreclosure of the lien of the delinquent Special Taxes in the amount of
said lien and interest and penalties thereon.
The Special Taxes are the primary security for the repayment of the 2004 Bonds. In the
event that the Special Taxes are not paid when due, the only sources of funds available to pay the
debt service on the 2004 Bonds are certain amounts held by the Fiscal Agent, including amounts held
in the Reserve Fund. See "SOURCES OF PAYMENT FOR THE BONDS - Reserve Fund."
Foreclosure Proceeds. The District has covenanted for the benefit of the owners of the 2004
Bonds that it will commence, and diligently pursue to completion, judicial foreclosure proceedings
against Assessor's Parcels under common ownership with delinquent Special Taxes in the aggregate
in excess of $5,000 by the October I following the close of the fiscal year in which such Special
Taxes were due, and it will commence and diligently pursue to completion judicial foreclosure
proceedings against all Assessor's Parcels under common ownership with delinquent Special Taxes
in the aggregate in excess of $2,500 by the October I following the close of any fiscal year if the
amount in the Reserve Fund is less than the Reserve Requirement. See "SOURCES OF PAYMENT
FOR THE BONDS - Proceeds of Foreclosure Sales" herein. There is no assurance that the
property within the District can be sold for the appraised or the assessed values described herein, or
for a price sufficient to pay the principal of and interest on the 2004 Bonds in the event of a default in
payment of Special Taxes by the current or future landowners within the District. See "SPECIAL
RISK FACTORS - Land Values" and Appendix C - "SUMMARY APPRAISAL REPORT"
herein.
EXCEPT FOR THE SPECIAL TAXES, NO OTHER TAXES ARE PLEDGED TO
THE PAYMENT OF THE 2004 BONDS. THE 2004 BONDS ARE NOT GENERAL OR
SPECIAL OBLIGATIONS OF THE CITY NOR GENERAL OBLIGATIONS OF THE
DISTRICT, BUT ARE SPECIAL OBLIGATIONS OF THE DISTRICT PAYABLE SOLELY
FROM SPECIAL TAXES AND AMOUNTS HELD UNDER THE INDENTURE AS MORE
FULLY DESCRIBED HEREIN.
Parity Bonds and Liens. The District may, without the consent of the Owners of the 2004
Bonds, issue additional indebtedness secured by the Special Taxes on a parity with the 2004 Bonds
(the "Parity Bonds" and together with the 2004 Bonds, the "Bonds") pursuant to the requirements set
forth in the Indenture and for the purpose of (i) funding additional Facilities, or (ii) refunding
Outstanding Bonds where such refunding results in a decrease in the total debt service due in any
Bond Year on all Outstanding Bonds of the District. See "SOURCES OF PAYMENT FOR THE
BONDS - Issuance of Parity Bonds" and Appendix B - "SUMMARY OF INDENTURE -
Conditions for the Issuance of Parity Bonds." Other taxes and/or special assessments with liens
equal in priority to the continuing lien of the Special Taxes may also be levied on the property within
the District, which could adversely affect the willingness ofthe landowners to pay the Special Taxes
when due. See "SPECIAL RISK FACTORS - Parity Taxes, Special Assessments and Land
Development Costs" herein.
4
DOCSOC\! 018657v7\22245.0139
DOCSOC/1 0 18657v7/22245-0 139 q/
Description of the Bonds
The Bonds of each series will be issued in the form of a single, fully registered Bonds for
each maturity, registered in the name of Cede & Co. as nominee of The Depository Trust Company,
New York, New York ("DTC"), and will be available to actual purchasers of the Bonds of each
series (the "Beneficial Owners") in the denominations of $5,000 or any integral multiple thereof,
under the book-entry system maintained by DTC, only through brokers and dealers who are or act
through DTC Participants as described herein. Beneficial Owners will not be entitled to receive
physical delivery of the Bonds. In the event that the book-entry-only system described herein is no
longer used with respect to the Bonds, the Bonds will be registered and transferred in accordance
with the Indenture. See Appendix I - "DTC AND THE BOOK ENTRY SYSTEM."
Principal of, premium, if any, and interest on the Bonds is payable by the Fiscal Agent to
DTC. Disbursement of such payments to DTC Participants is the responsibility of DTC and
disbursement of such payments to the Beneficial Owners is the responsibility of DTC Participants.
In the event that the book-en try-only system is no longer used with respect to the Bonds, the
Beneficial Owners will become the registered owners of the Bonds and will be paid principal and
interest by the Fiscal Agent, all as described herein. See "BOOK-ENTRY-ONL Y SYSTEM" herein.
The 2004 Bonds are subject to optional redemption, extraordinary mandatory redemption and
mandatory sinking fund redemption as described herein. For a more complete description of the
2004 Bonds and the basic documentation pursuant to which they are being sold and delivered, see
"THE BONDS" and Appendix E - "SUMMARY OF INDENTURE" herein.
Tax Matters
In the opinion of Bond Counsel, based on an analysis of existing laws, regulations, rulings
and court decisions, and assuming, among other matters, compliance with certain covenants, interest
on the Bonds is excluded from gross income for federal income tax purposes under Section 103 of
the Internal Revenue Code of 1986 and is exempt from State of California personal income taxes. In
the further opinion of Bond Counsel, interest on the Bonds is not a specific preference item for
purposes of federal individual or corporate alternate minimum taxes, although Bond Counsel
observes that such interest is included in adjusted current earnings in calculating federal corporate
alternative minimum taxable income. Bond Counsel expresses no opinion regarding any other
federal or state income tax consequences relating to the ownership or disposition of, or the accrual or
receipt of interest on, the Bonds. See "TAX MATTERS" herein.
Professionals Involved in the Offering
U.S. Bank National Association will act as Fiscal Agent under the Indenture and as the initial
Dissemination Agent under the Developer Continuing Disclosure Agreements to be entered into by
the Developer and Shea Homes Limited Partnership, a Nevada limited partnership ("Shea Homes").
See Appendix G. Stone & Youngberg LLC is the Underwriter of the 2004 Bonds. All proceedings
in connection with the issuance and delivery of the 2004 Bonds are subject to the approval of Best
Best & Krieger LLP, San Diego, Bond Counsel. Fieldman, Rolapp & Associates is acting as
Financial Advisor to the City in connection with the 2004 Bonds. Certain legal matters will be
passed upon for the City and the District by the City Attorney. Certain legal matters will be passed
upon for the Underwriter by Stradling Yocca Carlson & Rauth, a Professional Corporation, Newport
Beach, California, as Underwriter's Counsel. Other professional services have been performed by
5
DOCSOCl1 018657v7122245.0139
DOCSOC/l 0 1 8657v7/22245-0 139 1-85
McGill Martin Self, Inc. as Special Tax Consultant, Bruce W. Hull & Associates, Inc. as Appraiser,
and The Meyers Group, as Market Absorption Consultant.
For information concerning the respects in which certain of the above-mentioned
professionals, advisors, counsel and agents may have a financial or other interest in the offering of
the 2004 Bonds, see "FINANCIAL INTERESTS" herein.
Continuing Disclosure
Each of the District, the Developer and Shea Homes has agreed to provide, or cause to be
provided, to each nationally recognized municipal securities information repository and any public or
private repository or entity designated by the State as a state repository for purposes of
Rule 15c2-12(b)(5) adopted by the Securities and Exchange Commission certain financial
information and operating data and notices of certain material events. These covenants have been
made in order to assist the Underwriter in complying with Rule 15c2-12(b )(5). See "CONTINUING
DISCLOSURE" herein and Appendix F and Appendix G hereto for a description of the specific
nature of the reports and notices of material events to be filed by the District, the Developer and Shea
Homes.
Bond Owners' Risks
Certain events could affect the timely repayment of the principal of and interest on the Bonds
when due. See the section of this Official Statement entitled "SPECIAL RISK FACTORS" for a
discussion of certain factors which should be considered, in addition to other matters set forth herein,
in evaluating an investment in the 2004 Bonds. The 2004 Bonds are not rated by any nationally
recognized rating agency. The purchase of the 2004 Bonds involves significant risks, and the 2004
Bonds are not suitable investments for all investors. See "SPECIAL RISK FACTORS" herein.
Forward Lookiug Statements
Certain statements included or incorporated by reference in this Official Statement constitute
"forward-looking statements" within the meaning of the United States Private Securities Litigation
Reform Act of 1995, Section 21E of the United States Securities Exchange Act of 1934, as amended,
and Section 27 A of the United States Securities Act of 1933, as amended. Such statements are
generally identifiable by the terminology used such as "plan," "expect," "estimate," "project,"
"budget" or other similar words. Such forward-looking statements include, but are not limited to,
certain statements contained in the information under the caption "THE COMMUNITY
FACILITIES DISTRICT" and "THE DEVELOPMENT AND PROPERTY OWNERSHIP."
THE ACHIEVEMENT OF CERTAIN RESULTS OR OTHER EXPECTATIONS
CONTAINED IN SUCH FORWARD-LOOKING STATEMENTS INVOLVE KNOWN AND
UNKNOWN RISKS, UNCERTAINTIES AND OTHER FACTORS WHICH MAY CAUSE
ACTUAL RESULTS, PERFORMANCE OR ACHIEVEMENTS DESCRIBED TO BE
MA TER1ALL Y DIFFERENT FROM ANY FUTURE RESULTS, PERFORMANCE OR
ACHIEVEMENTS EXPRESSED OR IMPLIED BY SUCH FORWARD-LOOKING
STATEMENTS. THE DISTRICT DOES NOT PLAN TO ISSUE ANY UPDATES OR
REVISIONS TO THE FORWARD-LOOKING STATEMENTS SET FORTH IN THIS OFFICIAL
STATEMENT.
6
DOCSOCI! O18657v7\22245.0J39 q~g(¡;
DOCSOC/I O18657v7/22245-0 139
Other Information
This Official Statement speaks only as of its date, and the information contained herein is
subject to change.
Brief descriptions of the 2004 Bonds and the Indenture are included in this Official
Statement. Such descriptions and information do not purport to be comprehensive or definitive. All
references herein to the Indenture, the 2004 Bonds and the constitution and laws of the State as well
as the proceedings of the City Council, acting as the legislative body of the District, are qualified in
their entirety by references to such documents, laws and proceedings, and with respect to the 2004
Bonds, by reference to the Indenture. Capitalized terms not otherwise defined herein shall have the
meanings set forth in the Indenture.
Copies of the Indenture, the Continuing Disclosure Agreements and other documents and
information referred to herein are available for inspection and (upon request and payment to the City
of a charge for copying, mailing and handling) for delivery from the City at 276 Fourth Avenue,
Chula Vista, CA 91910, Attention: Director of Finance.
ESTIMATED SOURCES AND USES OF FUNDS.
The following table sets forth the expected uses of 2004 Bond proceeds:
Sources of Fnnds
Principal Amount of Bonds $
TOTAL SOURCES $
Uses of Funds
Interest Account(l) $
Acquisition Account(2)
Traffic Enhancement Improvement Account(2)
Public Facilities Account(2)
Reserve Fund
Cost of Issuance Fund
Underwriter's Discount
Administrative Expense Fund
TOTAL USES $
(I) Represents gross funded capitalized interest on the 2004 Bonds through September 1, 2004 and a portion of the 2004 Bonds
(2) through September I, 2005.
The Acquisition Account, Traffic Enhancement Improvement Account and Public Facilities Improvement Account are
established in the Project Fund.
Prehminary. subject 10 change.
7
DOCSOCII 0 18657v7\22245.0 [39 q-K'7
DOCSOC/I 0 l8657v7/22245-0 139
THE 2004 BONDS
Autbority for Issuance
The 2004 Bonds in the aggregate principal amount of $27,970,000' are authorized to be
issued by the District under and subject to the terms of the Indenture, the Act and other applicable
laws of the State of California.
Purpose oftbe 2004 Bonds
The 2004 Bonds are being issued to provide funds to: (i) finance the costs of constructing
and acquiring certain public facilities related to the proposed development within the District (See
"THE COMMUNITY FACILITIES DISTRICT - Description of Authorized Facilities"); (ii) pay
costs related to the administration and issuance of the 2004 Bonds; (iii) fund the Reserve for the 2004
Bonds in the initial amount of $2,012,172'; and (iv) gross fund a portion of capitalized interest on the
2004 Bonds through September 1,2005. See "ESTIMATED SOURCES AND USES OF FUNDS."
Description of the Bonds
The Bonds of each series will be issued in fully registered form in denominations of $5,000
and any integral multiple thereof and shall be nwnbered as desired by the Fiscal Agent. The Bonds
of each series shall be dated the date of delivery of such series. The Bonds will be issued in book-
entry only form and DTC will act as securities depository for the Bonds. So long as the Bonds are
held in book-entry only form, principal of, premiwn, if any, and interest on the Bonds will be paid
directly to DTC for distribution to the beneficial owners of the Bonds in accordance with the
procedures adopted by DTc. See Appendix I - "DTC AND THE BOOK ENTRY ONLY
SYSTEM." The 2004 Bonds will mature on September 1, in the principal amounts and years, and
bearing rates of interest, as shown on the inside cover of this Official Statement and each series of
Bonds shall mature and be payable in the years and in the aggregate principal amounts and shall bear
interest at the rates set forth in the supplemental indenture providing for the issuance of such series of
the Bonds.
Interest on the 2004 Bonds will be payable semiannually on March I and September 1 of
each year commencing September 1, 2004 (each, an "Interest Payment Date") and will be computed
on the basis of a 360-day year comprised of twelve 30-day months. Each Bond will bear interest
from the Interest Payment Date next preceding the date of authentication, thereof, unless (i) such date
of authentication is an Interest Payment Date, in which event interest shall be payable from such date
of authentication, (ii) the date of authentication is after a Record Date but prior to the immediately
succeeding Interest Payment Date, in which event interest shall be payable from the Interest Payment
Date immediately succeeding the date of authentication or (iii) the date of authentication is prior to
the close of business on the first Record Date, in which event interest shall be payable from the date
of the Bonds; provided, however, that if at the time of authentication of a Bond, interest is in default,
interest on that Bond shall be payable from the last Interest Payment Date to which the interest has
been paid or made available for payment.
Interest on any Bond shall be paid to the person whose name shall appear in the books of
registration as the owner of such Bond as of the close of business on the Record Date immediately
preceding such Interest Payment Date. Such interest shall be paid by check of the Fiscal Agent
. Prehminary, subject to change.
8
DOCSOC\IOI8657v7\22245.0139
DOCSOC/I 018657v7/22245-0 139
mailed to such Bondowner at his or her address as it appears on the books of registration or, upon the
request in writing prior to the Record Date of a Bondowner of at least $1,000,000 in aggregate
principal amount of Bonds, by wire transfer in immediately available funds to an account in the
United States designated by such Owner.
Redemption of Bonds
Optional Redemption. The 2004 Bonds maturing on and after September I, 20- may be
redeemed at the option of the District prior to maturity as a whole or in part on any Interest Payment
Date on and after September 1, 20_, from such maturities as are selected by the District, and by lot
within a maturity, from any source of funds, at the following redemption prices (expressed as
percentages of the principal amount of the 2004 Bonds to be redeemed), together with accrued
interest to the date of redemption:
Redemption Date Redemption Price
September 1, 20- and March 1,20- 102%
September 1,20- and March 1,20- 101%
September 1, 20- and thereafter 100%
Extraordinary Mandatory Redemption from Special Tax Prepayment. The 2004 Bonds are
subject to redemption on any Interest Payment Date, prior to maturity, as a whole or in part on a pro
rata basis among maturities from amounts deposited to the Redemption Fund in connection with a
prepayment of Special Taxes pursuant to the Rate and Method. Such extraordinary mandatory
redemption of the 2004 Bonds shall be at the following redemption prices (expressed as percentages
of the principal amount of the 2004 Bonds to be redeemed), together with accrued interest thereon to
the date of redemption:
Redemption Date Redemption Price
Interest Payment Dates through March I, 20- %
September 1,20- and March 1,20-
September 1,20- and March 1,20-
September I, 20- and thereafter
See "SOURCES OF PAYMENT FOR THE BONDS - Special Taxes - Prepayment of Special
Taxes" and Section - of Appendix A for a description of how a property owner may prepay, or wiII
be required to prepay, Special Taxes.
Mandatory Sinking Fund Redemption. The 2004 Bonds maturing on September I, 2026' are
subject to mandatory sinking fund redemption, in part, by lot, on September 1 in each year
commencing September I, 20- at a redemption price equal to the principal amount of the 2004
Bonds to be redeemed, plus accrued and unpaid interest thereon to the date fixed for redemption,
without premium, in the aggregate principal amounts and in the years shown on the following
redemption schedule.
Preliminary, subject to change.
9
DOCSOC\1 018657v7\22245.0139
DOCSOC/1 018657v7122245-0 139
Redemption Date Principal
(September 1) Amount
$
The 2004 Bonds maturing on September I, 2034' are subject to mandatory sinking fund
redemption, in part, by lot, on September I in each year commencing September 1, 20_, at a
redemption price equal to the principal amount of the 2004 Bonds to be redeemed, plus accrued and
unpaid interest thereon to the date fixed for redemption, without premium, in the aggregate principal
amounts and in the years shown on the following redemption schedule.
Redemption Date Principal
(September 1) Amount
$
In the event of a partial optional redemption or extraordinary mandatory redemption of the
2004 Bonds, each of the remaining mandatory sinking fund payments for such Bonds, as applicable,
will be reduced, as nearly as practicable, on a pro rata basis.
Purchase in Lieu of Redemption. In lieu of such an optional, extraordinary mandatory or
mandatory sinking fund redemption, the District may elect to purchase such Bonds at public or
private sale at such prices as the District may in its discretion detennine; provided, that, unless
otherwise authorized by law, the purchase price (including brokerage and other charges) thereof shall
not exceed the principal amount thereof plus accrued interest to the purchase date.
Notice and Selection of Bonds for Redemption
In the event the District shall elect to redeem Bonds as provided in the Indenture, the District
shall give written notice to the Fiscal Agent of its election to so redeem, the redemption date, the
principal amount of the Bonds to be redeemed, the maturities from which such Bonds are to be
redeemed and the principal amount of the Bonds to be redeemed from each such maturity, the Bonds
or portions thereof to be selected for redemption.
The notice to the Fiscal Agent shall be given not less than 60 days prior to the redemption
date or such shorter period as shall be acceptable to the Fiscal Agent. If less than all of the Bonds
Outstanding are to be redeemed, the portion of any Bond of a denomination of more than $5,000 to
be redeemed shall be in the principal amount of $5,000 or a multiple thereof, and, in selecting
portions of such Bonds for redemption, the District shall treat each such Bond as representing that
. Preliminary, subjecllo change,
10
DOCSOCIlO18657v7\22245,O139
DOCSOC/I 018657v7/22245-0l39
number of Bonds of $5,000 denomination which is obtained by dividing the principal amount of such
Bond to be redeemed in part by $5,000.
Notice of Redemption
Notice by Mail to Registered Owners. The Fiscal Agent shall mail, at least 30 days but not
more than 45 days prior to the date of redemption, notice of intended redemption, by first-class mail,
postage prepaid, to the original purchasers of the Bonds and the respective registered Owners of the
Bonds at the addresses appearing on the Bond registry books. The notice of redemption shall state:
(a) the redemption date; (b) the redemption price; (c) the bond registration numbers, dates of maturity
and CUSIP numbers of the Bonds to be redeemed, and in the case of Bonds to be redeemed in part,
the respective principal portions to be redeemed; provided, however, that whenever any call includes
all Bonds of a maturity, the numbers of the Bonds of such maturity need not be stated; (d) that such
Bonds must be surrendered at the Principal Corporate Trust Office of the Fiscal Agent; (e) that
further interest on such Bonds will not accrue from and after the designated redemption date; (f) the
date of the issue of the Bonds as originally issued; (g) the rate of interest borne by each Bond being
redeemed; and (h) that any other descriptive infonnation needed to identify accurately the Bonds
being redeemed as the District shall direct.
Further Notice. Further notice ofredemption shall be sent at least two days before the notice
of redemption is mailed to the Bondholders, as described above, by registered or certified mail or
overnight delivery service to the registered securities depositories and to the national infonnation
services listed in the Indenture or, in accordance with the then-current guidelines of the Securities
and Exchange Commission, such other securities depositories and services providing infonnation on
called bonds, or such other securities depositories and services, as the District may detennine in its
sole discretion.
Failure to Receive Notice. So long as notice by first class mail has been provided as set forth
above, the actual receipt by the Owner of any Bond of notice of such redemption shall not be a
condition precedent to redemption, and failure to receive such notice shall not affect the validity of
the proceedings for redemption of such Bonds or the cessation of interest on the date fixed for
redemption.
Certificate of Giving Notice. The notice or notices described above shall be given by the
Fiscal Agent on behalf of the District. A certificate by the Fiscal Agent that notice of call and
redemption has been given to the registered Owners of the Bonds as herein provided shall be
conclusive against all parties, and no Owner whose Bond is called for redemption may object thereto,
or object to cessation of interest on the redemption date, by any claim or showing that he failed to
receive actual notice of call and redemption.
Notice from DTC to Beneficial Owners. So long as the Bonds are held in book-entry-fonn,
notice of redemption will be sent by the Fiscal Agent only to DTC or its nominee. Conveyance of
redemption notice by DTC to Beneficial Owners is detennined by DTC and its participants and is not
the responsibility of the District. See Appendix 1- "DTC AND THE BOOK ENTRY SYSTEM."
Effect of Redemption
When notice of redemption has been given, and when the amount necessary for the
redemption of the Bonds called for redemption is set aside for that purpose in the Redemption Fund,
II
DOCSOC\IOI8657v7\22245.0139 q-q¡
DOCSOCII OJ 8657v7/22245-0l39
the Bonds designated for redemption shall become due and payable on the date fixed for redemption
thereof, and upon presentation and surrender of said Bonds at the place specified in the notice of
redemption, with the form of assignment endorsed thereon executed in blank, said Bonds shall be
redeemed and paid at the redemption price out of the Redemption Fund and no interest will accrue on
such Bonds or portions of Bonds called for redemption ¡¡-om and after the redemption date specified
in said notice, and the Owners of such Bonds so called for redemption after such redemption date
shall look for the payment of principal and premium, if any, of such Bonds or portions of Bonds only
to said Redemption Fund.
All Bonds redeemed shall be canceled forthwith by the Fiscal Agent and shall not be
reissued. Upon surrender of Bonds redeemed in part, a new Bond or Bonds of the same maturity
shall be registered, authenticated and delivered to the registered Owner at the expense of the District,
in the aggregate principal amount of the unredeemed portion. All unpaid interest payable at or prior
to the date fixed for redemption shall continue to be payable to the respective registered owners of
such Bonds or their order, but without interest thereon.
Transfer and Exchange of Bonds
There shall be kept by the Fiscal Agent, sufficient books for the registration and transfer of
the Bonds and, upon presentation for such purpose, the Fiscal Agent shall, under such reasonable
regulations as it may prescribe, register or transfer or cause to be registered or transferred, on said
register, Bonds. The ownership of the Bonds shall be established by the Bond registration books
held by the Fiscal Agent. Whenever any Bond or Bonds shall be surrendered for registration of
transfer or exchange, the Fiscal Agent shall authenticate and deliver a new Bond or Bonds of the
same maturity, for a like aggregate principal amount of authorized denominations; provided that the
Fiscal Agent shall not be required to register transfers or make exchanges of (i) Bonds for a period of
15 days next preceding the date of any selection of the Bonds to be redeemed, or (ii) any Bonds
chosen for redemption.
Bonds may be exchanged at the Principal Corporate Trust Office, for a like aggregate
principal amount of Bonds of authorized denominations, interest rate and maturity, subject to the
terms and conditions of the Indenture, including the payment of certain charges, if any, upon
surrender and cancellation of a Bond. Upon such transfer and exchange, a new registered Bond or
Bonds of any authorized denomination or denominations of the same maturity and for the same
aggregate principal amount will be issued to the transferee in exchange therefor.
The transfer of any Bond may be registered only upon such books of registration upon
surrender thereof to the Fiscal Agent, together with an assignment duly executed by the Owner or his
attorney or legal representative, in satisfactory form. Upon any such registration of transfer, a new
Bond or Bonds shall be authenticated and delivered in exchange for such Bond, in the name of the
transferee, of any denomination or denominations authorized by the Indenture, and in an aggregate
principal amount equal to the principal amount of such Bond or Bonds so surrendered. In all cases in
which Bonds shall be exchanged or transferred, the Fiscal Agent shall authenticate the Bonds in
accordance with the provisions of the Indenture. All Bonds surrendered in such exchange or transfer
shall forthwith be canceled. The Fiscal Agent may make a charge for every such exchange or
registration of transfer of Bonds sufficient to reimburse it for any tax or other governmental charge
required to be paid with respect to such exchange or registration or transfer.
12
DOCSOCII 018657v7\22245.0139
DOCSOCII 018657v7/22245-0 139
Debt Service Schedule for the 2004 Bonds'
Interest
Period Ending Principal on 2004 Total Debt Service
(September 1) on 2004 Bonds Bondsfl) on 2004 Bonds
2004 $ $ $
2005
2006
2007
2008
2009
2010
2011
2012
2013
2014
2015
2016
2017
2018
2019
2020
2021
2022
2023
2024
2025
2026
2027
2028
2029
2030
2031
2032
2033
2034
Total $ $ $
(I) All interest payable through September I, 2004, and a portion of interest payable through September I, 2005, will be paid
from 2004 Bond proceeds.
SOURCES OF PAYMENT FOR THE BONDS
Limited Obligations
The Bonds are special, limited obligations of the District payable only from amounts pledged
under the Indenture and from no other sources.
Prelim;nary, subJeClla change.
13 q
DOCSOCIJ 0 J 8657v7\22245.0 139
DOCSOC/l 018657v7/22245-0l39
The Special Taxes are the primary security for the repayment of the Bonds. Under the
Indenture, the District has pledged to repay the Bonds from the Special Tax Revenues remaining
after the funding of the annual Administrative Expense Requirement of $75,000 and from amounts
held in the funds and accounts under the Indenture, other than amounts held in the Project Fund, the
Rebate Fund, the Cost of Issuance Fund and the Administrative Expense Fund. Special Tax
Revenues are defined in the Indenture to include the proceeds of the Special Taxes received by the
District, including any scheduled payments and prepayments thereof, interest and penalties thereon,
the proceeds of the redemption of delinquent Special Taxes or sale of property sold as a result of
foreclosure of the lien of delinquent Special Taxes in the amount of said lien, and interest and
penalties thereon.
In the event that the Special Tax Revenues are not received when due, the only sources of
funds available to pay the debt service on the Bonds are amounts held by the Fiscal Agent, including
amounts held in the Reserve Account for each series of Bonds, for the exclusive benefit of the
Owners of the Bonds.
NEITHER THE FAITH AND CREDIT NOR THE TAXING POWER OF THE CITY,
THE COUNTY OF SAN DIEGO, THE STATE OF CALIFORNIA OR ANY POLITICAL
SUBDIVISION THEREOF IS PLEDGED TO THE PAYMENT OF THE BONDS. EXCEPT
FOR THE SPECIAL TAXES, NO OTHER TAXES ARE PLEDGED TO THE PAYMENT OF
THE BONDS. THE BONDS ARE NOT GENERAL OR SPECIAL OBLIGATIONS OF THE
CITY BUT ARE SPECIAL OBLIGATIONS OF THE DISTRICT PAYABLE SOLELY
FROM THE SPECIAL TAXES AND OTHER AMOUNTS PLEDGED UNDER THE
INDENTURE AS MORE FULLY DESCRIBED HEREIN.
Special Taxes
Authorization and Pledge. In accordance with the provisions of the Act, the City Council
established the District on November 11, 2003 for the purpose of financing the acquisition,
construction and installation of various public improvements to serve the District. At a special
election held on November 12, 2003, the owners of the property within the District authorized the
District to incur indebtedness secured by Special Taxes levied on property in the District in an
amount not to exceed $45,000,000, and approved the Rate and Method which authorized the Special
Tax to be levied to repay District indebtedness for the District, including the Bonds. See Appendix A
- "RATE AND METHOD OF APPORTIONMENT OF SPECIAL TAX."
The District has covenanted in the Indenture that each year (not later than the date required to
place the Special Tax levy on the real property tax roll) it will levy Special Taxes within the District
up to the maximum rates permitted under the Rate and Method in the amount sufficient for the
payment of principal of and interest on any Outstanding Bonds when due, to replenish the Reserve
Fund to the Reserve Requirement and to pay the Administrative Expenses when due.
The Special Taxes levied in any fiscal year may not exceed the maximum rates authorized
pursuant to the Rate and Method. See Appendix A - "RATE AND METHOD OF
APPORTIONMENT OF SPECIAL TAX" hereto. There is no assurance that the Special Tax
proceeds will, in all circumstances, be adequate to pay the principal of and interest on the Bonds
when due. See "SPECIAL RISK FACTORS -Insufficiency of Special Taxes" herein.
14
DOCSOC\1 018657v7\22245.0139
DOCSOC/1 0 18657v7/22245-01 39 -
Rate and Method. Under the Rate and Method, all Taxable Property within the District is to
be (a) categorized as being located in either Zone A or Zone B, (b) classified as Developed Property,
Approved Property, Undeveloped Property or Provisional Undeveloped Property and (c) subject to
the levy of annual Special Taxes as described below.
Under the Rate and Method, Developed Property is defined as 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. Developed Property is further classified as Residential Property,
Non-Residential Property or Mixed Use Property. Residential Property includes all Developed
Property for which a building permit has been issued for construction of buildings or structures for
use as residential dwelling units. Non-Residential Property includes all Developed Property for
which a building permit was issued for non-residential use, excluding Community Purpose Facility
Property. Mixed Use Property includes all Developed Property for which a building permit was
issued for both residential and non-residential uses.
The Rate and Method defines Undeveloped Property as all Taxable Property not classified as
Developed Property, Approved Property or Provisional Undeveloped Property. Approved Property
is defined as Taxable Property that (a) is included in an "A" Map or Final Subdivision Map recorded
prior to January I, 2005, and thereafter recorded prior to March 1 of the prior fiscal year in which the
Special Tax is being levied and (b) has not been issued a building permit prior to March I of the prior
fiscal year in which the Special Tax is being levied. Provisional Undeveloped Property is defined as
all Public Property, Property Owner Association Property, Community Purpose Facility Property,
Open Space or other property that would otherwise be classified as Exempt Property, but cannot be
classified as Exempt Property because to do so would reduce the acreage of all Taxable Property
below the required minimum acreage for Zone A or Zone B as applicable. See Appendix A -
"RATE AND METHOD OF APPORTIONMENT OF SPECIAL TAX" hereto.
The Maximum Annual Special Tax for each Assessor's Parcel of Residential Property, Non-
Residential Property and Mixed Use Property shall be the greater of (I) the Assigned Special Tax
described below or (2) the Backup Special Tax computed as described below.
The Assigned Special Tax for each Assessor's Parcel of Developed Property is shown in the
table below:
Assigned Annual Special Tax for Developed Property Within Zone A and Zone B
Land Use Class Description Assigned Annual Special Tax
I Residential Property $1,675 per unit
(0-8 units per acre)
2 Residential Property $1,340 per unit
(>8-20 units per acre)
3 Residential Property $1,005 per unit
(more than 20 units per acre)
4 Non-Residential Property $6,000 per Acre
The Assigned Special Tax for each Assessor's Parcel of Mixed Use Property will equal the
total of the Assigned Special Tax applicable if such parcel was classified only as Residential Property
and the Assigned Special Tax applicable if such parcel was classified as Non-Residential Property.
15
DOCSOC\1 018657v7\22245.0 139 q..
DOCSOC/1 018657v7/22245-0139
When a Final Subdivision Map is recorded within Zone A or Zone B, the Backup Special
Tax for Assessor's Parcels, classified as Residential Property, Non-Residential Property, Mixed Use
Property and Undeveloped Property shall be determined as described below:
For each Assessor's Parcel of Residential Property or Undeveloped Property and Approved
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 Dwelling Unit calculated according to the
following formula:
Zone A
B = $13,955 x A
U
Zone B
B = $24.218xA
U
The terms above have the following meanings:
B= Backup Special Tax per Dwelling Unit in each Fiscal Year.
A= Acreage classified or to be classified as Residential Property in such Final
Subdivision Map.
U= Number of Dwelling Units in the Final Subdivision Map which are classified
or expected to be classified as Residential Property.
For each Assessor's Parcel of Developed Property classified as Non-Residential Property, or
for each Assessor's Parcel of Approved Property or Undeveloped Property to be classified as Non-
Residential Property within the Final Subdivision Map area, the Backup Special Tax shall be
determined by multiplying $13,955 for Zone A and $24,218 for Zone B by the total Acreage of any
such Assessor's Parcel.
For each Assessor's Parcel of Mixed Use Property, the Backup Special Tax shall be
determined by multiplying $13,955 for Zone A and $24,218 for Zone B by the total Acreage of any
such Assessor's Parcel.
Notwithstanding the foregoing, if an Assessor's Parcel of Residential Property, Non-
Residential Property, Mixed Use Property, Approved Property or Undeveloped Property for which
the Backup Special Tax has been determined are subsequently changed or modified by recordation of
a new of 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.
The Maximum Annual Special Tax for each Assessor's Parcel of Approved Property shall be
$13,955 per acre for Zone A and $24,218 per acre for Zone B.
16
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The Maximum Annual Special Tax for each Assessor's Parcel classified as Undeveloped
Property or Provisional Undeveloped Property shall be $13,955 per acre for Zone A and $24,218 per
acre for Zone B.
Commencing with Fiscal Year 2004-05 and for each following Fiscal Year, the City Council
shall determine the Special Tax Requirement (as defined in the Rate and Method) 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 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 Approved Property at
a rate up to 100% of the Maximum Annual Special Tax for Approved Property.
Third: If additional monies are needed to satisfY the Special Tax Requirement after the first
two steps have 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.
Fourth: If additional monies are needed to satisfY the Special Tax Requirement after the first
three steps have been completed, then 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.
Fifth: If additional monies are needed to satisfy the Special Tax Requirement after the first
four 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.
Prepayment of Special Taxes. There are certain events that will result in a required
prepayment of Special Taxes as described in the following paragraph. In addition, under the Rate
and Method, the owner of any Developed Property, Undeveloped Property or Approved Property for
which a building permit has been issued, or Provisional Undeveloped Property, may prepay the
Special Tax obligation applicable to such parcel in whole or in part. Any required or voluntary
prepayment of Special Taxes will result in an extraordinary redemption of Bonds. See "THE
BONDS - Redemption - Extraordinary Mandatory Redemptionfrom Special Tax Prepayment."
A required prepayment of Special Taxes will occur on a parcel to the extent necessary to
comply with the City's policy that the total annual taxes and assessments on such a parcel, exclusive
of special taxes for services including City maintenance community facilities districts, will not
exceed two percent (2%) of the sales price of such a parcel to a residential homeowner. Pursuant to
17
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DQCSOC/l 018657v7/22245-0l39
the Acquisition Financing Agreement, the Developer has agreed to comply with the policy and the
Developer and the City expect that the current merchant builders will also agree to comply with the
policy. The Developer has agreed with the City to require all merchant builders to comply with this
policy. Based on estimated retail home sales prices, the Developer currently does not anticipate that
the total taxes and assessments, exclusive of special taxes for services, will exceed 2% of the sales
price. As shown in Table 6 under the caption "THE COMMUNITY FACILITIES DISTRICT -
Expected Tax Burden," the projected tax burden on an average single family detached unit and an
average single family attached unit, based on the weighted averages of the respective unit sizes and
current prices and taxes, will be approximately 1.93% and 1.92%, respectively, including City
maintenance community facilities districts. Under the policy, prior to the closing of an escrow for
the sale of a residential unit, the merchant builder is to deposit into escrow the amount needed to
partially prepay the Special Taxes or other special taxes or assessments so that following such
prepayment the parcel will be in compliance with the policy. Upon the closing of the escrow, any
prepayment of the Special Taxes will be paid to the Director of Finance of the City and will be sent
to the Fiscal Agent to redeem Bonds.
Collection and Application of Special Taxes. The Special Taxes are levied and collected by
the Treasurer-Tax Collector of the County in the same manner and at the same time as ad valorem
property taxes, but may be collected in any other manner the legislative body of the District may
choose.
The District has made certain covenants in the Indenture for the purpose of ensuring that the
current maximum Special Tax rates and method of collection of the Special Taxes are not altered in a
manner that would impair the District's ability to collect sufficient Special Taxes to pay debt service
on the Bonds and Administrative Expenses when due. First, the District has covenanted that, to the
extent it is legally pennitted to do so, it will not initiate proceedings to reduce the maximum Special
Tax rates and will oppose the reduction of maximum Special Tax rates by initiative where such
reduction would reduce the maximum Special Taxes payable from parcels on which a completed
structure is located to less than 110% of Maximum Annual Debt Service on the Bonds as pennitted
by the Indenture. See "SPECIAL RISK FACTORS - Proposition 218." Second, the District has
covenanted not to penn it the tender of Bonds in payment of any Special Taxes except upon receipt of
a certificate of a Special Tax Consultant that to accept such tender will not result in the District
having insufficient Special Tax Revenues to pay the principal of and interest when due on the Bonds
following such tender. See "SPECIAL RISK FACTORS - Non-Cash Payment of Special Taxes."
Although the Special Taxes constitute liens on Taxable Property within the District, they do
not constitute a personal indebtedness of the owners of such property within the District. Moreover,
other liens for taxes and assessments already exist on the property located within the District and
other such liens could come into existence in the future in certain situations without the consent or
knowledge of the City or the landowners therein. See "SPECIAL RISK FACTORS - Parity Taxes,
Special Assessments and Land Development Costs" herein. There is no assurance that property
owners will be financially able to pay the annual Special Taxes or that they will pay such taxes even
if financially able to do so, all as more fully described in the section of this Official Statement
entitled "SPECIAL RISK FACTORS."
Under the tenns of the Indenture, not later than the tenth Business Day after receipt, all
Special Tax Revenues received by the District are to be deposited in the Special Tax Fund, except for
Special Tax Revenues representing Prepayments, which shall be deposited in the Redemption Fund
and the Administrative Expense Fund. Special Tax Revenues (with the exception of Special Tax
18
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DOCSOC/l 0 18657v7/22245-0 139
Revenues representing Prepayments) are to be applied by the Fiscal Agent under the Indenture in the
following order of priority: (I) to deposit annually to the Administrative Expense Fund an amount
equal to the Administrative Expense Requirement, (2) to pay the principal of and interest on the
Bonds when due, (3) to replenish the Reserve Fund to the Reserve Requirement, (4) to make any
required transfers to the Rebate Account for each series of Bonds and (5) to pay Administrative
Expenses of the District above the Administrative Expense Requirement. See Appendix E -
"SUMMARY OF INDENTURE." Special Tax Revenues representing Prepayments shall be
transferred to the Redemption Fund as provided for in the Indenture and used to redeem Bonds. See
"THE 2004 BONDS - Redemption of Bonds - Extraordinary Mandatory Redemption from
Prepayment."
Proceeds of Foreclosure Sales. The net proceeds received following a judicial foreclosure
sale of land within the District resulting ITom a landowner's failure to pay the Special Taxes when
due are included within the Special Tax Revenues pledged to the payment of principal of and interest
on the Bonds under the Indenture.
Pursuant to Section 53356.1 of the Act, in the event of any delinquency in the payment of
any Special Tax or receipt by the District of Special Taxes in an amount which is less than the
Special Tax levied, the City Council, as the legislative body of the District, may order that Special
Taxes be collected by a superior court action to foreclose the lien within specified time limits. In
such an action, the real property subject to the unpaid amount may be sold at a judicial foreclosure
sale. Under the Act, the commencement of judicial foreclosure following the nonpayment of a
Special Tax is not mandatory. However, the District has covenanted for the benefit of the owners of
the Bonds that it will commence and diligently pursue to completion, judicial foreclosure
proceedings against (i) properties under common ownership with delinquent Special Taxes in the
aggregate of $5,000 or more by the October I following the close of the Fiscal Year in which such
Special Taxes were due, and (ii) against all properties with delinquent Special Taxes in the aggregate
of $2,500 or more by the October I following the close of any Fiscal Year if the amount in the
Reserve Fund is less than the Reserve Requirement. See Appendix E - "SUMMARY OF
INDENTURE - Other Covenants of the District" herein.
If foreclosure is necessary and other funds (including amounts in the Reserve Fund) have
been exhausted, debt service payments on the Bonds could be delayed until the foreclosure
proceedings have ended with the receipt of any foreclosure sale proceeds. Judicial foreclosure
actions are subject to the normal delays associated with court cases and may be further slowed by
bankruptcy actions, involvement by agencies of the federal government and other factors beyond the
control of the City and the District. See "SPECIAL RISK FACTORS - Bankruptcy and
Foreclosure" herein. Moreover, no assurances can be given that the real property subject to
foreclosure and sale at a judicial foreclosure sale will be sold or, if sold, that the proceeds of such
sale will be sufficient to pay any delinquent Special Tax installment. See "SPECIAL RISK
FACTORS - Land Values" herein. Although the Act authorizes the District to cause such an action
to be commenced and diligently pursued to completion, the Act does not impose on the District or
the City any obligation to purchase or acquire any lot or parcel of property sold at a foreclosure sale
if there is no other purchaser at such sale. However, the City does have the ability to use the
foreclosure judgment to purchase property by credit bid at a foreclosure sale, in which case the City
would have no obligation to pay such credit bid for 24 months. The Act provides that, in the case of
a delinquency, the Special Tax will have the same lien priority as is provided for ad valorem taxes.
19
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Reserve Fund
In order to secure further the payment of principal of and interest on the Bonds, the District is
required, upon delivery of the Bonds, to deposit in the Reserve Account and thereafter to maintain
the Reserve Fund at an amount equal to the Reserve Requirement. The Indenture provides that the
amount in the Reserve Fund shall, as of any date of calculation, equal the lesser of (i) 10% of the
original principal amount of the Bonds, less original issue discount, if any, plus original issue
premium, if any, applicable to such Bonds, (ii) Maximum Annual Debt Service on the Bonds, and
(iii) one hundred twenty-five percent (125%) of Average Annual Debt Service for the Bonds (the
"Reserve Requirement").
Subject to the limits on the maximum annual Special Tax which may be levied within the
District, as described in Appendix A, the District has covenanted to levy Special Taxes in an amount
that is anticipated to be sufficient, in light of the other intended uses of the Special Tax proceeds, to
maintain the balance in the Reserve Fund at the Reserve Requirement. Amounts in the Reserve Fund
are to be applied to (i) pay debt service on the Bonds, to the extent other monies are not available
therefore, (ii) redeem the Bonds in whole or in part, and (iii) pay the principal and interest due in the
final year of maturity of the Bonds. In the event of a prepayment of Special Taxes, under certain
circumstances, a portion of the Reserve Fund will be credited toward the amount being prepaid (the
"Reserve Fund Credit"). As described in the Rate and Method, this Reserve Fund Credit will be
equal to the lesser of: (a) the expected reduction in the Reserve Requirement, if any, as a result of
prepayment, or (b) the amount derived by subtracting the new Reserve Requirement in effect after
the redemption from the balance in the Reserve Fund, but in no event shall such amount be less than
zero. See Appendix E - "SUMMARY OF INDENTURE" herein.
Issuance of Parity Bonds
Subject to the limitations set forth in the Bond Indenture, the District may, at any time after
the issuance and delivery of the 2004 Bonds, and without the consent of the Owners of the 2004
Bonds, issue Parity Bonds equally secured with the 2004 Bonds and any Outstanding Bonds by a
pledge of and lien upon the Special Tax Revenues and amounts in the funds and accounts established
under the Bond Indenture other than the Project Fund, the Rebate Fund, and the Administrative
Expense Fund (i) for the purpose of refunding Bonds or any Parity Bonds outstanding where the
refunding results in a reduction of annual debt service on all Outstanding Bonds of the District, or
(ii) to finance additional Facilities, so long as certain preconditions in the Bond Indenture have been
satisfied; provided, however, the District has covenanted not to issue more than $14,500,000' of
Parity Bonds for the purpose of financing improvements in the District. See Appendix E -
"SUMMARY OF BOND INDENTURE - Conditions for the Issuance of Parity Bonds" herein.
THE COMMUNITY FACILITIES DISTRICT
General Description of the District
The District consists of approximately 489 gross acres and is located approximately 3 miles
east of Interstate 805 at the south side of Olympic Parkway between Hunte Parkway and Eastlake
Parkway. The District is divided into 25 residential planning areas and one mixed-use planning area.
The District is located in the newly developing eastern portion ofthe City and is bounded to the north
. P"liminary. suhjecllo change.
20
DOCSOCII 018657v7\22245.0139
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by Olympic Parkway and the previously developed villages of Eastlake Greens, to the west by
Eastlake Parkway, undeveloped commercial lands and Village Six of The Otay Ranch, and to the
south and east by Hunte Parkway, beyond which are undeveloped lands. At buildout, the planning
areas are expected to be developed into 1,101 single family detached "fee simple" units, 1,164 single
family attached and detached "condominium" units and a mixed-use site containing commercial uses
and 115 of the single family attached units accounted for above.
The Developer has distributed land encompassing 8 of the planning areas to its members who
have, in turn, contributed the planning areas to various related entities. These related entities intend
to complete the development of 455 single family detached "fee simple" units and 266 single family
attached and detached "condominium" units within the 8 planning areas and sell the homes
constructed thereon to individual homebuyers. The remaining land within the District is currently
owned by the Developer and is proposed to be developed with 646 single family detached "fee
simple" units, 783 single family attached and detached "condominium" units and a mixed use area
planned for commercial uses and 115 single family attached units. The Developer does not plan to
construct homes or commercial buildings in the planning areas which it owns and intends to
distribute the land within the remaining planning areas to its members, or sell and convey such land
to unrelated third party merchant builders. See "THE DEVELOPMENT AND PROPERTY
OWNERSHIP - Development Plan."
Description of Authorized Facilities
The Facilities authorized to be acquired or constructed by the District with the proceeds of
the 2004 Bonds and any Parity Bonds consist of various public improvements, described in Table I
below, to serve property within the District. In addition to or in substitution for the Facilities listed
below, the City and the Developer may agree to finance additional or different eligible Facilities. As
set forth in Table I below, the Developer expects to finance a portion of the cost of the Facilities
from the proceeds oflot sales and other cash on hand. See Table 10 herein.
21 q-¡ DI
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DOCSOC/I 0 18657v7/22245-0l39
on. '___n_'___- -n
TABLE!
ESTIMATED COSTS OF FACILITIES'
PoT/jon to be
Cost Paid by 2004 PoT/jon to be Pojd PoT/jon to be paid
Focilitjes Estjnwte(J) Bonds'" by Parity Bonds") by Other Sources
City of Chula Vista - Traffic Enhancement Program
- Telegraph Canyon Road $ 1,200,000 $ 1,200,000 $ 0 $ 0
Hunte Parkway - TDIF Eligible 9,422,584 4,134,124 5,288,460 0
Hunte Parkway - Non- TDIF Eligible 810,571 452,632 105,560 252,379
EastLake Parkway - TDIF Eligible 6,966,048 3,147,760 3,179,656 638.638
EastLake Parkway - Non- TDIF Eligible 647,929 360,099 0 287,830
Otay Lakes Parkway 5,592,000 1,000,000 0 4,592,000
Olympic Parkway 450,000 450,000 0 0
Backbone Streets (Kestral Falls Road, Windingwalk
Stree~ Evening Star Stree~ Hidden Path Drive,
Discovery Falls Drive, Birch Road, Exploration
Falls Drive and Crossroads Street) 10,826,553 5,999,562 0 4,826,991
Perimeter Sound Walls 1,335,304 1,084,984 0 250,320
Slope Landscaping 2,997,269 1,991,519 0 1,005,750
Traffic Counters - TDIF Eligible 50,000 50,000 0 0
Facilities to be funded by Public Facilities
Development Impact Fee 9 577 392 4 182373 2373071 3021948
TOTALS $ 49875649 ~(3) $ 10946747 $ 14875649
(I) Costs shown may not represent total cost of improvement and soft costs. The Developer expects to pay the overage from
proceeds of lot sales.
(2) The proposed allocation of the bonds construction proceeds for these facilities could change and will be prioritized and
disclosed in the Acquisition/Finance Agreement for CFD 07-1.
'3) This proposed estimate of bond construction proceeds could change due to market conditions and the date of delivery of the
2004 Bonds.
(') Parity Bonds (approximately $13,500,000) are contemplated to be sold in the future and it is estimated that the net
construction proceeds will be approximately $10,946,747.
Source: Developer and McGill Martin Self, Inc.
Status of Facilities
The Developer plans to develop the planning areas planned for residential and commercial
development in the District in three phases: Planning Areas R-I, R-2, R-4, R-7, R-20, R-21, R-22
and R-23 are expected to be developed in Phase I; Planning Areas R-3, R-5, R-6, R-8, R-9, R-10,
R-24, R-25, MO-] (mixed use) and So] (elementary school site) are expected to be developed in
Phase 2; and Planning Areas R-11, R-]2, R-B, R-14, R-]5, R-]6, R-17, R-18, R-]9, S-2 (middle
school site) and CPF-1 (commercial site) are expected to be developed in Phase 3. As of
December 16, 2003, all grading in Phase 1 has been completed to finish pads and backbone
improvements are substantially complete, with the exception of landscaping and entry monuments.
Grading in Phase 2 is underway and scheduled for completion in the second quarter of 2004. Phase 3
grading is scheduled to commence in the third quarter of2004. For more information on the status of
construction of the Facilities in the District, see "THE DEVELOPMENT AND PROPERTY
OWNERSHIP - Infrastructure Requirements and Construction Status."
. P,eliminary, ,ubjecllo change
22
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Principal Taxpayers
Table 2 below sets forth the percentage of the Special Taxes that the property owners in the
District would pay in fiscal year 2004-05 based on the ownership in the District as of December I,
2003 and a projected Special Tax levy of $1,094,144. For fiscal year 2004-05, Special Taxes are
expected to be levied only on Developed Property and Approved Property in an amount sufficient,
together with capitalized interest payable from Bond proceeds, to pay debt service due on the 2004
Bonds through September 1,2005.
TABLE 2
PROJECTED PRINCIPAL TAXPAYERS FOR
FISCAL YEAR 2004-05
Planning Fiscal Year %of
Areas Owner/I) 2004-2005 Special Taxf2)!3) Total
R-I Shea Homes LP. $ 249,522 22.81%
R-2 Otay R2/3 LLC 79,981 7.31
R-4 Shea Homes LP. 104,120 9.52
R-7 Otay R7110 LLC 113,060 10.33
R-201R-211R-22 Otay MFI LLC 348,875 31.89
R-23 Shea Homes LP. 198.588 18.]5
Total $ 1,094,144 100.00%
(I) Ownership information based on the Appraisal as of December I, 2003. All owners are merchant builder entities related to
the respective members of the Developer. See 'THE DEVELOPMENT AND PROPERTY OWNERSHIP."
(2) Estimated Special Tax Levy based upon Assigned, Approved and Undeveloped Special Tax. Due to rounding, totals may
not be exact.
(3) For the Fiscal Year 2004-2005, a portion of the debt service on the 2004 Bonds will be financed with capitalized interest.
Pursuant to the Rate and Method, it is expected that the portion of debt service on the 2004 Bonds not financed with
capitalized interest will be paid by Special Taxes levied on property currently classified as Developed Property and
Approved Property. It is expected that there will not be any Special Taxes levied on parcels currently classified as
Uodeveloped Property for the 2004-2005 Fiscal Year. Beginning in Fiscal Year 2005-2006, it is expected that Special
Taxes will be levied on Undeveloped Property as needed to meet the Special Tax Requirement.
Source: McGill Martin Self, Inc.
Table 3 below sets forth the approximate amount and percentage of the Special Taxes that
property owners in the District would pay in Fiscal Year 2005-06 based on the ownership in the
District as of December I, 2003 and a projected Special Tax levy of $2,087, 173, which represents the
approximate estimated levy required to pay debt service on the 2004 Bonds and Administrative
Expenses in the fiscal years after 2004-05.
23 q - /03
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TABLE 3
PROJECTED PRINCIPAL TAXPAYERS FOR
FISCAL YEAR 2005-06
Planning Fiscal Year %0/
Areas Owners!l) 2005-2006 Special TaxF) Total
Member Merchant Builder Owned Planninl! Areas
R-l Shea Homes loP. $ 249,522 11.96%
R-2 Otay R2/3 LLClJ) 79,981 3.83
R-4 Shea Homes loP. 104,120 4.99
R-7 Otay R7I10 LLC(3) 113,060 5.42
R-201R-2 I 1R-22 Otay MFI LLCl3) 348,875 16.72
R-23 Shea Homes loP. 198,588 2ál
Subtotal $ 1,094,145 52.42%
Developer Owned Planninl! Areas
R-3 Brookfield Shea Otay LLC $ 51,582 2.47%
R-5 Brookfield Shea Otay LLC 28,886 1.38
R-6 Brookfield Shea Otay LLC 30,949 1.48
R-8 Brookfield Shea Otay LLC 41,782 2.00
R-9 Brookfield Shea Otay LLC 43,845 2.10
R-IO Brookfield Shea Otay LLC 65,509 3.14
R-Il Brookfield Shea Otay LLC 26,307 1.26
R-12 Brookfield Shea Otay LLC 40,234 1.93
R-13 Brookfield Shea Otay LLC 42,813 2.05
R-14 Brookfield Shea Otay LLC 41,266 1.98
R-15 Brookfield Shea Otay LLC 35,076 1.68
R-J6 Brookfield Shea Otay LLC 30,949 1.48
R-17 Brookfield Shea Otay LLC 72,509 3.47
R-18 Brookfield Shea Otay LLC 64,453 3.09
R-19 Brookfield Shea Otay LLC 102,945 4.93
R-24 Brookfield Shea Otay LLC 106,526 5.10
R-25 Brookfield Shea Otay LLC 77,880 3.73
MU-l Brookfield Shea Otay LLC 89,517 4.29
Subtotal $ 993,028 47.58%
Total $ 2087173 10000%
(1) Ownership information provided by Developer as of December 1,2003.
(2) Estimated Special Tax Levy based upon Assigned, Approved and Undeveloped Special Tax. Due to rounding, totals may
not be exact.
(3) Otay R2/3 LLC, Otay R7/l0 LLC and Otay MFI LLC are all affiliates of Brookfield San Diego Holdings LLc.
Source: McGill Martin Self, luc.
Estimated Direct and Overlapping Indebtedness
Within the District's boundaries are numerous overlapping local agencies providing public
services. Some of these local agencies have outstanding bonds or other forms of indebtedness which
are secured by taxes and assessments on the parcels within the District and others have authorized
but unissued bonds which, if issued, will also be secured by taxes and assessments levied on parcels
24
DOCSOCI! 018657v7\22245.0139
DOCSOC/lOI8657v7/22245-0139
within the District. The approximate amount of the direct and overlapping debt secured by such
taxes and assessments on the parcels within the District for fiscal year 2003-04 is shown in Table 4
below (the "Debt Report").
The Debt Report has been derived from data assembled and reported to the District by
California Municipal Statistics, Inc. Neither the District, the City nor the Underwriter has
independently verified the infonnation in the Debt Report and do not guarantee its completeness or
accuracy.
TABLE 4
DIRECT AND OVERLAPPING DEBT SUMMARY
CITY OF CHULA VISTA COMMUNITY FACILITIES DISTRICT NO. 07-1'
2003-04 Local Secured Assessed Valuation: $31,289,688
DIRECT AND OVERLAPPING TAX AND ASSESSMENT DEBT: % ADDlicable Debt 12/1103
Metropolitan Water District 0.003% $ 13,329
Otay Municipal Water District, J.D. No. 27 0.223 22,980
Southwestern Community College District 0.121 46,531
Sweetwater Union High School District 0.142 121,020
Chula Vista City School District 0.203 124,865
City ofChula Vista Community Facilities District No. 07-1 100. 27970000 (I)
TOTAL OVERLAPPING TAX AND ASSESSMENT DEBT $28,298,725
OVERLAPPING GENERAL FUND OBLIGATION DEBT:
San Diego County General Fund Obligations 0.014% $ 62,707
San Diego County Pension Obligations 0.014 114,067
San Diego County Superintendent of Schools Obligations 0.014 291
Southwestern Community College District General Fund Obligations 0.130 3,998
Sweetwater Union High School District Certificates of Participation 0.155 34,480
Chula Vista City School District General Fund Obligations 0.211 164,569
City of Chula Vista Certificates of Participation 0.249 231,371
City of Chu!a Vista Pension Obligations 0.249 31,761
Otay Municipal Water District Certificates of Participation 0.223 ~
TOTAL GROSS OVERLAPPING GENERAL FUND OBLIGATION DEBT $ 700,622
Less: Otay Municipal Water District Certificates of Participation ~
TOTAL NET OVERLAPPING GENERAL FUND OBLIGATION DEBT $ 643,244
GROSS COMBINED TOTAL DEBT $ (2)
NET COMBINED TOTAL DEBT $28,941,969
Ratios to 2003-04 Assessed Valuation:
Direct Debt .............................................................................97.28%
Total Direct and Overlapping Tax and Assessment Debt .......98.34%
Gross Combined Total Debt ... ....... ..... ..... ..100.57%
Net Combined Total Deb!...... ..... """"" ..100.39%
STATE SCHOOL BUILDING AND REPAYABLE AS OF 6/30/03: $0
(I) Includes 2004 Bonds to be sold.
(2) Excludes tax and revenue anticipation notes, enterprise revenue, mortgage revenue and tax allocation bonds and non-bonded
capital!ease obligations.
Source: California Municipal Statistics, Inc.
. Prehminary, subject to chonge.
25 ~ I
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DOCSOC/l OJ 8657v7/22245-0 139
--~---
The authorized but unissued debt of existing community facilities districts with boundaries
overlapping the District as of December I, 2003 is summarized in Table 5 below. Other public
agencies may from time to time fOnD additional districts that impose special taxes or assessments
payable by landowners within the District. See "SPECIAL RISK FACTORS - Parity Taxes,
Special Assessments and Land Development Costs."
TABLE 5
SUMMARY OF OVERLAPPING COMMUNITY FACILITIES DISTRICTS
Fiscal Year Fiscal Year
2003-04 2003-04
Undeveloped Developed
Land Special Residential
Tax Per Special Tax Authorized
District Purpose Acre") Per Sq. FL Debt
Chula Vista Elementary CFD No. 14(1) Elementary Schools $ 2,569.38 $ .2632 $250,000,000
Sweetwater High School CFD No. l4(]) High Schools $ 3,061.37 $ .3354(]) 250,000,000
(I) On July I of each year, the maximum special tax rates shall be increased prior to development of a parcel by the greater of
(i) the annual percentage change in the Engineering News Record building cost index for the City of Los Angeles
determined every May 31 forthe prior 12-month period, or (ii) two percent per fiscal year, and after development of a parcel
(2) at the rate of2% per annum.
An Undeveloped Land Special Tax is provided for in these CFD's if the debt service is not satisfied through the levy of the
Special Tax on Residential Property. To date CFD No. 14 ofChula Vista Elementary School District and Sweetwater Union
High School have not been required to levy a Special Tax on Undeveloped Land.
(3] These amounts are currently pledged to lease payment with respect to certain certificates of participation of the Sweetwater
High School District and are expected to be pledged to lease payments with respect to one or more future series of
certificates of participation.
Source: McGill Martin Self, Inc.
Expected Tax Burden
It is expected that the total tax burden on residential units in the District will be slightly less
than 2% of the initial base sales price of the units. Table 6 below sets forth an estimated property tax
bill for a single family detached unit of 2,260 square feet (such square footage being the weighted
average of expected unit sizes of the planned single family detached units) and for a single family
attached unit of 1,365 square feet (such square footage being the weighted average of expected unit
sizes of the planned single family attached units). The total effective tax rate for a typical single
family detached unit is projected to be 1.92% and for a typical single family attached unit 1.93% of
the estimated initial base sales price.
26
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TABLE 6
SAMPLE PROPERTY TAX BILL
PROJECTED FOR FISCAL YEAR 2004-2005
FORAN AVERAGE SINGLE FAMILY ATTACHED UNIT AND SINGLE FAMILY
DETACHED UNIT
Single Family
Percent of Attached Unit Single Family
Total (Medium Density Detached Unit (Low
Assessed 8t020 Density 0 to 8
Assessed Valuation and Property Twœs ValuaJion Units/Gross acre) Units/Gross Acre
House Square Footage (Weighted Average) 1,365 2,260
Base Sales Price $ 286,574.00 $ 402,161.00
Total Assessed Value $ 279,574.00 $ 395,161.00
Basic Levy 1.00000% $ 2,795.74 $ 3,951.61
MWD 0.00610% 17.05 24.10
County Water Authority 0.00067% 1.87 2.65
Chula Vista Elementary School District G.O. Bond 0.02723% 76.13 107.60
Sweetwater High School District G.O. Bond 0.01956% 54.68 77.29
Southwestern Community College G.O. Bond 0.00727% 20.33 28.73
Otay Water 1D #27 0.01400% 39.14 55.32
Total Taxes Based on Assessed Value 1.07483% $ 3,004.95 $ 4,247.31
Chula Vista Elementary CFD No. 14 $ 359.27 $ 594.83
Sweetwater Union High School CFD No. 14 457.82 758.00
Sweetwater UHSD G.O. Credit (54.68) (77.29)
Chula Vista Maintenance CFD No. 09-M 376.22 470.28
Chula Vista Preserve CFD No. 97-2 Annexation No.3 19.11 31.64
Improvement Area C
City ofChula Vista CFD No. 07-! 1,340.00 1,675.00
MosquitolRat Control 2.29 2.29
MWD Water Standby Charge 11.50 11.50
Otay Water Availability 10.00 10.00
CWA Water Availability 10.00 10.00
Total Assessments and Parcel Charges $ 2,531.52 $ 3,486.25
Total all Property Taxes $ 5 51647 $ 7711 )ó
Total Effective Tax Rate 1.93% 1.92%
Total Effective Tax Rate Excluding City Maintenance CFD's 1.80% 1.81%
Source: McGill Martin Self, Inc.
Estimated Value-tn-Lien Ratios
The value of the land within the District is significant because in the event of a delinquency
in the payment of Special Taxes the District may foreclose only against delinquent parcels in the
District. Table 7 summarizes the estimated appraised value-to-lien ratios for property in the District
based on the expected principal amount of the 2004 Bonds and the projected Special Tax levy for
fiscal year 2005-06.
The appraised value of the land within the District, based on the assumptions and limiting
conditions contained in the Appraisal, was $209,762,000 as of December 1, 2003. The estimated
appraised value-to-lien ratio for the property within the District currently subject to the levy of the
27 q 101
DOCSOCII 018657v7\22245.0139
DOCSOC/1 018657v7/22245-0 139
Special Tax, based upon land values and property ownership described in the Appraisal, is
approximately 7.50 to I', as shown in Table 7 below. The estimated appraised value-to-lien ratio for
the land owned by the Developer is approximately 7.28 to I' based on the assumptions set forth in
Table 7. Table 7 does not include the overlapping debt which is payable from taxes and assessments
on land within the District, which, as set forth in Table 4 above, was estimated at $643,244 for fiscal
year 2003-04. If the overlapping debt payable from taxes and assessments were included, the
estimated appraised value-to-lien ratio for the District as a whole would be 7.33 to I' rather than the
7.50 to I' shown in Table 7.
In the Annual Report filed pursuant to the Continuing Disclosure Agreement, the District will
estimate the assessed value-to-lien ratios for property within the District subject to the Special Tax
based on the assessed value of the taxable property within the District, but not by the appraised value
of the property within the District. The infonnation in the Annual Report will follow the fonnat of
Table 7. The assessed value of the land within the District for fiscal year 2003-04 is $31,289,688.
Dividing this assessed value by the principal amount of the 2004 Bonds results in an estimated
assessed value-to-lien ratio for the District as a whole of 1.12 to I.'
P"liminary, subject la change,
28 r¡
DOCSOC\I O18657v7\22245.0139
DOCSOC/I 0 18657v7/22245-0139
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Permitted Land Use
Table 8 below describes the currently approved land uses within the District.
TABLE 8
LAND USE SUMMARY OF
COMMUNITY FACILITIES DISTRICT
Use Acres
Residential (AttachedlDetached) 304.9(1)
Mixed Use 10.0
Community Purpose Facility(2) 5.5
Elementary School 11.0
Middle School 25.5
Neighborhood Parks(3) 16.7
Open Space, Roads and Homeowners (HOA) 115.4
Total 489.1
(I) Approved for up to 2,265 units.
(2) Planning AreaCPF-l.
(3) Includes Planning Area CPF-2.
Source: Developer
30
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[DISTRICT LOCA nON MAP]
31 q~ III
DOCSOC\1 0 18657v7\22245.0 139
DOCSOCIl 0 18657v7/22245-0l39
-~---_._-
THE DEVELOPMENT AND PROPERTY OWNERSHIP
Except for the information under the captions "-Appraisal" and "-Market Absorption
Study, " the Developer has provided the information in this section.
The information herein regarding ownership of property in the District has been included
because it is considered relevant to an informed evaluation of the Bonds. The inclusion in this
Official Statement of i1iformation related to existing owners of property should not be construed to
suggest that the Bonds, or the Special Taxes that will be used to pay the Bonds, are recourse
obligations of the property owners. A property owner may sell or otherwise dispose of land within
the District or a development or any interest therein at any time.
No assurance can be given that the proposed development within the District will occur as
described below. As the proposed land development progresses and parcels are sold, it is expected
that the ownership of the land within the District will become more diversified. Although planning
for the development of the District is at an advanced stage, actual construction of improvements is as
described below under the caption "Infrastructure Requirements and Construction Status." No
assurance can be given that development of the land within the District will continue to completion,
or that it will occur in a timely manner or in the configuration or intensity described herein, or that
any landowner described herein will obtain or retain ownership of any of the land within the District.
The Bonds and the Special Taxes are not personal obligations of any landowners and, in the event
that a landowner defaults in the payment of the Special Taxes, the District may proceed withjudicial
foreclosure but has no direct recourse to the assets of any landowner other than the property upon
which the Special Tax is levied. As a result, other than as provided herein, no financial statements or
information is, or will be, provided about the Developer or other landowners. The Bonds are
secured solely by the Special Taxes and other amounts pledged under the Indenture. See
"SOURCES OF PAYMENT FOR THE BONDS" and "SPECIAL RISK FACTORS"
General Description and Location ofthe District
The District consists of approximately 489 gross acres and is located approximately 3 miles
east of Interstate 805 at the south side of Olympic Parkway between Hunte Parkway and Eastlake
Parkway. The District is located in the newly developing eastern portion of the City known generally
as "The Otay Ranch," which is an area of approximately 9,100 acres which was annexed to the City
in 1997. The District is bounded to the north by Olympic Parkway and the previously developed
villages of Eastlake Greens, to the west by Eastlake Parkway, undeveloped commercial lands and
Village Six of The Otay Ranch, and to the south and east by Hunte Parkway, beyond which are
undeveloped lands.
The Bond proceeds and additional amounts expended and expected to be expended by the
Developer will be used to finance the infrastructure benefiting 2,265 planned housing units and a
10-acre multi-use site within the District. The infrastructure is expected to include backbone road
improvements relating to Hunte Parkway, East Lake Parkway, Kestrel Palls Road, Windingwalk
Street, Evening Star Street, Hidden Path Drive, Birch Road, Exploration Drive and Crossroads Street.
Also eligible to be financed are improvements relating to the City's Traffic Enhancement Program
and improvements relating to the City's Public Facilities Development Impact Fee program.
32 q- d-
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DOCSOC/I 018657v7/22245-0l39
The Developer
The Developer is Brookfield Shea Otay LLC, a California limited liability company (the
"Developer"). The Developer was formed on May 9, 2000 and has two members, Brookfield Otay
LLC, an entity wholly-owned by Brookfield San Diego Holdings LLC, a Delaware limited liability
company ("Brookfield San Diego"), and Shea Otay Village II LLC, an entity wholly-owned by Shea
Homes Limited Partnership, a Nevada limited partnership ("Shea Homes").
Brookfield San Diego is a 90% owned subsidiary of Brookfield Homes Holdings Inc., a
California corporation. Brookfield Homes Holdings Inc. is a wholly owned subsidiary of Brookfield
Homes Corporation, a Delaware corporation ("Brookfield Homes Corporation").
Brookfield Homes Corporation, through its subsidiaries, operates in five local market areas:
San Francisco Bay Area, Orange CountylLos Angeles, San Diego/Riverside, Sacramento, and
Northern Virginia, and has been building homes and developing land in these markets since the mid-
1990's. Brookfield Homes Corporation is publicly traded and its head office is in Del Mar,
California. In 2003, Brookfield Homes Corporation ranked within the top twenty largest home
builders in the United States based on the number of homes sold. Brookfield Homes Corporation is
listed on the NYSE under the ticker symbol "BHS" and is subject to the informational requirements
of the Exchange Act, and in accordance therewith files reports, proxy statements and other
information with the SEC. Such filings, particularly the Annual Report on Form IO-K and its most
recent Quarterly Report on Form 10-Q, may be inspected and copied at the public reference facilities
maintained by the SEC at 450 Fifth Street, N. W., Washington, D.C. 20549 at prescribed rates. Such
files can also be accessed over the Internet at the SEC's website at www.sec.gov.
Shea Homes and related entities have eight operating divisions throughout California,
Arizona, North Carolina and Denver, Colorado, including its active adult division which develops
communities known as Trilogy. These divisions construct townhouses, condominiums, detached
homes and also develop master planned communities. The general partner of Shea Homes is J.F.
Shea LLC, a Delaware limited liability company, which is majority owned by J.F. Shea Co., Inc., a
Nevada corporation ("Shea Company"). Shea Company also has an interest in Shea Financial
Services, Reed Manufacturing, Redding Construction, Shea Properties, Shasta Electric, and J.F. Shea
Construction Inc. Shea Homes and its related entities are privately held and have been operating for
over 100 years. Management of Shea Homes is directed by members of the Shea family. For fiscal
years 2001 and 2002, total home closings exceeded 5,500 and 5,400 units, respectively, and total
revenues exceeded $1.8 billion and $1.9 billion for Shea Homes and its related entities.
Development Plan
History of Development. The Developer acquired an approximately 663 gross acre site which
includes the District in May 2000.
The District is located in and constitutes a portion of Village Eleven of The Otay Ranch. The
District has been zoned as a Planned Community as part of the General Development Plan planning
process and is subject to a Sectional Planning Area Plan which allows for the development of up to
2,304 dwelling units, 10 acres of mixed use, two school sites, parks, open spaces and a community
purpose facility site. See "-Status of Entitlement Approvals."
33 q 1/3
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Planning Areas. The approved tentative tract map applicable to the District allows for the
development of 2,265 dwelling units. Upon buildout, development within the District is anticipated
to include a total of 2,265 residential units including 1,101 single family detached "fee simple" units
and 1,164 single family attached and detached "condominium" units, along with approximately
5.5 acres of community purpose property planned for commercial uses, 10 acres of mixed use
containing commercial uses and 115 of the single family attached units accounted for above, an 11-
acre elementary school site, a 25.5-acre middle school site, 16.7 acres of neighborhood parks and
approximately 115.5 acres of open space, roads and homeowner association property.
As of the date of the Appraisal, the Developer had distributed all the land within 8 planning
areas to its members, who have, in turn, contributed such land to various merchant-builder entities
related to the respective members of the Developer (the "Member Merchant Builders"). The
remaining land is to be developed with 646 single family detached "fee simple" units, 783 single
family attached and detached "condominium" units and a mixed use site. Lots within the planning
areas were distributed to the members as blue top individual lots as certified by the civil and soils
engineer with the utilities stubbed into the tract boundary. The Member Merchant Builders are
responsible for completing intract improvements such as sewer, water, dry utilities and street
improvements. The Developer is responsible for the completion of all other improvements adjacent
to the tracts including master backbone sewer and water, storm drains, dry utilities, streets, master
landscaping and trails, parks and any offsite improvements.
Table 9 below summarizes the land ownership and proposed development within the District
as of February 1,2004.
34
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DOCSOC/1 0 18657v7/22245-0l39
TABLE 9
SUMMARY OF PROPOSED DEVELOPMENT
AS OF FEBRUARY 1,2004
Density!
Minimum Lo/ T%J Building T%J Projeeted
Size Proposed Perm;is Unitt Home Size Projeeted Home
Plunning Area Produet Type (Square Feet) Proposed D""eJoper Enlity')) Unitt Issued Closed Range Price Runge
R-I SID 3,500 Shea Homes LP. 163 40 0 2,061-2,284 $413,400-433,900
R.2 SID 6.000 Otay R2/3 LLC 47 46 0 3,390-3,817 540.000-680,000
R.3 SID 6,000 Otay R2/3 LLC 46 0 0 3,390-3,817 610,000'"
R-4 SFD 5,000 Shea Homes LP. 55 47 24 2,430-3,058 465,900.525,900
R-5 SID 5,000 Shea Homes LP 34 0 0 2,430-3,058 495000'"
R-6 SID 5,000 Shea Homes LP 38 0 0 2,430.3058 495:000'"
R.7 SID 4,050 Otay R7/10 LLC 67 60 0 2,089.2,491 410,000M8,000
R-8 SID 4.500 B'ookfie]d Otay R819 LLC 58 0 0 2500-2,800 470,000'"
R.9 SID 4,500 Bcookfield Otay R819 LLC 60 0 0 2,500.2,800 470,000'"
R.IO SID 4.050 Otay R7/]0 LLC 89 0 0 2,089-2,491 460,000'"
R-]I SID 4.500 Shea Homes LP. 34 0 0 2.300'" 460,000'"
R-]2 SID 4,500 Shea Homes LP. 57 0 0 2,300'" 460,000'"
R-13 SFD 4.500 Shea Homes LP. 54 0 0 2,500'" 470000'"
R-]4 SFD 4,500 Shea Homes LP 54 0 0 2,500'" 470:000'"
R-15 SID 3,400 Bcookfield Otay R15/16 LLC 67 0 0 ].900'" 435,000'"
R.]6 SFD 3,400 Bcookfie]d Otay RI5116 LLC 59 0 0 ],900'" 435,000'"
R.]7 SFD'" 2,625 B'ookfield Otay RI7 LLC 118 0 0 1,600'" 395,000'"
R.18 SFA'" 125 units/acce Shea Homes LP 125 0 0 ],400'" 350,000'"
R.]9 SFA"' ]8 units/acre Shea Homes LP 167 0 0 1,250'" 300,000'"
R-20, R-21, R-22 SID'" 2,625 OtayMF] LLC 150 0 0 ],834-2,515 387,500-437,500
R-20,R.21,R.22 SFA'" 13 Units/Acce Otay MFI LLC ]20 3 0 1,334-2,515 315,000.385,000
R-23 SID'" 2,750 Shea Homes LP. 119 3 0 1,491-],950 337.500.372,500
R-24 SFA'" 15 units/acre Shea Homes LP. 169 0 0
R.25 SFA'" 25 units/acre Thi,d Party Deve]ope, 200 0 0
MU.] SFA'" 10a"es Thi<d Party Deve]ope' 115 0 0
CPF-I coM'" 55a"es Thi,d Party Deve]ope, NIA N/A N/A N/A NIA
S-I Elementary
Schoo] Site I] ac,es Thi<d Party Deve]ope, N/A N/A N/A N/A NIA
S.2 Midd]e
Schoo] Site 255 acces Thi,d Party Develope, N/A N/A N/A N/A N/A
'" The Deve]ope'o""s all of the planning aceas in the District other than the P]anningAreas R.I, R-2, R-4, R.7. R-20, R-21, R-22 and R-23, which ace
o""ed by the Membe, Me"hant Bui]ders. Although the Deve]ope< expects to convey 0' distribute the cemaining planning areas fa, development,
'" thece is no assurnn"" that such tmnsfers 0( developments will occu' as desc,ibed hecein
Single family detached condominium units.
'" Single family attached units.
'" Comme"ia] site
'" Average.
SOU"",: Deve]ope,
Development Status
To date, 8 planning areas within the District have been distributed by the Developer to its
members, who have, in turn, contributed such land to various Member Merchant Builders as
described below. The distributions described below were transactions in which the Developer
distributed the lots, and such distributions were not made at an arm's-length basis. Each of the
Member Merchant Builders described below is primarily owned by either Brookfield San Diego or
Shea Homes. The Member Merchant Builders referenced below which are affiliates of Brookfield
San Diego include Brookfield Otay LLC, Otay R2/3 LLC, Otay R7/10, and Otay MFI LLC, and are
collectively referred to herein as the "Brookfield Entities."
Planning Area R-1, consisting of 163 single family detached lots, was distributed to Shea
Otay Village 11, LLC on July 31,2003, and concurrently contributed to Shea Homes. The project in
Planning Area R-I is known as "Wisteria," with a minimum lot size of 3,500 square feet and homes
ranging in size from approximately 2,061 to 2,284 square feet. Model homes in Wisteria opened in
35
DOCSOC\ I 018657v7\22245.0 139 q-I/:5
DOCSOC/l 018657v7/22245-0l39
February 2004. As of February I, 2004, building permits for 40 homes had been issued and 32
homes had been sold to individual homeowners, none of which had closed escrow. Base prices of
these homes are expected to range from approximately $413,400 to $433,900.
Planning Area R-2, consisting of 47 single family detached lots, was distributed to
Brookfield Otay LLC on July 31,2003, and concurrently contributed to Otay R2/3 LLC. Planning
Area R-2 is part of the 93-lot project known as Twilight, with a minimum lot size of 6,000 square
feet and homes ranging in size from approximately 3,390 to 3,817 square feet. As of February I,
2004, model homes were under construction and scheduled to open in May 2004, building permits
for 46 homes had been issued and 22 homes had been sold to individual homeowners, none of which
had closed escrow. Base prices of these homes currently range from approximately $540,000 to
$680,000.
Planning Area R-4, consisting of 55 single family detached lots, was distributed to Shea Otay
Village II, LLC on July 31, 2003, and concurrently contributed to Shea Homes. Planning Area R-4
is part of the 127-lot project known as Magnolia, with a minimum lot size of 5,000 square feet and
homes ranging in size from approximately 2,430 to 3,058 square feet. Model homes in Magnolia
opened in November 2003. As of February I, 2004, building permits for 47 homes had been issued
and 42 homes had been sold to individual homeowners, 24 of which had closed escrow. Base prices
currently range from approximately $465,900 to $525,900.
Planning Area R-7, consisting of 67 single family detached lots, was distributed to
Brookfield Otay LLC on July 31,2003, and was concurrently contributed to Otay R7/10 LLC. The
project in Planning Area R-7 is known as Cedar Rose, with a minimum lot size of 4,050 square feet
and homes ranging in size from approximately 2,089 to 2,491 square feet. Model homes in Cedar
Rose opened in February 2004. As of February 1, 2004, building permits for 60 homes had been
issued and 39 homes had been sold to individual homeowners, none of which had closed escrow.
Base prices currently range from approximately $410,000 to $448,000.
Planning Areas R-20, R-21 and R-22, proposed to be developed with] 50 single family
detached condominium homes and 120 single family attached "triplex" homes in a project known as
"Cottage Lane", were distributed to Brookfield Otay LLC on July 31, 2003, and were concurrently
contributed to Otay MF1 LLc. The minimum lot size for the 150 proposed single family detached
condominium homes is 2,625 square feet and the density of the 120 proposed triplex homes is
expected to be 13 units per acre. The homes of Cottage Lane are expected to range from
approximately 1,870 to 2,375 square feet for the single family detached condominium homes and
approximately 1,334 to 1,950 square feet for the triplex homes. As of February 1,2004, building
permits had been issued for the 6 model homes, all of which were under construction and scheduled
to open in June 2004. Base prices are expected to range from approximately $387,500 to $437,500
for the single family detached condominium homes and approximately $315,000 to $385,000 for the
triplex homes.
Planning Area R-23, consisting of 119 single family detached lots, was distributed to Shea
Otay Village II LLC on July 31, 2003, and was concurrently contributed to Shea Homes. The
project for Planning Area R-23 is known as Azalea, with a minimum lot size of 2,750 square feet and
homes ranging in size from approximately 1,491 to 1,788 square feet. As of February I, 2004 model
homes in Azalea were under construction and scheduled to open in April 2004, 3 building permits
had been issued and 7 homes had been sold to individual homeowners, none of which had closed
escrow. Base prices of these homes are expected to range from approximately $337,500 to $372,500.
36 q
DOCSOCII 0 18657v7\22245.0 139
DOCSOCII 018657v7/22245-0 139
Planning Area R-3, consisting of 46 single family detached lots of the Twilight project, is
scheduled to be distributed to Brookfield Otay LLC in May 2004.
Planning Area R-5, consisting of 34 single family detached lots of the Magnolia project, is
scheduled to be distributed to Shea Otay Village II LLC in May 2004.
Planning Area R-6, consisting of 38 single family detached lots of the Magnolia project, is
scheduled to be distributed to Shea Village 11 LLC in May 2004.
Planning Area R-10, consisting of 89 single family detached lots of the Cedar Rose project is
scheduled to be distributed to Brookfield Otay LLC in May 2004.
Planning Areas R-8, R-9, R-lO, R-11, R-12, R-13, R-14, R-15, R-16, R-17, R-18, R-19, and
R-24 are owned by the Developer and are expected to be distributed to its members as development
in the District proceeds. Planning Areas MU-1 (mixed use), S-l (elementary school site), S-2
(middle school site) and CPF-1 (commercial site) are currently owned by the Developer and are
expected to be sold to third-party developers. Planning Areas R-25, MU-I and S-I are expected to
be sold and conveyed in 2004 and Planning Areas S-2 and CPF-I are expected to be sold and
conveyed in 2005.
Financing Plan
Developer Financing Plan. The development of the District will require large expenditures
of funds to fully develop the property and the required infrastructure. The development of the
infrastructure and the lots by the Developer requires funds in addition to the Bond proceeds. The
cash sources outside of the Bond proceeds necessary to complete development of the lots and the
infrastructure are expected to come from a combination of land distributions and sales, third party
bank loans and member contributions. The Developer plans to use the cash balances reflected in
Table 10 to complete the proposed development and to make distributions to its members. The
Developer currently has two loans outstanding which are secured by property within the District.
The Developer anticipates obtaining an additional loan secured by land within the District. The
financing plans of the Member Merchant Builders are described below. See "Member Merchant
Builder Financing."
The full buildout of the District as planned is dependent upon a number of external factors,
including the general and local economy and the health of the local real estate market and the ability
of the Developer and the Member Merchant Builders to obtain financing and all required permits to
build the units. Table 10 represents the Developer's current estimate of the sources and uses of funds
to complete its proposed development in the District. While Table 10 represents the current estimate
ofthe sources and uses of funds for the Developer's operations, there can be no assurance there will
not be substantial changes to the sources and uses funds presented.
The projected sources and uses of funds in Table 10 has been prepared based on assumptions
of future sales revenues, land distribution prices, reimbursements to the Developer, public facilities
financing, bank financing, development costs, operating costs, property taxes and other items. The
absorption estimates used for the sources and uses of funds may differ from those derived by the
Appraiser. The actual revenues projected in Table 10 may vary. Detailed construction plans have
not been approved or developed for all of the work which is contemplated within the District. As
such, there is no assurance that the actual costs will not be greater than projected or occur sooner than
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projected. There can be no assurance that the actual revenues will not be less or the actual costs
more than projected or occur later than projected by the Developer.
To the extent that actual revenues are less than projected in Table 10 or are received more
slowly than projected in Table 10, other financing projected by the Developer is not put into place, or
actual expenses are greater than or occur earlier than projected above, there could be a shortfall in the
cash required to complete the land development operations being undertaken by the Developer. No
assurance can be given that the Developer will have access to funds under its existing loans or will
obtain any additional loans to finance the development. Neither the Developer nor any of its
members has any legal obligation to obtain additional loans or otherwise advance funds for the
remaining development costs.
The Developer was fonned to purchase the land within the District primarily for the purpose
of distributing certain residential lots in a blue top condition to its members and to sell the land for
certain attached units and commercial development to third parties. Its members, in turn, have
transferred and expect to continue to transfer the distributed lots to the Member Merchant Builders
and other affiliated merchant builders, who then complete the development process and sell the
finished units. The Developer has planned the land development and lot distribution to occur in three
stages. The 721 lots in phase one proposed to be developed with 721 attached and detached
residential units were distributed to members in July, 2003. Phase two is projected to be developed
with 494 attached and detached residential units and is planned for distribution in the second quarter
of 2004. Phase 3 is projected to total 735 lots, with distribution planned in the second quarter of
2005. Five remaining planning areas are projected for sale to third parties.
The Developer distributes lots to its members in a non-cash transaction. At the time of
distribution, the member's capital account is reduced by the distribution value of the land established
under the Developer's Operating Agreement, and the member is required to payoff an agreed upon
portion of the third party debt incurred by the Developer in connection with the land development.
The members obtain funds to repay the third party debt from the Member Merchant Builders, and the
Member Merchant Builders obtain such moneys by placing loans against the lots distributed to them.
Given this arrangement, the significant portion of profit from the development is expected to be
realized by the Member Merchant Builders and other affiliated merchant builders, and not by the
Developer. As set forth in Table 10, the Developer is projected to generate revenues adequate to
cover the costs that it is to pay in connection with the development process, with total expected
revenues exceeding total projected costs by approximately $9.9 million.
The Developer's projections call for approximately $45 million of member contributions to
be made to the Developer to complete its development plan, with one-half to be contributed by the
Brookfield Otay LLC member and the other halfby the Shea Otay Village 11 LLC member. Neither
member currently has cash on hand to make these cash contributions. [A copy of the most recent
unaudited financial statements for the Developer and its members are attached hereto as Appendix J.]
The Developer expects that Brookfield Otay LLC will receive the cash for its member contribution
from its parent company, Brookfield San Diego, which ultimately receives its funding from
Brookfield Homes Corporation, whose most recent financial statements can be found on the SEC's
website at www.sec.gov. The Developer expects that Shea Otay Village 11 will receive the cash for
its member contribution from Shea Homes either from cash that Shea Homes expects to have on
hand or from proceeds received from Shea Homes' revolving line of credit managed by Wells Fargo
Bank and described below. Notwithstanding the Developer's expectations that its members will be
provided with the cash necessary to make the required contributions, neither Brookfield Homes
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Corporation or any of its subsidiaries, nor Shea Homes has any legal obligation to contribute funds to
the Developer's members, and no assurance can be given that the required contributions will be made
in amounts sufficient to complete the development process as planned.
TABLE 10
DEVELOPER'S PROJECTED SOURCES AND USES OF FUNDS
(in thousands)
Through
Dee. 2003 2004 2005 2006 2007 Total
Sources or Cash
Member's Capital Contributions $ 52,764 $ 4,712 $ 5,200 $ 13,719 $ 2,500 $ 78,895
Land Sales to Third Parties 6,000 11,635 1,435 19,070
Cash fiom Third Party Loan Draws(i) 64,021 12,475 13,552 90,048
Notes/Advances fiom Members 18,731 18,731
Net Bond Proceeds for Public Improvements -f.J.n) -----.l2..Zlli! 10 300 - - 26 000
Total Sources of Cash $116,785 $ 57,618 $ 40,687 $ 15,154 $ 2,500 $ 232,744
Uses of Cash
Land Development CostS(2) $ 56,368 $ 15,344 $ 18,111 $ 10,023 $ 2,153 $ 101,999
Overhead(») 4,790 3,413 3,736 1,062 347 13,348
Notes/Advances to Members 18,731 18,731
Member's Capital Distributions 32,125 33,944 8,022 2,304 2,500 78,895
Third Party Debt Service ----.1..H2 ~ ---AH - - -----..!i.Ql.'!
Total Uses of Cash $116,363 $ 53,922 $ 30,313 $ 13,389 $ 5,000 $ 218,987
Projected Sources in Excess of Uses $ $ 3,196 $ 5,971 $ 765 $ $ 9,932
Working Capital $ 422 $ 500 $ 4,403 $ 1,000 $ (2,500) $ 3,825
(1) To be repaid by the Developer's members as lots are distributed by the Developer to the members. The Developer has an
outstanding phase two acquisition and development loan fiom Wells Fargo Bank, with an outstanding balance of
$26,838,709 as of January 31, 2004. In addition, the Developer has a phase three land acquisition loan with Wells Fargo
Bank with an outstanding balance of $19,557,618 as ofJanuary 31, 2004. The Developer has not yet entered into a loan
commitment for phase three land development.
(2) Includes costs for District Facilities.
(3) Includes general and administrative overhead, taxes, management fees, legal costs and sales and marketing expense.
Source: Developer.
Member Merchant Builder Financing. The Member Merchant Builders currently owning
planning areas in the District intend to finance their respective developments in the District as
described below.
Shea Homes is the owner and Member Merchant Builder of the property in planning areas R-
I, R-4 and R-23. Shea Homes currently has a revolving line of credit with a group of banks managed
by Wells Fargo Bank in the amount of $830 million (the "Line of Credit"). The amount outstanding
as of January], 2004 was $50 million. The planning areas being developed by Shea Homes are
expected to be principally financed by draws on the Line of Credit. The Line of Credit is available
for projects other than those in the District, and there is no requirement that any portion of the Line
of Credit be reserved or made available for development within the District. Shea Homes estimates
that, as of February ], 2004, it will be required to expend an additional $5,298,000 to develop its
property within Planning Areas R-1, R-4 and R-23 to finished lot status.
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- n'_- - _m_m_m_""__n - --'-----.
Otay MF1 LLC, a Brookfield Entity, is the owner and Member Merchant Builder developing
homes in Planning Areas R-20, R-21 and R-n (Cottage Lane). Otay MFI LLC has an acquisition
and development loan from Wells Fargo Bank in the aggregate amount of $20,385,000. This loan
matures on August I, 2005 and, as of January 31, 2004, the outstanding balance under this loan
totaled $12,371,105. Otay MFI LLC estimates that, as of February I, 2004, it will be required to
expend an additional $9,195,000 million to develop its property within Planning Areas R-20, R-21
and R-22 to finished lot status.
Otay R2/3 LLC, a Brookfield Entity, is the owner and Member Merchant Builder developing
homes in Planning Areas R-2 and R-3 (Twilight). Otay R2/3 LLC has a revolving loan from Wells
Fargo Bank with an outstanding balance of $8,726,775 as of January 31, 2004. In addition to using
loan proceeds to develop Planning Areas 2 and 3, Otay R2/3 LLC expects to apply cash or a portion
of the cash proceeds of homes sales for such purpose. Otay R2/3 LLC estimates, as of February I,
2004, that it will be required to expend an additional $3,556,000 to develop its property within
Planning Areas R-2 and R-3 to finished lot status.
Otay R7/1O LLC, a Brookfield Entity, is the owner and Member Merchant builder
developing homes in Planning Areas R-7 and R-IO (Cedar Rose). Otay R7/l0 LLC has an
acquisition and development loan from Union Bank with an outstanding balance of $5,243,656 as of
January 31,2004. In addition, Otay R7/10 LLC has two outstanding construction loans from Union
Bank with outstanding balances of $937,741 and $3,089,327, respectively, as of January 31, 2004.
In addition to using loan proceeds to develop Planning Areas R- 7 and R-I 0, Otay R7/J 0 LLC expects
to apply cash or a portion of the cash proceeds of homes sales for such purpose. Otay R7/1O LLC
estimates, as of February 1, 2004, it will be required to expend an additional $4,379,000 to develop
its property within Planning Area R- 7 to finished lot status.
The Line of Credit and the loans described above contain a number of terms and conditions
that must be satisfied as a condition to disbursing funds. No assurance can be given that the above-
described merchant builders will have access to funds under these financing arrangements or that
they can or will obtain any additional loans to finance their respective development projects. The
merchant builders have no legal obligations of any kind to obtain development loans or otherwise
advance funds for development costs.
Status of Entitlement Approvals
The District was zoned Planned Community ("PC") as part of the General Development Plan
("GDP") planning process. The PC zone required a multi-phase planning process beginning with a
GDP, followed by the preparation of a Sectional Planning Area ("SPA") Plan. The SPA Plan is to be
used as a supplement to other existing City regulations, and supersedes those established in the City
Zoning Ordinance. Incorporated into the SPA Plan is the Site Utilization Plan, which designates the
zoning on the District. The SPA Plan was adopted by the City on October 23,2001, by Resolution
No. 2001-363 as amended on May 27,2003, by Resolution No. 2003-230. Per the SPA Plan, the
District is designated for a maximum of 2,304 residential units, 10 acres of mixed uses including
residential and commercial sites, an II-acre elementary school site, a 25.5-acre junior high school
site, 49 acres of parks and open space lands, a 5.5-acre community purpose facility site, and both
major circulation and internal streets.
The District is covered by a Tentative Map for Village Eleven allowing for the development
of all of the planned residential and commercial development within the District. Final Maps
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(dividing the property into individual lots) have been approved for planning areas R-1, R-2, R-4, R- 7
and R-23. Planning areas R-3, R-5, R-6, R-8, R-9, R-lO, R-20, R-21, and R-22 are currently under
review by the City Design Review Committee.
The Developer believes that all discretionary approvals required for the development of the
District have been obtained.
In response to the conclusions in the most recent traffic study, the City has implemented a
building permit monitoring program for a number of projects in The Otay Ranch, including those
within the District. See "- Potential Limitations on Development."
Environmental Constraints
The land within the District has undergone extensive environmental and biological review
and has received the necessary permits for the development of the entire property covered by the
tentative map. The Developer believes that it has obtained all permits and approvals required by any
environmental laws and regulations which are needed to complete the proposed development within
the District.
Infrastructure Requirements and Construction Status
The infrastructure requirements for the District can be grouped into two categories with their
construction status as of February I, 2004 as follows:
Major Backbone Irifrastructure. Work on the backbone infrastructure improvements for the
District are either complete or under construction. All roads within Phase I are paved and
landscaping of the medians, slopes and rights-of-way are currently underway. The roadway
improvements for Phase 1 include the construction of Evening Star Street and Kestrel Falls Road and
portions of Hunte Parkway, Eastlake Parkway, Hidden Path Drive, Windingwalk Street, and
Exploration Falls Drive. Backbone infrastructure improvement in Phases 2 and 3 include Birch
Road, Discovery Falls Drive and Crossroads Street and the remaining portions of Hunte Parkway,
Eastlake Parkway, Windingwalk Street, Hidden Path Drive and Exploration Falls Drive. Backbone
infrastructure improvements in Phase 2 have commenced and are expected to be completed in
December 2004. Phase 3 backbone infrastructure improvements are expected to commence in fourth
quarter of2004.
Intract Infrastructure. All planning areas within Phase I have been graded to finish pads and
water and sewer and dry utilities have been installed. Grading in Phases 2 has commenced and is
scheduled for completion in the second quarter of 2004. Phase 3 grading is expected to commence in
the fourth quarter of 2004.
Potential Limitations on Development
Salt Creek Trunk Sewer Improvements. The City, the Developer and certain entities related
to the Developer have entered into a Supplemental Subdivision Improvement Agreement, as
amended by the First Amendment to the Supplemental Subdivision Improvement Agreement and
Second Amendment to the Supplemental Subdivision Improvement Agreement (collectively, the
"Improvement Agreement") whereby the Developer has agreed not to request more than 722 building
permits or 533 certificates of occupancy until certain improvements have been made to the Salt
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._----~---
Creek Trunk Sewer line in order to provide adequate sewer services for the homes to be developed in
the District. The City has commenced construction of the sewer line improvements, which are
expected to be complete by June, 2004. In the event the Developer breaches any of the tenns of the
Improvement Agreement, the City may withhold the issuance of additional building pennits for the
development of homes within the District.
Growth Management Oversight Commission ("GMOC"). The City has established a
Threshold Standards Policy (the "Threshold Policy") through the adoption of a Growth Management
Ordinance, which established eleven public facility and service area "quality of life" measures. The
eleven public facility and service thresholds include police, fire and emergency medical services,
traffic, schools, parks and recreation, libraries, sewer, drainage, fiscal impact, air quality and water.
The Threshold Policy established goals, objectives, standards or thresholds and applicable
implementation measures for the eleven services. The GMOC was created to provide an annual
independent review for compliance with the Threshold Policy.
The GMOC review for compliance occurs on a fiscal year cycle. The Threshold Policy calls
for preparation of short-range, 12 to 18 month, and mid-range, five to seven year, development
forecasts. These forecasts are utilized by City staff and external service agencies to evaluate
projected service levels, identifY any potential threshold problems and address implementation
measures to avoid level of service problems.
As a condition to developing property within the District, a landowner must, prior to final
map approval for a parcel, enter into an agreement with the City acknowledging that building penn its
may be withheld if any of the required development threshold limits set in the City transportation
planning phase are exceeded. The tentative map conditions for the land within the District also
subject the land to the provisions ofthe GMOc.
The Threshold Policy includes traffic thresholds which require that level of service "c" be
maintained on the arterial street system except level of service "D" can occur for no more than two
hours of the day. The level of service is a descriptive and qualitative measure of the degree of traffic
congestion experienced by motorists. There are six levels of congestion, assigned letters 'A' through
'F.' Levels of service 'A' Through 'D' represent generally acceptable levels of service with level of
service' A' corresponding to no congestion and level of service 'C' represents a range in which the
ability of vehicles to maneuver is affected by the presence of other vehicles and speeds begin to show
some reduction. Level of service 'D' is approaching roadway capacity with the ability to maneuver
being severely restricted and traffic is subject to speed reductions. Level of service 'E' is at roadway
capacity with unstable speeds. Level of service 'F' occurs when roadway capacity is exceeded,
excessive delays are experienced and stop-and-go traffic conditions exist. Should the traffic
threshold standard be exceeded, the Growth Management Ordinance calls for a building pennit
moratorium to be considered by the City Council until the threshold problem can be mitigated. There
can be no guarantee that any such moratorium would exclude the District, even if the traffic
congestion leading to such moratorium occurs outside ofthe District's area.
Throughout the fall of 2002 and the spring of 2003, the City monitored the traffic conditions
on the major east-west arterials east of 1-805 to measure compliance with the levels of service
described in the GMOC.
In response to the conclusions in the most recent traffic study, the City has implemented a
building pennit monitoring program (the "Monitoring Program") for a number of projects in The
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Otay Ranch, including those within the District. The Developer and the City have entered into an
agreement (the "Monitoring Agreement") which provides that up to 378 building pennits may be
issued for units within the District between April I, 2003 and March 31, 2004, 568 pennits between
April 1, 2004 and March 31, 2005 and 492 pennits between April 1, 2005 and March 31, 2006.
Release of certain pennits depends upon the construction of certain roadway improvements. If a
roadway improvement is not completed by the date set forth in the Monitoring Agreement, then, until
it is completed, the corresponding number of building pennits attributed to such improvement will be
deducted from the total number of permits to be issued for the last 12 months of the Monitoring
Program. The amount deducted will be prorated against all developers included within the
Monitoring Program on a proportionate basis. In arriving at the conclusions in the Market
Absorption Study and the Appraisal, both the Market Absorption Consultant and the Appraiser
considered the impact of the Monitoring Agreement and have assumed that penn its for all 2,265
units planned within the District will be available and will not be reduced as a result of a failure to
complete any ofthe roadway improvements referenced in the Monitoring Agreement.
The quality of life thresholds of the GMOC and the Thresholds Policy remain in effect and
supersede the provisions of the Monitoring Agreement. Should the City detennine that the standards
of the Threshold Policy are not being met, it could impose further limitations or a moratorium on the
issuance of building penn its within the District. The City does not currently anticipate that it will
need to further restrict or prohibit the issuance of building pennits within the District; however,
currently unforeseen events could result in further action by the City under the GMOC.
A development slowdown beyond that resulting from the Monitoring Program imposed in the
Monitoring Agreement or a moratorium on development could adversely impact the rate of
development in the District and presents certain risks to the owners of the Bonds. See "SPECIAL
RISK FACTORS - Failure to Develop Properties" and "- Future Land Use Regulations and
Growth Control Initiatives."
Investors should note that, in particular, the City may amend its Growth Management
Ordinance from time to time and no assurance can be given that its tenns will not be more restrictive
on development than those currently in effect.
Appraisal
The information regarding ownership of property in the District included in the Appraisal
has been included because it is considered relevant to an iriformed evaluation of the Bonds. The
inclusion in this Official Statement of iriformation related to existing owners of property should not
be construed to suggest that the Bonds, or the Special Taxes that will be used to pay the Bonds, are
recourse obligations of the property owners. A property owner may sell or otherwise dispose of land
within the District or a development or any interest therein at any time. Development may also be
abandoned at any time.
The Appraiser valued the property within the District, taking into consideration the lien of the
Special Taxes, based upon a number of assumptions and limiting conditions contained in the
Appraisal as set forth in Appendix C. The Appraiser has valued the property within the District
based upon a sales comparison approach to value and, as to the property owned by the Developer, the
sales comparison approach was coupled with a discounted cash flow analysis. Under the sales
comparison approach to value, the Appraisal takes into account the development status of the
residential lots, analyzes the market for similar properties and compares these properties to the
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properties in the District. The Appraiser then arrives at an estimated retail value for finished lots in
the District. Under the discounted cash flow analysis, the Appraiser values the undeveloped acreage
by discounting to a present value the net cash flow projected to result trom the development of the
finished lots. The Appraiser first estimates the retail value of the finished lots, the costs of
developing the finished lots, the estimated absorption period and the marketing, sales and carrying
costs. The Appraiser then applies a discount rate to the projected cash flow that accounts for the risk
associated with the development of the lots, the time value of money and a profit due to the owner of
the lots. Based on historical information, the Appraiser has assumed annual appreciation of 3% on
land sales and 3% on development costs. A discount rate of 25% per year has been used by the
Appraiser in arriving at the estimate of value for the land within the District.
The Appraiser is of the opinion that the aggregate "as is" value of the land within the District
as of December 1, 2003, assuming the completion of all improvements to be financed with proceeds
ofthe Bonds was $209,762,000. Of this total, the lots previously distributed by the Developer to its
members were valued at $112,885,000 and the property owned by the Developer at $96,877,000.
Certain land that is expected to become exempt from the levy of Special Taxes in the future was not
assigned a value in the Appraisal.
In arriving at its statement of value, the Appraiser assumed that the remaining development
costs provided by the Developer are accurate, there are no hidden or unapparent conditions of the
property or subsoil that render it more or less valuable, that all required licenses, certificates of
occupancy or other legislative or administrative authorizations from governmental agencies or
private entities or organizations have been or can be obtained, that no hazardous waste and/or toxic
materials are located on the property within the District that would affect the development process,
that the improvements to be funded with the Bonds are completed and that the proposed development
is constructed in a timely manner with no adverse delays (i.e., construction will proceed as proposed
with no limitations on development occurring beyond those imposed by the Monitoring Agreement).
See "- Potential Limitations on Development" above.
No assurance can be given that the assumptions made by the Appraiser will, in fact, be
realized, and, as a result, no assurance can be given that the property within the District could be sold
at the appraised values included in the Appraisal.
Market Absorption Study
The Market Absorption Study dated December 1, 2003, has been prepared by the Market
Absorption Consultant. An executive summary of the Market Absorption Study dated
2004, is included herein as Appendix B. The Market Absorption Consultant has estimated, based
upon the analysis of relevant demographic and economic conditions in the Chula Vista area, the
number of housing units in the District that can be expected to be marketed and sold annually using
the estimated absorption schedules for each of the product types. The Market Absorption Study
concludes that given market conditions and the Monitoring Agreement it will take until 2007 for the
residential units within the District to be constructed and sold. The Market Absorption Consultant
has projected that the market would support a faster rate of absorption for residential units in the
District than is allowed pursuant to the Monitoring Agreement. The Market Absorption Study
projects that, absent the constraints of the Monitoring Agreement, the residential units in the District
could sell out over a 12-quarter period and that, in addition to the 96 homes absorbed in 2003, 642
homes could be absorbed in 2004, 449 in 2005, 816 in 2006 and 62 in 2007. The Monitoring
Agreement allows for 1,438 building permits to be issued within the District in the three-year period
44
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from April 2003 to March 2006. The Market Absorption Consultant predicts that up to 1,843
building pennits could be issued in this period assuming sales as projected above, leaving a shortfall
of 405 building pennits (205 if R-25 is developed with affordable units). If this 1,438 limit is
reached prior to April 2006, as projected by the Market Absorption Consultant, then the issuance of
penn its will stop for one or two quarters. The Market Absorption Consultant concludes that, despite
such delay, it is possible that all remaining building pennits would be issued during the last three
quarters of 2006 after the limitations of the Monitoring Agreement expire, with final sales absorption
taking place in 2007, assuming no further constraints are imposed on the issuance of building
penn its.
The Market Absorption Study assumes that all required governmental approvals will be
obtained in a timely manner and that there will be no slowdown in the issuance of pennits due to the
City's GMOC beyond those contained in the Monitoring Agreement, that there are no physical
impediments to construction such as earthquakes and hazardous waste, that the public infrastructure
necessary to develop will be provided in a timely manner, that the merchant builders in the District
will maximize the market potential through strict product differentiation, appropriate and competitive
pricing and timely infrastructure completion, that the developers and merchant builders and their
lenders have sufficient financial strength to fund adequately the projects and that they have sufficient
cash flow reserves to supplement their cash flow positions in the event that adverse economic or
market conditions occur. The Market Absorption Consultant concludes that the success of the
planned development in the District will depend on national, regional and local economic conditions
during the projected buildout period. The actual absorption of units could be adversely affected if
one or more of the foregoing assumptions is not realized or if economic conditions change in a
manner that adversely affects housing projects. See Appendix B - "SUMMARY OF MARKET
ABSORPTION STUDY."
SPECIAL RISK FACTORS
The purchase of the 2004 Bonds involves a high degree of investment risk and, therefore, the
2004 Bonds are not appropriate investments for many types of investors. The following is a
discussion of certain risk factors which should be considered, in addition to other matters set forth
herein, in evaluating the investment quality of the 2004 Bonds. This discussion does not purport to
be comprehensive or definitive. The occurrence of one or more of the events discussed herein could
adversely affect the ability or willingness of property owners in the District to pay their Special
Taxes when due. Such failures to pay Special Taxes could result in the inability of the District to
make full and punctual payment of debt service on the 2004 Bonds. In addition, the occurrence of
one or more of the events discussed herein could adversely affect the value of the property in the
District. See "Land Values" and "Limited Secondary Market" below.
Concentration of Ownership
As of December 1, 2003, all of the taxable land within the District was owned by the
Developer and the Member Merchant Builders. Although a few individual homeowners have now
closed escrow, as set forth in Table 2 above, a significant amount of the projected fiscal year 2004-05
Special Tax levy will be levied against Developed and Approved Property owned by the Member
Merchant Builders. See "THE COMMUNITY F AC1LlTIES DISTRICT - Principal Taxpayers."
This concentration of ownership presents a risk to investors. Until the completion and sale of
additional parcels, the receipt of the Special Taxes is dependent on the willingness and the ability of
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DOCSOCII 018657v7/22245-01 39
__n'-..-_- .
the Member Merchant Builders, and beginning in fiscal year 2005-06 the Developer and any
additional Member Merchant Builders or third-party developers, to pay the Special Taxes when due.
Failure of the current landowners, or any successor, to pay the annual Special Taxes when due could
result in a default in payments of the principal of, and interest on, the 2004 Bonds, when due. See
"- Failure to Develop Properties" below.
No assurance can be made that the Developer, the merchant builders, or their successors, will
complete the intended construction and development in the District. See "- Failure to Develop
Properties" below. As a result, no assurance can be given that such landowners will continue to pay
Special Taxes in the future or that they will be able to pay such Special Taxes on a timely basis. See
"- Bankruptcy and Foreclosure" below, for a discussion of certain limitations on the District's
ability to pursue judicial proceedings with respect to delinquent parcels.
Limited Obligations
The Bonds and interest thereon are not payable from the general funds of the City. Except
with respect to the Special Taxes, neither the credit nor the taxing power of the District or the City is
pledged for the payment of the Bonds or the interest thereon, and, except as provided in the
Indenture, no Owner of the Bonds may compel the exercise of any taxing power by the District or the
City or force the forfeiture of any City or District property. The principal of, premium, if any, and
interest on the Bonds are not a debt of the City or a legal or equitable pledge, charge, lien or
encumbrance upon any of the City's or the District's property or upon any of the City's or the
District's income, receipts or revenues, except the Special Taxes and other amounts pledged under
the Indenture.
Insufficiency of Special Taxes
Under the Rate and Method, the annual amount of Special Tax to be levied on each taxable
parcel in the District will generally be based on whether such parcel is categorized as Undeveloped
Property or as Developed Property and on the land use class to which a parcel of Developed Property
is assigned. See Appendix A - "RATE AND METHOD OF APPORTIONMENT OF SPECIAL
TAXES" and "SOURCES OF PAYMENT FOR THE BONDS - Method of Apportionment of
Special Tax."
The Rate and Method governing the levy of the Special Tax expressly exempts property
owned by public agencies or a property owners association, or property classified as open space,
community purpose facility property provided that no such exemption shall reduce the sum of all
taxable property to less than 147.15 acres in Zone A and 59.04 acres in Zone B.
If a substantial portion of land within the District became exempt from the Special Tax
because of public ownership, or otherwise, the maximum Special Tax which could be levied
upon the remainiug property withiu the District might not be sufficient to pay principal of and
interest on the Bonds when dne and a default could occur with respect to the payment of such
principal and interest.
Special Tax Delinquencies
Under provisions of the Act, the Special Taxes, from which funds necessary for the payment
of principal of, and interest on, the Bonds are derived, are customarily billed to the properties within
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the District on the ad valorem property tax bills sent to owners of such properties. The Act currently
provides that such Special Tax installments are due and payable, and bear the same penalties and
interest for non-payment, as do ad valorem property tax installments. See "SOURCES OF
PAYMENT FOR THE BONDS - Special Taxes," for a discussion of the provisions which apply,
and procedures which the District is obligated to follow under the Indenture, in the event of
delinquencies in the payment of Special Taxes. See "- Bankruptcy and Foreclosure" below, for a
discussion of the policy of the Federal Deposit Insurance Corporation (the "FDIC") regarding the
payment of special taxes and assessment and limitations on the District's ability to foreclosure on the
lien of the Special Taxes in certain circumstances.
Failure to Develop Properties
Undeveloped or partially developed land is inherently less valuable than developed land and
provides less security to the Bondowners should it be necessary for the District to foreclose on the
property due to the nonpayment of Special Taxes. The failure to complete development of the
required infrastructure for development in the District as planned, or substantial delays in the
completion of the development or the required infrastructure for the development due to litigation or
other causes may reduce the value of the property within the District and increase.the length oftime
during which Special Taxes will be payable from undeveloped property, and may affect the
willingness and ability of the owners of property within the District to pay the Special Taxes when
due.
Land development is subject to comprehensive federal, State and local regulations. Approval
is required from various agencies in connection with the layout and design of developments, the
nature and extent of improvements, construction activity, land use, zoning, school and health
requirements, as well as numerous other matters, There is always the possibility that such approvals
will not be obtained or, if obtained, will not be obtained on a timely basis. Failure to obtain any such
agency approval or satisfY such governmental requirements would adversely affect planned land
development. Finally, development of land is subject to economic considerations.
Additionally, the Developer and the merchant builders may need to obtain financing to
complete the development of the property and units that they are developing. No assurance can be
given that the required funding will be secured or that the proposed development will be partially or
fully completed, and it is possible that cost overruns will be incurred which will require additional
funding beyond what the Developer has projected, which mayor may not be available. See "THE
DEVELOPMENT AND PROPERTY OWNERSHIP - Finance Plan" herein.
The future development of the vacant land within the District may be adversely affected by
existing or future governmental policies, or both, restricting or controlling the development of vacant
land in the District. See "THE DEVELOPMENT AND PROPERTY OWNERSHIP - Potential
Limitations on Development" for a discussion of certain significant limitations on the' ability of the
Developer and merchant builders to complete the projected development in the District. Specifically,
investors should consider the broad power of the City to halt or delay development under its Growth
Management Ordinance. There can be no assurance that the owners of the vacant land in the District
will be able to secure the necessary discretionary approvals if they choose to develop their properties.
See also" - Future Land Use Regulations and Growth Control Initiatives" below.
There can be no assurance that land development operations within the District will not be
adversely affected by a future deterioration of the real estate market and economic conditions or
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future local, State and federal governmental policies relating to real estate development, the income
tax treatment of real property ownership, or the national economy, or the direct or indirect
consequences of military and/or terrorist activities in this country or abroad. A slowdown of the
development process and the absorption rate could adversely affect land values and reduce the ability
or desire of the property owners to pay the annual Special Taxes. In that event, there could be a
default in the payment of principal of, and interest on, the 2004 Bonds when due.
Bondowners should assume that any event that significantly impacts the ability to develop
land in the District to a degree not considered by the Appraiser would cause the property values
within the District to decrease substantially from those estimated by the Appraiser and could affect
the willingness and ability of the owners of land within the District to pay the Special Taxes when
due.
The payment of principal of and interest on the 2004 Bonds depends upon the receipt of
Special Taxes levied on undeveloped property. Undeveloped property is less valuable per unit of
area than developed land, especially if there are no plans to develop such land or if there are severe
restrictions on the development of such land. The undeveloped property also provides less security
to the Bondowners should it be necessary for the District to foreclose on undeveloped property due to
the nonpayment of the Special Taxes. Furthermore, an inability to develop the land within the
District as currently proposed will make the Bondowners dependent upon timely payment of the
Special Taxes levied on undeveloped property for a longer period of time than projected. Because
substantially all of the land within the District is currently owned by the Developer and the Member
Merchant Builders, the timely payment of the 2004 Bonds depends upon the willingness and ability
of such owners to pay the Special Taxes levied on the undeveloped property when due. See "-
Concentration of Ownership" above. A slowdown or stoppage in the continued development of the
District could reduce the willingness and ability of such owners to make Special Tax payments on
undeveloped property and could greatly reduce the value of such property in the event it has to be
foreclosed upon. See "- Land Values" below.
Future Land Use Regulations and Growth Control Initiatives
The City currently has the authority under its Growth Management Ordinance to limit or halt
development within the District if certain quality of life standards are not met within the City. See
'THE DEVELOPMENT AND PROPERTY OWNERSHIP - Potential Limitations on
Development."
]n addition, it is possible that future growth control initiatives could be enacted by the voters
or future local, state or federal land use regulations could be adopted by governmental agencies and
be made applicable to the development of the vacant land within the District with the effect of
negatively impacting the ability of the owners of such land to complete the development of such land
if they should desire to develop it. Development could also be delayed or prohibited under the City's
existing Growth Management Ordinance. This possibility presents a risk to prospective purchasers
of the 2004 Bonds in that an inability to complete desired development increases the risk that the
2004 Bonds will not be repaid when due. The owners of the 2004 Bonds should assume that any
reduction in the permitted density, significant increase in the cost of development of the vacant land
or substantial delay in development caused by growth and building permit restrictions or more
restrictive land use regulations would cause the values of such vacant land within the District to
decrease. A reduction in land values increases the likelihood that in the event of a delinquency in
payment of Special Taxes a foreclosure action will result in inadequate funds to repay the 2004
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Bonds when due. In completing their analyses, both the Appraiser and the Market Absorption
Consultant have assumed that there will be no delays in development due to land use regulations or
growth control initiatives.
Completion of construction of any proposed structures on the vacant land within the District
is subject to the receipt of approvals from a number of public agencies concerning the layout and
design of such structures, land use, health and safety requirements and other matters. The failure to
obtain any such approval could adversely affect the planned development of such land.
Under current State law, it is generally accepted that proposed development is not exempt
ITom future land use regulations until building permits have been issued and substantial work has
been perfonned and substantial liabilities have been incurred in good faith reliance on the pennits.
Because future development of vacant property in the District could occur over several years, if at
all, the application of future land use regulations to the development of the vacant land could cause
significant delays and cost increases not currently anticipated, thereby reducing the development
potential of the vacant property and the ability or willingness of owners of such land to pay Special
Taxes when due or causing land values of such land within the District to decrease substantially from
those in the Appraisal.
Water Availability
The development of the land within the District is dependent upon the availability of water
for the planned units. The Otay Municipal Water District (the "Water District") is the agency
responsible for providing water to the District. The Water District receives a significant portion of its
water from the Metropolitan Water District ("MWD"), which is the primary supplier of wholesale
water in Southern California. MWD's major source of water is the State Water Project operated by
the California Department of Water Resources. MWD is also apportioned the use of a certain
amount of water delivered to the State from the Colorado River. In addition to this apportionment,
MWD is also entitled to surplus water from the Colorado River. On December 31, 2002, the federal
government suspended the delivery of surplus water ITom the Colorado River to MWD as a result of
the failure of certain water agencies in the State to reach agreement on the transfer of water rights
from the Imperial Irrigation District to coastal San Diego County. Reinstatement of surplus water
deliveries to MWD can occur if such agreement is executed or if the State takes other actions
required by the federal government. Additionally, the availability of water depends upon the
weather, the rate of development and other factors.
The Developer and the City believe that the Water District will be able to provide water to
the District to penn it the construction of the planned units. No assurance can be given, however, that
water service will be available at the time that building permits are applied for, and the lack of water
availability could adversely affect the planned development in the District. A slowdown or stoppage
in the continued development of the District could reduce the willingness and ability of such owners
to make Special Tax payments on undeveloped property and could greatly reduce the value of such
property in the event it has to be foreclosed upon. See "- Land Values" below.
Endangered Species
In recent years there has been an increase in activity at the State and federal levels related to
the possible listing of certain plant and animal species found in the southern San Diego County area
as endangered species. An increase in the number of endangered species could curtail development
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in the southern San Diego County area. Any action by the State or federal governments to protect
species located on or adjacent to the property within the District could negatively impact the ability
of the owners ofthat land to develop it. This, in turn, could reduce the likelihood oftimely payment
of the Special Taxes levied against such that land and would likely reduce the value of such land and
the potential revenues available at the foreclosure sale for delinquent Special Taxes. See "- Failure
to Develop Land" above.
As of February I, 2004, the Phase 1 and Phase 2 portions of property within the District have
either been graded or were undergoing grading. Grading of Phase 3 property is expected to
commence in the fourth quarter of 2004. Accordingly to the Developer no known native habitat
exists in the Phase 3 portions of property within the District.
Natural Disasters
The District, like all California communities, may be subject to unpredictable seismic
activity, fires, flood, or other natural disasters. Southern California is a seismically active area.
Seismic activity represents a potential risk for damage to buildings, roads, bridges and property
within the District. In addition, land susceptible to seismic activity may be subject to liquefaction
during the occurrence of such event. Portions of Southern California are subject to wildfires. In
October 2003, over 200,000 acres and over two thousand homes were destroyed in wildfires in San
Diego County. The land within the District was not affected by these wildfires, but the terrain to the
east of the District includes large tracts of open space that could be susceptible to damage from
wildfires in the future, and it is possible that the District could be affected by a future wildfire.
In the event of a severe earthquake, fire, flood or other natural disaster, there may be
significant damage to both property and infrastructure in the District. As a result, a substantial
portion of the property owners may be unable or unwilling to pay the Special Taxes when due. In
addition, the value of land in the District could be diminished in the aftermath of such a natural
disaster, reducing the resulting proceeds of foreclosure sales in the event of delinquencies in the
payment of the Special Taxes.
Hazardous Substances
The presence of hazardous substances on a parcel may result in a reduction in the value of a
parcel. In general, the owners and operators of a parcel may be required by law to remedy conditions
of the parcel relating to releases or threatened releases of hazardous substances. The Federal
Comprehensive Environmental Response, Compensation and Liability Act of 1980, sometimes
referred to as "CERCLA" or the "Superfund Act," is the most well-known and widely applicable of
these laws, but California laws with regard to hazardous substances are also stringent and similar.
Under many of these laws, the owner or operator is obligated to remedy a hazardous substance
condition of property whether or not the owner or operator has anything to do with creating or
handling the hazardous substance. The effect, therefore, should any of the taxed parcels be affected
by a hazardous substance, is to reduce the marketability and value of the parcel by the costs of
remedying the condition, because the purchaser, upon becoming owner, will become obligated to
remedy the condition just as is the seller.
Further, it is possible that liabilities may arise in the future with respect to any of the parcels
resulting from the existence, currently, on the parcel of a substance presently classified as hazardous
but which has not been released or the release of which is not presently threatened, or may arise in
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the future resulting from the existence, currently on the parcel of a substance not presently classified
as hazardous but which may in the future be so classified. Further, such liabilities may arise not
simply from the existence of a hazardous substance but from the method of handling it. All of these
possibilities could significantly affect the value of a parcel that is realizable upon a delinquency.
Neither the City nor the Developer has knowledge of any hazardous substances being located
on the property within the District.
Parity Taxes, Special Assessments and Land Development Costs
Property within the District is subject to the lien of taxes and assessments imposed by public
agencies also having jurisdiction over the land within the District and several overlapping districts.
See "THE COMMUNITY FACILITIES DISTRICT - Estimated Direct and Overlapping
Indebtedness."
The Special Taxes and any penalties thereon will constitute a lien against the lots and parcels
of land on which they will be annually imposed until they are paid. Such lien is on a parity with all
special taxes and special assessments levied by the City and other agencies and is co-equal to and
independent of the lien for general property taxes regardless of when they are imposed. The Special
Taxes have priority over all existing and future private liens imposed on the property except,
possibly, for liens or security interests held by the Federal Deposit Insurance Corporation. See "-
Bankruptcy and Foreclosure" below.
Development of land within the District is contingent upon construction or acquisition of
major public improvements such as arterial streets, water distribution facilities, sewage collection
and transmission facilities, drainage and flood protection facilities, gas, telephone and electrical
facilities, schools, parks and street lighting, as well as local in-tract improvements and on-site
grading and related improvements. Certain of these improvements have been acquired and/or
completed; however, there can be no assurance that the remaining improvements will be constructed
or will be constructed in time for development to proceed as currently expected. The cost of these
additional improvements plus the public and private in-tract, on-site and off-site improvements could
increase the public and private debt for which the land within the District is security. This increased
debt could reduce the ability or desire of the property owners to pay the annual Special Taxes levied
against the property. In that event there could be a default in the payment of principal of, and interest
on, the Bonds when due.
Neither the City nor the District has control over the ability of other entities and
districts to issue indebtedness secured by special taxes or assessments payable from all or a
portion of the property within tbe District. In addition, the landowners within tbe District
may, witbout the consent or knowledge of the City, petition other public agencies to issue
public indebtedness secured by special taxes or assessments. Any such special taxes or
assessments may have a lien on such property on a parity with the Special Taxes and could
reduce the estimated value-to-lien ratios for property within the District described herein.
Disclosures to Future Purchasers
The willingness or ability of an owner of a parcel to pay the Special Tax even if the value of
the parcel is sufficient may be affected by whether or not the owner was given due notice of the
Special Tax authorization at the time the owner purchased the parcel, was infonned of the amount of
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"'n--_____------------- -------- h_--_._~.- -----------
the Special Tax on the parcel should the Special Tax be levied at the maximum tax rate and the risk
of such a levy and, at the time of such a levy, has the ability to pay it as well as pay other expenses
and obligations. The City has caused a notice of the Special Tax lien to be recorded in the Office of
the County Recorder of the County of San Diego against each parcel. While title companies
normally refer to such notices in title reports, there can be no guarantee that such reference will be
made or, if made, that a prospective purchaser or lender will consider such Special Tax obligation in
the purchase of a property within the District or lending of money thereon.
The Act requires the subdivider (or its agent or representative) of a subdivision to notify a
prospective purchaser or long-tenn lessor of any lot, parcel, or unit subject to a Mello-Roos special
tax of the existence and maximum amount of such special tax using a statutorily prescribed fonn.
California Civil Code Section 1102.6b requires that in the case of transfers other than those covered
by the above requirement, the seller must at least make a good faith effort to notify the prospective
purchaser of the special tax lien in a fonnat prescribed by statute. Failure by an owner of the
property to comply with the above requirements, or failure by a purchaser or lessor to consider or
understand the nature and existence of the Special Tax, could adversely affect the willingness and
ability of the purchaser or lessor to pay the Special Tax when due.
Non-Cash Payments of Special Taxes
Under the Act, the City Council as the legislative body of the District may reserve to itself
the right and authority to allow the owner of any taxable parcel to tender a Bond in full or partial
payment of any installment of the Special Taxes or the interest or penalties thereon. A Bond so
tendered is to be accepted at par and credit is to be given for any interest accrued thereon to the date
of the tender. Thus, if Bonds can be purchased in the secondary market at a discount, it may be to
the advantage of an owner of a taxable parcel to pay the Special Taxes applicable thereto by
tendering a Bond. Such a practice would decrease the cash flow available to the District to make
payments with respect to other Bonds then outstanding; and, unless the practice was limited by the
District, the Special Taxes paid in cash could be insufficient to pay the debt service due with respect
to such other Bonds. In order to provide some protection against the potential adverse impact on
cash flows which might be caused by the tender of Bonds in payment of Special Taxes, the Indenture
includes a covenant pursuant to which the District will not authorize owners of taxable parcels to
satisfy Special Tax obligations by the tender of Bonds unless the District shall have first obtained a
report of a Special Tax Consultant certifying that doing so would not result in the District having
insufficient Special Tax Revenues to pay the principal of and interest on all Outstanding Bonds and
any Parity Bonds when due.
Payment of the Special Tax is not a Personal Obligation ofthe Owners
An owner of a taxable parcel is not personally obligated to pay the Special Tax. Rather, the
Special Tax is an obligation which is secured only by a lien against the taxable parcel. If the value of
a taxable parcel is not sufficient, taking into account other liens imposed by public agencies, to
secure fully the Special Tax, the District has no recourse against the owner.
Land Values
The value of the property within the District is a critical factor in detennining the investment
quality of the 2004 Bonds. If a property owner is delinquent in the payment of Special Taxes, the
District's only remedy is to commence foreclosure proceedings in an attempt to obtain funds to pay
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the Special Taxes. Reductions in property values due to a downturn in the economy, the direct or
indirect consequences of military and/or terrorist actions in this country or abroad, physical events
such as earthquakes, fires or floods, stricter land use regulations, delays in development or other
events will adversely impact the security underlying the Special Taxes. See 'THE COMMUNITY
FACILITIES DISTRICT - Estimated Value-to-Lien Ratios" herein.
The assessed values set forth in this Official Statement do not represent market values arrived
at through an appraisal process and generally reflect only the sales price of a parcel when acquired by
its current owner, adjusted annually by an amount determined by the San Diego County Assessor, not
to exceed an increase of more than 2% per fiscal year. No assurance can be given that a parcel could
actually be sold for its assessed value.
The Appraiser has estimated, on the basis of certain definitions, assumptions and limiting
conditions contained in the Appraisal, that as of December I, 2003 the value of the land within the
District was $209,762,000. The Appraisal is based on the assumptions as stated in Appendix C-
"APPRAISAL REPORT." The Appraisal does not reflect any possible negative impact which could
occur by reason of future actions by the City under the Growth Management Ordinance or future
slow or no growth voter initiatives, any potential limitations on development occurring due to time
delays, an inability of the property owners within the District to obtain any needed development
approval or permit, the presence of hazardous substances within the District, the listing of
endangered species or the determination that habitat for endangered or threatened species exists
within the District, or other similar situations. The Appraiser has conditioned the Appraisal on four
special conditions in addition to the typical list of assumptions and limiting conditions, including
that: (i) the value takes into consideration the improvements to be financed with the proceeds of the
Bonds, (ii) the cost estimates provided by the Developer are accurate and complete, (iii) building
permits will be made available to projects in the District in accordance with the schedule in the
Monitoring Agreement and thereafter that no additional monitoring of building permits will be
imposed, and (iv) there are no environmental or moratorium issues which would slow or thwart
development of the District to its highest and best use. See "THE DEVELOPMENT AND
PROPERTY OWNERSHIP - Potential Limitations on Development" and Appendix C -
"APPRAISAL REPORT."
Prospective purchasers of the 2004 Bonds should not assume that the land within the District
could be sold at a foreclosure sale for delinquent Special Taxes for the appraised amount in the
Appraisal. In arriving at the estimates of value, the Appraiser assumes that any sale will be
unaffected by undue stimulus and will occur following a reasonable marketing period, which is not
always present in a foreclosure sale. See Appendix C for a description of other assumptions made by
the Appraiser and for the definitions and limiting conditions used by the Appraiser.
No assurance can be given that any bid will be received for a parcel with delinquent Special
Taxes offered for sale at foreclosure or, if a bid is received, that such bid will be sufficient to pay all
delinquent Special Taxes. See "SOURCES OF PAYMENT FOR THE BONDS - Special Tax -
Proceeds of Foreclosure Sales."
Terrorism
Neither the City nor the Developer can predict the economic effect of the ongoing threat of
terrorism and the response of the United States government to terrorist acts or threats, though impacts
could be significant. No assurance can be given that the direct and indirect consequences of military
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-...-------.-. --------
and/or terrorist activities in this country or abroad will not have an effect on the District, the
Developer or the property owners in the District, which may include, among other effects, a
slowdown in home sales and a decrease in land values in the District.
FDIC/Federal Government Interests in Properties
The ability of the District to foreclose the lien of delinquent unpaid Special Tax installments
may be limited with regard to properties in which the Federal Deposit Insurance Corporation (the
"FDIC") has an interest. In the event that any financial institution making any loan which is secured
by real property within the District is taken over by the FDIC, and prior thereto or thereafter the loan
or loans go into default, then the ability of the District to collect interest and penalties specified by
State law and to foreclose the lien of delinquent unpaid Special Taxes may be limited.
The FDIC's policy statement regarding the payment of state and local real property taxes (the
"Policy Statement") provides that property owned by the FDIC is subject to state and local real
property taxes only if those taxes are assessed according to the property's value, and that the FDIC is
immune from real property taxes assessed on any basis other than property value. According to the
Policy Statement, the FDIC will pay its property tax obligations when they become due and payable
and will pay claims for delinquent property taxes as promptly as is consistent with sound business
practice and the orderly administration of the institution's affairs, unless abandonment of the FDIC's
interest in the property is appropriate. The FDIC will pay claims for interest on delinquent property
taxes owed at the rate provided under state law, to the extent the interest payment obligation is
secured by a valid lien. The FDIC will not pay any amounts in the nature of fines or penalties and
will not pay nor recognize liens for such amounts. If any property taxes (including interest) on
FDIC-owned property are secured by a valid lien (in effect before the property became owned by the
FDIC), the FDIC will pay those claims. The Policy Statement further provides that no property of
the FDIC is subject to levy, attachment, garnishment, foreclosure or sale without the FDIC's consent.
In addition, the FDIC will not permit a lien or security interest held by the FDIC to be eliminated by
foreclosure without the FDIC's consent.
The Policy Statement states that the FDIC generally will not pay non-ad valorem taxes,
including special assessments, on property in which it has a fee interest unless the amount of tax is
fixed at the time that the FDIC acquires its fee interest in the property, nor will it recognize the
validity of any lien to the extent it purports to secure the payment of any such amounts. Special taxes
imposed under the Mello-Roos Act and a special tax formula which determines the special tax due
each year are specifically identified in the Policy Statement as being imposed each year and therefore
covered by the FDIC's federal immunity.
The District is unable to predict what effect the application of the Policy Statement would
have in the event of a delinquency in the payment of Special Taxes on a parcel within the District in
which the FDIC has or obtains an interest, although prohibiting the lien of the FDIC to be foreclosed
out at a judicial foreclosure sale could reduce or eliminate the number of persons willing to purchase
a parcel at a foreclosure sale. Such an outcome could cause a draw on the Reserve Account and
perhaps, ultimately, a default in payment on the 2004 Bonds.
Bankruptcy and Foreclosure
Bankruptcy, insolvency and other laws generally affecting creditors rights could adversely
impact the interests of owners of the Bonds in at least two ways. First, the payment of taxes by
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property owners and the ability of the District to foreclose the lien of a delinquent unpaid Special Tax
pursuant to its covenant to pursue judicial foreclosure proceedings may be limited by bankruptcy,
insolvency or other laws generally affecting creditors' rights or by the laws of the State relating to
judicial foreclosure. In addition, the prosecution of a foreclosure could be delayed due to many
reasons, including crowded local court calendars or lengthy procedural delays.
Second, the Bankruptcy Code might prevent moneys on deposit in the funds and accounts
created under the Indenture from being applied to pay interest on the Bonds and/or to redeem Bonds
if bankruptcy proceedings were brought by or against the Developer or a merchant builder and if the
court found that the Developer or such merchant builder had an interest in such moneys within the
meaning of Section 541(a)(1) of the Bankruptcy Code.
Although a bankruptcy proceeding would not cause the Special Taxes to become
extinguished, the amount of any Special Tax lien could be modified if the value of the property falls
below the value of the lien. If the value of the property is less than the lien, such excess amount
could be treated as an unsecured claim by the bankruptcy court. In addition, bankruptcy of a
property owner could result in a delay in prosecuting Superior Court foreclosure proceedings. Such
delay would increase the likelihood of a delay or default in payment of delinquent Special Tax
installments and the possibility of delinquent Special Tax installments not being paid in full.
On July 30, 1992, the United States Court of Appeals for the Ninth Circuit issued its opinion
in a bankruptcy case entitled In re Glasolv Marine Industries. In that case, the court held that ad
valorem property taxes levied by Snohomish County in the State of Washington after the date that
the property owner filed a petition for bankruptcy were not entitled to priority over a secured creditor
with a prior lien on the property. Although the court upheld the priority of unpaid taxes imposed
before the bankruptcy petition, unpaid taxes imposed after the filing of the bankruptcy petition were
declared to be "administrative expenses" of the bankruptcy estate, payable after all secured creditors.
As a result, the secured creditor was able to foreclose on the property and retain all the proceeds of
the sale except the amount of the pre-petition taxes.
The Bankruptcy Refonn Act of 1994 (the "Bankruptcy Refonn Act") included a provision
which excepts from the Bankruptcy Code's automatic stay provisions, "the creation of a statutory
lien for an ad valorem property tax imposed by . . . a political subdivision of a state if such tax comes
due after the filing of the petition [by a debtor in bankruptcy court]." This amendment effectively
makes the Glasoly holding inoperative as it relates to ad valorem real property taxes. However, it is
possible that the original rationale of the Glasply ruling could still result in the treatment of post-
petition special taxes as "administrative expenses," rather than as tax liens secured by real property,
at least during the pendency of bankruptcy proceedings.
According to the court's ruling, as administrative expenses, post petition taxes would be paid,
assuming that the debtor had sufficient assets to do so. In certain circumstances, payment of such
administrative expenses may be allowed to be deferred. Once the property is transferred out of the
bankruptcy estate (through foreclosure or otherwise), it would at that time become subject to current
ad valorem taxes.
The Act provides that the Special Taxes are secured by a continuing lien which is subject to
the same lien priority in the case of delinquency as ad valorem taxes. No case law exists with respect
to how a bankruptcy court would treat the lien for Special Taxes levied after the filing of a petition in
bankruptcy. Glasoly is controlling precedent on bankruptcy courts in the State. If the Glasolv
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.----------
precedent was applied to the levy of the Special Taxes, the amount of Special Taxes received from
parcels whose owners declare bankruptcy could be reduced.
The various legal opinions to be delivered concurrently with the delivery of the 2004 Bonds
(including Bond Counsel's approving legal opinion) will be qualified, as to the enforceability of the
various legal instruments, by moratorium, bankruptcy, reorganization, insolvency or other similar
laws affecting the rights of creditors generally.
No Acceleration Provision
The 2004 Bonds do not contain a provision allowing for the acceleration of the 2004 Bonds
in the event of a payment default or other default under the 2004 Bonds or the Indenture.
Loss of Tax Exemption
As discussed under the caption "TAX MATTERS," the interest on the 2004 Bonds could
become includable in gross income for federal income tax purposes retroactive to the date of issuance
of the 2004 Bonds as a result of a failure of the District to comply with certain provisions of the
Internal Revenue Code of 1986, as amended. Should such an event of taxability occur, the 2004
Bonds are not subject to early redemption and will remain outstanding to maturity or until redeemed
under the optional redemption provisions of the Indenture.
Limitations on Remedies
Remedies available to the owners of the 2004 Bonds may be limited by a variety of factors
and may be inadequate to assure the timely payment of principal of and interest on the 2004 Bonds or
to preserve the tax-exempt status of the 2004 Bonds.
Bond Counsel has limited its opinion as to the enforceability of the 2004 Bonds and of the
Indenture to the extent that enforceability may be limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance or transfer, moratorium, or other similar laws affecting generally the
enforcement of creditors' rights, by equitable principles and by the exercise of judicial discretion.
The lack of availability of certain remedies or the limitation of remedies may entail risks of delay,
limitation or modification of the rights of the owners of the 2004 Bonds.
Limited Secondary Market
There can be no guarantee that there will be a secondary market for the 2004 Bonds or, if a
secondary market exists, that such Bonds can be sold for any particular price. Although the District
and the Developer and the merchant builders have committed to provide certain financial and
operating infonnation on an annual basis, there can be no assurance that such infonnation will be
available to Bondowners on a timely basis. See "CONTINUING DISCLOSURE." The failure to
provide the required annual financial infonnation does not give rise to monetary damages but merely
an action for specific perfonnance. Occasionally, because of general market conditions, lack of
current infonnation, or because of adverse history or economic prospects connected with a particular
issue, secondary marketing practices in connection with a particular issue are suspended or
tenninated. Additionally, prices of issues for which a market is being made will depend upon then
prevailing circumstances. Such prices could be substantially different from the original purchase
pnce.
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Proposition 218
An initiative measure commonly referred to as the "Right to Vote on Taxes Act" (the
"Initiative") was approved by the voters of the State of California at the November 5, 1996 general
election. The Initiative added Article XIIIC and Article XIIID to the California Constitution.
According to the "Title and Summary" ofthe Initiative prepared by the California Attorney General,
the Initiative limits "the authority of local governments to impose taxes and property-related
assessments, fees and charges." The provisions of the Initiative have not yet been interpreted by the
courts, although several lawsuits have been filed requesting the courts to interpret various aspects of
the Initiative. The Initiative could potentially impact the Special Taxes available to the City to pay
the principal of and interest on the 2004 Bonds as described below.
Among other things, Section 3 of Article XIII 'states that ". . . the initiative power shall not be
prohibited or otherwise limited in matters of reducing or repealing any local tax, assessment, fee or
charge." The Act provides for a procedure which includes notice, hearing, protest and voting
requirements to alter the rate and method of apportionment of an existing special tax. However, the
Act prohibits a legislative body from adopting any resolution to reduce the rate of any special tax or
terminate the levy of any special tax pledged to repay any debt incurred pursuant to the Act unless
such legislative body determines that the reduction or termination of the special tax would not
interfere with the timely retirement of that debt. On July 1,1997, a bill was signed into law by the
Governor of the State enacting Government Code Section 5854, which states that:
"Section 3 of Article XIIIC of the California Constitution, as adopted at the
November 5, 1996, general election, shall not be construed to mean that any owner or
beneficial owner of a municipal security, purchased before or after that date, assumes the risk
of, or in any way consents to, any action by initiative measure that constitutes an impairment
of contractual rights protected by Section 10 of Article 1 of the United States Constitution."
Accordingly, although the matter is not free from doubt, it is likely that the Initiative has not
conferred on the voters the power to repeal or reduce the Special Taxes if such reduction would
interfere with the timely retirement ofthe 2004 Bonds.
It may be possible, however, for voters or the City Council acting as the legislative body of
the District to reduce the Special Taxes in a manner which does not interfere with the timely
repayment of the 2004 Bonds, but which does reduce the maximum amount of Special Taxes that
may be levied in any year below the existing levels. Furthermore, no assurance can be given with
respect to the future levy of the Special Taxes in amounts greater than the amount necessary for the
timely retirement of the 2004 Bonds. Therefore, no assurance can be given with respect to the levy
of Special Taxes for Administrative Expenses. Nevertheless, to the maximum extent that the law
permits it to do so, the District has covenanted that it will not initiate proceedings under the Act to
reduce the maximum Special Tax rates on parcels within the District to less than an amount equal to
110% of Maximum Annual Debt Service on the 2004 Bonds. In connection with the foregoing
covenant, the District has made a legislative finding and determination that any elimination or
reduction of Special Taxes below the foregoing level would interfere with the timely retirement of
the 2004 Bonds. The District also has covenanted that, in the event an initiative is adopted which
purports to alter the Rate and Method of Apportionment of Special Tax, it will commence and pursue
legal action in order to preserve its ability to comply with the foregoing covenant. However, no
assurance can be given as to the enforceability of the foregoing covenants.
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The interpretation and application oftbe Initiative will ultimately be determined by the courts
with respect to a number of the matters discussed above, and it is not possible at this time to predict
with certainty the outcome of such determination or the timeliness of any remedy afforded by the
courts. See "SPECIAL RISK FACTORS - Limitations on Remedies."
Ballot Initiatives
Article XIll A, Article Xlll B and Proposition 218 were adopted pursuant to measures
qualified for the ballot pursuant to California's constitutional initiative process. From time to time,
other initiative measures could be adopted by California voters. The adoption of any such initiative
might place limitations on the ability of the State, the City or local districts to increase revenues or to
increase appropriations or on the ability of the landowners within the District to complete the
remaining proposed development. See "SPECIAL RISK FACTORS - Failure to Develop
Properties" herein.
CONTINUING DISCLOSURE
Pursuant to a Continuing Disclosure Agreement with MuniFinancial, as dissemination agent
(the "Disclosure Agreement"), the District, has agreed to provide, or cause to be provided, to each
nationally recognized municipal securities information repository and any public or private
repository or entity designated by the State as a state repository for purposes of Rule 15c2-l2(b)(5)
adopted by the Securities and Exchange Commission (each, a "Repository") certain annual financial
information and operating data concerning the District. The Annual Report to be filed by the District
is to be filed not later than February 1 of each year, beginning February 1, 2005, and is to include
audited financial statements of the City. The requirement that the District file the City's audited
financial statements as a part of the Annual Report has been included in the Disclosure Agreement
solely to satisfy the provisions of Rule 15c2-12. The inclusion of this information does not mean that
the 2004 Bonds are secured by any resources or property of the City, and the 2004 Bonds are limited
obligations of the District. See "SOURCES OF PAYMENT FOR THE BONDS" and "SPECIAL
RISK FACTORS - Limited Obligations." The District has not previously entered into any
undertakings with regard to Rule 15c2-12 to provide annual reports or notices of material events.
The full text of the Disclosure Agreement is set forth in Appendix G.
To assist the Underwriter in complying with Rule l5c2-12(b )(5), the Developer, on behalf of
itself and the Brookfield Entities and Shea Homes will each enter into a certain Continuing
Disclosure Agreement (the "Developer Disclosure Agreement") covenanting to provide Semi-Annual
Reports not later than April I and October I of each year beginning October 1, 2004. The Semi-
Annual Reports provided by the Developer and Shea Homes are to contain the unaudited financial
statements of such entities and, if available, the audited financial statements, and the additional
financial and operating data outlined in Section 4 of the Developer Disclosure Agreement attached in
Appendix G.
The obligations of a landowner under its Developer Disclosure Agreement will terminate
upon the earliest to occur of: (a) the legal defeasance, prior redemption or payment in full of all the
2004 Bonds; (b) the date on which such landowner and all affiliates thereof are no longer responsible
for the payment of more than 20 percent of the annual Special Tax levy and not less than 90% of the
Facilities have been completed; or (c) the date on which such landowner delivers to the District an
opinion of nationally-recognized bond counsel to the effect that the continuing disclosure is no
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longer required under the Rule. Each Developer Disclosure Agreement provides that, if the parties
thereto sell or transfer an ownership interest in any property in the District to a non-affiliated entity
which will result in the transferee becoming responsible for the payment of 20 percent of the annual
Special Tax levy in the fiscal year following such transfer, the applicable landowner will cause any
such transferee to enter into a disclosure agreement or assume the obligations ofthe transferor under
its Developer Disclosure Agreement with respect to such property transferred, as described in
Section 12 of the Developer Disclosure Agreement attached hereto in Appendix G.
Shea Homes has not previously failed to comply within the last five years in all material
respects with any previous undertakings with regard to Rule 15c2-12 to provide annual reports or
notices of material events. Neither the Developer nor the Brookfield Entities has previously entered
into any undertakings with regard to Rule 15c2-12 to provide annual reports or notices of material
events.
The Developer Disclosure Agreement will inure solely to the benefit of the District, any
Dissemination Agent, the Underwriter and owners or beneficial owners from time to time of the 2004
Bonds.
TAX MATTERS
In the opinion of Best Best & Krieger LLP ("Bond Counsel"), based upon an analysis of
existing laws, regulations, rulings and court decisions, and assuming, among other matters,
compliance with certain covenants, interest on the 2004 Bonds is excluded from gross income for
federal income tax purposes under Section 103 of the Internal Revenue Code of 1986 (the "Code")
and is exempt from State of California personal income taxes. Bond Counsel is of the further
opinion that interest on the 2004 Bonds is not a specific preference item for purposes of the federal
individual or corporate alternative minimum taxes, although Bond Counsel observes that such
interest is included in adjusted current earnings when calculating federal corporate alternative
minimum taxable income. A complete copy of the proposed form of opinion of Bond Counsel is set
forth in Appendix H hereto.
The Code imposes various restrictions, conditions and requirements relating to the exclusion
from gross income for federal income tax purposes of interest on obligations such as the 2004 Bonds.
The District has covenanted to comply with certain restrictions designed to insure that interest on the
2004 Bonds will not be included in federal gross income. Failure to comply with these covenants
may result in interest on the 2004 Bonds being included in federal gross income, possibly from the
date of original issuance of the 2004 Bonds. The opinion of Bond Counsel assumes compliance with
these covenants. Bond Counsel has not undertaken to determine (or to inform any person) whether
any actions taken (or not taken) or events occurring (or not occurring) after the date of issuance of
the 2004 Bonds may adversely affect the value of, or the tax status of interest on, the 2004 Bonds.
Further, no assurance can be given that pending or future legislation or amendments to the Code, if
enacted into law, or any proposed legislation or amendments to the Code, will not adversely affect
the value of, or the tax status of interest on, the 2004 Bonds. Prospective Bondholders are urged to
consult their own tax advisors with respect to proposals to restructure the federal income tax.
Certain requirements and procedures contained or referred to in the Indenture, the Tax
Certificate, and other relevant documents may be changed and certain actions (including, without
limitation, defeasance of the 2004 Bonds) may be taken or omitted under the circumstances and
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subject to the tenns and conditions set forth in such documents. Bond Counsel expresses no opinion
as to any Bond or the interest thereon if any such change occurs or action is taken or omitted upon
the advice or approval of Bond Counsel other than itself.
Although Bond Counsel is of the opinion that interest on the 2004 Bonds is excluded from
gross income for federal income tax purposes and is exempt from State of California personal income
taxes, the ownership or disposition of, or the accrual or receipt of interest on, the 2004 Bonds may
otherwise affect a Bondholder's federal or state tax liability. The nature and extent of these other tax
consequences will depend upon the particular tax status of the Bondholder or the Bondholder's other
items of income or deduction, and Bond Counsel expresses no opinion regarding any such other tax
consequences.
CIRCULAR 230 DISCLOSURE
Bond Counsel expects to deliver an opinion at the time of issuance of the Bonds in
substantially the same fonn set forth in "APPENDIX H" hereto, subject to the matters discussed
under "Proposed Regulations: Potential Change in Fonn of Bond Counsel Opinion" below.
Proposed Regulations: Potential Change in Form of Bond Counsel Opinion
The U.S. Department of the Treasury has proposed modifications to its regulations contained
in publication "Circular 230," which set forth rules governing the practice of attorneys and other tax
advisors before the Internal Revenue Service. The proposed modified regulations (the "Proposed
Regulations") impose certain mandatory requirements which must be met in connection with
opinions relating to "tax shelters." The Proposed Regulations revise the definition of tax shelter by
eliminating an exclusion from the definition of tax shelter for "municipal bonds." Because of this
proposed change, the Proposed Regulations may be applicable to opinions delivered in connection
with tax-exempt obligations. In their current fonn, the Proposed Regulations will apply to opinions
delivered on or after the date the final regulations are published in the Federal Register. It is possible
that the final regulations could be published prior to the delivery of the opinion relating to the Bonds.
If the Proposed Regulations are promulgated as final regulations in their present fonn and are
applicable to Bond Counsel's opinion relating to the Bonds, Bond Counsel's opinion will still
address the exclusion of interest on the Bonds from federal gross income as described above;
however, certain additional matters will be discussed in the opinion in order to comply with the
requirements of the final regulations under Circular 230, as described below.
First, Circular 230 would require that the revised opinion disclose federal tax issues for
which the IRS may have a reasonable basis for a successful challenge and the resolution of which
could have a significant adverse impact regarding the exclusion of interest on the Bonds from income
for federal tax purposes. Second, the revised opinion may provide that the opinion set forth therein
with respect to federal tax matters may not be sufficient for a Bondholder to use for the purpose of
avoiding penalties relating to a substantial understatement of income tax under section 6662(d) of the
Code and may further provide that Bondholders should seek advice based on their individual
circumstances with respect to any material federal tax issue relating to the Bonds from their own tax
advisors. Last, such revised opinion may note that Bond Counsel's fee will be paid by the
Community Facilities District and, though Bond Counsel is engaged from time to time to serve as
counsel for underwriters and market participants, including the underwriter of the Bonds, there is no
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referral agreement or other arrangement between Bond Counsel (or any of its attorneys) and any
other person with respect to the promoting, marketing, recommending and sale of the Bonds. There
can be no assurance that the market value of the Bonds will not be adversely affected if the opinion
of Bond Counsel delivered at the time of issuance of the Bonds includes a discussion of the
additional matters described in the preceding paragraph. In the event the final regulations contained
in Circular 230 are applicable to the Bonds, Bond Counsel expects that its opinion will be delivered
to conform to the requirements of such final regulations. Purchasers of the Bonds should be aware
that there can be no assurance that the final regulations contained in Circular 230 will be the same as
or similar to the Proposed Regulations.
LEGAL MATTERS
Certain legal matters incident to the issuance of the 2004 Bonds are subject to the approving
legal opinion of Best Best & Krieger LLP, San Diego, California ("Bond Counsel"). A copy of the
proposed form of opinion of Bond Counsel is set forth in Appendix H hereto. The opinion of Bond
Counsel will be qualified as to the enforceability of certain of the proceedings by limitations imposed
by bankruptcy, insolvency, moratoria and other similar laws affecting creditors' rights, heretofore or
hereafter enacted, and by the exercise of judicial discretion in accordance with general principles of
equity.
Bond Counsel has reviewed the cover page of this Official Statement and the portions hereof
under the captions "INTRODUCTION," "THE BONDS," "SOURCES OF PAYMENT FOR THE
BONDS" "TAX MATTERS" and in Appendices E and H, insofar as such portions purport to
summarize certain provisions of the 2004 Bonds, the Indenture, the legal procedures required for the
authorization of the 2004 Bonds, and the opinion of Bond Counsel concerning the exclusion of
interest on the 2004 Bonds from gross income, but Bond Counsel has not assisted in the preparation
of or reviewed the remainder of this Official Statement, and accordingly Bond Counsel expresses no
opinion as to the accuracy or sufficiency of any statements, material or financial information
contained in the remainder of this Official Statement.
Certain legal matters will be passed upon for the City and the District by the City Attorney
and for the Underwriter by its counsel, Stradling Yocca Carlson & Rauth, a Professional Corporation,
Newport Beach, California ("Stradling"). Although it serves as counsel to the Underwriter in
connection with the issuance and sale of the 2004 Bonds, Stradling represents the City in connection
with other financings. Stradling undertakes no responsibility to the purchasers of the 2004 Bonds for
the accuracy, completeness or fairness of the information in this Official Statement and expressly
disclaims any duty to do so.
LITIGATION
No litigation is pending or threatened concerning the validity of the 2004 Bonds or the pledge
of Special Taxes to repay the 2004 Bonds and a certificate of the District to that effect will be
furnished to the Underwriter at the time of the original delivery of the 2004 Bonds. The District is
not aware of any litigation pending or threatened which questions the existence of the District or
contests the authority of the District to levy and collect the Special Taxes or to issue and retire the
2004 Bonds.
61 C¡~/fl
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NO RATING
The District has not made and does not contemplate making application to any rating agency
for the assignment of a rating of the 2004 Bonds.
UNDERWRITING
The 2004 Bonds are being purchased by Stone & Youngberg LLC (the "Underwriter"). The
Underwriter has agreed to purchase the 2004 Bonds at a price of $ (being $
aggregate principal amount thereof, less Underwriter's discount of $ ). The purchase
agreement relating to the 2004 Bonds provides that the Underwriter will purchase all of the 2004
Bonds if any are purchased. The obligation to make such purchase is subject to certain terms and
conditions set forth in such purchase agreement, the approval of certain legal matters by counsel and
certain other conditions.
The Underwriter may offer and sell the 2004 Bonds to certain dealers and others at prices
lower than the offering price stated on the cover page hereof. The offering price may be changed
from time to time by the Underwriter.
FINANCIAL INTERESTS
The fees being paid to the Financial Advisor, Underwriter, Underwriter's Counsel and Bond
Counsel are contingent upon the issuance and delivery of the 2004 Bonds. From time to time, Bond
Counsel represents the Underwriter on matters unrelated to the 2004 Bonds and Underwriter's
Counsel represents the City on matters unrelated to the 2004 Bonds.
PENDING LEGISLATION
The District is not aware of any significant pending legislation which would have material
adverse consequences on the 2004 Bonds or the ability of the District to pay the principal of and
interest on the 2004 Bonds when due.
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ADDITIONAL INFORMATION
The purpose of this Official Statement is to supply infonnation to prospective buyers of the
2004 Bonds. Quotations and summaries and explanations of the 2004 Bonds and documents
contained in this Official Statement do not purport to be complete, and reference is made to such
documents for full and complete statements and their provisions.
The execution and delivery of this Official Statement by the Director of Finance of the City
has been duly authorized by the City Council acting in its capacity as the legislative body of the
District.
COMMUNITY FACILITIES DISTRICT
NO. 07-1 (Otay Ranch Village Eleven)
By:
Director of Finance
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--~-~~ - .. ~------ -.-- -
APPENDIX A
RATE AND METHOD OF APPORTIONMENT FOR
CITY OF CHULA VISTA
COMMUNITY FACILITIES DISTRICT NO. 07-1
(Otay Ranch Village Eleven)
A Special Tax as hereinafter defined shall be levied on each Assessor's Parcel of Taxable
Property within the City ofChula Vista Community Facilities District No. 07-1 (Otay Ranch Village
Eleven), and collected each Fiscal Year commencing in Fiscal Year 2004-2005 in an amount
determined by the City Council through the application of the appropriate Special Tax for
"Developed Property," "Approved Property", "Undeveloped Property" and "Provisional
Undeveloped Property" as described below. All of the Taxable Property within CFD-07-I, 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 combination of units as shown on such tentative map and which may further show
Community Purpose Facility Property, Property Owner Association Property, Public
Property, 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 Govemment Code ofthe State of California.
"Administrative Fees and Expenses" means the actual or reasonably estimated costs
directly related to the administration of CFD-07-1 including, but not limited to, the following:
the costs of computing the Special Taxes and preparing the annual Special Tax collection
schedules (whether by the City or designee thereof or both); the costs of collecting the
Special Taxes (whether by the County, the City, or otherwise); the costs of remitting the
Special Taxes to the Trustee; the costs of the Trustee (including its legal counsel) in the
discharge of the duties required of it under the Indenture; the costs to the City, CFD-O7 - I, or
any designee thereof of complying with arbitrage rebate requirements and/or responding to
any audit of the Bonds by the Internal Revenue Service; the costs to the City, CFD-07-I, or
any designee thereof of providing continuing disclosure; the costs of the City, CFD-07-I or
any designee thereof of preparing Special Tax disclosure statements and responding to public
A-I
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inquiries regarding the Special Taxes; the costs of the City, CFD-07-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-07-1, for any
other administrative purposes, including, but not limited to attorney's fees and other costs
related to commencing and pursuing to completion any foreclosure of delinquent Special
Taxes.
"Approved Property" means all Assessor's Parcels of Taxable Property: (i) that are
included in an 'A' Map, excluding lettered lots thereon, or a Final Subdivision Map,
excluding lettered lots thereon, that were recorded prior to January 1st for the Fiscal Year
ending July 31, 2005, and prior to March 1 st for each subsequent Fiscal Year thereafter
preceding the Fiscal Year in which the Special Tax is being levied, and (ii) that have not been
issued a building permit prior to the March 1 st preceding the Fiscal Year in which the Special
Tax is being levied.
"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 Class of Developed
Property as determined in accordance with Section C. I .a.
"Available Funds" means (a) the balance in the reserve fund established pursuant to the
tenus 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 as detennined in accordance with
Section c.l.b.
"Bonds" means any bonds or other debt (as defined in the Act), whether in one or more
series, issued or incurred by CFD-O7 -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
detennining the Special Tax Requirement and providing for the levy and collection of the
Special Taxes.
"CFD-07-I" means City ofChula Vista Community Facilities District No. 07-1.
"City" means the City of Chula Vista.
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"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 on an
"A" Map or a Final Subdivision Map as a community purpose facility.
"Council" means the City Council of the City, acting as the legislative body ofCFD-07-I.
"County" means the County of San Diego.
"Density" means for each Assessor's Parcel of Residential Property the number of Dwelling
Units per gross acre determined pursuant to those provisions of Ordinance No. 2866, in effect
as of January 7, 2003, that provide for the calculation of density for purposes of calculating
Transportation Development Impact Fees.
"Developed Property" means all Assessor's Parcels of Taxable Property for which a
building permit has been issued prior to March 1st preceding the Fiscal Year in which the
Special Tax is being levied.
"Dwelling Unit" means each separate residential dwelling unit that comprises an
independent facility capable of conveyance or rental separate from adjacent residential
dwelling units.
"Exempt Property" means all Assessor's Parcels that are exempt from the Special Tax
pursuant to Section E.l.
"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 I of Section C.
"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.
"Mixed Use Property" means all Assessor's Parcels that have been classified by the City to
allow both Residential Property and Non-Residential Property uses on each such Assessor's
Parcel. For an Assessor's Parcel of Mixed Use Property, each Land Use Class thereon is
subject to taxation pursuant to the provisions of Section C regardless of the geographic
orientation of such Land Use Classes on such Assessor's Parcel.
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"Non-Residential Property" means all Assessor's Parcels of Developed Property, for which
a building permit(s) has been issued to allow the construction of one or more buildings or
structures for a non-residential use, excluding Community Purpose Facility Property.
"Open Space" means property within the boundaries ofCFD 07-1 in which prior to June 1st
ofthe preceding Fiscal Year (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 to the federal
government, the State of California, the County, the City, or any other public agency or (d) is
encumbered by an easement or other restriction required by the City limiting the use of such
property to open space.
"Outstanding Bonds" means all Bonds, which remain outstanding as defined in the
Indenture.
"Property Owner Association Property" means any property within the boundaries of
CFD-07-1 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 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 the Backup Special Tax is equal for all Assessors'
Parcels of the Developed Property. For Approved Property, Undeveloped Property and
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 like classification.
"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. I for Zone A or Zone B as applicable.
"Public Property" means any property within the boundaries of CFD-07-l which (a) is
owned by a public agency, (b) has been irrevocably offered for dedication 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 penn it has been issued to allow the construction of one or more buildings or
structures for use as residential dwelling units.
"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.
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"Special Tax Requirement" means that amount of Special Tax revenue required in any
Fiscal Year for 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 payment; (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-07-l provided that the inclusion of such amount does not cause an increase in the
levy of Special Tax on the Undeveloped Property; less (vi) a credit for Available Funds.
"State" means the State ofCalifomia.
"Taxable Property" means all of the Assessor's Parcels within the boundaries ofCFD 07-1
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, Approved Property or Provisional Undeveloped 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 Assessors' Parcels of Taxable Property within CFD-07-1 shall be
(a) categorized as being located in either Zone A or Zone B, (b) classified as Developed
Property, Approved Property, Undeveloped Property or Provisional Undeveloped Property
and (c) subject to the levy of annual Special Taxes determined pursuant to Sections C and D
below. Developed Property shall be further classified as either Residential Property, Non-
Residential Property or Mixed Use Property. The Land Use Class of each Assessor's Parcel
of Residential Property or Mixed Use Property shall be determined based on its Density.
C. MAXIMUM ANNUAL SPECIAL TAX RATE
1. Developed Property
The Maximum Annual Special Tax for each Assessor's Parcel of Residential Property, Non-
Residential Property or Mixed Use Property shall be the greater of (1) the Assigned Special
Tax described in Section a. below or (2) the Backup Special Tax computed pursuant to
Section b. below.
a. Assi!!ned Special Tax
The Assigned Special Tax for each Land Use Class of Developed Property is shown
in Table].
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TABLEt
Assigned Special Tax for Developed Property
Within Zone A and Zone B:
Density
Land Use Class Description (DU/Acre) Assigned Special Tax
1 Residential Property 0 to 8 $1,675 per Dwelling Unit
2 Residential Property >8 to 20 $1,340 per Dwelling Unit
3 Residential Property >20 $1,005 per Dwelling Unit
4 Non Residential Property N/A $6,000 per Acre
The Assigned Special Tax for each Assessor's Parcel of Mixed Use Property shall
equal the total of (i) the Assigned Special Tax that would be applicable to such
Assessor's Parcel if it was classified only as Residential Property and (ii) the
Assigned Special Tax that would be applicable to such Assessor's Parcel if it was
classified as Non-Residential Property.
b. Backuo Soecial Tax
When a Final Subdivision Map is recorded within Zone A or Zone B, the Backup Special
Tax for Residential Property and Non-Residential Property, shall be determined as follows:
For each Assessor's Parcel of Residential Property or Undeveloped Property and Approved
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 Dwelling Unit calculated
according to the following formula:
Zone A
$13,955 x A
B= ------------------------
U
Zone B
$24,218xA
B= ------------------------
U
The terms above have the following meanings:
B= Backup Special Tax per Dwelling Unit in each Fiscal Year.
A= Acreage classified or to be classified as Residential Property in such Final
Subdivision Map.
U= Number of Dwelling Units in the Final Subdivision Map which are classified or
expected to be classified as Residential Property.
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For each Assessor's Parcel of Developed Property classified as Non-Residential Property or
for each Assessor's Parcel of Approved or Undeveloped Property to be classified as Non-
Residential Property within the Final Subdivision Map area, the Backup Special Tax shall be
detennined by multiplying $13,955 for Zone A and $24,218 for Zone B by the total Acreage
of any such Assessor's Parcel.
For each Assessor's Parcel of Mixed Use Property, the Backup Special Tax shall be
determined by multiplying $13,955 for Zone A and $24,218 for Zone B by the total Acreage
of any such Assessor's Parcel.
Notwithstanding the foregoing, if Assessor's Parcels of Residential Property, Non-
Residential Property, Mixed Use Property, Approved Property or Undeveloped Property for
which the Backup Special Tax has been detennined 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. Approved Property
The Maximum Annual Special Tax for each Assessor's Parcel of Approved Property
shall be $13,955 per Acre for Zone A and $24,218 per Acre for Zone B.
3. Undeveloped Property and Provisional Undeveloped Property
The Maximum Special Tax for each Assessor's Parcel of Undeveloped Property and
Provisional Undeveloped Property shall be $13,955 per Acre for Zone A and $24,218
per Acre for Zone B.
D. METHOD OF APPORTIONMENT OF THE SPECIAL TAX
Commencing with Fiscal Year 2004-2005 and for each following Fiscal Year, the Council
shall detennine 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 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 Approved
Property at up to 100% of the Maximum Annual Special Tax for Approved Property.
Third: If additional monies are needed to satisfy the Special Tax Requirement after the first
two steps have 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 detennining the Acreage of an Assessor's
Parcel of Undeveloped Property for purposes of detennining the annual Special Tax to be
levied on such Assessor's Parcels of Undeveloped Property, 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
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classified as Open Space, Property Owner Association Property, Community Purpose Facility
or Public Property.
Fourth: If additional monies are needed to satisfY the Special Tax Requirement after the first
three 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.
Fifth: If additional monies are needed to satisfY the Special Tax Requirement after the first
four 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 147.15 Acres for Zone A and 59.04 Acres for Zone B.
Assessor's Parcels which cannot be classified as Exempt Property because such
classification would reduce the Acreage of all Taxable Property to less than 147.15
Acres for Zone A and 59.04 Acres for Zone B will be classified as Provisional
Undeveloped Property and shall be taxed pursuant to the fifth step of Section D.
Exempt status for purposes of this paragraph will be assigned by the CFD
Administrator in the chronological order in which property becomes Exempt
Property. In the event the Taxable Property will be reduced below the minimum
Acreage noted above for either Zone A or Zone B as a result of the recordation of a
single "A" Map, the CFD Administrator shall classifY property within Zone A or
Zone B that is shown on such "A" Map as Exempt Property up to the limits of
Exempt Property applicable to such Zone or Zones in the following priority order:
I) Community Purpose Facility Property, 2) Property Owner Association Property,
3) Public Property, 4) Open Space, 5) other public or utility easements making
impractical their utilization for no other such purpose.
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 E.l above 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.
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-'__'___n_-
3. If the use of an Assessor's Parcel of Exempt Property changes so that such Assessor's
Parcel is no longer classified as one of the uses set forth in paragraph 1 that would
make such Assessor's Parcel eligible to be classified as Exempt Property, such
Assessor's Parcel shall cease to be classified as Exempt Property and shall be deemed
to be Taxable Property.
F. REVIEW/APPEAL COMMITTEE
Any landowner or resident who feels that the amount of the Special Tax levied on their
Assessor's Parcel is in error shall first consult with the CFD Administrator regarding such
error. If following such consultation, the CFD Administrator determines that an error has
occurred the CFD Administrator may amend the amount of the Special Tax levied on such
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-07-l 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-07-1, 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 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.
H. PREPAYMENT OF SPECIAL TAX
The following definitions apply to this Section H:
"CFD Public Facilities" means those public facilities authorized to be financed by
CFD-O7-1.
"CFD Public Facilities Costs" means either $35 million, or such lower number as shall be
determined either by (a) the CFD Administrator as sufficient to finance the CFD Public
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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.
1. Prepayment in Full
The Maximum Annual Special Tax obligation may only be prepaid and pennanently satisfied
for an Assessor's Parcel of Developed Property, Undeveloped Property or Approved Property
for which a building penn it 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 the Assessor's Parcel to pay the Special Tax pennanently
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 tenDS 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
equals Prepayment Amount
As of the proposed date of prepayment, the Prepayment Amount (defined below) shall be calculated
as follows:
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Step No.:
1. For Developed Property, compute the Maximum Annual Special Tax for the
Assessor's Parcel to be prepaid. For Assessor's Parcels of Approved Property or
Undeveloped Property 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 Provisional Undeveloped Property to be prepaid, compute the Maximum
Annual Special Tax for that Assessor's Parcel using the Maximum Annual Special
Tax for Provisional 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-07-1 excluding any Assessors 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(s) on the next possible Bond call date, if any, on the
Outstanding Bonds to be redeemed (the "Redemption Premium").
5. If all the 2004 Bonds authorized to be issued by CFD-07-1 have not been issued, then
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-07-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 Fee 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,
pursuant to step] 0, from the date of prepayment until the redemption date for the
Outstanding Bonds to be redeemed with the prepayment.
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12. Add the amounts computed pursuant to steps 7 and 9 and subtract the amount
computed pursuant to step II (the "Deftasance 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-07-1. 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.
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
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 Approved Property or Undeveloped Property for which a building
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permit has been issued may be partially prepaid. The amount of the prepayment shall be
calculated as presented 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-07-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 2004-2005 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.
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APPENDIX B
SUMMARY OF MARKET ABSORPTION STUDY
[To Come)
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...----
APPENDIX C
APPRAISAL REPORT
[To Come)
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APPENDIX D
INFORMATION REGARDING THE CITY OF CHULA VISTA
GENERAL INFORMATION
This appendix sets forth general information about the City of Chula Vista ("Chula Vista ")
including information with respect to its finances. The following information concerning Chula
Vista, the County of San Diego (the "County "), the State of California (the "State ") and the United
States of America (the" United States ") are included only for general background purposes.
General Description
Chula Vista is located on San Diego Bay in Southern California, 8 miles south of the City of
San Diego and 7 miles north of the Mexico border, in the area generally known as "South Bay."
Chula Vista's city limits cover approximately 50 square miles. Chula Vista was incorporated
March 17, 1911 and became a chartered city in 1949. Chula Vista operates under a Council-Manager
fonn of government and provides the following services: public safety, community services,
engineering services, planning services, public works, general administrative services and capital
improvements. With a January 2003 estimated population of 199,700, Chula Vista is the second
largest city in the County.
Population
The historic population ofChula Vista, the County and the State is shown below.
City of Chula Vista, County of San Diego and State of California
Population Estimates
Year City ofChula Vista County of San Diego State of California
1999 164,200 2,751,000 33,140,000
2000 171,700 2,805,900 33,753,000
2001 181,000 2,856,000 34,367,000
2002 ] 90,300 2,908,500 35,000,000
2003 199,700 2,96],600 35,591,000
Source: California State Department of Finance, E-4 Revised Historical City, County and State Population Estimates, 1991-
2000, with 1990 and 2000 Census Counts and E-4 Population Estimates for cities, counties and the State, 2001-2003,
with 2000 DRU Benchmark.
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Building Activity
Residential building activity for the past five calendar years for Chula Vista is shown in the
following tables.
City of Chula Vista
New Housing Units Building Permits
1999 2000 2001 2002 2003
Single Family Units 1,796 1,776 2,184 1,749 2,137
Multifamily Units 750 864 1,341 501 1,006
Total Units 2,546 2,640 3,525 2,250 3,43
Source: Construction Industry Research Board.
City ofChula Vista
Building Permit Valuations
1999 2000 2001 2002 2003
Residential
New Single Family $ 307,653,358 $ 319,085,986 $ 433,850,821 $ 413,647,842 $ 498,045,931
New Multifamily 53,470,818 74,634,324 107,731,702 47,388,930 118,687,194
Res. Alt. & Adds 5,085,049 4,862,879 7,987,049 10,301,301 13,277,257
Total Residential 366,209,225 398,583,189 549,569,572 471,338,073 630,010,382
Nonresidential
New Commercial 17,213,869 17,916,085 22,139,245 20,926,638 54,744,910
New Industrial 7,909,587 17,418,207 2,139,313 737,651 7,071,470
New Other(l) 5,840,339 17,890,100 11,112,335 22,761,223 28,063,492
Alters. & Adds. 13,552,638 10,527,193 13,091,600 19,367,574 16,290,492
Total Non-Residential 38516433 63751 585 48482493 63 793 086 106170157
Total All Building $ 404,725,658 $ 462,334,774 $ 598,052,065 $ 535,131,159 $ 736,180,539
(1) Includes churches and religious buildings, hospitals and institutional buildings, schools and educational buildings,
residential garages, public works and utilities buildings and no-residential alterations and additions.
Note: "Total All Building" is the sum of Residential and Nonresidential Building Permit Valuations. Totals may not add to
sums because of independent rounding.
Source: Construction Industry Research Board.
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Employment
The following table summarizes the labor force, employment and unemployment figures over
the period 1998 through 2002 for Chula Vista, the County, the State and the United States.
Chula Vista, San Diego County, State of California and United States
Labor Force, Employment and Unemployment Yearly Average
Civilian Civilian Civilian Civilian
Year and Area Labor Force EmploymentJ) Unemployment]) Unemployment Ratef3)
1998
Chula Vista 68,500 66,030 2,550 3.7%
San Diego County 1,309,300 1,263,300 46,000 3.5%
California 16,138,200 15,180,900 957,200 5.9%
United States(') 137,673,000 131,463,000 6,210,000 4.5%
1999
Chula Vista 70,600 68,3000 2,300 3.3%
San Diego County 1,348,300 1,306,700 41,600 3.1%
California 16,375,600 15,522,300 853,300 5.2%
United States") 139,368,000 133,488,000 5,580,000 4.2%
2000
Chula Vista 72,970 70,660 2,310 3.2%
San Diego County 1,393,600 1,351,800 41,800 3.0%
California 17,171,600 16,056,500 835,500 4.9%
United States") 140,863,000 135,208,000 5,655,000 4.0%
2001
Chula Vista 74,830 72,270 2,560 3.4%
San Diego County 1,428,900 1,382,600 46,300 3.2%
California 17,375,800 16,249,100 922,500 5.4%
United States") 141,815,000 135,073,000 6,742,000 4.8%
2002
Chula Vista 76,980 73,490 3,490 4.5%
San Diego County 1,469,000 1,406,000 63,000 4.3%
California 17,404,600 16,214,900 1,160,900 6.7%
United States(') 144,863,000 136,485,000 8,378,000 5.8%
(I) Includes persons involved in labor-management trade disputes.
(2) Includes all persons without jobs who are actively seeking work.
,3) The unemployment rate is computed !Tom unfOunded data; therefore, it may differ from rates computed !Tom rounded
figures in this table.
(') Not strictly comparable with data for prior years.
Source: California Employment Development Department, based on March 2002 benchmark and U.S. Department of Labor,
Bureau of Labor Statistics.
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'n__n______-
San Diego Metropolitan Statistical Area ("MSA"), which includes Chula Vista, civilian labor
force and wage and salary employment figures for calendar years 1999 through 2003 are shown in
the following table. These figures are county-wide statistics and may not necessarily accurately
reflect employment trends in Chula Vista.
San Diego MSA
Civilian Labor Force, Employment and Unemployment
Annual Averages, March 2003 Benchmark
1999 2000 2001(1) 200:i1) 2003(1)
Civilian Labor Force 1,321,000 1,361,600 1,393,600 1,429,300 1,468,300
Civilian Employment 1,274,600 1,319,600 1,351,800 1,383,000 1,405,300
Civilian Unemployment 46,400 42,000 41,800 46,300 63,000
Civilian Unemployment Rate 3.5% 3.1% 3.0% 3.2% 4.3%
Total Farm 11,200 11,400 11,400 11,000 11,200
Total Nonfarm 1,152,900 1,193,800 1,218,400 1,230,700 1,241,900
Total Private 953,500 987,200 1,004,700 1,011,000 1,022,100
Goods Producing 190,200 192,600 194,400 189,000 185,300
Natural Resources and Mining 300 300 300 300 300
Construction 67,000 69,700 75,100 76,400 79,600
Manufacturing 122,900 122,600 119,000 112,300 105,400
Service Providing 962,700 1,001,200 1,024,000 1,041,700 1,056,700
Trade, Transportation and Utilities 194,200 202,600 209,000 208,600 208,600
Wholesale Trade 36,800 39,100 41,500 41,300 41,300
Retail Trade 128,200 133,800 135,600 138,000 140,000
Transportation, Warehousing and
Utilities 29,200 29,800 32,000 29,300 27,300
Information 36,200 39,200 38,800 37,700 37,100
Financial Activities 70,400 71,200 72,000 75,000 80,500
Professional and Business Services 185,000 195,200 198,200 201,700 201,600
Educational and Health Services 112,200 115,300 116,000 119,700 122,000
Leisure and Hospitality 124,400 129,000 131,400 133,800 139,900
Other Services 40,900 42,200 44,900 45,600 47,200
Government 199,300 206,600 213,800 219,700 219,800
Total, All Industries 1,164,000 1,205,200 1,229,800 1,241,700 1,253,100
Note: The "Total, All Industries" data is not directly comparable to the employment data found herein.
(I) March 2002 Benchmark Figures
(2) Based on place of work.
Source: State of California, Employment Development Department, San Diego MSA Annual Average Labor Force and
Industry Employment, March 2002 Benchmark and March 2003 Benchmark.
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The following listings set forth Chula Vista's Principal Employers for fiscal year ending
June 30, 2003:
Chula Vista's Principal Employers
Business IndustriaVOffice
Name Type of Business No. of Employees
BF Goodrich Aerospace Aerostructures Group Aerospace Manufacturer 2,418
Sharp Chula Vista Medical Center Hospital 1,110
Scripps Memorial Hospital Hospital 818
Ges Exposition Services, Inc. Contractor - Specialty 705
United Parcel Service Parcel Delivery Service 466
Wal-Mart General Merchandise 375
Remedy Temporary Services, LLC Employment Services 352
Raytheon Systems Company Communications 292
Costco Wholesaler Corp #460 General Merchandise 281
Sears Roebuck & Co. Department Store 262
Costco Wholesaler Corp #405 General Merchandise 237
Bayview Behavioral Health Campus Hospital 236
Home Depot Building Supplies/Hardware 235
American Fashion Inc. Apparel Manufacturing 229
GCE Industries Inc. Engineering 222
ATC Vancum of California Transit Company 214
Target Retail 204
MDllnterviewing Services, Inc. Marketing 200
Source: City of Chula Vista Finance Department (excluding City of Chula Vista Employees).
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Effective Buying Income
"Effective Buying Income" is defined as personal income less personal tax and nontax
payments, a number often referred to as "disposable" or "after-tax" income. Personal income is the
aggregate of wages and salaries, other than labor-related income (such as employer contributions to
private pension funds), proprietor's income, rental income (which includes imputed rental income of
owner-occupants of non-fann dwellings), dividends paid by corporations, interest income from all
sources and transfer payments (such as pensions and welfare assistance). Deducted from this total
are personal taxes (federal, state and local, nontax payments, fines, fees, penalties, etc.) and personal
contributions to social insurance. According to U.S. government definitions, the resultant figure is
commonly known as "disposable personal income."
The following table summarizes the total effective buying income, the per capita effective
buying income, the median household effective buying income and percent of households over
$50,000 for Chula Vista, the County and the State between 1998 and 2002.
Chula Vista, San Diego County and California
Effective Buying Income(!)
Median
Household Percent of
Effective Buying Per Capita Effective Effective Buying Households
Income'l) Buying Income Income over $50,000
1998
Chula Vista $ 2,408,888 $14,187 $33,911 30.1%
San Diego County 46,056,143 16,101 36,296 32.8
California 551,999,317 16,299 37,091 34.6
1999
Chula Vista $ 2,629,899 $15,776 $37,725 35.4%
San Diego County 49,907,828 17,270 39,213 37.4
California 590,376,663 17,245 39,492 38.3
2000
Chula Vista $ 2,959,674 $17,268 $42,550 41.6%
San Diego County 54,337,662 19,150 44,292 43.7
California 652,190,282 19,081 44,464 44.3
2001
Chula Vista $ 2,917,494 $16,128 $42,229 39.1%
San Diego County 55,210,119 19,092 44,146 42.0
California 650,521,407 18,652 43,532 41.9
2002
Chula Vista $ 2,864,900 $15,231 $40,578 37.0%
San Diego County 54,831,958 18,524 42,315 39.7
California 647,879,427 17,737 42,484 40.5
(1) Not comparable with prior years. Effective Buying Income is now based on money income (which does not take into
(2) account sale of property, taxes and social security paid, receipt offood stamps, etc.) versus personal income.
Dollars in thousands.
Source: "Survey of Buying Power," Sales & Marketing Management Magazine, dated 1999,2000,2001,2002 and 2003.
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Sales Taxes
The following table shows taxable transactions in Chula Vista by type of business during
calendar years 1998 through 2002. As indicated below, total retail sales for Chula Vista in 1998
increased by approximately 8.09% over the 1997 level, in 1999 increased by approximately 9.35%
over the 1998 level, in 2000 increased approximately 9.44% over the 1998 level, in 2000 increased
approximately 4.76% over the 2000 level and in 2002 increased approximately 2.34% over the 2001
level.
A summary of historic taxable transactions for Chula Vista is shown in the following table.
City ofChula Vista
Taxable Transactions
(Dollars in thousands)
1998 1999 2000 2001 2002
Apparel Stores Group $ 63,414 $ 61,758 $ 66,598 $ 61,937 $ 67,035
General Merchandise Stores 382,944 439,731 495,679 524,942 525,423
Food Stores Group 81,006 85,662 90,487 92,224 99,897
Eating and Drinking Group 131,661 142,329 155,583 164,417 169,892
Household Group/Home Fum. Appli. 55,856 61,923 66,365 67,827 74,255
Building Material Group 75,812 87,902 102,370 97,827 91,235
Automotive Group 107,808 126,304 145,923 151,812 156,872
Service Stations 88,570 95,546 121,244 119,050 123,636
Other Retail Stores 133.463 ----U2..ill ----1Rill ] 83303 205.564
Retail Stores Total $ 1,120,534 $ 1,240,992 $ 1,401,401 $1,463,409 $1,513,809
All Other Outlets ---..l.2.2Ml ~ 206889 225256 215.349
Total All Outlets ~ ~ ~ ~ ~
Note: Drugs stores are grouped with the General Merchandise Stores and package liquor stores are grouped with the Eating
and Drinking Group.
Source: State Board of Equalization.
Education
Public educational instruction from kindergarten through high school is provided by the
Chula Vista Elementary School District and Sweetwater Union High School District. These districts
administer twenty-six elementary schools, nine junior high schools and eight senior high schools.
Southwestern College, a two year Community College, has an enrollment of more than 15,000.
There are also four adult education schools and twelve private schools. There are seven universities
or colleges within 30 minutes commuting distance from Chula Vista in the San Diego Metropolitan
Area. Chula Vista has proposed a University of California campus in Chula Vista, to be located on a
400 acre site adjoining the Olympic Training Center.
Community Facilities
There are two acute-care hospitals, two psychiatric hospitals and three convalescent
hospitals, and more than 400 medical doctors and allied professionals in Chula Vista.
There are two daily, one weekly and one semi-weekly newspapers published and circulated
in Chula Vista. Chula Vista has one main public library and two branch libraries.
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Recreational facilities within or near Chula Vista include twenty-four parks, four community
centers, six "tot lots," two ball fields, twenty-eight tennis courts, three golf courses, four municipal
swimming pools, two gymnasiums and boat launching facilities. Chula Vista's bayfront area
contains a marina which houses 552 boats and miles of public beaches. Chula Vista also provides
many trails for bicycling, hiking and jogging.
Chula Vista is also the home of the United States Olympic Training Center. This is the third
such training center in the nation and the only year round training facility. The center is located on a
ISO-acre site donated by EastLake Development Company adjacent to the Otay Lake reservoir.
Chula Vista has more than sixty churches and nearly 100 service, fraternal and civic
organizations.
Transportation
U.S. Highways 5 (along the coast) and 805 (inland) provide full freeway access from Chula
Vista north to San Diego and south to the Mexican boarder. Commuter rail service is provided by
the San Diego Trolley, a light rail system started in 1981 and eleven bus routes serve Chula Vista.
Daily bus connections serve Chula Vista, and Southern Pacific Railway and San Diego's
Lindbergh Intemational Airport are fifteen minutes to the north of Chula Vista.
U tiIities
Electric power and natural gas are provided by San Diego Gas and Electric. Pacific Bell
provides telephone service to the area. Otay Water District and Sweetwater Water District provide
water service and Chula Vista provides sewer service.
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APPENDIX E
SUMMARY OF INDENTURE
The following is a sununary of certain provisions of the Bond Indenture not otherwise
summarized in the text of this Official Statement. This summary is not intended to be definitive, and
reference is made to the complete text of each of such documents for the complete terms thereof.
[TO COME]
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APPENDIX F
CONTINUING DISCLOSURE AGREEMENT OF THE DISTRICT
This Continuing Disclosure Agreement dated as of May I, 2004 (the "Disclosure
Agreement") is executed and delivered by Community Facilities District No. 07-1 (Otay Ranch
Village Eleven) (the "Issuer") and MuniFinancial as dissemination agent (the "Dissemination
Agent"), in connection with the issuance and delivery by the Issuer of its $ 2004 Special
Tax Bonds (the "2004 Bonds"). The 2004 Bonds are being issued pursuant to an Indenture, dated as
of May 1,2004 (the "Indenture"), by and between the Issuer and U.S. Bank National Association, as
fiscal agent (the "Fiscal Agent"). The Issuer and the Dissemination Agent covenant as follows:
SECTION 1. PUI:pose of the Disclosure Agreement. This Disclosure Agreement is being
executed and delivered by the Issuer and the Dissemination Agent, for the benefit of the Owners and
Beneficial Owners of the 2004 Bonds and in order to assist the Participating Underwriter in
complying with the Rule.
SECTION 2. Definitions. In addition to the definitions set forth in the Indenture, which
apply to any capitalized tenD used in this Disclosure Agreement unless otherwise defined in this
Section, the following capitalized terms shall have the following meanings:
"Annual Report" shall mean any Annual Report provided by the Issuer pursuant to, and as
described in, Sections 3 and 4 of this Disclosure Agreement.
"Beneficial Owner" shall mean any person which (a) has the power, directly or indirectly, to
vote or consent with respect to, or to dispose of ownership of, any 2004 Bonds (including persons
holding Bonds through nominees, depositories or other intennediaries), or (b) is treated as the owner
of any Bonds for federal income purposes.
"Disclosure Representative" shall mean the Director of Finance of the City of Chula Vista or
his or her designee, or such other officer or employee as the Issuer shall designate in writing to the
Dissemination Agent from time to time.
"Dissemination Agent" shall mean, initially, MuniFinancial, acting in its capacity as
Dissemination Agent hereunder, or any successor Dissemination Agent designed in writing by the
Issuer and which has been filed with the then current Dissemination Agent a written acceptance of
such designation.
"Listed Events" shall mean any of the events listed in Section 5(a) of this Disclosure
Agreement.
"National Repository" shall mean any Nationally Recognized Municipal Securities
Infonnation Repository for purpose of the Rule.
"Official Statement" shall mean the Official Statement, dated , 2004 relating
to the 2004 Bonds.
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"Participating Underwriter" shall mean Stone & Youngberg LLC, whose address for
purposes of this Agreement is One Ferry Building, San Francisco, California 941 I 1, Attention:
Research Department.
"Repository" shall mean each National Repository and each State Repository.
"Rule" shall mean Rule l5c2-12(b)(5) adopted by the Securities and Exchange Commission
under the Securities Exchange Act of 1934, as the same may be amended trom time to time.
"State Repository" shall mean any public or private repository or entity designated by the
State of California as a state repository for the purpose of the Rule and recognized as such by the
Securities and Exchange Commission. As of the date of this Disclosure Agreement, there is no State
Repository.
"Tax-exempt" shall mean that interest on the 2004 Bonds is excluded ITom gross income for
federal income tax purposes, whether or not such interest is includable as an item of tax preferences
or otherwise includable directly or indirectly for purposes of calculating any other tax liability,
including any alternative minimum tax or environmental tax.
SECTION 3. Provision of Annual Reports.
(a) The Issuer shall, or shall cause the Dissemination Agent by written direction to such
Dissemination Agent to, not later than February I after the end of the Issuer's fiscal year (which
currently ends on June 30), commencing with the report due by February I, 2005, provide to each
Repository and the Participating Underwriter an Annual Report which is consistent with the
requirements of Section 4 of this Disclosure Agreement. The Annual Report may be submitted as a
single document or as separate documents comprising a package, and may include by reference other
information as provided in Section 4 of this Disclosure Agreement; provided that the audited
financial statements of the Issuer may be submitted separately from and later than the balance ofthe
Annual Report if they are not available by the date required above for the filing of the Annual
Report.
An Annual Report shall be provided at least annually notwithstanding any fiscal year
longer than 12 calendar months. The Issuer's fiscal year is currently effective from July 1 to the
immediately succeeding June 30 of the following year. The Issuer will promptly notifY each
Repository or the Municipal Securities Rulemaking Board and, in either case, the Fiscal Agent and
the Dissemination Agent of a change in the fiscal year dates.
(b) Not later than fifteen (15) Business Days prior to the date specified in subsection (a)
for providing the Annual Report to Repositories, the Issuer shall provide the Annual Report to the
Dissemination Agent. If by fifteen (15) Business Days prior to such date the Dissemination Agent
has not received a copy of the Annual Report, the Dissemination Agent shall contact the Issuer to
determine if the Issuer is in compliance with subsection (a). The Issuer shall provide a written
certification with each Annual Report furnished to the Dissemination Agent to the effect that such
Annual Report constitutes the Annual Report required to be furnished by it hereunder. The
Dissemination Agent may conclusively rely upon such certification of the Issuer and shall have no
duty or obligation to review such Annual Report.
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(c) If the Dissemination Agent is unable to verify that an Annual Report has been
provided to Repositories by the date required in subsection (a), the Dissemination Agent shall send a
notice to each Repository, in substantially the fonn attached as Exhibit A.
(d) The Dissemination Agent shall:
(i) detennine each year prior to the date for providing the Annual Report the
name and address of each National Repository and each State Repository, if any; and
(ii) promptly after receipt of the Annual Report, file a report with the Issuer and
(if the Dissemination Agent is not the Fiscal Agent) the Fiscal Agent certifying that the
Annual Report has been provided pursuant to this Disclosure Agreement, stating the date it
was provided and listing all the Repositories to which it was provided.
SECTION 4. Content of Annual Reports. The initial Annual Report due by February I,
2005 shall include only a copy of the Official Statement and the audited financial statements of the
Issuer described in Section 4(a) below. Thereafter, the Issuer's Annual Report shall contain or
include by reference:
(a) Financial Statements. The audited financial statements of the Issuer for the most
recent fiscal year of the Issuer then ended. If the Issuer prepares audited financial statement and if
the audited financial statements are not available by the time the Annual Report is required to be
filed, the Annual Report shall contain any unaudited financial statements of the Issuer in a fonnat
similar to the financial statements, and the audited financial statements shall be filed in the same
manner as the Annual Report when they become available. Audited financial statements of the
Issuer shall be audited by such auditor as shall then be required or pennitted by State law or the
Indenture. Audited financial statements, if prepared by the Issuer, shall be prepared in accordance
with generally accepted accounting principles as prescribed for governmental units by the
Governmental Accounting Standards Board; provided, however, that the Issuer may from time to
time, if required by federal or state legal requirements, modify the basis upon which its financial
statements are prepared. In the event that the Issuer shall modify the basis upon which its financial
statements are prepared, the Issuer shall provide a notice of such modification to each Repository,
including a reference to the specific federal or state law or regulation specifically describing the legal
requirements for the change in accounting basis.
(b) Financial and Operating Data. The Annual Report shall contain or incorporate by
reference the following infonnation:
(i) the principal amount of Bonds outstanding as of the September 2 preceding
the filing of the Annual Report;
(ii) the balance in each fund under the Indenture and the Reserve Requirement as
of the September 2 preceding the filing of the Annual Report;
(iii) an update on the status of construction of the public improvements to be
constructed with the proceeds ofthe 2004 Bonds, which shall include an update of Table 1 in
the Official Statement;
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(iv) any changes to the Rate and Method of Apportionment of the Special Taxes
approved or submitted to the qualified electors for approval prior to the filing of the Annual
Report and a description of any parcels for which the Special Taxes have been prepaid in the
Fiscal Year for which the Annual Report is being prepared;
(v) an update of the estimated assessed value-to-lien ratios within the District
based upon the most recent Special Tax levy preceding the date ofthe Annual Report and on
the assessed values of property for the current fiscal year substantially in the fonD set forth in
Table 7; provided, however, that all parcels which constitute Developed Property may be
grouped as a single category;
(vi) an update of Table 2 in the Official Statement, including (a) the percentage of
Special Taxes payable by individual homeowners as a group, and (b) a list of all taxpayers
within the District which own property in the District upon which 5% or more of the total
Special Taxes for the current fiscal year have been levied, and a statement as to whether any
of such taxpayers is delinquent in the payment of Special Taxes;
(vii) any event known to the Issuer which reduces or slows the number of
residential units pennitted to be constructed within the District or which results in a
moratorium on future building within the District;
(viii) the status of any foreclosure actions being pursued by the Issuer with respect
to delinquent Special Taxes;
(ix) the total Special Taxes levied and the total Special Taxes collected for the
prior fiscal year and the total Special Taxes that remain unpaid for each prior fiscal year in
which Special Taxes were levied; and
(x) any infonnation not already included under (i) through (ix) above that the
Issuer is required to file in its annual report to the California Debt and Investment Advisory
Commission pursuant to the provisions of the Mello-Roos Community Facilities Act of 1982,
as amended.
(c) Any or all of the items listed in (a) or (b) above may be included by specific reference
to other documents, including official statements of debt issues of the Issuer or related public entities,
which have been submitted to each of the Repositories or the Securities and Exchange Commission.
If the document included by reference is a final official statement, it must be available from the
Municipal Securities Rulemaking Board. The Issuer shall clearly identifY each such other document
so included by reference.
SECTION 5. Reporting of Significant Events.
(a) Pursuant to the provisions of this Section 5, the Issuer shall give, or cause to be given,
notice ofthe occurrence of any of the following events with respect to the 2004 Bonds, if material:
(I) principal and interest payment delinquencies.
(2) an event of default under the Indenture other than as described in (I) above.
(3) unscheduled draws on the Reserve Fund reflecting financial difficulties.
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(4) unscheduled draws on any credit enhancements securing the 2004 Bonds
reflecting financial difficulties.
(5) any change in the provider of any letter of credit or any municipal bond
insurance policy securing the 2004 Bonds or any failure by the providers of such letters of
credit or municipal bond insurance policies to perfonn on the letter of credit or municipal
bond insurance policy.
(6) adverse tax opinions or events adversely affecting the tax-exempt status of the
2004 Bonds.
(7) modifications to the rights of Bond Owners.
(8) unscheduled redemption of any Bond.
(9) defeasances.
(10) any release, substitution, or sale of property securing repayment of the 2004
Bonds.
(II) rating changes.
(b) The Dissemination Agent shall, promptly upon the obtaining actual knowledge of the
occurrence of any of the Listed Events, contact the Disclosure Representative, infonn such person of
the event, and pursuant to the Indenture, infonn such person ofthe event, and request that the Issuer
promptly notify the Dissemination Agent in writing whether or not to report the event pursuant to
subsection (t).
(c) Whenever the Issuer obtains knowledge of the occurrence of a Listed Event, whether
because of a notice from the Dissemination Agent pursuant to subsection (b) or otherwise, the Issuer
shall as soon as possible detennine if such event would be material under applicable federal
securities laws.
(d) If the Issuer has detennined that knowledge of the occurrence of a Listed Event
would be material under applicable federal securities laws, the Issuer shall promptly notify the
Dissemination Agent in writing. Such notice shall instruct the Dissemination Agent to report the
occurrence pursuant to subsection (t).
(e) If in response to a request under subsection (b), the Issuer detennines that the Listed
Event would not be material under applicable federal securities laws, the Issuer shall so notify the
Dissemination Agent in writing and instruct the Dissemination Agent not to report the occurrence
pursuant to subsection (t).
(t) If the Dissemination Agent has been instructed by the Issuer to report the occurrence
of a Listed Event, the Dissemination Agent shall file a notice of such occurrence with (i) the
Municipal Securities Rulemaking Board or (ii) each National Repository, and in either case, to each
State Repository. Notwithstanding the foregoing, notice of Listed Events described in subsections
(a)(8) and (9) need not be given under this subsection any earlier than the notice (if any) of the
underlying event is given to Owners of affected 2004 Bonds pursuant to the Indenture. In each case
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DOCSOCII 018657v7\22245.0139
DOCSOCII 018657v7/22245-0l39
of the Listed Event, the Dissemination Agent shall not be obligated to file a notice as required in this
subsection (f) prior to the occurrence of such Listed Event.
(g) The Issuer hereby agrees that the undertaking set forth in this Disclosure Agreement
is the responsibility of the Issuer and that the Fiscal Agent or the Dissemination Agent shall not be
responsible for determining whether the Issuer's instructions to the Dissemination Agent under this
Section 5 comply with the requirements of the Rule.
SECTION 6. Termination of Reporting Obligation. The obligation of the Issuer and the
Dissemination Agent under this Disclosure Agreement shall terminate upon the legal defeasance,
prior redemption or payment in full of all of the 2004 Bonds. If such termination occurs prior to the
final maturity of the 2004 Bonds, the Issuer shall give notice of such termination in the same manner
as for a Listed Event under Section 5.
SECTION 7. Dissemination Agent. The Issuer may, from time to time, appoint or engage a
Dissemination Agent to assist it in carrying out its obligations under the Disclosure Agreement, and
may discharge any such Dissemination Agent, with or without appointing a successor Dissemination
Agent. If at any time there is not any other designated Dissemination Agent, the Fiscal Agent shall
be the Dissemination Agent. The initial Dissemination Agent shall be MuniFinancial. The
Dissemination Agent may resign by providing (i) thirty days written notice to the Issuer and the
Fiscal Agent and (ii) upon appointment of a new Dissemination Agent hereunder.
SECTION 8. Amendment. (a) This Disclosure Amendment may be amended, by written
agreement of the parties, without the consent of the Owners, if all of the following conditions are
satisfied: (1) such amendment is made in connection with a change in circumstances that arises from
a change in legal (including regulatory) requirements, a change in law (including rules or regulations)
or in interpretations thereof, or a change in the identity, nature or status of the Issuer or the type of
business conducted thereby, (2) this Disclosure Agreement as so amended would have complied with
the requirements of the Rule as of the date of this Disclosure Agreement, after taking into account
any amendments or interpretations of the Rule, as well as any change in circumstances, (3) the Issuer
shall have delivered to the Fiscal Agent an opinion of a nationally recognized bond counselor
counsel expert in federal securities laws, addressed to the Issuer and the Fiscal Agent, to the same
effect as set forth in clause (2) above, (4) the Issuer shall have delivered to the Dissemination Agent
an opinion of nationally recognized bond counselor counsel expert in federal securities laws,
addressed to the Issuer, to the effect that the amendment does not materially impair the interests of
the Owners or Beneficial Owners, and (5) the Issuer shall have delivered copies of such opinion and
amendment to each Repository.
(b) This Disclosure Agreement may be amended, by written agreement of the parties,
upon obtaining consent of Owners in the same manner as provided in the Indenture for amendments
to the Indenture with the consent of the Owners of the 2004 Bonds, provided that the conditions set
forth in Section 8(a)(I), (2) and (3) have been satisfied.
(c) To the extent any amendment to this Disclosure Agreement results in a change in the
type of financial information or operating data provided pursuant to this Disclosure Agreement, the
first Annual Report provided thereafter shall include a narrative explanation of the reasons for the
amendment and the impact of the change.
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-.--.---.---
(d) If an amendment is made to the basis on which financial statements are prepared, the
Annual Report for the year in which the change is made shall present a comparison between the
financial statements or infonnation prepared on the basis of the new accounting principles and those
prepared on the basis of the fonner accounting principles. Such comparison shall include a
quantitative and, to the extent reasonably feasible, qualitative discussion of the differences in the
accounting principles and the impact ofthe change in the accounting principles on the presentation of
the financial infonnation.
SECTION 9. Additional Information. Nothing in this Disclosure Agreement shall be
deemed to prevent the Issuer from disseminating any other infonnation, using the means of
dissemination set forth in this Disclosure Agreement or any other means of communication, or
including any other information in any Annual Report or notice of occurrence of a Listed Event, in
addition to that which is required by this Disclosure Agreement. 1fthe Issuer chooses to include any
infonnation in any Annual Report or notice of occurrence of a Listed Event in addition to that which
is specifically required by this Disclosure Agreement, the Issuer shall have no obligation under this
Agreement to update such infonnation or include it in any future Annual Report or notice if
occurrence of a Listed Event.
The Issuer acknowledges and understands that other state and federal laws, including but not
limited to the Securities Act of 1933 and Rule IOb-5 promulgated under the Securities Exchange Act
of 1934, may apply to the Issuer, and that under some circumstances compliance with this Disclosure
Agreement, without additional disclosures or other action, may not fully discharge all duties and
obligations of the Issuer under such laws.
SECTION 10. Default. In the event of a failure of the Issuer or the Dissemination Agent to
comply with any provision of this Disclosure Agreement, the Participating Underwriter or any
Owner or Beneficial Owner of the 2004 Bonds may take such actions as may be necessary and
appropriate, including seeking mandate or specific perfonnance by court order, to cause the Issuer to
comply with its obligations under this Disclosure Agreement. A default under this Disclosure
Agreement shall not be deemed an Event of Default under the Indenture, and the sole remedy under
this Disclosure Agreement in the event of any failure of the Issuer or the Fiscal Agent to comply with
this Disclosure Agreement shall be an action to compel perfonnance.
SECTION 1 I. Duties. Immunities and Liabilities of Fiscal Agent and Dissemination A¡;ent.
Article VI of the Indenture is hereby made applicable to this Disclosure Agreement as if this
Disclosure Agreement were (solely for this purpose) contained in the Indenture and the
Dissemination Agent shall be entitled to the same protections, limitations from liability and
indemnification hereunder as are afforded the Fiscal Agent thereunder. The Dissemination Agent
shall have only such duties as are specifically set forth in this Disclosure Agreement, and the Issuer
agrees to indemnity and save the Dissemination Agent and its respective officers, directors,
employees and agents, hannless against any loss, expense and liabilities which they may incur
arising out of or in the exercise or perfonnance of their powers and duties hereunder, including the
costs and expenses (including attorneys fees) of defending against any claim of liability, but
excluding liabilities due to the Dissemination Agent's negligence or willful misconduct. The
Dissemination Agent shall be paid compensation by the Issuer for its services provided hereunder in
accordance with its schedule of fees as amended from time to time and all expenses, legal fees and
advances made or incurred by the Dissemination Agent in the perfonnance of its duties hereunder.
The Dissemination Agent shall have no duty or obligation to review any infonnation provided to it
hereunder. The obligations of the Issuer under this Section shall survive resignation or removal of
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DOCSOC\l 018657v7\22245.0139
DOCSOC/I 0 18657v7/22245-0139
the Dissemination Agent and payment of the 2004 Bonds. No person shall have any right to
commence any action against the Dissemination Agent seeking any remedy other than to compel
specific performance of this Disclosure Agreement. The Dissemination Agent shall not be liable
under any circumstances for monetary damages to any person for any breach under this Disclosure
Agreement.
SECTION 12. Beneficiaries. This Disclosure Agreement shall inure solely to the benefit of
the Issuer, the Fiscal Agent, the Dissemination Agent, the Participating Underwriter and Owners and
Beneficial Owners from time to time of the 2004 Bonds, and shall create no rights in any other
person or entity.
SECTION 13. Notices. Notices should be sent in writing to the following addresses. The
following information may be conclusively relied upon until changed in writing.
Disclosure Representative: Director of Finance
City of Chula Vista
276 Fourth Avenue
Chula Vista, California 91910
Dissemination Agent: MuniFinancial
28765 Single Oak Drive, Suite 200
Temecula, California 92590
Attention:
SECTION 14. Counterparts. This Disclosure Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall constitute but one and the same
instrument.
COMMUNITY FACILITIES DISTRICT NO. 07-1
(Otay Ranch Village Eleven)
By:
Director of Finance
MUNIFINANCIAL, as Dissemination Agent
By:
Authorized Officer
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EXHIBIT A
NOTICE TO REPOSITORIES OF FAILURE TO FILE ANNUAL REPORT
Name ofIssuer: City of Chula Vista Community Facilities District No. 07-1 (Otay Ranch
Village Eleven)
Name of Bond Issue: City of Chula Vista Community Facilities District No. 07-1 (Otay Ranch
Village Eleven) $ 2004 Special Tax Bonds
Date of Issuance: ,2004
NOTICE IS HEREBY GIVEN that the Community Facilities District No. 07-1 (Otay Ranch
Village Eleven) located in the City of Chula Vista, California (the "District") has not provided an
Annual Report with respect to the above-named Bonds as required by Section 3 of the Continuing
Disclosure Agreement, dated as of May 1, 2004, by and between the District and MuniFinancial, as
dissemination agent. [The District anticipates that the Annual Report will be filed by _.j
Dated:
MuniFinancial, as Dissemination Agent
cc: City ofChula Vista
Stone & Youngberg LLC
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APPENDIX G
CONTINUING DISCLOSURE AGREEMENT OF THE DEVELOPER
[TO COME]
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DOCSOC/IOI8657v7/22245-0l39
APPENDIX H
FORM OF OPINION OF BOND COUNSEL
[TO COME]
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DOCSOC/1 01 8657v7/22245-0l39
APPENDIX I
DTC AND THE BOOK ENTRY SYSTEM
The Depository Trust Company ("DTC"), New York, NY, will act as securities depository
for the 2004 Bonds. The 2004 Bonds will be issued as fully-registered securities registered in the
name of Cede & Co. (DTC's partnership nominee) or such other name as may be requested by an
authorized representative of DTC. One fully-registered bond will be issued for each maturity of the
2004 Bonds, each in the aggregate principal amount of such maturity, and will be deposited with
DTC.
DTC, the world's largest depository, is a limited-purpose trust company organized under the
New York Banking Law, a "banking organization" within the meaning of the New York Banking
Law, a member of the Federal Reserve System, a "clearing corporation" within the meaning of the
New York Uniform Commercial Code, and a "clearing agency" registered pursuant to the provisions
of Section 17 A of the Securities Exchange Act of 1934. DTC holds and provides asset servicing for
over 2 million issues of U.s. and non-U.S. equity issues, corporate and municipal debt issues, and
money market instruments from over 85 countries that DTC's participants ("Direct Participants")
deposit with DTC. DTC also facilitates the post-trade settlement among Direct Participants of sales
and other securities transactions in deposited securities, through electronic computerized book-entry
transfers and pledges between Direct Participants' accounts. This eliminates the need for physical
movement of securities certificates. Direct Participants include both U.S. and non-U.S. securities
brokers and dealers, banks, trust companies, clearing corporations, and certain other organizations.
DTC is a wholly-owned subsidiary of The Depository Trust & Clearing Corporation ("DTCC").
DTCC, in turn, is owned by a number of Direct Participants of DTC and Members of the National
Securities Clearing Corporation, Government Securities Clearing Corporation, MBS Clearing
Corporation, and Emerging Markets Clearing Corporation, (NSCC, GSCC, MBSCC, and EMCC,
also subsidiaries ofDTCC), as well as by the New York Stock Exchange, Inc., the American Stock
Exchange LLC, and the National Association of Securities Dealers, Inc. Access to the DTC system is
also available to others such as both U.S. and non-U.S. securities brokers and dealers, banks, trust
companies, and clearing corporations that clear through or maintain a custodial relationship with a
Direct Participant, either directly or indirectly ("Indirect Participants"). DTC has Standard & Poor's
highest rating: AAA. The DTC Rules applicable to its Participants are on file with the Securities and
Exchange Commission.
Purchases of Bonds under the DTC system must be made by or through Direct Participants,
which will receive a credit for the 2004 Bonds on DTC's records. The ownership interest of each
actual purchaser of each 2004 Special Tax Bond ("Beneficial Owner") is in turn to be recorded on
the Direct and Indirect Participants' records. Beneficial Owners will not receive written
confirmation from DTC of their purchase. Beneficial Owners are, however, expected to receive
written confirmations providing details of the transaction, as well as periodic statements of their
holdings, from the Direct or Indirect Participant through which the Beneficial Owner entered into the
transaction. Transfers of ownership interests in the 2004 Bonds are to be accomplished by entries
made on the books of Direct and Indirect Participants acting on behalf of Beneficial Owners.
Beneficial Owners will not receive bonds representing their ownership interests in Bonds, except in
the event that use of the book-entry system for the 2004 Bonds is discontinued.
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To facilitate subsequent transfers, all Bonds deposited by Direct Participants with DTC are
registered in the name of DTC's partnership nominee, Cede & Co., or such other name as may be
requested by an authorized representative of DTC. The deposit of Bonds with DTC and their
registration in the name of Cede & Co. or such other DTC nominee do not effect any change in
beneficial ownership. DTC has no knowledge of the actual Beneficial Owners of the 2004 Bonds;
DTC's records reflect only the identity of the Direct Participants to whose accounts such Bonds are
credited, which mayor may not be the Beneficial Owners. The Direct and Indirect Participants will
remain responsible for keeping account of their holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to Direct Participants, by Direct
Participants to Indirect Participants, and by Direct Participants and Indirect Participants to Beneficial
Owners will be governed by arrangements among them, subject to any statutory or regulatory
requirements as may be in effect from time to time. Beneficial Owners of 2004 Bonds may wish to
take certain steps to augment the transmission to them of notices of significant events with respect to
the 2004 Bonds, such as redemptions, tenders, defaults, and proposed amendments to the 2004 Bond
documents. For example, Beneficial Owners of Bonds may wish to ascertain that the nominee
holding the 2004 Bonds for their benefit has agreed to obtain and transmit notices to Beneficial
Owners. In the alternative, Beneficial Owners may wish to provide their names and addresses to the
registrar and request that copies of notices be provided directly to them.
Redemption notices shall be sent to DTC. If less than all of the 2004 Bonds within a
maturity are being redeemed, DTC's practice is to detennine by lot the amount of the interest of each
Direct Participant in such maturity to be redeemed.
Neither DTC nor Cede & Co. (nor such other DTC nominee) will consent or vote with
respect to the 2004 Bonds unless authorized by a Direct Participant in accordance with DTC's
Procedures. Under its usual procedures, DTC mails an Omnibus Proxy to the District as soon as
possible after the record date. The Omnibus Proxy assigns Cede & Co.'s consenting or voting rights
to those Direct Participants to whose accounts the 2004 Bonds are credited on the record date
(identified in a listing attached to the Omnibus Proxy).
Redemption proceeds, distributions, and dividend payments on the 2004 Bonds will be made
to Cede & Co., or such other nominee as may be requested by an authorized representative of DTc.
DTC's practice is to credit Direct Participants' accounts upon DTC's receipt of funds and
corresponding detail infonnation from the District or the Fiscal Agent, on payment date in
accordance with their respective holdings shown on DTC's records. Payments by Participants to
Beneficial Owners will be governed by standing instructions and customary practices, as is the case
with securities held for the accounts of customers in bearer fonn or registered in "street name," and
will be the responsibility of such Participant and not of DTC nor its nominee, the Fiscal Agent, or the
District, subject to any statutory or regulatory requirements as may be in effect from time to time.
Payment ofredemption proceeds, distributions, and dividend payments to Cede & Co. (or such other
nominee as may be requested by an authorized representative of DTC) is the responsibility of the
Fiscal Agent, disbursement of such payments to Direct Participants will be the responsibility ofDTC,
and disbursement of such payments to the Beneficial Owners will be the responsibility of Direct and
Indirect Participants.
A Beneficial Owner shall give notice to elect to have its Bonds purchased or tendered,
through its Participant, to the Fiscal Agent, and shall effect delivery of such Bonds by causing the
Direct Participant to transfer the Participant's interest in the 2004 Bonds, on DTC's records, to the
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DOCSOC\I 018657v7\22245.0139 q/
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Fiscal Agent. The requirement for physical delivery of Bonds in connection with an optional tender
or a mandatory purchase will be deemed satisfied when the ownership rights in the 2004 Bonds are
transferred by Direct Participants on DTC's records and followed by a book-entry credit of tendered
Bonds to the Fiscal Agent's DTC account.
DTC may discontinue providing its services as depository with respect to the 2004 Bonds at
any time by giving reasonable notice to the District or the Fiscal Agent. Under such circumstances,
in the event that a successor depository is not obtained, physical Bonds are required to be printed and
delivered.
The District may decide to discontinue use of the system of book-entry-only transfers
through DTC (or a successor securities depository). In that event, physical Bonds will be printed and
delivered to DTC.
The infonnation in this section concerning DTC and DTC's book-entry system has been
obtained from sources that the District believes to be reliable, but the District takes no responsibility
for the accuracy thereof.
1-3 q,/ ~I
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DOCSOCII 018657v7/22245-0139
EXHIBIT 5
BOND INDENTURE
by and between
Community Facilities District No. 07-1
(Otay Ranch Village Eleven)
and
U.S. Bank National Association,
As Fiscal Agent
Dated as of March 1, 2004
Re: $00,000,000
City of Chura Vista
Community Facilities District No. 07-1
(Otay Ranch Village Eleven)
2004 Special Tax Bonds
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TABLE OF CONTENTS
Pal!e
ARTICLE I. DEFINITIONS .....................................................................................................1
SECTION 1.01 DEFINITIONS. """""""""""""""""""""""""""""""""""""""""""'"..........1
ARTICLE II. GENERAL AUTHORIZATION AND TERMS........................................... 15
SECTION 2.01 AMOUNT, ISSUANCE AND PURPOSE. .............................................................15
SECTION 2.02 TYPE AND NATURE OF BOND. .......................................................................15
SECTION 2.03 TERMS OF THE BONDs..................................................................................16
SECTION 2.04 DESCRIPTION OF BONDS; INTEREST RATES. ..................................................16
SECTION 2.05 PAYMENT......................................................................................................16
SECTION 2.06 EXECUTION OF BONDs. .................................................................................17
SECTION 2.07 ORDER TO PRINT AND AUTHENTICATE BONDS..............................................17
SECTION 2.08 BOOKS OF REGISTRATION; BOOK ENTRY SYSTEM. .......................................17
SECTION 2.09 EXCHANGE OF BONDS...................................................................................19
SECTION 2.10 NEGOTIABILITY, REGISTRATION AND TRANSFER OF BONDS. ........................19
SECTION 2.11 AUTHENTICATION. ........................................................................................19
ARTICLE III. FUNDS AND ACCOUNTS ........................................................................... 21
SECTION 3.01 ESTABLISHMENT OF SPECIAL FUNDS.............................................................21
SECTION 3.02 SPECIAL TAX FUND. .....................................................................................21
SECTION 3.03 BOND SERVICE FUND....................................................................................23
A. Interest Account ....................... .................................................................................23
B. Principal Account. ......................................................................................................23
SECTION 3.04 COSTS OF ISSUANCE FUND. ...........................................................................23
SECTION 3.05 PROJECT FUND..............................................................................................24
SECTION 3.06 RESERVE FUND....................................................................... ......................28
SECTION 3.07 REBATE FUND...............................................................................................29
SECTION 3.08 REDEMPTION FUND.......................................................................................30
SECTION 3.09 ADMINISTRATIVE EXPENSE FUND. ................................................................30
SECTION 3.10 INVESTMENT OF FUNDS..................................................... ............................30
SECTION 3.11 DISPOSITION OF BOND PROCEEDS. ...............................................................31
ARTICLE IV. REDEMPTION """"""""""""""""""""""""""""""""""""""""""..........33
SECTION 4.01 NOTICE OF REDEMPTION. ..............................................................................33
A. Notice bv Mail to Bondholders: ..... ...................................... ................................... 33
B. Further Notice: ........................................................................................................... 33
C. Failure to Receive Notice............................................................................................ 33
D. Certificate of Givinl!: Notice........................................................................................ 34
SECTION 4.02 EFFECT OF REDEMPTION. ...............................................................................34
SECTION 4.03 REDEMPTION PRICES AND TERMS. ................................................................34
A. Optional RedemPtion .................................................................................................. 34
B. Extraordinarv Mandatorv RedemPtion. ............................... ...... ............................... 35
C. Mandatorv Sinkinl!: Fund RedemPtion ....................................... ............................... 35
E. Notice and Selection of Bonds for ..Redemption......................................................... 36
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Bond Indenture 3.12.04
TABLE OF CONTENTS
(Continued)
Pal!e
ARTICLE V. SUPPLEMENTAL INDENTURES ................................................................ 38
SECTION 5.01 AMENDMENTS OR SUPPLEMENTS. .................................................................38
ARTICLE VI. MISCELLANEOUS CONDITIONS.......................................................... 40
SECTION 6.01 OWNERSHIP OF BONDs..................................................................................40
SECTION 6.02 MUTILATED, LOST, DESTROYED OR STOLEN BONDS...................................40
SECTION 6.03 CANCELLATION OF BONDS............................................................................40
SECTION 6.04 COVENANTS..................................................................................................40
SECTION 6.05 ARBITRAGE CERTIFICATE. ............................................................................44
SECTION 6.06 DEFEASANCE. ...............................................................................................44
SECTION 6.07 FISCAL AGENT. """"""""""""""""""""""""""".......................................45
SECTION 6.08 LIABILITY OF FISCAL AGENT.........................................................................46
SECTION 6.09 PROVISIONS CONSTITUTE CONTRACT. ..........................................................47
SECTION 6.10 CUSIP NUMBERS. ........................................................................................48
SECTION 6.11 SEVERABILITY. """""""""""""""""""""""""""""...................................48
SECTION 6.12 UNCLAIMED MONEY.....................................................................................48
SECTION 6.13 NONPRESENTMENT OF BONDs.......................................................................49
SECTION 6.14 CONTINUING DISCLOSURE. ...........................................................................49
ARTICLE VII. BOND FORM................................................................................................ 56
SECTION 7.01 FORM OF BONDS. ..........................................................................................56
SECTION 7.02 TEMPORARY BONDS. ....................................................................................56
ARTICLE VIII EVENT OF DEFAULT ................................................................................ 57
SECTION 8.01 EVENTS OF DEFAULT. ...................................................................................57
SECTION 8.02 APPLICATION OF REVENUES AND OTHER FUNDS AFTER DEFAULT................57
EXHIBIT "A" - FORM OF BOND.......................................................................................A-1
EXHIBIT "B" - ARBITRAGE REBATE INSTRUCTIONS ................................................B-1
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BOND INDENTURE
This Bond Indenture dated as of March 1,2004, is entered into by and between Community
Facilities District No. 07-1 (Otay Ranch Village Eleven), a community facilities district organized
and existing under the laws of the State, and U.S. Bank National Association, as Fiscal Agent, to
establish the terms and conditions and pertaining to the issuance of the Bonds as defined herein.
ARTICLE I. DEFINITIONS
SECTION 1.01 Definitions.
As used in this Indenture, the following terms shall have the following meanings:
"2004 Bonds" means the $ _,000,000 City ofChula Vista Community Facilities District 07-1 (Otay
Ranch Village Eleven) 2004 Special Tax Bonds issued pursuant to this Indenture.
"2004 Term Bonds" means the 2004 Bonds maturing on September 1, 20_, the 2004 Bonds
maturing on September 1, 20- and the 2004 Bonds maturing on September 1, 20_.
"Acquisition Account" means, for each series of the Bonds, the account by that name within the
Project Fund established for such series ofthe Bonds pursuant to Section 3.10 hereof.
"AcquisitionlFinancing Agreement" means that certain AcquisitionlFinancing Agreement made and
entered into on , 2003 by and between the City, acting on behalf of itself and the
District, and Brookfield Shea Otay, LLC, a California limited liability company, as such agreement
may be amended from time to time.
"Act" means the "Mello-Roos Community Facilities Act of 1982", as amended, being Chapter 2.5,
Part 1, Division 2, Title 5 of the Government Code of the State of California.
"Administrative Expense Fund" means the fund by that name established pursuant to Section 3.01
hereof.
"Administrative Expense Account" means, for each series of the Bonds, the account by that name
established for such series of the Bonds pursuant to Section 3.01 hereof.
"Administrative Expenses" means, for each series of the Bonds, (i) the proportionate share of the
expenses allocated to such series of the Bonds directly related to the administration of the District,
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 a 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 Fiscal Agent; the costs associated with preparing Special Tax
disclosure statements and responding to public inquiries regarding the Special Taxes; the costs of the
City, District or any designee thereof related to an appeal of the Special Tax; and (ii) the costs of the
Fiscal Agent (including its legal counsel) in the discharge of the duties of the Fiscal Agent pertaining
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to such series of the Bonds required under this Indenture and any Supplemental Indenture; the costs
of the City, the District or any designee thereof of complying with the arbitrage rebate requirements
or incurred in participating in and responding to an audit by the Internal Revenue Service pertaining
to such series of the Bonds; the costs of the City, the District, or any designee thereof of complying
with City, District or obligated person disclosure requirements associated with applicable federal or
state securities laws and of the Act pertaining to such series of the Bonds; and the costs of any credit
enhancement obtained by the City or the District (but excluding the costs of any credit enhancement
required to be provided by Brookfield Shea Otay, LLC and/or its successor) for such series of the
Bonds. Administrative Expenses shall also include Delinquency Collection Expenses.
"Administrative Expense Requirement" means, for each series of the Bonds, an annual amount equal
to $75,000, or such lesser amount as may be designated by written instruction from an Authorized
Representative to the Fiscal Agent, to be allocated as the first priority of Special Taxes received each
Fiscal Year for the payment of Administrative Expenses allocated to such series of the Bonds.
"Annual Debt Service" means, for each series of the Bonds for each Bond Year, the sum of (a) the
interest payable on the Outstanding Bonds of such series in such Bond Year, and (b) the principal
amount of the Outstanding Bonds of such series scheduled to be paid in such Bond Year, including
from mandatory sinking fund payments.
"Appraisal" means an appraisal prepared by the Appraiser or an MAl appraiser who is also a state
certified appraiser, as defined in California Business and Professions Code Section 11 340( c),
appointed and retained by the City or the District. Such appraisal shall be substantially based upon
the then applicable assumptions of and subject to the then applicable qualifications and limitations
contained in the appraisal of the property within the District prepared by the Appraiser and dated
,2004.
"Appraiser" means Bruce W. Hull & Associates, Inc.
"Assistant Director of Finance" means the Assistant Director of Finance of the City.
"Assessor's Parcel" means an Assessor's Parcel as defined in the Special Tax RMA.
"Authorized Representative" of the District means the City Manager, Director of Finance or
Assistant Director of Finance of the City, acting on behalf of the District, or any other person
designated in writing by the City Manager or the Director of Finance and authorized to act on behalf
of the District under or with respect to this Indenture and all other agreements related hereto.
"Average Annual Debt Service" means, for each series of the Bonds, the average annual debt service
on such Bonds based upon a Bond Year during the term of such Bonds.
"Bond Counsel" means an attorney or firm of attorneys, selected by the District, of nationally
recognized standing in matters pertaining to the tax treatment of interest on bonds issued by states
and their political subdivisions, duly admitted to the practice oflaw before the highest court of the
State.
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"Bondowner" or "Owner", or any similar term, means any person who shall be the registered owner
or his duly authorized attorney, trustee, representative or assign of any Outstanding Bond which shall
at the time be registered.
"Bonds" means the 2004 Bonds and any Parity Bonds authorized by and at any time Outstanding
pursuant to this Indenture and any Supplemental Indenture.
"Bond Service Fund" means the fund created and established pursuant to Section 3.01 hereof.
"Bond Year" means, for each series of the Bonds, each twelve-month period extending from
September 2 in one calendar year to September 1 of the succeeding calendar year, except in the case
of the initial Bond Year which shall for each series of the Bonds be the period from the Delivery
Date thereof to the next September 1.
"Business Day" means a day that is not a Saturday or a Sunday or a day of the year on which banks
in New York, New York and Los Angeles, California, or where the Principal Corporate Trust Office
is located, are not required or authorized to remain open.
"Capitalized Interest Sub-Account" means, for each series of the Bonds, the sub-account by that
name within the Interest Account of the Bond Service Fund established for such series of Bonds
pursuant to Section 3.01 hereof.
"City" means the City of Chula Vista, California.
"City Manager" means the City Manager of the City, acting for and on behalf of the District.
"Code" means the Internal Revenue Code of 1986, as amended.
"Costs ofIssuance" means, as to the 2004 Bonds, all of the costs of formation ofthe District and, as
to each series of the Bonds, the costs of issuing such Bonds, including but not limited to, all printing
and document preparation expenses in connection with this Indenture and any Supplemental
Indenture, such Bonds, and any and all other agreements, instruments, certificates or other
documents issued in connection therewith; any computer and other expenses incurred in connection
with such Bonds; the initial fees and expenses of the Fiscal Agent (including without limitation,
acceptance fees and first annual fees payable in advance) applicable to such series of the Bonds; and
other fees and expenses incurred in connection with the formation of the District and the issuance of
such series of the Bonds, to the extent such fees and expenses are approved by the District.
"Costs ofIssuance Fund" means the fund by that name established pursuant to Section 3.01 hereof.
"Costs of Issuance Account" means, for each series of the Bonds, the account by that name within
the Costs ofIssuance Fund established for such series of the Bonds pursuant to Section 3.01 hereof.
"Comptroller of the Currency" shall mean the Comptroller of the Currency of the United States.
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"Debt Service on Parity Refunding Obligations" means the gross debt service due in any Bond Year
on any refunding bonds or other refunding obligations which have, or purport to have, a lien upon the
Special Tax Revenues on a parity with the lien of the Bonds.
"Delinquency Collection Expenses" means those fees and expenses of the District incurred by oron
behalf of the District in or related to the collection of delinquent Special Taxes.
"Delinquency Proceeds" means the amounts collected from the redemption of delinquent Special
Taxes including the penalties and interest thereon and from the sale of property sold as a result of the
foreclosure of the lien of the Special Tax resulting from the delinquency in the payment of Special
Taxes due and payable on such property.
"Delivery Date" means the date on which each series of the Bonds are issued and delivered to the
initial purchaser thereof.
"Depository" shall mean DTC and its successors and assigns or if (a) the then Depository resigns
from its functions as securities depository of the Bonds, or (b) the District discontinues use of the
Depository pursuant to this Indenture, any other securities depository which agrees to follow
procedures required to be followed by a securities depository in connection with the Bonds and
which is selected by the Treasurer.
"Director of Finance" means the Director of Finance of the City, acting for and on behalf of the
District.
"District" means Community Facilities District No. 07-1 (Otay Ranch Village Eleven) situated in and
formed by the City of Chula Vista, California.
"DTC" shall mean The Depository Trust Company, New York, New York, and its successors
and assigns.
"Fiscal Agent" means U.S. Bank National Association, and any successor thereto.
"Fiscal Year" means the 12 month period beginning July 1 of each year and terminating on June 30
of the following year, or any other annual accounting period hereinafter selected and designated by
the District as its fiscal year in accordance with applicable law.
"Government Obligations" means obligations described in Paragraph 1 of the definition of Permitted
Investments.
"Gross Proceeds" has the meaning ascribed to such term in Section 148(f)(6) of the Code.
"Indenture" means this Bond Indenture, as amended or supplemented pursuant to the terms hereof.
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"Independent Accountant" means any certified public accountant or fmn of such certified public
accountants appointed and paid by the District, and who, or each of whom -
1. is in fact independent and not under domination of the District or the City;
2. does not have any substantial interest, direct or indirect, in the District or the City;
and
3. is not an officer or employee of the District or the City, but who may be regularly
retained to make annual or other audits of the books of or reports to the City or the
District.
"Information Services" means Financial Information, lnc's., "Daily Called Bond Service," 30
Montgomery Street, lOth Floor, Jersey City, New Jersey 07302, Attention: Editor; Kenny
Information Services' "Called Bond Service," 65 Broadway, 16th Floor, New York, New York
10006; Moody's Investors Service "Municipal and Govemment," 99 Church Street, 8th Floor, New
York, New York 10007, Attention: Municipal News Reports; Standard and Poor's Corporation
"Called Bond Record," 25 Broadway, 3rd Floor, New York, New York 10004; and, in accordance
with then current guidelines of the Securities and Exchange Commission, such other addressees
providing information with respect to called bonds as the District may designate in writing to the
Fiscal Agent.
"Interest Payment Date" means March 1 and September 1 of each year, commencing September 1,
2004 as to the 2004 Bonds.
"Investment Agreement" means any investment satisfying the requirements of Paragraph 11 of the
definition of Permitted Investments.
"Land Secured Debt" means as to any Assessor's Parcel, the principal amount of the Bonds allocable
to such parcel, together with the principal amount of any other indebtedness of any other community
facilities district secured by the levy of special taxes allocable to such parcel and the principal
amount of any fixed lien assessments levied against such parcel.
"Legislative Body" means the City Council of the City, acting as the legislative body of the District.
"Master Developer" means Brookfield Shea Otay, LLC.
"Maximum Annual Debt Service" means, as to each series of the Bonds, the largest Annual Debt
Service during the current or any future Bond Year as of the date of any calculation of such
Maximum Annual Debt Service.
"Moody's" means Moody's Investors Service, its successors and assigns.
"Nominee" shall mean the nominee of the Depository which may be the Depository, as
determined from time to time by the Depository.
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"Outstanding" means as to the Bonds, all of the Bonds, except:
I. Bonds theretofore canceled or surrendered for cancellation in accordance with
Section 6.03 hereof;
2. Bonds for the payment or redemption of which monies shall have been theretofore
deposited in trust (whether upon or prior to the maturity or the redemption date of
such bonds), provided that, if such Bonds are to be redeemed prior to the maturity
thereof, notice of such redemption shall have been given as provided in this Indenture
or any applicable Supplemental Indenture.
"Parity Bonds" means Bonds hereafter issued which are secured by and payable from an irrevocable
first lien on the Special Tax Revenues and on the monies in the funds and accounts (with the
exception of the Project Fund, the Rebate Fund and the Administrative Expense Fund) established
for such Bonds in this Indenture and in any applicable Supplemental Indenture (including the
investment earnings thereon) which lien is on a parity with the lien securing the 2004 Bonds.
"Participant" shall mean a member of or participant in the Depository.
"Permitted Investments" means any of the following which at the time of investment are legal
investments under the laws of the State for the moneys proposed to be invested therein (the Fiscal
Agent shall be entitled to rely upon any written investment direction from an Authorized
Representative of the District as a certification to the Fiscal Agent that such investment constitutes a
Permitted Investment):
I. A. Direct obligations (other than an obligation subject to variation in principal
payment) ofthe United States of America ("United States Treasury Obligations");
B. Obligations fully and unconditionally guaranteed as to timely payment of
principal and interest by the United States of America;
C. Obligations fully and unconditionally guaranteed as to timely payment of
principal and interest by any agency or instrumentality of the United States of
America when such obligations are backed by the full faith and credit of the United
States of America, or
D. Evidences of ownership of proportionate interests in future interest and
principal payments on obligations described above held by a bank or trust company
as custodian, under which the owner of the investment is the real party in interest and
has the right to proceed directly and individually against the obligor and the
underlying govemment obligations are not available to any person claiming through
the custodian or to whom the custodian may be obligated.
2. Federal Housing Administration debentures.
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n--- --------- ----------
3. The listed obligations of govemment -sponsored agencies which are not backed by the
full faith and credit of the United States of America:
A. Federal Home Loan Mortgage Corporation (FHLMC)
(1) Participation certificates (excluded are stripped mortgage securities
which are purchased at prices exceeding their principal amounts)
(2) Senior Debt obligations
B. Farm Credit Banks (formerly: Federal Land Banks, Federal Intermediate
Credit Banks and Banks for Cooperatives)
(1) Consolidated system-wide bonds and notes
C. Federal Home Loan Banks (FHL Banks)
(1) Consolidated debt obligations
D. Federal National Mortgage Association (FNMA)
(1) Senior debt obligations
(2) Mortgage-backed securities (excluded are stripped mortgage
securities which are purchased at prices exceeding their principal
amounts)
E. Student Loan Marketing Association (SLMA)
(1) Senior debt obligations (excluded are securities that do not have a
fixed par value and/or whose terms do not promise a fixed dollar
amount at maturity or call date)
F. Financing Corporation (FICO)
(1) Debt obligations
G. Resolution Funding Corporation (REFCORP)
(1) Debt obligations
4. Unsecured certificates of deposit, time deposits, and bankers' acceptances (having
maturities of not more than 30 days) of any bank the short-term obligations of which
are rated "A-I" or better by S&P.
5. Deposits the aggregate amount of which are fully insured by the Federal Deposit
Insurance Corporation (FDIC), in banks which have capital and surplus of at least $5
million.
6. Commercial paper (having original maturities of not more than 270 days rated "A-I"
by S&P and "Prime-I" by Moody's.
7. Money market funds rated "AAm-1" or "AAm-G" by S&P, or better.
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8. State Obligations, which means:
A. Direct general obligations of any state of the United States of America or any
subdivision or agency thereof to which is pledged the full faith and credit of a
state the unsecured general obligation debt of which is rated "A3" by
Moody's and "A" by S&P, or better, or any obligation fully and
unconditionally guaranteed by any state, subdivision or agency whose
unsecured general obligation debt is so rated.
B. Direct general short-term obligations of any state agency or subdivision or
agency thereof described in (A) above and rated "A-1+"by S&P and "Prime-
1" by Moody's.
C. Special Revenue Bonds (as defined in the United States Bankruptcy Code) of
any state, state agency or subdivision described in A. above and rated "AA"
or better by S&P and "AA" or better by Moody's.
9. Pre-refunded municipal obligations rated "AAA" by S & P and "AAA" by Moody's
meeting the following requirements:
A. the municipal obligations are (1) not subject to redemption prior to maturity
or (2) the trustee for the municipal obligations has been given irrevocable
instructions concerning their call and redemption and the issuer of the
municipal obligations has covenanted not to redeem such municipal
obligations other than as set forth in such instructions;
B. the municipal obligations are secured by cash or United States Treasury
Obligations which may be applied only to payment of the principal of,
interest and premium on such municipal obligations;
C. the principal of and interest on the United States Treasury Obligations (plus
any cash in the escrow) has been verified by the report of independent
certified public accountants to be sufficient to pay in full all principal of,
interest, and premium, if any, due and to become due on the municipal
obligations ("Verification");
D. the cash or United States Treasury Obligations serving as security for the
municipal obligations are held by an escrow agent or trustee in trust for
owners of the municipal obligations;
E. no substitution of a United States Treasury Obligation shall be permitted
except with another United States Treasury Obligation and upon delivery of a
new Verification; and
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F. the cash or United States Treasury Obligations are not available to satisfy any
other claims, including those by or against the trustee or escrow agent.
10. Repurchase agreements:
With (1) any domestic bank, or domestic branch of a foreign bank, the long term debt
of which is rated at least "A" by S&P and Moody's; or (2) any broker-dealer with
"retail customers" or a related affiliate thereof which broker-dealer has, or the parent
company (which guarantees the provider) of which has, long-term debt rated at least
"A" by S&P and Moody's, which broker-dealer falls under the jurisdiction of the
Securities Investors Protection Corporation, or (3) any other entity rated "A" or better
by S&P and Moody's, provided that:
A. The market value of the collateral is maintained at levels and upon such
conditions as would be acceptable to S&P and Moody's to maintain an "A"
rating in an "A" rated structured financing (with a market value approach);
B. The Fiscal Agent or a third party acting solely as agent therefor or for the
District (the "Holder of the Collateral") has possession of the collateral or the
collateral has been transferred to the Holder ofthe Collateral in accordance
with applicable state and federal laws (other than by means of entries on the
transferor's books);
C. The repurchase agreement shall state and an opinion of counsel shall be
rendered at the time such collateral is delivered that the Holder of the
Collateral has a perfected first priority security interest in the collateral, any
substituted collateral and all proceeds thereof (in the case of bearer securities,
this means the Holder of the Collateral is in possession);
D. The repurchase agreement shall provide that if during its term the provider's
rating by either Moody's or S&P is withdrawn or suspended or falls below
"A-" by S&P or "A3" by Moody's, as appropriate, the provider must, at the
direction of the District or the Fiscal Agent, within 1 0 days of receipt of such
direction, repurchase all collateral and terminate the agreement, with no
penalty or premium to the District or Fiscal Agent.
Notwithstanding the above, collateral levels need not be as specified in "A" above, so
long as such collateral levels are 103 % or better and the provider is rated at least "A"
by S&P and Moody's, respectively.
11. Investment agreements with a domestic or foreign bank or corporation the long-term
debt or financial strength of which, it or its guarantor is rated at least "AA-" by S&P
and "Aa3" by Moody's; provided that, by the terms of the investment agreement:
A. the invested funds are available for withdrawal without penalty or premium,
upon not more than seven days' prior notice; the District and the Fiscal Agent
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hereby agree to give or cause to be given notice in accordance with the terms
of the investment agreement so as to receive funds thereunder with no penalty
or premium paid;
B. the investment agreement shall state that it is the unconditional and general
obligation of, and is not subordinated to any other obligation of, the provider
thereof; or, in the case of a bank, that the obligation of the bank to make
payments under the agreement ranks pari passu with the obligations of the
bank to its other depositors and its other unsecured and unsubordinated
creditors;
C. the District and the Fiscal Agent receives the opinion of domestic counsel
that such investment agreement is legal, valid, binding and enforceable upon
the provider in accordance with its terms and of foreign counsel (if
applicable);
D. the investment agreement shall provide that if during its term
(1) the provider's rating by either S&P or Moody's falls below "AA-" or
"Aa3", respectively, the provider shall, at its option, within 10 days of
receipt of publication of such downgrade, either (a) collateralize the
investment agreement by delivering or transferring in accordance with
applicable state and federal laws (other than by means of entries on
the provider's books) to the District, the Fiscal Agent or a Holder of
the Collateral free and clear of any third-party liens or claims the
market value of which collateral is maintained at levels and upon
such conditions as would be acceptable to S & P and Moody's to
maintain an "A" rating in an "A" rated structured financing (with a
market value approach); or (b) transfer and assign the investment
agreement to a then qualifying counterparty with ratings specified
above; and
(2) the provider's rating by either S&P or Moody's is withdrawn or
suspended or falls below "A-" or "A3", respectively, the provider
must, at the direction of the District or the Fiscal Agent, within 1 0
days of receipt of such direction, repay the principal of and accrued
but unpaid interest on the investment;
E. The investment agreement shall state and an opinion of counsel shall be
rendered, in the event collateral is required to be pledged by the provider
under the terms of the investment agreement, at the time such collateral is
delivered, that the Holder of the Collateral has a perfected first priority
security interest in the collateral, any substituted collateral and all proceeds
thereof (in the case of bearer securities, this means the Holder of the
Collateral is in possession);
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.----------- .
F. the investment agreement must provide that if during its term
(1) the provider shall default in its payment obligations, the provider's
obligations under the investment agreement shall, at the direction of
the District or the Fiscal Agent, be accelerated and amounts invested
and accrued but unpaid interest thereon shall be repaid to the District
or Fiscal Agent, as appropriate, and
(2) the provider shall become insolvent, not pay its debts as they become
due, be declared or petition to be declared bankrupt, etc. ("Event of
Insolvency"), the provider's obligations shall automatically be
accelerated and amounts invested and accrued but unpaid interest
thereon shall be repaid to the District or Fiscal Agent, as appropriate.
12. The Local Agency Investment Fund (LAlF) administered by the treasurer of the
State to the extent such deposits remain in the name of and control of the Fiscal
Agent.
Whenever reference is made in this definition of Permitted Investments to "collateral," collateral
shall be limited to (i) cash and securities issued or guaranteed by the United States Government,
including United States Treasury obligations and any other obligations the timely payment of the
principal of and interest on which are guaranteed by the United States Govemment, and (ii) bonds,
notes, debentures, obligations or other evidences of indebtedness issued or guaranteed by the
Government National Mortgage Association, Federal National Mortgage Association or Federal
Home Loan Mortgage Corporation, or any other agency or instrumentality of the United States or
America including but not limited to, mortgage participation certificates, mortgage pass-through
certificates, and other mortgage-backed securities.
"Prepayments" means Special Tax Revenues identified to the Fiscal Agent by an Authorized
Representative as representing a prepayment of the Special Tax.
"Principal Corporate Trust Office" means the office of the Fiscal Agent at 633 West Fifth Street, 24th
Floor, Los Angeles, California 90071 or such other offices as may be specified to the District by the
Fiscal Agent in writing; provided, however for transfer, registration, exchange, payment and
surrender of Bonds means care of the corporate trust office of U.S. Bank National Association in St.
Paul, Minnesota or such other address specified by the Fiscal Agent to the District in writing.
"Project" means the public improvements as set forth and described in Exhibit A to the
Acquisition/Financing Agreement, excluding therefrom the Traffic Enhancement Improvements and
the Public Facilities.
"Project Costs" means all expenses of and incidental to the construction, acquisition, or both, ofthe
Project.
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"Project Fund" means the fund by that name established pursuant to Section 3.01 hereof.
"Public Facilities" means anyone or more of those public facilities set forth in Section 3.50.030 of
the Chula Vista Municipal Code, as such section may be amended from time to time.
"Public Facilities Account" means, for each series of the Bonds, the account by that name within the
Project Fund established for such series of the Bonds pursuant to Section 3.01.
"Public Facilities Costs" shall mean the cost of acquisition, construction or development of Public
Facilities.
"Rebate Fund" means the fund by that name established pursuant to Section 3.01 hereof.
"Rebate Account" means, for each series of the Bonds, the account by that name within the Rebate
Fund established for such Bonds pursuant to Section 3.01 hereof.
"Rebate Instructions" means the Rebate Instructions attached as Exhibit B hereto.
"Record Date" shall mean the fifteenth (15th) calendar day of the month immediately preceding an
Interest Payment Date.
"Redemption Fund" means the fund by that name established pursuant to Section 3.01 hereof.
"Redemption Account" means, for each series of the Bonds, the account by that name within the
Redemption Fund established pursuant to Section 3.01 hereof.
"Registration Books" shall have the meaning given such term in Section 2.08 hereof.
"Regulations" means the regulations promulgated under the Internal Revenue Code of 1986, as
amended.
"Reserve Fund" means the fund by that name established pursuant to Section 3.01 hereof.
"Reserve Account" means, for each series of the Bonds, the account by that name within the Reserve
Fund established for such Bonds pursuant to Section 3.01 hereof.
"Reserve Requirement" means, as to each series of the Bonds and as of any date of calculation, the
amount equal to the least of (i) Maximum Annual Debt Service for such Bonds, (ii) one hundred
twenty-five percent (125%) of Average Annual Debt Service for such Bonds, and (iii) ten percent
(10%) of the original principal amount of such Bonds less original issue discount, if any, plus
original issue premium, if any, applicable to such Bonds. The initial Reserve Requirement for the
2004 Bonds shall be $
"Securities Depository" means, as of the Closing Date, The Depository Trust Company, 711 Stewart
Avenue, Garden City, New York 11530 and, in accordance with then current guidelines of the
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---.--...-.--
Securities and Exchange Commission, such other addressees providing depository services with
respect to bonds as the District may designate in writing to the Fiscal Agent.
"Special Tax" means the Special Tax authorized to be levied in the District pursuant to the Act and
the Special Tax RMA.
"Special Tax Consultant" means any person or firm possessing demonstrated experience and
expertise in the preparation of special tax formulas and/or the administration of special taxes levied
for community facilities districts. Any such person or firm shall be appointed and paid by the District
and who, or each of whom -
1. is in fact independent and not under domination of the District or the City;
2. does not have any substantial interest, direct or indirect, in the District or the City;
and
3. is not an officer or employee of the District or the City, but who may be regularly
retained by the City or other community facilities districts formed by the City to
administer the levy of special taxes within such community facilities districts.
"Special Tax Fund" means the fund by that name established pursuant to Section 3.01 hereof.
"Special Tax Revenues" means (a) the proceeds of the Special Tax levied by the District within The
District pursuant to the Special Tax RMA and received by the District, and (b) the Delinquency
Proceeds.
"Special Tax RMA" means the rate and method of apportionment of the Special Tax originally
authorized to be levied on property within the District as approved at the special election held in
District on November 12,2003, and as it may be modified from time to time in accordance with the
Act.
"Standard & Poor's" or "S&P" means Standard & Poor's Rating Services, its successors and assigns.
"State" means the State of California.
"Supplemental Indenture" means any bond indenture then in full force and effect which has been
duly approved by resolution of the Legislative Body under and pursuant to the Act at a meeting of
the Legislative Body duly convened and held, at which a quorum was present and acted thereon,
amendatory hereof or supplemental hereto; but only if and to the extent that such Supplemental
Indenture is specifically authorized hereunder.
'Tax Exempt" means, with reference to a Permitted Investment, a Permitted Investment the interest
earnings on which are excludable from gross income for federal income tax purposes pursuant to
Section 1 03 (a) of the Code, other than one described in section 57(a)(5)(C) of the Code.
"Traffic Enhancement Improvements" shall have the meaning given such term in the
AcquisitionlFinancing Agreement.
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"Traffic Enhancement Improvement Account" means the account by that name within the Project
Fund established pursuant to Section 3.01 hereof.
"Traffic Enhancement Improvement Costs" means the cost of the acquisition or construction of the
Traffic Enhancement Improvements (as such term is defined in the Acquisition/Financing
Agreement) in an amount not to exceed the Fair Share (as such term is defined in the
Acquisition/Financing Agreement).
"Transportation Facilities" means anyone or more of the transportation facilities and programs set
forth in Section 3.54.030 of the Chula Vista Municipal Code, as it may be amended from time to
time.
"Transportation Facilities Costs" means the cost of the acquisition or construction of Transportation
Facilities.
"Transportation Facilities Account" means, for each series of the Bonds, the account by that name
within the Project Fund established for such series of the Bonds pursuant to Section 3.01 hereof.
'Treasurer" means the Treasurer of the City acting for and on behalf of the District.
"Yield" has the meaning assigned to such term for purposes of Section l48(f) of the Code.
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ARTICLE II. GENERAL AUTHORIZATION AND TERMS
SECTION 2.01 Amount, Issuance and Purpose.
Pursuant to the provisions of the Act, the Legislative Body has authorized the issuance of the
Bonds in an aggregate principal amount not to exceed $45,000,000 and has authorized the issuance
of the 2004 Bonds in the aggregate principal amount of$ _,000,000. Jurisdiction is hereby reserved
to issue Parity Bonds in one or more series subject to compliance with the provisions of Section-
hereof.
The 2004 Bonds shall be designated City ofChula Vista Community Facilities District No.
07-1 (Otay Ranch Village Eleven) 2004 Special Tax Bonds. The purpose of the 2004 Bonds shall be
to (a) pay for the acquisition or construction of the Project, the Traffic Enhancement Improvements,
Transportation Facilities and Public Facilities, (b) fund the Reserve Fund, (c) pay capitalized interest
on the 2004 Bonds through 1, 200- and (d) pay the Costs ofIssuance.
SECTION 2.02 Type and Nature of Bond.
The Bonds and interest thereon, together with any premium paid thereon upon redemption,
are not obligations of the City, but are limited obligations of the District secured by and payable from
an irrevocable first lien on the Special Tax Revenues and on the monies in the funds and accounts
established herein (including the investment earnings thereon) with the exception of the Project
Fund, the Rebate Fund and the Administrative Expense Fund. Except for the Special Tax Revenues,
neither the faith and credit nor the taxing power of the District or the City is pledged for the payment
of the Bonds or the interest thereon, and no Owner of the Bonds may compel the exercise of taxing
power by the District, except as to the Special Taxes, or the City or the forfeiture of any of their
property. The principal of and interest on the Bonds and premiums upon the redemption thereof, if
any, are not a debt of the District or the City, the State of California or any of its political
subdivisions within the meaning of any constitutional or statutory limitation or restriction. The
Bonds are not a legal or equitable pledge, charge, lien or encumbrance, upon any of the District's
property, or upon any of its income, receipts or revenues, except the amounts which are, under this
Indenture and the Act, set aside for the payment of the Bonds and interest thereon and neither the
members of the Legislative Body, the City Council of the City, nor any persons executing the Bonds
are liable personally on the Bonds by reason of their issuance.
Notwithstanding anything contained in this Indenture, the District shall not be required to
advance any money derived from any source of income other than the Special Tax Revenues for the
payment of the interest on or the principal of the Bonds or for the performance of any covenants
herein contained.
Nothing in this Indenture or in any Supplemental Indenture shall preclude the redemption
prior to maturity of any Bonds subject to call and redemption or the payment of the Bonds from
proceeds of the refunding bonds issued under the Act or under any other law of the State.
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SECTION 2.03 Terms of the 2004 Bonds.
The Bonds shall mature on September 1 in the years, and in the respective principal amounts
set forth opposite such years, and shall bear interest at the respective rates per annum, as follows:
Maturity Date Principal Interest Maturity Date Principal Interest
(September 1) Amount Rate(%) (September 1) Amount Rate(%)
SECTION 2.04 Description of Bonds; Interest Rates.
The Bonds of each series shall be issued in fully registered form in denominations of$5,000
or any integral multiple thereof within a single maturity and shall be numbered as desired by the
Fiscal Agent. The Bonds of each series shall be dated as of the Delivery Date of such series, and
shall mature and be payable on September 1 in the years and in the aggregate principal amounts and
shall bear interest at the rates set forth in this Indenture or the Supplemental Indenture, as applicable,
providing for the issuance of such series of the Bonds. The 2004 Bonds shall mature and be payable
in the years and in the aggregate principal amounts and shall bear interest at the rates set forth in
Section 2.03 and each additional series of the Bonds shall mature and be payable in the years and in
the aggregate principal amounts and shall bear interest at the rates set forth in the Supplemental
Indenture providing for the issuance of such series of the Bonds. Interest shall be payable with
respect to each Bond on each Interest Payment Date (commencing September 1, 2004 as to the 2004
Bonds), until the principal sum of that Bond has been paid; provided, however, that ifatthe maturity
date of any Bond (or if the same is redeemable and shall be duly called for redemption, then at the
date fixed for redemption) funds are available for the payment or redemption thereof, in full
accordance with the terms of this Indenture, such Bond shall then cease to bear interest.
SECTION 2.05 Payment.
The principal of and interest on the Bonds shall be payable in lawful money of the United
States of America. The principal of the Bonds and any premium due upon the redemption thereof
shall be payable upon presentation and surrender thereof at maturity or the earlier redemption thereof
at the Principal Corporate Trust Office of the Fiscal Agent.
Interest on any Bond shall be payable from the Interest Payment Date next preceding the date
of authentication of that Bond, unless (i) such date of authentication is an Interest Payment Date, in
which event interest shall be payable from such date of authentication, (ii) the date of authentication
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is after a Record Date but prior to the immediate'ly succeeding Interest Payment Date, in which event
interest shall be payable from the Interest Payment Date immediately succeeding the date of
authentication or (iii) the date of authentication is prior to the close of business on the first Record
Date, in which event interest shall be payable from the date of the Bonds; provided, however, that if
at the time of authentication of a Bond, interest is in default, interest on that Bond shall be payable
from the last Interest Payment Date to which the interest has been paid or made available for
payment. Interest on any Bond shall be paid to the person whose name shall appear in the books of
registration as required by Section 2.08 as the owner of such Bond as of the close of business on the
Record Date immediately preceding such Interest Payment Date. Such interest shall be paid by
check of the Fiscal Agent mailed to such Bondowner at his or her address as it appears on the books
of registration as required by Section 2.08 or, upon the request in writing prior to the Record Date of
a Bondowner of at least $1,000,000 in aggregate principal amount of Bonds, by wire transfer in
immediately available funds to an account in the United States designated by such Owner. Interest
with respect to each Bond shall be computed using a year of 360 days comprised oftwelve 30-day
months.
SECTION 2.06 Execution of Bonds.
The Bonds shall be executed manually or in facsimile by the Mayor of the City and
countersigned by the City Clerk of the City, acting on behalf of the District. The Bonds shall then be
delivered to the Fiscal Agent, for authentication and registration. In case an officer who shall have
signed or attested to any of the Bonds by facsimile or otherwise shall cease to be such officer before
the authentication, delivery and issuance of the Bonds, such Bonds nevertheless may be
authenticated, delivered and issued, and upon such authentication, delivery and issue, shall be as
binding as though those who signed and attested the same had remained in office.
SECTION 2.07 Order to Print and Authenticate Bonds.
The Director of Finance is hereby instructed to cause Bonds in the form as set forth herein, to
be printed, and to proceed to cause said Bonds to be authenticated and delivered to an authorized
representative of the purchaser, upon payment of the purchase price as set forth in the purchase
contract for the sale of the Bonds.
SECTION 2.08 Books of Registration; Book Entry System.
There shall be kept by the Fiscal Agent, sufficient books for the registration and transfer of
the Bonds (the "Registration Books") and, upon presentation for such purpose, the Fiscal Agent
shall, under such reasonable regulations as it may prescribe, register or transfer or cause to be
registered or transferred, on said register, Bonds as hereinbefore provided. The ownership of the
Bonds shall be established by the Bond registration books held by the Fiscal Agent. Whenever any
Bond or Bonds shall be surrendered for registration of transfer or exchange, the Fiscal Agent shall
authenticate and deliver a new Bond or Bonds of the same maturity, for a like aggregate principal
amount of authorized denominations; provided that the Fiscal Agent shall not be required to register
transfers or make exchanges of (i) Bonds for a period of 15 days next preceding the date of any
selection of the Bonds to be redeemed, or (ii) any Bonds chosen for redemption.
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The Bonds shall be initially issued in the form of a single, fully registered Bond for each
maturity (which may be typewritten). Upon initial issuance, the ownership of such Bonds shall be
registered in the name of the Nominee identified below as nominee of the Depository. Except as
hereinafter provided, all of the Outstanding Bonds shall be registered in the name of the nominee of
the Depository, which may be the Depository, as determined from time to time pursuant to this
Section.
With respect to the Bonds registered in the name of the Nominee, neither the District nor the
Fiscal Agent shall have any responsibility or obligation to any Participant or to any person on behalf
of which such a Participant holds an interest in the Bonds. Without limiting the immediately
preceding sentence, neither the District nor the Fiscal Agent shall have any responsibility or
obligation with respect to (i) the accuracy of the records of the Depository, the Nominee, or any
Participant with respect to any ownership interest in the Bonds (ii) the delivery to any Participant or
any other person, other than an Owner of a Bond as shown in the Registration Books, of any notice
with respect to the Bonds, including any notice of redemption, (iii) the selection by the Depository
and its Participants of the beneficial interests in the Bonds to be redeemed in the event the District
redeems the Bonds in part, or (iv) the payment to any Participant or any other person, other than an
Owner of a Bond as shown in the Registration Books, of any amount with respect to principal of or
interest on the Bonds. The District and the Fiscal Agent may treat and consider the person in whose
name each Bond is registered as the holder and absolute Owner of such Bond for the purpose of
payment of principal and interest with respect to such Bond for the purpose of giving notices or
prepayment if applicable, and other matters with respect to such Bond for the purpose of registering
transfers with respect to such Bond, and for all other purposes whatsoever. The District shall pay all
principal of and interest on the Bonds only to or upon the order of the respective Owner of a Bond, as
shown in the Registration Books, or his respective attorney duly authorized in writing, and all such
payments shall be valid and effective to fully satisfY and discharge the District's obligations with
respect to payment of principal of and interest on the Bonds to the extent of the sum or sums so paid.
No person other than an Owner of a Bond, as shown in the Registration Books, shall receive a Bond
evidencing the obligation of the District to make payments of principal and interest pursuant to this
Indenture. Upon delivery by the Depository to the Owners of the Bond, and the District of written
notice to the effect that the Depository has determined to substitute a new nominee in place of the
Nominee, and subject to the provisions herein with respect to Record Dates, the word Nominee in
this Indenture shall refer to such nominee of the Depository.
In the event (i) the Depository determines not to continue to act as securities depository for
the Bonds, or (ii) the Depository shall no longer so act and gives notice to the District of such
determination, then the District will discontinue the book-entry system with the Depository. If the
District determines to replace the Depository with another qualified securities depository, the District
shall prepare or direct the preparation of a new, single, separate, fully registered Bond, per maturity,
registered in the name of such successor or substitute qualified securities depository or its nominee.
If the District fails to identifY another qualified securities depository to replace the Depository, then
the Bonds shall no longer be restricted to being registered in the register in the name of the Nominee,
but shall be registered in whatever name or names Owners of the Bonds transferring or exchanging
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Bonds shall designate, in accordance with the provisions hereof and the District shall prepare and
deliver Bonds to the Owners thereof for such purpose.
In the event of a reduction in aggregate principal amount of Bonds Outstanding or an advance
refunding of part of the Bonds Outstanding, DTC, in its discretion, (a) may request the District to
prepare and issue a new Bond or (b) may make an appropriate notation on the Bond indicating the
date and amounts of such reduction in principal, but in such event the Registration Books maintained
by the Fiscal Agent shall be conclusive as to what amounts are Outstanding on the Bond, except in
the case of final maturity, in which case the Bond must be presented to the Fiscal Agent prior to
payment.
Notwithstanding any other provision of this Indenture to the contrary, so long as any Bond is
registered in the name of the Nominee, all payments of principal and interest with respect to such
Bond and all notice with respect to such Bonds shall be made and given respectively, as instructed by
the Depository and acceptable to the District.
The initial Nominee shall be Cede & Co., as Nominee ofDTC.
SECTION 2.09 Exchange of Bonds.
Bonds may be exchanged at the Principal Corporate Trust Office, for a like aggregate
principal amount of Bonds of authorized denominations, interest rate and maturity, subject to the
terms and conditions of this Indenture, including the payment of certain charges, if any, upon
surrender and cancellation of a Bond. Upon such transfer and exchange, a new registered Bond or
Bonds of any authorized denomination or denominations of the same maturity and for the same
aggregate principal amount will be issued to the transferee in exchange therefor.
SECTION 2.10 Negotiability, Registration and Transfer of Bonds.
The transfer of any Bond may be registered only upon the Registration Books upon surrender
thereof to the Fiscal Agent, together with an assignment duly executed by the Owner or his attorney
or legal representative, in satisfactory form. Upon any such registration oftransfer, a new Bond or
Bonds shall be authenticated and delivered in exchange for such Bond, in the name of the transferee,
of any denomination or denominations authorized by this Indenture, and in an aggregate principal
amount equal to the principal amount of such Bond or Bonds so surrendered. In all cases in which
Bonds shall be exchanged or transferred, the Fiscal Agent shall authenticate the Bonds in accordance
with the provisions of this Indenture. All Bonds surrendered in such exchange or transfer shall
forthwith be canceled. The Fiscal Agent may make a charge for every such exchange or registration
of transfer of Bonds sufficient to reimburse it for any tax or other govemmental charge required to be
paid with respect to such exchange or registration or transfer.
SECTION 2.11 Authentication.
Only such of the Bonds as shall bear thereon a certificate of authentication substantially in the
form below, manually executed by the Fiscal Agent, shall be valid or obligatory for any purpose or
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entitled to the benefits of this Indenture, and such certificate of the Fiscal Agent shall be conclusive
evidence that the Bonds so authenticated have been duly executed, authenticated and delivered
hereunder, and are entitled to the benefits of this Indenture:
FORM OF CERTIFICATE OF AUTHENTICATION
This is one of the Bonds described in
the within defined Indenture.
Dated: U.S. Bank National Association,
As Fiscal Agent
By:
Authorized Officer
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ARTICLE III. FUNDS AND ACCOUNTS
SECTION 3.01 Establishment of Special Funds.
The following funds and accounts identified in this Section 3.01 are hereby created and
established and shall be maintained by the Fiscal Agent:
A. Special Tax Fund;
B. Bond Service Fund in which there shall be established and created a separate Interest
Account, and within each such Interest Account, a Capitalized Interest Sub-Account, and a
separate Principal Account for each series of the Bonds;
C. Rebate Fund in which there shall be established and created a separate Rebate Account for
each series of the Bonds;
D. Redemption Fund in which there shall be established and created a separate Redemption
Account for each series of the Bonds;
E. Project Fund in which there shall be established a separate Project Account, Traffic
Enhancement Improvement Account, Transportation Facilities Account and Facilities
Account for each series of the Bonds.
F. Reserve Fund in which there shall be established a separate Reserve Account for each series
of the Bonds;
G. Administrative Expense Fund in which there shall be established a separate Administrative
Expense Account for each series of the Bonds; and
H. Costs of Issuance Fund in which there shall be established a separate Costs of Issuance
Account for each series of the Bonds.
The District may, through written instructions from an Authorized Representative, direct the Fiscal
Agent to establish such other accounts or sub-accounts, as may be necessary to carry out the
administration of the Bonds and the proceeds of the Bonds.
SECTION 3.02 Special Tax Fund.
A. The District shall, no later than the tenth (lOth) Business Day after which Special Tax
Revenues have been received by the District and in any event not later than February 15th and
August 15th of each year, transfer such Special Tax Revenues to the Fiscal Agent and, except as set
forth in the following sentence, such amounts shall be deposited in the Special Tax Fund. Special
Tax Revenues representing Prepayments shall be deposited into the Redemption Fund and the
Administrative Expense Fund as set forth in written instructions from an Authorized Representative.
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B. The Special Tax Revenues deposited in the Special Tax Fund shall be held in trust and
deposited in the following accounts of the Special Tax Fund or transferred to the following other
funds and accounts on the dates and in the amounts set forth in the following paragraphs and in the
following order of priority:
1. The Fiscal Agent shall each Fiscal Year transfer to the Administrative Expense Fund
for deposit in the Administrative Expense Account established therein for each series
of the Bonds from the first Special Tax Revenues received by the Fiscal Agent during
such Fiscal Year an amount equal to the Administrative Expense Requirement for
each series of the Bonds.
2. The Fiscal Agent shall transfer to the Interest Account for each series of the Bonds,
on each Interest Payment Date and date for redemption of such series of the Bonds,
the amount required to cause the aggregate amount on deposit in each such Interest
Account to equal the amount of interest due or becoming due and payable on such
Interest Payment Date on all Outstanding Bonds of such series or to be paid on the
Bonds of such series being redeemed on such date.
3. The Fiscal Agent shall transfer to the Principal Account for each series of the Bonds,
on each Interest Payment Date and redemption date on which the principal of the
Bonds of such series shall be payable, the amount required to cause the aggregate
amount on deposit in the Principal Account to equal the principal amount of, and
premium (if any) on, the Bonds of such series coming due and payable on such
Interest Payment Date, or required to be redeemed on such date pursuant to this
Indenture or Supplemental Indenture, as applicable.
4. On or after March 2 and September 2 of each year after making the deposits and
transfers required under 1. through 3. above, the Fiscal Agent shall transfer the
amount, if any, necessary to replenish the amount then on deposit in the Reserve
Account for each series of the Bonds to an amount equal to the Reserve Requirement
applicable to such Bonds.
5. On or after September 2 of each year after making the deposits and transfers required
under 1. through 4. above, upon receipt of written instructions from an Authorized
Representative, the Fiscal Agent shall transfer to the Rebate Account for each series
of the Bonds the amount specified in such request.
6. On or after September 2 of each year after making the deposits and transfers required
under 1. through 5. above, upon receipt of a written request of an Authorized
Representative, the Fiscal Agent shall transfer from the Special Tax Fund to the
Administrative Expense Account for each series of the Bonds the amounts specified
in such request to pay those Administrative Expenses allocable to such Bonds which
the District reasonably expects (a) will become due and payable during such Fiscal
Year or the cost of which Administrative Expenses have previously been incurred
and paid by the District from funds other than the Administrative Expense Fund and
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(b) the cost of which Administrative Expenses will be in excess of the Administrative
Expense Requirement for such Fiscal Year.
7. If, on or after September 2 of each year, after making the deposits and transfers
required under 1. through 6. above, monies remain in the Special Tax Fund, such
monies shall remain on deposit in the Special Tax Fund and shall be subsequently
deposited or transferred pursuant to the provisions of 1. through 6. above.
C. The Fiscal Agent shall, upon receipt of Special Tax Revenues representing Prepayments,
immediately transfer such Prepayments proportionately to the Redemption Account established for
each series of the Bonds; provided, however, that any portion of a Prepayment constituting
Administrative Fees and Expenses (as defined in the Special Tax RMA) shall be deposited into the
proportionately into the Administrative Expense Account established for each series of the Bonds as
set forth in such written instructions. The Fiscal Agent shall utilize such funds transferred to the
2004 Bonds Redemption Account to redeem 2004 Bonds pursuant to Section 4.03B and to pay
interest on such 2004 Bonds to the date of their redemption as set forth in written instructions to be
delivered to the Fiscal Agent by an Authorized Representative. The Fiscal Agent shall utilize such
funds transferred to the Redemption Account established for any other series of the Bonds to redeem
such Bonds pursuant to the terms of the Supplemental Indenture providing for the issuance of such
Bonds. The Fiscal Agent may conclusively rely upon such instructions.
D. When there are no longer any Bonds Outstanding and no transfers are required to be made
pursuant to paragraphs 5. and 6. above as evidenced by a written certification from an Authorized
Representative, the Fiscal Agent shall transfer any amounts then remaining on deposit in the Special
Tax Fund to the District and the Special Tax Fund shall be closed. Monies so transferred to the
District may be used for any lawful purpose under the Act.
SECTION 3.03 Bond Service Fund.
A. Interest Account. All moneys in the Interest Account established for each series of the
Bonds, including the Capitalized Interest Sub-Account, shall be used and withdrawn by the Fiscal
Agent solely for the purpose of paying interest on the Bonds of such series as it shall become due and
payable (including accrued interest on any Bonds of such series redeemed prior to maturity). All
funds in any Capitalized Interest Sub-Account shall be used and withdrawn to pay interest on the
Bonds prior to using any other funds on deposit in the Interest Account for such purpose.
B. Principal Account. All moneys in the Principal Account established for each series of the
Bonds shall be used and withdrawn by the Fiscal Agent solely for the purpose of (i) paying the
principal of the Bonds of such at the maturity thereof, or (ii) paying the principal of the Term Bonds
of such series upon the mandatory sinking fund redemption thereof pursuant to this Indenture.
SECTION 3.04 Costs of Issuance Fund.
The Fiscal Agent shall, upon receipt of a payment request in the form set forth in Exhibit C
hereto duly executed by an Authorized Representative, disburse money from the Costs ofIssuance
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Account established for each series of the Bonds on such dates and in such amounts as specified in
such requisition to pay the Costs of Issuance related to such series of the Bonds. Any amounts
remaining on deposit in the Costs ofIssuance Account for a series of the Bonds on the earlier of the
date on which all Costs ofIssuance for such series of the Bonds have been paid as stated in writing
by an Authorized Representative delivered to the Fiscal Agent or six months after the Delivery Date
of such series of the Bonds shall be transferred to the Acquisition Account of the Project Fund.
SECTION 3.05 Project Fund
A. Acquisition Account. The Fiscal Agent shall, from time to time, disburse monies from the
Acquisition Accounts to pay the Project Costs; provided, however, the Fiscal Agent shall disburse
monies on deposit in the Acquisition Accounts in the order in which such accounts were initially
funded, that is disbursing all monies on deposit in an Acquisition Account funded earlier in time
before disbursing monies on deposit in a subsequently funded Acquisition Account. Upon receipt of
a payment request in the form set forth in Exhibit D. hereto duly executed by an Authorized
Representative (which payment request shall not exceed the corresponding payment request provided
to the City under the AcquisitionlFinancing Agreement), the Fiscal Agent shall pay the Project Costs
from amounts in the Acquisition Accounts directly to the contractor(s) or such other person(s),
corporation(s) or entity(ies) specified in the payment request (including reimbursements, if any, to
the District). The Fiscal Agent may rely on an executed payment request as complete authorization
for said payments.
After the final payment or reimbursement of all Project Costs, as certified by delivery of a
written notice from an Authorized Representative to the Fiscal Agent, the Fiscal Agent shall transfer
excess monies, if any, on deposit in, or subsequently deposited in, each Acquisition Account to the
corresponding Interest Accounts or Redemption Accounts as an Authorized Representative may
direct in writing and the Fiscal Agent shall apply the amount so transferred in accordance with
Section 3.03A or 3.08 as so directed by such Authorized Representative.
On or before the date which is three (3) years from the Delivery Date for each series of the
Bonds, the District may deliver to the Fiscal Agent a written certificate executed by an Authorized
Representative certifYing that the District, in its sole and absolute.discretion, has determined that it
will not be necessary for the District to utilize the monies, including investment earnings, then
remaining on deposit in the Acquisition Account established for such Bonds to fund Project Costs
and directing the Fiscal Agent to transfer all such moneys to the corresponding Interest Account or
Redemption Account and the Fiscal Agent shall apply the amount so transferred in accordance with
Section 3.03A or 3.08 as directed by the Authorized Representative.
Notwithstanding anything herein to the contrary, if on the date which is three (3) years from
the Delivery Date for each series of the Bonds, any funds remain on deposit in the Acquisition
Account established for such Bonds, the Fiscal Agent shall, upon the receipt of written instructions
from an Authorized Representative, immediately restrict the yield on such amounts so that the Yield
earned on the investment of such amounts is not in excess of the Yield on such Bonds, unless in the
written opinion of Bond Counsel delivered to the Fiscal Agent such restriction is not necessary to
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prevent an impairment of the exclusion of interest on such Bonds from gross income for federal
income tax purposes.
Upon the expenditure or transfer, as provided for in this subsection A, of all funds on deposit
in the Acquisition Account established for any series of the Bonds, such account shall be closed.
B. Traffic Enhancement Improvement Account. The Fiscal Agent shall, from time to time,
disburse monies from the Traffic Enhancement Improvement Accounts to pay the Traffic
Enhancement Improvement Costs; provided, however, the Fiscal Agent shall disburse monies on
deposit in the Traffic Enhancement Improvement Accounts in the order in which such accounts were
initially funded, that is disbursing all monies on deposit in a Traffic Enhancement Improvement
Account funded earlier in time before disbursing monies on deposit in a subsequently funded Traffic
Enhancement Improvement Account. Upon receipt of a payment request in the form set forth in
Exhibit E hereto duly executed by an Authorized Representative, the Fiscal Agent shall pay the
Traffic Enhancement Improvement Costs from amounts in the Traffic Enhancement Improvement
Accounts directly to the contractor(s) or such other person(s), corporation( s) or entity(ies) specified
in the payment request (including reimbursements, if any, to the District). The Fiscal Agent may rely
on an executed payment request as complete authorization for said payments. Funds on deposit in the
Traffic Enhancement Improvement Accounts may not be utilized to pay Project Costs or Public
Facilities Costs.
After the final payment or reimbursement of all Traffic Enhancement Improvement Costs, as
certified by delivery of a written notice from an Authorized Representative to the Fiscal Agent, the
Fiscal Agent shall transfer excess monies, if any, on deposit in, or subsequently deposited in, each
Traffic Enhancement Improvement Account to the corresponding Acquisition Account, if such
account is still open, or to the corresponding Interest Account or Redemption Account as an
Authorized Representative may direct in writing if such Acquisition Account is closed and the Fiscal
Agent shall apply the amount so transferred in accordance with Section 3.03A or 3.08 as directed by
the Authorized Representative.
On or before the date which is three (3) years from the Delivery Date of each series of the
Bonds, the District may deliver to the Fiscal Agent a written certificate executed by an Authorized
Representative certifying that the District, in its sole and absolute.discretion, has determined that it
will not be necessary for the District to utilize the monies, including investment earnings, then
remaining on deposit in the Traffic Enhancement Improvement Account established for such Bonds
to fund Traffic Enhancement Improvement Costs and directing the Fiscal Agent to transfer all such
moneys to the corresponding Acquisition Account, if account is still open, or to the corresponding
Interest Account or Redemption Fund as an Authorized Representative may direct in writing if such
Acquisition Account is closed and the Fiscal Agent shall apply the amount so transferred in
accordance with Section 3.03A or 3.08 as directed by the Authorized Representative.
Notwithstanding anything herein to the contrary, if on the date which is three (3) years from
the Delivery Date for each series of the Bonds, any funds remain on deposit in the Traffic
Enhancement Improvement Account established for such Bonds, the Fiscal Agent shall, upon receipt
of written instructions from the District, immediately restrict the yield on such amounts so that the
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Yield earned on the investment of such amounts is not in excess of the Yield on such Bonds, unless
in the written opinion of Bond Counsel delivered to the Fiscal Agent such restriction is not necessary
to prevent an impairment of the exclusion of interest on such Bonds from gross income for federal
income tax purposes.
Upon the expenditure or transfer, as provided for in this subsection B, of all funds on deposit
in the Traffic Enhancement Improvement Account established for any series of the Bonds, such
account shall be closed.
C. Transportation Facilities Account. The Fiscal Agent shall, from time to time, disburse monies
from the Transportation Facilities Accounts to pay the Transportation Facilities Costs; provided,
however, the Fiscal Agent shall disburse monies on deposit in the Transportation Facilities Accounts
in the order in which such accounts were initially funded, that is disbursing all monies on deposit in a
Transportation Facilities Account funded earlier in time before disbursing monies on deposit in a
subsequently funded Transportation Facilities Account. Upon receipt of a payment request in the
form set forth in Exhibit F hereto duly executed by an Authorized Representative, the Fiscal Agent
shall pay the Transportation Facilities Costs from amounts in the Transportation Facilities Accounts
directly to the contractor(s) or such other person(s), corporation(s) or entity(ies) specified in the
payment request (including reimbursements, if any, to the District). The Fiscal Agent may rely on an
executed payment request as complete authorization for said payments. Funds on deposit in the
Transportation Facilities Accounts may not be utilized to pay Project Costs, Traffic Enhancement
Improvement Costs or Public Facilities Costs.
After the final payment or reimbursement of all Transportation Facilities Costs to be funded
from the proceeds of the Bonds, as certified by delivery of a written notice from an Authorized
Representative to the Fiscal Agent, the Fiscal Agent shall transfer excess monies, if any, on deposit
in, or subsequently deposited in, each Transportation Facilities Account to the corresponding
Acquisition Account, if such account is still open, or to the corresponding Interest Account or
Redemption Account as an Authorized Representative may direct in writing if such Acquisition
Account is closed and the Fiscal Agent shall apply the amount so transferred in accordance with
Section 3.03A or 3.08 as directed by the Authorized Representative.
On or before the date which is three (3) years from the Delivery Date of each series of the
Bonds, the District may deliver to the Fiscal Agent a written certificate executed by an Authorized
Representative certifYing that the District, in its sole and absolute_discretion, has determined that it
will not be necessary for the District to utilize the monies, including investment earnings, then
remaining on deposit in the Transportation Facilities Account established for such Bonds to fund
Transportation Facilities Costs and directing the Fiscal Agent to transfer all such moneys to the
corresponding Acquisition Account, if account is still open, or to the corresponding Interest Account
or Redemption Fund as an Authorized Representative may direct in writing if such Acquisition
Account is closed and the Fiscal Agent shall apply the amount so transferred in accordance with
Section 3.03A or 3.08 as directed by the Authorized Representative.
Notwithstanding anything herein to the contrary, if on the date which is three (3) years from
the Delivery Date of each series of the Bonds, any funds remain on deposit in the Transportation
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Facilities Account established for such Bonds, the Fiscal Agent shall, upon receipt of written
instructions from the District, immediately restrict the yield on such amounts so that the Yield earned
on the investment of such amounts is not in excess of the Yield on such Bonds, unless in the written
opinion of Bond Counsel delivered to the Fiscal Agent such restriction is not necessary to prevent an
impairment of the exclusion of interest on such Bonds from gross income for federal income tax
purposes.
Upon the expenditure or transfer, as provided for in this subsection C, of all funds on deposit
in the Transportation Facilities Account established for any series ofthe Bonds, such account shall
be closed.
D. Public Facilities Account. The Fiscal Agent shall, from time to time, disburse monies from
the Public Facilities Accounts to pay the Public Facilities Costs; provided, however, the Fiscal Agent
shall disburse monies on deposit in the Public Facilities Accounts in the order in which such
accounts were initially funded, that is disbursing all monies on deposit in a Public Facilities Account
funded earlier in time before disbursing monies on deposit in a subsequently funded Public Facilities
Account. Upon receipt of a payment request in the form set forth in Exhibit F hereto duly executed
by an Authorized Representative, the Fiscal Agent shall pay the Public Facilities Costs from amounts
in the Public Facilities Accounts directly to the contractor(s) or such otherperson(s), corporation(s)
or entity(ies) specified in the payment request (including reimbursements, if any, to the District). The
Fiscal Agent may rely on an executed payment request as complete authorization for said payments.
Funds on deposit in the Public Facilities Accounts may not be utilized to pay Project Costs, Traffic
Enhancement Improvement Costs or Transportation Facilities Costs.
Notwithstanding anything herein to the contrary, if on the date which is three (3) years from
the Delivery Date of each series of the Bonds, any funds remain on deposit in the Public Facilities
Account established for such Bonds, the Fiscal Agent shall, upon receipt of written instructions from
the District, immediately restrict the yield on such amounts so that the Yield earned on the
investment of such amounts is not in excess of the Yield on such Bonds, unless in the written
opinion of Bond Counsel delivered to the Fiscal Agent such restriction is not necessary to prevent an
impairment of the exclusion of interest on such Bonds from gross income for federal income tax
purposes.
After the final payment or reimbursement of all Public Facilities Costs, as certified by
delivery of a written notice from an Authorized Representative to the Fiscal Agent, the Fiscal Agent
shall transfer excess monies, if any, on deposit in, or subsequently deposited in, each Public
Facilities Account to the corresponding Acquisition Account, if such account is still open, or to the
corresponding Interest Account or Redemption Account as an Authorized Representative may direct
in writing if such Acquisition Account is closed and the Fiscal Agent shall apply the amount so
transferred in accordance with Section 3.03A or 3.08 as directed by the Authorized Representative.
On or before the date which is three (3) years from the Delivery Date of each series ofthe
Bonds, the District may deliver to the Fiscal Agent a written certificate executed by an Authorized
Representative certifYing that the District, in its sole and absolute.discretion, has determined that it
will not be necessary for the District to utilize the monies, including investment earnings, then
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remaining on deposit in the Public Facilities Account established for such Bonds to fund Public
Facilities Costs and directing the Fiscal Agent to transfer all such moneys to the corresponding
Acquisition Account, if account is still open, or to the corresponding Interest Account or Redemption
Fund as an Authorized Representative may direct in writing if such Acquisition Account is closed
and the Fiscal Agent shall apply the amount so transferred in accordance with Section 3.03A or 3.08
as directed by the Authorized Representative.
Upon the expenditure or transfer, as provided for in this subsection D, of all funds on deposit
in the Public Facilities Account established for any series of the Bonds, such account shall be closed.
E. Other Transfers Between the Accounts in the Project Fund. In addition to transfers made
pursuant to subsections A. and B. above, the Fiscal Agent shall, from time to time and as directed by
the District by written instruction from an Authorized Representative given pursuant to the
Acquisition/Financing Agreement, transfer such funds as are specified in such written instruction
between the Traffic Enhancement Improvement Account and the Acquisition Account and between
the Acquisition Account and the Traffic Enhancement Improvement Account established for each
series of the Bonds.
SECTION 3.06 Reserve Fund
Moneys on deposit in each Reserve Account within the Reserve Fund shall be used solely for
the purposes of paying the principal of and interest on the series of Bonds for which such Reserve
Account is established as such amounts shall become due and payable in the event that the moneys in
the Special Tax Fund and the corresponding Interest Account and Principal Account of the Bond
Service Fund for such purpose are insufficient therefor or redeeming such Bonds as described below.
The Fiscal Agent shall, when and to the extent necessary, withdraw money from each Reserve
Account within the Reserve Fund based upon the amount then on deposit in each such Reserve
Account and transfer such money to the corresponding Interest Account or Principal Account or
corresponding Redemption Account, as applicable, for such purposes.
All Permitted Investments in the Reserve Accounts within Reserve Fund shall be valued at
their fair market value at least semi-annually on March 1 and September 1. On any date after the
transfers required by Section 3.02B(l), (2) and (3) have been made for any Bond Year, if the amount
on deposit in any Reserve Account is less than the applicable Reserve Requirement, the Fiscal Agent
shall transfer to such Reserve Account from the first available monies in the Special Tax Fund an
amount necessary to increase the balance in such Reserve Account to such Reserve Requirement. If
on September 1, or the first Business Day thereafter if September 1 is not a Business Day, of each
year, the amount on deposit in the Reserve Account established for a series of the Bonds is in excess
of the applicable Reserve Requirement, the Fiscal Agent shall, as directed in writing by an
Authorized Representative, (i) prior to the final payment or reimbursement of all Project Costs or a
determination by the City Manager, or the designee thereof, that aggregate amounts on deposit in the
Acquisition Account of the Project Fund are sufficient to pay all remaining Project Costs for which a
payment request has been or is expected to be submitted, as evidenced by a written certificate of an
Authorized Representative, transfer such excess to the Acquisition Account established for such
Bonds, and (ii) after receipt of such written certificate, transfer such excess (less the hold back of
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funds sufficient to pay all remaining Project Costs for which a payment request has been or is
expected to be received, if applicable) to corresponding Interest Account. In connection with any
optional or extraordinary mandatory redemption of Bonds of any series, amounts in the applicable
Reserve Account in excess of the Reserve Requirement applicable to such Bonds following such
redemption shall be transferred to the Principal Account or the Interest Account of the Bond Service
Fund, as applicable, pursuant to written instructions of the District executed by an Authorized
Representative and applied to redeem Bonds of such series.
Upon receipt of written instructions from an Authorized Representative instructing the Fiscal
Agent to transfer certain moneys representing a Reserve Fund credit for the prepayment of a Special
Tax obligation, the Fiscal Agent shall transfer the amount specified in such instructions pro-rata from
each Reserve Account to the corresponding Redemption Accounts for the purpose of redeeming
Bonds of each applicable series pursuant to such instructions.
Whenever the balance in the 2004 Bonds Reserve Account exceeds the amount required to
redeem or pay the Outstanding 2004 Bonds, including interest accrued to the date of payment or
redemption and premium, if any, due upon redemption, the Fiscal Agent shall transfer the amount in
such Reserve Account to the 2004 Bonds Redemption Account to be applied, on the next succeeding
interest payment date, to the payment and redemption, in accordance with Section 4.03 of all of the
Outstanding 2004 Bonds. In the event that the amount so transferred from the 2004 Bonds Reserve
Account to the 2004 Redemption Account exceeds the amount required to pay and redeem such
Outstanding 2004 Bonds, the remairung balance in the 2004 Bonds Reserve Account shall be
transferred to the Special Tax Fund unless such fund has been closed in which event the Fiscal Agent
shall transfer such balance to the tDistrict to be used for any lawful purpose of the District as set
forth in the Act.
SECTION 3.07 Rebate Fund.
The District shall, as to each series of the Bonds, calculate Excess Investment Earnings as
defined in, and in accordance with, the Rebate Instructions, and shall, in writing, direct the Fiscal
Agent to transfer funds to the applicable Rebate Account within the Rebate Fund from funds
furnished by the District as provided for in this Indenture and the Rebate Instructions.
Notwithstanding the foregoing, the Rebate Instructions, including the method of computing
Excess Investment Earnings (as defined in the Rebate Instructions) may be modified, in whole or in
part, without the consent of the Owners of the Bonds, upon receipt by the District of an opinion of
Bond Counsel to the effect that such modification shall not adversely affect the exclusion from gross
income for federal income tax purposes of interest on the Bonds then Outstanding.
The Fiscal Agent shall not be responsible for calculating rebate amounts or for the adequacy
or correctness of any rebate report or rebate calculations. The Fiscal Agent shall be deemed
conclusively to have complied with the provisions of this Indenture regarding calculation and
payment of rebate if it follows the directions of the District and it shall have no independent duty to
review such calculations or enforce the compliance by the District with such rebate requirements.
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SECTION 3.08 Redemption Fund.
Monies may be deposited by the District or the Fiscal Agent pursuant to the terms of Sections
3.02C, 3.05 or 3.06 into the applicable Redemption Account and shall be set aside and used solely
for the purpose of redeeming Bonds of the applicable series of the Bonds in accordance with Section
4.03A or Section 4.03B, as applicable. Following the redemption of Bonds of any series, if any
funds remain in the applicable Redemption Account, such funds shall be transferred to the
corresponding Interest Account.
SECTION 3.09 Administrative Expense Fund.
The Fiscal Agent shall deposit from time to time the amounts authorized for deposit in each
Administrative Expense Account within the Administrative Expense Fund pursuant to Section 3 .02.
The moneys in each Administrative Expense Account shall be used to pay applicable Administrative
Expenses from time to time upon receipt by the Fiscal Agent of a written request executed by an
Authorized Representative specifYing the name and address of the payee and the amount of the
Administrative Expense and a description thereof and further stating that such request has not
formed the basis of any prior request for payment.
SECTION 3.10 Investment of Funds.
Unless otherwise specified in this Indenture, monies in the Special Tax Fund, the Bond
Service Fund, the Project Fund, the Reserve Fund, the Costs ofIssuance Fund and Administrative
Expense Fund shall, at the written direction of an Authorized Representative given at least two (2)
days prior, be invested and reinvested in Permitted Investments (including investments with the
Fiscal Agent or an affiliate of the Fiscal Agent or investments for which the Fiscal Agent or an
affiliate of the Fiscal Agent acts as investment advisor or provides other services so long as the
investments are Permitted Investments). Monies in the Redemption Fund and the Rebate Fund shall,
at the written direction of an Authorized Representative, be invested in Government Obligations.
Notwithstanding anything herein to the contrary, in the absence of written investment instructions,
the Fiscal Agent shall invest solely in investments identified in paragraph 7 of the definition of
Permitted Investments.
The District acknowledges that to the extent regulations of the Comptroller of the Currency
or other applicable regulatory entity grant the District the right to receive brokerage confirmations of
security transactions as they occur, the District specifically waives receipt of such confirmations to
the extent permitted by law. The Fiscal Agent will furnish the District periodic cash transaction
statements, which include detail for all investment transactions made by the Fiscal Agent hereunder.
Obligations purchased as investments of monies in any fund or account shall be deemed at all
times to be a part of such fund or account. Any income realized on or losses resulting from
investments in any fund or account shall be credited or charged to such fund or account. Subject to
the restrictions set forth herein and/or any written investment instructions received by Fiscal Agent
pursuant to this Section 3.10, monies in said funds and accounts may be from time to time invested
by the Fiscal Agent in any manner so long as:
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..---.--....
(1) Monies in the Project Fund, Administrative Expense Fund and Rebate Fund shall be
invested in obligations which will by their terms mature as close as practicable to the
date the District estimates the monies represented by the particular investment will be
needed for withdrawal from such Fund; and
(2) Monies in the Special Tax Fund, the Bond Service Fund, the Redemption Fund and
the Reserve Fund shall be invested only in obligations which will by their terms
either mature or allow for withdrawals at par on such dates so as to ensure the
payment of principal and interest on the Bonds as the same become due; provided,
however, that except for investment agreements as described in paragraph 11 of the
definition of Permitted Investments which permit withdrawal at par, investment of
monies on deposit in the Reserve Fund shall have an average aggregate weighted
term not greater that five (5) years.
The Fiscal Agent shall sell or present for redemption any obligations so purchased whenever
it may be necessary to do so in order to provide monies to meet any payment or transfer for such
funds and accounts or from such funds and accounts. The Fiscal Agent shall not be liable for any
loss from any investments made or sold by it in accordance with the provisions of this Indenture.
SECTION 3.11 Disposition of 2004 Bond Proceeds.
Upon the receipt of$ as the sale proceeds for the 2004 Bonds (being the par
amount of $00,000,000.00 less the underwriter's discount of $ and less original issue
discount of $ ), the Fiscal Agent shall transfer or set aside and deposit or cause to be
deposited such funds as follows:
$ shall be deposited in the 2004 Bonds Acquisition Account of the Project
Fund;
$ shall be deposited in the 2004 Bonds Traffic Enhancement Improvement
Account of the Project Fund;
$ shall be deposited in the 2004 Bonds Transportation Facilities Account of
the Project Fund;
$ shall be deposited in the 2004 Bonds Public Facilities Account of the
Project Fund;
$ shall be deposited in the 2004 Bonds Reserve Account of the Reserve Fund;
$ shall be deposited in the 2004 Bonds Costs oflssuance Account of the Costs
of Issuance Fund;
$ shall be deposited in the Capitalized Interest Sub-Account of the 2004
Bonds Interest Account of the Bond Service Fund; and
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$75,000.00 shall be deposited in the 2004 Bonds Administrative Expense Account of the
Administrative Expense Fund.
The Fiscal Agent may establish such temporary funds or accounts on its records, as it may deem
appropriate to facilitate such deposits and transfers.
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ARTICLE IV. REDEMPTION
SECTION 4.01 Notice of Redemption.
A. Notice bv Mail to Bondholders:
The Fiscal Agent shall mail, at least thirty (30) days but not more than forty-five (45) days
prior to the date of redemption, notice of redemption, by first-class mail, postage prepaid, to the
original purchasers of the Bonds and the respective registered Owners ofthe Bonds at the addresses
appearing on the Bond registry books. The notice of redemption shall: (a) state the redemption date;
(b) state the redemption price; (c) state the bond registration numbers, dates of maturity and CUSIP
numbers of the Bonds to be redeemed, and in the case of Bonds to be redeemed in part, the
respective principal portions to be redeemed; provided, however, that whenever any call includes all
Bonds of a maturity, the numbers of the Bonds of such maturity need not be stated; (d) state that
such Bonds must be surrendered at the principal corporate trust office of the Fiscal Agent; (e) state
that further interest on such Bonds will not accrue from and after the designated redemption date; (f)
state the date of the issue of the Bonds as originally issued; (g) state the rate of interest borne by each
Bond being redeemed; and (h) state that any other descriptive information needed to identifY
accurately the Bonds being redeemed as the District shall direct.
B. Further Notice:
In addition to the notice of redemption given pursuant to Section 4.01A above, further notice
shall be given as set out below, but no defect in said further notice nor any failure to give all or any
portion of such further notice shall in any manner defeat the effectiveness of a call for redemption if
notice thereof is given as above prescribed.
Each further notice of redemption shall be sent at least 2 days before the notice of redemption
is mailed to the Bondholders pursuant to Section 4.01A by registered or certified mail or overnight
delivery service to the Securities Depositories and to at least one (1) Information Services that
disseminate notice of redemption of obligations similar to the Bonds or, in accordance with the then-
current guidelines of the Securities and Exchange Commission, such other services providing
information on called bonds, or no such other services, as District may determine in its sole
discretion.
C. Failure to Receive Notice:
So long as notice by first class mail has been provided as set forth in Section 4.01 A above,
the actual receipt by the Owner of any Bond of notice of such redemption shall not be a condition
precedent to redemption, and failure to receive such notice shall not affect the validity of the
proceedings for redemption of such Bonds or the cessation of interest on the date fixed for
redemption.
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D. Certificate of Giving Notice:
The notice or notices required by this Section shall be given by the Fiscal Agent on behalf of the
District. A certificate by the Fiscal Agent that notice of call and redemption has been given to the
registered Owners of the Bonds as herein provided shall be conclusive as against all parties, and no
Owner whose Bond is called for redemption may object thereto, or object to cessation of interest on
the redemption date, by any claim or showing that he failed to receive actual notice of call and
redemption.
SECTION 4.02 Effect of Redemption.
When notice of redemption has been given substantially as provided for herein, and when the
amount necessary for the redemption of the Bonds called forredemption is set aside for that purpose
in the Bond Service Fund or the Redemption Fund, as provided for herein, the Bonds designated for
redemption shall become due and payable on the date fixed for redemption thereof, and upon
presentation and surrender of said Bonds at the place specified in the notice of redemption, said
Bonds shall be redeemed and paid at the redemption price out of the Bond Service Fund or the
Redemption Fund and no interest will accrue on such Bonds or portions of Bonds called for
redemption from and after the redemption date specified in said notice, and the Owners of such
Bonds so called for redemption after such redemption date shall look for the payment of principal
and premium, if any, of such Bonds or portions of Bonds only to the Bond Service Fund or the
Redemption Fund, as applicable. All Bonds redeemed shall be canceled forthwith by the Fiscal
Agent and shall not be reissued. Upon surrender of Bonds redeemed in part, a new Bond or Bonds
of the same maturity shall be registered, authenticated and delivered to the registered Owner at the
expense of the District, in the aggregate principal amount of the unredeemed portion. All unpaid
interest payable at or prior to the date fixed for redemption shall continue to be payable to the
respective registered owners of such Bonds or their order, but without interest thereon.
SECTION 4.03 Redemption Prices and Terms for the 2004 Bonds.
A. Optional Redemption
The 2004 Bonds maturing on and after September 1, 20- may be redeemed at the option of
the District prior to maturity as a whole, or in part on any Interest Payment Date on and after
September 1, 20_, from such maturities as are selected by the District, and by lot within a maturity,
from any source of funds, at the following redemption prices (expressed as percentages of the
principal amount of the 2004 Bonds to be redeemed), together with accrued interest to the date of
redemption:
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Redemption Date Redemption Price
September 1, 20- and March 1, 20- 102%
September 1,20- and March 1, 20- 101%
September I, 20- and thereafter 100%
B. Extraordinarv Mandatorv Redemption
The 2004 Bonds shall be subject to redemption on any Interest Payment Date, prior to
maturity, as a whole or in part on a pro rata basis among maturities from amounts deposited to the
2004 Bonds Redemption Account in connection with a prepayment of Special Taxes pursuant to the
Special Tax RMA. An Authorized Representative shall deliver written instructions to the Fiscal
Agent not less than 60 days prior to the redemption date directing the Fiscal Agent to utilize the
Special Tax Revenues transferred to the 2004 Bonds Redemption Account pursuant to Section 3.02
C and Section 3.06 to redeem 2004 Bonds pursuant to this Section 4.03 B. Such extraordinary
mandatory redemption of the 2004 Bonds shall be at the following redemption prices (expressed as
percentages of the principal amount of the 2004 Bonds to be redeemed), together with accrued
interest thereon to the date of redemption:
Redemption Date Redemption Price
September 1, 2004 through March 1, 2009 103%
September 1, 2009 and March 1, 2010 102%
September 1, 2010 and March 1,2011 101%
September I, 2011 and thereafter 100%
C. Mandatorv Sinking Fund Redemption
The 2004 Bonds maturing on September 1, 20- are subject to mandatory sinking fund
redemption, in part by lot, on September 1 in each year commencing September 1, 20- at a
redemption price equal to the principal amount of the 2004 Bonds to be redeemed, plus accrued and
unpaid interest thereon to the date fixed for redemption, without premium, in the aggregate principal
amount and in the years shown on the following redemption schedule:
Redemption Date Principal
(September 1) Amount
The 2004 Bonds maturing on September 1,20_, are subject to mandatory sinking fund
redemption, in part, by lot, on September 1 of each year commencing September 1, 20_, at a
redemption price equal to the principal amount of the Bonds to be redeemed, plus accrued and
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unpaid interest thereon to the date fixed for redemption, without premium, in the aggregate principal
amounts and in the years shown in the following redemption schedule.
Redemption Date Principal
(September I) Amount
The 2004 Bonds maturing on September 1,20_, are subject to mandatory sinking fund
redemption, in part, by lot, on September 1 of each year commencing September 1, 20_, at a
redemption price equal to the principal amount of the Bonds to be redeemed, plus accrued and
unpaid interest thereon to the date fixed for redemption, without premium, in the aggregate principal
amounts and in the years shown in the following redemption schedule.
Redemption Date Principal
September 1) Amount
D. Purchase in Lieu of Redemption
In lieu of such an optional, extraordinary mandatory or mandatory sinking fund redemption,
the District may elect to purchase such Bonds at public or private sale at such prices as the District
may in its discretion determine; provided, that, unless otherwise authorized by law, the purchase
price (including brokerage and other charges) thereof shall not exceed the principal amount thereof,
plus the applicable premium, if any, stated above, plus accrued interest to the purchase date.
E. Notice and Selection of Bonds for Redemption
In the event the District shall elect to redeem Bonds as provided in this Section 4.03, the District
shall give written notice to the Fiscal Agent of its election so to redeem, the redemption date, the
principal amount of the Bonds to be redeemed, in the case of a redemption pursuantto Section 4.03A
the maturities from which such Bonds are to be redeemed, and the principal amount of the Bonds to
be redeemed from each such maturity, the Bonds or portions thereof to be selected for redemption.
The notice to the Fiscal Agent shall be given not less than sixty (60) days prior to the
redemption date or such shorter period as shall be acceptable to the Fiscal Agent in its sole
discretion. Ifless than all of the Bonds Outstanding are to be redeemed, the portion of any Bond of a
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denomination of more than $5,000 to be redeemed shall be in the principal amount of $5,000 or a
multiple thereof, and, in selecting portions of such Bonds for redemption, the District shall treat each
such Bond as representing that number of Bonds of $5,000 denomination which is obtained by
dividing the principal amount of such Bond to be redeemed in part by $5,000.
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ARTICLE V. SUPPLEMENTAL INDENTURES
SECTION 5.01 Amendments or Supplements.
The Legislative Body may, by adoption of a resolution from time to time, and at anytime but
without notice to or consent of any of the Bondholders, approve a Supplemental Indenture hereto for
any of the following purposes:
(a) to cure any ambiguity, to correct or supplement any provision herein which may be
inconsistent with any other provision herein, or to make any other provision with
respect to matters or questions arising under this Indenture or in any Supplemental
Indenture, provided that such action shall not be materially adverse to the interests of
the Bondowners;
(b) to add to the covenants and agreements of and the limitations and the restrictions
upon the District contained in this Indenture, other covenants, agreements, limitations
and restrictions to be observed by the District which are not contrary to or
inconsistent with this Indenture as theretofore in effect;
(c) to modifY, alter, amend or supplement this Indenture in any other respect which is not
materially adverse to the interests of the Bondowners;
(d) to amend any provision of this Indenture relating to the Code as may be necessary or
appropriate to assure compliance with the Code and the exclusion from gross income
of interest on the Bonds; or
(e) to provide for and establish the terms and conditions pursuant to which Parity Bonds
may be issued.
Exclusive of the Supplemental Indentures hereto provided for in the first paragraph of this
Section 5.01, the Owners of not less than 60% in aggregate principal amount of the Bonds then
Outstanding shall have the right to consent to and approve the adoption by the District of such
Supplemental Indentures as shall be deemed necessary or desirable by the District for the purpose of
waiving, modifYing, altering, amending, adding to or rescinding, in any particular, any of the terms
or provisions contained in this Indenture; provided, however, that nothing herein shall permit, or be
construed as permitting, (a) an extension of the maturity date of the principal of, or the payment date
of interest on, any Bond, or (b) a reduction in the principal amount of, or redemption premium on,
any Bond or the rate of interest thereon without the consent of the affected Bondowner( s), or permit,
or be construed as permitting, (x) a preference or priority of any Bond or Bonds over any other Bond
or Bonds, (y) a reduction in the aggregate principal amount of the Bonds the Owners of which are
required to consent to such Supplemental Indenture, or (z) creating of a pledge of or lien or charge
upon the Special Tax Revenues superior to the pledge provided for in Section 2.02 hereof, without
the consent of the Owners of all Bonds then Outstanding.
If at any time the District shall desire to approve a Supplemental Indenture, which pursuant to
the terms of this Section 5.01 shall require the consent of the Bondowners, the District shall so notifY
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the Fiscal Agent and shall deliver to the Fiscal Agent a copy of the proposed Supplemental
Indenture. The District shall, at the expense of the District, cause notice of the proposed
Supplemental Indenture to be mailed, postage prepaid, to all Bondowners at their addresses as they
appear in the Registration Books. Such notice shall briefly set forth the nature of the proposed
Supplemental Indenture and shall state that a copy thereof is on file at the principal office of the
District for inspection by all Bondowners. The failure of any Bondowner to receive such notice shall
not affect the validity of such Supplemental Indenture when consented to and approved as in this
Section 5.01 provided. Whenever at any time within one year after the date of the first mailing of
such notice, the District shall receive an instrument or instruments purporting to be executed by the
Owners of not less than 60% in aggregate principal amount of the Bonds then Outstanding, which
instrument or instruments shall refer to the proposed Supplemental Indenture described in such
notice, and shall specifically consent to the approval thereof by the Legislative Body substantially in
the form of the copy thereof referred to in such Notice as on file with the District, such proposed
Supplemental Indenture, when duly approved by the Legislative Body, shall thereafter become a part
of the proceedings for the issuance of the Bonds. In determining whether the Owners of 60% of the
aggregate principal amount of the Bonds have consented to the approval of any Supplemental
Indenture, Bonds which are owned by the District or by any person directly or indirectly controlling
or controlled by or under the direct or indirect common control with the District, shall be disregarded
and shall be treated as though they were not outstanding for the purpose of any such determination.
Upon the approval of any Supplemental Indenture hereto and the receipt of consent to any
such Supplemental Indenture from the Owners of the appropriate aggregate principal amount of
Bonds in instances where such consent is required pursuant to the provisions ofthis Section 5.01,
this Indenture shall be, and shall be deemed to be, modified and amended in accordance therewith,
and the respective rights, duties and obligations under this Indenture of the District and all Owners of
Bonds then Outstanding shall thereafter be determined, exercised and enforced hereunder, subject in
all respects to such modifications and amendments. Notwithstanding anything herein to the contrary,
no Supplemental Indenture shall be entered into which would modify the duties of the Fiscal Agent
hereunder, without the prior written consent ofthe Fiscal Agent.
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ARTICLE VI. MISCELLANEOUS CONDITIONS
SECTION 6.01 Ownership of Bonds.
The person in whose name any Bond shall be registered shall be deemed and regarded as the
absolute Owner thereof for all purposes, and payment of or on account of the principal and
redemption premium, if any, of any such Bond, and the interest on any such Bond, shall be made
only to or upon the order of the registered Owner thereof or his legal representative. All such
payments shall be valid and effectual to satisfY and discharge the liability upon such Bond, including
the redemption premium, if any, and interest thereon, to the extent of the sum or sums so paid.
SECTION 6.02 Mutilated, Lost, Destroyed or Stolen Bonds.
If any Bond shall become mutilated, the Fiscal Agent shall authenticate and deliver a new
Bond of like tenor, date and maturity in exchange and substitution for the Bond so mutilated, but
only upon surrender to the Fiscal Agent of the Bond so mutilated. Every mutilated Bond so
surrendered to the Fiscal Agent shall be canceled. If any Bond shall be lost, destroyed or stolen,
evidence of such loss, destruction or theft may be submitted to the Fiscal Agent and, if such evidence
is satisfactory to the Fiscal Agent and, if an indemnity satisfactory to the Fiscal Agent shall be given,
the Fiscal Agent shall authenticate and deliver a new Bond oflike tenor and maturity, numbered and
dated as the Fiscal Agent shall determine in lieu of and in substitution for the Bond so lost, destroyed
or stolen. Any Bond issued under the provisions of this Section 6.02 in lieu of any Bond alleged to
have been lost, destroyed or stolen shall be equally and proportionately entitled to the benefits hereof
with all other Bonds secured hereby. The Fiscal Agent shall not treat both the original Bond and any
replacement Bond as being Outstanding for the purpose of determining the principal amount of
Bonds which may be executed, authenticated and delivered hereunder or for the purpose of
determining any percentage of Bonds Outstanding hereunder, but both the original and replacement
Bond shall be treated as one and the same.
SECTION 6.03 Cancellation of Bonds.
All Bonds paid or redeemed, either at or before maturity, shall be canceled upon the payment
or redemption of such Bonds, and shall be delivered to the Fiscal Agent when such payment or
redemption is made. All Bonds canceled under any of the provisions of this Indenture shall be
destroyed by the Fiscal Agent, which shall execute and provide the District with a certificate of
destruction.
SECTION 6.04 Covenants.
As long as the Bonds are Outstanding and unpaid, the District shall (through its proper
members, officers, agents or employees) faithfully perform and abide by all ofthe covenants and
agreements set forth in this Section 6.04; provided, however, that said covenants do not require the
District to expend any funds other than the Special Tax Revenues.
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A. The District will review the public records of the County of San Diego, California, in
connection with the collection of the Special Taxes not later than July 1 of each year to determine the
amount of the Special Tax collected in the prior Fiscal Year and will commence and diligently
pursue to completion, judicial foreclosure proceedings against (i) properties under common
ownership with delinquent Special Taxes in the aggregate of$5,000 or more by October 1 following
the close of the Fiscal Year in which the Special Taxes were due, and (ii) against all properties with
delinquent Special Taxes in the aggregate of$2,500 or more by October 1 following the close of any
Fiscal Year if the amount of the Reserve Fund is less than the Reserve Requirement.
B. The District shall preserve and protect the security of the Bonds and the rights of the
Bondowners and defend their rights against all claims and demands of all persons. Until such time
as an amount has been set aside sufficient to pay Outstanding Bonds at maturity or to the date of
redemption if redeemed prior to maturity, plus unpaid interest thereon and premium, if any, to
maturity or to the date of redemption if redeemed prior to maturity, the District will faithfully
perform and abide by all of the covenants, undertakings and provisions contained in this Indenture or
in any Bond issued hereunder.
C. Except for the issuance of Parity Bonds pursuant to the provisions of Section 6.15, the
District will not issue any other obligations payable, principal or interest, from the Special Taxes
which have, or purport to have, any lien upon the Special Taxes superior to or, except as permitted in
the following sentence, on a parity with the lien of the Bonds herein authorized. Nothing in this
Indenture shall prevent the District from issuing and selling, pursuant to law, refunding bonds or
other refunding obligations payable from and having a first lien upon the Special Taxes on a parity
with the Outstanding Bonds so long as the issuance of such refunding bonds or other refunding
obligations results in a reduction in each Bond Year on the Annual Debt Service on the Bonds when
combined with the Debt Service on Parity Refunding Obligations following the issuance of such
refunding bonds or other refunding obligations.
D. The District will duly and punctually payor cause to be paid the principal of and interest on
each of the Bonds issued hereunder on the date, at the place and in the manner provided in said
Bonds, but only out of Special Tax Revenues and such other funds as may be herein provided.
E. The District shall comply with all requirements of the Act so as to assure the timely
collection of the Special Taxes in an amount sufficient to pay the Annual Debt Service on the Bonds
when due and Administrative Expenses when due. Prior to July 1 of each year, the District shall
ascertain the parcels on which the Special Taxes are to be levied in the following Fiscal Year, taking
into account any subdivisions of parcels during the current Fiscal Year. The District shall effect the
levy of the Special Tax in accordance with the Special Tax RMA and the Act each Fiscal Year so
that the computation of such levy is complete and transmitted to the Auditor of the County of San
Diego before the final date on which the Auditor of the County of San Diego will accept the
transmission of the Special Tax for the parcels within The District for inclusion on the next real
property tax roll. Upon completion of the computation of the amount of the Special Tax levy, the
District shall prepare or cause to be prepared, and shall transmit or cause to be transmitted to the
Auditor of the County of San Diego, such data as such Auditor requires to include the levy of the
Special Tax on the next real property tax roll.
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The District finds and determines that, historically, delinquencies in the payment of special
taxes authorized pursuant to the Act in community facilities districts in Southern California have
from time to time been at levels requiring the levy of special taxes at the maximum authorized rates
in order to make timely payment of principal of and interest on the outstanding indebtedness of such
community facilities districts. For this reason, the District has determined that, absent the
certification described below, a reduction in the Maximum Annual Special Tax (as such term is
defined in the Special Tax RMA) authorized to be levied below the levels provided would interfere
with the timely retirement ofthe Bonds. The District has determined it to be necessary in order to
preserve the security for the Bonds to covenant, and, to the maximum extent that the law permits it to
do so, the District does covenant, that it shall not initiate proceedings to reduce the Maximum
Special Tax Rates (as such term is defined in the Special Tax RMA), unless, in connection therewith,
(i) the District receives a certificate from one or more Special Tax Consultants which, when taken
together, certifY that, on the basis of the parcels ofland and improvements existing in the District as
of the July 1 preceding the reduction, the Maximum Annual Special Tax which may be levied on all
Assessor's Parcels (as such term is defined in the Special Tax RMA) of taxable property on which a
completed structure is located in each Fiscal Year will equal at least 110% of the largest sum of the
Annual Debt Service on the Bonds to remain Outstanding and the Debt Service on Parity Refunding
Obligations outstanding ("Maximum Debt Service") after the reduction is approved and will not
reduce the Maximum Annual Special Tax payable from parcels on which a completed structure is
located to less than 110% of the Maximum Debt Service, and (ii) the City Council, acting as the
legislative body of the District, finds pursuant to this Indenture that any reduction made under such
conditions will not adversely affect the interests of the Owners of the Bonds. Any reduction in the
Maximum Annual Special Tax approved pursuant to the preceding sentence may be approved
without the consent of the Owners of the Bonds.
The District covenants that, in the event that any initiative is adopted by the qualified electors
which purports to reduce the Maximum Annual Special Tax below the levels authorized pursuant to
the Special Tax RMA or to limit the power or authority of the District to levy Special Taxes pursuant
to the Special Tax RMA, the District shall, from funds available hereunder, commence and pursue
legal action in order to preserve the authority and power of the District to levy Special Taxes
pursuant to the Special Tax RMA.
F. The District will at all times keep, or cause to be kept, proper and current books and accounts
(separate from all other records and accounts) in which complete and accurate entries shall be made
of all transactions relating to the Special Tax Revenues and other funds herein provided for.
G. The District will not directly or indirectly use or permit the use of any proceeds of the Bonds
or any other funds of the District or take or omit to take any action that would cause the Bonds to be
"private activity bonds" within the meaning of Section 141 of the Code, or obligations which are
"federally guaranteed" within the meaning of Section 149(b) of the Code. The District will not allow
five percent (5%) or more of the proceeds of the Bonds to be used in the trade or business of any
non-goverrunental units and will not loan five percent (5%) or more of the proceeds of the Bonds to
any non-goverrunental units.
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H. The District covenants that it will not take any action, or fail to take any action, if any such
action or failure to take action would adversely affect the exclusion from gross income of the interest
on the Bonds under Section 103 of the Code. The District will not directly or indirectly use or permit
the use of any proceeds of the Bonds or any other funds of the District, or take or omit to take any
action, that would cause the Bonds to be "arbitrage bonds" within the meaning of Section 148(a) of
the Code. To that end, the District will comply with all requirements of Section 148 of the Code to
the extent applicable to the Bonds. In the event that at any time the District is of the opinion that for
purposes of this Section it is necessary to restrict or limit the yield on the investment of any monies
held under this Indenture or otherwise the District shall so instruct the Fiscal Agent in writing, and
the Fiscal Agent shall take such action as may be necessary in accordance with such instructions.
Without limiting the generality of the foregoing, the District agrees that there shall be paid
from time to time all amounts required to be rebated to the United States of America pursuant to
Section 148(f) of the Code and any temporary, proposed or final Treasury Regulations as may be
applicable to the Bonds from time to time. This covenant shall survive payment in full or defeasance
of the Bonds. The District specifically covenants to payor cause to be paid to the United States of
America at the times and in the amounts determined under Section 3.07.
Notwithstanding any provision of this Section, if the District shall obtain an opinion of Bond
Counsel to the effect that any action required under this covenant is no longer required, or to the
effect that some further action is required, to maintain the exclusion from gross income of the
interest on the Bonds pursuant to Section 103 of the Code, the Fiscal Agent may rely conclusively on
such opinion in complying with the provisions hereof, and the covenant hereunder shall be deemed
to be modified to that extent.
I. The District shall not directly or indirectly extend the maturity dates of the Bonds or the time
of payment of interest with respect thereto.
J. Not later than October 30th of each year, commencing October 30, 2005, and until October
30th following the final maturity of the Bonds, the District shall supply or cause to be supplied to the
California Debt and Investment Advisory Commission by mail, postage prepaid, the information, if
any, then required by Govemment Code Section 53359.5 to be submitted to such agency.
K. The District covenants that it will not adopt any policy pursuant to Section 53341.1 of the Act
permitting tender of Bonds in full payment or partial payment of any Special Taxes unless it first
receives a certificate of a Special Tax Consultant that accepting such tender will not result in the
District having insufficient Special Tax Revenues to pay the principal of and interest on the Bonds
when due.
L. The District shall do and perform or cause to be done and performed all acts and things
required to be done or performed by or on behalf of the District under the provisions of this
Indenture. The District warrants that upon the date of execution and delivery of the Bonds, the
conditions, acts and things required by law and this Indenture to exist, to have happened and to have
been performed precedent to and in the execution and delivery of such Bonds do exist, have
1
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happened and have been performed and the execution and delivery of the Bonds shall comply in all
respects with the applicable laws of the State.
SECTION 6.05 Arbitrage Certificate.
On the basis of the facts, estimates and circumstances now in existence and in existence on
the date of issue of the Bonds, as determined by the Treasurer, smd Treasurer is hereby authorized to
certifY that it is not expected that the proceeds of the Bonds will be used in a manner that would
cause the Bonds to be arbitrage bonds. Such certification shall be delivered to the purchaser together
with the Bonds.
SECTION 6.06 Defeasance.
If the District shall payor cause to be pmd, or there shall otherwise be pmd, to the Owner of
an Outstanding Bond the interest due thereon and the principal thereof, at the times and in the
manner stipulated in this Indenture or Supplemental Indenture, as applicable, then the Owner of such
Bond shall cease to be entitled to the pledge of the Special Tax Revenues, and, other than as set forth
below, all covenants, agreements and other obligations of the District to the Owner of such Bond
under this Indenture or Supplemental Indenture, as applicable, shall thereupon cease, terminate and
become void and discharged and satisfied. In the event of the defeasance of all Outstanding Bonds of
any series, the Fiscal Agent shall pay over or deliver to the District all money or securities held by it
pursuant to the Indenture or Supplemental Indenture, as applicable, which are not required for the
payment of the principal of, premium, if any, and interest due on such Bonds.
Any Outstanding Bond shall be deemed to have been pmd within the meaning expressed in
the preceding paragraph if such Bond is pmd in anyone or more of the following ways:
(a) by paying or causing to be paid the principal of, premium, if any, and interest on such
Bond, as and when the same shall become due and payable;
(b) by depositing with the Fiscal Agent, in trust, at or before maturity, money which,
together with the amounts then on deposit in the funds established pursuant to this
Indenture or Supplemental Indenture (exclusive of the Rebate Fund), as applicable,
and available for such purpose, is fully sufficient to pay the principal of, premium, if
any, and interest on such Bond, as and when the same shall become due and payable;
or
(c) by depositing with the Fiscal Agent or an escrow bank appointed by the District, in
trust, noncallable Permitted Investments of the type described in subparagraph 1 of
the definition thereof, in such amount as an Independent Accountant shall determine
(as set forth in a verification report from such Independent Accountant) will be
sufficient, together with the interest to accrue thereon and moneys then on deposit in
the funds established under this Indenture or Supplemental Indenture (exclusive of
the Rebate Fund), as applicable, and available for such purpose, together with the
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interest to accrue thereon, to pay and discharge the principal of, premium, if any, and
interest on such Bond, as and when the same shall become due and payable;
then, at the election ofthe District, and notwithstanding that any Outstanding Bonds shall not have
been surrendered for payment, all obligations of the District under this Indenture or Supplemental
Indenture, as applicable, with respect to such Bond shall cease and terminate, except for the
obligation of the Fiscal Agent to payor cause to be paid to the Owners of any such Bond not so
surrendered and paid, all sums due thereon and except for the covenants of the District to preserve
the exclusion of the interest on the Bonds from gross income for federal income tax purposes. Notice
of such election shall be filed with the Fiscal Agent not less than ten (10) days prior to the proposed
defeasance date, or such shorter period of time as may be acceptable to the Fiscal Agent. In
connection with a defeasance under (b) or (c) above, there shall be provided to the Fiscal Agent a
certificate of an Independent Accountant stating its opinion as to the sufficiency of the moneys or
securities deposited with the Fiscal Agent or the escrow bank, together with the interest to accrue
thereon and moneys then on deposit in the funds established under this Indenture or Supplemental
Indenture (exclusive of the Rebate Fund), as applicable, and available for such purpose, together with
the interest to accrue thereon to pay and discharge the principal of, premium, if any, and interest on
all such Bonds to be defeased in accordance with this Indenture or Supplemental Indenture, as
applicable, as and when the same shall become due and payable, and an opinion of Bond Counsel
(which may rely upon the opinion of the Independent Accountant) to the effect that the Bonds being
defeased have been legally defeased in accordance with this Indenture.
To accomplish such defeasance, the District shall cause to be delivered (i) a report of the
Independent Accountant verifYing the determination made pursuant to paragraph (c) above (the
"Verification Report") and (ii) an opinion of Bond Counsel to the effect that the Bonds are no longer
Outstanding. The Verification Report and opinion of Bond Counsel shall be acceptable in form and
substance to the District, and addressed to the District and the Fiscal Agent.
SECTION 6.07 Fiscal Agent.
The District hereby appoints U.S. Bank National Association as Fiscal Agent for the Bonds.
The Fiscal Agent is hereby authorized to and shall mail or otherwise provide for the payment of
interest payments to the Bondholders, and upon written instruction of the District shall select Bonds
for redemption, give notice of redemption of Bonds and maintain the Bond Register. The Fiscal
Agent is hereby authorized to pay the principal of and premium, if any, on the Bonds when the same
are duly presented to it for payment at maturity or on call and redemption, to provide for the
registration of transfer and exchange of Bonds presented to it for such purposes, to provide for the
cancellation of Bonds all as provided in this Indenture, and to provide for the authentication of
Bonds, and shall perform all other duties assigned to or imposed on it as provided in this Indenture.
The Fiscal Agent shall keep accurate records of all Bonds paid and discharged by it.
The District shall from time to time, subject to any agreement between the District and the
Fiscal Agent then in force, pay to the Fiscal Agent compensation for its services, reimburse the
Fiscal Agent for all its advances and expenditures, including, but not limited to, advances to and fees
and expenses of independent accountants or counsel employed by it in the exercise and performance
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of its powers and duties hereunder, and indemnify and hold the Fiscal Agent, its officers, directors,
agents and employees, harmless from and against losses, claims, expenses and liabilities not arising
from its own negligence or willful misconduct which it may incur in the exercise and performance of
its powers and duties hereunder. Such obligations shall survive the termination or discharge of this
Indenture.
The District may at any time at its sole discretion remove the Fiscal Agent initially appointed,
and any successor thereto, by delivering to the Fiscal Agent a written notice of its decision to remove
the Fiscal Agent and may appoint a successor or successors thereto, provided that any such
successor, other than the Treasurer, shall be a bank or trust company having a combined capital
(exclusive of borrowed capital) and surplus of at least fifty million dollars ($50,000,000), and subject
to supervision or examination by Federal or State authority. Any removal shall become effective
only upon acceptance of appointment by the successor Fiscal Agent or the Treasurer. If any bank or
trust company appointed as a successor publishes a report of condition at least annually, pursuant to
law or to the requirements of any supervising or examining authority above referred to, then for the
purposes of this Section the combined capital and surplus of such bank or trust company shall be
deemed to be its combined capital and surplus as set forth in its most recent report of condition so
published.
The Fiscal Agent may at any time resign by giving written notice to the District and by giving
to the Owners notice of such resignation, which notice shall be mailed to the Owners at their
addresses appearing in the Registration Books. Upon receiving such notice of resignation, the
District shall promptly appoint a successor Fiscal Agent by an instrument in writing. Any
resignation or removal of the Fiscal Agent and appointment of a successor Fiscal Agent shall become
effective only upon acceptance of appointment by the successor Fiscal Agent.
SECTION 6.08 Liability of Fiscal Agent.
The recitals of fact and all promises, covenants and agreements contained herein and in the
Bonds shall be taken as statements, promises, covenants and agreements of the District, and the
Fiscal Agent assumes no responsibility for the correctness of the same and makes no representations
as to the validity or sufficiency of this Indenture or of the Bonds, and shall incur no responsibility in
respect thereof, other than in connection with its duties or obligations herein or in the Bonds or in the
certificate of authentication on the Bonds. The Fiscal Agent shall be under no responsibility or duty
with respect to the issuance of the Bonds. The Fiscal Agent shall not be liable in connection with the
performance of its duties hereunder, except for its own negligence or willful misconduct. The Fiscal
Agent shall have no responsibility with respect to any information, statement or recital in any official
statement, offering memorandum or any other disclosure material prepared or distributed with
respect to the Bonds.
The Fiscal Agent shall be protected in acting upon any notice, resolution, request, consent,
order, certificate, report, bond or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties. The Fiscal Agent may consult with counsel,
who may be counsel to the District, with regard to legal questions, and the opinion of such counsel
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shall be full and complete authorization and protection in respect of any action taken or suffered
hereunder in good faith and in accordance therewith.
Whenever in the administration of its duties under this Indenture, the Fiscal Agent shall deem
it necessary or desirable that a matter be proved or established prior to taking or suffering any action
hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed)
may, in the absence of bad faith on the part of the Fiscal Agent, be deemed to be conclusively proved
and established by a written certificate of the District, and such certificate shall be full warrant to the
Fiscal Agent for any action taken or suffered under the provisions of this Indenture upon the faith
thereof, but in its discretion the Fiscal Agent may, in lieu thereof, accept other evidence of such
matter or may require such additional evidence of such matter or may require such additional
evidence as to it may seem reasonable.
The Fiscal Agent shall have no duty or obligation to enforce the collection of funds to be
deposited with it hereunder or as to the correctness of any amounts received, and its liability shall be
limited to the proper accounting for such funds as it actually receives.
No provision of this Indenture or any other document related hereto shall require the Fiscal
Agent to risk or advance its own funds or otherwise incur any financial liability in the performance
of its duties or the exercise of its rights hereunder.
The permissive right of the Fiscal Agent to do things enumerated in this Indenture shall not
be construed as a duty.
The Fiscal Agent may execute any of the duties of the Fiscal Agent or powers hereof and
perform any of its duties through attorneys, agents and receivers and shall not be answerable for the
conduct of the same if appointed by it with reasonable care.
The Fiscal Agent shall be responsible for only those duties expressly set forth in this
Indenture and no implied duties or obligations shall be read into this Indenture against the Fiscal
Agent.
SECTION 6.09 Provisions Constitute Contract.
The provisions of this Indenture shall constitute a contract between the District and the
Bondowners and the provisions hereof shall be enforceable by any Bondowner for the equal benefit
and protection of all Bondowners similarly situated by mandamus, accounting, mandatory injunction
or any other suit, action or proceeding at law or in equity that is now or may hereafter be authorized
under the laws of the State in any court of competent jurisdiction. Said contract is made under and is
to be construed in accordance with the laws of the State.
No remedy conferred hereby upon any Bondowner is intended to be exclusive of any other
remedy, but each such remedy is cumulative and in addition to every other remedy and may be
exercised without exhausting and without regard to any other remedy conferred by the Act or any
other law of the State. No waiver of any default or breach of duty or contract by any Bondowner
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shall affect any subsequent default or breach of duty or contract or shall impair any rights or
remedies on said subsequent default or breach. No delay or omission of any Bondowner to exercise
any right or power accruing upon any default shall impair any such right or power or shall be
construed as a waiver of any such default or acquiescence therein. Every substantive right and every
remedy conferred upon the Bondowners may be enforced and exercised as often as may be deemed
expedient. In case any suit, action or proceeding to enforce any right or exercise any remedy shall be
brought or taken and the Bondowner shall prevail, said Bondowner shall be entitled to receive from
the Special Tax Fund reimbursement for reasonable costs, expenses, outlays and attorney's fees, and
should said suit, action or proceeding be abandoned or be determined adversely to the Bondowners
then, and in every such case, the District and the Bondowners shall be restored to their former
positions, rights and remedies as if such suit, action or proceeding had not been brought or taken.
After the issuance and delivery of the Bonds, this Indenture shall be irrevocable, but shall be
subject to modification to the extent and in the manner provided in this Indenture, but to no greater
extent and in no other manner.
SECTION 6.10 CUSIP Numbers.
CUSIP identification numbers, if available, will be imprinted on the Bonds, but such numbers
shall not constitute a part of the contract evidenced by the Bonds and no liability shall hereafter
attach to the District or the Fiscal Agent, or any of the officers or agents thereof because of or on
account of said numbers.
SECTION 6.11 Severability.
If any covenant, agreement or provision, or any portion thereof, contained in this Indenture,
or the application thereof to any person or circumstance, is held to be unconstitutional, invalid or
unenforceable, the remainder of this Indenture and the application of any such covenant, agreement
or provision, or portion thereof, to any other persons or circumstances, shall be deemed severable
and shall not be affected, and this Indenture and the Bonds issued pursuant hereto shall remain valid
and the Bondholder shall retain all valid rights and benefits accorded to them under this Indenture
and the Constitution and laws ofthe State of California. If the provisions relating to the appointment
and duties of a Fiscal Agent are held to be unconstitutional, invalid or unenforceable, said duties
shall be performed by the Treasurer.
SECTION 6.12 Unclaimed Money.
All money which the Fiscal Agent shall have received from any source and set aside for the
purpose of paying or redeeming any of the Bonds shall be held in trust for the respective owners of
such Bonds, but any money which shall be so set aside or deposited by the Fiscal Agent and which
shall remain unclaimed by the Owners of such Bonds for a period of one year after the date on which
any payment or redemption with respect to such Bonds shall have become due and payable shall be
transferred to the General Fund of the District; provided, however, that the Fiscal Agent, before
making such payment, shall cause notice to be mailed to the Owners of such Bonds, by first-class
mail, postage prepaid, not less than 90 days prior to the date of such payment to the effect that said
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money has not been claimed and that after a date named therein any unclaimed balance of said
money then remaining will be transferred to the General Fund of the District. Thereafter, the Owners
of such Bonds shall look only to the General Fund of the District for payment and then only to the
extent of the amount so received without any interest thereon.
SECTION 6.13 Nonpresentment of Bonds.
Except as otherwise provided in Section 6.12 hereof, in the event any Bonds shall not be
presented for payment when the principal thereof becomes due, if funds sufficient to pay such Bonds
shall be held by the Fiscal Agent for the benefit of the Owners thereof, all liability of the District to
the Owners thereof shall forthwith cease and be completely discharged and thereupon it shall be the
duty of the Fiscal Agent to hold such funds (subject to Section 6.12 hereof), without liability for
interest thereon, for the benefit of the Owners of such Bonds, who shall thereafter be restricted
exclusively to such funds for any claim of whatever nature on, or with respect to, such Bonds.
SECTION 6.14 Continuing Disclosure Regarding the 2004 Bonds.
The District hereby covenants and agrees that it will comply with and carry out all of the
provisions ofthat certain Continuing Disclosure Agreement dated as of March 1,2004 between the
District and Munifinancial (the "Continuing Disclosure Agreement"). Notwithstanding any other
provision of this Indenture, failure of the District to comply with the Continuing Disclosure
Agreement shall not be considered a breach of the provisions ofthis Indenture.
SECTION 6.15. Execution of Documents and Proof of Ownership by Owners.
Any request, consent, declaration or other instrument which this Indenture may require or
permit to be executed by Owners may be in one or more instruments of similar tenor, and shall be
executed by Owners in person or by their attorneys appointed in writing.
Except as otherwise herein expressly provided, the fact and date of the execution by any
Owner or his attorney of such a request, consent, declaration or other instrument, or of a writing
appointing such an attorney, may be proved by the certificate of any notary public or other officer
authorized to take acknowledgments of deeds to be recorded in the state in which he purports to act,
that the person signing such request, declaration or other instrument or writing acknowledged to him
the execution thereof, or by an affidavit of a witness of such execution, duly sworn to before such a
notary public or other officer.
Any request, consent, declaration or other instrument or writing of the Owner of any Bond
shall bind all future Owners of such Bond in respect of anything done or suffered to be done by the
District or the Fiscal Agent in good faith and in accordance therewith.
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SECTION 6.16. Notices to and Demands on District and Fiscal Agent.
Any notice or demand which by any provision of this Indenture is required or pennitted to be
given or served by the Fiscal Agent to or on the District may be given or served by being deposited
postage prepaid (first class, registered or certified) in a post office letter box addressed (until another
address is filed by the District with the Fiscal Agent) as follows:
City ofChula Vista
Finance Department
276 Fourth Avenue
Chula Vista, CA 91910
Attention: Director of Finance
RE: Community Facilities District No. 07-1
(Otay Ranch Village Eleven)
Any notice or demand which by any provision of this Indenture is required or
pennitted to be given or served by the District to or on the Fiscal Agent may be given or served by
being deposited postage prepaid (first class, registered or certified) in a post office letter box
addressed (until another address is filed by the Fiscal Agent with the District) as follows:
U.S. Bank National Association
Attn: Corporate Trust
633 West Fifth Street, 24th Floor
Los Angeles, CA 90071
Reference: Chula Vista CFD
SECTION 6.17. Applicable Law.
This Indenture shall be governed by and enforced in accordance with the laws of the State of
California applicable to contracts made and performed in the State of California.
SECTION 6.18. Payment on Business Day.
In any case where the date of the payment of interest on or of principal (and premium, if any)
of the Bonds or the date fixed for redemption is other than a Business Day, the payment of interest or
principal (and premium, if any) need not be made on such date but may be made on the next
succeeding day which is a Business Day with the same force and effect as if made on the date
required, and no interest shall accrue for the period from and after such date.
SECTION 6.19. Counterparts.
This Indenture may be executed in counterparts, each of which shall be deemed an original.
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ARTICLE VII. ISSUANCE OF PARITY BONDS
SECTION 7.01 Conditions for the Issuance of Parity Bonds.
The District may at any time after the issuance and delivery of the 2004 Bonds issue Parity
Bonds in one or more series payable from Special Tax Revenues and other amounts deposited in the
funds and accounts created under the Indenture (other than in the Project Fund, the Rebate Fund and
the Administrative Expense Fund) and secured by a lien and charge upon such amounts equal to the
lien and charge securing the Outstanding Bonds and any other Parity Bonds theretofore issued under
the Indenture or under any Supplemental Indenture; provided, however, that Parity Bonds may only
be used for the purpose of financing additional Acquisition Costs, Traffic Enhancement
Improvement Costs, Transportation Facilities Costs and/or Public Facilities Costs or refunding a
portion of the Bonds or any Parity Bonds then outstanding. Parity Bonds may be issued subject to the
following additional specific conditions, which are conditions precedent to the issuance of any such
Parity Bonds:
(a) The aggregate principal amount of the 2004 Bonds and all Parity Bonds issued may not
exceed $45,000,000; provided, however, that, notwithstanding the foregoing, Parity Bonds
may be issued at any time to refund Outstanding Bonds where the issuance of such Parity
Bonds results in a reduction of Annual Debt Service on all Outstanding Bonds.
(b) The District shall be in compliance with all covenants set forth in the Indenture and any
Supplemental Indenture then in effect and a certificate of the District to that effect shall have
been filed with the Fiscal Agent; provided, however, that Parity Bonds may be issued
notwithstanding that the District is not in compliance with all such covenants so long as
immediately following the issuance of such Parity Bonds the District will be in compliance
with all such covenants.
(c) The payment of Special Taxes levied on all properties within the District and which are then
owned by the Master Developer, any affiliate of the Master Developer or any entity otherwise
related to the Master Developer must be current.
(d) The issuance of such Parity Bonds shall have been duly authorized pursuant to the Act and
all applicable laws, and the issuance of such Parity Bonds shall have been provided for by a
Supplemental Indenture duly adopted by the District which shall specify the following:
(1) The purpose for which such Parity Bonds are to be issued and the fund or funds into
which the proceeds thereof are to be deposited, including a provision requiring the
proceeds of such Parity Bonds to be applied solely for the purpose. of financing
additional Acquisition Costs, Traffic Enhancement Improvement Costs,
Transportation Facilities Costs or Public Facilities Costs or refunding any
Outstanding Bonds or Parity Bonds, including payment of all costs incidental to or
connected with such refunding;
(2) The authorized principal amount of such Parity Bonds;
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(3) The date and the maturity date or dates of such Parity Bonds; provided that (i) each
maturity date shall fall on a September 1, (ii) all such Parity Bonds oflike maturity
shall be identical in all respects, except as to number, and (iii) fixed serial maturities
or mandatory sinking fund payments, or any combination thereof, shall be established
to provide for the retirement of all such Parity Bonds on or before their respective
maturity dates;
(4) The description of the Parity Bonds, the place of payment thereof and the procedure
for execution and authentication;
(5) The denominations and method of numbering of such Parity Bonds;
(6) The amount and due date of etch mandatory sinking fund payment, if any, for such
Parity Bonds;
(7) The amount, if any, to be deposited from the proceeds of such Parity Bonds in the
Reserve Fund to increase the amount therein to the Reserve Requirement;
(8) The form of such Parity Bonds; and
(9) Such other provisions as are necessary or appropriate and not inconsistent with the
Indenture.
(e) There shall have been received by the Fiscal Agent the following documents or money or
securities, all of such documents dated or certified, as the case may be, as of the date of
delivery of such Parity Bonds by the Fiscal Agent (unless the Fiscal Agent shall accept any of
such documents bearing a prior date):
(1) A certified copy of the Supplemental Indenture authorizing the issuance of such
Parity Bonds;
(2) A written request of the District as to the delivery of such Parity Bonds;
(3) An opinion of Bond Counselor the City Attorney to the effect that (a) the District has
the right and power under the Act to adopt the Supplemental Indentures relating to
such Parity Bonds, and the Indenture and all such Supplemental Indentures have been
duly and lawfully adopted by the District, are in full force and effect and are valid
and binding upon the District and enforceable in accordance with their terms (except
as enforcement may be limited by bankruptcy, insolvency, reorganization and other
similar laws relating to the enforcement of creditors' rights); (b) the Indenture creates
the valid pledge which it purports to create of the Special Tax Revenues and other
amounts as provided in the Indenture, subject to the application thereof to the
purposes and on the conditions permitted by the Indenture; and (c) such Parity Bonds
are valid and binding limited obligations of the District, enforceable in accordance
with their terms (except as enforcement may be limited by bankruptcy, insolvency,
reorganization and other similar laws relating to the enforcement of creditors' rights)
and the terms of the Indenture and all Supplemental Indentures thereto and entitled to
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the benefits of the Indenture and all such Supplemental Indentures, and such Parity
Bonds have been duly and validly authorized and issued in accordance with the Act
(or other applicable laws) and the Indenture and all such Supplemental Indentures;
and a further opinion of Bond Counsel to the effect that, assuming compliance by the
District with certain tax covenants, the issuance of the Parity Bonds will not
adversely affect the exclusion from gross income for federal income tax purposes of
interest on the 2004 Bonds and any Parity Bonds theretofore issued on a tax-exempt
basis, or the exemption from State of California personal income taxation of interest
on the 2004 Bonds and Parity Bonds theretofore issued;
(4) A certificate of an Authorized Representative containing such statements as may be
reasonably necessary to show compliance with the requirements of the Indenture;
(5) A certificate of an Authorized Representative certifYing that the District has received:
A. A certificate from one or more Special Tax Consultants which, when taken
together, certifY that:
i. the amount of the maximum Special Taxes that may be levied
pursuant to the Special Tax RMA pursuant to the Act and the
Indenture and ordinances of the District in each remaining Bond Year
based only on the existing taxable property existing as of the date of
such certificate is at least 1.10 times Annual Debt Service for each
remaining Bond Year on all then Outstanding Bonds and the Parity
Bonds proposed to be issued, provided, however, there shall be
excluded from such calculation the Special Taxes on any parcel then
delinquent in the payment of Special Taxes; and
ii. the maximum Special Tax that may be collected from Developed
Property (as such term is defined in the Special Tax RMA) based on
the expected final buildout within the District is expected to be at
least 1.10 times Annual Debt Service for each remaining Bond Year;
provided, however, that, for purposes of making the certifications required by
this paragraph (5)A, the Special Tax Consultant may rely on reports or
certificates of such other persons as may be acceptable to the District, Bond
Counsel and the underwriter of the proposed Parity Bonds;
B. Except in the case of the issuance of Parity Bonds to refund Outstanding
Bonds, an Appraisal indicating that:
1. the aggregate appraised value of all property within the District
subject to the levy ofthe Special Tax is not less than four (4) times
the aggregate amount of (A) the principal amount of all Outstanding
Bonds and the Parity Bonds proposed to be issued, and (B) the
principal amount of all other bonds or debt (as such term is defined in
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Govemment Code Section 53317(d» secured by special taxes or
fixed lien assessments levied on such properties;
ii. the appraised value of each property within the District subject to the
levy of the Special Taxes and for which a final subdivision map has
not been recorded which would permit the development of such
property is not less than three (3) times the aggregate amount of (A)
the principal amount all Outstanding and the Parity Bonds proposed
to be issued allocable to such property and (B) the principal amount
of all other bonds or debt (as such term is defined in Govemment
Code Section 533l7(d» allocable to such property and which are
secured by special taxes or fixed lien assessments levied on such
property; and
iii. the aggregate appraised value of all property within the District which
is commonly owned and subject to the levy of the Special Tax for
which a building permit has not been issued as of the date of
valuation is not less than three (3) times the aggregate amount of (A)
the principal amount of all Outstanding Bonds and the Parity Bonds
proposed to be issued allocable to such property and (B) the principal
amount of all other bonds or debt (as such term is defined in
Govemment Code Section 53317(d» allocable to such property and
which are secured by special taxes or fixed lien assessments levied on
such properties.
The principal amount of the Bonds and Parity Bonds allocable to property in
(ii) and (iii) above shall be determined by multiplying the sum of the
Outstanding principal amount of the Bonds and the Parity Bonds proposed to
be issued by a fraction the numerator of which is, as of the scheduled date of
issuance of such Parity Bonds, the maximum Special Tax authorized to be
levied on the applicable property divided by the aggregate maximum Special
Tax authorized to be levied on all other Taxable Property (as defined in the
Special Tax RMA) within the District. The principal amount of other bonds
or debt (as such term is defined in Goverrunent Code Section 53317(d»)
allocable to property in (i), (ii) and (iii) above and secured by the levy of
special taxes on such property shall be determined by multiplying the
outstanding principal amount of such bonds or debt by a fraction the
numerator of which is, as of the scheduled date of issuance of the Parity
Bonds, the maximum special tax authorized to be levied on the applicable
property divided by the aggregate maximum special tax authorized to be
levied on all other property subject to the levy of such special tax. The
principal amount of other bonds allocable to property in (i), (ii) and (iii)
above and secured by fixed lien assessments shall be equal to the unpaid
fixed lien assessment levied on such property.
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(6) Such further documents, money and securities as are required by the provisions of the
Indenture and the Supplemental Indenture providing for the issuance of such Parity
Bonds.
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ARTICLE VIII. BOND FORM
SECTION 8.01 Form of 2004 Bonds.
The format of the 2004 Bonds as authorized and to be issued for these proceedings shall be
substantially in the form as set forth in the attached, referenced and incorporated Exhibit "A".
SECTION 8.02 Temporary Bonds.
Any Bonds issued under this Indenture may be initially issued in temporary form
exchangeable for definitive bonds. The Bonds may be issued as one temporary bond with an
attached maturity schedule and interest rate schedule to represent all Bonds. The temporary bond
may be printed, lithographed or typewritten, shall be of such denominations as may be determined by
the District and may contain such references to any of the provisions of this Indenture as may be
appropriate. Every temporary Bond shall be executed by the District in substantially the same
manner as provided in Section 2.06 hereof. If the District issues one or more temporary Bonds, it will
execute and furnish definitive Bonds without delay upon the request of any Owner and thereupon the
temporary bonds may be surrendered for cancellation at the Principal Corporate Trust Office of the
Fiscal Agent, and the District shall deliver in exchange for such temporary bonds an equal aggregate
principal amount of definitive Bonds of the same interest rates and maturities. Until so exchanged,
the temporary bonds shall be entitled to the same benefits under this Indenture as definitive Bonds
issued hereunder.
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ARTICLE IX. EVENT OF DEFAULT
SECTION 9.01 Events of Default.
The followjng events shall be Events of Default under this Indenture.
(a) Default in the due and punctual payment of the principal of any Bond when and as
the same shall become due and payable, whether at maturity as therein expressed, by
proceedings for redemption, by declaration or otherwise.
(b) Default in the due and punctual payment of interest on any Bond when and as such
interest shall become due and payable.
(c) Default by the District in the observance of any of the other covenants, agreements or
conditions on its part in this Indenture or in the Bonds contained, if such default shall
have continued for a period of thirty (30) days after written notice thereof, specifYing
such default and requiring the same to be remedied, shall have been given to the
District by the Fiscal Agent or to the District and the Fiscal Agent by the Owners of
not less than twenty-five percent (25%) in aggregate principal amount of the Bonds
at the time Outstanding; provided that such default (other than a default arising from
nonpayment of the Fiscal Agent's fees and expenses, which must be cured within
such 30-day period unless waived by the Fiscal Agent) shall not constitute an Event
of Default under this Indenture if the District shall commence to cure such default
within said thirty (30) day period and thereafter diligently and in good faith shall cure
such default within a reasonable period of time; or
(d) The filing by the District of a petition or answer seeking reorganization or
arrangement under the federal bankruptcy laws or any other applicable law of the
United States of America, or if a court of competent jurisdiction shall approve a
petition, filed with or without the consent of the District, seeking reorganization
under the federal bankruptcy laws or any other applicable law of the United States of
America, or if, under the provisions of any other law for the relief or aid of debtors,
any court of competent jurisdiction shall assume custody or control of the District or
of the whole or any substantial part of its property.
SECTION 9.02 Application of Special Tax Revenues and Other Funds after Default
If a default in the payment of the Bonds shall occur and be continuing, all Special Tax
Revenues and any other funds then held (except for funds on deposit in the Rebate Fund) or
thereafter received under any of the provisions of this Indenture shall be applied as follows and in the
following order:
A. To the payment of any expenses necessary in the opinion of the District to protect the
interest of the owners ofthe Bonds and payment of reasonable charges and expenses
of the Fiscal Agent (including reasonable fees and disbursements of its counsel)
incurred in and about the performance of its powers duties under this Indenture;
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B. To the payment of the principal of and interest then due with respect to the Bonds
(upon presentation of the Bonds to be paid, and stamping thereon of the payment if
only partially paid, or surrender thereof if fully paid) subject to the provisions of this
Indenture, as follows:
First: To the payment to the persons entitled thereto of all installments of interest
then due in the order of the maturity of such installments, and, if the amount available
shall not be sufficient to pay in full any installment or installments maturing on the
same date, then to the payment thereof ratably, according to the amounts due thereon,
to the persons entitled thereto, without any discrimination or preference; and
Second: To the paymentto the persons entitled thereto of the unpaid principal of any
Bonds which shall have become due, whether at maturity or by call for redemption,
with interest on the overdue principal at the rate borne by the respective Bonds on the
date of maturity of redemption, and if the amount available shall not be sufficient to
pay in full all the Bonds, together with such interest, then to the payment thereof
ratably, according to the amounts of principal due on such date to the persons entitled
thereto, without discrimination or preference.
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IN WITNESS WHEREOF, the District and the Fiscal Agent have executed this Bond Indenture
effective the date first above written.
COMMUNITY FACILITIES DISTRICT NO. 07-1 (OTA Y
RANCH VILLAGE ELEVEN)
By:
DIRECTOR OF FINANCE
U.S. BANK NATIONAL ASSOCIATION
as Fiscal Agent
By:
AUTHORIZED OFFICER
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EXHIBIT "A" - FORM OF BOND
R- - $
United States of America
State of California
CITY OF CHULA VISTA
COMMUNITY FACILITIES DISTRICT NO. 07-1
(OT A Y RANCH VILLAGE ELEVEN)
2004 SPECIAL TAX BONDS
Interest Rate Bond Date CUSIP No.
% ,2004
Registered Owner: Cede & Co.
Principal Amount:
City of Chu1a Vista Community Facilities District No. 07-1 (Otay Ranch Village Eleven) (the
"District"), situated in Chula Vista, California, for value received, hereby promises to pay, solely
from Special Tax Revenues (as hereafter defined), to the registered owner named above, or
registered assigns, on the maturity date set forth above, unless redeemed prior thereto as hereinafter
provided, the principal amount set forth above and to pay interest on such principal amount
semiannually on each March I and September 1, commencing September 1, 2004, (each an "Interest
Payment Date") at the interest rate set forth above, until the principal amount hereof is paid or made
available for payment. The principal of and premium, if any, on this Bond are payable to the
registered owner hereof in lawful money of the United States of America upon presentation and
surrender of this Bond at maturity or redemption at the corporate trust office or agency ofU .S. Bank
National Association (the "Fiscal Agent") in St. Paul, Minnesota (or such other office designated by
the Fiscal Agent). Interest on this Bond is payable from the Interest Payment Date next preceding the
date of its authentication, unless (i) such date of authentication is an Interest Payment Date, in which
event interest shall be payable from such date of authentication, (ii) the date of authentication is after
the 15th calendar day of the month preceding the Interest Payment Date (the "Record Date") but prior
to the immediately succeeding Interest Payment Date, in which event interest shall be payable from
the Interest Payment Date immediately succeeding the date of authentication or (iii) the date of
authentication is prior to the close of business on the first Record Date, in which event interest shall
be payable from the Bond Date above; provided, however, that if at the time of authentication of this
Bond, interest is in default, interest on this Bond shall be payable from the last Interest Payment Date
to which the interest has been paid or made available for payment. Interest on this Bond shall be
payable by check of the Fiscal Agent mailed first class, postage prepaid, to the registered owner
hereof at such registered owner's address as it appears on the registration books maintained by the
Fiscal Agent as of the close of business on the Record Date preceding the Interest Payment Date Of,
upon request in writing prior to the Record Date received from a registered owner of at least
$1,000,000 in aggregate principal amount of the Bonds, by wire transfer in immediately available
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.. _n______'
funds to an account in the United States of America designated by such registered owner.
This Bond is one of a duly authorized issue of the "City of Chula Vista Community Facilities District
No. 07-1 (Otay Ranch Village Eleven) 2004 Special Tax Bonds" (the "2004 Bonds") issued in the
aggregate principal amount of $00,000,000 pursuant to the Mello-Roos Community Facilities Act of
1982, constituting Sections 53311, et seq. of the California Goverrunent Code, as amended (the
"Act") and the City ofChula 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, for the purpose of financing certain public improvements in
and for the District. The creation of the 2004 Bonds and the terms and conditions thereof are
provided for by a Bond Indenture (the "Indenture") dated as of March 1,2004, and this reference
incorporates the Indenture herein, and by acceptance hereof the owner ofthis 2004 Bond assents to
said terms and conditions. All capitalized terms used herein shall have the same meaning as set forth
in the Indenture unless otherwise specified herein. The Indenture is authorized under, this 2004 Bond
is issued under, and both are to be construed in accordance with, the laws of the State of California.
Pursuant to the Act and the Indenture, the principal of, premium, if any, and interest on this 2004
Bond are payable solely from, and shall be secured on a parity with any Parity Bonds (as defined in
the Indenture) subsequently issued pursuant to the Indenture by a pledge of and lien upon, the
proceeds of the Special Tax (as defined in the Indenture) levied and received by the District and the
proceeds of the redemption and sale of property sold as a result of foreclosure of the lien of the
Special Tax to the amount of such lien and penalties thereon (together, the "Special Tax Revenues")
and certain funds held under the Indenture. The 2004 Bonds are not general obligations of the City of
Chula Vista or the District, but are special, limited obligations of the District, and neither the faith
and credit nor the taxing power of the District, the City ofChula Vista, the State of California, or any
political subdivision thereof is pledged to the payment of the 2004 Bonds. Except for the Special Tax
Revenues, no other revenues or taxes are pledged to the payment of the 2004 Bonds.
The District will review the public records of the County of San Diego, California, in connection
with the collection of the Special Taxes and will commence and diligently pursue to completion,
judicial foreclosure proceedings against (i) properties under common ownership with delinquent
Special Taxes in the aggregate of$5,000 or more by October 1 following the close of the Fiscal Year
in which the Special Taxes were due, and (ii) against all properties with delinquent Special Taxes in
the aggregate of$2,500 or more by October 1 following the close of any fiscal year if the amount in
the Reserve Fund is less than the Reserve Requirement.
The 2004 Bonds maturing on and after September I, 2010 may be redeemed at the option of the
District prior to maturity as a whole, or in part on any Interest Payment Date on and after September
1, 2009, from such maturities as are selected by the District, and by lot within a maturity, from any
source of funds, at the following redemption prices (expressed as percentages of the principal
amount of the 2004 Bonds to be redeemed), together with accrued interest to the date of redemption:
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Redemption Date Redemption Price
September 1, 2009 and March 1, 2010 102%
September 1, 2010 and March 1,2011 101%
September 1,2011 and thereafter 100%
The 2004 Bonds are subject to redemption on any Interest Payment Date, prior to maturity, as a
whole or in part on a pro rata basis among maturities, from the amounts deposited in the Redemption
Fund in connection with the prepayment of Special Taxes pursuant to the Special Tax RMA. Such
extraordinary mandatory redemption of the 2004 Bonds shall be at the following redemption prices
(expressed as percentages of the principal amount of the 2004 Bonds to be redeemed), together with
accrued interest thereon to the date of redemption:
Redemption Date Redemption Price
September 1,2004 through March 1,2009 103%
September 1,2009 and March 1, 20IO 102%
September 1,2010 and March 1,2011 101%
September 1, 2011 and thereafter 100%
The 2004 Bonds maturing on September 1, 20- are subject to mandatory sinking fund redemption,
in part, by lot, on September 1 of each year commencing September 1, 20- at a redemption price
equal to the principal amount ofthe 2004 Bonds to be redeemed, plus accrued and unpaid interest
thereon to the date fixed for redemption, without premium, in the aggregate principal amounts and in
the years shown in the following redemption schedule.
Redemption Date Principal
(September 1) Amount
The 2004 Bonds maturing on September 1, 20- are subject to mandatory sinking fund redemption,
in part, by lot, on September I of each year commencing September 1, 20- at a redemption price
equal to the principal amount of the 2004 Bonds to be redeemed, plus accrued and unpaid interest
thereon to the date fixed for redemption, without premium, in the aggregate principal amounts and in
the years shown in the following redemption schedule.
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Redemption Date Principal
(September I) Amount
The 2004 Bonds maturing on September 1, 20- are subject to mandatory sinking fund redemption,
in part, by lot, on September I of each year commencing September 1, 20- at a redemption price
equal to the principal amount ofthe 2004 Bonds to be redeemed, plus accrued and unpaid interest
thereon to the date fixed for redemption, without premium, in the aggregate principal amounts and in
the years shown in the following redemption schedule.
Redemption Date Principal
(September 1) Amount
Notice of redemption with respect to the 2004 Bonds to be redeemed shall be given by the Fiscal
Agent to the registered owner thereof at least 30 days but not more than 45 days prior to the
redemption date, by first class mail, postage prepaid, at their addresses appearing on the Bond
Register.
This 2004 Bond shall be issued only in fully registered form in the denominations of $5,000 or any
integral multiple thereof. No transfer hereof shall be valid for any purpose unless made by the
registered owner, by execution of the form of assignment printed hereon, and authenticated as herein
provided, and the principal hereof, interest hereon and any redemption premium shall be payable
only to the registered owner or to such owner's order. Interest on this 2004 Bond shall be payable to
the person whose name appears upon the Bond Register as the registered owner hereof as of the close
of business on the Record Date or to such person's order. The Fiscal Agent shall require the
registered owner requesting transfer or exchange to pay any tax or other govemmental charge
required to be paid with respect to such transfer or exchange. The Fiscal Agent shall not be required
to register, transfer or make exchanges of (i) 2004 Bonds for a period of 15 days next preceding the
date of any selection of 2004 Bonds to be redeemed or (ii) any 2004 Bonds chosen for redemption.
Unless this 2004 Bond is presented by an authorized representative of The Depository Trust
Company to the District or the Fiscal Agent for registration of transfer, exchange or payment, and
any 2004 Bond issued is registered in the name of Cede & Co. or such other name as requested by an
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authorized representative ofTbe Depository Trust Company and any payment is made to Cede &
Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
TO ANY PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an interest
herein.
This 2004 Bond shall not become valid or obligatory for any purpose until the certificate of
authentication hereon printed shall have been dated and manually signed by the Fiscal Agent.
IT IS HEREBY CERTIFIED, RECITED AND DECLARED that all acts, conditions and things
required by law to exist, happen and be performed precedent to and in the issuance of this 2004 Bond
have existed, happened and been performed in due time, form and manner as required by law, and
that the amount of this 2004 Bond, together with aU other indebtedness of the District, does not
exceed any debt limit prescribed by the laws or Constitution of the State of California.
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IN WITNESS WHEREOF, the City of Chula Vista Community Facilities District No. 07-1 (Otay
Ranch Village Eleven), has caused this 2004 Bond to be dated as of ,2004 and to be
signed by the Mayor of the City of Chula Vista by his or her manual signature and attested by the
City Clerk by his or her manual signature.
City Clerk, City ofChula Vista, for and on Mayor, City of Chula Vista, for and on behalf
behalf of the City of Chula Vista Community of the City ofChula Vista Community
Facilities District No. 07-1 (Otay Ranch Facilities District No. 07-1 (Otay Ranch
Village Eleven) Village Eleven)
CERTIFICATE OF AUTHENTICATION
This is one of the 2004 Bonds described in the within defined Indenture.
Date: U.S. Bank National Association,
as Fiscal Agent
By:
Authorized Officer
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ASSIGNMENT
For value received the undersigned do(es) hereby sell, assign and transfer unto
(Name, Address, and Tax Identification or Social Security Number of Assignee)
the within-mentioned registered 2004 Bond and hereby irrevocably constitute(s) and appoint(s),
attorney, to
transfer the same on the books of the Fiscal Agent with full power of substitution in the premises.
Dated:
Signature
Guaranteed:
NOTICE: Signature must be guaranteed by a NOTICE: The signature on this assignment must
qualified guarantor. correspond with the name as it appears on the
face of the within 2004 Bond in every particular,
without alteration or enlargement or any change
whatsoever
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EXHIBIT "B" - ARBITRAGE REBATE INSTRUCTIONS
This document sets forth instructions regarding the investment and disposition of monies
deposited in various funds and accounts established in connection with the issuance by Community
Facilities District No. 07-1 (Otay Ranch Village Eleven) (the "District") of its 2004 Special Tax
Bonds in aggregate principal amount of $00,000,000 (the "2004 Bonds").
The purpose of these instructions is to provide the District with information necessary to
ensure that the investment of the monies in the funds and accounts described herein will comply with
the arbitrage requirements imposed by the Internal Revenue Code of 1986 and the regulations issued
thereunder.
DEFINITIONS
For purposes of these instructions, the following terms shall have the meanings set forth
below:
Bond Year. The term "Bond Year" means each twelve-month period extending from
September 2 in one calendar year to September 1 of the succeeding calendar year, except in the case
of the initial Bond Year which shall be the period from the Delivery Date to September 1, 2004.
Code. The term "Code" means the Internal Revenue Code of 1986, as amended.
Deliverv Date. The term "Delivery Date" means ,2004.
Excess Investment Earnings. The term "Excess Investment Earnings" means an amount
equal to the sum of:
(I) The excess of:
(a) The aggregate amount earned from the Delivery Date of the 2004 Bonds on
all Nonpurpose Investments in which Gross Proceeds of the 2004 Bonds are invested,
over
(b) The amount that would have been earned ifthe Yield on such Nonpurpose
Investments had been equal to the Yield on the 2004 Bonds, plus
(2) Any income attributable to the excess described in paragraph (I).
In determining Excess Investment Earnings, (i) any gain or loss on the disposition of a
Nonpurpose Investment shall be taken into account and (ii) any amount earned on a bona fide debt
service fund shall not be taken into account.
Gross Proceeds. The term "Gross Proceeds" means the following:
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(1) Original proceeds, i.e.. the amount received by the Fiscal Agent as a result of the sale
of the 2004 Bonds and any amounts actually or constructively received from investing the
amount received from the sale of the 2004 Bonds;
(2) Amounts, other than original proceeds, in the Reserve Fund and in any other fund
established as a reasonably required reserve or replacement fund;
(3) Amounts, other than as specified above, that are reasonably expected to be or are used
to pay debt service with respect to the 2004 Bonds; and,
(4) Amounts received as a result of investing amounts described above.
Investment Property, The term "Investment Property" means any security, obligation, annuity
contract or investment-type property in which Gross Proceeds are invested, excluding, however, the
following:
(a) United States Treasury - State and Local Govemment Series, Demand Deposit
securities, and
(b) Tax-exempt obligations.
For purposes of these Instructions, the term "tax-exempt obligations" shall include only
obligations the interest on which is (i) excludable from gross income for federal income tax purposes
and (ii) not treated as an item of tax preference under Section 57(a)(5) of the Code. The term "tax-
exempt obligation" shall, however, also include stock in a "qualified regulated investment
company," which is a corporation that (i) is a regulated investment company within the meaning of
Section 851(a) of the Code and meets the requirements of Section 852(a) of the Code for the taxable
year; (ii) has only one class of stock authorized and outstanding; (iii) invests all of its assets in tax-
exempt obligations (as defined above) to the extent practicable; and (iv) has at least 98% of its gross
income derived from interest on, or gain from the sale or other disposition of, tax-exempt
obligations, or the weighted average value of its assets is represented by investments in tax-exempt
obligations.
Nonpurpose Investment. The term "Nonpurpose Investment" means any Investment Property
that is acquired with the Gross Proceeds of the 2004 Bonds and is not acquired in order to carry out
the govemmental purpose of the 2004 Bonds.
Purchase Price. The term "Purchase Price", for the purpose of computation of the Yield of
the 2004 Bonds, has the same meaning as the term "Issue Price" in Sections 1273(b) and 1274 of the
Code, and, in general, means the initial offering price to the public (not including bond houses and
brokers, or similar persons or organizations acting in the capacity of underwriters or wholesalers) at
which price a substantial amount of each maturity (at least 10 percent) of the 2004 Bonds was sold.
The term "Purchase Price", for the purpose of computation of Yield of Nonpurpose
Investments means the fair market value of the Nonpurpose Investment on the date of use of Gross
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Proceeds of the 2004 Bonds for acquisition thereof, or iflater, on the date that Investment Property
constituting a Nonpurpose Investment becomes a Nonpurpose Investment of the 2004 Bonds.
Regulations. The term "Regulations" means temporary and permanent Regulations
promulgated under Section 148 of the Code.
Yield. The term "Yield" means that discount rate which, present value of all payments of
principal and interest case of Nonpurpose Investments which require payments in principal and
interest) on a Nonpurpose Investment or on the 2004 Bonds produces an amount equal to the
Purchase Price of such Nonpurpose Investment or the 2004 Bonds, all computed as prescribed in
applicable Regulations. The yield on Nonpurpose Investments must be computed by the use of the
same frequency interval of compounding interest as is used with respect to the 2004 Bonds.
REBATE REOUIREMENT
Calculation of Excess Investment Earnings. No later than the last day of the fifth Bond Year,
each succeeding fifth Bond Year and on the date the last 2004 Bond is discharged, the District shall
calculate or cause to be calculated the Excess Investment Earnings pursuant to the Code and
Regulations and deposit or cause to be deposited into the Rebate Fund the amount calculated to be
Excess Investment Earnings. This calculation shall be made or cause to be made by the District in
accordance with the following rules:
(1) For purposes or calculation of the yield on any investment as required under these
Instructions, the purchase price of the investment will be the fair market price of the
investment on an established market. This means that the District (or the Fiscal Agent acting
at the direction of the District) will not pay a premium and will not accept a lower interest
rate than is usually paid to adjust the yield on an investment.
(2) The market price of certificates of deposit issued by a commercial bank may be
regarded as being at a fair market price if they are determined by reference to the bona fide
bid price quoted by a dealer who maintains an active secondary market in such certificates,
or, if no secondary market exists, by satisfYing subparagraph (3) below relating to investment
agreements.
(3) Investments pursuant to an investment agreement may be regarded as being made at a
fair market price if (i) at least three (3) bids are received on the investment contract from
persons without an interest in the 2004 Bonds; (ii) the winning bidder provides a certificate
that, based on its reasonable expectations on the date the investment agreement is entered
into, investments will not be purchased or sole at a price other than their fair market value;
(iii) the yield on the investment agreement is at least equal to the yield offered under the
highest bid received from a non-interested party; and (iv) the yield on the investment
agreement is at least equal to the yield offered on similar contracts.
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(4) For other investments traded on an established market, the fair market price shall be
the mean between the bid and offered prices for such obligations on the date of purchase or,
if subsequent thereto, the date the investment becomes a Nonpurpose Investment.
(5) Where amounts must be restricted to a certain yield and investments cannot be
purchased on an established market or a bona fide fair market price cannot be established at a
yield that does not exceed the maximum permissible yield, the District may acquire or hold,
or cause the Fiscal Agent to acquire or hold, tax-exempt securities, currency or United States
Treasury Certificates ofIndebtedness, Notes and Certificates - State and Local Government
Series ("SLGs") that yield no more than the maximum permissible yield. SLGs are available
at the Federal Reserve Bank.
Payment to United States. The District shall direct the Fiscal Agent in writing to pay from
the Rebate Fund an amount equal to Excess Investment Earnings (after application of any available
credits) to the United States Treasury in installments with the first payment to be made not later than
thirty (30) days after the end of the fifth 2004 Bond Year, and with subsequent payments to be made
not later than five (5) years after the preceding payment was due. The District shall assure that each
such installment is in an amount equal to at least ninety percent (90%) of the Excess Investment
Earnings with respect to the 2004 Bonds as of the close of the computation period. Not later than
sixty (60) days after the retirement of the 2004 Bonds, the District shall pay from the Rebate Fund to
the United States Treasury one hundred percent (100%) of the theretofore unpaid Excess Investment
Earnings of the 2004 Bonds. In the event that there are any amounts remaining in the Rebate Fund
following the payment required by the preceding sentence, the District shall use such amount for any
lawful purpose of the District. The District shall cause payments to the United States at the address
prescribed by the Regulations as the same may be from time to time in effect with such reports and
statements as may be prescribed by such Regulations. In the event that, for any reason, amounts in
the Rebate Fund are insufficient to make the payments to the United States Treasury which are
required hereunder, the District shall assure that such payments are made to the United States
Treasury on a timely basis from any funds lawfully available therefor.
Further obli~ation of District. The District shall assure that Excess Investment Earnings are
not paid or disbursed except as provided in these instructions. To that end, the District shall assure
that investment transactions are on an arms-length basis. In the event that Nonpurpose Investments
consist of certificates of deposit or investment contracts, investment in such Nonpurpose Investments
shall be made in accordance with the procedures described in applicable Regulations as from time to
time in effect.
MAINTENANCE OF RECORDS. With respect to all Nonpurpose Investments acquired in a fund
or account established and held by the District or the Fiscal Agent, the District or the Fiscal Agent
shall record or cause to be recorded the following information: (i) purchase date, (ii) purchase price,
(iii) information establishing that the purchase price is the fair market value as of such date (e.g, the
published quoted bid by a dealer in such an investment on the date of purchase), (iv) any accrued
interest paid, (v) face amount, (vi) coupon rate, (vii) periodicity of interest payments, (viii)
disposition price, (ix) any accrued interest received, and (x) disposition date. To the extent any
investment becomes a Nonpurpose Investment by becoming Gross Proceeds after it was originally
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purchased, it shall be treated as if it were acquired at its fair market value at the time it becomes a
Nonpurpose Investment. The District shall keep and retain for a period of six (6) years following the
retirement of the 2004 Bonds, records of all determinations made pursuant to these Instructions.
AMENDMENT. In order to comply with the covenants in the Bond Indenture regarding compliance
with the requirements of the Code and the continued exclusion from gross income for purposes of
federal income taxation of interest paid on the 2004 Bonds, the procedures described in these
Instructions may be modified as necessary, without the consent of2004 Bond owners, and based on
the opinion of nationally recognized bond counsel acceptable to the District, to comply with
regulations, rulings, legislation or judicial decisions as may be applicable to the 2004 Bonds. Neither
the Fiscal Agent nor any of its members, agents, officers or employees shall be liable for any action
taken or for its failure to take any action in connection with these Instructions. The District may rely
conclusively on the advice of its Bond Counsel with respect to the requirements of these Instructions.
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EXHIBIT - b Stradling Yocca Carlson & Ranth
Draft of March 2, 2004
$
CITY OF CHULA VISTA
COMMUNITY FACILITIES DISTRICT NO. 07-1
(OTAY RANCH VILLAGE ELEVEN)
2004 SPECIAL TAX BONDS
BOND PURCHASE AGREEMENT
,2004
Community Facilities District No. 07-1
(Otay Ranch Village Eleven)
City ofChula Vista
Chula Vista, California
Ladies and Gentlemen:
Stone & Youngberg LLC (the "Underwriter"), acting not as a fiduciary or agent for you, but
on behalf of itself, offers to enter into this Bond Purchase Agreement with Community Facilities
District No. 07-1 (Otay Ranch Village Eleven) (the "District"), which was formed by the City of
Chula Vista (the "City"), which, upon acceptance, will be binding upon the District and upon the
Underwriter. This offer is made subject to acceptance of it by the District on the date hereof, and if
not accepted will be subject to withdrawal by the Underwriter upon notice delivered to the District at
any time prior to the acceptance hereof by the District.
1. Purchase. Sale and Deliverv of the Bonds.
(a) Subject to the terms and conditions and in reliance upon the representations,
warranties and agreements set forth herein, the Underwriter agrees to purchase from the District, and
the District agrees to sell to the Underwriter, all (but not less than all) of the Community Facilities
District No. 07-1 (Otay Ranch Village Eleven) 2004 Special Tax Bonds (the "Bonds") in the
aggregate principal amount specified in Exhibit A hereto. The Bonds shall be dated the Closing Date
(hereinafter defined), and bear interest (payable semiannually on March I and September 1 in each
year, commencing September I, 2004) at the rates per annum and maturing on the dates and in the
amounts set forth in Exhibit A hereto. The purchase price for the Bonds shall be the amount
specified as such in Exhibit A hereto.
The Bonds shall be substantially in the form described in, shall be issued and secured under
the provisions of, and shall be payable and subject to redemption as provided in, the Bond Indenture
(the "Bond Indenture") by and between the District and U.S. Bank National Association, as Fiscal
Agent (the "Fiscal Agent"), dated as of March 1, 2004, approved in Resolution No. 2004--
adopted by the City Council of the City, as the legislative body of the District, on ,
2004 (the "Resolution of Issuance"). The Bonds and interest thereon will be payable from a special
tax (the "Special Tax") levied and collected on the taxable land within the District in accordance with
Resolution No. 2003-461 adopted by the City Council on November II, 2003 (the "Resolution of
Formation"), and Ordinance No. 2940 enacted on November 25, 2003 (the "Special Tax
Ordinance"). Proceeds of the sale of the Bonds will be used in accordance with the Bond Indenture
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and the Mello-Roos Community Facilities Act of 1982, as amended (Sections 53311 !á~. of the
Government Code of the State of California) (the "Act") and the City of Chula Vista Community
Facilities District Ordinance ("Authorizing Ordinance" and together with the Act, the "Law"),
to acquire certain public improvements described in the Resolution of Formation. The Resolution of
Issuance, the Resolution of Formation, the Special Tax Ordinance and the Authorizing Ordinance
and all other resolutions adopted with respect to the formation of the District and the issuance of the
Bonds are collectively referred to herein as the "District Resolutions."
(b) At or prior to the acceptance hereof by the District, the District shall cause to
be delivered to the Underwriter (i) a Certificate of Representations and Warranties of the City, dated
as of the date of this Bond Purchase Agreement (the "City Certificate"), in substantially the form
attached hereto as Exhibit B, with only such changes therein as shall have been accepted by the
Underwriter, and (ii) a certificate executed by Brookfield Shea Otay, LLC (the "Developer"), dated
on or prior to the date of this Bond Purchase Agreement and addressed to the Underwriter and the
District deeming the information in the Preliminary Official Statement (as defined in (c) below)
relating to the Developer final and accurate as of its date.
(c) Subsequent to its receipt of a certificate from the District deeming the
Preliminary Official Statement for the Bonds, dated , 2004 (which Preliminary Official
Statement, together with the cover page and all appendices thereto, is herein collectively referred to
as the "Preliminary Official Statement" and which, as amended with the prior approval of the
Underwriter and executed by the District, will be referred to herein as the "Official Statement"), final
for purposes of Rule 15c2-12 of the Securities and Exchange Commission ("Rule 15c2-l2"), the
Underwriter has distributed copies of the Preliminary Official Statement. The District hereby ratifies
the use by the Underwriter of the Preliminary Official Statement and authorizes the Underwriter to
use and distribute the final Official Statement dated the date hereof (including all information
previously permitted to have been omitted by Rule 15c2-12 and any supplements and amendments
thereto as have been approved by the District as evidenced by the execution and delivery of such
document by an officer ofthe District (the "Official Statement"), the Bond Indenture, the Continuing
Disclosure Agreement of the District (the "District Disclosure Agreement"), this Bond Purchase
Agreement, any other documents or contracts to which City or the District is a party, and all
information contained therein, and all other documents, certificates and statements furnished by the
City and the District to the Underwriter in connection with the transactions contemplated by this
Bond Purchase Agreement, in connection with the offer and sale of the Bonds by the Underwriter.
The Underwriter hereby agrees to deliver a copy ofthe Official Statement to a national repository on
or before the Closing Date (as hereinafter defined) and to each investor that purchases any of the
Bonds prior to the "end of the underwriting period" (as such term is defined in Section 2(g) below)
and otherwise to comply with all applicable statutes and regulations in connection with the offering
and sale of the Bonds, including, without limitation, MSRB Rule G-32 and Rule l5c2-l2.
(d) At 8:00 A.M., Pacific Daylight Time, on ,2004, or at such earlier
time or date as shall be agreed upon by the Underwriter and the District (such time and date being
herein referred to as the "Closing Date"), the District will deliver (i) to The Depository Trust
Company in New York, New York, the Bonds in definitive form (all Bonds being in book-entry form
registered in the name of Cede & Co. and having the CUSIP numbers assigned to them printed
thereon), duly executed by the officers of the District as provided in the Bond Indenture, and (ii) to
the Underwriter, at the offices of Best Best & Krieger LLP, Bond Counsel in San Diego, California,
or at such other place as shall be mutually agreed upon by the District and the Underwriter, the other
documents herein mentioned; and the Underwriter shall accept such delivery and pay the purchase
2
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price of the Bonds in immediately available funds (such delivery and payment being herein referred
to as the "Closing"). Notwithstanding the foregoing, the Underwriter may, in its discretion, accept
delivery of the Bonds in temporary fonn upon making arrangements with the District which are
satisfactory to the Underwriter relating to the delivery of the Bonds in definitive fonn.
2. ReDresentations. Warranties and Agreements of the District. The District represents,
warrants and covenants to and agrees with the Underwriter that:
(a) The City is duly organized and validly existing as a charter city duly
organized and validly existing under the Constitution and laws of the State of California and has duly
authorized the fonnation of the District pursuant to the Resolution of Fonnation and the Law. The
City Council as the legislative body of the City and the District has duly adopted the District
Resolutions, and has caused to be recorded in the real property records of the County of San Diego, a
Notice of Special Tax Lien (the "Notice of Special Tax Lien") (such District Resolutions and Notice
of Special Tax Lien being collectively referred to herein as the "Fonnation Documents"). Each of
the Fonnation Documents remains in full force and effect as of the date hereof and has not been
amended. The District is duly organized and validly existing as a community facilities district under
the laws of the State of California. The City has, and at the Closing Date will have, as the case may
be, full legal right, power and authority to execute, deliver and perfonn on behalf of itself and the
District its obligations under that certain Acquisition/Financing Agreement between the City and the
Developer, together with all amendments thereto (the "Funding Agreement") and to carry out all
transactions contemplated by the Funding Agreement. The District has, and at the Closing Date will
have, as the case may be, full legal right, power and authority (i) to execute, deliver and perfonn its
obligations under this Bond Purchase Agreement, the District Disclosure Agreement, and the Bond
Indenture, and to carry out all transactions contemplated by each of such agreements, (ii) to issue,
sell and deliver the Bonds to the Underwriter pursuant to the Resolution of Issuance and Bond
Indenture as provided herein, and (iii) to carry out, give effect to and consummate the transactions
contemplated by the Fonnation Documents and by the Bond Indenture, this Bond Purchase
Agreement, the District Disclosure Agreement and the Funding Agreement (collectively, the
"District Documents") and the Official Statement;
(b) The District and the City, as applicable, each has complied, and will at the
Closing Date be in compliance, in all material respects with the Fonnation Documents and the
District Documents, and any immaterial noncompliance by the District and the City, if any, will not
impair the ability of the District and the City, as applicable, to carry out, give effect to or
consummate the transactions contemplated by the foregoing. From and after the date of issuance of
the Bonds, the District will continue to comply with the covenants of the District contained in the
District Documents;
(c) The City Council has duly and validly: (i) adopted the District Resolutions,
(ii) called, held and conducted in accordance with all requirements of the Law the elections within
the District to approve the levy of the Special Tax, the facilities eligible for financing and the
issuance of the Bonds and recorded the Notice of Special Tax Lien which established a continuing
lien on the land within the District securing the Special Tax, (iii) authorized and approved the
execution and delivery of the Bonds and the District Documents, (iv) authorized the preparation and
delivery of the Preliminary Official Statement and the Official Statement, and (v) authorized and
approved the perfonnance by the District of its obligations contained in, and the taking of any and all
action as may be necessary to carry out, give effect to and consummate the transactions contemplated
by, each of the District Documents (including, without limitation, the collection ofthe Special Tax),
3
Error! Unknown document property name.
and at the Closing Date the Formation Documents will be in full force and effect and the District
Documents and the Bonds will constitute the valid, legal and binding obligations of the District and
(assuming due authorization, execution and delivery by other parties thereto, where necessary) will
be enforceable in accordance with their respective terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of creditors' rights in general
and to the application of equitable principles if equitable remedies are sought;
(d) To the best of the District's knowledge, neither the District nor the City is in
breach of or default under any applicable law or administrative rule or regulation of the State of
California (the "State"), or of any department, division, agency or instrumentality thereof, or under
any applicable court or administrative decree or order, or under any loan agreement, note, resolution,
bond indenture, contract, agreement or other instrument to which the District or the City is a party or
is otherwise subject or bound, a consequence of which could be to materially and adversely affect the
performance by the District of its obligations under the Bonds, the Formation Documents or the
District Documents, and compliance with the provisions of each thereof, will not conflict with or
constitute a breach of or default under any applicable law or administrative rule or regulation of the
State, or of any department, division, agency or instrumentality thereof, or under any applicable court
or administrative decree or order, or a material breach of or default under any loan agreement, note,
resolution, trust agreement, contract, agreement or other instrument to which the District or the City,
as the case may be, is a party or is otherwise subject or bound;
(e) Except for compliance with the blue sky or other states securities law filings,
as to which the District makes no representations, all approvals, consents, authorizations, elections
and orders of or filings or registrations with any State governmental authority, board, agency or
commission having jurisdiction which would constitute a condition precedent to, or the absence of
which would materially adversely affect, the performance by the District of its obligations hereunder,
or under the Formation Documents or the District Documents, have been obtained and are in full
force and effect;
(t) The Special Tax constituting the security for the Bonds has been duly and
lawfully authorized and may be levied under the Law and the Constitution and other applicable laws
of the State of California, and such Special Tax, when levied, will constitute a valid and legally
binding continuing lien on the properties on which it has been levied;
(g) Until the date which is twenty-five (25) days after the "end of the
underwriting period" (as hereinafter defined), if any event shall occur of which the District is aware,
as a result of which it may be necessary to supplement the Official Statement in order to make the
statements in the Official Statement, in light of the circumstances existing at such time, not
misleading, the District shall forthwith notify the Underwriter of any such event of which it has
knowledge and shall cooperate fully in furnishing any information available to it for any supplement
to the Official Statement necessary, in the Underwriter's opinion, so that the statements therein as so
supplemented will not be misleading in light of the circumstances existing at such time and the
District shall promptly furnish to the Underwriter a reasonable number of copies of such supplement.
As used herein, the term "end of the underwriting period" means the later of such time as (i) the
District delivers the Bonds to the Underwriter, or (ii) the Underwriter does not retain, directly or as a
member of an underwriting syndicate, an unsold balance of the Bonds for sale to the public. Unless
the Underwriter gives notice to the contrary, the "end ofthe underwriting period" shall be deemed to
be the Closing Date. Any notice delivered pursuant to this provision shall be written notice delivered
4
Error! Unknown docnmeot property name.
to the District at or prior to the Closing Date, and shall specifY a date (other than the Closing Date) to
be deemed the "end of the underwriting period";
(h) The Bond Indenture creates a valid pledge of the Special Taxes and the
moneys in the Special Tax Fund, the Bond Service Fund, the Redemption Fund and the Reserve
Fund established pursuant to the Bond Indenture, including the investments thereof, subject in all
cases to the provisions of the Bond Indenture permitting the application thereof for the purposes and
on the terms and conditions set forth therein;
(i) Except as disclosed in the Official Statement, no action, suit, proceeding,
inquiry or investigation, at law or in equity, before or by any court, regulatory agency, public board
or body is pending or, to the best knowledge of the District, threatened (i) which would materially
adversely affect the ability of either the City or the District to perform its obligations under the
Bonds, the Formation Documents or the District Documents, or (ii) seeking to restrain or to enjoin
the development of the land within the District, the issuance, sale or delivery of the Bonds, the
application of the proceeds thereof in accordance with the Bond Indenture or the Funding
Agreement, or the collection or application of the Special Tax pledged or to be pledged to pay the
principal of and interest on the Bonds, or the pledge thereof, or in any way contesting or affecting the
validity or enforceability of the Bonds, the Formation Documents, the District Documents, the land
use approvals granted by the City with respect to the land within the District, any other instruments
relating to the development of any of the property within the District, or any action contemplated by
any of said documents, or (iii) in any way contesting the completeness or accuracy of the Preliminary
Official Statement or the Official Statement or the powers or authority of the District with respect to
the Bonds, the Formation Documents, the District Documents, or any action of the District
contemplated by any of said documents; nor is there any action pending or, to the best knowledge of
the District, threatened against the City or the District which alleges that interest on the Bonds is not
excludable from gross income for federal income tax purposes or is not exempt from California
personal income taxation;
U) The District will furnish such information, execute such instruments and take
such other action in cooperation with the Underwriter as the Underwriter may reasonably request in
order for the Underwriter to quality the Bonds for offer and sale under the "Blue Sky" or other
securities laws and regulations of such states and other jurisdictions of the United States as the
Underwriter may designate; provided, however, the District shall not be required to register as a
dealer or a broker of securities or to consent to service of process in connection with any blue sky
filing;
(k) Any certificate signed by any authorized official of the City and the District
authorized to do so shall be deemed a representation and warranty to the Underwriter as to the
statements made therein;
(I) The District will apply the proceeds of the Bonds in accordance with the
Bond Indenture and as described in the Official Statement;
(m) The information contained in the Preliminary Official Statement (other than
inforrnation therein relating to The Depository Trust Company and its Book-Entry-Only System, as
to which no view is expressed) was as of the date thereof, and the information contained in the
Official Statement (other than inforrnation therein relating to The Depository Trust Company and its
Book-Entry-Only System, as to which no view is expressed) as of its date was, and on the Closing
5 1-~o
Ermr! lInknown docnment property name.
Date shall be, true and correct in all material respects and such infoID1ation does not and shall not
contain any untrue or misleading statement of a material fact or omit to state any material fact
necessary to make the statements therein, in light ofthe circumstances under which they were made,
not misleading;
(n) The District shall use its best efforts to cause the Developer to cooperate with
the Underwriter in the preparation of the Official Statement; provided, however, that such efforts
shall not include the expenditure of funds by the District;
(0) The Preliminary Official Statement heretofore delivered to the Underwriter
was deemed final by the District as of its date, except for the omission of such infoID1ation as is
permitted to be omitted in accordance with paragraph (b)(1) of Rule 15c2-12. The District hereby
covenants and agrees that, within seven (7) business days from the date hereof, the District shall
cause a final printed foID1 of the Official Statement to be delivered to the Underwriter in a quantity
mutually agreed upon by the Underwriter and the District so that the Underwriter may comply with
paragraph (b)(4) of Rule 15c2-l2 and Rules G-12, G-15, 0-32 and G-36 of the Municipal Securities
Rulemaking Board;
(P) Neither the City nor the District is in default with respect to any reporting
obligation that it has undertaken under Rule l5c2-l2 for any indebtedness issued by it.
3. Conditions to the Obligations of the Underwriter. The obligations of the Underwriter
to accept delivery of and pay for the Bonds on the Closing Date shall be subject, at the option of the
Underwriter, to the accuracy in all material respects ofthe representations and warranties on the part
of the District contained herein, as of the date hereof and as of the Closing Date, to the accuracy in
all material respects of the statements of the officers and other officials of the City and the District
made in any certificates or other documents furnished pursuant to the provisions hereof, to the
perfoID1ance by the District of its obligations to be perfoID1ed hereunder at or prior to the Closing
Date and to the following additional conditions:
(a) At the Closing Date, the FoID1ation Documents and the District Documents
shall be in full force and effect, and shall not have been amended, modified or supplemented, except
as may have been agreed to in writing by the Underwriter, and there shall have been taken in
connection therewith, with the issuance of the Bonds and with the transactions contemplated thereby
and by this Bond Purchase Agreement, all such actions as, in the opinion of Best, Best & Krieger
LLP, Bond Counsel for the District, and Stradling Yocca Carlson & Rauth, a Professional
Corporation, counsel to the Underwriter, shall be necessary and appropriate;
(b) Between the date hereof and the Closing Date, the market price or
marketability of the Bonds at the initial offering prices set forth in the Official Statement shall not
have been materially adversely affected, in the judgment of the Underwriter (evidenced by a written
notice to the District terminating the obligation of the Underwriter to accept delivery of and pay for
the Bonds), by reason of any of the following:
(1) legislation introduced in or enacted (or resolution passed) by the
Congress of the United States of America or recommended to the Congress by the President of the
United States, the Department of the Treasury, the Internal Revenue Service, or any member of
Congress, or favorably reported for passage to either House of Congress by any committee of such
House to which such legislation had been referred for consideration or a decision rendered by a court
6 q
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established under Article III of the Constitution ofthe United States of America or by the Tax Court
of the United States of America, or an order, ruling, regulation (final, temporary or proposed), press
release or other form of notice issued or made by or on behalf of the Treasury Department or the
Internal Revenue Service of the United States of America, with the purpose or effect, directly or
indirectly, of imposing federal income taxation upon the interest as would be received by the holders
of the Bonds beyond the extent to which such interest is subject to taxation as of the date hereof;
(2) legislation introduced in or enacted (or resolution passed) by the
Congress of the United States of America, or an order, decree or injunction issued by any court of
competent jurisdiction, or an order, ruling, regulation (final, temporary or proposed), press release or
other form of notice issued or made by or on behalf of the Securities and Exchange Commission, or
any other governmental agency having jurisdiction ofthe subject matter, to the effect that obligations
of the general character of the Bonds, including any or all underlying arrangements, are not exempt
from registration under or other requirements of the Securities Act of 1933, as amended, or that the
Bond Indenture is not exempt from qualification under or other requirements of the Trust Indenture
Act of 1939, as amended, or that the issuance, offering or sale of obligations of the general character
of the Bonds, including any or all underwriting arrangements, as contemplated hereby or by the
Official Statement or otherwise is or would be in violation of the federal securities laws, rules or
regulations as amended and then in effect;
(3) any amendment to the federal or California Constitution or action by
any federal or California court, legislative body, regulatory body or other authority materially
adversely affecting the tax status of the District, its property, income, securities (or interest thereon),
the validity or enforceability of the Special Tax or the ability of the City or the District to construct or
acquire the improvements as contemplated by the Formation Documents, the District Documents or
the Official Statement; or
(4) any event occurring, or information becoming known, which, in the
judgment of the Underwriter, makes untrue in any material respect any statement or information
contained in the Official Statement, or results in the Official Statement containing any untrue
statement of a material fact or omitting to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under which they were made,
not misleading.
(5) any national securities exchange, the Comptroller of the Currency, or
any other governmental authority, shall impose as to the Bonds or obligations of the general
character of the Bonds, any material restrictions not now in force, or increase materially those now in
force, with respect to the extension of credit by, or the charge to the net capital requirements of, the
Underwriter; or
(6) the declaration of a general banking moratorium by federal, New
York or California authorities;
(7) there shall have occurred any material outbreak or escalation of
hostilities or other calamity or crisis the effect of which on the financial markets of the United States
is such as to make it impracticable, in the judgment of the Underwriter, following consultation with
the City, to sell the Bonds; or
7 t¡- ~;Þ
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(8) any proceeding shall have been commenced or be threatened in
writing by the Securities and Exchange Commission against the City.
(c) On the Closing Date, the Underwriter shall have received counterpart
originals or certified copies of the following documents, in each case satisfactory in form and
substance to the Underwriter:
(1) The Formation Documents and the District Documents, together with
a certificate dated as of the Closing Date of the City Clerk to the effect that each Formation
Document is a true, correct and complete copy of the one duly adopted by the City Council;
(2) The Official Statement;
(3) An unqualified approving opinion for the Bonds, dated the Closing
Date and addressed to the City, of Best Best & Krieger LLP, Bond Counsel for the District, in the
form attached to the Preliminary Official Statement as Appendix H, and an unqualified opinion of
such counsel, dated the Closing Date and addressed to the Underwriter, to the effect that such
approving opinion addressed to the District may be relied upon by the Underwriter to the same extent
as if such opinion was addressed to it;
(4) A supplemental opinion, dated the Closing Date and addressed to the
Underwriter, of Best Best & Krieger LLP, Bond Counsel for the District, to the effect that (i) the
District Documents have been duly authorized, executed and delivered by the City or the District, as
applicable, and, assuming such agreements constitute valid and binding obligations ofthe other
parties thereto, constitute the legally valid and binding agreements of the City or the District, as
applicable, enforceable in accordance with their terms, except as enforcement may be limited by
bankruptcy, moratorium, insolvency or other laws affecting creditor's rights or remedies and by
general principles of equity (regardless of whether such enforceability is considered in equity or at
law); (ii) the Bonds are not subject to the registration requirements of the Securities Act of 1933, as
amended, and the Bond Indenture is exempt from qualification under the Trust Indenture Act of
1939, as amended; (iii) the information contained in the Official Statement on the cover and under
the captions "INTRODUCTION," 'THE 2004 BONDS," "SOURCES OF PAYMENT FOR THE
2004 BONDS," "THE COMMUNITY FACILITIES DISTRICT," "SPECIAL RISK FACTORS-
Proposition 218," "TAX MATTERS" and Appendices E and H thereof, insofar as it purports to
summarize certain provisions of the Law, the Formation Documents, the Bonds and the Bond
Indenture and the exclusion from gross income for federal income tax purposes and exemption from
State of California personal income taxes of interest on the Bonds, presents a fair and accurate
summary of such provisions; (iv) the Special Tax has been duly and validly authorized in accordance
with the provisions of the Law and, except as the same may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or other laws relating to or affecting
generally the enforcement of creditors' rights, by equitable principles and by the exercise of judicial
discretion in appropriate cases, a lien to secure payment of Special Taxes has been imposed on all
non-exempt property in the District; and (v) Bond Counsel has examined the proceedings regarding
the levy of the Special Tax, including without limitation, the Notice of Special Tax Lien which was
recorded for the District pursuant to Section 3114.5 of the California Streets and Highways Code (the
"Code") in the official records of the County of San Diego on November 25,2003, and based on
such examination, and its review of applicable laws of the State of California, as of the date of such
opinion, Bond Counsel is of the opinion that (a) pursuant to Section 53339.8(a) of the California
Government Code, all non-exempt property in the District became subject to the levy of the Special
8
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Taxes as of the date of the adoption of the Resolution of Formation, (b) pursuant to Section 53340 of
the California Government Code, each levy on such non-exempt property is secured by a continuing
lien; and (c) any delinquent Special Taxes levied on such non-exempt property will be subject to
foreclosure pursuant to Section 53356. I of the California Government Code;
(5) An opinion, dated the Closing Date and addressed to the Underwriter,
of Stradling Yocca Carlson & Rauth, a Professional Corporation, counsel for the Underwriter, to the
effect that (i) the Bonds are exempt from the registration requirements of the Securities Act of 1933,
as amended, and the Bond Indenture is exempt from qualification under the Trust Indenture Act of
1939, as amended; and (ii) without having undertaken to determine independently the accuracy or
completeness of the statements contained in the Official Statement, but on the basis of their
participation in conferences with representatives of the City, Bond Counsel, representatives ofthe
Underwriter and others, and their examination of certain documents, nothing has come to their
attention which has led them to believe that the Official Statement as of its date and as of the Closing
Date contained any untrue statement of a material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading (except that no opinion or belief need be expressed as any
financial or statistical data, appraisals, assessed values or projections or information regarding the
book-entry system contained in the Official Statement);
(6) A certificate, dated the Closing Date and signed by an authorized
representative of the District, ratifYing the use and distribution by the Underwriter of the Preliminary
Official Statement and the Official Statement in connection with the offering and sale of the Bonds;
and certifYing that (i) the representations and warranties of the District contained in Section 2 hereof
are true and correct in all material respects on and as of the Closing Date with the same effect as if
made on the Closing Date; (ii) to the best of his or her knowledge, no event has occurred since the
date of the Official Statement affecting the matters contained therein which should be disclosed in
the Official Statement for the purposes for which it is to be used in order to make the statements and
information contained in the Official Statement not misleading in any material respect, and the
Bonds, the Formation Documents and the District Documents conform as to form and tenor to the
descriptions thereof contained in the Official Statement; (iii) the District has complied with all the
agreements and satisfied all the conditions on its part to be performed or satisfied under the
Formation Documents, the District Documents and the Official Statement at or prior to the Closing
Date; and (iv) the representations and warranties of the City contained in the City Certificate are true
and correct in all material respects on and as of the Closing Date, with the same effect as if made on
the Closing Date, except that all references therein to the Preliminary Official Statement shall be
deemed to be references to the Official Statement;
(7) An opinion, dated the Closing Date and addressed to the Underwriter,
of the City Attorney, to the effect that (i) to the best of his or her knowledge and except as disclosed
in the Official Statement, no action, suit, proceeding, inquity or investigation, at law or in equity,
before or by any court, regulatory agency, public board or body is pending or threatened which
would materially adversely affect the ability ofthe District to perform its obligations under the
Bonds, the Formation Documents or the District Documents, or seeking to restrain or to enjoin the
development of property within the District, the issuance, sale, delivery of the Bonds or the exclusion
from gross income for federal income tax purposes or State of California personal income taxes of
interest on the Bonds, or the application of the proceeds thereof in accordance with the Bond
Indenture, or the collection or application of the Special Tax to pay the principal of and interest on
the Bonds, or in any way contesting or affecting the validity or enforceability of the Bonds, the
9 1- ~tJptf
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Formation Documents or the District Documents or the accuracy of the Official Statement, or any
action of the City or the District contemplated by any of said documents; (ii) the City is duly
organized and validly existing as a charter city under the Constitution and laws of the State of
California and the District is duly organized and validly existing as a community facilities district
under the laws of the State of California, and the District has full legal right, power and authority to
issue the Bonds and each of the City and the District has the full legal right, power and authority to
perform all of its obligations under the Formation Documents and the District Documents; (iii) the
City and the District have obtained all approvals, consents, authorizations, elections and orders of or
filings or registrations with any State governmental authority, board, agency or commission having
jurisdiction which constitute a condition precedent to the levy of the Special Tax, the issuance of the
Bonds or the performance by the District of its obligations thereunder or under the Bond Indenture,
except that no opinion need be expressed regarding compliance with blue sky or other securities laws
or regulations, whatsoever; (iv) the City Council has duly and validly adopted the District
Resolutions at meetings of the City Council which were called and held pursuant to law and with all
public notice required by law and at which a quorum was present and acting throughout, and the
District Resolutions are now in full force and effect and have not been amended; and (v) each of the
City and the District has duly authorized, executed and delivered the District Documents to which it
is a party and the District has duly authorized and executed the Bonds and has duly authorized the
preparation and delivery of the Official Statement, and the District Documents and the Bonds
constitute legal, valid and binding agreements of the District and the City, as applicable, enforceable
in accordance with their respective terms, subject to bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights in general and to the
application of equitable principles if equitable remedies are sought and to the limitations on legal
remedies against cities in the State of California;
(8) A certificate dated the Closing Date and addressed to the Underwriter,
the City and the District, from the Developer, in substantially the form attached hereto as Exhibit C,
and an executed copy of the Continuing Disclosure Agreement of the Developer (the "Continuing
Disclosure Agreement") in the form attached as Appendix G to the Official Statement;
(9) An opinion dated the Closing Date and addressed to the Underwriter,
the City and the District, by counsel to the Developer, substantially in the form attached hereto as
Exhibit D;
(10) A certificate dated the Closing Date from McGill, Martin Self, Inc.
addressed to the City, the District and the Underwriter to the effect that (i) the Special Tax if
collected in the maximum amounts permitted pursuant to the Rate and Method of Apportionment of
Special Taxes as of the Closing Date would generate at least 110% of the maximum annual debt
service payable with respect to the Bonds, based on such assumptions and qualifications as shall be
acceptable to the Underwriter, and (ii) all information supplied by it for use in the Official Statement
is true and correct as of the date ofthe Official Statement and as ofthe Closing Date, and does not
contain any untrue statement of a material fact or omit to state a material fact necessary in order to
make the statements therein, in light of the circumstances under which they were made, not
misleading;
(II) A letter dated the Closing Date from Bruce W. Hull & Associates,
Inc. (the "Appraiser") addressed to the Underwriter, the District and the City to the effect that it has
prepared the appraisal report (the "Appraisal") with respect to the property located within the District
and that (a) the Appraisal, in the form set forth in Appendix C to the Official Statement, may be
10
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included in the Preliminary Official Statement and the Official Statement, (b) it has reviewed the
Official Statement and the Appraisal included in Appendix C and the information in the Official
Statement referring to the Appraisal is accurate and does not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading, and (c) no events or occurrences
have been ascertained by it or have come to its attention that would materially change the opinion set
forth in the Appraisal;
(12) A letter from The Meyers Group dated the Closing Date addressed to
the Underwriter, the City and the District to the effect that it has prepared the market absorption
study (the "Study") referred to in the Official Statement and that (a) the summary of the Study in
Appendix B thereto (the "Summary") may be included in the Preliminary Official Statement and the
Official Statement, (b) it has reviewed the Official Statement and the Summary and the information
regarding the Study and the projected absorption ofthe proposed development included in the
Official Statement is accurate and does not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading, and (c) no events or occurrences have been ascertained
by it or have come to its attention that would materially change the opinion set forth in the Study;
(13) A certificate of the District dated the Closing Date, in a form
acceptable to Bond Counsel, that the Bonds are not arbitrage bonds within the meaning of Section
148 of the Internal Revenue Code of 1986, as amended;
(14) A certificate of the Fiscal Agent and an opinion of counsel to the
Fiscal Agent dated the Closing Date and addressed to the City, the District and the Underwriter to the
effect that it has duly authorized the execution and delivery of the Bond Indenture and the
Continuing Disclosure Agreement and that each of such documents is a valid and binding obligation
of the Fiscal Agent enforceable in accordance with its terms; and
(15) Such additional legal opinions, certificates, instruments and other
documents as the Underwriter may reasonably request to evidence the truth and accuracy, as of the
date hereof and as of the Closing Date, ofthe statements and information contained in the
Preliminary Official Statement and the Official Statement, of the District's representations and
warranties contained herein and the due performance or satisfaction by the District at or prior to the
Closing of all agreements then to be performed and all conditions then to be satisfied by the District
in connection with the transactions contemplated hereby and by the Official Statement.
If the District shall be unable to satisfy the conditions to the obligations of the Underwriter to
purchase, accept delivery of and pay for the Bonds contained in this Bond Purchase Agreement, or if
the obligations of the Underwriter to purchase, accept delivery of and pay for the Bonds shall be
terminated for any reason permitted by this Bond Purchase Agreement, this Bond Purchase
Agreement shall terminate and neither the Underwriter nor the District shall be under any further
obligation hereunder, except that the respective obligations of the District and the Underwriter set
forth in Section 5 and Section 6 hereof shall continue in full force and effect.
II
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4. Conditions of the District's Obligations. The District's obligations hereunder are
subject to the Underwriter's performance of its obligations hereunder, and are also subject to the
following conditions:
(a) As ofthe Closing Date, no litigation shall be pending or, to the knowledge of
the duly authorized officer of the District executing the certificate referred to in Section 3(c)(6)
hereof, threatened, to restrain or enjoin the issuance or sale of the Bonds or in any way affecting any
authority for or the validity of the Bonds, the Formation Documents, the District Documents or the
existence or powers of the City or the District; and
(b) As of the Closing Date, the District shall receive the approving opinions of
Bond Counsel referred to in Section 3(c)(3) and (4) hereof, dated as of the Closing Date, addressed to
the City, the District and the Underwriter.
5. Expenses. Whether or not the Bonds are delivered to the Underwriter as set forth
herein:
(a) The Underwriter shall be under no obligation to pay, and the District shall
payor cause to be paid (out of any legally available funds of the District) all expenses incident to the
performance of the District's obligations hereunder, including, but not limited to, the cost of printing
and delivering the Bonds to the Underwriter, the cost of preparation, printing, distribution and
delivery of the Bond Indenture, the Preliminary Official Statement, the Official Statement and all
other agreements and documents contemplated hereby (and drafts of any thereof) in such reasonable
quantities as requested by the Underwriter; and the fees and disbursements of the Fiscal Agent for the
Bonds, Bond Counsel, financial advisor to the City, counsel to the Underwriter in the amount of
$ , and any accountants, engineers or any other experts or consultants the District has
retained in connection with the Bonds including reimbursements to the Developer for advances of
such amounts; and
(b) The District shall be under no obligation to pay, and the Underwriter shall
pay, any fees of the California Debt and Investment Advisory Commission, the cost of preparation of
any "blue sky" or legal investment memoranda and this Bond Purchase Agreement; expenses to
qualifY the Bonds for sale under any "blue sky" or other state securities laws; and all other expenses
incurred by the Underwriter in connection with its public offering and distribution of the Bonds
(except those specifically enumerated in paragraph (a) of this section), including the fees and
disbursements of its counsel and any advertising expenses.
6. Notices. Any notice or other communication to be given to the City under this Bond
Purchase Agreement may be given by delivering the same in writing to the City at 276 Fourth
Avenue, Chula Vista, California 919]0, Attention: Director of Finance; and any notice or other
communication to be given to the Underwriter under this Bond Purchase Agreement may be given by
delivering the same in writing to Stone & Youngberg, 4350 La Jolla Village Drive, Suite 140, San
Diego, California 92122, Attention: L. William Huck, and to One Ferry Building, San Francisco,
California 9411], Attention: Public Finance.
7. Parties in Interest. This Bond Purchase Agreement is made solely for the benefit of
the District and the Underwriter (including their successors or assigns), and no other person shall
acquire or have any right hereunder or by virtue hereof.
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8. Survival of Representations and Warranties. The representations and warranties of
the District and the City set forth in or made pursuant to this Bond Purchase Agreement and any
certificates delivered hereunder shall not be deemed to have been discharged, satisfied or otherwise
rendered void by reason of the Closing or termination of this Bond Purchase Agreement and
regardless of any investigations made by or on behalf of the Underwriter (or statements as to the
results of such investigations) concerning such representations and statements of the District and the
City and regardless of delivery of and payment for the Bonds.
9. Effective. This Bond Purchase Agreement shall become effective and binding upon
the respective parties hereto upon the execution ofthe acceptance hereof by the District and shall be
valid and enforceable as of the time of such acceptance.
10. No Prior Agreements. This Bond Purchase Agreement supersedes and replaces all
prior negotiations, agreements and understandings between the parties hereto in relation to the sale of
Bonds for the District.
II. Governing Law. This Bond Purchase Agreement shall be governed by the laws of
the State of California.
12. Countemarts. This Bond Purchase Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall constitute one and the same
instrument.
Very truly yours,
STONE & YOUNGBERG LLC
By:
Managing Director
ACCEPTED: ,2004
COMMUNITY FACILITIES DISTRICT NO. 07-1
(OT A Y RANCH VILLAGE ELEVEN)
By:
Director of Finance
13 q- ~fl
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EXHIBIT A
MATUJUTYSCHEDULE
CITY OF CHULA VISTA
COMMUNITY FACILITIES DISTRICT NO. 07-1
(OTAY RANCH VILLAGE ELEVEN)
2004 SPECIAL TAX BONDS
Maturity Date
(September 1) Principal Coupon Price
$ %
Par Amount $
Original Issue Discount
Underwriter's Discount
Purchase Price $
A-]
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EXHIBIT B
CERTIFICATE OF REPRESENTATIONS AND WARRANTIES
OF THE CITY OF CHULA VISTA
,2004
To: Stone & Youngberg LLC
San Diego, California
Re: $ City ofChula Vista Community Facilities District No. 07-1 (Otay
Ranch Village Eleven) 2004 Special Tax Bonds
Ladies and Gentlemen:
We are delivering to you this certificate in connection with the issuance and sale of
$ aggregate principal amount of the City of Chula Vista Community Facilities District
No. 07-1 (Otay Ranch Village Eleven) 2004 Special Tax Bonds and pursuant to the Bond Purchase
Agreement, dated the date hereof (the "Purchase Contract"), by and between you and Community
Facilities District No. 07-1 (Otay Ranch Village Eleven) (the "District"). All capitalized tenns used
herein without definition shall have the meanings assigned to such tenns in the Purchase Contract.
The undersigned, in his capacity as an officer of the City and not in his individual capacity,
on behalf of the City, represents and warrants to you that:
(I) The City is duly organized and validly existing as a charter city under the
Constitution and laws of the State of California and the City Council of the City, as the legislative
body of the District, has duly and validly adopted each of the District Resolutions and authorized the
fonnation of the District pursuant to the Law.
(2) The infonnation contained in the Preliminary Official Statement (except for
infonnation therein as to the book-entry system as to which no view is expressed) was, as of the date
thereof and is, as of the date hereof, true and correct in all material respects and did not, as of the date
thereof, and does not, as of the date hereof,' contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading.
CITY OF CHULA VISTA
By:
Director of Finance
B-1
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-
EXHIBIT C
CERTIFICATE OF THE DEVELOPER
-' 2004
Stone & Youngberg LLC
4350 La Jolla Village Drive, Suite 140
San Diego, California 92122
City ofChula Vista
276 Fourth Avenue
Chula Vista, California 91910
Re: $ City ofChula Vista Community Facilities District No. 07-1 (Otay
Ranch Village Eleven) 2004 Special Tax Bonds (the "Bonds 'j
Ladies and Gentlemen:
The Brookfield Shea Otay Project, LLC, a California limited liability company (the
"Developer"), hereby certifies that:
1. The Developer is the owner of certain of the land within Community Facilities
District No. 07-1 (Otay Ranch Village Eleven) (the "District"), as described in the
Preliminary Official Statement of the District dated , 2004 relating to
the above-captioned Bonds (the "Preliminary Official Statement").
2. The Developer covenants that, while the Bonds are outstanding, the Developer will
not bring any action, suit, proceeding, inquiry or investigation at law or in equity,
before any court, regulatory agency, public board or body which in any way seeks to
challenge or overturn the District, the levy of the Special Tax in accordance with the
rate and method of apportionment contained in the Notice of Special Tax Lien
recorded in the real property records of the County of San Diego (the "Rate and
Method of Apportionment") or the validity of the Bonds or the proceedings leading
up to their issuance. The foregoing covenant shall not prevent the Developer from
bringing an action or suit contending that the Special Tax has not been levied in
accordance with the methodology contained in the Rate and Method of
Apportionment.
3. Any and all information submitted by the Developer to the City, the Underwriter and
Underwriter's counsel in connection with the preparation of the Preliminary Official
Statement, and any and all information submitted by the Developer to the Special Tax
Consultant, the Appraiser and the Market Absorption Consultant, was, to the best of
the Developer's knowledge, true and correct when given and remains true and correct
as of the date hereof, and all information in the Preliminary Official Statement
C-I
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relating to the Developer and the development of its land within the District was final
as of its date for purposes of Rule 15c2-12 promulgated under the Securities
Exchange Act of 1934.
4. The statements relating to the Developer, its members and merchant builders related
to its members and [related] entities (collectively, the "Developer Entities"), their
proposed development in the District, their property ownership and their contractual
arrangements contained in the Preliminary Official Statement do not contain any
untrue statement of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading. If at any time subsequent hereto and
within 25 days after the Closing Date any such statements in the Preliminary Official
Statement become untrue, the Developer agrees to notify the City and the
Underwriter immediately.
5. No proceedings are pending or, to the best of the Developer's knowledge, threatened
in which the Developer or any of its members or any of the other Developer Entities
may be adjudicated as bankrupt or discharged from any or all of their debts or
obligations or granted an extension of time to pay its debts or a reorganization or
readjustment of its debts.
6. Except as disclosed in the Preliminary Official Statement, no action, suit, proceeding,
inquiry or investigation, at law or in equity, before or by any court, regulatory
agency, public board or body, is pending or, to the best of the Developer's
knowledge, threatened, in any way seeking to restrain or enjoin the development of
the property within the District or in any way seeking to invalidate or set aside any
final or vesting tentative maps on land in the District.
7. Except as disclosed in the Preliminary Official Statement, to the best of the
Developer's knowledge, no other public debt secured by a tax or assessment on the
land in the District is in the process of being authorized and no assessment districts or
community facilities districts have been or are in the process of being fonned which
include any portion of the land within the District.
8. Except as disclosed in writing to the Underwriter and the City, to the best of the
Developer's knowledge, based upon due inquiry, there are no events of monetary
default or events which with the passage of time would constitute a monetary default
under any loan or similar credit arrangement to which the Developer or any of its
members or any of the other Developer Entities is a party which would materially and
adversely affect the ability of any of the Developer Entities to develop the property or
pay Special Taxes when due.
9. The Developer has duly authorized and executed the Funding Agreement and the
Continuing Disclosure Agreement dated as of March I, 2004 (collectively, the
"Developer Agreements"), and such Developer Agreements are the valid obligations
of the Developer, enforceable against the Developer in accordance with their
respective tenns, and none of the documents which govern the Developer would
cause such Developer Agreements to be invalid or unenforceable against the
Developer in accordance with their tenns; and no event has occurred which, with the
C-2
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passage of time, would constitute a default by the Developer of any of its obligations
under the Developer Agreements.
]0. All capitalized terms not otherwise defined herein shall have the meaning set forth in
the Bond Purchase Agreement to be entered into between the District and Stone &
Youngberg LLC relating to the sale of the Bonds.
BROOKFIELD SHEA OTA Y, LLC, a California
limited liability company
By:
Title:
C-3
Error! Unknown document prnperty name. 9-
EXHIBIT D
OPINION OF DEVELOPER COUNSEL
(I) The Developer is duly fonned, validly existing and in good standing as a limited
liability company under the laws of the State of California, and is in good standing in the State of
California.
(2) The Developer has the power to enter into and perfonn its obligations under the
Continuing Disclosure Agreement dated as of March 1,2004 and the Acquisition Agreement dated as
of I, 2004 (collectively, the "Developer Agreements"), has duly authorized,
executed, and delivered the Developer Agreements, and has authorized the perfonnance of its
respective duties and obligations thereunder.
(3) Each of the Developer Agreements constitutes a legally valid and binding obligation
of the Developer, enforceable in accordance with its tenns.
(4) The execution and delivery of the each of the Developer Agreements by the
Developer, and compliance with the provisions thereof by the Developer will not result in a violation
of, a breach of, or a default under the operating agreement of the Developer or, to our knowledge, of
any trust agreement, mortgage, deed of trust, note, lease, commitment, agreement, or other
instrument to which the Developer is a party, or, to our knowledge, any order, rule or regulation of
any court or other governmental body having jurisdiction over the Developer, the breach of which
might have a materially adverse effect on the ability of the Developer to perfonn its obligations
under the Developer Agreements.
(5) There is no litigation pending or threatened against or affecting the Developer
(a) which affects or seeks to prohibit, restrain or enjoin the development by the Developer of the
property it owns within the District, or (b) in which the Developer or any of the members of the
Developer may be adjudicated as bankrupt or discharged from any or all of its debts or obligations or
granted an extension of time to pay its debts or a reorganization or readjustment of its debts, or
(c) which seeks to grant an extension of time to pay the Developer's debts, or (d) seeks to effect a
reorganization or readjustment of the Developer's debts.
(6) During the course of our representation the Developer, we have reviewed certain
documents and have participated in conferences in which the contents of the Official Statement and
related matters were discussed. To our knowledge, no facts have come to our attention which would
cause us to believe that the statements contained in the Official Statement under the headings "THE
COMMUNITY FACILlTlES DISTRICT," "THE DEVELOPMENT AND PROPERTY
OWNERSHIP," and "SPECIAL RISK FACTORS" relating to the District and the Developer
(excluding therefrom the financial and statistical data included therein) contain any untrue statement
of a material fact or omit to state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made, not misleading (except
as to financial infonnation contained therein, as to which no view or opinion is expressed).
D-I tj,9?'f
Error! Vnknown docnment property name.
COUNCIL AGENDA STATEMENT
Item
Meeting Date: 4/20/04
ITEM TITLE: Resolution 2004- approving a budget transfer from the
"Pavement Rehabilitation Program FY 2004 -- Overlay - in the City Of
Chula Vista, California (STL-293)" project to the "Local Streets Pavement
Rehabilitation Program in the City of Chu1a Vista, California (STL-300)"
project, accepting bids, and awarding the contract.
SUBMITTED BY: Director of General Services ~~
REVIEWED BY: City Manager&¡V "" (4/5ths Vote: Yes.K.No->
f"~' On March 3, 2004, the Director of General Services received sealed bids for the "Local Streets
Pavement Rehabilitation Program in the City of Chula Vista, California (STL-300)" project. The
work to be done consists of the application of Rubberized Emulsion Aggregate Slurry (REAS) on
various pavement locations in the City of Chula Vista, California. It also includes the
preparation and application of: crack filler, removal/replacement of failed pavement, striping,
traffic control, and other miscellaneous work, and all labor, material, equipment, and
transportation necessary for the project.
RECOMMENDA nON:
1. That Council authorize the transfer of TransNet funds from the "Pavement Rehabilitation
Program FY 2004 - Overlay - in the City Of Chula Vista, California (STL-293)" project
to create a new street rehabilitation project.
2. That Council accept bids and award the contract for the "Local Streets Pavement
Rehabilitation Program in the City of Chula Vista, California (STL-300)" project to Frank
& Son Paving, ofChula Vista, California for $114,565.80.
BOARDS/COMMISSIONS RECOMMENDA nON: Not applicable.
DISCUSSION: Staff recommends the transfer of TransNet Funds from an existing capital
improvement project, and creation of a new CIP street rehabilitation project. The work includes
the preparation and application of crack filler and Rubberized Emulsion Aggregate Slurry
(REAS), pavement striping and marking, traffic control, and other miscellaneous work on
various city streets, and all labor, material, equipment, and transportation necessary for the
project. This work was originally included in the scope of the "Pavement Rehabilitation Program
FY 2004 (STL-293)" capital improvement project, with all necessary TransNet funds
appropriated during the budget process. Since that time, the annual program has been divided
/(J-I
I;'
Page 2, Item --"-
Meeting Date: 4/20/04
into an overlay specific project (STL-293) and a slurry specific project (STL-300). Rather than
appropriating additional funds from the TransNet fund, staff recommends the transfer of funds
from the original pavement rehabilitation project.
General Services staff prepared plats, and specifications and advertised the project. Staff
received and opened bids on March 03, 2004. Appendix "A" shows the list of streets included in
the project.
The City received bids from two (2) contractors as follows:
CONTRACTOR BID AMOUNT
Base Bid
1. Frank & Son Paving, Inc. - Chula Vista, California $114,565.80
2. Bond Blacktop, Inc. -- Union City, California $119,025.90
The low bid submitted by Frank & Son Paving, Inc. is below the engineer's estimate of
$153,294.00 by $38,728.20. General.ServiCt:;ssWïhasvtWfi~<!.thetØfl'ir.meespio"id~¡f;fiyi~e
contractor and their work has been satisfactory.
Disclosure Statement
Appendix "B" is a copy ofthe contractor's Disclosure Statement.
Environmental Status
The El1vìroll1nental Review Coordinator. has. reviewl'id posed Ptójie4tfót(¡
the California EJlvirOml1el1tal Qualìty Act and!¡asdøtl'i ~.tþ,ät d
Class J . c ate g 0 ri tal e JC emption Þ urs ü¡¡¡1t to Sl'io ti oìí . 15 3 01 or th eState
no further enviroll1nentaFreviewis l1ecessafy.
Wage Statement
Contractors bidding this project are not required to pay prevailing wages to persons employed by
them for the work under this project.
jO-
J:IGENERAL SERVICESIGS AOMINISTRATIONICOUNCIL AGENDAISTL300lSTL300_A113.DOC
Page 3, Item -
Meeting Date: 4/20/04
FISCAL IMPACT:
FUNDS REQUIRED FOR CONSTRUCTION
A. Contract Amount (Frank & Son Paving, Inc.) $114,565.80
B. Contingencies (Approx. 10%) $15,00.00
C. Staff Costs, Design & Inspection $20,419.20
TOTAL FUNDS REQUIRED FOR CONSTRUCTION $135,000.00
FUNDS AVAILABLE FOR CONSTRUCTION
Funds Transferred from Capital Improvement Project STL-293 I $135,000.00
TOTAL FUNDS AVAILABLE FOR CONSTRUCTION I $135,000.00
There are sufficient funds held by the City to fully offset all costs associated with the
construction of this project, with no impact to the General Fund. Upon completion of the subject
project, the improvements will require only routine City street maintenance.
Attachments: A. List of streets to be rehabilitated.
B. Contractor's Disclosure Statement.
/IJ- 7/
J:IGENERAL SERVICESIGS AOMINISTRATIONICOUNCIL AGENDAISTL300ISTL300_A113.DOC
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Attachment B
THE CITY OF CHULA VISTA DISCLOSURE STATEMENT
Pursuant to Council Policy 101-01, before any action upon matters that will require discretionary action
by the Council, Planning Commission and all other official bodies of the City, a statement of disclosure of
certain ownership or financial interests, payments, or campaign contributions for a City of Chu1a Vista
election must be filed. The following infonnation 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.
FRANK&SON PAVING, INC. FRANCISCO VASQUEZ, TREASURER
ALICIA VASQUEZ, PRESIDENT RUDY GUTIERREZ, CHIEF ESTIMATOR
2. If any person* identified pursuant to (1) above is a corporation or partnership, list the names of all
individuals with a $1000 investment in the business (corporation/partnership) entity.
ALICIA VASOUF.Z, PRF.SrOF.N'T' FRANCISCO A. VASQUEZ, TREASURER
FRANK 1:. VASQUEZ, VICE
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. .
N/A
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.
RUDY GUTIERREZ, CHIEF FRANCISCO A. VASOUEZ
PROJECT MANAGER SUPERINTENDANT
GEORGE MUNOZ
ENGINEER PROJECT
13
c: \FILE CABINETI WOROISTl.3OO\ST\.3oo _REAS - COffTl!ACr. DOC I() -5
1&
----------
5. Has any person* associated with this contract had any financial dealings with an officia1** of the
City ofChula Vista as it relates to this contract within the past 12 months? Yes_No---X-
NONE
If Yes, briefly describe the nature of the financial interest the official** may have in this contract.
NONE
6. Have you made a contribution of more than $250 within the past twelve (12) months to a current
member of the Chula Vista City Council? Yes_No-L- If Yes, which Council member?
7. Have you or any member of your governing board (i.e. Corporate Board of DirectorslExecutives,
non-profit Board of Directors made contributions totaling more than $1,000 over the past four (4)
years to a current member of the Chula Vista City Council? Yes_N°...1L.-...IfYes, which
Council member?
8. Have you provided more than $300 (or an item of equivalent value) to an official** of the City
ofChula Vista in the past twelve (12) months? (This includes being a source of income, money to
retire a legal debt, gift, loan, etc.) Yes - No--x-- If Yes, which official** and what was
the nature of item provided?
Date: MARCH 3, 2004
VASQUEZ
* Person is derIDed as: any individual, firm, co-partnership, joint venture, association, social club,
fraternal organization, corporation, estate, trust, receiver, syndicate, any other COWlty, city, municipality,
district, or other political subdivision, -or any other group or combination acting as a unit.
** Official includes, but is not limited to: Mayor, Council member, Planning Commissioner,
Member of a board, commission, or committee of the City, employee, or staff members.
14
C:IFILE CABINETlWOROISTl300\STl300_REAS_COIfTl!ACT.OOC /1)
I{,
RESOLUTION NO. 2004- -
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING A BUDGET TRANSFER FROM
THE "PAVEMENT REHABILITATION PROGRAM FY 2004 -
OVERLAY - IN THE CITY OF CHULA VISTA, CALIFORNIA
(STL-293)" PROJECT TO THE "LOCAL STREETS PAVEMENT
REHABILITATION PROGRAM IN THE CITY OF CHULA
VISTA, CALIFORNIA (STL-300)" PROJECT, ACCEPTING
BIDS, AND AWARDING THE CONTRACT
WHEREAS, General Services staff feels that the annual pavement rehabilitation program
should be divided into an overlay specific project and a slurry specific project; and
WHEREAS, dividing the program necessitates the transfer of TransNet funds from an
existing capital improvement project (Pavement Rehabilitation Program FY 2004 - STL-293) to a
new CIP street rehabilitation project (Local Streets Pavement Rehabilitation Program - STL-300);
and
WHEREAS, on March 3, 2004, the Director of General Services received sealed bids
for the "Local Streets Pavement Rehabilitation Program (STL-300)" project; and
WHEREAS, the work to be done consists of the preparation and application of
rubberized emulsion aggregate slurry on various pavement locations in the City; and
WHEREAS, staff received bids from the following contractors:
CONTRACTOR BID AMOUNT
1. Frank & Son Paving, Inc. - Chula Vista, California $114,565.80
2. Bond Blacktop, Inc. - Union City, CA $119,025.90
WHEREAS, the low bid submitted by Frank & Son Paving, Inc. is below the engineer's
estimate of$153,294.00 by $38,728.20 or approximately 25%; and
WHEREAS, General Services staff checked the references provided by the contractor and
all references were verified and their work has been satisfactory; and
WHEREAS, staff has reviewed the low bid and is recommending awarding the contract to
Frank & Son Paving, Inc. ofChula Vista, California; and
WHEREAS, the Environmental Review Coordinator has reviewed the proposed project for
compliance with the California Environmental Quality Act and has determined that the project
qualifies for a Class I categorical exemption pursuant to Section 15301 of the State CEQA
Guidelines; and
le--'?
NOW, THEREFORE, BE IT RESOLVED that the City Council of City of Chula Vista
does hereby approve a budget transfer from the "Pavement Rehabilitation Program FY 2004-
Overlay (STL-293)" project to the "Local Streets Pavement Rehabilitation Program (STL-300)".
BE IT FURTHER RESOLVED that the City Council of the City of Chula Vista does
hereby accept bids and award the contract for the "Local Streets Pavement Rehabilitation Program
(STL-300)" project to Frank & Son Paving, Inc. of Chula Vista, California in the amount of
$114,565.80.
Presented by Approved as to form by
V~{. (-I-c<---
""'~
Jack Griffin Ann Moore
Director of General Services City Attorney
attomey/resolbids/Local Pavement Rehab STLJOO
r
COUNCIL AGENDA STATEMENT
Item! f
Meeting Date 04/20/2004
ITEM TITLE: Resolution Transferring unclaimed monies in the amount of
$86,373.08 from the Cash Bond Deposit Fund to the General Fund.
!v
SUBMITTED BY: Chief of Policl!J"~'¡:
REVIEWED BY: City Manage(;f,;ví" (4/Sth Vote: Yes - Nol.J
Currently the City has unclaimed monies in the amount of $86,373.08 in the Cash Bond Deposit
Fund. This money was deposited by the Police Department in accordance with Article 3, Section
50050 of the Government Code. According to Govemment Code provisions, money that remains
unclaimed for three years may become the property ofthe City after certain advertising requirements
are met. This money is now eligible for transfer to the General Fund.
RECOMMENDATION: Council adopts the resolution approving the transfer of unclaimed
monies in the amount of$86,373.08 from the Cash Bond Deposit Fund to the General Fund.
BOARD/COMMISSION RECOMMENDATION: N/A
DISCUSSION: Unclaimed property primarily includes cash confiscated during arrests that has
remained unclaimed for over three years. The Police Department has not received any verified
claims for recovery on any of the money to date and recommends the transfer of$86,373.08 to
the general Fund. According to the Government Code Section 50051, these funds may become
the property of the City after a 3-year period and on a designated date not less than 45 days or nor
more than 60 days after the first notice in the newspaper. Items less than $10 in amount may be
transferred without publishing a notice. The public notice was published in the Star News on
February 20th and 27t\ 2004.
FISCAL IMPACT: This transfer will result in $86,373.08 in revenues to the General Fund. These
revenues are currently budgeted. As a result, there is no net impact to the General Fund.
RESOLUTION NO. 2004
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING THE TRANSFERRING OF
UNCLAIMED MONIES IN THE AMOUNT OF $86,373.08 FROM
THE CASH BOND DEPOSIT FUND TO THE GENERAL FUND
WHEREAS, currently the City has unclaimed monies in the amount of
$86,373.08 in the Cash Bond Deposit Fund; and
WHEREAS, according to Government Code provisions, money that remains
unclaimed for three years may become the property of the City after certain
advertising requirements are met, the money is now eligible for transfers to the
General Fund; and
WHEREAS, unclaimed property primarily includes cash confiscated during
arrests that remained unclaimed for over three years; and
WHEREAS, according to the Government Code Section 50051, these funds
may become the property of the City after a 3-year period and on a designated date
not less than 45 days or more than 60 days after the first notice in the newspaper;
and
WHEREAS, notice was published in the Star News on February 20 and 27,
2004;
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of
Chula Vista does hereby approve the transferring of unclaimed monies in the
amount of $86,373.08 from the Cash Bond Deposit Fund to the General Fund.
Presented by Approved as to form by
~ S ff1(/L ~
Richard P. Emerson
Chief of Police City Attorney
COUNCIL AGENDA STATEMENT
Item:~
Meeting Date: April 20. 2004
ITEM TITLE: Resolution amending the FYO4 Library
Department budget by appropriating unanticipated Taste of the
Arts sponsorships revenue in the amount of $9,000.
SUBMITTED BY: Assistant City Manager/Library DirectorGtt?
REVIEWED BY: City Manager~y<" (4I5ths Vote: YES ---X- NO ~
Since January 1, 2004, the Office of Cultural Arts has received sponsorships from various
local businesses for the Taste of the Arts Festival to be held on April 18, 2004.
STAFF RECOMMENDATION: That Council adopt the resolution amending the FYO4
Library Department budget by appropriating unanticipated Taste of the Arts Festival
sponsorship revenue in the amount of $9,000 for event expenses.
BOARD/COMMISSION RECOMMENDATION: N/A
DISCUSSION:
As part of its ongoing fundraising efforts, the Office of Cultural Arts mailed sponsorship
packets to numerous organizations to become sponsors of Taste of the Arts Festival which is
the City's Premier Cultural Event featuring a pops performance by the San Diego Symphony.
Sponsorship proceeds are being used to offset increased costs of staging, event set-up and
entertainment.
FISCAL IMPACT: The $9,000 in sponsorship revenue funds will be used to provide
appropriate staging set-up and technical equipment for the main stage.
/(}--/
RESOLUTION NO. 2004- -
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA AMENDING THE FY 04 LIBRARY
DEPARTMENT BUDGET BY APPROPRIATING
UNANTICIPATED TASTE OF THE ARTS SPONSORSHIPS
REVENUE IN THE AMOUNT OF $9,000
WHEREAS, As part of its ongoing fundraising efforts, the Office of Cultural Arts mailed
sponsorship packets to numerous organizations asking them to become sponsors of Taste of the
Arts Festival which is the City's premier cultural event to be held on April 18, 2004, featuring a
pops performance by the San Diego Symphony; and
WHEREAS, since January 1, 2004, the City has received sponsorships from various local
businesses; and
WHEREAS, sponsorship proceeds are being used to offset increased costs of staging,
event set-up and entertainment.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula
Vista does hereby amend the Fiscal Year 2004 Library Department supplies and services budget
by appropriating unanticipated Taste of the Arts Festival sponsorship revenue in the amount of
$.9,000 for event expenses.
Presented by Approved as to form by
Do-.- ì. (~ f'tll~
David Palmer Ann Moore
Assistant City Manager/Library Director City Attorney
naUomey\'-"o\financelAmend FY 04 Library Dept taste of the arts festival
COUNCIL AGENDA STATEMENT
Item: ~
Meeting Date: 4/20/04
ITEM TITLE: Status report on various City Energy Issues
SUBMITTED BY: ^"¡"",,, City M=gcr ~ .
ß ./'7
REVIEWED BY: City Manager (4/5ths Vote: Yes- No...xJ
In response to the State's 2000 energy crisis, the City of Chula Vista secured the services
of MRW and Associates to provide an assessment of energy management options which
would allow the City to gain better control over the City's demand and supply of energy
as well as the financial costs of the City's energy use. The MRW report and staff
recommendations provided a broad discussion of energy options/recommendations and a
variety of action items to implement or advance the proposed Energy Strategy and Action
Plan. Among the energy recommendations adopted by the City Council was direction to:
Take the initial steps to more specifically assess the costs and benefits of
forming and operating as a Municipal Utility to own/operate all or portions of
the local distribution system.
In response to this direction, staff hired the energy consulting team of Duncan, Weinberg,
Genzer & Pembroke, McCarthy & Berlin and Navigant Consulting, Inc. to analyze and
fully discuss the feasibility of developing a municipal energy business that meets as many
of the following City objectives as possible (The Municipal Energy Utility [MEU] study):
. Establishes reliable and affordable electricity and natural gas supply and
maintains the highest level of customer service.
. Identifies a viable business model that benefits the City's time and investment.
. Ensures an environmental advantage for City residents, businesses and the
regIOn.
. Results in a citywide distribution ofMEU benefits.
. Enables the utilization of the MEU as an economic development tool to retain
and attract businesses.
. Enhances Chula Vista's vision to continue as a vibrant community in the
region.
1'3-1
---..---.-.---
Page 2
Meeting Date: 4/20/04
In essence, the consultant's report is intended to answer the question: Is it desirable for
the City of Chula Vista to pursue the implementation of an MEu. If so, what form of
MEU?
Tonight's report and presentation will advise the City Council and the public of current
city actions related to energy issues confronting the City, as well as possible future
matters that may be presented to the City Council, and the approximate timing of those
matters.
RECOMMENDED ACTIONS
That the City Council accept this report and direct staff to schedule a Council Workshop
in May for the City Council consideration of the Municipal Energy Utility report, staff
recommendations and public comment.
BACKGROUND
As an outgrowth of the MEU study, the City has become involved in a variety of energy
related matters. This was necessary on a variety of levels and related to a myriad of
interwoven issues, hearings, transactions and negotiations related to energy. From the
start City staff has intended to compare the recommendations of the MEU study with a
proposed franchise in order that the City Council could determine the best viable
opportunity, or combination of opportunities, when comparing an MEU business model
to a potential franchise agreement. In addition, the City became involved in a number of
issues pending before the California Public Utility Commission (CPUC) and the State
Legislature regarding energy related matters. The timing of this was critical in order to
position the City to fully understand and evaluate the potential MEU models, to minimize
potential negative energy impacts on the City in general and possibly most importantly,
to insure the protection of City of Chula Vista residents and businesses related to rate
increase requests and the implementation of new energy rules and regulations. The
purpose of this agenda statement is to provide the City Council with a presentation on the
status of the City's Municipal Energy Utility study as well as an update on other,
interrelated energy related matters.
Attached for Council's information is a power point presentation that provides an update
on a variety of current projects being pursued by staff pertaining to the original Energy
Strategy and Action Plan as well as a number of related projects including the status of:
. The MEU
. Franchise negotiations with SDG&E
. Utility issues currently pending before the CPUC
. Local and Regional Generation issues, Bayfront Redevelopment issues pertaining
to Master planning efforts and the impact of the existing South Bay Power Plant,
transmission lines and Switchyard on those efforts
. Direct Access opportunities recently authorized by the CPUC, and
. Community Choice Aggregation
Page 3
Meeting Date: 4/20/04
Council will note that there are two additional action items on tonight's agenda
pertaining to energy. The first is a resolution appropriating $69,000 ftom the Available
Fund Balance ofthe General Fund to the Environmental Services Resource Management
Supply and Services Budget for Purpose of Funding Electricity & Gas Consultants. The
second is a resolution authorizing the City Manager to Enter into a "Direct Access"
Agreement with an Energy Service Provider for electricity supply for eligible City
facilities.
FISCAL IMPACTS
This is a status report only and has no fiscal impact.
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2002 California Utility Sales and Total Consumption
Average
Bundled
Total Revenues Total Sales Rates
Utilitv Ownership (thousand $) (thousand kw-hr) ($/kw-hr)
San Diego Gas & Electric Co Private 1,451,773 7,188,247 20.20
Southern California Water Co Private 20,947 131,826 15.89
Anza Electric Cooperative, Inc Cooperative 5,745 38,747 14.83
Southern California Edison Co Private 7,848,312 54,391,384 14.43
Pacific Gas & Electric Co Private 6,820,665 49,830,092 13.69
City of Banning Municipal 16,997 132,931 12.79
Lassen Municipal Utility District Municipal 16,623 131,243 12.67
City of Ukiah Municipal 13,416 108,504 12.36
City of Burbank Municipal 128,108 1,048,096 12.22
City of Healdsburg Municipal 8,021 67,442 11.89
City of Lodi Municipal 46,750 410,031 11.40
Truckee Donner P U D Poiitical Subdivision 14,058 126,394 11.12
City of Colton Municipal 33,970 312,263 10.88
City of Pasadena Municipal 109,103 1,003,969 10.87
City of Gridley Municipal 3,174 29,847 10.63
City of Alameda Municipal 38,343 366,835 10.45
City of Glendale Municipal 112,389 1,078,606 10.42
City of Azusa Municipal 22,608 224,385 10.08
Citv of Lompoc Municipal 12,758 130,278 9.79
Imperial Irrigation District Political Subdivision 261,122 2,680,719 9.74
City of Riverside Municipal 169,301 1,748,352 9.68
Sacramento Municipal Util Dist Political Subdivision 912,978 9,505,300 9.60
Los Angeles City of Municipal 2,134,710 22,289,149 9.58
Merced Irrigation District Poiiticai Subdivision 28,011 297,800 9.41
City of Anaheim Municipal 232,621 2,486,824 9.35
City of Redding Municipal 66,429 715,635 9.28
City of Needles Municipal 5,448 60,162 9.06
City of Biggs Municipal 1,362 15,725 8.66
City & County of San Francisco Municipal 64,048 748,102 8.56
Sierra Pacific Power Co Private 42,466 505,637 8.40
Plumas-Sierra Rural Elec Coop Cooperative 10,246 126,354 8.11
City of Roseville Municipal 76,990 984,757 7.82
City of Santa Clara Municipal 186,760 2,410,503 7.75
Trinity Pubiic Utilities Dist Political Subdivision 5,803 77,869 7.45
City of Vernon Municipal 83,015 1,120,872 7.41
Turlock Irrigation District Municipal 109,503 1,493,463 7.33
City of Shasta Lake Municipal 12,271 168,453 7.28
PacifiCorp Private 58,609 813,312 7.21
Modesto Irrigation District Political Subdivision 162,300 2,305,705 7.04
Valley Electric Assn, Inc Cooperative 543 7,811 6.95
City of Palo Alto Municipal 69,114 995,401 6.94
Tuolumne County Pub Power Agny Political Subdivision 1,701 26,023 6.54
Surprise Valley Electrification Corp. Cooperative 5,674 87,129 6.51
Western Area Power Administration Federal 50,095 3,108,784 1.61
City of Escondido Municipal 4 267 1.50
Attachment 1:
Sacramento Bee: November 4, 2001
:r-l~J "3
The price of power
Last""""'- 'The Bae~"~_in""_-µ..èIc_ pME",-""", _anc:I.... .....................""'-
ab:>ut__GU1<BrII~....... 'The Bae·sQ.J85liOn: VIhIt-=uct.... rncr1I"Oybl belc< a 1yPcsI--'<..-f¥> <sed 7SO
,,*,--hJusol_. ....__ usageol"","",,._~ M-g n ..........'sC1!lJ"l8l? A__ a.JSÞne<usagewries"'""""9
_ PG&Es_montiy"'__Ia~is5151òbNa11~
'The "'-""'Y pn:xb;:ed a '^'<Ie ranged.....-nns. tu ~ anc:Ilage 9-ows 1haI µ..èIc__d -!Þ "'.......... A; "","",,, _~
1ess1hen potIItE. i'lIIesIor-<>M1ed'-
'The bII arT1ClI1IS inCLd8" d1arges ~ ~a.<L, ...... s..ch ... """'""" teas anc:I_ s...J ...,.,... -. ....-....... ,oIlacsI
--
Utility
Public
Alameda PO'INer & T e1eoon"1
Anaheim Public Uti1tties
Azusa Ught and Water Dept.
Banning E ~ric Utlhty
Ci1y 0' Btggs
au..-bank Walftr & Powet'
Colton Public U1itities
Glendale Waler & Power Dept,
Gridley MuniCipal VbIì1ie$
Heekl8butg ElectriC Dept.
knperlal Irr6gahon District
Lassen MuAicipal Utllìty District
Lodi EkM:tric Utllfty
Lompoc Eleclnc Utlmy Dept.
Los ~ Dept. 01 Wetef" & Powe,
Merced 'rriQalion District
Modesto Imgahon Dtstrict
Needles utilities
PafO Alto U~llítl&8
Pasadena Waler & POW'e'I'
Reðdirl9 E1e<:tric Utility
Aiver.Jide Public Util;ties
Aoseville Electric
Sac:ratnenk> Munidpel Utility DisIrlct
S,hcon v~ Powooer (City 04 SarKa Clara.
Shasta Lake MuniClpaa UIiIrtieS
Trinity Public Utilities Dts1rict
Truckee Donner PubItc Utility DiSl1icl
Turkxk Irrigation District
Ukiah Munidpal Utility
Vernon Utilities Deø4.
Private inveSlor-owned
The big three
Paahc Gas and Etectrtc Co.
San Diego Gas & Electric Co.
Southef"n Catdl()t1'k8 Edison
TI'Nt: others
Bear Valley Elecu;c
Pacìfic Power (PaCiliCorp)
Sierra Pacjfk: PO'INe1" Co,
Customers
in Califomia
32,800
108.000
15.000
10.300
600
52.000
15,000
82 ,000
2.300
5.200
125.000
10.000
23.5{)()
14.500
1,300.000
750
97.000
".000
28.200
58.000
39,000
95.200
40,000
525.000
48 .000
".000
6,500
10.100
67,000
7.200
2.000
4.700.000
1,200.000
4.200.000
22.000
42,000
46.000
Cooperalive
AAza EkK:tric Cooperaüv8 Inc 3,500
Ptuma.s..s.ena Rwal Electric Cooper8ltVe 6,400
$urpt"ise Vaflley Electrification Cot'p. 5.500
Va.ey EIectrtc Association 37
·SUmmer rales. WlOter rales vary sornewt181't.
tMonthly biM depends on zone.
Year entered
retail electric
business
"'''7
1894
'''98
1914
1903
1913
le95
.909
1910
.-
1936
.-
1910
.923
1902
'996
1923
'983
.900
.-
192'
'''95
1911
'9017
1896
'99G
1982
1927
1923
1897
1989
1905
HI87
.909
1921
1910
1928
1951
.937
1936
.965
Sootco Boo rc:&Otton:h oo!iOd on inforrn<]lXW\ ~ted bv ol»d'1 01 Ihð uliliOO5
1 - 1
Monthly bill for a t'ypical resident using
750 kilowatt·hours of electricity
$91 05-
500.58
$82 .03
S9197
$87.40
$9701
:~
$94_9110
$116.12'""
$89.4610 -
SacramenlO BeelOl.....-ia Ngu.,.en
:£~~/ô
SAN DIEGO GAS & ELECTRIC COMPANY
NOTICE OF PROPOSED CHANGES TO GAS RATES
BIENNIAL COST ALLOCATION PROCEEDING (BCAP)
APPLICATION NO. 03-09-031
OUR REQUEST
On September 17, 2003, San Diego Gas & Electric Company ("SDG&E")
filed Application NO.03-09-031 (Application) with the California Public
Utilities Commission ("Commission") to revise its rates for gas service
effective January 1. 2005. Specifically, this Application proposes to revise
SDG&E's rates to update the allocation among customers of SDG&E's noo-
gas costs of service (excluding the costs of unbundled storage). This
Application also reflects forecasted account balances in various balanc-
ing. tracking. and memorandum accounts, all of which were previously
authorized by the Commission, The Application proposes 100% balancing
account treatment for noncore transportation revenues due to the signif-
icant number of factors that affect noncore demand, and consistent with
SDG&E's treatment of core transportation revenues. The Application also
proposes new noncore service offerings and revisions to various tariffs.
SDG&E proposes rates in this Application based upon an embedded cost
allocation methodology. Embedded cost-based rates rely generally on the
historical costs of SDG&E to provide service. In this Application. SDG&E
proposes an increase in overall transportation rates of $34 million. or
13.5%. A typical winter bill for a residential customer using 40 therms will
increase by $1.29 under the proposed rates, from the average $39.89
under present rates. Proposed rates for small businesses and small indus-
trial customers are also higher, Proposed rates are higher for large com·
mercial and industrial customers. as well as electric generation cus-
tomers. primarily due to an expected reduction in gas demand that will
result in fewer therms across which to spread required costs.
WHAT THIS MEANS TO YOU
The impact to each customer class on the proposed effective date of
January 1. 2005 wiU be as follows:
Present Proposed Percent
Revenues! ........s Change
CUstomer Class ,.- ($TI\ðu$.I~ Rates
Residential (Caret 156.3 164.6 5%
Commercial/Industrial (Core).... 48.9 56.5 16%
Commercial/Industrial (Noncore)....· 3.9 6.5 67%
Electric Generation 17.0 30.8 81%
Net PPP Revenues·..· 24.5 26.2 7%
. :.:~teru:sJ::~~~~. smaller quantities ofgas. haw priority acœss tOg!lsservice anddo n.x
··ClnCommarcial/lndustrialcustDr'ßer'.;gaMrallyusesmallerlJØ:1litielofg!l!;thanoonoorecustomefS.
···Nonoorer:ustømersaragenerallylargeg!lluser1whooftenhaWllltematefuelCllpability.
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on indrviclualusage and the COmmlSSlOO'sfinal œclSlOO (Continued on back)
WHAT YOU CAN DO
Before acting on SDG&E's Application. the Commission will hold formal
evidentiary hearings that will be open to the public and devoted to ana-
lyzing the need for the requested rate changes. At these hearings, the
Commission will accept testimony from SDG&E. the Commission's Office
of Ratepayer Advocates and other interested parties who may offer pro·
posals that differ from those requested by SDG&E. After considering all
the proposals. the Commission will issue a decision.
You may view a copy of the Application at the address listed below or
obtain a copy of the Application and related exhibits by writing to:
Clay Faber
Regulatory Affairs Case Manager
for San Diego Gas &- Electric Company
555 W. Fifth Street, M.L. GT14D6
Los Angeles, CA 90013-1011
You may also view a copy of the Amendment at the following address:
California Public Utilities Commission
320 West Fourth Street, SUite 500
Los Angeles, CA 90013
If you would like to participate in the hearings and need assistance, or
if you would like to send comments to the Commission, you may write
to the Public Advisor's Office at the address above, or send an e-mail to
public.advisorJa@cpuc.ca.gov.
Any letters received from you will be circulated to each Commissioner
and will become part of the formal correspondence file in this applica-
tion. In your letter, state that you are writing in regard to Application No.
03-09-031. Please indicate if you would like a response to your letter.
otherwise. none will be sent.
Copies of this insert will be available for viewing and printing after
SeptIJ1iJer 30, 2003 on the SOG&E Web site at www.$.comItariffímsertsl.
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CITY COUNCIL AGENDA STATEMENT ILf
ITEM:
MEETING DATE: Avril 20. 2003
ITEM TITLE: Resolution Appropriating $69,000 from the Available Fund
Balance of the General Fund to the Environmental Services Resource
M~'g~ffit Bwlgct ~oo of F~dillg E]"tri,i<, & Gas
Consultants. \
SUBMITTED BY: Assistant City Manager :...---
Director of Conservation & Environmental Services ~
REVIEWED BY: City Manager6l{ Iv (4/Sths Vote: Yesl No_)
if)
It
Staff is requesting $69,000 to fund work by the Municipal Energy Utility consultants, and to
support the development of rules for implementing Community Choice Aggregation.
Approximately $59,000 of the request will fund the additional work by the Municipal Energy
Utility consultants to conclude the peer review process, and to provide a more detailed analysis
ofSDG&E rate/revenue issues. The additional $10,000 is the City's potential contribution to the
Local Government Commission to share costs for expert testimony before the Public Utilities
Commission with twelve jurisdictions regarding the implementation of Community Choice
Aggregation.
RECOMMENDATION: That Council adopt the resolution appropriating $69,000 from the
available fund balance of the general fund to the Environmental Services Resource Management
Supply and Service Budget to fund electricity and natural gas consultants.
BOARDS/COMMISSIONS RECOMMENDATION: Not applicable.
DISCUSSION: In response to the State's 2000 energy crisis, the City developed and began to
implement an Energy Strategy and Action Plan. One component of the Plan adopted by the City
Council directed staff to; "take the initial steps to more specifically assess the costs and benefits of
forming and operating as a Municipal Utility to own/operate all or portions of the local distribution
system." Staff hired the energy consulting team of Duncan, Weinberg, Genzer & Pembroke,
McCarthy & Berlin and Navigant Consulting, Inc., the Municipal Energy Utility "Team." The
Team was directed to analyze the financial, technical and legal risks and benefits of all the
available options for developing a municipal energy business. Business models were expected to
meet as many of the following criteria as possible:
. Establish reliable and affordable electricity and natural gas supply and maintain the
highest levels of customer service.
. IdentifY a viable business model that benefits the City's time and investment.
. Ensure an environmental advantage for City residents, businesses and the region.
J -I
..-.-...-...--.
I
ITEM: r
MEETING DATE: April 20. 2003
. Result in a citywide distribution ofMEU benefits.
. Enable the utilization of the MEV as an economic development tool to retain and
attract businesses.
. Enhance Chula Vista's vision to continue as a vibrant community in the region.
Peer Review
The Municipal Energy Utility (MEU) Feasibility Study and the independent peer review are
being finalized, and City staff is working with the Team to complete its analysis of the peer
review comments. The Team's analysis and response to the peer review work has lead to an
addition to the Team's original scope of work and approximately $34,000 in associated costs.
As a part of the due diligence completed by staff regarding its research and analysis of the MEU
study, staff initiated a peer review process outside the original scope of work in order to "test"
the findings and conclusions of the energy consultants regarding the recommended energy
business models. The peer review was performed by three independent energy experts and
addressed energy issues including a review of the underlying assumptions re: the accuracy and
veracity ofrate forecasting assumptions pertaining to SDG&E's future rates and their impact on
proposed future revenues, the cost of developing local generation, the availability and scheduling
of energy resources for power purchase contracts and the timing and cost of the various business
model implementation proposals.
Franchise Negotiations
As a component of the franchise negotiations, staff also requested that the Team add an
additional task to its scope of work regarding the most recent total energy costs and SDG&E
revenues. The Team has provided valuable information regarding costs and revenues for the
Franchise discussions and energy study relating to the total ratepayer costs, revenues and profits
for the most recent full calendar year. Tonight's action formally funds the change in scope. The
costs for franchise related work is approximately $25,000.
Local Govemment Commission Request
Finally, staff has been approached by the Local Govemment Commission to support its
consultant's expert testimony before the Public Utilities Commission regarding Community
Choice Aggregation. The Local Government Commission represents a dozen jurisdictions that
are utilizing a California Energy Commission grant to analyze the potential for Community
Choice Aggregation in their respective communities.
Community Choice Aggregation (CCA) is one potential municipal utility business model or
component of a business model available to cities and counties. Community Choice Aggregation
was established by ABl17-Migden, in September 2002. The bill authorizes a City to aggregate
all classes of their electrical loads. Everyone within the Community Choice Aggregator's
territory is automatically enrolled, but consumers have a penalty free "opt-out" opportunity for
the first 60 days or first two billing cycles. After this period, they may opt out at any time but
may be charged an exit/re-entry fee based upon cost recovery surcharges. SDG&E would retain
the legal obligation to provide energy as the provider of last recourse, or to customers who
ITEM: ILl-
MEETING DATE: April 20. 2003
the legal obligation to provide energy as the provider of last recourse, or to customers who
choose to "opt out." AB 117 also allows Community Choice Aggregators to apply to the Public
Utilities Commission to administer their "proportionate," share of the Public Goods Charge
(PGC) funds. SDG&E collects approximately $3,000,000 in PGC funds from Chula Vista
ratepayers annually.
Staff and special legal Counsel are currently participating in workshops held by the Public
Utilities Commission, which will determine the regulations for administering PGC funds, and
potentially establish a range of eligible program services. Currently, PGC funding can be used
for a variety of energy related services for residential and commercial customers. Those services
include public education and marketing, low and moderate-income assistance, research and
development, renewable energy, and conservation and demand management. Practically, that
means that, subject to final regulations, staff could use PGC funds for programs that reduce
residential and commercial energy consumption, help consumers stabilize or reduce their rates,
and transition to renewable energy sources.
Chula Vista's contribution to the Local Govemment Commission's Community Choice
Aggregation efforts would share costs for their consultant's expert testimony before the Public
Utilities Commission and not exceed $10,000 without further Council approval. Their testimony
compliments staffs work at the Public Utilities Commission and helps to preserve the
Community Choice Aggregation option for Council's future consideration.
FISCAL IMPACTS: Adoption of the proposed resolution requires an appropriation from the
available balance of the General Fund. The additions to the Scope of Work for the Municipal
Energy Utility Team and the proposed contribution to shared costs for Expert testimony before the
Public Utilities Commission will not exceed $69,000.
CC: David D. Rowlands Jr., City Manager
Elizabeth Hull, Deputy City Attorney
Willie Gaters, Environmental Resource Manager
Mtm:mudINavigantlaI13Appropriation-4-04b
/'-I~
RESOLUTION NO. 2004-
RESOLUTION OF THE CITY OF CHULA VISTA APPROPRIATING
$69,000 FROM THE AVAILABLE FUND BALANCE OF THE
GENERAL FUND TO THE ENVIRONMENTAL SERVICES
RESOURCE MANAGEMENT SUPPLY AND SERVICES BUDGET
FOR PURPOSE OF FUNDING ELECTRICITY AND GAS
CONSULTANTS
WHEREAS, in response to the State's 2000 energy crisis, the City developed and
began to implement an Energy Strategy and Action Plan; and
WHEREAS, staff is requesting $69,000 to fund work by the Municipal Energy
Utility consultants, and to support the development of rules for implementing Community
Choice Aggregation; and
WHEREAS, approximately $59,000 of the request will fund the additional work
by Municipal Energy Utility consultants to conclude the peer review process, and to
provide a more detailed analysis ofSDG&E rate/revenue issues; and
WHEREAS, the additional $10,000 is the City's potential contribution to the
Local Government Commission to share costs for expert testimony before the Public
Utilities Commission with twelve jurisdictions regarding the implementation of
Community Choice Aggregation.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of
Chula Vista does hereby appropriate $69,000 from the available fund balance of the
General Fund to the Environmental Services Resource Management Supply and Services
Budget for purpose of funding Electricity & Gas Consultants.
Presented by Approved as to form by
Sid Morris
Assistant City Manager
'uattorneylresolappmpriation Enrivonrmental Services Resource
/if-,/-
~{ft.. Council Agenda Statement
---
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01Y OF /5
CHUIA VISTA ITEM:
MEETING DATE: April 20. 2003
ITEM TITLE: Resolution waiving the formal bid process
pursuant to Municipal Code Section 2.56.070 Authorizing the City
Manager to Enter into a "Direct Access" Agreement with an Energy
S'Mœ Prov;d" to< E~"PPIY fo' Eligible City Fadl.".
SUBMITTED BY: Assistant City Manage
REVIEWED BY: City Manager (4/5ths Vote Yes ~ No -)
Under deregulation, electricity customers were allowed to purchase electricity from an
Energy Service Provider (ESP) other than the local utility. This practice is known as
"Direct Access," In 1998, the City purchased hydroelectric generated - green power -
through a SANDAG organized purchasing pool - the Power Pool. The Power Pool was
created to leverage the purchasing power of local agencies by aggregating energy
usage. Members of the Power Pool received green power at a sliding discount with a
maximum of 10% below SDG&E's electricity rates.
On June 2000 the Power Pool was disbanded when the ESP would not agree to an
extension. On September 20, 2001 the CPUC suspended Direct Access (DA). On May
8, 2003 the CPUC issued Decision D.03-05-034, which determined the rights and
obligations of DA customers to switch between bundled service and direct access.
Under the decision, the CPUC authorized previous customers to receive, evaluate and
state an intent to switch to DA by April 17, 2004. Once a final selection is made, all DA
eligible accounts are required to switch to DA service on/or before June 17, 2004. To
ensure that bundled customers are not saddled with the full cost of Department of Water
Resources power contracts, exit fees of up to 2.7 cents will apply.
RECOMMENDATION:
That Council adopts the resolution waiving the formal bid process pursuant to Municipal
Code Section 2.56.070 and authorizing the City Manager to Enter into a "Direct Access"
Agreement in substantially the form presented with an Energy Service Provider for
Electricity Supply for Eligible City Facilities provided terms and conditions are more
favorable than those offered by SDG&E.
BOARD AND COMMISION RECOMMENDATION: Not Applicable.
/5-1
" -".~~--"
PAGE 2, ITEM: ~
MEETING DATE: April 20. 2004
DISCUSSION:
Direct Access (DA) allows electricity customers to purchase electricity and certain
ancillary services directly from an entity other than the distribution utility.
City staff has been monitoring the Direct Access discussions by the CPUC and was
previously notified by SDG&E on January 23, 2004 that city electricity accounts were
not eligible for DA service. After a thorough review of the CPUC order, staff notified
SDG&E that it contained City accounts that were eligible for DA. On March 12, 2004
the City was notified by SDG&E that the following five city electricity accounts were
eligible for DA service
Direct Access Eli ible Accounts
Address Account #
276 4In Street 5822194600
775 Buena Vista Way 6693751901
361 F Street 6848778107
276 4In Avenue 8072194602
389 Oranqe Avenue 8389316230
Staff was informed that it has until April 17, 2004 to receive, evaluate and state it's
intent to select an ESP. The City will be under no obligation to finalize a contract. The
City has until June 17, 2004 to implement the switch to Direct Access. Staff
immediately initiated contacts with ESPs to identify and solicit interest in submitting a
proposal to service the City's eligible accounts. SDG&E merely required a letter
expressing the City's intention by April1ih to maintain the City's eligibility for DA. Staff
submitted the letter on April 16, 2004. The City has until June 17th to commit or
withdraw from DA without penalty.
Staff anticipates that proposals from at least three of the five energy companies that
initially expressed interest in serving the city's accounts will submit proposals. All
potential bidders were informed that final award of contract was subject to Council
review and approval. The proposals were due on or before April 16, 2004. Staff will
provide an update at the City Council meeting.
Attached for Council consideration are standard power agreements that reflects the
general terms and conditions of a potential power sale. The power contract has
unlimited duration but with no real obligations and is cancelable at will by either party
with 30 days notice. The essential elements of the contract; price, quantity, delivery
points are assigned to an addendum which is negotiated from time to time; and often
with voice, e-mail or wire confirmation. The "addendum" is negotiated periodically
(often every month) with a commitment required within 24 - 48 hours to secure the most
favorable price point and terms. A copy of SEMPRA's, electricAmerica's, and Strategic
Energy's agreements are included as an example of the form and general content of
power contracts for the DA market (Attachments 1-3).
/f;-:¿
PAGE 3, ITEM: ~
MEETING DATE: April 20. 2004
Purchases of power as a commodity is extremely time and condition sensitive (day
ahead or even hour ahead timing can be crucial to price) and delay could cause the
offer to be withdrawn or significantly modified. In evaluating proposals received, staff
will consider a potential portfolio of "addenda" for power use (Iong-term/short-term/peak
usage) iffeasible to hedge the seasonal and time volatility.
As stated above, attached are proforma agreements, which represents industry
standards. Based on the extreme time constraints, the efforts to solicit bids from
qualified ESPs and the non exclusive nature of the agreement, staff requests the
Council determine that it is impractical to apply the bidding requirements to these
agreements and the City's interests are materially better served by waiving the formal
bid process and authorize the City Manager to enter into such contracts from time to
time to take advantage of price opportunities provided the terms of the contract does not
exceed SDG&E's price to the City. As proposals are received, Staff will compare the
proposal price points and applicable exit fees against the City's current and projected
costs with SDG&E to ensure the City's interests are best served.
FISCAL IMPACT:
There will be no net impact to the general fund balance to evaluate power purchase
proposals from Electric Service Providers. In the event that the City receives a proposal
that is at a lower cost as compared to SDG&E and is acceptable, there will be a net
savings to the general fund.
Due to the limited number of accounts eligible for DA, staff does not anticipate any
additional resources or staffing to manage the power purchase agreement contract. If
in the future legislation is passed or the CPUC adopts rules to allow additional electricity
accounts to be added to DA, staff will return to Council with a recommendation.
Attachment 1: Sempra Energy Solutions Sample Contract
Attachment 2: electricAmerica Sample Contract
Attachment 3: Strategic Energy Sample Contract
homeladminsuplsidlmeuldirect access a113 lor 4-20-04 cc meeting
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Attachment 1
ELECTRICITY SALES AND PURCHASE AGREEMENT
Between Sempra Energy Solutions ("Sellen
And <Company Legal Name> ("Buyer")
As of <Month, Day, Year> (the "Effective Date")
THIS AGREEMENT is made by and between Seiler and Buyer, obligations assumed hereunder regardless 01 the inlonnation provided
referred to coilectively as the "Parties" and each individuaily as a by Seiler.
"Party". Seiler is willing to seil Electricity to Buyer and Buyer is willing
to purchase Eiectricity from Seller for good and sufficient ARTICLE 5, METERING Buyer wili be responsibie for installing
consideration, including the mutual covenants set forth in tIlis meters and reiated equipment (including any teiemetry and associated
Agreement. The Parties agree as foliows: telephonic connections) at Buyer's Facililies, which are required by
Buyer's Local Utility for Seiler to perfonn its obligations under this
ARTICLE 1. TERM OF AGREEMENT This Agreement will be in Agreement. Buyer's or Buyer's Local Utility's, meters shali measure ail
effect as of the Effective Date. EltIler Party may tenninate tIlis Eiectricity delivered to tile Delivery Point(s), except as otllerwise
Agreement at any time in accordance with the Default and Termination specified In an Addendum. Buyer must aliow Selier or its
provisions. Ali tenninations not related to Breach or Force Majeure representatives reasonable access to Buyer's Facilities to instail
require thirty (30) days prior written notice. required metering devices, and other equipment. If Buyer does not
provide reasonable access to Buyer's Facilities, and such failure I
ARTICLE 2, SCOPE OF AGREEMENT Seller wili seli and cause to delays perfonnance by Selier, Buyer wili be responsible for any
be delivered, and Buyer will accept and pay for Electricity delivered at resulting adverse financial affect on Seiler.
the Delivery Point(s) set forth In the Addenda. The Parties may also
enter into financial transactions to hedge Electricity price exposure. ARTICLE 6. BILLING PAYMENT AND CREDIT.
Selier will be responsible for entering into arrangements with Buyer's (a) Selier will invoice Buyer the total amount due for Electricity sold to
Local Utility for delivery of Electricity to the Delivery Point(s). Buyer under this Agreement each month in a manner consistent with
ARTICLE 3. ELECTRICITY PRICE The Addenda to this Agreement Seiler's billing cycle. Seiler wili calculate the amount(s) due based
set forth the mutualiy agreed Contract Price, Contract Quantity, and upon either, Buyer's actual usage infonnation provided by Buyer's
any special tenns and conditions for the transaction specified therein, If Local Utility at its meters, or by Buyer at Buyer's meter, whichever is
there is no Addendum in effect at the time Electricity is delivered during applicable. Selier may estimate tile amounts that are unknown due to
the tenn of this Agreement, the price of Electricity wiil be the Base delays in receipt by Seiler of invoices from suppliers or an RTO. Seiler
will adjust future invoices to reftect actual costs incurred by Seiler when
Price. the necessary infonnation is received.
ARTICLE 4, OBLIGATIONS OF THE PARTIES (b) Invoices will be immediately due and payable by Buyer, without I
(a) Selier wili deliver or cause a third party, including, without Set-off, on the date of each invoice. Payments to Selier by Buyer wili
be past due on the eleventh (11~) day foliowing the date of invoice. Ali
limitation, Buyer's Local Utility, to deliver Buyer's Electricity past due payments shail bear the Interest Rate from the date due until
requirements to Buyer at tile Delivery Point(s) upon receipt of: (i) an
executed Enroliment Fonn from Buyer, (iI) an accepted enrollment the date payment is received in fuil by Seiler.
request by Buyer's Local Utility, and (ili) a designated active switch (c) If there is a good faith dispute regarding any invoice, Buyer wili
date from Buyer's Local Utility, provided that, Selier will have no pay tile undisputed amount of such invoice, and meet and confer with
obligation to deliver amounts exceeding the capacily of either Buyer's Seiler in good faith to resolve the disputed amount. The disputed
Facilities or Buyer's Local Utility. amount of an invoice will not be past due, nor begin to accrue interest,
(b) Buyer wiil execute and deliver to Buyer's Local Utility a notice of until the eariier of: (i) ten (10) days after the dispute is resolved, or (ii)
limited agency authorization substantialiy in tile fonn provided by Selier forty five (45) days after the dispute arose, in the event the Parties are
unable to resolve the dispute within such period. Any invoice wiil be
and be responsible for preparing and submitting to Buyer's Local Utility considered final two (2) years after payment of the invoiced amount
any documents necessary to authorize the release of infonnation to has been made.
Selier to enable Seiler to perfonn its obligations under this Agreement.
Buyer will comply with Buyer's Local Utility curtailment or interruption (d) Prior to executing an Addendum, Selier will have the right to
orders, or comparable notices requiring reduction, interruption or assess Buyer's credit-worthiness, and Selier may deliver Electricity
curtailment of Electricity usage at any of Buyer's Facilities upon receipt contingent upon Buyer fumishing evidence of continued financial
of notice, and Indemnify, defend, and hold Selier harmless from any responsibility, and delivery of any fonn of security as Selier may
claims, penalties, charges or expenses, and attorneys' fees and reasonably request. During the Effective Period of an Addendum, if
disbursements caused by Buyer's failure to comply with any notice tile financial responsibility of Buyer becomes materialiy impaired as
requirements. reasonably detennined by Selier, or Buyer's payments due to Seiler
pursuant to tIlis Agreement are past due by more than ten (10) days on
(c) Prior to or during any month of delivery, the Parues wili each use three (3) or more occasions in the prior twelve (12) months, reasonable
reasonable efforts to avoid the occurrence of an Imbalance between additional security may be required by Selier. If Buyer does not
Buyer's actual Electricity usage and Buyer's Baseline Usage. Buyer provide such additional security within fifteen (15) days of a written
shali notify Selier as soon as practicable prior to any revised monthly request by Selier, Selier may declare Buyer in Default in accordance
consumption forecast, including, without limitation, scheduled and with the Oefault and Tennination provisions of this Agreement.
anticipated outage dates.
ARTICLE 7. LIMITATION OF LIABILITY & WARRANTIES As
(d) In the event that there is a change in Buyer's Baseline, Buyer will between the Parties, Selier will be in exclusive control, hold title to, and
be responsible to Selier for tile adverse financial impact on Selier be responsible for any damage or injury caused by Electricity until it is
caused by such change. Buyer wili provide Selier notice of such delivered to the Delivery Point(s). After Electricity has been delivered
change with thirty (30) days prior written notice or as soon as to the Delivery Point(s), Buyer wili be in exclusive control, take title to,
practicable for change(s) tIlat should be reasonably foreseeable to and be responsible for any damage or injury caused by the Electricity.
Buyer. Selier shali take ali commercialiy reasonable actions to mitigate Neither Party shali be liable to the other for any indirect, special,
the impact of such change on Selier after such notice is received. consequential, punitive or exemplary damages arising out of or related
(e) Selier does not act as Buyer's advisor, expert, fiduciary, to this Agreement, whether based on contract, tort or otherwise, and
each Party hereby releases the other from any such liability, even if
representative or consultant. Selier has advised Buyer prior to during the term hereof they advise tile other of the possibility of such
entering into this Agreement that no such relationship exists or should damages. NEITHER PARTY GIVES NOR RECEIVES ANY
be relied upon, and that Buyer wili be solely responsible for the WARRANTY REGARDING SALE, PURCHASE OR DELIVERY OF
Electricity Sales and Purchase Agreement /5-4 Rev. 3/12/04
Sempra Energy Solutions is not the same company as the utility, SOG&E or SoCalGas, and Sempra Energy Solutions is not regulated by the
Callfomia Public Utilities Commission.
.. -----------
ELECTRICITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY, Buyer will not resell any Electricity to a third party; (c) all of the
EXCEPT AS PROVIDED IN THIS AGREEMENT. SELLER information furnished by Buyer concerning Buyer's Facililies (Including
SPECIFICALLY OiSCLAIMS ANY IMPLIED WARRANTIES OF applicable load factors, Buyer's Local Utility rate classes and
MERCHANTABILITY OR FITNESS OF ELECTRICITY FOR A schedules, time of use, and service Information) Is to the best of
PARTICULAR PURPOSE OR USE. THE OBLIGATIONS OF THE Buyer's Information and belief, true and correct when furnished to
PARTIES UNOER THIS AGREEMENT ARE OBLIGATIONS OF THE Seller; (d) Buyer owns or controls Buyer's Facilities, or has control over
PARTIES ONLY, ANO NO RECOURSE SHALL BE AVAILABLE the delivery of Electricity and other energy related products and
AGAINST ANY EMPLOYEE, OFFICER, OIRECTOR, services to them; (e) Buyer shall operate its facilities consistent with
SHAREHOLDER, MEMBER, PARTNER, OR AFFILIATE OF A Buyer's Baseline; and (f) any transactions entered into by Buyer
PARTY. related to this Agreement are made at Buyer's sole election in the
exercise of its independent judgment without duress, and Buyer
ARTICLE 8, FORCE MAJEURE Except for Buyer's obligation to pay assumes any risk associated with such transactions, including without
Seller for Electricity delivered by Seller to Buyer prior to occurrence of limitation any information or assumptions used or relied on in finalizing
a Force Majeure event, if either Party is rendered unable, whoily or in this Agreement or any Addenda.
part, to perform its physical obligations under this Agreement due to
Force Majeure, to the extent affected by the Force Majeure the ARTICLE 11, DEFINITIONS Capitalized terms used in this Agreement
obligations of each Party will be suspended for the duration of any have the following meanings:
inability to perform. A Party claiming Force Majeure will promptly notify (a) "Addendum" means each supplement to this Agreement that is
the other Party by telephone and confirm within a reasonable period of
time by a written notice describing in reasonable detail the nature, and mutually agreed upon in writing by the Parties.
estimated duration, of such inability to perform. The cause of inability (b) "Agreement" means this Agreement, including all Appendices and
to perform will, so far as possible, be remedied with all reasonable Addenda that are incorporated by reference as part of this Agreement.
dispatch. If the duration of the Force Majeure event exceeds twenty
(20) days, the Party not claiming Force Majeure may terminate this (c) "Business Day" means any day except Saturday, Sunday, or
Agreement upon ten (10) days written notice. Any termination due to Federal Bank Holidays.
Force Majeure will not be subject to an early termination payment. (d) "Base Price" means charges for the settlement interval at the time
ARTICLE 9. DEFAULT AND TERMINATION of delivery of Electricity as determined by either; (a) the RTO
controlling the location(s) in which the Oelivery Point(s) are located or,
(a) In the event of Breach, the non-breaching Party shall provide the (b) the applicable costs assessed by Buyer's Local Utility, plus all costs
breaching Party written notice of the Breach and an opportunity to to deliver Electricity to the Delivery Points, plus five dollars ($5.00) per
cure. Any Breach that is not cured within ten (10) days shall constitute MWh.
a Default and the non-defaulting Party may terminate this Agreement (e) "Breach" means; (a) failure to make payment when due under this
or the affected portion hereof (e.g" Addendum) without further notice.
Any termination of this Agreement will be without waiver of any remedy Agreement; (b) failure to perform any material obligation under this
to which the Party not in Default may be entitied under law and this Agreement; (c) becoming insolvent, filing for, or being forced into,
Agreement. bankruptcy, or making an assignment for the benefit of creditors, (d)
becoming unable to comply with its representations and warranties set
(b) Upon Buyer's Default or II Buyer chooses to terminate this forth in this Agreement: or (e) failure to provide additional security upon
Agreement for any reason, Buyer will pay to Seller an early termination request.
payment calculated for the remaining term of this Agreement, that is (f) "Buyer's Baseline" means, the information provided by Buyer
the positive difference, if any, obtained by subtracting the Cover from
the Full Contract Amount, and Buyer may exercise any right of Set-off. used in establishing the Addendum, including the stipulated MWh
Interest on the resuiting amount will accrue at the Interest Rate, usage set forth in each Addendum.
calculated from the early termination date until Seller receives full (g) "Buyer's Facililies" means the account(s) identified in Appendix II.
payment.
(c) Upon Seller's Default or II Seller chooses to terminate this (h) "Buyer's Local Utility" means the electric distribution utility, or
Agreement for any reason, Seller will pay Buyer an early termination utilities; responsible for the service territories in which Buyer's Facilities
payment calculated for the remaining term of this Agreement that is the are located.
positive difference, if any, obtained by subtracting the Full Contract (i) "Contract Price" means either the price per MWh set forth in an
Amount from the Replacement Amount, and Seller may exercise any Addendum or the Base Price.
right of Set-off. Interest on the resulting amount will accrue at the
Interest Rate, calculated from the earty termination date until the date 0) "Cover" means total U.S. dollar amount Seller recovers from the
payment is received. good faith resale of Buyer's Contract Quantity of Electricity in the
market.
(d) Any pre-existing unresolved claims or disputes by either Party (k) "Oefault" means the failure of a Party to cure its Breach with ten
including, but not limited to, money owed, performance due, or any (fO) days after receiving written notice of a Breach by the non-
other obligations of the Parnes, that are the result of the other Party's
performance or non-performance related to this Agreement as of the breaching Party.
date of termination will survive termination of this Agreement and will (I) "Delivery Point(s)" means the physical point(s) set forth in
be resolved in accordance with the terms and conditions of this Addenda at which Seller delivers, or causes to deliver, Electricity to
Agreement. All indemnity, confidentiality, warranty and unperformed Buyer.
obligations will survive termination of this Agreement. (m) "Electriclly" means electric energy (expressed in MWh) and the
ARTICLE 10. REPRESENTATIONS AND WARRANTIES Each Party related products and services that are identified in the Addendum.
represents and acknowledges to the other that: (a) it is validly existing (n) "Electronic Commerce" means legally binding communication
and financially able to continue its business; (b) it has not filed, does conducted by electronic means, such as email.
not plan to file, or had any bankruptcy proceeding filed against it; (c)
execution of this Agreement has been duly authorized and is a valid (0) "Force Majeure" means events or circumstances beyond the
and enforceable obligation; (d) it is not a party to or subject to any control of a Party to the extent they prevent that Party from performing
commitment that may restrict or interfere with the delivery of Electricity its physical obligations under this Agreement that could not have been
under this Agreement, and (e) no discussion, materials or information reasonably anticipated at the time the Agreement was entered into,
provided in connection herewith shall be deemed to be a and which the Party claiming Force Majeure is unable to avoid or
representation that is free from error or suitable for any particular prevent through the exercise of due diligence. A claim of Force
purpose or use. Buyer represents to Seller that: (a) Buyer will not Majeure may not be based on: (i) Buyer's inability to economically use
purchase Electricity for its own consumption from Buyer's Local Utility, or dispose of Electricity purchased under this Agreement; (ii) Buyer's
or from any third party Electricity provider for any accounts listed in election to close or materially curtail or discontinue operation of
Appendix II during any time in which an Addendum is in effect; (b) Buyer's Facilities due to economic circumstance; (iii) loss or failure of
-2- 1£-5
delivery of Seller's supply of Electricity; or (iv) Seller's ablilly to sell the (c) Unless otherwise specified herein, any notice, tennlnation or
Eiectricity at a price greater than the Contract Price. Default, nominations, invoices, or other communication required or
(p) "Full Contract Amount" means the agreed upon Contract Price pennitted under this Agreement must be in writing and will be
considered given when sent by express mail or receipt confinned fax,
muitiplied by the applicable Contract Quantity of Electricity. addressed as provided in Appendix I. Either Party may change any
(q) "Interest Rate" means two percent (2%) per annum over the address listed in Appendix I by written notice to the other Party given In
prime-lending rate as pubiished in The Wall Street Journal under the same manner.
"Money Rates", compounded semi-annually; provided that, the Interest (d) Each Party hereby consents to the recording and storage of Voice
Rate may never exceed the maximum rate pennitted by Law. Records and Electronic Commerce and waives any objection to
(r) "Law" means any constitution, charter, statute, ordinance, code, recording of Voice Records and use of Electronic Commerce and to
rule, regulation, tariff or other legislative or administrative action of any the admissibility of Voice Records and Electronic Commerce in dispute
govemmental entity, Including, without limitation, any related court resolution proceedings of any kind.
decision or rules, policies and procedures lawfully ordered by a (e) This Agreement is the complete understanding between the
transmission provider, power RTO governing the area in which Buyer's Parties, supersedes all previous discussions and communications
Facilities are located. related to this Agreement, and cannot be modified or supplemented
(s) "MWh" means a Megawatt-hour of Electricity. except In a writing signed by both Parties.
(t) "Off-Peak Hours" means hours not defined as On-Peak Hours. (f) Except for transfers to affiliates of equal or greater creditworthiness
after thirty (30) days written notice, no transfer or assignment, in whole or
(u) "On-Peak Hours. means hours detennined to be "on peak" by part, of the rights and/or obligations under this Agreement shall be made by
Buyer's regional reliability council of the North American Electric either Party without the prior written consent of the other Party, which shall
Reliability Council, or any successor entity, governing the area in which not be unreasonably withheld, although prior to such consent reasonable
Buyer's Facilities are located. requirements may be imposed to: (i) establish creditworthiness for any
successor, and (ii) confinn assumption by such successor of the
(v) "RTO" means a power pool, Independent system operator, transferring Party's obligations, Inciuding without limitation in the event of a
transmission provider, or Buyer's Local Utility acting as the grid partial transfer by Buyer to a third party related to any contract for the
manager, or any comparable entity that provides system management operation or other use of Buyer's Facilities. This Agreement will be
and oversight for Electriclly delivered to Buyer's Facilities. binding upon and inure to the benefit of the Parties' pennitted
(w) "Replacement Amount" means the total cost in U.S. dollars of successors and assigns.
Buyer's good faith purchase of Electricity under tenus and condi'!J)ns (g) The Parties will attempt In good faith to resolve through negotiation
comparable to those provided in this Agreement. any dispute, claim or controversy arising out of or relating to this
(x) "Set-off' means, without limitation, offset, combination of Agreement. Either Party may initiate negotiations by providing written
notice to the other Party, setting forth the subject of the dispute and the
accounts, netting, right of retention or withholding, or comparable right relief requested. The recipient of such notice will respond in writing
or requirement to which a Party is entitied or subject to (whether within five (5) days with a statement of its position on and
arising under this Agreement, other agreements, Law, or otherwise) recommended solution to the dispute. If the dispute is not resolved by
that is exercised by, or imposed on, the other Party. this exchange of correspondence, then representatives of each Party
(y) "Taxes" means all taxes, assessments, levies, duties, fees, with full settlement authority will meet at a mutually agreeable time and
charges or with holdings of any kind and all penalties, fines, additions to place within ten (10) days after the date of the initial notice in order to
tax, or interest on unpaid taxes (excluding any taxes on net income). exchange relevant infonnation and perspectives, and to attempt to
resolve the dispute. If the dispute is not resolved by these negotiations,
(z) "Voice Record" means recorded telephone conversation between the matter will be submitted to binding arbitration.
representatives of the Parties related to this Agreement. Any dispute, claim or controversy in connection with this Agreement or
ARTICLE 12. ORDER OF PRECEDENCE The Appendices and the breach, tennination, enforcement, interpretation or validity thereof,
Addenda attached to this Agreement are incorporated by reference as including the detennination of the scope or applicability of this
part of this Agreement. If there is a conflict between the tenus and Agreement to arbitrate, shall be determined by binding arbitration in
conditions of this Agreement and the Appendices or the Addenda, the Houston, Texas, before a single arbitrator, in accordance with the laws
order of precedence will be: (a) the Addenda currently in effect, in the of the designated in Article 13 (a). The arbitration shall be conducted
order In which they are effective: (b) the tenus and conditions of this under the expedited ruies of the American Arbitration Association, but
Agreement; and (c) the Appendices. not under such entity's auspices, unless mutually agreed. The Parties
shall mutually agree on a single, impartial arbitrator with at least fifteen
ARTICLE 13 MISCELLANEOUS (15) years experience in energy commodity matters; however, in the
event the Parties fail to agree on the arbitrator, such person shall be
(a) Capitalized tenus used in this Agreement have the meanings set selected according to the above rules (except to the extent modified
forth in this Agreement or Addenda. When the singular number is hereby).
used, it is deemed to include the plural and vice versa. This Agreement Allocation of Fees and Costs. The arbitrator shall, issue a written
will be interpreted in accordance with, and perfonnance governed by,
the Law of the state in which Buyer's Facilities that are most affected decision not more than forty-five (45) days following the ciose of the
by a ciaim or dispute are located, exciuding any Law, which would arbitration, which among other things, shall award all of the costs of the
direct the application of the Law of any other jurisdiction. arbitration, including the fees of the arbitrator, expert witnesses, and
the reasonable attomeys' fees, costs, and disbursements of the
(b) This Agreement is strictly confidential and shall not be disclosed prevailing Party, against the Party who did not prevail. No
by a Party except as required by law or government authority, without "compromise" decisions shall be rendered in the arbitration, with the
the prior written consent of the other Party; provided that Seller may arbitrator to select the position of one Party to the exclusion of the
publicize the existence of this Agreement in press releases and sales other Party on any issue In dispute. The limitation of liability in Section
and marketing materials, and identify Buyer as a reference to third 7 shall apply to any decision rendered in an arbitration proceeding.
Parties. (h) No waiver by either Party of any obligation hereunder, including
without limitation any Default by the other Party in performance of any
obligation under this AgreemenL will be considered a waiver of any
future obligation, whether of a similar or different character. Any
waiver shall be in writing.
(i) This Agreement does not give rights enforceable by any person or
entity not a Party to this Agreement. If any provision of this Agreement
is found to be illegal or unenforceable, the provision will be considered
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stricken and the remainder of this Agreement will remain in full force
and effect to the extent not inconsistent with the onginal intent hereof.
ü> This Agreement may be signed in counterparts. each of which will
constitute an onginal and together will constitute one and the same
Agreement.
(k) The Parties may conduct transactions using Voice Records or an
Electronic Commerce method, under which the Parties will
electronically transmit and receive legally binding purchase and sale
obligations conceming agreements for physical and financial
transactions. An Electronic Commerce Record shall be deemed
received upon arrival at the receiving Party's electronic mailbox or
intemet address. Electronic Commerce Records and Voice Recordings
are used by Seller in the ordinary course of Its business, and are
Incorporated by reference as part of this Agreement.
For SELLER:
SEMPRA ENERGY SOLUTIONS
By:
Title:
For BUYER:
<COMPANY LEGAL NAME>
By:
Title:
/ -
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APPENDIX I
FORM OF NOTICE FOR THE ELECTRICITY SALE AND PURCHASE AGREEMENT
BE1WEEN SEMPRA ENERGY SOLUTIONS ("SELLER")
AND <COMPANY'S LEGAL NAME> ("BUYER")
AS OF <MONTH DAY, YEAR> ("EFFECTIVE DATE")
Date of Last Revision
Sempra Energy Solutions <Company Name>
Attention: Contract Administration Attention:
101 Ash Street, HaOg <Street Address>
San Diego, CA 92101 <City, State, Zip>
Telephone: (619) 696-3187 Telephone:
Facsimile: (619) 696-3050 Facsimile:
Email: dwhite sem rasolutions.com Email:
<AccountManager's Name> <Name Of Contact>
Sempra Energy Solutions <Customer's Name>
<Street Address> <Street Address>
City, State Zip <City, State, Zip>
Telephone: Telephone:
Facsimile: Facsimile:
Email: Email:
.r ~.. '" '"
Sempra Energy Solutions <Company Name>
Attention: Power Scheduler Attention:
101 Ash Street, Ha09 <Street Address>
San Diego, CA 92101 <City, State, Zip>
Telephone: (619) 696-3111 - West Telephone:
(619) 696-3110 - East
Facsimile: (619) 696-3102 Facsimile:
Email: Email:
Sempra Energy Solutions <Company Name>
P.O. Box 51345 Attention:
Los An eles, CA 90051-5645 <Street Address>
<C;ity,State,..Zip>
Telephone:
Union Bank of California Facsimile:
ABA Number 1220-00496
For the account of Sempra Energy Copies To: If Applicable
Solutions, LLC
Account Number 0700497437
Buyer's Initials-
/5-8
Sempra Energy Solutions is not the same company as the uti illy, SDG&E or SoCal. and Sempra Energy Solutions is not reguiated by the
California Public Utilities Commission.
'-------"---"
APPENDIX II
ENROLLMENT FORM
FOR THE ELECTRICITY SALE AND PURCHASE AGREEMENT
BETWEEN SEMPRA ENERGY SOLUTIONS ("SELLER")
AND
<COMPANY'S LEGAL NAME> ("BUYER")
AS OF <MONTH DAY, YEAR> ("EFFECTIVE DATE")
Delivery Point Reference:
NERC Re ion Market Area Delive Point Utili
1. CUSTOMER ACCOUNTS
2. ACCOUNT INFORMATION Buyer represents that the account information listed above is for
Buyer's own account(s) with Buyer's Local Utility. Buyer acknowledges that Seller will rely on the accuracy of
the account information listed above in performing its obligations under this Agreement.
3. DOCUMENTATION Buyer authorizes Seller, and Buyer assumes responsibility for preparing
and submitting to Buyer's Local Utility any required documents appointing Seller as Buyer's energy service
provider, substantially in the form provided by Seller, and any other documents reasonably required for Seller to
act as limited agent of Buyer, including authorizing the release of customer-specific information to Seller. Buyer
will provide Seller with all account information and other documents required to appoint Seller as Buyer's
energy service provider no later than three (3) business days prior to any deadline designated by Buyer's Local
Utility. Costs and expenses incurred by Seller as a result of a delayed or unsuccessful enrollment of Buyer as
Seller's customer will be Buyer's sole responsibility provided that the deiay or failure is not a direct result of any
action or inaction by Seller. Buyer represents to Seller that it can and will be enrolled on the Start Date for the
sale and purchase of Electricity.
SEMPRA ENERGY SOLUTIONS <CUSTOMER'S LEGAL NAME>
By: By:
Title: Title:
/S"- C
Sempra Energy Solutions is not the same company as the utility. SDG&E or SoCal, and Sempra Energy Solutions is not regulated by the
California Public Utilities Commission.
~~ Attachment 2
..
THE PIWER If SAYI..S"
~ II
ELECTRIC SERVICE AGREEMENT
TillS ELECTRIC SERVICE AGREEMENT (the "Agreement") is made and entered into as of ~
day of April, 2001 by and between Commonwealth Energy Corporation, doing business as
electricAmericaTM ("electricAmerica"), a California corporation, with its office located at 15901 Red Hill
Avenue, Suite 100, Tustin, California 92780, and City of Chula Vista ("Customer"), with service to
commence on Service Commencement Date. electricAmerica and Customer may individually be referred
to as a "Party" and collectively as the "Parties."
RECITALS
WHEREAS, electricAmerica is in the business of providing electricity and related services to direct
access customers in California and is licensed to do so by the California Public Utility Commission (A-
110117) and the Federal Energy Regulatory Commission (ER 97-4253);
WHEREAS, Customer is a. commercial or industrial enterprise and is authorized to purchase electricity
and related services for the Account(s) ["Account(s)"] listed on Attachment B to this Agreement;
WHEREAS, electricAmerica desires to provide electricity and related services to Customer; and
WHEREAS, Customer desires to purchase electricity and related services from electricAmerica in direct
access transactions subject to the tenus and conditions set forth in this Agreement;
NOW THEREFORE, in consideration of the mutual promises set forth in this Agreement,
electricAmerica and Customer agree as follows:
DEFINITIONS
AGREEMENT TERMINATION DATE ("TERMINATION DATE"). This Agreement shall
terminate upon expiration of the tenD as further defined in Section 1 of this Agreement calculated from
the Service Commencement Date. The Tennination Date shall initiate final invoicing of any and all
balances, which accelerate and become due upon tennination of this Agreement.
CALIFORNIA PUBLIC UTILITY COMMISSION. The California Public Utility Commission is the
state agency responsible for overseeing the restructuring of the electricity industry in the State of
California. The Public Utility Commission governs electric restructuring, meter and billing requirements
for Energy Service Providers such as electricAmerica. electricAmerica is licensed to do business in
California under license No. (ESP # 1092).
UTILITY DISTRIBUTION COMPANY ("ODC"). A public utility located in the State of California;
current utilities are Pacific Gas & Electric, San Diego Gas & Electric, and Southern California Edison..
SERVICE COMMENCEMENT DATE. Customer's Service Commencement Date is the date on
which Customer first receives energy from electricAmerica whether or not electricAmerica is to install
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8IactrIoAmerlca œ
THE POWER OF SAY II law
any equipment to commence service. The Service Commencement Date shall in no event be before the
date upon which electricity is actually being provided by electricAmerica. In the event Attachment B
references more than one meter, the tennination date shall be measured trom the date Customer fITst
receives electricity to anyone of such meters.
DUE DATE. Customer shall be responsible for paying any and all invoices under this Agreement within
fifteen (15) days from receipt of electricAmerica's invoice.
CURE PERIOD. In the event Customer fails to pay on the "Due Date," electricAmerica will provide to
Customer a written notice of non-payment and Customer shall have five (5) days trom receipt of such
notice to cure the non-payment.
TERMS AND CONDITIONS
1. TERM OF AGREEMENT. This Agreement shall become effective when signed with electric
service to begin upon the Service Commencement Date. The Initial Contract Tenn of this Agreement
shall be twelve (!l) months trom the Service Commencement Date. Upon expiration of the Initial
Contract Tenn, this Agreement shall renew and continue by its tenus and conditions on a month to
month basis until either Party mails a written notice to the other Party via certified mail at least 30
days prior to the intended tennination date. In the event of tennination, the effective date shall be the
end of the billing cycle following 30 days after receipt of such notice. Further, at all times during this
Agreement, electricAmerica reserves the right to cancel service to Customer if Customer is in Default
(failure to make payment of all amounts due on or before the "Due Date") of this Agreement. In the
event of cancellation due to Default, this Agreement will tenninate at the end of the fifth (5th)
business day after Customer's receipt of written notice of termination for Default, unless Customer
cures all Defaults in full prior to the end of said fifth (5th) business day.
2. FULL REQUIREMENTS. electricAmerica shall sell and deliver, and Customer shall purchase and
receive one-hundred percent (100%) of the electricity requirements for the Account(s) to the extent
that those requirements are not already met by Customer's existing on-site generation or as listed in
Attachment B to this Agreement.
3. EXCLUSIVE SUPPLIER. electricAmerica shall be Customer's exclusive electricity supplier for
the tenD of this Agreement, for all accounts covered by this Agreement.
4. RIGHT TO FIRST REFUSAL. If within 60 days prior to the expiration of the initial tenD of this
Agreement Customer receives an offer trom a third Party ("Third Party Energy Offer") to provide
energy service to any of Customer's facilities that Customer desires to accept, Customer shall
immediately provide to electricAmerica the material tenus of the Third Party Energy Offer provided,
Customer is not required to furnish the identiy of any third Party energy provider. electricAmerica
shall have the right, but not the obligation, within ten (10) Business Days of receipt of the material
tenus of the Third Party Energy Offer, to elect to provide Electricity to Customer upon the same
material tenus as the Third Party Energy Offer. If electricAmerica does not elect to match the
material tenus of the Third Party Energy Offer, electricAmerica shall be deemed to have waived its
right of first refusal, but only as to the Third Party Energy Offer contained in the notice, and not as to
any other Third Party Energy Offers. If electric America elects to match the Third Party Energy
Offer, Customer agrees to take any and all actions, including execution of any amendment, to
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T H I POWER' OF I A V I . . ...
continue this Agreement in effect in accordance with terms and conditions of the Third Party Energy
Offer, including the additional telTIl.
5. ADDITIONAL BUYER FACILITIES. If Customer acquires or completes construction of
additional facilities ("Additional Facility(ies)") e1ectricAmerica shall have the option to provide
energy to the additional facility(ies) on telTIls mutually acceptable to the Parties. If the Parties are not
able to mutually agree on telTIls related to the Additional Facility(ies) and Customer receives a Third
Party Energy Offer related to the Additional Facility(ies) that Customer desires to accept, Customer
shall immediately provide electricAmerica the material telTIls of the Third Party Energy Offer, (other
than the identity of the third party energy provider), and electricAmerica shall have the right, but not
the obligation, within thirty (30) Business Days of receipt of the material terms, to elect to provide
energy to Customer upon the same material terms as such Third Party Energy Offer. If
electricAmerica elects to provide energy to such Additional Facility(ies), Attachment B shall be
revised to include such additional Facility(ies). electricAmericas' right of first refusal with respect to
energy is not an obligation of electricAmerica to provide energy to Additional Facility(ies).
6. ENERGY CONSUMPTION INFORMATION. Customer shall provide electricAmerica with
Customer's current and historical electricity cost and usage data, payment and credit history, Dunn &
Bradstreet number and other data reasonably necessary for electricAmerica to provide electric service
pursuant to this Agreement. Customer agrees, upon request, to provide electricAmerica with facility
descriptions, operating infolTIlation, meter identification numbers and locations, and such other
infonnation available to Customer as electricAmerica may reasonably require to provide electric
service pursuant to this Agreement. Except as otherwise required by applicable law, regulation, or
court order, e1ectricAmerica shall maintain, in confidence, all such infonnation.
7. SERVICE PROGRAM. Customer shall accept delivery of electricity ITom electricAmerica
pursuant to the Pricing Structure indicated in Attachment A, "Pricing Structure." Customer shall
pay electricAmerica for all electricity delivered by electricAmerica and received by Customer
pursuant to the telTIls in Attachment A
8. BILLING. electricAmerica shall bill Customer for services provided pursuant to this Agreement
using one of the following billing options. These billing options are subject to change at
electricAmerica's sole discretion. In the event that the billing options change, Customer shall receive
thirty (30) days advance notice of such change in writing. electricAmerica shall use one of the
following billing options:
A. Consolidated UDC Billin!! Services: Customer's UDC will prepare and send Customer a
consolidated bill for both UDC and electricAmerica charges, process all Customer payments,
and convey the amounts received ITom Customer for electricAmerica charges to
electricAmerica.
B. UDC and electricAmerica Dual Billin!! Services: Customer's UDC will prepare and send
Customer a bill for UDC charges and electricAmerica will prepare and send Customer a bill
for electricAmerica charges. Customer will convey payment for UDC charges to UDC and
Customer will convey payment for electricAmerica charges to electricAmerica. UDC and
electricAmerica will independently process payments received ITom Customer.
C. electricAmerica Consolidated Billin!! Services: electricAmerica will prepare and send
Customer a consolidated bill for both electricAmerica and UDC charges, process all
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electrlcAmerlca m
THE POWER 0 F S A V I .. II~
Customer payments, and convey the amounts received ITom Customer for UDC charges to
UDc.
Regardless of which billing option is used, Customer shall be responsible for paying any and all costs,
charges, fees, and taxes, including public purpose programs and competitive transition charges,
related to the transmission, distribution and consumption of electricity provided to Customer pursuant
to this Agreement. Further, in the event that any billing errors occur, electricAmerica reserves the
right to correct the billing of Customer's account so that charges are in accordance with the pricing
tenus of Attachment A, by either crediting any amount which was overcharged or sending Customer
a corrected bill.
9. SECURITY DEPOSIT. The Parties hereby acknowledge that a security instrument consisting of a
letter of credit, perfonnance bond or cash in an amount to be detennined by electricAmerica in its
sole discretion mav be reQuired of Customer. Such security instrument shall be retained by
electricAmerica as security for the faithful perfonnance by Customer of all of the covenants,
conditions and agreements to this Agreement. electricAmerica may so apply the security if and only
if Customer is in Default of this Agreement. The said sum, if not applied toward the payment of
monies owed to electricAmerica, are to be returned to Customer when this Agreement is tenninated
or upon mutual agreement by the Parties.
10. DELIVERY POINTS. The delivery points ("Delivery Points") for electricity sold to Customer
pursuant to this Agreement shall be the "Point of Delivery" for each Account as defined in the rate
schedules of Customer's UDC.
11. AUTHORIZATION. Customer shall execute all authorizations required by state or federal law to
enable electricAmerica to provide services pursuant to this Agreement. Upon execution of this
Agreement, electricAmerica shall promptly submit an enrollment fonD to Customer's UDC. If, for
any reason, an enrollment fonn is not submitted or Customer's UDC fails to approve an enrollment
fOnD submitted by electricAmerica on Customer's behalf within two (2) months afthe Effective Date,
this Agreement may be tenninated, as to the unenrolled meters only, by either Party, without penalty,
by providing written notice oftennination to either Party.
12. DISCLAIMER OF WARRANTY. ELECTRICAMERICA EXPRESSLY DISCLAIMS ALL
WARRANTIES REGARDING THE QUALITY OF ELECTRICITY DELNERED TO
CUSTOMER PURSUANT TO THIS AGREEMENT, WHETHER WRITTEN, ORAL,
EXPRESSED, OR IMPLIED, INCLUDING, WITHOUT LIMITATION, MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE.
GENERAL TERMS & CONDITIONS
13. NOTICES. Except as otherwise specified in this Agreement, all notices, requests, consents,
approvals, agreements, authorizations, acknowledgments, waivers and other communications required
or pennitted under this Agreement shall be in writing and shall be deemed given when received, as
evidenced by a return receipt if sent by certified mail or delivered by hand to the address specified
below:
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fII8otrIeAmerlca ..
THE POWER 0 F I A' I . . s~
In the case of electricAmerica:
Commonwealth Energy Corporation
15901 Red Hill Avenue, Suite 100
Tustin, California 92780
In the case of Customer:
Michael Meacham
Director
The City of Chula Vista
276 Fourth Avenue
Chula Vista, CA 91910
14. FORCE MAJEURE. In the event that either Party's performance of its obligations under this
Agreement is interrupted or delayed by any occurrence not caused by either Party, its assigns or
agents, whether such occurrence is an act of God or public enemy, or whether such occurrence is
caused by storm, earthquake, or other natural forces, or by war, riot, public disturbance, or the acts or
omissions of anyone not a party to this Agreement, then either Party shall be excused from such
performance and any further performance required under this Agreement for whatever period is
reasonably necessary to remedy the effects of that occurrence.
IS. LIMITATION OF LIABILITY. IN THE EVENT ELECTRICAMERICA FAILS TO PERFORM
ITS OBLIGATIONS UNDER THIS AGREEMENT, CUSTOMER SHALL HAVE THE RIGHT TO
TERMINATE THIS AGREEMENT BY WRITTEN NOTICE SENT VIA CERTIFIED MAIL TO
ELECTRICAMERICA. ELECTRICAMERICA SHALL NOT BE LIABLE TO CUSTOMER FOR
ANY INJURY, DAMAGES, OR CLAIMS ARISING FROM OR RELATING TO THIS
AGREEMENT, WHETHER ARISING IN CONTRACT, TORT (INCLUDING BUT NOT
LIMITED TO INTENTIONAL TORTS, NEGLIGENCE, AND STRICT LIABILITY), OR
OTHERWISE, AND CUSTOMER HEREBY EXPRESSLY WAIVES ANY OTHER LEGAL OR
EQUITABLE REMEDY OTHER THAN TERMINATION AS REFERENCED IN THE FIRST
SENTENCE OF THIS SECTION.
16. INDEMNITY.
16.1 General Indemnitv. Both Parties shall indemnity and defend the other party from all claims
for any loss, damage, or injury to persons or property, including without limitation all
consequential, incidental, exemplary, or punitive damages arising from or relating to the
indemnitying party's performance under this Agreement prior to the delivery point of
electricity.
16.2 Suecial Indemnitv. Customer shall indemnity and defend electricAmerica from all claims
for any loss, damage, or injury to persons or property, including without limitation all
consequential, incidental, exemplary, or punitive damages arising from or relating to the
electricity beyond the Delivery Point for each Account(s).
Page50f7
CA ESA. 15-1'1-
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~.
8IeetrlcAmerica m
THE POWER OF IAVI..IN
17. ENTIRE AGREEMENT. This Agreement, including any Attachment, Exhibit or Schedule hereto,
embodies the entire Agreement and understanding between the Parties, and supersedes all prior
agreements and understandings between the Parties, whether written or oral, with respect to the
subject matter hereof. Except as provided for in this Section, this Agreement may not be amended
except by a written amendment signed by both Customer and electricAmerica.
18. SEVERABILITY. In the event that any of the tenDS of this Agreement are in conflict with any rule
or laws, regulations, provisions or otherwise unenforceable under the laws or regulations of any
government or subdivision thereof, such tenDS shall be deemed stricken from this Agreement, but
such invalidity or unenforceability shall not invalidate any of the other tenDS of this Agreement and
this Agreement shall continue in force, unless the invalidity or unenforceability of any such
provisions hereof does substantial violence to, or where the invalid or unenforceable provisions
comprise an integral part of, or are otherwise inseparable from, the remainder of this Agreement.
19. HEADINGS. Headings are for the convenience of the Parties and shall be ignored for purposes of
interpreting this Agreement.
20. ASSIGNMENT. electricAmerica may assign its rights and obligations under this Agreement to a
third Party. Customer does not have the right to assign its rights and obligations under this
Agreement to a third Party, and any attempt by Customer to assign its rights and obligations under
this Agreement is void and without effect.
21. REPRESENTATIONS AND WARRANTIES OF THE PARTIES. As a material inducement to
the other Party to enter into this Agreement, each Party represents and warrants to the other that, as of
the date of this Agreement each Party has full right, power and authority to enter into this Agreement,
and has obtained all necessary consents and resolutions required under the documents governing its
affairs in order to consummate this transaction, and the persons executing this Agreement have been
duly authorized to do so. This Agreement is a binding obligation on each Party, enforceable in
accordance with its tenDs.
22. PARTIAL INVALIDITY. If anyone or more of the provisions contained in this Agreement shall
be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or impaired thereby.
23. COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which
will be deemed an original, but all of which taken together shall constitute one single agreement
between the Parties.
24. REPRESENTATION BY COUNSEL. This Agreement is executed voluntarily by the Parties
hereto without any duress or undue influence being exerted thereon. The Parties hereto represent and
warrant that they have read and fully understand the provisions of this Agreement and have
participated equally, and relied on the advice and representation of legal counsel of their own
choosing in the drafting hereof. Accordingly, in any construction to be made of this Agreement, it
shall not be construed as having been drafted solely by any single Party to the subject litigation, or
settlement thereof.
Page 6 of?
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Authorized Version Revised 10-04-02 I
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..................
THE POWER 0 F . A Y I. . ....
25. ATTORNEY'S FEES. In the event of any action to enforce the tenus of this Agreement, each Party
shall bear their own expenses, including reasonable attorney's fees, oftheirrespective costs.
26. GOVERNING LAW. The fonnation, interpretation and performance of this Agreement shall be
governed by and construed in accordance with the laws of the State of California, without giving
effect to the principles thereof relating to the conflicts of laws.
IN WITNESS WHEREOF, the Parties, by their respective duly authorized representatives, have executed
this Agreement as of the date first written above. This Agreement shall not become effective as to either
Party unless and until executed by both Parties.
Commonwealth Energy Corporation, Customer
a California corporation
By: By:
Print Name: Print Name:
Title: Title:
Date: Date:
Page 7 of?
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Authorized Version Revised 10-04-02
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Attachment 3
i *. .. . Power Supply Coordination
. t t . Service Agreement
r a e 9 I ~ California
Ene rg Y Ceiling Product
sel.com
(888) 925-9115 i
This Agreement is entered into on April 15, 2004 and is between Strategic Energy
LLC. ("Strategic Energy") and The City of Chula Vista("Buyer").
1. Nature of Service:
Upon execution of this Agreement by both parties, and upon execution by Buyer of the Pricing Attachment, which is attached hereto
and incorporated herein, Strategic Energy agrees to provide Power Supply Coordination Services and Electricity to meet Buyer's
full usage requirements at Buyer's Facilities and Buyer agrees to receive and pay for Power Supply Coordination Services and
Electricity to meet Buyer's full usage requirements at the Buye~s Facilities. Strategic Energy will deliver Electricity to the Host
Utility for delivery to Buyer's Facilities.
2. Term:
This Agreement shall be effective upon execution by both parties and upon execution by Buyer of the Pricing Attachment Strategic
Energy shall use its best efforts to commence service in the start month stated on the Pricing Attachment However, Buyer
acknowledges that the commencement of service hereunder is dependent upon confirmation by the Host Utility of the completion of
all required switching and enrollment processes. Strategic Energy shall not be liable for any lost savings or lost opportunity as a
result of a delay in service commencement due to actions or inactions of the Host Utility, unless such lost savings or lost
opportunity are caused by the negligence or misconduct of Strategic Energy.
Service shall continue through the term specified in the Pricing Attachment (the "Initial Term") unless sooner terminated as
provided herein. At the end of the Initial Term, if the Buyer and Strategic Energy have not entered into any written modification,
amendment or renewal of this Agreement and if Buyer has not elected to obtain service from another retail electric provider, th is
Agreement shall automatically continue on a month to month basis ("Monthly Renewal") at the Market Based Rate as defined in
Paragraph 7.
3. Billing:
When practicable, Buyer shall receive separate bills from Strategic Energy and Buye~s Host Utility. OthelWise, Buyer shall receive
one bill generated by Buyer's Host Utility for both Strategic Energy's services and all charges assessed by Buyer's Host Utility.
4. PSC Services Fee:
The PSC Services Fee is 0.3 cents per kilowatt-hour for each kilowatt-hour of Electricity provided under this Agreement As
described in Paragraph 7 herein, the PSC Services Fee is included in the Initial Term Ceiling Price to be paid by Buyer.
5. Definitions:
As used herein, unless the context clearly indicates othelWise, the following terms shall have the meaning set forth below:
"Ancillary Services"
means wholesale electric services and products required to facilitate delivery of Energy to the Host Utility.
"Capacity"
means the ability to provide Energy as needed, as measured in kilowatts (kW) or megawatts (MW).
"Distribution"
means all delivery service for Energy, Capacity and applicable Ancillary Services provided by the Host Utility, excluding
Transmission.
"Electricity"
means the combination of Energy, Capacity, Transmission, and Ancillary Services which are provided by Strategic Energy under
this Agreement
"Energy"
means electrical energy, as measured in kilowatt hours (kWh) or megawatt hours (MWh).
4/15/2004 9:36:05 AM MHV... J 00074993-0001c
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"Facility (ies)"
means the plants, works, operations and/or facilities for which Buyer has the authority to purchase Electricity under this Agre ement
and, which are set forth on the Pricing Attachment and covered by this Agreement.
"Firm"
means that parties may only suspend performance hereunder to the extent that such performance is prevented for reasons of
Force Majeure.
"Force Majeure"
means any "Act of God" or other unexpected and disruptive event beyond the reasonable control of either party that interferes with
either party's ability to perform its obligations under this Agreement, except for the obligation to pay monies due. Any party which is
unable to perform its obligations hereunder as a result of a Force Majeure event shall provide written notice to the other party of the
existence of such event and exercise due diligence to remove such event with all reasonable dispatch. It is expressly understood by
the parties that the ability of Strategic Energy to sell the products and services provided hereunder at a price greater than the initial
Term Ceiling Price paid by Buyer shall not constitute an event of Force Majeure. Conversely, the ability of Buyer to purchase the
products and services provided hereunder for an amount less than the Initial Term Ceiling Price shall not constitute an event of
Force Majeure.
"Host Utility"
means any investor-owned utility, municipal utility, public utility, or other provider of electric lines whose system is directly
interconnected with and which provides Distribution to Buyer's Facilities.
"Point(s) of Delivery"
shall mean the point(s) where Energy is delivered to the Host Utility.
"Power Supply Coordination (PSC) Services"
are the services provided by Strategic Energy in accordance with the company's policies and procedures, in selecting the optimum
mix of Electricity supplies (including provider of last resort service) to match the Facility load and selling any excess Electricity in
order to maximize reliability and minimize cost in an effort to manage down the Initial Term Ceiling Price.
"Transmission"
means all delivery services for Energy, Capacity and applicable Ancillary Services to the Host Utility, at any voltage level, which are
regulated by the Federal Energy Regulatory Commission ("FERC").
6. Type of Service:
Firm - subject only to Force Majeure.
7. Price:
The price per kWh to be paid by Buyer for the services provided hereunder during the Initial Term of this Agreement (the "initi al
Term Ceiling Price") shall not exceed that set forth on the Pricing Attachment. The Initial Term Ceiling Price inciudes applicable
costs for Energy, Capacity, and Transmission procured in accordance with Strategic Energy's policies, Ancillary Services, California
ISO grid management fees, applicable taxes up to the Point of Delivery, California Power Exchange fees, if any, losses, overhead
expenses as defined by Strategic Energy, and the PSC Services Fee. Any sales tax that Buyer may be subject to is not included in
the Initial Term Ceiling Price. In addition, any reserve requirement charges, environmental compliance charges and California ISO
summer reliability charges, if and when assessed, are not included in the Initial Term Ceiling Price and shall be passed through at
Strategic Energy's cost to be paid by Buyer.
The price per kWh to be paid by Buyer for the services provided hereunder during any Monthly Renewal, as each are defined in
Paragraph 2 herein, shall be equal to the then-current market rate for such services as offered by Strategic Energy ("Market-Based
Rate") determined in arrears following the delivery month. While paying the Market-Based Rate during any Monthly Renewal,
either Party shall have the option of terminating the Agreement at any time upon thirty (30) days prior written notice to the other
Party.
If, during the Initial Term of this Agreement, regulatory changes shift costs from the Host Utility to Strategic Energy or from Strategic
Energy to the Host Utility, then such costs or credits shall be passed through to the Buyer.
If, during the Initial Term of this Agreement, regulatory changes create additional costs, not currently included in the Initial Term
Ceiling Price or increases in the cost components of the Initial Term Ceiling Price, which Buyer would be subject to regardless of
whether Buyer was receiving service from Strategic Energy, the Host Utility or any other provider of electric service ("Incremental
Charge"), and Strategic Energy is unable to mitigate such Incremental Charge, then Strategic Energy shali pass through such
Incremental Charge to be paid by Buyer above the Initial Term Ceiling Price.
4/15/2004 9:36:05 AM MHV I 00074993-0001 c
Coo"," Vo,,'oo Dolo' 04105/2004
Buyer acknowledges that any meter or telecommunication related costs or costs assessed by any third party as a result of Buyer's
switch to or from Strategic Energy, including but not limited to any switching costs, are not included in the Initial Term Ceiling Price
and shall be the responsibility of Buyer. These costs shall either be charged directly by the third party provider or passed through
upon Strategic Energy's bill.
8. Billing and Payment:
Strategic Energy will receive Buyer's Electricity usage information monthly from the Host Utility. Unless all billing services are being
provided by the Buyer's Host Utility, within ten (10) calendar days following the Host Utility's scheduled meter read date, Strategic
Energy will deliver an invoice to Buyer for amounts due. If Buyer's actual electricity usage is not provided by the Host Utility in any
month, Strategic Energy may generate an invoice using estimated usage. If Buyer has Facilities with different meter read dates
and Buyer has chosen to receive one consolidated bill for all Facilities, Strategic Energy may choose to invoice on the day of the
month that Strategic Energy deems appropriate.
9. Credit:
Strategic Energy may request that Buyer provide financial information sufficient for Strategic Energy to complete a credit review
prior to providing service hereunder. If, prior to commencing service or at any time during the term of this Agreement, Strategic
Energy has good faith concems about the creditworthiness of Buyer, Strategic Energy may require that Buyer provide reasonable
credit assurances, including but not limited to, an escrow account, deposit, letter of credit, parental guaranty, or surety bond. If such
credit enhancement is not provided within seven (7) days of being requested by Strategic Energy, then Strategic Energy may
terminate this Agreement. If, as a result of the early termination due to Buyer's failure to provide the requisite credit assurance,
Strategic Energy incurs direct actual damages in liquidating the Electricity purchased to serve Buyer under this Agreement. Buyer
agrees to be responsible for such damages. Strategic Energy will calculate the amount of the damages and submit an invoice to
Buyer, aiong with substantiation of the charges, which invoice will be due and payable pursuant to the payment terms of this
Agreement.
10. Late Payment:
Payment to Strategic Energy is due 20 calendar days from the date of invoice. If Buyer fails to remit payment in full in any month,
interest will be assessed on the late balance at the rate of 1.5% per month.
11. Title, Control and Possession:
Title to, control and possession of Energy shall pass from Strategic Energy to Buyer at the Point of Delivery.
12. Load Change Information:
Buyer shall give Strategic Energy at least thirty (30) days notice ("Notice of Load Change") prior to adding a new facility to its
service or removing a Facility from service hereunder as a result of ceasing operations at such Facility. In the event a facility Is to
be added, Strategic Energy and Buyer agree to enter into good faith negotiations on the Initial Term Ceiling Price to be paid by
Buyer for Electricity and PSC Services to the new facility.
Buyer acknowledges and agrees that failure to provide the required Notice of Load Change to Strategic Energy when removing a
Facility from service is a breach of this Agreement not subject to the notice and cure provision in Paragraph 16. If, as a result of
Buyer's failure to provide the requisite Notice of Load Change, Strategic Energy incurs direct actual damages in liquidating the
Electricity purchased to serve the Facility which has been removed from service, Buyer agrees to be responsible for such
damages. Strategic Energy will calculate the amount of the damages and submit an invoice to Buyer, along with substantiation of
the charges, which invoice will be due and payable pursuant to the payment terms of this Agreement.
13. Agreement to Indemnify:
Subject to the limitations set forth herein, each party shall defend, indemnify and hold harmless the other party, its affiliates and
their respective employees, officers, or agents from any and all claims, liability and expense arising out of any bodily injury, death or
damage to property (other than bodily injury, death or damage to property proximately caused by the negligence or intentional
misconduct of any such other party or its servants or employees) related to the provision of services hereunder, except that each
party shall be responsible for all claims of its own employees, officers or agents and under any workmen's compensation law or
similar law.
14. limitation of Liability:
Liability is limited to direct actual damages as the sole and exclusive remedy and all other remedies or damages (at law, In equity,
tort, contract or otherwise) are expressly waived. In the event that Strategic Energy fails to deliver Electricity to the Point of
Delivery, Buyer's sole and exclusive remedy shall be direct damages equal to the positive difference, if any, between the Initial
Term Ceiling Price set forth on the Pricing Attachment and the purchase price paid by Buyer, using commercially reasonable
efforts, for replacement Electricity. In no event shall either party be liable to the other for any incidental, consequential, or punitive
damages, lost profits or other business interruption damages. Each party agrees that iI has a duty to mitigate damages and
covenants that it will use commercially reasonable efforts to minimize any damages it may incur as a result of the other party's
performance or non-performance of this Agreement.
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15. Auditing:
Each party shall have the right, at its sole expense and upon prior written notice, to examine the records of the other party to verify
the accuracy of any statement, charge, notice or computation made pursuant to this Agreement. However, no adjustments shall be
made to any statement charge, notice or computation after the lapse of the longer of twenty-four (24) months from the date of the
last rendition or the time frame permitted by the Host Utility's tariff for adjustments to consumption information.
16. Termination:
This Agreement may be terminated at any time after the date hereof by, (i) mutual consent in writing by Buyer and by Strategic
Energy, (ii) Strategic Energy if there has been a failure to perform or material misrepresentation or breach of warranty, coven ant or
condition on the part of Buyer herein, and such failure or breach is not cured by Buyer within fifteen (15) calendar days of Bu yer's
receipt of written notice from Strategic Energy, or by Buyer if there has been a failure to perform or material misrepresentation or
breach of warranty, covenant or condition on the part of Strategic Energy herein, and such failure or breach is not cured by
Strategic Energy within fifteen (15) calendar days of Strategic Energy's receipt of written notice from Buyer, or (Iii) either party if, In
its reasonable determination, there has been a material change in any relevant law or in any technological application such that the
continued performance of this Agreement has been rendered impracticable.
17. Effect of Termination:
In the event of termination as provided in this Agreement, all further obligations of Strategic Energy to Buyer and of Buyer to
Strategic Energy under this Agreement shall terminate without further liability of Buyer or Strategic Energy, except for the payment
of direct actual damages by the owing party, the payment by Buyer of any sums due and owing to Strategic Energy for services
rendered prior to the termination date and any indemnification obligation of either party which has arisen hereunder.
18. Applicable Law:
As to all matters of construction and interpretation, this Agreement shall be construed, interpreted, and governed under and by the
laws of the state of California, without regard to its choice of law provisions.
19. Parties, Assignment:
This Agreement shall inure to and benefit the parties hereto and their permitted successors and assigns. Neither party may assign
this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld.
Notwithstanding the above, Strategic Energy may, without the consent of Buyer, assign this Agreement for the limited purpose of
securing credit and financing. Further, either party may, without the need for consent from the other party transfer or assign this
Agreement (a) to an Affiliate of such party provided that all the persons obligated to fulfill the assigning party's obligations under the
Agreement after the assignment have substantially equivalent financial capability to that of all other persons obligated to fulfill the
assigning party's obligations under the Agreement before the assignment, or (b) to any person or entity succeeding to all or
substantially all of the assets of such party; provided, however, that any such assignee shall agree to be bound by the terms and
conditions hereof. As used herein, "Affiliate" shall mean with respect to any person, any other person (other than an individual)
that, directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with, such
person. For purposes of the foregoing definitions, "control" means the direct or indirect ownership of more than fifty percent (50%)
of the outstanding capital stock or other equity interests having ordinary voting power.
20. Waiver:
No waiver by either party of any default or defaults by the other party under this Agreement shall operate as a waiver of any future
default or defaults, whether of a like or different character or nature.
21. Severability
The various provisions of this Agreement are severable. The invalidity, illegality or unenforceability of any portion or provision shall
not affect the validity, legality or enforceability of any other portion or provision of this Agreement.
22. Entire Agreement:
This Agreement and the Pricing Attachment contain the entire understanding of the parties with respect to the subject matter
contained herein. There are no promises, covenants or understanding other than those expressly set forth herein. This Agreement
may only be amended by a written instrument executed by both parties. Any modifications to the Pricing Attachment must be
accepted and agreed to in writing by Buyer.
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Con"" V.ffi;on Dot., 0410512004
23. Notices and Correspondence:
Any notice or other document to be given or served hereunder or under any document or instrument executed pursuant hereto shall
be in writing and shall be delivered to the appropriate address specified below. Notice sent by facsimile or other electronic means
shall be deemed to have been received by the close of the business day on which it was transmitted or such earlier time as is
confirmed by the receiving party. Notice delivered by courier shall be deemed to have been received on the business day after it
was sent or such earlier time as is confirmed by the receiving party. Notice delivered by mail shall be deemed to have been
received at the end of the third business day after the date of mailing by prepaid first class mail, except that when there is a strike
affecting delivery of mail. all notices shall be delivered by courier or by facsimile or other electronic means.
Strategic Energy The City of Chula Vista
Attn: Customer Service Manager Attn: Willie Gaters
Two Gateway Center 276 Fourth Ave
Pittsburgh, PA 15222 Chula Vista, CA 91910
Phone: (412) 394-5600 Phone: (619) 691-5031
Fax: (412) 644-3211 Fax: (619) 409-5884
Monday through Friday from
8:00AM through 5:00PM Eastern Time
24. Confidentiality:
Except when disclosure may be required by law or a party has obtained written consent from the other party, each party agrees that
it shall not disclose to a third party (other than the party's employees. lenders, counsei, consultants, agents or accountants who
have agreed to keep such terms confidential) and wiil maintain in strict confidence the terms, conditions and pricing information set
forth in this Agreement and on the Pricing Attachment. Strategic Energy agrees that such confidential treatment shall extend to
Buyer's usage and consumption data which is not otherwise in the public domain and which will not be disclosed except as
appropriate to carry out the terms of this Agreement or as requested in writing by the Buyer. The parties shall be entitled to all
remedies available at law or in equity to enforce, or seek relief in connection with this confidentiality obligation.
25. Representations and Warranties:
As a material inducement to entering into this Agreement, each party, with respect to itself, hereby represents and warrants to the
other party as follows:
(a) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation and is qualified to
conduct its business in those jurisdictions necessary to perform this Agreement;
(b) the execution and delivery of this Agreement are within its powers, have been duiy authorized by all necessary actions and/or
board approvals, and do not violate any of the terms or conditions in its governing documents or any contract to which it is a party
or any law applicable to it;
(c) as of the date of service commencement hereunder, it shail have ail regulatory authorizations necessary for it to legaily perform
its operations;
(d) this Agreement constitutes a legal, valid and binding obligation of such party enforceable against it in accordance with its terms.
subject to bankruptcy, insolvency, reorganization, and other laws affecting creditors' rights generaily and with regard to equitable
remedies, subject to the discretion of the court before which proceedings to obtain same may be pending;
(e) there are no bankruptcy, insolvency, reorganization, receivership or other similar proceedings pending or being contemplated by
it or, to its knowledge, threatened against it:
(f) if it is a property management company acting on behalf of the owner of the Facility(ies), it has the authority to execute and bind
the Facility(ies) to this Agreement for the term stated in the Pricing Attachment and that the term of its property management
agreement with the owner of the Facility(ies) is equal to or greater than the term of this Agreement; and
(g) the Facility(ies) to be provided the services described herein are not contractually bound by another agreement for Electricity
services that will overlap with the term stated in the Pricing Attachment.
Each party covenants that it shall cause Its respective representations and warranties to remain true and correct throughout the
term of this Agreement.
26. Counterparts:
This Agreement may be executed in one or more than one counterpart, including by facsimile, and each executed counterpart shall
be considered an original, ail of which together shail constitute one and the same Agreement.
4/15/2004 9:36:05 AM MHV 15-:;/ 00074993-0001c
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed.
STRATEGIC ENERGY L.L.C. The City of Chula Vista
By: By:
Print Name: Print Name:
Title: Title:
Date: Date:
4/15/2004 9:36:05 AM MHV IS-;;';;' 00074993-0001c
Co""" Ve~;o" Dot. 04/0512004
RESOLUTION NO. 2004- -
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA
VISTA WANING THE FORMAL BID PROCESS PURSUANT TO
MUNICIPAL CODE SECTION 2.56.070 AND AUTHORIZING THE
CITY MANAGER TO ENTER INTO A "DIRECT ACCESS"
AGREEMENT WITH AN ENERGY SERVICE PROVIDER FOR
ELECTRICITY SUPPLY FOR ELIGIBLE CITY FACILITIES
WHEREAS, under deregulation, electricity customers were allowed to purchase electricity
from an Energy Service Provider ("ESP") other than the local utility. This practice is known as
"Direct Access"; and
WHEREAS, in 1998, the City purchased hydroelectric generated - green power - through
a SANDAG organized purchasing pool - the Power Pool; and
WHEREAS, in June 2000, the Power Pool was disbanded when ESP would not agree to an
extension. On September 20,2001 the CPUC suspended Direct Access (DA). On May 8,2003 the
CPUC issued Decision D.03-05-034, which determined the rights and obligations of DA customers
to switch between bundled service and direct access; and
WHEREAS, staff was informed that it has until April 17, 2004 to receive, evaluate and state
it's intent to select an ESP. Staff issued a letter to this effect but the City is under no obligation to
finalize a contract. The City has until June 17,2004 to implement the switch to Direct Access; and
WHEREAS, purchases of power as a commodity is extremely time and condition sensitive
(day ahead or even hour ahead timing can be crucial to price) and delay could cause the offer to be
withdrawn or significantly modified; and
WHEREAS, in evaluating proposals received, staff will consider a potential portfolio of
"addenda" for power use iffeasible to hedge the seasonal and time volatility; and
WHEREAS, based on extreme time constraints, the efforts to solicit bids ITom qualified
ESPs and the non exclusive nature of the agreement, staff requests the Council determine that it is
impractical to apply bidding requirements to these agreements and the City's interest are materially
better served by waiving the formal bid process and authorizing the City Manager to enter into Direct
Access agreements.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City ofChula Vista
does hereby waive the formal bid process pursuant to Municipal Code, Section 2.56.070 and
authorizes the City Manager to enter into a "Direct Access" Agreement with the Energy Service
Provider for electricity supply for eligible City facilities provided the terms of said agreement are
more favorable to the City than those available from SDG&E.
Presented by ~
Sid Morris
Assistant City Manager ty Attorney
J:\atlomeylresol bidsldirect access 4 20 04
J ~ :3
.~.__._--------
COUNCIL AGENDA STATEMENT
Item: Ire
-.~
Meeting Date: Apr; 1 20. 2004
ITEM TITLE: Presentation on Current Code Enforcement Activities
SUBMITTED BY: Director of Pl~ng and Buildin~
REVIEWED BY: City Managert~ )~ (4/5ths Vote: Yes_NoX)
fçl'
Code Enforcement staff will present an information report regarding current activities. The
report includes a description of the reorganized and expanded Code Enforcement section and
emphasizes new proactive enforcement programs. Staff will also provide a status update of
current activities and additional planned enhancements.
RECOMMENDATION: N/A
BOARDS/COMMISSIONS RECOMMENDATION: N/A
DISCUSSION:
In April of 2003, Planning and Building staff presented a summary of the Code Enforcement
Strategic Plan that included recommendations for program enhancements. Today's presentation
provides an update to Council regarding expanded Code Enforcement activities and additional
planned enhancements.
The presentation discusses the reorganization of the Code Enforcement Section and describes the
responsibility and function of the Section's Community Improvement (Beat) Program and
Housing Inspection Program. The presentation also includes a status report on current Code
Enforcement activities and a schedule of future program enhancements.
Code Enforcement staff will be present and introduced during the presentation.
FISCAL IMPACT: N/A
I~
Page I, Item: /1
Meeting Date: 04/20/04
COUNCIL AGENDA STATEMENT
ITEM TITLE: Resolution 2004- approving the Final Draft Park Master Plan for the 5.21-
acre public neighborhood park site on Oxford Street in Western Chula Vista,
that the name of the park be "Harborside Park", and the appropriation of
funds to complete the design ofthe park.
SUBMITTED BY: Director of General Services(¡ ~ ~
Director of Public Wo~eration
Director of Recreation
REVIEWED BY: City Manage¿r '"" (4/5ths Vote: Yes~.ßo---.J
f~fJ" The City purchased a 5.2 I -acre site on Oxford Street in FY2002-03 for the purpose of developing a
new neighborhood park in western Chula Vista. The City's landscape architecture staff in the
General Services Department has developed a Final Draft Park Master Plan for this park, for
Council's consideration.
STAFF RECOMMENDATION:
That Council approve the Final Draft Park Master Plan for the 5 .2 I-acre public neighborhood park
site on Oxford Street, and accept the recommendation ofthe Parks and Recreation Commission that
the name of the park be "Harborside Park."
BOARDS/COMMISSIONS RECOMMENDATION:
Parks and Recreation Commission
At its March 18th meeting, the Parks and Recreation Commission voted 5-0-1-1 (Ramos absent
and Weidner abstained) to approve the proposed Draft Park Master Plan. The Commission voted
6-0-0-1 (Ramos absent) to accept the recommendation that the name of the park be Harborside
Park.
Resource Conservation Commission
On February 2, 2004, the Resource Conservation Commission (RCC) reviewed the draft Mitigated
Negative Declaration, IS-04-011, prepared for the project The RCC recommended that the
document, with two minor edits, is adequate and should be adopted; these minor edits were
incorporated into the final Mitigated Negative Declaration, dated March 2, 2004 (Attachment A).
The RCC approved a secondary motion recommending that potential noise impacts to Harborside
Elementary School from the skateboard play area be addressed as the project goes forward to the
Council. The proposed 2,800 square foot skateboard play area would contain modular equipment
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designed for beginner users only, the majority of which are anticipated to be school-age children that
would not be utilizing this play area during regular school hours.
The acoustical analysis prepared for the recently opened Len Moore Skate Park (at Greg Rogers
Park) projected that at full capacity, this major 21 ,000 square-foot skate park facility would comply
with the City's noise control ordinance with respect to impacts to single- family residences situated
185 feet away. Although noise impacts to schools are not regulated under the ordinance, for the
purposes of CEQA review the City applies identical noise standards to schools and single-family
residential development The nearest classroom building is situated a considerable distance ftom the
skateboard play area, approximately 300 feet to the northwest According to school officials, their
normal practice is to keep classroom windows and doors closed; all classrooms are air conditioned,
which allows for windows and doors to remain closed throughout the school year.
In light of the analysis conducted for the Len Moore Skate Park and based upon the limited size of
the skateboard play area, the proposed use of equipment designed for beginner users only, the
considerable distance to the nearest classroom building, and the school's normal practice ofkeeping
classroom windows and doors closed, no significant impacts to the adjacent school are anticipated.
DISCUSSION:
Site Information
The proposed park site is located in the Montgomery Area, in westem Chula Vista, along the north
side of Oxford Street, east of Industrial Boulevard, south of Naples Street, and west of Broadway,
and it would serve members ofthe community residing within a Yz - % mile radius. (Attachment B).
The site consists of 5.21 acres and is undeveloped at this time. The site is adjacent to Harborside
Elementary School to the north, Broadway Plaza to the east, and the San Diego County Department
of Health and Human Services building to the west The Palomar Commercial Center is to the south
on the opposite side of Oxford Street (Attachment C).
The surrounding land uses consist of residential (single family, multi-family, trailer-park),
commercial, light-industrial development, the San Diego Trolley (San Ysidro Southern Line) and
Interstate-5.
Recreational Facilities in the Monte:omerv Area
Six existing neighborhood parks serve the Montgomery area, with two community centers in two
parks and one stand-alone recreation complex. The neighborhood parks are: Lauderbach Park,
Loma Verde Park and Orange A venue Fields, Los Ninos Park, Otay Park, Reinstra Ball Fields, and
SDG&E Park.
The following existing parks are located % mile ftom the proposed site and their area of
influence overlaps with the Oxford Street site area of influence:
. Lauderbach Park is located at 333 Oxford Street This 3.9-acre park consists of the following
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primary facilities: One Community Center (not a City-operated facility), one soccer field
with lighting, three picnic tables, and one play area with play equipment. The park's support
facilities include: Open lawn areas, paved walkways, and a parking lot of 47 spaces.
. Lancerlot Park is a mini-park (0.1 acre) located approximately % mile north of the Oxford
site, and consists of one play area.
Develooment of Park Proe:ram
In Fall of2002, the City expressed an interest in purchasing the site on Oxford Street with, among
other options, a view towards developing a neighborhood park. The Landscape Architecture staff
obtained the following information necessary to develop a park program:
. A Site Analysis was conducted to leam about the opportunities and constraints of the site.
. A preliminary meeting with members of the Community, including Olga West, Harborside
School Principal, and Mary Roche, Youth and Family Resource Center Coordinator, was
held to share the idea of a park at the Oxford Street site, and to obtain their input During the
meeting, attendees expressed enthusiastic interest in having a neighborhood park at this site,
and stated that park elements beneficial to the community would be: A soccer field, a skate
play area, playgrounds, basketball courts, picnic areas, and lighted walks.
. The City Park and Recreation Master Plan (PRMP) was reviewed to identify the recreation
facility needs for that community. For example, Table 2-5 of the PRMP indicates that in
West Chula Vista there is greater need for practice/informal soccer fields (a value of2.65)
than organized youth baseball fields (a value of 1.47). In addition, the PRMP describes a
neighborhood park's "primary uses include passive open space, active play areas for children,
including tot lots, playground apparatus, and picnic areas," (page 1-8).
City staff analyzed all data gathered, and based on the findings developed the following preliminary
park program:
. Playground areas for preschool age and school age children
. One Gazebo or picnic shelter area
. Various picnic areas throughout park
. One basketball court minimum
. One skate play area
. One multi-purpose field
. Multi-use pathways
. Restroom
. Parking
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Desie:n Process
The above-stated park program was used to develop two park conceptual plans for presentation to
the community:
. Alternative A, Embracing the Community. A formal design that features linear walkways shaded
by trees, and a special oval area designated for picnics, events, and play. (See Attachment D).
. Alternative B. San Diego County Plant Community Themes. An informal design implementing
walks that wind through San Diego County Plant Community themes, such as, Coastal
Scrub/Oak theme, Palm Oasis theme, Eucalyptus theme, Valley Foothill Riparian theme,
Orchard theme, Torrey Pine theme, and the Urban theme. (See Attachment E)
The City mailed approximately 2,000 invitations to community members residing within the park's
area of influence, to participate in a community workshop and express their ideas. A total of 97
community residents attended two workshops held 11/24/03, and 12/05/03, to review the two park
design alternatives presented by City staff. Residents had an opportunity to review the proposed
designs, ask questions, and provide verbal and written comments during the workshops and via a
questionnaire. A Spanish/English translator provided her services during both workshops, and
questionnaires were provided in English and Spanish.
The questionnaire tabulation (80 questionnaires) revealed the following information:
. Alternative A. Embracing the Communitv, received 70 votes in favor. The community indicated
that they liked the entry and its meaning, felt that the space was better organized and used.
. Alternative B. Plant Communities, received 10 votes in favor. The community stated that they
liked the variety ofplantings, the walkways looping around whole site, and the design felt more
serene; however, they felt that this concept was too informal, palms do not provide shade, the
park area looks smaller, and location of playground is dangerous.
. Park elements in order of preference: The community assigned the highest number of ranking
points to the Basketball courts, 439. Other park elements in order of preference are: play areas
for school age children (403), picnic areas (359), play areas for pre-school age children (344);
restroom (344), areas for community events (321), outdoor classroom (296); multi-purpose field
(294); and skateboard play area (248). Baseball fields for Little League received 24 ranking
points, and more parking received I.
. Name of Park: The community suggested various names, with "Harborside Neighborhood Park"
receiving the highest number of votes, 21.
Based on the results ftom the community workshops, City staff developed the Alternative A,
Embracing the Community, into the Draft Park's Master Plan.
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Chula Vista National Little League Request
The Chula Vista National Little League Board of Directors requested that a baseball field for Little
League be provided at this site. The request included: Baseball field to Little League standards with
60' base paths, ample area for foul territory, a chain link backstop, an outfield fence 200 feet ftom
home plate, dugouts with roofs, all-aluminum bleachers, a score booth located behind home plate, a
small building for the scorekeeper and storage of field maintenance equipment and supplies, a snack
shack to run refrigerators and other appliances, lighting for night play, and a restroom.
City staff considered the League's request for a dedicated Little League field in the park, but does not
recommend approval of this request. Staff recommends that a multi-purpose field be constructed,
based on the following reasons:
. Communitv input: The results ftom the community workshop did not support having a
baseball field at this site. Sixty-eight questionnaires out of eighty stated that they liked
Alternative A as presented, and two expressed that they liked Alternative A with a Baseball
field. The community was asked to rank the park elements in order of preference; the results
indicate that the residents prefer a multi-purpose field, receiving 294 ranking points, vs.
baseball field, receiving 24 ranking points. In addition, the community expressed that they
wanted a place to walk, play with children, a place to celebrate birthdays, and special
occasions, a place to read, sit down and relax.
. Site lavout and space: Due to the wide shape of a baseball field compared to a multi-purpose
field, and the amount of buffer area required around it, i.e., foul territory, other program
elements would not be able to be included at the side of the field if a baseball field was
substituted for the multi-purpose field. Basketball courts, the skate play area, and/or picnic
areas would need to be relocated or eliminated to accommodate a baseball field at this site,
which are park elements that the community expressed a preference for over the baseball
field. In support of this, the questionnaire tabulation indicated that the park elements most
preferred by the community are basketball courts, which received 439 ranking points; picnic
areas (359 points); and the skateboard play area (248 points). The baseball field received 24
ranking points.
. City assistance to league: Chula Vista National Little League (CVNLL) currently holds its
practices and games on the fields at Harborside Elementary School. Because the school
shares its fields with the league, the fields and supporting inftastructure are in need of
renovation. Neither the school nor the league has sufficient funds to pay for rehabilitation.
For this reason, the Recreation Department has been working with league board members to
assist them in applying for Community Development Block Grant (CDBG funds) for next
fiscal year. Council will consider all CDBG applications for funding at its May 4 meeting;
so at this time, it is unknown if or how much funding the league will receive. In addition, the
Eastlake Development Company has pledged up to $10,000 in matching funds to the league
for the field renovation work.
. Budget: It costs approximately 60% more to build a baseball field than a soccer field, due to
the additional expense of fencing, backstop, baseball benches, bleachers, dugouts, score
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booth, and storage facilities. In order to provide a dedicated Little League field at this site,
other park elements desired by the community would have to be eliminated to stay within
budget.
The City of Chula Vista wants to reach as many community residents as possible, and we feel that
the proposed Final Draft Master Plan incorporates the desires of the community and will reach a
wider range of users.
Desie:n Concept~"Embracine: the Community"
The design goal was to create a park that would welcome the community, that would make a visitor
feel welcome and embraced by the park, while maximizing the recreational use opportunities for
community residents.
With an immediate environment containing such a wide diversity of land uses, i.e., residential,
commercial, retail, educational and local government uses, the area is currently lacking both a
community focal point and park amenities. The design creates a link between all the adjacent sites,
welcoming in each direction and then creating a tangible sense of space within, "The Embrace". By
encouraging as much pedestrian circulation as possible, it is intended that the park will be well used,
and that the continual presence of people will make the park feel safe and welcoming.
The Park's design concept was inspired by the St. Peter's plaza (Piazza San Pietro) at the Vatican in
Rome, ltaly. The plaza is shaped in the form of an oval to represent embrace or a hug; and that
inspired the creation of the oval area.
As the visitor enters the oval area, they will be welcomed by a row of trees shading the walks
embracing the open areas. The visitor will be greeted by places to sit down, picnic areas, play areas
for preschool age and school age children, a gazebo for special celebrations, and open areas which
could be used as an amphitheater or for community events. A restroom is proposed to be located in
this area as well.
As the visitor continues the journey through the park, they will encounter various active recreation
areas, such as: One multi-purpose field, two basketball courts, skateboard play area, outdoor
classroom, and picnic areas.
In summary, the park elements include the following:
. Basketball Courts (2) - (Lighted) Two standard size courts, 84 feet by 50 feet, plus 10 feet
perimeter area.
. Children's Play Areas (2) - The play areas will have equipment suitable for children of varying
age groups. One area will be designed for the youngest age group of children, ages 2-5 and the
second play area will target children ages 5 to 12.
. Skateboard Play Area (1) - (Lighted) One skateboard play area, 40 feet by 70 feet, with
modular equipment for beginner users only.
. Multi-purpose Field (1) - One multipurpose field, 150 feet by 300 feet, a standard that the
Federation lnternationale de Football Association (FIF A) approves for soccer playas well as for
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lacrosse, football, etc. and is intended to also be used for more informal types of recreational play
for all ages.
. Outdoor classroom (1) - An area designated for Harborside School personnel to have
supervised classes or events with children. This is an open circle, 35'-0" diameter, with a seat
wall to accommodate 42 children. The classroom area will be designed to deter skaters from
using the area for skating. A lockable gate will be added to the existing fence between the
School and the Park for School access to the classroom area. The gate will be locked/unlocked
by School personnel.
. GazebolLarge Group Picnic Shelter (1) - One gazebo with picnic tables will be located at the
center of the oval area. The Gazebo can be used for special occasions, or community events.
. Picnic Facilities for Individual-use (13) - In addition to the picnic tables in the gazebo, four
picnic tables with shade structures will be located in the oval area, and 9 uncovered picnic tables
throughout the park.
. Amphitheater area - An open turf area located adjacent to the Gazebo can be used as an
amphitheater, community events, or play.
. Park Furniture - Barbecues, hot ash receptacles, trash/recyclable containers, benches, drinking
fountain with dog fountain, pooper-scoopers, and a bike rack are located throughout the park.
. Circulation - The park site will include a series of pathways looping the entire park site that will
accommodate pedestrian and maintenance vehicle circulation.
. Pedestrian access between Naples Street and Park Site - A 20- foot easement over the Costco
site has been approved for pedestrian access between Naples Street and the Park Site (Council
Resolution approved 1/13/04). This pedestrian access is to be installed by Costco owners as per
Broadway Plaza construction plans, and is to be maintained by the City.
. Pedestrian access from Broadway Plaza - A pedestrian link between the park site and the
internal pedestrian circulation of Broadway Plaza development between COSTO and Walmart
will be provided.
. Landscape Design - The conceptual planting palette includes trees to provide shade, color,
interest, and to screen unwanted views, thus providing a peaceful and inviting enviromnent. In
addition, the conceptual planting palette includes a combination of ornamental and drought
tolerant shrubs and groundcovers to attract butterflies and hummingbirds to make the park more
enjoyable for children and visitors. The height of shrubs and ground covers will be limited to
allow for police surveillance of the park.
. Parking (28 Spaces) - A parking area for 28 on-site spaces including parking for the
handicapped. Additional parking is provided along Oxford Street with a minimum of20 spaces
of parallel parking on each side ofthe street.
. Restroom - The restroom is centrally located close to play equipment areas and picnic
structures. The restroom building includes storage for park operations.
The proposed park plan is compliant with the Americans with Disability Act (ADA).
Lie:htine:
The basketball courts and the skate play area will have lighting to extend the hours of use. Adequate
foot-candles within the park will be maintained in all areas for public safety, until park closing at
10:00 pm. Ambient light levels at the park boundary are to be at or below O.5-foot candles.
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Fire and Police
Fire staff and Police staff have reviewed the plan, and provided input to insure that issues regarding
public health and safety have been addressed.
Park Name
The park name recommended for this park is "Harborside Park."
Environmental Review
The Environmental Review Coordinator has reviewed the proposed project for compliance with the
California Environmental Quality Act and has conducted an Initial Study, IS-04-011, in accordance
with the California Environmental Quality Act. Based upon the results of the Initial Study, the
Environmental Review Coordinator has determined that the project could result in significant effects
on the environment. However, revisions to the project made by or agreed to by the applicant would
avoid the effects or mitigate the effects to a point where clearly no significant effects would occur;
therefore, the Environmental Review Coordinator has prepared a Mitigated Negative Declaration, IS-
04-011 (Attachment A).
Fiscal Imoacts
The total park construction budget is $1,500,000. Staffrecommends appropriating $200,000 of
Residential Construction Tax funds to complete the design phase of the project. These funds are
derived ftom the following sources:
1. Transfer $10,172 ftom completed CIP Project PR-235 (Loma Verde Parking Lot
Improvement).
2. Transfer $26,904 ftom completed CIP Project PR-24 I (Norman Park Restroom).
3. Transfer $3,497 ftom completed CIP Project PR-247 (Rohr Manor Structural and
Architectural Analysis).
4. Transfer $32,985 from completed CIP Project PR-223 (99/Parkway Pool Resurface).
5. Transfer $237 ftom completed CIP Project PR-224 (Loma Verde Complex
Improvement).
6. Transfer $21,274 ftom completed CIP Project GG-161 (99/Legislative Office HVAC
Replacement)
7. Transfer $50,000 ftom completed CIP Project GG-167 (99/Civic Center Renovation)
8. Appropriate $54,931 ftom the available balance of the Residential Construction Tax
Fund.
Staff has prepared a preliminary estimate of probable cost for park construction, and the initial
establishment/maintenance period in the order of$I,500,000. Minor changes to the cost estimates
are anticipated as the Park Master Plan evolves in the construction drawing phase and as actual park
construction commences.
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After the initial maintenance/establishment period, future park maintenance costs for the public park
will be paid through the City's General Fund.
Attachments: A. Mitigated Negative Declaration
B. Park's Area of Influence
C. Site Location
D. Alternative A: Embracing the Community
E. Alternative B: San Diego County Plant Community Themes
F. Draft Park Master Plan
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RESOLUTION NO. 2004- -
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING THE PROPOSED FINAL
DRAFT PARK MASTER PLAN FOR THE 5.2l-ACRE
PUBLIC NEIGHBORHOOD PARK SITE ON OXFORD
STREET IN WESTERN CHULA VISTA AND FOR THE
NAME OF THE PARK TO BE "HARBORSIDE PARK"
WHEREAS, the City purchased a 5.2I-acre site on Oxford Street in FY2002-03
for the purpose of developing a new neighborhood park in western Chula Vista; and
WHEREAS, the City's landscape architecture staff in the General Services
Department has developed a Final Draft Park Master Plan for this park; and
WHEREAS, the proposed park site is located in the Montgomery area, in western
Chula Vista, along the north side of Oxford Street, east of Industrial Boulevard, south of Naples
Street, and west of Broadway Street, and it would serve members of the community residing
within a y, -% mile radius; and
WHEREAS, the Environmental Review Coordinator has reviewed the proposed
project for compliance with the California Environmental Quality Act (CEQA) and has
conducted an Initial Study, IS-04-011, in accordance with the Califomia Environmental Quality
Act. Based upon the results of the Initial Study, the Environmental Review Coordinator has
determined that the project could result in significant effects on the environment. However,
revisions to the project made by or agreed to by the applicant would avoid the effects or mitigate
the effects to a point where clearly no significant effects would occur; therefore, the
Environmental Review Coordinator has prepared a Mitigated Negative Declaration, lS-04-0l1.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of
Chula Vista does hereby approve the Final Draft Master Plan for the 5.21-acre public
neighborhood park site on Oxford Street in Western Chula Vista, and for the name of the park to
be "Harbors ide Park".
Presented by Approved as to form by
~~2--tw~
Jack Griffin Ann 0 I'
Director of General Services City Attorney
J:AttomeylResolparklPack mast" plan Harbmside Pa,k
J 7-/0
Attachment A
Mitigated Negative Declaration
PROJECT NAME: Oxford Street Neighborhood Park
PROJECT LOCATION: 690 Oxford Street
ASSESSOR'S PARCEL NO.: 618-200-5900
PROJECT APPLICANT: City of Chula Vista General Services Department
CASE NO.: IS-04-0 11
DATE OF DRAFT DOCUMENT: January 27.2004
DATE OF RESOURCE CONSERVATION COMMISSION MEETING: February 2. 2004
DATE OF FINAL DOCUMENT: March 3. 2004
A. Project Setting
The 5.2I-acre project site is located in an urbanized area ofthe central western portion of the
City of Chula Vista. The site consists of a single parcel within the Southwest Redevelopment
Area, along the north side of Oxford Street, east of Industrial Boulevard, and west of
Broadway (see Exhibit A - Location Map). The physical address of the site is 690 Oxford
Street, an address that is shared by the San Diego County Health and Human Services facility
located immediately west of the site. Oxford Street terminates in a cul-de-sac to the west of
the project site east of Industrial Boulevard. The San Diego Trolley (San Y sidro Southern
Line) and Interstate 5 are west of the County facility, and Naples Street is situated to the
north of the abutting Harborside Elementary School. The project site is within the COP
(Administrative and Professional Office/Precise Plan Modifying District) Zone and IL
(Limited Industrial) General Plan designation. The site is currently vacant; metal pipes in the
southwestern corner appear to be the remnants of an irrigation system or a fire-prevention
system that may have serviced former on-site structures. On-site utilities include a
north/south trending, 54-inch diameter reinforced concrete storm drain pipeline along the
eastern property line; a fire hydrant near the southwest end of the property on Oxford Street;
a second fire hydrant near the northeast corner; and an underground electrical vault on the
southern property line at Oxford Street. The topography of the site is relatively flat, with a
general 2 percent slope towards the northwest and southwest. Mounds of soil, trash and
debris including concrete rubble, metal and wood ftagments, broken asphalt, automobile
tires, and landscape waste are scattered over the site. A chain link fence surrounds the site.
The land uses surrounding the site are as follows:
North: Harborside Elementary School
South: Oxford Street, Palomar Commerce Center
East: Broadway Plaza (Costco Warehouse and assorted commercial/retail development)
West: San Diego County Department of Health and Human Services facility
I
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The surrounding area beyond the abutting properties contains residential (single family,
multi-family, trailer park), commercial, and light-industrial development.
B. Project Description
The project consists of the development of a new neighborhood park. Proposed on-site
improvements include a I 50-foot by 300-foot multi-purpose field, basketball courts,
playground areas, picnic areas with picnic tables and barbeques, a skateboard area, restroom
building, trash receptacle area, and an open space area that could serve as a small
amphitheater for performances and community events (see Exhibit B - Site Plan). Multi-use
pathways would be lit. Approximately 30 parking spaces are proposed, accessible via an
access driveway along the west edge of the site. Pedestrian access ftom Naples Street to the
north along the east edge ofthe school and the park site would be provided, extending south
to Oxford Street. Landscaping is planned to buffer the park ftom the commercial areas to the
east and south. Any missing/damaged sidewalk improvements along the property's ftontage
will be constructed/replaced where necessary.
C. Compliance with Zoning and Plans
The project site is within the IL (Limited Industrial) General Plan designation, and is zoned
COP (Administrative and Professional OfficelPrecise Plan Modifying District).
D. Public Comments
On October 30,2003, a Notice of Initial Study was circulated to property owners within 500-
foot radius of the proposed project site. The public comment period ended November 10,
2003. One letter with written comments was received, ftom the Chula Vista Elementary
School District. The letter noted that the District highly encourages good visibility
throughout the park and installation of sufficient lighting to discourage people ftom
congregating in the area after hours. Community meetings were held at the adjacent
elementary school on November 24,2003, at 6:00 p.m., and on December 5, 2003, at 8:30
a.m.
On January 28,2004, the "Notice of Availability of Proposed Mitigated Negative
Declaration" for the project was posted in the County Clerk's Office and circulated to
property owners within a 500-foot radius of the project site. The 30-day public review period
closed on February 26,2004. No written comments on the proposed Mitigated Negative
Declaration were received.
E. Identification of Environmental Effects
An Initial Study conducted by the City of Chula Vista (including an attached Environmental
Checklist form) determined that although the proposed project could have a significant
environmental effect, there would not be a significant effect in this case because mitigation
measures described in Section F below have been added to the project. The preparation of an
Environmental Impact Report will not be required. This Mitigated Negative Declaration has
been prepared in accordance with Section 15070 of the State CEQA Guidelines.
2
- ---------------.
Air Quality
The project site is located within the San Diego Air Basin (SDAB). The proposed project
would result in an increase in air pollutants during construction, but not during long-term
operation. Fugitive dust would be created during site grading and construction activities.
Although air quality impacts resulting ftom construction-related operations are potentially
significant, they are considered short-term in duration since construction-related activities are
a relatively short-term activity. Dust control measures required to be implemented during
grading operations would be in accordance with the rules and regulations of the County of
San Diego Air Pollution Control District (APCD) and the California Air Resources Board.
The mitigation measures contained in Section F below would mitigate short-term
construction-related air quality impacts to below a level of significance.
The proposed project is less intensive than the land use designation for the project site under
the adopted Chula Vista General Plan. Therefore, the proposed land use and its intensity of
development have been included in regional air quality projections and plans. The project
would not conflict with or violate any applicable air quality plans or standards. No
objectionable odors would result from the proposed recreational facilities. The proposed
project would not result in any long-term local or regional air quality impacts and no
mitigation measures are required for these issues.
Geologv and Soils
A Geotechnical Investigation report, dated April II, 2002, was prepared for the site by
Geocon. This report is available for review at the office of the Planning and Building
Department and is summarized below.
Seismic Hazards. There are no known (mapped) "active" faults crossing or located in the
immediate vicinity of the project site. The closest regional faults considered capable of
producing earthquakes of magnitude 4 or greater are the Rose Canyon fault zone (7.5 miles
to the north), Coronado Bank fault zone (13 miles to the west), and the Elsinore Fault-Julian
Segment (45 miles to the northeast).
The La Nacion fault zone trends north-south in a band approximately 2 miles wide. The
closest trace of this fault occurs approximately 0.25 mile to the east of the project site.
According to the geologic literature, the La Nacion fault zone has not been active within the
last approximately 11,000 years, and is therefore considered "potentially active." This fault
zone is not considered to contribute significantly to the seismic hazard at the project site.
For facility planning and siting purposes, the potential for fault rupture is generally
considered to be significant along active faults and to a lesser degree along potentially active
faults. The potential for fault ground rupture at the site is considered to be low because no
active or potentially active faults are known to cross or be located near the site.
The project site is in Seismic Zone 4. The site will likely experience moderate to severe
ground shaking in response to a large magnitude earthquake occurring on a local or regional
active fault during the expected lifespan of the park facilities.
3
Liquefaction. Liquefaction hazards are considered low, due to the depth of groundwater and
high relative density of the formation that underlies the project site.
Landslides. The site is relatively flat with a gentle 2 percent slope overall. No hazards
associated with landslides or slope instability are expected.
Soil Erosion. The disturbance of soil during construction grading activities could result in
potentially significant siltation impacts downstream. Best Management Plans (BMPs) will
be implemented during construction to prevent pollution of the storm water conveyance
system. These standard measures will prevent downstream impacts.
Soils. According to the Geotechnical Investigation prepared for the site by Geocon
Consultants, dated April 11, 2002, the site is underlain by upper Pleistocene-age Bay Point
Formation starting at depths of approximately 3 to 5 feet. This formation is a lagoonal and
nonmarine sandstone. Near-surface soils include undocumented fill. Trash and debris on the
site and occurring in the fill will be removed ftom the site in accordance with applicable laws
and regulations.
Hazards and Hazardous Materials
A Phase I Environmental Site Assessment and Limited Soil Sampling and Analysis report,
dated March 14, 2002, was prepared for the site by Geocon. This report is available for
review at the office ofthe Planning and Building Department and is summarized below.
The report noted the presence of metal pipes and a buried structural concrete slab with
footings in the southern portion of the site. These remnants may be associated with a former
structure that reportedly housed a hemp rope manufacturing facilitY ftom approximately
1929 to the late 1960s, and a furniture manufacturing facility during the 1960s and 1970s.
Soil sampling indicated surface soils had low levels of organo-cWorine pesticides below
USEPA Region IX Preliminary Remediation Goals (PRGs) for residential soil and Total
Threshold Limit Concentrations (TTLCs). Mitigation measures for these issues are presented
in Section F.
Based on the field reconnaissance, database research, and soil sampling conducted, the
following conclusions were made in the Phase I environmental site assessment:
. Adverse recognized environmental conditions were not observed on-site.
. The potential for the existing presence of impacts to the site from hazardous
substances/wastes on-site or on properties in the vicinity is considered to be low.
However, anomalies associated with the former on-site structure may exist beneath
the site and rubbish currently on the surface. Also, soils had detectable levels of
organo-chlorine pesticides. Mitigation measures for these conditions are presented in
Section F.
. Based on the presumed depth and flow of groundwater in the area and the apparent
distance and status of the listings of the properties listed on the regulatory databases,
significant adverse impacts ftom adjacent properties are not expected at the site.
4
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d
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I rl MULTH"URPOSEFlEl.D
, 15O'x300'
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:OUNTYOFFlCES. I
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ON-STREET PARKING (26 SPACES) OXFORD STREET +- HCAN,:,'G ~F."AC
. "~""""
~~~' ""~- "" --' _LlLJ--~'" ""
-----r::l\ LANO."""EARCHFrEeruRE 5EeTIOI
\.y Exhibit B - Site Plan GENERAL 5E~~~:. ';?":'~R.~.~
Hydrology and Water Quality
The project site is located within the Otay Valley Hydrologic Area of the Otay Hydrologic
Unit. Project construction would involve overall site grading to remove and replace
unsuitable soils and remnant buried structures/utilities. Without adequate Best Management
Practices, pollution of downstream receiving waters could occur during construction. The
project site is currently vacant and undeveloped. Planned pavement and park structures
would increase impervious area and potentially increase runoff. A drainage study
demonstrating the amount of flows that may be contributed by the project and the adequacy
of existing storm drain facilities to handle the flows will be prepared prior to the completion
of final grading and improvement plans.
Groundwater levels at the site are low, and impacts to existing groundwater quality or
quantity are not expected. Based on the Phase I environmental site assessment conducted for
the property (Geocon 2002), groundwater was not encountered in soil borings advanced to a
maximum of25 feet beneath the ground surface.
There is no defined drainage on the site. No alteration of an existing stream or river would
occur.
The site is within Zone X (outside of 500-year floodplain) pursuant to Flood Insurance Rate
Map (FIRM) Panel 2152, and no structures that would contribute to flooding are proposed.
No impacts associated with on- or off-site flooding would occur with the proposed project.
Existing off-site drainage facilities consist of curb inlets and storm drains located along
Oxford Street and the eastern edge of the site. The project would be designed such that post-
developed flows will not exceed pre-developed flows, in accordance with City Engineering
Division requirements. In addition, the project will be designed such that flows are directed
away from neighboring properties.
In addition, the project will comply with the requirements of the Development and
Redevelopment Storm Water Management Requirements Manual. In accordance with the
Manual, appropriate construction and post-construction best management practices (BMPs)
will be required to be implemented. Permanent storm water requirements will be
incorporated into the project design, and shown on the plans. Design plans will include
design concepts that reduce runoff and prevent pollutants ftom entering the storm drain
system, such as minimizing impervious surfaces, directing rooftop runoff to landscaped
areas, and other Pollution Prevention Design Features. Dumpster areas will be designed to
prevent contamination ofrainwater and discharge of polluted runoff.
In accordance with state regulations, a Notice of Intent will be filed with the State Water
Resources Control Board for coverage under a National Pollutant Discharge Elimination
System (NPDES) Stormwater Permit because the site is larger than I acre. An NPDES
General Construction Permit and a Storm Water Pollution Prevention Plan (SWPPP) willi be
required. As required by local regulations, The project will comply with the Standard Urban
Storm Water Mitigation Plans (SUSMP) and Numeric Sizing Criteria of the NPDES
Municipal Permit Order No. 2001-01. A Water Quality Technical Study will be prepared to
5
demonstrate compliance with the NPDES Municipal Permit, including SUSMP and Numeric
Sizing Criteria requirements.
Noise
Based on the estimated project traffic generation of approximately 260 average daily trips,
the project is not expected to generate significant traffic-related noise levels. The proposed
uses of the park would not result in a substantial permanent increase in ambient noise levels
in the project vicinity.
During construction, significant short-tenD noise impacts to the neighboring Harborside
Elementary School, a noise-sensitive use, could result. Noise produced during construction
will vary with the equipment being used and the phase of construction (for example, grading,
paving, and structure construction). Earth-moving (grading) activities are often the noisiest
phases of construction, because backhoes, tractors, graders, and large trucks can generate
noise that exceeds 90 decibels (dBA) at 50 feet from the source. As a general rule, noise
decreases by 6 decibels for each doubling of distance for a flat site. A sound level of 90 dBA
at 50 feet would be approximately 84 dBA at 100 feet, and 78 dBA at 200 feet ftom the
source. According to the project engineers, clearing the site should take about one week,
grading should take about two weeks, and trenching for removal of the storm drain along the
eastern edge of the property should take a maximum of two weeks.
Permanent and temporary classroom and administrative buildings are located on the
Harborside Elementary School property, immediately north ofthe project site. School
buildings are located just north of the northern boundary of the project site. Due to the close
proximity of school buildings, and the fact that a significant degree of construction activities
on-site would occur during school hours, it is anticipated that construction noise associated
with the project would potentially disturb normal classroom and administrative activities to
some degree. The creation of a substantial temporary increase in ambient noise levels
adversely affecting noise-sensitive uses in the project vicinity is considered by the City to be
a significant impact pursuant to CEQA. Because substantial construction noise associated
with the project would not be generated in close proximity to school buildings on a
continuous basis throughout project construction, and due to the temporary nature of this
impact, it has been determined that this impact would be reduced to below a level of
significance by erecting an 8-foot high temporary noise barrier generally along the northern
boundary of the project site prior to the commencement of grading and the maintenance of
this barrier throughout the entire duration of heavy construction activities. A properly
designed and constructed temporary 8-foot barrier would provide an average reduction in
construction noise levels at the buildings of approximately 5 decibels. This mitigation
measure is contained in Section F.
F. Mitigation Necessary to Avoid Significant Impacts
Air Oualitv
The following air quality mitigation requirements shall be shown on all applicable grading,
improvement, and building plans as details, notes, or as otherwise appropriate, and shall not
6
be deviated from unless approved in writing by the City's Environmental Review
Coordinator:
1. During construction, dirt and debris shall be washed down or swept up as soon as
practicable to reduce the re-suspension of particulate matter caused by vehicle
movement over such material. Approach routes to the construction area shall be
cleaned daily of construction-related dirt and debris.
2. In accordance with California Vehicle Code Section 23114, vehicles transporting loads
of aggregate materials must cover/tarp the material, or if not covered, the material must
be no nearer than six inches /Tom the upper edge of the container area where the
material contacts the sides, ftont, and back of the cargo container area, and the load
shall not extend, at its peak, above any part of the upper edge of the cargo container
area. This measure shall also apply to the transport of any materials associated with
site clearing, grading, or building activities that can potentially become airborne.
3. Construction equipment shall be maintained in proper working order and shall be
periodically tuned in order to minimize air pollutant emissions; use oflow pollutant-
emitting construction equipment, including electrical-powered equipment, shall be used
as practical.
4. Soil disturbance and travel on unpaved surfaces shall be suspended when wind speeds
exceed 25 miles per hour.
5. All unpaved construction areas shall be sprinkled with water or other acceptable dust
control agents during dust-generating activities as necessary to minimize dust emissions
to the maximum extent practicable. Additional watering or dust control agents shall be
applied during dry weather or on windy days until dust emissions are not visible.
6. Stockpiled materiìils that can potentially become airborne shall be covered or watered
as necessary to minimize dust emissions to the maximum extent practicable.
Hazards and Hazardous Materials
The following hazards and hazardous materials mitigation requirements shall be shown on all
applicable grading, improvement, and building plans as details, notes, or as otherwise
appropriate, and shall not be deviated ftom unless approved in writing by the City's
Environmental Review Coordinator:
7. If anomalies such as underground piping, septic tanks, etc., are discovered during
grading or other site improvements, they shall be evaluated by a qualified consultant
and handled according to applicable laws and regulations.
8. If soils containing residual concentrations of pesticides and total petroleum
hydrocarbons are moved off-site, the materials shall be sampled and disposed of or
remediated according to applicable environmental health and public safety laws and
regulations.
7
Noise
The following noise mitigation requirement shall be shown on all applicable grading,
improvement, and building plans as details, notes, or as otherwise appropriate, and shall not
be deviated ftom unless approved in writing by the City's Environmental Review
Coordinator:
9. An 8-foot high temporary noise barrier shall be constructed generally along the entire
northern boundary of the site prior to the commencement of site clearing and grading.
The barrier shall consist of one-half inch sheets of plywood on both sides of a 2-inch by
4-inch wood ftame, or other barrier materials acceptable to the Environmental Review
Coordinator. The barrier shall be ftee of cracks and holes, and no gaps shall occur
between the barrier and the ground. The barrier shall be maintained in place throughout
the entire duration of heavy construction activities to the satisfaction of the
Environmental Review Coordinator.
G. Consultation
1. City of Chula Vista:
Frank Rivera, Engineering
Majed AI-Ghafty, Engineering
Michael Maston, Engineering
Silvester Evetovich, Engineering
Jim Holmes, Engineering
Stan Donn, Planning and Building
Garry Williams, Planning and Building
Carolyn Dakan, Planning and Building
Others:
Susan Fable, Chula Vista Elementary School District
Applicant:
Patricia Ferman, General Services
2. Documents
City ofChula Vista General Plan, 1989.
City ofChula Vista MSCP Subarea Plan, February 2003.
Phase I Environmental Site Assessment and Limited Soil Sampling and Analysis, Oxford
Street Property - Chula Vista, California, Geocon Consultants, Inc., March 14, 2002.
Geotechnical Investigation, Oxford Court Property - Chula Vista, California, Geocon
Consultants, Inc., April II, 2002.
8
Mineral Land Classification: Aggregate Materials in the Western San Diego Coutny
Production-Consumption Region, Special Report 153, California Department of
Conservation Division of Mines and Geology, 1982.
San Diego County Important Farmland 2000, California Department of Conservation,
Division of Land Resource Protection, Farmland Mapping and Monitoring Program.
3. Initial Studv
This environmental determination is based on the attached Initial Study, any comments
received on the Initial Study and any comments received during the public review period
for this Mitigated Negative Declaration. The report reflects the independent judgement
of the City ofChula Vista. Further information regarding the environmental review of
this project is available fÌ'om the Chula Vista Planning Department, 276 Fourth Avenue,
Chula Vista, CA 91910.
l1 ~ 4// úJ //nfk <W Date: ..J/3Jð .¡
Marilyn R. F. Ponseggi. ' I
Environmental Review Coordinator
9
--.-.-.---.- .
ATTACHMENT "A"
MITIGATION MONITORING AND REPORTING PROGRAM (MMRP)
Oxford Street Neizhborhood Park - 1S-04-0 II
This Mitigation Monitoring and Reporting Program has been prepared by the City of Chula Vista
in co~unction with the proposed Oxford Street Neighborhood Park. The proposed project has
been evaluated in a Mitigated Negative Declaration prepared in accordance with the California
Environmental Quality Act (CEQA) and City/State CEQA Guidelines (Mitigated Negative
Declaration 18-04-011). The legislation requires public agencies to ensure that adequate
mitigation measures are implemented and monitored for Mitigated Negative Declarations.
AB 3180 requires monitoring of potentially significant and/or significant environmental impacts.
The Mitigation Monitoring and Reporting Program for this project ensures adequate
implementation of mitigation for the following potential impacts(s):
1. Air Quality
2. Hazards and Hazardous Materials
3. Noise
MONITORING PROGRAM
Due to the nature of the environmental issues identified, the Mitigation Compliance Coordinator
shall be the Environmental Review Coordinator and City Engineer of the City of Chula Vista.
The applicant shall be responsible to ensure that the conditions of the Mitigation Monitoring and
Reporting Program are met to the satisfaction of the Environmental Review Coordinator and
City Engineer. Evidence in written form confirming compliance with the mitigation measures
specified in Mitigated Negative Declaration lS-04-011 shall be provided by the applicant to the
Environmental Review Coordinator and City Engineer. The Environmental Review Coordinator
and City Engineer will thus provide the ultimate verification that the mitigation measures have
been accomplished.
Table I, Mitigation Monitoring and Reporting Program Checklist, lists the mitigation measures
contained in Section F, Mitigation Necessary to Avoid Significant Effects, of Mitigated Negative
Declaration IS-04-0 II, which will be implemented as part of the project. In order to determine if
the applicant has implemented the measure, the method and timing of verification are identified,
along with the City department or agency responsible for monitoring/verifying that the applicant
has completed each mitigation measure. Space for the signature of the verifying person and the
date of inspection is provided in the last column.
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ENVIRONMENTAL CHECKLIST FORM OlVor
CHUIA VISTA
1. Name of Proponent: City of Chula Vista
General Services Department
2. Lead Agency Name and Address: City of Chula Vista
Planning and Building Department
276 Fourth Avenue
Chula Vista, CA 91910
3. Addresses and Phone Number of Proponent: 1800 Maxwell Road
Chula Vista, CA 91911
(619) 397-6206
4. Name of Proposal: Oxford Street Neighborhood Park
5, Date of Checklist: January 26, 2004
6. Case No.: IS-04-011
ENVIRONMENTAL ANALYSIS QUESTIONS:
Less Than
Potentially Significant Less Than
With
Issues: Significant Mitigation Significant No Impact
Impact Incorporated Impact
1. AESTHETICS. Would the project:
a) Have a substantial adverse effect on a sceruc vista? 0 0 0 .
b) Substantially damage sceruc resources, including, but 0 0 0 .
not limited to, tress, rock out:croppings, and historic
buildings within a state sceruc highway?
c) Substantially degrade the existing visual character or 0 0 0 .
quality of the site and its SUtTOundings?
1
Less Than
Potentially Significant Less Than
With
Issues: Sigoificant Mitigatioo Significant No Impact
Impact Incorporated Impact
d) Geate a new SOU1l:e of substanria1 light or glare, 0 0 . 0
which would adversely affect day or nighttime view¡¡
in the area?
Comments:
a) The site does not offer scenic vistas.
b) There are no scenic resources on the site, and the area is not in proximity to a designated scenic
roadway, The project proposes access via an unsignalized driveway off of Oxford Street. Landscape
treatments are proposed in accordance with the City of Chula Vista Municipal Code landscape and site
architectural requirements and design review guidelines. These landscape improvements would ensure
that aesthetic impacts to the adjacent road corridors and neighboring properties are not significant.
c) The project site is located within an established urbanized area, which includes commercial areas to
the east, northeast, and south; a public elementary school to the north; and an attractive, modern public
building to the west. The site itself is vacant and degraded visually by piles of rubble and debris, The
proposed project is anticipated to have a demonstrable positive impact to the neighborhood, creating
landscaped borders along the site edges, and park facilities including a large open field and picnic areas
within the site,
d) Security/operational lighting is proposed for the walkways, basketball courts, and skateboarding
area, The multi-purpose field would not be lit. Lighting must comply with Chapter 17.28
(Unnecessary Lights) and Section 19.66,100 (Glare) of the Chula Vista Municipal Code, The light
sources within the park would be required to be directed and/or shielded in such a manner that they will
not constitute a public nuisance for residential property owners. Based upon the proposed lighting plan,
no impacts are anticipated,
Mitie:ation: No mitigation measures are required.
II. AGRICULTURAL RESOURCES. In
detennining whether impacts to agricultural
reSOU1l:es are signif'jcant envirorunental effects, lead
agencies may refer to the California Agricultural
Land Evaluation and Site Assessment Model (1997)
prepared by the California Dept. of Conservation as
an optional model to use in assessing impacts on
agriculture and fannland. Would the project:
2
Less Than
Potentially Significant Less Than
With
Issues: Significant Mitigation Significant No Impact
Impact Incorporated Impact
a) Convelt Prime Farm1and, Unique Farm1and, or 0 0 0 .
Fannland of Statewide Importance (Fannland), as
sho'Ml on the maps prepared ptUSuant to the Farm1and
Mapping and Monitoring Program of the California
Resources Agency, to non-agricultural use?
b) Conflict with existing zoning for agricultural use, or a 0 0 0 .
Williamson Art contract?
c) Involve other changes in the exisring environment, 0 0 0 .
which, due to their location or nature, could result in
conversion of Farm1and, to non-agricu1tural use?
Comments:
a-c) The project site is within Urban and Built-up Land on the San Diego County Important Farmland 2000
map, and contains no designated fannland, The project site is not in current agricultural production, is not
adjacent to property in agricultural production, and contains no agricultural resources,
Mitigation: No mitigation measures are required.
Ill.AlR QUALITY. Where available, the significance
criteria established by the applicable air quality
management or air pollution control clistrict may be
relied upon to make the following detemùnations.
Would the project:
a) Conflict with or obstruct implementation of the 0 0 0 .
applicable air quality plan?
b) Violate any air quality standard or contribute 0 0 0 .
substantially to an existing or projected air quality
violation?
c) Result in a cwnulatively considerable net increase 0 0 0 .
of any criteria pollutant for which the project
region is non-attainment under an applicable
federal or state ambient air quality standard
(including releasing emissions, which exceed
quantitative thresholds for ozone prectUSors)?
3
---_. ._._.
Less Than
Potentially Significant Less Than
With
Issues: Significant Mitigation Significant No Impact
Impact Incorporated Impact
d) Expose sensitive =ptors to substantial pollutant 0 . 0 0
concentrations?
e) Create objectionable odors affecting a substantial 0 0 0 .
number of people?
Comments: See Mitigated Negative Declaration, Section E.
Mitie:ation: See Mitigated Negative Declaration, Section F.
IV. BIOLOGICAL RESOURCES. WotÙd the
project:
a) Have a substantial adverse effect, either directly or 0 0 0 .
through habitat modifications, on any species
identified as a candidate, sensitive, or special status
species in local or regional plans, policies, or
regulations, or by the California Department of
Fish and Game or u.s. Fish and WùdJife SelVÎce?
b) Have a substantial adverse effect on any riparian 0 0 0 .
habitat or other sensitive natural community
identifted in local or regional plans, policies,
regulations or by the California Department of Fish
and Game or u.s. Fish and WùdJife SelVÎce?
c) Have a substantial adverse effect on federally 0 0 0 .
protected wetlands as def1ßed by Section 404 of the
Oean Water Act (including, but not limited to,
mush, vernal pool, coastal, etc.) through direct
removal, fIlling, h}Úrological intell'Uption, or other
means?
4
Less Than
Potentially Significant Less Than
With
Issues: Significant Mitigation Significant No Impact
Impact Incorporated Impact
d) Interfere substantially with the movement of any 0 0 0 .
native resident or migratory fish or Mldlife species
or with established native resident or migratory
wildlife canido",> or impede the use of native
wildlife nursery sites?
e) Conflict with any local policies or otilinances 0 0 0 .
protecting biological resources, such as a tree
preservation policy or ordinance?
t) Conflict with the provisions of an adopted Habitat 0 0 0 .
Conservation Plan, Natural Community
Cbnservation Plan, or other approved local,
regional, or state habitat conservation plan?
Comments:
a and b) The project site is located within the area identified as Development Area in the City of Chula
Vista Multiple Species Conservation Program (MSCP) Subarea Plan. Based upon the Subarea Plan and
a site inspection by City staff, no sensitive natural communities are present within or immediately
adjacent to the proposed project area,
c) Based upon the Chula Vista MSCP Subarea Plan and a site inspection by City staff, no wetlands are
present within or immediately adjacent to the proposed project area.
d) Based upon the Chula Vista MSCP Subarea Plan and a site inspection by City staff, no native
resident or migratory wildlife corridors or native wildlife nursery sites exist within or immediately
adjacent to the proposed project area.
e) No biological resources would be affected by the proposal and no conflicts with local policies or
ordinances protecting biological resources would result.
f) No impacts to local, regional or state habitat conservation plans would result because the project is a
designated development area pursuant to the adopted Chula Vista MSCP Subarea Plan.
5
~~._----
Less Than
Potentially Significant Less Than
With
Issues: Sigoificant Mitigation Significant No Impact
Impact Incorporated Impact
V. CULTURAL RESOURCES. Would tbe project:
a) Cause a substancial adverse change in tbe 0 0 . 0
significance of a historical resource as defined in
§ 15064.5?
b) Cause a substancial adverse change in tbe 0 0 . 0
significance of an :m:haeological resource pursuanr
to § 15O64.5?
c) Directly or indirectly destroy a uruque 0 0 . 0
pa1eoDtologicai resource or site or unique geologic
feature?
d) Disturb any human rernams, including those 0 0 0 .
interred outside of fotmal cemeteries?
6
Less Than
Potentially Significant Less Than
With
Issues: Significant Mitigation Significant No Impact
Impact Incorporated Impact
Comments:
a and b) According to the Chula Vista General Plan ErR, the project site is assigned a moderate
potential for archaeological resources. Based upon the extent of previous disturbance to the site and the
relatively minor amount of grading proposed, no significant impacts to archaeological resources are
anticipated.
c) Based upon the Geotechnical Investigation for the property, the site is underlain by the Bay Point
Formation starting at depths of approximately 3 to 5 feet. The Bay Point Formation is a lagoonal and
nonmarine sandstone from the upper Pleistocene geologic era, has been noted to produce large and
diverse assemblages of well-preserved marine invertebrate fossils and rare vertebrate fossils, and is
assigned a moderate paleontological resource sensitivity rating, The CitY utilizes the following
Sensitivity Rating Volume and Depth Thresholds for grading in paleontological resources:
High> 1000 cubic yards and >5 feet deep
Moderate >2000 cubic yards and> 5 feet deep
Zero-Low Mitigation Not Required
General site grading is not expected to exceed 5 feet in depth. Deeper excavation that may be needed
to remove buried remnant facilities, undocumented fill, and unsuitable topsoils would occur in fill and
not in undisturbed formational material. Significant impacts to fossils would not occur during
earthwork activities.
d) No human remains are known or are expected to be present on-site, and therefore, are not
anticipated to be disturbed as a result of the project.
Mitie:ation: No mitigation measures are required,
VI. GEOLOGY AND SOILS -- Would the
project:
a) Expose people or structures to potencial 0 0 0 .
subsrantia1 adverse effects, including the risk of
loss, injury or death involving:
i. Rupture of a known earthquake fault, as 0 0 0 .
delineated on the most recent Alquist-Priolo
Earthquake Fault Zoning Map issued by the State
Geologist for the area or based on other
subsrantia1 evidence of a known fault? Refer to
Division of Mines and Geology Special
Publication 42,
7
Less Than
Potentially Significant Less Than
With
Issues: Significant Mitigation Significant No Impact
Impact Incorporated Impact
U. Strong seismic ground shaking? 0 0 . 0
UL Seismic-related ground failure, including 0 0 0 .
liquefaction?
IV. Landslides? 0 0 0 .
b) Result in substantial soil erosion or the loss of 0 0 . 0
topsoil?
c) Be located on a geologic unit or soil that is 0 0 . 0
unstable, or that would become unstable as a
result of the project, and potentially result in on-
or off-site landslide, lateral spreading, subsidence,
liquefaction or collapse?
d) Be located on expansive soil, as defined in Table 0 0 . 0
18-1-B of the Unifonn Building 0xIe (1994),
creating substanrial risks to life or propetty?
e) Have soils incapable of adequately supponing the 0 0 0 .
use of septic tanks or alternative wastewater
disposal s~tems where sev;ers are not available
for the disposal of wastewateù
Comments: See Mitigated Negative Declaration, Section E.
Mitie:ation: No mitigation measures are required.
VIT. HAZARDS AND HAZARDOUS
MATERIALS. Would the project:
a) Create a significant hazard to the public or the 0 0 0 .
environment through the routine transport, use, or
disposal of hazardous materials?
8
Less Than
Potentially Significant Less Than
With
Issues: Significant Mitigation Significant No Impact
Impact Incorporated Impact
b) G-eate a significant hazard to the public or the 0 0 0 .
environment through reasonably foreseeable
upset and accident conditions involving the
release of hazardous materiaJs into the
environment?
c) Emit hazardous emissions or handle hazardous 0 . 0 0
or acutely hazardous materiaJs, substances, or
W'aSte within one-quaner mile of an existing or
proposed school?
d) Be located on a site which is included on a list of 0 0 0 .
hazardous materiaJs sites compiled pursuant to
Government Gx!e section 65962.5 and, as a
result, would it create a significant hazard to the
public or the environment?
e) For a project located within an airport land use 0 0 0 .
plan or, where such a plan has not been adopted,
within two miles of a public airport or public use
airport, would the project result in a safety hazard
for people residing or worlcing in the project
area?
f) For a project within the vicinity of a private 0 0 0 .
airstrip, would the project result in a safety hazard
for people residing or worlcing in the project
area?
g) Impair implementation of or physically intetfere 0 0 0 .
with an adopted emergency response plan or
emergency evacuation plan?
h) Expose people or structures to a significant risk 0 0 0 .
of loss, injury or death involving wi1dland fires,
including where wildlands are adjacent to
urbanized areas or where resK!ences are
intennixed with wi1d1ands?
9
Less Than
Potentially Significant Less Than
With
Issues: Significant Mitigatioo Significant No Impact
Impact Incorporated Impact
Comments: See Mitigated Negative Declaration, Section E.
Mitie:ation: See Mitigated Negative Declaration, Section F,
VIII. HYDROLOGY AND WATER QUALITY.
Would the project:
a) Result in an increase in pollutant discharges to 0 0 . 0
receiving waters (lIlCluding impaired water bcxlies
pursuant to the aean Water Act Section 303(d) list),
result in significant alteration of receiving water
quality during or following construction, or violate
any water quality standards or waste discharge
requirements?
b) Substantially deplete groundwater supplies or 0 0 0 .
interlere substantially with groundwater recharge
such that there would be a net deficit in aquifer
volume or a lowering of the local groundwater table
level (e.g., the production rate of pre-existing newy
wells would drop to a level which would not
support existing land uses or planned uses for which
pennits have been granœd)? Result in a potentially
significant adverse impact on groundwater qua1i1y.
c) Substantially alter the existing drainage pattern of the 0 0 0 .
sire or area, including through the alteration of the
course of a stream or river, in a manner, which
would result in substantial erosion or siltation on- or
off-site?
d) Subsrnntially alter the existing drainage pattern of the 0 0 0 .
site or area, including through the alteration of the
course of a stream or river, substantially increase the
rate or amount of surface runoff in a manner which
would result in flooding on- or off-site, or place
structures within a 100-~ar flood hazard area which
10
Less Than
Potentially Significant Less Than
With
Issues: Significant Mitigation Significant No Impact
Impact Incorporated Impact
would impede or redirect flood flows?
e) E¡¡pose people or structures to a sigrùficant risk of 0 0 0 .
loss, injury or death involving flooding, including
flooding as a result of the failure of a levee or dam?
Q Geate or contribute runoff water, which would 0 0 . 0
exceed the capacity of existing or planned
stonnwater drainage systems or provide substantial
additional sources of polluted runoff?
Comments: See Mitigated Negative Declaration, Section E.
Mitie:ation: No mitigation measures are required,
IX. LAND USE AND PLANNING. Would the
project:
a) Physically divide an established community? 0 0 0 .
b) Conf1ict with any applicable land use plan, policy, or 0 0 0 .
regulation of an agency with jurisdiction over the
project (mcluding, but not limited to the general
plan, specifIC pJan, local coastal program, or zoning
otdinance) adopted for the purpose of avoiding or
micigating an environmental effect?
c) ,Conf1ict with any applicable habitat conservation 0 0 0 .
pJan or natural community conservation plan?
11
Less Than
Potentially Significaot Less Than
With
Issues: Significaot Mitigation Sigoificant No Impact
Impact Incorporated Impact
Comments:
a) The proposed park would enhance the character of the surrounding area, and would be connected to the
residential areas to the north by providing an access path fÌom Naples Street along the eastern school
boundary into the park and through to Oxford Street. Therefore, the project would not disrupt or divide
an established community.
b) The project site is within the COP (Administrative and Professional Office/Precise Plan Modifying
District) Zone and IL (Limited Industrial) General Plan designation. The project has been found to be
consistent with the applicable zoning regulations and the General Plan.
c) The project would not conflict with any applicable adopted environmental plans or policies. Furthermore,
the project would not encroach into or indirectly affect the Habitat Preserve area of the adopted Chula
Vista MSCP Subarea Plan.
Mitie:ation: No mitigation measures are required.
X MINERAL RESOURCES. Would the project:
a) Result in the loss of availability of a known mineral 0 0 0 .
resource that would be of value to the region and
the residents of the state?
b) Result in the loss of availability of a locally-impottant 0 0 0 .
mineral resource recovery site delineaTed on a local
general plan, specific pIan or other land use plan?
Comments:
a) The project site is located in an area identified as MRZ-3 (areas containing mineral deposits the
significance of which cannot be evaluated trom available data) on Plate 29 of the Mineral Land
Classification Map. The site is also within areas identified by the Governor's Office of Planning and
Research as urbanized or projected to urbanize by the year 1990 on Figure 4 of the Mineral Land
Classification Special Report 153.
b) Pursuant to the Chula Vista General Plan EIR, the State of California Department of Conservation has
not designated the project site for mineral resource protection.
Mitigation: No mitigation measures are required.
12
Less Than
Potentially Significant Less Than
With
Issues: Significant Mitigation Significant No Impact
Impact Incorpouted Impact
XI. NOISE. Would the project result in:
a) Exposure of persons to or generation of noise levels 0 0 . 0
in excess of standards established in the local general
plan or noise ordinance, or applicable standards of
other agencies?
b) Exposure of persons to or generation of excessive 0 0 0 .
groundbome VIbration or growKibome noise levels?
c) A substantial pennanent increase in ambient noise 0 0 . 0
levels in the project vicinity above levels existing
without the project?
d) A substantial temporary or periodic increase in 0 . 0 0
ambient noise levels in the project vicinity above
levels existing without the project?
e) For a project located within an airpon land use plan 0 0 0 .
or, where such a plan has not been adopted, within
two miles of a public ailpon or public use allpon,
would the project expose people residing or wotking
in the project area to excessive noise levels?
f) For a project within the vicinity of a private airstrip, 0 0 0 .
would the project expose people residing or wotking
in the project area to excessive noise levels?
Comments: See Mitigated Negative Declaration, Section E.
Mitie:ation: See Mitigated Negative Declaration, Section F.
XII. POPULATION AND HOUSING. Would the
project:
a) Induce substantial population growth in an area, 0 0 0 .
.,,' .".., " ., ..
13
Less Than
Potentially Significant Less Than
With
Issues: Significant Mitigation Significant No Impact
Impact Incorporated Impact
either directly (for example, by proposing new
homes and businesses) or indirecdy (for example,
through extension of road or other infrastructure)?
b) Displace substanria1 numbm of existing housing, 0 0 0 .
necessitating the construction of replacement
housing elsewhere?
c) Displace substantial rrumbers of people, 0 0 0 .
necessitating the construction of replacement
housing elsewhere?
Comments:
a) No housing development is proposed as part ofthis project. Substantial population growth is not
anticipated, nor is the need for substantial inftastructure improvements. Based upon the size and nature
of the proposal, no population growth inducement is anticipated,
b and c) Because no housing currently exists on the project site, no displacement of housing or people
would occur.
Mitie:ation: No mitigation measures are required.
XIII. PUBLIC SERVICES. Would the project:
a) Result in substanria1 adverse physical ÙDpacts
associated with the provision of new or physically
altered governmental facilities, need for new or
physically altered govenunental facilities, the
construction of which could cause significant
environtnental ÙDpacts, in otder to maintain
acceptable service ratios, response times or other
petfonnance objectives for any public services:
Fire protection? 0 0 0 .
Police protection? 0 0 0 .
Schools? 0 0 0 .
14
Less Than
Potentially Significant Less Than
With
Issues: Significant Mitigation Significant No Impact
Impact Incorporated Impact
Parks? 0 0 0 .
Other public facilities? 0 0 . 0
Comments:
1) According to the Fire Department, through the proposed project design and the proximity of fIre
hydrants, adequate fIre protection services can continue to be provided upon completion of the proposed
project. The proposed project would not have a signifIcant effect upon or result in a need for new or altered
fIre protection services,
2) According to the Police Department, adequate police protection services can continue to be provided
upon completion of the proposed project. The proposed park would not have a signifIcant effect upon or
result in a need for substantial new or altered police protection services.
3) The proposed project would not induce population growth; therefore, no signifIcant adverse impacts to
public schools would result.
4) The proposed project would provide a new park amenity in an area currently in need of such resources.
Therefore, the project would have a benefIcial effect on parks.
5) The proposed project would not have a signifIcant effect upon or result in a need for new or expanded
governmental services beyond routine maintenance of the new park, and would continue to be served by
existing public inftastructure,
Mitie:ation: No mitigation measures are required.
XIV. RECREATION. Would the project:
a) Increase the use of existing neighborhood and 0 0 0 .
regional parks or other recreational facilities such
that substantial physical deterioration of the
facility would occur or be accelerated?
b) Does the project include recreational facilities or 0 0 0 .
require the construction or expansion of
recreational facilities wruch have an adverse
physical effect on the environment?
15
""-"--"- -"----~-
Less Than
Potentially Significant Less Than
With
Issues: Significant Mitigation Significant No Impact
Impact Incorporated Impact
Comments:
a and b) The project would have a beneficial effect on recreational facilities in the local area, providing
an amenity in an area in need of such resources,
Mitie:ation: No mitigation measures are required.
XV. TRANSPORTATION / TRAFFIC Wmùd
the project:
a) Cause an increase in traffic which is substantial in 0 0 0 .
relation to the existing traffic load and capacity of
the street s~tem (ie., restÙt in a substantial increase
in either the number of vehicle trips, the volwne to
capacity ratio on roads, or congestion at
intersections)?
b) Exceed, either individually or cumulatively, a 1evel of 0 0 0 .
seIVlCe standard established by the county
congestion management agency for designated
roads or highwa~?
c) RestÙt in a change in air traffic patterns, including 0 0 0 .
either an increase in traffic 1evels or a change in
location that restÙts in substantial safety risks?
d) Substantially increase hazards due to a design feature 0 0 0 .
(e.g., sbatp CUlVes or dangerous intersections) or
incompatib1e uses (e.g., fann equipment)?
e) RestÙt in inadequate emergency access? 0 0 0 .
~ RestÙt in inadequate parking capacity? 0 0 0 .
g) Conflict with adopted policies, plans, or programs 0 0 0 .
supporting alternative transportation (e.g., bus
16
Less Than
Potentially Significant Less Than
With
Issues: Significant Mitigation Significant No Impact
Impact Incorporated Impact
turnouts, biC}de racks)?
Comments:
a and b) According to the City's Engineering Division, the park is estimated to generate approximately
260 one-way trips per day. Average Daily Traffic (ADT) on Oxford Street, A Class II Collector, would
increase ftom 5,990 ADT (in 2003) to 6,250 ADT with the proposed project; therefore, Oxford Street
would continue to operate at a Level of Service (LOS) A. No significant impacts to streets or
intersections beyond Oxford Street are anticipated based upon the minimal traffic generation ftom the
project and the existing operations of these facilities.
c and d) The project would not affect air traffic or create traffic hazards.
e) The City Engineering Division has found the existing street improvements including the driveway
are adequate,
f) The project will provide adequate parking for the recreational facility. The project will meet ADA
requirements for accessibility and parking, The County of San Diego currently has an access easement
on the western edge of the project site within the City's property. The County constructed a portion of
their parking lot beyond the limits of this easement area, within the project site, The full extent of the
project site will be used for the park, with the access driveway and landscaped parking spaces along the
western edge, Therefore, the existing parking used by the County on the City's property will no longer
be available for use by the County facility, However, because the County facility has sufficient parking
on their site, the project would not result in inadequate parking capacity.
g) The project would not affect alternative transportation plans.
Mitigation: No mitigation measures are required,
XVI. UTILITIES AND SERVICE SYSTEMS.
Would the project:
a) Exceed wastewater treatment requirements of the 0 0 0 .
applicable Regional Water Quality Control Board?
b) Require or result in the construction of new water or 0 0 0 .
wastewater treatment facilities or expansion of
existing facilities, the construction of which could
cause significant environmental effects?
17
Less Than
Potentially Significant Less Than
With
Issues: Significant Mitigation Significant Nn Impact
Impact Incorporated Impact
c) Require or result in the construction of new stann 0 0 . 0
water drainage facilities or expansion of existing
facilities, the construction of which could cause
significant enVÏrorunental effects?
d) Have sufficient water supplies available to serve the 0 0 0 .
project from existing entitlements and resources, or
are new or expanded entitlements needed?
e) Result in a detenninarion by the wastewater treatment 0 0 0 .
provider which serves or may serve the project that it
bas adequate capacity to serve the project's projected
demand in addition to the provider's existing
conunitments?
1) Be served by a landfill with sufficient pennitted 0 0 . 0
capacity to accommodate the project's solid waste
disposal needs?
g) Comply with federal, state, and local statutes and 0 0 0 .
regulations related to solid waste?
18
Less Than
Potentially Significant Less Than
With
Issues: Significant Mitigation Significant No Impact
Impact Incorpouted Impact
Comments:
a) The project site is located within an urban area that is served by all necessary utilities and service
systems, Wastewater requirements of the Regional Water Quality Control Board would not be
exceeded due to the proposed project. An existing l5-inch sewer main runs westerly along Oxford
Street. According to the City Engineering Division, the line is adequate to serve the proposed project.
b) See XVI a, No construction of new water or wastewater treatment facilities or the expansion of
existing facilities would be necessary.
c) The average natural slope of the site is 2 percent. Existing off-site drainage facilities consist of curb
inlets and stonn drain pipelines located along Oxford Street adjacent to the proposed project. On-site
storm drainage facilities constructed to provide appropriate drainage for the park would be confined to
the site and connect to the existing 54-inch stonn drain in the northeast corner of the site.
d) The project site is within the service area of the Sweetwater Authority. Pursuant to correspondence
ITom the Sweetwater Authority, the project may be serviced ftom existing 8-inch AC potable water
main in Oxford Street. An existing I Yz-inch meter was installed for the parcel in 1969. Although the
meter was pulled due to inactivity, the service is still existing and active. No new or expanded
entitlements are anticipated for the proposed project. Project impacts to the Authority's storage,
treatment, and transmission facilities would be less than significant.
e) See XVI a and b.
f) The City of Chula Vista is served by regional landfills with adequate capacity to meet the solid
waste needs of the region in accordance with State law,
g) The proposed project would comply with federal, state and local regulations related to solid waste.
The design specifications will mandate appropriate disposal of waste during construction. Trash
receptacles meeting municipal and other regulatory agency design standards would be provided and
properly maintained.
XVII. THRESHOLDS
Will the proposal adversely impact the City's
Threshold Standards?
A 1ilim:;y 0 0 0 .
The Gtyshall construct 60,000 gross square feet (GSF)
of additional library space, over the June 30, 2000
GSF total, in the area east of Interstate 805 by
buildout. The construction of said faciliries shall be
phased such that the Gty will not fall below the city-
wide ratio of 500 GSF per 1,000 population. Library
19
---.----------
Less Than
Potentially Significant Less Than
With
Issues: Significant Mitigation Significant No Impact
Impact Incorporated Impact
facilities are to be adequately equipped and staffed.
B) Police D D D .
a) Emergency Response: Properly equipped and staffed
police units shall respond to 81 percent of "Priority
One" emergency calls within seven (7) minutes and
maintain an average response time to all "Priority One"
emeq?;ency calls of 5.5 minutes or less.
b) Respond to 57 pen:ent of "Priority Two" urgent calls
within seven (7) minutes and maintain an average
response time to all "Priority Two" calls of 7.5 minutes
or less.
C) Fire and Erne¡¡:ençy Medical D D D .
Emeq?;ency response: Propedy equipped and staffed fIre
and medical units shall respond to calls throughout the Gty
within 7 minutes in 80% of the cases (measured annuallJ?
0) Traffic D D D .
The Threshold Standards require that all intersections nmst
operate at a Level of Service (LOS) "C' or better, with the
exception that Level of Service (LOS) "D" may ocrur
during the peak two hours of the clay at signaEzed
intet>ections, Signalized intet>ections WESt of I-80S are not
to operate at a LOS below their 1991 LOS. No
intersection may reach LOS "E" or "F" during the average
weekday peak hour, Intersections of arterials with freeway
ramps are exempted from tills Standard.
E) Parks and Recreation Areas D D D .
The Threshold Standard for Parks and Recreation is 3
acres of neighbothood and community parldand with
appropriate facilities /1,000 popuJation east of I-80S.
F)~ D D . D
The Threshold Standards require that stonn water flows
and volwnes not exceed Gty Engineering Standards.
Individual projects will provide necessary improvements
consistent with the Drainage Master P1an(s) and Gty
Engineering Standards.
20
Less Than
Potentially Significant Less Than
With
Issues: Significant Mitigation Significant No Impact
Impact Incorporated Impact
G) Sewer 0 0 . 0
The ThæshoJd Standards require that sewage flows and
volumes not exceed Gty Engineering Standards.
Individual projects will provide necessary improvements
consistent with Sewer Master P1an(s) and Gty Engineering
Standards.
H) Water 0 0 0 .
The 1breshokl Standards require that adequate storage,
treatment, and transmission facilities are constructed
cotlCU1Tendy with planned growth and that water quality
standards are not jeopatdized during growth and
construccion.
Applicants may also be required to participate in whateVer
water conservation or fee off-set program the Gty of
~lUla Vßta has in effect at the time of bWkling permÏt
ßsuance.
21
Less Than
Potentially Significant Less Than
With
Issues: Significant Mitigation Significant Nn Impact
Impact Incorporated Impact
Comments:
a) The project is not a housing development; therefore, no impacts to library facilities would result.
No adverse impact to the City's Library Threshold standards would occur as a result of the proposed
project.
b) According to the Police Department, adequate police protection services can continue to be
provided upon completion of the proposed project. The proposed park project would not have a
significant effect upon or result in a need for substantial new or altered police protection services. No
adverse impact to the City's Police Threshold standards would occur as a result of the proposed project.
c) According to the Fire Department, adequate fire protection and emergency medical services can
continue to be provided to the site. As of September 2003, additional fire stations such as Fire Station
4 and Fire Station 7 on the eastern side of the City have been developed and are in operation to improve
fire services and response times throughout the City. The proposed project would not have a
significant effect upon or result in the need for new or altered fire protection services. No adverse
impact to the City's Fire and Emergency Medical Threshold standards would occur as a result of the
proposed project.
d) According to the City Engineering Division, the park is estimated to generate approximately 260 one-
way trips per day, which would not adversely affect the Level of Service on Oxford Street or other streets or
intersections in the vicinity, Based upon the project traffic generated, all roadway segments and
intersections within the study area are estimated to operate at levels of service that are in compliance with
the City's Traffic Threshold standards.
e) Because the project site is located west of Interstate 805, this Threshold Standard is not applicable,
However, the proposed park would add a neighborhood park, which is beneficial.
f) New storm drainage facilities will be constructed on-site to provide appropriate drainage for park
facilities. The stonn drains will connect to the existing 54-inch stonn drain in the northeast corner of the
site. A drainage study will be prepared in conjunction with the final grading and improvement plans, and
drainage facilities designed in accordance with the Drainage Master Planes) and City Engineering standards
will be installed at the time of site development. No adverse impacts to the City's stonn drainage system or
City's Drainage Threshold standards would occur as a result of the proposed project.
g) The proposed project lies within the Telegraph Canyon Trunk Sewer Basin. The sewer facilities serving
the project site consist of a l2-inch sewer running along Naples Street, and a l2-inch sewer running along
Oxford Street. The Engineering Division has detennined that these facilities are adequate to serve the
proposed project. Therefore, no new sewer facilities will be required, and no adverse impacts to the City's
Sewer Threshold standards would occur as a result of the proposed project.
h) Pursuant to correspondence received from the Sweetwater Authority, there is an 8-inch water main
located in Oxford Street. Their records indicate the project can be served from an existing water service for
the parcel. Project impacts to the Authority's storage, treatment, and transmission facilities would be less
than significant. No adverse impacts to the City's Water Threshold standards would occur as a result of the
proposed project.
22
Less Than
Potentially Significant Less Than
With
Issues: Significant Mitigation Significant No Impact
Impact Incorporated Impact
XVIII. MANDATORY FINDINGS OF
SIGNIFICANCE
a) Does the project have the potential to degrade the 0 0 0 .
quality of the environment, substantially reduce the
habitat of a fISh or wikI1ife species, cause a fish or
wildlife population to drop below self-sustaining
levels, threaten to eliminate a plant or animal
community, reduce the number or restrict the range
of a rare or endangered plant or animal or elirninate
important examples of the major periods of
California history or prehistory?
b) Does the project have impacts that are individually 0 0 0 .
1imited, but cumulatively considerable?
(" Gunulatively considerable" means that the
incremental effects of a project are considerable
when viewed in connection with the effects of past
projects, the effects of other current project, and the
effects of probable future projects.)
c) Does the project have environmental effects which 0 0 0 .
will cause substancial adverse effects on human
beings, either directly or indirecdy?
Comments:
a) The site is currently vacant, is located within an established urbanized area, and is within the designated
development area of the adopted Chula Vista MSCP Subarea Plan. There are no known sensitive plant or
animal species or cultural resources on the site.
b) As described in the Mitigated Negative Declaration, significant direct project impacts would be mitigated
to below a level of sigtrificance through the required mitigation measures. No cumulatively considerable
impacts associated with the project when viewed in connection with the effects of past projects, other current
projects and probable future projects have been identified and none are contemplated.
c) See the discussion in Sections E and F of the Mitigated Negative Declaration. Potential impacts associated
with air quality, hazardous materials, and noise during construction would be mitigated to below a level of
sigtrificance,
23
XIX. PROJECT REVISIONS OR MITIGATION MEASURES:
Project mitigation measures are contained in Section F, Mitigation Necessary to Avoid
Significant Impacts, and Table I, Mitigation Monitoring and Reporting Program, of
Mitigated Negative Declaration IS-04-0 II.
XX. AGREEMENT TO IMPLEMENT MITIGATION MEASURES
By signing the line(s) provided below, the Applicant and/or Operator stipulate that they have
each read, understood and have their respective company's authority to and do agree to the
mitigation measures contained herein, and will implement same to the satisfaction of the
Environmental Review Coordinator. Failure to sign below prior to posting of this Mitigated
Negative Declaration with the County Clerk shall indicate the Applicant and/or Operator's
desire that the Project be held in abeyance without approval and that the Applicant and/or
Operator shall apply for an Environmental Impact Report,
Patricia E. Fermån. Landscape Planner II. Proiect Manager
Printed Name and Title of Applicant
(or authorized representative)
~~~=, lþ7/0-;
Date
(or authorized representative)
AI/A
Printed Name and Title of Operator
(if different from Applicant)
Signature of Operator Date
(if different ftom Applicant)
24
XXI. ENVIRONMENTAL FACTORS POTENTIALLY AFFECTED:
The environmental factors checked below would be potentially affected by this project, involving at
least one impact that is a "Potentially Significant Impact" or "Potentially Significant Unless Mitigated,"
as indicated by the checklist on the previous pages.
0 Land Use and Planning DTransportation/T raffic 0 Public Services
0 Population and Housing 0 Biological Resources 0 Utilities and Service Systems
0 Geology and Soils 0 Mineral Resources 0 Aesthetics
0 Agricultural Resources
0 Hydrology and Water .Hazards and Hazardous 0 Cultural Resources
Quality Materials
. Air Quality . Noise 0 Recreation
0 Mandatory Findings of Significance
0 Threshold Standards
25
.... .....-........
XXII. DETERMINATION:
On the basis of this initial evaluation:
I find that the proposed project could not have a significant effect on the 0
environment, and a Negative Declaration will be prepared,
I find that although the proposed project could have a significant effect on the .
environment, there will not be a significant effect in this case because the
mitigation measures described on an attached sheet have been added to the project.
A Mitigated Negative Declaration will be prepared,
I find that the proposed project may have a significant effect on the envirorunent, 0
and an Environmental Impact Report is required,
I find that the proposed project may have a significant effect(s) on the environment, but at 0
least one effect: 1) has been adequately analyzed in an earlier document p=uant to
applicable legal standards, and 2) has been addressed by mitigation measures based on the
earlier analysis as described on attached sheets, if the effect is a "potentially significant
impacts" or "potentia11ysignificant unless DÙtigated." An EnvironmentalImpactReport
is required, but it llUJSt analyze only the effects that remain to be addressed.
I find that although the proposed project could have a significant effect on the 0
environment, there will not be a significant effect in this case because all potentially
significant effects (a) have been analyzed adequately in an earlier EIR p=uant to applicable
standards and (b) have been avoided or mitigated p=uant to that earlier ErR, including
revisions or mitigation measures that are imposed upon the proposed project. An
addendum has been prepared to provide a record of this detennination.
~6J~ß' .3 h / ð¡:
Marilyn .F. Ponseggl Date
Environmental Review Coordinator
City ofChula Vista
26
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COUNCIL AGENDA STATEMENT
Item: /~
. Meeting Date: 04/20/04
ITEM TITLE: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA ACCEPTING AND APPROVING THE SAN DIEGO COUNTY
MULTI-JURISDICTIONAL HAZARD MITIGATION PLAN AS IT RELATES TO
THE CITY OF CHULA VISTA
SUBMITTED BY: Fire Chie(J)Af
REVIEWED BY: City Managed~~9í'" (4/5ths Vote: Yes_No _X_)
,ft
The Disaster Management Act of 2000 requires that, in order to remain eligible
for pre and post-disaster Federal Emergency Management Assistance funding
after November 2004, every jurisdiction in the County of San Diego must have an
approved Hazard Mitigation Plan.
RECOMMENDATION: That the City Council adopt the resolution accepting and
approving the San Diego County Multi-jurisdictional Hazard Mitigation Plan.
BOARDS/COMMISSIONS RECOMMENDATION: N/A
DISCUSSION:
Federal law requires that every jurisdiction accept and approve a Hazard
Mitigation Plan in order to remain eligible for pre and post-disaster Federal
Emergency Management Assistance (FEMA) funding after November 2004. The
San Diego County Office of Emergency Services, and representatives from the
18 jurisdictions within the County have worked together to prepare a San Diego
County Multi-jurisdictional Hazard Mitigation Plan. The Hazard Mitigation Plan is
an essence a strategic plan written to guide how a community will lower its risk
and exposure to disasters. The program objectives and action plans are
proposed to be implemented as funding becomes available
The following is a summary of the City of Chula Vista's component contained in
the San Diego Multi-jurisdictional Plan. Due to the size and cost of the
document, a copy of the full document is available for review in the City Clerks
office.
Ie -I
-~-~--~----_.
Environmental Status:
The Environmental Review Coordinator has reviewed the proposed plan for
compliance with the California Environmental Quality Act and has determined
that the plan qualifies for a statutory exemption pursuant to Section 15262 of the
State CEQA Guidelines. Thus, no further environmental review is necessary at
this time; however, future actions related to the implementation of components of
the plan that have the potential to result in adverse environmental effects will
require subsequent environmental review in accordance with CEQA.
Mission
The mission of the City of Chula Vista's portion of the San Diego County Multi-
Jurisdiction Hazard Mitigation Plan is to reduce or eliminate the loss of life and
property due to disasters.
Vision
The City of Chula Vista will use its best efforts to be disaster resistant, enabling
our citizens to live and work free from the effects of disasters.
GOALS
1. Promote disaster-resistant existing and future development.
2. Increase public understanding, support, and demand for effective hazard
mitigation.
3. Build and support local capacity and commitment to continuously become
less vulnerable to hazards.
4. Improve coordination and communication with federal, state, and local
governments.
Reduce the possibility of damage and losses to existing assets, particularly
people, critical facilities/infrastructure, and City-owned facilities, due to:
5. Floods
6. Wildfires/Structure Fires
7. Dam Failure
8. Geologic Hazards
9. Unauthorized Hazardous Materials Releases
10. Other Human-Caused Hazards
Hazard Mitiaation Plan Goals
Goal 1. Promote disaster-resistant existing and future development.
Objective 1.A Encourage and facilitate the development or updating of
general plans and zoning ordinances to limit development in
hazard areas.
Action 1.A.1 - Update the City's General Plan periodically and
recommend improvements to the Safety Element.
Action 1.A.2 - Identify new hazardous occupancies as they are
permitted or created and establish database.
Action 1.A.3 - Update the City's zoning ordinance periodically and
address development in hazard areas and minimize zoning
ambiguities.
Action 1.A.4 - Revisit the City's hazard mitigation related ordinances
to identify areas where improvements could be made.
Action 1.A.5 - Utilize hazard overlays to identify hazard-prone areas.
Action 1.A.6 - Establish buffer zones for development near hazard-
prone areas, as funding is available and as allowed by law and
approved by City Council.
Action 1.A.7 - Continue to prohibit development in extreme hazard
areas that cannot be adequately mitigated, and set aside for open
space, as outside grant funding is available and as allowed by law
and approved by City Council.
Action 1.A.8 - Identify land uses appropriate to specific hazard
areas.
Objective 1.8 Encourage and facilitate the adoption of building codes that
protect renovated existing assets and new development in hazard
areas.
Action 1.8.1 - Adopt local building codes to address local building
issues in hazard areas.
Action 1.8.2 - Amend the Zoning and Subdivision Ordinances, as
required, to implement the policies of the Safety Element of the
General Plan (Safety Element Policy Statement 7, page 8-7).
Action 1.8.3 - Actively participate in the State- and Nation-wide
building code development groups to ensure that development
issues in hazard areas are properly addressed.
18~3
Action 1.B.4 - Amend the Fire Code and Building Code, as
necessary, to be consistent with the policies of the General Plan and
the Seismic Safety Element of the General Plan (Safety Element
Policy Statement 8).
Action 1.B.5 - Identify and improve buildings to mitigate hazards
through elevation, retaining walls, dikes and flood diverting
measures, relocating electrical outlets to higher elevations,
increasing fire resistance, etc.
Action 1.B.6 - Identify and provide fire mitigation measures in
buildings with hazardous materials, add ventilation systems to
minimize explosions, and add control areas.
Action 1.B.7 - Develop hazard-specific code requirements for each
type of hazard area.
Action 1.B.8 - Develop standardized processes for evaluating
proposed developments within hazard areas.
Action 1.B.9 - Require site-specific studies to evaluate specific
hazards in hazard-prone areas and identify alternative site design
criteria to mitigate hazards to the maximum extent possible.
Action 1.B.10 - Establish minimum structure setbacks adjacent to
hazard areas, with respect to hazard specific code, as funding is
available and as allowed by current City code or as may be
amended.
Action 1.B.11- Identify and relocate buildings in hazardous
locations to proper locations.
Objective 1.C. Encourage consistent enforcement of general plans, zoning
ordinances, and building codes.
Action 1.C.1 - Review General Plan, Zoning Ordinance, Fire Codes,
Subdivision Ordinance, and Building Codes for consistency.
Action 1.C.2 - Maintain ongoing training for development staff on
development procedures and zoning and building code
interpretation.
Action 1.C.3 - Continue to provide a HAZMIT compliance any time
a permit is obtained for any improvement on existing hazardous
buildings.
I
Action 1.CA - Develop and implement specialized training for
Development Services staff for each type of hazard area.
Action 1.C.5 - Provide an inspection program, both public and
private, and issue certificates of compliance to ensure maintenance
of compliance to Hazmit related codes.
Action 1.C.6 - Follow development procedures to ensure
development is consistent with the City's General Plan.
Action 1.C.7 - Provide educational sessions for owners of
hazardous businesses, and encourage a maintenance program.
Action 1.C.8 -Develop standard processes for evaluating/approving
proposed development in hazard areas.
Objective 1.0 Discourage future development that exacerbates hazardous
conditions.
Action 1.0.1 - Continue to improve zoning ordinance to limit future
development of hazardous areas.
Action 1.0.2 - Apply for State/Federal grants/funds for the
acquisition of developable land for open space development.
Action 1.0.3 - Take a proactive approach to fire code/building code
compliance inspections with respect to concentration of hazardous
material in one area or location.
Action 1.0.4 - Set aside or zone extreme hazard areas for open
space uses.
Action 1.0.5 - Evaluate the potential benefits of establishing
buffer/transition zoning for each type of hazard area.
Action 1.0.6 - Educate the public regarding hazardous locations,
operations, buildings, etc.
Action 1.0.7 - Where feasible, encourage the development of
infrastructure to assist in the hardening of hazard exposure zones.
Objective 1.E Address identified data limitations regarding the lack of
information about new development and build-out potential
in hazard areas.
¿:::
...I
----------------
Action 1.E.1 - Use hazard overlays to identify hazard-prone new
development.
Action 1.E.2 - Assure staff consultant expertise in evaluating
technical studies/data.
Action 1.E.3 - Update databases/Geographic Information System
(GIS), with particular attention to maintaining hazard overlay layers.
Require electronic submittals of all reports and data in electronic
form.
Action 1.E.4 - Require engineering studies to evaluate specific
hazards in hazard-prone areas and identify alternative site design
criteria to mitigate hazards to the maximum extent possible.
Objective 1.F Actively pursue grant funding for citywide hazard mitigation.
Action 1.F.1 - Notify City's Intergovernmental Affairs Coordinator to
seek hazard mitigation funding, from state and nation-wide sources,
and to inform the proper department head when grant funding is
identified.
Action 1.F.2 - Apply for hazard mitigation grant funding, as it
becomes available.
Action 1.F.3 - Identify target hazard mitigation projects to minimize
delay when grant funding is available.
Goal 2. Promote public understanding, support and demand for
hazard mitigation.
Objective 2.A Educate the public to increase awareness of hazards and
opportunities for mitigation actions.
Action 2.A.1 - Provide information pamphlets to be distributed to
the public at information booths at street fairs, community meetings,
etc.
Action 2.A.2 - Provide Chula Vista citizens with Community
Emergency Response Team training opportunities to increase
public awareness of hazards and response to hazards.
Action 2.A.3 - Provide a public information program on geologic
and firestorm hazards and safety (General Plan Safety Element
Policy 10).
.
Action 2.A.4 - Provide training at Town Hall Meetings or other
public gatherings.
Action 2.A.5 - Provide discussion, on our home web page, the
dangers and repercussions of human activity within and adjacent to
hazard zones and what our citizens can do to minimize/mitigate
these dangers.
Objective 2.8 Promote partnerships between the state, counties, and local
governments to identity, prioritize, and implement mitigation
actions.
Action 2.8.1 - Identify state and federal hazard mitigation
funds/programs for public and private entities.
Action 2.8.2 - Actively participate in the San Diego County Multi-
Hazard Mitigation Plan process.
Action 2.8.3 - Contact neighboring cities and counties to create
shared programs and have periodic meetings to share information
and open channels of communication.
Objective 2.C Promote hazard mitigation in the business community.
Action 2.C.1 - Coordinate hazard mitigation education/ training with
routine inspections of businesses utilizing code enforcement and
fire prevention inspections.
Objective 2.0 Monitor and publicize the effectiveness of mitigation actions
implemented.
Action 2.0.1 - Create a program to report and monitor the
mitigation implementation.
Action 2.0.2 - Provide newsletters or site Internet to publicize the
information gathered through the monitoring program.
Objective 2.E Discourage activities that exacerbate hazardous conditions.
Action 2.E.1 - Require an increased level of security of facilities
storing hazardous materials.
Action 2.E.2 - Ensure non-conforming land uses are not permitted
in the future.
Action 2.E.3 - Ensure non-conforming land uses are brought into
conformance upon title change or other method.
/
~~~_.~--~
Action 2.EA - In the event non-conforming land uses are damaged
or destroyed in a disaster, ensure only conforming land uses are
permitted on the site thereafter.
Action 2.E.5 - Provide guidelines in the usage of hazardous
material specifically in approved hazardous locations.
Goal 3. Build and support local capacity and commitment to
continuously become less vulnerable to hazards.
Objective 3.A Increase awareness and knowledge of hazard mitigation
principles and practice among state, and local officials.
Action 3.A.1 - Establish the means to share information and
innovations in various areas of hazard mitigation through a
technical "clearinghouse."
Action 3.A.2 - Coordinate hazard mitigation activities with local
utilities, water suppliers, and critical facilities within the City of
Chula Vista.
Objective 3.8 Seek technical assistance from State and Federal agencies
in refining and implementing hazard mitigation plans.
Action 3.8.1 - Seek State and Federal funding for implementation
of the City's hazard mitigation plan.
Action 3.8.2 - Request periodic FEMA review of the City's hazard
mitigation plan for recommendations for plan refinements and for
potential funding sources.
I g ~
Objective 3.C Assure adequate infrastructure is in-place for emergencies.
Action 3.C.1 - Promote the establishment and maintenance of: safe
and effective evacuation routes; ample peak-load water supply;
adequate road widths; and, safe clearances around buildings
(General Plan, page 8-7).
Action 3.C.2 - Explore non-traditional public and private mutual aid
resources.
Action 3.C.3 - Identify public and private resources available for
various types of emergencies.
Action 3.C.4 - Establish emergency purchasing authority with local
businesses, suppliers, disposal sites, and material recyclers.
Goal 4. Improve hazard mitigation coordination and communication
with federal, state and local governments.
Objective 4.A Establish and maintain closer working relationships with
state agencies and other local governments.
Action 4.A.1 Attend multi agency hazard mitigation planning
meetings that deal with other local governments the County, State
and Federal entities.
Action 4.A.2 Promote mutual aid agreements and interagency
dialogue related to hazard mitigation planning.
Objective 4.8 Encourage other organizations to incorporate hazard
mitigation activities.
Action 4.8.1 - Encourage businesses and industrial operations in
embracing hazard mitigation as a daily activity.
Action 4.8.2 - Promote Hazard mitigation as a viable way of doing
business for governmental entities, industry, businesses and the
general public.
Action 4.8.3 - Where applicable, discuss hazard mitigation plan
activities with fellow municipal government workers within
professional membership groups at group activities.
Objective 4.C Improve the State's capability and efficiency at administering
pre- and post-disaster mitigation.
/~ q
- -------------
Action 4.C.1 - Establish standard GIS projects that contain all
spatial data likely to be needed in an Emergency Operations Center
and make these projects available to all local, regional and State
governments, as funding is available. Safeguard the projects by
making multiple copies available on CD's and stored in multiple
locations. Promote the sharing of these projects and data on CD's
with other agencies.
Action 4.C.2 - Support regional planning efforts for hazard
mitigation and disaster recovery planning.
GoalS. Reduce the possibility of damage and losses to existing
assets, particularly people, critical facilitieslinfrastructure, and
City-owned facilities, due to floods.
Objective 5.A Develop a comprehensive approach to reducing the
possibility of damage and losses due to floods.
Action 5.A.1 - Encourage the establishment or maintenance of
adequate open space adjacent to watercourses (General Plan
Section 4.2, page 6-9).
Action 5.A.2 - Prevent deposit of fill or construction within any
floodway.
Action 5.A.3 - Update Drainage Element of the General Plan based
upon actual, developed conditions (General Plan, GMOC Section).
Action 5.AA - Continue to review applications for new development
within the City in compliance with the California Environmental
Quality Act (CEQA) provisions set forth by the State of California,
thereby requiring individualized studies for flood hazards on an as-
needed basis and establishing mitigation measures for the
development project before construction begins.
Action 5.A.5 - Monitor and enforce compliance with CEQA-
mandated mitigation measures during development and
construction, as the development project requires.
Objective 5.8 Protect existing assets with the highest relative vulnerability
to the effects of floods within the 1 DO-year floodplain.
Action 5.8.1 - Continue to require structural flood control
improvements of new development where flooding is already a
problem (existing ordinances).
Action 5.8.2 - Update Drainage Element of the General Plan based
upon actual, developed conditions (General Plan, GMOC Section).
Action 5.8.3 - Discourage the disruption of natural flowage patterns
and encourage the maximum use of natural drainage ways in new
development (General Plan, Section 5.3, Drainage and Flood
Control Policies).
Objective 5.C Minimize repetitive losses caused by flooding.
Action 5.C.1 - Maintain databases of property flooding and damage
to further identify and define local hazard areas and to monitor
floodplain management.
Action 5.C.2 - Implement drainage improvements with an emphasis
on improving downstream facilities before improving upstream
facilities, unless upstream mitigation (such as detention or retention
basins) is provided.
Action 5.C.3 - Identify State and Federal funding sources available
to either purchase or flood-proof existing structures/facilities in
flood-prone areas.
Objective 5.D Request assistance from State and Federal
governments, as necessary, to enable the City to maintain
compliance with the National Flood insurance Program (NFIP)
requirements.
Action 5.0.1 - Periodically review City compliance with NFIP
requirements.
Action 5.0.2 - Submit Letters of Map Revision (LOMRs)/ Letters of
Map Amendment (LOMAs) to FEMA within a prescribed period of
time upon completion of drainage improvements or flood proofing.
Action 5.0.3 - Update Flood layers in GIS upon FEMA approval of
LOMRs/LOMAs.
Objective 5. E Identify data limitations in providing information about
relative vulnerability of assets from floods (e.g., 03/digital floodplain
maps)
/'[foll
....----.....
Action 5.E.1 - Update Drainage Element of the General Plan using
current data, based upon actual, developed conditions and
proposed development conditions.
Action 5.E.2 - Utilize empirical data to further define flood hazard
models.
Goal 6. Reduce the possibility of damage and losses to existing
assets, particularly people, critical facilities/infrastructure, and
State-owned facilities, due to wildfires and structural fires.
Objective 6.A Develop a comprehensive approach to reducing the
possibility of damage and losses due to wildfires.
Action 6.A.1 - Ensure the open space around structures is
sufficient to promote fire safety (General Plan, page 8-7), as
funding is available and as allowed by current City code or as may
be amended.
Action 6.A.2 - Ensure the space separating buildings is consistent
with the standards of fire-safety practices (General Plan, page 8-7).
Action 6.A.3 - Continue to review applications for new development
within the City in compliance with the California Environmental
Quality Act (CEQA) provisions set forth by the State of California,
thereby requiring individualized studies for wildfire on an as-needed
basis and establishing mitigation measures for the development
project before construction begins.
Objective 6.B Prevent the loss of life in wildland fires.
Action 6.B.1 - Develop and promote public education programs in
wildland fire safety and survival for all residents adjacent to wildland
areas.
Action 6.B.2 - Utilize the City's Fire Educational Officer to
implement Action 6.B.1.
Action 6.B.3 - Manage open space preserves in a manner that
minimizes fuel loads, through actions such as hand clearing, as
funding is available and as allowed by current City code or as may
be amended, and consistent with the City of Chula Vista's MSCP
Sub area plan.
Objective 6.C Prevent the ignition of structures by wildland fires.
~
Action 6.C.1 - Incorporate fire-resistant building materials and
construction methods .in new development adjacent to wildlands.
Action 6.C.2 - Ensure a defensible fire-fighting space adjacent to
wildlands in new developments, consistent with the City of Chula
Vista's MSCP Sub area plan.
Objective 6.0 Prevent wildland-caused structural conflagration.
Action 6.0.1 - Pursue State and federal funding for the elimination
of combustible roofs and siding on existing homes and structures.
Action 6.0.2 - Adopt an ordinance requiring "Class A-rated" roofs
and non-combustible or fire-rated siding on all new and remodeled
structures facing a wildland.
Action 6.0.3 - Require non-combustible window assemblies and
double-pane glass in all new and remodeled structures facing a
wildland.
Objective 6.E Prevent the encroachment of wildland fire upon the
community.
Action 6.E.1 - Require a "greenbelt" or other defensible zone, as
topography dictates, along the easterly edge of the easterly city
limits, as funding is available and as allowed by current City code or
as may be amended, and consistent with the City of Chula Vista's
MSCP Subarea plan.
Action 6.E.2 - Improve and ensure adequate access to wildlands
and adequate water supply for firefighters, as funding is available,
and consistent with the City of Chula Vista's MSCP Subarea plan.
Action 6.E.3 - Increase budget to the Public Works/Operations
Open Space Maintenance Section for brush clearing, as funding is
available, and consistent with the City of Chula Vista's MSCP
Subarea plan.
Objective 6.f Investigate the possibility of doing further Community
Vegetation Management analysis.
Action 6. F.1 - I nvestigate the possibility of preparing a Community
Vegetation Management Plan, as funding is available.
Action 6.f.2 - Investigate the possibility of adopting a final
Community Vegetation Management Plan by Ordinance and
ensure the enforcement thereof.
------------
Objective 6.G Identify data needed to provide information related to
wildfires (e.g., a comprehensive database of California wildfires, a
California wildfire risk model, and relative vulnerability of assets).
Action 6.G.1 - Develop GIS layer(s) showing history and frequency
of major wildfire events.
Action 6.G.2 - Work with regional and federal agencies to establish
procedures that will enable the City to acquire near real-time data
on wildfire extents to help improve EOC response to an emergency.
Establish a GIS project model that readily incorporates such data to
reduce the amount of time required to produce field maps.
Goal 7. Reduce the possibility of damage and losses to existing
assets, particularly people, critical facilities/infrastructure, and
State-owned facilities, due to dam failure.
Objective 7.A Develop a comprehensive approach for reducing the
possibility of damage and losses due to dam failure.
Action 7.A.1 - Promote low intensity, non-residential land uses in
dam inundation zones for future development.
Action 7.A.2 - Continue to review applications for new development
within the City in compliance with the California Environmental
Quality Act (CEQA) provisions set forth by the State of California,
thereby requiring individualized studies for flood hazards on an as-
needed basis and establishing mitigation measures for the
development project before construction begins.
Action 7.A.3 - Monitor and enforce compliance with CEQA
mandated mitigation measures during development and
construction, as the development project requires.
Action 7.A.4 - Review current dam failure information/data for
clarity and accuracy.
Action 7.A.5 - Review current evacuation plans for accuracy and
practicality.
Objective 7.8 Protect existing assets with the highest relative vulnerability
to the effects of dam failure.
Action 7.8.1 - Identify and prioritize critical facilities within dam
inundation zones.
/
Action 7.B.2 -Identify vulnerable populations within dam inundation
areas.
Action 7.B.3 - Identify Federal and State funding to
minimize/mitigate dam inundation hazards to critical facilities and
vulnerable populations.
Objective 7.C. Identify data needed to provide information about the relative
vulnerability of assets from dam failure.
Action 7.C.1 - Revise plans/data periodically to adequately
represent existing conditions/vulnerable populations.
Action 7.C.2 - Conduct survey of assets within dam inundation
areas and assign attribute data to a GIS layer (daytime vs.
nighttime population, ease of evacuation, proximity to safety zones,
etc.); Assign vulnerability rankings to each asset; Create GIS
project with dam inundation and asset layers available for query
and display.
/
u__uu-~---_..-
GoalS. Reduce the possibility of damage and losses to existing
assets, particularly people, critical facilities/infrastructure, and
State-owned facilities, due to aeoloaical hazards.
Objective 8.A Develop a comprehensive approach to reducing the
possibility of damage and losses due to geological hazards.
Action 8.A.1 - Ensure the space separating buildings is consistent
with standards of fire-safety practices (General Plan, page 1-26).
Action 8.A.2 - Ensure the structural characteristics of soil and
requirements contained in building code determines the type of
construction allowed (General Plan, page 1-26).
Action 8.A.3 - Ensure areas of development do not include hazard
areas such as ancient landslides, unstable soils, or active fault
zones unless mitigated.
Action 8.A.4 - Ensure no lands are subdivided, developed or filled
within the City in the absence of supportable, professional evidence
that the proposed subdivision, development, or land fill would be
geologically safe (General Plan Safety Element Policy Statement
5).
Action 8.A.5 - Continue to review applications for new development
within the City in compliance with the California Environmental
Quality Act (CEQA) provisions set forth by the State of California,
thereby requiring individualized studies for geological hazards on
an as-needed basis and establishing mitigation measures for the
development project before construction begins.
Action 8.A.6 - Monitor and enforce compliance with CEQA
mandated mitigation measures during development and
construction, as the development project requires.
Objective 8.B Protect existing assets with the highest relative vulnerability
to the effects of geological hazards.
Action 8.B.1 - Wherever feasible, land uses and buildings which are
determined to be unsafe from geologic hazards shall be
discontinued, removed, or relocated (General Plan Safety Element
Policy Statement 6).
Action 8.B.2 - Establish a long-range, comprehensive plan for the
elimination or mitigation of existing hazardous land use conditions
and public facilities, as funding is available and pursuant to
applicable law and as authorized by City Council.
Action 8.8.3 - Seek State and Federal funding to mitigate existing
geologic hazards.
Objective 8.C. Coordinate with and support existing efforts to mitigate
geological hazards (e.g., California Geological Survey, US
Geological Survey).
Action 8.C.1 - Update GIS seismic data regularly to reflect new data
from the California Geological Survey and the US Geological
Survey.
Action a.C.2 - The City's seismic safety program shall be
coordinated with the seismic safety programs of the San Diego
Association of Governments (SANDAG), the County of San Diego,
and other cities in the County (General Plan Safety Element Policy
Statement 4).
Objective 8.0 Identify data needed to provide information about the relative
vulnerability of assets from earthquakes (e.g., data on
structure/building types, reinforcements, etc.).
Action 8.0.1 - Ensure the seismic safety program of the City of
Chula Vista is based upon special land regulations and land
management zones, such as "seismic hazards management zones"
that require additional general and local geologic information and
the synthesis of seismic safety matrices (General Plan Safety
Element Policy Statement 12).
Action 8.0.2 - Update existing geologic hazard information based
upon up-to-date findings, such as Preliminary and Final As-Graded
Soils Reports for Land Development.
Action 8.0.3 - Survey buildings most susceptible to failure and
identify daytime and nighttime populations and create GIS project
to permit rapid data display and query.
Objective 8.E Assure that emergency service facilities and public buildings
are not constructed in hazard areas.
/
Action 8.E.1 - Since damages can often be prevented or mitigated
by effective governmental and emergency services, ensure that
emergency facilities, public buildings, and communication and
transportation centers are not established in close proximity to fault
traces (General Plan Safety Policy 9).
Action 8.E.2 - Establish minimum criteria using all available hazard
information in the selection of appropriate sites for emergency
service facilities and public buildings.
Goal 9. Reduce the possibility of damage and losses to existing
assets, particularly people, critical facilities I infrastructure,
and State-owned facilities, due to unauthorized hazardous
materials releases.
Objective 9.A Develop a comprehensive approach to reducing the
possibility of damage and losses due to hazardous materials
unauthorized releases.
Action 9.A.1 - The City of Chula Vista will support efforts by the San
Diego County Department of Environmental Health Hazardous
Materials Management Division in participating with the Hazardous
Materials Permit referral process; support CUPA activities; make
referrals of non conforming land use by the code enforcement
program and maintain or establish adequate facilities for residential
hazardous waste disposal (General Plan, page 3-43).
Action 9.A.2 - Continue to review applications for new development
within the City in compliance with the California Environmental
Quality Act (CEQA) provisions set forth by the State of California,
thereby requiring individualized studies for hazardous materials and
other technological hazards on an as-needed basis and
establishing mitigation measures for the development project
before construction begins.
Action 9.A.3 - Monitor and enforce compliance with CEQA
mandated mitigation measures during development and
construction, as the development project requires.
Objective 9.8 Protect existing assets with the highest relative vulnerability
to the effects of hazardous materials.
Action 9.8.1 - Work with the San Diego Association of
Governments (SANDAG) in developing safe hazardous materials
transportation corridors and, as necessary, preventing commercial
trucks from being allowed to freely traverse City streets.
Action 9.B.2 - The Fire Department, via its Fire Prevention Bureau,
will continue to cooperate with the County Department of
Environmental Health in promoting the safe handling of hazardous
chemicals in compliance with the Unified Fire Code and applicable
Hazardous Materials Regulations.
Action 9.8.3 - The County Office of Emergency Services, in
conjunction with the Fire Department, will promote regulations in
the Municipal Code designed to overcome islands in the regulatory
scheme for hazardous materials handling, looking at County
Hazmat exempt facilities like transportation warehouse facilities and
others with the intent to regulate the safe handling of hazardous
chemicals to prevent accidental and unauthorized releases which
could pose dangers to the residents of this City.
Objective 9.C Reduce the number and volume of hazardous materials
stored within City boundary lines.
Action 9.C.1 - The City of Chula Vista shall work with the County to
encourage, through community education, a reduction in household
hazardous waste generation by promoting safe substitutes and
recycling (General Plan, page 3-43).
Action 9.C.2 - The City of Chula Vista shall encourage the safe
disposal of household hazardous wastes by working with the
County in providing convenient disposal alternatives to the
residents of Chula Vista (General Plan, page 3-43).
Action 9.C.3 - The City shall encourage the development of low
hazardous waste-producing industries within the general plan area
and shall properly screen and identify new or proposed
developments that will be using hazardous materials and
generating hazardous wastes (General Plan, page 3-43).
Action 9.CA - The City shall encourage the development of low
hazardous waste producing industries (General Plan, page 3-4).
Objective 9.D Reduce the risk of injury or loss of life to persons in the
vicinity of transportation related hazardous materials.
Action 9.D.1 - Identify the transportation corridors used through the
City for the transportation of hazardous materials.
¡g'/1
Action 9.D.2 - Identify the nature of the hazardous materials
transported through the City most frequently or in the most
abundance for use in damage control assessment.
Action 9.D.3 - Prepare a plan for hazardous materials control with
respect to data collected in 9.D.1 & 2 above, to include citizen
evacuation, traffic control around the area and materials clean-up.
Objective 9.E Increase government and public knowledge of safe
hazardous materials handling procedures and terrorism awareness.
Action 9.E.1 - Provide training for City staff that may deal with
potentially hazardous conditions on a daily basis, such as the Fire
Department, the Police Department, Public Works staff,
Engineering Inspectors, Building Inspectors, Code Enforcement
Officers, and Recreation staff.
Action 9.E.2 - Through City newsletters and the City website, make
the public aware of training and informational opportunities
available with respect to the use of hazardous materials.
Action 9.E.3 - Provide the public and employees with guidelines in
the usage of hazardous materials, particularly in hazardous
locations.
Objective 9.F Coordinate with and support existing efforts to mitigate
hazardous materials incidents (e.g., California Environmental Protection Agency,
California Department of Transportation, County of San Diego Department of
Environmental Health).
Action 9.F.1 - Continue to participate in and support efforts to
develop new technologies related to preventing the generation and
treating and disposing of hazardous wastes (General Plan, page 3-
43).
Action 9.F.2 - Pursue the adoption of ordinances authorizing
specific transportation routes for hazardous materials.
Action 9.F.3 - The City should work with SANDAG in establishing
safe routes for hazardous materials transportation corridors and
prevent transportation accidents which can adversely effect citizens
in Chula Vista.
Objective 9.G Address identified data limitations regarding the lack of
information about the relative vulnerability of assets from hazardous
materials (e.g., other major extremely hazardous materials facilities,
/
such as Risk Management Plan facilities, Toxic Release Inventory
facilities, major fuel pipelines, rail transportation corridors,
explosives storage, sales, use and manufacturing facilities,
agricultural chemical facilities, etc.).
Action 9.G.1 - The City will work with the Department of
Environmental Health in the County of San Diego to identify
hazardous materials handlers within its boundaries.
Action 9.G.2 - The City's Fire prevention bureau and the Code
Enforcement will assure compliance with building and fire codes as
they relate to the storage and handling of hazardous materials.
Action 9.G.3 - Wherever allowed by law the City shall promulgate
regulations which control establishments otherwise exempted by
state and federal regulations regarding the handling and storage of
hazardous materials.
/
ø'
I
Goal 10.
Reduce the possibility of damage and losses to existing
assets, particularly people, critical facilities/infrastructure, and
State-owned facilities, due to other human-caused hazards.
Objective 10.A Develop a comprehensive approach to reducing the
possibility of damage and losses due to other human-caused
hazards.
Action 10.A.1 - To the extent possible and legally permissible, the
City should reduce the risk of air crashes within the City by
minimizing the number of commercial and military flight patterns
over the City.
Objective 10.B Protect existing assets with the highest relative vulnerability
to the effects of other human-caused hazards.
Action 10.B.1 - Ensure all City's firefighters are trained in the latest
air crash fire fighting techniques, and as funding is available,
provide specialized equipment and/or chemicals for extinguishing
such fires in the shortest time possible to minimize the risk of
further damage.
Objective 10.C. Coordinate with and support existing efforts to mitigate other
human-caused hazards (e.g., Department of Homeland Security,
California Department of Public Safety, San Diego County
Department of Water Resources, Bureau of Reclamation, US
Forest Service, California Department of Transportation, Federal
Aviation Administration, United States Navy, United States Air
Force ).
Action 10.C.1 - Obtain commercial flight pattern data from the
Federal Aviation Administration periodically for analysis of fly-over
patterns within the City.
Action 10.C.2 - Maintain communications with the United States
Navy in an effort to maximize the opportunity for helicopter fly-overs
within the' City to be conducted over the least densely populated
areas, such as river valleys and designated open spaces.
FISCAL IMPACT:
Approval of the plan will allow the City to obtain federal funding for hazard
mitigation should funding become available. There is no General Fund Impact.
/g~;)
'I
RESOLUTION NO. 2004-
RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF CHULA VISTA ACCEPTING AND APPROVING
THE SAN DIEGO COUNTY MULTI-JURISDICTIONAL
HAZARD MITIGATION PLAN
WHEREAS the City of Chula Vista, California has the potential for severe damage
from wildfire, earthquake, atmospheric anomalies, severe storm, drought and other natural
and man made disasters, resulting in the loss of life, economic hardship, and threats to
public health; and safety,
WHEREAS a Hazard Mitigation Plan has been developed after more than one year of
research and work by City Staff, Consultants and the public; and,
WHEREAS the Plan recommends many hazard mitigation actions that will protect the
people and property affected by the natural and man made hazards that face Chula Vista; and,
WHEREAS a public meeting was held to review the Plan as required by law; and,
WHEREAS, the Hazard Mitigation Plan is hereby adopted as an official plan of the City
of Chula Vista; and,
WHEREAS, the strategy of the Plan will be implemented as proposed; and,
WHEREAS, staff will report quarterly on their activities, accomplishments, and progress
to the City of Chula Vista Hazard Mitigation Planning Committee; and,
WHEREAS, the Hazard Mitigation Planning Committee will provide annual progress
reports on the status of implementation of the plan to the Mayor and City Council; and,
WHEREAS, The report shall be submitted to the City Council by February 28th of each
year.
NOW, THEREFORE, BE IT RESOLVED THAT THE CITY COUNCIL OF THE CITY
OF CHULA VISTA ACCEPTS AND APPROVES THE SAN DIEGO COUNTY MULTI-
JURISDICTIONAL HAZARD MITIGATION PLAN
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Approved as to form by:
71 il1/fÅ- Q.. - . .,I- J ~ :
Ann Moor;} yn-oVL>
City Attorney
H:/shared/attorney/Haz Mit Plan
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Hazard Mitigation Plan Brief
City of Chula Vista City Council
April 20, 2004
04/20/200'1
Legal Requirements
. The President signed DMA2000 (Public Law
106-390) on October 30, ?OOO.
. The new legislati()n}~ElipforceS:the importance of
pre-disaster iniligatiOrl:planJiing.
. Section 322 of theAc[spec:iflcalty addresses
mitigation planningatthestate and local levels
. The Act identifies' new requirements that allow
HMGP funds to be used for planning activities
~''''''''
Requirements
. Communities and Tribes (applying through a
State) must have an approved mitigation plan
in place prior tore~jving HMGP funds.
Mitigation plans'I'nusfdemonstrate that the
proposed mitigatioh measures are based on
a sound planning process that accounts for
the risk to and the capabilities of the
individual communities
-
.;# )~
1
Intended Goals
+OMA 2000 is intended to facilitate
cooperation between state and local
authorities, andtheCOInmunity-at-large,
promptingalltcnNdrktogether. It
encourages and rewards local and state
pre-disaster planning and promotes
sustain ability as a strategy for disaster
resistance.
..,.".,.
Consequence of Non-
compliance
+Hazard Mitigation funding and grants
not available
+Ability for Cit)!to recov.erfunds after
disaster limited or imperiled.
+Ability to apply for other disaster related
funds imperiled.
..""'"
Deadline
+A deadline for approved Mitigation
Plans was originally set for November 1,
2003, in order to continue to receive
FEMA grant a.ssistance. This deadline
has been extended until November 1,
2004 (Federal Register, October 1,
2002) Disaster Mitigatidn Act of 2000
Fact Sheet
""""'"
2
How did the City get involved?
+ Only Operational Areas can apply for HAZMIT
planning grants
+ OA must coordinate with their cities and
special districtstCl utilize the. funds to benefit
the overail .
. 60S approved submission 1{28{03
.OA Application submitted 1{30{03
+$480,116
+ First Deadline: December 16, 2003
"""-
.-
Long-Term Key Dates
+ July 9-Nov 30, 2003:
+September 19, 2003:
+ November 24, 2003:
+ December 15, 2003:
. Jan-March 2004:
Public Outreach
Draft Risk Assessment
Draft Plan
final plan Distributed
Plan Adopted by County
and Cities (extended to
June 2004)
Adopted Plan Submitted
to FEMA
Plan accepted by FEMA
+ June 2004:
. November 2004:
~n_
Mitigation Planning Process
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Hazard Identification/Profile
Hazard ProfilesJHazard Maps:
1. Earthquake/land~ide/Uquefaction
2. Rood/Dam Fallure/
Coastal StorrtlS/Coastal Eroslon/Tsunaml
3. Fire - Wildfire/structure
4. Human-cauSedHazaros
HAZMIT Working Group
QanduiS)
(c~0 I 9
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FIRE _ HAZMlT
Working -- ~JiCHca~
Group
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enci .. (Egs)
..m""" (pUblic:)
City of Chula Vista Team
+ George Krempl ACM
. Planning: Bob Me Seveney, Tom Nikzad
. Public Works Operations: BillUlrich, Kirk
Ammerman
. Police: Mark GOldberg
. Fire: Justin GipSon
. Emergency Services: carlOs Bejar
. General Services: Jack Griffin, AlexAlagha
. GIS: Tom McDowell
. Department Head review
04/2ll/2lllM
4
Next Steps?
. If Plan is approved via resolution, it goes
forward to the County to be compiled with
the other resolutions within the Operational
Area.
+ City Coundl needsto directCM to create a
permanent commission that will monitOr
progress and report back to City Council
every year in Feb(uary.
+ Op Area plan is then submitted to FEMA.
"""""
5
CITY COUNCIL AGENDA STATEMENT
r I
Item: ' I
Meeting Date 04/20/04
ITEM TITLE: Resolution of the City Council of the City of Chula Vista accepting three
Transportation Demand Management (TDM) Grants ftom the San Diego
County Air Pollution Control District for a total of$414,325, authorizing the
City Manager to sign an agreement with SANDAG for TDM implementation,
and appropriating $414,325 ftom the General Fund to be reimbursed ITom
grant revenue.
SUBMITTED BY: D'=w ofP""";.","",, rrd;o~
Director of Public Works
1 'II-
REVIEWED BY: City Manage¡{J! ¡J ~ ¡vi (4/5ths Vote: Yes.K..No-1
The Eastern Chula Vista Traffic Enhancement Program was first presented to council in May of
2001. A component of that effort was the development and implementation of a Traffic Demand
Management (TDM) program. The program has now been created with full funding secured. To
begin implementation, the next steps require Council action to (I) formally accept a grant ftom the
APCD, (2) authorize the City Manager to enter into a contract with the San Diego Association of
Governments (SANDAG) to assist in that implementation, and (3) approve the appropriation of
funds to be reimbursed ftom grant revenues. This report address the details for each of these items.
RECOMMENDATION:
That Council adopt the Resolution:
a) Accepting the Air Pollution Control District grant in the amount of$414,325.
b) Authorize the City Manager to sign an agreement with SANDAG for program implementation.
c) Appropriating $414,325 form the General Fund for the Eastern Chula Vista Traffic Demand
Management program.
BOARDS/COMMISSIONS RECOMMENDATION:
N/A.
DISCUSSION:
/1-1
u.__._~--_..
Page 2, Item No.
Meeting Date: 04/20/04
Backe:round
Definition
Transportation Demand Management or TDM refers to a program that changes travel behavior so
that traffic congestion during the peak demand period is reduced. The targeted behavior change is
for those who must travel at the peak periods to travel by means other than in a single occupancy
vehicle. This is achieved by walking, biking, joining a car or vanpool or use of some form ofmass
transit.
Eastern Chula Vista Situation
TDM programs are normally designed to alleviate traffic at the destination and are typically
implemented by an employer or school. In the case of eastern Chula Vista, the focus is on the traffic
problems at the traveler's origin and is therefore residential based. This is significant in terms of
program design. .
A residential based program is centered on a marketing and information campaign directly in the
community. Programs are designed that offer incentives with a mechanism for bringing like minded
persons together, as in the SANDAG RideLink program where persons are matched with others in
their area who can car-pool, etc. Specific transit services can also be designed that are
complimentary with the travel characteristics of the community. This results in targeted programs
focusing exclusively on a specific population, which in our case are the residents of eastern Chula
Vista.
In contrast most TDM programs are designed to work through businesses as it is typically at the
employment base where the traffic congestion occurs. A major regional employer may include
several persons in their company who do reside in eastern Chula Vista. However, it is awkward
and unlikely that a company would agree to provide a financial incentive to participate in TDM to
just their employees who live in eastern Chura Vista. In like fashion, while encouraging businesses
to institute flexible work hours and telecommuting programs is beneficial, the specific impact on
those commuting ftom eastern Chula Vista will likely not be a significant portion of their work force.
So, while the potential for benefit exists, the returns by working at the employer side may not be the
most cost effective in order to reach the east Chula Vista community.
Program Development
The Eastern Chula Vista Traffic Enhancement Program was initially presented to Council on May
31,2001 at the joint City Council/GMOC/Planning Commission Workshop. The implementation
plan was then presented to Council on July 24,2001. Development of the TDM program was funded
through $98,000 in developer contributions and included a 400 household random sample survey
conducted of eastern Chula Vista residents that had at least I peak hour commuter. The objective of
the investigation was to identify potential Transportation Demand Management (TDM) techniques
that would be appropriate for eastern Chula Vista and to approximate the number of users. That
survey was carried out in February 2002.
Page 3, Item No.l
Meeting Date: 04/20/04
The respondents to the survey were asked a series of questions to determine their receptiveness to
TDM measures. Based upon the findings of the survey and with additionaJ allied data, 3 TDM
programs were recommended, that were identified as having the greatest chance for success. These
include:
1. Financial Incentives, Marketing and Promotions, and Establishing an Implementing
Organization
2. Express Bus ftom eastern Chula Vista to Downtown San Diego.
3. Express shuttle ftom eastern Chula Vista to the trolley.
A description of each follows:
1. Financial Incentives to Participate in TDM Activities, Establishing an Implementing
Organization and Related Marketing Activities
As indicated by the survey, approximately 24% of 'drive aJone' respondents in eastern Chula
Vista said they would "be willing and likely" to try an alternative to driving by themselves
(e.g., carpool, vanpool, riding the bus) if they were offered between $1.50 and $2.00 per day
as an incentive. Survey analysis commonly assumes that I in 3 respondents indicating a
willingness to change travel behavior may actually do so. This translates into between 1, I 00
and 1,700 commuters changing their means of travel based on the reliability of respondents'
statements of interest and actual use.
Marketing
Create and distribute "Move In" Commute Choice MateriaJs. Persons newly moving to
eastern Chula Vista are more likely to be receptive to alternative means of commuting as part
of a variety of changes they are making to accommodate a change in residence. Introduction
of messages about commute options and services that can help reduce costs and stress may
be received more favorably if it is linked to when commuters are moving to a new residence.
Information provided by a home builder (for new homes), homeowner associations, and
realtors (for re-sales) may be viewed with even greater credibility if packaged with other
information about impending or recent moves.
2, An Express Bus from Eastern Chula Vista to Downtown San Diego
The survey identified that approximately 21 % of commuters living in Eastern Chula Vista
travel to downtown San Diego. Few residents use traditional transit service, as the level of
service is low. Interest in transit may rise if service is improved by:
. Offering a ftee service
. Reducing the time needed to travel by bus by operating service with limited stops
. Providing attractive vehicles
. Offering places to park and ride that are very close to residences
Iq~3
;ß.¡
Page 4, Item No. ~
Meeting Date: 04/20/04
. Financial incentives that are available to persons that curtail their AM peak hour trips
should be available to encourage Trolley riders to try riding the bus.
. The SANDAG Guaranteed Ride Home program will be available to riders should they
miss the service.
This service would ultimately provide three trips to and ftom Downtown in the morning (i.e.,
7:00 AM, 7:30 AM, and 8:00 AM) and afternoon (e.g., 4:30 pm, 5:00 pm, and 5:30 pm) in
'over-the-road' coach type buses. Smaller buses/vans may be used to initiate the program.
Commuters would board the bus at a Park & Ride location in eastern Chula Vista. Routing of
the vehicles to and ftom Downtown would attempt to skirt the most heavily congested
segments of streets and fteeways. Travel time to downtown for an automobile is 30 minutes
while travel time on the bus would be 45 minutes including travel time to a Park and Ride lot
in eastern Chula Vista and a five minute walk to a destination in downtown. The benefits
include having a hands ftee commute time, and avoiding downtown parking costs.
Maximum Effect = 234 vehicle trips reduced per day.
. Eastern Chula Vista = 120 participants
. 40 riders per bus x 3 runs between 7:00 AM and 8:00 AM and return in the
afternoon/evening.
3. Express Shuttle from Eastern Chula Vista to a Trolley Stop in Chula Vista
This service would provide three trips to and ftom the H Street or Palomar Trolley stations in
the morning (i.e., 7:00 AM, 7:30 AM, and 8:00 AM) and afternoon (i.e., 4:30 pm, 5:00 pm,
and 5:30 pm) in 25 to 30 passenger buses ftom a Park and Ride lot in eastern Chula Vista.
Smaller buses/vans may be used to initiate the program. Routing ofthe vehicles to and ftom
the Trolley station would be routed to skirt the most heavily congested streets. Shuttles
would operate without stops between eastern Chula Vista and the trolley station.
Other considerations include:
. Offering a ftee service.
. The service should be marketed at the trolley station with personal 'sales' activity and
distribution of materials. The shuttle bus should be parked at the station during marketing
efforts.
. Financial incentives that are available to persons that curtail their AM peak hour trips
should be available to encourage Trolley riders to try riding the bus.
. The SANDAG Guaranteed Ride Home will be available to riders should they miss the
shuttle service.
. The service should anticipate a 12-month period for ridership to grow.
~
Page 5, Item No. " vl
Meeting Date: 04/20/04
Maximum Effect = 144 vehicle trips reduced at an average of 10 miles per trip.
. Eastern Chula Vista = 75 participants
. 25 riders per bus x 3 runs between 7:00 AM and 8:00 AM and return in the
afternoon! evening.
These findings were presented to Council on May 28,2002. At that time Council directed staff to
proceed with implementation of the TDM program
Program Budget and Funding
In July of 2002 the City applied for three separate grants ftom the County of San Diego, Air
Pollution Control District (APCD). The request was for matching funds to implement these three
TDM programs, over a two year period. The grant was divided into 3 parts in the event one element
scored low, it would not negatively affect the other grant proposals. All three grants were approved.
The TDM two year program is budgeted for $754,485 comprised of a grant of $414,325 and a
$340,160 match, for a 55% and 45% percent split. The 45% match to be paid for by the eastern
Chula Vista development community.
As presented to Council in April 2003, the City was officially notified on March 12,2003 that the
$414,325 grant request ftom the APCD to implement the TDM program had been approved. The
first years match of$157, 183 was then gathered from equal contributions ftom the Otay Ranch Co.,
Eastlake Co., Corky McMillin Co., Brookfield Shea Otay, and Tri-Mark Pacific and placed in a
City managed deposit account.
BUDGET SUMMARY TWO YEAR APCD TDM GRANT
Year I Year 2 Year I and 2
Local Local % ITom Amount ITom
Pro"ect Total Match Yr2 Match Total APCD Local Match APCD
Financial
Incentive $200,600 $80,240 $170,230 $68,092 $370,830 60% $148,332 $222,498
Express Bus
To
Downtown $103,285 $51,643 $166,570 $83,285 $269,855 50% $134,928 $134,927
Express
Shuttle
To Trone, $50,600 $25,300 $63,200 $31,600 $113,800 50% $56,900 $56,900
TOTAL $354,486 $157,183 $400,002 $182,977 $754,485 $340,160 $414,325
--~----------
Page 6, Item No.
Meeting Date: 04/20/04
Program Implementation
Program implementation will be a collaborative effort among the City, SANDAG, and the
development community. The respective roles are detailed below.
Steering Committee
A pre-existing group comprised of City staff and developers who meet regularly on the Chula Vista
Traffic Enhancement Programs will serve as the steering committee. The steering committee will
receive regular reports ftom the city and SANDAG on the progress of program implementation,
assess progress and set direction within the parameters of the program as defined in the Air Pollution
Control District Scope of Work and grant requirements.
City
The City's Planning and Building Department will take the lead in representing the City in TDM
implementation and will issue the request for proposal and contract for the express bus and shuttle
service. The day to day oversight for the contract and bus and shuttle operations will be provided by
the Department of Public Works Operations' Transit Division (Chula Vista Transit.)
SANDAG
SANDAG already manages a TDM program and has both in-house staff and consultants on contract,
that possess the marketing and management skills necessary for program implementation. In
addition, SANDAG will provide route planning (a tentative rout for the express bus is attached),
distribute the financial incentives to participants, monitor and evaluate program implementation,
prepare scopes of work for the Air Pollution Control District, and provide overall grant management.
The SANDAG Board approved their participation in the Chula Vista TDM project on Friday March
26, 2004.
FISCAL IMPACT:
None at this time, there is no impact to the General Fund because all program expenditures are
funded by the APCD grant and developer match.
Attachments
1. Grant Award
2. SANDAG Agreement
3. Prelinrinary express bus route
It¡
Air Pollution Control Board
..~ Greg Cox Discrict 1
Dianne Jacob District 2
Pam Slater District 3
Ron Roberts Discrict 4
Bill Horn District 5
r-c"'--"----
March 18,2003 IfD)rg ~ n w ~~
III I I
Ii : I
Daniel Forster U iI M.4R 28 2003 J~
City of Chula Vista Pl ArmiNG
276 Fourth Avenue
Chula Vista, CA 91910
2002-03 VEHICLE REGISTRATION FUNDING
Dear Mr. Forster,
Congratulations! On December II, 2002, the San Diego Air Pollution Control Board approved
your project for transportation demand management - fmancial incentives in the amount of
$222,498. Please be advised that in order to invoice the County for expenses on this project, a
contract must be signed. To begin the contracting process, please prepare a Statement of Work
and return it to the Contracts Coordinator. Instructions for preparing a Statement of Work are
enclosed.
Expenses on this project incurred after March 12, 2003, may be reimbursable once a contract is
fully executed. However, if, for any reason, you fail to reach agreement with the County and a
contract is not fully executed, those expenses will not be reimbursed.
If you have any questions, please do not hesitate to call Marsha Ventittelli, Air Quality Contracts
Coordinator, at (858) 650-4701. APCD looks forward to working with you and appreciates your
efforts to help clean San Diego's air.
~r
Mobile Source Emission Reduction Program
LF:MV:jl
Attachment /1~1
9150 Chesapeake Drive. San Diego. California 92123-1096. (858) 650-4700
FAX (858) 650-4659. Smoking Vehicle Hotline 1-800-28-SMOKE
fi Pri.tedo,'ocydod""",
Air Pollution Control Board
Greg Cox Disrricr 1
Dianne Jacob Disrricr 2
Pam Slater District 3
Ron RobertS Disrrict 4
Bill Horn Disrrict 5
March 18, 2003
Daniel Forster
City of Chula Vista
276 Fourth Avenue
Chula Vista, CA 91910
2002-03 VEHICLE REGISTRATION FUNDING
Dear Mr. Forster,
Congratulations! On December 11,2002, the San Diego Air Pollution Control Board approved
your project for an express bus ftom Chula Vista to Downtown in the amount of $134,927.
Please be advised that in order to invoice the County for expenses on this project, a contract must
be signed. To begin the contracting process, please prepare a Statement of Work and return it to
the Contracts Coordinator. Instructions for preparing a Statement of Work are enclosed.
Expenses on this project incurred after March 12,2003, may be reimbursable once a contract is
fully executed. However, if, for any reason, you fail to reach agreement with the County and a
contract is not fully executed, those expenses will not be reimbursed.
If you have any questions, please do not hesitate to call Marsha Ventittelli, Air Quality Contracts
Coordinator, at (858) 650-4701. APCD looks forward to working with you and appreciates your
efforts to help clean San Diego's air.
~~
Mobile Source Emission Reduction Program
LF:MV:j1
Attachment
9150 Chesapeake Drive. San Diego. California 92123-1096. (858) 650-4700
FAX (858) 650-4659 . Smoking Vehicle Hotline 1-800-28-SMOKE
t! Pri,"" ., R"y"'" Pope,
Air PoUntion Control Board
Greg Cox Disrrict!
Dianne Jacob District 2
Pam Slater District 3
Ron Roberts DiStrict 4
Bill Horn District 5
March 18,2003
Daniel Forster
City of Chula Vista
276 Fourth Avenue
Chula Vista, CA 91910
2002-03 VEHICLE REGISTRATION FUNDING
Dear Mr. Forster,
Congratulations! On December 11,2002, the San Diego Air Pollution Control Board approved
your project for an express shuttle ftom Chula Vista to the trolley in the amount of $56,900.
Please be advised that in order to invoice the County for expenses on this project, a contract must
be signed. To begin the contracting process, please prepare a Statement of Work and return it to
the Contracts Coordinator. Instructions for preparing a Statement of Work are enclosed.
Expenses on this project incurred after March 12, 2003, may be reimbursable once a contract is
fully executed. However, if, for any reason, you fail to reach agreement with the County and a
contract is not fully executed, those expenses will not be reimbursed.
If you have any questions, please do not hesitate to call Marsha Ventittelli, Air Quality Contracts
Coordinator, at (858) 650-4701. APCD looks forward to working with you and appreciates your
efforts to help clean San Diego's air.
~;o/
Mobile Source Emission Reduction Program
LF:MV:jl
Attachment
/'1;c¡
9150 Chesapeake Drive. San Diego. California 92123-1096. (858) 650-4700
FAX (858) 650-4659. Smoking Vehicle Hotline 1-800-28-SMOKE
. Prio"" DO Reey""" Pope,
THE A TT ACHED 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
])""'- ê. He-- "..,a-
Ann Moore
City Attorney
Dated: April 14, 2004
AGREEMENT BETWEEN THE SAN DIEGO ASSOCIATION OF
GOVERNMENTS AND THE CITY OF CHULA VISTA FOR
IMPLEMENTATION OF THE EASTERN CHULA VISTA
TRANSPORTATION DEMAND MANAGEMENT PROJECT
J
~~-~ ~-~~~-------- ~
OWP # 6000109
Eastern Chula Vista TDM Project
AGREEMENT
THIS AGREEMENT, ENTERED INTO ON
2004, is between the San Diego
Association of Governments, referred to herein as
"SANDAG," and the CITY OF CHULA VISTA, referred to
herein as "CITY."
RECITALS
1. CITY has instituted the East Chula Vista Transportation Enhancement Program (ECVTEP) which has
identified the need to implement a Transportation Demand Management (TDM) project aimed at
residents in East Chula Vista. (See Attachment A)
2. CITY desires to reduce peak period congestion emanating from East Chula Vista by encouraging
single occupant vehicle commuters to use alternative commute modes such as carpooling,
vanpooling, and riding transit.
3. CITY has determined the East Chula Vista TDM project will consist of three core elements: first, a
financial incentive component that rewards commuters who regularly use an alternative to commuting
alone to work; second, express bus service between East Chula Vista and downtown San Diego; and
third, a shuttle service that runs between East Chula Vista and a San Diego Trolley station located in
Chula Vista.
4. SANDAG manages and administers the region's ridesharing program, known as "Ridelink," with many
services designed to assist employers, employees, and students with identifying and using alternative
ways to commute to work or school.
5. SANDAG and CITY, desire to enter into an Agreement for the development and implementation of
East Chula Vista TDM Project, herein referred to as "PROJECT," which is focused on commuters
who reside in East Chula Vista.
6. CITY has programmed $754,485 to develop, administer and implement the TDM project. Local
developers have committed $340,160 in private funds which will be deposited with the CITY. The
remaining funds will come from an AB2766 grant totaling $414,325 which was awarded to the CITY in
March, 2003 by the San Diego County Air Pollution Control District (APCD).
7. CITY desires that SANDAG provide overall planning, project management, administration,
implementation and monitoring for the TDM project to bring about the earliest and most efficient
implementation.
8. CITY desires that SANDAG incur no upfront costs, and therefore is prepared to advance funds for
PROJECT in advance of SANDAG costs.
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OWP # 6000109
9. CITY desires to assist with PROJECT by providing marketing and outreach assistance to SANDAG
through the course of the PROJECT.
10. CITY desires to assign to SANDAG the responsibility for and administration of AB2766 grant funding
awarded to Project by the APCD.
11. SANDAG is willing to act on CITY's behalf on the development, execution and implementation, of a
funding agreement between SANDAG and the APCD which will describe the use of the AB2766 grant
funds which were awarded to CITY for the PROJECT.
12. A Project Steering Committee, consisting of CITY staff and representatives of Developers that
contributed to the ECVTEP, will guide the course of the PROJECT.
13. The parties hereto intend to define herein the terms and conditions under which the PROJECT is to
be financed and performed.
SECTION I
SANDAG AGREES:
1. To appoint a Project Manager who will be the main point of contact at SANDAG for the PROJECT
and who will be responsible for the day-to-day activities of administering, implementing and
monitoring the PROJECT.
2. To conduct PROJECT in accordance with the Scope of Work to be prepared by SANDAG and
approved by CITY and the Steering Committee; by providing project management support, planning
of transit services, the development and implementation of a financial incentives program, the
development and implementation of a marketing program, and by collecting all required data and
providing all necessary reports.
3. To prepare an agreement between SANDAG and the APCD that enables the AB2766 grant funding
to be administered by SANDAG.
4. To hire the necessary consultant(s) to assist with PROJECT administration, implementation and
monitoring of the financial incentives, marketing and data collection.
5. To administer $414,325 in AB2766 grant funds on behalf of CITY.
6. To submit quarterly billing to CITY, in advance of costs incurred, to cover SANDAG costs for the
PROJECT. SANDAG will prepare quarterly expenditure reports that detail actual project
expenditures. SANDAG will prepare a Final Expenditure Report for CITY at PROJECT Closeout.
The Final Expenditure Report will summarize PROJECT expenses including, all SANDAG costs,
along with CITY payments to SANDAG, and APCD payments to SANDAG.
7. To remit anv residual funds to CITY alonG with the Final Expenditure Report.
8. SANDAG Contact: Ray Traynor, Program Manager
401 B Street, Suite 800
San Diego, CA 92101-4231
(619) 699-6945
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OWP # 6000109
Allison Richards-Evensen, Project Manager
401 B Street, Suite 800
San Diego, CA 92101-4231
(619) 699-1982
SECTION II
CITY AGREES:
1. To advertise for and contract with a transit service operator to deliver the Express Bus and Trolley
Shuttle services.
2. To provide a qualified CITY Representative who shall have authority to administer and manage the
transit service operator contract for work performed as a part of the scope of work for PROJECT.
3. To provide a qualified CITY Representative who shall have authority to accept or reject PROJECT
work.
4. To apply for any necessary regulatory agency permits required for transit service operators in
accordance with the regulatory agency guidelines and any applicable standard permit procedures.
5. To assist SANDAG with public outreach and marketing of PROJECT.
6. CITY Contact: Dan Forster, Growth Management Coordinator
City of Chula Vista
Planning and Building Department
Chula Vista, CA 91910
(619) 476-5348
SECTION III
IT IS MUTUALLY AGREED:
1. To deposit with SANDAG within 30 days of receipt of billing therefore, the amount of $125,000, which
figure represents the estimated first six months PROJECT expenses.
2. To pay SANDAG the remaining sum of $260,000, based upon SANDAG advanced quarterly billings
of estimated quarterly expenses, for CITY funded portion of the PROJECT.
3. The total advance payments to SANDAG are estimated to be $385,000.
4. All obligations of CITY under the terms of this Agreement are subject to and conditioned upon the
appropriation of the resources by the CITY, and by the San Diego County Air Pollution Control
District.
5. The Final Expenditure Report will summarize all SANDAG expenses, all CITY payments received by
SANDAG, and all APCD payments received by SANDAG. Any remaining funds held by SANDAG will
be returned to CITY with the Final Expenditure Report. The Final Expenditure Report will be
submitted to CITY within 90 days of PROJECT completion.
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..~_._----
OWP # 6000109
6. SANDAG work on the PROJECT is subject to the availability of funds, and timely payments from
CITY and APCD. Should funding be. reduced or not available for PROJECT, SANDAG is not
obligated to commit any resources toward the PROJECT until such time as funding is made available
to SANDAG.
7. Fund requests and grant agreements for funding of the PROJECT will be the primary responsibility of
SANDAG. Fund requests and grant applications for funding of any possible future phases of the
PROJECT, will be the responsibility of the CITY.
8. SANDAG has no source of funds available to make PROJECT payments in advance of funds being
deposited by CITY. Reimbursement of PROJECT expenses with APCD funds may iag actual
PROJECT expenditures. Therefore, if SANDAG requests an increase to the advance payments
made by CITY to SANDAG, as identified in Section III. 3; and if the CITY agrees to increase the
amount of advanced payments to SANDAG, the parties agree that this Agreement can be amended,
in writing, by way of attachment to reflect that the parties both agree to such an increase.
9. A Project Development Team (PDT) will be formed with representatives from CITY, including Chula
Vista Transit, SANDAG and others involved in the planning and implementation of the PROJECT.
The PDT will resolve and come to consensus on any issues associated with the planning and
implementation of PROJECT.
10. CITY shall hire aforementioned transit operator for the Express Bus and Trolley Shuttle through City
of Chula Vista Planning and Building Department. The transit operator contract shall be managed
and administered by Department of Public Works Chula Vista Transit. SANDAG's Transit Planning
shall complete the route planning work required to initiate the Express Bus and Trolley Shuttle
services.
11. The CITY will be responsible for coordinating the activities of the PROJECT Steering Committee.
The PROJECT Steering Committee will provide guidance to the PDT regarding the implementation of
the PROJECT.
12. In the performance of said work, said representatives of SANDAG and CITY will cooperate and
consult with each other on a regular basis.
13. Upon completion of all work for PROJECT, the financial incentives element, express bus service and
trolley service may be discontinued, unless other sources of funding are identified by CITY. Any
continued involvement by SANDAG in the ECVTEP after completion of PROJECT, will require an
amendment to this agreement. "Completion of all work" for the purposes of this agreement is defined
by lack of or discontinuance of funds or December 31, 2006, whichever occurs first.
14. Upon completion of all work for PROJECT, ownership and title to all data, studies, reports, plans and
permits will automaticaily be vested in CITY. No further agreement will be necessary to transfer
ownership to CITY.
15. The parties hereto may mutually agree to cease implementation of a portion of the PROJECT. Upon
such agreement, the parties may also mutually agree to transfer the work effort and funding
associated with such portion of the PROJECT to other remaining component(s) of the PROJECT.
16. Nothing in the provisions of this Agreement is intended to create duties or obligations to or rights in
third parties to this Agreement or affect the legal liability of either party to the Agreement. There are
no other parties to this Agreement, express or implied, direct or indirect. CITY and SANDAG
acknowledge that it is not their intention to create any third party beneficiaries to this Agreement.
17. Neither CITY nor any officer or employee thereof is responsible for any damage or liability occurring
by reason of anything done or omitted to be done by SANDAG under or in connection with any work,
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OWP # 6000109
authority or jurisdiction delegated to SANDAG under this Agreement. It is understood and agreed
that, pursuant to Government Code Section 895.4, SANDAG shall fully defend, indemnify and save
harmless CITY, all officers and employees from all claims, suits or actions of every name, kind and
description brought for or on account of injury (as defined in Government Code Section 810.8)
occurring by reason of anything done or omitted to be done by SANDAG under or in connection with
any work, authority or jurisdiction delegated to SANDAG under this Agreement.
18. Neither SANDAG nor any officer or employee thereof is responsible for any damage or liability
occurring by reason of anything done or omitted to be done by CITY under or in connection with any
work, authority or jurisdiction delegated to CITY under this Agreement. It is understood and agreed
that, pursuant to Government Code Section 895.4, CITY shall fully defend, indemnify and save
harmless SAN DAG , and all of its officers and employees, from all claims, suits or actions of every
name, kind and description brought for or on account of injury (as defined in Government Code
Section 810.8) occurring by reason of anything done or omitted to be done by CITY under or in
connection with any work, authority or jurisdiction delegated to CITY under this Agreement.
19. No alteration or variation of the terms of this Agreement shall be valid unless made in writing and
signed by the parties hereto, and no oral understanding or agreement not incorporated herein shall
be binding on any of the parties hereto. The CITY may, at its sole discretion, terminate the
PROJECT or any portion thereof upon 90 days written notice to SANDAG of its intent to do so.
20. This Agreement shall terminate on December 30, 2006, or when funding ceases to be available,
whichever occurs first.
CITY OF CHULA VISTA SANDAG
By: By:
David D. Rowlands Jr. GARY L. GALLEGOS
City Manager Executive Director
Approved as to sufficiency of form and
legality:
By:
JACK LIMBER
General Counsel
Approved as to form:
By:
Ann Moore
City Attorney
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~~,
....,)
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~If? L PRELIMINARY TDM EXPRESS BUS AND SHUTTLE SERVICE
E ~ N
-.~- G = SHUTTLE SERVICE STOPS W+,
~ E -- EXPRESS BUS ~ CITY BOUNDARY
cm OF s
CHUlA VISfA N 0 8500 17000
ADVANCE PLANNING SEC1l0N D ¡q-I '.- -~
SCALE: 1 inch = 8500 ft
RESOLUTION NO. 2004--
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA ACCEPTING THREE TRANSPORTATION
DEMAND MANAGEMENT (TOM) GRANTS FROM THE
SAN DIEGO COUNTY AIR POLLUTION CONTROL
DISTRICT FOR A TOTAL OF $414,325, AUTHORIZING
THE CITY MANAGER TO SIGN AN AGREEMENT WITH
SANDAG FOR TDM IMPLEMENTATION, AND
APPROPRIATING $414,325 FROM THE GENERAL FUND
TO BE REIMBURSED FROM GRANT REVENUE
WHEREAS, the County of San Diego Air Pollution Control District (APCD) has
approved three grant proposals for a total of $414,325 made by the City of Chula Vista
to implement a Transportation Demand Management program over the next two years;
and
WHEREAS, a Transportation Demand Management Program (TDM) is a
program that changes travel behavior so that traffic congestion during peak demand
periods is reduced; and
WHEREAS, the City's proposed TDM program consists of three components: (1)
financial incentives and marketing/promotions; (2) an express bus from eastern Chula
Vista to downtown; and (3) an express shuttle from eastern Chula Vista to the San
Diego Trolley.
WHEREAS, the grant's $340,160 local cash match requirement will be met by
the Otay Ranch Company, Eastlake Company, Corky McMillin Company, Brookfield
Shea Otay, and Trimark Pacific, with the first year's contribution of $157,183 already on
deposit with the City; and
WHEREAS, to facilitate program implementation, the San Diego Association of
Governments (SANDAG) will enter into an agreement with the City to implement the
program and manage the grant; and
WHEREAS, as the APCD grant funds are made on a reimbursable basis, the
City will appropriate funds out of the general fund in the amount of $414,325 which will
be reimbursed as the APCD grant money is received over the course of the TDM
program.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula
Vista does hereby accept $414,325 in total grant awards from the APCD for the TDM
program.
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BE IT FURTHER RESOLVED that the City Manager is authorized to enter into
an agreement with SANDAG to implement the TOM program
BE IT FURTHER RESOLVED that $414,325 is appropriated from the City's
general fund which will be reimbursed as the APCD grant money is received over the
course of the TOM program.
Presented by: Approved as to form by:
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James Sandoval Ann Moore
Director of Planning and Building City Attorney
affomey\resolgrantsltraffic demand management. doc
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