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Home My WebLink AboutAgenda Packet 1998/10/06 '1'1 dedare under p~na!t~, of perjury that I am em' ¡......:: '0;'''1 V¡s~a ;n the O· ,'" ,-"j. I "0' ." . .,': '" '-, :..J<L. ',~: ~., '_,,'~I t k' ') . ;"¡ L::':':: ;\J at t'., l· ",., ., . . d C) H II ~ I~~.. :._L..... k. ."__ ,_co.. .:'1- al I y a 0 - . Tuesday, October 6, 1998 DI'., ~O, /5ï?/<3JYSiG.;"'J Û ¥" , CouncIl Chambers 4:00 p. ffi. Public ServIces BUlldmg Ret!ular Meetin~ of the Citv of Chula Vista Citv Council CALL TO ORDER L ROLL CALL: Councilmembers Moot_, Padilla_. Rindone_. Salas_, and Mayor Horton_. 2. PLEDGE OF ALLEGIANCE TO THE FLAG. MOMENT OF SILENCE 3. APPROVAL OF MINUTES: September IS, 1998 and September 22, 1998, 4, SPECIAL ORDERS OF THE DAY: A. Proclamation declaring the month of October 1998 as "National Arts and Humanities Month" by the United States Conference of Mayors. The proclamation will be presented by Mayor Horton to Lee Wheeland, Chair, Cultural Arts Commission B. Presentation of resolution honoring "Arts and Humanities Month" from the State of California, Office of Governor Pete Wilson. The resolution will be presented to the City by Denise Ducheny or staff. C. Presentation of proclamation honoring "Arts and Humanities Month" from tht: County of San Diego, Board of Supervisors Chairman, Greg Cox. Tht: proclamation will be pæsented to the .. City by Holly Richards. D. Certiticates will be presented by Ric Todd, Cultural Arts Coordinator, to the following organizations for their tinancial support of "Music in the Park 1998:" '. Bank of America Robin Ganneron BF Goodrich Aerospace Joan Popsia! EastLake Company Natasha Martinez El Torito Restaurant Robert Hart McMillin Companies Constance Clover National Steel & Ship Building Eric Murray Pacitic Bell Scott Alevy Pacitic Bay Homes Liz Jackson Pacific Waste Service Charlts Mooæ San Diego Black Film Festival Juande Ragsdale-Bdvins San Diego Gas & Electric Buz Schott San Diego Unified Port District Commissioner David Malcolm Sharp Chula Vista Medical Center Britt Merritt or Mary C. Campo The Star News Joe Guerin and Linda Rosas Universal Amphitheater Jay Sheehan and Jon Martin Viejas Casino & Turf Cluh Steve Carizosa Wells Fargo Company Isaac Mudiano Agenda -2- October 6, 1998 CONSENT CALENDAR (Items 5 through 22) The staff recommendations regarding the following items listed under the Consent Calendar will be eMcted by the Council by one motion without discussion unless a Councilmember, a member of the public, or City staff requests that the item be pulled for discussion. If you wish to speak on one of these items, please fill out a "Request to Speak Form" avaiwble in the lobby and submit it to the City Clerk prior to the meeting. Items pulled from the Consent Calendar will be discussed after Board and Commission Recommendations and Action Items. Items pulled by the public will be the first items of business, 5. WRITTEN COMMUNICATIONS: A. Letter from the City Attorney stuting that Council did not meet in Closed Session on Septemher 22, 1998. It is recommended that the letter be received and filed. B- Letter of resignation from the Design Review Committee . John C. Rodriguez. It is recommended that the resignation be accepted with regret anù the City Clerk be directed to post immediately according to the Maddy Act in the Clerk's Office and the Public Library. 6. ORDINANCE 2749 AMENDING SECTION 2.46 TO CHAPTER 2 OF THE MUNICIPAL CODE RELATING TO THE RESTRUCTURE OF THE YOUTH COMMISSION (second readin~ and adootion) - Council established the Youth Commission in late 1970 as a means for providing input and recommendations to the City Council, City Manager, and other members of City government in all matters affecting the youth of our community. During the past several years the Commission has experienced a decline in the lack of commitment and interest on the part of the Commissioners. Staff has evaluated the Commission's issues and believes changing the current structure could resolve not only the existing problems, but re-energize an individual's interest, commitment, and overall productivity in serving with the Youth Commission. An ordinance is required to allow for a one year trial program aimed at restructuring portions of the Youth Commission to bring it into conformance with its original purpose and intent. Staff recommends Council place the ordinance on second reading and adoption. (Chief of Police) 7. ORDINANCE 2750 ADDING SECTIONS 9.09.030 THROUGH 9.09.080 TO CHAPTER 9.09 OF THE MUNICIPAL CODE RELATING TO DAYTIME TRUANCY BY JUVENILES ON SCHOOL DAYS (second readin~ and adootion) The Chula Vista Police Department's Juvenile Divisinn has historically conducted periodic truancy sweeps in which juveniles are returned to their respective schools. These sporadic sweeps. although effective, do not provide the consistency necessary to address the long term prohlem. Adding an effective daytime loitering ordinance to the Municipal Code will enhance the ability of officers to deal with truancy issues. Such an ordinance will expand the working partnership between law enforcement and the school districts in an effort to address the problem of juvenile truancy and its impact on the community. Staff recommends Council place the ordinance on second reading a adoption, (Chief of Police) 8. ORDINANCE 2751 AMENDING CHAPTER 9,28 OF THE MUNICIPAL CODE (CURFEW ORDINANCE) (second readin1! and adootinn) - The wording in the current City of Chula Vista curfew Ordinance is currently overboard. The City of San Diego recently had its curfew ordinance challenged and the court found the ordinance to be unconstitutional. Chula Vista's ordinance is similar to the wording in San Diego's ordinance and San Diego has since amended its ordinance. Staff recommends Council place the ordinance on second reading and adoption. (Chief of Police) Agenda -3- October 6. 1998 9. ORDINANCE 2752 EST ABLISHING A 25 MPH SPEED LIMIT ON EASTLAKE DRIVE BETWEEN HILLSIDE DRIVE AND LAKESHORE DRIVE AND ADDING THIS ROADWAY SEGMENT TO SCHEDULE X AS MAINTAINED BY THE CITY ENGINEER (second readin~ and adoption) - Based on the provisions of the California Vehicle Code Section 40803, and pursuant tn authority under the Municipal Code Section 10.48.020. the City Engineer has determined that in the interest of minimizing traffic congestion, and for the promotion of public safety, the speed limit on EastLake Drive between Hillside Drive and Lakeshore Drive be estahlished at 25 mph. Staff recommends Council place the ordinance on second reading and adoption. (Diæctor of Public Works) 10, ORDINANCE 2753 ESTABLISHING A 35 MPH SPEED LIMIT ON CLUBHOUSE DRIVE BETWEEN EASTLAKE PARKWAY AND HUNTE PARKWAY AND ADDING THIS ROADWAY SEGMENT TO SCHEDULE X AS MAINTAINED BY THE CITY ENGINEER (second readin~ and adootion) - Based on the provisions of the California Vehicle Code Section 40803, and pursuant to authority under the Municipal Code Section 10.48.020, the City Engineer has determined that in the interest of minimizing traffic hazards and traffic congestion, and for the promotion of public safety, the speed limit on Cluhhouse Drive between EastLake Parkway and Hunte Parkway be established at 35 mph. Staff recommends Council place the ordinance on second reading and adoption. (Director of Public Works) 11. ORDINANCE 2754 ESTABLISHING A 45 MPH SPEED LIMIT ON HUNTE PARKWAY BETWEEN OTAY LAKES ROAD AND SOUTH GREENSVIEW DRIVE AND ADDING THIS ROADWAY SEGMENT TO SCHEDULE X AS MAINT AINED BY THE CITY ENGINEER (second readini! and adootion) - Based on the provisions of the California Vehicle Code Section 40803, and pursuant to authority under the Municipal Code Section 10.48.020, tho City Engineer has detennined that in the interest of minimizing traffic hazards and traftÏc congestion, and for the promotion of public safety, the speed limit on Hunte Parkway between Otay Lakes Road and South Greensview Drive be established at 45 mph. Staff recommends Council place the ordinance on second reading and adoption. (Director of Public Works) 12A RESOLUTION 19190 COUNCIL, ACTING IN ITS CAPACITY AS THE LEGISLATIVE BODY OF COMMUNITY FACILITIES DISTRICT NUMBER 97·1 (OPEN SPACE MAINTENANCE DISTRICT lOT A Y RANCH - SPA ONE, VILLAGES 1 & 5]) DECLARING THE RESULTS OF A SPECIAL ELECTION IN SUCH COMMUNITY FACILITIES DISTRICT· On September 15, 1998, Council held the public hearing for the fonnation of Community Facilities District Number 97-1. This district will fund the perpetual operation and maintenance of open space slopes, drainage channels, detention basins, medians and parkways of Otay Ranch SPA 1, Villages 1 and 5. Council action will certify the results of a special election where tho qualified electors of the District were asked whether the levy of this special tax should he authorized and direct staff to begin the process of determining the collectible amount for fiscal Year 199811 999 and fiscal Year 1999/2000. Staff recommends Council approve the resolution and place the ordinanœ on first reading. (Dir~tor of Puhlic Works) B. ORDINANCE 2755 COUNCIL, ACTING IN ITS CAPACITY AS THE LEGISLATIVE BODY OF COMMUNITY FACILITIES DISTRICT NUMBER 97·1 (OPEN SPACE MAINTENANCE DISTRICT IOTAY RANCH - SPA ONE, VILLAGES 1 & 5]), AUTHORIZING THE LEVY OF A SPECIAL TAX IN SUCH COMMUNITY FACILITIES DISTRICT (tÏrst readin~) 13.A. RESOLUTION 19191 COUNCIL, ACTING IN ITS CAPACITY AS THE LEGISLATIVE BODY OF COMMUNITY FACILITIES DISTRICT NUMBER 97-2 (PRESERVE MAINTENANCE DISTRICT) DECLARING THE RESULTS OF A SPECIAL ELECTION IN SUCH COMMUNITY FACILITIES DISTRICT· On September 15, 1998, Council held the public hearing for the formation of Community facilities District Number 97-2. This district will fund the perpetual operation and maintenance of Otay Ranch Preserve. Council action will certify the results of a special election where the qualified electors of the District were asked whether the levy of this special tax should be authorized and direct staff to begin the process of determining the collectible amount for Fiscal Year 1998/1999 and Fiscal Year 1999/2000. Staff recommends Council approve the resolution and place the ordinance on first reading. (Director of Public Works) B. ORDINANCE 2756 COUNCIL, ACTING IN ITS CAPACITY AS THE LEGISLATIVE BODY OF COMMUNITY FACILITIES DISTRICT NUMBER 97·2 (PRESERVE MAINTENANCE DISTRICT), AUTHORIZING THE LEVY OF A SPECIAL TAX IN SUCH COMMUNITY FACILITIES DISTRICT (first re"din~) ~ .-- - -~-,_._._-_._.~._-_._----- Agenda ·4· October 6, 1998 14,A. RESOLUTION 19192 COUNCIL, ACTING IN ITS CAPACITY AS THE LEGISLATIVE BODY OF COMMUNITY FACILITIES DISTRICT NUMBER 98-1 (OPEN SPACE MAINTENANCE DISTRICT [OTAY RANCH, LLC·OVP-SPA ONE, VILLAGES 1 WEST, 2, 2 WEST, 6 7 & PLANNING AREA 12]) DECLARING THE RESULTS OF A SPECIAL ELECTION IN SUCH COMMUNITY FACILITIES DISTRICT - On September 15. 1998, Council held the puhlic hearing for the formation of Community Facilities District Number 98-1. This district will fund the perpetual operation and maintenance of the Otay Ranch Preserve. Council action will certify the results of a special election where the qualified electors of the District were asked whether the levy of this special tax should be authorized and direct staff to hegin the process of determining the collectible amount for Fiscal Year 1998/1999 and Fiscal Year 1999/2000, Staff recommends Council approve the resolution and place the ordinance on first reading. (Director of Public Works) B. ORDINANCE 2757 COUNCIL, ACTING IN ITS CAPACITY AS THE LEGISLATIVE BODY OF COMMUNITY FACILITIES DISTRICT NUMBER 98·1 (OPEN SPACE MAINTENANCE DISTRICT [OTAY RANCH. LLC·OVP-SPA ONE, VILLAGES 1 WEST, 2, 2 WEST, 6, 7 & PLANNING AREA 12]), AUTHORIZING THE LEVY OF A SPECIAL TAX IN SUCH COMMUNlTY FACILITIES DISTRICT (first readin~) IS,A. RESOLUTION 19193 COUNCIL, ACTING IN ITS CAPACITY AS THE LEGISLATIVE BODY OF COMMUNITY FACILITIES DISTRICT NUMBER 98-2 (OPEN SPACE MAINTENANCE DISTRICT [MCMILLIN· D.A. AMERICA, OTAY RANCH· SPA TWO, VILLAGES 6 & 7]) DECLARING THE RESULTS OF A SPECIAL ELECTION IN SUCH COMMUNITY FACILITIES DISTRICT - On September 15. 1998, Council held the public hearing for the formation of Community Facilities District Numher 98-2. This district will fund the perpetual operation and maintenance of the Omy Ranch Preserve. Council action will certify the results of a special dc:dion where the tiualitïeJ electors of the District were asked whether the levy of this special tax should be authorized and direct staff to begin the process of determining the collectihle amount for Fiscal Year 1998/1999 and Fiscal Year 1999/2000. Staff recommends Council approve the resolution and place the ordinance on tirst reading. (Director of Puhlic Works) R ORDINANCE 2758 COUNCIL, ACTING IN ITS CAPACITY AS THE LEGISLATIVE BODY OF COMMUNITY FACILITIES DISTRICT NUMBER 98-2 (OPEN SPACE MAINTENANCE DISTRICT [MCMILLIN - D.A. AMERICA, OTAY RANCH· SPA TWO, VILLAGES 6 & 7]), AUTHORIZING THE LEVY OF A SPECIAL TAX IN SUCH COMMUNITY FACILITIES DISTRICT (first readin~) 16. RESOLUTION 19194 AUTHORIZING FIELDSTONE COMMUNITIES TO CONSTRUCT AND RECEIVE REIMBURSEMENT FOR REACHES 201 THROUGH 207 AND CREDIT FOR REACHES 208 THROUGH 213 AGAINST DEVELOPMENT IMPACT FEES FOR CONSTRUCTION OF THE POGGI CANYON SEWER LINE FROM PALM A VENUE TO BRANDYWINE A VENUE - The City Engineer received a letter dated January 28. 1998 requesting Development Impact Fee reimbursement for the constmction of the Poggi Canyon Sewer line and site work and constmction of facilities related to Olympic Parkway. Improvement Plans for construction of the Sun bow II Offsite Sewer (Poggi Canyon Sewer segments 201 through 213) were approved on September 30, 1997. The Poggi Canyon Sewer Development Impact Fee was adopted on December 9. 1997. Staff recommends approval of the resolution. (Director of Public Works) 17. RESOLUTION 19195 ESTABLISHING DATES FOR PROPERTY OWNERS TO BE READY TO RECEIVE UNDERGROUND SERVICE AND FOR THE REMOV AL OF POLES AND OVERHEAD FACILITIES WITHIN UNDERGROUND UTILITY DISTRICT NUMBER 126, ALONG THE FIRST PHASE OF MAIN STREET FROM INDUSTRIAL BOULEVARD TO APPROXIMATELY 450 FEET EAST OF BROADWAY· On January 9, 1996. Council held a public hearing and approved establishing Underground Utility District Number 126 along Main Street, from Industrial Boulevard to Third Avenue. Section 15.32.150 of the Municipal Code states that Council shall set the date upon which affected property owners must be ready to receive underground service and the date by which SDG&E shall remove poles, overhead wires, and associated stmctures. Staff recommends approval of the resolution setting November 13, 1998 as the date by which property owners shall be ready to receive underground service and March 5, 1999 as the date by which SDG&E shall remove poles, overhead wires, and associated structures. (Director of Public Works) .. -- Agenda -5- October 6, 1998 18. RESOLUTION 19196 APPROVING THE ADDITION OF A CAPITAL IMPROVEMENT PROJECT TO COMPLETE ENVIRONMENTAL AND ENGINEERING WORK REQUIRED FOR THE CONSTRUCTION OF THE SALT CREEK TRUNK SEWER AND APPROPRIATING $150,000 FROM THE TRUNK SEWER CAPITAL RESERVE FUND (FUND NUMBER 222) AND $150,000 FROM THE SALT CREEK SEWER BASIN DEVELOPMENT IMPACT FEE FUND (FUND NUMBER 670) TO COVER THE COST OF SAID WORK· The Salt Creek Tnmk Sewer has been proposed for the transport of wastewater from new developments in eastern Chula Vista and to provide additional capacity for the existing wastewater collection systems in southern Chula Vista. On December 6, 1994, Council established the Salt Creek Sewer Basin Development Fee to fund a large portion of this tnmk sewer. The proposed interceptor will generally parallel Salt Creek and the Otay Valley River beginning just west of Upper Otay Reservoir and terminating at the City of San Diego's Metro Sewer west of Interstate 5, Staff recommends approval of the resolution. (Director of Public Works) 4/5th's vote required. 19. RESOLUTION 19197 AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT WITH THE SAN DIEGO UNIFIED PORT DISTRICT FOR RECEIPT OF FINANCIAL ASSISTANCE IN THE AMOUNT OF $30,000 AND AMENDING THE CITY'S EXISTING CONTRACT WITH THE CHAMBER OF COMMERCE FOR PRODUCTION OF THE HARBOR DAYS FESTIVAL TO PROVIDE FOR THE PASS·THROUGH OF $30,000 OF THE PORT FUNDING TO SUPPORT THAT EVENT AND APPROPRIATING FUNDS THEREFOR· In June 1998. the City submitted a financial assistance request to the San Diego Unitied Port District (Port) for partial funding of the Harbor Days Festival. The Board of Port Commissioners approved funding $30,000 at their meeting of August 4, 1998, and the Port requires that the City enter into a formal agreement which stipulates conditions and City requirements for receipt of the approved funding. Staff recommends approval of the resolution. (Puhlic Information Coordinator) 20. RESOLUTION 19198 AUTHORIZING SETTLEMENT OF CLAIMS ARISING OUT OF THE FEBRUARY 6, 1998 SINK HOLE ON MALTA AVENUE AND APPROPRIATING FUNDS THEREFOR - This action will authorize the settlement of and appropriate funding for property damage claims arising out of the February 6, 1998 sink hole on Malta Avenue. Staff recommends approval of the resolution. (Risk Manager) 4/5th's vote required. 21. RESOLUTION 19199 APPROVING THE NAME OF "HERITAGE PARK" FOR AN 11.6 ACRE NEIGHBORHOOD PARK IN VILLAGE 1 OF THE OT A Y RANCH - The Park Master Plan for the first neighborhood park in Village I of the Dtay Ranch, totaling 11.6 acres in size was approved by Council on December 16, 1997. This park carried a temporary title of Park P-l through approval of the Park Master Plan. The Dtay Ranch Company, developer of this park, is now requesting that the name of "Heritage Park" be considered tor approval. Staff recommends approval of the resolution. (Director of Planning and Building) 22. RESOLUTION 19200 APPROVING AN AGREEMENT WITH THE COUNTY OF SAN DIEGO IN ORDER TO RECEIVE $135,276 OF STATE HABITAT CONSERVATION FUNDS AS RETROACTIVE MATCHING FUNDS FOR THE ACQUISITION OF 12 ACRES OF RIPARIAN HABITAT LAND IN THE OTAY VALLEY - The County of San Diego, acting as the clearing house for the grant funds for habitat land acquisition from the State of California and co-members of the Gtay Valley Regional Park planning process, has offered to apply to the State for reimbursement of up to $135,276 as matching funds for the City's acquisition of 12 acres of riparian habitat, part of the 36.44 acres previously purchased by Chula Vista. By accepting these funds, the City will be able to reimburse the PAD fund this amount for use in acquiring other properties or for development of this and/or other park land. Staff recommends approval of the resolution. (Director of Planning and Building) * * * END OP CONSENT CALENDAR * * * ADJOURNMENT TO REGULAR AND/OR JOINT MEETING OF THE REDEVELOPMENT AGENCY Agenda -6- October 6, 1998 ORAL COMMUNICATIONS This is an opportunity for the general public to address the City Council on any subject mailer within the Council's jurisdiction that is not an item on this agenda for public discussion. (State law, however, generally prohibits the City Council from taking action on any issues not included on the posted agenda.) If you wish to address the Council on such a subject, please complete the "Request to Speak Under Oral Communications Fonn" availnble in the lobby and submit it to the City Clerk prior to the meeting. Those who wish to speak, please give your name and address for record purposes and follow up action. PUBLIC HEARINGS AND RELATED RESOLUTIONS AND ORDINANCES The following items have been advertised andlor posted as public hearings as required by law. If you wish to speak to any item, please fill out the "Request to Speak Fonn" available in the lobby and submit it to the City Clerk prior to the meeting. 23. PUBLIC HEARING AMENDING ORDINANCE 2579, RELATING TO ESTABLISHING A PROCEDURE FOR FEE WAIVER OR REDUCTION WITHIN THE INTERIM PRE-SR125 DEVELOPMENT IMPACT FEE - On January 4, 1994, Council adopted Ordinance 2579 establishing an interim pre-SR125 Development Impact Fee to pay for transportation facilities in the City's eastern territories. That ordinance did not have a procedure for fee waiver or reduction. Based on a recent development which paid an estimated fee with an understanding that actual traffic generation rates would be studied after the project was opened. a portion of the fee payment should be refunded, Staff recommends Council place the ordinance on first reading. (Director of Public Works) ORDINANCE 2759 AMENDING ORDINANCE 2579 RELATING TO ESTABLISHING A PROCEDURE FOR FEE WAIVER OR REDUCTION WITHIN THE INTERIM PRE·SR125 DEVELOPMENT IMPACT FEE (tÏrst readin~) 24. PUBLIC HEARING PCA 98·07; CONSIDERATION OF AN AMENDMENT TO SECTION 19,64.150 AND ADDITION OF SECTION 19.64.190 TO THE MUNICIPAL CODE ALLOWING FOR THE ISSUANCE OF RECONSTRUCTION PERMITS IN CERT AIN INSTANCES FOR NON- CONFORMING, NON·RESIDENTIAL STRUCTURES WITH THE CITY - The purpose of this amendment is to allow current restriction on the rebuilding of non-conforming, non-residential structures which are destroyed to be waived upon obtaining a Reconstruction Permit. Approval of said permit would be based upon a public hearing and subject to meeting of specific criteria including the presence of site constraints which would make it Jifticult for the owner of the property to rebuild it in accordance with current land use restrictions. Staff recommends Council place the ordinance on first reading. (Director of Planning and Building) ORDINANCE 2760 AMENDING TITLE 19 OF THE MUNICIPAL CODE TO MODIFY SECTION 19.64,150 AND ADD SECTION 19.64.190 RELATING TO RECONSTRUCTION OF NON- CONFORMING, NON-RESIDENTIAL STRUCTURES WITHIN THE CITY (first readin~) 25. PUBLIC HEARING PCM-95-01 A; AMENDMENT TO THE OT A Y RANCH SPA ONE PUBLIC FACILITIES FINANCE PLAN FOR VILLAGE ONE AND VILLAGE FIVE - On May 14, 1996, Council approved the Otay Ranch Public Facilities Finance Plan (PFFP) along with the SPA One Plan, among other documents required for implementation of the Dtay Ranch General Development Plan. Subsequent to the approval of the SPA Plan, PFFP, and the SPA One Plan tentative map (PCS-94-06) was approved. As a condition of approval of the tentative map, Condition Number 126 required that the PFFP be revised "where necessary to reflect the revised phasing plan." Changes to the phasing in ownership have prompted the current amendment to the PFFP. Staff recommends approval of the resolution. (Director of Planning and Building) RESOLUTION 19201 APPROVING AN AMENDMENT TO THE OTAY RANCH SPECIFIC PLANNING AREA ONE PLAN PUBLIC FACILITIES FINANCE PLAN TO REFLECT CHANGES IN PHASING FOR VILLAGE ONE AND VILLAGE FIVE Agenda -7- October 6, 1998 BOARD AND COMMISSION RECOMMENDATIONS This is the time the City Council will consider items which have been fonvarded to them for consideration by one of the City's Boards, Commissions, and/or Committees. None submitted. ACTION ITEMS The items listed in this section of the agenda are expected to elicit substantial discussions and deliberations by the Council, staff, or members of the general public. The items will be considered individually by the Council and staff recommendations may in certain cases be presented in the alternative. Those who wish to speak, please fill out a "Request to Speak" fonn available in the lobby and submit it to the City Clerk prior to the meeting. 26. RESOLUTION 19202 APPROVING AN AGREEMENT WITH JACKSON & RYAN ARCHITECTS FOR ARCHITECTURAL AND PROJECT MANAGEMENT SERVICES FOR THE ANIMAL SHELTER PROJECT AND APPROPRIATING $103,306 FROM DEVELOPMENT IMPACT FEES (DIF) FOR ARCHITECTURAL AND PROJECT MANAGEMENT SERVICES - In March 1998, the Police Department issued a Request for Propm;al to solicit qualitïeJ architectural firms to provide architectural and project management services for the Animal Shelter project. Ten proposals were received. Staff recommends approval of the resolution. (Chief of Police) 4/Sth's vote required. 27. RESOLUTION 19203 APPROVING IN-CONCEPT THE CHANGES REQUIRED BY THE DESIGN REVIEW COMMITTEE WHICH WILL RESULT IN A FUTURE COST INCREASE FOR THE CONSTRUCTION OF FIRE STATION NUMBER 4 AND THE FIRE TRAINING CLASSROOM; APPROVING THE SECOND AMENDMENT TO THE CONTRACTUAL AGREEMENT WITH JEFF KATZ ARCHITECTURE FOR ARCHITECTURAL SERVICES ASSOCIATED WITH THE DESIGN AND CONSTRUCTION OF FIRE STATION NUMBER 4 AND THE FIRE TRAINING CLASSROOM; AND APPROPRIATING FUNDS THEREFOR· Council approved CIP Projects PS·120 and PS-127 provide for the constnlction of the new Fire Station Number 4 and the Fire Training Classroom at the Fire Training Tower site in the Rancho del Rey development. The firm of Jeff Katz Architecture has been hired to provide the architectural services. Recent review of the Project's initial design by the City's Design Review Committee has necessitated changes to the Project which will increase the construction costs, and which are beyond the scope of the current agreement with the architect. Therefore, it is necessary at this time to conceptually approve the Project's revised scope and estimated budget and amend the Architect's agreement to complete the necessary work. Staff recommends approval of resolution. (Fire Chief and Director of Planning and Building) 4/5ths vote reQuired. 28.A, RESOLUTION 19204 AUTHORIZING THE ISSUANCE, SALE AND DELIVERY OF THE CITY'S MULTIFAMILY HOUSING REVENUE BONDS, SERIES 1998A (GATEWAY TOWN CENTER), AND THE CITY'S SUBORDINATE MULTIFAMILY HOUSING REVENUE BONDS (GATEWAY TOWN CENTER), SERIES 1998B, IN A COMBINED PRINCIPAL AMOUNT NOT TO EXCEED $43,000,000, AUTHORIZING THE EXECUTION AND DELIVERY OF SUCH BONDS AND OTHER RELATED DOCUMENTS, AND APPROVING OTHER RELATED ACTIONS IN CONNECTION WITH THE ISSUANCE OF THE BONDS - On February 10, 1998, the City held a public hearing which constituted an inducement resolution for multi-family housing revenue bonds in an amount not to exceed $45,000,000 to tinance a proposed 440 unit multi-family rental housing project proposed by Gateway Town Center L.P., a California Limited Partnership. The project is to be located on approximately 16 acres on the southwest comer of East Palomar Street and La Media Road within the McMillin Otay Ranch SPA One, Council is being asked to authorize the issuance of $43,000,000 in tax exempt bonds for tinancing of the project and to execute other related documents. On February 10, 1998, the City also approved an Affordable Housing Agreement with the McMillin Otay Ranch Company committing the developer to provide low and moderate income affordable housing within the Otay Ranch Planned Community, An amendment to the A ffon.lable Housing Agreement is now required. Staff recommends approval of the resolutions. (Director of Community Development) B. RESOLUTION 19205 APPROVING AN AMENDMENT TO THE AFFORDABLE HOUSING AGREEMENT WITH MCMILLIN OT A Y RANCH, INC. DECLARING THE AFFORDABLE HOUSING OBLIGATIONS FOR OTAY RANCH SPA ONE SATISFIED SUBJECT TO CONDITIONS Agenda -8- October 6, 1998 29,A. RESOLUTION 19206 APPROVING A FINAL MAP FOR TRACT NUMBER 98-04, MCMILLIN OT A Y RANCH SPA ONE, PHASE 2, ACCEPTING ON BEHALF OF THE PUBLIC A PORTION OF SANTA CORA A VENUE, A PORTION OF LA MEDIA ROAD, AND A PORTION OF EAST PALOMAR STREET, DEDICATED ON SAID MAP WITHIN SAID SUBDIVISION, ACCEPTING ON BEHALF OF THE CITY ASSIGNABLE AND IRREVOCABLE GENERAL UTILITY AND ACCESS EASEMENTS GRANTED ON SAID MAP WITHIN SAID SUBDIVISION, ACKNOWLEDGING ON BEHALF OF THE PUBLIC THE IRREVOCABLE OFFERS OF DEDICATION OF THE FEE INTERESTS OF LOTS "A" AND "B" FOR THE OPEN SPACE AND OTHER PUBLIC PURPOSES AND LOTS 2 AND 5 FOR PUBLIC PARK PURPOSES - The Tentative Map for McMillin Otay Ranch, Portion of Villages I and S. Tract 98-04 (CVT 98-04), was approved by Council on June 9, 1998. The final Maps include two multifamily lots, one mixed use lot (commercial/residential), two open space lots, and two park lots located south of East Palomar Street. Staff recommends approval of the resolutions, (Director of Public Works) B. RESOLUTION 19207 APPROVING A FINAL MAP SUBDIVISION IMPROVEMENT AGREEMENT FOR TRACT 98·04, MCMILLIN OT A Y RANCH SPA ONE, PHASE 2 AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT C. RESOLUTION 19208 APPROVING A FINAL MAP SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR TRACT 98·04, MCMILLIN OTAY RANCH SPA ONE, PHASE 2 AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT 30.A- RESOLUTION 19209 APPROVING FINAL "B" MAP FOR TRACT NUMBER 96·04, OTAY RANCH SPA ONE, VILLAGE I, NEIGHBORHOOD R-3, ACCEPTING ON BEHALF OF THE CITY THE ASSIGNABLE AND IRREVOCABLE GENERAL UTILITY AND ACCESS EASEMENTS GRANTED ON SAID MAP WITHIN SAID SUBDIVISION, ACKNOWLEDGING ON BEHALF OF THE PUBLIC THE IRREVOCABLE OFFER OF FEE INTEREST OF DEDICATION OF FEE INTEREST OF DESIGNATED RESOURCE PRESERVATION AREAS, AND THE IRREVOCABLE OFFER OF DEDICATION OF FEE INTEREST OF DESIGNATED LAND FOR PUBLIC PARK PURPOSES - The tentative map for Otay Ranch. Village I and a portion of Village 5 was approved by Council on Novemher 19, 1996. Council will consider the approval of the tirst Pinal "B" Map within Village I, together with the associated agreement for the "B" Map. The final "B" Map for Neighborhood R·3, Otay Ranch. Village I consists of 75 single family lots. lour private street lots, and six private open space lots totaling 10.616 acres (the private lots will be maintained by a Homeowner's Association). Staff recommends approval of the resolutions. (Director of Public Works) B. RESOLUTION 19210 APPROVING "B" MAP SUBDIVISION IMPROVEMENT AGREEMENT FOR TRACT NUMBER 96·04, OTAY RANCH SPA ONE, VILLAGE 1 NEIGHBORHOOD R·3, AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT C. RESOLUTION ]9211 APPROVING A SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR FIRST FINAL "B" MAP FOR VILLAGE 1 OF THE OTAY RANCH PROJECT, TRACT NUMBER 96-04, SPA ONE, AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT 31. RESOLUTION 19]82 ORDERING CERTAIN CHANGES AND MODIFICATIONS TO THE ENGINEER'S REPORT FOR ASSESSMENT DISTRICT NUMBER 97-02 (OTAY RANCH VILLAGE ONE) - On February 10, 1998, Council established Assessment District 97-2 and levied assessments on Otay Ranch Village One. pursuant to the Municipal Improvement Act of 1913, with the purpose of acquiring and tinancing infrastmcture improvements serving that development. Changes in the district boundary requires the Engineer's Report for this district to he moditied. Staff œcommends approval of the resolution. (Director of Public Works) Continued from the meeting of September 22, 1998. Agenda -9- October 6, 1998 ITEMS PULLED FROM THE CONSENT CALENDAR This is the time the City Council will discuss items which have been removed from the Consent Calendar. Agenda items pulled at the request of the public will be considered prior to those pulled by CounciLmembers. OTHER BUSINESS 32. CITY MANAGER'S REPORTCS) A. Scheduling of meetings. 33. MAYOR'S REPORT(S) A. Taking a position to support Proposition JJ. classroom and facility improvements in the Chula Vista Elementary School District. B. Ratitication of appointment to the Growth Management Oversight Commission (Development) - Paul Nieto (to fiB vacancy created by Commissioner Aguirre, whose term expired on June 30, 1998), 34. COUNCIL COMMENTS ADJOURNMENT The meeting will adjourn to (a closed session and thence to) the regular City Council meeting on October 13, 1998 at 6:00 p.m. in the City Council Chambers. A meeting of the Redevelopment Agency will be held immediately following the City Council meeting. ". declere 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 Agenda/Notice on the Bulletin Board at Tuesday, October 6, 1998 the Public rvices Building ~~n Council Chambers 4:00 p,m. DATED /0- Ý SIGNED -"Public Services Building (immediately following the City Council Meeting) CHULA VISTA CITY COUNCIL CLOSED SESSION AGENDA Effective April 1, 1994, there have been new amendments to the Brown Act. Unless the City Attorney, the City Manager or the City Council states otherwise at this time, the Council will discuss and deliberate on the following items of business which are pennitted by lnw to be the subject of a closed session discussion, and which the Council is advised should be discussed in closed session to best protect the interests of the City. The Council is required by law to return to open session, isslle any reports of final action taken in closed session, and the votes taken. However, due to the typical length of time taken up by closed sessions, the videotaping will be tenninnted at this point in order to save costs so that the COllncil's relllrn from closed session, reports of final action taken, and adjournment will not be videotaped. Nevertheless, the report of final action taken will be recorded in the minutes which will be availnble in the City Clerk's Office. CONFERENCE WITH LEGAL COUNSEL REGARDING: · Existing litigation pursuant to Government Code Section 54956.9(a) 1. Granite Construction v. City of Chula Vista. · Significant exposure to litigation pursuant to Government Code Section 54956.9(b) 1. Claims Settlement Authority: (a) Jose C. Magadan and Anna Magadan; (b) Obdulio and Leticia Martinez. · Initiation of litigation pursuant to Government Code Section 54956.9(c) None, CONFERENCE WITH REAL PROPERTY NEGOTIATOR· Pursuant to Government Code Section 54956.8 · None. CONFERENCE WITH LABOR NEGOTIATOR· Pursuant to Government Code Section 54957.6 · None. - -------- -~_.~----_.__._..- - - INFORMATION MEMORANDUM September 28, 1998 TO: The Honorable Mayor and CLty Council ~ VIA: David D. Rowlands, Jr., City Manage~?- , /" ç FROM: Chris Salomone, Community Development Director ~ _ . SUBJECT: PROPOSED RENT INCREASE AT BRENTWOOD PARK On July 23 1998, Brentwood Park provided written notification to residents of a rent increase in excess of the Consumer Price Index (CPI) to be effective November 1, 1998. As notified by the Community Development Department on April 1 &. 1998, the applicable CPI for San Diego County was 1.1 percent, The increase proposed is 17 percent over current rents. Additionally, the park owner proposed an additional increase in rent of $30 per space per month for a twelve month period. The additional $30 a month increase was requested to cover a total of $90,975 in expenses which were claimed by the park owner for capital improvements to the park. On September 2, 1998, the Mobilehome Rent Review Commission held a hearing to consider space rents for those affected residents at 8rentwood Park, At such time, the park owner's representative presented information and documentation to the Commission related to the proposed rent increase. More specifically, the park owner cited the expected increase in Brentwood Park's ground lease as the main purpose of the proposed 17 percent increase in space rent. Due to time constraints, the Commission was not able to accept all public testimony. The hearing was continued to September 1 &, 1998 to ensure an opportunity for all parties to provide testimony and support documentation. Upon review of all presented testimony and support documentation, the Commission was able to render a decision as to a fair, just, and reasonable increase in rent at their September 1&th meeting. The Commission determined that the evidence presented by the park owner was insufficient to warrant a space rent increase in excess of the CPl. The Commission also acknowledged past issues reg¡¡rding failure to maintain the park. While the Commission voiced their opinion that the maintenance and upkeep of the Park is the responsibility of both the owner and residents, the park owner is primarily responsible for the general maintenance and upkeep of the Park facilities and services. In order for the park owner to make necessary improvements to the park facilities, financial resources are required. Therefore, the Commission approved a $10 per month per space increase for a six month period to be used specifically for capital improvements to the Park, with the option of continuing this $10 increase for an additional six months based upon the Commission's review of the park owner's performance in implementing such capital improvements. Such decision of the Commission is final and conclusive as to both the residents and mobilehome park owner. ( lH) H:\HOM£\COMM.DMINFOMEM0\8RENTWOOD (September 26, 1998 (10:1 1;¡m) INFORMATION MEMORANDUM The Honorable Mayor and City Council ~ September 30, 1998 TO: VIA: David D. Rowlands, Jr., City Manager 1)~ ~ :.--0' C-;J . FROM: Chris Salomone, Director of Community Development 6 - SUBJECT: Economic Development Marketing Activity Update ¡o.;.~";.'...., '''':;''.,1..'.." ~¡~V¡.! IV.~~· ,~"n.....-._<_ _ ._...~_ ~.__.....~.. ,..;..,.,.... _.. As part of the l City's ongoing .~ economic development marketing efforts, the following , ,-., , ,. advertisement , ". ~ appeared in the -- September 28, 1998 ..: ..:.~t }::':"-:J!. (;~:,__. ..' "; OJ: edition of the , . '; ~, .lit~ .-:.." San Diego "..,.- "'/.; Business Journal. -- ': ~:. \~"':''¡''.~ 0 ,10:;;:: ,;,. "H !~It~·:.:-¡-) , i'_:):1t~¡ :~n'.;¡¡ ":: ,:: :~-' ]--~. , .~( t~,Hi:I.z;¡o , ...;<);~j:),~¡')J-~ .... :-..:~j:ll~)'1~)· tJ~h,':'Ó~j::' :: Je ",;:.,,'i . "~".,,,~i ¡';;;/~1~.¡)1';:~t~;~;~;;r~;,dJJ,;fj~!~'i;~'" ""0'"'' i~~~~~;'''~ .-" Even~Ølympic::atlîlêter: -"'i"'," _,' _,,'_ 'r" '. , ',. . - . HI , -.' .,,".c-r'f,¡ _""'~~"'_\;_ :-.JH....i<.¡ ....~~4J. ..\.'.....(.;....~.~.,'_,.~....'''''...., .",_,",. ",.¡ ;'~~}!t~ riìàkin~~ttâëKs~fôI'Cfiiil~FYistâ,:,,' .vJi·:t.t:':i :'1,-) ,'-;'.' ::.;: u: b2 (;Jj!1li-> 'J : -:.':.:,-'~,~¡¡:..;_~:/,_hl""t ~. ~ ;>:~,..::.; ¡/ü!"P. ::;;: :';(.~. ;, ,. -, ":,,.while our new U.S. Olympic Training Center is d~ing the attention of "~ """"'/Sonieofthefinestathletêsinthenation,: Iot·.,. 011; '. 'óur economic growth and innåvarlvê spirit are drawing evèryone's attention, ,,;-.f~¿-'· ,,~jn.;~ll:r ·r.ti:¡¡Jf..~~;'';)VMif1ji'''.·._\i;ì:;:/) ·';'~11r;tO Ct :lvllm!','i :,,:~,_.'.T~ . .,~~:':¡¡ ~1'j;;"- ~ l'ooJ "ill' M~ doIla IwmßsM .'. M-"¡"ift') o;/Ih? J;,ì- .:"ìi:"'·:'b' ,,,"', ri:.,.. ,"'. a7Jna5;.. anu 'acturers"c:/" ,Ò" f!, ."." MiJ:wo/J. ~iween the"airpórland Me~(r" '1 ," . .... '"1"''1 .J.... -(l.J.'~ ~I"''' OO'You "''¡¡'''IJ''"'~' ;;J'j. .1" 'j L.... I't, ""f" ¡,,..' , ':1'-''0'' "'-,-'i; "i'l,... ..j." '-' ...."'...... ....'...' .' .~.,q. . .;,.~L .... ',..':~' ,. .""'.~" .. ."."-- ~,.,. I ' .... ''''{ ':... ',"". . - ",' .." ',',.,..-.;" !¡ '). ·,f!~' . ;~;§lj~)UIgP::t!,Y2~A~~~~,~!Hg;;tf;~f~~J~,.Ç.~H!~ V!,~tal,;:; cc: EconomicD~~iop¡~-:;ri'?DWi~~~~')Lt."~::-;~\tt.!~Å1im '_'I 9~:¡";', ,_. ,..::)! .... .,', ~(f? Economic Chula VISta Community ~1!,pment'Dep'!rt'"ent· - - -- - '~TI - -~:: Development 276 lOOrtbA .,,'.... . . '.. ~ ':.. :venue' .,-,~¡\r: . -." -~"'~"";~'~"h'Ü"'- -...o.! .....,...",- ~ Commission :~~~Yu~~L~191~...'~::'ijft~::",;_. . <"" ~d,:;)~.:'·:~'~':_--::";·:'__:~:·_;!'-:::"'!~'~cmOf.:.·.>: i 16191691-5047~;:¡ $,.~....,.,>:,..~_;.;,,,_.,AflC!6d .i;. .0000VISfA'f,,$ ";'.:,""",.~ .. . .... ···'.....',:.I'I.~:I;.!'¡..:r.···,;,q·_·:).·'·· '. .'. .,....:.', ,. .. .. ~ '." '.":'-:. --- .--..,-- ..~~~,.-...'-- .~~=-_._- .'~.,-- [DRM H:\HOME\COMMDE\^.MARKlEY\TEMPLA TE\INFQMEMO.WPD September 30,1998 [8:02am] CITY OF CHULA VISTA DEPARTMENT OF PUBLIC WORKS TRANSIT DIVISION CHULA VISTA TRANSIT September 30, 1998 DS-036 Mr. Thomas F. Larwin General Manager MTDB 1255 Imperial Ave.; Suite 1000; MS 58 San Diego, CA 92101 CNG BUS PROCUREMENT AND RELATED INFRASTRUCTURE FOR CVT FLEET Dear Mr. Larwin: You may be aware that at its meeting on September 22, 1998 the Chula Vista City Council approved a staff report that recommended purchasing CNG buses and related infrastructure for the CVT fleet. Metropolitan Transit System (MTS) staff attending the meeting at my request were Elliott Hurwitz, Nick Burrie and Sandra Showalter; I appreciate their support that evening and during the past year as we evaluated the issue of continuing to buy diesel buses or changing to CNG. In addition to advising you of Council's decision, I want to request MTDB's assistance in procuring 15 New Flyer CNG buses for the CVT fleet as part of the recent regional bid process, and also to request capital funding assistance for CNG bus and infrastructure improvements available through applicable federal and state programs. The transition from a diesel to a CNG fleet involves three major tasks involving capital expenditures: purchasing new buses; installing a CNG fueling facility; and garage modifications for CNG bus maintenance. The timing of Council's decision is fortuitous, since the City is in the process of acquiring a new Public Works Yard (SDG&E property on Maxwell Avenue offOtay Valley Road), and the design for that site can incorporate the necessary CNG infrastructure, including the fueling facility and garage improvements, The estimated cost over the next eight to ten years to complete the transition to a CNG fleet is $15 million, including $13.3 million for 40 buses and $1.5 million for infrastructure. The most immediate task is to replace 15 .of our oldest buses, and either later this fiscal year or next fiscal year to begin the infrastructure improvements at the new Yard to support a CNG fleet. The estimated cost of the 15 buses is $4,875,000 ($325,000 per bus). You may recall that in Spring 1997 the City and MTDB had developed a draft agreement to exchange approximately $2,915,000 in City TDA funds for MTDB federal funds to purchase II diesel buses. This fund exchange was proposed to comply with MTDB Policy 18, Section 18.1.6, which requires such an exchange of funds if possible, and not to the detriment of project implementation. The $2,915,000 in approved federal funds will buy 9 CNG buses instead of II diesel buses. It is 707 F STREET I CHULA VISTA. CALIFORNIA 91910 I (619) 691·5050 critiCal that we replace 15 buses as soon as possible. We have already had a one year delay in placing a bus order due to examining the diesel or CNG issue, and delivery ofCNG buses is not anticipated until Spring 2001. I met on Thursday, September 24, 1998 with Jack Limber, Elliott Hurwitz and Susan Brown to discuss the procedure to place an order for 15 CNG buses with New Flyer as part of the regional bid. We did not resolve this issue primarily due to the project scope change from diesel to CNG, involving an increase both in cost and number of buses which affects the fund transfer agreement. MTDB staff agreed to examine the options that would facilitate an order of 15 CNG buses, In addition to resolving the procurement process, I also request that CVT capital procurements (buses, and CNG infrastructure improvements) participate in federal and state funding programs available to the region through MTDB. It is my understanding that CNG capital projects will be eligible for assistance under various TEA-2l funding programs, including CMAQ and the new Clean Fuels programs. The City would appreciate your support ofChula Vista's transition to a CNG bus fleet with regional federal funds now and in the future to offset some of the costs of buying CNG buses, building a fueling facility, and garage modifications. Sincerely, ßli };~~- Bill Gustafson Transit Coordinator cc: Honorable Mayor and City Council David D. Rowlands, Jr, City Manager John Lippitt, Director of Public Works CITY OF CHULA VISTA ----.-..... ____ ...a""_ INFORMATION MEMORANDUM September 30, 1998 TO: The Honorable Mayor and City Council VIA: David D. Rowlands~ City Manager FROM: Colleen M. Kelly, Intergove=ental Affairs Coordinator ~ SUBJECT: Year-end Legislative Wrap Up The purpose of this memo is to inform the Mayor and City Council of a delay in transmitting the Year-end Legislative Wrap Up. This delay is necessitated by an extension in the 1998 Congressional session. At this time, Congress is not anticipated to adjourn until mid-October. The City has taken positions in support or opposition to a number of federal proposals which have yet to be acted upon by Congress. The Wrap Up will be transmitted to the Council as soon as those bills in which the City has an interest are acted upon. Should you have questions about these or other legislative matters, please do not hesitate to contact Colleen Kelly at 691-5296. cc: Sid Morris, Assistant City Manager John Kaheny, City Attorney c:\...\infoitem\wrapup.del Information Memo October 6, 1998 TO: The Honorable Mayor & City Council Members VIA: Sid W. Morris, Acting City Manager c~v ý'c FROM: Richard P. Emerson, Chief of Police ; SUBJECT: Sale of Alcohol at the Coors Amphitheater The Police Department staff became aware yesterday of Issues surrounding alcohol sales and a conflict with the Conditional Use Permit (CUP) as a result of our planning efforts and the expanded party requests for the Jimmy Buffet concert Currently the CUP does not allow for public alcohol sales outside of the fenced area of the amphitheater. A request has been made for a "beer garden" for this event. Police Department staff and the concessionaire have worked and believe that we can move their requested beer garden Into the gated portion of the amphitheater compound which will not then be a violation of the CUP. In the future they would like the ability to move a public beer garden onto the sidewalks adjacent to the entrance areas, Currently the CUP prohibits this. A second area of conflict identified was the sale of alcohol in the Silver Bullet Lounge (an area not open to the general public) after the concert Is over, Currently the CUP requires that alcohol sales shall be suspended one hour after the commencement of the last headline act's performance. A review of practices at the Silver Bullet Lounge showed that these would be in conflict with the CUP. We believe that an administrative change by the Police Department can allow the Silver Bullet Lounge to continue to operate at the close of the concert. The Police Department and Alcohoiic Beverage Control want to ensure that the amphitheater is in compliance with all established legislation. A third area of concem deals with the single act shows and the interpretation of the CUP for selling alcoholic bevereges. The CUP addresses suspending the sale of alcoholic beverages one hour after the commencement of the headline act's performance. In a single act show, this would mean stopping alcoholic beverage sales prior to intermission. A modification is appropriate. The Police Department will retum to Council at the end of the concert season with modifications to the CUP. The proposed administrative adjustments for this event are as follows unless Council otherwise directs: At single act concerts, the sale of alcoholic beveragea shall be suspended one hour prior to the st:heduled end of the event as opposed to one hour efter the comment:ement of the lest ad. An eJCt:ept/on shall be for the s./e of alcoholic beverages in the "Sliver Bullet Lounge" whlt:h shall be suspended one hour after the end of the event. The Police Department will move forward and handle the situation appropriately as long as it is not in conflict with Council directives. RPE\scs cc: George Krempl, Deputy City Manager 1<;\U5RIA.QMIMSCS\EM~RSCMSALEAL.CO.WPD ~ff? ~~ ~--- - - ~~~~ ~~~~ CllY OF CHUlA VISfA OFFICE OF THE CITY MANAGER October 1, 1998 Mr. Gabriel Arce Chief Administrative Officer Community Health Group 740 Bay Boulevard Chula Vista, CA 91910 Dear Gabriel: Recently our broker, Mr. Brad 01'1' of John Burnham and Company, met with Joseph Garcia of your staff. The purpose of this meeting was to discuss the feasibility of including Community Health Group as an health insurance option for our employees for 1999. Brad has reported that he was very impressed with your staff and the progress Community Health Group has made in establishing itself as a viable plan within the community. As you will recall, a critical element in making Community Health Group (CHG) competitive with our current plans would be your ability to offer the Sharp network of providers. To say our employee population relies heavily on Sharp providers for their health care is not an exaggeration. Currently, at least 24% (179) of our employees and 350 of their family members subscribe to our EPO plan which consists exclusively of Sharp providers. In addition to the Sharp provider issue, your current network of providers may not be expansive enough to serve our employees who live throughout San Diego County. Other than the obvious provider network issues there are several other areas that would need to be addressed before the City could seriously consider offering Community Health Group as a viable alternative either in addition to or in lieu of one of our current plans: . First, if the City were to offer CHG as an additional option to our current plans we would need to secure approval from our current carriers to ensure that the rates and terms of our current plans would not be affected. 276 FOURTH AVENUE' CHULA VISTA· CALIFORNIA 91910' (619) 691-5031 . FAX (619) 409·5884 o~ POII-COnSY""" R8C)'clød P""e' · One other area of concern is CHG's relative lack of experience as a commercial provider particularly with employer groups as large as the City's. Understandably our number one goal is to provide our employees with the highest level of care that requires the least amount of hassle or disruption to them personally. We do not believe that CHG is in a position at this time to help us reach that goal. The City, because of our relationship with Sharp, may be in a position to help CRG in expanding your Sharp contract to include commercial patients with your existing medical agreement. Teri Enos, our Risk Manager would be happy to work with Mr. Garcia and Mr. Orr to see what assistance the City can offer in this area. Teri may be reached at (619) 691-5096. Because of these issues, which will require some time to address, and the fact that our open enrollment for 1999 is only a few weeks away, the City is obviously not in a position at this time to consider contracting with CHG. Of course the City is very interested in supporting a local venture, especially one such as Community Health Group. We look forward to working with you and your staff towards this end. Sincerely, r6Zrvc~ David D. Rowlands, Jr. City Manager DDR:mab cc: Mayor and Council Candy Emerson Teri Enos H:\SHAREDIADMINIARCE, WPD CITY OF CHULA VISTA ~\~ -.- r___ _-__ - - ~~-- - - 0lY OF CHULA VISfA October 1, 1998 TO: The Honorable M~and City Council FROM: David D. Rowlands, Jr., City Manager SUBJECT: Transportation Issues Attached for your information is a summary of legislative highlights on transportation issues, provided by Smith & Kempton. This document provides an excellent synopsis of specific legislative and policy actions taken by the State Legislature during 1998. I hope you will find the attached informative. DDR:mab Attachment Smith & Kempton Consulting and Governmental Relations MEMORANDUM To: Dave Rowland, City Manager City of Chula Vista From: D. J. Smith Date: September 25, 1998 Subject:: 1998 California State Legislative Highlights in Transportation The following is our report on action for the 1998 legislative session in Sacramento. A general overview of statewide transportation issues/conditions is followed by a report on specific legislative and policy actions of importance. Sacramento/Statewide 1998 Overview This year in Sacramento the issue of transportation was viewed by most concerned parties as one of protection of existing funding and frustration with our state transportation program. The reasons for this were numerous: · Tenn Limits meant that we were dealing with "lame duck" policy-makers on our issue. Both transportation policy committee chairs, Senator Kopp and Assemblyman Murray, as well as Governor Wilson leave their current positions at the end of this year. Obviously, this means the total face of the personalities dealing with this issue will require special orientation work and present new opportunities and problems for next year. · A huge cash balance in the State Highway Account (approaching $2 billion) meant that protection of this money proved to be even more needed (Proposition 2 on this November's ballot) and the pressure to spend it on "one time" improvements was intense (SB 1477 appropriation to cities and counties for El Niño stonn repairs is discussed later in this report). · Defeat of Proposition 224 which would have virtually eliminated contracting out of consulting services on state highway projects, required the expenditure of $7 million on an unavoidable campaign by concerned transportation interests. In the meantime, Caltrans lost every court appeal on the issue and is now prevented from contracting out work on even earthquake retrofits - a further reason for non-delivery of projects and the increase in the SHA cash balance. 980 Ninth Street, Suile 1560 . Sacramenlo, CA 95814 Telephone: (916) 446·5508 . Fax: (916) 446-1499 - 1998 Legislative Program September 25, 1998 Page 2 . In order to deal with the fmal Supreme Court decision prohibiting contracting out, Caltrans was granted authority to hire 1,800 new staff members (mostly engineers) in this year's state budget. Recruitment, hiring, training and seasoning of these new staffers will take 2 to 3 years before they are anywhere near fully productive. . It now appears that the California Transportation Commission will relieve some ofthe pressure for new STIP projects by agreeing to program additional Federal funds made possible by passage this year ofTEA-2L This new process will be accomplished in the next six months or so. A good question is what good this will do if Caltrans still can't deliver projects that are programmed on the state system? Finally, the large cash balance and new Federal funds made it impossible to discuss long tenn and very serious transportation finance issues this year such as: L The aging of our transportation system, especially bridge and interchange structures as exasperated by El Niño. The very large due bill to maintain and rehabilitate this huge state and local investment is now coming due. 2. The need to increase funding levels for transit-operating assistance as we add new transit services as needed by commuters and as required by air quality mandates. Even most successful and well-used transit systems require added operating subsidies for every new bus or train needed to provide additional service. 3. The need for new transportation capital expenditures for highways and transit, especially in rapidly growing suburban areas. Our state Department of Finance forecasts a 20 to 25 percent increase in population over the next 20 years in California that will "crush" our already crowded transportation system. 4. Other transportation modes that will compete with conventional transit and highway needs are: a. Critically important and expensive upgrades in key railroad freight conidors that feed our Pacific Rim portS of entry - east/west (i.e. Alameda and Capitol Conidor) and nonh!south to Mexico and Canada, b. The California High Speed Rail Commission is spending S3 million for planning and promotion of a year 2000 statewide ballot measure to support a $20 billion rail passage system between the major urban areas of the state. c, Airpon a.:cess is a continuing problem that will increasingly require rail transit and other expensive connections such as the BART to SFO project Smith & Kempton 1998 Legislative Program Septernber 25, 1998 Page 3 5. Because we can't afford to build our way out of every congested situation, we must stop studying high tech applications to these situations and start implementing them. Moveable freeway lanes, the myriad of options for congestion pricing, better travel infonnation systems and many other high tech options are all feasible technical solutions, but are not cheap or easy solutions relative to implementation. 6. Finally, our state could simply have not kept up with needed transportation investment in the 1980's and 90's if the top 15 urban counties had not passed voter approved sales taxes to help themselves. This particular fmancial resource is now largely spent down, obligated to pay revenue bonds with the taxes sunsetting over the next five to ten years. We believe this revenue source will again prove to be critical to matching state and federal funds, providing operational money for transit, and building new systems to serve growing population and commerce. We are attaching for your information a September 13 editorial page column from the Sacramento Bee by Dan Walters on the issue of transportation. Dan is considered by most observers as one of the most respected columnists on state government and politics in California. We are also attaching a white paper on state transportation issues that our firm used in recent briefmgs by Transportation California to both gubernatorial candidates. Specific Actions/Accomplishments for 1998 L ACA 30 (Murray) - This Assembly Constitutional Amendment by Assembly Transportation Committee Chair Kevin Murray passed both Houses of the Legislature and is now Proposition 2 on this November's ballot. It would severely restrict loans from the SHA to the General Fund, requiring a three-year payback, if specific borrowing conditions are met. It would also protect sales taxes used for public transit from being used for state or local General Fund purposes for the first time. Our office sponsored the bill on behalf of Transportation California. We appreciate the strong support for ACA 30 throughout California. ., SB 1758 (Kelley) - This bill would have allowed major loans ($10 to 200 million) to local .. agencies from the State Highway Account for up to four years to be paid back with interest to accelerate construction projects. After circulating the draft bill statewide, receiving comments and finalizing amendments, our office was counseled by Senator Kopp to delay movement of the bill until next year, because it conflicted with his SB 1477 (discussed below). We plan on introducing the bill when the legislature returns in December and moving it quickly through the legislative process by early 1999. The broad coalition of support we have developed this year will be important and helpful in dealing with the new Legislature and Governor. 3. SB 1477 (Kopp) - This bill would appropriate $300 million to cities and counties directly from the State Highway Account for El Niño road repair. RerC and SANBAG took no position on this bill, but it passed both Houses and is now on the Governor's desk for action. While the measure enjoys broad support from most cities and counties and the transportation contractor and union construction industry, it is expected that the Governor will veto it given Caltrans and erc opposition. The sponsors can be expected to reintroduce the bill early next session. Smith & Kempton 1998 Legislative Program September 25, 1998 Page 4 4. AB 836 (Sweeney) - This bill would lower the amount of money charged by the State Board of Equalization (BOE) to collect and administer most local transportation sales taxes. Attached, please fmd a chan indicating the added revenues for the counties impacted by this important bill. Our fIrm was a key player in drafting and advocating for this bill, working with members of the BOE, Senator Jim Brulte, and Assemblyman Michael Sweeney. This bill passed both Houses and is on the Governor's desk for signature. 5. AB 1368 (VilIaraigosa and Brulte) and SB 1857 (Brulte and VilIaraigosa)- These bills implement a $27.5 million program for the implementation of clean diesel, CNG and LNG in public and private diesel engines used in heavy trucks, tractors, locomotives, marine and bus vehicles. The target is Nox and paniculate emission reductions earlier than required by state and federal regulations. This voluntary, proactive program has passed both Houses of the Legislature and is now on the Governor's desk for his signature. Supported by ReTC and SANBAG, this was a major two-year effort for our fIrm working with the California Air Resources Board, California Energy Commission, local air districts, environmental organizations, the trucking industry and engine manufacturers. 6. Senate Joint Resolution Commending William E. Leonard and Naming the State Route 30/1nterstate 15 Interchange the "William E. Leonard Interchange" - This resolution was authored by Senator Brulte and Co·authored by the entire Inland Empire legislative delegation. The bill was sponsored by ReTC and SANBAG for presentation at our reception for Mr. Leonard on September 21. Our offIce handled the drafting and co-author arrangements. Mr. Leonard has recently been named by Governor Wilson to the California High Speed Rail Commission. Smith & Kempton , " ~ TRANSPORTATION CALIFORNIA Building for the Future CALIFOR¡"lA TRA:\'SPORTATIO:li 1:\ mE 21sT CE:liTURY: CHALLE:liGES FOR 1998 A:\D BEYO:'\D I:\TRODl:CTIO:li Transponation California is a group of construction companies, construction supply companies, and associated construction trade unions that build and maintain state highways and local streets and roads in California. While Transportation California is primarily focused on state policies and programs that impact the highway mode of transportation, it coordinates its action ",ith groups interested in other modes of transportation. An example would be our close coordination with the public transit agencies and their UIÚOns in support of Proposition 2, on this November's ballOt. which prOtects fuel taxes that support both the highway and transit programs in California. Transponation California is concerned that the highway system in California upon which cars, trucks and buses rely is not getting adequate anention from state policymakers in recent years. This lack of anention comes at a time when our state's populadon and economy are beginning to grow significantly again, increasing the vehicle ovmership as well as the number of new residents and businesses using our roads for the first time. It is also the time when the vast majority of our roads are past middle age, needing costly repair and rehabilitation that can't wait, if we are to continue to advance forward as a state. Finally, it comes after Caltrans has spent five years doing cridcally important earthquake rebuilding and retrofitting, while Other highway needs went largely unrnet. CALIFOR'-lA TRA:\SPORT A TIO:li: PAST A:\D PRESE:\T The history of California in many ways is a history of world-class transponation development. We all know that the courageous California dream realized in the transcontinental railroad substantially shaped American history. The Oakland/San Francisco Bay Bridge and the Golden Gate Bridge - both finished in the late 1930s - are still, 60 years later, symbols of American ingenuity and leadership in public works. The Pasadena Freeway between Pasadena and Los Angeles was the first limited access road facility, or "freeway," in the west in 19-+0. Since that first freeway, California has developed the finest and most extensive highway transportation system in the world. If you are elected governor this ;-';ovember, you will inherit a proud and world- renowned legacy in highway transportation developme~L You ",ill be responsible for the largest freeway and highway system in the world. run by your appointed managers in the 18.CXJO-employee Deparunent of Transporution lCaltrans) and watched over by your cabinet appointments to the Business. Transportation, and Housing Agency and the California Transportation Commission. Chart I is a revealing display of population, personal income. vehicle miles trave1ed and transportation revenues. adjusted for inr1ation. since 19ïO, As you can see. our ever-increasing population growth. driving by more family members. and higher incomes have nOt been mat.:hed by corresponding increases in expenditures on our highway system, ?:)S~ O~:ce ==\ 980326 '.\'e57 5::c::meîfc, C::'·':,::¡rnic 9.5ï98-033ó ~~,o~e 916-óOO-~2~:t . Fcx 925-335-0997 Chart II Fuel Tax Revenues per 100 Vehicle Miles of Travel $1.20 $1.00 $0,80 $0,60 $040 J $0 20 I $000 0 ;: '" '" .. "' '" ~ '" '" 0 ä; '" '" .. "' '" ~ '" '" 0 ;;; '" ~ ~ ~ ~ ~ ~ ~ ~ ~ '" '" '" '" '" '" '" '" '" '" '" ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Chan III is a more detailed look at what we have been spending money on in the highway program historically between operations, administration, maintenance and rehabilitation, and new construction. As you can see, it is costing more to maintain and manage the system as it has gotten bigger and is now well past middle age. The percemage of roads in California listed by engineers as in "poor condition" has doubled in the last ten years. Vnfonunately, the use of our system - urùike in the Midwestern and Eastern United States - is rapidly increasing as our system ages, compounding the cost to maintain and rebuild it. Chart III mm.....__nn .................__................n ................................... ............__....._..... . ~ 15 - ceo 19ïO-'974 1975-1979 19S0-,984 1985-' 989 1990-1994 o '.~ain:enance 5. 'Rehabilitation . Suppor:. r::êi:1ning & Acmlr:is::-ation o Capital Improvement Page 3 Chart IV STIP Fund Estimate State Highway Account /................................................................................................................................................... ss.ooo,OOOí : ill' $4.500.000 , it -": . ~ -!J ':.:-:.:- :;;:;.;.: Ii ::;-;::::: ~ v:~···· ~ .:.;.:.:. 0 ..,.:." " .!i 199ì-98 1998·99 1999-00 2oo().(), 200'-02 2002-03 2oo3-C4 CSlale Hignway Accounl .Actual SHA Available lor Program The issue of system needs leads to anoLher immectiately pressing challenge facing Lhe state's highway program - Lhe need for very high quality and aggressive inctividuals to be appointed into Lhe key management and commission positions in Lhe next gubernatorial administration, These appointees - Secretary of Lhe Business, Transportation. and Housing Agency; Caltrans Director. and members of Lhe California Transportation Commission - must have Lhe credentials and ability but just as importantly, Lhe ear of Lhe Governor, if Lhey are to adequately deal ",i¡h Lhese challenges. Finally, you may have heard Lhat Lhere is a great deal of money currently in Lhe State Highway Account. Chart V documents Lhe cash balance in Lhe SHA over Lhe last six years. Typically over Lhe last twenty years, a balance of about S2OO-3OO million has been needed to meet contractual needs as construction jobs are completed As you can see. we are now approaching a cash balance of S2 billion and we project Lhat it may hit S2.5 billion before it st:ms to go do"",,. Chart V State Highway Account Cash Balance Average Daily Balance 2.000 ¡... ·..................u .. ...................... ...... .uuuumuuumuumu,u.ml I ! 1,800 : ! i '.&"""\Q I 1.J.C'0 i !::! 1.2':N , Õ ª 1.COJ - Sc-J , 5<..""\Q I J.C-: i 2':" i I 0 8 ~ ~ ~ b ~ 6 6 ~ 6 6 ~ ~ ~ ~ g ~ g g ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ = ~ ~ ~ : = ~ TI = = ~ ~ = = 3 - = ~ <" -=; 0 ~ <."" ..::; ë· ~ -< ., is ~ -< -=; 0 .,;; < -=; Õ .,;; < ~ 0 .!; ¿ PJfe 5 -·__~__w_ - , ~.....- ~. Vehicular travel has i~ 5 IÜJ {J It¡! creased even faster; the vehie! miles of travel have nearly dou-:¡ > !~esacramentoBee d"'en /3 . b~ed to over 150 billion a year in'f, the past two decades, aœording to'1j Department of Transportation ré-~ search; . . i - · Travel has Ïf!creased beesuSe-:' of California's sprawling and nften~; center-less development patterns~:J which environmentalists and ..,;~:: -. cial critics may decry, but which; -~ show no .SIgnS of abating; . ,~." ~.- . Whl!e traffic. was doubling~ I DAN WALTERS the state s lane·mlles of roadway' .,j - increased by less than 10 percent" "Rivals ignoring thanks to a variety of political le-' , gal, environmental and fmanclal . restraints. Gasoline tax revenues traffic horror based on gallonage, have stagnat: ed because cars are much more fu- r eJ-efficient than they were in the So far, the two-man duel for 1970s. the governorship has been a . · While touted endlessly by en. trivial pursuit -literally. vironmentalists and others mass The two contenders, Democratic transit has had only a min~e Lt. Gov, Gray Davis and Republi- Impact on congestion. _ Building can Attorney General Dan Lun- n.ew systems ~s incredibly expen., gren, spent the summer mouthing Sl've, and projects are routinely simplistic slogans and carping plagued by cost·overruns and po. over how each may have voted on II tIcal and administrative malfea. abortion or capital punishment ,ance, the black hole of Los An- during their previous incarna~ geles' subway system being just tions as legislators. one bad example. .Only one subject of true impor- past and present governors, tance - public education - has been explored by the two office whose personal drivers and seekers, each ofTering simple nos· police escorts often exempt trums to repair what is a very ex- t~em from traffic congestion. have pensive and very complex set of sImply ducked the issue. The last . interrelated problems. time anyone did anything seini-se- MeanwhiJe, myriad other truly rious in the transportation field significant and pressing issues was a decade ago when then.Gov. . have gotten short shrift. Those George Deukmejian sanctioned a missing~ín-action issues, most of modesttax-and-bond package. '.. . which relate to pressures from DevOId of any state direction' California's burgeoning popula- transportation, planning, financ~ tion, include water policy, land and constructIOn have devolved use, local government finance and downward to cities, counties and I:>ealth care. But topping the list is regional agencies, often in the ¡ transportation. form of sales tax increases for spe-. Traffic congestion shows strong- cific projects. But at best, such ef- l~' in attitudinal polls, and in some forts. fall far sh?rt of the compre- highly impacted regions. such as henslve. statewIde transportation the Silicon Valley, it tops the list system that California once had of public concerns, surpassing ed. and now lacks. ucation. The candidates are shunning It's estimated that only 20 per- the transportation crisis because cent of those who will cast votes it's c,omplicated and expensive, on Nov. 3 have children in public may Involve new taxes (only Lun- school. But nearly aU of them use ~en has even suggested he would transportation, and they are facw :~pp.ort a gas tax boost) and could ing traffic tie-ups that grow longer ..:~wllled to a Successor because of and more intense by the day, .:;'ItB long time frame. ~ ~_~~ut if congestion is a headache T his is what has happened - -¡~w. what will it be when Califor- ; over the last two decades ma has 40 million or 50 million , to create that congestion: people? Isn't that something aspi. i · Population has increased by rants to the governorship should over 40 percent, and more people address? means more drivers and more DAN WALTERS' column appears daily ex- cars; there are more than 25 mil- lion registered vehicles in Califor- cep! Saturd,ay. E·mail: dwalters@~ac. bee.com: mall: P.o. Box 15779, Sacramen-_ nia and nearly 20 mi1lion licensed 10,95852; phone: (916) 321-1195; fax: (916) - drivers; 444.7938 . . . --,j , ,'" Annual Conference Resolutions Voting Packet General Assembly 100th Annual Conference Long Beach October 3, 1998 '. " 1998 GENERAL RESOLUTIONS COMMITIEE REPORT The General Resolutions Committee of the League, appointed by President Ronald Bates, in accordance with League bylaws, has met and considered each resolution presented to it. The resolutions contained in this packet represent only those resolutions approved by the Committee. Their numbers correspond to the numbers of the resolutions contained in the original packet, dated August 24, 1998. These were mailed to cities and were available to delegates at the commencement of the Conference. The Committee considered 23 resolutions submitted. Of the 23 resolutions, 17 are forwarded to the General Assembly for adoption. Not included in this packet are 4 resolutions that were referred to the Board of Directors of the League for assignment to appropriate policy committees of the League for further study. Resolutions were referred to the Board in those cases in which there was insufficient information available to enable the Committee to approve or disapprove the resolutions on their merit, or for which further study and review was felt appropriate. Failure of the General Resolutions Committee to recommend adoption of these resolutions by the General Assembly does not mean that they will not receive further consideration or be approved at a later date. Also not in this packet are 2 resolutions that were indicated for No Action or Disapproval by the General Resolutions Committee. Policy committees, as well as the General Resolutions Committee, have made changes in the wording of some resolutions from what was contained in the original packet dated August 24, 1998. All changes are shown in this packet. Words deleted are shown with a strikeover, and additional wording is shown in italics. Two petitioned resolutions qualified for consideration at this conference. These are numbered 22 and 23, and are located at the back of this packet. a:\98grcrpt.doc I HISTORY OF RESOLUTIONS Resolutions have been grouped by policy committees to which they have been assigned. Please note some resolutions may have been assigned to more than one committee. These resolutions are noted by this sign ( ,). KEY TO REVIEWING BODIES KEY TO ACTIONS TAKEN 1. Policy Committee - Preliminary A- Approve 2. Policy Committee - Final D- Disapprove 3. General Resolutions Committee N- No Action 4. General Assembly R- Refer to appropriate policy committee for study Action Footnotes a- Amend * Subject matter covered in another resolution Aa- Approve as amended ** Policy Committee will make final recommendation at October 1 meeting Aaa - Approve with additional amendment(s) *** Existing League policy Ra- Amend and refer as amended to appropriate policy committee for study **** Local authority presently exists Raa- Additional amendments and refer Da- Amend (for clarity or brevity) and Disapprove Na- Amend (for clarity or brevity) and take No Action W- Withdrawn by Sponsor [Note: Under existing rules, only those resolutions with an approve recommendation from the General Resolutions Committee and all qualified petitioned resolutions are reported on the floor of the General Assembly. If Resolution #2 in this packet is approved by the General Assembly, it will be effective immediately. It would give the General Assembly the additional opportunity to consider any resolutions approved by the policy committee but not approved by the General Resolutions Committee. Consideration of any such resolution must first be approved by a majority of voting delegates.) , 2 <. Number Kev Word Index Reviewinl! Bodv Action COMMITTEE ON ADMINISTRATIVE SERVICES 1 2 3 4 1 "Better Cities--A Better Life"; Resolution Relating to It the Leal!Ue' s Centennial A A A 2 Supporting Full Participation and Debate on Resolutions at the Annual Conference A A Aa Air 3 Leal!Ue Policy Develonment Process D D D 4 Campaign Reform N N N I 5 Local Government Liabilitv Aa Aa A :t" COMMITTEE ON COMMUNITY SERVICES 6 Before- and After-School Care Prol!TIlIIls Aa Aaa A ~ 7 Child Care N Aa A J. 8 Youth Emplovrnent Aa Aaa A '+9 Juvenile Crime and Public Safety Aa R R 12. COMMITTEE ON EMPLOYEE RELATIONS 10 Social Security Mandate Aa Aa A !( 11 Emplovrnent Support Initiative Ra Ra R .~ COMMITTEE ON ENVIRONMENTAL OUALITY 12 Aa R R 13 A A Aa +14 A A A COMMITIEE ON HOUSING. COMMUNITY AND ECONOMIC DEVELOPMENT 1 2 3 4 I 15 I Building Codes I ** I Aa I A I \\ i 3 Number Kev Word Index Reviewinl! Bodv Action COMMITTEE ON PUBLIC SAFETY +9 Juvenile Crime and Public Safety R R R 16 Sexual Assault Crimes Aa Aa A 17 Ernerl!encv Medical Services Aa Aa A 18 Traffic Control on State HÍliliways R R R l COMMITTEE ON REVENUE AND TAXATION 19 Pronertv Tax Anneal Process A A A 'Q. 20 Federal Excise Tax on Heatin!! Oil A A A '\' COMMITTEE ON TRANSPORTATION AND PUBLIC WORKS +14 Alternatively Fueled, Heavy-Duty Vehicles A A A .h 21 Operation and Maintenance of State Highways Within ~ Cities A A A RESOLUTIONS INITIATED BY PETITION Resolution General Committee Assembly Recommendation Action 22 Opposing Proposition 1A, The School Facilities Bond Act of 1998 A AOI 23 Local Government Records Retention A k Policylacres\table98.doc 4 ANNUAL CONFERENCE RESOLUTIONS 1. ''BEITER CITIES--A BEITER LIFE"; RESOLUTION RELATING TO THE LEAGUE'S CENTENNIAL Souœe: LeagueBomdofDIT~ro~ Referred to: Administrative Services Policy Committee WHEREAS, for one hundred yems, the League of California Cities has provided the opportunity for the exchange of ideas and experience among all city officials towmd making the theme of this year's centennial celebration, "Better Cities-A Better Life, " a reality for the residents in all our communities; and WHEREAS, California cities have gained strength and valuable services by working together through the League of California Cities; and WHEREAS, city officials applaud the outstanding contributions of countless colleagues who do or have served the League on the bomd of dir~to~, in regional divisions, functional departments, policy committees, as its dedicated staff, or in other capacities; and WHEREAS, the League of California Cities is celebrating its centennial anniversary at the 1998 annual conference; now, therefore, be it RESOLVED, by the General Assembly of the League of California Cities assembled in Annual Conference in Long Beach, October 3,1998, that its congratulations and sincere appreciation are hereby expressed to current and past city officials and staff of the League of California Cities, whose continuous involvement and efforts have benefited every city in California; and be it further RESOLVED, that the League and the cities of California hereby pledge to redouble their joint efforts of collaboration to ensure continuing and increasing effectiveness through working together. OOOOOOOOOO 2. RESOLUTION SUPPORTING FULL PARTICIPATION AND DEBATE ON RESOLUTIONS AT THE ANNUAL CONFERENCE Source: Desert Mountain Division, Administrative Services Policy Committee Referred to: Administrative Services Policy Committee WHEREAS, the League of California Cities is founded on the principles of local control and interagency cooperation and is a voluntary membe~hip association of California cities, representing a broad-based and dive~e population with each member city having equal status; and 5 WHEREAS, the League of Cali fomi a Cities' annual conference is a gathering of thousands of city officials from throughout California to learn from their colleagues, to study, debate and fonnulate positions on issues important to local govennnent; and WHEREAS, each city is represented at the conference by its voting delegate, who participates in the policy development process during the General Assembly; and WHEREAS, the League of California Cities encourages city officials to become active participants in setting League policy; and WHEREAS, the annual conference resolutions offer an additional means to direct the future of cities by focusing public and media attention on major issues, establishing a general direction for the League, and considering important issues not already addressed by the policy committees and board of directors; now, therefore, be it RESOLVED, by the General Assembly of the League of California Cities assembled in Annual Conference in Long Beach, October 3, 1998, that the League adopt the policy that every I resolution, when recommended for approval and adoption by å!e-all League policy committees charged with reviewing said resolution by the League president and recommended for disapproval, referral, or no action by the General Resolutions Committee, which is charged with the responsibility of bringing forward resolutions for action before the General Assembly, be placed upon the consent agenda at the time of the General Assembly with the written recommendations and a brief description of the bases for such recommendations from both the policy committee and the General Resolutions Committee, for the purposes of allowing the General Assembly the opportunity for full debate of said resolution; and be it further RESOLVED, that any resolution so placed on the consent agenda of the General Assembly for ratification of the action of the General Resolutions Committee may be moved to the floor of the General Assembly by a motion from any voting delegate requesting the opportunity to fully debate that resolution. If upon a majority vote of the General Assembly the request for debate is approved, the General Assembly shall have the opportunity to debate the resolution fully and subsequently take a vote thereon; and be it further RESOLVED, that the League continue to support and maintain policies that assure respect, consideration and full participation of all members to assure that the League's policies and programs are responsive to the concerns of and are fully supported by all member cities. 00OOOOOOOO 6 5. RESOLUTION RELATING TO LOCAL GOVERNMENT LIABILITY Source: City of Anaheim and Orange County Division Referred to: Administrative Services Policy Committee WHEREAS, there is currently no special legislation to protect local government against claims for property damage caused by hillslides and mudslides; and WHEREAS, local government is often perceived by property owners as the "insurer of last resort" since homeowner's insurance policies do not cover hillslide and mudslide property damage; and WHEREAS, it is impossible for local government to predict, and therefore, protect against, property damage from natural disasters such as hillslides and mudslides at the time developments are approved or accepted; and WHEREAS, California Code of Civil Procedure §337.15 provides that, "[n]o action may be brought to recover damages from any person, or the surety of a person, who develops real property or perfonns or furnishes the design, specifications, surveying, planning, supervision, testing, or observation of construction or construction of an improvement to real property more than 10 years after the substantial completion of the development or improvement for. . . (I) Any latent deficiency in the design, specification, surveying, planning, supervision, or observation of construction or construction of an improvement to, or survey of, real property [or] (2) Injury to property, real or personal, arising out of any such latent deficiency;" and WHEREAS, Assembly Member Scott Baugh introduced legislation (AB 2631) on behalf of the City of Anaheim to extend the protections of Code of Civil Procedure §33 7 .15 to local government, which subsequently failed in the Assembly Judiciary Committee; now, therefore, be it RESOLVED, by the General Assembly of the League of California Cities assembled in Annual Conference in Long Beach, October 3, 1998, that the League and the Orange County Division cosponsor legislation during the 1998-99 legislative session to extend the protections of Code of Civil Procedure §33 7 .15 to local government. OOOOOOOOOO 6. RESOLUTION RELATING TO BEFORE-AND AFTER-SCHOOL CARE PROGRAMS Source: Los Angeles County Division Referred to: Community Services Policy Committee WHEREAS, the Urban Institute reports that in 1990 approximately 5,337,000 school-age children, ages 5 to 17 years of age, were living in California; and 7 WHEREAS, every child should have equal access to a variety of programs and services that serve to stimulate his or her physical and intellectual development in safe, structured envirorunents; and WHEREAS, before-school, after-school and weekend programs that provide school-age children with positive activities in adult-supervised settings can promote academic and personal achievement and prevent juvenile crime and violence; now, therefore, be it RESOLVED, by the General Assembly of the League of California Cities assembled in Annual Conference in Long Beach, October 3, 1998, that the League support legislation for: 1. The state to assist local governments and school districts to maximize resources to expand and enhance diverse before-and after-school programs and weekend programs that meet the needs of all families; 2. The state to increase funding for before-and after-school and weekend programs for school-age children consistent with League policy which does not jeopardize funding I for existing programs; 3. The creation of partnerships among schools, community groups, public and private agencies to develop before-and after-school programs and weekend programs be supported. 0000000000 7. RESOLUTION RELATING TO CHILD CARE Source: Los Angeles County Division Referred to: Community Services Policy Committee WHEREAS, the National Child Care Information Center reports that, in 1995 for California. there were almost four and a ha?f million children under the age of 18 in families with working parents, either a single, working parent or both parents employed out of the home. thus creating a potential~v troublesome "latchkey" situation where some kind of child care is vital~v important; and WHEREAS, the number offamilies in need of public assistance and in need of affordable, quality care for their children will continue to increase because of the recently enacted rel'isions to we?fare legislation which require recipients of public assistance to work; now therefore, be it RESOL VED, by the General Assembly of the League of California cities assembled in Annual Conference in Long Beach, October 3. 1998. that the League support: 1. Increase in fimdingfor federal initiatives to expand child development sen'ices: 8 · 2. Increased State resources for local communities to increase the supply of child care and improve its quali~v: andfunding to make more child care affordable 10 //lore families consistent wilh League policy which does notjeopardizefimdingfor existing programs; 3. Adoption of legislation enabling local governments to increase child care planning and facility development, and to establish a strategic plan for the delivery' of child care services; 4. Adoption of legislation creating incentives for employers and developers to supporl the expansion of local child care infrastntctllre through program and facility development: 5. Immediate strengthening of licensing standards and enforcement to ensure that children are being cared for in a safe and nurturing environment: 6. Support of any and all funding that would train and compensate child care professionals in accordance with standards developed by national organizalions. such as the National Association for the Education of Young Children; and 7. Adoption o.fState legislation that would e:r:tend the existing child care income tar: credit to families earning up 10 150% of Ihe state median income le\'el. OOOOOOOOOO 8. RESOLUTION RELATING TO YOUTH EMPLOYMENT Source: Los Angeles County Division Referred to: Community Services Policy Committee WHEREAS, the Children's Defense Fund reports that employment and economic opportunities for America's youth have steadily declined over the past 25 years; and WHEREAS, recent studies reported by the Children's Defense Fund have detennined I that a link exists between lack of job opportunities for youth and juvenile crime; and WHEREAS, in 1995 the federal government decreased funding for youth employment programs by 80 percent (Job Training Partnership Act, Title II ~ ITP A), fTom $600 million ,to less than $130 million (Source: Children's Defense Fund); and WHEREAS, the overall funding allocated to job training programs has decreased over the past years while the number of youth eligible to participate in the programs has steadily increased; and 9 WHEREAS, federal, state and local govemments should develop and fund effective youth training, education and employment programs to ensure the successful transition of youth into the labor market; now, therefore, be it RESOLVED, by the General Assembly of the League of California Cities assembled in Annual Conference in Long Beach, October 3, 1998, that the League support state activities to: 1. Request the National League of Cities to encourage the federal government to modify existing federal income eligibility requirements for youth job training and placement programs to include the children of the working poor and to provide additional funding for youth job training programs; 2. Assist and support the efforts ofJocal government agencies to create stronger linkages between municipal services and school-based job training programs in order to create more job placement opportunities; 3. Support state legislation that provides funding to develop and maintain youth job training and placement programs and job opportunities programs on a year-round I basis, consistent with League policy which does IlOtjeopardize funding for existing programs; 4. Support state legislation that creates tax incentives to encourage community-based businesses to recruit local youth for meaningful employment opportunities with good pay and increased responsibility. O¢OOO¢OOOO 10. RESOLUTION RELATING TO SOCIAL SECURITY MANDATE Source: Personnel and Employee Relations Department Referred to: Employee Relations Policy Committee WHEREAS, existing policy of the League of California Cities is to oppose mandatory Social Security for public employers and employees; and WHEREAS, the proposed Social Security tax for public sector employers is a short-term, stop-gap measure that will not address the long-term solvency of the Social Security program; and WHEREAS, California public employers and employees have retirement programs in place, and an additional retirement program and tax would be an unnecessary expenditure of taxpayer dollars; and WHEREAS, the proposed new tax will result in unfunded, increased costs to city budgets as employee retirement costs increase; and 10 · WHEREAS, the proposed new tax will have a negative impact on labor relations, recruitment, employee morale, and benefit structures; and WHEREAS, it is recommended that Social Security refonn efforts focus on the long-tenn restructuring of the Social Security system; now, therefore, be it RESOLVED, by the General Assembly of the League of California Cities assembled in Annual Conference in Long Beach, October 3, 1998, that the League reaffums its policy to oppose a new mandatory Social Security tax for public employers and public employees. OOOOO¢OOOO 13. RESOLUTION RELATING TO QUANTIFICATION OF "COOL COMMUNITY" STRATEGIES Source: Los Angeles County Division Referred to: Environmental Quality Policy Committee WHEREAS, scientific studies have shown that average daily temperatures in urban areas are higher than those of surrounding suburban and rural areas; and WHEREAS, this effect, known as the "urban heat-island effect," is the result of the greater percentage of dark surfaces such as roofs, roadways, and parking lots and the lesser percentage of trees that provide important shade; and WHEREAS, these temperature increases raise the demand for electricity for air conditioning, increasing utility bills and also speed the fonnation of ozone air pollution, which is a serious health risk; and WHEREAS, strategies to reduce the "urban heat-island effect" include strategic tree planting to shade buildings and dark heat absorbent surfaces such as parking lots and streets and also include lightening such surfaces to reduce their absorption of solar heat; and WHEREAS, local governments lack adequate funding for the planting and the ongoing maintenance of trees; and ''J,r:.rmREA.S, ¡[the air El1:1ali~y iR1j3fÐ\'em8at effeets efthese stfate;ies eaal~ Be f¡1:!8ßti:f.ieEl, theH they Mar he aBed t8 gefleæte yWuB.èle air I3sllutisfI ereàits that may geRemte FeV8RHe fer aR~eiAg maiftteB8Bee eITeRs; R8V:, tfiereære, Be it RESOLVED, by the General Assembly of the League of California Cities assembled in Annual Conference in Long Beach, October 3, 1998, that the League support legislative or regulatory efforts to quantifY the air quality benefits of strategic tree planting and other "cool community" measures to allow such strategies to be used as a creditable measure under the State Implementation Plan. 0000000000 11 +14. RESOLUTION RELATING TO ALTERNATIVELY-FUELED, HEAVY-DUTY VEillCLES Source: Los Angeles County Division Referred to: Environmental Quality and Transportation, Communications and Public Works Policy Committees WHEREAS, despite recent improvement, residents of California continue to suffer from among the worst air quality in the nation; and WHEREAS, motor vehicles, including diesel-burning, heavy-duty vehicles, are responsible for a significant portion of the state's emission inventory; and WHEREAS, diesel exhaust is a suspected carcinogen and the State of California has proposed to classify it as a toxic air contaminant; and WHEREAS, great progress has been made in the development of alternatively-fueled clean technology for light-duty vehicles, but less progress has been made in developing cleaner alternatively-fueled, heavy-duty vehicles; now, therefore, be it RESOLVED, by the General Assembly of the League of California Cities assembled in Annual Conference in Long Beach, October 3,1998, that the League support legislation to provide funding, technical assistance, and regulatory support for the development and demonstration of alternatively-fueled, heavy-duty vehicles. 00000000oo 15. RESOLUTION RELATING TO BUILDING CODES Source: Inland Empire Division Referred to: Housing, Community and Economic Development Policy Committee WHEREAS, cities' efforts to assure safe buildings for their communities are greatly simplified by the local adoption of model building codes; and WHEREAS, an integral component of the model building codes is the participation and voting of city representatives on various code proposals; and WHEREAS, a national effort to integrate the three regional bllilding codes used in the I United States will open markets, foster new technology, and simplify the construction process; and WHEREAS, the International Code Council, which is comprised of voting members from cities and counties, is to be commended for coordinating the effort to unify our bllilding codes; I and 12 · WHEREAS, the public voting process on model codes, such as the International Code Council codes, helps ensure that special interests do not have undue influence over the code development process; and WHEREAS, California's cities are among the most active participants in the International Code Council process; now, therefore, be it RESOLVED, by the General Assembly of the League of California Cities assembled in Annual Conference in Long Beach, October 3, 1998, that the League endorse the purpose of the International Code Council to unify building codes and encourage its member cities to participate in ffle.code ~reee5s:processes to assure that California's interests continue to be appropriately reflected in the adoption of the Jnteffl&tielllll Cede Celllleil codes, OOOOOOOOOO 16. RESOLUTION RELATING TO SEXUAL ASSAULT CRIMES Source: Public Safety Policy Committee Referred to: Public Safety Policy Committee WHEREAS, aggravated assaults occur every 31 seconds in the United States and many of these assaults are of a sexual nature; and WHEREAS, a rape occurs in this nation every six minutes and 87 percent of rapes are by force and violence; and WHEREAS, crimes committed by sexual predators are very often solved based upon the collection and analysis of trace evidence; and WHEREAS, the collection of such trace evidence is difficult and requires the use of specially trained medical professionals to ensure that the evidence is properly collected and made ready for analysis, as well as to ensure that collection does not add to the victim's trauma; and WHEREAS, the analysis of such evidence is equally difficult and challenging and requires costly and highly accurate scientific testing instruments including, but not limited to, DNA, spectrum analysis, and blood and serum analysis; and WHEREAS, California's forensic laboratories are underfunded and overburdened by crimes of a sexual nature; and WHEREAS, California police agencies frequently pay between $750 and $1,000 for such medical exams, collection of evidence, and testing; and WHEREAS, it is fair, prudent and consistent with past statewide policy that those who cause such services to be used should pay for those services; and 13 , , WHEREAS, the sexual predator by his or her actions has caused an expense to local government, and the sexual predator should pay for that extra expense; now, therefore, be it RESOLVED, by the General Assembly of the League of California Cities assembled in Annual Conference in Long Beach, October 3, 1998, that the League support legislation that imposes, on any defendant convicted of a sexual assault crime, a fine that would be for the purpose of reimbursing local government entities for the total cost of any medical examination, evidence collection and testing required. OOOOOOOOOO 17. RESOLUTION RELATING TO EMERGENCY MEDICAL SERVICES Source: City of Santa Clara Referred to: Public Safety Policy Committee WHEREAS, the Emergency Medical Services System and the Prehospital Emergency. Medical Care Personnel Act (''the EMS Act") was enacted by the California State Legislature in 1980; and WHEREAS, the EMS Act has been recently interpreted by the California Supreme Court in the San Bernardino case precluding cities and fire districts from expanding the level and scope of their prehospital medical care beyond that which was provided in 1980 without the approval of county governing bodies; and WHEREAS, the EMS Act has reduced cities' and fire districts' ability to detennine the type and level of prehospital emergency medical care provided within their boundaries; and WHEREAS, according to the EMS Act, the emergency medical service providers operating within city and fire district boundaries are responsible to county governing bodies and not city councils or fire district boards; and WHEREAS, cities and fire districts are precluded from holding those emergency medical transport providers (ambulance companies) operating under county authority accountable for the type and level of service delivered to their residents and visitors; and WHEREAS, cities and fire districts have a public-safety-driven motivation to ensure that their citizens and visitors receive prompt and high-quality emergency medical services; and WHEREAS, the General Assembly of the League of California Cities, assembled in annual conference in San Francisco, October 14, 1997, did adopt a resolution and introduced legislation in 1998, AB 2586 authored by Assembly Member Deborah Ortiz, and cosponsored with the California Fire Chiefs Associations, the Fire District Association of California, California Professional Firefighters Association, and California State Firefighters Association, which sought to amend the EMS Act to assure a more inclusive role by local government related to EMS delivery; and 14 , WHEREAS, the League of California Cities, by policy, supports and strives to ensure local control of those matters that directly influence the residents and visitors of their communities; now, therefore, be it . RESOLVED, by the General Assembly of the League of California Cities assembled in Annual Conference in Long Beach, October 3, 1998, that the League work with other interested parties to restore balance to the local control of EMS, and if and when necessary, the League cosponsor with the California Fire Chiefs Associations, the Fire District Association of California, California Professional Firefighters Association, and California State Firefighters Association, legislation to authorize cities and fire districts to prescribe and monitor the manner and scope of prehospital emergency medical services provided within their boundaries for the purpose of increasing the level of pre hospital emergency medical service; to authorize cities and fire districts at their discretion to increase the level of emergency medical services provided within their boundaries, to and including the provision of prehospital emergency medical transport through ambulance services; to coordinate the provision of pre hospital emergency medical services with the local emergency medical service agencies; and to authorize cities and fire districts to strategize in the cost recovery associated with the provision of prehospital emergency medical services to medically indigent individuals within their communities. OO¢OOOOOOO 19. RESOLUTION RELATING TO PROPERTY TAX APPEAL PROCESS Source: Orange County Division Referred to: Revenue & Taxation Policy Committee Preliminary Recommendation to General Resolutions Committee: Annrove Final Recommendation to General Resolutions Committee: WHEREAS, California cities must rely on property tax revenue as a primary source of income; and WHEREAS, procedures applicable to appeals of property tax assessments do not routinely provide for notification to affected public entities of such appeals; and WHEREAS, an appeal, if successful, may result in a substantial reduction of income to cities, thereby having a negative impact upon city budgeting, provision of services, and issued bonds; and WHEREAS, California cities support changes to the State of California's property tax appeals process that will provide greater financial protection to cities; now, therefore, be it RESOLVED, by the General Assembly of the League of California Cities assembled in Annual Conference in Long Beach, October 3,1998, that the League support legislation implementing the following refonns to the property tax appeals procedures: 15 1. Each public agency receiving property tax revenue shall have legal standing to appear and be heard in connection with any property tax appeal affecting property tax revenue to be received by such agency. 2. Each public agency receiving property tax revenue shall be given reasonable notice of the filing of a property tax assessment appeal, applicable filing deadlines, and the date or dates of any hearings to be conducted in connection therewith, where such appeal may affect property tax revenue to be received by such public agency. 3. At least one member of the property tax assessment appeals board shall be a representative of cities and redevelopment agencies within the county and shall be selected by the appropriate League Division, League of California Cities, or by such other entity as may be competent to select a representative to adequately represent the interest of such cities and redevelopment agencies at hearings on property tax assessment appeals. OOOOOOOOOO 20. RESOLUTION RELATING TO FEDERAL EXCISE TAX ON HEATING OIL Source: City of Fort Bragg Referred to: Revenue and Taxation Policy Committee WHEREAS, the Taxpayers Relief Act of 1997 contains a provision for collection of an excise tax of $0.244 per gallon of clear, undyed kerosene or Heating Oil #1; and WHEREAS, these fuels have occasionally been blended with diesel fuel, an illegal practice that avoids payment of the tax when the fuel is sold for highway use; and WHEREAS, kerosene and Heating Oil #1 are a primary fuel for homes and industry in cities where natural gas is not available; and WHEREAS, purchasers of kerosene or Heating Oil #1 may use red-dyed fuel, which is exempt from the excise tax by federa1law, except that there is no supply of dyed fuel in California; and WHEREAS, dyed fuel is toxic, as breathing the dye after combustion aggravates respiratory problems and can damage kidneys or the liver after prolonged exposure; and WHEREAS, purchasers of kerosene or Heating Oil #1 must pay the excise tax as though it is being sold for highway use; and WHEREAS, the only way for purchasers to obtain a refund is to file a claim on the following year income tax return; now, therefore be it 16 , RESOLVED, by the General Assembly of the League of California Cities assembied in Annual Conference in Long Beach, October 3, 1998, that the League support and urge the National League of Cities to support federal legislation that: 1. Repeals the excise tax on kerosene and Heating Oil #1; 2. Eliminates the need for filing a claim for refund of the tax as part of the income tax process; and 3. Increases the enforcement of existing law that prohibits avoiding the excise tax on fuel sold for highway use. 00OOOOOOOO 21. RESOLUTION RELATING TO OPERATION AND MAINTENANCE OF STATE HIGHWAYS WITHIN CITIES Source: City ofMalibu Referred to: Transportation, Communications and Public Works Policy Committee Prelimina¡y Recommendation to General Resolutions Committee: ADDrove Final Recommendation to General Resolutions Committee: WHEREAS, no one knows the operating and maintenance needs of state highways that traverse cities better than the residents, businesses and city governments through which they run; and WHEREAS, no one is more adversely impacted when such state highways are not properly operated and maintained than these same residents, businesses and city governments; and WHEREAS, at the present time there is no requirement or incentive for local CAL TRANS officials to meet with or heed the requests of local officials in assuring that the standard of operation and maintenance is such that the needs of the local community are adequately addressed; and WHEREAS, this problem could be addressed by simply requiring that a procedure be established for cities to file formal requests to local CALTRANS officials, with copies to CAL TRANS headquarters and to State Assembly and Senate representatives for corrective measures to be taken to address local concerns about operational and maintenance standards; now, therefore, be it RESOLVED, by the General Assembly of the League of California Cities assembled in Annual Conference in Long Beach, October 3, 1998, that the League support legislation that would provide for a procedure for cities that have state highways within their jurisdictions to file formal requests to local CALTRANS district offices to take corrective action concerning operational and maintenance problems being experienced by the local community that need to be addressed by the state. 0000000000 17 . . ANNUAL CONFERENCE INITIATIVE RESOLUTIONS 22. RESOLUTION OPPOSING PROPOSITION lA, THE CLASS SIZE REDUCTION AND PUBLIC EDUCATION FACILITIES BOND ACT OF 1998 Source: City of Pleasant on , ~-r General Resolution Committee Recommendation: ADDrove ~..,. ~ ~ 1.ta~ /.M.tq. ~i¡;#iÞ ~ WHEREA , While Proposition lA proposes a $9.2 billion school bond for the construction of new and modernized school facilities, accompanying language in the fonn of SB 50 (as signed into law on 8/27/98) threatens the very principle oflocal government; and WHEREAS, SB 50 repeals the Mira line of court cases, which allows cities to consider the availability of school facilities when making land use decisions and exceed the statutory limits on development fees, if necessary; and WHEREAS, SB 50 repeals the Mira line of court cases and replaces it with an unfair state fonnula that sets the fee at $1.93 per square foot, which allows builders to be off the hook for any fees above the statutory per square foot limit and would be exempt from any conditions imposed or denied by cities related to school adequacy; and WHEREAS, Proposition lA provides us with an opportunity to reverse the impacts of SB 50 by allowing the Mira line of court cases to be upheld if the bond measure fails at the ballot box on November 3,1998; now, therefore, be it RESOLVED, by the General Assembly of the League of California Cities assembled in Annual conference in Long Beach, October 3, 1998, that the League oppose Proposition lA, which sends a clear message to the Governor and Legislature that local land use and school operations decisions should stay in the local communities where they belong - where local needs are best understood and met; and be it further . RESOLVED, that the General Assembly direct the League to strongly oppose any future legislation that attempts to eliminate the Mira line of court cases. OOOO¢OOOOO 23. LEGISLATION TO ESTABLISH ADVISORY GUIDELINES FOR LOCAL GOVERNMENT RECORDS RETENTION Source: City of Momovia General Resolution Committee Recommendation: WHEREAS, a Committee of the City Clerks Association of California (CCAC), composed of members of the Association and representatives from the Secretary of State's office, has researched records retention practices and citations throughout the State of California 18 " ., " to develop guidelines for minimum retention of local government records thereby leaving the administrative and operational requirement of the jurisdiction to its discretion; and WHEREAS, a presentation was made to the Administrative Services Policy Committee in June 1998 wherein the efforts of the Committee were endorsed; and WHEREAS, the Secretary of State, through the California Archives, has offered to maintain the Records Retention Guidelines of California municipalities, subject to a review process by the CCAC Legislative Committee; now therefore be it RESOLVED, by the General Assembly of the League of California Cities, assembled in Annual Conference in Long Beach, October 3,1998, that the League does hereby endorse and support establishment of guidelines for Local Government Records Retention, as presented by the City Clerks Association of California, and support legislation which will permit their issuance by the Secretary of State as advisory legislation only. OOOOO¢OOOO 19 September 30, 1998 TO: The Honorable Mayor and City Council ~ FROM: David D. Rowlands, Jr., City Manager W ~ .4 SUBJECT: City Council Meeting of October 6, 1998 This will transmit the agenda and related materials for the regular City Council meeting of Tuesday, October 6, 1998. Comments regarding the Written Communications are as follows: 5a. This is a letter from the City Attorney stating that the City Council did not meet in Closed Session on 9/22/98. IT IS RECOMMENDED THAT THIS LETTER BE RECEIVED AND FILED. 5b. IT IS RECOMMENDED THAT JOHN RODRIGUEZ' RESIGNATION FROM THE DESIGN REVIEW COMMITTEE BE ACCEPTED WITH REGRET AND THE CITY CLERK BE DIRECTEDTO POST IMMEDIATELY ACCORDING TO THE MADDY ACT IN THE CLERK'S OFFICE AND THE PUBLIC LIBRARY. DDR:mab ~~f~ :-~~ ~~~~ "'"~~~ CllY OF CHULA VISTA OFFICE OF THE CITY ATTORNEY Date: September 30, 1998 To: The Honorable Mayor and city Council From: Ann Y. Moore, . . . q1f). Sen~or Ass~stant C~ty Attorney Re: Report Regarding Actions Taken in Closed Session for the Meeting of 9/22/98 The Senior Assistant city Attorney hereby reports that the city Council did not meet in Closed Session on Sepetember 22, 1998. AYM: 19k C:\lt\clossess.no 54-/ 276 FOURTH AVENUE' CHULA VISTA, CALIFORNIA 91910 ' (619) 691·5037 ' FAX (619) 585·5612 'th""""""'-.... -,~~.- ----------_.._-~--_._-------_. RECEIVED September 16, 1998 '98 SEP 22 A11:46 CITY OF CHULA VIS Tf: To: Planning Department CITY CLERK'S OFFICE Attn: Rick Rosaler, Principal Planner 276 Fourth Avenue Chula Vista, California 91910 Re: Design Review Committee Dear Rick, After careful consideration and the exploration of some possibilities, such as the suggestion of moVing Design Review Committee meetings to Thursdays to accommodate my attendance, I find that I cannot cany on the work and complete this second term assignment of the Design Review Committee. My professional growth decision of pursuing an administrative credential in education is creating more demands on my limited human hours of productivity. I trust the City to understand my situation. Therefore, if the charter prohibits any long term leave of absence (to come back into the committee at a later time), I reluctantly must relinquish the gavel as chairman and resign from the Design Review Committee. I personally want all to know my deep appreciation of the opportunity to serve the City of Chula Vista the past six years on the Design Review Committee. Please accept my best wishes for the success of the design review process in the City of Chula Vista. Respectfully, . J . Rodrigu 53 Cypress Street Chula Vista. California 91910·2931 WRmEN COMMUNICATIONS cc. .' ~~(f) ~ /~/y~ 'a '¿)h' ¿f':Þ--; 5'ß--/ -- ..,---.-.--....-...-.-." ... ___.. ___ ~_._.. __~. ___._____~.___._·'·.·_.m__..__,____ · O?DINANCE No.{).111 .~~~ AN OP.DINANCE OF THE CITY OF CHULA .liJ~A AMENDING CHAPTER 2.46 OF THE ~,,"VISTA MUNICIPAL CODE TO PROVIDE FOR RESTR ING OF THE YOUTH ADVISORY COMMISSION F ONE-YEAR TRIAL PERIOD ~<:;) cP WrlEREAS. the Chula Vista éi~y Council established the Youth Advisory Commission in late 1970 as a means for providing input and recommendations to the City Council, City Manager, and other members of City government in all matters affecting the youth of our community; and WEE?~, during the past several years the Commission has eXDerienced a decline in the lack of commitment and interest on the part of the Commissioners; and ~~REAS, staff has evaluated the Commission's issues and believes addressing the current structure could resolve not only the existing problems. but re-energize an individual's interest, commitment. and overall productivity in serving with the Youth Advisory commission; and W-~REAS. an ordinance is required to allow for a one year trial program aimed at restructuring the Youth Advisory Commission and bringing it into conformance with its original purpose and .- intent. The City Council of the City of Chula Vista does ordain as follows: SECTION I: That Chapter 2.46 of the Chula Vista Municipal Code is hereby amended to read as follows: YOUTH ADVISORY COMMISSION Sections: 2,46.010 Creation. 2.46.020 Purpose and Intent. 2.46.030 Functions and Duties. 2.46.040 Membership. 2.46.050 Term in Office. 2.46.060 Operation of Commission. 2.46.07~ Repealed, 2.46.080 Repealed. 2.46.090 Repealed. 2.46.100 Repealed. 2.~6.110 Repealed. 2,46.120 Sunset Clause, INFORMATION PACKET SCANNED AT FIRST READING ~ __~ OF THIS ORDINANCE ON: , StEP :¿:2- / c¡ 9 8"" ( - _"_H,._m_.._~._. _..______ ~.~.._...__~_.,._.______".___.~~"'.,_..___" 2.46.010 Creation, .~, There is hereby created a Youth Advisory Co 2.46.020 Purpose and Intent. It is the purpose and intent of the cit council to establ~sh a youth commission to make recommendatio and advise the city council, the city manager, and other me ers of the Chula Vista government through the city manager in a I matters affecting the young people of this community as ell as those in areas surrounding the city and having some r ationship to the city to accomplish among other things: A. The development of mutual under tanding and respect between the young people and all of the dult citizens of Chula Vista; B. The establishment of liaison d maintenance of communications with all of the young people f the community so as to better understand the problems an difficulties confronting young people in today's complex ban $ociety; c. The establishment of a fo for meaningful open communication where the youth of Chula V sta can state in an explicit man.,er and in terms that will be understood by members 0: the -- so-called "establishment D. The restoration of feeling of mutual respect anà understanàing on the p rt of all age groups in the city; E. The elimination of th se petty causes of friction which have resulteà in the alie tion of our youth and the polarizat~on of our community bas d upon age; F. The encouragement f full and active participation '-:1 all phases of governme tal process by the young people of this community. It is the basic i ent of the city council to proviàe for the young people of the ci y a sense of identity and self-recognition so that the young peo Ie will truly feel that they are part of a dynamic society whic they will be expected to one day lead anà direct and should no be making an input so as to influence its direction. 2.46.030 Functions and Duties. The and duties of the commission shall be as follows: ~t /:J- A. Establish a direct communications link between the young people of the city and the city council, to assist in those .. matters which are of concern to the young people, and in turn, to the entire community; B. Provide recommendations and suggestions to the city council and to all boards and commissions of the city reflecting the point of view of the young people of this community. 2.46,040 Membership. A. Number of Members. The commission shall consist of R:Be two voting members per hiqh school, a staff ex-officio member and up to three general ex- officio members. 3. Designation of Members. 1. Voting Members. :se 7et:B~ memBers 5sa~1 Be Votinq members shall be two students from each hiqh school appointed by the city council upon recommendation of mayor from the qualified residents of the city in accordance with Section 600 et seq. of the Charter. Members of the youth commission shall be eitser students er aSBstHàeBts who have reacacd - &t passed the seventh grade educational level as continuing students at the time of appointment and shall maintain residence throughout the term of office and must be under the age of eighteen as of the commencement of the term to which they are appointed. 7'~ ;:¡:uàen: .:lPP~j·:'RS :or æemàe::-ship n~cel Be: DC .:l mcfp.J3-- c: or SJtf3RDO=cd 13~· :.njP otuàcnt s6èy Ss......crniB9' o::-§a:::z:J.::'03 0= 2lB sffiee= e:: any ~lass øf his o:'\irie::t S6ei~p. Rcp=eseBt:l:.ion Q: ':ll:¡Y ef::eial e= G3.nctiøned e=§:.:::'z:J.:':'o:: or ~:e\.~e:Bt :.~ Bet :8 be =e§aràcà as .:l ;:¡~ec:'.:l! ffl:a2.:'::EJ.t:'on :c:- memÐe.=s::':'p. The CÐ1:UlC:'~ '.::.~:: :.J.:iC :':'0 . Èes: e:fe=to te :.ppe:'nt a: ~e:Lot one s:uàcnt ==ORl ;loG ma!lj.p :u~ pesÐ:"ble 0: :'kc hi§R 6cß.oolo, æiàà::c SCB.ÐÐ!ü and jur::'or l::'§'R sehoo:!.o -..pitkin the city limits. :: :'3C:::-C arc Be appl~oatio~~ e= ~aeec~t~blc ap~~ic~Bts ::::-om a pa=~:'eu~:l= ocàe8~, :lpp~:'ÐaFltc ·....ill Be appø~r.~cà ==O!R aBe:he:::- 5choÐ~. To establish a workinq partnership with each of the Citv's hieh schools, two commissioners from each hiqh school shall be appointed. One commissioner shall be appointed from each hiqh school's Associated Student Bodv (AS3) and the other from each school's open student population. ~ ¿:j 2. Staff Ex-officio Member. .-- The city manager or his/her designated representative shall be an ex-officio member of the commission, who shall not be required to be a qualified elector of the city, but who shall have no vote ("staff ex-officio member") . 3. General Ex-officio Members. The city council, or its designee, may appoint not greater than three additional ex-officio members of the commission, who shall not be reauired to be qualified elector(s) of the city, but any such appointed ex-officio members shall have no vote ("general ex-officio member") . 2.46.050 Term of Office. A. Term of Office--All Classes of Members. ~ res: :n~:i~~ ~e~. E3rEep: as e:3e~.;:'cc p::-e-o"':àcà :"n :1::'5 £l:Jd3SeE~:'e:: :.., :.h: :e~. sf o:::"ee 0: al~ meffiSe::-c, ~nà a~~ :~aCD~C 6: .-. memee=s, e: s:.iè. eeB1ffì:,sc:'QI: oha.l~ be :0= a Re1f.~n:..: 'Ðc::-':'oj e: :OH= yea=o, and zha.~l :eræ:'na:.c DB :~~e JC:~ ô: :~: ¡e=-~à j'ea- e& ~àe' - ~ e~ 1:!!:;tess eàeo, sàa" e~Þ. --., se -... - - -... -- ... -"f'" .1 __... ..__ n_ COOBcr =C5i~, à:'e, became è.:'sqt:.a~:'::"cà 8= :'FlEsmp:::.::: :'0 ho2.à e:f:"ce. l.~ Initial Terms of Voting Members. l1e~""::'thstaBàiB!! £i113seetieB ]\..1, tlhe initial terms of each appointed votinq member shall commence upon appointment and shall ceBcluàc, fer eRe 7et:'B!! mCmBcr en Ju.:r¡e J9, :'993, fer t~.¡O .....s::..n9 'fftcmÌ3e=o OR June J:, :'$'9~, :0::- :°.:13 -:et:'B§ IRcml3erø on Ju..~c J Q I :995, and :0:: :°.:0 .....O:.:.Fl§ æembe=s on June :C, :99C, li:'..:CDD :hcy :3=::1:: o~]aer.:ise DÐGner reoign, à=-c, became à:'CCf'::1~:'=:'cd c::- iBee~eteBt ts hslà sff:'ee be for a period of one year and subiect to annual reappointment. unless they shall sooner resiqn. die, become discrualified or incompetent to hold office. a "ss'§ffi¡¡e-~ ~e ±-,~'-, "'Eri!lS Sj" ·e~ . ... -.... .....-... ......- ...---..... .... _. "e'- - ¡£¡-- à" S 'è ~ '-'~'-' ~-- .0 _....~ TfI_m __C 0 :1__ C .1.o=_§nc ...0 _...._____ _...._Fr..J S" 'e~ -~ I:"e &'-s~ -e§"'a- !!Iee~'¡:¡§ -~ "-'e- -" .1 - ... ........ ..... ---... - -- - . --.. ....- ......- .. --- .......: ....' - -...-- - ... B'~ -.... ---. ..........~ ... .o..._n§" m....fn::Dc_:ï ...._.... P_C.JC:1..., U... _.... ....uJ c........... ::1C_ Jr t /1 ::a:c.:- :k:.:: :'ke :ra:::-à æon:}¡ _.c..__ ::-.:::':.2- -- --- appÐiR~meR: e: the Ge~eRtb ~O:iB~ æemS~::-. -- 3-£. General Ex-officio Member. The term of general ex-officio members shall be for a period of four years from the time of appointment. 41· Staff Ex-officio Member. The term of the staff ex-officio member shall be indefinite. ~. Holàover Office. Notwithstanding the end of any member's initial term or post-initial term as herein provided, a member, other than the staff ex-officio member, shall be permitted to continue to exercise the privileges of the former office after the end of the term until the office to which he or she was assigned is filled by re-appointment or by the appointment of a qualified successor to office. -62- Vacancies. Notwithstanding the term of office to which a member is assigned, said office shall be deemed vacant upon any of the following events ("event of vacancy"): a. The death or disability of said member that renders said member incapable of performing the duties of office. b. The termination of status as member of the commission or the classification which was assig~ed to be represented on the commission. c. The member's conviction of a felony or crime involving moral turpitude. d. The member's absence from three regular, consecutive meetings of the commission, unless excused by majority vote of such board or commission expressed in its official minutes. e. The member has submitted a resignation which resignation has been accepted by the city council. r. The membership has been terminated by a majority vote of the city council. ~ ß t-~ - Upon the occurrence of an event of vacancy as herei..above listed, the city council shall so declare the office to ¡Þ-.. be vacant, and shall expeditiously take such steps as are necessary to fill said vacancy. 3. Number of Terms, 1. Voting Members. a. No voting member shall be appointed to more than two terms except as herein provided. b. A voting member assigned to ~~ initial term of less than two years may be appointed at the natural expiration of their initial term to two te=ms ~n addition .to their initial term. A voting member who currently occupies an office under an initial term may not be appointed to fill the unexpired term of another office which has become vacant. c. A voting member appointed to the commission to fill the unexpired term of an office of a voting member which has become vacant ("unexpired term") which has less than two years remaining on said une~ired term, may be appointed to two terms in additiõn to their unexpired term. A voting member ~ho ~. currently occupies an office may no: be . ; re-appointed to fill the unexpired term of another office which has become vacant. d. Any member may be re-appointed after two successive years of not serving on the commission in any office or membership capacity--voting, general ex- officio or staff ex-officio. 2. General Ex-officio Members. General ex-officio member may be reappointed ",i thou: limitation as to number of terms. 3. Staff Ex-officio Member. The staff ex-officio member shall serve at the pleasure of the city council. 2.46,060 Operation of Commission. A. Time of Meetings. The Commission shall meet auarterlv unless ~rolects or tasks reauire monthly meetinas. Quarterlv meetinas ",ill be utilizeè - Y-r ¿/t for traininq and leadership works hODs conducted bv the commission's liaison staff and the senior C01mnissioners themselves. The advisors and/or the Youth Commissioners may - reauest monthly meetinqs as deemed necessary. 3. Place of Meetings. Unless the commission shall otherwise establish another regular place for its meetings and advise the city clerk accordingly, the cotmnission shall meet in the parks and recreation conference room in the administrative building at the ci ty hall complex located at 276 Fourth Avenue, Chula Vista, or at such other place as may be posted upon the door of said conference room at least thirty minutes in advance of the meeting. C. Conduct of Meetings. The meetings of the commission, and notice thereof, shall be governed by the same rules and regulations by which the city council is bound in the conduct of public meetings. D. Quorum. Five Voting Members shall constitute a quorum for the transaction of business, . Resolutions. The affirmative vote of a majority of the entire membership shall be required for the passage of any resolution of the commission. F. Reports and Recommendations. All reports and recommendations shall be made in writing. G. Staff Support. L All officers and department heads shall cooperate with and render reasonable assistance to the commission. The city manager may make available staff and clerical support to the commission to fulfill its functions and duties, provided such staff and clerical support ~s available. L The Commission's liaison staff shall Drovide reaular communications with members of the Commission to effectively facilitate the timely exchance of informatio:1 In the form of Drolects. tasks or recruests. ~ t-? - - ---- +---~ ----..-.-.......- .----- ~ Staff shall be civen flexibility to aãdress issues which may arise durinc the one-year trial period that could ~. hamper the procram's success. n. Rules and Regulations. The commission may make such rules and regulations ~ot inconsistent with the provisions of this chapter. 2.46.070 Rules and regulations. (Section repealed by Ord 2555 §1 (part), 1993; Ord 1335 §1 (part), 1971; Ord 1283 §1 (part), 1970; prior code §1.602(f)}. 2.46.080 Meetings-Quorum. (Section repealed by Ord 2555 §1 (part), 1993; Ord 1335 §1 (part), 1971; Ord 1283 §1 (part), 1970; prior code §1.602(g»). 2.46.090 Ad hoc committees. (Section repealed by Ord 2555 §1 (part), 1993; Ord 1335 §1 (part), 1971; Ord 1283 §1 (part), 1970; prior coåe §1.602(h). 2.46.100 Duties and functions designated. -. (Section repealed by Ord 2555 §1 (part), 1993; Ord 1335 n (part), 1971; Ord 1283 §1 (part), 1970; prior code §1.603). 2.46,110 Staff assistance and funding. (Section repealed by Ord 2555 §1 (part), 1993; Ord 1335 §1 (part), 1971; Ord 1283 §1 (part), 1970; prior coåe §1.604). 2,46.120 Sunset clause. This Chapter shall remain in effect only until one year after it was approved and sicned bv Council. and as of that date is repealed. unless a later enacted ordinance extends or deletes that date. SECTION II: This ordinance shall take effect and be in full force on the thirtieth day from and after its second reading and adoption. ?reS¡nted by ~ APpro~ed as to form by {2Jeu-Þ . ~~~ Richard Emerson, Chief of Johri M. Kaheny, Cit~ney ?olice // E '.::~::'Ie·,:c==a.i'je\c=\yo:;:.r._ =om I -, ':Þ-!1 ~--ý ORDINANCE NO. 27 5 O':[CO¡~D READING AND ADOPlION AN ORDINANCE OF THE CITY OF CHULA VISTA ADDING SECTIONS 9.09.030 THROUGH 9.09.080 TO CHAPTER 9.09 OF THE CHULA VISTA MUNICIPAL CODE RELATING TO DAYTIME TRUANCY BY JUVENILES ON SCHOOL DAYS The City Council of the City of Chula vista does ordain as follows: SECTION I: That Chapter 9.09 of the Chula vista Municipal Code is hereby amended by adding Sections 9.09.030 through 9.09.080 to read as follows: Sec. 9.09.030 Purpose. The purpose of this section relating to the daytime presence of juveniles outside of school on school days is to reduce the incidence of juvenile truancy that plagues our schools and creates a burden upon the health, safety and welfare of the community. Students absent from school are denied an education; unexcused absences result in a loss of state and federal funding to the detriment of all students; unsupervised students may involve themselves in unsafe activities by loitering in residential neighborhood, business districts, or industrial centers; and, some unsupervised students may engage in criminal activity to the detriment of the community; Further, some unsupervised students may become a burden on police who must return them to school, wait for parents to pick them up, and investigate any and all criminal activity related to the student's truancy. As a result, therefore, the City Council of the city of Chula vista finds and determines that a special need exists for the adoption of a city ordinance to prohibit truancy by any juvenile under the age of 18, who is subject to compulsory education or to compulsory continuation education, with certain specific exceptions set forth herein. In addition, the City Council desires to discourage parents from permitting, or by insufficient control, allowing such truancy. It is further the intent of the City Council to provide appropriate criminal sanctions against any juvenile or parent who violates the provisions of this chapter. Sec. 9.09.040. Definitions. For purposes of this chapter, the below terms are defined as follows: 1 INFORMATION PACKET SCANNED AT FIRST READING 7_/ OF THIS ORDINANCE ON: Séf> J..J... ¡qCJ 8' _._____ __.______~."_____ _"n'··_.__ 4. When the juvenile is going directly to or coming directly from a medical appointment; 5. When the juvenile has permission to leave the school campus for lunch and has in his or her possession a valid, school issued, off-campus permit; 6. When the juvenile is going directly to, or directly coming from a compulsory alternative education program activity; 7 . When the juvenile is attending or, without any detour or stop, going to or returning from an official school, religion, government- sponsored activity, or other recreation activity supervised by adults; 8. When the juvenile is engaged in obtaining or providing medical care of a parent or family member. 9. When the juvenile is officially enrolled in home schooling; or 10. When the juvenile has passed a general educational development test and received a California high school equivalency certificate. Sec. 9.09.060 Responsibility of Parent. It is unlawful for the parent of any juvenile to knowingly permit or, by insufficient control, to allow the juvenile to be in violation of Section 9.09.050A. Sec. 9.09.070. Enforcement Procedure. A. Upon any violation of Section 9.09.050A, a peace officer may issue a citation to the juvenile and may detain the juvenile until he or she can be placed n the care and custody of his or her parent or may transport the juvenile to his or her home or to the school from which the juvenile is absent. If cited, the juvenile and a parent shall appear in court as directed in the citation. The parent shall be advised of the fact that the juvenile was cited for a violation of the City of Chula vista Municipal Code section 9.09.050A. The parent shall be warned of his or her responsibility and liability as the juvenile's parent. 3 7-~ A. "Adult" means any person twenty-one (21) years of age or older. B. "Emergency" includes, but is not limited to, fire, natural disaster, automobile accident, injury to person, and necessity for immediate medical care for another person. c. "Establishment" means any privately owned place of business to which the public is invited. D. "Juvenile II means any person under eighteen (18) years of age. E. "ParentI! means the adult biological or adoptive parent of a juvenile; the court appointed guardian of the juvenile; foster parent; the adult designated by the biological or adoptive parent to have custody and control of the juvenile, for any period of tim.e F. "Public Place" means any place to which the public has access and includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, office buildings, transportation facilities, shopping centers, and malls. Sec. 9.09.050 Daytime Truancy by Juveniles in Public Places on School Days. A. It is unlawful for any juvenile who is subject to compulsory education or to compulsory continuing education to be present in any public place or any place other than school or home between the hours of 8:30 a.m. and 1:30 p.m. on any day when school is in session for that juvenile. B. Section 9.09.050A does not apply under any of the following circumstances: 1. When the juvenile is accompanied by his or her parent or guardian; 2 . When the juvenile is on an emergency errand directed by his or her parent or guardian; 3 . When the juvenile is going directly to, or coming directly from his or her place of school-approved employment; 2 ,/r-3 B. If a parent has been previously warned as set forth in Section 9.09.070A, a peace officer may issue a citation for an infraction, in violation of Section 9.09.060, to the parent to appear in court. C. When a parent has previously been issued a citation for an infraction as set forth in Section 9.09.070, upon any subsequent violation by a parent of Section 9.09.060, a peace officer may issue a citation for a misdemeanor to the parent of the juvenile to appear in court. Sec. 9.09.080 Penalties. A. Any parent or juvenile convicted of an infraction for violation of Sections 9.09.050A or 9.09.060 may be punished by a fine not exceeding two hundred fifty dollars ($250.00) or by a requirement to perform county, city, or school-approved work projects or community service or both. If required to perform a project or community service, the total time for performance shall not exceed sixty (60) days, during times other than a juvenile's hours of school attendance or a juvenile or parent's hours of employment. B. Any parent convicted of a misdemeanor violation of Section 9.09.060 may be punished by imprisonment in the County Jail for a period of time not exceeding six (6) months or by a fine not exceeding one thousand dollars ($1,000.00) or both. SECTION II: This ordinance shall take effect and be in full force and effect on the thirtieth day after its second reading and adoption. Presented by Approved as to form by Richard Emerson, Chief of Police H: \home\lorraine\or\loiter. 909 4 7/1 ORDINANCE NO. ~ .1 ,r:( / . r\\O~ ~«. ~. AN ORDINANCE OF THE CITY OF C~ VISTA AMENDING CHAPTER 9.28 OF TH~~~ VISTA MUNICIPAL CODE TO PROVIDE FQR~~MPLEMENTATION OF THE MINOR'S CURFEW LAW ~<:) ,<-v ?<vöJ WHEREAS, the City of Chula Vista, pursuant to the police powers delegated to it by the California Constitution, has the authority to enact laws which promote the public health, safety and general welfare of its citizens; and WHEREAS, the City of Chula Vista has determined that the incidents of juvenile gang activity, juvenile violence and the commission of crimes in which juveniles are involved is magnified in both seriousness and volume during late-night hours; and WHEREAS, the City Council has further determined that persons under the age of 18 years are, by virtue of their lack of maturity and experience, susceptible to the influences of gang activity and criminal behavior, particularly during late-night hours; and WHEREAS, it is the conviction of the City Council that the exercise of parental authority is the most effective means of preventing the commission of crimes by juveniles; provided, however, in the absence of adequate parental supervision, or to more forcefully support the exercise of parental supervision, the City of Chula Vista has the duty to enact measures for the protection of minor and the general public; and WHEREAS, in the performance of such duty, the City of Chula Vista has, in the past, enacted and historically enforced a late-night curfew applicable to minors; and WHEREAS, on June 9, 1997, the United States Court of Appeals for the Ninth Circuit rules that a juvenile curfew ordinance, substantially similar to that enacted by the City of Chula Vista, was unconstitutional; and WHEREAS, said ruling became final on June 30, 1997; and WHEREAS, unless action is taken by the City Council, the City of Chula Vista may be without a properly enforceable juvenile curfew measure, upon and after June 30, 1997; and WHEREAS, the City Council has determined that it would be highly detrimental to the welfare of the community to be without the protection of a juvenile curfew and that it is necessary to enact a Constitutionally enforceable juvenile curfew, as an urgency ordinance to become effective immediately, for the protection and preservation of the public he~lth. safety and welfare; and INFORMATION PACKET g I SCANNED AT FIRST READING - OF THIS ORDINANCE ON: S€ Þ 2.:Z I 99 g - .. ~'-"'--"'---'-~'--""".__._-"_.'--'-"---~-'--'-'-....__.~----,~.~._-,-_..._.._~----,--_._-_.- WIŒREAS. it is the determination of the City Council that the measure set forth herein corrects the Constitutional defects of the pre-existing ordinance by clearly proscribing the late-night presence of a minor in certain defined public places while, at the same time, recognizing and preserving the Constit ~onal rights of minors and their parents. The City Council ula Vista does ordain as follows: SECTION I: That Section 9. 8.010 of Chapter 9.28 of the Chula Vista Municipal Code is hereb amended to read as follows: 9.28.010 Regulations generally. . , - . . , - 4£ . , . , , . , ~ ~ fert:l1 herein. A. DEFINITIONS For Section 9.28.010: L- ours" means the eriod from 11:00 .m. f the week until 5:00 a.m. the followin L. "Emer e c " means an unforeseen combination of circum tances or the resultin state that calls for immedi te action. The term includes but is not limited to a ire natural disaster an automobile accident or an s'tuation irin immediate action to revent serio s bodil or loss of life. L lishment" means an rivatel -owned lace of ess o erated for rofit to which the ublic is ed includin but not limited to an lace of ment or entertainment. L rdian" means 1 a erson who under court order ardian of the erson of a minor' or 2 vate a enc with whom a minor has been rt. L "Minor" means any person under eiqhteen (18) years of ~ L "Parent" means a person who is a natural parent. ddoptive parent. or step-parent of another person. ~ g-~;;... - - L "Public place" means any place to which the public or substantial qroup of the public has access and includes. but is not limited to, streets. hiqhways. and the common ...--., areas of schools. hospitals. apartment houses. office / . buildinqs. transport facilities and shops. ~ "Responsible adult" means a person at least eiqhteen (18) years of aqe. authorized by a parent or quardian to have the care and custody of a minor. ~ "Serious bodily in;urv" means bodilY in;urv that creates a substantial risk of death or that causes death, serious permanent disfiqurement or protracted loss or impairment of the function of a bodily member or orqan. JL. CURFEW REGULATIONS, ~ It is unlawful'for any minor to be present in any public place or on the premises of any establishment within the City of Chula Vista durinq curfew hours. £.:. It is unlawful for any parent or quardian of a minor knowinqlv to permit , or bv insufficient control to allow. the minor to be present in any public place or on the premises of any establishment within the City durinq curfew hours. ~ DEFENSE TO PROSECUTION. It is a defense to prosecution under Section 9.28.010B that the minor was: ~ accompanied by the minor's parent or quardian. or bv a responsible adult; ~ on an errand at the direction of the minor's parent or quardian. or the responsible adult wi thout any detour or stop; ~ in a motor vehicle involved in interstate travel; L enqaqed in any emplovrnent activity, or qoinq to or returninq home from emplovrnent activity, without any detour or stop; ~ involved in an emerqency; ~ on the sidewalk abuttinq the minor's residence; L attendinq an official school. reliqious. or other recreational activity supervised by adults and sponsored by the City of Chula Vista. a civic orqanization. or another similar entity that takes responsibility for the minor. or qoinq to or returninq home from. without any detour or stoP. an official school. reliqious. or other recreational activity supervised by adults and sponsored :~ f5~3 - by the City of Chula Vista. a civic orqanization or another similar entity that takes responsibility for the minor; h exercisinq First Amendment riqhts protected by the United States Constitution; or ~ emancipated pursuant to law. ~ ENFORCEMENT PROCEDURE. Before takinq any enforcement action under this section, a police officer shall ask the apparent offender's aqe and reason for beinq in the public place or on the premises of the establishment durinq curfew hours. The officer shall not issue a citation or make an arrest under this section unless the officer reasonably believes that an offense has occurred and that , based on any responses and other circumstances. no defense under Section 9.28.010C is present or applicable. ~ PENALTY . ~ Each violation of this section shall constitute a separate offense. ~ Any person violatinq the provisions of Section 9.28.010B shall be quilty of a misdemeanor. Minors shall be dealt with in accordance with iuvenile court law and procedures. ~ SECTION II: This ordinance shall take effect and be in full force on the thirtieth day from and after its second reading and adoption. Presented by Approved as to form by {}¡~fc ~ç Richard Emerson, Chief of City Attor~ Police c: \or\curfev ~ '6~r _ _ ORDINANCE NO.:; 7&:J2...- O~ 'R'\~ - AN OP.DINANCE ESTABLISHING A 25 M.P.H. S~¡.SP LIMIT ON EASTLAKE DRIVE BETWEEN HILLSI~~ AND LAKESHORE DRIVE AND ADDING TH~\) WAY SEGMENT TO SCHEDULE X AS MAI~~ BY TrlE CITY ENGINEER ~~CO WHEREAS , based on the provisions of the California Vehicle Code Section 40803, and pursuant to authority under the Chula Vista Municipal Code Section 10.48.020, the City Engineer has å~t~rmined that in the interest of minimizing traffic hazards and .&. . and for the promotion of public safety, the tra~~~c congest~on, speed limit on EastLake Drive between Hillside Drive and Lakeshore Drive be established at 25 MPH; and WHE?~, a engineering and traffic study, as required by State Law, has been conducted and it has been determined that the appropriate speed in this area is to be posted at 25 MPR. NOW, THEREFORE, the City Council of the City of Chula Vista does ordain as follows: SECTION I: That Schedule X of a Register of Schedules maintained by the City Engineer as provided in Section 10.48.020 of the Chula Vista Municipal Code, Established Speed Limits in Certain Zones and Establishing a Speed Limit of 25 MPR on EastLake Drive between Hillside Drive and Lakeshore Drive, adding this location to Schedule X, is hereby' am~nded to include the following changes: Chula Vista Municipal Code Section 10.48.020 - SCh'EDUT~E X ESTABLISHED SPEED LIMITS IN CERTAIN ZONES Name of Street Beqinninq At Endinq At Proposed Speed Limit EastLake Drive Hillside Drive Lakeshore 25 M,P.H. Drive SECTION II: This ordinance shall take effect and be in full force on the thirtieth day from and after its adoption. Presented by Approved as to form by John ? Lippitt, Director of M. Kaheny, Public Works orney r. '.=':::I:ne·.:==-:'"&:'n~\OR\SPtD_I.S':' INFORMATION PACKET SCANNED AT FIRST READING 9/1 OF THIS ORDINANCE ON: StEÞ ;:<:2. /qq fš - - ,_._._.__..._.,. _ _~n.,._.____,___'__'_______~"""____""__ .-.,.-- .__.._,-"-~-----_._-'--'--'--'--- ORDINANCE NO. :< 753 ~çfJ~"\\.o~ ,- AN ORDINANCE ESTABLISHING A 35M. p, H. ~ LIMIT ON CLUBHOUSE DRIVE BETWEEN ~ PARKWAY AND HUNTE PARKWAY DRIVE ~ ADDING THIS ROADWAY SEGMENT TO SCH~ X AS MAINTAINED BY THE CITY ENGlNEEßO~ e:,<,)' WHEREAS , based on the provisions of the California Vehicle Code Section 40803, and pursuant to authority under the Chula Vista Municipal Code Section 10.48.020, the City Engineer has determined that in the interest of minimizing traffic hazards and traffic congestion, and for the promotion of public safety, the speed limit on Clubhouse Drive between EastLake Parkway and Hunte Parkway be established at 35 MPH; and WHEREAS, a engineering and traffic study, as required by State Law, has been conducted and it has been determined that the appropriate speed in this area is to be posted at 35 MPH. NOW, THEREFORE , the City Council of the City of Chula Vista does ordain as follows: SECTION I: That Schedule X of a Register of Schedules maintained by the City Engineer as provided in Section 10.48.020 of the Chula Vista Municipal Code, Established Speed Limits in Certain Zones and Establishing a Speed Limit of 35 MPH on Clubhouse Drive between EastLake Parkway and Hunte Parkway, adding this location to Schedule X, is hereby amended to include the following changes: Chula Vista Municipal Code Section 10.48.020 - SCHEDULE X ESTABLISHED SPEED LIMITS IN CERTAIN ZONES " Name of Street Beqinninq At Endinq At Proposed Speed Limit Clubhouse EastLake Hunte Parkway 35 M.P.H. Drive Parkway SECTION II: This ordinance shall take effect and be in full force on the thirtieth day from and after its adoption. Presented by Approved as to form by John P. Lippitt, Director of Kaheny, Public Works orney H \home\:c~=aine\OR\S~t~.ISl INFORMATION PACKET SCANNED AT FIRST READING /tJ /'1 OF THIS ORDINANCE ON: s6Þ 22- I c¡ q 8 - - . -....- - _ ___ ._.___ .._.,. _.. __,~ "_'_"',.___._,..__"_'_U'_ _n..._.,.._~-.,..__....__~_, ,_ _...._..__..___._.._'.....__ _M.._______._______..,·,_ {(~~ OP.DINANCE No.a?"""1 ~~ # AN ORDINANCE ESTABLISHING A 45 M.P.H. ~~D LIMIT ON HUNTE PARKWAY BETWEEN OTAY ~"''ROAD AND SOUTH GREENSVIEW DRIVE AND ADD~ THIS ROADWAY SEGMENT TO SCHEDULE X AS ~AINED BY THE CITY ENGINEER.~(fj '? WHEREAS, based on the provisions of the Califo=ia Vehicle Code Section 40803, and pursuant to authority under the Chula Vista Municipal Code Section 10.48.020, the City Engineer has determined that in the interest of minimizing traffic hazards and traffic congestion, and for the promotion of public safety, the speed limit on Runte Parkway betweeenOtay Lakes Road and South Greensview Drive be established at 45 MPH; and WBDŒAS, a engineering and traffic study, as required by State Law, has been conducted and it has been determined that the appropriate speed in this area is to be posted at 45 MPR. NOW, l:il:.REFORE, the City Council of the City of Chula Vista does ordain as follows: SECTION I: That Schedule X of a Register of Schedules maintained by the City Engineer as provided in Section 10.48.020 of _ the Chula Vista Municipal Code, Established Speed Limits in Certain Zones and Establishing a Speed Limit of 45 MPR on Hunte Parkway between Otay Lakes Road and South Greensview Drive, adding this location to Schedule X, is hereby amended to include the following changes: Chula Vista Municipal Code Section 10.48.020 - SCHEDULE X ESTABLISHED SPEED LIMITS IN CERTAIN ZONES Name of Street Beqinninq At Endinq At Proposed Speed Limit Bunte Parkway Otay Lakes South 45 M.P.B. Road Greensview Drive SECTION II: This ordinance shall take effect and be in full force on the thirtieth day from and after its adoption. Presented by Approved as to form by ()chL /¿ C) John P. Lippitt, Director of ~n M. Kaheny, City ~ Public Works ley .,lo""",\:c«aine\OR\' IN FORMA T ION PAC KE T SCANNED AT FIRST READING OF THIS ORDINANCE ON: ~J S€- P ;U.. I 9 q 8' / -- / _ -_ - - .. _'·M__'~.~____.,".·_,_~_..,___,__"__..___ _,_._"...._.._..,._.._~.... n_.__.._...__._._..__________________ COUNCIL AGENDA STATEMENT Item ) 2- Meeting Date 10/6/98 ITEM TITLE: A. Resolution / f /7 0 of the City Council of the City of Chula Vista, California, acting in its capacity as the legislative body of Community Facilities District No. 97-1 (Open Space Maintenance District [Otay Ranch SPA One, Villages I & 5]) declaring the results of a special election in such Community Facilities District. B. Ordinance .2.. 75Þof the City Council of the City of Chula Vista, California, acting in its capacity as the legislative body of Community Facilities District No. 97-1 (Open Space Maintenance District [Otay Ranch SPA One, Villages 1 & 5]) authorizing the levy of a special tax in such Community Facilities District SUBMITTED BY: Director of Public Works ~ REVIEWED BY, Ci~ M"""i:!)j? ',¡;¡ ~ (41St'" Yo'" Y~_No-'J At the Council Meeting of September 15, 1 ,the ~ty Council held the public hearing for the formation of Community Facilities District No. 97-1. This district will fund the perpetual operation and maintenance of open space slopes, drainage channels, detention basins, medians and parkways of Otay Ranch SPA I, Villages I and 5. Tonight's Council action will certify the results of a special election where the qualified electors of the District were asked whether the levy of this special tax should be authorized and direct staff to begin the process of determining the collectible amount for Fiscal Year 1998/1999. RECOMMENDATION: That Council: I) Approve the resolution declaring the election results for CFD No. 97-1, and 2) Introduce for first reading of the ordinance authorizing the levy of a special tax in Community Facilities District No. 97-1 BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. DISCUSSION: At the Council Meeting of September 15, 1998, the City Council held the public hearing for the formation of Community Facility District No. 97-1. This public hearing was held pursuant to the provisions of the "Mello-Roos Community Facilities Act of 1982". The City Council also approved the resolutions establishing CFD No. 97-1, and authorized the submittal of the tax levy to the qualified electors. Election Results On September 22, 1998 the special election was held at the City Clerk's office. In accordance with the Mello- Roos Act, since no registered voters were identified by the Registrar of Voters within the CFD, the election was held by the property owners. Each property owner having one vote for each acre or portion of an acre that he or she owns within the CFD. Staff has tallied the ballots cast in this special election with the results showing 95.3 % of the votes cast in favor of levying the proposed /2-/ ('. -.-.+-- Page 2, Item_ Meeting Date 10/6/98 special tax. The Mello-Roos Act provides that if two thirds (2/3) of the votes are in favor, the City Council may proceed to levy the special tax. Resolution and Ordinance There is a resolution and ordinance in tonight's agenda which, if adopted, will accomplish the following: The "Resolution Declaring the Election Results" is the formal action of the City Council approving the results of the election to form CFD No 97-1. The "Ordinance Authorizing the Levy of Special Taxes" is the formal action authorizing the levy of special taxes as set forth in the Special Tax Formula previously approved by the City Council. Future Actions . Staff will be returning with a report on the amount of the special tax to be levied for Fiscal Year 1998/1999 and will ask the City Council to adopt a resolution setting the special tax for Fiscal Year 1998/1999. FISCAL IMPACT: All costs of formation of the district are being borne by the developers and the on-going administration will be funded entirely by the district. There is no impact to the General Fund The City will receive the benefit of full cost recovery for staff cost involved in district formation and district administration in perpetuity. 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'~ ~ I ~ .- c~'<~ o_ J'"' ...., a.. -5 ~&<~~~i3 lOll ~b :~ð.ùß~) 2. ..-- .3 EJ3 ] RESOLUTION NO. /9/9tJ 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. 97-1 (OPEN SPACE MAINTENANCE DISTRICT [OTA Y RANCH - SPA ONE, VILLAGES 1 & 5]) DECLARING THE RESULTS OF A SPECIAL ELECTION IN SUCH COMMUNITY FACILITIES DISTRICT WHEREAS, the CITY COUNCIL of the CITY OF CHULA VISTA, CALIFORNIA (the "Legislative Body"), has previously declared its intention and held and conducted proceedings relating to the levy of special taxes in a community facilities district, 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"), said Community Facilities District designated as COMMUNITY FACILITIES DISTRICT NO. 97-1 (OPEN SPACE MAINTENANCE DISTRICT [OTAY RANCH - SPA ONE, VILLAGES 1 & 5]) (the "District"); and, WHEREAS, this Legislative Body did call for and order to be held an election to submit to the qualified electors of the District a proposition relating to the levy of special taxes and the establishment of an appropriations limit for such community facilities district; and, WHEREAS, at this time said election has been held and the measures voted upon and each such measure did receive the favorable 2/3' s vote of the qualified electors, and this legislative body does desire to declare the favorable results of the election in accordance with the provisions of the Elections Code of the State of California. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF CHULA VISTA, CALIFORNIA, ACTING AS THE LEGIS LA TIVE BODY OF COMMUNITY FACILITIES DISTRICT NO. 97-1 (OPEN SPACE MAINTENANCE DISTRICT [OTAY RANCH - SPA ONE, VILLAGES 1 & 5]), AS FOLLOWS: SECTION 1. The above recitals are all true and correct. SECTION 2. This legislative body hereby receives and approves the CERTIFICATE OF ELECTION OFFICIAL AND STATEMENT OF VOTES CAST, as submitted by the City Clerk, acting in her capacity as the Election official, said Statement setting forth the number of votes cast in the election, the measures voted upon, and the number of votes given for and/or against the measures voted upon. A copy of said Certificate and Statement is attached hereto, marked Exhibit "A", referenced and so incorporated. 1 /.J./J -/ SECTION 3. The City Clerk is hereby directed, pursuant to the provisions of the Elections Code of the State of California, to enter in the minutes the results of the election as set forth in said STATEMENT OF VOTES CAST, PREPARED BY: APPROVED AS TO FORM BY: Ov-- ~~~ - John P. Lippitt John Kaheny Director of Public Works City Attorney 2 /2/1 ~J.. _ __~m___.._',,___.__._.__...__....__..__ EXHmlT "A" CERTIFICATE OF ELECTION OFFICIAL AND STATEMENT OF VOTES CAST STATE OF CALIFORNIA ) COUNTY OF SAN DIEGO ) ss, CITY OF CHULA VISTA ) The undersigned ELECTION OFFICIAL OF THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, does hereby certify that pursuant to the provisions of Section 53326 of the Government Code and Division 12, commencing with Section 17000 of the Elections Code of the State of California, I did canvass the returns of the votes cast at the CITY OF CHULA VISTA COMMUNITY FACILITIES DISTRICT NO, 97-1 (Open Space Maintenance District [Otay Ranch SPA One, Villages 1 & 5]) SPECIAL ELECTION in said City, held September 22, 1998. I FURTHER CERTIFY that this Statement of Votes Cast shows the whole number of votes cast in said District in said City, and the whole number of votes cast for the Measures in said District in said City, and the totals of the respective columns and the totals as shown for the Measures are full, true and correct. I. TOTAL NUMBER OF VOTES CAST: L 0\' II. VOTES CAST ON PROPOSITION A: YES 1,0\\ NO III. VOTES CAST ON PROPOSITION B: YES 1,0 \ \ NO WITNESS my hand and Official Seal this ~ day of ~, 1998. ~Q.~ ELECTIO OFFICIAL CITY OF CHULA VISTA STATE OF CALIFORNIA A-I /0(/'9 ':3 ORDINANCE NO. ~?-5Þ ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA, CALIFORNIA, ACTING IN ITS CAPACITY AS THE LEGISLATIVE BODY OF COMMUNITY FACILITIES DISTRICT NO. 97-1 (OPEN SPACE MAINTENANCE DISTRICT [OTAY RANCH - SPA ONE, VILLAGES 1 & 5]), AUTHORIZING THE LEVY OF A SPECIAL TAX IN SUCH COMMUNITY FACILITIES DISTRICT WHEREAS, the CITY COUNCIL of the CITY OF CHULA VISTA, CALIFORNIA (the "Legislative Body"), has initiated proceedings, held a public hearing, conducted an election and received a favorable vote from the qualified electors relating to the levy of a special tax in a community facilities district, all as authorized pursuant to the terms and provisions of the "Mello-Roos Community Facilities Act of 1982", being Chapter 2.5, Part 1. Division 2, Title 5 of the Government Code of the State of California (the" Act"). This Community Facilities District is designated as COMMUNITY FACILITIES DISTRICT NO. 97-1 (OPEN SPACE MAINTENANCE DISTRICT [OTAY RANCH - SPA ONE, VILLAGES I & 5]) (the "District"). BE IT ORDAINED AS FOLLOWS: SECTION 1. The above recitals are all true and correct. SECTION 2. This Legislative Body does, by the passage of this ordinance, authorize the levy of special taxes at the rate and formula as set forth in Exhibit" A" attached hereto (the "Special Tax Formula"), referenced and so incorporated. SECTION 3. This Legislative Body is hereby further authorized, by Resolution, to determine the specific special tax rate and amount to be levied for the then current tax year or future tax years, except that the special tax rate to be levied shall not exceed the maximum special tax rate as authorized pursuant to the Special Tax Formula, but the special tax may be levied at a lower rate. SECTION 4. The proceeds of the above authorized and levied special tax may only be used to as authorized by the Special Tax Formula. The proceeds of the special tax shall be levied only so long as needed for its purpose, and shall not be used for any other purpose. SECTION 5, The above authorized special tax shall be collected in the same manner as ordinary ad valorem taxes are collected and shall be subject to the same penalties and the same procedure, sale and lien priority in case of delinquency as is provided for ad valorem taxes; however, as applicable, this legislative body may, by resolution, establish and adopt an alternate or supplemental procedure as necessary . SECTION 6. The above authorized special tax shall be secured by the lien imposed pursuant to Sections 3114.5 and 3115.5 of the Streets and Highways Code of the State of California, which lien shall be a continuing lien and shall secure each levy of the special tax. The lien of the special tax shall continue in force and effect until the special tax obligation is prepaid, permanently satisfied and canceled in 1 /2ß,j ......._-_.,---,...........~_.......__.- ....~.- accordance with Section 53344 of the Government Code of the State of California or until the special tax ceases to be levied by the legislative body of the local Agency in the manner provided in Section 53330.5 of said Government Code. SECTION 7. This Ordinance and special tax shall be applicable for the referenced District, as well as any future annexations. SECTION 8. This Ordinance shall be effective thirty (30) days after its adoption. Within fifteen (15) days after its adoption, the City Clerk shall cause this Ordinance to be published in a newspaper of general circulation in the City pursuant to the provisions of Government Code Section 36933. INTRODUCED AND FIRST READ at a regular meeting of the City Council of the City of Chula Vista, California, on ,1998; AND THEREAFTER ADOPTED at a regular meeting of the City Council of the City of Chula Vista, California, held on the day of , 1998, by the following vote: AYES: NOES: ABSTAIN: ABSENT: Presented by Approved as to form by John p, Lippitt, Director of 0--~~ John M, Kaheny, City Attorney Public Works 2 )2ß-2 ,.wu_...._ _....~'"". -' A" Commùnity Facility District No, 97-1 ~~IÄ.Mn- Special Tax Report July 1,1998 Page 6 Part IV - Rate and Method of Apportionment of Special Taxes ANNUAL TAX . , A Special Tax shall be levied annually on land within Community Facilities District No, 97-1 f; (Open Space Maintenance District) of the City of Chula Vista (the "District"), and collected " according to the Special Tax Liability determined by the City of Chula Vista (the "City") through the application of the following procedures, All of the property within the District, unless ot~eJwisè exempted by law or the express provisions of the rate and method of apportionment expressed below, shall be taxed to the extent and in the manner provided below, All Parcels within the District are assigned to Special Tax Area A In addition, certain Parcels are also assigned to Special Tax Area B based upon their location, A map of the Special Tax Areas is included as Exhibit B, The Special Tax which shall be levied upon each Parcel shall be the aggregate sum of the Special Tax for each Special Tax Area within which the Parcel is located, All Special Taxes applicable to Parcels shall be collected in the same manner and at the same time as ordinary ad valorem property taxes, and the Special Taxes so levied will be subject to the same penalties and proc5!dures, sale and lien priority in case of delinquency as is provided for ad valorem taxes, - DEFINITIONS - Acre or Acreage means the area of a Parcel as shown on the latest maps of the Assessor of the County of San Diego, or, if the area of such Parcel is not shown on such Assessor's maps. the area as shown on a current recorded subdivision map. parcel map, record of surveyor other recorded document creating or describing the Parcel. If the preceding maps are nO! available, the area shall be determined by the City Engineer. Administrative Expenses means the direct and indirect expenses incurred by the City in carrying out its duties with respect to the District (including, but not limited to, the levy and collection of the Special Taxes) including the fees and expenses of its counsel. Any fees of the County related to the District or the collection of Special Taxes, an allocable share of the salaries of City staff directly related thereto, any amounts paid by the City from its general fund with respect to the District, and expenses incurred by the City in undertaking actions to foreclose on properties for which the payment of Special Taxes is delinquent, and all other costs and expenses of the City related to the District Building Square Foot or Square Footage means the square footage as shown on the Parcel's building permit(s), excluding garages or other structures not used as living space, City means the City of Chula Vista. - J.2ß ~;3 M:I$projecUchulavista/97·1 rpt.doc ~ ~ , . " " , - --.---:::.--../1/: / ......, ! -', , t o C. 0) c::: x ro I- ro '(3 0) c. en ~ \ \\ \.\ \;\ 'j . - Ii ~ ~\ ~~ ~ I J'I! , i' f=' ~i~ ' CT>u .0::: Of-o ZVJ", _ w 00 f- z Uwva¡ o:::u~ U1t-ZO~ CD ~(j')<:(~~ ~ 0 z ze ..... w:J:J t- ~ 1--8j CD ~VJz - -J W _ ~~ I ~t-<:(V) X ~ --.J ~ >~ W 3;- <C(~ Uw 3111 «u'" LL. u «~ (LO >-VJ> f- ~ - ¡¡ Zz :::Jw ~(L ::?;2, _~_ o U ~ , I'- > (J) :! . , " o 2 ~ !1'; Z _ :: ~ ~~,.. ,.. d:5 Õ ~~ã~~~ ï:: ~ a~ ~ : ~ - ~ ~~. Ii ;, s VJ :E.... .. ~... ...!.! III ... ........ ... ...... o ;S z:;; Z .... Q '" ~ >. ~~õ~:Zf _" ~ 1~ '~ I n ~ ~ t . II .. u.'CX) , .. ~ . ~(J) I U ~ =1 .- (J) e. c ~ ",1 ~ I'- '/ ,I ê~~ J.2ß~ ~~ o-ro ~ u~c.. '-Q Community Facility District No. 97-1 July 1,1998 Page 8 Developed Parcel means Taxable Property for which a foundation building permit or other form of building permit has been issued as of March 1 of the preceding Fiscal Year. District ,means the Open Space Maintenance District - SPA One (Villages 1 & 5) of the Community Facilities District No. 97-1 of the City of Chula Vista Facilities means those improvements defined in Part II of the Special Tax Report dated July~ 1, Ü¡98 for Community Facilities District No, 97-1 of the City of Chula Vista, Fiscal Year means the period starting on July 1 and ending the following June 3D, Maximum Special Tax means the maximum special tax that can be levied within CFD No, 97-1 by the City Council in any Fiscal Year for each Parcel of Taxable Property. Non-Residential Uses shall include all Developed Parcels which are not zoned for Residential Uses including commercial. industrial. and community public facility (CPF) uses, Operating Fund means a fund that shall be maintained for each Special Tax Area within the District for any Fiscal Year to pay for the actual costs of maintenance, repair, and replacement of the Facilities, and the Administrative Expenses Operating Fund Balance means the amount of funds in the Operating Fund at the end of the preceding Fiscal Year Operating Fund Requirement means for any Fiscal Year an amount for each Special Tax Area equal to the budgeted costs of the maintenance. repair and replacement of the Facilities which have been accepted and maintained by the District or are reasonably expected to be accepted and maintained by the District during the current Fiscal Year plus the budgeted Administrative Expenses of the District for the current Fiscal Year in which Special Taxes are levied, Parcel means any San Diego County Assessor's Parcel or portion thereof that is within the boundaries of the District designated on a map of the San Diego County Assessor and which has been assigned a discrete identifying number on the equalized tax rolls of the County. Reserve Fund means a fund that shall be maintained for each Special Tax Area to provide necessary cash flow for operations and maintenance for the first six months of - each Fiscal Year, working capital to cover maintenance and repair cost overruns and delinquencies that may arise in connection with the collection of Special Taxes and a reasonable buffer against large variations in annual special tax amounts. - M:/$projecUchulavistaJ97.' rpt.doc /2g~ ,""--" Community Facility District No 97-1 July 1. 1998 Page 9 Reserve Fund Balance means the amount of funds in the Reserve Fund at the end of t' the preceding Fiscal YeaL L Reserve Fund Requirement means the required balance in the Reserve Fund equal to t: up to 100% of the Operating Fund Requirement. Residential Uses shall include those residential uses as permitted in the City zoning r~ ordinance, , - Special Tax means the special tax or special taxes actually levied within CFD No 97- 1. Special Tax Area means one of the two specific areas comprising specific Parcels as shown in Exhibit B of the Special Tax Report dated July 1, 1998 for Community Facilities District No. 97-1 of the City of Chula Vista, Special Tax Liability for any Fiscal Year is an amount determined for each Special Tax Area sufficient to pay the costs of the District, including: (i) the amount required to be deposited into the Operating Fund to meet the Operating Fund Requirement, less the Operating Fund Balance, and (ii) the total amount required to be deposited into the ~ Reserve Fund if any, to meet the Reserve Fund Requirement. less the Reserve Fund Balance, - Taxable Property is all real property or Parcels within the boundaries of the District which are not exempt from the Special Tax pursuant to law. or which are not classified or assigned to the Exempt Category as defined herein .- Cateqories of Special Taxes Residential Category: The residential category includes each Developed Parcel within the District which is zoned for Residential Uses by the City ("Residential Category"), . The Maximum Special Tax that may be levied within Special Tax Area A for Fiscal Year 1998/99 on each Developed Parcel assigned to the Residential Category shall be $0,0844 per Building Square Foot. . The Maximum Special Tax that may be levied within Special Tax Area B for the Fiscal Year 1998/1999 on each Developed Parcel assigned to the Residential Category shall be $0.1977 per Building Square Foot. Said Maximum Special Tax Rates shall be increased or decreased each Fiscal Year thereafter by a factor which shall be the lesser of the annual percentage change in the January to January San Diego Metropolitan Area ~I Urban Consumer Price Index (All Ie:< ß'- M:J$proecUchulavista/97.1 rpt.doc Community Facility District No. 97-1 July 1, 1998 Page 10 Items) or the annual percentage change in the estimated California Fourth Quarter Per Capita Personal Income as contained in the Governor's budget published every January. Non-Residential Category , , . The non-re¡sidential category includes all Developed Parcels in the District which are not z~n~~ by the City for Residential Uses ("Non-Residential Category") . -The Maximum Special Tax that may be levied within Special Tax Area A for the Fiscal Year 1998/99 on each Developed Parcel assigned to the Non-Residential Category shall be $1,143 per Acre (said amount to be levied pro rata for any portion of an Acre) . The Maximum Special Tax that may be levied within Special Tax Area B for the Fiscal Year 1998/99 on each Developed Parcel assigned to the Non-Residential Category shall be $2,538 per Acre (said amount to be levied pro rata for any portion of an Acre), Said Maximum Special Tax rates shall be increased or decreased each Fiscal Year .- thereafter by a factor which shall be the lesser of the annual percentage change in the January to January San Diego Metropolitan Area All Urban Consumer Price Index (All Items) or the annual percentage change in the estimated California Fourth Quarter Per - Capita Personal Income as contained in the Governor's budget published every January. Exempt Category The exempt category includes each property owned by, conveyed or irrevocably offered for dedication to a public agency. land which is in the public right-of-way, unmanned utility easements which make utilization for other than the purpose set forth in the easement impractical, common areas, private streets and parks, and open space lots ("Exempt Category"). Vacant Land Category The vacant land category includes each Parcel of Taxable Property assigned to the District not subject to a Special Tax under any other category described above ("Vacant Land Category') The Maximum Special Tax which may be levied on each Parcel within the Vacant Land Category for Fiscal Year 1998/99 shall be the rates set forth in Table 1 below (said amount to be levied pro rata for any portion of an Acre), Said Maximum Special Tax shall be increased or decreased each Fiscal Year thereafter by a factor which shall be the lesser of the annual percentage change in the January to January San Diego MJ$projecUchulavislal97 -1 rptdoc / :L ß ---1 ' - Community Facility District No, 97-1 July 1,1998 Page 11 Metropolitan Area All Urban Consumer Price Index (All Items) or the annual percentage change in the estimated California Fourth Quarter Per Capita Personal Income as contained in the Governor's budget published every January, TABLE 1 Vacant Land Category . Maximum Special Tax Rate per Acre Maximum Special Tax Area Special Tax Rate Special Tax Area A $1.293/Acre Special Tax Area B $2.870/Acre Assiqnment to Cateqories of Special Taxes On or about July 1 of each year (but in any event in sufficient time to include the levy of the Special Taxes on the County's secured tax roll) the City shall assign each Parcel within the District to the Residential Category, Non-Residential Category, Exempt Category, or Vacant Land Category. Parcels subject to levy shall be determined based upon the records of the San Diego County Assessor. Levy and Apportionment of Special Taxes The City shall determine the Special Tax Liability of each Special Tax Area in each Fiscal Year on or about every July 1 (but in any event in sufficient time to include the levy of the Special Taxes on the County's secured tax roll), Special Taxes shall then be levied on each Parcel assigned to the Residential Category. Non-Residential Category, and Vacant Land Category within each Special Tax Area in the following order of priority: Step 1: Determine the maximum revenue which could be generated in each Special Tax Area by multiplying the total Building Square Footage of all Developed Parcels assigned to the Residential Category in each Special Tax Area by the Maximum Special Tax per Building Square Foot and adding to that the maximum Special Tax revenue which could be generated by multiplying the total Acreage of all Developed Parcels assigned to the Non-Residential Category in each Special Tax Area by the Maximum Special Tax per Acre. Step 2: If the total Special Tax revenue as calculated in Step 1 for the Special Tax Area is greater than the Special Tax Liability of such Special Tax Area, reduce the Special Tax for each Parcel proportionately so that the Special Tax levy for the Fiscal Year is equal to the Special Tax Liability for the Fiscal Year. ).2ß-r - M:/SprojecUchulavista/97.1 rpt.doc Community Facility District No. 97-1 July 1, 1998 Page 12 Step 3: If the total Special Tax revenue as calculated in Step 1 is less than the Special Tax Liability of such Special Tax Area, a Special Tax shall be levied upon each Parcel assigned to the Vacant Land Category, The Special Tax for the Vacant - Land Category shall be calculated as the lessor of: n (i) The Special Tax Liability for each Special Tax Area, less the total of funds 13 . generated for all Parcels within that Special Tax Area under Step 1 above, - divided by the total Acres for all Parcels assigned to the "Vacant Land Category" within that Special Tax Area. OR, (ii) the Maximum Special Tax rate for Parcels within that Special Tax Area. However, in the event it is determined that the Special Tax Liability for Special Tax Area A includes delinquent Special Taxes from Parcels in the Vacant Land Category from the prior Fiscal Year, the City shall determine the amount of such delinquent Special Taxes that arose from such Parcels and identify the owner(s). The amount of delinquent Special Taxes, if any, that arose from each owner shall first be divided by the total Acres owned by such owner(s), - and collected from the respective owner with the remaining portion of the Special Tax Liability not related to delinquent Special Taxes to be collected from Parcels in the Vacant Land Category according to the procedure set forth - in the preceding paragraph. Step 4: The total Special Tax for each Parcel shall be the sum of the Special Taxes for ,- each Special Tax Area in which a Parcel is located. )23--- / M:I$projecUchulavista/97-1 rpt.doc . - ----- .ß' )c/ " f\" ,. '-.~ _"J ,'/ Community Facility District No. 97-1 ~-Þ\.~'¡\ Special Tax Report July 1,1998 Page 6 Part IV - Rate and Method of Apportionment of Special Taxes ANNUAL TAX A Special Tax shall be levied annually on land within Community Facilities District No. 97-1 (Open Space Maintenance District) of the City of Chula Vista (the "District"), and collected according to the Special Tax Liability determined by the City of Chula Vista (the "City") through the app'lication of the following procedures, All of the property within the District, unless ot~erwise exempted by law or the express provisions of the rate and method of apportionment expressed below, shall be taxed to the extent and in the manner provided below, All Parcels within the District are assigned to Special Tax Area A. In addition, certain Parcels are also assigned to Special Tax Area B based upon their location. A map of the Special Tax Areas is included as Exhibit B, The Special Tax which shall be levied upon each Parcel shall be the aggregate sum of the Special Tax for each Special Tax Area within which the Parcel is located. All Special Taxes applicable to Parcels shall be collected in the same manner and at the same time as ordinary ad valorem property taxes, and the Special Taxes so levied will be subject to the same penalties and proc~dures, sale and lien priority in case of delinquency as is provided for ad valorem taxes, DEFINITIONS Acre or Acreage means the area of a Parcel as shown on the latest maps of the Assessor of the County of San Diego, or, if the area of such Parcel is not shown on such Assessor's maps, the area as shown on a current recorded subdivision map. parcel map, record of surveyor other recorded document creating or describing the Parcel. If the preceding maps are not available, the area shall be determined by the City Engineer. Administrative Expenses means the direct and indirect expenses incurred by the City in carrying out its duties with respect to the District (including, but not limited to, the levy and collection of the Special Taxes) including the fees and expenses of its counsel. Any fees of the County related to the District or the collection of Special Taxes, an allocable share of the salaries of City staff directly related thereto, any amounts paid by the City from its general fund with respect to the District, and expenses incurred by the City in undertaking actions to foreclose on properties for which the payment of Special Taxes is delinquent, and all other costs and expenses of the City related to the District Building Square Foot or Square Footage means the square footage as shown on the Parcel's building permit(s), excluding garages or other structures not used as living space. City means the City of Chula Vista M:lSprojecUchulavista/97-1 rpt.doc ____ _.._...~__~____~_~_._M_ t:: o · Co . > · ' ' "' " . X " ' · ¡ 1 · >- ' , . , , · ' .,,-' ' · - o ' '^ . "' ! ¡ I I ~ I ,,~ ml- U .0,: 01- 2(/)8 _w 1-00 u z _w" o,:UV> v>I-Z~ (I) ~U1 o~ et:: _<C >-0:::: r- <coz~o _ x w::>:J CD ~(/)1-8< _ .....wZ.u :r: <_-<L.- X ül-<!t;;O w ~ --.J ~ >~ v>- .. Uw:)t;; «uª u..«u >-a...~ I-(/)'" - >- ZZu ='W ::::;;0.. ::::;;0 0'-' U ~ ,. , r-- 0) Ó ' .i z . - . ~ i -= Ii ~ > !I) . < · < ._ u z , . o ã is ~ d ~ >- õ ~~ ð ~" _ ~ ~ o~ § . u := z ~~. Ii "~ o · <!i . ~ ~ ro z u' u . 0 ~m iii' II I :;'0) 'ë ~ In :J . .. E.-'';; i"~ I ;¡¡ E"o u. ., oJ. .. '.ho !I 'II e ; ; ~~ ,t! a3 -. ~-- CommLinity Facility District No 97-1 July 1,1998 Page 8 Developed Parcel means Taxable Property for which a foundation building permit or other form of building permit has been issued as of March 1 of the preceding Fiscal Year. District,means the Open Space Maintenance District - SPA One (Villages 1& 5) of the Community Facilities District No. 97-1 of the City of Chula Vista Faciliti~s means those improvements defined in Part II of the Special Tax Report dated July 1, 1998 for Community Facilities District No, 97-1 of the City of Chula Vista Fiscal Year means the period starting on July 1 and ending the following June 30. Maximum Special Tax means the maximum special tax that can be levied within CFD No. 97-1 by the City Council in any Fiscal Year for each Parcel of Taxable Property. Non-Residential Uses shall include all Developed Parcels which are not zoned for Residential Uses including commercial, industrial, and community public facility (CPF) uses, Operating Fund means a fund that shall be maintained for each Special Tax Area within the District for any Fiscal Year to pay for the actual costs of maintenance, repair, and replacement of the Facilities, and the Administrative Expenses. Operating Fund Balance means the amount of funds in the Operating Fund at the end of the preceding Fiscal Year. Operating Fund Requirement means for any Fiscal Year an amount for each Special Tax Area equal to the budgeted costs of the maintenance. repair and replacement of the Facilities which have been accepted and maintained by the District or are reasonably expected to be accepted and maintained by the District during the current Fiscal Year plus the budgeted Administrative Expenses of the District for the current Fiscal Year in which Special Taxes are levied Parcel means any San Diego County Assessor's Parcel or portion thereof that is within the boundaries of the District designated on a map of the San Diego County Assessor and which has been assigned a discrete identifying number on the equalized tax rolls of the County, Reserve Fund means a fund that shall be maintained for each Special Tax Area to provide necessary cash flow for operations and maintenance for the first six months of each Fiscal Year, working capital to cover maintenance and repair cost overruns and delinquencies that may arise in connection with the collection of Special Taxes and a reasonable buffer against large variations in annual special tax amounts M:l$projecUchulavlsta/97-1 rpt.doc Community Facility District No. 97-1 July 1. 1998 Page 9 Reserve Fund Balance means the amount of funds in the Reserve Fund at the end of the preceding Fiscal Year. Reserve Fund Requirement means the required balance in the Reserve Fund equal to up to 100% of the Operating Fund Requirement. Residential Uses shall include those residential uses as permitted in the City zoning ordinance, Special Tax means the special tax or special taxes actually levied within CFD No. 97- 1. Special Tax Area means one of the two specific areas comprising specific Parcels as shown in Exhibit B of the Special Tax Report dated July 1, 1998 for Community Facilities District No. 97-1 of the City of Chula Vista, Special Tax Liability for any Fiscal Year is an amount determined for each Special Tax Area sufficient to pay the costs of the District, including: (i) the amount required to be deposited into the Operating Fund to meet the Operating Fund Requirement, less the Operating Fund Balance, and (ii) the total amount required to be deposited into the Reserve Fund if any, to meet the Reserve Fund Requirement, less the Reserve Fund Balance. Taxable Property is all real property or Parcels within the boundaries of the District which are not exempt from the Special Tax pursuant to law, or which are not classified or assigned to the Exempt Category as defined herein Cateqories of Special Taxes Residential Category: The residential category includes each Developed Parcel within the District which is zoned for Residential Uses by the City ("Residential Category') . The Maximum Special Tax that may be levied within Special Tax Area A for Fiscal Year 1998/99 on each Developed Parcel assigned to the Residential Category shall be $0,0844 per Building Square Foot. . The Maximum Special Tax that may be levied within Special Tax Area B for the Fiscal Year 1998/1999 on each Developed Parcel assigned to the Residential Category shall be $0.1977 per Building Square Foot. Said Maximum Special Tax Rates shall be increased or decreased each Fiscal Year thereafter by a factor which shall be the lesser of the annual percentage change in the January to January San Diego Metropolitan Area All Urban Consumer Price Index (All MJ$projecUchulavista/97 -1 rpt ,doc _ __.__.._._. ___ __..>--.____._ ..u.__ Community Facility District No, 97-1 July 1,1998 Page 10 -- Items) or the annual percentage change in the estimated California Fourth Quarter Per Capita Personal Income as contained in the Governor's budget published every - January. Non-Residential Category -- . The non-rEJsidential category includes all Developed Parcels in the District which are - not zC?n~d by the City for Residential Uses ("Non-Residential Category"). . -The Maximum Special Tax that may be levied within Special Tax Area A for the - Fiscal Year 1998/99 on each Developed Parcel assigned to the Non-Residential Category shall be $1,143 per Acre (said amount to be levied pro rata for any portion of an Acre) - . The Maximum Special Tax that may be levied within Special Tax Area B for the Fiscal Year 1998/99 on each Developed Parcel assigned to the Non-Residential - Category shall be $2,538 per Acre (said amount to be levied pro rata for any portion of an Acre), - Said Maximum Special Tax rates shall be increased or decreased each Fiscal Year thereafter by a factor which shall be the lesser of the annual percentage change in the January to January San Diego Metropolitan Area All Urban Consumer Price Index (All - Items) or the annual percentage change in the estimated California Fourth Quarter Per Capita Personal Income as contained in the Governor's budget published every January. - . Exempt Category - The exempt category includes each property owned by, conveyed or irrevocably offered for dedication to a public agency, land which is in the public right-of-way, - unmanned utility easements which make utilization for other than the purpose set forth in the easement impractical, common areas, private streets and parks, and open space lots ("Exempt Category"), -- Vacant land Category - The vacant land category includes each Parcel of Taxable Property assigned to the District not subject to a Special Tax under any other category described above ("Vacant Land Category"). - The Maximum Special Tax which may be levied on each Parcel within the Vacant Land Category for Fiscal Year 1998/99 shall be the rates set forth in Table 1 below (said - amount to be levied pro rata for any portion of an Acre). Said Maximum Special Tax shall be increased or decreased each Fiscal Year thereafter by a factor which shall be the lesser of the annual percentage change in the January to January San Diego - M:/$projectlchulavista/97 -1 rpt.doc - Community Facility District No, 97-1 July 1,1998 Page 11 Metropolitan Area All Urban Consumer Price Index (All Items) or the annual percentage change in the estimated California Fourth Quarter Per Capita Personal Income as contained in the Governor's budget published every January, TABLE 1 Vacant Land Category . Maximum Special Tax Rate per Acre Maximum Special Tax Area Special Tax Rate Special Tax Area A $1,293 ¡Acre Special Tax Area B $2,870 ¡Acre Assiqnment to Cateqories of Special Taxes On or about July 1 of each year (but in any event in sufficient time to include the levy of the Special Taxes on the County's secured tax roll) the City shall assign each Parcel within the District to the Residential Category, Non-Residential Category, Exempt Category, or Vacant Land Category. Parcels subject to levy shall be determined based upon the records of the San Diego County Assessor. Levv and Apportionment of Special Taxes The City shall determine the Special Tax Liability of each Special Tax Area in each Fiscal Year on or about every July 1 (but in any event in sufficient time to include the levy of the Special Taxes on the County's secured tax roll). Special Taxes shall then be levied on each Parcel assigned to the Residential Category, Non-Residential Category, and Vacant Land Category within each Special Tax Area in the following order of priority Step 1: Determine the maximum revenue which could be generated in each Special Tax Area by multiplying the total Building Square Footage of all Developed Parcels assigned to the Residential Category in each Special Tax Area by the Maximum Special Tax per Building Square Foot and adding to that the maximum Special Tax revenue which could be generated by multiplying the total Acreage of all Developed Parcels assigned to the Non-Residential Category in each Special Tax Area by the Maximum Special Tax per Acre. Step 2: If the total Special Tax revenue as calculated in Step 1 for the Special Tax Area is greater than the Special Tax Liability of such Special Tax Area, reduce the Special Tax for each Parcel proportionately so that the Special Tax levy for the Fiscal Year is equal to the Special Tax Liability for the Fiscal Year. M:/SprojecUchulavista/97 -1 rpt.doc --1 ..-,---- - ---_._----~,-~.....< Community Facility District No, 97-1 July 1,1998 Page 12 Step 3: If the total Special Tax revenue as calculated in Step 1 is less than the Special Tax Liability of such Special Tax Area, a Special Tax shall be levied upon each Parcel assigned to the Vacant Land Category. The Special Tax for the Vacant Land Category shall be calculated as the lessor of: (i) The Special Tax Liability for each Special Tax Area, less the total of funds , generated for all Parcels within that Special Tax Area under Step 1 above, divided by the total Acres for all Parcels assigned to the "Vacant Land - Category" within that Special Tax Area. OR, (ii) the Maximum Special Tax rate for Parcels within that Special Tax Area, However, in the event it is determined that the Special Tax Liability for Special Tax Area A includes delinquent Special Taxes from Parcels in the Vacant Land Category from the prior Fiscal Year, the City shall determine the amount of such delinquent Special Taxes that arose from such Parcels and identify the owner(s), The amount of delinquent Special Taxes, if any, that arose from each owner shall first be divided by the total Acres owned by such owner(s), and collected from the respective owner with the remaining portion of the Special Tax Liability not related to delinquent Special Taxes to be collected from Parcels in the Vacant Land Category according to the procedure set forth in the preceding paragraph. Step 4: The total Special Tax for each Parcel shall be the sum of the Special Taxes for each Special Tax Area in which a Parcel is located. M:/$projecUchulavista/97·' rpt.doc COUNCIL AGENDA STATEMENT Item /'3 Meeting Date 10/6/98 ITEM TITLE: A. Resolution J 9 J '1/ of the City Council of the City of Chula Vista, California, acting in its capacity as the legislative body of Community Facilities District No. 97-2 (Preserve Maintenance District) declaring the results of a special election in such Community Facilities District. B. Ordinance ;( 7~~ of the City Council of the City of Chula Vista, California, acting in its capacity as the legislative body of Community Facilities District No. 97-2 (Preserve Maintenance District) authorizing the levy of a special tax in such Community Facilities District SUBMITTED BY: Director of Public Works ~ REVIEWED BY, Ci" M="" 1)," :a ~ (41"'" Vol" Y~--"o.xJ On September 15, 1998, the City Council held pUbli;:earing for the formation of Community Facilities District No. 97-2. This district will fund the perpetual operation and maintenance of the Otay Ranch Preserve. Tonight's Council action will certify the results of a special election where the qualified electors of the District were asked whether the levy of this special tax should be authorized and direct staff to begin the process of determining the collectible amount for Fiscal Year 1998/1999. RECOMMENDATION: That Council: I) Approve the resolution declaring the election results for CFD No. 97-2, and 2) Introduce for fust reading of the ordinance authorizing the levy of a special tax in Community Facilities District No. 97-2. BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. DISCUSSION: At the Council Meeting of September 15, 1998, the City Council held the public hearing for the fonnation of Community Facility District No. 97-2. This public hearing was held pursuant to the provisions of the "Mello-Roos Community Facilities Act of 1982". The City Council also approved the resolutions establishing CFD No. 97-2, and authorized the submittal of the tax levy to the qualified electors. Election Results On September 22, 1998 the special election was held at the City Clerk's office. In accordance with the Mello-Roos Act, since no registered voters were identified by the Registrar of Voters within the CFD, the election was held by the property owners. Each property owner having one vote for each acre or portion of an acre that he or she owns within the CFD. Staff has tallied the ballots cast in this special election with the results showing 98.4 % of the votes cast in favor of levying the proposed special tax. The Mello- Roos Act provides that if two thirds (2/3) of the votes are in favor, the City Council may proceed to levy the special tax. /:J-j Page 2, Item_ Meeting Date 10/6/98 Resolution and Ordinance There is a resolution and ordinance in tonight's agenda which, if adopted, will accomplish the following: The "Resolution Declaring the Election Results" is the formal action of the City Council approving the results of the election to form CFD No 97-2. The "Ordinance Authorizing the Levy of Special Taxes" is the formal action authorizing the levy of special taxes as set forth in the Special Tax Formula previously approved by the City CounciL Future Actions . Staff will be returning with a report on the amount of the special tax to be levied for Fiscal Year 1998/1999 and will ask the City Council to adopt a resolution setting the special tax for Fiscal Year 1998/1999. FISCAL IMPACT: All costs of formation of the district are being borne by the developers and the on-going administration will be funded entirely by the district. There is no impact to the General Fund The City will receive the benefit of full cost recovery for staff cost involved in district formation and district administration in perpetuity. 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Q. /3-1/ RESOLUTION NO. /7'/9/ 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. 97-2 (pRESERVE MAINTENANCE DISTRICT) DECLARING THE RESULTS OF A SPECIAL ELECTION IN SUCH COMMUNITY FACILITIES DISTRICT WHEREAS, the CITY COUNCIL of the CITY OF CHULA VISTA, CALIFORNIA (the "Legislative Body"), has previously declared its intention and held and conducted proceedings relating to the levy of special taxes in a community facilities district, 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"), said Community Facilities District designated as COMMUNITY FACILmES DISTRICT NO. 97-2 (pRESERVE MAINTENANCE DISTRICT) (the "District"); and, WHEREAS, this Legislative Body did call for and order to be held an election to submit to the qualified electors of the District a proposition relating to the levy of special taxes and the establishment of an appropriations limit for such community facilities district; and, WHEREAS, at this time said election has been held and the measures voted upon and each such measure did receive the favorable 2/3' s vote of the qualified electors, and this legislative body does desire to declare the favorable results of the election in accordance with the provisions of the Elections Code of the State of California. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF CHULA VISTA, CALIFORNIA, ACTING AS THE LEGISLATIVE BODY OF COMMUNITY FACILITIES DISTRICT NO. 97-2 (pRESERVE MAINTENANCE DISTRICT), AS FOLLOWS: SECTION 1. The above recitals are all true and correct. SECTION 2. This legislative body hereby receives and approves the CERTIFICATE OF ELECTION OFFICIAL AND STATEMENT OF VOTES CAST, as submitted by the City Clerk, acting in her capacity as the Election official, said Statement setting forth the number of votes cast in the election, the measures voted upon, and the number of votes given for and/or against the measures voted upon. A copy of said Certificate and Statement is attached hereto, marked Exhibit "A", referenced and so incorporated. 1 / :]/J 'l SECTION 3. The City Clerk is hereby directed, pursuant to the provisions of the Elections Code of the State of California, to enter in the minutes the results of the election as set forth in said STATEMENT OF VOTES CAST, PREPARED BY: APPROVED AS TO FORM BY: C>v-~~~~ John P. Lippitt " John Kaheny Director of Public Works City Attorney 2 ):JA-,2 '''"-"-_._-'-'-''-'---"'~ EXHIBIT "A" CERTIFICATE OF ELECTION OFFICIAL AND STATEMENT OF VOTES CAST STATE OF CALIFORNIA ) COUNTY OF SAN DIEGO ) ss. CITY OF CHULA VISTA ) The undersigned ELECTION OFFICIAL OF THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, does hereby certify that pursuant to the provisions of Section 53326 of the Government Code and Division 12, commencing with Section 17000 of the Elections Code of the State of California, I did canvass the returns of the votes cast at the CITY OF CHULA VISTA COMMUNITY FACILITIES DISTRICT NO, 97-2 (Preserve Maintenance District) SPECIAL ELECTION in said City, held September 22, 1998. I FURTHER CERTIFY that this Statement of Votes Cast shows the whole number of votes cast in said District in said City, and the whole number of votes cast for the Measures in said District in said City, and the totals of the respective columns and the totals as shown for the Measures are full, true and correct. I. TOTAL NUMBER OF VOTES CAST: ·s,DB<B II. VOTES CAST ON PROPOSITION A: YES '<,ofS'B NO m. VOTES CAST ON PROPOSITION B: YES ),üf?,ß NO WITNESS my hand and Official Seal this ~ day 0 , 1998. ~Q.~ ELECTION FFICIAL CITY OF CHULA VISTA STATE OF CALIFORNIA A-I ).3/7 ---3 ORDINANCE NO. J. ?sÞ ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA, CALIFORNIA, ACTING IN ITS CAPACITY AS THE LEGISLATIVE BODY OF COMMUNITY FACll..ITIES DISTRICT NO. 97-2 (pRESERVE MAINTENANCE DISTRICT), AUTHORIZING THE LEVY OF A SPECIAL TAX IN SUCH COMMUNITY FACll..ITIES DISTRICT WHEREAS, the CITY COUNCll.. of the CITY OF CHULA VISTA, CALIFORNIA (the "Legislative Body"), has initiated proceedings, held a public hearing, conducted an election and received a favorable vote from the qualified electors relating to the levy of a special tax in a community facilities district, all as authorized pursuant to the terms and provisions of the "Mello-Roos Community Facilities Act of 1982", being Chapter 2.5, Part 1. Division 2, Title 5 of the Government Code of the State of California (the" Act"). This Community Facilities District is designated as COMMUNITY FACll..ITIES DISTRICT NO. 97-2 (pRESERVE MAINTENANCE DISTRICT) (the "District"). BE IT ORDAINED AS FOLLOWS: SECTION 1. The above recitals are all true and correct. SECTION 2. This Legislative Body does, by the passage of this ordinance, authorize the levy of special taxes at the rate and formula as set forth in Exhibit" A" attached hereto (the "Special Tax Formula"), referenced and so incorporated. SECTION 3. This Legislative Body is hereby further authorized, by Resolution, to determine the specific special tax rate and amount to be levied for the then current tax year or future tax years, except that the special tax rate to be levied shall not exceed the maximum special tax rate as authorized pursuant to the Special Tax Formula, but the special tax may be levied at a lower rate. SECTION 4. The proceeds of the above authorized and levied special tax may only be used to as authorized by the Special Tax Formula, The proceeds of the special tax shall be levied only so long as needed for its purpose, and shall not be used for any other purpose. SECTION 5. The above authorized special tax shall be collected in the same manner as ordinary ad valorem taxes are collected and shall be subject to the same penalties and the same procedure, sale and lien priority in case of delinquency as is provided for ad valorem taxes; however, as applicable, this legislative body may, by resolution, establish and adopt an alternate or supplemental procedure as necessary . S.ECTION 6. The above authorized special tax shall be secured by the lien imposed pursuant to Sections 3114.5 and 3115.5 of the Streets and Highways Code of the State of California, which lien shall be a continuing lien and shall secure each levy of the special tax. The lien of the special tax shall continue in force and effect until the special tax obligation is prepaid, permanently satisfied and canceled in accordance with Section 53344 of the Government Code of the State of California or until the special tax I )Jß-/ -........----.---,.--...--.-.-.-- ceases to be levied by the legislative body of the local Agency in the manner provided in Section 53330.5 of said Government Code. SECTION 7. This Ordinance and special tax shall be applicable for the referenced District, as well as any future annexations. SECTION 8. This Ordinance shall be effective thirty (30) days after its adoption. Within fifteen (IS) days after its adoption, the City Clerk shall cause this Ordinance to be published in a newspaper of general circulation in the City pursuant to the provisions of Government Code Section 36933. INTRODUCED AND FIRST READ at a regular meeting of the City Council of the City of Chula Vista, California, on ,1998; AND THEREAFfER ADOPTED at a regular meeting of the City Council of the City of Chula Vista, California, held on the day of , 1998, by the following vote: AYES: NOES: ABSTAIN: ABSENT: Presented by Approved as to form by John p, Lippitt, Director of ~~~ John M, Kaheny, City Attorney Public Works 2 /38/;L. - - _.-----_._--~_..__...__..._-- · /, Community Facilities District No. 97-2 E"J...\,\ð" P, July 1,1998 Page 6 Part IV - Rate and Method of Apportionment of Special Taxes ANNUAL TAX A Special Tax shall be levied annually on each Parcel of land within the Preserve Maintenance District, Community Facilities District No. 97-2 of the City of Chula Vista (the "District"), and collected according to the Special Tax Liability determined by the City Qf Çhula Vista (the "City") through the application of the following procedures. All of .t~e property within the District, unless otherwise exempted by law or the express provisions of the rate and method of apportionment expressed below, shall be taxed to the extent and in the manner provided below, All Parcels within the District are included within either Improvement Area A or Improvement Area B, A map of the Improvement areas is included as Exhibit B, All Special Taxes applicable to Parcels be collected in the same manner and at the same time as ordinary ad valorem property taxes, and Special Taxes so levied will be subject to the same penalties and procedures, sale and lien priority in case of delinquency as is provided for ad valorem taxes. DEFINITIONS Acre or Acreage means the area of a Parcel as shown on the latest maps of the Assessor of the County of San Diego, or if the area of such Parcel is not shown on such Assessor's maps, the area as shown on a current recorded subdivision map, parcel map, record of surveyor other recorded document creating or describing the Parcel. If the preceding maps are not available, the area shall be determined by the City Engineer. Administrative Expenses means the direct and indirect expenses incurred by the City in carrying out its duties with respect to the District (including, but not limited to, the levy and collection of the special taxes) including the fees and expenses of its counsel, any fees of the County related to the District or the collection of special taxes, an allocable share of the salaries of City staff directly related thereto and a proportionate amount of the City's general administrative overhead related thereto, any amounts paid by the City from its general fund with respect to the District, and all other costs and expenses of the City related to the District. Building Square Foot or Square Footage means the square footage as shown on a Parcel's building permit, excluding garages or other structures not used as living space. City means the City of Chula Vista. /3ß~3 M :1$projectlchulavislpsrvmain8 ,doc t:: ! e ! a. Q) a: x (1] I- ro '(3 Q) a. en ~ N I ~ I' i co ! :\ O-¡::-o Z u u - ~ ",,- f- >- " c..UU1~ <- 0 I,/) :> 0::: ~ I--WO< ¡:¡ V1 Ul u Z ~_ z ~c:: ~ >- c:O<I:z~ :::J < z ð~ I ......U1wUu ~ ' z WI-· w Z <:- X :::E~_)-o W w _ <C :CW , > --.J ¿ >- ~- <:: \ , a..Uw 51,/'1 ~ :><1:>= ~~ -l..:... c:: u ;::::: w~ ;;~ >- ~ c u~ ;::" 0 I- a::: ~ - =~ z.=,u ;i . ~~ :J ~~ ::2 "^ I ~, ~;; & 83 0' ;, ::2 0 ., U N , I'- en .::?!;,._; -~~~:;S" Ó 'z_ Z - (J .¡: - '" ë5 '" · · Q) · ~ ., · . · " '(3 ü :c ¡. ª (1]' ; ~ ~ ; u.. a <c .c u ~!1 o tJ '¡ z: ~.... »CQ z: :c...... ~ ~l _en 1.J ~ ~ ~ ~.... 'ë en C) = ~ is :; ~ I:¡. ~!ff:;î~ .' , :J~ ;a ;! ! ~.: :t¡I E ~-I'- I ~Oi I "" E»Q) )38 ---( .:1- e - OJ .'Z ü:Jt1J e!· ....,a.. ~¡ ~11 0, . I:Q. ; Ef3 Community Facilities District No. 97-2 July 1,1998 Page 8 Developed Parcel means Taxable Property for which a foundation building permit or other form of building permit has been issued as of March 1 of the preceding Fiscal Year. Distric~ means the Preserve Maintenance District Community Facilities District No. 97-2 of the City of Chula Vista, FinaUI/lap means a recorded Tract Map or Parcel Map, - ~ Fiscal Year means the period starting on July 1 and ending the following June 30. Improvement Area means one of the two specific areas as shown in Exhibit B. Maximum Special Tax means the maximum special tax that can be levied within each Improvement Area within CFD No. 97-2 by the City Council in any Fiscal Year for each Parcel of Taxable Property, Non-Residential Parcels shall include each Parcel within the District which is zoned for other than Residential Uses by the City. Non-Residential Uses shall include all Developed Parcels which are not zoned for Residential Uses including commercial, industrial, and Community Public Facilities (CPF), Operating Fund means a fund that shall be maintained for each Improvement Area within the District for any Fiscal Year to pay for Resource Monitoring and/or Preserve Operations and Maintenance activities and Administrative Expenses. Operating Fund Balance means the amount of funds in the Operating Fund for each Improvement Area at the end of the preceding Fiscal Year. Operating Fund Requirement means for any Fiscal Year an amount for each Improvement Area equal to the Resource Monitoring Fund Requirement and the Preserve Operations and Maintenance Fund Requirement for the current Fiscal Year in which Special Taxes are levied, Parcel means any San Diego County Assessor's Parcel or portion thereof that is within the boundaries of the District designated on a map of the San Diego County Assessor and which has been assigned a discrete identifying number on the equalized tax rolls of the County. Preserve Operations and Maintenance means those activities defined in Part II A of the Special Tax Report dated July 1,1998 for Community Facilities District No, 97-2 of the City of Chula Vista. /Jß-Š M :I$proj ectlch ulavislpsrvm ai n8, doc Community Facilities District No. 97-2 July 1,1998 Page 9 Preserve Operations and Maintenance Fund Requirement means for any Fiscal Year an amount applicable to Improvement Area A equal to the budgeted costs for Preserve Operations and Maintenance plus a pro-rata share of the budgeted Administrative Expenses of the District for the current Fiscal Year in which Special Taxes are levied. . Residential Parcels shall include each Parcel within the District which is zoned for Reside(\~ial Uses by the City. - - Residential Uses shall include those residential uses as permitted in the City zoning ordinance. Reserve Fund means a fund that shall be maintained for each Improvement Area to provide necessary cash flow for the first six months of each Fiscal Year, working capital to cover monitoring, maintenance and repair cost overruns and delinquencies that may arise in connection with the collection of Special Taxes and a reasonable buffer against large variations in annual special tax amounts, Reserve Fund Balance means the amount of funds in the Reserve Fund at the end of the preceding Fiscal Year. Reserve Fund Requirement means an amount equal to up to 100% of the Operating Fund Requirement for any Fiscal Year. Resource Monitoring Program means those activities defined in Part II B, of the Special Tax Report dated July 1, 1998 for Community Facilities District No 97-2 of the City of Chula Vista. Resource Monitoring Fund Requirement means for any Fiscal Year an amount for each Improvement Area equal to the Improvement Area's fair share of the budgeted costs of the Resource Monitoring Program plus a pro rata share of the budgeted Administrative Expenses of the District for the current Fiscal Year in which Special Taxes are levied. An Improvement Area's "fair share" shall be based upon the Improvement Area's percentage of the total acreage within the Otay Ranch General Development Plan Planning Area for which a Resource Monitoring Program funding mechanism has been established. Special Tax means the special tax or special taxes actually levied within CFD No. 97-2 each Fiscal Year. Special Tax Liability for any Fiscal Year is an amount sufficient to pay the costs of an Improvement Area within the District equal to: (i) the Resource Monitoring Fund Requirement, and Preserve Operations and Maintenance Fund Requirement, less the Operating Fund Balance, and (ii) the Reserve Fund Requirement, less the Reserve Fund Balance. J3ß---~ M :\$projectlchulavislpsrvma i n8 ,doc Community Facilities District No. 97-2 July 1,1998 Page 10 Tax Categories are those Categories I, II and III described in the body hereof Taxable Property is all real property or Parcels within the boundaries of the District which are not exempt from the Special Tax pursuant to the law or which are not classifiéd or assigned to the Exempt Category as defined herein. Cateqories of Special Taxes Catëgory I Category I includes each Developed Parcel within the District. (Category I) The Maximum Special Tax for Resource Monitoring, and Preserve Operations and Maintenance that may be levied for Fiscal Year 1998/99 on each Developed Parcel shall be at the rates set forth in Table 1 below. For Residential Parcels the Special Tax shall be levied based upon Building Square Footage and for Non-Residential Parcels shall be levied based on Acreage. The Maximum Special Tax shall be increased or decreased each Fiscal Year thereafter by a factor which is the lesser of the annual percentage change in the January to January San Diego Metropolitan Area All Urban Consumer Price Index (All Items) or the annual percentage change in the estimated California Fourth Quarter Per Capita Personal Income as contained in the Governor's budget published every January. TABLE 1 Maximum Special Tax Category I Resource Operation & Monitoring Maintenance Residential Parcels $0,0049 per sq. ft. $0.0078 per sq. ft. Non-Residential Parcels $80,96 per Acre $128.53 per Acre Category II Category II includes each Parcel of Taxable Property within the District for which a Final Map has been recorded, but which is not classified as a Developed Parcel (Category II). The Maximum Special Tax for Resource Monitoring, and Preserve Operations and Maintenance that may be levied for Fiscal Year 1998/99 on each Parcel in Category II shall be as shown in Table 2 below (said amount to be levied pro rata for any portion of an Acre). Said Maximum Special Tax shall be increased or decreased each Fiscal Year thereafter by a factor which is the lesser of the annual percentage change in the January to January San Diego Metropolitan Area All Urban Consumer Price Index (All Items) or the annual percentage change in the estimated California Fourth Quarter Per /38--7 M: \$project\chulavis\psrvmai n8, doc Community Facilities District No. 97-2 July 1, ,1998 Page 11 Capita Personal Income as contained in the Governor's budget published every January. TABLE 2 Maximum Special Tax Category II Resource Operation & Monitoring Maintenance $80,96 per Acre $128.53 per Acre Category III - Category III includes each Parcel of Taxable Property within the District not subject to a Special Tax under any other category ("Category III"). The Maximum Special Tax which may be levied for Fiscal Year 1998/99 on Taxable Property within Category III shall be as shown in Table 3 below (said amount to be levied pro rata for any portion of an Acre). Said Maximum Special Tax shall be increased or decreased each Fiscal Year thereafter by a factor which is the lesser of the annual percentage change in the January to January San Diego Metropolitan Area All Urban Consumer Price Index (All Items) or the annual percentage change in the estimated California Fourth Quarter Per Capita Personal Income as contained in the Governor's budget published every January. TABLE 3 Maximum Special Tax - Category III Resource Operation & Monitoring Maintenance $51.21 per Acre $81.30 per Acre Exempt Category The Exempt Category includes each property owned, conveyed or irrevocably offered for dedication to a public agency, or land which is in the public right-of-way, unmanned utility easements which make utilization for other than the purpose set forth in the easement impractical, common areas, private streets and parks, and open space lots ("Exempt Category"). Assionment to Cateoories of Special Tax On or about July 1 of each year, (but in any event in sufficient time to include the levy of the Special Taxes on the County's secured tax roll), the City shall assign each Parcel within the District to Category I, Category II, Category III or the Exempt Category. Parcels subject to levy shall be determined based upon the records of the San Diego County Assessor. M: \$project\chulavis\psrvmain8 .doc /33->/ Community Facilities District No, 97-2 July 1,1998 Page 12 Levv and Apportionment of Special Taxes The City shall determine the Special Tax liability for each Improvement Area in each Fiscal Year on or about every July 1. Special Taxes shall then be levied on each Parcel classified as the Category I, Category II, or Category III in the following order of priority: . Improvement Area A . . Step 1: Determine the revenue which could be generated by Parcels assigned to Category I by multiplying the Building Square Footage for Parcels classified as Residential Parcels by the Maximum Special Tax per Building Square Foot for Resource Monitoring, and Preserve Operations and Maintenance for Parcels and adding to that the maximum revenue which could be generated by multiplying the total acres for Parcels classified as Non-Residential Parcels by the Maximum Special Tax per Acre for Resource Monitoring and Preserve Operations and Maintenance. Step 2: If the total revenue as calculated in Step 1 is greater than the estimated Special Tax Liability for Improvement Area A, reduce the Special Tax for each Parcel proportionately so that the Special Tax levy for the Fiscal Year is equal to the Special Tax Liability for the Fiscal Year. Step 3: If the total revenue as calculated in Step 1 is less than the Special Tax Liability for Improvement Area A, a Special Tax shall be levied upon each Parcel within Improvement Area A, classified as Category II. The Special Tax for Parcels assigned to Category II shall be calculated as the lessor of: (i) The Special Tax Liability for Improvement Area A as determined by the City, less the total revenue generated for all Parcels under Step 1 above, divided by the total Acres for all Parcels within Improvement Area A assigned to Category II, OR (ii) the Maximum Special Tax rate for Parcels assigned to Category II Step 4: If the total revenue as calculated in Step J and 3 is less than the Special Tax Liability, for Improvement Area A, a Special Tax shall be levied upon each Parcel within Improvement Area A classified as Category III. The Special Tax for Parcels assigned to Category III shall be calculated as the lessor of: (i) The Special Tax Liability for Improvement Area A as determined by the City, less the total revenue generated for all Parcels under Step 1 and 3 above, divided by the total Acres for all Parcels within Improvement Area A assigned to Category III, /3 8--1 M :I$projectlchulavislpsrvmai n8, doc Community Facilities District No. 97-2 July 1,1998 Page 13 OR (ii) the Maximum Special Tax rate for Parcels assigned to Category III and within Improvement Area A However, in the event it is determined that the Special Tax Liability for Improvement Area A includes delinquent Special Taxes from Parcels in Category III from the prior Fiscai Year, the City shall determine the amount of delinquent taxes that arose from such Parcels and identify the owner(s), The amount of delinquent Special Taxes, if any, that arose from the applicable owner(s) shall first be divided by the total Category III Acres owned by such owner(s) and collected from the applicable owner(s) with the remaining portion of the Special Tax Liability not related to delinquent Special Taxes to be collected from all Parcels in Category III according to the procedure set forth in the preceding paragraph, Improvement Area B Step 1: Determine the revenue which could be generated by Parcels assigned to Improvement Area B for Resource Monitoring by multiplying the total Acres for Parcels assigned to Category III by the Maximum Special Tax for Category III. Step 2: If the total revenue as calculated in Step 1 is greater than the Special Tax Liability for Improvement Area B, reduce the Special Tax for each Parcel - proportionately so that the Special Tax levy for the Fiscal Year is equal to the Special Tax Liability for Improvement Area B for the Fiscal Year. However, in the event it is determined that the Special Tax Liability for Improvement Area B includes delinquent Special Taxes from Parcels in Category III from the prior Fiscal Year, the City shall determine the amount of delinquent taxes that arose from such Parcels and identify the owner(s). The amount of delinquent Special Taxes, if any, that arose from the applicable owner(s) shall first be divided by the total Category III Acres owned by such owner(s) and collected from the applicable owner(s) with the remaining portion of the Special Tax Liability not related to delinquent Special Taxes to be collected from all Parcels in Category III according to the procedure set forth in the Step 1 and Step 2 above, /3ß --/0 - M: \$project\chu lavis\psrvmain8 ,doc IC") n .j::t ) / --- ,~," . to 10/;/1' 7 Community Facilities District No. 97-2 EÞ,\¿)¡T P. July 1,1998 Page 6 Part IV - Rate and Method of Apportionment of Special Taxes ANNUAL TAX A Special Tax shall be levied annually on each Parcel of land within the Preserve Maintenance District, Community Facilities District No. 97-2 of the City of Chula Vista (the "District"), and collected according to the Special Tax Liability determined by the City Qf Çhula Vista (the "City") through the application of the following procedures. All of Jhe property within the District, unless otherwise exempted by law or the express provisions of the rate and method of apportionment expressed below, shall be taxed to the extent and in the manner provided below. All Parcels within the District are included within either Improvement Area A or Improvement Area B. A map of the Improvement areas is included as Exhibit B. All Special Taxes applicable to Parcels be collected in the same manner and at the same time as ordinary ad valorem property taxes, and Special Taxes so levied will be subject to the same penalties and procedures, sale and lien priority in case of delinquency as is provided for ad valorem taxes. DEFINITIONS Acre or Acreage means the area of a Parcel as shown on the latest maps of the Assessor of the County of San Diego, or if the area of such Parcel is not shown on such Assessor's maps, the area as shown on a current recorded subdivision map, parcel map, record of surveyor other recorded document creating or describing the Parcel. If the preceding maps are not available, the area shall be determined by the City Engineer. Administrative Expenses means the direct and indirect expenses incurred by the City in carrying out its duties with respect to the District (including, but not limited to, the levy and collection of the special taxes) including the fees and expenses of its counsel, any fees of the County related to the District or the collection of special taxes, an allocable share of the salaries of City staff directly related thereto and a proportionate amount of the City's general administrative overhead related thereto, any amounts paid by the City from its general fund with respect to the District, and all other costs and expenses of the City related to the District. Building Square Foot or Square Footage means the square footage as shown on a Parcel's building permit, excluding garages or other structures not used as living space. City means the City of Chula Vista, M :I$projectlch ulavislpslVma in8 .doc ~. -- ----- -_._~-- -~.~_._._-- -------."-- ~ . t ' o ' ~ ' . ' c:: x ~ ro ë3 Q) a. en ! " N I r-- m - O~ ZI-O U" ~ ~ : 1-1-0 a. U if) ~ <t-OU1 ,,(Y t- w 5< co :i{f)u>-z w- Z ~Ct:: ¡- c:: 0 <I: zE:: < z::J::¡ ~ "øw8< ' z I- U " I w W z -it..... X ~f-_t-o W w_<!~w >.-J:::::E>I- ,- <, ' c...U W S(/) \ ,,<1:>- -W~, ' w ~ 1';" ~~o " w uz I- ~ ~ "'5 Z"-' " ~ " '" 3j:¡;; 2 .' 2 e' o u ~ r-- Q) 0""'" .,.... z -' < ... Õ 'L: - .!!! o . rJ Q) ~ . .- . - -- . . o . · . "" ~ .... ~~ "," _ Q) å w' . ~ "I ___ ..... -.1· co' .".. , ~ " , " " .¡ E - ~ ' ,,, " '" E~. ..." >1 o .?:> en I ~~ "I " ,,'. ,. , ,~ . " = e ~ _ ~ i ~ 1 ~ ! E33 Community Facilities District No. 97-2 July 1,1998 Page 8 Developed Parcel means Taxable Property for which a foundation building permit or other form of building permit has been issued as of March 1 of the preceding Fiscal Year. District means the Preserve Maintenance District Community Facilities District No. 97':2 of the City of Chula Vista. FinalJv'1~p means a recorded Tract Map or Parcel Map. - -' Fiscal Year means the period starting on July 1 and ending the following June 30. Improvement Area means one of the two specific areas as shown in Exhibit R Maximum Special Tax means the maximum special tax that can be levied within each Improvement Area within CFD No. 97-2 by the City Council in any Fiscal Year for each Parcel of Taxable Property, Non-Residential Parcels shall include each Parcel within the District which is zoned for other than Residential Uses by the City. Non-Residential Uses shall include all Developed Parcels which are not zoned for Residential Uses including commercial, industrial, and Community Public Facilities (CPF). Operating Fund means a fund that shall be maintained for each Improvement Area within the District for any Fiscal Year to pay for Resource Monitoring and/or Preserve Operations and Maintenance activities and Administrative Expenses. Operating Fund Balance means the amount of funds in the Operating Fund for each Improvement Area at the end of the preceding Fiscal Year. Operating Fund Requirement means for any Fiscal Year an amount for each Improvement Area equal to the Resource Monitoring Fund Requirement and the Preserve Operations and Maintenance Fund Requirement for the current Fiscal Year in which Special Taxes are levied, Parcel means any San Diego County Assessor's Parcel or portion thereof that is within the boundaries of the District designated on a map of the San Diego County Assessor and which has been assigned a discrete identifying number on the equalized tax rolls of the County. Preserve Operations and Maintenance means those activities defined in Part II A of the Special Tax Report dated July 1, 1998 for Community Facilities District No. 97-2 of the City of Chula Vista. M: \$project\chulavis\psrvmai n8 .doc ._ '_"_""_'_'_'_"m~'____""__"_""'_'''_''_''"'_ Community Facilities District No, 97-2 July 1,1998 Page 9 Preserve Operations and Maintenance Fund Requirement means for any Fiscal Year an amount applicable to Improvement Area A equal to the budgeted costs for Preserve Operations and Maintenance plus a pro-rata share of the budgeted Administrative Expenses of the District for the current Fiscal Year in which Special Taxes are levied. Residential Parcels shall include each Parcel within the District which is zoned for Residep!ial Uses by the City. - - Residential Uses shall include those residential uses as permitted in the City zoning ordinance. Reserve Fund means a fund that shall be maintained for each Improvement Area to provide necessary cash flow for the first six months of each Fiscal Year, working capital to cover monitoring, maintenance and repair cost overruns and delinquencies that may arise in connection with the collection of Special Taxes and a reasonable buffer against large variations in annual special tax amounts. Reserve Fund Balance means the amount of funds in the Reserve Fund at the end of the preceding Fiscal Year. Reserve Fund Requirement means an amount equal to up to 100% of the Operating Fund Requirement for any Fiscal Year. Resource Monitoring Program means those activities defined in Part II B. of the Special Tax Report dated July 1, 1998 for Community Facilities District No, 97-2 of the City of Chula Vista. Resource Monitoring Fund Requirement means for any Fiscal Year an amount for each Improvement Area equal to the Improvement Area's fair share of the budgeted costs of the Resource Monitoring Program plus a pro rata share of the budgeted Administrative Expenses of the District for the current Fiscal Year in which Special Taxes are levied. An Improvement Area's "fair share" shall be based upon the Improvement Area's percentage of the total acreage within the Otay Ranch General Development Plan Planning Area for which a Resource Monitoring Program funding mechanism has been established. Special Tax means the special tax or special taxes actually levied within CFD No, 97-2 each Fiscal Year. Special Tax Liability for any Fiscal Year is an amount sufficient to pay the costs of an Improvement Area within the District equal to: (i) the Resource Monitoring Fund Requirement, and Preserve Operations and Maintenance Fund Requirement, less the Operating Fund Balance, and (ii) the Reserve Fund Requirement, less the Reserve Fund Balance. M :\$projectlchulavislpsrvma in8 .doc _'_.,.,_.______~_~_._.._ .',_ mM_ Community Facilities District No. 97-2 July 1,1998 Page 10 Tax Categories are those Categories I, II and III described in the body hereof. Taxable Property is all real property or Parcels within the boundaries of the District which are not exempt from the Special Tax pursuant to the law or which are not classifiéd or assigned to the Exempt Category as defined herein. Cateaories of Special Taxes Cátegory I Category I includes each Developed Parcel within the District. (Category I) The Maximum Special Tax for Resource Monitoring, and Preserve Operations and Maintenance that may be levied for Fiscal Year 1998/99 on each Developed Parcel shall be at the rates set forth in Table 1 below. For Residential Parcels the Special Tax shall be levied based upon Building Square Footage and for Non-Residential Parcels shall be levied based on Acreage, The Maximum Special Tax shall be increased or decreased each Fiscal Year thereafter by a factor which is the lesser of the annual percentage change in the January to January San Diego Metropolitan Area All Urban Consumer Price Index (All Items) or the annual percentage change in the estimated California Fourth Quarter Per Capita Personal Income as contained in the Governor's budget published every January, TABLE 1 Maximum Special Tax Category I Resource Operation & Monitoring Maintenance Residential Parcels $0.0049 per sq. ft. $0,0078 per sq. ft. Non-Residential Parcels $80.96 per Acre $128.53 per Acre Category II Category II includes each Parcel of Taxable Property within the District for which a Final Map has been recorded, but which is not classified as a Developed Parcel (Category II). The Maximum Special Tax for Resource Monitoring, and Preserve Operations and Maintenance that may be levied for Fiscal Year 1998/99 on each Parcel in Category II shall be as shown in Table 2 below (said amount to be levied pro rata for any portion of an Acre). Said Maximum Special Tax shall be increased or decreased each Fiscal Year thereafter by a factor which is the lesser of the annual percentage change in the January to January San Diego Metropolitan Area All Urban Consumer Price Index (All Items) or the annual percentage change in the estimated California Fourth Quarter Per M :1$projectlchulavislpsrvmain8 .doc Community Facilities District No. 97-2 July 1, .1998 Page 11 Capita Personal Income as contained in the Governor's budget published every January. TABLE 2 Maximum Special Tax Category II Resource Operation & Monitoring Maintenance $80.96 per Acre $128,53 per Acre Category III - -' Category III includes each Parcel of Taxable Property within the District not subject to a Special Tax under any other category ("Category III"). The Maximum Special Tax which may be levied for Fiscal Year 1998/99 on Taxable Property within Category III shall be as shown in Table 3 below (said amount to be levied pro rata for any portion of an Acre). Said Maximum Special Tax shall be increased or decreased each Fiscal Year thereafter by a factor which is the lesser of the annual percentage change in the January to January San Diego Metropolitan Area All Urban Consumer Price Index (All Items) or the annual percentage change in the estimated California Fourth Quarter Per Capita Personal Income as contained in the Governor's budget published every January. TABLE 3 Maximum Special Tax Category III Resource Operation & Monitoring Maintenance $51.21 per Acre $81.30 per Acre Exempt Category The Exempt Category includes each property owned, conveyed or irrevocably offered for dedication to a public agency, or land which is in the public right-of-way, unmanned utility easements which make utilization for other than the purpose set forth in the easement impractical, common areas, private streets and parks, and open space lots ("Exempt Category"). Assianment to Cateaories of Special Tax On or about July 1 of each year, (but in any event in sufficient time to include the levy of the Special Taxes on the County's secured tax roll), the City shall assign each Parcel within the District to Category I, Category II, Category III or the Exempt Category, Parcels subject to levy shall be determined based upon the records of the San Diego County Assessor. M :\$project\chulavis\pslVmain8,doc Community Facilities District No. 97-2 July 1, 1998 Page 12 Lew and Apportionment of Special Taxes The City shall determine the Special Tax Liability for each Improvement Area in each Fiscal Year on or about every July 1. Special Taxes shall then be levied on each Parcel classified as the Category I, Category II, or Category III in the following order of priority: . ImDrovemÉmt Area A . . Step 1: Determine the revenue which could be generated by Parcels assigned to Category I by multiplying the Building Square Footage for Parcels classified as Residential Parcels by the Maximum Special Tax per Building Square Foot for Resource Monitoring, and Preserve Operations and Maintenance for Parcels and adding to that the maximum revenue which could be generated by multiplying the total acres for Parcels classified as Non-Residential Parcels by the Maximum Special Tax per Acre for Resource Monitoring and Preserve Operations and Maintenance. Step 2: If the total revenue as calculated in Step 1 is greater than the estimated Special Tax Liability for Improvement Area A, reduce the Special Tax for each Parcel proportionately so that the Special Tax levy for the Fiscal Year is equal to the Special Tax Liability for the Fiscal Year. Step 3: If the total revenue as calculated in Step 1 is less than the Special Tax Liability for Improvement Area A, a Special Tax shall be levied upon each Parcel within Improvement Area A, classified as Category II. The Special Tax for Parcels assigned to Category II shall be calculated as the lessor of: (i) The Special Tax Liability for Improvement Area A as determined by the City, less the total revenue generated for all Parcels under Step 1 above, divided by the total Acres for all Parcels within Improvement Area A assigned to Category II, OR (ii) the Maximum Special Tax rate for Parcels assigned to Category II Step 4: If the total revenue as calculated in Step 1 and 3 is less than the Special Tax Liability, for Improvement Area A, a Special Tax shall be levied upon each Parcel within Improvement Area A classified as Category III. The Special Tax for Parcels assigned to Category III shall be calculated as the lessor of: (i) The Special Tax Liability for Improvement Area A as determined by the City, less the total revenue generated for all Parcels under Step 1 and 3 above, divided by the total Acres for all Parcels within Improvement Area A assigned to Category III, M :1$projectlchulavislpsfVmain8 .doc - -----""..~.._.._._..,.+---,._...._.- Community Facilities District No. 97-2 July 1,1998 Page 13 OR (ii) the Maximum Special Tax rate for Parcels assigned to Category III and within Improvement Area A However, i,n the event it is determined that the Special Tax Liability for Improvement Area A includes delinquent Special Taxes from Parcels in Category III from the prior Fiscai Year, the City shall determine the amount of delinquent taxes that arose from such Parcels and identify the owner(s). The amount of delinquent Special Taxes, if any, that arose from the applicable owner(s) shall first be divided by the total Category III Acres owned by such owner(s) and collected from the applicable owner(s) with the remaining portion of the Special Tax Liability not related to delinquent Special Taxes to be collected from all Parcels in Category III according to the procedure set forth in the preceding paragraph. Improvement Area B Step 1: Determine the revenue which could be generated by Parcels assigned to Improvement Area B for Resource Monitoring by multiplying the total Acres for Parcels assigned to Category III by the Maximum Special Tax for Category III. Step 2: If the total revenue as calculated in Step 1 is greater than the Special Tax Liability for Improvement Area B, reduce the Special Tax for each Parcel proportionately so that the Special Tax levy for the Fiscal Year is equal to the Special Tax Liability for Improvement Area B for the Fiscal Year. However, in the event it is determined that the Special Tax Liability for Improvement Area B includes delinquent Special Taxes from Parcels in Category III from the prior Fiscal Year, the City shall determine the amount of delinquent taxes that arose from such Parcels and identify the owner(s). The amount of delinquent Special Taxes, if any, that arose from the applicable owner(s) shall first be divided by the total Category III Acres owned by such owner(s) and collected from the applicable owner(s) with the remaining portion of the Special Tax Liability not related to delinquent Special Taxes to be collected from all Parcels in Category III according to the procedure set forth in the Step 1 and Step 2 above, M :\$projectlch ulavislpsrvmain8.doc -_..__.,---_.~--~.~_._"._-"_..- COUNCIL AGENDA STATEMENT Itemfl Meeting Date 10/6//98 ITEM TITLE: A. Resolution J ~ /9.2 of the City Council of the City of Chula Vista, California, acting in its capacity as the legislative body of Community Facilities District No. 98-1 (Open Space Maintenance District [Otay Ranch, LLC-OVP-SPA One, Villages 1 West, 2, 2 West, 6, 7, & Planning Area 12]) declaring the results of a special election in such Community Facilities District. B. Ordinance .2. 'J 5' 70f the City Council of the City of Chula Vista, California, acting in its capacity as the legislative body of Community Facilities District No. 98-1 (Open Space Maintenance District [Otay Ranch, LLC-OVP-SPA One, Villages 1 West, 2, 2 West, 6, 7, & Planning Area 12]) authorizing the levy of a special tax in such Community Facilities District SUBMITI'ED BY, D"",.. of ""bH, W~'" ~ REVIEWED BY: City Manager'""DJ2-, ~ ___ (4/Sths Vote: Yes_No..x.¡ At the Council Meeting of September 15, 199 , the City Council held the public hearing for the fonnation of Community Facilities District No. 98- L This district will fund the perpetual operation and maintenance of the Otay Ranch Preserve. Tonight's Council action will certify the results of a special election where the qualified electors of the District were asked whether the levy of this special tax should be authorized and direct staff to begin the process of determining the collectible amount for Fiscal Year 1998/1999. RECOMMENDATION: That Council: 1) Approve the resolution declaring the election results for CFD No. 98-1 and, 2) Introduce for first reading of the ordinance authorizing the levy of a special tax in Community Facilities District No. 98-1 BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. DISCUSSION: At the Council Meeting of September 15, 1998, the City Council held the public hearing for the formation of Community Facility District No. 98- L This public hearing was held pursuant to the provisions of the "Mello-Roos Community Facilities Act of 1982". The City Council also approved the resolutions establishing CFD No. 98-1, and authorized the submittal of the tax levy to the qualified electors. Election Results On September 22, 1998 the special election was held at the City Clerk's office. In accordance with the Mello-Roos Act, since no registered voters were identified by the Registrar of Voters within the CFD, the election was held by the property owners. Each property owner having one vote for each acre or portion of an acre that he or she owns within the CFD. Staff has tallied the ballots cast in this special election with the results showing 100% percent of the votes cast in favor of levying the I L/-/ Page 2, Item_ Meeting Date 10/6/98 proposed special tax. The Mello-Roos Act provides that if two thirds (2/3) of the votes are in favor, the City Council may proceed to levy the special tax. Resolution and Ordinance There is a resolution and ordinance in tonight's agenda which, if adopted, will accomplish the following: The "Resolution Declaring the Election Results" is the formal action of the City Council approving the results of the election to form CFD No 98-1. The "Ordinance Authorizing the Levy of Special Taxes" is the formal action authorizing the levy of special taxes as set forth in the Special Tax Formula previously approved by the City Council. Future Actions . Staff will be returning with a report on the amount of the special tax to be levied for Fiscal Year 1998/1999 and will ask the City Council to adopt a resolution setting the special tax for Fiscal Year 1998/1999. FISCAL IMPACT: All costs of formation of the district are being borne by the developers and the on-going administration will be funded entirely by the district. There is no impact to the General Fund The City will receive the benefit of full cost recovery for staff cost involved in district formation and district administration in perpetuity. Exhibit A - CFD Boundary October 1, 1998 R\HOME\ENGINEER\AGENDA\CERT98-1.LDT (File:0725-30-0SD034) /'-;¿ ~ . " ! E T "A ! x 1-+ / B I / ~ ... --- N -J 1:: :: o ..... 0. a:: (t) « a:: -', <.:> j x z co z I- z - « ro -' -~ ·õ ~ I Q) ... a. òð (/) . -, ..... /, \\ j CD // \\ /j \' N II" I 1 '~ ""'~_""¡ ~===\'! , " - < 1'" I -' " , , -' \'- '''',","' '," . ro > ,~, _ . .' I ' (» I-u -....<: -... ~¡ : ~ ~.. 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II,'; " '!.í'!· Ü j 4El31 E _ . >.., """ ."." .... E >. OJ « ~< ~ ~~U& ~~ ~ ~~ a 0- ro b ~~ 15~;!~~'~ ¡;'~~~~U ' u" "- ~" "",,. / '1-.3 ... ..... ... D <IZ J 1:) '1:: 1ií ð B ~~ ~~ :E~ o~ ð .- I:: U. ..c::·0 () § !Ìj5 .~ ~ 1:: -g ð .õ' L- a.. RESOLUTION NO. )'/ /9-2 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. 98-1 (OPEN SPACE MAINTENANCE DISTRICT [OTAY RANCH, LLC-OVP-SPA ONE, VILLAGES I WEST, 2, 2 WEST, 6, 7 & PLANNING AREA 12]) DECLARING THE RESULTS OF A SPECIAL ELECTION IN SUCH COMMUNITY FACILITIES DISTRICT WHEREAS, the CITY COUNCIL of the CITY OF CHULA VISTA, CALIFORNIA (the "Legislative Body"), has previously declared its intention and held and conducted proceedings relating to the levy of special taxes in a community facilities district, as authorized pursuant to the terms and provisions of the "Mello-Roos Community Facilities Act of 1982", being Chapter 2.5. Part I, Division 2, Title 5 of the Government Code of the State of California (the" Act"), said Community Facilities District designated as COMMUNITY FACILITIES DISTRICT NO. 98-1 (OPEN SPACE MAINTENANCE DISTRICT [OTAY RANCH, LLC-OVP-SPA ONE, VILLAGES I WEST, 2, 2 WEST, 6, 7 & PLANNING AREA 12]) (the "District"); and, WHEREAS, this Legislative Body did call for and order to be held an election to submit to the qualified electors of the District a proposition refuting to the levy of special taxes and the establishment of an appropriations limit for such community facilities district; and, WHEREAS, at this time said election has been held and the measures voted upon and each such measure did receive the favorable 2/3' s vote of the qualified electors, and this legislative body does desire to declare the favorable results of the election in accordance with the provisions of the Elections Code of the State of California. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF CHULA VISTA, CALIFORNIA, ACTING AS THE LEGISLATIVE BODY OF COMMUNITY FACILffiES DISTRICT NO, 98-1 (OPEN SPACE MAINTENANCE DISTRICT [OTAY RANCH, LLC-OVP-SPA ONE, VILLAGES I WEST, 2, 2 WEST, 6, 7 & PLANNING AREA 12]), AS FOLLOWS: SECTION I. The above recitals are all true and correct. SECTION 2, This legislative body hereby receives and approves the CERTIFICATE OF ELECTION OFFICIAL AND STATEMENT OF VOTES CAST, as submitted by the City Clerk, acting in her capacity as the Election official, said Statement setting forth the number of votes cast in the election, the measures voted upon, and the number of votes given for and/or against the measures voted upon, A copy of said Certificate and Statement is attached hereto, marked Exhibit " A", referenced and so incorporated. I /1//1-/ ..--..-.----------,- SECTION 3. The City Clerk is hereby directed, pursuant to the provisions of the Elections Code of the State of California, to enter in the minutes the results of the election as set forth in said STATEMENT OF VOTES CAST. PREPARED BY: APPROVED AS TO FORM BY: ~~ AY- John p, Lippitt John Kaheny t Director of Public Works City Attorney 2 ),/A'J-. __......._____..__. _.·.m·....._ _..____~._ EXHmlT "A" CERTIFICATE OF ELECTION OFFICIAL AND STATEMENT OF VOTES CAST STATE OF CALIFORNIA ) COUNTY OF SAN DIEGO ) ss, CITY OF CHULA VISTA ) The undersigned ELECTION OFFICIAL OF THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, does hereby certify that pursuant to the provisions of Section 53326 of the Government Code and Division 12, commencing with Section 17000 of the Elections Code of the State of California, I did canvass the returns of the votes cast at the CITY OF CHULA VISTA COMMUNITY FACILITIES DISTRICT NO,98-1 (Open Space Maintenance District [Otay Ranch, LLC-OVP-SPA One, Villages 1 West, 2, 2 West, 6, 7, & Planning Area 12]) SPECIAL ELECTION in said City, held September 22, 1998. I FURTHER CERTIFY that this Statement of Votes Cast shows the whole number of votes cast in said District in said City, and the whole number of votes cast for the Measures in said District in said City, and the totals of the respective columns and the totals as shown for the Measures are full, true and correct. I. TOTAL NUMBER OF VOTES CAST: \, '> 1-jL.-, II. VOTES CAST ON PROPOSITION A: YES \ I > 1-\ L NO III. VOTES CAST ON PROPOSITION B: YES \ ,3 '1'(.. NO WITNESS my hand and Official Seal this ~ day Of~, 1998. ~Q.O~ ELECTION OFFICIAL CITY OF C ULA VISTA STATE OF CALIFORNIA A-I /t/A~3 ORDINANCE NO. ). 7,Ç7 ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA, CALIFORNIA, ACTING IN ITS CAPACITY AS THE LEGISLATIVE BODY OF COMMUNITY FACILITIES DISTRICT NO. 98-1 (OPEN SPACE MAINTENANCE DISTRICT [OTA Y RANCH, LLC-OVP-SPA ONE, VILLAGES 1 WEST, 2, 2 WEST, 6, 7 & PLANNING AREA 12]), AUTHORIZING THE LEVY OF A SPECIAL TAX IN SUCH COMMUNITY FACILITIES DISTRICT WHEREAS, the CITY COUNCIL of the CITY OF CHULA VISTA, CALIFORNIA (the "Legislative Body"), has initiated proceedings, held a public hearing, conducted an election and received a favorable vote from the qualified electors relating to the levy of a special tax in a community facilities district, all as authorized pursuant to the terms and provisions of the "Mello-Roos Community Facilities Act of 1982", being Chapter 2.5, Part 1. Division 2, Title 5 of the Government Code of the State of California (the" Act"). This Community Facilities District is designated as COMMUNITY FACILmES DISTRICT NO. 98-1 (OPEN SPACE MAINTENANCE DISTRICT [OTAY RANCH, LLC-OVP-SPA ONE, VILLAGES 1 WEST, 2, 2 WEST, 6, 7 & PLANNING AREA 12]) (the "District"). BE IT ORDAINED AS FOLLOWS: SECTION 1. The above recitals are all true and correct. SECTION 2. This Legislative Body does, by the passage of this ordinance, authorize the levy of special taxes at the rate and formula as set forth in Exhibit "A" attached hereto (the "Special Tax Formula "), referenced and so incorporated. SECTION 3. This Legislative Body is hereby further authorized, by Resolution, to determine the specific special tax rate and amount to be levied for the then current tax year or future tax years, except that the special tax rate to be levied shall not exceed the maximum special tax rate as authorized pursuant to the Special Tax Formula, but the special tax may be levied at a lower rate. SECTION 4. The proceeds of the above authorized and levied special tax may only be used to as authorized by the Special Tax Formula. The proceeds of the special tax shall be levied only so long as needed for its purpose, and shall not be used for any other purpose. SECTION 5. The above authorized special tax shall be collected in the same manner as ordinary ad valorem taxes are collected and shall be subject to the same penalties and the same procedure, sale and lien priority in case of delinquency as is provided for ad valorem taxes; however, as applicable, this legislative body may, by resolution, establish and adopt an alternate or supplemental procedure as necessary . SECTION 6. The above authorized special tax shall be secured by the lien imposed pursuant to Sections 3114.5 and 3115.5 of the Streets and Highways Code of the State of California, which lien shall be a continuing lien and shall secure each levy of the special tax. The lien of the special tax shall continue 1 )1./ß-/ _____n___ in force and effect until the special tax obligation is prepaid, permanently satisfied and canceled in accordance with Section 53344 of the Government Code of the State of California or until the ' special tax ceases to be levied by the legislative body of the local Agency in the manner provided in Section 53330.5 of said Government Code. SECTION 7. This Ordinance and special tax shall be applicable for the referenced District, as well as any future annexations. SECTION 8. This Ordinance shall be effective thirty (30) days after its adoption. Within fifteen (15) days after its adoption, the City Clerk shall cause this Ordinance to be published in a newspaper of general circulation in the City pursuant to the provisions of Government Code Section 36933. INTRODUCED AND FIRST READ at a regular meeting of the City Council of the City of Chula Vista, California, on ,1998; AND THEREAFTER ADOPTED at a regular meeting of the City Council of the City of Chula Vista, California, held on the day of , 1998, by the following vote: AYES: NOES: ABSTAIN: ABSENT: Presented by Approved as to form by 0--- ~ 1fV'.... John P. Lippitt, Director of John M. Kaheny, City Attorney Public Works 2 JLjß~:2- ---. E~"'M.T " I. CommunityFacility District No. 98-1 A Special Tax Report July 1,1998 Page 6 Part IV - Rate and Method of Apportionment of Special Taxes ANNUAL TAX A Special Tax shall be levied annually on land within Community Facilities District No, 98-1 (Interim Open Space Maintenance District) of the City of Chula Vista (the "District"), and collected according to the Special Tax Liability determined by the City of Chula Vista (the 'City") through 'the application of the following procedures. All of the property within the District, unless otherwise exempted by law or the express provisions of the rate and method of apportionment expressed below, shall be taxed to the extent and in the manner provided below. All Special Taxes applicable to Parcels shall be collected in the same manner and at the same time as ordinary ad valorem property taxes, and that Special Taxes so levied will be subject to the same penalties and procedures, sale and lien priority in case of delinquency as is provided for ad valorem taxes. DEFINITIONS Acre or Acreage means the area of a Parcel as shown on the latest maps of the Assessor of the County of San Diego, or, if the area of such Parcel is not shown on such Assessor's maps, the area as shown on a current recorded subdivision map, parcel map, record of surveyor other recorded document creating or describing the Parcel. If the preceding maps are not available, the area shall be determined by the City Engineer. Administrative Expenses means the direct and indirect expenses incurred by the City in carrying out its duties with respect to the District (including, but not limited to, the levy and collection of the Special Taxes) including the fees and expenses of its counsel. Any fees of the County related to the District or the collection of Special Taxes, an allocable share of the salaries of City staff directly related thereto, any amounts paid by the City from its general fund with respect to the District, and expenses incurred by the City in undertaking actions to foreclose on properties for which the payment of Special Taxes is delinquent, and all other costs and expenses of the City related to the District. City means the City of Chula Vista District means the Interim Open Space Maintenance District - SPA One (Villages One West, Two West, and portions of Villages Two, Six, Seven and Planning Area 12) of the Co'mmunity Facilities District No. 98-1 of the City of Chula Vista, Facilities means those improvements defined in Part II of the Special Tax Report dated July 1, 1998 for Community Facilities District No, 98-1 of the City of Chula Vista. Fiscal Year means the period starting on July 1 and ending the following June 30. M:/$projecUchulavista/CFD98-12doc ;L! ß/;J .. "'~""'-"""- ._._..,_._-"-~-~_._-,. Community Facility District No, 98-1 Special Tax Report July 1,1998 Page 7 Maximum Special Tax means the maximum special tax that can be levied within CFD No, 98-1 by the City Council in any Fiscal Year for each Parcel of Taxable Property. Operating Fund means a fund that shall be maintained within the District for any Fiscal Year to pay for the-actual costs of maintenance, repair, and replacement of the Facilities, and the Administrative ,Expenses. Operating Fund Balance means the amount of funds in the Operating Fund at the end of the preceding Fiscal Year. Operating Fund Requirement means for any Fiscal Year an amount equal to the budgeted costs of the maintenance, repair and replacement of the Facilities which have been accepted and maintáined by the District or are reasonably expected to be accepted and maintained by the District during the current Fiscal Year plus the budgeted Administrative Expenses of the District for the current Fiscal Year in which Special Taxes are levied, Parcel means any San Diego County Assessor's Parcel or portion thereof that is within the boundaries of the District designated on a map of the San Diego County Assessor and which has been assigned a discrete identifying number on the equalized tax rolls of the County. Reserve Fund means a fund that shall be maintained to provide necessary cash flow for operations and maintenance for the first six months of each Fiscal Year, working capital to cover maintenance and repair cost overruns and delinquencies that may arise in connection with the collection of Special Taxes and a reasonable buffer against large variations in annual special tax amounts. Reserve Fund Balance means the amount of funds in the Reserve Fund at the end of the preceding Fiscal Year. Reserve Fund Requirement means the required balance in the Reserve Fund equal to up to 100% of the Operating Fund Requirement. Special Tax means the special tax or special taxes actually levied within CFD No. 98-1. Special Tax Liability for any Fiscal Year is an amount determined sufficient to pay the costs of the District, including: (i) the amount required to be deposited into the Operating Fund to meet the Operating Fund Requirement, less the Operating Fund Balance, and (ii) the total amount required to be deposited into the Reserve Fund if any, to meet the Reserve Fund Requirement, less the Reserve Fund Balance, M:/$projecUchulavista/CFD9S-1,2,doc /ij ß ~i --.-..-...--."--~---..-'-..- Community. Facility District No. 98-1 Special Tax Report July 1,1998 Page 8 -..- Taxable Property is all real property or Parcels within the boundaries of the District which are not exempt from the Special Tax pursuant to law, or which are not classified or assigned to the Exempt Category as defined herein. Cateaories of Special Taxes Taxable Category ---- The taxable land category includes each Parcel of Taxable Property assigned to the District (Taxable Category). -. - The Maximum Special Tax which may be levied on each Parcel within the Taxable Category for Fiscal Year 1998/99 shall be $103 per Acre (said amount to be levied pro rata for any portion of an Acre). Said Maximum Special Tax shall be increased or decreased each Fiscal Year thereafter by a factor which shall be the lesser of the annual percentage change in the January to January San Diego Metropolitan Area All Urban Consumer Price Index (All Items) or the -- annual percentage change in the estimated California Fourth Quarter Per Capita Personal Income as contained in the Governor's budget published every January, - Exempt Category The exempt category includes each property owned by, conveyed or irrevocably offered for - dedication to a public agency, land which is in the public right-of-way, unmanned utility easements which make utilization for other than the purpose set forth in the easement impractical, common areas, private streets and parks, and open space lots (Exempt Category). .. Assianment to Cateaories of Special Taxes - On or about July 1 of each year (but in any event in sufficient time to include the levy of the Special Taxes on the County's secured tax roll) the City shall assign each Parcel within the District to the Taxable Category, or Exempt Category, Parcels subject to levy shall be .-- determined based upon the records of the San Diego County Assessor levy and Apportionment of Special Taxes -- The City shall determine the Special Tax Liability for the District in each Fiscal Year on or about every July 1 (but in any event in sufficient time to include the levy of the Special Taxes on the .- County's secured tax roll), Special Taxes shall then be levied on each Parcel within the District as follows: ., Step 1: The Special Tax per Acre for Parcels assigned to the Taxable Category shall be calculated as the lessor of: - (i) The Special Tax Liability for the District as determined by the City, divided by the total Acres for all Parcels assigned to the Taxable Category, - M:/$projectlchuravistalCFD98-1.2.doc /iß--~ Community Facility District No. 98-1 Special Tax Report July 1,1998 Page 9 OR, (ii) the Maximum Special Tax rate for Parcels assigned to the Taxable Category Step 2: The City shall advise the owner of Parcels within the District of the Special Tax Liability for the next Fiscal Year. Step 3: The oymer(s) of Parcels within the District, may at its election, deposit funds with the City prior to July 15 each Fiscal Year, in an amount equal to the Parcel's Special Tax which shall be deposited into the Operating Fund and Reserve Fund of the District Step 4: If the funds deposited with the City is less than the Parcel's Special Tax for the Fiscal Year, then a Special Tax shall be levied equal to the Parcel's Special Tax as determined in Step 1 minus any funds deposited for the current Fiscal Year pursuant to Step 3. M:/$projecUchulavista/CFD98-1.2,doc /iß-~ ~..^-,,_._-_.- -.........---....--------.... COUNCIL AGENDA STATEMENT ./ Item /-Þ Meeting Date t 0/6//98 ITEM TITLE: A. Resolution /r/ 7' Jofthe City Council of the City of Chula Vista, California, acting in its capacity as the legislative body of Community Facilities District No. 98-2 (Open Space Maintenance District [McMillin - D.A. America, Otay Ranch SPA Two, Villages 6 & 7]) declaring the results of a special election in such Community Facilities District. B. Ordinance d. 7 ~ g;;; the City Council of the City of Chula Vista, California, acting in its capacity as the legislative body of Community Facilities District No. 98-2 (Open Space Maintenance District [McMillin - D.A. America, Otay Ranch SPA Two, Villages 6 & 7]) authorizing the levy of a special tax in such Community Facilities District SUBMITI1ID BY' """,., of "'bli, Wocb ~ REVIEWED BY: City Manage~ ~ _ (4/5ths Vote: Yes_No..xJ At the Council Meeting of September 15, I , the City Council held the public hearing for the formation of Community Facilities District No. 98-2. This district will fund the perpetual operation and maintenance of the Otay Ranch Preserve. Tonight's Council action will certify the results of a special election where the qualified electors of the District were asked whether the levy of this special tax should be authorized and direct staff to begin the process of detennining the collectible amount for Fiscal Year 1998/1999. RECOMMENDATION: That Council: I) Approve the resolution declaring the election results for CFD No. 98-2 and, 2) Introduce for first reading of the ordinance authorizing the levy of a special tax in Community Facilities District No. 98-2 BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. DISCUSSION: At the Council Meeting of September 15, 1998, the City Council held the public hearing for the formation of Community Facility District No. 98-2. This public hearing was held pursuant to the provisions of the "Mello-Roos Community Facilities Act of 1982". The City Council also approved the resolutions establishing CFD No. 98-2, and authorized the submittal of the tax levy to the qualified electors. Election Result~ On September 22, 1998 the special election was held at the City Clerk's office. In accordance with the Mello-Roos Act, since no registered voters were identified by the Registrar of Voters within the CFD, the election was held by the property owners. Each property owner having one vote for each acre or portion of an acre that he or she owns within the CFD. Staff has tallied the ballots cast in this special election with the results showing 100% percent of the votes cast in favor of levying the /5'i Page 2, Item_ Meeting Date 10/6/98 proposed special tax. The Mello-Roos Act provides that if two thirds (2/3) of the votes are in favor, the City Council may proceed to levy the special tax. Resolution and Ordinance There is a resolution and ordinance in tonight's agenda which, if adopted, will accomplish the following: The "Resolution Declaring the Election Results" is the formal action of the City Council approving the results of the election to form CFD No 98-2. The "Ordinance Authorizing the Levy of Special Taxes" is the formal action authorizing the levy of special taxes as set forth in the Special Tax Formula previously approved by the City Council. Future Actions . Staff will be returning with a report on the amount of the special tax to be levied for Fiscal Year 1998/1999 and will ask the City Council to adopt a resolution setting the special tax for Fiscal Year 1998/1999. FISCAL IMPACT: All costs of formation of the district are being borne by the developers and the on-going administration will be funded entirely by the district. There is no impact to the General Fund The City will receive the benefit of full cost recovery for staff cost involved in district formation and district administration in perpetuity. Exhibit A - CFD Boundary September 23 , 1998 H:\HOME\ENGINEER\AGENDA\CERT98-2.LDT (File:0725-30-0SD034) /5'-- 2- ---+-.-. ~ (I L1. I' ~ E>Ci-+IB'''- í' : ¡ -. j -] 1:: o d 1:].. c. ~g EO ~ ] Q) . ,",0 ~ :1. ~~ X t~ t\] _>- "!.! I- "'.. 5:e; ] - '"'' m ~~ 00 .- -.. u o Q) ., c. " d J en .. ~~ u ;1 eõ Ii ~! -- Ii ~... J - -- N .¡::::' ''''C:::::~:'O) X~:~::::::::::::._,,_ . I ~ ,'.'I CO -.0 -, en t- Cf.) , U ., j -1>1) ... "" '" O 1-- Ul :;:: 8 Z ëi >!>!! 'ï ...0 j I-.....~z ~ u ~~<'i ",a:: «"-0'" I- Z _ '~ ,. (f) l.&.J Ø-t >- ~ \ 0::: to- tI.) þ-o 0, j "oz,<:z!o, I' ~ (f):::¡;!3uu ,,---- a ~ ø~ .~ JJ W L.&.J ;!o - U >.'" j C I- "" _... ..... w_«.w>t- VJ...Jc.O",~ 0_ <.n ......JV1 a.. U ~::;) .- ~ « z.~ Q a.l.&...WI-t ...4 ê5 ~ ~ >- <:>- I-::t .5 '. - ""< Z...... -A ::J I- 0 ::::;;: z, ::::;;: .5 .. 0 S ,00</-,,' '31'OS ~ U :::s . z u ~ 6 ~ .. CO ... m :;; -< ~ ~ ~ -' .. 'I ~ ~~ '~ ..~ o ã~ ~ ~Q~~~o! ~ 'I l:siia: t: Z ~ ~ .~~~>~ ~ ~~~ ~ ~. « ~¡:!;;~û~- ..; g:.I~ESa ~ >- .. 1:5 L...I ., ~~,b"'~ .. - '::Ji5 ~ ~ .- 0 .. ~..~~ ~ ~~O . ... ~ ~ ,,~~ ~ .o_~ 0 0 . - . ~ ~ ~ ~ u ~o ~~ _ . If) 15 'Ii . æ ~ ~ ~ ~ ~ ~ 0 lù 0...: ':!¿ ~ g ; ·0- d~ ~~~ ~~"Q~ ~I;;~ ,d ~~~ i5O~ " ¡¡ ~ 1 o ~. ~~o.~ '0 0 ~..o o.~ . ~ . >. t.. .~ .Q~a~ ~~ "'~'õ ~~~ ~ ~ ~i -, ~ 0' ., ,,"0.. ,', 0'" ',0 _ , , , , :... ~ I 5"'( :X:",Viè..::o ~J: (,::Jo CI:: ð ; ~ z ,z} , " , "~'¡,o"o ,~" "., ", . d ~ _, t\] ~ ~~o ~~..~~~" do" 'S~~ ~a~ i . ~ .. u. CO ~~ ~..~ ~~~:~ I~ tt~ I~ I~~~ SuI;; j ~ : 5 I. >. u ....~ .. o~.. ~ OO~ 0 ~ ~ n . '" - ~ E~' 001;; :'e~o~ ~ ~ ..~~ .. ~ E, ,- v, 01;; ~!i1_", ¡; ~ a.~ ~ . ,0 '" c .- ~. ~ ~~~o~ ~ '" ~> ~~~ . ." I ~ I . 0 - N '.., ." ""!'., U; . , E T""" Q) ~:5 æO:;:¡iS~~~~ Q~~i:i~~ _ III I E J:: Q:: is ..... - ::I...... I/) 0 Et3 >. OJ ou ~ ~;¡... ~~~~~u 3 .. 0 - t\] ~~. b~uo~ /'" ' Ü .=; a. ~o _ /,::> __ .. ~ r D ¿j 1) ï::::: 1ií ð 0. i ~~ NC/) ~~ ~~ ;ìj ë3 LL E 5 ü':Ü 1: !::::: ~ )~/( RESOLUTION NO. /7/ r¡ J 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. 98-2 (OPEN SPACE MAINTENANCE DISTRICT [MCMILLIN -D.A. AMERICA, OTAYRANCH- SPA TWO, VILLAGES 6&7]) DECLARING THE RESULTS OF A SPECIAL ELECTION IN SUCH COMMUNITY FACILITIES DISTRICT WHEREAS, the CITY COUNCIL of the CITY OF CHULA VISTA, CALIFORNIA (the "Legislative Body"), has previously declared its intention and held and conducted proceedings relating to the levy of special taxes in a community facilities district, 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 Govenunent Code of the State of California (the "Act"), said Community Facilities District designated as COMMUNITY FACILITIES DISTRICT NO. 98-2 (OPEN SPACE MAINTENANCE DISTRICT [MCMILLIN -D.A. AMERICA, OTAYRANCH - SPA TWO, VILLAGES 6&7]) (the "District"); and, WHEREAS, this Legislative Body did call for and order to be held an election to submit to the qualified electors of the District a proposition relating to the levy of special taxes and the establishment of an appropriations limit for such community facilities district; and, WHEREAS, at this time said election has been held and the measures voted upon and each such measure did receive the favorable 2/3' s vote of the qualified electors, and this legislative body does desire to declare the favorable results of the election in accordance with the provisions of the Elections Code of the State of California. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF CHULA VISTA, CALIFORNIA, ACTING AS THE LEGISLATIVE BODY OF COMMUNITY FACILITIES DISTRICT NO. 98-2 (OPEN SPACE MAINTENANCE DISTRICT [MCMILLIN- D.A. AMERICA, OTAY RANCH - SPA TWO, VILLAGES 6&7]), AS FOLLOWS: SECTION 1. The above recitals are all true and correct. SECTION 2. This legislative body hereby receives and approves the CERTIFICATE OF ELECTION OFFICIAL AND STATEMENT OF VOTES CAST, as submitted by the City Clerk, acting in her capacity as the Election official, said Statement setting forth the number of votes cast in the election, the measures voted upon, and the number of votes given for and/or against the measures voted upon. A copy of said Certificate and Statement is attached hereto, marked Exhibit "A", referenced and so incorporated. I /51) SECTION 3. The City Clerk is hereby directed, pursuant to the provisions of the Elections Code of the State of California, to enter in the minutes the results of the election as set forth in said STATEMENT OF VOTES CAST. PREPARED BY: APPROVED AS TO FORM BY: CL y..A A'Y\}- ~ . ll\~ John P. Lippitt John Kaheny Director of Public Works City Attorney 2 }-5/; --;L EXHIBIT" A" CERTIFICATE OF ELECTION OFFICIAL AND STATEMENT OF VOTES CAST STATE OF CALIFORNIA ) COUNTY OF SAN DIEGO ) ss. CITY OF CHULA VISTA ) The undersigned ELECTION OFFICIAL OF THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, does hereby certify that pursuant to the provisions of Section 53326 of the Government Code and Division 12, commencing with Section 17000 of the Elections Code of the State of California, I did canvass the returns of the votes cast at the CITY OF CHULA VISTA COMMUNITY FACILITIES DISTRICT NO. 98-2 (OPEN SPACE MAINTENANCE DISTRICT [MCMILLIN - D.A. AMERICA, OTAY RANCH - SPA TWO, VILLAGES 6&7]) SPECIAL ELECTION in said City, held September 22, 1998. I FURTHER CERTIFY that this Statement of Votes Cast shows the whole number of votes cast in said District in said City, and the whole number of votes cast for the Measures in said District in said City, and the totals of the respective columns and the totals as shown for the Measures are full, true and correct. I. TOTAL NUMBER OF VOTES CAST: yo\ II. VOTES CAST ON PROPOSITION A: YES '-tU \ NO m. VOTES CAST ON PROPOSITION B: YES 40\ NO WITNESS my hand and Official Seal this 02"1 tt day Of~ ' 1998. ~~~{). a.~ ELECTIO OFFICIAL CITY OF CHULA VISTA STATE OF CALIFORNIA A-I /S/?3 ORDINANCE NO. 02 ?~Y ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA, CALIFORNIA, ACTING IN ITS CAPACITY AS THE LEGISLATIVE BODY OF COMMUNITY FACILITIES DISTRICT NO. 98-2 (OPEN SPACE MAINTENANCE DISTRICT [MCMILLIN - D.A. AMERICA, OTAY RANCH - SPA TWO, VILLAGES 6&7]), AUTHORIZING THE LEVY OF A SPECIAL TAX IN SUCH COMMUNITY FACILITIES DISTRICT WHEREAS, the CITY COUNCIL of the CITY OF CHULA VISTA, CALIFORNIA (the "Legislative Body"), has initiated proceedings, held a public hearing, conducted an election and received a favorable vote from the qualified electors relating to the levy of a special tax in a community facilities district, all as authorized pursuant to the tenns and provisions of the "Mello-Roos Community Facilities Act of 1982", being Chapter 25, Part 1. Division 2, Title 5 of the Government Code of the State of California (the "Act"). This Community Facilities District is designated as COMMUNITY FACILITIES DISTRICT NO. 98-2 (OPEN SPACE MAINTENANCE DISTRICT [MCMILLIN - D.A. AMERICA, OTAY RANCH - SPA TWO, VILLAGES 6&7]) (the "District"). BE IT ORDAINED AS FOLLOWS: SECTION 1. The above recitals are all true and correct. SECTION 2. This Legislative Body does, by the passage of this ordinance, authorize the levy of special taxes at the rate and fonnula as set forth in Exhibit "A" attached hereto (the "Special Tax Fonnula"), referenced and so incorporated. SECTION 3. This Legislative Body is hereby further authorized, by Resolution, to determine the specific special tax rate and amount to be levied for the then current tax year or future tax years, except that the special tax rate to be levied shall not exceed the maximum special tax rate as authorized pursuant to the Special Tax Fonnula, but the special tax may be levied at a lower rate. SECTION 4. The proceeds of the above authorized and levied special tax may only be used to as authorized by the Special Tax Fonnula. The proceeds of the special tax shall be levied only so long as needed for its purpose, and shall not be used for any other purpose. SECTION 5. The above authorized special tax shall be collected in the same manner as ordinary ad valorem taxes are collected and shall be subject to the same penalties and the same procedure, sale and lien priority in case of delinquency as is provided for ad valorem taxes; however, as applicable, this legislative body may, by resolution, establish and adopt an alternate or supplemental procedure as necessary. SECTION 6. The above authorized special tax shall be secured by the lien imposed pursuant to Sections 31145 and 3115.5 of the Streets and Highways Code of the State of California, which lien shall be a continuing lien and shall secure each levy of the special tax. The lien of the special tax shall continue I 1S'1]-/ ----..-----.---------...- in force and effect until the special tax obligation is prepaid, permanently satisfied and canceled in accordance with Section 53344 of the Government Code of the State of California or until the special tax ceases to be levied by the legislative body of the local Agency in the manner provided in Section 53330.5 of said Government Code. SECTION 7. This Ordinance and special tax shall be applicable for the referenced District, as well as any future annexations. SECTION 8. This Ordinance shall be effective thirty (30) days after its adoption, Within fifteen (15) days after its adoption, the City Clerk shall cause this Ordinance to be published in a newspaper of general circulation in the City pursuant to the provisions of Government Code Section 36933. INTRODUCED AND FIRST READ at a regular meeting of the City Council of the City of Chula Vista, California, on ,1998; AND THEREAFTER ADOPTED at a regular meeting of the City Council of the City of Chula Vista, California, held on the day of , 1998, by the following vote: AYES: NOES: ABSTAIN: ABSENT: Presented by Approved as to form by John p, Lippitt, Director of ~~~ John M, Kaheny, City Attorney Public Works 2 /5 ß - :J... E",,^~';Í ,\ I' ~ Community' Facility District No, 98-2 Special Tax Report July 1,1998 Page 5 Part IV . Rate and Method of Apportionment of Special Taxes ANNUAL TAX A Special l:ax shall be levied annually on land within Community Facilities District No. 98-2 (Interim Open Space Maintenance District) of the City of Chula Vista (the "District"), and collected according to the Special Tax Liability determined by the City of Chula Vista (the "City") through the application of the following procedures. All of the property within the District, unless_ ptherwise exempted by law or the express provisions of the rate and method of apportionment expressed below, shall be taxed to the extent and in the manner provided below. All Special Taxes applicable to Parcels shall be collected in the same manner and at the same time as ordinary ad valorem property taxes, and that Special Taxes so levied will be subject to the same penalties and procedures, sale and lien priority in case of delinquency as is provided for ad valorem taxes. DEFINITIONS Acre or Acreage means the area of a Parcel as shown on the latest maps of the Assessor of the County of San Diego, or, if the area of such Parcel is not shown on such Assessor's maps, the area as shown on a current recorded subdivision map, parcel map, record of surveyor other recorded document creating or describing the Parcel. If the preceding maps are not available, the area shall be determined by the City Engineer. Administrative Expenses means the direct and indirect expenses incurred by the City in carrying out its duties with respect to the District (including, but not limited to, the levy and collection of the Special Taxes) including the fees and expenses of its counsel. Any fees of the County related to the District or the collection of Special Taxes. an allocable share of the salaries of City staff directly related thereto, any amounts paid by the City from its general fund with respect to the District, and expenses incurred by the City in undertaking actions to foreclose on properties for which the payment of Special Taxes is delinquent, and all other costs and expenses of the City related to the District. City means the City of Chula Vista District means the Interim Open Space Maintenance District - SPA Two (Villages 6 & 7) of the Community Facilities District No, 98-2 of the City of Chula Vista Facilities means those improvements defined in Part II of the Special Tax Report dated July 1, 1998 for Community Facilities District No, 98-2 of the City of Chula Vista, Fiscal Year means the period starting on July 1 and ending the following June 30. M:/$projectlchulavista/CFD98·2.1.doc )Sß~;1 ~..-- Community Facility District No, 98-2 Special Tax Report July 1,1998 Page 6 Maximum Special Tax means the maximum special tax that can be levied within CFD No. 98-2 by the City Council in any Fiscal Year for each Parcel of Taxable Property. Operating Fund means a fund that shall be maintained within the District for any Fiscal Year to pay for the actual costs of maintenance, repair, and replacement of the Facilities, and the Administrative Expenses. Operating ,Fund Balance means the amount of funds in the Operating Fund at the end of the preceqirJ9 Fi'scal Year, Operating Fund Requirement means for any Fiscal Year an amount equal to the budgeted costs of the maintenance, repair and replacement of the Facilities which have been accepted and maintained by the District or are reasonably expected to be accepted and maintained by the District during the current Fiscal Year plus the budgeted Administrative Expenses of the District for the current Fiscal Year in which Special Taxes are levied. Parcel means any San Diego County Assessor's Parcel or portion thereof that is within the boundaries of the District designated on a map of the San Diego County Assessor and which has been assigned a discrete identifying number on the equalized tax rolls of the County. Reserve Fund means a fund that shall be maintained to provide necessary cash flow for operations and maintenance for the first six months of each Fiscal Year, working capital to cover maintenance and repair cost overruns and delinquencies that may arise in connection with the collection of Special Taxes and a reasonable buffer against large variations in annual special tax amounts, Reserve Fund Balance means the amount of funds in the Reserve Fund at the end of the preceding Fiscal Year. Reserve Fund Requirement means the required balance in the Reserve Fund equal to up to 100% of the Operating Fund Requirement Special Tax means the special tax or special taxes actually levied within CFD No. 98-2. Special Tax Liability for any Fiscal Year is an amount determined sufficient to pay the costs of the District, including: (i) the amount required to be deposited into the Operating Fund to meet the Operating Fund Requirement, less the Operating Fund Balance, and (ii) the total amount required to be deposited into the Reserve Fund if any, to meet the Reserve Fund Requirement, less the Reserve Fund Balance, Taxable Property is all real property or Parcels within the boundaries of the District which are not exempt from the Special Tax pursuant to law, or which are not classified or assigned to the Exempt Category as defined herein, M:/$projecUchulavista/CFD98·2,1.doc /S-ß-1 - --- -----~-~~-_._--~.._._---- Community Facility District No. 98-2 Special Tax Report July 1,1998 Page 7 Cateaories of Special Taxes Taxable Category The taxable land category includes each Parcel of Taxable Property assigned to the District (Taxable Cåtegory). The Maximl,Jm Special Tax which may be levied on each Parcel within the Taxable Category for Fiscal :(ear 1998/99 shall be $47,52 per Acre (said amount to be levied pro rata for any portion of an Acre). Said Maximum Special Tax shall be increased or decreased each Fiscal Year thereafter by a factor which shall be the lesser of the annual percentage change in the January to January San Diego Metropolitan Area All Urban Consumer Price Index (All Items) or the annual percentage change in the estimated California Fourth Quarter Per Capita Personal Income as contained in the Governor's budget published every January. Exempt Category The exempt category includes each property owned by, conveyed or irrevocably offered for dedication to a public agency, land which is in the public right-of-way, unmanned utility easements which make utilization for other than the purpose set forth in the easement impractical, common areas, private streets and parks, and open space lots ("Exempt Category"), Assianment to Cateqories of Special Taxes On or about July 1 of each year (but in any event in sufficient time to include the levy of the Special Taxes on the County's secured tax roll) the City shall assign each Parcel within the District to the Taxable Category, or Exempt Category. Parcels subject to levy shall be determined based upon the records of the San Diego County Assessor Levv and Apportionment of Special Taxes The City shall determine the Special Tax Liability for the District in each Fiscal Year on or about every July 1 (but in any event in sufficient time to include the levy of the Special Taxes on the County's secured tax roll), Special Taxes shall then be levied on each Parcel within the District as follows: Step 1: The Special Tax for Parcels assigned to the Taxable Category shall be calculated as the lessor of: (i) The Special Tax Liability for the District as determined by the City, divided by the total Acres for all Parcels assigned to the Taxable Category, OR, /5ß~ M:/$projecUchulavista/CFD98-2.1.doc ---_._--_._._.._~ - . ,._------,..._----"..~..- Community' Facility District No. 98-2 Special Tax Report July 1,1998 Page 8 (ii) the Maximum Special Tax rate for Parcels assigned to the Taxable Category Step 2: The City shall advise the owner of Parcels within the District of the Special Tax Liability for the next Fiscal YeaL . Step 3: The owner(s) of Parcels within the District, may at its election, deposit funds with the City prior to July 15 of each Fiscal Year, in an amount equal to the Parcel's Special Tax' which shall be deposited into the Operating Fund and Reserve Fund of the District. Step 4: If the funds deposited with the City are less than the Parcel's Special Tax obligation for the Fiscal Year, then a Special Tax shall be levied equal to the Parcel's Special Tax as determined in Step 1 minus any funds deposited for the current Fiscal Year pursuant to Step 3. M:I$project/chulavista/CFD98·2,1.doc )~ß--~ ---_._"..~~-- ----- COUNCIL AGENDA STATEMENT Item I? Meeting Date 10/06/98 ITEM TITLE: Resolution 19 J '7 iAuthorizing Fieldstone Communities to construct and receive reimbursement for Reaches 201 through 207 and credit for Reaches 208 through 213 against development impact fees for construction of the Poggi Canyon Sewer line from Palm Avenue to Brandywine Avenue SUBMITTED BY: Dktt"', of ""lili, woo,!! ~ REVIEWED BY: City Manage~ ~ ...-:? (4/Sths Vote: Yes_No..xJ The City Engineer received a letter dated January 28, 1998 requesting Development Impact Fee reimbursement for the construction of the Poggi Canyon Sewer line and site work and construction of facilities related to Olympic Parkway. Improvement Plans for construction of the Sunbow II Offsite Sewer (poggi Canyon Sewer segments 201 through 213) were approved on September 30, 1997. The Poggi Canyon Sewer Development Impact Fee was adopted on December 9, 1997. RECOMMENDATION: That Council adopt the above resolution. BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. DISCUSSION: On November 25, 1997 a public hearing was held for the establishment of the Poggi Canyon Sewer Basin Development Impact Fee. Ordinance No. 2716, which established this fee, was adopted at its second reading on December 9, 1997. This fee was to finance the construction of a trunk sewer in the Poggi Canyon Sewer Basin from a proposed regional trunk sewer west of 1- 805 along Olympic Parkway to the boundary of Eastiake. Since the portion of the Poggi Canyon Sewer which is west of Oleander Ave. would also serve existing developments and was upsizing existing sewers, it was determined that the City should finance this portion of the sewer line (Reaches 201 through 207) from the Trunk Sewer Reserve Fund, revenue is from developer connection charges. Resolution No. 18824 was adopted which appropriated $1,756,440 to finance this portion of the Poggi Canyon trunk sewer. As provided in the Poggi Canyon Basin Gravity Sewer Basin Plan dated July 31, 1997, prepared by Wilson Engineering, the City is required to fund the upgrade of a portion of the existing system with reserves that were earmarked for the expansion of existing sewer systems. This was done because a portion of the new gravity sewer will upgrade an existing sewer to provide additional capacity for growth. Provided in Table 5-1 of the Poggi Canyon Basin Gravity Sewer Basin Plan, are limitations on reimbursement of $378,000 and $600,000 for Reach 201 and Reaches 202 through 204, respectively, for the City's contribution to the Poggi Canyon sewer. )¿-/ _____.___...,·._~..n·'.'.__·_.__·_~___·_ Page 2, Item_ Meeting Date 10/06/98 Improvement plans for the construction of the Sunbow II Offsite Sewer (Poggi Canyon Sewer Reaches 201 to 213, extending to the western boundary of the Sunbow development) were approved by the City on September 30, 1997. Since Fieldstone Communities is constructing Reaches 201 through 213, the City intends to reimburse them for the City's contribution requirement indicated in the Poggi Canyon Basin Gravity Sewer Basin Plan, for the construction of Reaches 201 through 207. In a letter dated January 28, 1998, Rod Bradley of BRA, Inc. (Engineer of Work for Fieldstone Communities) requested that the City authorize Development Impact Fee reimbursement to Fieldstone Communities for the construction of East Orange Avenue (Olympic Parkway) from the Sunbow eastern property line to the western property line and for the construction of the Poggi Canyon sewer line from Otay Valley to Olympic Parkway. The street construction work is included in the November 1993 Transportation Development Impact Fee (TDlF) Program at a total estimated cost of $6,266,000. Olyn¡pic Parkway Per Ordinance No.2251 and amendment Ordinances Nos. 2289 and 2580, a developer may request reimbursement or credit for the construction of facilities identified in the TDlF Capital Improvement Program (CIP) list. The following requirements must be met, per Ordinance No. 2251 and its amendments by the developer in order for construction and DIF reimbursement or credit to be authorized: 1. Plans and specifications prepared for approval by the City, along with a preliminary cost estimate 2. Three qualified bids secured for construction work 3. Easements and right-of-way required for the project secured and dedicated to the City 4. All required permits and environmental clearances obtained The work on Olympic Parkway for which BRA requested reimbursement on behalf of Fieldstone Communities included the construction of storm drain improvements, grading and site preparation and wetlands restoration. These improvements specifically related to grading for and construction of a detention basin for storm runoff and wetlands mitigation relating to road construction. As discussed in the letters dated February 12 and May 26, 1998 from staff to Rod Bradley of BRA, the information available and submitted was insufficient under the requirements of Ordinance No. 2251 and its amendments to authorize TDlF reimbursement or credit. BRA staff therefore agreed to postpone their request for reimbursement for these facilities until more information becomes available. )~'--.2. Page 3, Item_ Meeting Date 10/06/98 Po¡¡¡¡i Canyon Sewer The letter dated January 28, 1998 from BRA requested DIF reimbursement for Fieldstone Community's construction of Reaches 206 to 213. After discussing this request with staff, BRA's letter dated February 26, 1998 amended the request to include cash reimbursement for Reaches 201 through 207, and credit for Reaches 208 through 213. The following conditions have been satisfied by Fieldstone Communities as required by Ordinance No. 2716: 1. Improvement plans have been submitted to the City and were approved on September 30, 1997. Easements and right-of-way for the project have been obtained as required by the Director of Public Works. 2. All necessary permits and environmental clearances necessary for construction of the project have been obtained. The developer has paid all required permit and plan check fees and posted any necessary security. 3. Fieldstone Communities has secured three (3) qualified bids for the Sunbow II improvements, including grading, streets, storm drains and water lines, as well as sewer construction. The contract has been awarded to the overall lowest bidder, TC Construction. The contract costs then needed to be broken out to demonstrate that the cost for Reach 201 did not exceed $378,000, and that the cost for Reaches 202 through 204 did not exceed $600,000. This information was provided by BRA with their letter dated April 23, 1998. Construction costs for these segments were $241,611.50 and $387,874.10, respectively. The other issue pertains to the breakdown between facilities eligible for DIF reimbursement (Reaches 201 through 207) and facilities eligible for DIF credit (Reaches 208 through 213). Staff generally agrees with the breakdown of quantities and costs in BRA's letter dated June 16, 1998, with the exception that trench resurfacing for Reaches 208 through 213 should be 1129 linear feet rather than 705 linear feet. This would change the contract breakdown to $934,656.35 for Reaches 201 through 207 and $111,632.00 for Reaches 208 through 213. In a telephone conversation with staff in July 1998, Rod Bradley agreed to this modification of the cost and quantity breakdowns. Construction of the Poggi Canyon Sewer began in July 1998 and is estimated to be completed by the end of December 1998. When all work has been completed to the satisfaction of the City, Fieldstone Communities shall submit verification of payments made for the construction of this project to the City. The Director of Public Works shall make the [mal determination of expenditures which are eligible for credit or reimbursement. )/,r3 "- -~.+_._-- Page 4, Item_ Meeting Date 10/06/98 FISCAL IMPACT: Based on the contract amount, the estimated cash payment of $934,656.35 is less than the total of $1,756,440 which had been appropriated from Fund 222 for construction of this portion of the sewer line. This amount had been deposited into Account No. 667-6670- SW214 (in the Poggi Canyon Sewer DIF Fund). Therefore, sufficient funds have been appropriated to cover the reimbursement amount. The developer will be required to pay the Poggi Canyon Sewer DIF after the credit amount has been depleted. Exhibits: A. Ordinance No. 2716, Resolutions Nos. 18822 - 18824 and Council Agenda Statement B. Letter dated January 28, 1998 from Rod Bradley of BRA, Inc. with attached bids and cost estimates Letter dated February 12, 1998 from Clifford Swanson to Rod Bradley Letter dated February 26, 1998 from Rod Bradley Letter dated April 23, 1998 from Rod Bradley and attachments IG·. Letter dated May 26, 1998 from Clifford Swanson to Rod Bradley Letter dated June 16, 1998 from Rod Bradley and attachments R. Poggi Canyon Sewer Reaches 201 through 213, from the Poggi Canyon Sewer Basin Plan dated November 19, 1997 M:\HOME\ENGINEERIAGENDA\POGGICRI,EMC FILE 0730-20-HX049 jt,-,/ . _mu . _..._~__._ RESOLUTION NO. /9/9,/ RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING FIELDSTONE COMMUNITIES TO CONSTRUCT AND RECEIVE REIMBURSEMENT FOR REACHES 201 THROUGH 207 AND CREDIT FOR REACHES 208 THROUGH 213 AGAINST DEVELOPMENT IMPACT FEES FOR CONSTRUCTION OF THE POGGI CANYON SEWER LINE FROM PALM AVENUE TO BRANDYWINE AVENUE WHEREAS, improvement plans for construction of the Sunbow II Offsite Sewer (Poggi Canyon Sewer Segments 201 through 213) were approved on September 30, 1997; and WHEREAS, Ordinance No. 2716 establishing the Poggi Canyon Sewer Development Impact Fee was adopted on December 9, 1997; and WHEREAS, the city Engineer received a letter dated January 28, 1998 from BHA requesting Development Impact Fee reimbursement for Fieldstone Community's construction of Reaches 206 to 213; and WHEREAS, after discussing this request with staff, BHA's letter dated February 26, 1998 amended the request to include cash reimbursement for Reaches 201 through 207, and credit for Reaches 208 through 213; and WHEREAS, it was determined that the city should finance Reaches 201 through 207 of the sewer line from the Trunk Sewer Reserve Fund and Resolution No. 18824 appropriated $1,756,440 to finance this portion of the Poggi Canyon trunk sewer; and WHEREAS, there are limitations on reimbursement of $378,000 and $600,000 for Reach 201 and Reaches 202 through 204, respectively, for the city's contribution to the Poggi Canyon sewer¡ and WHEREAS, since Fieldstone Communities is constructing Reaches 201 through 213, the City intends to reimburse them for the City's contribution requirement indicated in the Poggi Canyon Basin Gravity Sewer Basin Plan for the construction of Reaches 201 through 207; and WHEREAS, Fieldstone Communities has satisfied the requirements of Ordinance No. 2716; and WHEREAS, based on the contract amount, the estimated cash payment of $934,656.35 is less than the total of $1,756,440 which has been appropriated from Fund 222 for construction of this 1 /t~5' portion of the sewer line, which amount has been deposited in Account No. 667-6670-SW214 (in the Poggi Canyon Sewer DIF Fund); and WHEREAS, therefore, sufficient funds have been appropriated to cover the reimbursement amount and the developer will be required to pay the Poggi Canyon Sewer DIF after the credit amount has been depleted. NOW, THEREFORE, BE IT RESOLVED the City Council of the city of Chula Vista does hereby authorize Fieldstone Communities to construct and receive reimbursement for Reaches 201 through 207 and credit for Reaches 208 through 213 against development impact fees for construction of the Poggi Canyon Sewer line from Palm Avenue to Brandywine Avenue. Presented by Approved as to form by ~rð-J)71'C-¿ J:J- John P. Lippitt, Director of John M. Kaheny, City Attorney Public Works H:\home\lorraine\rs\reaches.201 2 /? ~? COUNCIL AGENDA STATEMENT HemE /' Meeting Date 10/6/98 ITEM TITLE: Resolution )9/ Z5 Establishing dates for property owners to be ready to receive underground service and for the removal of poles and overhead facilities within Underground Utility District No. 126, along the first phase of Main Street from Industrial Boulevard to approximately 450' east of Broadway SUBMITrED BY, Vi",,,,, of P"blk Wo"" ~ REVIEWED BY: City Manage~:1l -? (4/Sths Vote: Yes_NoX) On January 9, 1996, the City Council held a pu lic hearing and approved Resolution No. 18177 establishing Underground Utility District No. 126, along Main Street, from Industrial Boulevard to Third Avenue. This resolution covers the first phase of the district which starts at Industrial Boulevard and ends at a point approximately 450' east of Broadway. In accordance with Section 1532.150 of the Chula Vista Municipal Code, Resolution 18177 states that the City Council shall by subsequent resolution set the date upon which affected property owners must be ready to receive underground service and the date by which SDG&E shall remove poles, overhead wires and associated structures. The conversion of overhead utilities to underground within phase I is scheduled to be completed by March 5,1999. City Council Policy #585-01 allows the City to use utility undergrounding funds to reimburse all affected properties for the cost of undergrounding of private service laterals. RECOMMENDATION: That Council approve the resolutions to: L Set November 13, 1998 as the date by which property owners within the first phase of Underground Utility District No. 126, along Main Street from Industrial Boulevard to a point approximately 450' east of Broadway shall be ready to receive underground service 2. Set March 5, 1999 as the date by which poles, overhead wires and associated structures shall be removed within the first phase of Underground Utility District No. 126, along Main Street from Industrial Boulevard to approximately 450' east of Broadway BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. DISCUSSION: On January 9, 1996, the City Council approved Resolution No. 18177 establishing Underground Utility District No. 126, along Main Street from Industrial Boulevard to Third Avenue. Also, in accordance with the City Code and said resolution, the City Clerk notified all property owners within the district of the relevant provisions by mailing each owner and resident a copy of said resolution, There were no inquires by the property owners regarding the notification. ) 7--/ ____ ___ ~___.________~_n_.~ Page 2, Item Meeting Date 10/6/98 During a meeting of the Utility Undergrounding Advisory Committee (UUAC) on August 12, 1998, the utility representatives informed Engineering staff that they can meet the following schedule for phase I of the subject underground conversion district: Date for Customers to be ready to receive November 13, 1998 Underground Service Date for the completion of under grounding March 5,1999 work and the removal of overhead utilities, poles and associated structures Upon approval of this resolution, notices of these dates will be sent to residents and owners of real property within the district. Exhibit "A" shows a listing of those property owners. The conversion work by the property owners involves trenching, backfill and installation of conduit from the property line to point of connection. On December 15, 1992, the City Council approved Resolution 16934 amending City Council Policy No. 585-1 expanding the use of SDG&E utility funds to reimburse all property owners for their trench work. The new policy is applicable to all districts formed in calendar year 1992 and thereafter. Each property owner is required to dig a trench for lateral connection will be reimbursed at a rate of$30 per foot of trenching (up to 100'). The City will reimburse each property owner, after receipt of said funds from SDG&E and completion of the building permit process. There are 27 properties in the fIrst phase of the district. Only sixteen properties, are required to construct a trench will be reimbursed (1 single family dwelling and 15 non-single family dwellings). The subsidy to single family dwelling is estimated to be $750. The estimated subsidy to non-single family dwellings is estimated to be $18,600. Exhibit "B" gives an estimate of the reimbursement to each property owner. The boundary for the project is shown on attached Exhibit C. FISCAL IMPACT: The cost of pole removal, undergrounding overhead facilities and private property conversion reimbursements as outlined above is estimated to be $720,000. SDG&E's allocation funds (Rule 20-A) will cover the cost of the project. The estimated subsidy to property owners for their trench work is $19,350 which is based on $30 per foot of trench and is normally enough to cover the property owner's total cost. Attachments: Exhibit A - NotifIcation Mailing list Exhibit B - List of parcels and property owners qualifying for reimbursement with an estimate of the reimbursement Exhibit C - Boundary Map of Phase 1 of the project Copy of Resolution 18177 - t-1 &1 File Nn: 0810-20-A Y -094 H:\HOMEIENGINEERIADVPLANlUUDIS1ìMAINS1\98ACRA WS /7- c2.. RESOLUTION NO. /'1/9£ RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ESTABLISHING DATES FOR PROPERTY OWNERS TO BE READY TO RECEIVE UNDERGROUND SERVICE AND THE REMOVAL OF POLES AND OVERHEAD FACILITIES WITHIN UNDERGROUND UTILITY DISTRICT NO. 126, ALONG THE FIRST PHASE OF MAIN STREET FROM INDUSTRIAL BOULEVARD TO APPROXIMATELY 450 ' EAST OF BROADWAY WHEREAS, the City Council has heretofore by Resolution No. 18177 established Underground Utility District No. 126 along Main Street, from Industrial Boulevard to Third Avenue; and WHEREAS, this resolution covers the first phase of the district which starts at Industrial Boulevard and ends at a point approximately 450' east of Broadway; and WHEREAS, in accordance with Section 15.32.150 of the Chula vista Municipal Code, it is now desired, pursuant to said resolution, to fix the date on which affected property owners must be ready to receive underground service. NOW, THEREFORE, BE IT RESOLVED by the city Council of the city of Chula Vista that the following dates are hereby established ordering the property owners to prepare properties for receipt of underground utilities: l. The property owners within Underground Utility District No. 126 shall be ready to receive underground service from San Diego Gas and Electric Company on November 13, 1998. 2 . Poles, overhead wires and associated overhead structures shall be removed from parcels within Underground Utility District No. 126 by March 5, 1999. BE IT FURTHER RESOLVED that the City Clerk of the City of Chula vista be, and she is hereby directed to forward a certified copy of this resolution to all affected utility companies and property owners. Presented by Approved as to form by 69,,~¿r-TÞ( '/~µ~ John P. Lippitt , Director of John M. Kaheny, City ,5 Public Works Attorney H:\home\lorraine\rs\UUD /7~) EXHIBIT "An NO. OF PROPERTIES OWNERS ADDRESS IN DISTRICT COMMENTS 2320 MAIN STREET ASSOCIATES 1 NO OVERHEAD 2320 MAIN ST UTILITIES POBOX 5057 CHULA VISTA. CA 91912 BRISTOL GROUP INC. 1 PROPERTY HAS C/O MEISSNER JACQUET OVERHEAD 3870 MURPHY CANYON RD #300 UTILITIES SAN DIEGO, CA 92123 G P B PROPERTIES LTD 2 NO OVERHEAD 2490 MAIN ST #G UTILITIES CHULA VISTA, CA 91911 HSIEH PETER 1 PROPERTY HAS 2550 MAIN ST #A OVERHEAD CHULA VISTA. CA 91911 UTILITIES LEAF JERRY & JOYCE C TRS 2 ONE PROPERTY 3535 1ST AVE #16D HAS OVERHEAD SAN DIEGO, CA 92103 UTILITIES REYES AGUSTIN 2 PROPERTIES HAVE 96 SHERWOOD ST OVERHEAD CHULA VISTA. CA 91911 UTILITIES MORALES SERGIO & CECILIA 1 PROPERTY HAS 2516 MAIN ST OVERHEAD UTILITIES CHULA VISTA. CA 91911 CARRINGTON EARLEAN 1 NO OVERHEAD C/O GBP PROPERTIES L TOIW GLAD UTILITIES 2474 MAIN ST#C CHULA VISTA, CA 91911 JABRO ROMMEL S 1 PROPERTY HAS 13849 DEANLYWAY OVERHEAD UTILITIES LAKESIDE, CA 92040 OLIVAS BASILIO JR & MARIA 1 PROPERTY HAS C/O AMERICAN RESIDENTIAL OVERHEAD UTILITIES 11119 N TORREY PINES RD LA JOLLA, CA 92037 MAY ALVIN & JEAN K REVOCABLE TRUST OF 1984 1 NO OVERHEAD 4295 ACACIA AVE UTILITIES BONITA. CA 91902 /7/1 NO, OF PROPERTIES OWNERS ADDRESS IN DISTRICT COMMENTS PINTADO FRANCISCO & SOFIA 1 POWER POLE ON 109 JACQUA ST SIDE STREET CHULA VISTA. CA 91911 FREEBY LlBBIE A 1 PROPERTY HAS 2489 MAIN ST OVERHEAD UTILITIES CHULA VISTA, CA 91911 LEAF FAMILY TRUST 1 PROPERTY HAS 35351ST AVE#16D OVERHEAD UTILITIES SAN DIEGO, CA 92103 ROMAN EFREN & MARIA 1 PROPERTY HAS 2513 MAIN ST OVERHEAD UTILITIES CHULA VISTA, CA 91911 ICHIY ASU TSUYUKO FAMILY TRUST 2 ONE PROPERTY HAS 1453 W 123RD ST OVERHEAD UTILITIES LOS ANGELES. CA 90047 THOMAS FAMILY TRUST 1 PROPERTY HAS 7585 MISSION GORGE RD OVERHEAD UTILITIES SAN DIEGO, CA 92120 THRIFTY OIL CO 1 NO OVERHEAD C/O ARCO PS&T TAX DEPT * S8#05410-12 UTILITIES POBOX 2485 LOS ANGELES, CA 90051 SEPEHRI SOHRAB & FARIBA 2 NO OVERHEAD C/O SAM SEPHRI UTILITIES 23 SPINNAKER WAY CORONADO, CA 92118 PATRICK MEDIA GROUP 2 BILLBOARDS HAVE 1550 W. WASHINGTON BLVD, ELECTRICAL LOS ANGELES, CA 90007 UTILITIES SEAMAN DONALD & STREICHER EDWARD 1 PROPERTY HAS C/O ELISE ROGERSON OVERHEAD UTILITIES 1400 BROADWAY #1400 SAN DIEGO. 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RESOLUTION NO. 18177 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ESTABLISHING UNDERGROUND UTILITY DISTRICT NO. 126 ALONG MAIN STREET FROM INDUSTRIAL BOULEVARD TO THIRD AVENUE AND AUTHORIZING THE EXPENDITURE OF ALLOCATION FUNDS TO SUBSIDIZE PRIVATE SERVICE LATERAL CONVERSION WHEREAS. by Resolution No. 18141, a public hearing was called for 6:00 p.m. on Tuesday, the 9th day of January, 1996, in the Council Chambers of the City of Chula Vista at 276 Fourth Avenue in said City, to ascertain whether the public health. safety or welfare requires the removal of poles, overhead wires and associated overhead structures and the underground installation of wires and facilities for supplying electric. communication or similar or associated service within that certain area of the City more particularly described as follows: All that property lying along Main Street from Industrial Boulevard to Third Avenue and enclosed within the boundary as shown on the plat anached hereto as Exhibit A of subject Underground Utility District. and WHEREAS, notice of such hearing has been given to all affected property owners as shown on the last equalized assessment roll, and to the utility companies concerned in the manner and for the time required by law, and WHEREAS. such hearing has been duly and regularly held, and all persons interested have been given an opportunity to be heard. NOW. THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista hereby finds and determines that the public health, safety and welfare requires the removal of poles. overhead wires and associated structures, and the underground installation of wires and facilities for supplying electric, communication or similar associated services, the above-described area is hereby declared an Underground Utility District, and is designated as such in the City of Chula Vista. Anached hereto, marked Exhibit A, and incorporated herein by reference is a map delineating the boundaries of said District. BE IT FURTHER RESOLVED that the City Council shall, by subsequent resolution. fix the date on which affected property owners must be ready to receive underground service, and does hereby order the removal of all poles, overhead wires and associated overhead structures and the underground installation of wires and facilities for supplying electric. communication or similar associated service within said Underground Utility District. BE IT FURTHER RESOLVED that the City Clerk is hereby instructed to notify all affected utilities and all persons owning real property within said Underground Utility District of the adoption of this resolution within fifteen days after the date of said adoption. Said City Clerk shall further notify said property owners of the necessity that, if they or any person occupying such property desires to continue to receive electric, communicatin.¡ or other similar or associated service, they, or 3uch occupant shall, by the date fixed in a 3ubseQuent , /7/1 \ l I . . Rfi!solution 18177 . Page 2 resolution provide all necessary facility changes on their premises so as to receive such service from the lines of the supplying utility or utilities at a new location, subject to the applicable rules, regulations and tariffs of the respective utility or utilities on file with the Public Utilities Commission of the State of California as of the date of adoption of this resolution. Such notification shall be made by mailing a copy of this resolution to affected property owners as shown on the last equalized assessment roll and to the affected utility companies. BE IT FURTHER RESOLVED that the City Council hereby finds that the Underground Utility District herein created is in the general public interest for the following reasons: 1. Main Street is a major east/west thoroughfare connecting 1-5 and 1-805 in the southern portion of Chula Vista. The undergrounding of existing overhead utilities will contribute to the creation of an aesthetically pleasing major street. 2. Main Street is in the General Plan's Circulation Element as a four-lane major street. 3. Undergrounding has been completed on Main Street east of Third Avenue and west of Industrial Boulevard. thus making the proposed district a link between two undergrounded sections. 4. The proposed widening and construction of street improvements in Main Street between Industrial Boulevard and Fourth Avenue significantly increased the ranking of the subject section in the City's adopted utility conversion program, thus making it a priority project. The first phase of this project is in the City's CIP budget as Project ST-961; Main Street - Industrial to Broadway to be constructed in FY 1997-98. BE IT FURTHER RESOLVED that the City Council does hereby authorize the use of approximately 1.5 million dollars in utility allocation funds to cover the cost of pole removal, undergrounding overhead facilities, and private property conversion reo bursements. Presented by d as to for l!uL7~ J Bruce M. Boogaard blic Works Director City Attorney l /7./ /0 ::.\;'''~" .....\.. :-;., ~n...__ . . Resolution 1 B 177 I Page 3 Exhibit A (page 1 of 2) HOLLISTER STREET I' INDUSTRIAL BL VD, Cft IOf San Di. 10 C C - , ::0 Chr of ChUla Via'. U. U. Disl No. 119 , :Þ -4 » MTDB RIGHT OF WAY m ~ .... I ..- Z "'0 E1 :rJ- r Z~ to 0'" , L .,,-i , -- -< · -- .. o~ , . e - ",n : l NO SCAlE 0 m-i W ~ 0." , 02 - I W t- O> t.YI -::D 100' "'n . -im ~r- !:¡Z ~ c · C!~ · · OC! · ~ c:m ¡j.\; to Z::D :Þ 0 0 @ - > : 0 Z c: :rJ I I , ~r Z ." · .... - 0 · · 0004 C -.:: · - · · @'ª C ::0 · Z · C · : C · . · (1)-" · · :Þ 0004en::o · · ." · en · - © · : ::¡,~o · · _::0" .... · · :ÞëSo C') · :I · · ¡--¡en :t ." · m · m :. ~m toZC c:: < ¡-o r- :rJ <' c: m c..-¡ ):. . N;= @ (1)- " :rJ -¡ 0004 -< - m 0 CI) - ® c: - Z 'i 0004 C ):. ) ::::J: m - ::0 ~ :Q C) 0 :1.1 t·~ " 0 I . :Þ c: . ~... < Z en ,,~' =r '. m 52 ~t:!> C\) , Z Z .. C\) .. '/"v~(\ . ... ù~ c: C) -- :..:.>.'...... ~Gr ~" ,.. m Aj.,<· /7-/ ! 0 - . I'.:> ~ii. :.. II .... ... ",. , 0, ~!~ - ---- --~._- _._----_._"-~- . . Resolution 18177 Page 4 ., , r-, - " N W - 0 ::> II> ..... ...-......--- z Z II> Õ W ~ CI) z > ::> ~ 0 a: 0 0 a: a: - @E w ~ I I ":{ 0 ~ , I Co : ¡.,. z · ::> ilnH¡¡W' · tI) 0 1 - > ~ :::. ~ j, =ï co . _NO I· ":{ ~...> 1 ::>. JI ..,¡ 0...1 · ::::. OZCC · Ji · w · ::t · CI)~...I · 1 · l) OU~ J' · · · c..ã:- · ..J · ~ o~a: · <t · a:CI)~ .^'t IIU. · · 0 c..-CI) · · 0::> ., · · · · I- - -- · · ~ 0 : 1S · ).. - · - : . · CC · ¡.,. ~ Z i · - -, · - :t ...! :-.LC · - c.. · , =@ · l) <{ X . · ~ ,I : IÐ · :æ w · · w ::J' · I · · · W I~ I · > · a: - ®= a: - - . ,<{ ~ : J.iiWJ.S I · CI) · ° I I > z Z .c:: ::> « 0 - : ~ , 0 ~ , CD ® .c::Z .~ Z ® w:::> !tIo ® - ~!tI - C :::>1- nQS .. ® :IE Zu ..J- 72 =:t. w.c:: ® uti . It') - · · -----. ~ is CI) : '" -') '" - · · D..o M · ® · :E · ~ 0 · · I-W · 0 .'" - · . · Ul/) ... · · -0 .. · ® : .c::D.. > ... · · 1-0 CD · : !!1.c:: OD.. Z ~ W <{ i- a: <t ° 0 ~ --- . . Resolution 18177 . Page 5 , :AS~ED. APPROVED, and ADOPTED by the City Council of the City of Chula Vista. Cahfornla, thIs 9th day of January. 1996, by the fOllowIng vote: AYES: Councilmembers: Moot. Rindone. Horton NA YES: Council members: None ABSENT: Councilmembers: Padilla ABSTAIN: Councilmembers: Alevy ~/~ ShiJy Horton, Mayor ATTEST: STATE OF CALIFORNIA ) COUNTY OF SAN DIEGO ) S5. CITY OF CHULA VISTA ) I, Beverly A. Authelet, City Clerk of the City of Chula Vista, California, do hereby certify that the foregoing Resolution No. 18177 was duly passed, approved, and adopted by the City Council at a regular meeting of the Chula Vista City Council held on the 9th day of January, 1996. Executed this 9th day of January, 1996. Beverly . Authelet, City Clerk " " , '. ~'',- !.,..; ~ '._J., t-.::' .- .'}ltJ4. ; rr1~ . ".-, '~ .'" :. 'Jj, .,~~ /7---/3 "~.;..,,, 'i< " --_._.._--~~. COUNCIL AGENDA STATEMENT Item /f.T Meeting Date 10/6/98 ITEM TITLE: Resolution /9/ '1 ? Approving the addition of a capital improvement project to complete environmental and engineering work required for the construction of the Salt Creek Trunk Sewer and appropriating $150,000 from the Trunk Sewer Capital Reserve Fund (Fund No. 222) and $150,000 from the Salt Creek Sewer Basin Development Imp~1 Fœ _ Œ'md N~) 10 oo.cr '"" 1001 of mid wo,k SUBMITTED BY: Director of Public Works 6M\ REVIEWED BY: City Manager-"})~ ~.---? (4/5ths Vote: Yes-X-No_) The Salt Creek Trunk Sewer has been proposed for the transport of wastewater from new developments in eastern Chula Vista and to provide additional capacity for the existing wastewater collection systems in southern Chula Vista. On December 6, 1994, the City Council established the Salt Creek Sewer Basin Development Fee to fund a large portion of this trunk sewer. The proposed interceptor will generally parallel Salt Creek and the Otay Valley River beginning just west of Upper Otay Reservoir and terminating at the City of San Diego's Metro Sewer west of Interstate 5. Approval of this resolution will establish a Capital Improvement Project for the preliminary design to determine the environmental constraints and alignment for subsequent final design and construction of the interceptor. Preliminary design will also provide an overall project cost and schedule. The Overall project cost estimate will include costs for environmental documentation and mitigation, pipeline final design and construction. Preliminary cost estimates for the overall project costs based on initial sewer studies indicate that the total project cost is approximately $20 million, RECOMMENDATION: That Council adopt the Resolution approving the addition of a capital improvement project to complete environmental and engineering work required for the construction of the Salt Creek Trunk Sewer and appropriating $150,000 from the Trunk Sewer Capital Reserve Fund (Fund No. 222) and $150,000 from the Salt Creek Sewer Basin Development Impact Fee Fund (Fund No. 670) to cover the cost of said work BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. DISCUSSION: The proposed Salt Creek Trunk Sewer will provide a gravity sewer interceptor paralleling Salt Creek and the Otay River Valley beginning just west of Upper Otay Reservoir and terminating at the City of San Diego's Metro Sewer near Interstate 5. The completed interceptor will convey /8''''/ ------- Page 2, Item_ Meeting Date t 0/6/98 flows from the developments of Rolling Hills Ranch, Eastlake, Otay Ranch, Olympic Training Center and adjacent properties, and also provide additional capacity for the existing wastewater collection system for the southern part of the City. In November of 1994, Wilson Engineering prepared a report entitled, "Salt Creek Basin Gravity Sewer Analysis". This report was the basis for establishing a Salt Creek Sewer Basin Development Impact Fee to pay for the eastern portion of the Salt Creek Trunk Sewer. The report identified over 12 1\2 miles of sewer line ranging from 15-inch at the eastern end to 36-inch at the westerly end. The report also segregated the trunk sewer into nine reaches as shown on exhibit" A". The Salt Creek Sewer Basin Development Impact Fee was established in 1994 to provide funding for the construction of Reaches 1 through 8. Reach 9, which consists of approximately 27,000 linear feet of 36-inch main, would commence approximately 1,500 feet east of Otay Valley Road and extend westerly through the Otay River Valley to the City of San Diego's Metro Sewer near Interstate 5. This reach will convey all sewage from the Salt Creek Basin along with the total sewage flow from the Poggi Canyon and Main street Basins. To date, portions of several reaches have been constructed as development continues in the eastern territories. Reach 1 is currently under construction by Pacific Bay Homes; Reach 2 is in the design/planning stages through Eastlake Trails Development; and portions of Reaches 4 and 5 were constructed as part of a joint project with SDG&E's Pipeline 2000 gas line which was funded by Village Development. In addition to providing sewer capacity for new developments in the eastern territory, the construction of this facility will also allow for the removal of three pump stations and save several million dollars in upgrades to the Telegraph Canyon interceptor which is currently receiving some pumped flow from Eastlake, Rolling Hills Ranch and the Olympic Training Center. The annual maintenance cost for operation of the three pump stations currently runs at approximately $100,000 per year. The flow now being pumped into the Telegraph Canyon Trunk Sewer would flow by gravity through the new Salt Creek Trunk upon its completion. Development Impact Fees collected for improvements required to the Telegraph Canyon Trunk Sewer from the Telegraph Canyon Pump Flow Development Impact Fee may be applied towards construction of the Salt Creek Trunk Sewer. Upon approval of this project, staff intends to circulate a Request for Proposal to select a consultant to provide the preliminary engineering and environmental documentation to satisfy CEQA and NEPA Regulations. Upon completion of this work, staff intends to return to Council with a detailed project cost based on the consultant's [mdings and a detailed funding mechanism for actual completion of the project. The Trunk Sewer Capital Reserve Fund which is intended for construction of sewer trunk facilities currently contains an unencumbered balance of $12,600,000 and total assets in excess of $16 Million (im;luding outstanding loans). The Development Impact Fee for the Salt Creek Trunk Sewer will generate an estimated income of approximately $8 million towards construction of reaches 1 through 8. Because the Development Impact Fee is collected at time of building pennit it could take up to 30 years, depending on the rate of development, to generate the $8 million. A funding mechanism is needed to provide funds within the next few years that would be reimbursed as money is collected with building pennits. / ð"~~ Page 3, Item_ Meeting Date 10/6/98 The Trunk Sewer Capital Reserve Fund will also increase as funds are collected with building permits in the eastern territory. FISCAL IMPACT: At the time the Development Impact Fee was established for the Salt Creek Trunk Sewer, it was agreed that the development of the eastern territories will finance the construction of Reaches I through 8 and that the City would construct Reach 9 which contains flows that originate outside the Salt Creek Basin. It is proposed at this time that funding for the initial phase of engineering and environmental work be equally split between the Trunk Sewer Capital Reserve and the Salt Creek Sewer Basin Development Impact Fee. The current fund balance in the Salt Creek Development Impact Fee fund is $178,000. Staff propose that $150,000 be appropriated from this fund and an equal amount be appropriated from the Trunk Sewer Capital Reserve Fund. Any future funding mechanisms to finance Reaches 1 through 8 must be self- sufficient and wholly supported by the development of the eastern territories. The Trunk Sewer Capital Reserve Fund balance of excess of $12,000 is capable of funding the City's obligation to construction Reach 9. Based on development projections over the next five years, the Trunk Sewer Capital Reserve Fund should increase annually by approximately $3 million. Use of the Trunk Capital Reserve Fund and the Salt Creek Sewer Basin Development Impact Fee Fund is specifically permitted under chapter 3.14 of the Municipal Code (Exhibit "C") and Section 1 0 of Ordinance 2617 respectively. I M"""'- Exhibit "A" Plat of Salt Creek trunk sewer Ç.) Exhibit "B" Agenda Statement and Ordinance 2617 - Salt Creek Sewer DIF ~ Exhibit "C" Chapter 3.14 of the Municipal Code ¡.., ~ H:\HOMEIENGINEERIAGENDA\SCCIP.DCD FILE NO.: 735·to.SW219 /7--3 RESOLUTION NO. )f/7? RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE ADDITION OF A CAPITAL IMPROVEMENT PROJECT TO COMPLETE ENVIRONMENTAL AND ENGINEERING WORK REQUIRED FOR THE CONSTRUCTION OF THE SALT CREEK TRUNK SEWER AND APPROPRIATING $150,000 FROM THE TRUNK SEWER CAPITAL RESERVE FUNDS (FUND NO. 222) AND $150,000 FROM THE SALT CREEK SEWER BASIN DEVELOPMENT IMPACT FACT FUND (FUND NO. 670) TO COVER THE COST OF SAID WORK WHEREAS, the Salt Creek Trunk Sewer has been proposed for the transport of wastewater from new developments in eastern Chula vista and to provide additional capacity for the existing wastewater collection systems in southern Chula Vista; and WHEREAS, on December 6, 1994, the City Council established the Salt Creek Sewer Basin Development Fee to fund a large portion of this trunk sewer; and WHEREAS, the proposed interceptor will generally parallel Salt Creek and the Otay Valley River beginning just west of Upper Otay Reservoir and terminating at the city of San Diego's Metro Sewer west of Interstate 5; and WHEREAS, approval of this resolution will establish a Capital Improvement Project for the preliminary design to determine the environmental constraints and alignment for subsequent final design and construction of the interceptor; and WHEREAS, preliminary design will also provide an overall project cost and schedule; and WHEREAS, the Overall project cost estimate will include costs for environmental documentation and mitigation, pipeline final design and construction; and WHEREAS, preliminary cost estimates for the overall project costs based on initial sewer studies indicate that the total project cost is approximately $20 million. NOW, THEREFORE, BE IT RESOLVED the city Council of the City of Chula vista does hereby approve the addition of a capital improvement project to complete environmental and engineering work required for the construction of the Salt Creek Trunk Sewer. 1 /?f /Lj BE IT FURTHER RESOLVED that $150,000 is hereby appropriated from the Trunk Sewer Capital Reserve Fund (Fund No. 222) and $150,000 from the Salt Creek Sewer Basin Development Impact Fund (Fund No. 670 ) to cover the cost of said work. Presented by Approved as to form by JÇ¡~"I~¿~.td/~ John P. Lippitt, Director of Joh ~ Kaheny, City Attorney Public Works H:\home\lorraine\rs.\sccip 2 ) ?J"~ - -.."-..---------.-- COUNCIL AGENDA STATEMENT Item /'J Meeting Date 10/06/98 ITEM TITLE: Resolution / f / <} 7 Authorizing the Mayor to execute an agreement with the San Diego Unified Port District for receipt of financial assistance in the amount of $30,000 and amending the City's existing contract with the Chamber of Commerce for production of the Harbor Days Festival to provide for the pass- through of $30,000 of the Port funding to support that event and appropriating funds therefore. SUBMfITED BY, ""lib, Infunmtioo """"';I:;: REVIEWED BY: City ManageW~ -? ths Vote: YesXNo_ In June 1998, the City submitted a fmancial assistance request t e San Diego Unified Port District (Port) for partial funding of the Chula Vista Harbor Days Festival. The Board of Port Commissioners approved funding of $30,000 at their meeting of August 4, 1998, and the Port requires that the City enter into a fonnal agreement which stipulates conditions and City requirements for receipt of the approved funding. This item executes that agreement for the Harbor Days Festival and amends the City's agreement with the Chamber of Commerce to produce the event. RECOMMENDATION: That Council adopt the resolution authorizing the Mayor to execute an agreement with the San Diego Unified Port District for receipt of fmancial assistance in the amount of $30,000 and amending the City's existing contract with the Chamber of Commerce for production of the Harbor Days Festival to provide for the pass-through of $30,000 of the Port funding to support that event and appropriating funds therefore. BOARDS/COMMISSIONS RECOMMENDATION: N/A DISCUSSION: In June 1998, the City submitted financial assistance requests to the San Diego Unified Port District for partial funding of the Harbor Days Festival, Summer "Pops" Concert, Arturo Barrios 10K Invitational and Chula Vista Expo '99. The Board of Port Commissioners approved the funding for all four events (for a total of $85,000) at their meeting on August 4, 1998. Following approval, the Port District requires the City to enter into fonnal agreements which stipulate certain conditions and City requirements for receipt of the approved funding. (Attaclunent "A") This agreement process was instituted by the Port District in 1993, to ensure that all recipients of Port District funding were utilizing the funds for the purposes indicated on the request for funding, and to ensure that the Port District was given adequate recognition in advertising and promotions for events that are co-sponsored and partially or completely funded by the Port District. The City has entered into similar agreements in the past for Port District funding, 19-/ Item No. Meeting Date 10/06/98 Several weeks after the Port funding was approved, the city received a written request to provide "Exhibit A" which briefly describes Harbor Days as well as the promotion and media activities that were designed to help publicize the Port as a co-sponsor of the event. While the city staff returned "Exhibit A" immediately after the Port's letter and requested the contracts as soon as possible since the event was scheduled on Sept. 19-20, the contracts were not received until Sept. 22 -- thus not in time to bring this item to Council prior to the event. Therefore, this is a bookkeeping action to transfer money after the event. The City had previously executed a contract with the Chula Vista Chamber of Commerce to produce Harbor Days (Attachment "B"). The contract, which stipulates funding allocated by the City during the FY 98-99 budget process, was executed with the Chamber to allow the Chamber to proceed with the planning of the Harbor Days Festival. The contract was finalized prior to receiving the Port District contract, and the Chamber contract is now being amended to include the funding provided by the Port; this action amends the agreement to add the terms of the Port District contract and provides for the pass-through of $30,000 of the Port District funding to the Chamber of Commerce for production of the Harbor Day Festival. (Attachment "C") The Port District has significantly reduced their financial grant program for the past several years, and they expect this trend to continue with additional cuts required next year as well. The Port District reductions have been applied to member cities as well as outside agencies requesting funds. These reductions have decreased financial support of Chula Vista events by $14,500 in 4 years. In 1994-95, the Port District helped in funding five City events for a total of $99,500, in 1995-96 funded four events at $93,000, and in 1996-97 funded four events at $87,500. This year's total funding is $85,000 for four events. The Port agreement includes a General Terms and Conditions section which contains Hold Harmless language and insurance requirements. The City was in full compliance with the insurance and hold harmless stipulations for the Harbor Days Festival, and the City executed the Port District Tidelands Activity Permit which contained similar language and requirements. FISCAL IMPACT: The Port has approved $30,000 of financial assistance for this event, which supplemented approved City funds ,of $12,000 for Harbor Days. In addition, the City provides a number of services and support for an estimated total in-kind contribution of more than $21,000. With this action, the City accepts $30,000 in unanticipated revenue and appropriates those funds to the community promotions account number 100-0130-5202 for reimbursement of expenses for Harbor Days. Port District funding greatly enhances the scope, quality, and diversity of this event, and benefits the City and its populace by providing an attractive special event that attracts large numbers of people to the Bayfront. Attachments: "A" - Port Agreement - Harbor Days and Tall Ship Festival "B" - City Contract with Chula Vista Chamber of Commerce - Harbor Days Festival "C" - Amendment to City Contract with Chula Vista Chamber of Commerce /9-:2.- RESOLUTION NO. /9/97 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT WITH THE SAN DIEGO UNIFIED PORT DISTRICT FOR RECEIPT OF FINANCIAL ASSISTANCE IN THE AMOUNT OF $30,000 AND AMENDING THE CITY'S EXISTING CONTRACT WITH THE CHULA VISTA CHAMBER OF COMMERCE FOR PRODUCTION OF THE HARBOR DAYS FESTIVAL TO PROVIDE FOR THE PASS- THROUGH OF $30,000 OF THE PORT FUNDING TO SUPPORT THAT EVENT AND APPROPRIATING FUNDS THEREFOR WHEREAS, in June, 1998, the City submitted a financial assistance request to the San Diego Unified Port District for partial funding of the Chula vista Harbor Days Festival; and WHEREAS, the Board of Port Commissioners approved funding of $30,000 for this event at their meeting on August 4, 1998, and the Port is now requiring the City to enter into a formal agreement which stipulates conditions and City requirements for receipt of the approved funding; and WHEREAS, the City is currently a party to an agreement with the Chamber of Commerce for which additional funding is herein being provided. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula vista does hereby approve a contract with the San Diego Unified Port District in connection with the Chamber of Commerce's production of the Harbor Days Festival to provide for the pass-through of $30,000 of the Port funding to support that event, on file in the office of the City Clerk as Document No.~ BE IT FURTHER RESOLVED that the City does hereby approve the First Amendment with the Chula vista Chamber of Commerce for the Harbor Days Festival to provide for the pass-through of $30,000 of the Port funding to support that event and the Chamber's Agree- ment to abide by all provisions of the Port District Agreement, on file in the office of the City Clerk as Document No. BE IT FURTHER RESOLVED that the Mayor is hereby authorized and directed to execute said Agreements for and on behalf of the city of Chula Vista. BE IT FURTHER RESOLVED that the city Council does hereby accept $30,000 in unanticipated revenue and appropriate those funds to the Community Promotions Account 100-0130-5202 for reimbursement of expenses for Harbor Days. Presented by Approved as to form by Jeri Gulbransen, Public n M. Kaheny, C· Information Coordinator ttorney H:\home\lorraine\rs\port.$ JJ'3 .------- C' ~ . AGREEMENT This agreement is made by the SAN DIEGO UNIFIED PORT DISTRICT, a public corporation, herein called " District" and the City of Chula Vista, a municipal corporation, herein called "Contractor." RECITALS 1. Contractor has a program known as: Twelfth Annual Chula Vista Harbor Days and Tall Ship Festival. 2. The Program to be accomplished by Contractor contributes to a balance of District navigational, commercial, fisheries, recreational and promotional programs designed to enhance the well-being of San Diego Bay tidelands. 3. The Program to be accomplished by Contractor is of such nature that the interests of District are better served by an agreement with Contractor than by the performance of such a program by District. THE PARTIES AGREE: In consideration of the recitals and the mutual obligations of the parties as herein expressed, District and Contractor agree as follows: 1. Program: Contractor shall conduct those program activities budgeted and contained in Exhibit A, attached hereto and incorporated herein by reference as a part of this agreement. Each specific program activity shall be subject to prior approval of the District pursuant to the terms of Board of Port Commissioners Policy Number 025. 2. Contract Administrator: The Strategic Planning Services Department of the District is designated as the Contract Administrator of this agreement and shall receive and process all reports and requests for payment. All correspondence shall be 1 )9~'1 ----',," -----,-_.,-~- sent to the following address: Ms. Rita Vandergaw, Director Marketing & Public Relations San Diego Unified Port District Post Office Box 120488 San Diego, CA 92112-0488 3. Term of Agreement: The term of this agreement shall be from August 1, 1998. through July 31, 1999. 4. General Terms and Conditions: The General Terms and Conditions attached hereto are incorporated by reference as though fully set forth herein and by this reference are made part of this agreement. 5. Payment: District shall pay Contractor a sum not to exceed thirty thousand dollars ($30,000.001 to be used to perform the Program activities shown in Exhibit A, subject to obtaining prior approval from the District as provided in Section 1, above. a. No payment shall be made by District if any report (see Sections 1, 5, 8 and 9) required by this and previous agreements is not on file at the time payment is due. b. Payment shall be solely for reimbursement of expenses already paid by Contractor. Requests for reimbursement shall be submitted no more often than monthly and shall provide proof of both incurrence and payment [See Section 5.c.(2)]. Expenses must be incurred within the term of this agreement. c. Payments shall be made upon written request to the Contract Administrator. Each request shall consist of: (1 ) A formal request for reimbursement in the form of a letter to the Contract Administrator. Only expenditures 2 /' /9---..;, ---'--~-----'-'--~-'~---~- ------.---.-.,.-.-.....-----.---"--.-.------ for program activities for which prior approval from the District was obtained will be reimbursed, provided, however, the Contract Administrator may in exceptional circumstances reimburse unforeseen expenses relating to the funded objectives of the Contractor. (2) Proof that the expenses were both incurred and paid. Proof of incurrence and payment is defined in General Terms and Conditions attached hereto. Expenses must be incurred within the term of this agreement. d. Final requests for payment shall be submitted within Sixty (60) days after the end of the term of this agreement. e. Payments shall not be made by District unless, and until, Contractor has provided to Contract Administrator a plan. acceptable to said Administrator, of appropriate public recognition or credit for the financial assistance as described herein. f. No portion of District funds under this agreement shall be used for the purchase of awards, trophies, prizes, gifts, uniforms, capital outlay or equipment or for the buildup of reserves. 6. Excess Costs: District shall not be held accountable or liable for any monetary losses incurred as a result of conducting said program. It is agreed that District's monetary contribution is limited to that stated herein and that District shall not be responsible for cash costs or support services. 7. Limits of District Responsibility: It is expressly understood and agreed that this agreement constitutes the entire agreement between Contractor and District and supersedes all prior negotiations. In no event shall Contractor be entitled to any 3 )7-~ - ._--,_._._---,~--~._--------------_.__._. compensation, benefits, reimbursements or ancillary services other than as expressly provided in this agreement. No modifications or amendments of this agreement shall be valid unless duly authorized, reduced to writing and signed by the parties hereto. 8. Reporting Requirements: a. Contractor shall submit a Quarterly Performance Report, if applicable, which shall provide a quantitative indicator of the extent to which the Program activities contained in Exhibit A have been met for the immediately preceding quarter and fiscal year to date. This report form shall be provided by the Contract Administrator. b. Quarterly reports shall be accompanied by copies of publicity and advertising material evidencing credit to the District for its financial support. c. Contractor shall inform Contract Administrator in writing upon the resignation, retirement or discharge of its executive director or other managing agent, or a majority change in the membership of the board of directors. 9. Financial Disclosure: Within Ninety (90) days after the end of Contractor's fiscal year, Contractor shall file with the Contract Administrator duly certified copies of true, accurate and complete documents evidencing Contractor's financial status as follows: a. A statement of the expenditure of District funds by Program activities identified in Exhibit A and compared with budgeted amounts. b. A statement of compliance with the terms of the District's agreement. 4 /9-7 c. A statement of revenues and expenditures and a balance sheet of all funds received by the Contractor. d. If District funding is Twenty Thousand Dollars ($20,OOO.OO) or greater, audited financial statements, including that mentioned in a, b and c, above, must be prepared by an independent Certified Public Accountant. (If Contractor receives funding from Two (2) District fiscal years during Contractor's fiscal year, financial disclosure shall include separate data for each District fiscal year.) 10. No Third Party Beneficiary: This agreement is made and entered into for the benefit of the District and Contractor only, and is not intended for the benefit of any third party or any other person, and no such third party or any other person shall be a third party beneficiary to this agreement or otherwise have the right to enforce any provisions of this agreement. 11. Signatures Required: This agreement shall not be complete nor effective until signed by either the Executive Director or Deputy Executive Director on behalf of the District and by the other party. DATED: SAN DIEGO UNIFIED PORT DISTRICT By CITY OF CHULA VISTA By Shirley Horton, Mayor 5 )9/~ GENERAL TERMS AND CONDITIONS These general terms and conditions are part of the terms and conditions of the attached agreement between the SAN DIEGO UNIFIED PORT DISTRICT, first party, and the Organization or Organizations described in and signatory to the agreement. 1, Definitions: a. "District" means the San Diego Unified Port District, a public corporation. b, "Executive Director" means the duly appointed, qualified and acting Executive Director of District. c. "Board" means the duly appointed, qualified and acting Board of Port Commissioners of District. d. "Organization" means the civic organization completely directing and in complete control of its own affairs through its own officers or member which is named in the attached agreement and is signatory thereto, Wherever used herein and when appropriate, "Organization" shall be deemed to also mean "Contractor" or "Corporation. " e, "Related Parties" or "Subcontractor" means an individual or entity with whom the Organization contracts in order to carry out the program described in the attached agreement. f, " Contract Administrator" means the' duly appointed, qualified and acting Contract Administrator as designated by the Executive Director. 6 /9-7 ----"-----" g. "Revenue" means funds received by the Organization from various sources. All major sources of revenue must be listed separately, Minor revenue sources can be listed separately or grouped, h, "Expenditures" means funds disbursed by the Organization for various expense categories, Where a budget has been established, the expenditures should be grouped and recorded in accordance with the budget, If a budget has not been established, then expenditures would be grouped according to specific expense categories. 2, Proof of Incurrence and Payment, Requests for reimbursement shall be accompanied by proof of both incurrence and payment. a. Incurrence shall be proven by invoice, bill, contract or other document acceptable to Contract Administrator. All expenses must be incurred within the term of the agreement between District and Organization. Allowable exceptions shall be determined by Contract Administrator. b. Payment shall be proven by indicating the check number and date of check on submitted invoice, bill, etc. Contract Administrator may require canceled checks as additional support. c. Request for reimbursement of payroll expenses shall be accompanied by: i) an independently prepared payroll register, or ii) an in-house payroll register and canceled payroll checks. Requests for reimbursement of Payroll Taxes shall be supported by depository receipts or canceled checks used for paying the taxing authority. d. District will not reimburse cash advances (e.g. travel 7 /1- /0 expenses) or refundable deposits (e.g. telephone installation, rental equipment) . 3, Maintenance of Records. Organization shall keep, or cause to be kept, true, accurate and complete records, including double entry books, a profit and loss statement, and a balance sheet, making it at all times possible to determine the nature and amount of revenue and expenditures. Accounting for all revenues and expenditures shall conform to generally accepted accounting principles: A separate accounting of the expenditure of funds received from the District shall be maintained in the accounting records and financial reports. All of Organization's expenditures and transactions shall be supported by documents of original entry such as sales slips, cash register tapes, purchase invoices and receipts. Documents supporting a profit and loss statement shall be retained by Organization until an audit of Organization's records is conducted by District, or until a period of Three (3) years has elapsed, whichever occurs first. Organization shall also maintain adequate output information according to the following guidelines: a. Information shall include quantitative measurements of program effectiveness and/or output. b. Information shall be as directly related to program funding requirements as practical. 4. InsDection and Audit of Records. All books, statements, documents, records and financial data of Organization shall be made available in the City of San Diego and be open at all times for inspection and/or audit by' District upon reasonable notice. The District shall have the right to make copies or excerpts of pertinent documents. Further, District has the option of conducting an audit of all books, statements, documents, records and financial data of the Organization's related 8 Ie¡ --- / / .·~·m.__.__^_.·_..~"__.___~______.__ parties and/or subcontractors, 5, Financial Disclosure, Within Ninety (90) days after the end of Contractor's fiscal year, Contractor shall file with the Contract Administrator duly certified copies of true, accurate and complete documents evidencing the financial status for Contractor's immediately preceding fiscal year as follows: a, A statement of the expenditure of District funds by program to be identified in the same categories as contained in the final budget and compared with budgeted amounts, b. A statement of compliance with the terms of this contract with the District. c. A statement of revenue and expenditures and a balance sheet of all funds received by the Organization. d. If District funding is Twenty Thousand Dollars ($20,000.00) or greater, audited financial statements, including that mentioned in a, b and c, above, must be prepared by an independent Certified Public Accountant, (If Contractor receives funding from Two (2) District fiscal years during Contractor's fiscal year, Financial Disclosure shall include separate data for each District fiscal yeaL) 6. IndeDendent Contractor. Organization is and shall at all times be and remain an independent contractor and not an agent or employee of District. 7. Related Parties or Subcontractors. Services' rendered to Contractor through a subcontracted agreement shall be substantiated by detailed invoice. Services rendered by a consultant shall be substantiated by invoice and contract between Organization and consultant. Contract Administrator shall determine 9 11,/ d- whether additional reporting or supporting documentation is necessary, 8. Hold Harmless. Contractor shall, to the full extent allowed by law, defend, indemnity, protect and hold District and its agents, officers and employees harmless from and against any claims, cause of action or damage or injury to person or property, including injury to Contractor's employees, agents or officers, which arise from or are connected with or are caused or claimed to be caused by the acts or omissions of Contractor and its agents, officers or employees, in performing the work or services herein, and all expenses of investigating and defending against same; provided, however, that Contractor's duty to indemnity and hold harmless shall not include any claims or liability arising from the established sole active negligence or willful misconduct of the District, its agents, officers or employees. 9. Insurance. The Executive Director may require Contractor to secure and maintain liability insurance naming the San Diego Unified Port District as an additional insured. Such insurance shall be secured from an insurance company acceptable to the District and in an amount as may be required by the Executive Director. Organization shall deliver to the District a certificate evidencing such insurance which shall provide Thirty (30) days notice to be given to District in the event of a cancellation. 10. Assianment. Organization shall not assign this agreement or any right or interest hereunder without prior written consent of District. An assignment by operation of law shall automatically terminate this agreement. 11. Interest of Oraanization. Organization, officers and members covenant that they presently have no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of services required to be performed under this agreement. Organization further 10 /9/1) covenants that in the performance of this agreement no person having any such interest shall be employed, 12, Activities Prohibited. Organization agrees to the following prohibitions: a. Organization shall not use directly or indirectly any of the funds received from the District under this agreement for the following purposes: (1 ) To purchase awards, trophies, prizes, gifts, uniforms or equipment. (2) To support capital drives or buildup reserves. (3) For any political or religious activities whatever. b. Organization shall adopt and follow a policy prohibiting endorsement of commercial products or services for purposes of advertisement. 13. Eaual ODDortunitv and Non-Discrimination. Contractor hereby agrees to comply with Title VII of the Civil Rights Act of 1964, as amended, the California Fair Employment and Housing Act, and any other applicable Federal and State laws and regulations hereinafter enacted prohibiting discrimination, including without limitation laws prohibiting discrimination because of race, color, national origin, religion, age, sex or handicap. 14. Withholdina of Funds and Termination. The District may withhold funds from the contracting Organization and terminate its entire obligation upon notice to the Organization if the Organization violates any of the terms of the agreement, or for other good cause shown even if not related to a violation of the terms of the agreement. The Executive Director shall thereafter advise the Board of the notification of termination made to the Organization. 11 /1 ~/'I d [(/. ,,-:::',' i '/ ~ .:¡:. . '~. I ~~~ ~,.~ ~ CIlY OF (HUlA VISTA OFFICE OF THE CITY MANAGER HARBOR DAYS AND TALL SHIP FESTIVAL Exhibit A The City of Chula Vista shall produce the Twelfth Annual Chula Vista Harbor Days and Tall Ship Festival on September 19 and 20, 1998, on the tidelands along Chula Vista Yacht Harbor and in Bayside Park. The City will provide overall administration and coordination of the event The event shall include two full days of activities including free tall ship tours, live stage entertainment, t'hildre:l's activities, a c!essjt' (".aT $h0W, b'!sj!1e~s sbnw<:~Jood and beverege conCl'S-sion, crafts fair and booths nom a variety of community organizations. City shall provide all required equipment and services for the event, which includes, but is not limited to, the following: A. Overall event coordination B. Police services required for traffic and crowd control C. Fire services required including EMT .support D. Free tours on tall ship "Californian" (under contract with City for public events/tours) and the steam yacht "Medea" as well as modern working vessels E. Parks and Recreation staff services including clean-up in ~e park, F. Free shuttle bus service nom H Street Trolley:Station to bayfront events G. Public information services including development of publicity materials City shall provide extensive promotions and media exposure for the event, identifying the San Diego Unified Port District as a major co-sponsor of the event. Publicity shall include, but not be limited to, the following: A. Writing and mailing/faxing of press releases and photographs B. Direct contact with local and regional media including newspapers, radio and TV stations C. Production and pæchase of ad....ertising D. Design, printing and distribution of event flyers E. Design, printing and distribution of event programs F. Inclusion of Port vessels (i.e. Harbor Police) as part of ship tours/displays, if available G. Invitation to Port commissioners to introduce event entertainment H. Invitation to Port to have booth(s) which could include displays on recreational activities on tidelands, efforts to clean up San Diego Bay, and/or trade and cargo activities of the port I. Features in special audience publications such as the City ofChula Vista newsletter (57,000 mailed) and the Chamber of Commerce newsletter J. Announcements on 1610-AM Traveler's Information Radio Station K. Design and placement of exterior advertising on a number of Pacific Waste trash trucks that serve the South Bay Region L. Placement of Port banners in prominent event locations /9-/3 276 FOURTH AVENUEfCHULA VISTA, CALIFORNIA 91910/(619) 691,5031 FIRST AMENDMENT TO AGREEMENT WITH THE CHULA VISTA CHAMBER OF COMMERCE FOR THE HARBOR DAYS FESTIVAL IN REGARD TO THE EXPENDITURE OF CITY FUNDS APPROPRIATED THIS FIRST AMENDMENT, made and entered into the 6th day of October, 1998, by and between the CITY OF CHULA VISTA, a-chartered mwùcipal corporation, herein referred to as "City", and the CHULA VISTA CHAMBER OF COMMERCE herein referred to as "Chamber" for the HARBOR DAYS FESTIVAL, is hereby amended in the following regards only: 2. The CHULA VISTA CHAMBER OF COMMERCEIHARBOR DAYS FESTIVAL agrees to expend City appropriated funds to meet bona fide obligations incurred in performing services related to participation for the Harbor Day and Tall Ship Festival, in an amount not to exceed $12,900 $42.000. in fiscal year '98-'99, on the condition the City receives funds for this amendment from the Port. 9. Bv siinature on this amendment. Chamber hereby agrees to abide bv all of the tenns and conditions of the City's contract with the San Diei:!o Unified Port District ("Port") for the Chula Vista Harbor Davs Tall Ship Festival. as entered into bv the City and Port this 6th dav of October and effective on the date as last executed by those parties. which conditions are incOl:porated herein bv reference as if set forth in fulL All other tenns and conditions of the ai:!reement with Chula Vista Chamber of Commerce remain in full force and effect. IN WITNESS WHEREOF, this First Amendment has been entered into the day and year hereinabove set forth. THE CITY OF CHULA VISTA CHULA VISTA CHAMBER OF COMMERCE Mayor of the City of Chula Vista ATIEST City Clerk Approved as to fonn by ~~~~ø City Attome~ /9-/ ~ COUNCIL AGENDA STATEMENT Item 2.0 Meeting Date 10/06/98 ITEM TITLE: Resolution /9) c¡ ~uthoriZing the settlement of claims arising out of the February 6, 1998 Sink Hole on Malta Avenue and appropriating funds therefor. SUBMITTED BY: Risk Managsr!J4t ~ REVIEWED BY: City Manage~~ --? (4I5ths Vote: Yes_,1LNo_) City Attorney This action will authorize the settlement of and appropriate funding for property damage claims arising out of the February 6, 1998, sink hole on Malta Avenue. RECOMMENDATION: That Council approve the resolution. BOARDS/COMMISSIONS RECOMMENDATION: Not Applicable. DISCUSSION: Normally liability claims are paid directly from the Insurance budget. Because these claims arose from the failure of a City storm drain it has been deemed appropriate that funds from the Storm Drain Revenue Fund (versus the General Fund) be used to finance these claim payments. Utilization of these funds will also facilitate tracking of expenditures which may be reimburseable from FEMA FISCAL IMPACT: $32,000 will be appropriated from the available balance of the Storm Drain Revenue Fund (Fund 227 to account 227-2271-5441) to pay these claims. .20 - / -- --_._~._-_..'.-._--... ._.~._..__..._- RESOLUTION NO. j'f¡<lY RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING SETTLEMENT OF CLAIMS ARISING OUT OF THE FEBRUARY 6, 1998 S INK HOLE ON MALTA AVENUE AND APPROPRIATING FUNDS THEREFOR WHEREAS, normally liability claims are paid directly from the Insurance budget; and WHEREAS, claims arising out of the February 6, 1998 sink hole on Malta Avenue should be paid from the Storm Drain Revenue Fund (versus the General Fund); and WHEREAS, utilization of these funds will also facilitate tracking of expenditures which may be reimbursable from FEMA. NOW, THEREFORE, BE IT RESOLVED the City council of the City of Chu1a vista does hereby authorize the settlement of claims arising out of the February 6, 1998 sink hole on Malta Avenue. BE IT FURTHER RESOLVED that the amount of $32,000 is hereby appropriated from the available balance of the Storm Drain Revenue Fund (Fund 227 to Account 227-2271-5441) to pay these claims. Presented by Approved as to form by Teri Enos, Risk Manager H;\home\lorraine\rs\malta.app .J. ¿J - :L-.- CITY COUNCIL AGENDA STATEMENT Item :2.. ) Meeting Date: 10/6/98 ITEM TITLE: Resolution ) '1 j fí'pproving "Heritage Park" as the name for an 11.6 acre neighborhood park in Village 1 of the Otay Ranch we r-:-:/." SUBMIITED BY, Dff'''", of Plmming "" Bu;~ REVIEWED BY: City ManageTDe. ~ --r The Park Master Plan for the first neighborhood park in Village 1 of the Otay Ranch, totaling 11.6 acres in size was approved by the City Council on December 16, 1997. This park carried a temporary title of Park P-l through approval of the Park Master Plan. The Otay Ranch Company, developer of this park, is now requesting that the name of "Heritage Park" be considered for approvaL STAFF RECOMMENDATION: That the City Council adopt the name of "Heritage Park" for the 11.6 acre neighborhood park within Village 1 of the Otay Ranch. ' BOARDS/COMMISSIONS RECOMMENDATION: The Parks and Recreation Commission recommended unanimously (5-0-2) that the City Council approve the name "Heritage Park" at their regular meeting on September 17, 1998. DISCUSSION: Process for Naming Parks Neighborhood and community parks have been named in different ways over the past several years. Where residential neighborhoods have been built in advance of the construction of a community or neighborhood park, such as the Chula Vista Community Park, the process of selecting a name for the park involved reaching out to obtain input from the neighboring areas. Where a neighborhood or community park has been constructed in conjunction with or in advance of surrounding residential neighborhoods, such as Discovery Park, the master developer has proposed the name of the park. In some instances parks have been given the name of the planned community, such as Bonita Long Canyon Park. In the recent past, the Parks and Recreation .2J~ / ...... Item - Meeting Date: 10/6/98 Commission has reviewed Park Master Plans with park names already affixed before forwarding their recommendations on to the City Council for approvaL Park Name Proposal The Otay Ranch Company, owner and developer of the majority of Village 1 including the planned village core area, requests that the City consider the adoption of a name for the 11.6 acre neighborhood park which dominates the central core of the village. The park, previously referred to as Park P-l during the Park Master Plan approval process, is proposed to be named "Heritage Park." The approved Park Master Plan for this park includes design features that emphasize agrarian or farming themes. Structures and plant palette reflect a farming influence, including orchard trees. The Otay Ranch, recognized as one of the original Mexican ranchos in the Southern California area, dates back to the 18oos. The Otay Ranch has been a source for cattle and crop farming for many years, up to the present. Therefore, the proposed name of "Heritage Park" has historic significance and would seem an appropriate name for this first park on the Otay Ranch. Although the Master Plan for this park was approved by the City Council on December 16, 1997, proposed revisions to some facilities within the Master Plan will be returned shortly for Council review and approval. Nevertheless, the agrarian theme adopted with the Master Plan is proposed to stay intact. Conclusions Staff has reviewed the existing park names throughout the City and adjacent areas and has determined that there is no conflict between existing park names and the proposed name and recommends that the City Council approve the name "Heritage Park" for Park P-l, Village 1 of the Otay Ranch. Additionally, staff will be recommending to master developers in the future that a proposed name be affixed to parks when brought forward to Council for Park Master Plan approval. FISCAL IMPACT: No fiscal impact is expected with the naming of this neighborhood park. Attachments: I. City Park Names 2. P-I Neighborhood Park Master Plan [H:IHOMEIPLANNINGlP ARKSIHERIT AGE.All] 2 2J~;¿ ATTACHMENT 1 CITY PARK NAMES Community Parks Discovery Park Eucalyptus Park J Street MarinalBayside Park Greg Rogers Park ROM Park Chula Vista Community Park Neighborhood Parks Bay Boulevard Park Bonita Long Canyon Park Explorer Park Friendship Park Halecrest Park Hilltop Park Independence Park Lauderbach Park Loma Verde Park Los Ninos Park Marina View Park Marisol Park Memorial Park Norman Park Orange A venue Fields Otay Park Palomar Park Paseo Del Rey Park Rancho Del Rey Park Reinstra Ball Fields SDG&E Park Sunbow Park Sunridge Park Terra Nova Park Tiffany Park Valle Lindo Park Voyager Park Mini Parks Connoley Park Holiday Estates I Holiday Estates II Lancerlot Sherwood Park [H:\HOMEIPLANNlNGIP ARKSIP ARK.LST] 2/-;1 -, PRELIMINARY - \ ATTACHMENT 2 il I - u= . ,. · 0 · · I : fo ~ ~ ~ ~I~ > " . ¡~ , n Q...>....J . ~ ~~ ¡l, ~ .. :><:~ í ~ '" e::: . T . , ~ ¡l, (/) ,- ' '< .~. '..-... :I:>::E u >- Z e::: '<>¡'< e:::~Z >-;J~ <3 ' - ~ f- ;:;,.J 2 r.z¡ , °t i . = . ~ v L Q9[ L ~' c2 ;--1 ".....__n_ '--..-.--....-- ..._-----.~._- --""--"""'- RESOLUTION NO. / r¡ / 99 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE NAME OF "HERITAGE PARK" FOR AN 11.6 ACRE NEIGHBORHOOD PARK IN VILLAGE 1 OF THE OTAY RANCH WHEREAS, the Otay Ranch Company proposes to construct an 11.6 acre neighborhood park within the village core of Village 1 of the Otay Ranch; and WHEREAS, the theme for this park is derived from the recent and historical use of the land and is consistent with the overall theme and character of the Otay Ranch; and WHEREAS, the city Council on December 16, 1997 approved the Park Master Plan for said neighborhood park with some revisions to be considered by Council at a later date; and WHEREAS, on September 17, 1998 the Parks and Recreation Commission voted unanimously (5-0-2) to recommend approval of the name Heritage Park; and NOW, THEREFORE BE IT RESOLVED the city Council of the city of Chula vista does hereby approve the name of "Heritage Park" for the 11.6 acre neighborhood park in Otay Ranch, previously referred to as Park P-l, Presented by Approved as to form by G-~~ Robert Leiter John M. Kaheny Director of Planning and Building City Attorney H:\shared\attomey\heritage.res ),) ~ Š COUNCIL AGENDA STATEMENT Item ~2.. Meeting Date 10/6/98 ITEM TITLE: Resolution ) 9;¿ (J 0 Approving an Agreement with the County of San Diego in order to receive $135,276 of State Habitat Conservation Funds as retroactive matching funds for the acquisition of 12 acres of riparian habitat land in the atay Valley SUBMITTED BY: Director of Planning and Building p( REVIEWED BY, Chy M"""", -:De. ~ b9i1 (41'"" V"", Y~--"o-XJ In March of this year the City Council auth IZed a: Mayor to execute a Purchase and Sale Agreement and Joint Escrow Instructions with the City of San Diego and Trust for Public Lands for the acquisition of 36.44 acres within the atay River Valley for park purposes, utilizing Park Acquisition and Development funds. The County of San Diego, acting as the clearing house for the grant funds for habitat land acquisition from the State of California and co-members of the atay Valley Regional Park planning process, has offered to apply to the State of California for reimbursement of up to $135,276 as matching funds for the City's acquisition of 12 acres of riparian habitat, part of the 36.44 acres previously purchased by Chula Vista. By accepting these funds the City will be able to reimburse the PAD fund this amount for use in acquiring other properties or for development of this and/or other park land. The City's Environmental Review Coordinator has determined that the proposed agreement and the reimbursement of State Habitat Conservation Funds for the acquisition of habitat is exempt from environmental review. RECOMMENDATION: It is recommended that the City Council adopt the attached City Council Resolution authorizing the City Manager to execute an Agreement with the County of San Diego in order to receive $135,276 of State Habitat Conservation Funds. BOARDS/COMMISSIONS RECOMMENDATION: Not Applicable. ;¿:¿-/ , Page 2, Item Meeting Date 10/6/98 DISCUSSION: Back~round In 1997, the City Council approved a Capital Improvement Program (CIP) project, PR-185 for the acquisition of park land west of Interstate 805. In March of this year the City Council authorized the Mayor to execute a Purchase and Sale Agreement and Joint Escrow Instructions with the City of San Diego and Trust for Public Lands for the acquisition of 36.44 acres located west ofI-805 and within the Otay River Valley for park purposes, utilizing Park Acquisition and Development funds. A total of $865,172 was spent to acquire this park land for development as a community park for the residents of Chula Vista. At the same time, the City of San Diego, acting as an agent for the three jurisdictions planning the OVRP (San Diego, Chula Vista and the County), successfully negotiated and acquired the above park land for the City of Chula Vista, as well as an additional 197 acres of open space from the H.G. Fenton Materials Company for inclusion into the Otay Valley Regional Park. Proposed A~reement The County of San Diego, acting as the clearing house for the grant funds for habitat land acquisition from the State of California (Habitat Conservation Fund) and co-participants in the Otay Valley Regional Park planning process, has offered to apply to the State of California for reimbursement of up to $135,276 as matching funds for the City's acquisition of 12 acres of riparian habitat, part of the 36.44 acres previously purchased in April by Chula Vista. A draft agreement is proposed with the County of San Diego (see Exhibit B of attached draft Council Resolution) which provides the details under which the City of Chula Vista would be accepting State funds via the County. The State Habitat Conservation Fund provides money for the acquisition of riparian habitat targeted within the Otay Valley, provided that there is a local match for this money. Of the 36.44 acres of property acquired by the City, omy 12 acres qualify as riparian habitat. The agreement will constitute the City's acceptance of the funding as a reimbursement and the County's involvement as the original State grant recipient. Staff is continuing to pursue a proposed municipal boundary realignment with the City of San Diego that would involve the above park land as well as other properties along the river. A final solution for this realignment has not been resolved yet. )J~;¿' I. \ / -. -- ~ Page 3, Item Meeting Date 10/6/98 FISCAL IMPACT: A total of $865,172 has already been spent for acquisition of 36.44 acres of park land through appropriations from the City's Park Acquisition and Development Fund (Capital Improvement Program Project #PR-185). The reimbursement of $135,276 from the State Habitat Conservation Fund will be placed back into the City's Park Acquisition and Development Fund for future acquisitions and/or development of this or other park land. Attachments: 1. City Council Minutes from March 17, 1998'¡ N ~ (H:IHOMEIPLANNINGIOVRPIRRIOSHAB.AII) :22.~5 RESOLUTION NO. ) 9.2.. cJ () RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AN AGREEMENT WITH THE COUNTY OF SAN DIEGO IN ORDER TO RECEIVE $135,276 OF STATE HABITAT CONSERVATION FUNDS AS RETROACTIVE MATCHING FUNDS FOR THE ACQUISITION OF 12 ACRES OF RIPARIAN HABITAT LAND IN THE OTA Y VALLEY WHEREAS, the Cities of San Diego, Chula Vista and the County of San Diego approved the formation of a Joint Exercise of Powers Agreement (JEPA) in 1990 for the joint planning and acquisition of property for the purposes of creating a regional park within the Otay River Valley, from Otay Lakes to the San Diego Bay; and WHEREAS, a Draft Concept Plan for the Otay Valley Regional Park was authorized by the JEP A Policy Committee to proceed for adoption by the Cities of San Diego, Chula Vista and the County of San Diego; and WHEREAS, the City of Chula Vista entered into a Purchase and Sale Agreement and Joint Escrow Instructions with the City of San Diego and Trust for Public Lands for the acquisition of approximately 200 acres of property within the Otay River Valley for park and open space purposes and for inclusion in the Otay Valley Regional Park, and WHEREAS, an option with the property owner to purchase said 200 acres of property was set to expire in July 1998, thereby necessitating quick action to close escrow, and WHEREAS, the City ofChula Vista contributed a total of$865,172 of its own funds for the acquisition of 36.44 acres of said 200 acres for park and open space purposes, and WHEREAS, the City of Chula Vista now holds title to 36.44 acres of subject property and has designated 12 acres as riparian habitat land as shown in Exhibit A, and WHEREAS, the total cost for the 12 acres of riparian habitat land was $270,552, and WHEREAS, $135,276 of the cost of the riparian habitat land will be reimbursed from the State Habitat Conservation Fund Program, and WHEREAS, in Fiscal Year 1996-1997 the State of California legislatively appropriated to the County of San Diego a total of $238,000 through the Habitat Conservation Fund Program for the acquisition of property west of I-80S for the Otay Valley Regional Park, and c2 J- ~'i WHEREAS, the City of Chula Vista proposes to enter into an agreement with the County of San Diego authorizing the disbursement of $135,276 trom the State of California Habitat Conservation Fund as retroactive matching funds for the acquisition of 12 acres of riparian habitat land for the Otay Valley Regional Park, and WHEREAS, the City of Chula Vista has previously provided matching funds for the acquisition of said 12 acres of riparian habitat land for park purposes through the appropriation and expenditure of funds trom the City's Park Acquisition and Development Fund, and NOW, THEREFORE the City Council of the City ofChula Vista does hereby request from the County of San Diego the reimbursement of a total of $135,276 of State Habitat Conservation Funds as matching funds for the acquisition of 12 acres of riparian habitat property located west of Interstate 805 and within the Otay River Valley, as diagrammatically presented on the area map attached hereto as Exhibit A, and does hereby authorize the City Manager to execute, for and on behalf of the City of Chula Vista, an agreement with the County of San Diego addressing the use of said funds attached hereto as Exhibit B. 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"I' /I'j¡] ~ _/-::- --::.---:.::==:-, \ \ i ¡ / ' I /'.",-- _-_._ -, ~l~' IV - Iii I ' - ". _- ';".I,¡r --- '- _ /A ,,¡ I ------/ ~ --::::::....::~/--;:... ---------;,\'\\!I/.I«I , - .....- /,i' ,\ ' ~~, ~~~,~~ ~"i,\\~,\I\i/!lI(r:.~, ,))ffi- ;: \\ \ \ ~ -tè.. /,',I,Jitldl ~I,,!,'," ~';j/(//~[;~2/-€.ß~¡=a;\ I/\\í' il O~ YJil' J!I ! ! " -í \ I-- !!! '- I ,. I ~;i~J"'1 =~iir-,~j' 7' '-" ... ',,\, , ,), " II!· ~ f--. ~l-l-L. ,III" ~//,/ -,e",,, V... ,'1\ FJ '" ^' . .l. -ííl r--~I I 'i 'fW / '-........ I,...-..¡ ,:':. ,C,) I I 1 11- ~ '-!i ':1, I¡) II ¡--,.. /'- I , -- , r ~ \..... " " if" ....-~! "" I 11, 'Y - 1/ ').! I{ ¡ //i 1-& {Î I I I' , '\ II \ I \ \ L- .' II iii !,~~!!/ } - , \ ,',I " '.' // tR / W 1 1 1 1 I 1 1 I \1 I U <r1 \, -III ¡I: /m CHULA VISTA PLANNING DEPARTMENT LOCATOR PROJECT City of Chula Vista PROJECT DESCRIP1l0N: C) APPUCANT: PARK LAND ACQUISITION PROJECT Not Applicable ADDRESS: . SCALE: FILE NUMBER: /) / NORTH No Scale CIP #PR-185 ~ d- - ~ #22:\rios.cdr 2/4/98 . . AGREEMENT BETWEEN COUNTY OF SAN DIEGO AND CITY OF CHULA VISTA RE: USE OF HABITAT CONSERVATION FUNDS THIS AGREEMENT is entered into by and between the COUNTY OF SAN DIEGO, STATE OF CALIFORNIA ("County") and CITY OF CHULA VISTA in favor of CITY OF CHULA VISTA, a municipal corporation ("City"). WHEREAS, the Cities of San Diego, Chula Vista and the County of San Diego approved the formation of a Joint Exercise of Powers Agreement (JEP A) in 1990 for the joint planning and acquisition of property for the purposes of creating a regional park within the Otay River Valley, from Otay Lakes to the San Diego Bay, and WHEREAS, a Draft Concept Plan for the Otay Valley Regional Park was authorized by the JEPA Policy Committee on July 18,1997 to proceed for adoption by the Cities of San Diego, Chula Vista and the County of San Diego, and WHEREAS, the City of Chula Vista is requesting that the County of San Diego to reimburse $135,276 of State Habitat Conservation Funds for the acquisition of 12 acres of riparian habitat property located west ofInterstate 805 and within the Otay Valley Regional Park, as diagrammatically presented on the area map attached hereto as Exhibit A (the "Subject Property"), and WHEREAS, the County of San Diego may authorize the disbursement of State Habitat Conservation Funds (HCF) to the City of Chula Vista for the purpose of acquiring habitat land within the Otay Valley Regional Park, and WHEREAS, the City of Chula Vista now holds title to subject property, and WHEREAS, the City of Chula Vista through City Council Resolution No. / ? ,;)¿)/? authorizes its City Manager to execute this agreement on behalf of the City of Chula Vista. THE PARTIES HEREBY AGREE AS FOLLOWS: L Subiect Propertv. The real property which is the subject of this Agreement (the "Subject Property") is described in Exhibit A hereto. 2. Disbursement of Funds. Pursuant to the restrictions set forth herein, County agrees to disburse $135,276 of State Habitat Conservation Funds to City for acquisition of Subject Property. County agrees to disburse such funds upon receipt of grant award from the State of California. 3, Acceptance. City agrees that by accepting Habitat Conservation Funds, City shall preserve the subject property in accordance with the provisions of the California Wildlife 1.2 ~? - Protection Act of 1990 Habitat Conservation Program, for the benefit of this generation and for generations to come. 4. Additional Restrictions. The uses of the Subject Property will not be inconsistent with the purposes of this Agreement Without limiting the generality of the foregoing, City makes the following assurances: a. City will maintain and operate the Subject Property acquired with the California Wildlife Protection Act funds in perpetuity. With approval of the State granting agency, the City or its successors in interest in the property may transfer the responsibility to maintain and operate the property in accordance with Section 5919 ofthe Public Resources Code. b. City will use the property only for the purposes of the California Wildlife Protection Act of 1990, Habitat Conservation Fund Program and to make no other use, sale, or other disposition of the property except as authorized by specific act of the Legislature. c. City will give the State's authorized representative access to and the right to examine all records, books, papers, or documents related to the California Wildlife Protection Act / Habitat Conservation Fund Program grant. d. City will comply where applicable with provisions of the California Environmental Quality Act and the California Relocation Assistance Act, and any other state, and/or local laws, rules and/or regulations. e. City will comply with guidelines and provisions of the Otay River Valley Resource Enhancement Plan, prepared by Wallace, Roberts & Todd (WRT) on September 23, 1992 and adopted by the City Council on October 27, 1992. 5. Responsibilitv. City shall have full responsibility for the Subject Property, its maintenance, and any and all uses related thereto; County shall have no responsibility for the Subject Property. 6. Successors. The covenants, terms, conditions, and restrictions of this Easement shall be binding upon, and inure to the benefit of, the parties hereto and their respective personal representatives, heirs, successors, and assigns and shall continue as a servitude running in perpetuity with the Subject Property. 7. General Provisions, a, Controlling Law. The interpretation and performance of this Agreement shall be governed by the laws of the State of California, 2 .1 ,;2. -- V · b, Severabilitv, If any provision of this Agreement, or the application thereof to any person or circumstances, is found to be invalid, as the case may be, shall not be affected thereby. c. Counterparts. The parties may execute this instrument in two or more counterparts, which shall, in the aggregate, be signed by all parties; each counterpart shall be deemed an original instrument as against any party who has signed it. In the event of any disparity between the counterparts produced, the recorded counterpart shall be controlling. d. Recitals, The recitals set forth above are incorporated into this Agreement. IN WITNESS WHEREOF, County and City have executed this instrument as of df'T~ 1 ~/ ~, 1998. COUNTY OF SAN DIEGO By: Its: By: Its: CITY OF CHULA VISTA, a municipal corporation By: David D. Rowlands, Jr. City Manager Approved as to form by " .t~1ll-5)¡~ <{~~J.~ Jolin . Kaheny <- City Attorney H: \shared\A ttorney\County2. wpd )~-1~,;z.13 ,..-. MINUTES OF A REGULAR MEETING OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA Tuesday, March 17, 1998 Council Chambers 6:05 p.m. Public Services Building CALL TO ORDER l. ROLL CALL: PRESENT: Councilmembers: Moot, Padilla, Rindone, Salas, and Mayor Horton. ABSENT: Councilmembers: None ALSO PRESENT: City Manager, John D. GOBS; Assistant City Attorney, Ann Y. Moore; and City Clerk, Beverly A. Authelet. 2. PLEDGE OF ALLEGIANCE TO THE FLAG, MOMENT OF SILENCE 3. APPROVAL OF MINUTES: March 3, 1998. MSC (RindonejPadilla) to approve said minutes 4-0-0-1 (Moot abstaining because he was absent at the meeting). 4. SPECIAL ORDERS OF THE DAY: Mayor Horton presented a Resolution honoring outgoing president, Enrique Morones, of the Hispanic Chamber of Commerce. Then she introduced the incoming president, Marco Polo Cortes. CONSENT CALENDAR (Items pulled: 7) BALANCE OF THE CONSENT CALENDAR OFFERED BY MAYOR BORTON, headings read, texts waived, passed and approved unanimously 5-0. 5. WRITTEN COMMUNICATIONS: a. Letter from the City Attorney stating that to the best of his knowledge from observance of actions taken in Closed Session on 3/10/98, that there were no reportable actions which are required under the Brown Act to be reported. Per staff's reconunendation, it was approved 5-0 that the letter be received and filed. b. Letter from Vida Navarro, a junior at Hill top High School, requesting a donation toward her trip to Europe with the San Diego Youth Symphony. Per staff's reconunendation, it was approved 5-0 that $50.00 be taken from the Council Contingency account for Vida Navarro toward expenses incurred for her participation in Europe with the San Diego Youth Symphony. c. Letter from Dennis Mauricio, Director of Music at Hill top High School, requesting a donation toward their trip to Phoenix for the Music Educators National Conference. Per staff's recommendation, it was approved 5-0 that $250.00 be taken from the Council Contingency Account and granted to the Hilltop High Music Tech Ensemble in exchange for their performance at a City event during this calendar year. d. Letter of resignation from the United Nations Committee - Georgia Langhorst, Per staff's recommendation, it was approved 5-0 to accept the resignation with regret, and the City Clerk was directed to post the vacancy inunediately according to the Maddy Act in the Clerk's Office and the Public Library. j,2-/tJ Minutes March 17, 1998 Page 2 6. ORDINANCE 2725 APPROVING AMENDMENTS TO THE SALT CREEK RANCH SECTIONAL PLANNING AREA (SPA) PLAN CONSISTING OF MODIFICATIONS TO THE PLANNED COMMUNITY DISTRICT REGULATIONS REGARDING CERTAIN SIDEYARD SETBACK ENCROACHMENTS (second readina and adoption) - The applicant proposes to amend the Sectional Planning Area (SPA) plan far the project formerly known as Salt Creek Ranch and now identified as Rolling Hills Ranch. The proposed amendments would allow certain setback encroachments which would accommodate trellis structures over driveways, where the driveways lead to garages located in the rear of the lot for the SF 1, SF2, and SF3 single family detached land use districts. Per staff's recommendation, the ordinance was placed an second reading and adapted 5-0. (Director of Planning) 7. RESOLUTION 18923 APPROVING A PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS WITH THE CITY OF SAN DIEGO AND TRUST FOR PUBLIC LAND FOR THE ACQUISITION OF 36.44 ACRES OF PARK LAND LOCATED IN THE OTAY VALLEY - In 1985, the City of Chula Vista annexed the community of Montgomery, which was found to be deficient in adequate park facilities. In 1989, the City adapted a comprehensive update of the General Plan which identifies a planned neighborhood park located north of the Otay River and west of Interstate 805. Council has approved a Capital Improvement Project for the acquisition of park land west of Interstate 805 in the 97/98 budget. An appropriation of $1,011,750 from Park Acquisition and Development Funds was approved; however, only $867,249 will be needed to acquire 36.44 acres within the Otay Valley. In conj unction with acquisition efforts related to the proposed Otay Valley Regional Park, the City of Chula Vista is working in conjunction with the City of San Diego Property Division to acquire this land, Per staff's recommendation, the resolution was adopted 5-0. (Director of Parks and Recreation and Director of Planning) The item was pulled by Councilmember Rindone. He asked haw long did staff anticipate it will take the city of San Diego to de annex the 36.44 acres of parkland in Chula Vista. Jess Valenzuela, Director of Parks and Recreation, replied that deannexation will not occur ¡mmediately. It will probably be over a year or so before any kind of annexation occurs. However, the property will be purchased within the next couple of months. Escrow closes at the end of the month. Councilmember Rindone asked if it was staff's understanding that if we adopt this resolution tonight that they will also be having direction to proceed with San Diego for deannexation. Mr. Valenzuela responded yes that staff is proceeding in that direction. He has met with San Diego staff and Councilmember Vargas to go over the possibility of annexation and deannexation. Staff feels optimistic that we will be able to achieve the annexation. Councilmember Rindone asked if the City of San Diego could waive the property taxes since we are waiving potential of any soil clean up costs. Ann Moore, Assistant City Attorney, stated that under the State constitution the City was required to pay property taxes for property not within its jurisdiction. Once we have annexed the property and its within our jurisdiction, then we can ask for a cancellation of the taxes. But it is the County that we would have to ask for such cancellation after the annexation. Up until then, we cannot get a waiver of the property taxes, although they do allow a discounted amount of property taxes. Councilmember Rindone asked if assuming the parkland is purchased, we do annex, and all things fall in place, then would it be possible far us to apply for a waiver of the property taxes retroactively from the time in which we made the purchase. Ms. Moore replied that we can certainly ask. ),;2.--// Minutes March 17, 1998 Page 3 Councilmember Rindone asked if staff would ingu~re into that. and gl..ve us information in regards to their understanding. This is something that we should pursue and also should vigorously shorten the time line in which the property would be deannexated and obtained by the City so that it would come down on this cost; it is a mutual benefit. Councilmember Moot asked why didn't we structure the transaction 50 we didn't become owner until after the annexation was approved and thereby save us from having to pay the property tax in the first place. Ms. Moore responded that we could have done that. We structured the deal in accordance with staff's wishes. There was a desire on the part of the City staff to own the property now. Mr. Valenzuela stated what we, attempted to do was identify the property that Council had seen while on a tour. That particular property we wanted to assure that it belonged to the City and wouldn't get blended into the remaining portion of the regional park. We wanted to do it on the onset of the overall purchase to insure it would be a Chula Vista park. Councilmember Moot asked if staff thought that the City of San Diego would be adverse structuring the contract in such a way so we had an option. We could put down some option money and then actually it wouldn't change hands until annexation. Technically then, we wouldn't be the owner and we wouldn't have to pay the property taxes in the mean time. Mr. Valenzuela stated that staff hasn't discussed this with the City of San Diego, but we can attempt to do that. Councilmember Rindone asked that if we were to trail this for a couple of weeks to give staff time to investigate those options which are being suggested, what problems would we have for that delay. Ms. Moore responded with respect to the suggestions that were made for the City putting an option on the property, we could try to negotiate that. Her understanding was that the property owner, Fenton, was anxious to sell the property. Right now they were primarily negotiating with San Diego. We could provide the City of San Diego with our money and ask them to purchase the 36 acres and then seek an option with the City of San Diego if we wanted to do that. She believed it was staff's belief that they wanted to actually have the property in ownership because it would also help with our deannexation process if we were the property owners. Mr. Valenzuela stated that escrow will close on March 31, so we will have a very small window of opportunity with the City of San Diego processing the purchase of the overall property including the property which is being purchased with State funds. John Goss, City Manager, stated what has been proposed to the City of San Diego has been something which has been discussed for a number of years. Our general plan actually goes beyond our City limits. What was proposed a number of years ago when the City of San Diego deannexed 200 acres and we annexed 200 acres that is now the site of the water park and the amphitheater was the straightening of the boundary line. Politically that did not work out between the two mayors. What has been more recently proposed to the San Diego City Manager was basically straightening the line out all the way to Beyer Way, so the broader issue is trying to straighten out the boundary line which takes in about four times the amount of property than we are talking about in this item. He felt the deannexation, if we are just looking at the park parcel, would not be much of a problem. He felt it was the larger one which will take a longer period of time, although he did not feel 'it was an issue. Councilmember Rindone felt the points made by Mr. Goss were sensible and reasonable. He also felt the issue about paying property taxes to another public agency for parklands without more assurances is something that should be looked ;2.2 - / J..... Minutes March 17, 1998 Page 4 at, but not to the extent that it would delay the close of escrow, He felt it was reasonable that we protect the interests of our residents. We will be paying property taxes to another public agency for a public park which is not going to generate funds, but all of the other characteristics and reasons for the action tonight are legitimate and viable. He felt it would be prudent for us to have that researched with the City of San Diego and to develop some kind of Memo of Understanding so that we don't have those difficulties. Mr. Goss felt that his only caution would be that if we proceeded to say we want to look principally at this time of the deannexation and annexation just the park property to save the 52600 per year in the property tax, we may lose the bigger issue of the property that we are trying to annex from San Diego that would basically straighten out the boundary. Councilmember Rindone stated he was not convinced. If we get a validation of that and that was the intent of the City of San Diego, we would be able to bring this back in time with that assurance and not jeopardize either the short-range objective that is before us or the longer range objective for straightening out the boundary. He asked if it would be possible to bring this back at the next scheduled meeting. Ms. Moore responded that if the next meeting was on the 31st then we would miss the escrow closing. Councilmember Rindone responded that he did not want to hold this up, so if we proceed with this, then staff at the next meeting could present a report. RESOLUTION 18923 OFFERED BY COUNCILMEMBER RINDONE, beading read, text waived, passed and approved unanimously 5-0. 8. RESOLUTION 18924 ACCEPTING REAL PROPERTY CONSISTING OF 1.8 ACRES LOCATED SOUTH OF BEYER WAY WITHIN THE OTAY VALLEY - As a result of mitigation requirements for work associated with the construction of La Media Road, where it crosses the Telegraph Canyon Creek flood channel, McMillin Project Services, Inc. proposes to deed 1.8 acres of land located within the Otay River Valley and south of Beyer Way to the City. This land area is to be retained in its natural state (riparian), per the conditions of permits issued by State and Federal agencies, and is intended to be a part of the proposed Otay Valley Regional Park. Per' staff's recommendation, the resolution was adopted 5-0. (Director of Planning) * * * EN!) OF CONSENT CALENDAR * * * ORAL COMMUNICATIONS . Matt A. Flach, 1399 Nacion Avenue, 91911, representing the Cultural Arts Commission, announced the following upcoming events: Expo 98 at Chu1a Vista Marina View Park on Saturday, April 4; Mixed Media Show at Southwestern College Gallery March 18-April 23; the recent Black Film Festival which was very successful will become an annual event; Public Programs at Museum of Photographic Arts in San Diego on March 28; Gail McCandliss Art Awards are in the process of being selected; Benefit Performance with proceeds going to the McCandliss fund on March 18-21 at Southwestern College; and finally the Commission intends to become more active and will try to make a monthly presentation to Council. . Dale M. Vizina, 442 Oxford Street, 91910, stated there is a thing called a "brit 'fitting" that ties a sewer line in. What it is is another cleanout on the frontage property of the house. One cleanout is put on the sewer line at 7 feet from the house and there is supposed to be another cleanout put on the frontage property to bring it up to code. He was told that he could put this in, but he was not going to do so. All the houses are not getting it put in. It should have been added in with the cost of putting in the curb and sidewalks. cJ.J. -/3 -- -.-- -_.._-------,--- COUNCIL AGENDA STATEMENT Item .2 3 Meeting Date 10/6/98 ITEM TITLE: Public Hearing - Amending Ordinance 2579, relating to establishing a Procedure for Fee Waiver or Reduction within the Interim Pre-SRI25 Development Impact Fee Ordinance 2.? S' c¡ Amending Ordinance 2579, relating to establishing a Procedure for Fee Waiver or Reduction within the Interim Pre-SRI25 Development Impact Fee. SUBMITTED BY: Dk,,,", of P,blk w"''}<I ~ REVIEWED BY: City Manager-w. ~ --? \ (4/Sths Vote: Yes_No X) Ordinance No. 2579 establishing an interim pre-SRl25 Development Impact fee to pay for transportation facilities in the City's eastern territories was adopted by the City Council on January 4, 1994. As adopted, that ordinance did not have a procedure for fee waiver or reduction. Based on a recent development which paid an estimated fee with an understanding that actual traffic generation rates would be studied after the project was opened, a portion of the fee payment should be refunded. Therefore, Ordinance 2579 needs to be amended to adopt regulations permitting such a refund, RECOMMENDATION: That the City Council: I) conduct the public hearing, and 2) place the ordinance on first reading amending Ordinance 2579 establishing a procedure for fee waiver or reduction for the pre-SRl25 Development Impact Fee. BOARDS/COMMISSIONS RECOMMENDATION: None. DISCUSSION: Prior to the adoption of the interim pre-SRl25 Development Impact Fee (SR-125 DIF) Eastlake built the Eastlake Country Club with a temporary Clubhouse. Since that development was in place prior to the adoption of the fee, there were no SR-125 DIF fees to be paid, Subsequent to the ordinances adoption, Eastlake Country Club obtained a building permit for a permanent Club house. Under the ordinance, the Country Club was required to pay the SR-125 DIF fee for only the additional traffic generated by the increased development. However, the ordinance did not specify a rate for a specific situation such as this and SANDAG's traffic generation charts also had no direct category for this type of expanded use. The ordinance also did not specifically outline a method or authorization for fee reductions or waivers 023 ~/ Page 2, Item _ Meeting Date 10/6/98 Lane\Kuhn Pacific, the developer of the permanent clubhouse, was charged a figure based on staff's best estimate of trip generation for the SR-125 DIF. While they did not agree with the figure, in order to not delay the issuance of their building permit, Lane\Kuhn Pacific decided to pay the fee with the understanding that the City would adjust the fee accordingly, higher or lower, based on a comparison between actual traffic counts before and after the facility had been in operation. An initial study has been completed and, while it is deficient in some areas, it is clear that at least a partial refund is required in order that the SR-125 DIF be administered fairly and equitably, the ordinance needs to be amended to provide for such fee waiver or reduction, The recommended ordinance is based on similar language in the Transportation Development Impact Fee Ordinance and provides that any developer who, because of the nature or type of use s proposed for a development project contends that application of the fee imposed is unconstitutional, unrelated to mitigation of the traffic needs or burdens of the development, or may have been incorrectly assessed, may apply for a waiver or reduction of the fee. The ordinance provides that application shall be made in writing and filed with the City Engineer not later than ten (10) days after notice of public hearing on the development permit application is given, or if no development permit is required, at the time of the filing of the building permit application. The application shall state in detail the factual basis for the claim of waiver or reduction. The ordinance also provides that the City Council shall consider the application withi n sixty (60) days after its filing or as otherwise mutually agreed upon by the developer and the Ci ty and that the decision of the City Council shall be final. It further provides that if a reduction or waiver is granted, any change in use within the project shall subject the development to payment of the fee. The procedure provided by this section is additional to any other procedure authorized by law for protesting or challenging the fee imposed by this ordinance. FISCAL IMPACT: The enactment of this ordinance does not, in itself, have a fiscal impact. However, on October 13 following the ordinance's approval, an item will also be on the agenda to refund $33,050 in SR-125 DIF fees, out of a total paid by Lane\Kuhn Pacific of $66,010, for the permanent Eastlake Country Club clubhouse. Exhibits: k ~ a - Ordinance 2579 r ;ù H :\HOME\ENGlNEER\AGENDA \ 125DIF-3 .CLS September 29. 1998 (2:44pm) ;2.3 -cZ ORDINANCE NO. :2.. 7 ~ AN ORDINANCE OF THE CITY OF CHULA VISTA AMENDING ORDINANCE 2579 RELATING TO ESTABLISHING A PROCEDURE FOR FEE WAIVER OR REDUCTION WITHIN THE INTERIM PRE-SR125 DEVELOPMENT IMPACT FEE WHEREAS, Ordinance No. 2579 establishing an interim pre- SR125 Development Impact fee to pay for transportation facilities in the City's eastern territories was adopted by the City Council on January 4, 1994; and WHEREAS, as adopted, that ordinance did not have a procedure for fee waiver or reduction; and WHEREAS, based on a recent development which paid an estimated fee with an understanding that actual traffic generation rates would be studied after the project was opened, a portion of the fee payment should be refunded; and WHEREAS, therefore, Ordinance 2579 needs to be amended to adopt regulations permitting such a refund. The City Council of the City of Chula vista does hereby ordain as follows: SECTION I: That Ordinance No. 2579 is hereby amended by adding a new Section 5 to establish a procedure for fee waiver or reduction for the Pre-SR125 Development Impact Fee to read as follows: SECTION 5. Refund Provision. Any developer who, because of the nature or type of uses proposed for a development proiect contends that application of the fee imposed is unconstitutional. unrelated to mitiqation of the traffic needs or burdens of the development, or may have been incorrectly assessed, may apply for a waiver or reduction of the fee. The application for the waiver or reduction shall be made in writinq and filed with the City Enqineer not later than the (10) days after notice of public hearinq on the development permit application is qiven, or if no development permit is required, at the time of the filinq of the buildinq permit application. The application for a waiver or reduction shall state in detail the factual basis for the claim of waiver or reduction. The city Council shall consider the application for a waiver or reduction within sixty (60) days after its filinq or as 1 ;2J-3 otherwise mutuallY aqreed upon bv the developer and the City and that the decision of the City Council shall be final. It further provides that if a reduction or waiver is qranted, any chanqe in use within the pro;ect shall sub; ect the development to payment of the fee. The procedure provided bv this section is additional to any other procedure authorized bv law for protestinq or challenqinq the fee imposed bv this ordinance. SECTION II: This ordinance shall take effect and be in full force on the sixtieth day from and after its second reading and adoption. Presented by Approved as to form by (~~ ~~d) ~ John P. Lippitt, Director of John M. Kaheny, City ~ torney Public Works H:\home\lorraine\or\ord2579 2 023 ---t/;pE-// - ORDINANCE NO, 2579 AN ORDINANCE OF THE CITY OF CHULA VISTA, CALIFORNIA, ESTABLISHING AN INTERIM PRE-SR125 DEVELOPMENT IMPACT FEE TO PAY FOR TRANSPORTATION FACILITIES IN THE CITY'S EASTERN TERRITORIES WHEREAS, the City's General Plan Land Use and Circulation Elements require that adequate, safe transportation facilities be available to accommodate the increased traffic created by new development; and, WHEREAS, the City Co unci 1 has detenni ned that potential delays in the construction of State Route (SR) 125 by CALTRANS or others will adversely impact the City's ability to accommodate said increased traffic; and, WHEREAS, the City Council has detennined that new development within the Eastern Territories will create adverse impacts on the City's transportation system which must be mitigated by the financing and construction of certain transportation facilities identified in this Ordinance; and, WHEREAS, the Ci ty Counci 1 has detenni ned that a reasonable means of financing the transportation facilities is to levy a fee on all development in .- the Eastern Territories of the City; and, WHEREAS, the fee has been justified by the financial and engineering study enHtled "Interim State Route 125 Facility Feasibility Study· dated May 1993, and prepared by Howard Needles Tammen & Bergendoff. WHEREAS, the financial and engineering study and the City's General Plan show that the transportation network will be adversely impacted by new 'development within the Eastern Territories unless new transportation facilities are added to accommodate the new development; and, WHEREAS, the financial and engineering study and the.City's General Plan establish that the transportation facilities necessitated by development in the Eastern Territories comprises an integrated network; and, WHEREAS, developers of land within the Eastern Territories should be required to mitigate the burden created by development through the construction of transportati on facil i ti es wi thi n the boundari es of the development, the construction of those transportation facilities outside the boundaries of the development which are needed to provide service to the development in accordance with City standards, and the payment of a fee to finance the development 's portion of the total cost of the transportation network; and, WHEREAS, all development within the Eastern Territories contribute to the cumulative burden on' the transportation network in direct relationship to the amount of traffic originated by or destined for the development; and, --' J.J---S .-._~ -- Ordinance No. 2579 Page 2 4IIÞ WHEREAS, the amount of traffic generated has been determined based upon average daily trips for various land areas based upon studies conducted by SANOAG (commercial trips bein9 modified to eliminate passerby trips) and verified by the financial and engineering study prepared for the purposes of this fee; and, WHEREAS, the SANOAG traffic generation determinations have been used by numerous public agencies in San Diego County for various purposes, including the preparation of General Plan Circulation Elements, the justification of traffic impact fees, and transportati on p 1 anni ng, and have been determi ned to be a reliable and accepted means of allocating the burden on a transportation network to development to be serviced by the network; and, WHEREAS, on July 27, 1993, the City Council held a duly noticed meeting at which oral or written presentations could be made; and, WHEREAS, the City Council determined based upon the evidence presented at the meeting, the City's General Plan and the various reports and other information received by the City Council in the course of its business that imposition of the Interim pre-SR-125 impact fee on all development in the Eastern Territories for which building permits have not yet been issued is necessary in J order to protect the public safety and welfare and in order to ensure effective implementation of the City's General Plan; and, I WHEREAS, the City Council has determined that the amount of the fee levied 4IIJ this Ordinance does not exceed the estimated còst ·of providing the ansportation facilities, ! NOW, THEREFORE, the City Council of the City of Chula Vista does ordain as j follows: . ¡ SECTION 1: Establishment of Fee, I , (a) An interim pre-SR-125 development impact fee in the amounts I set forth in subsection (d) is hereby established to pay for transportation improvements and facilities within the ;astern j Territories of the City. The fee shall be paid before the ! issuance of building permits for each development project ¡ within the Eastern Territories of the City. The fees shall be i expended only for the purposes set forth in this ordinance. . The Director of Finance is authorized to establish various ; ! accounts within the fund for the various improvements and j facilities identified in this ordinance and to periodically' make expenditures from the fund for the purposes set forth , ¡ herein in accordance with the facilities phasing plan or capital improvement plan adopted by the City Council. The 1 City Council finds that collection of the fees established by j this ordinance at the time of the building permit is necessary ¡ to ensure that funds will be available for the construction of ¡ facilities concurrent with the need for those facilities and , J . to ensure certainty in the capital facilities budgeting for 1 the Eastern Territories. , j j .23-4- ---- -- -_....- ' , Ordinance No. 2579 Page 3 ~ (b) Said fee shall be in effect commencing January 1. 1995, (c) The fee estab 1 i shed by thi s secti on is in addi t i on to the requirements imposed by other City laws, policies or regulations relating to the construction or the financing of the construction of public improvements within subdivisions or developments. (d) The fee for each development shall be calculated at the time of buil di ng pennit application based upon the fo 11 owi ng schedule: Development Tvpe Transportation Fee Single Family Detached Dwelling $820/Dwelling Unit Single Family Attached Dwelling $656/Dwelling Unit Multi-Family Dwell ing $492/Dwelling Unit Commerci a 1 $20,500/Gross Acre Industrial $16,400/Gross Acre The City Council shall annually review the amount of the fee. . The City Council may adjust the amount of the fee as necessary to reflect changes in the Engineering-News Record Construction Index, the type, size, location or cost of the Transportation Facilities to be financed by the fee, changes in land use designations in the, City's General Plan, and upon other sound engineering, financing and planning infonnation. Adjustments to the above fee may be made by resolution amending the Master Fee Schedule. (e) The fees collected shall be used by the City for the following purposes as detennined by the City Council: .J 1. To pay for the construction of facilities by the City, or to reimburse the City for facilities installed by the Citý with funds from other sources. 2. To reimburse developers who have been required by Section 4(a) of this ordinance to install improvements that are street facilities and are listed in Section 3. 3. To reimburse developers who have been pennitted to install improvements pursuant to Section 4(b) of this ordinance. 4. To admi ni ster and update the fee program i ncl udi ng . retaining consultants to perfonn engineering of financing studies, )3 - 7 Ordinance No. 2579 Page 4 "ECTION 2: Definitions, For the purposes of this ordinance, the following words or phrases sha 11 be construed as defined in this Section, unless from the context it appears that a different meaning is intended. (a) "Buil di ng Permit" means a permit required by and issued pursuant to the Uniform Building Code as adopted by reference by this City. (b) "Developer" means the owner or developer of a development. (c) "Development Permit" means any di screti onary permit, entitlement or approval for a development project issued under any zoning or subdivision ordinance of the City. (d) "Development Project" or "Development" means any activity described in Section 65927 and 65928 of the State Government Code. (e) "Eastern Territories" means that area of the City located between Interstate 805 on the west, the City sphere of influence boundary on the east, Bonita Road on the north, and the alignment of the proposed extension of East Orange Avenue on the south, as shown on the Chula Vista General Plan. The property known as Bonita Gateway located at the northeast quadrant of Bonita Road and I-80S intersection is also included. For the purposes of this fee, Eastern Territories shall be further restricted to exclude the following projects: j Eastl ake Trail s , Eastlake Vistas 1 Eastlake Woods 1 , Eastlake Business Park II 1 Bonita Meadows . / Phases of Salt Creek Ranch exceeding 1043 j Equivalent Dwelling Units Phases of San Miguel Ranch exceeding 1350 Equivalent Dwelling Units , (f) "Financial and engineering study": means the "Interim State i Route 125 Facility Feasibility Study" dated May, 1993, and on file in the Office of the City Clerk. , SECTION 3: TransDortation Facilities to be Financed bv the Fee, J ! (a) The transportation facil i ti es to be financed by the fee. j established by this ordinance are: j 023 /~ , _.._u___,_..~ Ordinance No, 2579 I Page 5 , I 1 I , , ¡ Segment Sweetwater Road (Bonita Road to SR-125) " 1 '. Segment Bonita Road (Sweetwater Road To San Miguel Road) . i 2 i. , San Miguel Road (Bonita Road to Proctor Valley Road) ¡ Segment . 3 ; Segment Proctor Valley Road (San Miguel Road to SR-125 corridor) 4 Segment SR-125 Corridor (The SR-125 corridor is the right-of-way reserved through 5 Eastlake and Salt Creek I) (b) The City Council may modify or amend the list of projects in order to maintain compliance with the Circulation Element of the City's General Plan, .' SECTION 4: Developer Construction of Transportation Facilities. (a) Whenever a developer of a development project would be c required by application of City law or policy, as a condition of approval of a development permit to construct or finance the construction of a portion of a transportation facility identified in Section 3 of this ordinance, the City Council may impose an additional requi rement that the development install the improvements with supplemental size, length or capacity in order to ensure efficient and timely construction of the transportation facil i ti es network. If such a requirement is imposed, the City Counei 1 sha 11 , in its discretion, enter into a reimbursement agreement with the developer, or give a credit against the fee otherwise levied by this ordinance on the development project. . ..,J' (b) A developer may request authorization from the City Council to construct one or more of the facilities listed in Section 3. The request shall be made in writing to the City Council and shall contain the following informational conditions: 1- Detailed description of the project with a preliminary cost estimate, 2. Requirements of developer: - preparation of plans and specifications for approval by the City; - secure and dedicate any right-of-way required for the project; - secure all required permits, environmental 02 3 ~I - Ordinance No. 2579 Page 6 - clearances necessary for construction of the proj ect; - provision of performance bonds; - payment of all City fees and costs. 3. The City will not be responsible for any of the costs of constructing the project. The developer shall advance all necessary funds to construct the project. SECTION 5: This ordinance sha 11 take effect and be in full force on the thirtieth day from and after its adoption. Presented by Approved as to f ;L~ r; I , - . 1 Bruce M. Boogaar Di City Attorney ¡ 1 I , 0 ,.... I ¡ , .J I i ; , , , j 1 , , 1 , (J , ","_0. j I i . ;23 -jtJ - _n_ _ ____._._ Ordinance No, 2579 Page 7 PASSED, APPROVED and ADOPTED by the City Counei 1 of the City of Chula Vista, California, this 4th day of January, 1994, by the following vote: AYES: Council members: Fox, Horton, Moore, Rindone, Nader NOES: Councilmembers: None ABSENT: Councilmembers: None ABSTAIN: Counei 1 members: None £M~ Tim Nader, Mayor ATTEST: Beverly . Authelet, City Clerk STATE OF CALIFORNIA ) COUNTY OF SAN DIEGO ) ss, CITY OF CHULA VISTA ) I, Beverly A. Authelet, City Clerk of the City of Chula Vista, California, do hereby certify that the foregoing Ordinance No. 2579 had its first reading on December 7, 1993, and its second reading and adoption at"á regular meeting of said City Council held on the 4th day of January, 1994. Executed this 4th day of January, 1994, () azdØl Authelet, City Clerk .1]---// ._"-~- _.~......._--- --~_._._-"'._---_._..__.._--- COUNCIL AGENDA STATEMENT Item:~ Meeting Date: 10/6/98 ITEM TITLE: Public Hearing: PCA 98-07; Consideration of amendment to Section 19.64.150 and addition of Section 19.64.190 of the Municipal Code allowing for the issuance of reconstruction permits in certain instances for non-conforming non-residential structures within the City of Chula Vista- James Brennan/Mid-Town Self Storage Ordinance: .2. 7 ¿ tl An Ordinance of the City of Chula Vista Amending Title 19 of the Municipal Code to Modify Section 19.64.150 and add Section 19.64.190 Relating to Reconstruction of Non-Conforming Non- Residential Structures within the City of Chula Vista. SUBMITTED BY: Director of Planning and BUilding.1ll REVIEWED BY: City ""'g~-:De- ~ v0\ 4/5 Vote: Yes_ NolL The proposal is to amend the Municipal Code to allow for the issuance of Reconstruction Permits for certain non-conforming non-residential structures within the City. The existing zoning regulations provide that when a non-conforming non-residential structure is destroyed by fire or other calamity, subject to certain limits, it may not be reconstructed to the previously existing land use. Municipal Code Section 19.64.150 presently places a limitation on the reconstruction of non-conforming non-residential structures to those with a loss of 60 % of less. If damaged over 60%, the non-conforming non-residential structure cannot be reconstructed on the property, This provision can cause certain difficulties in obtaining financing for such properties. The Environmental Review Coordinator has determined that, as a procedural amendment, the project is exempt from the California Environmental Quality Act (CEQA) under the General Rule exemption section 15061(b)(3). CEQA only applies to projects which have the potential for causing significant effects on the environment. RECOMMENDATION: It is recommended that the City Council adopt Ordinance amending Section 19.64.150 and adding Section 19.64.190 to the Municipal Code. c2'1-'/ -.---_.- ---,- Page 2, Item: Meeting Date:l0/6/98 BOARDS/COMMISSION RECOMMENDATION: On September 23, 1998, the Planning Commission held a public hearing to consider the proposed amendment to the Municipal Code. The Commission discussed the purpose and need for the proposed amendment. After closing the public hearing, the Planning Commission voted 6-0-1 to recommend that City Council adopt the proposed Ordinance. DISCUSSION: 1. Back~round One example of a non-conforming, non-residential use pursuant to Municipal Code Section 19.64.150 is an existing mini-warehouse located at 1160 Third Avenue, known as Mid Town Self Storage. Mini warehouse uses have been classified by the City's Zoning Ordinance as an industrial use type and are not allowed under the current CC (Central Commercial) designation. Mid Town Self Storage was constructed prior to the annexation of this area into the City ofChula Vista in 1986. At the time of the annexation, the zoning of the property was C-36 (General Commercial) which allowed such use subject to a Major Use Permit processed and approved by the County of San Diego. According to the applicant, a Major Use Permit was obtained from the County prior to construction. The applicant has initiated a request to the City to evaluate the current provisions of the code regarding ability to rebuild non-conforming, non-residential structures in the event of destruction. A similar type of amendment was adopted last year for nonconforming residential units. This resulted in a change to the Municipal Code which presently allows such residential unit(s) to be rebuilt if 100% destroyed except if located within an industrially zoned property. There was no request at that time to evaluate non-residential non-conforming uses. 2. Existin~ and Proposed Text Existing Section 19.64.150 reads as follows: Any non-residential nonconforming building damaged more than sixty percent of its value, as established by the director of building and housing, at the time of damage by fire, explosion, wind, earthquake, war, riot, or other calamity or act of God, shall not be restored or reconstructed and used as before such happening; but if less than sixty percent damaged, it may be restored, reconstructed or used as before, provided that such be initiated within six months and be substantially completed within twelve months of such beginning, .2V---.2. Page 3, Item: Meeting Date:l0/6/98 Existing section 19.64.150 is proposed to be amended as follows: Section 19.64-150 Non-residential structures-Replacement restrictions Any non-residential nonconforming building damaged more than sixty percent of its value, as established by the director of plannin¡¡ and building IIild !tðö3ing, at the time of damage by fIre, explosion, wind, earthquake, war, riot, or other calamity or act of God, shall not be restored or reconstructed and used before such happening; but if less than sixty percent damaged, it may be restored, reconstructed or used as before, provided that such be initiated within six months and be substantially completed within twelve months of such beginning. The aforementioned provision shall be st¡perseded to allow for reconstruction if 100% destroyed. where a reconstruction pennit is obtained prior to or within twelve months followin~ destruction of said non-residential nonconfonnin!! structure as allowed by section 19.64.190. In addition, section 19.64.190 will be added to the code establishing the circumstances and findings required to obtain a Reconstruction Pennit: Section 19.64. 190-Reconstruction Pennits A Reconstruction Penn it may be ¡¡pproved to allow for the reconstruction of a non- residential non-conformin¡¡ structure in the event that such buildin!! has been dama~ed or destroyed by fIre. explosion or act of God. Said pennit shall allow for reconstruction consistent with the ori¡¡inal confi¡¡uration of the buildin¡¡. with the exception that no reconstruction can t"k" nlace within the Ci*,'s current ri~ht-of-way. The Zonin¡¡ Administrator. in accordance with Municipal Code Section 19.14.180 and followin¡¡ a noticed public hearin¡¡. may :¡¡¡prove a reconstruction permit based uJ'on the followin¡¡ criteria: l.. The nonconfonni*, of the buildin¡¡ was not caused by any action of the buildin¡¡ owner. 2... The ¡¡rantin¡¡ of the reconstruction pennit will not cause the reconstruction of a buildin¡¡ with a non-confonni*, which is or will be materially detrimental or iniurious to the nei~hborhood or public welfare based uJ'on factors. inc1udin¡¡ but not limited to parkini. traffIc noise and incompatible land uses in the immediate surroundin~ area. 1.. The reconstruction does not exceed the existini non-confonnity. :2i-:J Page 4, Item: Meeting Date:l0/6/98 ~ There are specific site constraints affectin~ the property which would make confonnance with current zonin~ relrUlations an undue hardship and burden on the property owner. Such site constraints include but are not limited to factors such as minimal street fronta~e or limited vehicular access to the site. i.. The nonconformity allowed by the permit shall only aJ'ply to its current use. Said reconstruction permit shall be conditioned such that any new construction must meet current Building and Fire Codes and not be permitted within the Ci(y ri~ht of w1\)'. The director of plannin\' and building m1\)' waive certain other current develoJ'ment standards includin!! buildin~ setbacks and landsc1\)in~ re~lations based uJ'on hardship and l\Pon the fmdin¡ they wi1l not cause a detrimental impact to the surroundin~ area. 3. Model for analysis: The Municipal Code of the City of San Diego contains a provision allowing for the issuance of a Reconstruction Permit based upon certain findings (see Attachment 2) and was used as a model for this change to the City of Chula Vista Municipal Code. At the same time, the majority of Reconstruction Permits issued by the City of San Diego are for non-conforming residential uses. As a result, they have not had to address the issue of compatibility of non-conforming non-residential uses as they relate to the surrounding area. Because of this fact as well as the preponderance of such non-residential non- conforming uses occurring within the various Redevelopment areas in the City of Chula Vista, staff recommends using the findings required by the City of San Diego as a basis for the criteria for the proposed amendment with an additional criterion that there be specific constraints affecting the property which would make it difficult to develop to current zoning/use regulations. In addition, specific wording has been added to read that : "In the event the existing structure was built within the City's current right-of-way, replacement with new construction must occur behind the right-of-way line. In addition, any reconstruction must adhere to current fire and building codes which are in effect at the time reconstruction/replacement of the structure occurs." 4. hnpacts upon Redevelopment: The Community Development Department had initially expressed a concern over how issuance of a Reconstruction Permit could affect the goals and policies of redevelopment. However, based upon the addition of criterion #4 which discusses the presence of specific site constraints, they now support the proposed amendment. It is believed there will not be a significant number of properties located within one of the City's redevelopment areas which will contain the type of site constraints described under this criterion. J 1- i Page 5, Item: Meeting Date:l0/6/98 5. Discussion of Reqµired Criteria: Due to the sensitivity of allowing a non-conforming, non-residential structure to be reconstructed if totally destroyed, a number of criteria are being required to insure that such Reconstruction Permits are not approved indiscriminately and without adequate consideration as to their potential impacts. A. The non-conformity of the building was not caused by any action of the building owner. Discussion: This criterion requires that the existing structure was constructed at a time the land use was allowed under the Zoning Ordinance and that it was constructed legally (ie with a building permit). An initial concern of staff related to the adequacy of building permit records to substantiate whether the various developments of the City, especially within the Montgomery Area, were originally built with permits. This concern was significant in that it is a primary criterion for the granting of a Reconstruction Permit. Subsequent staff research has indicated that the County Assessor's Office can be considered a "final source" for building permit information. This "final source" is sometime relied upon by the City of San Diego and La Mesa, which appear to be the only two other cities within San Diego County which have allowance for this type of permit. B. The granting of the reconstruction permit will not cause the reconstruction of a building, with a non-conformity of which is or will be materially detrimental or injurious to the neighborhood or public welfare based upon incompatibilities, including but not limited to parking, traffic, noise and land uses. Discussion: This criterion requires that the use be evaluated in terms of potential impacts to the area in which the site is located. This includes the issue of compatibility of uses with the surrounding area. Such impacts could also involve inadequacy of parking, traffic or noise impacts. C. The reconstruction does not exceed the existing non-conformity. Discussion: The granting of a Reconstruction Permit will in no way allow for the expansion of ;21--£' Page 6, Item: Meeting Date:l0/6/98 the existing structure beyond its original footprint except as otherwise permitted by Section 19.64,050 regarding "Enlargement, extension of reconstruction prohibited-exceptions" . These exceptions regarding expansion are primarily limited to those which are authorized by the Planning Commission after determination that expansion is necessary and incidental to its use. D. There are specific site constraints affecting the property which would make conformance with current zoning regulations an undue hardship and burden on the property owner. Such site constraints include but are not limited to the site containing minimal street frontage and limited vehicular access to the site, Discussion: This criterion will insure that the intent of the goals and policies of the General Plan as well as redevelopment are adhered to by limited the granting of a permit to those properties which contain specific site constraints. 6. Permit Process As described in the proposed amendment delineated above, a Reconstruction Permit could be applied for prior to or within twelve months following destruction of said non- conforming structure. It is recommended that the process established for the issuance of a Reconstruction Permit be similar to other discretionary permits issued by the Zoning Administrator with the exception that, in this case, a public hearing would be scheduled in all cases in which a Reconstruction Permit request is being processed. As such, staff recommends that a processing fee (to be determined) be required for each request for a Reconstruction Permit, along with applicable application form and submittal requirements. Staff in turn will process the request. As with other administrative permits, property owners within 300 feet of the subject property will be notified. In this particular case, the Public Hearing Notice will contain both the date of the Zoning Administrator action as well as set time and location for the hearing. If issues or questions are raised by those notified, a modified hearing/meeting will be set up with the Zoning Administrator, similar to the process currently followed for Large Family Day Care Permits. Staff will develop an appropriate application form as well as format for the Reconstruction Permit. Samples of those used by other jurisdictions will be used as examples for developing the necessary format. These samples are shown in Attachment 3. FISCAL IMPACT: The applicant has paid for all processing costs associated with this application. ,).¡j-f Page 7, Item: Meeting Date:l0/6/98 Attachment. \. __c_~w~ / ~ 2, Example of code sectio? from ~ity of San Diego regarding reconstruction permits ~ v-'f 3, Example of reconstructm penmts H:\HO~E\PLANNINGVEFF\CCRPT\RECONSTR .J. tj- ? ;0"1- g' ORDINANCE NO. 27(ç¿; - AN ORDINANCE OF THE CITY OF CHULA VISTA AMENDING TITLE 19 OF THE MUNICIPAL CODE TO MODIFY SECTION 19.64.150 AND ADD SECTION 19.64.190 RELATING TO RECONSTRUCTION OF NON- CONFORMING NON-RESIDENTIAL STRUCTURES WITHIN THE CITY OF CHULA VISTA. WHEREAS, the current Zoning Ordinance allows non-residential units which are nonconforming due to current zoning to be reconstructed only if 60 % or less of the value of the building is damaged/destroyed; and WHEREAS, an application was submitted requesting staff to investiagate the possiblity of allowing the issuance of a permit to allow reconstruction of said structures in the event of 100 % destruction; WHEREAS, a previous amendment was adopted allowing non-conforming residential units to be reconstruction in the event of 100% destruction (if outside the industrially zoned areas); and WHEREAS, the Planning Commission set the time and place for a hearing on said amendment and notice of said hearing, together with its purpose, was given by its publication in a newspaper of general circulation in the city at least ten days prior to the hearing, and WHEREAS, the hearing was held at the time and place as advertised, namely September 23, 1998, at 7:00 p.m. in the Council Chambers, 276 Fourth Avenue, before the Planning Commission and said hearing was thereafter closed, and WHEREAS, the Environmental Review Coordinator has determined that this ordinance amendment is exempt from CEQA under the general rule exemption Section 15061(b)(3). The City Council of the City of Chula Vista does hereby ordain as follows: SECTION I: That Section 19.64.150 of the Chula Vista Municipal Code is hereby amended to read as follows: Section 19.64-150 Non-residential structures-Replacement restrictions Any non-residential nonconforming building damage more than sixty percent of its value, as established by the director of planning and building aIlIi hOlising, at the time of damage by fire, explosion, wind, earthquake, war, riot, or other calamity or act of God, shall not be restored or reconstructed and used before such happening; but if less than sixty percent damaged, it may be restored, reconstructed or used as before, provided that such be initiated within six months and be substantially completed within twelve months of such beginning. The aforementioned provision shall be superseded to allow for reconstruction if 100 % destroved, if a reconstruction permit is obtained prior to or within twelve months following destruction of said non-residential nonconforming structure as allowed bv Section 19.64.190. ;1'-/-1 " ......--........+-.. SECTION II: That Section 19,64.190 is hereby added to the Chula Vista Municipal Code to read as follows: Section 19.64. 190-Reconstruction Permits A Reconstruction Permit may be approved to allow for the reconstruction of a non- residential non-conformin¡¡ structure in the event that such buildin¡¡ has been dama¡¡ed or destroyed by fire, explosion or act of God. Said permit shall allow for reconstruction consistent with the ori¡¡inal confi¡¡uration of the buildin¡¡ with the excePtion that no reconstruction can take place with the Citys current ri¡¡ht-of-way. The Zonin¡¡ Administrator. in accordance with Municipal Code Section 19.14.180 and followin¡¡ a noticed public hearing, may approve a reconstruction permit based upon the followin¡¡ findin¡¡s: L The nonconformity of the buildin¡¡ was not caused by any action of the buildin¡¡ owner. 2. The ¡¡rantin¡¡ of the reconstruction permit will not cause the reconstruction of a buildin¡¡. with a non-conformity which is or will be materially detrimental or iniurious to the nei¡¡hborhood or public welfare based uPon factors includin¡¡ but not limited to parkin¡¡, traffic. noise and incompatible land uses in the immediate surroundin¡¡ area. ¿, The reconstruction does not exceed the existin¡¡ non-conformity. 4, There are specific site constraints affectin¡¡ the property which would make conformance with current zonin¡¡ re¡¡ulations an undue hardship and burden on the property owner. Such site constraints include but are not limited to factors such as minimal street frontaæ or limited vehicular access to the site. ~ The non-conformity allowed by the permit shall only apply to its current use. Said reconstruction permit shall be conditioned in that any new construction must meet current Buildin¡¡ and Fire Codes and not be permitted within the City ri¡¡ht of way. The director of plannin¡¡ and buildin¡¡ may waive certain other current development standards includin¡¡ buildin¡¡ setbacks and landscapin¡¡ re¡¡ulations based upon hardship and upon the finding they will not cause a detrimental impact to the surroundin¡¡ area, SECTION III: This ordinance shall take effect and be in full force on the thirtieth day after its second reading and adoption. Presented by Approved as to form by Robert A. Leiter O-~~ John M. Kaheny Director of Planning City Attorney H: \SHARED\A lTORNEY\ORD. REC c2V//CJ .--- -...- ATTACHMENT 1 MINUTES OF THE CITY PLANNING COMMISSION OF CHULA VISTA, CALIFORNIA Council Chambers 7:00 p.m. Public Services Building Wednesday, September 23, 1998 276 Fourth Avenue, Chula Vista ROLL CALL/ MOTIONS TO EXCUSE: Present: Chair Davis, Commissioners Aguilar, Ray, Willett, Tarantino, and Thomas Absent: Commissioner O'Neill Staff Present: Robert Leiter, Director of Planning and Building Rick Rosaler, Principal Planner Jeff Steichen, Associate Planner Richard Whipple, Associate Planner MSC (Ray/Willett) (6-0-1) to excuse Commissioners O'Neill, who called in asking to be excused because of a prior commitment, Motion carried, PLEDGE OF ALLEGIANCE/SILENT PRAYER INTRODUCTORY REMARKS: Read into the record by Chair Davis APPROVAL OF MINUTES: August 12, 1998 MSC (Ray/Thomas) (5-0-1-1) to accept minutes of August 12, 199 as submitted. Motion carried, ORAL COMMUNICATIONS: None 1, PUBLIC HEARING: PCA 98-07; Consideration of amendment to Section 19.64.150 and addition of Section 19,64,190 to the Municipal Code allowing for the issuance of reconstruction permits in certain instances for non- conforming non-residential structures within the City of Chula Vista - James Brennan/Mid-Town Self Storage. Background: Jeff Steichen, Associate Planner, reported that this request to amend the Municipal Code is being initiated by a former owner of a property located at 1160 Third Avenue which contains a non-conforming, non-residential use (a mini warehouse facility) currently zoned CC (Central Commercial). Mini warehouse uses have been classified by the Zoning Ordinance as an industrial-use-type and are not allowed under the zone designated Cc. I .2'1~// Planning Commission Minutes - 2- Wednesday, September 23, 1998 Under the current code, if more than 60% of the structure were to be destroyed, it could not be rebuilt. Although this is the first instance that staff is aware of this concern, it appears that property owners are experiencing difficulty obtaining certain types of loans or insurance because the current stipulation, therefore, the proposed amendment will apply to all parts of the City, including redevelopment areas. An amendment was approved in 1997 to remove the restriction on rebuilding of non- conforming residential structures, which formerly also had the 60% restriction on rebuilding if destroyed. At that time, staff received numerous requests from lenders asking the City to consider the amendment, but at that time there was no mention about the concerns about the non-conforming non-residential structures. Staff is recommending that Section 19.64.150 be amended so as not to restrict the rebuilding of these non-conforming non-residential structures if a reconstruction permit is obtained pursuant to a new Section 19.64.190-Reconstruction Permit. One of the five criteria for granting the permit is that there be specific sight constraints affecting the property which would make it difficult to develop to the current zoning regulations. For example, in the case of the mini warehouse site on Third Avenue, the property is long and narrow with limited frontage on Third Avenue, which would make it difficult to develop as a commercial use. This criteria is also important from the standpoint of redevelopment in that many of the non- conforming non-residential structures are within the Southwest Redevelopment area and by limiting the allowance of reconstruction permits with these specific sight constraints will help assure that there is no conflict between this amendment and the goals and policies of redevelopment. The process for granting the Reconstruction Permit will be similar to other permits granted by the Zoning Administrator with the exception that in all cases an Administrative Hearing will be scheduled to take place prior to making a decision as to whether a permit will be granted. Staff Recommendation: That the Planning Commission adopt Resolution PCA-9-0 recommending that the City Council adopt an ordinance to amend Section 19.64.150 and add Section 19.64.190 to the Municipal Code relating to the issuance of reconstruction permits for non-conforming non-residential structures. Commission Discussion: . Commissioner Thomas asked for clarification on the significance of the 60% destruction vs. 40 or 80%. Mr. Steichen stated that the percentage varies in different jurisdictions ranging from 50 to 75%, which 75% typically means that if the foundation is still in place, than it can be rebuilt. :2- ,;ul' / ;L Planning Commission Minutes -3- Wednesday, September 23, 1998 . Commissioner Ray asked the for clarification on the wording "shall not be restored or reconstructed and used as before such happening...". Ann Moore, Assistant City Attorney responded that you cannot reconstruct a non- conforming use unless 60% of its value has been destroyed as a result of fire, explosion, wind, earthquake, war, riot or other calamity or act of God. . Commissioner Thomas questioned the prudency in changing the existing Section which can be used as a clean-up measure to eliminate non-conforming structures and land uses. Director Leiter responded that, in effect, it is the intent behind the existing Section, however, there are unique circumstances where it may be unfeasible or an economical hardship to rebuild in accordance with the new zoning on the property. Public Hearing Opened 7:20, No public input. Public Hearing Closed 7:20. MSC (Ray/Willett) (6-0-1) that the City Council adopt an ordinance to amend Section 19.64.150 and add Section 19.64.190 to the Municipal Code relating to the issuance of reconstruction permits for non-conforming non-residential structures. -3 ;u/--- / :> ATTACHMENT 1 RESOLUTION NO. PCA 98-07 RESOLUTION OF THE CITY OF CHULA VISTA PLANNING COMMISSION RECOMMENDING THE CITY COUNCIL ADOPT AN ORDINANCE TO AMEND SECTION 19.64.150 AND SECTION 19.64.190 OF THE MUNICIPAL CODE RELATING TO RECONSTRUCTION OF NON-CONFORMING NON-RESIDENTIAL STRUCTURES. WHEREAS, the current Zoning Ordinance allows non-residential units which are nonconforming due to current zoning to be reconstructed only if 60% or less of the value of the building is damaged/destroyed; and WHEREAS, an application was submitted requesting staff to investigate the possibility of allowing the issuance of a permit to allow reconstruction of said structures in the event of 100 % destruction; WHEREAS, a previous amendment was adopted allowing non-conforming residential units to be reconstruction in the event of 100% destruction (if outside the industrially zoned areas); and WHEREAS, the Planning Commission set the time and place for a hearing on said amendment and notice of said hearing, together with its purpose, was given by its publication in a newspaper of general circulation in the city at least ten days prior to the hearing, and WHEREAS, the hearing was held at the time and place as advertised, namely September 23, 1998, at 7:00 p.m. in the Council Chambers, 276 Fourth Avenue, before the Planning Commission and said hearing was thereafter closed, and WHEREAS, the Commission found that the proposal, as a procedural amendment, is exempt from environmental review and is not subject to CEQA. NOW, THEREFORE, BE IT RESOLVED THAT FROM THE FACTS PRESENTED AT THE HEARING, THE PLANNING COMMISSION recommends that the City Council amend Section 19.64.150 and add section 19.64.190 to the Municipal Code to allow for reconstruction of nonconforming non-residential units as shown on Exhibit "A". That a copy of this resolution be transmitted to the City CounciL '-f ~Lj-/1 .~._--_..._....- Rp.~nhlt'¡nn pr A QR_fl7 P~gP ? PASSED AND APPROVED BY THE PLANNING COMMISSION OF CHULA VISTA, CALIFORNIA, this by the following vote, to-wit: AYES: Davis, Willett, Ray, Aguilar, Tarantino, Thomas NOES: ABSENT: O'Neill Patty Davis, Chairperson Diana Vargas, Secretary H:\HOME\PLANNING\JEFF\PCRESO\RECONST. S-- }.tf; /3 'RPQn1nt1nn pr A QR_07 P~gP ~ EXHIBIT "A" Section 19.64-150 Non-residential structures-Replacement restrictions Any non-residential nonconforming building damage more than sixty percent of its value, as established by the director of planninl! and building ftftd ft6t¡gmg, at the time of damage by fIre, explosion, wind, earthquake, war, riot, or other calamity or act of God, shall not be restored or reconstructed and used before such happening; but if less than sixty percent damaged, it may be restored, reconstructed or used as before, provided that such be initiated within six months and be substantially completed within twelve months of such beginning. The aforementioned provision shall be s~perseded to allow for reconstruction if 100% destroyed. if a reconstruction permit is obtained prior to or within twelve months following destruction of said non-residential nonconforming structure as allowed by section 19.64.190. Section 19. 64. 190-Reconstruction Permits A Reconstruction Permit m1\)' be ¡¡¡!proved to allow for the reconstruction of a non- residential non-conformin¡ structure in the event that such building has been damaged or destroyed by fIre. explosion or act of God. Said permit shall allow for reconstruction consistent with the orilinal confIilUration of the building with the exce¡¡tion that no reconstruction can take place with the Citys current right -of-w1\)'. The Zoning Administrator. in accordance with Municipal Code Section 19.14.180 and following a noticed public hearing. may a¡¡prove a reconstruction permit based upon the following fIndinlW 1.. The nonconformity of the building was not caused by any action of the building owner. 2.. The lranting of the reconstruction permit will not cause the reconstruction of a building. with a non-conformity which is or will be materially detrimental or iniurious to the neighborhood or public welfare based upon factors includinl but not limited to parking. traffIc. noise and incompatible land uses in the immediate surrounding area. 3... The reconstruction does not exceed the existing non-conformitv. ±. There are specifIc site constraints affecting the property which would make conformance with current zoning reilUlations an undue hardship and burden on the (p ).¥//;, --,-------------- RpI;:nhlt1nn pr A QR_()7 P~gP 4 propet1)' owner. Such site constraints include but are not limited to factors such as minimal street fronta!!:e or limited vehicular access to the site. i.. The non-confonni(y allowed by the pennit shall only apply to its current use. Said reconstruction pennit shall be conditioned in that any new construction must meet current Buildin!! and Fire Codes and not be pennitted within the Ci(y ri~ht of way. The director of plannin~ and buildin~ may waive certain other current deve]opment standards incIudin!! buildin~ setbacks and landsc¡¡pin~ re!!ulations based upon hardship and ¡¡pon the findin~ they will not cause a detrimental impact to the surrounding area. JJI7 pLf-:2 Y ATTACHMENT 2 . SA.."i DIEGO MUNICIPAL-CODE' U01.D303 ~' Ç'ì(J5Tfn5" ccde.... . ,'.' righ~~~~~~t,1:b:~.cftÌ>.£ena..~::;.Dfti1. -, '" Ir._.J-.~,¡!'..;.JC''''-' ørr3',,,,p,,p~-,-,ll.~. j.... \C......:~·l /' -;r.~-··,::.,,:.~~,,-·;·,;,,:::cr..·....-...-.~.~_,c...~.'~... ., .. _. .. . ~ " .., DIVISION8,!f..,c;·" . . ,J..Dy <:hange:rm,,'E XltInami'D=lng"". ofllQQ u' ",', "" nG."..,.-1Il Regu1atioDS .' ,u.., . Dr builèing£ iI'" %nore ~e""ric:::;ve or oo:rfo=ing __ ..... ..:: -~:.: ."r:" ,'." ".::'" .. -. use &h2D cc:~s:Ì':u:e abC1:Îanment o!~ nanCD1i- . , .u,.J .formm:~ts. .~':"-:, .......,.". ........:. S 101.0301 NDn-Conforming ps.esPer- P.epajrE z:nd al~ 'wbich liD net increase mitted;~'-=-7;""C" .-,;,"," ",:, "ç;~;.-."::cr~ ,;., th:~g:ree of..an~i:y Dran~onxúng .,.E%:o/':. es,l'"~~ ~ ?>e_~e.arU8!"'.af&ll . buil~'~d or=provem~t, %1Drf :maease þ>,;¡';¡;"g', ~t>! mid.premises e:Dsting in the mze ~ egree øf Z1CDCÞIIÍanmty D .. use, may,' ~ Df ~ Wd zím:ë.. aT "àiJ6iditheii.a£; .~. 'be mad2~d that the aggn;gáte valÚè Df such' -tive1y:at üui time ofthB ~~this Code ""'y repam. m alteratiDI1& Eà:zal not e:œed 50 percent: be cantù:iued. '..' ~.':". .~'. . u" . Dfit6 f8i:rmarket value; aCcanfulg to the 8&sess., . Exëép£ a>; ~èd he-œui:iiD bcl1cmig, strut· ment thereaf by the Cotmty Assessor fir the ñs::a.l ::~, 6ign, aâvertising disp1ays"or improvement year during whicb the repairs andaJte:ratians ::tav:- ~ sD.all1:ie altered or E!IÙargeð" a:ad::an 0=. Tl1e terms "repa:i:;;" =d "alterations" do :act n:lÏlding>;, =---=e&, sigm., aâvertisù1g ~ include painting ar :œplaœment Df eneriar ¡;:¡¡CIX> or im...~ u.~ "'øM~l;luill be erected, cDDStnicted or ~, Dr ~e£. _ established w¥,ch isdesi~ed, '!Tl"=gedor ' !If any nDncanforniin!i- buildinl!;D1" use be ;T':t-';¡."d,~.=pazu:y ar11sen"azIy afS;8id ~ Jic,.¡,uyc<1byme. =lasi=. actDfGad orBCtaftbe ~ ~ restricted by thisChÇtar,~ Such Pub1ie eDeIIlvta the ez:i:=t øffifl:v Perœat r£jOl¡,) or erediai~ør'';;'''''';'hQMfte:Dt:''.''··.· mDrè-afthe:r.ïrmilrbt...alUè. aceordizllrtathe . ~1-:Z7-lJ4 ¡". D-16Il5N.S.J . -, . "90"""!De:Dtthen.ofbytheColmty.Aøessarførthe . .. . --. ' :fiscal year dttriJ:I.g .....a2<:h au::h àestnl.ctian 0=, § 101.03œ1 Enstin=- Ord....."ces'.. Rules, then and withmrt further action by the City CDUJ>- P..eg¡ùatiø:œ Or P.......& Bebo.....-'I' ~,~~ílri'~aruse ~~~ an which Exœpt as l1e:ein ~~"I1y ~ it is not ISa1 ., Was ¡""'t-1 arnoR;..t..;..-1 sìuill from ;..+....,'¡..d by this Chapter to modify or abn>gate or and odI:er the date øf such demu::tion be subjec:t to repeal any mñ;......,.e¡;. nùœ;régulatitins,,?,, per. allthe~IU:IS~~ZcmeOràinanœ , mÏts pfmiamiIy arl!Ipted or iswéd pu:iSUam'tÞ1aw,· 2ar tIœ~~UI 'IV . ~was 1øcated. . re1atmg'tþ thi,uae,''';·'''''¡gP.JÓèDt.D1' ëåDâuct Df', 'l'lle )'.............. øtt!us.~ DDt2WØly'tþ Þmî'¡TTig.::,muctm'e&' signš;Ílâ9t!itisíngdùip1aYB; : any" . ~ ñir whieh-aRecan.· impravememã aT :pi-emises; Pñrvicied;'høwever, ==-';....~ bee%! ar :IS obtained 'llttlluant ' +..... where this Chapter imposes a r:reater nosIm· tiì .M.umapoù Oaàe Sectian 1Dl.D5DD(B). ' ., . tirm 'I1þan the: erecI:iDI1, ·estah1;.;m;......t; 'alteration ' .u ttœ use D a U'-~JlI ar CØll:DSe1i%Il:' senice and . Dr enlargem=t Dr buildings, strud:ureè, sig:n&, is ~ pmswmt ta~"';'; 101.000 œ) (9) ...õ:"ert:ising ~aYE, D,n.l'~..............j;s,DT'~ (c), ID:LD4.23(E) (1).lD:L~6(E) (1), 1Dl.0427(B) , thJm ~~ ~P!"'ecl.ør re.q~d,bý BU~ o!''¡l"''''~e, ' (1); Dr ID1.04!t5.2(E) (11) (e), and if sueh use r1ÙeI;. ~'\"';;~".œ:pI!nI!its. the~œs,øfthis, .m:isted a:aAugust 13,1984, it shall Þeaime a nan. " ~t;ër~c:antrDl,,~ :",~:.:\nf~,'~':~ ,i", ,','. canfcrmmgusemuisb.llllioegØvemèdbytb.i;Fovi- ".,~.17:17:.,~j.Ì!Y~~16l)?Jý"ªJ. .ri¿,~: ";;::2'. SiD%lS .~f,this ~ecti~"':':A%iY sU:eh.m~d¡eal 'Dr :'~.~f:''''':'~·~~. h"'~!i;"~tLi.a~..r~~.,¡j~::'"~-~"':il' ~~ ." 0' .-::....: COUDSeling~ce e:nsting an tþe.effea:rve,date of".. -? .-¿Dl.-!J:!.Q3!-" ~~:..~~~~~?"'r-.~~!,'::'''''''~., tJæ ~........ shall ~ ~,r9D) fÙ!YS ~ cease . ~p~~~ _"\ 'r!¡-":~f:!t;-;:: ''-:=-' ...1" Dperatüm, -after which time th~,B=;nce shall be: The 1awful use afland ï.r;m;'g at the time,the·' UZI1awfW at,tha1; site and &hall cœ>stitatr: à viOla- '. Zone ~;.,.- Ì; ~.. e5,,:t¡.....~th which arèi· ticn Dft.bi& Code =leas a CaiuüticmalUse Pennit nimèe~";~~~Uiíei3id%lÖt'~'¿' mBÿ'¡;e.Mìftt.;;rn.q, ~'DDtainedin aêcárda=e'WithSeetian.lDl.0513, " , prtnPiàed no ~ Dr 8dmtiDii tD SW:h w.êis . :'If an 'inveStigation by the De;;e}Dpmem Ser. " made.,,"" ~. _:.~ ~~~~.. ,''''''-C;' ,,' '. vic:e.;Deparl:ínentrnu1sthat a parl:ic:ularpro¡>- 't~~~~ba1í ,;;;L~~'~tIie~e"¿ erty 'co%ltai1is a legal..~o..eDníarÍñini.useDr " 'the Zone' cmm..mce M~·w;" efi'ectiVe ,with whiCh-" structm-e; a,:'NDtite ofNanr:ilnforminifRights,":. a;.3;.;-.r;;eé'Wí;h·'bUif,;;·ft"g.....dfà £"òt"'èì:iid.;m;°.i'tb: maý: be iecórded in the County ReCorder's Dfiiœ:" , respect t';'the .4.~!'Pi!:ient'fé'"~iIt[~ay bèt!., ,This n..tico: is designed to p1"tiYide. ..caJilÍtrui:Õt:ive ,.: . =tinuSd ~iìøÿ~I':-~,,;:-:..':..i~~aìhütl¡,¡,¡; Dr notice to ø,y SUcce&Bð%S in int.éi'eSt.:tbat'Jlõnc:õn.. altamticmJ< t.ti sUCh.building will not inae8se its . farming right¡; as tD the waperty or &'trUctures CÌO:gn.e of »';"'m;:,"'rimtÿ ...." iõíIt ëœm.rm'u:, m;,. ~ ezistedat the be· of th'; recørdatiÍni åf DOUce. : . r~ With thè aeftlapment ~tiam:' of the NDi:hiDg in this nal:ico: shall permit the ocmtinua. . . . =e 'in. wmen tJ:ië:building is IDCåtecl; aœpt as tion øf a ~ Use or sI:rW:t:c%e that was ( . ~J=viòedby..ané"~'.'_"_.. :':'''.' subseque:at1Y=J>õIDÀed,enlazged,abBndanedDr "- ..' ;:Az1.y i!;D"""";"Ua:üœ of" :Dm1tanfl:irminguse fardes!:n>yed which utinguishes the previous DOD' .. aamtinuousieriodoftw..:vNn:shallbed..........·. ~~ ·'e";e'h~ _ '._h.,'."," '.., ,-' . ::0 canstito.te ~h.~';¡"Jm1~'DflUtynÌlncanfarmi!l::. :.If" sUbsequent investigation reveaJ¡ that ;. (0&0S7D)'- . . J. £-/ f ¡g/ , MC 10.21 - - ,_._------~~..,-~-------- - - -~-_.,-.- . ,-...,-...---.-.-,.,. _..'--'~"- - "-- - - - - - -- 3' SANDIEGO.MDNICIPALCODE -:'HDL0502 ""''''~', "::: 'f' ,tr;::.....;..¡~_T ';',1..: '.., ". ',-'; ,,§,: 10L0501 ..Board ofZ.nnŸngAppeà.1s~"",' .~ ':""r>"~ .z",·ÐIVISION 5:,~'" . '~., .<. " .!--'CP.EÞ.TION OFMEMBEP..sE:I?" ''7(: ;.,,,-,::; { Varian..-es;CønditiOrml Use Pe:rmi~. T.h""" ¡~ hereby ~e2t;'d .. Bo",.:: c: Zcnb¡; , '. ....d Special Perimts c. . Appeals whid> sball =Z cr.£;"" =:.e:-s =cl .. 1"Zc,n.e ..1:trian:e'l=arp. '1-22-52 by Gc5046 N.Sj; desigz:.ated alternate, whe sh~ se:-ve .,..jthcut c.men.rid 1~Z7-53 by 0-5891 N.S,; rrtiiJd -z.a,.. =po=atíon. The m=henïu:it al~'te shall '. ,c..,.:;:c ''-', . :.li: ¡oi"lJ .-,~·¡i ,::,:,"',' :,.'. b" appajnted by the Mqor Bhd canf::..-meii by th" ~,1-:1~6 by 0::6834 N.S.; repeakd Ccnmcil The m~ IÙ1ali se:r:?" two Y~t.e::ms . q :.''''': oZ-4-71 by.O:l0494N.sJ.: ", anè.eè~erllhs1J &e!'Vetinti1:b:ib "W:œssorï.£ (F-h~7....1 -y¡.,jance,.Ctmditionø1 Ua PenrUi and duJyappllÎ%1teii and quslmed.The member. shrill ,<Rer:o=tTuctirm hrmiz Pracedw-es;' 2-4-71 Ø;y ,be appirinted in such .. mam:uz that the tezms of D-1D494N.S.; retitled "Vœicnœs, Cø,uiizü",::l nntmme than three znemhen; iihalJ e:t:pire in =y , 0 .' ': US" year. Tile e%piratùm date shall be Jw1arci¡ 1. During Perm.itt; czn¿ Spec:ùJ. Permits" ~3 by 0-15987 March of eaclt year the Mayor s.baIl de:si¡;nete Dne N.BJ memœr /IS chairm!:::.; 1wwevt:r, ÍD the aÌ7senCf: Df sw:Ìl .!"";I7'"tiDn, the B=d s.baIl cœ Dr aft.::- Ap:i1 . ' 15se1e::::framamm:.giu;memÌ>en;..cbai.~ The § 101.0500 .~.S;ervices Direc- alte:rnate shall serve Dnly in the event Df an tor PermitI\._.....o " ' , ahseœeofllBoard...-hoorllZlc1mayn..:bedesig. , . ~ ~elD:Pm.ent Seme';¡rih-ëet.or may nated or selec:ted a5 eÎ1IIÏl'maÌl. In the event Df a ' ~e Dr'åeny,:i:ñ ~ with "PiDéëss ¡m;," 71"";I7'~t:õ.... of a ............... the alternate sb.all serve the'~~:~::: ,':' " . until.aæwmemberiuppainted by the MaYor. ' A. 12:åë:IceafEstBt¡;,œkePenmts ,': . RJa.ta!¡:L:ll'lGS ' A had: ,Real Estmoe,'Offiëe 'Permit may be TheBoanI s1WlmeéreguJarly onœ z-mmith or ~ m- tIact real estate afiices, mode¡ bames as often as ;D~""'="ry fttr the transaQon of bu&i. andSÏgDaÍD ..........D....on thennrith. Thepermitmay ness. It shall es!:a;'1;." its own rule¡; and proce- '. ~!:..~~tO.~oœe (l),~' b~~--·"""Yor"""veniE!Zltfœ:.theaœductDfjts . - ts.. 't'tc:01?11øcl: -~. , Be o;tmetiþ~ f'W"'ij:. may Ì>\; ~ed to Three members of the RoaM ofZœingAppeal¡; ,'- sIlow for1:hé iioéølistrv.etim.. af å nDn~;"" shall constitute a quamm. The affirmative vote of t ,baù~tothe~~~==in nnt1essthBnthnoe.........""'rishaIlbe..-~"Yfttr -- '~thé"èvém';Ì1àt· .., ft or muàd:ionbytheBoani ':"'.'''''' .' " :.. ·~w~u~cJ Þý''ñ.;;; ';"..1iøiia%i;·act Df Gcid or âi:t Í>f a . c..t'UwaAND DVTJES ..::;-, ,..' > .., ~; ~D~t Semœ¡; Directar '. The Boarù af Zaning Appeals shall hear e.nd . '~",,--...,- "t:zthefa"- d-'--=-- ~~1.'"-- ,.·L _1;_"- d ., d maya.µJIG......~a..~w.~u:~ .I,¡. IJ.lUW- ~a!,"~~ioQe~~ eQS10nsan in¡!i'm";.."" can be made: d..t....~ons of the -searing Dfiicer", as shown " .1. TheìnWñu,""~UDnCDllfonnitywas nDttbe onD>agrmn2 ofCha:pterXL,' .... ". . . '~Of~ Bction, tûëñ by~~,,(~ øwner, ' CAmeAded. n-23-92 '" ~178fi8 N.S.):<:;< . ':., afærthe':ø . 'atian to w' . e ;1';;.,,,, . . . ,,' '..'.. . ....: 0:. ".:' '. '. .!_.n":n~ ~''''-''., ,. - ,§ ·lOLC5lJ2,..Vari....~ ,.c·",. ,:. 2, The Ú"Ï!~ ôfthii êtioJÍ'Pèrmit· ...._APPLICATlON, .'CO ':."T:'¿ ~'" .'~..' "'" 0;.;'.;; wíÌl not:permit the recDDBtruetion af II ~¡; ~:iAJ:> application far II vS:riaDœ shsI1 b.·filed in . ,. the~~~J':' w~'~ !~."or.. ·accardanr:e'witb:~:Ill.m!02. ~ "'pjili~"':.''UI · :IDa ~I'or ~unøw; tDthe ......n.. . shidhtate folly the crn::mnstanœs and eonditi.D:!1S ........nod ar w_1f'_....· ',' U!:,,..,~,,,.,., ·relied npon as grounàa for the' š.pPlleatiDri 'and .', I·3.'T.äe· .' -'···.m-ãoëånatèz'œèatbé1ezžs._ shaIlbe~pan;eclbyadeqãat.eplans(incl11ding. in:~';".....~.. m'Ly. .', ~"",".j, ,~.. 1.....!""'JIing plans) and a legal desCription Drthe L;., ·I~ oJ-¿Al.~ UaDstrw:tian.Permits ·!u....~LJ' ÏIr9D1ved.. :I.~": i '~.7..ç ....~ ~!: ..~:: _ . . -..-..l'...... ._~~~...~,-':.'" ... ..,ya_' ...." . ~;.: Atèmpon.iy.ëonstrùc:tlDn 'peruut may be ., I,. B. DECISION .DF.,THE DEVELOPMENT.SER-- . . ea- - ..,.,. _.Lo.O....:~:..., ' ...... .. 'f' VJCESDIRECTO"'" ".'" 'cr' ","""""" -a.t-JoMUY lnaDy&DDe.;¡u¡:w:u::ci::iDst:n'iäãano stør- '. A _ ::..'-,~ r: ..::"~..l· .i.'·;"'1.,:,~...;rr::.,, age yards or tempcirary eañstruétió¡"prrijeet "!O; The DevelDpment Se:i-rices Direct:.f~:àY·. .. '(,à5cès..:Tlí. tiimpm'iÜy.'USes'may,b";' alløwéd for a appruge or deny, in a=ùanœ with "Pro'ëesš'I1iio", " periÓd ~ot to œeQd, mne "';'~th.: .i.,-e..Vc .,t¡.ði-a an appDtation fttr a ~""""-if sUch-apiiliCaJi~D1i is ,', D. S*'l-"'1h<i.. jo..t....ft. :Pmmits .; for ¡;.,,~ relief mtbe case af: .. ic ·Hi> ;S0'Ü;' .' , . · Á !':D....u;+.;A;;1:::%',:'.;::-;;.;i!!ma:ÿ bë-~~;,'~cJ. if '. :::& J..' M"':¡;f;~fi.o. of ........,;œ or.are..: ~~ . c the: ~ Seí-ViceŠ zm-tar Dzuù¡ t1ïàt the prDYiàed such madifica!ian dDé'oi·Di7t'i:%iieed twêíJty . prupDsal is ñt canfoñmmce with the'standard. set . J>.'1~(20'I.) afrecmired fn:jnt;side'orrur:ÿäids, ( , forth in the dDl:ument "¥Îtled -D....elopment nar ezœed ten p~t (1D'iD) irf ...".,.;,.,= 1..: CtrV- l~ . -' GIlideJinesfor Søb&n;te".ÃnteJiñu~~ãiioptéd by the :er&ge ~atiClZ1S; .,. :..:' :'."" , ...:;,; .:" ,c:·'·:r - City Council Resolution ·No.:R..::!6S861 on fil~ in . , :.2. Modiiic:ation of àistanœ or are.!. regu]z-tians · iõh~.~ ~_~ C¡'ty·~k.. ~~.I.ioJ.~, 7:_~, ,;..... Ear prupmy loca'ted in an a.re:a de:iignaLw by Lhc. /A""",a.¿,7,.2S-.94lo;y 0,., 18088 N.s.) , ", î City Ocnmcil as a "Neighbor-bDod lmpr-ovement "'\' ~ ;) '1"'19 . MC 10-121 Ú" .::..;;/;;-;: - '~'-- ~r~-......~-:-'~· ;:J.)_ - :"_::' :...::_ =-_ - - ~ . ATTACHMENT 3 . CfT'( OF SAN DIEGO DEC!SIDN OF THE DEVELDPMENï SERVICES DEPARTMENT DECISION-MAKER - CN! CASE NO.- lIIIJI!:ZA5: UNJU~ -." ......-- ~"~A$ II'£S7ZI02QIJ ON llSZœ~QF Ø&t.h<ur-.., ~.......~2JŒ~~œrn---."""~ s__arrJII'T.. - -' m -..- . - RECONSTRUCTION PERMIT -NO HEARING WHEREAS," APPLICANT -, in Cêse No,~CASE NO. -, sought ê Fc"-onstTuction Permit ~_REQUEST, LEGAL DESCRIPTION, LOCATION AND ZDNE-; and, ,. WHt:""REAS, the 'Decision-MaKer considered the plans and materials submitœd, s-æff report, and inspection of the subject property; and, , WHEREAS. the Decision-Maker found th~ DICTATION -; and. WH::~S. the building is non:::cnforming int5ô DICTATION-. The norv.::tmformicy.'WAS/WAS NOT - the result of any action by any owner after the application of-the zone which made the building nonconforming; and. WHEREAS, the approvetl reconstruction permit, with 1he conditions imposed, __ WILLIWILL NDT - I be materially detrimental or injurious to the neighborhood or public wetfare; NOW. THEREFORE, BE IT "::SOLVED. by the Hearing Officer of the City of San Diego, that in ligm of the To:_egoing, the Reconstruc:!ion Permit sought bY~PPL1CANT -, in Case No.I!j:ASE 1110.-. is herebfi~. APPROVE:D, DE JED-. .ADD IF APPROVED - This approval is not a permit Dr license and any permits am:! licenses required by law must be obtained from the proper departmen.t. Fur-J1ermore, if any condition of this gran! is violated, or if the same be not complied with in every respet::t, then this permit shaJI be subject to revocation; . following a noticed public hearing per Municipal Code Section 101.0220. 15. '-I ~ cÞV - -- --._.._..._--.~_._--~._~-_. c:' ',,::,:::/,:-:: -,-.-- . ~--,.:.....-,:_.,_. ::;>./- - :._::: :;::::- -- - -. - ~ - - 2 - =-::;'.oS::' ~- · 7hat the appíi::ar¡t shall comply with all Uniform Building Code re:Juiremerr!5 and shall secure all nBcessary permits. To secure all ne::es.sary permits. 'the appii::ant is :'l:Jtified that su~stantial modifications 'to the building tD comply wli:r, appii::abie building, fire. mechanical and plumbing codes and State laws reouiring a6ces5 tor óisabled persons may be required. T;,e permissi:J;'1 granted by this Re::onstruc:tion Permit shall become effective and fi:öal on '!:he sixï:eenth (, 6th) worldng day. unless a wrinen appeal is tiled on offi::ial torm and ac::ompanied by required fee within frfteen ¡, 51 working days; said appeal to be filed in with the Development Services Deparunent, Third Floor, Development .. -_ -Seryices Center, J 2?2 Rm Avenue. ~n appeal}rom 1he deci,sian of the Decision- " W.aker may be 1Dl:.en ,to a hearing officer by a concerned person. ~ADD IF DENIED - This DENIAL shall become effective and final cm the SÍXtBenth 116th) wæ-Ic.ing day after a decision is made. unless a written appeal is me:; on officíaJ form and accompanied by required fee within fifteen (, 51 working ciays; said appeal to be filed with Development Services Departme:1t, Third Fioor, Developme:u Sarvit:es Cemer, 1222 Fim Avenue. An appeal trom any decision Df th!¡ Decision-Maker may be u!:.en 1:0 'the a hearing officer by a concerned person. · DEVELDPMENT SERVICES DEPA.RTMENT Decision Date: 1Iitrii- ~~::> DECISIDN-MAK::R - 7-___'. . ~TITLE - « DECISION-MAKER'S:INVESTIGA TOR'S:1'YPIST'5 INITIALS- FM23 - DDCJ.D. - j TniJ; infuœa!Í:Jn will be made I!ViÚlable in alternative formats upon request. .- ¡P54J5HELl..6919 - . \.; \..:, . ,~ .', ., ~,- , , t .: .. ~: . \l~ \ .,':' .... , · II . , " J-Lj---cÀ/ .\ - ...... \.,... , \.q" ~'or ~ Jr-/OI.'-4""'¡-' . I! Ill. . .,1 "( 177.-!.f7 LO .., .. ?2CORDNG ìGQUÓ1'::'Ù BY: 1.364 ( 16-AUG-1994 r·Q - ':'4 ; ..);...;-L ( ~::-EJ A~ F::=OF:~~: ( 5H~ D;:::~ :D~f~:Y t::::Q~:fj~;~: G~~I=: ( , ÛF~\jG?7· 5f1ITH! CDU~Y F::=D~:~:f: " J..,: 1::.K R3CO?~ING R1:l1JRN TO: ( ': RF: 7. 00 :-:::.. " La M!$a CommU1Úty D~elopm~t Dept ( (1..; A[' S.OO " Gty of La M!$a rF' 1. 00 ( ~ . 8130 A.llisOIl A v~ue ( La Mesa, CaliÍOrIÛa 91941 ( FOR RECORDER'S USE ONLY CERTIFlC./!.TE OF NONCONFORMING USE 7.2:1:;, 7b7,7285, & 72B7lJNIVER::,'TIY AVÐ\.TUE (P..PN 474-181-13 through 19) W.dEREAS, Section 24.02130 of the La Mesa ZoIring Ordirumœ makes provisions for the issuanœ of a Certificate of Nonconfomring Use where it can be deteID:Üned that such use or structurè shaD not constitute.. hazard to public, healfh, ami safety; and, Vv.I-I "~.6£, the Owner, Schaefer Ambulance Service, Inc., of property located at 72;,5-87 UIlÎVersÏ1y Av=e, La Mesa, ami further described as: l.ots 3,4,5, 6,7, 8,9, and 10 m Block 1, VISTA LA MESA VILL.6£, accorcling to Map thereof No. 2440, filed m the Office of the County R..øcorder of San Diego Còumy December 4, 1947, i has requesred mat a Certificate of NoncomoIJIÜng Use he issued for fuis property; and, WHERE.'>5, the abave d!$c:ribed property contains an ambulanœ service busmess, v.'Ìûch has been determined to be nonconfoIJIÜng wifu the regulations for the C-F-D (~Cmmnercii!-Floodway-Design Review Overlay) zone m which the property is located; and,. "WHEREAS, the ambulance serviœ busmess is located within 5 separate siJ:uctures on the propeliy which amtain offices, sleeping quarters for crews, and vehicle maintenanœ areas; and, WHERE..6£, Section 24.02130 C (4) of the La Mesa ZoI1Îng Orcünance does permit new uses ami stmctures to be established on :a builcling site where a non-confonning use exists only wÌ1en a Certificate of NonconÍoIJIÜng Use fuIs been issued for the site; and WHERE..6£, Section 24.02130 l(l)c. of the La Mesa Zoning OrãIDance does state that a Certificate of NonconÍoIIIÜng Use may be reviewed from time to time in ?-- a=rdance wÎfu the procedures established in tlús section and may be revoked if /-<. ~ ". ?- determined, after the reqWred hearings, that such nonconfoID:Üng use or siJ:ucture is not ). , in complianœ with any conàitions established in a Ce..-tiñcate of NonconÍoID:Üng Use or mat said nonconÍoIJIÜng conàition constitut!$ an existing or potential hazard to public hæ1fh. safEtvand welfa:re:a1'ld .. ~ r· - , JjCJJ W}"2~P.s, Secti:m 24.130 1.1. p~n:njts the Comrrn.mity Devej:)?:nent Di:-=:t:)~ t8 :;5:1= a ceo/. ~:zt~ of }\jO:ì.:::J:--Jo:ming üse ii it is dete!'InÎ..íed 'that sai::: =-l:):ì:OniQ:-r:-:':'-~g :5=: :): s't;uctuT= is otÌle:-\\'"i.s= in compliance ~it.~ me pro"\ñ..sioIlS of ~::i:J:r 24_02.2.3:) :J; :T!=: Z:ming OråIr..anœ, and that said nDnconÍDrIIÙng use or structure does nDt cDns:itute a si.gnificant h.azard tD public health, safety and welfare. Such Certiñcates shall state all re:ms or conditiDns by w1úch such use or structure does not constitute a signif:i:ant r=d tD h~ safety and welfare;- and, WH:E:R=:AS, a det=únation tD issue a Certificate Df NonconÍDrIIÙng Use must ~ :ü.ade after tœ Community Development Director has høld th~ ad1rÜï.istrative hea..-ing .and noti£eB ~ ~!'~_::~ ~ \~ D-wnez- ~i such hearing; a...T"ld, . . - . WHERE....65, the CDmmunity DevelDpment Director àid properly nDtify the property ow:œr of the subj!rl pr0p"'..rty aDd hold an aCÙIÚIlistrafure hea..-ing in accoràance -.---- wifh Section 24.02130 11-, to define the nature_ ot the noncDnfomúng use and tD d~e~such 115e constitutes a significant hazard to the 'health, safety, and welfare of La Mesa as required in detemúning whether said nonconfDmúng use should ~ continued, altered, confinued -with corulliions or terminated. THE COMMUNITY DEVELOPMENT DIRECTOR FINDS A1\,¡i) DETERMINES: 1- T!1at the ambu1ance service business located at 7255-87 University Avenue ~ a legal, nonconfoIming 115e in the C-F-D (General Commercia1-FlDDdway Ove:day- Design Revi...aw Over1ay) zone, which does not permit such a use. 2 T!1at the p~ in question is appro>åmately 0.69 acres. , 3. TI-.at the ambulance service business has bæn continually operated on tL'le site since prio; to 1977 when the property was annexed into the Gty. 4. 'That said nonconforming use does not constitute a signiñcant hazard or :nuisance to public health, safety or welfare as it currently exists. NOW, tiiT'.;.ŒFORE, BE IT FùRIHER RESOLVED BY THE COMMIJNITY DEVELOPMENT DIRECIOR 1N ACCORDANCE WITH SECTION 24..02130 OF THE B. MESA WNJNG ORDINANCE AS FOlLOWS: 1. The foregoing findings of fact and determinations are true and herø..by :rnade a part mereof. 2 The nonconforming ambulance service business may continue to be operated at 7.2.:J5-87 UIÚversity A venue subject to the following conditions: a.. Any additional uses o=pying any of the structures on the prop"...rty /. must ~ a permitted use in the C zone. (j' .11~J.'3· The ambulance service use may occupy any or all of the existing D. buildings on the site. Any expansion of the building areas on the lot,will=ill:e,.an...addifumal r~of~.cf>:cti.fu-&e 7 ~ " 'r " . '.' U D , Tn" ambulan"'e s":,yj"',,:lS" shaD ~ :D.,,-jd,,-,,~ -":-.:rlii'a-"~ -:ì~ TI:J- - - .... -" :..._ _, _ .L:'::' _J _... ._.. I L_.... G:... .... .: . , DO a1J:n,¡\""d to can:i.-¡:J¡:;' if tho u.s¡:;. ;:: -t:>! in .....o-.'O":--':)"lC Q-'P-~-:""- '::J- -.... - _ _ _ J. .... ...~.... __ : __G..J,J.... ~ a pe:i:d of 180 CD"-St:::.1DVt: days :), mDre. ... lne propmy must be well maintamed at all times h.cluàing, but not ::J. limited to, all structures, the parking areas and landscaped areas. , 4- If any structures are destrDyed or damaged so as to require recDns::-uction IT! confo=an::e with this Certificate, builàIDg permits fDr such re::cmst:ructioD sr..aJJ be sllimùtted to the Oty V(':itìûn ninety days of said damage. :J. 1n accordance with Section 24.02.13Dl(1)c., this Ce.-iliicate and any conà:itions attached to its approval :is subject to review and recor.s:ideration ITom time to time by the Oty. - - - - 6. ' This Certificate of Nonconfomring Use sf.aJ1 become effective after ba..ing ñled with the San Diego County Recorder and returned to the La Mesa Community D=velopm=d Department. iU'PROVED BY: ~. . ~ /Pi4 I. Devel 1)jr . \.-ommuruty _ opment ecror ¡ 7k.-/fr Dåte / e:\cp \doc\cnu94-02 .2 t-( ,. 1- i (f ~ ~ _. .d.__ COUNCIL AGENDA STATEMENT Item: ~ Meeting Date: 10/06/98 ITEM TITLE: Public Hearing: PCM-95-01A - Amendment to the Otay Ranch SPA I Public Facilities Finance Plan for Village One and Village Five Resolution: J?)'(/ I of the City Council of the City of Chula Vista Approving an Amendment to the Otay Ranch Specific Planning Area I Plan Public Facilities Finance Plan to Reflect Changes in Phasing for Village One and Village Five SUBMITTED BY, D;=W of P",,"o, ~d ~ REYIEWED BY, COy M_:;œ ~ ~ (4/"'" Yo,,, Y~_N.XJ On May 14, 1996 the Otay Ranch Public Facllties Finance Plan (PFFP) was adopted by Council along with the SPA One Plan, among other documents required for implementation of the Otay Ranch General Development Plan. Subsequent to the approval of the SPA Plan and PFFP, and the SPA One Plan tentative map, PCS-94-06 was approved. As a condition of approval of the tentative map, Condition No. 126 required that the PFFP be revised "where necessary to reflect the revised phasing plan. " Changes to the phasing in ownership have prompted the current amendment to the PFFP. The revised Otay Ranch PFFP is attached to this report. The Environmental Review Coordinator has determined that the proposed Otay Ranch Public Facilities Finance Plan amendment is consistent with the previously approved PFFP, which received adequate prior review under EIR-96-04 and EIR-97-02. RECOMMENDATION: That Council adopt Resolution No. _approving the amendments to the Otay Ranch Public Facilities Finance Plan for Village One and Village Five. BOARDS/COMMISSIONS RECOMMENDATION: On September 23, 1998, the Planning Commission voted 6 to 0 recommending that the City Council adopt City Council Resolution No. _ approving the amendments to the Otay Ranch SPA I Public Facilities Finance Plan for Village One and Village Five DISCUSSION: Reasons for Amendment The original PFFP adopted on May 14, 1996 was based on the phasing of the SPA One Plan for Villages One and Five. This phasing was done to determine when additional or upgraded facilities would be needed to meet or maintain compliance with the City's Quality of Life Threshold Standards. It was known at the time of the approval of the tentative maps that the PFFP would H :\HOME\PLANNING\MARTIN\PFFP\9501A.113 .2S- - / -, ----,-_._-"."--_.. Page 2, Item: Meeting Date: 10/06/98 eventually need updating prior to approval of the fIrst final map, but what was not known was the extent of the changes. The PFFP has been revised to reflect the tentative map dwelling unit numbers. In addition, because of changes to ownership, some of the phase boundaries had to be changed. This resulted in the movement of dwelling unit fIgures from one phase to another, however, the total number of dwelling units has decreased since the original PFFP was adopted, based on the approved tentative maps. A number of tables and charts have been revised to reflect approved tentative map fIgures changes in ownership in the phases. Changes in Phasing Scheme Since the original PFFP was adopted in 1996 and during the processing of the tentative map, ownership of certain areas changed, thus changing the boundaries of some of the phases. In order to simplity the phasing and the reader's ability to follow the various tables and charts in case of phasing changes, the phase numbers have been changed to colors. Please refer to the two attached maps. The fIrst one, "Figure 2" in the lower right corner, shows the original phase numbers (Attachment 2). The second one, "Phasing Exhibit" in the lower right corner, shows the new phase colors (Attachment 3). The McMillin Company owns the property in the Gray and Orange Phases, while the Otay Ranch Company owns the remainder. The following table converts the numbers to colors and colors to numbers: Old Phase No, of New Phase Number Dwellings Color IA 260 Pink 1B 653 Green 2A 632 Yellow (pt), Gray (pt) 2B 573 Blue 3 493 Gray (pt), Orange (pt) 4 525 Brown (pt), Orange (pt) 5 320 Red (pt) 6 1,173 Gray (pt), Orange (pt), Red (pt) 7 1.129 Purple Total DU's 5,758 New Phase No. of Old Phase Color Dwellings Number Blue 568 2B Brown 309 4 (pt) Gray 1,010 2A(pt), 3(pt), 4(pt), 6(pt) Green 639 IB Orange 474 3(pt), 4(pt), 6(pt) Continued.. . . H :\HOME\PLANNING\MARTIN\PFFP\9501 A.l13 ).S:--2 Page 3, Item: Meeting Date: 10/06/98 New Phase No. of Old Phase Color. cont. Dwellinl!s. cont. Number. cont. Pink 236 IA Purple 1,100 7 Red 301 5(pt), 6(pt) Yellow ~ 2A Total DU's 5,198 Total dwelling units in NUMBERED phasing: 5,758 Total dwelling units in COLORED phasing: 5,198 Based on the above figures, there are no changes in the trigger points specified in the tentative maps, yet the PFFP remains in compliance with the GMOC threshold standards. Attachment 4 is the Improvement Phasing Schedule which was required as a condition of approval in Tentative Maps 96-04, 97-02 and 98-04. In addition it will be a term of the Supplemental Subdivision Improvement Agreement for all final maps and will be incorporated into the PFFP. The Improvement Phasing Schedule was required due to Applicant's inability to secure public improvements at the final "A" Map. It ensures that public facilities and infrastructure are constructed in a balanced manner based on equivalent dwelling units (EDUs). Traffic The total major street costs for SPA One has been amended to include the current costs estimates from the Olympic Parkway Assessment District. The total cost for Olympic Parkway between Paseo Ranchero and Brandywine has been assigned to SPA One, although the improvements exceed SPA One's fair share of the infrastructure requirements. The remaining balance of the cost of Olympic Parkway that exceeds SPA One's share will be financed through the Olympic Parkway Assessment District, which will include Villages Two, Six and Eleven, or other funding alternatives listed on page 51 of the amended PFFP. No changes in the phasing have affected traffic and the plan remains in compliance with threshold standards. Libraries The current draft of the PFFP in Chapter 3.6 - Libraries, references the ratio of "500 square feet (gross) of library adequately equipped and staffed facility per 1,000 population". It should be noted, however, that the City-wide goal is to provide 600 square feet per I ,000 population as listed in the Growth Management Program, Section 3.6.4, page 3-46. The 500 square foot figure is considered a minimum, whereas the 600 square foot figure is considered the appropriate standard. H:\HOME\PLANNING\MARTIN\PFFP\9501A.113 .2~J Page 4, Item: Meeting Date: 10/06/98 As mentioned earlier in this report, the current amendment addresses the change in ownership and the reduction in the number of dwellings. However, a more comprehensive amendment wi 11 take place in about one month that will address the whole of SPA One and, in addition, SPA One West, which is not included in the current version. The particulars of SPA One's and SPA One West's library obligation will be addressed in detail at that time in the amendment to the PFFP. This will be done around the same time as Council's consideration of the Library Master Plan. Conclusion Staff has concluded that because the actual number of dwelling units have been reduced due to th e processing of tentative maps, the amended PFFP with the colored phasing scheme adequately addresses the financing of public facilities, and public facilities will be adequate to serve the developments as proposed in this amendment. FISCAL IMPACT: Pursuant to the development agreements between the City and the Otay Ranch Company and McMillin, all staff costs associated with this amendment are covered. Attachments I. Otay Ranch SPA I PFFP 2. Figure 2 of the originally approved PFFP showing the numbered phasing plan 3, Phasing Ex1úbit of the amended PFFP showing the colored phasing plan 4. Improvement Phasing Schedule H :\HOME\PLANNING\MARTIN\PFFP\9501A.113 :25"/ r RESOLUTION NO. /'Jc20 ( RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AN AMENDMENT TO THE OTAY RANCH SPECIFIC PLANNING AREA I PLAN PUBLIC FACILITIES FINANCE PLAN TO REFLECT CHANGES IN PHASING FOR VILLAGE ONE AND VILLAGE FIVE WHEREAS, the Otay Ranch General Development Plan was alP roved on October 28, 1998, and the Otay Ranch Specific Panning Area One Plan and Public Facilitles Finance Plan were approved on June 4, 1996; and WHEREAS, the pro~erty which is the subject matter of this resolution is dlagrammatically represented in Exhibit A attached hereto and lncorporated herein by this reference, and commonly known as Village One and Village Five of the Otay Ranch Specific Planning Area I Plan; and WHEREAS, the Otay Ranch Specific Planninå Area I Plan Public Facilities Finance Plan has been amen ed ("Amended PFFP") to reflect the revised phasing plan and the change in ownership; and WHEREAS, the Environmental Review Coordinator has determined that the Amended PFFP falls under the purview of EIR-95-01; and WHEREAS, the Planning Commission held an advertised public hearing on the Project on September 23, 1998 and voted 6-0 to approve Planning Commission Resolution No. PCM-95-01A recommending to the City Council approval of the Amended PFFP; and WHEREAS, the City Council set the time and ~lace for a hearing on the Amended PFFP and notice of said earing, together with its pur1ose, was given by its publication in a newspaper of genera circulatl0n in the city and its mailing to property owners within 500 feet of the exterior boundaries of the property at least 10 days prior to the hearing; and WHEREAS, the hearin£ was held at the time and place as advertised, namely Octo er 6, 1998 at 4:00 p.m, in the Council Chambers, 276 Fourth Avenue, before the City Council and said hearing was thereafter closed, PLANNING COMMISSION RECORD The proceedinîs and all evidence on the Amended PFFP introduced be ore the Planning commission at their public hearing on this matter held on September 23, 1998 and the minutes and resolution resulting therefrom, are hereby incorporated into the record of this proceeding. NOW, THEREFORE, BE IT RESOLVED THAT THE CITY COUNCIL hereby a1proves the Amended PFFP, on file in the office of the City C erk as D9cument No. , as based on the following findings and all other evidence and testimony presented with respect to the proposed changes, and subject to the following 1 ~ c2S--- ø findings. FINDINGS The Amended PFFP is consistent with the General Plan and the General Development Plan for the following reasons: 1. The Amended PFFP reflects the changes in phasin¥ caused by changes in ownershi~ of various ~ortions of ViI aðe One and Village Five and up ates the est~mated number of welling units and resulting impacts. 2. The Amended PFFP will promote the orderly seguentialized development of Village One and Village F~ve ~n that more accurate information has resulted from the processing of tentative maps that are more exact in the number of dwelling units, 3. The Amended PFFP will not adverselr affect adjacent land uses, residential enjo~ent, circu ation or environmental quality in that update dwelling unit fi~ures allow for more exact calculations related to traff~c, ~ark requirements, police, fire and emergency med~cal services, schools, libraries, parks, trails and open space, water ~equirements, sewer capacity, and drainage, among other ~ssues. Presented by Approved as to form by Robert Leiter Ú-~~~ John M. Kaheny Director of Planning and Building city Attorney H:\home\lorraine\rS\9501CC·WP 2 ..2~'- ? --- ._------ -ª N ~ ... II ~ ~ DO " .= 0) ill ' · . 6 ' """ J Z e · ~ W W "' ~ I/) I/) .. .. o , z ~ ~ ¡¿ - ~ I~" L..I ~' ¡ . , I ! '¡ '" " ~ ' 5 " ~ ~ o « ' ~ : c ~l~'\ 0 ~ .. ,. 0 '" \ a: !!i , 5 ~ z .. 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I!! u 0 u u u !! ., ., ., ., " " " ., ~J2~~'~~~; iii Ü a. 0 0 0 ~ 1ñ 1ñ 1ñ '" '" ê ê ê " .. ¡ .æ ~ æ ~ ' " ~ " i!: " i!: " " " 0 0 '" '" '¡;' '¡;' '¡;' .¡;' '¡;' go '¡;' '¡;' '¡;' '¡;' " 0 ;: 1ñ E .s " " 8- ~ '" .'I::.s!' e ~ 'ê' .. '" a¡ a¡ a¡ !! !! 8' 8' 8' 8' 8' ~ 8' 8' 8' 8' -!! -!! -!! )( .. .. .. .. .. ~ Ld~L~~,f w a. w a. a. a. a. a. a. a. u: l- f- a. a. a. a. a. a. a. a. a. " " " 0 :2S- /' jt? RESOLUTION NO. PCM-95-01A RESOLUTION OF TIIE CITY OF CHULA VISTA PLANNING COMMISSION RECOMMENDING THAT THE CITY COUNCIL APPROVE AN AMENDMENT TO THE OTAY RANCH SPECIFIC PLA.NNING AREA I PLAN PUBLIC - FACILITIES FINANCE PLAN TO REFLECT CHANGES IN PHASING FOR VILLAGE ONE AND VILLAGE FIVE WHEREAS, Condition of Approval No. 126 of Tentative Subdivision Map requires the updating of the Otay Ranch Specific Planning Area I Plan Public Facilities Finance Plan (PFFP) "where necessary to reflect the revised phasing plan"; and WHEREAS, the phasing of Village One and Village Five has changed due to changes in ownership since the adoption of the original PFFP in 1996; and WHEREAS, the Environmental Review Coordinator has determined that the amendments to the PFFP fall under the purview of EIR-95-01, as amended; and WHEREAS, the Planning Commission set the time and place for a hearing on said amendment to the PFFP and notice of said hearing, together with its purpose, was given by its publication in a newspaper of general circulation in the city and its mailing to property owners witlrin 500 feet of the exterior boundaries of Village One and Village Five at least ten days prior to the hearing; and WHEREAS, the hearing was held at the time and place as advertised, namely 7:00 p.m. September 23, 1998, in the Council Chambers, 276 Fourth Avenue, before the Planning Commission and said hearing was thereafter closed. NOW, THEREFORE, BE IT RESOLVED THAT, from the facts presented to the Planning Commission, the Commission has determined that the approval of the amendment to th e PFFP is consistent with the City of Chula Vista General Plan, the Otay Ranch General Development Plan and all other applicable Plans, and that the public necessity, convenience, general welfare and good planning practice support the approval. BE IT FURTHER RESOLVED THAT THE PLANNING COMMISSION recommends that the City Council adopt a resolution approving the amendment to the PFFP in accordance with the findings contained in the attached City Council Resolution No. ~ And that a copy of this resolution be transmitted to the owners of the property and the City Council. H:\HDME\PLANNING\MARTIN\PFFP\9501 PC,RES ;2Ç-// __ _. ~._n ________.._.,'____ ......--- " . "" - _..~-_._-_.__.- --_._--~--_...._-~--~.__.--~-~----_._._",.. Resolution No. PCM-95-01 A Page No.2 PASSED AND APPROVED BY THE PLANNING COMMISSION OF CHULA VISTA, CALIFORNIA, this 23rd day of September 1998 by the following vote, to-wit: :;. - AYES: NOES: ABSENT: ABSTENTIONS: Patty Davis, Chair ATTEST: Diana Vargas, Secretary H:\HOME\PLANNING\MARTIN\PFFP\950 1 PC.RES c2Ý/:2- \ ) .... .~ . --.,--.---.-----'.- COUNCIL AGENDA STATEMENT Item: ,),t; Meeting Date: 10/6/98 ITEM TITLE: Resolution / 9;J., (/ ipproving an Agreement Between the City of Chula Vista and Jackson & Ryan Architects for Architectural and Project Management Services for the Animal Shelter Project and Appropriating $103,306 from Development Impact Fees (DIF) for Architectural and Project Management Services. SUBMITTED BY: Cru.f OfPo,..{-- ~ REVIEWED BY: City Manager ~ ~ .--:? (4/5ths Vote: YesL No--> On July 15, 1997, City Council approved the construction of a new Animal Shelter and appropriated funds for the design and construction documents required to build the facility. Subsequently, property in the Southwest Redevelopment Area at 4th and Beyer was purchased. In March 1998, the Department issued a Request for Proposal (RFP) to solicit qualified architectural firms to provide architectural and project management services for the Animal Shelter project. Ten proposals were received. Staff is recommending the award of the contract to Jackson & Ryan Architects, that staff determined to be the most qualified responsible bidder. This report discusses the consultant selection process and the scope of work for the construction of the Animal Shelter. RECOMMENDA nON: That the Council approve the Resolution and authorize the Mayor to execute said agreement with Jackson & Ryan Architects for architectural and project management services for the Animal Shelter project and appropriate $103,306 for said purpose. BOARDS/COMMISSIONS RECOMMENDATION: N/A DISCUSSION: Architect Selection Process The procedures, as outlined in City's Municipal Code for the selection of the consultant, were utilized by the Department to select the consultant for this project. The Request for Proposal (RFP) was sent to a City Project Bidders' List, advertised in the Star News, the TranscriDt, and the Dodge House publications. The Department received ten proposals to the RFP (List of respondents attachment A). A City Selection Committee was formed, comprised of representatives from the Public Works Engineering, Animal Control and the Police Department. The Committee evaluated and rated the proposals, and narrowed the proposals to the most qualified responsible bidders who best met the criteria in the RFP. Four firms were invited to make an oral presentation. The following are the results of the Selection Committee's analysis in rank order: J-t ---I \J Page ~ Item _ Meeting Date 10/6/98 Architect Score Fee Jackson & Rvan 2420 $150,000 Geon!e Mvers & Associates 2300 $179,000 Eric Davv 2225 $135,000 Austin DesÏ!m GroUD 1840 $160,000 The Selection Committee prepared rating sheets, and the four finalist were scored using the criteria listed below. Each criteria was weighted from 5 to 15 points. Each committee member was instructed to rate each firm on a scale from 1 to 5; (5 being the highest) in each category. Their rating number was then multiplied by the weighted points to achieve a score for each criteria. The total points for each of the 4 firms, listed below in the table, is a compilation of their final scores for each criteria (6 raters x each criteria score x weighted number = final score for each firm, maximum points possible 2850). The criteria the Selection Committee utilized was: L Related project experience 15 points weight 2. Firm's ability and capacity to perform the work 10 points weight 3. Methodology employed to ensure project success 10 points weight 4. Management approach for technical requirements 15 points weight 5. Contract expectations 10 points weight 6. Time schedule planned for this project 10 points weight 7. Firm's experience and methods used 10 points weight 8. Maintenance of building considerations 10 points weight 9. Quality of oral presentation 5 points weight At the conclusion of the process, Jackson & Ryan scored the highest points because of their experience in designing a large Society for The Prevention of Cruelty to Animals (SPCA) facility in Houston, their interpersonal skills noted in the interview process, their community-teamwork philosophy, and their knowledge of the proposed project. Although Eric Davy had the lowest proposed fee, his firm did not have prior experience in designing Animal Shelters, and he scored lower overall in the nine criteria areas listed above. Eric Davy was selected by Jackson and Ryan as a subcontractor for the project. Final selection of Jackson & Ryan occurred after staff negotiated a fee of $145,000 for services. The negotiated fee is $5000 less than originally proposed by Jackson & Ryan. 2? ---,2 .._-_._-------"----- Page ~ Item _ Meeting Date 10/6/98 The Animal Shelter Components In general, the Animal Shelter is envisioned to consist of approximately 14,500 square feet of buildings. The space will include administrative areas including private offices, conference or meeting rooms, restrooms, catteries, dog kennels, receiving areas, medical areas, kitchens, euthanasia areas including animal disposal areas, isolation and public areas. The facility will be a one story building, slab on grade, with masonry and wood framed walls and wood truss roof. The interior and exterior will be constructed with low-maintenance, heavy duty materials and be bright, and attractive to the public. The design concept will optimize energy efficiency, durability, promote the ease of maintenance, and meet all handicap access standards. Provisions for user safety and efficient work flow will be incorporated as an integral part of the facility design. Scope of Work: Phase I - Design Phase - will include: 1. Architectural The architectural services shall include the preparation of plans, renderings, ánd color boards for the entire facility. 2. Public Meetings The architectural services will include presentations to community groups, the Design Review Board, and the City Council. 3. Preliminarv Submittal Three preliminary sets of plans, specifications and cost estimates of completion shall be submitted to the City for plan checking. 4. Plans. Specifications. Cost Estimates The consultant will provide one complete set of original specifications and one original set of full size (24" x 36") photo, mylars. All plans and specifications shall be reviewed and approved by the City prior to acceptance. Detailed final cost estimates will be provided to the City for review and acceptance. If the lowest responsible construction bid is in excess of 110% of the Architect's estimate for the project, the Architect shall revise and modify the drawings and specifications to enable the City to obtain a bid within the budgeted amount. There will be no extra charge to the City for these revisions. 2t<J Page ---1- Item _ Meeting Date 10/6/98 In Phase II - Construction Phase - the consultant shall: L Assist in the analysis of bid results and provide recommendations on the award of construction contracts, 2, Staff the preconstruction conference. 3. Check detailed construction and shop drawings, if any, submitted by the contractor for compliance with construction documents, 4. Provide consultation and advice during construction. 5. Establish weekly job site meetings to observe the work in progress and provide appropriate reports to the City. 6. Prepare sketches and/or revisions and provide clarification as required to resolve unforeseen problems. 7, Make final inspection, report on the completed project, and prepare a punch list. 8. Note all approved change orders on the contract drawings and prepare final "as built" drawings for City's record. 9. Assist the City in the Project Closeout Punch List, Warranties, and Operation and Maintenance Manuals. The time schedule for the construction phase of the contract is estimated to be 26 weeks. The date for completion of all consultant services is December 1, 1999. The consultant will deliver the services in three components: (1) Program Schematic Design, (2) Design Development/Construction Documents; and (3) Bidding/Construction Administration. Summarv of Contract Terms and Conditions: The proposed professional services contract before you was prepared on standard American Institute of Architect (AIA) forms, which have been reviewed and modified by the City Attorney's office. The following is a summary of the basic contract terms. A full copy of the agreement is attached hereto as Attachments "B" and "C". L ScoDe of Work, The Architect is responsible for (a) overall program development, (b) detailed cost estimates (c) preliminary and fmal design of all buildings, shelters, landscaping, parking areas and related improvements, including oversight and coordination of all sub-consultants (d) presentations to community groups, the Design Review Committee and the City Council, (e) generation of construction drawings, (t) project construction oversight, and (g) generation of final "as-built" plans. 21,--tj Page ~ Item _ Meeting Date 10/6/98 2. Comoensation. For all services rendered the Architect will be paid the lump sum of $145,000. Payments will be made in accordance with the following schedule: Phase Percentage Fee Payment Schedule Schematic Design (4 weeks) 25% $36,250 100% complete Design Development (4 weeks) 20% 29,000 100% complete Construction Documents (8 weeks) 40% 58,000 50% and 100% Construction Administration 15% 21,750 Monthly at same % as (estimated 6-8 months) construction Total 100% $145,000 In addition, the Architect will be entitled to reimbursement for expenses, payable upon submittal of monthly invoices, in an amount not to exceed $14,500. 3. Schedule. Professional services shall be rendered in such a manner as to adhere to the agreed upon project development timetable. 4. Chane:es in Work. The Architect may be entitled to additional fees in the event of a material change in the project scope, budget, or schedule not caused by the Architect. Additional fees are subject to negotiation based upon Architect's hourly rates. If the City's lowest bona fide bid for the work exceeds the Architect's project cost estimate, the Architect is responsible, at its sole cost, for any redesign work necessary to reduce the project cost to the contract bid price. 5. General Provisions. The Agreement includes various other provisions which protect the City including, without limitation, Architect's obligation to provide appropriate general liability and errors and omissions insurance, indemnity provisions, City ownership of plans allowing their use for the completion of the Project in the event of Architect's default. Cost of the Consultant Based on negotiations with the Department's recommended consultant, and the negotiating guidelines outlined in the Municipal Code, staff negotiated a contract in the amount of$ 145,000 that includes all the components of the scope of work described above. 26 ,,/ Page ---º- Item _ Meeting Date 10/6/98 The negotiated price was deemed fair and reasonable based on the following: 1. The industry standard for large project design fees is 9-11 % of the total project cost that is equal to $136,890-167,310. The parties have negotiated a fee of $145,000, which is less than 10% of the project cost and within the normal industry standard. 2. The cost of a Project Manager was not included in the original estimates, Jackson & Ryan has agreed to provide these services throughout construction. 3. Jackson & Ryan have subcontracted with local architect Eric Davy. Davy is currently under contract with the City of Chula Vista for work on the Otay Recreation Center project. Davy has a good working knowledge of the City process and expectations, and staff feels this will help expedite the project. During the past twelve months Davy's Architectural Services has received $91,280 for the Otay Recreation Center project. FISCAL IMPACT: Staff recommends a 10% contingency of $14,500 for the project and a 10% allocation of $14,500 to pay for associated Reimbursable Expenses (travel, plan plotting, blueprint reproduction) for a total not to exceed $174,000 for Architectural and Project Management services, The cost of the contract for Architect and Project Management services is $145,000. A total of $70,694 is available in the Animal Shelter Project Capital Improvement budget (GG 158), to partially pay for these services. Staff recommends an additional appropriation of $103,306. The entire project is estimated to cost 3 million dollars. As of August 27, 1998, $689,131 has been spent on Land Acquisition and associated costs. Based upon the recommendation of Financial Advisors the city may issue tax exempt obligations to finance this project as outlined within Resolution Number 18905 (Attachment D.) Costs associated with this project may be reimbursed by proceeds from any long term financing. The Finance Director will be providing the City Council a specific financial plan prior to the construction phase of the project. Attachments A. List of Respondents B. Contract Agreement ~ C. Contract Services D. Resolution Number 18905( 1l~ Animal Shcltcr Award comracl,wpd 2~~Þ RESOLUTION NO. /j.2tJJ. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AN AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND JACKSON & RYAN ARCHITECTS FOR ARCHITECTURAL AND PROJECT MANAGEMENT SERVICES FOR THE ANIMAL SHELTER PROJECT AND APPROPRIATING $103,306 FROM DEVELOPMENT IMPACT FEES (DIF) FOR ARCHITECTURAL AND PROJECT MANAGEMENT SERVICES WHEREAS, the City Council approved construction of a new Animal Shelter and appropriated funds for the design and construction of the facility, and; WHEREAS, Property in the Southwest Development Area of Chula Vista was purchased for the new Animal Shelter Facility, and; WHEREAS, the Police Department issued a Request for Proposal (RFP) to solicit qualified architectural firms to design and manage the construction of the new Animal Shelter, and; WHEREAS, a City Selection Committee determined that Jackson & Ryan Architects were the most qualified responsible bidder, and; WHEREAS, Jackson & Ryan Architects and the City of Chula Vista have negotiated a contract for architectural and project management services which is agreeable to both parties, and; WHEREAS, the costs for implementing the contract (fees plus contingencies and reimbursable expenses) are estimated to be $174,000, and; WHEREAS, only $70,694 remains in the Animal Shelter Capital Improvement budget (GG 158), and therefore it is necessary to appropriate additional funds to cover the costs of the contract. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does hereby (1) approve the agreement between the City of Chula Vista and Jackson & Ryan Architects for architectural and project management services for the new Animal Shelter facility in the form presented, with such minor modifications as may be required or approved by the City Attorney; (2) authorize the appropriation of $103,306 from Development Impact Fees (DIF) for said services. Presented by: Approved as to form by: Richard P. Emerson Chief of Police 2t--7 :2(- ATTACHMENT"A" List of Respondents to Animal Shelter RFP 1, Jackson & Ryan Architects, Houston. Texas 2. George Miers & Associates, Oakland, California 3. Eric Davy Architects. San Diego, CA 4. Austin Design Group, San Diego. CA 5, Dominy & Associate Architects, San Diego, CA ~ Ferris, Johnson & Perkins Architects. Inc.. San Diego. CA 0, 7. Ken Backes & Associates, La Jolla, CA 8 Keniston Architects, San Diego, CA 9. Munroe and Onsa Architects, San Diego. CA 10. SillmanlWyman Inc.. San Diego, CA I 2/:;-8 __._._._....__..__ _..M__.___·__'.'..M·.····__,,____··_·_.~_ 3¡'-)HQ THC 110 PM Jackson & Ryn F AX NO. 713 526 4241 , "'. ~ "" I) , ATTACHMENT B . Standard Form of Agreement Between Owner and Architect with Standard Form of Architect's Services AlA Document 6141 -1997 1997 Edition - Electronic Format Thi, doclJmem h:JS impol'lalU !~gol consequence" Consutt:nion with ao l1.(tomc:y is encouraged with (espect (0 its ~ompJC:rion Ot modification. AUTHE.NTlCAIJ.J~ Of THIS EJ..,ECTRONICALL Y DRAFTED AlA DOCCMENT MA Y BE MA.DE BY USING AJA DQCt.:MEt-:T D40L Copyright 19lì. 1926, 1948, 19$J, 1953, 1953, 1961, 1963, 1966, 1967, 1970. 1974, 1977, 1987, QI997 by The An1CrlC¡¡n Jmritute of A"h¡n:c~ Rc?roductjçn of the: 1'\1Qlcrial h,o.':rein or sub51nntial quotation of i[$ provisìon1 w\COOU( W1Ütt:n ptonission of the AlA vioJJrc:s the copyrigOt l~ws or the Vn¡(ed St¡¡Ic:S and wIll subject ¡he vio!l\tor to kpl ptoseculÌon TABLE OF ARTICLES///¡¿I)¡L, 1 1.1 iNITIAL INFORMATION ((if /ill 0·· ;;¿ '2 ""'0"""'''"'' 0> '"> ""'" I:JI/~ 1.3 TERMS AND CONDITIONS ¿ 1.4 SCOPE OF SERVICES AND OTHER SPECIAL TERMS AND CONDITIONS' 1.5 COMPENSATION AGREEMENT made as of the Seventh day of ~ In the year Nineteen HlJndr<d Ninetv.F,.hl (In k ordJ, iJldiC(1(t day. r?!(!tlth and Jtar) BETWEEN Ih. Archlteçt's client identifie<J as the Owner: (N(l1I,t, (1ddrnJ C'lnd I,I/her iflfor/¡wrÚm) City ofC.hul<\ VÎsJa 276 Fourth A venue Chula Vista, CA 9191Q .:Ind the Architect: (1"o/(lIllt. addrt$1 (l/1d urha in.!ormrrfio¡¡; Architecr of Record' Eric Davy Archirr;crs. APli 740 11[h S[reet. Studio 401 S.O Diceo CA 92101 De:~1!m Arc~ hckson & Rvall Archnecrs. Inc. 2370 Rice Boulevard Su1te 210 Houston. TCìt.3S 7700~ FQr the following PrQject: ({¡¡elude de,(¡¡'led dt:f<:ripri(1n (if PfQ)tÇfJ ß~JWimal sheltcf Jm approximatdv ~~_au.h.~ inle[Seçtion~.Mz.iu.~~~..and£2Yr!h Avenuein~_Çitv-ºl Chula Vista. as mor~ oanicutar1v described in Arlic1e 1.1. hereof below ("Animal Shelrer" or IIProicct"), AlA DOCUMENT BI41,STANDARD FORM AVREEMENT' 1997 EDITION, AlA· COPYRIGHT 1997 ,THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK A VB"IUE N W . WÞ",SH.r:NGTON. D_C. 200064~29.2_ W·'\R:-IIt'lG: Un!kel1sed pnotocopying violates U.S. copYl'~:\lt l.¡w,5 and will ~lJbJ'.:ct rh: vlQI.a[or legal pro:¡ecutiol1. Thí5 document W¡u ekctroruç¡:¡ijy produc.<:d with pcIJJ:li55ion of the AI.c. and C;JO lie reproduced wilt".,ut viol;Hlon until the dl1t~ of e'pir;1.!10r. ;¡S nOted bdow, Electfook Fornl3t B 141·191í User Document: 981J48B14LDOC u 9/24/1998, AlA LIcense Number 102361. which e~pi!es on 5/301!999 u Page #1 3 db - c¡ "---..,_...> -- -- ---- ------------.----.---.-----.--...-.-- 'cc," 9 ;'HJ III PM Jacxsn & R¡a~ i AX NO. 713 ")"7,11 P ; Jtr- ¿-±- ö ¡ ¡: ! 'J_O -:.::."t The Owner and Architect agree as folIows, ARTICLE 1.1 INITIAL INFORMATION 1.1.1 This Agreeme.O[ is bõ\sed Qn the following infocmation and assumptions (Not! I"~ di.lf}(!$ltiull tflr lire folfrnvil\¡' ilc/¡/.f by ÙtStrflng ,he r(querled !¡¡!Qf?/WriOM {Jf a J1CUe11ltllr JUch 01 "/'tot 'll'plu;ablc," "unkJlQwn Glf tillI-! (if tU( Url(ln" (Ir "tf) be dUt/"lltin.td ¡(I/(T by /IIutual ClS'UlUtl11. ") 1. 1.2 PROJECT PARAMETERS 1.1.2.1 The objective or use is: (Identify I,!r dcrçribe, II approprirrrt, prQPCftd IISe or 8(](lIJ.) Al1imal She1rer 1,1.2.2 The physical parameters are: (IdtMI'fy (IT dtKlj/)e, If (ll1propriMe, si~t. location. dilrteftsiQIIJ. or Other perlinen/ ¡n!(mlll/lion, o1l1âr as ~t()te'h,Üc(Jf r(j)flr'S abu:(1 :lIt sire,) lliA.rÙillªL.S.hdkL~.1l.l be devel09cdJID aooroximatelv.l..B.1 acre~~-ª.t the intersec£1on.Q.( Bever~...a..QQ Fourth Avenue 10 the City of Chula Vista (the "Pro?erlv" or site~ 1.1.2.3 The Owner's Program is' (fdtt1tify doCUmtllfClII()I\ (JI' IUlrr: rht m(lmru III wh,çll tilt prQgrC!/II will bt devt[opr:d ) he A a . r shal t uare eet nO'a d w 11 ne , d et e It::;· a Administration Buildinr of ar~rm;lmatelv 2 000 SQuare feet b CI~t adoDtion and puhtic area of approxìm<1telv 3000 "quare fl':ej c. ReceÎvÎn'l and Treatment rooms ror;:¡lItnQ" aoprOx.imalelv ") .'500 SQuare fe~r dOne: hundred Rnd six. d02" kenMI.. total1inll approxim:Hp.!v 7.000 square feet e_ Parkjn~ lor. landscapinv sifna~e and relared app\trtenMces The Ani!l,,,l Sht"lrer ..hall include ~joht orimarv flJncrlons: ] Public receprion and sales of per supnlies 2 Admrni'\rr~rive Mea mcludin" private offices J Puh!ic ecillcalion prov1~:;j()n" such as classroom or meetinS!: room 4 Animal recelVInQ" th,][ includes e.uminarions livestock corral;; froomínl1 and c.lm~?t': 5. Standard 3ntm;J.\ cS2esik.ennels Cat ca2es sl'1,,1I numher I Q3 of the standard st;:¡ckin~ Unit" Ther~ shall be 106 anIma! kenn€¡~ f r a nd Ira enne a e oorl u The: t': w ! v t Overe , imalst ç Id lelT1pcratures. He3!ln~.ml be in the conçrere...t1QQr to 9r(1Vlde~.!.Q~ doq" Dn~ kennels~.llQ! oxceed.:!lsJ2\j¡y-1(L foot. Construction sha1l be of block anci concrete with ~¡oprìnf floors WIth mdlvldual drains to provide easy clea01n~ 6 Anima] kennels for quaranfiM and obc.ervalion I.......Wil.dlife and smaIJ m~mmal/reptlle holdint' ue8~ 8. Clinic for ..he her Rnimal care emerrencie5 and spav/nr.lltrr. al Shelte w, nrenance e v hted Zlr1d irh c ee nd Ie.a ~ t ~s. An· a rea ~ u afe:t ""rl comfort as possihle within (octav's new m;¡ft':ri;11s. eauì[1mcn[ and d~<;i~n concept" IM eXferior .5hou'd~..a.n imtl{lItionalkd prefer! In~ --a hum21n sca!e~ residential...fud.1Lili.Q.U!d..Q£ compatIble ~...Qlh~.L ne;¡rhy structures and be <1{(¡"active and if1vjtln~ to the pub1iç Abundan! n;:¡tural li¡zhtinil..hould be provided to a!l animal holdin2: areas ~~ conccpt~ QP1imil.e~ eftíciency -ªh£ili!yJha1ls...d.w:abk and~JQ. m;1intaÎn. f\nd~~..ßl1..dl~abled açcess. star¡dardo; Provísions for user çafety wìIJ be inco('9oralcd as tin integrsl Dart of the facílirv desjen Becau..e ;]ltrt'lctive landscapinQ" is.~ imDortant jQ~ tlpp~Rrtlnce.2f~ compler~d buildin!Z. we ~Jhai-ª.n ex;tenSIVC land'ictlp!nr plan shan be a parr of Thc basic Ij'TOllram ~~ Shelter ~~ çentrallv conrroll;¡hle pressure wa~hinv eQujoment.~...i!lÌm.a1 waterin!l svsremo; flu'ihinf AL<\ DOCUMENT BI<1I·STANbARD FORII..J AQREE.\1ENT· 1997 EDlTtON· AlA· COPYRlCiHT 1997 . THE AMERICAN 1"ISTlTUTE OF ARCHtTECTS 17JS NEW YORK AVENUE N.W" WA.SHI!"GTON". DC. 20006·529::.'._ WAR;,'\{ING: UnJ¡çc::nsc::d photocopyi['lg viol.1~~ US copyrighf l;¡,wq :1ncl wi!! 5Id:'j~Çf Ih~ violtlfOl kglll P\o~~l.:uÜl)n, Thi~ document W::\S ~¡tC.\íOr1IC3l!y produ(;ed '.'11th p<:rrrli5~bn of (he. AlA J.tld can be (~pl'oductd wi~hout violiJtion U(ìtiJ tt¡e' d.:¡re of ",X.,(Ilr;;¡t¡Cn :J.~ nOled b-e¡ow. Electro",c Form't B14j·1997 User Document: 98048B141DOC·, 9/24/1998 AlA LICense Number 102361, wh,ch e'plfes on 5/3011999, Page "2 If cfl6 -/rJ JaC%500 , Ryn FAX NO. 7" "Ch 4"41 c 3jP-'24-98 THC ¡ 12 PM . " 1 J :1L.v ¿ , floor c1r;tino;; air purification "y"lt'!m... healed kennel floor rh;:¡t m¡;:et or exceed the American Humane AssocIation <;rFlndard~. noj,;~ ~ntrol SY51<m5~ ion~,last¡nQ.~ cleaned and disinf<ctcd2!!:all-'lIldl!QQr finì,hes,.~~.li.!Q m"keJh£~.i~ employees feel positive (¡haut and the oublic will ~n10V visiti:lIô': for pet adoprion. DC[ retrieval and OTher animal services Equa1iv or more: impmTant rh~ çhelter muse hOlJse animals in the h~althiesl leasl stressful manner poc;"ih1e Addj¡¡on:11 Proiect :prmlram de{~il<; will be developed durinf the initial de,,¡gn phFl<;!":. 1.1.2.4 The legal paramelers are: (ldeflfify þtrtÎnCllf lqat infQrmarwl!. iflc!(/dÙ¡g, if (lflpmpI"iWt, !(/id $ll'>':('YJ (¡lid h8a1(lescript!OftS oM rur,i(/Ivns (If th.e siU.) ~~ shall he deslvn(':d and de.ve1(')~erf in acr.nrrl¡\nce with applicahlf: federal. state and local law. re2'u!atlOns and po(¡çiés A lé\nd survey and l~f;:¡1 description wil1 he provided bv the Owner (It a later date 1,1.2.5 The finanCIal paramelers are as follows. .1 Amount of the Owne('~ overall budget for the Project, ineJuding the Architect's compensation, i:s $2256000 .2 Amount of the Owner's budget for the Co:st of the \Vorkl excluding the A..rchitec('s compel1sation-..a.nd. other soft and Indlrecr co~U. is: $1 426000 1,1.2.6 Tn< lime parameters ar<: (idt/1/ify if apprQpr¡(l/t, l1Iilt¡."(ml.' datu, dvr(/¡O/lS r)1' fi:1Jr traçk schl.'dij!/l1g.J Th&~..illill.L!2~ dC<;lImed.Allil constructcdjn acc:ordance.2illh.J.b.c.~ Schedule ;m¡:rh!":d~..ID...E.!"h.ili.iL~_ The 5chedule~J2ç.~~l.Q Owner's approval pur!íuan[J.Q~llJ..1.....QÍ..1his Agreement.. Archirect shall DroV(rl~..illl services hereunrler ín such a m(lnn~r as to permit the dev~lopmen[ of the proJect i11 accordaoce with the Schedule allached herell) a.s..E.3.h.iQi!~~it..m.a:L be amendedJ2ï...m.u..t!J.al aQrtement_QLtb£~ orovidcd' however. Architect....s.hall..lli11 be re~pon~Jh:e for delavs caused bv Owner or third rarril':~. 1.1,2.7 The proposed procurem<nt or deli very method for the Project is: (JdeJ¡r¡f.~ IIrtrnQd Sllch (lr (,."QJ!1P(lilÌ\'r bid, r.q(}ricr(td con.rrt.1ct, 1.If COfI.Jlfu,,"ir;1I I1JC!l1.agt'/!4rlf ) Cr)moetitive ODen bin procedure follOW10g tldvenisement for hìrl~ in accordance with the City of Chub Vista Charter. Munic!f1.11 Code and Implemenrjnl?' oolicie:o;' 1.1.2.8 Other pMame¡ers are: r Idtll/ify spl.'cia! c/1drccll.'ristIC,f (If r¡reds of the Proj~çr SL/cFr as wl.'fg)'. Ul.vifOI1/11ell(Cll Or' h¡skll1c flltJen'Qtw't ftq!tlreme1!fs.) Nor apolicable 1.1,3 PROJECT TEAM ,., .3.1 The Owner's Designated Represenrative 15 (Lis! Ilame, (lddress QJ1å o/ht!' infOllIJ(II/on) Captain Leonarrl Miranda Chu1a Vi<i¡a Police Department 276 Fourth Avenue Chula Vista CA 91910 (619\ 691,5230, OrAce (6191 691,56JO· Fax (619) 973·7494 . P'~'( 1.1.3.2 The pel50ns or entilies, in addition to the Owner's Des.l.gnated Repr~senfativc, who are required to revi~w the Architt:ct's submittals to the OWt1er are: (LI)I fI(1l11e, cujdr't!j a'ld Q/ntr in/orma/ion) Theresa \Villí;:¡ms RIck Markin Dick Thomoson Roberlo Saucedo 1.1.3.3 The Owne(s other consulcanls and contractors are: (Ust d!scip{fllt (Ind, iJknm"ll. Idl.'J1tity /J¡t/JJ by '101ftI.' (¡rlå addl'l!$s.) Not appl icable AlA OOCUMENT BI41'STANDARD FORM AGREEMENT· 1997 EDlTlON, AlA, COPYRIGHT 1997 ,T!JE AMERICAN INSTITUTE OF ARCHITECTS. 1735 NE\V YORK A VEN"UE N.W., W ASHL'JGTON, PC 20COö-5292. WAR.\¡I;-.iG Unlicensed pl¡(¡l\)J.;upymg vjQ!.:¡r':$ U_S. copyr;ght jJ.w~ Jnd 1\111 $UbJo::'Ci t;-.~ V!QliJiO~ legJ.1 prosec\JÜon. ThÜ dQcumeot was eJecU"of1ico.Uy produced with penfli~~ion of the Al.~ J.lìd cae. be r~p(oductd wJt!1o!Jt VlQlation uf!t.ll t\1<: d~(e of t'91f,"!O;1 as nOlc,d below Electronic FouDat B 141-1997 User DQcument: 98048B14LDOC·· 9/24!l99S. AlA License Number 102361. which expires on 5/301]999 u rOQ" #3 . ~ ':¿6-11__-HU , 'CD "1 9" TU" 113 ?I,! J JdSO.ì & RYJi1 FA( NO, 713 526 WI :' :::-c.¡ -.::. . - t1 j¡U 1.1.3.4 The Architect's Designated Representative IS: (VJf l1'I/II~, address and Qlhu ¡'lforIIIOrliNf,) Mr Ric Da....v Eric Davy Architects APU 740 13th Street Suite 403 San Dle.o CA 92101 (619) 218·3801- orfice (619) 238-0442· FH Martha Senr J~ck"on & Rvan Archítecrs. Jne 2370 Rice Boulevard. SUIte 210 Hou5ton TexR<; 77005 (7131526-5436· Office (7111526-4241 - Fax 1.1.3,5 The consultants retained at lhe Architect's expense a.re; (List disci¡){¡"I~ WId. il J:nOIr1t, idfllfl'fy rhtm by name Gt1d addrcss.) See attached Exhibit "0" 1.1.4 Othcr Important initialmfocmation is: Not ðl(91!cahle 1.1,5 wnen Yü..!b.~..1QJhe services under this Agreement ~ ÍQ.LCOtllract adminisualIon services, the Gencral Conditions of the Contract for Construction shall be the edition of AlA Document A201 (:tlf.,..l.." "J [1., åa:e e.f 1M:.... :'örccffierH. eo!.'\] fôlIv..". as revised bv the panies auached hereto and ¡rJcocporated herein hv rhi~ reference '.'.6 The informacion contained in this Article 1.1 may be reason.abJy relicd UPQn by the Own~r and Architect in derermlOmg the Architect's compensation. Both parties. however, recognize that such mform,atjoo may change and, in tbat event. the Ov'¡ocr and the A..rchitect shall negotiate appropriate adjustments 10 schedule, compeo:sarion and Change in Services in accordance wilh Paragraph 1-3.3, ARTICLE 1.2 RESPONSIBILITIES OF THE PARTIES 1.2,1 The Owner aí\d the Architec( shall cooperate wHh one 3Ilother to fuJflil their respecuve obligatjon5 under thlS Agreement. Both pJ.t'!(es shall endeavor to mainlain good working relatiom¡hlpS among all members of the Project h:am 1.2.2 OWNER 1.2.2.1 Unless otherwise provided under this Agreement, the Owner shall provide full infQrmation in. a tim~ly manner regMdil1g requuemems for and limitatiOns on the Project. The Owner shall furnish to the Architect, wÎthin 15 days after receipt of a writtcn request, informaTion necessary and relevant for the: ArchItect to evaluate, gIve notice of or eoforce lien. rights. 1.2.2.2 The Owner shall pcnod¡cally update the budgel for the Project, including that portion .lIocated for tho Cost of the Work The Owner shall not slg01ficantly increase or decrease the overall budget, the portion of the budget allocated for the Cost of the \\rO(k. or contlngencles included in the overall budget or a portion. of the budget, without fa) reasonahle t!pproval of the Arch1tecr or If n~ce~~arY. (b) the agreement of the Architect to a cQt1"esponding change in the Project scope and quaJjty 1.2.2.3 The Owner's Designated Representative identIficd In Paragraph I.l.3 shall be authorized to 3ct on. the Owner's behalf with respect to the Project The Owoer or the Owner's Designated Rep(e.~entac~"'e shall render deejsioos in a umel)' m<Ulr.a pertaining to doçuments submitted by the Archilecc in order to avoid unreasonable delay in the orderly and sequential progress of the Architect's services. 1.2.2.4 The Owner shaH furni~h the serVIces of consultants other th3.o' {hos~ designated in Paragraph 1.1.3 or authol'ize the Architect to furnish them ðS a Change In Services when such se"v~ces are requested by the Architect and are re~sonably required by the scopo of the P,oject At.>. DOCUMENT BI't'STANDARD FORM AGREE-'IENT ' 1997 EDlTlON' AlA, COPYRIGHT 1997· THE AMERICAN I:-¡STlTUTB OF ARCHtTECTS 173.5 NEW YORK A VENUE NW., WASHtNGTON. D.C. 20006·~292. WAR1'õ{J\lG: UnJicef\scd photocopying violalc5 US copyright lows and wll! subJt.'c[ !h~ "'¡elater Jeg.'\I prosecutJon. Tbu dO<;tn1cnt w..~ dCC:lronic!Jlly produced wi!h permission or the AlA nod C11T1 b~ rcptoouccd ""ithouI vjol!Jdon uotilthe U:J,[e of eJip1r.Jtto!1 a5110(~ below. Gkcrronic Format B14}·t997 User Document: 98048B] 4 LDOC .. 9/14/1998, AlA LIcense i'iumber I Q2361, wh¡çh expi«s on 5/30/1999 n P'ge #, to 016 -/cf<.. S~f-2~-98 THU I. 14 Pili jJGkS'J.1 & Rin FA:( :\10. °13T n41 / J_O._ 1.2.2.5 Unless otherwise ptovided in thIS Agreement, the Owner shall furnish tests, inspec(Ìons and reports required by law or the Contract Documents. such as structural, mechanIcal, and chemical tests, tests for air <lod water pollutIon. and tests fer hazardous materials. 1.2.2.6 ~~ providedin~~,!!fJJ¡j,¡ Aoreement .The Owner shall furói,h all legal, ¡n,urance and accounting ,e,vice,. \Dcluding auditing ,ervices. that may be reasonably nccessary at any time for the PIO)eCt 10 meet the Owner', need, and Interests. 1.2.2,7 The Owner ,hall provide prompt written notice to the Architect if tbe Owncr becomes aware of any fault or defect in tre Project. including any errors, omi$siol'),s or HlconslstenCJes 10 the Architect's Instruments of Service. 1.2.3 ARCHITECT 1.2.3.1 The service¡ pe,fo,mcd by the Arçhitect. Architect', employees and Architect', consultants shall be as enumerated ¡n Article 1.4, 1.2.3.2 The Arctutcct's services shall be performed as ,^pcdttiously as is consistent wIth ptofessional skill nnd care and ,hc orderly progress of the Project. The Arcbitect ,hall submit for the Owner's approval a schedule for thc performance of the Architect's services which irtitiæIy shall be consistent with the time pCflods establtshed in Subparagraph 1.1.2.6 ""d....-hicl>_¡ .s..uœ schedu1e~.bc adjusted. if necessary, as the: ProJcct proceeds s\lbieclJ52 Owner's tlpproval. Thj~ 5chedule sh<'1i1 include allowaoces for periods of time:. required for the Owner'~ review, for the performance of the Owner's consultants, and for approval of submissions by 3ulnonttes having jurisdiction over the Project Time limits established by this schedule approved b:. !h~ Owner shall not, e,1:Cepl for reasonabJe cause, be exceeded by the Architect or Owner. 1.2.3.3 The: Architect's Designated Repre5emaÜve idenlÎfied in Paragraph 1.1.3 shaH be authodzed to act on the Archit€cb behalf with re'pect to the Project. , .2.3.4 The Architect shall mainlail'1. the confidcntJalHy of information spcCJfically designated as con.f¡dcntial by the Owner, unless withholding such information wouJd violare the law, create the fisk of 51gnífican.t harm to the public or prevent the Archih::ct from establishing a daim or defense in an adjudicatory proceeding. The Architect shall require of the ArchHeçt's coosullants similar agreements to maIntain the coofidentlahty of ¡nfonnation specifically designated as coofidclHial by the Owne:; 1.2.3.5 Except with the Owner's knowledge aod consem, (he ArchÜec( shall not engage in any nctivÜy, or accept any employment, interest or conu ibution that would reasonably appear to cOmpromIse the Architect's professIonal Judgm~nt w~~h respect CO this ProJcct 1.2.3.6 The Architect shall review laws, codes. and regulations applicable to the Architect's services The Architect shall ~¿ ~in the design of the Project to requirements imposed by governmental authorities havin.g juÙsdjctÎon Qver the Project 1.2.3.7 The Architect shall be e:otJtle:d to rely on the accuracy an.d completeness of services an.d information furnished by the Ov·mer. The Architect shall provide prompt written ootice Lo the Owner if the Architect ~comcs aware of any errors, OI11I:'!Slons or incon$istencies in such serViCes or in.formation. ARTICLE 1.3 TERMS AND CONDITIONS 1.3.1 COST OF THE WORK 1.3.1.1 The Cost of th~ \Vork shall be the total cost or, to the extent the PrOject \,s not completed, lh~ e~tíû1...ted cost to the Own~r of all elements of the Project designed or specified by the. Architect Th~ An:hirt':cf shaH exercise its best efrorls to desiçn ,h~ project in order to al10w its comDlerion within [he Owner's budcze:t -'Sef forth in Section) .1.2.5.2 1.3.1.2 The Cost of tbe Work sh",U include the cost at current market rates of labor and malerials fumishcd by the Owoer an': equipment designed, speC1fJ.cd, 5elected or specially provided for by the Architccl, including (he costs of m<'\nagement or supervision of construct(on or installatIOn provided by a separate coosnuction man.ager or contractor, p1us a reasonable ;dlowance AL~ DOCUMENT Slott-STANDARD FORM AGREE!l.ŒNT· 1997 EDHION . AlA ~ COPYRIGHT 1997. THE AMERICAN INSTITUTE 0F .'\~CH!TECT5; ] 735 NEW YORK AVENUE N.W., WASHINGTON. DC. 20006-5192. WARNI;-.lG: Unlicensed photQcopying violates U.S copyright laws and wi] subject tl';e vjol:¡.tof !cgðt prosecution. This docUmetH wo~ dectronicuUy producc.d wìth ~nn¡ssion of lhc AlA and can be repfQduced w1tho\L! viol<\!ion until the d;¡rc of upitJt¡or¡ as nottd below. Eleetlonic FOll11at 5141,1997 User Document 98048B141 DOC u 9/24/1998, AlA LicenSE ¡';umbcr 102361. wo¡çh expires on 5/30/1999 -- Page #5 7 d6-/3 S::?-24-98 Tn.- 11 S PM Jack S 0 0 & Ry a.1 PH NO. 713 526 4241 , r.1, for theif ov~rhead and profit In addiÜon, a reasonable allowance for contingencies shall be in.cluded for market condmom: at Iht' [Íme of bidding and fot changes in the Work 1.3.1.3 Th~ Cost of the: Work docs Dot include (he compensation of the Architect and the Architect's con.sultants, the coses of fhe land, rights-oi-way and financing or other costs that are [he responsibility o[the OWJ1cr under this AlZœemenL 1.3.2 INSTRUMENTS OF SERVICE 1.3.2.1 Drawings, specifications and other documcnts, includiog: those in electronic form, prepared by the Architect and the Architect's consultants a(£ Instruments of Service for use solely with respect to this Project. The ArchItect and the Archaec!'s cOn.5ulta1C; sh.all be deemed the authors and owners of thc:ír respective Instru011:nls of Se(Vlce and shall retain all com.rnon. law. ~Iatutory and other reserved righls, including copyrights. 1.3.2.2 Upon execution of this Agreement, the Architect grants to the Owner a nonexclusive license to reproduce the Arch¡¡ecr's 1"lIumcnts of Semce solely for purposes of construcllng. UStog and maintaining the Ploject. provIded that the Owner shall comply with all obligallons, ¡~cludi~g pwmpt payment of all sums when due, under this Agreement. The Architect shall obeam similar nonexclusive licenses from the Architect's consultants consistent wilh this Agreement. Any termioauoo of this Agreement prior to completion of the Project shalJ terminate thi~ license, Upon such termination, the Owner shall refrain from making further reproductIOns of Instruments of Service: and shall rcturn to the Architecr within Seven days of termination all orig¡n<11s and reproductions in [he Owner's po~sessjon or control. If and upon the date the Architect is adjudged In default of this Agreement. the foregoing lícense shall be deemed tenninaced and replaced by a second. nonexclusive license perrnitting the Owner to authorize oth~r similarly credemialed design professional5 to reproduce and, where permitted by law, to make chang~s. correctlOl'1:S Or add¡tlOns to the rnstruments of Service solely for purposes of completing, using and maJntaining the Project 1.3,2.3 Except for the licenses granted in Subparagraph 1,3-2,2. no other license or rIght shall be deemed granted or implIed under thIs Agreement The Owner shall nol aSSIgn. delegate. sublicense. pledge or otherwise transfer any lICense granted herem to a~other pally wtthout the prior written agreement of the Architect However. the Owner shall be permitted to authorize the Contractor, Subconrractors, Sub·subcontracrors and material Or equlpmeot suppliers to reproduce applicable portions of Ihe Jnsu·uments of Service appropÚate 10 and for use in their ex.,ecutlOO of the 'York by license granted in SubpM<\graph 1 322 Submission or distribution of Instruments of Service to m~et official regulatory requirements or for similar purposes 111 connectIon with ¡he Project is oot to be construed as publication 10 dcrog¡;nion or the reserved rights of the An;hitect an.d thc Arçhiteci's consulrants. The Owner shall not use the In.strurneots of Service for future ~dd¡tions or alterations to th¡s ProJcct or for othc~ projects, unless the Owner obrains the prior wrilten agreement of the Architect and the Architect's consul!<1nts. Any unauthorized use of the Instruments of Service shall be at the Owner's sol~ risk and without liability to the Architect and the Archltect'~ conSlJf(an[s, 1.3.2.4 Prior 10 the Architect providing to the Owner any Instruments of Servic~ in electronic form or the Owner provIding to !r.e Architect any electronic data for incorporation into the Instruments of Service. the Owner and the Architect shall by SepMJ:e. wrmen agreement set forth the specific conditions governing the format of such Instruments of Service or electronic dùt<1, includmg any special limitations or licenses not othc(wise provided in this Agreement. 1.3.3 CHANGE IN SERVICES 1.3,3,1 Change in Services of the Archilect. including services n~quired of Ihe Archi(ect's consultants. may be accompltshed after ex:ecution of this Agreement, without invalidating the Agreement, 1f mutually agr~~d in writing, if requIred by circum~ranc£~ beyond the Architect's control. or If the Architect's semces are affected as described In Subparagraph 1.3-3.2, In the absence of mutual agretment 10 writing. thc Architect shall cliliUn Owner's Drier writtel1 approvaIJ~ettfy-the~ prior to p¡:ov¡dmg such services. If the Own.er deems that all or a part of such Change in Services ¡S not required, the Owner shal1 glve prompt wlHten notice to the Archifcct, and t.he Architect shall have no oblJgab.on to provIde those services. Except for a change due to thl:: fault of the Archltect. Change In Services of the Architect shall entitle the Architect to an adjustment in compensation pursuant to Paragraph 1.5.2, and to any Reimbursable f.'penses described in Subparagraph 1.),92 and Paragraph 1.5.5. 1.3,3.2 If any of the foltowing cucumstaoccs affect the Architect's services for the Project, the Architect 5hall be enrìtled to arl appropriate adju~tment in the Architect's schedule and compensalion. ,1 change in the instrùctions or <1pprovals given by the Owner that necessitate revisions ih Instruments of ServIce; AlA DOCUMENT BI<l'STANDARD FORM AGREEMENT· 1997 EDITION, AlA, COPYRIGHT 1997, TIIJ' AM~R¡C^N INSTITUTE OF ARCHITEÇTS. 173~ NEW YORI<. A,VE:"UE N W, WASHINGTON, D,C. 20006-.5292, WARNING: UnlLccmcd photocopying vio1n(cs U,S. copyright laws :md will sUbJeet tho:: y\o],:¡tOt legal prûJcçutìon Thi~ doçulT\cnt W:1S c!cc\(oruc:nUy pcodlJced with. permission of the AlA and 'all be: reprodvc:ed without vlolauon. ul1.tilthc: d:uc of C.'P1I:¡(¡or: n~ "ot~d ~tow. flewum" Furmat 8 I ~ 1,199! User Document: 980488 14l.DOC -, 9/24/1998 AlA Ltcense Number 102361, wblCh explIes on 5/30/1999 n Poge 1'6 2 ó{6'-/-'/ 3EF-'2~-S8 TEL" 1.1 ,3 FM Jackson & Ryn F AX NO. 713 526 4241 , r. .2 enaelment or revision of codes, laws or regulations nr ofticia! interpretations which necessirate changes to previously prepared Instruments of Service; .3 decisions of the Owner not rendered in a timely manner: .4 sigrúflcant change 10 the Project including, but not ItnÜted to. size, quality, complexity, the Owner's schedule e, budgetl or procurement method; .5 failure of performance on the part of the OW1l.c.r or the. Owner's consullant.s or contractors; .6 preparation for and attendance at a publIc heanng...í.Q.lb.gf than-ª.} contemplaterlia Arr:hifcct's~J2f..Y{Qrk~ rhi, A£reement1. a dispute resolution procceding or a 108al plOceeding except where the Arclutecl is party thereto: .7 change in the IDformallon contained in Article I I 1,3.4 MEDIATION 1.3.4.1 Any claim, dispute or other matter in qucslion aflsing out of or relat~d to this Agre¡;:mcnt shall be ~ubJe.ç{ to mcdialiol1. as a condItion precedent to arbitration or the insti(Ution of 1egal Or equitable proceedings by either party. If such matter rel~tes to Qr lS the subject of a li~n <\rising out of the Architect's services, the Archilcct may proceed in accordance with apphcab1e law to comply with the lien notice or fiHng deadlines pÜor to resolution of the matter by mcdlallon or by arbitration 1.3.4.2 The Owner and Architect shall eodeavor to resolve claims, disputes and otoer maners in question between them by mediation which. unless the parties mutually agree otherwise, shall be in accordance with the ConstructIon [ndustry f.,Iedi31lcn Rules of the American Arbitration Assoc,ation cUCTenlly in effectÉ2!lli~~~. Reques< for mediation shall be rlld In wrili¡¡g with the other party to thts Agreemeot and with the San Dle¡zo Chaprer.JlÍ..Amcrican Arbitration Association. The reque~[ may be made concurrently with the fding of a demand for arbitratton but, in slJcb evenc. mediation sha11 proceed in advance of arbllration or legal or equitable 'proceedings. which shall be stayed pending mediation for a penod of 60 days from the d,te of filing, unless srayed for a longE:f period by agreement of the partlcs or court order. 1.3.4.3 The partie, ,hall ,hare the mediator', fee aod any filtng fees equally The mediation shall be held In the place where lhe Project is located. unless another location is mutually agreed upon. Agreements reached in mediarion shall be enforceable as s~ItJement agreements in any court havwg Juosdlction thereof. 1.3,5 ARBITRATION 1.3.5.1 Any claim, dispute or other matter in qucstíon 3Cl5111g Qut of or related to this Agreement shall be subject to ;:Hbllra!10Jl Pnor to arbitratiol1. the pawes shall endeavor to resolve disputes by mcdialiol1 in accoldance wHh Paragraph 1.3..:1 1,3.5.2 Claims. disputes and orher maHers in question belween the parties that are not resolved by mediation shall be decIded by arbitration. whIch, unless the parLies rnutually agree otherWIse, shall be il\ ðccordance with Ihe Construction Indu~Hy Arbitration Rules of the American Arbitration Associarion currently in effect for the San DielZo area. The demand for arbm:mon shall be [¡lcd !n wriÜng with the other paIt}' to this Agreement and with the San Dleqo Chaprer of A.merican AIbitr<\tion Association. 1.3.5.3 A demand for (lrbHratlOn shall be made withIn a reasonable rime after the claim, dispute or other matter in question hJ,) arlsr:::n. In no event shall (he dc:mand for arbitratioo be made after the date when institution of l~giJl or equitable proceedjng~ b~:s-'.:d on such claim, dispute or other matter in question would be barred by the applicable statute of limitation,. 1.3.5.4 No arbitration ansmg out of or relating to this Agree01~Cl.l shall include, by consolidation Or joinder or in .my oíher mannE:r, an addilional person or enlity not a pan)' to this Agreement, except by writlen consent contain.ing a specific reference to thi5 Agreement and signed by the Owner, Architect, and any other person or entity sought to be jQined. Consent (0 arbítratior: involving an addiÜooal person or entity shall not COnStltute consent 10 arbitra!1on of any claim, dispute or other maUer In quesrior. not desc6bed in the written consent or with a person Or entity not nam¡;d or described therein. The forcgomg <1gleelJ1ent to arbitrate and other agreements to arbitrate with an additional person or enÜty duly consented to by parties to thIS Agreement shall AlA DOCUMENT BI4l,STANDMD fOR.'! AGREEMENT· 1997 EDITION· AlA, COPYRtOHT 1997· THE AMERICAN INSTlTliTE Of ARCHITECTS 1735 NEW YORK AVENUE r-õ.w., WASHINGTQN, D.C. 20006·5292. WARNING: Vn.\\c:(:rrsed pl1otocopying viobtts U.s. ccpynght I::!.ws 31",d wiJl subject Ih.: yiQt~tQ{ Ic:g3J pro'5tcution. This docl.lnIcnt was electrQnically produced wnh permission of [he AlA and cln ~ reproduced without violation \lnli] the dt1tc: of e:tp¡r¡¡!10tl In noted below Electron!c Format B ¡,~] -19IJ; User Documeot: 98048B 141 DOC .. 9/24/1998 AlA License Numbcr 102361, which e'pires on 5/30/1999 n Page ~7 q cXrb -/S" SE?-2H8 THU I . ¡ 7 PM jacksoê & Kyan F AX NO. 713 52ò 4241 " be spccifically enforceable in accordance wlth applicabie Jaw in any court haviog Jurisdiction thereoL 1.3.5.5 The award renderod by the arbmator or arbitrators shall be final. and judgment may be entered upon It in accordanc,' with applicable law In any coun having jurisdiction thereof 1.3,6 CLAIMS FOR CONSEQUENTIAL DAMAGES The Arçhit~ct aod the Owner waive cQnsequential damages for claims. dìsputes or other matters În question arising out Qf or rel~ling to this ^sreement. Tbis mutual waiver IS :applicable, without limit,mon, to ~Il ('Qo<;prp,'PnÜ:d r:bru;:¡~p_~ rt(P ,,, p;rhPf r;¡ny'" termination in accordance with Paragraph ¡.3.8. 1.3.7 MISCEllANEOUS PROVISIONS 1.3.7.1 This Agrecment shall be governed by the law of the ~.QÍ Callfornla_rrinelr.l-p!ftre~ b.,ine33 -cl-\!!e . \"¡..t~,,, "1.!e33 otl.er..i3e p.ð,iàed in Paragtaph 1.4,£ 1.3,7.2 Terms in this Agreement shall have the same meaning as those in the edition of AlA Document A201. General CondiÜoos of the Conrract for Construçtion, anacl1ed hereto current a3 6£ the 6.1tC. of thi3 .\!;f.ccnicflt. 1.3.7.3 Efttm::¡~~ btt..etn-the~-t6~ .',green.ent rettaining-t6~"'" f6il~ltJ-to-tlet~-be d(~.¡.~d-to~ ~~-<!!e apphcob!t sr.r.te! <>f lin'¡t.tíðn'~ <ommenco-to""",~-it!ter-#!tm~-the~ S~b't,,,ual Cðl1'fJeLô.. for net! or fail.,,! re aet oe<."ing prior to S.bOl.I.Üal COleJpkÜon or tn, datt <If i",oli<e 5f the fiual C" t;h~"t< fur Pa,Ift"': f,1[ ltC'h-or f..~luÁ\""-to'~ V.........H~Hõ""3fter 8.ab"t';'utial CompkÜon. -In''''ftt'-eTeftt~-stteh JtaH:Jt'-J-ef lirnitatiðnJ (.õndlKF!.<:... -to-rttTt~ I.tcr than the date ,,¡,en tl.e A,el.itcet·3 301. i«J ale '."3tð"tiaU) <M,~kkd 1.3.7.4 To the extent damages are covered by property insurance during construction. the Owner and the Archllect waive all fights aga,"st each other and against the contractors, consultants, agems and employees of the other for damages. except such rights as tbey may have to the proceeds of such insurance as set forth in the ediÜon of AIA Document A20!, General Conditions of the Contract for Construction, current as of the date of this Agreement. The Owner or the Architect. as appLOp""', shJII require of the contractors. c005uItants, agents and employees of any of them similar waivers in favor of (he orher pa:Llt' enumerated herein. 1-3.7.5 Nothing comained in tbÎs Agreement shall create a contractual rela!Íonship with or a cauSe of action 10 favor of a lh!ìd party against either Ihc Own.r or Architect 1-3.7.6 Unless otherwise provided in this Agreement. the Archllcct and Architect's consultants shaU have no responsibility for the dIScovery. presence, handling, removal or disposal of or exposure of persons to hazardous materials or toxic substances In Jr" form at the Project site. 1,3,7.7 The Architect shall have tbc right to include photograpllJc or amst;c representations of the design of the Project anlDC," the Architect's promotional and professional materials, The Architect shall be given reasonable access to Ihe completed ProJecr tD mak¡: such representations. Howevec, the. Architect's materials shall not include the Owner's confidential or proprJCL1ry information if the Owner has previously advised the Architect to wnring of the specific information considered by the Owner Ie be confidcnti.l or proprietary The Owner shall provide professional credit for the Architcctln the Owncr's promotlonal matena:; for the Project 1,3,7.8 If the Owner requests the Architect to execute certificates, the proposed language of such certificates shall be submitted to the A",hitect for review at least 14 days prior to Ihe requested dates of execution, The Architect shall not be required to execute certificates Ihat would require knowledge, services or responsibilities beyond the scope of this Agreement 1.3,7.9 The Owner and Architect. respectively, bind themselves. theu partners. successors, assigns and lega) representatives to the other party to rhis Agreement and to the partners. successors. assigns and legal representatives of such other pany wtth respc'" to aU covenants of this Agreement Neither the Owner nor the Archllect shall assi8n this Agreement without the written consent of the orher, e'ceptlhatlhe Owner may assign this Agrccment to an Lostitutionallonder providing flOaoCtog for the Project 10 ,uch event, the lender shall assume the Owner's rights and obligations under this Agreement. The Archllect shall execute all consen; reasonably required to fadlitate such assignment. AlA DOCUMENT Bt4I,STAt'1JAR1J fORM AGREEMENT, 1997 EDITION· AlA, COPYRIGHT 1991 ,THE AMERtCAN INSTITUTE OF ARCH'TEer" 1735 NE'N YORK A VENUE N.W" W.~SHL-";GIO¡-';, DC 20006·5:292 W AR:-JING: Un.IICI:.I1:5td photocQPying vloJ::ltes US CQPyright ¡",ws and wiIJ S1JC'Ji:':¡ \;,~ .....iol:I(O{ legal pro~eCU1100 This do¡;urIH::nl WQ1) dec(rolllcally proctuçed with pe.rmÜsioo of the AlA ond COIn be: reprOOi.Jccd without violatIon unu\ the dJte Q( O::"PI¡,~tl0'1 as no(ed below. J 0 , cf(, b -I b ElectfoDlc Format B 1,1 ¡ ,{997 r T_~_ r'\~_,,~,",...1 ()9(),~ Qt] 1 11 f'\('V'" _ ()''1,1'' OOq i\ T:\ T ,,~"'.,<::'" 'J.."",I-."'r 1 n7~fí 1 lI,hkh p',(flir(":<: nq .t:;nn/! QQQ _ P'I:? ..,:> 3EhJ-98 FRi 4 03 PM JaCK¡OO & Rya¡ [.;',,\ ;~O. 7 '-. ,... ,~,,~ ·1 '~I ' 1 !J :ILO ~¿~ " 1.3.8 TERMINATION OR SUSPENSION 1.3,8.1 If the Owner fails [0 make paymcnts to the Architect in accordance WHh this Agrecmcnt_fuL-ªnx~ orher .1D,,",- Archn:cct's..dWult hacunder, ~uch failure shan be considered substantia! rJol1pcdorrnance and cause fQr telmination or, at ~he Architectls option, cause for susperlsîon of pcrfonnance of serviçc~ uoder this Agreemenc. If the Architect eJec.ts to 5usp~"d se{vîces, priQr to suspension of se(vices. the Architect shall give seven days! wdtten notiœ to the Owner. 10 the e.....ent of a suspension of services, the A¡ch¡[ect shall have no liability to the Owner for delay or damage caused the Owner because of such suspension of services, Before resuming services, the Architect ~b;¡¡ll be p<.1id all sums due prior to suspension and any €x:pen~e~ incuncd in the inlecrup(Ìon and resumptioa. of the Architect's serVIces. The Architeccls fees for the remaining .services and t.h~ (Jr;1C schedules shall be equitably adjusted 1.3.8.2 If the Project is suspended by the Owner for more than 30 consecutive days, the Architect shall be compensated for services performed prior to notice of such suspension. When the Project LS resumed, the Architect shall be compcnsa(~d for expe:oses incurred in the interruption and resumption. of the Architect's serV1ces, The Architect's fees for the rcmainin.g service::¡ and the time schedules shall be equitably adjustoo 1.3.8.3 If the Project is suspended or the Architect's serVices are suspended for more than 90 consecutive days, Ihe Archlle:! may terminate this Agreement by givmg not less than seven days' written norice. , .3.8.4 ThIS Agreement may be terminated by eÜher party upon not 1€'.s.s than .seven. days' written notice should th~ otr.er pëlny fal1 substantially [0 pcrform in accordance with the term' of th¡; Agreemenl through no fault of the party initiating the termination. 1.3.6.5 This Agreeme.nt may be lerminated by the Owner upon 110t less thaD seven days' wrilteo ootke to the Architect for the Owner's convenience and WIthout cause. 1.3.8,6 In the event of termination not the fault of the Architect, [he Architect sha1t be compensated fm' services perfQrmed prior to terminauon, !Ogelher with Reimbursable Expenses then due and all TerrnwatlOn Expenses as defined 10 Sub~ar:?lg[nph 138.7. 1.3.8.7 Termination Expenses are in addition to compensalion for the services of the Agree11.1ent 2nd include expenses dlrectl:> attributable to tenmnauon for which the Architect is not olhcrwise COll1pen.satro..;-pm .1.,1 m:uCd:Jht~-the ".r¿;.,(,~t'J al,u'::lp.:d pl....f..l vu lL.... ....lu.... ðf d., Jçf, ¡e:o nðt p<:rt:õLL1.<:¿ b) tl.~ .\.¡.:::Litat. 1.3,9 PAYMENTS TO THE ARCHITECT 1.3.9.1 Payments on account of serVIces rendered and for Reimbursable Expenses incurred ~h311 be made in accO[ci,,.nre \ví¡f'; r;"'e 93vmcnt schedule arr;:¡(':h~d ~ ~ Qhibit "C' .TTt'O"n'thfr uPQn presentation of the Architect's statement of services. ;-Tv deductions shall be made from the Architect's compensation on account of penaJ(y, 1iquìdatcd damages or othe( 5urns witr,heJj from paymen.ts to contractors, or on account of the cost of changM in the Work otner than those for whIch the Archltect ha.s bee..! adjudged to be liable. 1.3.9.2 Reimbursable Expenses are in addition to compensatIon for th~ Archiœct's servjces and include expenses lf1<.:urred by the Architect and Architect's employees and consultants directly reJated to the ProJect. as Identified in the following Clauses: ,1 transportation In connection with (he Project. authorized out-of~town uavel and subsistence ~r.fu1g J.Lrn:... e'<pended for travel), and electronic communications; .2 fees paid for seçuring approval of authorities havwg jurisdiction over the Project; .3 reproduct¡oI1S, plots. standard form documents, postage, handltl1g and delIvery of Instrumencs of Service; ,4 expense of overtime work requiring high~r than regular rates if authorized in advance by the Owner; .5 renderings, models and mock-ups requested by th:= Owner; ~ AlA DOCUMENT B 141,STANDARD FORM AGREEMENT, 1997 EDITIO~ . AJA ,COPYRIGHT 1997, THE ~"IERICAN I"STlTUTE OF ARCHITECTS 1735 NEW YORK A VENUE NW. W ASHINOTON, DC 20006.5292. WA.RNING: Unliçensed photocopying vio!"tes tJ S copyrighr b.ws ond will subjcCI !h~ viQI;¡to¡: le:g.lt pl:Osecution, Tl:lis doçumcnt W;¡s electronically produced with permission o( the: AlA af1d can be r~p{odllced witholJ.[ v\ol..tioo. un~¡¡ Ihe d,He of (:-;piJJlõC:"l tiS nOI~d below EJcctro[1ic Format B 141-1997 User Document: 98048B141DOC.. 9/24/1998, AlA License Number 102361. which expÌIes OD 5/301l999 n Page'9 l/ ~ 0- 17 .., -~_. 3E?-2J-'S~, FRi 4 iJl PM jack son & Rya) nj j\;O. 7]3 526 4241 '. .6 expense of professional liability IDsurance dedICated exclusively to this Project or the expense of addi<<ona, insurance coverage or limits requested by the: Owner io excess of that normally canied by the Architect and (h~ Accbitect'.s consul rants; .7 retmbursable expenses as designated in Paragrzpb 1.5.5: ,8 other similar direct Projeç[-r~lated expcl1.ditures a.pproved bv Owner. 2,1!s2Jíill£l=..air~ shallJ1£ au'ho[1l<dl1x~~_fuu.1l)' travel assoçiated~.1h1s Pra<ec¡ ,-Yih£J\Çver p05s1ble Archirecr...shall attemptJ.Q, Khedule-ª1!.1r.aYcl~la.c...in D.dvance~ po.s:<.ìhlcj,Q~Jha1..1ht lo\vcs..!... cnmpfl.ririve rates for travel i:<i char~cd 1.3.9.3 Records Qf Reimbursable Exp~nse5, of expenses perlainiog to a Chang~ in Services, and of services performed 00 t:'1(.'. basis of hourly rates or a multiple of Direct Personnel E'pense shall be available '0 the Owner or the Owners authomed g;pre.seotalÌve at mutual1y corweole.nt times. 1.3,9.4 Direct Personnel Expense is defined as the direct salaries of the Architect's, personnel engageù 00 the Project and the ponion of rhe cOst of their mandatory and customary conlribution.~ and benefits related thereto, such as employment ta,,,,e~ ane olher statutory employt:e benefits, insurance, sick leave, holidays1 vacations, employee retirement plans and simil::1f contrÎbul~on5 ARTICLE 1.4 SCOPE OF SERVICES AND OTHER SPECIAL TERMS AND CONDITIONS 1.4.1 Enumeration of Parts of the Agreement. This Agrecm¡:.nt represents the entire and integrated agreement bctween ¡hI;: Owner and the Architect and supenedes aU prior negotiations, represenlarions Or agreements, either wriuen or oral. This Agreement may be amended only by wriuen instrument signed by both Owncr and Archilect. This Agreemen.t compri~cs th.¿: documents listed below. 1.4.1.1 Standard Fortn of Agreement Betwoon Owner and Architect, AlA Document B 141-1997. 1.4.1.2 Standard Form of Archttect's Services: Design and Con'rac, AdmlOistrat¡on, AlA Document BI4J·1997. uu~bw.~ altached\õ. <\0,]0 fullu,q: (U¡r o,her clQCllm~nrJ, If (I"Y. d"olto.lng ArçhirtCl'j ",COpt v{ Je/vicn) 1.4.1.3 Other documents as follows: (Ust ol/¡crd()<:~I!/tIIIS. If any, !r)l"ming port of the AgrCCI7!Crll,) Fxhihit "Au - Peoicel Schedule (Refer to Section 1 1 7. 6 ì Exhihit "S" - AddllJOoal Con~ultant'; (Reffl.r to See¡ion 1.1.3.2j Exhibit "C'. . Compcn:O;(\rlon Sch~dnJ~ fR!":fn fi'! Se,ction 1 5 1 ) Exhibit "D" - Schedule of Hourly R¡¡{~s (R~JPr to Section 15.2.) AlA Document A201 in th~ form :1¡¡~che.d, 1,4.2 Sptdal T<fm' and Conditions. Spec,al terms and conditions ,ba, modify ,his Agreemen' are a, rollow,' ill Archile:ct~jQ~ fo1lowinj;' ;:¡rlriiljon~[ cove:nant~. term5 Md conditions ..1:Q~~.ßn:i..9..f the Drovi.sionsin tt-n<; Sect10n are inconsIstent wilh o!hl!r seclions of the A2:recment. the provIsions of this secrìon shall cOntrol. a. Puhllc ~'Ieerin~s: The architectural serVICes WJII mc1ude facilitating all oresentation:<i to community !HOUDS <,<nd parrlcioarino In meerínos with~~~~..a.nd voluntr':~(S-ª!}Q Citv Council _ Architect~..liaffJ.1¡2JQ~ meetin£:slQr..n2. addÌlÎonaI..£Q.S1.. Arlrlirion;:¡1 mcetin~ shall~ considered a~ io Service!õi here1lnrler ~nrilling: the ArchÎtectJ.Q. <,dd1tioD::!.1 compen~~tion. il.. Pre1imin<'lrv Submittal: ~ prelímin.1ry~J2f~ "p<'r.i{ic8ion~ and co:o;t estim<'ltes shall be 'Submitted tnlh.t.~..fuL DI<\o check c. Pla05 Specificalion<; (:0<;( F:c;timates: Architect will orovJde one complete set of omlin~! sr~cificari()n<; in prin[('( form ~1r,",,:, with this information. on a di<;k~!{~ for lAM comouter, Architect shall al~o .su!1mit one sel of fu1l siTe nQ!' x. 421') pl;:¡no; on mv\~~ All~ and specifir:atiom 1;h;:¡1I b~ reviewed and aoorov'e:d bv the:~~ accepfance . Oel;¡i!~rl..final~ e:stJrnates y/!lL be Dfoyjdcd to lhc Owner for review Rod RCc.entflnr.er: ALA DQÇU~tENT BI4',STANDAI\D FORM AGREEMENT' 1997 EDITION, AlA, ÇOPYRIGHT 1997. THE A~ŒRtÇAN tNSTtTUTE OF ARÇH1TECTS 1735 NEW YORK .'~,.vENUE N W, WASH1¡\;GTON. DC :0006·5:292, WARJ...·l~G: L'nJI'clìsed photocopying V\oJ.J!C:s V,S copyngh( 1.),W5 JrJd wili subject r~.': vlol<i.tor leg",¡ prosecution. This do<:;umcot was decH'vnjç;:¡Jly produ.cec1 witl1 f'(lmission. of the AlA \1nd can be J1:pwduccd withoul viola.tion. until !I,;,>: d!1le of ~~pll" tJ0,~ JS l1o\~d below . Elcçtronic Forrnat B i41-19'/i n... nnr"o___' 0'''''''''"' nnr '" OI?A/loa, 'I'?:;"'" N..mh.., ';6 ~;;; ..n;.., 0- <"'''/1000.. D,eo>.,n 3EF-2j-38 FRI 4·[15 PM Jackson & RYH F AX NO. 713 526 4241 , r. çL_~ Review' _ Architect's services.llliill~ \\:orkino;¡:..ffi.tb. Owner's...liàffJ.Q. prnc.~"~.!hç Proiect throuah the Dcs!'?n Review Committee of the CiLy o[Chllla Vi'I~. c Commllc:.tÎon Ph;¡c;e' nurin~ the Construction Ph~se the Architect 1\hall if re:quired 1 Assist in the analvsic; of bids results and provide necessary recoIt1l11endation On award of construction contract _2 Anend pre-consrfUclion conference. 3 Check detailed construction and sho~ drawin!ls if any suhmined by the Architrcl for compliance with desi2n concept 4. Provide consultation and advice durin\1 conc;tructjOT1 5. Make 9£dodic visits to observe the work in progress and provide appropriate reOOrlS to the Owner 6. Prepare sketches ami/or revisions as required to resolve unforeseen rroblems. 7 Make fin~1 ;n'l:pecfion and reDort on the comç'leted proiect 8 No[e al1 approved cha02e orders on the conlTact drawiolZs and prepare findl"as built" drawíne:s for Owner's record 9, Assist the Owner in the Project Close our Punch I.ist warranrie<; and O&M I1HlnuE'lJs L Insurance: Archit~cl repre<;en[sJha.1J1..Mld.lts Rf'"~nr" staff and 5ubcon~uJtaots emp!oved.ø..i1in conn~c!ioQ~ the Services reauiredJ.QJ2.ç. rendered ...m protecled..ap.Î.[ill theJ:ills..2fl2ll..hx~ following În<;uranee covt.r~f~S. in the fotlowin2: c3taQO[e~ ;!!JjJ!UmJimils $pccifí.d. ~olicies.2f~J!l!<iID!£Qj¡y lo,,,,aoc. Compao;es that have .lklli.B&u!liJlf~~rj)L hetter or shall meet with the approval of Ihe Owner' Statutory "Vorker's Comoensation Insurance and Employer's I 1;¡hility Insurance COvera!Ze in the amounr of $1 000.000. Commcrc1a\ General lJability Insurance includin2" BU'ilness Auromnbile Iosurance covera¥e i!l Jh.ç, ...a..!J.lQJ.!l..QÍ' S l.OOO,O()O çnrnhìned~J.i.w..i!~ sep3(3telv J2~.p.IQ.lill~...fulw premises owned...Q! rented by ArchiTect ...Yihi.tb na!11es Owner i!2.Ml Addilional Insured. aTld.J:Yhiçhis pfif"l1(1rY...lQ~~ which the Owner~ o(herwi~e~ ("Primarv Covera2"e") an¿ ~J.œalS.~ eJ11Dlovees..QÍJh~~ Applican(...ia~ same~-ªl members...QÍ..t,M 2:ener(\l~ ("Cros<;-h.1h¡lir\ Cover;J.v~") The Dollcy ~hall a!so provide for insurer's waiver of suhrovation aØ"~jn~r rh~ Owner E.J:r2.Œ. and Omissions insurance. in the-ª.!!lQ!!!lLcl $1 000 000 lml~c;s Errors and Omis~ion.s cover~le is included inJhç, {icncr;JI Liabilitv policv Architect~ d~mnn~trare..12.£22f..2Í covera'lC ~ reqlJir~d. J2!iQ.r...!2Jh£. _ commencemt'n[ of services relJulred J.LD.£kr ~ A¡zreemenl Jlx dt'livt:"ry of CertificatcsJ2f Insur;:¡nce d~mon'\tratin2"~..illl!Lfu~ indicatine: th<ltJl:l£ po!iclec;..m.a.y-.llQiJ2.:L canceled wìtholH,qT lea~t thirty (30) dav'" \vrinen "afice 10 the AddItional I.,~urerl. In order.lQ demomtrare J.h.c. ArldirinlJ.é;¡l Insured Covera'i2:C Prim;uv CoveraO'~ -ª.D..9. Cross·]îabiIJly Coveraie reQIJ¡r~d under Architect's CommE"rci;:¡] Genera! Liability Insurance ~ Architecf..Ml&l deliver -ª..J2QJ.kï cf1dors~ment jg ~ Owner d~nlons(ri1tinf same, .....-hich shall be reviewed and approved hy the Risk Manaee'r g"._ SrCCtfic Warranii~~ Aoains[ Econom¡c Intereo;tc;·. 6..rchirect warrants and re'í'rese:nts~~ Archi,cct, nor Arçhitecr~ immediatehm.i1.x mcmhers n('lf Architecr'c; em.plov£es-º!:~ ("Architect Associales") presenr1v~.ß!}y intere~t dlrcctl\'.Q':.... indireellv whrHsoeverlnlli ProDcrty..Q(~ Protect ...Q!J.n..i.O.Y Prn\1env~.2..radia1 milc:5 from the exte.rior boundafle_o;~ ProperlY ("Prohihiff':d Interest"). othe.r than as disdm¡ed in writing' to the Own(1'~ Atchitect~ wanants.:illd repre"õems.lha.Lllil prom¡se..Q.(~ e.rnçt!ovment remuneration con~Îcieration ..u.a.t..uil.Y..Q.C...Q!',.QfL rewJrd or gain hac; been made [0 Architecr or Architect Associaks in connectlOn with Architect's performdnce of this A~reerr'.ent ArchHect proml<;es...1Q advIse Own~r of any such oromise: that..!!JÆ[M..r:oASk..dY.wu the Term of Ihls J\i'reem~nl -.!1£..fuL..lZ.JJ.lQ.D.W5_ there.fler, Architect al1reec; th;¡r Archítect Associates shall DQtsCqu..ire: any such Prohibited Interest within the Term of this A!lrecment or fn!; 12 month" afru [he expiration of this Arrt'E'ment. except with the. written (Jetm¡~sion of Owner Architect may nor conducl or solicit any business for any parlv to this Aereemeot. or for any lhird party which mav he In connie( with Arçhirect's resÇ!onsibi1ities under this A2:reement. nceJ?t with the writtc:o permission of Owner. h Holti H;1fm]~,,"i' To the flll1~"r ~'Xr~nr pe.rmirr~cI hy b'.v rhe Ärr.hirrr.r ~nrl hi" r.nn<;ultanlS shall indemnify and hold hMmles,ut.:L Owner.-ª.lli! the Owner's officers. directors. partners. and emploYeesl!:2m..illl!l~..M.Y..!D£....ill~..f..Q.i!¡.~ «nd damallcs includinq rea<;onahle a(!ornev~~~ caused bv~ nellliqent~~...m omîssiono:;...o.f the Architecr..illliL AlA DOCUMENT BI41-STANDARO fORM AGREE-'IENT, 1997 EDITION, MA' COPYRIGHT 1997 ,THE AMERICAN I:'ISTITUTE Of ARCHiTeCT' J7J5 N"E\V YORK AVENUE r-,·.w., WASHINGTON, D,C 20006-.'5292. WARNI¡-';G. Un.lice':med photocopying viotn!es U_S, copyright I;¡W5 ¡:¡nd vdI5ubje;.:t !I"~ vio!;:t\Q[ JegllJ prosecution, This óQc\Jrnent W.:I,S d~ctronicalJy produced with. pcrmissicn of the AL.o\ nnd Ci:1D be re;ploduced wÎ(hQiJ( v¡oli:1tiçm untit the; dillc Qf C~plrJ'I'.:.1 ,'1 .13 nQted below. ElcClfooic Format B 14! ,199- U,er Document 93048814 LDOC u 9/24/\998. AlA r~e Number 1023~'6-:C~ </95 on 5/30/1999 n Page ;,\:. ' -- ---,_._._.~_.. -----.-- - .--.--- 3EF -2S-Si3 FE I ~ 06 PM jack son & Ry a.1 it( NO. -,' c',, l', t I :1 , ! J 'JiO ,¿ ~ consultants.Qt.l!}, officers dircctDr'i partners employees ~~ suhcon<;ulr;:lnt<>inJM. performance~ furnishing of seivices under rhj!i A¡;rr~em~n[ 1..._ Assignabilitv:_~ ~ervjces..Q[ Architecr.....a.œ pl:"r<;on;:¡1...iQ..1hG~~ Architect...iliill...!1Ql~-ª.!lYinkr.ulJll~ Áfrrrmcnt, and~.J1Q.L!rª-illig~j.DJ&@iLin~~ (whether...b.): assifoment or novation) wÎthQu[~.L~Ii~~..Q.Í.. º"=r. 1._ Independent Contractor:.~~ interested..2nlYJn~ re.<;ulto; obrained..a.n.d 4\u:hir~cr...iliaU {2crform. ft\ (In independe.nt conlr;:¡çtor with sole control of the m<l.nner and means of performinf Ihe servìc~s reauired under this A'Kreemcnt Ownu mainn!r~ 1hç, right JWlx...!2 ~..2r ~ ArchireC['s ~ prod\Jcts . Architect and -ª!lï JÚ ~ Architect's ~ ~~ .Q.L repœseotatlves are for all purpose.. under this Agreertlent. 30 mdepcndent contrac!Or and_IDalLnQ.l be d~emed to be an elTIf1!(õ'lt:e Qf~~...JlQllCJl! rhC"'m shall be entitkd ot anY henefits to which Ownt:r ~mDlov£es are entitled includinQ' hw...ll.Q.I IimHed (0 overtime r~rir~mt"nt benefits, worker's ·compe.nsarion bE"nefi[~ .lJ:Uu!:y Jeave_QL.Q!~~ t'1enefics _ Thert:fore. Owner~..!l2!.. \Vithh()ld~..m: federal.in£.wu£. tax social c;ecuriry tax or any other ravroll tax: and Architect shall bc~ respoos1hle for [he ~¡lvment of S3me and shall hold (he Owner harmless with no relZ"ard therero k.~ Aòm;nisrrRTive CI",ìms Requiremcnts..a!ld Pmcedures' _fu~Æ arbitr:ltion.1.M.llJ2ç. brouQ'h[..ß1i£ing-º.\:!.lÆ thi", Ar1recment ~ the Owner~Æ1d£i¡¡i¡¡¡.ha£Jlw been oresentedÆ.!'!!Ì!illZ~likd.lli1h the Owner and .cted=J2Llhs;~JlL accordance with the procedure1im..funhln Chapter J.34J2.flli Chula..Y.illa M1Inícipal Code...n~..mAX.fum..lim.e..1~Lli.w.c·k ~ml"nrl¡>rl thf': nrnvi..inn...!!f whir:h ;l.r~ in("orpNtlte:d bvJb..!.j referenc:e 3.0; ì~ fully Eet forth h~reìn.~~ policie~....a.nd procedure". ~d by thc Owner in the tmpleme,ntation of same: !hI2J¡~~.Q¡yna:, Architect.IDill.J!1ill.ilDl!S-QJlk¡j¡¡~.fci!!¡~ Owner for the purpose of reonlv¡n"jlJ)yJ1li¡luJ.s:-'L\'<:L the terms of this A2reement ARTICLE 1.5 COMPENSATION 1.5,1 For the Archit~ct's services as described under Article 1.4, compcosauon shall be: computed as fol1ows attëlchen hert':t0 and !TlCOrporaferl herein bv thi~ rderence: lump <::1]01 f~r. of $]45 000.00 Thi.. fr.e i.. hased on the oroi~c.{ sHe a<; de,crìhcd in paragraph 1 12'1 tinct the oroiect bud~et a<: descrìhrn in o¡1i¡u!raph [ 1,2.5 For a breakdo\vn of fee bv oha<::e rt."ference the attached Exhihit "C' 1,5,2 If the services of the Architect are changed as d~sc¡,íbed In Subparagraph 1.3.3.1. the An.:hj(ect's comp€nsacioo shall O<? adjusted, Such adjustmetH sh311 be calculated as described below or. f no method of 3dJuslmenlls indicated in this P¡ua..graph 1.5.2, 1!1 an equitab¡~ manner. (II/jut tWJ1f of C()1If{J(IJ(1{[()¡J, ul(/¡ld¡fI~ fal!!!; alld I/w((lfJlt:s of Dlr(CI PUSUr1I:tI £XPUfU fur pril'lC1pa/J ar1d ~mp!()}us. (l/Id ,d~nf¡ty PrU1C1!lU{S (lnd ,"uo;/: (!lIp/oyas, if '~4uired_ fd~lIrify specific urvlas to 'rI,'hich pa,rir;u/{/{ method; ()! cOJ¡¡ptnJOtIOII opply.) Arlinstm0ntsjn comÇ!~n'"iation~b.alLht J1egoljated~..ill!Jlli:.~~..Œ!..!M a((';\chcd Sched\l)~..Qf Hourlv ~ fF.'(h1i:n "D" 3tt?chcd) 1.5.3 For a Change in Sc(v¡ces of the Archae-el's consultan.ts. cQmpensation shall be computed a5 a mulÜple of ~..an.d..Q1lt. 1.Œ1h ( l..li2 ) times the amQunts billed to the Architect for such serVIces 1.5.4 For Reimbursable Expenses as described in Subparagraph 1 39,2. and any other Items included In Paragraph 1.5.5 as Reimbursable Expenses, Ihe compensation shall be cQmputed as a multiple of ~ and ()ne.tenth ( .LlQ) limes ¡he expcnses incurred by the Architect, and thl:.': Architect's employees and consult~nts 1Iclm approved jn.Yi.ri.1.ing.Qj: ~ Owner. tot~! r~imbursRble£Qili assoclatcdJ:Yi1hJhis. Proiect in~]l]dingJ..hg sub-cQnsultant~jQr2:illirll~..Arclli!£.ÇJls re:sDonstblc .1lliill~. ",cecd $14 500 1.5.5 Other Reimbursable Expenses. if any, are as follows No! applicable 1.5.6 The rates and mulnp1cs for serVJÇes of the Architect and the Architect's consultants as set forth in this Agre€rtJent ~hall be fixe:d for a period of twelve monlh<;;..lill1.lQ ~xc~r.d a 6% increase for any twelve monlh period from the' date of tbis A~re:ement thereafter rates m;:l"! be adjusted in accordance with their nonl1al salary reVIew practices AlA DOCUMENT B141'STANDARD FOR~1 AGREEMENT, 1997 EDIT!O~ . AlA, COrYRlGlfT 1997 ' THE AMERtC.~~ tNSTlTUTE OF ARCHITECTS, 1735 NEW YORK AVENUE ~.w,. WASHINGTON_ DC. 20006·5292 WARNING: Unhccnscd photQC'Opyjng vioJall:s I),S. copyngbt JJ.1.I.'~ J.nd will sub/cel ~h~ "io\a\OI h:got P¡QSÇCu.ÜOI1_ This dOCuffien{ WJ.3 e.lew:omcal!y produçed with permission of tho:: AfA and can ~ n:p¡oducr::d W¡I¡Ou'! v(o!ario{1 ur¡td the dJt<: or e:,pl¡;lW,r¡ a5 noted be!ow Electronic Formal B 141·1 (Yr7 User Document. 98048B 14 LDOC n 9/24/1998, AlA License Number 102361, wh¡çh exP¡¡" on 5130/1999 n Page ~ I, '* o16-.þ SEF-25-98 FRi 40'1 D~i j Jé k son & Ry Jé FAX HO. 7i< ;)R 42'1 ; . 'I ¡, ..; J..v 1" ¡ . 1.5.7 An. iaitial pa)'meDt of Zli.Q Dollars (S O,00 ) shaH be maè~ upon. e~eçatjQn of this Agree;:'1e:u éI:-:d Is the rnìniír.um paymont under this Agreement. It shaH be credited to the Owner's account at final payment. Subsequent payments for serVices shall be made monthly, and where applicable. shall be in proportion to serVJCes performod on the basis set forth in rb Agreement 1.5.8 Payments are due and payable t!liIlI' ( :ill) days from the date of the Architect's inyoice Amounts unpaid lhir!t ( 31:1' days after the invQice date shaH bear interest at [he ratc emered below, or in the absence thereof at (he legal rate prevailing fron-~ Üme tQ time at the principal place Qfbusiness of the Architect. (lnJert r(lfe cif iltfefeJI t1grut;1I.(P(I/.,j three Defcent ,?cr annum (3%) (Ustlry 1011's and fe91JIfen¡"If:r undtr/l1t Elf/f'ol Trllth 1ft Lending Act, J;milar J,,,rt Qlld /(J,'a/ C()/lJWl1t' cl'edir laws a.nd Ç/1f1u fegll{Q!iQII$ (If lh~ (þ..'lj(Y'f ((Itd Ardllteçt',¡ pn'nc;ifJal places Qf blJ.tifttss. 'he lO((ln'ml oj lh~ PmjtCl (flld el$twl:trt 1I!(l}' Offtct ¡ltt \'alìdi¡y of tlris {Jf"()viÚ<m SptC/flt· 1~8al ud\'lce sito:r/d b~ QÞrailltd with respeçl f() de(er¡Q'1S vr rT!Qdi¡ïcQ.t/·UfI:¡, õ/lld afJQ rcgardlng rtqtl,lrCI~f1f.f _fuel¡ as ¡,,'riUtIt riiJch;surc,¡ (/r waivcrs) 1.5.9 If th~ services covered by this Ag{fernent have not been completed within eiQ:hteen ( II ) months of the óare hereof, through no fault of the Architect, eÃ[eosion of the Architect's services beyond that time shall be compen.sated as provIded In Paragraph 1-5.2, !!lâ.~iLAList of t:x:hihits· Fxhibit "A" . Praiser Sehp.dulp. (1 1 26 \. Exhibit "A" ~ Ar.lrlition;¡1 r:onsu!lrmt~ (1 1 35 ). E=xhibi.t "C" - Comnensation SChAdule (1 51 ¡' Fxhibit "0" . Sr.hp.r.I"le of Hotlrlv Rates (1 52) This Agreement entered mtQ as Qf the day and year first v.rrlLlen above. O\Vr\ER(Si8!~mu"e) Citv ofChula Vista ARCHITECT (Sigl!ctt{/"() Eric Davy Archit¡;:ct:<i Bv' Shir1t:v Holton Mavor Bv' Ric f):\vv Principal (Printtd '1CI11I~ and litre,! {Printed (1/fe(l1d I(f(,) AlA DOCUMENT BI41,STANDARD FORM AGRE£~œNT' 1997 romoN, AlA, COPYRIGHT 1997 ,THE AMERICAN !)<STlTUTE OF ARCHITECTs j35 t'oI"EW YORK A VENUE 1'1 W, WASH1....CTON, D.C, 20006-.5292. WARNTj\:G: UrllJcensed photocopying violate, U.S, copyright lawl ond will ~ubje'::l tl':~ violatOr !~ga.l pros!::cution. Thi1 dOCI,J!11cnt wIn !::lect(oruc.JUy p\'Qducr-d with pemùsÜolJ. of tl1~ AlA. a{1d ca..n be reproduced W¡r.hout viola.tjon U{1ÜJ the dale of c:<plrJrl(){1 as noted below, ElectrQnic Forma[ B 141-19:)'~ User Document' 98048B 141DOC u 9/2411 998, AlA LICense J'iumber 102361. whIch e<pires on 5/30/1 999 u Page", 3 Iii b<0-~/ )Ef-2HG THe 119 PM Jac1son & Ryan FAX NO. 7J3 526 4W r. ;¡J ATTACHMENT C . Standard Form of Architect's Services: Design and Contract Administration AlA Document B141 -1997 1997 Edition - Electronic: Format This document has ift\pOrlMt legal c;ooseq\~n,e5. Consultation with an. nnomey is encouHged wj~1) respect to its compleuon or lfIodlfJc::I.!lo!'\, AUTHE~TICA.nO:--; Of THIS ELECTRONtCALL Y DRAFTED MA DOCUMENT MAYBE MADE BY USINC AlA DOCUMENT vaOl: Copyright J917, 19~6, 19.18, 1951, 19$3. J953, \961, 1963, 196ó. 1967. 1970. 1974. 1977, J987, 91997 by The Ameriç¡n l~tiM(' Q( Ard\l~çts_ RcprQdvc(jon of WI: mJ(en;¡1 herein or substantia.l quo¡atiofJ of H, provisions wìthout wntten ~rmISSJOn Qf lhc AlA vio]:l.tes the copyright laws of the United Slates "nd wjj subJt'cr (n>;! violator to legal prosc:clltion. TABLE OF ARTICLES 11If/tI( Y 2.1 PROJECT ADMINISTRATION SERVICES c)lJ¡}(IL /I, 2.2 SUPPORTING SERVICES /i/'II/ L 2.3 EVALUATION AND PLANNING SERVICES j! 2.4 DESIGN SERVICES 2,5 CONSTRUCTION PROCUREMENT SERVICES 26 CONTRACT ADMINISTRATION SERVICES 27 FACILITY OPERATION SERVICES 2.8 SCHEDULE OF SERVICES 2,9 MODIFICATIONS ARTICLE 2.1 PROJECT ADMINISTRATION SERVICES 2.1.1 The Architect shall manage the Arcbitect's services and "dmmister the ProjecL The Architect shalt con.su1t with the: Owner, research applicable design criteÜa, attend Project meetings. communìcate with mcmb~rs of the Project team and issue progres; report5 The Architect shall coordln_te the services provided by Ihe Archltccl and the Architect's consultanls with thos< services provided by the Owner and the Owner's consultants. 2.1,2 When Projcct reqUirement> have bcen sufficiently identified. lbe Alchitect shall pr<pare. and periodtcally update. a Project 5ch~duì~ that shall identjfy mi}~stonç dales for decisions required of the Owner. design services fUfmshed by the Architect, complelion of documentation provided by the Architect, commencement of construcuon ~nd Sub.~tantíal Completion of the Work. 2.1.3 The Architect shall consider the value of alternative materials, building systems and equipment. togcther wllh olher consid€rations based on program. budget and .eSlhelics in developing the design for the Project- AlA DOCUMENT B\4¡·STANDARD FORM SERV¡CES ' t997 EDITION, AlA, COPYRIGHT t997, THE AMERICAN INSTITL:TE OF ARCHITECTS. 1735 SEW YORK AVENUE N,W., WASHINGiON, D,C, :20006-5'292. WARNING: U/'ll1cl!.n~(d photocop)-¡ng viO!:He1 U,S. copyright Inw$ ;¡nd wIJl s\lbjcc! th~ v1otator tcg~ prosecution_ Thi~ document w~ eJccll-onk:<1lty producrd wiÛl pcrminion of the AlA and can be reproduced without violation unti thc date of cx.pir;¡Uon .1$ notcd ~!ow Ekc¡r('<...;~ï."'wmat B14J·199ï 11 c:2 6--V- ._________,______________ ".,___..,_.. __. ._______.___.m_' _,~___..______.,,__~__~___ 3EF-24-Jj8 THC ,co PM Jack S 0 0 ~ Ry J:'¡ F.iX HO. ;¡¡ -, ~!6 424î ¡ ¡ . L !. I j ~ ~ " 2,1.4 Upon roque't of the Owner. the Arçhitect ,hall make a presentation to e,plain the dcs'go of the Project to œpresentativcs of the Owner 2.1.5 The A.rchirecr shaH submIt deSign docum.ents to the Owncr at intervals approp(iate to the design process for purposes ot evaluation and approval by the Owner. The Architect shall be entitTed [0 rely on approvals receÎved frQJ1J the O\Vner in the further development of the design. 2,1.6 The Architect shall assist the Owner jn connection. wHh the Owner's responsibility for filio.g docunlE:.nts required [or the approval of gover.omental authorities having jurisdiction over Ihe Project 2.1.7 EVALUATION OF BUDGET AND COST OF THE WORK 2,1.7.1 Whcn the Project requirements have been sufficiently identified. the Archuect shaH prepare a prelin¡inary estimate of ¡he Cost of the Work. Thís estimate may be based Of) C\Jrrent area, volume. or similar conc.eptual estimaling techniques. As (he design process progresses through the end of the preparation of the Construction Documents, the Architect shall updlilte and refine {h~ preliminary estimate of the Cost of the 'Vork. The Architect shall advise the Owner of any adjustments to previous eSl1mates of the Cost of the Work indicated by changes În Project requirements or general market conditions. If at any time the Architect's estimate of the Cost of the \Vork exceeds the Owner's budget, th~ Architect shall make apptOpÜate recommendations to {he Owner Co adjust the ProJect's siLe, quality or budget, and the Owner shall cooperate with the Archìtect In makJt1.g such adjust moots 2.1.7.2 Evaluations of the Owner'", hllrle"t fl':!.r 'hi" PrQject, the- pr~hm.mary estimate of !he Co::>t of the \Vork and Upd""f~d estimates of the Cost of the Work prepared by the Archilect reprosent the Architect', judgment as a desigo professional famJliar with Ihe construction industry. 1t is recogolled, however, that neither the Architec( nor [he Owner has contra! Over the cost of labor. matenals or equipment, over the Contractor's methods of determining bid prices, or over compctitive blddlOg, market o( ocgotliuing condition.s_ Accordingly, the A(chitect cannot and does not WJlnnt or repre~ent that bids or ncgotiated pnces will nQt vary from tho Ownec's budget for the Project or from any estimate of the Cost of the Work or evalu.tion propared or agroed to b\ the Architect. 2.1.7.3 In preparing estimates of the Cost of the Work, the Architect sh...U be permitted to include cOT1[inge!1c¡es for design. biddíng and price esca]a¡joo; to determine what materials, equipment. component systems and typcs of construction are to be included in the Comraet Documents: to make reasonable adjustments in the scope of [h~ Project and to ¡nelude In the Contract Documents alternate bids as may be necessary to adjust the estimated Cost of the \Vork to meet the Owner's budget for the Cost of the Work. If an increase In (he Contract Sum occulring after execuÜoo of the Contract between the OWI1C( and th~ CoO([.:1c(('; caus~s the budget for the Cost of the \Vork to be excecded, tbat budget shaH be increased accordingly. 2.1.7.4 If bidding or negouanon has Dot commenced wnhin 90 days after the Architect submits the Construction Ðocumems ((J the Owncr, the budget for the Cast of the \Vork shall be adjusted to reflect c!\;mges in the general )evel of P;jcö in the construction industry 2.1.7.5 If the budget for tho Cost of Ihe Work 13 e^<eçdcd by thc lowest bona fide bid Oc nogottated propo,al, the Owner sholi .1 give written approval of an increase in the budget for the Cost of the \Vork; .2 authorile {ebidding or renegotiating of the Project wnhin a reasonable time; .3 terminate in accordance with Subparagmph 1.3.8.5; Qr .4 coopera,te in revlsmg the Project scope and quality as required to reduce the Cost of the Work. 2.1.7,6 If the Own~r chooses to procee.d under Clause 2.1.7.5.4, the Architectl without additional compensation. shall modlfy the documenls for which th~ Architect is responsible under this Agreement as necessary [0 comply w\th the budget for the Cost of the Work. The modification of such documents shaH be the limit of the Architect's responsibility under this Paragraph 2.1.7. Th~ Archltect shall be entitled to compcn:¡atJon In accordance witb this Agreement for all ~~rvices performed whether or not comtrucUQO is cornmenced AlA DOCUMENT B(4)·STANDARD FORM SERVICES - 1997 EDlnON . AlA.· COPYRIGHT 1997 - THE A."IERICAN INSTITUTE OF ARCHITECTS. l7]5 NEW YORK A. VENuE N.W., WASHINGTON. D C 20006-5292 w AR:"iI.i'SG: U1\Jìceosed phot~opying viol'les US, copyright laws and will subject the viol~.lrr l>:gi1l ?ro~ecuoo{'¡ Tb,u Quçumcnt w¡¡~ electroniclJlJy ¡;-roduced WilD pt:rminion of the AM lInd can be tepcoduced wilhout vio!;¡tion until the di1~e of eÄ.pÎcIIÒon!\~ no{~.j bdow Electronic Format B}å [-19;;7 J~ ';<6- c23 3E?-2 98 THU 1:21 PM Jackic] 1 RYJ] FAX NO. 713526 4241 ._ ARTICLE 2.2 SUPPORTING SERVICES 2.2.1 Unless specifically designated in ParagI:aph 2.8.3, g¡ or¡"erwi~e: providedin Archir~ct's~..QÍ.}YQrlLthE: services tn this Article 2.2 .shall be provlded by the Owner or the Owner's consultants and contractors. 2,2.1.1 The Owner shall furnish a program seltmg fOlth the Owner's objectives, schedule, constraints and cmma. mc1uding space requirements and relationships, special equìpment, systems and site requirements. 2.2.1.2 The Owner shall furnish surveys to describe physical characterislics, legallimital\OnS and utility location:5 for the sll~ of the Project, and a written legal description of the site. The surveys and legal infQrmation shall include, as apphc¡,be, grt:¡des ar.d lìnes of streets. alleys, pavements t!;(1d adjoining pro~rty and structurcs; adjacent drainage; flghts-of-way, restrÎctions, easements, encroachments, zoo.ing, deed ,eslIictions, boundaries and contours of the site; locations, dímen.slOns and necessary data w\th respect to existing buildings, other improvements and trees; and infQ(mation concerning available utihty services and hiles, both public aod private, a.bove and below grad~, including inverts and depths. AU the information 00 the survey shall be. referenced ':0 a Project benchmark. 2.2.1.3 The Owner shall furnish sefVlces of geolechnical engineers which may include bUI are no! limited to test bormgs, lest pIts, determinations of soil bearing values, percolation tests. evaluations of ha¿ardous materials, ground corrosion tests and resis!lvity tests, including neceS5ary operations fO{ anticipating subsoil conditions, with reports and appropriate recommeodi'ltions. ARTICLE 2.3 EVALUATION AND PLANNING SERVICES 2,3.1 The ArchitccI sball provide a prelimInary evaluation of the ¡nformatton furnished by the Owner under Ihis Agreemeot. including the Owner's p¡ogram and schedule regu¡'ernents and budget for ¡he Cost of Itte Work, each In terms of the other. The Architect shall reVICW .such infonnalÌoo {O ascertain that It is consistent with the requirements of the Pt'Ojcct Jnd shall notify the Owner of any other information or consultant services that may be reasooably needed for the Project. 2,3.2 The Architect sna!l provide a preliminary evaluation of the Owner's Site for thc ProJcct based on thc informa.cio;" provided by the OWTlcr of site conditions, and the Owner's program. schedule and budget for the Cost of the \Vork. 2.3.3 The Architect shaH review the Owner's proposed method of contracting fQr cOl1structioo services and shall notify t~e Owner of anticipated impacts ¡hac such method may have on the: Owner's program, financial and time requirements. Dnd the scooe of~e~~cct . ARTICLE 2.4 DESIGN SERVICES 2.4.1 The Architect's design service$. shall ioclude noma! structural. mechanical and electrical engmccnng serVIces 2.4.2 SCHEMATIC DESIGN DOCUMENTS 2.4.2.1 The Architect shall provide Schema!ie Design Documents based on Ihe mutually agreed· upon program, schedule, and budget for the Cost of the Work, The document, shall establish the conceptual design of the Project rlluslratllJg the ,cale "od relationship of the Project components. The Schematic Design Docume.n¡s shall mclude a conceptual site plaT]. if appropriatt:. J.nd prelimioary building plans, sections fln.d elevations At the Architect's option, the Schematic Dt::3ign. Documents may mclude study models, perspective sketches, elect(onic modeling or combinations of lhese media. P~elirninary 3elections of major huilding: sys(cms and con5tructlon tn3tena1s shall be noted on the drawings Of described ín wriling. 2.4.3 DESIGN DEVELOPMENT DOCUMENTS 2.4.3.1 The Architect shall provide Design Developmcnl Docun,en!s based on Ihe approved Schematic DeSign Documents ond updated budget for the Cost of the Work. The Design Development Documents shall illustrace and describe the refinement of !~e design of the Project, establishmg the SCQpe:, relationships, forms, slle and appearance of the: Project by means of plans, sectìor.5 and elevations. typical conSlructÎon dclails, and equipment layouts. The DCSlgO Dt::velopment Documents sh¡¡,lI Include speciftcations that identify major materials and systems and establish in general their quality levels AlA DOCUMENT Bt41,STANDARD FORM SERVtCES, 1997 EDITION, AlA, COPYRIGHT 1997 . THE AMERICAN INSTITUTE OF ARC¡lITECTS. 1735 NEW YORK A VENUE i'/W . WASHINGTOr-:. D.c' 20006·5292. WARN1NQ: Vnliccn.scd pholoçopying vjohltes U.S. copyright laws:md wHl sUb,iccllhe VlolJtor leglll pros~c\Jttol1. ThIS document wcs ele.;;tronÎc;:JHy produ<::ed with pwmss!o!1. of thc AlA òlnd .;;an be reproduced without violalion untillhe date uf e~pirahon J~ r.otd bdQw Electrooic Format BI41-199" Jq ~0-~1 \e - --.... ...- -- -'-'-'-~'-----"----~-~-'-~-'-'-'" --------~ 3E2-24-38 TjC 1.22 PM Jack son & Rya 1 ? AX NO. 713 526 4241 ' ' ! j 2.4.4 CONSTRUCTION DOCUMENTS 2.4.4.1 The Archi!ec! shall provide Consuuctlon Doc"men!s based on the approved Design Development Doc"ment, end "pdat<d b"dgd for !he COS! of the Work The Con,tr"ction Documents shall set forth !D detail the requirements for construction of the Project. The Construction Documents shall include Dnnvings and SpecifIcations th?-t establish In detail the qt,slity levels of materials and systems required foe the Project 2.4.4.2 During the development of the Construction Documents. the Architect shall assist the Owner in the development ~nd prep3H\tion of: (1) bidding and procurement joformalion which descnbes the tlm.e, plac~ and condìtiot1s of biddin.g: biddw.g or proposal forms; and the foem of agreement bctween the Owne.r and the Contractor; and (2) the Conditions of the Contract far Construction (General, Supplementary and other Conditions) The Architect also shan compik the Project ~1anual that incl\Jd~s the Conditions of the Contract for COfJ.structioß and SpecÜicatlons and may wçlude bidding requirements and sample. forms ARTICLE 2.5 CONSTRUCTION PROCUREMENT SERVICES 2,5,1 The Archilect shall assist the Owner in obtaining either compclt[¡ve bids Or negotiated proposals and shall ,",sist the Owner in awarding an.d preparing contraclS for construction. 2,5.2 The Architect shall assist the Owner in estabhshlng a list of prospective bidders or contractors, 2,5,3 The Architec! shall aSSISt the Owner in bid vahdauon or proposal evaluation and determInation of the s"ccessful bid or proposal. \f an.y. If requested by (he Owner, the Archicect shall noufy all prospc-ctiv~ bidders or contraç(Qr.5 of the bId or propOS<l~ results 2.5.4 COMPETITIVE BIDDING 2.5-4.1 Bidding Documents .shall consist of bidding reqUlrements, proposed contract forms. GCT1eHIi Conditions a:1d Supplementary Condi[¡ons. Specifications and Drawings. 2.5,4.2 If requested by the Owner. the Architect shaJl arrange for procuring lhe reproducllon of BIddIng Document, for distribution to prospective bidders, The Owner shall pay directly for the cost of reproduction or shall reimburse the Architect for such expenses. 2.5.4.3 If requested by the OWl1er, the Architect shall distribute' the Btddiog Documents to pro~pcctlvc bIdden and reque,t th;:.i¡ rerurn upon completlon of the blddmg process_ The Architect shall maintain a log of distribution and retrieval. and the ~mount5 of deposits. if any, received from and returned to prospecti....e bidders 2.5.4.4 The Architect shall consider reque.sts for substitutjons, jf permitted by the BIdding Documents. and shall prepare znd dmribute addenda ldcntifying app(oved substitutions to a!1 prospective bidders. 2.5.4.5 The Architect shall pamcipate in or, at the O\Vner's dUeCtlQO, st1:111 orgAnjze and conduct a pre·bid c(H1.fere:nce fç~ prospectIve bidders 2.5.4.6 The Archnect shall prepare responses [0 queslions from prospective bidders and provide clarificarions and interpretations of the Bìdding Documents to all prospective bidders in [he form of addenda, 2.5.4.7 The ArchHect shall participate in or, at the Owner's d\rection, shall organize and conduce (he opening of the bids The A(ch;leC! sholl subsequently document and d;slribute tho bidding results, as dlfected by the Owner. 2,5,5 NEGOTIÄTED PROPOSALS 2.5.5.1 Proposal Documents ~halJ cOtlsist of proposal requ1femeo.ts, proposed contract forms, General Concl\tJOlls "r.d Supplementary Conditions, SpeClficotlons and Drawings. 2.5,5,2 If requested by the Owner, the Archllec! shaU arrange for procunng lhe reprod"ction of Proposal Documenrs ío( distribution to prospecÜve contractors. The Owner shall pay directly for [he cost of reproduçtiol1 or shalt reimburse the Archuc;:t fo( such expenses. 2.5.5,3 If requested by the Owner, the Architect sh:\1l organize and participare in selection intervi~ws with prospectjve AlA DOCUMENT BI4j·STANDARD FORM SERVICES - L977 EDITIO¡-¡ . AlA· COPYRIGHT 1997 - THE A,.'\1eRICA..N [NSTlTUTE OF ARCHlTECTS, 17:5 :"JEW YOR,l< A VENUE N_W.. WASHINGTON. 0 C 20006·5291.. WARNING. Unlìcensed pho{ocopyint VlO!J,tt:S U.S. çopyd¡ht b.ws and will ,ubJcc! th~ v\ol~!Qr legal prosecution. This documen.t waS elecuonic;:¡lly produced wHtt pc:.Tl1lHtOn of ¡he AlA and C'l.í\ be rc:producc:¡j Without viola-lion uno! 'he do.!c: 1.)[ e~p\ril!Jon ,J"! r.rm:d below Electroniç F0rrna{ B J41-19~i7 ~D ~~-» SEP-2H8 THU I: 23 PM j::JCkso) , ~yn FA( NO. 713 526 WI : 1 u \ .- 2.5.5.4 The Architect shall consider requests for subslilUtions, if pc(niued by the Proposal Documents, and shall prepare and distribute addenda identifying approved substitutions to 1'111 prospective contractors. 2.5.5.5 If rcquested by the Owner, the Architect shall assist the Owner during negotia.tions with prospective conlractor$ The Architect shall substqucntly prepare a :¡¡ommary report of the negotiation results, as directed by the Owner. ARTICLE 2-6 CONTRACT ADMINISTRATION SERVICES 2,6.1 GENERAL ADMINISTRATION 2.6.1.1 The Architect shall provide administratIon. of the Contracr bctween the OW1er and the Contractor as set fonh below and in the edition of AlA Document A201, General Cond,tlo", of the Contract for Consrruction. current as of the date of th!5 Agreement Modifications made to the General Conditio",. when adopted as part of Ihe Contract Documents, shall be enforceable under this Agreement on1y to the extent that they are- consistent wtLh this A.greement Of i:lpproved in writing by the Architect. 2.6.1.2 The Architect's re-sponsibílíty to provide the Contract Administration Services under thtS Agreement commences WHh the award of the initial Contract for Coo.struclion and terminares at the issuance to the Own.er of the final Certificate: for PaymeDt. However. tbe An:hi[ect shall be enÚtled to a Change in Services in accordance with Paragcaph 2.8.2 when.. Contr;¡ct Administration Services extend 60 days after the date of Substantial Completion of the Work. 2.6.1.3 The Architect :shall be a representatIve of and shall advise and consult \\'tth the Owner during the provision of the Conir,ct Administration Services, The Architect ,hall have aUlhonty to act on behalf of the Owner only to the e.\len[ proVIded tr. this Agreemertt unless otherwise modified by writte.n amendment. 2.6.1.4 Duties, tesponsibilíties and lu::nitalions of authority of the Archjtect uodozr this Anicle 2.6 shall not be res[ricted, ß10dìfied or extended without wntten ;:I.greeroe:nt of the O\\'oer aod Architec[..-wttft~-m-~ CvutH,...tÔI,-whteft~~ ..ôt be. I;:Ih..eaJ6fldbl) ..~(I¡l,...ld. 2,6,1,5 The Architect shill! reVl<:.W properly prepared, timely r!:quests by the Contractor for additional information about the Con.lract Documents. A properly prepared request for addilional information about the Cont((lct Documents shall be 10 a fQ(ffi prepared or appro,,'ed by the Architect and shan mclude a detailed wrÎnen sratemcnt that indicates the specific Drawings ~!r SpecÎficalions in need of clarification and the nature of the Çi\ri.fjcation requested. 2.6.1.6 If deemed appropnate by the Architect, the Archltcct shall 00 the Owner's behalf prepare, reproduce ar:.d distribute supplemental Drawings and SpeC¡ftcalloO'S in response 10 requests for information by the Contractor. 2,6.1.7 The Architect shall mterpfet aod decide mattcrs cor:¡cerrÜng performance of the Owner and Contractor under, and requiremcots of. the Conlract Documeots on written request of either the Owner or Contractor. The Architect's response to 5uch re-qucsts shall be mude in writing within any time hmils agreed upon or Qtherwise with reasonable promptness. 2.6,1,8 InterpretatIons and deCl5(ons of the Archllcct sha11 be consistent with lhc intent of and reasonably Inferab!e from thl." Contract Documents and sh¿¡lI be In wnting or in the form of drawings. When making such iJ1terpretalions and initial d~ci:sjons. the Architect shall endeavor to secure fa\thful performance by b;,tl. 0"1\'" 5115. Comractor~, 3L....ll '...vt "ne... p~Jtíalit) t::; ~~l\.,,~, [. ,-..; "tHOU JIM be habk fer tb~ ..."..It~ of il'lt(..lpr',[\tl....l\~ v. åai:!Íõlu 30 r,nè~.....d;u ~ôðd fait:.. 2.6.1.9 The Architect shaH reode¡: lrutial decisIOns on claims, disputes or other maUers in question bctl.veen the Owner and Contrm;lor as provided in the Contract Documents. IIa..e,e,. ',f,,, .\r~hiteet'3 à~Ú;;îe>u... vu ,,,,,It.:..J .~lati!'lg t~ n"'-1l1,....t:... ¿ff~et~ 's.;: f("...1 ~f ...ò¡.:¡;.H<r1l .. ith tl...... ~.,k·ht ¿:)(".eJ3ee An th.... Côf\tr...¿:t DðC1j.u...;¡t~. 2.6,2 EVALUATIONS OFTHE WORK 2.6.2.1 The Architect, as a representatIve of the OWl1cr, shaH visit the site at \nt~rvals appropriate to the: ~tage of the Coatr1'!.ctor's Qpe(aÜons, or as olherwi:se agreed by the Owner and the Architect in Article 2.8, (1) to become gene(Ctlly f¡)mi1iar wIth an.d to keep [he Owner ¡nformed ,bout the progrcss .~d quality of rhe portion of ¡he Work completed, (2) to cndeavor 10 guard Ihe Owner agaÎnst defects and deficiencies in the Work, and (3) to determine in general if the \Vork is beíng pClfoHI1ed in a mann.::r indicating that the Work, when fully compltted, will be m accordance with the Contract Documents. However, the Archit€ct sh<ì\l not be required to make exhaustive or contInuOUS on-SHe It1spections [0 check the quality or quantity of the Work. The Archiíecr AlA WCUMENT B 14 I ,STAND,<RD FORM SERVICES, 1997 EDITION, AlA, COPYRIGHT 199J ' THE AMERICAN I~SnTUTE OF ARCHtTECTS. 17'.' NEW YORK A Vf,.II.UE N,W" WASHINGTON, D,C. 20006-5292. W ARNINO: Unlicenscd photocopying viol,1tcs V.S- CQpyright laws Jnd will s\lbj~CI r.he vto\:1[()[ leg;!! prosccution_ Thi~ documem wa,s cleclronicnlly Pfoduc~d witb pcrrninJon of ¡t1e ALA. and l¡H1 be tt':ptod\lc~d without violatiQn uf1{illôe dQt~ Qf expiration 3S !1D(~J below EleClfOnicFounat B141-t99ï ,. ;ll cX~ - .:¿~ -_...._.._.._"~._._..__.._..._._.--..~. -- .~..__.__._..~-_. _.. --.-.--'- ------~------~-,,- ~-~._------ 3ìP-24-9: THU 1:24 PM JacksG,] & R¡a] FA:( NO. 713 526 WI :' .- shall neithec have control ovcr ox charge of. nor be responsible for, the consuuction means, methods, techniques. Sc.qur::r1ces Of procedures. or fOT safety precautions and programs in connection with the Work. since thc~~ ace solely the Contractor's fights and responsibilities under {he Contrllct Documents. 2.6.2,2 The Architeçt shall report to the Owner k('lown deviations from the Contract Documents and from the most recent construclÌon schedule submittod by the Contractor However, the Architect shall not be responsible for the Contractor's f,ilure (0 perform the Work in accordance with the requirements of the Contract Documents. The Architect shall be responsible for th~ Architect's negtigent acts or omissions, but shall not have control over or charge of and shan not be responsible for acts Qr olllissions of the Contractor, Subcontractors, or their ageJ1ts or employce..5, or of any other pcrsoos or en{{es performing pOI[¡Qn~ ot the Work, 2.6.2.3 The Architect shaH at all times have access to the Work where.ver it is in preparation 0(' progress. 2.6.2.4 Ex.cept as Qthe(wise provided in this Agreement or when direct communications have been specially aUlhom:e.d, the Owner shall endeavor to communicate with the Contractor through the Architect about matters arising out of or relating to the COQlr~ct Documents. Communications by and with the: Architect's consultants shall be through the Architect. 2.6.2.5 The Architect shall have authority. ~tlhiect To reasonabJe 2pproval of Ihe Owner to reject Work that does not conform to the Contract Documents. Whenever the Architect cons,d~{S It necessary or advisable, the Arçhirect wit! have authority to requIre inspeclJon or tesÜng of the \Vork in accordance wilh the proV1slon.S of the COnlract Documents, whethcr or not such \Vork is fabricated, installed or completed_ However, neithcr this <,uthonty of th~ Architect nor a dccision made in good faith either !q exucise or not to e~ercise such authority shall give Üse to a duty or respoflsibi1i(y of the Architect to the Contractor. Subconltacrors, material and equipment suppliers. their agen~ or employees or other persons or entÎtles performing pomon~ of (he Work 2.6.3 CERTIFICATION OF PAYMENTS TO CONTRACTOR 2.5.3.1 The ArchItect shall revìew wi1h ~...QJx reoresr.ntative _a!1d certify the. amounts due th~ Con.tractor and shall IS.5m:: CerÜ[¡cates for Payment in such amountS. The Architect's certification for payment shall constitute a representatIOn to the O\vner, based on the Architect's evaLuation of the Work as provided in Paragraph 2.6-2 a.nd on the data compnsing the Coottacro(s App!¡cahon for Payment, that the Work has. progressed to the pOint lI1.dicated and that, to the best of the Architect's kno\vLedge, Joformatlon and belief, the quality of the \Vork is in accordance with the Contract Documents. The foregoing re:pre~!:':nt3tjon.s Jr:: subject m-to"'ltft' ......l...[.¡;õ,,~--ffte..worff-fm ..vHfv.....:..1eð~-ffie Cefttract DV......W,"Hl~""I:tpeft Stlb3WJ.t:a] Cf,h,pktiö~.-R-t to results of s.ubsequent tests and Inspections, f37 (0 correction of minor deviations from the Cootra¡;r Documents prior tCl completion, and (4) to specific quahflcallons expressed by the Architect. 2.6.3.2 The issuance of a Certificate for Payment shall not be a represeOlatlon that the Archileçt has (J) made exhaus(\\e 0: con.linuou~ on-site inspections to check the quality or quanrity of {he 'Work, (2) reviewed conslIuctíon m~ans, methods, techniques, sequences or procedures, (3) ~J.Q.~ exrent req\Jf'Ii{,,¡ by Owner )"t~viewed copies of requisitions r~c~Jved from Subçontractors <'tld malenal suppliers and other data requ~sted by the Owner to substantiate the CQntrac(or's right to p3yrtl€;1(. or (4) ascertained how or for what purpose the Contractor h~s used money previously paid 011 account of the Conlr(lÇt Sum 2.6.3.3 The Architect shall maIntain a record of th~ Cootractor's Applications for Payment. 2.6.4 SUBMITTALS 2.6.4.1 The Architect shall reVICW aod approve or take other appropriate action upon the Contractor's submiuals such as ShIJp Dlawings, Product Data and Samples, but only for the limited purpose of checking for conformance wIth mfounation gtven aDd the des:ign concept e~pressed in the Contract Documents. The Architect's <]ctíon sl1al1 b~ taken with such reasonable promptnes~ as to cause no delay in the WOlk or ¡o the acttVIUes of tht Owner, Contractor or separate contractors, while allowIng :)uffici~;,( time in the Architect's professional judgment to permit adequate review_ Review of such submittals is nOI conducted for the purpose of deœrmjning the accuracy and completenes.s of otþer details such as dirnen.5iol1s and quantities, or for substaoUall.t1g instructions for installation or performance of equipment or syst~rn.5, all of which remain the responsibility of the Con{r~ctQ( 3.5 required by the Contract Documents, The Architecl's review shall oot constitute approval of safety prEcautions or, ur¡lcs~ otherwise specifically stated by the Architect, of any constructIon means, {11c-thods, techniques, sequences or proçedur~s Tho: Archi(ect's approval of a specific item shaH not indie¡,te approval of a{1 a5~emblyof whjch Ihe item is a component. AlA DOCUM£NT BI4 (.STANDARD FORM SERVICES, 1997 EDtTIOi'i, "lA, COPYRIGHT 1997 ,THE AMERICAN tNSTlTUTE OF ARCHITECTS, 17'5 NEW YORK A vENUE N.W., WASH1(':GTON, D,C. 20006-S292_ WAR~INO Unliceilsed phOfocOpyÎl1g violares U.S, copyrigtJlluw:'ó ilnd will subJcc!!he YIO¡~{('( legal prosecutlOll_ Thi, docu¡n(n( WI).:S e!eclroniC;¡Uy produced with permission. of lhe AlA and can be t1:p(oduced without v\olntjQn unfillhe date of c,\pirulion..~ netd bc:\ow Elec(ronic Fonnat ß 141·1997 ~~ .;;. t -,J.. '1 "¡;- .; 1 ;,~ '''H:' 1 . 25 PM J a c k son & Rya1 ?AX ¡'W. 713 526 4241 lJ Lr-i"-~', tel 2.6.4.2 The Architect shalt maintain a record of submitta.ts· and copies of submittals supplied by ¡he Contractor in accordance "'lith the requirements of the Contract Docum~nts. 2.6.4.3 If professional desìgn .services or certifiçarions by a design professional related to sy~!ems. materials or equipment are specifically required of the Conuactor by the Contract Documents, the Architect shaH specify app{opriate performan.ce and design criteria that such services must 5oatisfy, Shop Drawings and other submittals related to Ihe Work designed or certified by the design professional retained hy the Contractor shall bear such professional's written approval when submitted to the Architect The Architect shall be entitled to rely upon the adequacy. accuracy and completeness of the services. certifications or approvals performed by .such design professionals. 2,6,5 CHANGES IN THE WORK 2.6.5.1 The Architect shall prepare Change Orders and Construction Change Directives tor the Owner's approval and execution in accordance wíth the Contract Documents. The Architect may authorizt: minor change.s in the \Vork nOI involving an l1djuslm~nt in Contract Sum or an extension of the Contract Tim~ which are: consistent with the iotent of the. Contrõ1ct Documents. If necessary, the Architect shall prepare, reproduce and distribute Drawings and Speèif¡cations to describe Work to be added, deleted or modified, as provided in Pfllsgraph 2.8.2. 2.6,5.2 The Architect shall review properly prepared. timely reque'" by the Owner nr COntractor for changes In the Work, including adjustments to the Contract Sum or Contract Time. A properly prepared request for a change in the Work shaH be accompanied by sufficieflt $lJpporting data and information to permit the Architect to make a reasonable determination withQut extensive investigation or preparaÜon of additional drawings or specificarions. If the Architect determines that requested chanO'cs in the Work are not materialiy different from the cequirements of the Contract Documents, and win not cause 3n adílJ'<;tm~1t in 7he- contr¡:¡c( rime or contract sum the Architect may is.sue an order for a minor change in the:: \-Vork Or recommend [0 [h~ Owner that the requested change b. denied. 2,6.5,3 If the Arcbitect detennines that implementation of the requested changes would result in a material change to the Contract that may cause an adjustment if'\. the çontJ'act Time or COrJ.tract Sum. the Architect sha.lI make a recommendation (Q the Owner, who may authorize ftlrther inve.stigation of .such change. Upon such authorization, and ba:sed upon information fumished by th~ Contractor, if aoy. tbe Architect shall estimate the additional cost and time Ihat might result froro such change. includIng any additional cost, attributable to a Change in Services of the Architect. With the Owner's approval. the Architect shaH incorporare those estjmates into a Change Order or other appropriate documentatioo faT the Owner's execution Or negotiation wi¡h the Contractor- 2.6.5.4 The:: An;;hitect shall maintain records relative to changes in the \-York. 2.6.6 PROJECT COMPLETION 2,6.6.1 The Architect shall conduct inspections to determine the date or dates of Substantial Completion and the date of final cQmpletion. shall receive from the Contractor and forward to the Own.er. for tbe Ownc.('s review and records, wriuen warranties and rdate:d documems required by the Coötract Documents and as:sembled by the Contractor, and shall issue B fLoat Certificate [(lr Payment based lIpon 3 final inspection indicating the- \Vork complies with the requirements of tbe Contract Documents. 2.6.6.2 The Architect's inspection shalJ be con.ducted with the Owner's Designated Repcesenr31ive (0 check conFormance of the \Vork wíth the requirements of the COJ'\trsct Documents and to verify t.he accuracy an.d completeness of the list submitted by the Contractor of Work (0 be compteted or conected. 2.6,6.3 When the Wor\( is found to be substantially complete, the Architect shaB inform the Owner about the balance of the Conttac't Sum remaining to be paid the CO(1tcactor, including any amounts needed to pay for final completion or correction of the Work. 2.6.6,4 The Architect shall receive from the Contractor and forward to tbe Owner: (1) Cooseot of surety or sureties. if any. to reduction in or partial release of retainage or the maIGng of final payment and (2) affidavits, receipts. releases and waivers of liens or bonds. iJ1.de.rnnifying the Ownt( against Ii~ns_ ARTICLE 2.7 FACILITY OPERATION SERVICES AL~ DOCUMENT SI.l,ST^NDARD FORM SERVICES, 1997 EDITION· AlA· COPYRtGH~ )997 . THE AMERIC,,"" (;>ISTITUTE OF ^RCHtTECTS. 1735 NEW YORK A VENUE N,W.. WASHING10t'i, D.C. 20006·5292, WARN1.NG: Un1ictosed photocopying ..iol;l!C:s U.S. copyri:hc\aw$ and willlubject Ihe violator kgQ.\ pro~Cul¡Qn ThÎ$ document W!1S el~ClronjCJHy produced with p(fJni~sion of Ihe AlA ol1d can be reprodu.ced without viOIJUOn until t~ date of expiration a~ no¡e-d below. Electronic Format B141·1997 :1..3 ~ 6 -,tI.8 .-..,. ..... ----,~._-~._---_.-.-__._..- ------." ,.-.--,-,-- ---.-----.. ---~._--"-~~_._~---_. 3EF-2H8?HG 1.2? PM Jackson & RYJQ FAX ¡...¡o, °1' ~)6'241 e :"'7 I j j J... 't 2.7.1 The Architect shall mect w\th the Owner or the Owner's Designated Representative prQmptly after Subst;,.r.tial Completion to review the need for racil¡¡y operalion services. 2.7.2 Upon rcque:5t of the Owner. and prior to the ex.piration of one year from the date of Substantial Completion, the Architect :shall conduct a meeting with [he Owner and [he Owner's Dcsignated Representative to review the facihty operations and performance an.d to make appropriate recommendations to the Owner. ARTICLE 2.8 SCHEDULE OF SERVICES 2.8.1 Design and Contraç, Adminis!Iatlon Servl<es beyond the following limits shall be provided by the Arch¡¡cç, as a Chang' in Services in accordance with Paragrapb 1.3.3: .1 up to ~ (1 ) reviews of each Sbop Drawing. Product Data lIem, sample and similar Subl)ulta¡ of 'he Contrac:Qr ,2 upto~ (l...G. ) visits to the sÎte by the Architect over the duratIOo of the Project dunng construction. .3 up to three (:i ) inspcctioos for any ponion of the Work to determine wh~ther such portion of the Work IS sub:>tC\otially complete in accordance with the requuements of the Cootrac[ Documents .4 up to!hJE (¿ ) inspecuons for any portion of the Work to determine final completion. 2.8.2 The foHowing Desigo and Contract Administration SerVlccs shall be provided by the ArchJtect a~ a Change m SCfYICCS i:1 accordance with Paragraph 1.3.3: ,1 reView of a Contr>ctor', ,ubmitta¡ out of sequence from the ,ubmittal ,cbedule .greed to by lhe Architect: ,2 rqvuJA:::.q lV till: CvUl~<1",lvl':) I~qu~.sb ivr informatIOn whcrc .su,;h mformdtlQ) !) ~Vdl1dbl\: to the Contr.:1ctor from " careful study and ,comparison of the Contract Documents, field conditions, other Owner-provided m.fOlO1atJon Contractor-prepared coo,¡:dlOatioo drawings, or prior Project corr~spondence or documematlon; .3 Change Orders and ConstructIon Change Directive.s requiring evaluation of proposals, including the pr€paraÜclI r~. revision of Instruments of Service; -4 providing consu\lation concerning replacement of \Vork resulting from flre or other cause dunng constn.:ct!on.: .5 evaluation of an e,x.,tensivc number of claims submitted by the Owner!s con.'mltants, the Contractor or othe,rs 01 connection wi!h the 'Nork; .6 evaluatIon of substltutlOn.S proposed by the Owner's consultants or Conlraclors and mak.ing subsequent re\·¡si0n5 :0 Insrruments of Service resulting therefrom; .7 preparatIon of design. and documentation for alternate bid o,¡: proposal requests proposed by the Own.:r; or .8 Contract AdmioisLralion Services provided 60 days after the date of Substantial Completion of the \Vork 2,8.3 The Architect shall furnish or provide the following services only if specIfically designated: Services Responsibility Location of Service (Arc{¡¡ftCI, O¡"l1trQT Nal Pr(widtd) Description ¡ Programming Arch¡tcctlOwne,( ,2 L.and Survey Services ~ 3 Geotech nical Services ~ .4 Sp~ce SchcmaticslFlow Diagram~ ArchItect AlA DOCUMENT BI41-STANDARD FORM SERVtCES, 1997 EDlTION ,AlA - COPYRIGHT 1991 ,Tf1E AMERICAN INSTIIUIE OF ARCHITECTS tF' NEW YORK AVENUE N.W., WASHI:-Iú1'ON, D,C. 20006-5291, WARNING: Unhcensed photocopymg violQ(es US, \:QPyright taws J.nd will subj\:cl !he: viol;!;", Ic:gal prosec1Jtlon. ThIs doc\lm\tn.t was electronically productd wH~ J:<tITìi~:),ion of the AlA an.d Cðn be reproduced wi~hout viohuion Unlit tl,c d~tc: of CxpUiJ.!lçn ~ nc:~d bcbw EI(:C(fOO!C FQ~mat B ] ~ 1-1 Ç97 ~lf d6 - ~'1 SEF-24-98 THC ¡.27 PM J a c k son & Ryan FAX NO. 7i3 526 4241 P. 1:' 5 E~j5tìC\g F4'cilities Surveys Q;ïoo; 6 Economic Fea.sibility Stl(Vey Not Provided 7 Site Analysis and Selectton Owner ,8 Environmental Studies and Reports º= .9 Owner Supplied Dara Coordination Not Provided .)0 Scnedule Development and Monitoring Archilect ,II Civil Design Archilect .12 Landscape DCSlgn Architect -13 Interior Design Architect -14 SpeCIal Bidding or Negotiation Architect .IS Value Analysis Architect .16 Detailed Cosr Estimating ArchItcct ,J7 On·Site Project Representation Archl!ect ,18 Construction Management NOI Provided .19 Start~up Assistance Nor Provided .20 Record Drawings Architect ,21 Post-Contract Evaluation Not Provided .22 Tenant-Related Service.s NOI PlOvided .23 .24 .25 Dcscripliol1 of Services_ (J1!5UI d€SCnpfl(I/IS QI tht ¡trvices duignaNd.j ARTICLE 2.9 MODI FICA TIONS 2.9.1 MQdifica(iQQS to this Standard Form of Architecl's Serv1ces' De~ign and Contr<tct Administratioo', if any, an:: as follows· By its execution, this Standard Form of Archìtec['s Services: Design and COJ1t(~ct Administration and modifications herew are JJ1corporated Into the Standard Form of Agreement Between the Owner and Architect, AlA. Document 8141-1997, that W<1'5 entered inw by the panics as of the dC\te: O\VNER (Sign<1t\JrI:J Citv !)f Ch¡'¡!1;I VI~ri1 ARCHITECT (51gl'\:l!Ure) Ene D~vf.v Aõchi!cc!s Bv' Shirl~v Horl('ln M¡n'or Rv Ri~ D;H'~v Princinrtl ¡PlÌ.nt~d nan'le and title) (Printed n,'me .1t1d title) AlA DOCUMENT BI4I'STAI"DA~D FORM SERVICES, 1997 EDITION, AlA - COPY~IGHT 1997, THE A~!ERICAN INSTtTUTE OF A!\CHlTECTS. 17JS NEW YORK A.VENUE N.W" WASHINGTON, Q,C. 20006.$,92.. WA.,RNTNG: Unlicemed photocopying violates U.S· copyligbt I;¡ws and will sùbicç{ (('.<t: viiolo.tortQ legal p(osecu!.Ior\. 1tm docuJ11,cJ'\t Wi1J elemonic~1!y produced wilh permission of {he AlA IInd can be reproduced wlchoUt vio1a((,)n until the di1t..: "f e;..piUliQn D~ noted bdow. EJcctmnic Format B 141-1997 ~5 d?~-3() 3~f-24-98 THC l:lb PM Jackson & RYI! fAX NO, 713 526 4241 I? 00 ~ '" P, ~ ~ ~ 0' - I ,I ¡ 8 t ¿ i ð ~ \ > o z I 2 g '" ! I ~ : ! 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E .:; - tEE ... ~'"8 "";z. - v ;¡ I-o~ UE~EOt o=Uë:;:t"'''"5o'~<;!:e1~C<ooZo-::::£~Ü,~Oc 1..0 _~ ~ ~ ~ ~ ~ _ ~ ~ .~ 0 .~ ~ ~ ~ ~ ~ ~ ~. ~ ~ co ; '" ~,';,. iJ '; æ ~ ~ ~ ~ t; t :;9> ~ ~ ~ ;¡ g -5 ~ "Q v ~ z "5 .... c ~ 'tI '8 ." CI:': QI. "" a: ~ 0 -0 'Q Z ~ "Q --;;¡ 0 ,... 0 § 0 x~ ... <: :;. It I- .( U ¡;¡:¡ .t ~ ~ .( ~ ~ u ¡¡:¡ u ;:, a 0 0 0 ~ u Q5 ¡¡¡; é' ~ cñ > v ~ u c.. ~' x:2 -. ..~.~.. ·'·0· o.~···o··· ;.3.0 ~ 0 u.= v JJo ~6-3/ '¡¡f-7H8 THe 1.29 PM Jack S 0 0 & Ry 11 FAX NO. 7i3 525 4241 ;)... ........' 1 . él; JACKSON & RYAN ARCHITECTS EXflI81T ß PROJECT DIRECTORY 9/13/95 RA Project 98048 Chula VISta Animal Shelter Chula Vista, CA StructuI~1 E(\gin~er Deardorff &. De;\rdorff 1342 MaiJ1 Street, Suite 6 Ramona, CA 92065 Voice Fax e-mail H<>.rry Deardorff 760-788-7495 760,788·7783 Civil Engineer Winton Engîxwedng 340 16th Street Su.He 200 San Diego. CA 92\01,7606 fax Voice e-mail Guy Winton 619,696-8955 619,696·8959 !'víechanic.al Fashar.di & Associates 135 Live(pool Drive Suite A CMdlff. CA 92007 Voice Fax e-mail Tony Fashandi 760·944,7073 760,753-4158 Eledrical Nûtter £!ectrica1 Design 401 West A Slreel SUIte 1200 San Diego. CA 92\01 F., ~·mo1.i1 Voice David Nutter 6\9,615,6566 61%15·6569 Landscape Architect Environs 4623 BJ"ckfQot Aver\Ue San Diego, CA 92\17 Voic~ Fax e-ma.il Martin Schmidt 619,275·3003 619,275,3083 2370 RICE BOULEV^,D 5um 210 HOUSTON TEXAS 71005 713,526,5436 FAX 713,526-4241 ~7 0'< 6 - .3J/ --..---- .-- ,--~..._------_._._--_.._._-------_.-.._~ ...-.. --.. -_._----"~-_.._--_.~._.. .--.-- _...._"'_..-._----_._~_..- 3£?-24-133 TEe 129 PM Jack son & Rya D FAX NO. ~'3 ~,ì6 .1)41 , I . ~_ 't_ '. ~. ~ " " .:2 " ?: Ü 0 .5 ~ <n " " c C :; 0 -0 V o~ <) " " ]]oiJ ö -" <n U o..a.o~ " VJ E E;" -" c: g 8 § § P- " co E ~~<;)VJ ... >, 88~," .£ OJ " c.. _......t(') >.. a fi .'" " " <n a " E " P- ~ E 0 u 0 " µJ 0000 0 -5 :I:: \f1001.lì 0 8 u " ("J~o_qr---.. o. -0 [/) ¡f \00'100- '" " ~ ~NV"':IC"\I -.;- W ~ " U' ;4 ~~ " ¡,.. " - .D ~ <:- Õ - " ::t ~r--: X z~ " '" ¡.¡ O~ Ol) -" OJ ~~~~~ ~ <n ~o c: ~8 ViOOI.(') -0 " 0 c: . NN..q-- 0 " <0 - ~~ (5 " u-" c.. ~ iJ"" ~ <n -"-0 .g c,'- " '" 0 0 >'''' " 0 U E ,,~ 00 ... '" " " -o~ ~ " u -0 ".!J " ",.- v;-ª "-,, 'E~ ...:'= ~¡¡ ~ ~S ~~- 8"8 ~~oo§ " " 2;-..... ~~ âS ~~ ~ '-:t c: ~ Ep. ~"'" -.;- c: a,:: 00 u~ '-" U ::":J.- ~" c:: E u E au .~ 8"8 ~ c::;'::: -0 ~ïü~o -¡;c: > 0 a -''OJ <) (1)-"::";:; "'-0 '..=0 u u ..J ~" "C:s .5 ~ " <: ~ <n " 5 bO V'J '/J .- <n <n .- c: 0;:: E-- -".- OJ ...c::~oo 0 ~ ~ -" c.. ~QUU ;-. <..:: ~~ ó(6-J3 3Er-2H8 ne 130 PM J a c k S D n & RYa:ì FAX [·¡O. 7[3 526 4241 - -- .. - ~ EXHIBIT "P" (Page 1 of 2) SCHEDULE OF HOURLY RATES 22 SEPTEMBER 1998 1. Guy Jackson, AlA $15000 2, Jeffrey D. Ryan, AlA $150.00 3. S. L Morris, FAIA $15000 4, Martha 1. Seng, AlA $115.00 5. John C. Clements, AlA $115,00 6, Ben M, Hurst, AlA $115.00 7, Gene Koonce, AlA $100.00 8. Richard B. Wingfield, AlA $100,00 9. Shannon E, Fowler, AlA $ 75,00 10. Peter J. Foxley, AlA S 75,00 II, Christopher D, Craig $ 60 00 12, Craig A. Pharis $ 6000 13. Kristopher M, Stuart $ 60.00 14. Pamela Barlz $ 50.00 IS, Lea K. Bass S 50,00 16. Paul A. Buchanan $ 5000 17. Gigi M. Chapman S 50.00 18. Sarah A Cheavens S 50.00 19, Caryn Dietrich $ 5000 20. Roland Garza S 50.00 21 Marco Gutierrez $ 50.00 22, Vernita B. Hoyt $ 50,00 23. JohnM,Jenkins $ 50.00 24. Anastasia Lallas S 50.00 25. Craig B, McCormick $ 5000 26. John Middleton $ 5000 27, Shelly Pottod S 5000 28. Peter L. Rockrise $ 50.00 29. Brooke Summers-Perry $ 50,00 30. Margarita P. Valenzuela S 50,00 31. Richard L. Wall S 50,00 32. Geoffrey L. Wheeler $ 50.00 33. Gina M. Lyons $ 35.00 34. Karen S. Morris S 35,00 JACKSON & RYA:--r ARCHITECTS 2370 RICE BOULEVARD, SUITE 210, HOUSTON. TEXAS 77005 (713) 526-5436 FAX (713) 526,4241 ~9 ó<6-31 -_._--~--'-_.,._.._._" "'" '4 . 1 T"" i 30 P:Æ jackso~ ,~ ~ya~ ¡: AX NO. 713 526 4241 ) ~ c, _' .' - I...; '1 ' ,. I ~ -: ~. ¿ ,,'.~ .." EXHIBIT D Page 2 of2 Eric Davy Architects. APC Fee Schedule January 1. 1998 Principal $115.00 Project Architect 75.00 Project Designer 75.00 Job Captain 55.00 CAD Drafter" Tech 1 45.00 CAD D{after . Tech II 37.50 Clerical 30,00 30 ';;'6-35 COUNCIL AGENDA STATEMENT Item: ~7 Meeting Date: 10/06/98 ITEM TITLE: Resolution /f.,203 Approving in-Concept the Changes Required by the Design Review Committee which will Result in a Future Cost Increase for the Construction of Fire Station #4 and the Fire Training Classroom; Approving the Second Amendment to the Contractual Agreement with Jeff Katz Architecture for Architectural Services Associated with the Design and Construction of Fire Station #4 and the Fire Training Classroom; and Appropriating Funds therefor. SUBMITTED BY: Fire Chief~ ~ Director of Planning and Building~ REVIEWED BY: City Manage7Dg. ~ @ (4I5ths Vote: Yes -1LNo_) Council-approved CIP Projects PS-120 and PS-127 provide for the construction of the new Fire Station #4 and the Fire Training Classroom at the Fire Training Tower site in the Rancho del Rey development. The firm of Jeff Katz Architecture has been hired to provide the architectural services for the fire station and the training classroom. Recent review of the Project's initial design by the City's Design Review Committee has necessitated changes to the Project which will increase the construction costs, and which are beyond the scope of the current agreement with the architect. Therefore, it is necessary at this time to conceptually approve the Project's revised scope and estimated budget, and amend the Architect's agreement to complete the necessary work. RECOMMENDATION: That Council: (1.) Approve in-concept the changes required by the Design Review Committee which will result in a future cost increase for the construction of the fire station and training classroom; (2.) Adopt the resolution approving the Second Amendment to the Agreement with Jeff Katz Architecture to provide for additional architectural services for the concurrent design of Fire Station #4 and the Fire Training Classroom; (3.) Appropriate $1,048 to PS127 and $24,840 to PS120 from the Fire DIF; and (4.) Appropriate $1,112 to PS127 based upon unanticipated revenue from the Public Facilities DIF (Fire component) for City DIF credits which have not yet been taken. BOARDS/COMMISSIONS RECOMMENDATION: In accordance with established policy, an application was submitted to the Design Review Committee for site plan and architectural approval for the fire station and training classroom. Following review of the design at three separate meetings, the DRC approved, on 7/1/198, the architect's design with certain conditions. These conditions, which affect the project's budget, are discussed below. The DRC felt that the design of this complex should be of "signature" level, and that the changes required will result in enhancements to the complex's appearance and "fit" into the design level of the neighboring buildings. .27-/ Meeting Date: 10/06/98 Page: 2. DISCUSSION: Background Capital Improvement Project #PS-120 provides for the relocation and construction of Fire Station #4 from its current location at 861 Otay lakes Road to the Fire Training Tower site at the corner of East 'H' Street and Paseo Ranchero in the Rancho del Rey development. On March 25, 1997, the City Council approved an agreement with Jeff Katz Architecture for $52,000 (Resolution 18607) to provide architectural services for the design and construction phases of the 4,000 square-foot fire station. On February 10, 1998, the City Council approved an amendment to the architect's agreement for $23,000 (Resolution 18883) to expand the scope of work to include design of the Fire Training Classroom concurrently with the Fire Station design. Desion Review Process Following preliminary design review at the staff level, the project design was initially submitted to the Design Review Committee (DRC) in early June for site plan and architectural review. On July 1, 1998, the DRC conditioned their approval of the project design on the addition of the following: · Revisions to the roof design; · Adding a heavy timber trellis to run the length of the station living quarters and the classroom; · Raising of wall heights of the classroom and the apparatus room; · Providing additional screening of the patio area from the front; · Increasing the square footage of the apparatus room to provide for a terminus of the trellis; · Modifying room areas to accommodate additional windows; and · Providing additional landscape screening. The DRC stated that the additions significantly enhance the exterior appearance of the buildings and seek to elevate the design quality of the complex to parallel that of the neighboring United Methodist church, the Rancho del Rey Information Center, the new YMCA, and the anticipated quality of the new City Library on the adjacent parcel. The Design Review enhancements to the Fire Training Complex do not necessarily set a precedent for future fire station designs. Because of the unique location and layout of the Fire Training Complex, and that it is a key element of the non-residential buildings in the immediate area, the Design Review Committee believed that this particular project needed to reflect a greater attention to detail and architectural quality than originally planned and budgeted. According to the Fire Station Master Plan, future fire stations in Chula Vista are planned in predominantly residential areas which should not require such enhancements in order to blend with adjacent, prominent non-residential structures. This is also the only fire station in Chula Vista which combines a training tower and separate classroom in the design. Construction Cost Imoacts The Architect has provided an estimate for the cost of construction of the re-designed fire station and training classroom, taking into account changes in the cost of materials and labor since the last preliminary estimate was calculated, as well as the cost of the DRC-required changes to the buildings. The estimate suggests that the project construction cost total, as estimated in the current CIP, could be bid to cost $1,076,235, up from the previous estimate of $807,180 (a difference of $269,055). To put these figures in perspective, fire station construction costs in San Diego County, Orange County and :2? -- ~ Meeting Date: 10/06/98 Page: 3. LA County currently range from $165 per square-foot to $190 per square-foot. Construction costs for fire stations built in San Diego county average $175 per square-foot. These costs include hard construction costs only; no site acquisition costs or grading costs are included. The total square-footage of the fire station and training classroom is estimated at 6,455, resulting in a per-square-foot cost of $166. This demonstrates that even with the addition of significant cost to the project, the resultant relative cost is still low in comparison to other fire stations built in the region. As the above-referenced construction cost figures for Fire Station #4 and the Training Classroom represent the architect's esümates at this time and not actual bid costs, it is recommended that Council not appropriate additional funds for the construction portion of this project until after the specific bids are known and the contract is awarded (projected for March 1999). Design Cost Impacts In order for the design work on the project to proceed, however, additional drafting and design work is required of the architect which is beyond the scope of the current agreement for services. As a generally accepted practice, architects' fees are set as a percentage of the total estimated construction cost. Typically, for large projects, this percentage ranges from 9% to 11 % depending upon project scope, complexity, and other factors. In the prior agreements with this architectural firm on this project, the percentage has worked out to approximately 9.25%. Following discussion at length between Staff and the Architect on the additional work required to fully implement the changes recommended by the DRC, the architect's fees for the additional work have been negotiated in keeping with the current percentage of 9.25%, amounting to $25,000 and spread over the appropriate phases of the project. It should be noted here that the current agreement with the project architect does provide for additional work beyond the scope of work to be performed at an hourly rate. The architect has, to date, performed some additional work. However, based on the actual number of hours that the additional design work has taken so far (30 hours of Principal Architect @ $90/hr and 60 hours of drafting time @ $55/hr), and the number of future hours it would take to integrate all of the changes into the construction documents, the cost to the City could be as much as 25% higher, or a total near $32,000 if paid to the architect at the agreed-upon hourly rate. If the City approves this Second Amendment, the City would be able to have the work performed for a fixed fee, at a reduced cost (as projected). The negotiated agreement contains a change in the hourly rate for future additional services if needed for the following classifications: Principal Architect: $90/hr to $95/hr Designer: $75/hr to $80/hr Structural Engineer: $95/hr to $100/hr Civil Engineer: $90/hr to $95/hr Mechanical Engineer: $95/hr to $100/hr Electrical Engineer: $95/hr to $100/hr Landscape Architect: $80/hr to $90/hr Design Cost Contingency Funds: In the original appropriation for design services for only the Fire Station, $3,000 was appropriated for contingencies. When the design of the Training Classroom was added, no additional contingency funds ;2 7--- 'J ___u___..___. Meeting Date: 10/06/98 Page: 4. were allotted. In view of the fact that the scope of the project has increased significantly with the addition of the Training Classroom and the DRC-changes, and in view of the fact that the need for contingency funds typically arises in the Construction Administration (building) Phase of the project, it is recommended that some additional contingency funds be appropriated. In order to bring the contingency level up to 5%, $2,000 would need to be added to the reserve. Training Classroom City Share Funding Source: As stated above, the DRC-required changes to the total proiect (fire station and classroom) are estimated to cost $269,055 (construction)+$27,OOO (design/contingency) for a total of $296,055. The cost will be borne by the Public Facilities DIF (PFDIF) and by the City.1 The City cost share for the total Droiect is projected to be $139,441. The City cost share of the additional Training Classroom design and construction costs are proposed to be funded from two sources: . PFDIF(Fire Component) Credits owed to the City: These credits are related to such items as (1) the reimbursement for the PFDIF's share of the land provided by the City for the Training Tower and other Fire-related projects, and (2) the PFDIF's remaining share for the expansion of Fire Station #1. Total Available: $76,576. . General Fund Capital Outlay funds from CIP# RD215 (Paint Pit Clean-up): The Paint Pit project has been completed; the remaining project funds are no longer required and are available for transfer to the Training Classroom project (PS-127). Total Needed: $62,865 ($76,576+ $62,865= $139,441) As a component of the above, the DRC-required changes to the Training Classroom (inclusive of additional design costs) will result in an estimated increase in cost of $15,000 (construction) + $2,160 (design/contingency) = $17,160. The City share of the additional desian cost. which is the subiect of this Council action is $1.112. FISCAL IMPACT: The specific fiscal impact of this action at this time is $27,000 for amending the scope of the agreement with Jeff Katz Architecture for additional architectural services. This, and the ultimate related fiscal impacts are discussed below. Desian Costs: The fiscal impact to authorize Jeff Katz Architecture to incorporate the DRC-required design features into the Fire Station and Training Classroom is $25,000. This, added to the firm's existing appropriation of $75,000, would bring the contract total to $100,000. Additionally, it is recommended to appropriate $2,000 in contingency funds to bring the architectural services contingency total to 5%. The resulting total fiscal impact of this action would then be $27,000. $2,160 of the $27,000 in additional design 1 Unlike the adjoining fire station, the Fire Training Classroom is not eligible for 100% DIF funding; the Training Classroom is a joint City/PFDIF project The methodology for allocating costs on joint CitylPFDIF projects is based on proportionate EDU's, e.g. the percentage of new development EDU's to cityv.ide EDU's projected at build·out Including the Otay Ranch. the PFDIF's share of these joint projects is 48.5'.6; the City share is 51.5%. ;¿ 7~ i Meeting Date: 10/06/98 Page: 5. services/contingency is attributable to the Training Classroom, 51.5% of which ($1,112) is the City's share: Additional Architectural Services Costs Share Source Fire Station Training Classroom Total Design Contingency Design Contingency DIF $23,000 $1,840 $970 $78 $25,888 City (Non-DIF) $0 $0 $1,030 $82 $1,112 Total $23,000 $1,840 $2,000 $160 $27,000 Construction Costs: Staff recommends that the appropriation of additional funds for the construction of the Station and Classroom not be made at this time. It is recommended, instead, that such action be deferred until such time as the bids have been received and the actual cost is known. The impact of that ~ action is estimated at $270,000, covering the additional features to be added to the building, but also covering the updated cost of materials and labor. Additional Estimated Construction Costs Share Source Fire Station Training Total Classroom DIF $255,000 $7,275 $262,275 City (Non-DIF) $0 $7,725 $7,725 Total $255,000 $15,000 $270,000 Sufficient funds are projected to be available from the DIF and General Fund Capital Outlay (existing appropriation) for appropriation to this project when the contract is awarded (March 1999). The fiscal impact of the minor change in hourly rates for additional design services is expected to be minimal. Sufficient funds exist in the Fire DIF for appropriation to Project PS127 ($1,048) and Project PS120 ($24,840). Additionally, it is recommended that the City cost share, in the amount of $1,112, be appropriated to PS127 based upon unanticipated revenue from the Public Facilities DIF (Fire component) for City DIF credits which have not yet been taken. )7-S- RESOLUTION NO. /9.2.03 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING IN-CONCEPT THE CHANGES REQUIRED BY THE DESIGN REVIEW COMMITTEE WHICH WILL RESULT IN A FUTURE COST INCREASE FOR THE CONSTRUCTION OF FIRE STATION #4 AND THE FIRE TRAINING CLASSROOM; APPROVING THE SECOND AMENDMENT TO THE CONTRACTUAL AGREEMENT WITH JEFF KATZ ARCHITECTURE FOR ARCHITECTURAL SERVICES ASSOCIATED WITH THE DESIGN AND CONSTRUCTION OF FIRE STATION #4 AND THE FIRE TRAINING CLASSROOM; AND APPROPRIATING FUNDS THEREFOR WHEREAS, Council-approved CIP Projects PS-120 and PS-127 provide for the construction of the new Fire Station #4 and the Fire Training Classroom at the Fire Training Tower site in the Rancho del Rey development; and WHEREAS, the firm of Jeff Katz Architecture has been hired to provide the architectural services for the fire station and the training classroom; and WHEREAS, recent review of the Project's initial design by the city's Design Review Committee has necessitated changes to the Project which will increase the construction costs, and which are beyond the scope of the current agreement with the architect; and WHEREAS, it is necessary at this time to conceptually approve the Project's revised scope and estimated budget, and amend the Architect's agreement to complete the necessary work. NOW, THEREFORE, BE IT RESOLVED the City Council of the city of Chula vista does hereby approve in-concept the changes required by the Design Review Committee which will result in a future cost increase for the construction of Fire Station #4 and the Fire Training Classroom. BE IT FURTHER RESOLVED that the City Council does hereby approve the Second Amendment to the Contractual Agreement with Jeff Katz Architecture for Architectural Services Associated with the Design and Construction of Fire station #4 and the Fire Training Classroom, a copy of which shall be kept on file in the office of the City Clerk as Document No. BE IT FURTHER RESOLVED that the Mayor of the city of Chula Vista is hereby authorized and directed to execute said Second Amendment on behalf of the City of Chula vista. 1 d. 7-? - .__.~--_.~_.._.__.., ---....- BE IT FURTHER RESOLVED that the amount of funds are hereby appropriated from the Fire DIF as follows: $1,048 to Project PS127 and $24,840 to Project PS120 and the City cost share of $1,112 be appropriated to PS-127 based upon unanticipated revenues from the Public Facilities DIF (Fire component) for City DIF credits which have not yet been taken. Presented by Approved as to form by James Hardiman, Fire Chief rney H:\home\lorraine\rs\katz.2nd 2 :¿ 7- 7 . . Second Amendment to Agreement between City of Chula Vista and Jeff Katz Architecture for Architectural Consulting Services Recitals Whereas, the City of Chula Vista ("City") and Jeff Katz Architecture ("Consultant")entered into the original Agreement for architectural consulting services on March 25, 1997; and, Whereas, with the First Amendment, dated February 10, 1998, the City and Consultant amended the original Agreement to expand the scope of Consultant's work to provide architectural and design services in conjunction with the Chula Vista Fire Department Fire Training Classroom; and Whereas, the City now desires to expand the scope of Consultant's work to provide additional architectural and design services in conjunction with the Chula Vista Fire Department Fire Station Number Four and the Fire Training Classroom as described in Exhibit 'A-2' i and, Whereas, the Consultant warrants and represents that they are experienced and staffed in a manner such that they can prepare and deliver the services required of Consultant to City within the time frames herein provided all in accordance with the terms and conditions as set forth below. Now, therefore, the parties hereto agree as follows: 1. Exhibit 'A-l' to the original Agreement shall be replaced with Exhibit 'A-2 ' attached hereto. 2 . All other items and conditions not modified by this Second Amendment to the original Agreement shall remain in full force and effect. .2 ?-Ó Exhibit A-2 to Agreement between City of Chula Vista and Jeff Katz Architecture 1. Effective Date of Agreement: 2. City-Related Entity: (X) City of Chula Vista, a municipal chartered corporation of the State of California ( ) Redevelopment Agency of the City of Chula Vista, a political subdivision of the State of California ( ) Industrial Development Authority of the City of Chula Vista, a ( ) Other: 3. Place of Business for City: City of Chula Vista, 276 Fourth Avenue, Chula Vista, CA 91910 4. Consultant: Jeff Katz Architecture 5. Business Form of Consultant: (X) Sole Proprietorship ( ) Partnership ( ) Corporation 6 . Place of Business, Telephone and Fax Number of Consultant: 7290 Navajo Road, Suite 106 San Diego, California 92119 Voice Phone (619) 698-9177 Fax Phone (619) 698-9178 ,)7--1 Page 1 7 . General Duties: A. PROJECT DESCRIPTION (1) The Consultant shall design a new fire station and training classroom to be located at the corner of East 'H' Street and paseo Ranchero adjacent to the Fire - Training Tower in the Rancho del Rey development in the City of Chula Vista("Project") . With an estimated combined construction budget of $1,025,000 (excluding contingency funds) , the Project is envisioned by the City as a 1675 square-foot structure,accommodating living quarters and office space for up to four firefighting personnel (male and female) , with an attached 2880 square-foot dual-entry ("drive-through") apparatus room equipped with an exhaust gas elimination system, and related site improvements ("Fire Station"); and a separate 1900 (approximate) square-foot training classroom with associated office space, restroom facilities, and related site improvements adjacent to the Fire Station ("Training Classroom") . (2) The Consultant shall ensure that the Project is designed - and constructed to optimize energy efficiency, durability and ease of maintenance, and in accordance with all applicable current State and local statutes, codes and ordinances including, but not limited to, the following: a. The Uniform Building Code b. The Uniform Fire Code c. Current standards of the Americans with Disabilities Act (ADA) B. GENERAL PROVISIONS (1) The Consultant shall be responsible for coordination of all of the work and payment associated with subconsultants listed in Section 19, below, and the fees associated with these subconsultants shall be included within the Consultant's basic fee for services. (2) Once a general contractor is selected by the City, the Consultant agrees to cooperate in timely response to requests for information with the chosen general c27-jc:? Page 2 contractor and any of its various subcontractors and to assist in compliance with the stipulated budget for construction of the Project, in accordance with normal industry standards of practice. (3) The City shall have the right to suspend work on the Project for a period of up to ninety (90) days without suffering any increased compensation to Consultant or any of its subconsultants and this temporary suspension shall not constitute a termination of this Agreement. 8. Scope of Work and Schedule: A. CONSULTANT'S DETAILED SCOPE OF WORK: The Scope of Work is based on the stated intent of the City to utilize Chula Vista Fire Station #2 (80 East 'J' Street) as the basic design model for the Project, the "Chula Vista Fire Department Fire Station Design SpecificationsH,as applicable, and the requirements of the City's Design Review Committeejas a basis for the design of the new station. (1) SCHEMATIC DESIGN PHASE a. Tour existing Fire Station No. 2 and hold "Brainstorming" sessions with Chula Vista Fire persOImel to discuss features of the new Fire Station design in order to refine the program requirements contained within the Fire Station Design Specifications. b. Perform preliminary code and zoning review. c. Meet with City Planning and Building Department to review all requirements including design requirements and building accessibility issues. d. Develop Preliminary Building Floor Plans and Building Elevations for both the Fire Station and the Training Classroom. e. Prepare site plans sufficient to develop conceptual site drawings indicating placement of structures and amenities on site. f. Develop preliminary Cost Estimates based upon building systems. The estimates prepared at this phase will be ;2 7-/1 Page 3 generally square-foot cost estimates for the various building components, and will include a design development contingency (to allow for potential increases as the design is refined further in the later stages of the project) . g, Make required presentations to Chula Vista Fire Department to review scope, recommendations and findings of this phase of the Consultant's work. h. Make required Design Review Submittals to McMillin Companies, City of Chula Vista, and other groups from which it may be necessary for the City to receive comments or approvals. Drawings required for this submittal will include: Site Analysis Diagram Schematic Floor Plan Schematic Building Elevations Preliminary Site Plan Conceptual Landscape Plans Color and Material Sample Boards These drawings will include color and material callouts, as well as a colored building elevation drawing. No models or rendered drawings are included in this proposal. i. Make required presentations to City Council to review proposed design. j. Make required corrections to Schematic Design consistent with Design Review Committee directiont in order to obtain Schematic Design approval from the City. k. After obtaining approval of Schematic Design, the Design Development phase will commence. (2) DESIGN DEVELOPMENT PHASE a. Refine design of Floor Plans, Building Elevations and Site Plan. b. Coordinate building and site requirements with Owner's Soils Engineer. ). 7 - / ;¿ Page 4 c. Develop structural systems consistent with design concept. No engineered site retaining walls will be required for the project. d. Prepare Interior Elevations, Building Sections, Reflected Ceiling Plans and Roof Plans. e. Prepare Grading~ Drainage and Utility Plans consistent with design concept (prepared from City- provided Topographic Survey) . f. Develop building mechanical, plumbing and electrical systems consistent with design concept. g. Prepare preliminary line item Construction Cost Estimate based on actual building components. This estimate will be more detailed than the systems estimate prepared during schematic design. h. Review meeting with Fire Department and City staff to review proposed design. i. As mutually agreed by the City and Consultant, there will not be a formal Design Development submittal. Rather, the drawings submitted at this stage will be "mark-ups" intended to reflect more information than would normally be found in a "design development" submittal. The intent is to present as much information to the Fire Department as possible with regard to proposed building systems, structures, layouts, etc. Based on the information presented, the Fire Department will review and comment on all of the proposed features of the new buildings and site design. j . After obtaining City approval of the information presented in the Design Development drawings, the Construction Documents phase will commence. (3 ) CONSTRUCTION DOCUMENTS PHASE a. Prepare drawings and specifications as listed in Attachment '1 ' to Exhibit 'A-2' which are suitable for bidding to clearly delineate the Contractor's scope of work (Work) . The City will provide all General and Supplementary Conditions for the Project. Official ;2. 7- / :3 Page 5 submittals to the City during this phase of the Consultant's work will occur at approximately 90% complete (concurrent with submittal to the Building Department) and at 100% complete. b. Submit plans to local utility companies for review. (Note: Any reguired Utility Company fees are not included) . c. Submit plans to City Planning and Building Department for plan check, and perform all required revisions to construction documents based on Planning and Building Department's plan check comments. (Note: plan check and permit fees are not included.) d. Update Construction Cost Estimate. e. Meet with Fire Department and City staff to review final design. (4) BIDDING PHASE a. Provide original drawings (on Mylar) and specifications to the City. City will assemble and distribute bid packages. b. Interpret and clarify contract documents for contractors, and issue addenda as required. c. Conduct a Pre-Bid walkthru at the site with all interested contractors. d. Participate in bid opening, review contractor's detailed cost breakdown, and assist City in evaluation of bids. (5) CONSTRUCTION ADMINISTRATION PHASE a. The construction phase/administration of the construction contract shall commence upon the beginning of construction and shall be limited to a period equal to one hundred and ten percent (110%) of the total allowable time for the contractor's completion of the Work (inclusive of all required interior finish, fixture and equipment procurement) . cl?~/( Page 6 b. Attend Pre-Construction conference. c. Review shop drawings and submittals as required by contract documents. d. Interpret contract documents for proper execution and progress of construction, including responding in writing to contractor's or City's requests for information and clarification (RFI' s) . e. Assist the City in negotiating and processing Change Orders, including any revisions to Construction Documents if needed, for changes to the Work which, at the sole discretion of the City, should reasonably have been included by the Consultant in the Construction Documents as bid. f. Make fifteen (15) site visits and meet with assigned City Staff during the course of construction to become familiar with the progress and quality of the Work completed, to determine if the Work is being performed in a manner indicating that the Work, when completed, will be in accordance with the Contract Documents, and to prepare site visit reports. Site visits shall be scheduled with the City in advance. On the basis of on- site observations as an architect, the Consultant shall keep the City informed of the progress and quality of the Work, and shall endeavor to guard the City against defects and deficiencies in the Work. g. Make one site visit to perform Punchlist Inspection, and one to perform Final Inspection. h. Assist the City in reviewing and processing contractor's progress payment requests. i. Process contractor's As-Builts and warranty information. j . The Consultant shall not have control over or charge of and shall not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, since these are solely the Contractor's responsibility under the Contract for Construction. The Consultant shall not be responsible for the Contractor's 27-/~ Page 7 -~~-_.._...- schedules or failure to carry out the Work in accordance with the Contract Documents. The Consultant shall not have control over or charge of acts or omissions of the Contractor, Subcontractors, or their agents or employees, or of any other persons performing portions of the Work. k. The Consultant's certification of contractor's request for payment shall constitute a representation to the City, based on the Consultant's observations at the site as provided above and on the data comprising the Contractor's Application for Payment that to the best of the Consultant's knowledge, information and belief, the Work has progressed to the point indicated and the quality of Work is in accordance with the Contract Documents. (6) RESPONSIBILITY FOR CONSTRUCTION COST a. Definition: The Construction Cost shall be the total cost or estimated cost to the City of all elements of the Project designed or specified by the Consultant. The Construction Cost shall include the cost at current market rates of labor and materials furnished by the City and equipment designed, specified, selected or specially provided for by the Consultant, plus a reasonable allowance for the Contractor's overhead and profit. In addition, a reasonable allowance for contingencies shall be suggested for market conditions at the time of bidding and for changes in the Work during construction. Construction Cost does not include the compensation of the Consultant and Consultant's consultants, the costs of the land, rights-of-way, financing or other costs which are the responsibility of the City. b. Evaluations of the City's Project budget, preliminary estimates of Construction Cost and detailed estimates of Construction Cost, if any, prepared by the Consultant, represent the Consultant's best judgment as a design professional familiar with the construction industry. It is recognized, however, that neither the Consultant nor the City has control over the cost of labor, materials or equipment, over the Contractor's methods of determining bid prices, or over competitive bidding, :L7-/? Page 8 market or negotiating conditions. Accordingly, the Consultant cannot and does not warrant or represent that bids or negotiated prices will not vary from the City's Project budget or from any estimate .of Construction Cost or evaluation prepared or agreed to by the Consultant. c. If the Bidding or Negotiation Phase has not commenced within 90 days after the Consultant submits the Construction Documents to the City, any Project budget or Fixed Limit of Construction Cost ("fixed limit") will be adjusted if necessary to reflect changes in the general level of prices in the construction industry between the date of submission of the Construction Documents to the City and the date on which proposals are sought. In the event that this adjustment is to be made, the City and Consultant agree to meet in good faith to determine the extent to which. the Consultant's scope of work is unreasonably impacted for the purposes of determining additional compensation, if any, for the work performed. d. The fixed limit for the Fire Station and Training Classroom Project construction is set at $1,025,000. If the fixed limit is exceeded by the lowest bona fide bid or negotiated proposal, the City agrees to pursue one of the following courses of action: 1.) Give written approval of an increase in the fixed limit; ii. ) Authorize rebidding or renegotiating of the Project; iii.)Terminate the Project proceedings; iv.) Cooperate in revising the Project scope and/or quality as may be necessary to reduce the Construction Cost; or v.) Any other remedies the City may deem appropriate. ,2 ?-/} Page 9 e. If the City chooses to proceed under d.,iv., above, the Consultant, without additional charge, shall modify the Construction Documents as necessary to comply with the fixed limit. The modification of Construction Documents in scope and/or quality to reduce the Construction Cost, using Consultant's best professional advise and knowledge, shall be the limit of the Consultant's - responsibility with regard to meeting the fixed limit. (7)MISCELLANEOUS PROVISIONS a. Unless otherwise provided in this Agreement, the Consultant and the City-authorized subconsultants shall have no responsibility for the discovery, presence, handling, removal or disposal of or exposure of persons to hazardous materials in any form as the Project site, including but not limited to asbestos, asbestos products, polychlorinated biphenyl (PCB) or other toxic substances. b. The Consultant shall have the right to include representations of the design of the Project, including photographs of the exterior and interior, among the Consultant's promotional and professional materials. The Consultant's materials shall not include the City's confidential or proprietary information; no such publication shall occur without the prior express written consent of the City to do so. c. If the City and Consultant are unable to reach agreement on any disputed work or compensation, the City may direct the Consultant to proceed with the work. Payment shall be as later determined pursuant to the remedies provided elsewhere in the Agreement. B. Date for Commencement of Consultant Services: (X) Same as Effective Date of Agreement ( ) Other: C. Dates or Time Limits for Delivery of Deliverables: (1) Consultant to have the Construction Documents complete and ready for bid by contractors no later than February 15, 1999, unless otherwise agreed to in writing by the 02 7-/ g/ Page 10 City. D. Date for completion of all Consultant services: (2) Upon Consultant's completion and City's acceptance of all services covered in the Agreement. 9 . Insurance Requirements: (X) Statutory Worker's Compensation Insurance ( ) Employer's Liability Insurance coverage: $1,000,000. (X) Commercial General Liability Insurance: $1,000,000. ( ) Errors and Omissions insurance: None Required (included in Commercial General Liability coverage) . (X) Errors and Omissions Insurance: $250,000 (not included in Commercial General Liability coverage) . 10. Materials Required to be Supplied by City to Consultant: A. It is understood that the City will provide topographic services as required to prepare an existing conditions topographic drawing, in AutoCAD 12 format, for use by the Consultant and City-authorized subconsultants on the Project. It is understood that the City will be responsible for the accuracy of the information provided to the design team, and that no field verification of existing topo information is included by the Consultant. B. All bidding and contract procedure documents. C. Soils and geotechnical reports as required. II. Compensation: N/A A. ( ) Single Fixed Fee Arrangement. For performance of all of the Defined Services by Consultant as herein required, City shall pay a single fixed fee in the amounts and at the times or milestones or for the Deliverables set forth below: N/A ( ) I. Interim Monthly Advances. The City shall make interim monthly advances against the compensation due for each phase on a percentage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be considered as interest free loans which must be returned to the City if the :2?-/1 Page 11 Phase is not satisfactorily completed. If the Phase is satisfactorily completed, the City shall receive credit against the compensation due for that phase. The retention amount or percentage set forth in Paragraph 19 is to be applied to each interim payment such that, at the end of the phase, the full retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been provided, but in nò event shall such interim advance payment be made unless the Contractor shall have represented in writing that said percentage of completion of the phase has been performed by the Contractor. The practice of making interim monthly advances shall not convert this agreement to a time and materials basis of payment. B. (X) Phased Fixed Fee Arrangement. (1) For the performance of each phase or portion of the Defined Services by Consultant as are separately identified below, City shall pay the fixed fee associated with each phase of Services, in the amounts and at the times or milestones or Deliverables set forth. Consultant shall not commence Services under any Phase, and shall not be entitled to the compensation for a Phase, unless City shall have issued a notice to proceed to Consultant as to said Phase. (2) Consultant to provide the stated basic services for a fixed fee of One Hundred Thousand Dollars ($100,000) . Invoices will be submitted monthly for the percentage of work actually completed during the month, on any particular phase. (3 ) The Basic Services charges are categorized as follows: Page 12 27-c20 PHASE PRASE FEE PRASE FEE (FIRE STATION) (TRA CLASSROOM) Schematic Design $15,250 $4,250 Design Development - $8,300 $3,200 Construction Documents $37,650 $12,850 - 90% Construction Documents $5,300 $1,400 - 1.00% Bidding $1,500 $500 Construction $6,250 $2,650 Administration As-Bui1ts $750 $150 Total $75,000 $25,000 (X) 1. Interim Monthly Advances. The City shall make interim monthly advances against the compensation due for each phase on a percentage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be considered as interest free loans which must be returned to the City if the Phase is not satisfactorily completed. If the Phase is satisfactorily completed, the City shall receive credit against the compensation due for that phase. The retention amount or percentage set forth in Paragraph 21 is to be applied to each interim payment such that, at the end of the phase, the full retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been provided, but in no event shall such interim advance payment be made unless the Contractor shall have represented in writing that said percentage of completion of the phase has been performed by the Contractor. The practice of making interim monthly advances shall not convert this agreement to a time and materials basis of payment, Page 13 27--.2) C. (X) Hourly Rate Arrangement for Additional Services Additional services shall not be performed by Consultant unless authorized in writing by the City in advance. For performance of any Additional Services by Consultant, as listed below, City shall pay Consultant for the~ productive hours of time spent by Consultant in the performance of said Services, at the rates or amounts set forth in the Rate Schedule hereinbelow. a. Revisions to Schematic Design or Construction Documents resulting from City-requested changes to previously approved documents, or due to subsequent code or zoning changes. b. Preparing documents for alternate bid items beyond the Consultant's scope of work. c. For items not consistent with the provisions of Section B.A.5. (e) (changes to the Work which should reasonably have been included by the Consultant in the Construction Documents as bid), processing City change requests after Contractor's bid including revisions to Construction Documents, processing approval of revisions through the Planning and Building Department, Change Order negotiation, and preparing drawings and specifications in connection with Change Orders approved in writing by the City. d. Additional site visits specifically requested by the City. e. HOURLY RATE SCHEDULE for Additional Services: Principal Architect $ 95,00 per hour Designer $ BO.OO per hour Drafter $ 55.00 per hour Secretarial $ 40.00 per hour Structural Engineer $ 100.00 per hour Civil Engineer $ 95.00 per hour Mechanical Engineer $ 100.00 per hour Electrical Engineer $ 100,00 per hour Landscape Architect $ 90.00 per hour Page 14 c27~;¿). 12. ( ) Not-to-Exceed Limitation on Time and Materials Arrangement Notwithstanding the expenditure by Consultant of time and materials in excess of said Maximum Compensation amount, Consultant agrees that Consultant will perform all of the Defined Services herein required of Consultant for $ including all Materials, and other "reimbursables" ("Maximum Compensation"). 13. ( ) Limitation without Further Authorization on Time and Materials Arrangement At such time as Consultant shall have incurred time and materials equal to ("Authorization Limit"), Consultant shall not be entitled to any additional compensation without further authorization issued in writing and approved by the City. Nothing herein shall preclude Consultant from providing additional Services at Consultant's own cost and expense. 14. Materials Reimbursement Arrangement All City-requested or City-required printing and reproduction needs or other unanticipated printing needs associated with the Project which cannot be assumed by the City will be a reimbursable expense at the actual cost of such services to the Consultant. No other materials or costs reimbursements are permitted. 15. Contract Administrators: City: Daniel D. Beintema 447 'F' Street Chula Vista, CA 91910 (619) 691-5055 voice (619) 691-5057 fax Consultant: Jeff Katz, AlA 7290 Navajo Road, Suite 106 San Diego, California 92119 (619) 698-9177 voice (619) 698-9178 fax 16. Liquidated Damages Rate: ( ) $ per day. Page 15 ;¿ 7 --23 ( ) Other: 17. Statement of Economic Interests, Consultant Reporting Categories, per Conflict of Interest Code: (X) Not Applicable. Not ~n FPPC Filer. ( ) FPPC Filer ( ) Category No. lo Investments and sources of income, ( ) Category No. 2 . Interests in real property. ( ) Category No. 3 , Investments, interest in real property and sources of income subject to the regulatory, permit or licensing authority of the department. ( ) Category No. 4. Investments in business entities and sources of income which engage in land development, construction or the acquisition or sale of real property. ( ) Category No. 5. Investments in business entities and sources of income of the type which, within the past two years, have contracted with the City of Chula Vista (Redevelopment Agency) to provide services, supplies, materials, machinery or equipment. ( ) Category No. 6 . Investments in business entities and sources of income of the type which, within the past two years, have contracted with the designated employee's department to provide services, supplies, materials, machinery or equipment. ( ) Category No. 7. Business positions. ( ) List "Consultant Associates" interests in real property within 2 radial miles of Project Property, if any: -------------------------------------------------------- ------------------------------------------------------ ------------------------------------------------------- Page 16 ;¿?~-2Lj 18. ( ) Consultant is Real Estate Broker and/or Salesman 19. Permitted Subconsultants: Civil Engineering: Bement Dainwood Sturgeon, Civil Engineers Structural Engineering: Simon Wong Engineering Mechanical Engineering: Syska & Hennessy Electrical Engineering: ILA + Zammit Engineering Landscape Architecture: JL Martin, Landscape Architecture 20. Bill Processing: A. Consultant's Billing to be submitted for the following period of time: ( ) Monthly ( ) Quarterly (X) Other: See Section 11.B. of this Exhibit. B. Day of the Period for submission of Consultant's Billing: ( ) First of the Month ( ) 15th Day of each Month (X) End of the Month ( ) Other: C. City's Account Number: 2l. Security for Performance ( ) Performance Bond, $- ( )Letter of Credit, $ ( ) Other Security: Type: Amount: $ (X) Retention. If this space is checked, then notwithstanding other provisions to the contrary requiring the payment of compensation to the Consultant sooner, the City shall be entitled to retain, at their option, either the following "Retention Percentage" or "Retention Amount" until the City determines that the Retention Release Event, listed below, has occurred: (X) Retention Percentage: 10% from each invoice ( ) Retention Amount: $ Page 17 c2?~~ Retention Release Event: ( ) Completion of All Consultant Services (X) Other: At the sole discretion of the City, at the successful completion of the "Construction Documents - 100%" Phase, one-half of the Retention monies held to that point will be released to Consultant. Bidding, Construction Administration and As-Builts Phases will continue to be subject to retention and the remaining retention monies will be released upon successful completion of the As-Builts phase. Page 18 ;2 7~.2(, .1 Signature Page to Second Amendment to Agreement between City of Chula Vista and Jeff Katz Architecture for Architectural Consulting Services IN WITNESS WHEREOF, City and Consultant have executed this Second Amendment thereby indicating that they have read and understood same, and indicate their full and complete consent to its terms: Dated: , 19 City of Chula Vista - by: Shirley Horton, Mayor Attest: Beverly Authelet, City Clerk Approved as to form: ,/; r t1'0-..... r· :"y' C 7 it.! / r . ;l u!~: . 7 . v John' Kahe , C~ty Attorney Dated: Jeff cture By: . Je Principal Exhibit List to Agreement (X) Exhibit A-2. c2 7--- 2 ') -..--- m _ "__n_ "~____'._ COUNCIL AGENDA STATEMENT Item JJš Meeting Date 10·06·98 ITEM TITLE: RESOLUTION /9,20'/ AUTHORIZING THE ISSUANCE, SALE AND DELIVERY OF THE CITY OF CHULA VISTA MUL TI·FAMIL Y HOUSING REVENUE BONDS, SERIES 1998 A (GATEWAY TOWN CENTER) AND THE CITY OF CHULA VISTA SUBORDINATE MULTI·FAMILY HOUSING REVENUE BONDS (GATEWAY TOWN CENTER) SERIES 1998 B,IN A COMBINED PRINCIPAL AMOUNT NOT TO EXCEED $43,000,000, AUTHORIZING THE EXECUTION AND DELIVERY OF SUCH BONDS AND OTHER RELATED DOCUMENTS, AND APPROVING OTHER RELATED ACTIONS IN CONNECTION WITH THE ISSUANCE OF THE BONDS RESOLUTION ) 9:< ¿;JS' APPROVING AN AMENDMENT TO THE AFFORDABLE HOUSING AGREEMENT WITH MCMILLIN oTAY RANCH, INC. DECLARING THE AFFORDABLE HOUSING OBLIGATIONS FOR oTAY RANCH SPA ONE SATISFIED SUBJECT TO CONDITIONS SUBMITTED BY: Community Development Director é_ S . REVIEWED BY: City Manage~ ~ @\ (4/5ths Vote: Yes_ NoJU BACKGROUND: On February 10, 1998, the City held a public hearing and approved Resolution No. 18889 which constituted an inducement resolution for multi·family housing revenue bonds in an amount not to exceed $45,000,000 to finance a proposed 440 unit multi·family rental housing project proposed by Gateway Town Center loP., a California Limited Partnership. The project is to be known as "Gateway Town Center" located on approximately 16 acres on the southwest corner of East Palomar Street and La Media Road within the McMillin Otay Ranch SPA One (see attached Exhibit 1). Gateway Town Center will satisfy the low income housing requirements of the City's Affordable Housing Program for McMillin Otay Ranch. The project is to be owned and operated by Gateway Town Center loP. On July 22, 1998, the Developer received a commitment of 1998 private activity bonds for multi-family rental housing projects from the California Debt Limit Allocation Committee (CD LAC). At this time, the Council is asked to approve a bond resolution authorizing the issuance of $43,000,000 in tax exempt bonds for the financing of the project and execution in substantial form and other related documents. The issuance of the bonds is in the public interest due to the reservation of 20 percent of the project units as affordable housing for low income households. .2?// Page 2. Item _ Meeting Date 1 0·06·98 RECOMMENDATION: That the Council: 1. Adopt a resolution authorizing the issuance, sale and delivery of Multi-family Housing Revenue Bonds Series 1998 A and B (Gateway Town Center L.P.) in an combined principal amount not to exceed $43,000,000, approving in substantial form related documents, and authorizing official action. 2. Adopt a resolution approving the first amendment to the affordable housing agreement with McMillin Otay Ranch, Inc. declaring McMillin's low and moderate income housing obligations for Otay Ranch SPA One satisfied subject to conditions. BOARDS/COMMISSIONS RECOMMENDATION: On January 28, 1998, the Housing Advisory Commission recommended the approval of the use of tax exempt bonds to finance the proposed multi· family project. On July 27, 1998, the Design Review Commission approved the project. DISCUSSION: The City's State·mandated Housing Element requires the provision of housing for all economic groups and to distribute affordable housing developments throughout the City's jurisdiction. The City's strategy to implement this mandate, the "Affordable Housing Program", is to require ten percent (10%) of any new subdivision in excess of fifty (50) units to be made affordable for low and moderate income families (5% low and 5% moderate) and to balance affordable housing development through out the City. Under the City's Affordable Housing Program, McMillin Otay Ranch has an obligation to provide a total of seventy-four (74) low income units and seventy·four (74) moderate income units. Gateway Town Center L.P. has proposed the 440 unit Gateway Town Center development to satisfy McMillin Otay Ranch's both its low and moderate income housing requirement. The Developer has not requested direct financial participation by the City; but has requested that the City issue tax exempt bonds for the financing of the project. The use of the City's tax exempt status to issue bonds for multi-family rental housing represents a financing tool for the City's Affordable Housing Program. Such bonds are a form of public· private partnership which gains importance as federal housing programs diminish and development costs make low income housing development problematic. In the City's Housing Element of the General Plan, the Affordable Housing Program declares that, "Where practical, the City shall consider the use of tax exempt revenue bonds for the purpose of underwriting a portion of the cost of low and moderate income housing." Used appropriately in pursuit of public good, tax exempt multi-family bonds represent a tool to achieve such underwriting; made necessary by the gap between market rental rates and development costs, In order for a multi·family housing bond to attain and sustain federal tax exempt status, the project in the issue must meet certain federal requirements pertaining to the inclusion of low income tenancy and the preservation of the project units as rentals. This tax exempt instrument represents a subsidy to the development community from the federal treasury as a result of reduced tax revenues. Because that subsidy is a giving of public funds, the federal regulations address the provision of public good. c2 fr " .2 Page 3. Item _ Meeting Date 10-06-98 The Proposed Project The bond proceeds would be used to provide a loan to Gateway Town Center LP. to finance the Gateway Town Center development located on approximately 16 acres at the southeast corner of Palomar Street and la Media Road in the Sectional Planning Area I of the Otay Ranch master planned community east of Interstate 805 in the City of Chula Vista. The site is in the final permitting stages with the City and the graded, fully improved site, is expected to be available to the Developer by December, 1998. The residential component of the development envisions 440 three story luxury garden apartments units (see Exhibit 2), The proposed unit mix and sized are as follows: 95 1 BR/l BA units approximately 726 165 2BR/2BA units approximately 942 SF 40 2BR/2BA units approximately 1,037 SF 140 3BR/2BA units approximately 1,167 SF Twenty percent (88) of the units will be rented on a rent restricted basis to families whose income is at or below 50 percent of Area Median Income as determined by HUD. The low income units will more than satisfy the low income housing requirements of the City's Program for the Provision of Affordable Housing within McMillin Otay Ranch. Seventy four (74) units will be made available to moderate income households in satisfaction of the moderate income housing requirement. Approximately 32 percent of the units will be 3 bedroom 2 bath units. This will fulfill a long overdue need in Chula Vista for large family housing, particularly in the neighborhoods east of Interstate 805 as outlined in the City of Chula Vista Housing Element. Each unit will include a balcony or patio, washer/dryer hook-up, full sized energy-efficient appliances, ceiling fans, outdoor storage, air conditioning, security features and dual glazed windows, Most of the units will have an enclosed garage and assigned covered parking. Project amenities include pool. spas, clubhouse, media center, exercise room, laundry facilities, security features, children's play area, multi-station computer laboratory with Internet access and population·appropriate recreational, social and entertainment programs. Additionally, a 20,000 square foot mixed commercial and residential (1 B town homes) component to the development is proposed for a future phase. The commercial/residential component will be financed through other resources than the bond proceeds. The commercial and residential elements of the project will be integrated in a Mediterranean motif and the recreational area integrated through a network of pathways that connect the town square/commercial area with a community park on the south rim of the development. The site will front on the major thoroughfare, Palomar Street, which will initially have bus service stopping at the town square. The finished graded site will have sufficient elevation to provide many of the apartment units with unparalleled views of the Pacific Ocean, making this affordable housing project one of the most unique in the nation. 02 (5" J Page 4, Item _ Meeting Date 10-06·98 Income and Rent Restrictions A minimum of 20 percent of the units (88) will be restricted to households at 50 percent of the median income which is currently $25,400 for a family of four. The monthly rent charged will not exceed 30 percent of the monthly income of such households, adjusted for household size. It is proposed that the restricted rents for the 3BR units will be at approximately $619/month. Rents on any of the restricted 1 BR units would be $450 and on any restricted 2BR units would be $537. The restricted rents are determined by the California Tax Credit Allocation Committee (TCAC) for the current fiscal year. Income and rent restrictions for 20 percent of the units within Gateway Town Center will be maintained for a period no less than 52 years, exceeding the 30 year term of the bonds. Prospective, present, and former occupants of the Gateway Town Center will have the right to enforce in any State of California court the maintenance of the 20 percent of the units for low income tenants, The low income housing commitment will bind all subsequent owners of Gateway Town Center, so that the commitment remains in force regardless of ownership, unless the project is foreclosed upon and the bonds are repaid. The income and rent restrictions outlined above are to be incorporated into the recorded deed restrictions for Gateway Town Center. Compliance with these restrictions will be subject annually to regulatory audit and annual tax credit certification. The Oeveloper has successfully managed low income housing units for 12 years. Compliance with strict property management policies and procedures will ensure that income and rent restrictions will be maintained for the full 52·year compliance period. Proposed Financing of Project It is estimated that the proposed total project cost will be $46,600,000 with $42,000,000 to be paid by bond proceeds and approximately $1,700,000 to be covered by low income housing tax credits and $2,900,000 by Oeveloper equity. The estimated project costs are as follows: . land Purchase $8,300,000 Construction 30,885,000 Oeveloper Fees 1,200,000 Cost of Issuance 3,000,000 Capitalized Interest 2,000,000 Debt Service Reserve 1,215,000 TOTAL ESTIMATED COST $46,600,000 Assuming all financial commitments are secured, grading is expected to begin November, 1998 with leasing of the units to begin in November 1999, and final construction of all units by May 2000. 2~-1 Page 5, Item _ Meeting Date 10-06-98 80nd Structure The City is being asked to authorize the issuance of two series of bonds to finance the construction of Gateway Town Center. The first series would total approximately $38.3 million and would be rated AAA by virtue of a credit enhancement provided by Fannie Mae. The second series of bonds for about $3.9 million is proposed to be subordinate to the first series and would be unrated. Issuer Fee As issuer of the bonds, the City will receive issuer fees related to the costs of issuance of the bonds and ongoing monitoring of the project for compliance with the Regulatory Agreement. The standard origination fee and annual administrative fee is 0.13 percent of the bond proceeds. Based upon negotiations with the Developer, staff is recommending an origination fee of 0.25 percent, estimated at $107,000, and an annual administrative fee of $20,000. The proposed fee structure is reasonable for this type of bond issuance. The Developer has, in turn, agreed to maintain the afford ability of the low income units for a period not less than 52 years, exceeding the 30 year term of the bonds. Bond Documents A t this time, the Council is being asked to approve in substantial form all documents related to the bond issuance. These documents are as follows and are on file in the Office of the City Clerk due to the substantial length of the documents, with exceptions as noted: · The Trust Indenture for each series of bonds is a document which specifies the terms and conditions for the issuance and selling of the bonds and the use of bond proceeds. · The Financing Agreement and loan Agreement for the Series A and Series Bonds, respectively, are documents which specify the terms and conditions of the Mortgage loan financing the Project. · The Regulatory Agreement is a document which specifies the regulations for the use and operation of the Project (see Exhibit 3). · The Subordination Agreements are documents which specify the terms and conditions for the subordinate loans on the project. · The Intercreditor Agreement is a document which specifies how the letter of credit, bank and the trustee for the Series B Bonds will exercise remedies in the case of a default. · The Contract of Purchase, also known as the Bond Purchase Agreement, for the Series A Bonds and the private placement agreement for the Series B Bonds sets forth the terms upon which Newman and Associates, Inc. will buy the bonds from the City. · The Preliminary Official Statement and the Private Placement Memorandum describe for investors the terms of the Series A Bonds and the Series B Bonds, respectively (see Exhibits 4 and 5). · The Assignment of Mortgage loan provides for the assignment by the City to the bond trustee of its interest in the Series A mortgage loan. · The Construction Deed of Trust secures the Series B loan by the property. c27'~ Page 6. Item _ Meeting Date 10-06-98 City Risks and Mitioation Measures There are three areas of risk which the Council needs to be cognizant. Listed below are these risks and measures staff recommends to reduce these risks: Risk One· Early Release of low Income Housino ObliQation: The Gateway Town Center development is proposed to satisfy McMillin Otay Ranch's obligation to provide a total of seventy four (74) low and seventy four (74) moderate income units as required under the City's Affordable Housing Program. If the City should release McMillin Otay Ranch from their low and moderate income housing obligation too early and the project is not constructed, the City may have lost the opportunity to increase such housing within McMillin Otay Ranch. Mitigation: An amendment to the Housing Agreement will stipulate that McMillin Otay Ranch's low income housing obligation shall be satisfied only upon construction and occupancy of the Gateway Town Center development. Risk Two· Performance of Oevelooer: While repayment of the bonds will not constitute a liability or obligation to the City, should the Oeveloper be unable to perform under the conditions of the Bond Indenture, loan Agreement, Regulatory Agreement, the City's financial rating and/or stature in the marketplace could be negatively impacted. Mitigation: The Oeveloper and its joint venture partners have significant experience and an excellent track record with this type of development project. Risk Three· Unrated Series 1998 B Bonds: The second series of bonds for about $3.9 million is proposed to be subordinate to the first series and would be unrated. This subordinated, unrated series involves a number of risks of repayment. Mitigation: The City has imposed appropriate restrictions on the sale and resale of these bonds to ensure that only sophisticated and accredited investors are buying these bonds. These restrictions are incorporated into the bond documents that are presented to the Council at this time. The subordination and the non rating of the bonds would be mitigated by the strength of the buyer. First Amendment to Affordable HousinQ Aoreement On February 10, 1998, the City of Chula Vista and McMillin Otay Ranch, Inc. executed the Affordable Housing Agreement for Otay Ranch SPA One. At this time, the Council is also being asked to approve in substantial form the first amendment to this Affordable Housing Agreement which declares McMillin's affordable housing obligations within Otay Ranch SPA One satisfied upon completion of construction of Gateway Town Center and occupancy of seventy four (74) units by low income tenants and seventy four (74) units by moderate income tenants (see Exhibit 6). The low income housing obligation shall be satisfied pursuant to the Regulatory Agreement which will require these units to be occupied and affordable to low income households for a period of 52 years. The moderate income housing obligation shall be satisfied upon initial occupancy only and will not be a continuing obligation. It is expected that the ..2~/~ Page 7. Item _ Meeting Date 10-06·98 moderate income units will remain affordable at this income level over a period of time given that the rents proposed for the market rate units of Gateway Town Center are affordable to moderate income households. FISCAL IMPACT: All costs related to the issuance of the bonds will be paid for from bond proceeds or profits. The bonds will be secured by the project and will not constitute a liability or obligation to the City. Some staff time costs will be associated with monitoring compliance with the Regulatory Agreement. Those costs will be reimbursed from an origination fee of 0.25 percent of the bond proceeds, estimated at $107,000, and an annual administrative fee for 30 years of $20,000 to be paid by the Developer to the City. EXHIBITS: The following exhibits are attached: 1. Location Map 2. Project Site Plan and Elevations 3. Regulatory Agreement 4. Series 1998 A Preliminary Official Statement 5. Series 1998 B Private Placement Memorandum 6. First Amendment to Affordable Housing Agreement The following exhibits are on file in the Office of the City Clerk: 7. Series 1998 A Trust Indenture 8. Series 1998 A Financing Agreement 9. Series 1998 A Subordination Agreement 10. Series 1998 A Contract of Purchase 11. Series 1998 A Assignment of Mortgage Loan 12. Series 1998 B Trust Indenture 13. Series 1998 B Loan Agreement 14. Series 1998 B Subordination Agreement 15. Series 1998 B Intercreditor Agreement 16. Series 1998 B Private Placement Agreement 17. Series 1998 B Construction Deed of Trust (JA;Ih¡ H:\HOME\CDMMDEV\STAFF,REP\1I).06-98\GATEWAV.REP [October 1, 1998 (11:40amtl 028'"/' ? ".,----...-.- -"---'--'-"-'-~-----'---- CITY COUNCIL OF THE CITY OF CHULA VISTA RESOLUTION NO. /'102Cij' RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING THE ISSUANCE, SALE AND DELIVERY OF THE CITY OF CHULA VISTA MUL TIF AMIL Y HOUSING REVENUE BONDS, SERIES 1998A (GA TEW A Y TOWN CENTER), AND THE CITY OF CHULA VISTA SUBORDINATE MUL TIF AMIL Y HOUSING REVENUE BONDS (GA TEW A Y TOWN CENTER), SERIES 1998B, IN A COMBINED PRINCIPAL AMOUNT NOT TO EXCEED $43,000,000, AUTHORIZING THE EXECUTION AND DELIVERY OF SUCH BONDS AND OTHER RELATED DOCUMENTS, AND APPROVING OTHER RELATED ACTIONS IN CONNECTION WITH THE ISSUANCE OF THE BONDS WHEREAS, Chapter 7 of Part 5 of Division 31 of the Health and Safety Code of the State of California (the "Act") authorizes cities to finance the acquisition, construction and development of multifamily rental housing for persons and families meeting the income limitations contained in the Act; WHEREAS, the City Council (the "City Council") of the City ofChula Vista (the "City") hereby finds and declares that it is necessary, essential and a public purpose for the City to finance multifamily rental housing pursuant to the Act, in order to increase the supply of such housing in the City available to persons and families within the income limitations established by the Act; WHEREAS, the City has a program to finance multifamily rental housing pursuant to the Act (the "Program"), and desires at this time to provide for the borrowing of money for such purpose through the issuance of multifamily housing revenue bonds as authorized by the Act; WHEREAS, the City has conducted a public hearing, as required by Section 147(f) of the Internal Revenue Code of 1986, as amended (the "Code"), for the purpose of determining whether to approve the issuance by the City of multifamily housing revenue bonds to be designated "City of Chula Vista Multifamily Housing Revenue Bonds, Series 1998A (Gateway Town Center)" (the "Series 1998A Bonds") and "City of Chula Vista Subordinate Multifamily Housing Revenue Bonds (Gateway Town Center), Series 1998B" (the "Series 1998B Bonds" and, together with the Series 1998A Bonds, the "Bonds") in an aggregate principal amount not to exceed $43,000,000 in order to finance the acquisition and construction of a 440-unit multifamily housing project (the "Project") located at the southwest comer of East Palomar Street and La Media Road; WHEREAS, the City has considered opportunities to contribute to the economic feasibility of the Project, as required by Section 52080(a)(2) of the Act; WHEREAS, all acts, conditions and things required by the Act, and by all other laws of the State of California, to exist, to have happened and to have been performed precedent to and in 611273.3\24036,0003 I .J '6/1 --- / -----_.~-_. ~,---_.._. connection with the issuance of the Bonds and the implementation of the Program as contemplated by this Resolution and the documents referred to herein exist, have happened, and have been performed in regular and due time, form and manner as required by the laws of the State of California, including the Act, and the City is now duly authorized and empowered, pursuant to each and every requirement of law, to issue the Bonds for the purpose, in the manner and upon the terms herein provided; and WHEREAS, this City Council hereby finds and declares that this Resolution is being adopted pursuant to the powers granted by the Act; NOW, THEREFORE, BE IT RESOLVED by the City Council of the City ofChula Vista, as follows: Section I. The above recitals, and each of them, are true and correct. Section 2. Pursuant to the Act and the Code, the Series 1998A Bonds are hereby authorized to be issued pursuant to the provisions of the Trust Indenture (the "Series 1998A Indenture"), between the City and the trustee appointed below (the "Trustee"), related to the Series 1998A Bonds and the Series 1998B Bonds are hereby authorized to be issued pursuant to the provisions of the Trust Indenture (the "Series 1998B Indenture"), between the City and the Trustee, related to the Series 1998B Bonds. The form of the Series 1998A Bonds as set forth in the Series 1998A Indenture is hereby approved and the form of the Series 1998B Bonds as set forth in the Series 1998B Indenture is hereby approved in substantially the forms presented, with such additions thereto or changes therein as are recommended or approved by the City Manager, City Attorney or Bond Counsel and approved by the officer or officers executing the Bonds, to be evidenced conclusively by the execution and delivery of the Bonds. Each of the Mayor, the City Manager of the City, or their designees, is hereby authorized to execute the Bonds by manual or facsimile signature and the City Clerk is hereby authorized to attest such signature by manual or facsimile signature and to affix the facsimile seal of the City to the Bonds. The proceeds of the Series 1998A Bonds shall be used to make a mortgage loan to Gateway Town Center, L.P., a California limited partnership (the "Borrower"), and the Series 1998A Bonds will be secured initially by a Collateral Agreement in favor of the Trustee to be executed and delivered by the Federal National Mortgage Association. The proceeds of the Series 1998B Bonds shall be used to make a second mortgage loan to the Borrower and the Series 1998B Bonds will be secured initially by a letter of credit in favor of the Trustee to be executed and delivered by Bank of America National Trust and Savings Association (the "Bank"). Section 3. State Street Bank and Trust Company of California, N.A. is hereby appointed as Trustee under the Indenture for the City and the owners of the Bonds, with the powers and duties of Trustee as set forth in the Series 1998A Indenture and the Series 1998B Indenture. Section 4. The proposed forms of the Series 1998A Indenture and the Series 1998B Indenture presented to this meeting are hereby approved. Each of the Mayor, the City Manager, the Deputy City Manager and the City Clerk of the City, or the designee of any of them, is hereby authorized and directed, for and in the name and on behalf of the City, to execute and deliver a Series I 998A Indenture and a Series 1998B Indenture in substantially the forms presented, with such additions thereto or changes therein as are recommended or approved by the City Manager, City 6112733\24036,0003 2 J.. 'ó /-? r- Ä -------..------------- --------_._._~- --..- Attorney or Bond Counsel and approved by the officer or officers executing the Indentures, with the approval of such officer or officers to be evidenced conclusively by the execution and delivery of such document, provided that such additions or changes shall not authorize a combined aggregate principal amount of Bonds in excess of $43,000,000. Section 5. The proposed fonn of Bond Purchase Agreement, among the City, the Borrower and Newman and Associates, Inc. (the "Purchaser") related to the Series 1998A Bonds, presented to this meeting (the "Purchase Agreement"), is hereby approved. Each of the Mayor, the City Manager, the Deputy City Manager and the City Clerk of the City, or the designee of any of them, is hereby authorized and directed, for and in the name and on behalf of the City, to accept the offer of the Purchaser to purchase the Series 1998A Bonds contained in the Purchase Agreement and to execute and deliver said Purchase Agreement in substantially said fonn, with such additions thereto or changes therein as are recommended or approved by the City Manager, City Attorney or Bond Counsel and approved by the officer or officers executing the Bond Purchase Agreement, with the approval of such officer or officers to be evidenced conclusively by the execution and delivery of such document. The principal amount of the Series 1998A Bonds shall not exceed $43,000,000 and in no event shall the combined principal amount of the Series 1998A Bonds and the Series 1998B Bonds exceed $43,000,000. Section 6. The proposed fonn of Private Placement Agreement, among the City, the Borrower and Newman and Associates, Inc. related to the Series 1998B Bonds, presented to this meeting (the "Private Placement Agreement"), is hereby approved. Each of the Mayor, the City Manager, the Deputy City Manager and the City Clerk of the City, or the designee of any of them, is hereby authorized and directed, for and in the name and on behalf of the City, to accept the offer of the purchaser to purchase the Series 1998B Bonds contained in the Purchase Agreement and to execute and deliver said Purchase Agreement in substantially said fonn, with such additions thereto or changes therein as are recommended or approved by the City Manager, City Attorney or Bond Counsel and approved by the officer or officers executing the Private Placement Agreement, with the approval of such officer or officers to be evidenced conclusively by the execution and delivery of such document. The Series 1998B Bonds may be issued in an aggregate principal amount which when added to the principal amount of the Series 1998A Bonds equals, but does not exceed, $43,000,000. Section 7. The proposed fonns of the Financing Agreement related to the Series 1998A Bonds (the "Series 1998A Financing Agreement") and the Loan Agreement related to the Series 1998B Bonds (the "Series 1998B Financing Agreement") among the City, the Trustee and the Borrower presented to this meeting are hereby approved. Each ofthe Mayor, the City Manager, the Deputy City Manager and the City Clerk of the City, or the designee of any of them, is hereby authorized and directed, for and in the name and on behalf of the City, to execute and deliver a Series 1998A Financing Agreement and a Series 1998B Financing Agreement in substantially the fonns presented, with such additions thereto or changes therein as are recommended or approved by the City Manager, City Attorney or Bond Counsel and approved by the officer or officers executing such documents, the approval of such officer or officers to be evidenced conclusively by the execution and delivery of such documents. Section 8. The proposed fonn of Mortgage Loan Documents related to the Series 1998A Bonds, as such tenn is defined in the Series 1998A Financing Agreement (the "Series 1998A 6112733\24036.0003 3 ..2g'A~3 Mortgage Loan Documents"), including the Subordination Agreement relating to the Series 1998A Bonds presented to this meeting are hereby approved in substantially the form presented at this meeting for use in connection with the loan to the Borrower pursuant to the Series 1998A Financing Agreement. Each of the Mayor, the City Manager, the Deputy City Manager and the City Clerk of the City, or the designee of any ofthem, is hereby authorized and directed, for and in the name and on behalf of the City, to execute and deliver the Series 1998A Mortgage Loan Documents to which the City is a party in substantially said form, with such additions thereto or changes therein as are recommended or approved by the City Manager, City Attorney or Bond Counsel and approved by the officer or officers executing such documents, the approval of such officer or officers to be evidenced conclusively by the execution and delivery of such documents. Section 9. The proposed form of Regulatory Agreement and Declaration of Restrictive Covenants (the "Regulatory Agreement"), among the City, the Trustee and the Borrower presented to this meeting is hereby approved. Each of the Mayor, the City Manager, the Deputy City Manager and the City Clerk of the City, or the designee of any ofthem, is hereby authorized and directed, for and in the name and on behalf of the City, to execute and deliver a Regulatory Agreement in substantially said form, with such additions thereto or changes therein as are recommended or approved by the City Manager, City Attorney or Bond Counsel and approved by the officer or officers executing the Regulatory Agreement, the approval of such officers to be evidenced conclusively by the execution and delivery of such document. Section 10. The proposed form of Intercreditor Agreement related to the Series 1998B Bonds (the "Intercreditor Agreement"), among the City, the Bank and the Trustee presented to this meeting is hereby approved. Each of the Mayor, the City Manager, the Deputy City Manager and the City Clerk of the City, or the designee of any of them, is hereby authorized and directed, for and in the name and on behalf of the City, to execute and deliver the Intercreditor Agreement in substantially said form, with such additions thereto or changes therein as are recommended or approved by the City Manager, City Attorney or Bond Counsel and approved by the officer or officers executing the Intercreditor Agreement, the approval of such officer or officers to be evidenced conclusively by the execution and delivery of such document. Section II. The proposed form of Subordination Agreement related to the Series 1998B Bonds (the "Subordination Agreement"), among the City, KBMH Capital, Inc., a California corporation, Gateway Town Center, L.P., a California limited partnership, and the Trustee presented to this meeting is hereby approved. Each of the Mayor, the City Manager, the Deputy City Manager and the City Clerk of the City, or the designee of any of them, is hereby authorized and directed, for and in the name and on behalf of the City, to execute and deliver the Subordination Agreement in substantially said form, with such additions thereto or changes therein as are recommended or approved by the City Manager, City Attorney or Bond Counsel and approved by the officer or officers executing the Subordination Agreement, the approval of such officer or officers to be evidenced conclusively by the execution and delivery of such document. Section 12. The proposed form of Preliminary Official Statement related to the Series 1998A Bonds (the "Preliminary Official Statement") presented to this meeting is hereby approved, and the Purchaser is hereby authorized to distribute the Preliminary Official Statement to prospective purchasers of the Series 1998A Bonds in the form hereby approved, together with such conforming changes therein or additions thereto as are determined necessary by the Mayor or the City Manager 6112733\24036,0003 4 16"/J /'/ ------- of the City, upon consultation with the City Attorney, to rnake such Preliminary Official Statement "final" as of its date. Each of the Mayor, the City Manager, the Deputy City Manager and the City Clerk of the City, or the designee of any of them, is hereby authorized and directed, for and in the name and on behalf of the City, to execute a final Official Statement for the Bonds in substantially the fonn of the Preliminary Official Statement, with such additions thereto or changes therein describing the specific fonn and tenns of the Bonds as are recommended or approved by the City Manager or the City Attorney and approved by the officer executing the Official Statement, such approval to be evidenced conclusively by the execution and delivery of the Official Statement. Section 13. The proposed fonn of Preliminary Private Placement Memorandum related to the Series 1998B Bonds (the "Preliminary Private Placement Memorandum") presented to this meeting is hereby approved, and the Purchaser is hereby authorized to distribute the Preliminary Private Placement Memorandum to prospective purchasers of the Series 1998B Bonds in the fonn hereby approved, together with such confonning changes therein or additions thereto as are detennined necessary by the Mayor or the City Manager of the City, upon consultation with the City Attorney, to make such Preliminary Private Placement Memorandum "final" as of its date. Each of the Mayor, the City Manager, the Deputy City Manager and the City Clerk of the City, or the designee of any of them, is hereby authorized and directed, for and in the name and on behalf of the City, to execute a final Private Placement Memorandum for the Bonds in substantially the fonn of the Preliminary Private Placement Memorandum, with such additions thereto or changes therein describing the specific fonn and tenns of the Bonds as are recommended or approved by the City Manager, City Attorney or Bond Counsel and approved by the officer executing the Official Statement, such approval to be evidenced conclusively by the execution and delivery of the Official Statement. Section 14. All actions heretofore taken by the officers and agents of the City with respect to the establishment of the Program and the sale and issuance of the Bonds are hereby approved, confinned and ratified. Upon approval of the City Manager with the advice of the City Attorney, the proper officers of the City are hereby authorized and directed, for and in the name and on behalf of the City, to do any and all things and take any and all actions and execute and deliver any and all certificates, agreements and other documents (including an assignment of the City's interest in the Mortgage Loan Documents for the Series 1998A Bonds to Fannie Mae, a construction deed of trust for the Series 1998B Bonds, an assignment of such deed of trust to the trustee for the Series 1998B Bonds and instructions the Trustee to authenticate the Bonds and to pay the costs of issuing the Bonds in accordance with the provisions of the Series 1998A Indenture and the Series 1998B Indenture) which they, or any of them, may deem necessary or advisable in order to consummate the lawful issuance and delivery of the Bonds in accordance with this Resolution and in order to carry out and administer the Program. Should the Mayor be unavailable to execute any of the documents specified above, then any other available member of the City Council is hereby authorized to sign such documents on behalf of the City in the place of such officer. Any document authorized to be signed by the City Clerk may be signed by a duly appointed deputy clerk. All documents signed by the facsimile signature of any member of the City Council shall be deemed to constitute an original of such document. Section 15. If any section, paragraph or provision of this Resolution shall be held to be invalid or unenforceable for any reason, the invalidity or unenforceability of such section, paragraph or provision shall not affect any remaining provisions of this Resolution. 611273.3\24036.0003 5 02~/J ~ . , -_.."."-.. Section 16. This Resolution shall take effect immediately upon its adoption. ADOPTED, SIGNED AND APPROVED and effective as of the 6th day of October, 1998. Mayor ATTEST: City Clerk 611273.3\24036,0003 6 .1S'/l ~ t -.-..-.....-..........-...?-.- STATE OF CALIFORNIA ) ) ss. COUNTY OF SAN DIEGO ) I, , City Clerk of the City Council of the City of Chula Vista, do hereby certify that the foregoing resolution was duly adopted by the City Council of said City at a regular meeting held on the 6th day of October, 1998, and that it was so adopted by the following vote: AYES: NOES: ABSENT: ABSTAIN: City Clerk of the City of Chula Vista STATE OF CALIFORNIA ) ) ss. COUNTY OF SAN DIEGO ) I, , City Clerk of the City Council of the City of Chula Vista, do hereby certify that the above and foregoing is a full, true and correct copy of RESOLUTION NO. of said Council, and that the same has not been amended or repealed. DATED: , 1998 City Clerk of the City of Chula Vista 6112733\24036.0003 7 d.JŠ~ /'? RESOLUTION NO. ) 9 ,,20~ RESOLUTION OF THE CITY COUNCil OF THE CITY OF CHULA VISTA APPROVING AN AMENDMENT TO THE AFFORDABLE HOUSING AGREEMENT WITH MCMilLIN OTAY RANCH, INC. DECLARING THE AFFORDABLE HOUSING OBLIGATIONS FOR OTAY RANCH SPA ONE SATISFIED SUBJECT TO CONDITIONS WHEREAS, on February 10, 1998, the City and McMillin Company entered into an Affordable Housing Agreement for the McMillin Otay Ranch Planned Community; and WHEREAS, the Affordable Housing Agreement implemented the Chula Vista Housing Element of the General Plan, and related entitlements, including Condition 96 of the Tentative Map 97-01, by committing McMillin Otay Ranch, Inc. to provide seventy four (74) low and seventy four (74) moderate income housing units within the McMillin Otay Ranch Planned Community; and WHEREAS, McMillin Otay Ranch, Inc. proposes to satisfy its low and moderate income housing obligations under the Affordable Housing Agreement with the development by Gateway Town Center, LP. of a 440 unit multi-family apartment project; and WHEREAS, the City agrees that McMillin Otay Ranch, Inc shall have satisfied its obligation under the Affordable Housing Agreement upon completion of construction of seventy four (74) low and seventy four (74) moderate income housing units within Gateway Town Center and verification of occupancy of these affordable housing units by low and moderate income households; and WHEREAS, the Environmental Review Coordinator has determined that the First Amendment to the Affordable Housing Agreement is exempt from CEQA review under Section 15061 (b )(3) in that the Amendment to the Agreement will not have the possibility of having a significant effect on the environment, beyond that already analyzed. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does hereby approve the First Amendment to Affordable Housing Agreement related to McMillin Otay Ranch SPA One in the form presented, a copy of which shall be kept on file in the office of the City Clerk as Document No. BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby authorized and directed to execute said First Amendment to the Affordable Housing Agreement for and on behalf of the City of Chula Vista. Presented by Approved as to form by ~~~ Chris Salomone Director of Community Development [(JPA:lh) H:\HOME\COMMDEV\RESOS\MCMILLlN (Sep1ember30, 1998 (1:24pm)] ;JJjß-/ Recording Requested by: ) CITY CLERK ) ) When Recorded, Mail to: ) ) CITY OF CHULA VISTA ) 276 Fourth Avenue ) Chula vista, CA 91910 ) Attn: Housing Coordinator ) ------------------------------------------------------------ FIRST AMENDMENT TO AFFORDABLE HOUSING AGREEMENT [MCMILLIN OTAY RANCH LLC] This FIRST AMENDMENT TO AFFORDABLE HOUSING AGREEMENT ("Amendment") is entered into effective as of October 6, 1998 by and between McMillin Otay Ranch, LLC, a Delaware limited liability company ("Developer"), and the city of Chula vista, a California municipal corporation ("City"), with reference to the following facts: A. Developer and City have previously entered into that certain Affordable Housing Agreement dated February 10, 1998 ("Agreement") relating to Developer's proposed development of a master planned community (" proj ect") on certain real property owned by Developer within the city described on Exhibit A attached hereto and incorporated herein by this reference ("Property"). B, The Agreement implemented The Chula vista Housing Element of the General Plan, and related entitlements, including Condition 96 of Tentative Map 97-01, by committing the developer to provide low income and moderate income affordable housing units within the Project on the terms and conditions set forth therein. C. Developer is proposing to satisfy its obligations under the Agreement with the development by Gateway Town Center, L.P. ("Gateway") of a 440 unit multi-family apartment project ("Gateway Project") on parcels R-43 and R-44 of the property, subject to the terms and conditions of a Regulatory Agreement and Declaration of Restrictive Covenants by and among the city, Gateway and State Street Bank and Trust Company of California, N .A. ("Regulatory Agreement") . D. City is willing to agree that Developer has satisfied its obligations under the Agreement through the development of the Gateway Project on the terms and conditions set forth herein. H:\Home\Attorney\MCMil1in.3 1 ;¿rß--;z E. Except as otherwise provided herein, all capitalized terms used herein shall have the meanings ascribed thereto in the Agreement. NOW THEREFORE, in consideration of the above recitals, the mutual promises described herein, and other good and valuable consideration the parties acknowledge as satisfactory, the parties agree to amend the Agreement as follows: 1. Low Income Housinq. Developer shall be deemed to have satisfied its Developer's Obligation under the Agreement with respect to Low Income Housing for the Project upon the completion of construction of the Gateway Project and the certification by Gateway that seventy four (74) "Low Income Units" have been occupied therein by "Low Income Tenants". For purposes of this Section, "Low Income Units" and "Low Income Tenants" shall have the meanings ascribed thereto in the Regulatory Agreement. 2. Moderate Income Housinq. Developer shall be deemed to have satisfied its Developer's Obligation under the Agreement with respect to Moderate Income Housing for the Project upon the completion of construction of the Gateway Project and the demonstration by Developer, based upon information provided by Gateway and reasonably approved by City, that seventy four (74) "Moderate Income Housing units" have been occupied therein by "Moderate Income Households". This requirement relates to initial occupancy only and shall not be a continuing obligation. For purposes of this Section, "Moderate Income Housing Units" and "Moderate Income Households" shall have the meanings ascribed thereto in the Agreement. 3. proiect Level Aqreement. City agrees that the Regulatory Agreement shall constitute the Project Level Agreement with respect to the Gateway Project. 4. Aqreement to Meet and Confer Reqardinq For-Sale Moderate Income Opportunities. Developer agrees to meet and confer in good faith with City staff from time to time to explore the potential for the provision of "for sale" Moderate Income Housing within the Project to Moderate Income Households in accordance with City programs established for such purpose. Notwithstanding the foregoing, such agreement to meet and confer does not commit the Developer to provide additional Moderate Income Housing units above and beyond those required by the Agreement as amended hereby. 5. proiect Size Increases. Developer acknowledges and agrees that the extent of Developer's Obligation described herein is premised upon the Project being comprised of one thousand four hundred and eighty (1480) residential units. In the event that the total number of residential units within the Project increases beyond 1480, Developer may be required to provide additional H:\Home\Attorney\MCMil1in.3 2 d-Ý ß--3 affordable housing units within the Project in accordance with the SPA One Affordable Housing Plan and the Agreement. 6. Effect of Amendment. This Amendment revises the Agreement to the extent inconsistent therewith. Except as amended hereby, all other terms and conditions of the Agreement shall remain in full force and effect. [NEXT PAGE IS SIGNATURE PAGE] H:\Rome\Attorney\MCMillin.3 3 oZ~!J-t( SIGNATURE PAGE TO AFFORDABLE HOUSING AGREEMENT IN WITNESS WHEREOF, City and Developers have executed this Agreement effective as of October 6, 1998. CITY OF CHULA VISTA McMILLIN OTAY RANCH, LLC, a Delaware limited liability company By: McMILLIN O'1W: R7.n~,cP Shirley Horton COMPANIES, a Delaware Mayor limited liability company, its m a member Attest: Beverly Authelet city Clerk Approved as to form by TO BE NOTARIZED City Attorney Approved as to form by Attorney for Developer H:\Home\Attorney\MCMillin.3 4 ;¿rß -- f =Õ:? :.=. :357 . ,:04i4r1 - EXHIBIT A , Page 1 of 2 LEGAL DESCRIPTION' PARCEL 1 BEING A PORTION OF QUARTER SECTION 11 AND A PORTION OF QUARTER SECTION 12 OF RANCHO DE LA NACION, IN TIm coUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ,...CCORDING TO MAP THEREOF NO, 166, BY MORRILL FILBD IN THE omCE OF TIm COUNTY RECORDER OF SAN DŒGO COUNTY, MAY 1, 1869, BEING MORE PARTIctJLARl. Y DESCRIBED AS FOU.OWS: COMMENCING AT THE SOu:rHEAS!ERl.Y coRNER OF FJ!.ACTIONAL QUARTER SBCTION 13; THENCE ALONG THE soUTHERLY LINE OF SAID FRACTIONAL QUARTER SOUTH 71 °57'24" WEST 2600.99 FEET TO THE sourHWESTERLY CORNER OF SAID FRAcrIONAL QUARTER: TIŒNCE ALONG 'mE WESTERLY LINE THEREOF ~ORTH 17"51'21" WEST 4171.11 FEET TO 'mE sotJ'I'HWESTERLY CORNER OF SAID QUAJ/.'I'BR SECTION 11; '!'BENCE cONTINUING ALONG THE ,WBS'ISLY LINE THEREOF ,. :-IORTH 17°51'21" WEST 201.45 FEET TO THE TRUE POINT OF BEGINNING; THENCE coN'l'lNUING NORTIi 17"51'21" WEST 1677.69 FEET TO THE sotJ'!'HERl.Y RIGHT-OF-WAY LINE OF TEL.EORAPH CANYON ROAD AS DESCRIBED IN pARCEL NO, 66141-A IN DEED RECORDED .6J'RIL 18, 1967 AS FILE NO, ~304 OF OR"ICIAL1ŒCORDS; THENCE ALONG SAID RIGHT-OF-WAY NORTH 42°03'10" EAST 426.71 FEET ; THENCE SOUTH 47°56'50" EAST 0.04 FEET TO 'mE BEGINN1NG OF .... NON-TANGENT. 1933.!XI-lIOOT RADIUS CURVE CONCAVE soUTHEAS'I'E1U.y, A RADIAL LINE TO SAID POINT BEARS NORTH 47°52'57" WEST; THENCE ALONG THE ARC OF SAID CURVE NOR'1'HEASTERL Y 707.61 FEET THROUGH .... CENTRAL ....NGLE OF W058'27": i'HENCE TANGENT TO SAID CURVE NORTH 63"OS'30" EAST 1341.68 FEET ; THENCE SOUTH 26°52'33" EAST 0.65 FEET : THENCE NORTH 63°07'26" EAST 154-45 FEET TO THE BEGINNING OF A TANGENT 1933.00-1"00'1' RADIUS CURVE CONCAVE soumEASTERLY, A RADIAL LINE TO SAID POINT BEARS NORTH 26°52'34" WEST: THENCE ALONG TIm ARC OF SAID CURVE NOR'I'HEAS"l'BRL Y 89.77 FEET TBP.OUGB A CENTRAL ANGLE OF 02°39'4Ú" TO THE EAST!!RL Y UNB OF SAID QUARTER SECI'lON 11; THENCE LEAVING SAID CURVE ALONG '!HE E.ASIERL Y UNB TBBREOF SOUTH 17"52'24" EAST 3694.65 FEET TO THE BBGINNING OF ANON-TANGENT 500.00-FOOT RADros CURVE CONCAVE soU'l'HWESTERL Y, A RADIAL LINE TO SAID c:tJRVE BEARS NORTH 25"40'03" EAST, SAID POINT BEING A DISTANCE OJ{ 1107.47 FEET SOtTl'BBRLY OF THE NORTHEASTERLY cORNER OF SAID QUARTS SECTION 12; THENCEALONO THE ARC OF SAID CURVE NORTHWESTERLY 131,37 FEET nmOUGH A CP.N'l'RAL ANCJI.B OF 15"03'14"; TBBNCE TANGENI'TO SAID CURVE NORTH 79"23'11" WEST 2461.0:2 FEET TO TBE BEQINNING OF A TANGENT 6OO.oo-FOOT RADIUS CURVE CONCAVE soUTHERLY; THENCE ALONG 11œ ¡.N; OF SAID CURVE NORTHWESTERLY 342.82 FEET THROUGH A ŒNTRAL ANGLE OF 32°44'13" TO THE ntJB POINT OF BEGINNING. CONTAINS 162.960 ACRES MORE OR LESS .)~ß ~? J..--_I.,.,..t ..,... - , ... ..._....__·M" ='¿;=:. :...;. :"=-=.( :- : ~_\4.J,..,.. EXHIBIT A Page 2 of 2 ; PÞ<RCEL 2 BEING A PORTION OF QUARTER SECTION 11. A PORTION OF QUARTER SECTION 12 AND A PORTION OF FRACTIONAL QUARTER SECTION 13 OF RANCHO DE L-\ NACION, IN 11-:E COUNTY OF SA"~ DIEGO, STATE OF CALIFOR."'I1A. .-\CCORDING TO ~ 11ŒREOF NO. 166, BY MOR.FJLl. FILED IN THE OFFICE OF THE coUNTY RECORDER OF SAN DIEGO COUNTY, :vIAY 1. 1869, BEING MORE PARTIC1.!lARLY DESCRIBED AS FOU.OWS; coMME-"!Œ"G AT THE soUTHEASTERLY CORNER OF FRACTIONAL QUARTER SECTION 13; THENCE ALONG 'mE SOU'IHERLY LINE' OF SAID FRACTIONAL QUAR'ŒR SOUTH 71 °57'24" WEST 2600,99 FE-""1' 70 THE SOUTHWESTERLY CORl'Œ!R OF SAID FRACI'IONAL QUARTER SECTION 13; THENCE ALONG THE WESTERLY LINE THEREOF RTH 17°51'21" WEST 1272.13 FEET TO 'mE TRUE poINT OF BEGINNING, SAID POINT'!lmnG A DISTANCE OF 2.63.21 FEET SOurHERL'.(. OF 'mE sotJ111WES'IERLY CORNER OF SAID QUARTER. SEC'l1CIf 12: ~·~f" THENCE coNTINUE ALONG THE WESTERLy LINE 'I'HBRiœ :'4'ORTH 17°51'21" WEST 3100.43 fEET ïO THE 3EGINNING OF A :-ION-TANGENT 6QO,Oo-FOOT RADIUS CL"RVE CONCAVE SOUTIŒRLY. A RADIAL UNE'I'Q SAID POINT BEARS NORTH 22°07'24" WEST. SAID POINT ALSO BEING A DISTANCE OF 201.45 FEET NORTHERI-Y OF'tØ NORTHWESTERLY CORNER OF SAID QUARTER. SBCI'ION 12; THENCE LEA \lING SAID WESTERLY LINE ALONG THE ABC OF SAID CURVE EASTERLY 342.82 FEET THROUGH A CENTRAL ANGLE OF n044'13"¡ nœNCB TANGENT TO SAID CURVE SOUTH 79°23 '11" EAST 2461.02 FEET TO THE BEGINNING OF A TANGENT SOO.OO-FOar RADIUS CURVE CONCAVE soUTHWESTERLY; THENCE ALONG THE ARC OF SAID CURVE SOUTHEASTER!. Y 131.37 FEET THROUGH A CENTRAL ANGLE OF 15'03'14" TO THE EASTERLY LINE OF SAID QUARTER. SECTION 12., SAID POINT BEING A DISTANCE OF 1107.47 FEET SOum:ERLY OF THB NORTHEASTERLY CORNER OF SAID QUARTER SECTION 12; THENCE ALONG SAID EASTERLY LINE THEREOF SOUTH 17"52'24" EAST 922.18 FEET TO A POINT BEING 598.00 FEET NORTHERLY OF THE soUTHEASTEJU-Y CORNER OF QUARTER SECTION 12; 11ŒNCE LEAVING SAID EASTERLY LINE SOUTH 52"21'27" WEST 611,39 FEET TO THE BEQINNING OF A TANGENT 3500.oo-roOT RADIUS €URVE CONCAVE sourHEASTERLY; THENCE ALONG TIŒ ARC OF SAID CURVE soUTHWBSTERL Y 288.16 FEET THR.OUGH A CENTRAL ANGLE OF 04°43'02"; THENCE TANGENT TO SAID CURVE SOUTH 47"38'25" WEST 581,33 FEET TO THE BBGINNING OF A TANGENT 2S00.00-POOT RADIUS CURVE CONCAVE NOR,THWESTERLY: THENCE ALONG TBB ABC OF SAID CURVE sot.JTHWESTERL Y 621.73 FEET THROUGH A CENTRAL ANGI2 OF 14·14'56": TBENCB TANGENT TO SAID CURVE SOUTH 61°53'21" WEST 647.78 FEET TO THE TRUE POINT OF BEGINNING CONTAINS 126.945 ACRES MORE OR. LESS ~ 2~!] - ? .._m__...._.._....__ _ _____ EXHIBIT 1 .EXI-iJS,r / .- ~ '1111I . ~ I BEll II. Ii .!j~ -= ... .... ~ - ... u - II \ .. .... ~ -, II I @I iIi' A-I EXHIBIT 2 . I" .. & l- LL. « ~ c . I I!l 0 : I!l tJ F 0 ~ <: « tJ U « II. 0: t,¡ ::J - U- 0 I!l ,.0 j a. « o::x; _ 0: I!l t,¡~ ~ ~ 0 ... <:... tJ ~ tJ O:...-.I..~ s: ... 0 O:::J ~t,¡ _ <: ~ ~~ "':x; __ t,¡ -.I Q tJ...· f.;;, ~ ~ ßð ~Io. ..... ~.U tJ...o:...o ........t,¡ 0::;: <:>- _ I!l::. t,¡:;1!l 00: ~ Q<: ~ -.I<¡ tJ« I ~'.. ;::¡¡¡ Ù1 - ~ a: 2; -l i5 - ~ ~~ ~g g~ ~Üj ~ -.lU QU U1o. t,¡[ g§ ~ ~ ¡;j <: tJ ~::J ~ ~ .... t,¡:x; t,¡ 0: <::'5 .n... " QtJ -.1« -... "" - - - -d. . LÅ N\E.O\þ" ROAO , - Sent By: CHELSEA INV.; 61 9 259 11 36; 30 Sep 98 12:07PM;Job 431 ;page 4/5 I- < . )j¡'. ~ ·t", C I"~ .. "'" r. - ..... - , - - - ,.,., - ,. .r ..",. ','-- i'¥f_! " ~: ',,' '; ,- '<,!·}t·,,\.:: / :'!'\,. - - :...~ ..... .., i' .r. '",";'.-.~ ... /A -...3 EXHIBIT 3 RECORDING REQUESTED BY AND ) WHEN RECORDED RETURN TO: ) ) ROBERT J. WHALEN, ESQ, ) STRADLING YOCCA CARLSON & RAUTH ) P. O. Box 7680 ) Newport Beach, California 92660 ) [Space above for Recorder's use.] REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS By and Among CITY OF CHULA VISTA, CALIFORNIA and STATE STREET BANK AND TRUST COMPANY OF CALIFORNIA, N.A., as Trustee and GATEWAY TOWN CENTER, L.P., as Borrower Dated as of October 1, 1998 Relating to $ CITY OF CHULA VISTA, CALIFORNIA MUL TIF AMIL Y HOUSING REVENUE BONDS, SERIES 1998A (GATEWAY TOWN CENTER) and CITY OF CHULA VISTA, CALIFORNIA SUBORDINATE MULTIFAMILY HOUSING REVENUE BONDS, SERIES 1998B (GATEWAY TOWN CENTER) 604284.3\24036.0003 /1-4 _ _ _~_.__.____._-'m_______..______._~ Section 1. Definitions and Interpretation. ................................................................. ................ .....2 Section 2. Acquisition, Construction, Equipping and Completion of the Project .........................5 Section 3. Residential Rental Property. .......................................... ...............................................6 Section 4. Low Income Tenants. ....................................................................................................8 Section 5. Tax Status of the Bonds. ....................'........................................................................10 Section 6. Modification of Special Tax Covenants. ....................................................................11 Section 7. Indemnification. ........................ .................................................................................. II Section 8. Consideration. ...... ................ .................................. .... ................................................. 13 Section 9. Reliance. ...............................,......................................................................................13 Section 10. Sale or Transfer ofthe Project; Syndication. ..............................................................14 Section II. Term. ....................................... ........................................................................ ............ 15 Section 12. Covenants to Run With the Land. ............................................................................... 15 Section 13. Burden and Benefit. ....................................................................................................16 Section 14. Uniformity; Common Plan............................................................................... ...........16 Section 15. Enforcement. ............................................................................................................... 16 Section 16. Recording and Filing...................................................................................................17 Section 17. Payment of Fees. .........................................................................................................18 Section 18. Governing Law............................................................................................................18 Section 19. Amendments. ..............................................................................................................18 Section 20. Consents of Fannie Mae. .............................................................................................18 Section 21. Trustee Acting Solely in Such Capacity. ....................................................................18 Section 22. Compliance by Borrower. ...........................................................................................18 Section 23. Affordable Housing Agreement. ................................................................................. 19 Section 24. Notice. ......................................................................................................................... 19 Section 25. Severability. ............ ............................. ...... ................................................................. 20 Section 26. Multiple Counterparts. ................................................................................................ 20 Section 27. Personal Obligation of Borrower; Limitations on Recourse to Borrower. .....................................",............................................................................ 20 Signatures ................................................................................................................................... S-1 EXHIBIT A PROJECT SITE ........................................................................................................A-I EXHIBIT B CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE .........................B-1 EXHIBIT C INCOME COMPUTATION AND CERTIFICATION ............................................C-1 /l-S- .~_.- - --- --------~- REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS THIS REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS (the "Regulatory Agreement"), made and entered into as of October 1, 1998, by and among the CITY OF CHULA VISTA, CALIFORNIA, a political subdivision and public body corporate and politic duly organized and existing under the laws of the State of California (together with any successor to its rights, duties and obligations, the "Issuer"), STATE STREET BANK AND TRUST COMPANY OF CALIFORNIA, N.A., as Trustee (the "Trustee"), and GATEWAY TOWN CENTER, L.P., a California limited partnership (the "Borrower"), WITNESSETH: WHEREAS, the Legislature of the State of California enacted Chapter 7 (commencing with Section 52075) of Part 5 of Division 3 I of the Health and Safety Code (the "Act") to authorize cities and counties to issue bonds to finance the acquisition, construction, rehabilitation and development of multifamily rental housing for families and individuals oflow or moderate income; and WHEREAS, the Issuer is a political subdivision (within the meaning of that term in the Regulations of the Department of Treasury and the rulings of the Internal Revenue Service prescribed and promulgated pursuant to Section 103 of the Internal Revenue Code of 1986, as amended (the "Code"»; and WHEREAS, on February 10, 1998, the governing board of the Issuer adopted a resolution (the "Resolution") authorizing the issuance of revenue bonds in connection with financing the acquisition and construction of a 440-unit multifamily rental housing project located in the City of Chula Vista (the "Project"); and WHEREAS, in furtherance of the purposes of the Act and the Resolution and as a part of the Issuer's plan of financing residential rental housing, the Issuer proposes to issue $ aggregate principal amount of its revenue bonds designated "City of Chula Vista, California, Multifamily Housing Revenue Bonds, Series I998A (Gateway Town Center)" (the "Bonds"), the proceeds of which will be loaned to the Borrower (the "Mortgage Loan") which will use the proceeds of the Mortgage Loan to finance the acquisition and construction of the Project for the public purpose of providing decent, safe and sanitary housing for families and individuals of low and moderate income; and WHEREAS, the Issuer, the Trustee, ARCS Commercial Mortgage Co., L.P. (the "Servicer"), and the Borrower have entered into a Financing Agreement, dated the date hereof (the "Financing Agreement"), providing the terms and conditions under which the Issuer will make the Mortgage Loan to the Borrower to finance the acquisition and construction of the Project; and WHEREAS, all things necessary to make the Bonds, when issued as provided in the Indenture, the valid, binding, and limited obligations of the Issuer according to the import thereof, and to constitute the Indenture a valid assignment of the amounts pledged to the payment of the principal of, and premium, if any, and interest on the Bonds have been done and performed, and the 6042843\24036,0003 /1-<'0 _____.._m~_..____.___~._..._ creation, execution, and delivery of the Indenture and the execution and issuance of the Bonds, subject to the tenns thereof, in all respects have been duly authorized; and WHEREAS, the Issuer has considered opportunities to contribute to the economic feasibility of the Project as required by the Act; and WHEREAS, the Issuer has obtained an allocation for the Project of a portion of the State of California's private activity bond volume cap, within the meaning of Section 146 of the Code, in accordance with the procedures established by the California Debt Limit Allocation Committee; and WHEREAS, the Code and the regulations and rulings promulgated with respect thereto and the Act prescribe that the use and operation of the Project be restricted in certain respects and in order to ensure that the Project will be owned and operated in accordance with the Code and the Act, the Issuer, the Trustee and the Borrower have detennined to enter into this Regulatory Agreement in order to set forth certain tenns and conditions relating to the acquisition, construction, equipping and operation of the Project; NOW, THEREFORE, in consideration of the mutual covenants and undertakings set forth herein, and other good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, the Issuer, the Trustee and the Borrower hereby agree as follows: Section 1. Definitions and Interoretation. The following tenns shall have the respective meanings assigned to them in this Section I unless the context in which they are used clearly requires otherwise: "Adjusted Income" - The adjusted income of a person (together with the adjusted income of all persons the age of 18 years or older who intend to reside with such person in one residential unit) as calculated in the manner prescribed in Regulation Section 1.103-8. "Administration Agreement" - The administration agreement to be entered into among the Issuer, the Borrower and any entity other than the Housing Authority of the City of Chula Vista, which is acting as the Program Administrator. "Affiliated Party" - (I) a Person whose relationship with the Borrower would result in a disallowance of losses under Section 267 or 707(b) of the Code, (2) a Person who together with the Borrower are members of the same controlled group of corporations (as defined in Section 1563(a) of the Code, except that "more than 50 percent" shall be substituted for "at least 80 percent" each place it appears therein), (3) a partnership and each of its partners (and their spouses and minor children) whose relationship with the Borrower would result in a disallowance of losses under Section 267 or 707(b) of the Code or (4) an S Corporation and each of its shareholders (and their spouses and minor children) whose relationship with the Borrower would result in a disallowance of losses under Section 267 or 707(b) ofthe Code. "Area" - The San Diego County, California Primary Metropolitan Statistical Area. "Bonds" - City of Chula Vista, California, Multifamily Housing Revenue Bonds, Series 1998A (Gateway Town Center), and the City of Chula Vista, California, Subordinate Multifamily Housing Revenue Bonds (Gateway Town Center), Series 1998B. 6042843\24036.0003 2 /1-7 ~.__.. "Borrower's Tax Certificate" - The certificate of the Borrower, dated as of the Closing Date, with respect to certain Project Costs delivered to the Issuer by the Borrower. "Certificate of Continuing Program Compliance" - The certificate with respect to the Project to be filed by the Borrower with the Program Administrator, which shall be substantially in the form attached hereto as Exhibit B. "City" - The City of Chula Vista, California. "Income Certification" - The Income Computation and Certification Form in substantially the form attached hereto as Exhibit C. "Indenture" - The Trust Indenture, dated as of the date hereof, between the Issuer and the Trustee, pursuant to which the Bonds have been issued, as amended or supplemented from time to time. "Low Income Tenants" - Individuals or families with an Adjusted Income which does not exceed 50 percent of the Median Income for the Area as adjusted for household size as set forth below. In no event, however, will the occupants of a residential unit be considered to be Low Income Tenants if all the occupants are students, as defined in Section 151(c)(4) ofthe Code, as such may be amended, no one of which is entitled to file a joint federal income tax return. Currently, Section 151(c)(4) defines a student as an individual enrolled as a full-time student during each of 5 calendar months during the calendar year in which occupancy of the unit begins at an educational organization which normally maintains a regular faculty and curriculum and normally has a regularly enrolled body of students in attendance or is an individual pursuing a full-time course of institutional on-farm training under the supervision of an accredited agent of such an educational organization or of a state or political subdivision thereof. Household Size Adiustment I 70% 2 80% 3 90% 4 100% 5 108% 6 116% 7 124% 8 132% "Low Income Units" - The dwelling units in the Project designated for occupancy by Low Income Tenants pursuant to Section 4(a) of this Regulatory Agreement. "Median Income for the Area" - The median gross income for the Area as most recently determined by the Secretary of Treasury pursuant to Section 142(d)(2)(B) of the Code. "Person" - Any natural person, firm, partnership, association, limited liability company, corporation, company or public body. 6042843\24036,0003 3 /1-~ .......-~,.~._......ry-- .-...'_.'------ "Program Administrator" - The Housing Authority of the City of Chula Vista, or such other entity as is appointed by the City. "Program Administrator's Fee" - The administrative fee of the Program Administrator as set forth in the Administration Agreement. "Project" - The Project Facilities and the Project Site. "Project Costs" - To the extent authorized by the Code, the Regulations and the Act, any and all costs incurred by the Borrower with respect to the acquisition and construction of the Project, whether paid or incurred prior to or after the sixtieth day preceding February 10, 1998, including, without limitation, costs for site preparation, the planning of housing and related facilities and improvements, the acquisition of property, the removal or demolition of existing structures, the construction of housing and related facilities and improvements, and all other work in connection therewith, and all costs of financing, including, without limitation, the cost of consultant, accounting and legal services, other expenses necessary or incident to determining the feasibility of the Project, administrative and other expenses necessary or incident to the Project and the financing thereof (including reimbursement to any municipality, county or entity for expenditures made for the Project) and all other costs approved by Bond Counsel. "Project Facilities" - The buildings, structures and other improvements on the Project Site, and all fixtures and other property owned by the Borrower and located on, or used in connection with, such buildings, structures and other improvements constituting the Project. "Project Site" - The parcel or parcels of real property described in Exhibit "A", which is attached hereto and by this reference incorporated herein, and all rights and appurtenances thereunto appertaining. "Qualified Project Costs" - The Project Costs (excluding Costs of Issuance) incurred after the sixtieth day preceding February 10, 1998 which either constitute land or property of a character subject to the allowance for depreciation under Section 167 of the Code or are chargeable to a capital account with respect to the Project for federal income tax and financial accounting purposes, or would be so chargeable either with a proper election by the Borrower or but for the proper election by the Borrower to deduct those amounts within the meaning of Regulation Section 1.1 03-8(a)(1 )(i); and provided further that interest accruing after the Completion Date shall not be a Qualified Project Cost; and provided still further that if any portion of the Project is being constructed by (or acquired from) an Affiliated Party (whether as a general contractor or a subcontractor), "Qualified Project Costs" shall include only the actual out-of-pocket capital costs incurred after the sixtieth day preceding February 10, 1998 by such Affiliated Party with respect to the Project (or any portion thereof) within the meaning of Section 147(d)(2) of the Code, as provided in the Tax Certificate. "Qualified Project Period" - The period beginning on the first date on which ten percent of the units in the Project are occupied and ending on the latest of the following dates: (a) the date which is 15 years after the date on which fifty percent of the units in the Project are occupied, (b) the first day on which no tax exempt bonds with respect to the Project are Outstanding, (c) the date on which any assistance provided with respect to the Project under Section 8 of the United States Housing Act of 1937 terminates, or (d) October 1, 2050. 6042843\24036-0003 4 /1-9 Such terms as are not defined herein shall have the meanings assigned to them in the Indenture. Unless the context clearly requires otherwise, as used in this Regulatory Agreement, words of the masculine, feminine or neuter gender shall be construed to include each other gender when appropriate and words of the singular number shall be construed to include the plural number, and vice versa, when appropriate. This Regulatory Agreement and all the terms and provisions hereof shall be construed to effectuate the purposes set forth herein and to sustain the validity hereof. The defined terms used in the preamble and recitals of this Regulatory Agreement have been included for convenience of reference only, and the meaning, construction and interpretation of all defined terms shall be determined by reference to this Section I notwithstanding any contrary definition in the preamble or recitals hereof. The titles and headings of the sections of this Regulatory Agreement have been inserted for convenience of reference only, and are not to be considered a part hereof and shall not in any way modify or restrict any of the terms or provisions hereof or be considered or given any effect in construing this Regulatory Agreement or any provisions hereof or in ascertaining intent, if any question of intent shall arise. Section 2. Acquisition. Construction. Equipping and Completion of the Proiect. The Borrower hereby represents, as of the date hereof, and covenants, warrants and agrees as follows: (a) The Borrower has incurred a substantial binding obligation to acquire, construct and equip the Project, pursuant to which the Borrower is obligated to expend at least five percent of the net sale proceeds of the Bonds. (b) The Borrower's reasonable expectations respecting the total cost of the acquisition, construction and equipping of the Project and the disbursement of Bond proceeds are accurately set forth in the Borrower's Tax Certificate attached to the Tax Certificate which has been delivered to the Issuer. (c) The Borrower shall construct the Project and will proceed with due diligence to complete the acquisition, construction and equipping of the Project and expects to expend the full amount of the proceeds of the Mortgage Loan for Project Costs prior to October I, 200 I. (d) The statements made in the various certificates delivered by the Borrower to the Issuer or the Trustee are true and correct. (e) Money on deposit in any fund or account in connection with the Bonds, whether or not sùch money was derived from other sources, shall not be used by or under the direction of the Borrower, in a manner which would cause the Bonds to be "arbitrage bonds" within the meaning of Section 148 of the Code, and the Borrower specifically agrees that the investment of money in any such fund shall be restricted as may be necessary to prevent the Bonds from being "arbitrage bonds" under the Code. (t) The Borrower (and any person related to it within the meaning of Section 147(a)(2) of the Code) will not take or omit to take, as is applicable, any action if such action or omission would in any way cause the proceeds from the sale of the Bonds to be applied in a manner 6042843\24036,0003 5 fl-( 0 ------------ contrary to the requirements of the Indenture, the Financing Agreement or this Regulatory Agreement. Section 3. Residential Rental Propertv. The Borrower shall own, manage and operate the Project as a "qualified residential rental project" (within the meaning of Section 142(d) of the Code) until the expiration of the Qualified Project Period. To that end, and for the term of this Regulatory Agreement, the Borrower hereby represents, as of the date hereof, and covenants, warrants and agrees as follows: (a) The Project is being acquired, constructed and equipped for the purpose of providing multifamily residential rental property, and the Borrower shall own, manage and operate the Project as a project to provide multifamily residential rental property comprised of a building or structure or several interrelated buildings or structures, together with any functionally related and subordinate facilities, and no other facilities, in accordance with applicable provisions of Section 142(d) of the Code and Section I.103-8(b) of the Regulations, and the Act, and in accordance with such requirements as may be imposed thereby on the Project from time to time. (b) All of the dwelling units in the Project will be similarly constructed units, and, to the extent required by the Code and the Regulations, each dwelling unit in the Project will contain complete separate and distinct facilities for living, sleeping, eating, cooking and sanitation for a single person or a family, including a sleeping area, bathing and sanitation facilities and cooking facilities equipped with a cooking range, refrigerator and sink; provided that any Low Income Tenant may, but shall not be obligated to, provide a refrigerator for the unit to be occupied. (c) None of the dwelling units in the Project will at any time be utilized on a transient basis, or will ever be used as a hotel, motel, dormitory, fraternity house, sorority house, rooming house, nursing home, hospital, sanitarium, rest home, retirement house or trailer court or park. (d) No part of the Project will at any time be owned or used as a condominium or by a cooperative housing corporation. Other than obtaining a final subdivision map on the Project and a Final Subdivision Public Report from the California Department of Real Estate, the Borrower shall not take any steps in connection with a conversion of the Project to a condominium or cooperative ownership except with the prior written approving opinion of Bond Counsel that the interest on the Bonds will not become taxable thereby under Section 103 of the Code. (e) All of the dwelling units will be available for rental on a continuous basis to members of the general public and the Borrower will not give preference to any particular class or group in renting the dwelling units in the Project, except to the extent that dwelling units are required to be leased or rented to Low Income Tenants and to holders of Section 8 certificates or vouchers. (f) The Project Site consists of a parcel or parcels that are contiguous except for the interposition of a road, street or stream, and all of the Project Facilities will comprise a single geographically and functionally integrated project for residential rental property, as evidenced by the ownership, management, accounting and operation of the Project. 604284.3\24036,0003 6 ;1-11 . . -_....._......--.~"..~------~ (g) No dwelling unit in any building or structure in the Project which contains fewer than five units shall be occupied by the Borrower or by persons related to or affiliated with the Borrower. (h) Should involuntary noncompliance with the provisions of Section Ll03-8(b) of the Regulations be caused by fire, seizure, requisition, foreclosure, transfer of title by deed in lieu of foreclosure, change in a federal law or an action of a federal agency after the Closing Date which prevents the Issuer from enforcing the requirements of the Regulations, or condemnation or similar event, the Borrower covenants that, within a "reasonable period" determined in accordance with the Regulations, it will either prepay the Mortgage Note or apply any proceeds received as a result of any of the preceding events to reconstruct the Project to meet the requirements of Section l42(d) of the Code and the Regulations. (i) The Borrower shall not discriminate on the basis of race, religion, creed, color, ethnic group identification, sex, source of income (e.g. AFDC, SSI), mental or physical disability, age, national origin or marital status in the rental, lease, use or occupancy of the Project or in connection with the employment or application for employment of persons for the operation and management of the Project. G) Following the expiration or termination of the Qualified Project Period, Low Income Units shall remain available to the Low Income Tenants then occupying such units at the date of expiration or termination of the Qualified Project Period at a rent not greater than the rent determined pursuant to Section 4(a)(ii) below until the earliest of any of the following occurs: (i) The household's income exceeds 140 percent of the income at which such household would qualify as a Low Income Tenant. (ii) The household voluntarily moves or is evicted for "good cause." For these purposes, "good cause" means the nonpayment of rent or allegation of facts necessary to prove major, or repeated minor, violations of material provisions of the lease agreement which detrimentally affect the health and safety of other persons or the structure, the fiscal integrity of the Project, or the purposes or special programs of the Project. (iii) Thirty (30) years after the commencement of the Qualified Project Period. (iv) The Borrower pays relocation assistance and benefits to such tenant as provided in Government Code Section 7264(b). (k) During the three-year period prior to the expiration of the Qualified Project Period, the Borrower shall continue to make available to Low Income Tenants Low Income Units that have been vacated to the same extent that other units in the Project are made available to the general public. (I) The Issuer may but shall not be required to monitor the Borrower's compliance with the provisions of subparagraph (j) above. 6042843\24036,0003 7 A -Id-- --- --".-- Section 4. Low Income Tenants. Pursuant to the requirements of Section 142(d) of the Code and applicable provisions of the Act, the Borrower hereby represents, as of the date hereof, and warrants, covenants and agrees as follows: (a) During the Qualified Project Period: (i) not less than twenty percent (20%) of the units in the Project shall be designated as Low Income Units and shall be continuously occupied by Low Income Tenants. Such Low Income Units shall be of comparable quality and offer a range of sizes and number of bedrooms comparable to those units which are available to other tenants and shall be distributed throughout the Project. (ii) the monthly rent charged for all the Low Income Units shall not exceed one-twelfth of the amount obtained by multiplying 30% times 50% of the Median Income for the Area, as adjusted for household size utilizing the percentages set forth above under the definition of Low Income Tenant and assuming the following unit sizes and household sizes: Unit Size Household Size Studio One Person One Bedroom Two Persons Two Bedrooms Three Persons Three Bedrooms Four Persons A unit occupied by a Low Income Tenant who at the commencement of the occupancy is a Low Income Tenant shall be treated as occupied by a Low Income Tenant until a recertification of such tenant's income in accordance with Section 4( c) below demonstrates that such tenant no longer qualifies as a Low Income Tenant and thereafter any residential unit of comparable or smaller size in the Project is occupied by a new resident other than a Low Income Tenant. Moreover, a unit previously occupied by a Low Income Tenant and then vacated shall be considered occupied by a Low Income Tenant until reoccupied, other than for a temporary period, at which time the character of the unit shall be redetermined. In no event shall such temporary period exceed thirty-one (31) days. (b) Immediately prior to a Low Income Tenant's occupancy of a Low Income Unit (or prior to the Closing Date with respect to Low Income Units occupied prior to the Closing Date), the Borrower will obtain and maintain on file an Income Certification from each Low Income Tenant occupying a Low Income Unit, dated immediately prior to the initial occupancy of such Low Income Tenant in the Project (or prior to the Closing Date in the case of existing Low Income Tenants). In addition, the Borrower will provide such further information as may be required in the future by the State of California, the Issuer, the Program Administrator, or in such other form and manner as may be required by applicable rules, rulings, policies, procedures or other official statements now or hereafter promulgated, proposed or made by the Department of the Treasury or the Internal Revenue Service with respect to obligations issued under Section 142(d) of the Code. The Borrower shall verify that the income provided by an applicant is accurate by taking one or more of the following steps as a part of the verification process: (1) obtain a federal income tax 6042843\24036,0003 8 /1 -/3 return for the most recent tax year, (2) obtain a written verification of income and employment from applicant's current employer, (3) if an applicant is unemployed or did not file a tax return for the previous calendar year, obtain other verification of such applicant's income satisfactory to the Program Administrator or (4) such other infonnation as may be reasonably requested by the Program Administrator. Copies of the most recent Income Certifications for Low Income Tenants commencing or continuing occupancy of a Low Income Unit shall be attached to the quarterly report to be filed with the Program Administrator within 10 days of the last day of each quarter during the Qualified Project Period. (c) Immediately prior to the first anniversary date of the occupancy of a Low Income Unit by one or more Low Income Tenants, and on each anniversary date thereafter, the Borrower shall recertify the income of the occupants of each Low Income Unit by obtaining a completed Income Certification based upon the current income of each occupant of the unit. In the event the recertification demonstrates that such household's income exceeds 140% of the income at which such household would qualify as Low Income Tenants, such household will no longer qualify as a Low Income Tenant and the Borrower will rent the next available unit of comparable or smaller size to one or more Low Income Tenants. (d) Not later than ten (10) days after the commencement of the Qualified Project Period, and within ten days of the last day of each quarter thereafter during the tenn of this Regulatory Agreement, the Borrower shall advise the Program Administrator of the status of the occupancy of the Project by delivering to such parties a Certificate of Continuing Program Compliance. (e) The Borrower will maintain complete and accurate records pertaining to the Low Income Units, and will penn it any duly authorized representative of the Issuer, the Program Administrator, the Trustee, the Lender, the Department of the Treasury or the Internal Revenue Service to inspect the books and records of the Borrower pertaining to the Project, including those records pertaining to the occupancy of the Low Income Units. (f) The Borrower shall submit to the Secretary of the Treasury annually on the anniversary date of the start of the Qualified Project Period, or such other date as is required by the Secretary, a certification that the Project continues to meet the requirements of Section 142(d) of the Code, and shall provide a copy of such certification to the Program Administrator. (g) Prior to renting any Low Income Units, the Borrower shall prepare and present to the City a marketing plan for the Low Income Units. The Borrower may begin leasing the Low Income Units following the City's approval of the marketing plan. The Borrower shall accept as tenants on the same basis as all other prospective tenants, persons who are recipients of federal certificates or vouchers for rent subsidies pursuant to the existing program under Section 8 of the United States Housing Act of 1937, or its successor. The Borrower agrees to contact the San Diego County Housing Authority for a list of persons who are recipients of, or who are applying for, Section 8 certificates or vouchers whenever a Low Income Unit becomes available but not more frequently than every four weeks. The Borrower shall not apply selection criteria to Section 8 604284.3\24036,0003 9 /1-11- f, .-.--...------ certificate or voucher holders that are more burdensome than criteria applied to all other prospective tenants. (h) The Low Income Units shall be of a comparable quality and offer a range of sizes and number of bedrooms comparable to the units that are available to other tenants, and not less than 30 Low Income Units shall be three bedroom units. (i) The Borrower shall not collect any additional fees or payments from a Low Income Tenant except security deposits or other deposits required of all tenants or for services or items requested by a tenant. The Borrower shall not collect security deposits or other deposits from Section 8 certificate or voucher holders in excess of those allowed under the Section 8 Program. The Borrower shall not discriminate against Low Income Tenant applicants on the basis of source of income (i.e., AFDC or SSI), and the Borrower shall consider a prospective tenant's previous rent history of at least one year as evidence of the ability to pay the applicable rent. G) Each lease pertaining to a Low Income Unit shall contain a provision to the effect that the Borrower has relied on the income certification and supporting information supplied by the Low Income Tenant in determining qualification for occupancy of the Low Income Unit, and that any material misstatement in such certification (whether or not intentional) will be cause for immediate termination of such lease. Each lease will also contain a provision that failure to cooperate with the annual recertification process reasonably instituted by the Borrower pursuant to Section 4( c) above may at the option of the Borrower disqualifY the unit as a Low Income Unit or provide grounds for termination of the lease. (k) The Borrower will execute and deliver to the Issuer an Administration Agreement applicable to the Project on or before the Closing Date. (I) Prior to the Closing Date, the Borrower agrees to provide to the Program Administrator a copy of the form of application and lease to be provided to prospective Low Income Tenants. The term of the lease shall be not less than thirty (30) days. (m) The Borrower shall notifY the Program Administrator of any change in leasing agents or managers for the Project. Section 5. Tax Status of the Bonds. The Borrower and the Issuer each hereby represents, as of the date hereof, and warrants, covenants and agrees that: (a) It will not knowingly take or permit, or omit to take or cause to be taken, as is appropriate, any action that would adversely affect the exclusion from gross income for federal income tax purposes or the exemption from California personal income taxation of the interest on the Bonds and, if it should take or permit, or omit to take or cause to be taken, any such action, it will take all lawful actions necessary to rescind or correct such actions or omissions promptly upon obtaining knowledge thereof; (b) It will take such action or actions as may be necessary, in the written opinion of Bond Counsel filed with the Issuer and the Trustee, to comply fully with the Act and all applicable rules, rulings, policies, procedures, Regulations or other official statements promulgated, proposed or made by the Department of the Treasury or the Internal Revenue Service pertaining to 6042843\24036-0003 10 /I-IS- obligations issued under Section I 42(d) of the Code to the extent necessary to maintain the exclusion from gross income for federal income tax purposes of interest on the Bonds; and (c) The Borrower, at the Borrower's expense, will file of record such documents and take such other steps as are necessary, in the written opinion of Bond Counsel filed with the Issuer and the Trustee, in order to insure that the requirements and restrictions of this Regulatory Agreement will be binding upon all owners of the Project, including, but not limited to, the execution and recordation of this Regulatory Agreement in the real property records ofthe County of San Diego. The Borrower hereby covenants to notify any subsequent owner of the Project of the requirements and restrictions contained in this Regulatory Agreement in any documents transferring any interest in the Project to another person to the end that such transferee has notice of such restrictions, and to obtain the agreement from any transferee to abide by all requirements and restrictions of this Regulatory Agreement. Section 6. Modification of Special Tax Covenants. The Borrower, the Trustee and the Issuer hereby agree as follows: (a) To the extent any amendments to the Act, the Regulations or the Code shall, in the written opinion of Bond Counsel filed with the Issuer and the Trustee, impose requirements upon the ownership or operation of the Project more restrictive than those imposed by this Regulatory Agreement which must be complied with in order to maintain the exclusion from gross income for federal income tax purposes of interest on the Bonds, this Regulatory Agreement shall be deemed to be automatically amended to impose such additional or more restrictive requirements. (b) To the extent any amendments to the Act, the Regulations or the Code shall, in the written opinion of Bond Counsel filed with the Issuer and the Trustee, impose requirements upon the ownership or operation of the Project less restrictive than imposed by this Regulatory Agreement, this Regulatory Agreement may be amended to conform in whole or in part to such changed requirements should the Issuer, in its sole discretion, determine that such requirements should be made applicable to the Project. (c) The Borrower, the Issuer and, if applicable, the Trustee shall execute, deliver and, if applicable, file of record any and all documents and instruments, necessary to effectuate the intent of this Section 6, and each of the Borrower and the Issuer hereby appoints the Trustee as its true and lawful attorney-in-fact to execute, deliver and, if applicable, file of record on behalf of the Borrower or the Issuer, as is applicable, any such document or instrument (in such form as may be approved in writing by Bond Counsel) if either the Borrower or the Issuer defaults in the performance of its obligations under this subsection (c); provided, however, that the Trustee shall take no action under this subsection (c) without first notifying the Borrower or the Issuer, or both of them, as is applicable, unless directed in writing by the Issuer or the Borrower and without first providing the Borrower or the Issuer, or both, as is applicable, an opportunity to comply with the requirements of this Section 6. Section 7. Indemnification. The Borrower hereby releases the Issuer, the Trustee and the Program Administrator and their officers and employees from, and covenants and agrees to 604284.3\24036,0003 II A-It::, - - .-- ----. - -~-- -- ------------ indemnify, hold hannless and defend the Issuer, the Trustee and the Program Administrator and their respective officers, members, directors, officials, agents and employees and each of them (each, an "indemnified party") from and against any and all claims, losses, costs, damages, demands, expenses, taxes, suits, judgments, actions and liabilities of whatever nature, joint and several (including, without limitation, costs of investigation, attorneys' fees, litigation and court costs, amounts paid in settlement, and amounts paid to discharge judgments), directly or indirectly (a) by or on behalf of any person arising from any cause whatsoever in connection with transactions contemplated hereby or otherwise in connection with the Project, the Bonds, or the execution or amendment of any document relating thereto; (b) arising from any act or omission of the Borrower or any of its agents, servants, employees or licensees, in connection with the Mortgage Loan or the Project; (c) arising in connection with the issuance and sale, resale or reissuance of any Bonds or any certifications or representations made by any person other than the Issuer or the party seeking indemnification in connection therewith and the carrying out by the Borrower of any of the transactions contemplated by the Bonds, the Indenture, the Financing Agreement and this Regulatory Agreement; (d) arising in connection with the operation of the Project, or the conditions, environmental or otherwise, occupancy, use, possession, conduct or management of work done in or about, or from the planning, design, acquisition, installation or construction of, the Project or any part thereof; and (e) arising out of or in connection with the Trustee's acceptance or administration of the trusts created by the Indenture and the exercise of its powers or duties thereunder or under the Financing Agreement, this Regulatory Agreement or any other agreements in connection therewith to which it is a party; except (I) in the case of the foregoing indemnification of the Trustee, the Program Administrator or any of their respective officers, members, directors, agents and employees, to the extent such damages are caused by the negligence or willful misconduct of such person, and (2) in the case of the foregoing indemnification of the Issuer or any of its officers, members, directors, officials, agents and employees, to the extent such damages are caused by the willful misconduct of such person. In the event that any action or proceeding is brought against any indemnified party with respect to which indemnity may be sought hereunder, the Borrower, upon written notice from the indemnified party, shall assume the investigation and defense thereof, including the employment of counsel selected (i) by the Borrower and reasonably approved by the indemnified party, when the indemnified party is other than the Issuer, and (ii) by the Issuer when the indemnified party is the Issuer or any of its officers, members, directors, officials, agents and employees; and the Borrower shall assume the payment of all expenses related thereto, with full power to litigate, compromise or settle the same in its sole discretion; provided that the indemnified party shall have the right to review and approve or disapprove any such compromise or settlement. Each indemnified party shall have the right if such indemnified party shall conclude in good faith that a conflict of interest exists to employ separate counsel in any such action or proceeding and participate in the investigation and defense thereof, and the Borrower shall pay the reasonable fees and expenses of such separate counseL The Borrower also shall pay and discharge and shall indemnify and hold hannless the Trustee, the Issuer and the Program Administrator from (i) any lien or charge upon payments by the Borrower to the Trustee, the Issuer or the Program Administrator hereunder and (ii) any taxes (including, without limitation, all ad valorem taxes and sales taxes), assessments, impositions and other charges in respect of any portion of the Project. If any such claim is asserted, or any such lien or charge upon payments, or any such taxes, assessments, impositions or other charges, are sought to be imposed, the Issuer or the Program Administrator shall give prompt notice to the Borrower and 6042843\24036,0003 12 /I -/7 the Borrower shall have the sole right and duty to assume, and will assume, the defense thereof, with full power to litigate, comprornise or settle the same in its sole discretion. Notwithstanding any transfer of the Project to another owner in accordance with the provisions of the Financing Agreement, the Mortgage and this Regulatory Agreement, the Borrower shall remain obligated to indemnify each indemnified party pursuant to this Section for all matters arising prior to the date of transfer and for all matters arising on or after the transfer date if such subsequent owner fails to indemnify any party entitled to be indemnified hereunder, unless such indemnified party consents at the time of transfer to indemnification under this Section 7 from such subsequent owner. In no event, however, shall any such consent by any indemnified party hereunder be deemed to constitute the consent of any other indemnified party. During any period that Fannie Mae owns the Project and that this Section 7 is applicable to Fannie Mae, Fannie Mae's obligations under this Section 7 shall be limited to acts and omissions of Fannie Mae occurring during the period of Fannie Mae's ownership. In addition thereto, subject to Section 17 hereof, the Borrower will pay upon demand all of the fees and expenses paid or incurred by the Trustee, the Issuer or the Program Administrator in enforcing the provisions hereof. The provisions of this Section 7 shall survive the term of the Bonds and this Regulatory Agreement and the resignation or removal of the Trustee. The obligations of the Borrower under this Section are independent of any other contractual obligation of the Borrower to provide indemnity to the parties named herein or otherwise, and the obligation of the Borrower to provide indemnity hereunder shall not be interpreted, construed or limited in light of any other separate indemnification obligation of the Borrower. Any indemnified party shall be entitled simultaneously to seek indemnity under this Section and any other provision under which it is entitled to indemnity. Section 8. Consideration. The Issuer has issued the Bonds to make the Mortgage Loan to finance the Project, all for the purpose, among others, of inducing the Borrower to acquire, rehabilitate, equip and operate the Project. In consideration of the issuance of the Bonds by the Issuer, the Borrower has entered into this Regulatory Agreement and has agreed to restrict the uses to which the Project can be put on the terms and conditions set forth herein. Section 9. Reliance. The Issuer and the Borrower hereby recognize and agree that the representations, warranties, covenants and agreements set forth herein may be relied upon by all persons interested in the legality and validity of the Bonds, and in the exclusion from gross income for federal income tax purposes and the exemption from California personal income taxes of the interest on the Bonds. In performing their duties and obligations hereunder, the Issuer, the Trustee and the Program Administrator may rely upon statements and certificates of the Borrower and Low Income Tenants, and upon audits of the books and records of the Borrower pertaining to the Project. In addition, the Issuer, the Program Administrator and the Trustee may consult with counsel, and the opinion of such counsel shall be full and complete authorization and protection in respect of any action taken or suffered by the Issuer, the Program Administrator or the Trustee under this Regulatory Agreement in good faith and in conformity with such opinion; provided, however, if there are conflicting opinions among the counsel selected by such parties, the opinion of Bond 6042843\24036,0003 13 A -/<t ___m__..,_,,,~_____··._._.·_~____ Counsel shall govern the interpretation and enforcement of this Regulatory Agreement. In determining whether any default or lack of compliance by the Borrower exists under this Regulatory Agreement, the Trustee shall not be required to conduct any investigation into or review of the operations or records of the Borrower and may rely solely on any notice or certificate delivered to the Trustee by the Borrower, the Issuer or the Program Administrator with respect to the OCCUrrenCe or absence of a default. Section 10. Sale or Transfer of the Proiect: Syndication. The Borrower intends to hold the Project for its own account, has no current plans to sell, transfer or otherwise dispose of the Project, and hereby covenants and agrees not to sell, transfer or otherwise dispose of the Project, or any portion thereof (other than for individual tenant use as contemplated hereunder and replacement of personal property), without obtaining the prior written consent of the Issuer, which consent shall be given upon receipt by the Issuer of (i) except in the case of a foreclosure or deed in lieu of foreclosure or comparable conversion of the Mortgage Loan by Fannie Mae, whereby Fannie Mae, its designees or affiliates, or a Fannie Mae created entity becomes the owner of the Project, such certifications as reasonably deemed necessary by the Issuer to establish that the Borrower shall not be in default under this Regulatory Agreement or under the Financing Agreement or, if any such defaults exist, the purchaser or assignee undertakes to cure such defaults to the satisfaction of the Issuer; (ii) except in the case of a foreclosure or deed in lieu of foreclosure or comparable conversion of the Mortgage Loan by Fannie Mae, whereby Fannie Mae or a Fannie Mae created entity becomes the owner of the Project, a written instrument by which the Borrower's purchaser or transferee has assumed in writing and in full the Borrower's duties and obligations under this Regulatory Agreement and under the Administration Agreement, (iii) except in the case of a foreclosure or deed in lieu of foreclosure or comparable conversion of the Mortgage Loan by Fannie Mae, whereby Fannie Mae or a Fannie Mae created entity becomes the owner of the Project, an opinion of counsel for the transferee that the transferee has duly assumed the obligations of the Borrower under this Regulatory Agreement and the Administration Agreement and that such obligations and this Regulatory Agreement and the Administration Agreement are binding on the transferee, (iv) except in the case of a foreclosure or deed in lieu of foreclosure or comparable conversion of the Mortgage Loan by Fannie Mae, whereby Fannie Mae or a Fannie Mae created entity becomes the owner of the Project, documentation from the transferee reflecting the transferee's experience with owning and/or operating multifamily housing projects such as the Project and with use and occupancy restrictions similar to those contained in this Regulatory Agreement, and (v) an opinion of Bond Counsel addressed to the Issuer to the effect that such transfer will not cause interest on any Bond to become includable in the gross income of the recipients thereof for federal income tax purposes. No transfer of the Project shall operate to release the Borrower from its obligations under this Regulatory Agreement. Nothing contained in this Section 10 shall affect any provision of the Mortgage or any of the other Mortgage Loan Documents to which the Borrower is a party which requires the Borrower to obtain the consent of Fannie Mae as a precondition to sale, transfer or other disposition of, or any direct or indirect interest in, the Project or of any interest in the Borrower or which gives the holder of the Mortgage Note the right to accelerate the maturity of the Mortgage Loan, or to take some other similar action with respect to the Mortgage Loan, upon the sale, transfer or other disposition of the Project. Nothing contained in this Section 10 shall require the consent of the Issuer or otherwise affect the right of Fannie Mae or a Fannie Mae created entity to foreclose on the Project or accept a deed in lieu offoreclosure or comparable conversion of the Mortgage Loan. 6042843\24036,0003 14 /i -/1 It is hereby expressly stipulated and agreed that any sale, transfer or other disposition of the Project in violation of this Section 10 shall be null, void and without effect, shall cause a reversion of title to the Borrower, and shall be ineffective to relieve the Borrower of its obligations under this Regulatory Agreement. Not less than 20 days prior to consummating any sale, transfer or disposition of any interest in the Project, the Borrower shall deliver to the Issuer and the Trustee a notice in writing explaining the nature of the proposed transfer. The Borrower shall not syndicate the Project unless, prior to such syndication, an opinion of counsel acceptable to the Issuer is delivered to the Issuer to the effect that (i) the terms and conditions of the syndication do not reduce or limit any of the requirements of the Act or regulations adopted or documents executed pursuant to the Act, (ii) no requirements of the Issuer shall be subordinated to the syndication agreement and (iii) the syndication shall not result in the provision of fewer assisted units, or the reduction of any benefits or services, than were in existence prior to the syndication agreement. Section I L Term. Except as provided in Section 3(j), (k) and (I) above, and in the second paragraph of this Section II, this Regulatory Agreement and all and several of the terms hereof shall become effective upon its execution and delivery and shall remain in full force and effect during the Qualified Project Period, it being expressly agreed and understood that the provisions hereof are intended to survive the retirement of the Bonds and expiration of the Indenture, the Financing Agreement, the Mortgage Note and the Mortgage. Notwithstanding any other provisions of this Regulatory Agreement to the contrary, this entire Regulatory Agreement, or any of the provisions or sections hereof, may be terminated upon agreement by the Issuer, the Trustee and the Borrower only if there shall have been received by the Issuer an opinion of Bond Counsel that such termination will not adversely affect the exclusion from gross income for federal income tax purposes or the exemption from State personal income taxes of the interest on the Bonds. The terms of this Regulatory Agreement to the contrary notwithstanding, this Regulatory Agreement, and each and all of the terms hereof, shall terminate and be of no further force and effect in the event of an involuntary noncompliance with the provisions of this Regulatory Agreement caused by foreclosure on the Project or delivery of a deed in lieu of foreclosure, fire, seizure, requisition, change in a federal law or an action of a federal agency after the Closing Date which prevents the Issuer and the Trustee from enforcing the provisions of this Regulatory Agreement or condemnation or a similar event, but only if within a reasonable period thereafter the Bonds are paid in full and retired or amounts received as a consequence of such event are used to provide a project that meets the requirements ofthe Code set forth in this Regulatory Agreement; provided, however, that the preceding provisions of this sentence shall cease to apply and the restrictions contained herein shall be reinstated if, at any time subsequent to the termination of such provisions as the result of the foreclosure on the Project or the delivery of a deed in lieu of foreclosure or a similar event, the Borrower or any Affiliated Party obtains an ownership interest in the Project for federal income tax purposes. Upon the termination of the terms of this Regulatory Agreement, the parties hereto agree to execute, deliver and record appropriate instruments of release and discharge of the terms hereof; provided, however, that the execution and delivery of such instruments shall not be necessary or a prerequisite to the termination of this Regulatory Agreement in accordance with its terms. Section 12. Covenants to Run With the Land. The Borrower hereby subjects the Project (including the Project Site) to the covenants, reservations and restrictions set forth in this Regulatory Agreement. The Issuer, the Trustee and the BOrrower hereby declare their express intent that the covenants, reservations and restrictions set forth herein shall be deemed covenants running with the 6042843\24036.0003 15 /I -;;>..0 land and shall pass to and be binding upon the Borrower's successors in title to the Project; provided, however, that on the termination of this Regulatory Agreement said covenants, reservations and restrictions shall expire. Each and every contract, deed or other instrument hereafter executed covering or conveying the Project or any portion thereof shall conclusively be held to have been executed, delivered and accepted subject to such covenants, reservations and restrictions, regardless of whether such covenants, reservations and restrictions are set forth in such contract, deed or other instruments. Section 13. Burden and Benefit. The Issuer, the Trustee and the Borrower hereby declare their understanding and intent that the burden of the covenants set forth herein touch and concern the land in that the Borrower's legal interest in the Project is rendered less valuable thereby. The Issuer, the Trustee and the Borrower hereby further declare their understanding and intent that the benefit of such covenants touch and concern the land by enhancing and increasing the enjoyment and use of the Project by Low Income Tenants, the intended beneficiaries of such covenants, reservations and restrictions, and by furthering the public purposes for which the Bonds were issued. Section 14. Uniformity: Common Plan. The covenants, reservations and restrictions hereof shall apply uniformly to the entire Project in order to establish and carry out a common plan for the use, development and improvement of the Project Site. Section 15. Enforcement. If the Borrower defaults in the performance or observance of any covenant, agreement or obligation of the Borrower set forth in this Regulatory Agreement, and if such default remains uncured for a period of 60 days after written notice thereof shall have been given by the Issuer or the Trustee to the Borrower or such longer period if the Borrower provides the Issuer with an opinion of Bond Counsel to the effect that such extension will not adversely affect the exclusion from gross income for federal income tax purposes of interest on the Bonds), then the Trustee, subject to the provisions of Section 9 hereof and acting on its own behalf or on behalf of the Issuer, shall declare an "Event of Default" to have occurred hereunder, and, at its option, may take anyone or more of the following steps: (i) by mandamus or other suit, action or proceeding at law or in equity, require the Borrower to perform its obligations and covenants hereunder or enjoin any acts or things which may be unlawful or in violation of the rights of the Issuer or the Trustee hereunder; (ii) have access to and inspect, examine and make copies of all of the books and records ofthe Borrower pertaining to the Project; (iii) with the prior written consent of Fannie Mae, take such other action at law or in equity as may appear necessary or desirable to enforce the obligations, covenants and agreements of the Borrower hereunder. The Trustee shall have the right, in accordance with this Section 15 and the provisions of the Indenture, upon notice to but without the consent or approval of the Issuer, to exercise any or all of the rights or remedies of the Issuer hereunder. All fees, costs and expenses of the Trustee (including, without limitation, reasonable attorneys fees) incurred in taking any action pursuant to this Section 15 shall be the sole responsibility of the Borrower. 6042843\24036,0003 16 A ~.;;;-( After the Indenture has been discharged, or if the Trustee fails to act under this Section 15, the Issuer may act on its own behalf to declare an "Event of Default" to have occurred and to take anyone or more of the steps specified hereinabove to the same extent and with the same effect as if taken by the Trustee. After the date on which no Bonds remain outstanding as provided in the Indenture, the Trustee shall no longer have any duties or obligations under this Regulatory Agreement, and all references to the Trustee herein shall be deemed references to the Issuer, Notwithstanding anything contained in this Regulatory Agreement and the Indenture to the contrary, the occurrence of an event of default under this Regulatory Agreement shall not be deemed, under any circumstances whatsoever, to constitute a default under the Mortgage Loan Documents, except as may be otherwise specified in the Mortgage Loan Documents. The parties hereto agree that the maturity date of the Mortgage Loan may be accelerated solely by the holder thereof upon the occurrence of a default on the part of the Borrower under the Mortgage Loan Documents and that no person other than Fannie Mae shall have the right to (i) declare the principal balance of the Mortgage Note to be immediately due and payable, or (ii) commence foreclosure or other like action without express written authorization from Fannie Mae. Notwithstanding anything in this Regulatory Agreement to the contrary, none of the Issuer, the Trustee or any other person under their control shall, without the prior written consent of Fannie Mae, (a) upon the occurrence of an event of default under the Mortgage Loan, take any action to accelerate or otherwise enforce payment or seek other remedies with respect to the Mortgage Loan, or (b) interfere with or attempt to interfere with the exercise by Fannie Mae or the Servicer of any of their respective rights under the Mortgage Loan Documents, including, without limitation, Fannie Mae's or the Servicer's remedial rights under the Mortgage Loan Documents upon the occurrence of an event of default by the Borrower under the Mortgage Loan; provided that this paragraph shall not be construed to limit the rights of the Issuer and the Trustee to enforce the Reserved Rights or to pursue the remedies set forth in paragraphs (i) through (iii) above; provided, further, that neither the Issuer nor the Trustee may, without the written consent of Fannie Mae, on account of any default under this Regulatory Agreement, cause the Mortgage Loan to become due and payable or cause the Trustee to redeem the Bonds or declare the principal of all Bonds and interest accrued thereon to be immediately due and payable, or cause the Trustee to foreclose on the Mortgage or take any other action under the Mortgage Loan Documents or any other documents contemplated hereby or thereby to obtain such performance or observance. The rights of the Trustee under this Section are in addition to all rights conferred upon the Trustee under the Indenture and in no way limit those rights. All monetary obligations of the Borrower that may arise under this Regulatory Agreement shall be subject and subordinate to the repayment of amounts owed by the Borrower under the Mortgage Loan Documents. Section 16. Recording and Filing. The Borrower shall cause this Regulatory Agreement and all amendments and supplements hereto and thereto, to be recorded and filed in the real property records of the County of San Diego and in such other places as the Issuer or the Trustee may reasonably request. The Borrower shall pay all fees and charges incurred in connection with any such recording. 6042843\24036.0003 17 ;1-;);) Section 17. Pavment of Fees. It is anticipated that moneys on deposit in the funds established under the Indenture will be sufficient to pay the Trustee's and Issuer's costs and expenses. However, to the extent that there are unforeseen and unusual costs and expenses and the moneys in said funds are insufficient therefor, the Borrower hereby agrees to pay all reasonable costs and expenses of the Trustee and the Issuer in connection with the Bonds and the financing of the Project as such costs and expenses become due and payable. Notwithstanding any prepayment of the Mortgage Loan and notwithstanding a discharge of the Indenture, throughout the term of this Regulatory Agreement, the Borrower shall continue to pay, in the event of default, to the Issuer and to the Trustee reasonable compensation for any services rendered by either of them hereunder and reimbursement for all expenses reasonably incurred by either of them in connection therewith. The fee payable to the Issuer referenced in this section shall in no way limit amounts payable by the Borrower under Section 7 hereof, or arising after an Event of Default in connection with the Issuer's or the Trustee's enforcement of the provisions of this Regulatory Agreement. During any period that Fannie Mae owns the Project, Fannie Mae's obligations to make payments under this Section 17 shall be limited to amounts due in respect of the Bonds accruing during such period. Section 18. Governing Law. This Regulatory Agreement shall be governed by the laws of the State of California. Except as expressly provided herein and in the Agreement, the Trustee's rights, duties and obligations hereunder are governed in their entirety by the terms and provisions of the Indenture. Section 19. Amendments. Except as provided in Section 6(a) hereof, this Regulatory Agreement shall be amended only with the written consent of Fannie Mae by a written instrument executed by the parties hereto or their successors in title, and duly recorded in the real property records ofthe County. The parties hereto acknowledge that for so long as the Bonds are outstanding, Fannie Mae and the owners ofthe Bonds are third party beneficiaries to this Regulatory Agreement. Section 20. Consents of Fannie Mae. The written consents of Fannie Mae as required under this Regulatory Agreement shall not be required if Fannie Mae is not the provider of credit enhancement for the Bonds. Section 21. Trustee Acting Solelv in Such Capacitv. In accepting its obligations hereunder, the Trustee acts solely as trustee for the benefit of the Registered Owners, and not in its individual capacity; and the duties, powers, rights and liabilities of the Trustee in acting hereunder shall be subject to the provisions of the Indenture, including, without limitation, Article X of the Indenture. Section 22. Compliance bv Borrower. Unless it acts as the Program Administrator, the Trustee shall not be responsible for monitoring or verifying compliance by the Borrower with its obligations under this Regulatory Agreement. The Program Administrator shall assume such responsibilities under the terms of the Administration Agreement among the Program Administrator, the Issuer and the Borrower. 6042843\24036.0003 18 /J-d.3 ..~u Section 23. Affordable Housing Agreement. Upon the recordation of this Regulatory Agreement in the real property records of the County of San Diego, the provisions of the Affordable Housing Agreement shall no longer be applicable to the Project, and the recordation of this Regulatory Agreement shall operate to release the Project from the terms of the Affordable Housing Agreement. The release of the Project from the terms of the Affordable Housing Agreement shall in no way alter the obligations of McMillin-DA American Otay Ranch, LLC and McMillin Otay Ranch, Inc. under the Affordable Housing Agreement. In the event of any conflict between the terms hereof and the terms of the Affordable Housing Agreement, the term providing the greatest affordability to tenants, subject to compliance with Section 5 hereof, shall prevail. Section 24. Notice. All notices, certificates or other communications shall be sufficiently given and (except for notices to the Trustee, which shall be deemed given only when actually received by the Trustee) shall be deemed given on the date personally delivered or on the second day following the date on which the same have been mailed by certified mail, return receipt requested, postage prepaid, addressed as follows: Issuer: City of Chula Vista 430 Davidson Street, Suite B Chula Vista, California 91910 Attention: City Manager Program City of Chula Vista Administrator: 430 Davidson Street, Suite B Chula Vista, California 91910 Attention: Executive Director Trustee: State Street Bank and Trust Company of California 7633 West 5th Street, 12th Floor Los Angeles, California 90071 Attention: Corporate Trust Department Borrower: GA TEW A Y TOWN CENTER, L.P. c/o Pacific Southwest Community Development Corporation 320 Golden Shore, Suite 200 Long Beach, CA 90802-4217 with copies to: crc Commercial Real Estate Servicer, LLC c/o Chelsea Investment Corporation 215 South Highway 101, Suite 200 Solana Beach, California 92075 and Gateway Town Center Investors, Inc. 320 Golden Shore, Suite 200 Long Beach, CA 90802-4217 Attention: 6042843\24036,0003 19 /I-d.-tÍ With a copy to: Fannie Mae: Fannie Mae 135 North Los Robles Avenue, Suite 300 Pasadena, California 91101-1707 Attention: Regional Vice President, Multifamily Activities With a copy to: Fannie Mae 135 North Los Robles Avenue, Suite 300 Pasadena, California 91101-1707 Attention: Regional Counsel Servicer: ARCS Commercial Mortgage Co., L.P. 26901 Agoura Road Calabasas Hills, California 91301 Attention: Mortgage Servicing with a copy to: Fannie Mae at the address specified above Any of the foregoing parties may, by notice given hereunder, designate any further or different addresses to which subsequent notices, certificates, documents or other communications shall be sent. Copies of notices sent by any party hereto shall be sent concurrently to the Servicer and Fannie Mae. Section 25. Severability. If any provision of this Regulatory Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining portions hereof shall not in any way be affected or impaired thereby. Section 26. MultiDle Counteroarts. This Regulatory Agreement may be executed in multiple counterparts, all of which shall constitute one and the same instrument, and each of which shall be deemed to be an original. Section 27. Personal Obligation of Borrower: Limitations on Recourse to Borrower. Notwithstanding any provisions of this Regulatory Agreement to the contrary, all obligations of the Borrower under this Regulatory Agreement for the payment of money and all claims for damages against the Borrower occasioned by breach or alleged breach by the Borrower of its obligations under this Regulatory Agreement, including indemnification obligations, shall not be a lien on the Project and no person shall have the right to enforce such obligations other than directly against the Borrower. Except as otherwise provided in Section 7 of this Regulatory Agreement, no subsequent Borrower shall be liable or obligated for the breach or default of any obligation of the Borrower under this Regulatory Agreement on the part of any prior Borrower. Such obligations shall be 604284.3\24036,0003 20 A-o<~ personal to the Person who was the Borrower at the time the default or breach was alleged to have occurred, and such Person shall remain liable for any and all damages occasioned by the default or breach even after such Person ceases to be the Borrower. Notwithstanding anything contained in this Section 27 or any other provision of this Regulatory Agreement to the contrary, the Borrower's obligations under Sections 7 and 17 hereof shall be and remain the joint and several full recourse obligations of the Borrower and each general partner of the Borrower payable from and enforceable against any and all income, assets and properties of the Borrower and each general partner of the Borrower; provided that in no event shall Borrower or any partner of Borrower be personally liable for the payment of the principal, interest or any premium on the Mortgage Loan or the Bonds, which shall be non-recourse to Borrower and shall be enforced solely against the Project and other property securing such obligations. 6042843\24036.0003 21 /l-;JJo -----~. . ~---_.."-----_. IN WITNESS WHEREOF, the Issuer, the Trustee and the Borrower have executed this Regulatory Agreement by duly authorized representatives, all as of the date first written hereinabove. CITY OF CHULA VISTA, CALIFORNIA By: Its: Mayor [SEAL] ATTEST: City Clerk STATE STREET BANK AND TRUST COMPANY OF CALIFORNIA, N.A., as Trustee By: Its: Authorized Officer GA TEW A Y TOWN CENTER L.P., A CALIFORNIA LIMITED PARTNERSHIP By: PACIFIC SOUTHWEST COMMUNITY DEVELOPMENT CORPORA nON, a California nonprofit public benefit corporation By: Michael P. Puthoff, Executive Director 6042843\24036,0003 S·I ¡J -d.-f STATE OF CALIFORNIA ) ) ss COUNTY OF SAN DIEGO ) On April , 1998 before me, , Notary Public, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose names(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal SIGNATURE OF NOTARY PUBLIC 6042843\24036,0003 /1 -;2$ ___..__,.,._~_,_.. _., ._____~___.., ._._m__ EXHIBIT A Project Site 604284.3\24036.0003 A-I ;1 -;2. 1 ,---- ^---,_.._---- .--- ~---_.- EXHIBIT B CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE The undersigned, , being duly authorized to execute this certificate on behalf of GA TEW A Y TOWN CENTER, L.P. (the "Borrower"), hereby represents and warrants that: 1. The undersigned has read and is thoroughly familiar with the provisions of the following documents associated with the Borrower's participation in the City of Chula Vista, California (the "Issuer") Multifamily Housing Revenue Bonds, Series 1998A (Gateway Town Center), such documents including: (a) the Regulatory Agreement and Declaration of Restrictive Covenants (the "Regulatory Agreement") dated as of October I, 1998 among the Borrower, the Issuer and STATE STREET BANK AND TRUST COMPANY OF CALIFORNIA, NA (the "Trustee"); (b) the Mortgage Note dated October I, 1998 from the Borrower to the Issuer representing the Borrower's obligation to repay the Mortgage Loan. 2. As of the date of this certificate, the following percentages of residential units in the Project (i) are occupied by Low-Income Tenants (as such term is defined in the Regulatory Agreement) or (ii) are currently vacant and being held available for such occupancy and have been so held continuously since the date a Low-Income Tenant vacated such unit; as indicated: I Bedroom 2 Bedroom Total Occupied by Low-Income - % Unit Nos.: - - - Tenants: Held vacant for occupancy continuously sine last occupied by a Low-Income Tenant: % Unit Nos.: - - - 604284.3\24036,0003 B-1 ¡/- 3V ,---------..-- - - --- 3. The Borrower hereby certifies that the Borrower is not in default under any of the terms of the above documents and no event has occurred which, with the passage of time, would constitute an event of default thereunder, with the exception of the following [state actions being taken to remedy default]. GA TEW A Y TOWN CENTER, LP., A CALIFORNIA LIMITED PARTNERSHIP By: Its: General Partner By: Name: Its: 604284.3\24036.0003 B-2 /1-3.( EXHIBIT C INCOME COMPUTATION AND CERTIFICATION NOTE TO APARTMENT OWNER: This form is designed to assist you in computing Annual Income in accordance with the method set forth in the Department of Housing and Urban Development ("HUD") Regulations (24 CFR 5.609). You should make certain that this form is at all times up to date with the HUD Regulations. All capitalized terms used herein shall have the meaning set forth in the Regulatory Agreement. Re: [Address of Apartment Building] I/We, the undersigned state that I/we have read and answered fully, frankly and personally each of the following questions for all persons who are to occupy the unit being applied for in the above apartment project. Listed below are the names of all persons who intend to reside in the unit: 1 2 3 4 5 Name of Relationship to Members Head of Social Security Place of of the Household Number Age Employment Household HEAD SPOUSE 6042843\24036,0003 C-I fi -3 d- -."---- ._'_~__m Income Comoutation 6. the total anticipated income, calculated in accordance with this paragraph 6, of all persons (except children under 18 years) listed above for the l2-month period beginning the earlier of the date that I/we plan to move into a unit or sign a lease for a unit is $ Included in the total anticipated income listed above are: I. The full amount, before any payroll deductions, of wages and salaries, overtime pay, commissions, fees, tips and bonuses, and other compensation for personal services; II. The net income from the operation of a business or profession. Expenditures for business expansion or amortization of capital indebtedness shall not be used as deductions in determining net income. An allowance for depreciation of assets used in a business or profession may be deducted, based on straight line depreciation, as provided in Internal Revenue Service regulations. Any withdrawal of cash or assets from the operation of a business or profession will be included in income, except to the extent the withdrawal is reimbursement of cash or assets invested in the operation by the family; III. Interest, dividends, and other net income of any kind from real or personal property. Expenditures for amortization of capital indebtedness shall not be used as deductions in determining net income. An allowance for depreciation is permitted only as authorized in paragraph (6)(b) of this section. Any withdrawal of cash or assets from an investment will be included in income, except to the extent the withdrawal is reimbursement of cash or assets invested by the family. Where the family has net family assets in excess of $ , annual income shall include the greater of the actual income derived from all net family assets or a percentage of the value of such assets based on the current passbook savings rate, as determined by the Department of Housing and Urban Development; IV. The full amount of periodic amounts received from Social Security, annuities, insurance policies, retirement funds, pensions, disability or death benefits, and other similar types of periodic receipts, including a lump-sum amount or prospective monthly amounts for the delayed start of a periodic amount except deferred periodic amounts from supplemental security income and social security benefits that are received in a lump sum amount or in prospective monthly amounts; V. Payments in lieu of earnings, such as unemployment and disability compensation, worker's compensation and severance pay; VI. Welfare assistance. If the welfare assistance payment includes an amount specifically designated for shelter and utilities that is subject to adjustment by the welfare assistance agency in accordance with the actual cost of shelter and utilities, the amount of welfare assistance income to be included as income shall consist of: A. The amount of the allowance or grant exclusive of the amount specifically designated for shelter or utilities; plus 6042843\24036,0003 C-2 A ~33 8. The maximum amount that the welfare assistance agency could in fact allow the family for shelter and utilities. If the family's welfare assistance is ratably reduced form the standard of need by applying a percentage, the amount calculated under this paragraph shall be the amount resulting from one application of the percentage; VII. Periodic and determinable allowances, such as alimony and child support payments, and regular contributions or gifts received from organizations or from persons not residing in the dwelling; VIII. All regular pay, special pay and allowances of a member of the Armed Forces except the special pay to a family member serving in the Armed Forces who is exposed to hostile fire. Excluded from such anticipated income are: I. Income from employment of children (including foster children) under the age of 18 years; II. Payments received for the care of foster children or foster adults (usually persons with disabilities, unrelated to the tenant family, who are unable to live alone); III. Lump-sum additions to family assets, such as inheritances, insurance payments (including payments under health and accident insurance and worker's compensation), capital gains and settlement for personal or property losses except payments in lieu of earnings, such as unemployment and disability compensation, worker's compensation and severance pay; IV. Amounts received by the family that are specifically for, or in reimbursement of, the cost of medical expenses for any family member; V. Income of a live-in aide, as defined by 24 CFR §5.403; VI. The full amount of student financial assistance paid directly to the student or to the educational institution; VII. The special pay to a family member serving in the Armed Forces who is exposed to hostile fire; VIII. (I) Amounts received under training programs funded by the Department of Housing and Urban Development; (2) Amounts received by a person with a disability that are disregarded for a limited time for purposes of Supplemental Security Income eligibility and benefits because they are set aside for use under a Plan to Attain Self- Sufficiency (PASS): 6042843\24036.0003 C-3 ¡J -34 __ __~_m._~.____. .._~___ __ _~_~____.__ (3) Amounts received by a participant in other publicly assisted programs which are specifically for or in reimbursement of out-of-pocket expenses incurred (special equipment, clothing, transportation, child care, etc.) and which are made solely to allow participation in a specific program; (4) Amounts received under a resident service stipend. A resident service stipend is a modest amount (not to exceed $ per month) received by a resident for perfonning a service for the Public Housing Authority or owner, on a part- time basis, that enhances the quality of life in the development. Such services may include, but are not limited to, fire patrol, hall monitoring, lawn maintenance, and resident initiatives coordination. No resident may receive more than one such stipend during the same period of time; (5) Incremental earnings and benefits resulting to any family member from participation in qualifYing State or local employment training programs (including training programs not affiliated with a local government) and training of a family member as resident management staff. Amounts excluded by this provision must be received under employment training programs with clearly defined goals and objectives, and are excluded only for the period during which the family member participates in the employment training program; IX. Temporary, nonrecurring or sporadic income (including gifts); X. Reparation payments paid by a foreign government pursuant to claims filed under the laws of that government by persons who were persecuted during the Nazi era; XI. Earnings in excess of $ for each full-time student 18 years old or older (excluding the head of household and spouse); XII. Adoption assistance payments in excess of $ per adopted child; XIII. Deferred periodic amounts from supplemental security income and social security benefits that are received in a lump sum amount or in prospective monthly amounts. XIV. Amounts received by the family in the fonn of refunds or rebates under State or local law for property taxes paid on the dwelling unit; XV. Amounts paid by a State agency to a family with a member who has a developmental disability and is living at home to offset the cost of services and equipment needed to keep the developmentally disabled family member at home; or 6042843\24036,0003 C-4 /l - 3.Ç XVI. Amounts specifically excluded by any other Federal statute from consideration as income for purposes of determining eligibility or benefits under a category of assistance programs that includes assistance under any program to which the exclusions set forth in 24 CFR §5.609(c) apply. 7. Do the persons whose income or contributions are included in item 6 above (a) have savings, stocks, bonds, equity in real property or other form of capital investment (excluding the values of necessary items of personal property such as furniture and automobiles and interests in Indian trust land)? Yes No; or (b) have they disposed of any assets (other than at a foreclosure or bankruptcy sale) during the last two years at less than fair market value? - Yes - No (c) If the answer to (a) or (b) above is yes, does the combined total value of all such assets owned or disposed of by all such persons total more than $ ? - Yes - No (d) If the answer to (c) above is yes, state: (I) the combined total value of all such assets: $ , (2) the amount of income expected to be derived from such assets in the l2-month period beginning on the date of initial occupancy in the unit that you propose to rent: $ , and (3) the amount of such income, if any, that was included in item 6 above: $- 8. (a) Are all of the individuals who propose to reside in the unit full-time students*? - Yes - No * A full-time student is an individual enrolled as a full-time student during each of 5 calendar months during the calendar year in which occupancy of the unit begins at an educational organization which normally maintains a regular faculty and curriculum and normally has a regularly enrolled body of students in attendance or is an individual pursuing a full-time course of institutional on farm training under the supervision of an accredited agent of such an educational organization or of a state or political subdivision thereof. (b) If the answer to 8(a) is yes, is at least 2 of the proposed occupants of the unit a husband and wife entitled to file a joint federal income tax return? 604284.3\24036.0003 C-5 ¡4-34 - -"---..- - Yes - No 9. Neither myself nor any other occupant of the unit I/we propose to rent is the owner of the rental housing project in which the unit is located (hereinafter the "Borrower"), has any family relationship to the Borrower; or owns directly or indirectly any interest in the Borrower, For purposes of this paragraph, indirect ownership by an individual shall mean ownership by a family member, ownership by a corporation, partnership, estate or trust in proportion to the ownership or beneficial interest in such corporation, partnership, estate or trustee held by the individual or a family member; and ownership, direct or indirect, by a partner ofthe individual. 10. This certificate is made with the knowledge that it will be relied upon by the Borrower to determine maximum income for eligibility to occupy the unit; and IIwe declare that all information set forth herein is true, correct and complete and based upon information IIwe deem reliable and that the statement of total anticipated income contained in paragraph 6 is reasonable and based upon such investigation as the undersigned deemed necessary. 11. IIwe will assist the Borrower in obtaining any information or documents required to verifY the statements made herein, including either an income verification from my/our present employer(s) or copies offederal tax returns for the immediately preceding calendar year. 12. l/we acknowledge that IIwe have been advised that the making of any misrepresentation or misstatement in this declaration will constitute a material breach of my/our agreement with the Borrower to lease the unit and will entitle the Borrower to prevent or terminate my/our occupancy of the unit by institution of an action for ejection or other appropriate proceedings. I/we declare under penalty of perjury that the foregoing is true and correct. Executed this _ day of in the County of , California. Applicant Applicant [Signature of all persons (except children under the age of 18 years) listed in number 2 above required] 6042843\24036,0003 C-6 /J -3 f _____________r_____" -.---- FOR COMPLETION BY BORROWER ONLY: L Calculation of eligible income: a. Enter amount entered for entire household in 6 above: $ b. (I) If the answer to 7(c) above is yes, enter the total amount entered in 7(d)(2), subtract from that figure the amount entered in 7(d)(3) and enter the remaining balance ($ ); (2) Multiply the amount entered in 7(d)(I) times the current passbook savings rate as determined by HUD to determine what the total annual earnings on the amount in 7(d)(I) would be if invested in passbook savings ($ ), subtract from that figure the amount entered in 7(d)(3) and enter the remaining balance ($ ); (3) Enter at right the greater of the amount calculated under (I) or (2) above: $ c. TOTAL ELIGIBLE INCOME (Line I.a plus line l.b(3)): $ 2. The amount entered in I.c: - Qualifies the applicant(s) as a Low Income Tenant(s) - Does not qualify the applicant(s) as a Low Income Tenant(s). 3. Number of apartment unit assigned: - Bedroom Size: - Rent: $ 4. This apartment unit [was/was not] last occupied for a period of 31 or more consecutive days by persons whose aggregate anticipated annual income as certified in the above manner upon their initial occupancy of the apartment unit qualified them as Low Income Tenants. 5. Method used to verify applicant(s) income: - Employer income verification. - Copies of tax returns. - Other ( ) Manager 6042843\24036.0003 C-7 /1- 3? -.-- . _._"-~----~--- ------.--. INCOME VERIFICATION (for emDloved Dersons) The undersigned employee has applied for a rental unit located in a project financed under the City of Chula Vista Apartment Development Revenue Bond Program for persons of lower income. Every income statement of a prospective tenant must be stringently verified. Please indicate below the employee's current annual income from wages, overtime, bonuses, commissions or any other form of compensation received on a regular basis. Annual wages Overtime Bonuses Commissions Other Income Total current income I hereby certify that the statements above are true and complete to the best of my knowledge. Signature Date Title I hereby grant you permission to disclose my income to in order that they may determine my income eligibility for rental of an apartment located in their project which has been financed under the City of Chula Vista Apartment Development Revenue Bond Program. Signature Date Please send to: 6042843\24036-0003 C-8 ;4-31 -- ----~--_.- . ---~-'~--'-'--""--'-"-"- INCOME VERIFICATION (for self-emDloved Dersons) I hereby attach copies of my individual federal and state income tax returns for the immediately preceding calendar year and certify that the information shown in such income tax returns is true and complete to the best of my knowledge. Signature Date 604284.3\24036,0003 C-9 11-40 EXHIBIT 4 . _._.._...~_~_m .~..____--..___._......___.~. PRELIMINARY OFFICIAL STATEMENT DATED .1998 NEW ISSUE: BOOK ENTRY ONLY Rating: Standard & Poor's: "_" (See "RATING" herein) In the opinion of Stradling, Yocca, Car/son & Rauth ("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 (the "Code "), except that no opinion is expressed as to the status of interest on any Bond during any period such Bond is held by a person who is a "substantial user" of the facilities financed by the Bonds or is a "related person" within the meaning of Section 147(a) of the Code, Bond Counsel observes, however, that interest on the Bonds is a specific preference item for purposes of the federal individual and corporate alternative minimum taxes. Bond Counsel is also of the opinion that interest on the Bonds is exempt from State of California personal income taxes. Bond Counsel expresses no opinion regarding other tax consequences relating to the ownership or disposition of, or the accrual or receipt of interest on, the Bonds. See "TAX MA ITERS"for additional information. S . CITY OF CHULA VISTA, CALIFORNIA MUL TIF AMIL Y HOUSING REVENUE BONDS SERIES 1998A (GATEWAY TOWN CENTER APARTMENTS) Dated: October I, 1998 Maturity: June I, as shown below The above-captioned Bonds (the "Bonds") are being issued by the City of Chula Vista, California (the "Issuer") to provide funding for a mortgage loan (the "Mortgage Loan") to be made by the Issuer to Gateway Town Center, L.P., a Califomia limited partnership (the "Borrower"), to provide construction and pennanent financing for a multifamily residential housing project (the "Project"), The Bonds are being issued pursuant to a Trust Indenture dated as of October 1, 1998 (the "Indenture") by and between the Issuer and State Street Bank and Trust Company of Califomia, N.A. (the "Trustee'} The Mortgage Loan will be made pursuant to a Financing Agreement dated as of October I, 1998 (the "Financing Agreement"), among the Issuer, the Trustee, ARCS Commercial Mortgage Co., L.P., a California limited partnership (the "Servicer") and the Borrower. Federal National Mortgage Association ("Fannie Mae") has issued a commitment (a "Fannie Mae Commitment"), dated , 1998, accepted by the Servicer on , 1998, with respect to the Mortgage Loan pursuant to which Fannie Mae has agreed, subject to satisfaction of the terms and conditions of the Fannie Mae Commitment, to provide credit enhancement for the Mortgage Loan pursuant to, and subject to the limitations of, a Collateral Agreement (described herein). In addition, if the Conditions to Conversion (set forth in the Fannie Mae Commitment and relating primarily to completion of construction and stabilization of the Project at a specified level of occupancy) ofthe Mortgage Loan from the Construction Phase to the Pennanent Phase are satisfied, and if the Fannie Mae Pass-Through Certificate Delivery Requirements are satisfied (as described under the caption "SECURITY FOR THE BONDS - Conversion; Issuance of Fannie Mae Pass-Through Certificate _ Fannie Mae Pass-Through Certificate Delivery Requirements"), Fannie Mae will acquire the Mortgage Loan in exchange for a Fannie Mae Guaranteed Mortgage Pass-Through Certificate (the "Fannie Mae Pass-Through Certificate") issued in respect of the Mortgage Loan and evidencing an interest in a mortgage pool comprised solely of the Mortgage Loan. The Fannie Mae Pass-Through Certificate, if and when issued, will be substituted for the Mortgage Loan and the Collateral Agreement. The Trustee will hold the Fannie Mae Pass-Through Certificate as security for the holders of the Bonds. If the Conditions to Conversion are not timely satisfied (or waived by Fannie Mae), with the result that the Servicer fails to issue a Conversion Notice (as defined herein) prior to the Tennination Date specified in the Fannie Mae Commitment (and described herein), the Bonds will be subject to special mandatory redemption at a redemption price equal to 100% of the principal amount of the Bonds to be redeemed plus accrued interest on the Bonds to the Redemption Date (as defined herein) in the event of such a redemption, the redemption price will be paid with funds provided under the Collateral Agreement. The Collateral Agreement will then tenninate in accordance with its terms. If Conversion does occur, the Bonds will not be subject to special mandatory redemption for failure of the Servicer to issue a Conversion Notice. There can be no assurance that Conversion will occur. If Conversion occurs, but the Fannie Mae Pass-Through Certificate Delivery Requirements are not satisfied, the Collateral Agreement will continue in effect as credit enhancement for the Mortgage Loan. It is anticipated that Fannie Mae's acquisition of the Mortgage Loan will coincide with Conversion to the Pennanent Phase (see "SECURITY FOR THE BONDS _ Conversion; Issuance of Fannie Mae Pass-Through Certificate - Conversion; Failure of Conversion To Occur"). . Preliminary, subject to change. TAPHAM30641422749 v3 ¡; -4 / __ _______.____~._~_._._,.__.._____m Payment of the principal of and interest on the Bonds prior to the Fannie Mae Pass-Through Certificate Delivery Date will be secured, to the extent described herein, by the Mortgage Loan and by certain other resources and assets constituting the trust estate under the Indenture, all as described herein. Prior to the Fannie Mae Pass-Through Certificate Delivery Date, certain required payments due under the Mortgage Loan will be secured, to the extent described herein, by Fannie Mae under the Collateral Agreement. On and after the Fannie Mae Pass· Through Certificate Delivery Date, if it occurs, the payments of the principal and interest on the Bonds will be secured primarily from distributions under the Fannie Mae Pass· Through Certificate. Distributions under the Fannie Mae Pass-Through Certificate, if issued, will correspond to scheduled principal and interest payments to be made by the Borrower on the Mortgage Loan (less certain fees payable to the Servicer and Fannie Mae, the "Spread Amount," as defmed herein), provided that Fannie Mae's obligation to make scheduled distributions under the Fannie Mae Pass-Through Certificate is independent of its receipt of corresponding payments from the Borrower under the Mortgage Loan. See "SECURITY FOR THE BONDS" herein. PAYMENT OF PRINCIPAL, OR PREMIUM, IF ANY, AND INTEREST ON THE BONDS IS NOT GUARANTEED BY FANNIE MAE FANNIE MAE'S SOLE OBLIGATION WITH RESPECT TO THE MORTGAGE LOAN WILL BE CONTAINED IN THE COLLATERAL AGREEMENT, SO LONG AS IT IS IN EFFECT, AND, UPON FANNIE MAE PASS·THROUGH CERTIFICATE DELIVERY (AS DESCRlBED HEREIN), IF IT OCCURS, IN THE FANNIE MAE P ASS-THROUGH CERTIFICATE, AND WILL BE LIMITED, AS TO THE COLLATERAL AGREEMENT, SOLELY TO ITS OBLIGATIONS THEREUNDER AND, AS TO THE FANNIE MAE PASS· THROUGH CERTIFICATE, TO MAKING DlSTRlBUTlONS OF PRINCIPAL AND INTEREST UNDER THE FANNIE MAE PASS·THROUGH CERTIFICATE, IN ACCORDANCE WITH ITS TERMS, TO THE RECORD OWNER OF THE FANNIE MAE PASS· THROUGH CERTIFICATE. THE OBLIGATIONS OF FANNIE MAE ARE NOT BACKED BY THE FULL FAITH AND CREDIT OF THE UNITED STATES OF AMERlCA, BUT BY THE CREDIT OF FANNIE MAE, A FEDERALLY CHARTERED, STOCKHOLDER·OWNED CORPORATION. SEE "FANNIE MAE" HEREIN. THE BONDS ARE SPECIAL, LIMITED OBLIGATIONS OF THE ISSUER, PAYABLE SOLELY FROM AND SECURED BY THE PLEDGE OF THE TRUST ESTATE PURSUANT TO THE INDENTURE. THE ISSUER HAS NO TAXING POWER. THE BONDS ARE NOT A DEBT OF THE STATE OF CALIFORNIA, THE ISSUER OR ANY OTHER POLITICAL SUBDIVISION OF THE STATE OF CALIFORNIA. NEITHER THE FAITH AND CREDIT NOR THE TAXING POWER OF THE STATE OF CALIFORNIA, THE ISSUER OR ANY OTHER POLITICAL SUBDIVISION OF THE STATE OF CALIFORNIA IS PLEDGED TO THE PAYMENT OF THE PRINCIPAL OF OR THE INTEREST ON THE BONDS. The Bonds will be delivered in fully registered form only and, when issued and delivered, will be registered in the name of Cede & Co., as nominee of The Depository Trust Company, New York, New York ("DTC"). Ownership interest in the Bonds may be purchased in book-entry form only in the denomination of $5,000 and any integral multiples thereof. Ultimate purchasers of Bonds will not receive physical certificates representing their interest in such Bonds. So long as the Bonds are registered in the name of Cede & Co., as nominee of DTC, references herein to the Bondholders shall mean Cede & Co. and shall not mean the ultimate purchasers of the Bonds. See "THE BONDS - Book-Entry·Only System." Interest on the Bonds will be payable semiannually on June I and December 1 of each year (each, an "Interest Payment Date"), commencing April I. 1999, Interest will be payable by check or wire transfer as provided under the Indenture and described herein mailed by first-class mail, or by wire transfer as permitted under the Indenture and described herein, to the registered owners of the Bonds appearing on the registration books of the Trustee at the close of business on the fifteenth day of the month preceding the applicable Interest Payment Date. Principal and premium, if any, together with interest payable on any Bond Payment Date other than a regularly scheduled Interest Payment Date, on the Bonds will be payable by check upon surrender thereof on or after its maturity date or date fixed for redemption or other payment at the office of the Trustee designated in the Indenture. So long as any of the Bonds are registered in the name of Cede & Co., as nominee of DTC, payments of the principal of, premium, if any, and interest on such Bonds will be made directly to DTC or its nominee, Cede & Co., by the Trustee. Disbursements of such payments to DTC's Participants are the responsibility of DTC and disbursements of such payments to the Beneficial Owners are the responsibility of DTC's Participants and Indirect Participants, as more fully described herein. TAPHAMJ0641422749vJ /1- 4- d- _ _ ----.---....-.- .. .--.- .-."". ---..__.__.__._--~---_......_._---- The Bonds are subject to optional, special mandatory and mandatory sinking fund redemption prior to maturity. See "THE BONDS - Redemption." MATURITY SCHEDULE- The Bonds will bear interest at the rate(s) per annum and shall mature (subject to redemption prior to maturity, including sinking fund redemption) on the dates and in the principal amounts, stated in the table set forth below. Maturity Principal Interest Maturity Principal Interest Date Amount Rate Price Date Amount Rate Price $ % Term Bonds Due June 1, _ - Price: _0/0 $ % Term Bonds Due June 1, _ - Price: _ % This cover page of the Official Statement contains certain infonnation for quick reference only. It is not a complete summary of the Bonds. Investors should read the entire Official Statement to obtain information essential to the making of an ¡nfonned investment decision. THE BONDS ARE BEING SOLD ON THE BASIS OF THE FINANCIAL STRENGTH OF FANNIE MAE AND NOT ON THE FINANCIAL STRENGTH OF THE BORROWER OR THE PROJECT. SEE THE SECTION HEREIN CAPTIONED "SECURITY FOR THE BONDS." The Bonds are offered when, as and if issued and received by the Underwriter, and subject to the approval as to their legality by Stradling, Yocca, Carlson & Rauth, Newport Beach, California, Bond Counsel, and certain other conditions. Certain legal matters will be passed upon for Fannie Mae by its Legal Department and Arent Fox Kintner Plotkin & Kahn, PLLC, Washington, D.C., Counsel to Fannie Mae, for the Borrower by Turner, Aubert & Young, LLP, Beverly Hills, California, and for the Underwriter by Cox, Castle & Nicholson LLP, Los Angeles, California. It is expected that the Bonds will be available for delivery in book-entry form through DTC in New York, New York on or about October 20, 1998. Newman & Associates, Inc. Dated: October _,1998 - Preliminary, subject to change. TAPHAM 3064\ 422749 v3 ¡l-</3 --.-~~.-~..-----~~---~-~-.-'. No dealer, broker, salesperson or other person has been authorized by the Issuer, the Borrower or the Underwriter to give any infonnation or to make any representations with respect to the Bonds other than those contained in this Official Statement, and, if given or made, such infonnation or representations must not be relied upon as having been authorized by any of the foregoing. 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 Bonds by any person in any jurisdiction in which such offer, solicitation or sale is not authorized or in which the person making such offer, solicitation or sale is not qualified to do so or to any person to whom it is unlawful to make such offer, solicitation or sale. The infonnation herein has not been independently verified and is not guaranteed as to accuracy. The information and expressions of opinion stated herein are subject to change without notice. The delivery of this Official Statement shall not, under any circumstances, create any implication that there has been no change in the information or opinions set forth herein or in the affairs of the Issuer or any other parties described herein since the date hereof. The information set forth herein has been furnished by the Issuer and other sources which are believed to be reliable, but it is not guaranteed as to accuracy or completeness by, and is not to be construed as a representation by, the Underwriter. Fannie Mae has not provided or approved any infonnation in this Official Statement except with respect to the description under the caption "FANNIE MAE," takes no responsibility for any other information contained in this Official Statement and makes no representation as to the contents of this Official Statement (other than with respect to the description under the caption "FANNIE MAE"). Without limiting the foregoing, Fannie Mae makes no representation as to the suitability of the Bonds for any investor, the feasibility or performance of the Project or compliance with any securities, tax or other laws or regulations. Fannie Mae's role is limited to issuing the Fannie Mae Commitment, entering into the Collateral Agreement, acquiring the Mortgage Loan trom the Servicer if the Fannie Mae Pass-Through Certificate Delivery Requirements are satisfied by issuing a Fannie Mae Pass-Through Certificate in exchange for the Mortgage Loan, and making distributions under the Fannie Mae Pass-Through Certificate, all as described herein. The information herein is subject to change without notice, and neither the delivery of this Official Statement nor any sale made hereunder may, under any circumstances, create any implication that there has been no change in the affairs of the Issuer, the Borrower or Fannie Mae since the date hereof. References in this Official Statement to the Indenture, the Financing Agreement, the Regulatory Agreement, the Fannie Mae Commitment, the Collateral Agreement and other documents do not purport to be cornplete, and reference should be made to such documents for full and complete details of their contents. In reliance upon applicable exemptions, no registration statement relating to the Bonds has been filed with the United States Securities and Exchange Commission (the "Commission") or with any state securities agency. The Bonds have not been approved or disapproved by the Commission or any state securities agency, nor has the Commission or any state securities agency passed upon the accuracy or adequacy of this Official Statement. Any representation to the contrary is a criminal offense. IN CONNECTION WITH THIS OFFERING, THE UNDERWRITER MAY OVERALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE BONDS OFFERED HEREBY AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME. A -L/ ~ --- _._.._-_._--_....._~--_._---- ---^-- TABLE OF CONTENTS Page INTRODUCTION ............"..,......,..............................,..,..,..,...,..,.............,......"..".....,..........................,....,1 THE BONDS,.......,..,...........,...............,..,....................,..,..........................,.....................,................,....,.....,6 GeneraI................,......,...................................................................,......................................,................6 Redemption .......................................................................................,.,................................................, 7 Notice of Redemption ...........,......,............................,..................................."......,.............................1 0 Selection of Bonds To Be Redeemed Upon Partial Redemption of Bonds ,...................,..............11 Pnrchase of Bonds in Lien of Redemption ............................................................,.........................,12 Special Purchase in Lieu of Redemption ..........................................................................................12 Book-Entry-Only System ........,..."..,..,..,..,....,..................,.............................,........................."....,..,12 SECURITY FOR THE BONDS..,........................,..,..,................................................,..,.........................15 Pledge of Trust Estate .....................,..,..,..,..,..,..,...........,.....,......."................,................................,..,15 Non-Recourse Obligations ....................,..,..,..,.......................",..,........................."...........................17 Collateral Agreement .........................,..,..,...........................".......................,...,...............................,17 Conversion; Issuance of Fannie Mae Pass-Through Certificate ....................................................19 Limited Liability ,.......,.,............................,...,.........................."..........................."..,...,.....................25 No Additional Bonds....,.....,...................,.............................."....................,...,.."..,........................,... 25 Snfficiency of Cash Flow ....,.............,..............,..,..,..,...............".."..,................".."..,...,..,.................25 Construction Phase Credit Facility Provider .....................,.........................,................,................,. 26 Year 2000 Problem .................,......,..............,..,.....,............................................"..,.........................., 26 THE FANNIE MAE COMMITMENT .....,..,..,..,........................,................,....".......,.............,.....,.......,26 FANNIE MAE ............,......,.............................,..,....................,........,.,........,...,..............................,....,.....28 THE ISSUER.........,...................,.......,..,..,.................,..,..,..,...... ..............,...................,.......,..,..................28 ESTIMATED SOURCES AND USES OF BOND PROCEEDS............................,.............................. 29 PLAN OF FINANCING ......."..,...................,..,..,..,..................,..,......................."......................,..,.........30 Estimated Sources and Uses of Funds for Project Costs......,.......................................,..................30 Tax-Exempt Financing..,.....,............."..,..................,.,..,..,..,..........,..,..,...,................,...,..,..,..,...........31 THE BORROWER AND THE PROJECT.......,..,..,.................,.."...,................,.."...,..,....................,....31 The Borrower .............,......"........................,..,....................,......,................,...,.........................,........,31 The Project "...............,......,.......,...........,...,.......,..............,..."...................,.."..,...................,.......,..,.., 32 Property Management.........."..,..................,.,...,..,........... .........."........................,............................,32 Rental Restrictions................,.............................................................................................................33 The Master Planned Community ...........,..,..,..................,..,..,...........,...."..,......................"..............33 Limited Recourse to Borrower ,...................,......................,...,.................,..,...............................,.,...34 THE BORROWER AND THE PROJECT......,....,....................,...,................,...,...................,...............34 The Borrower ......................................................................................................................................34 The Pro ject ......",.....,.............".."....................,..,..,..............,.."..,....................,.....................,............ 35 Property Management..........,..........,.....................,.......... ..............".....,.............,......,.....................,,35 i /1- t/-S- Rental Restrictions..........,..,.............,...............................,......,...................................................,..,..., 36 Limited Recourse to Borrower ................................",...."......,..............................,.......,......,........,..,36 THE MORTGAGE NOTE .............,.........,......,..,......................,.......,..,......"..,........,................."............36 FANNIE MAE AND SERVICING FEES ......,..,..,..,..,......,..........................................."......,...,..,..,..,....37 GeneraI.......................................................,.........................................................................................37 Timing of Receipt of Revenues ,..,......,..,............,.......................,......,......,...............,.............,..........,38 THESERVICER.....,..,..............................,.........................................."..,...,..,...,.....................................38 ENFORCEABILITY OF REMEDIES,..,.."..,..................,..,..,..............,............................."........,..,..,..,39 TAX MA TTERS..................."..,..,...,.....................,..,..,............................,...............................................,39 CERTAIN LEGAL MA TTERS..,..................,..,..,..,..,................,....,..,....................................,..,............40 UNDERWRITING ..,......,......................"..,..,..,..,..,..................,.............................,..........,......,................41 CONTINUING DISCLOSURE......,..,...,.................,..,..,..............................,.."...,...,...............................41 VERIFICATION OF CASH FLOWS...........,..,.....................,..,............................,......"..,.......,..,..........41 NO LITIGATION ,..,......"......................,........................,..,...,....................,..,.......,...,......................,....,..42 RATING.............,....................................................,..,..............................,...........................,....................42 ADDITIONAL INFORMATION .........................,..............................,...........................,.......................42 APPENDIX A SUMMARY OF CERTAIN DEFINITIONS APPENDIX B SUMMARY OF CERTAIN PROVISIONS OF THE INDENTURE APPENDIX C SUMMARY OF CERTAIN PROVISIONS OF THE COLLATERAL AGREEMENT APPENDIX D SUMMARY OF CERTAIN PROVISIONS OF THE REGULATORY AGREEMENT APPENDIX E SUMMARY OF CERTAIN PROVISIONS OF THE FINANCING AGREEMENT APPENDIX F FORM OF THE CONTINUING DISCLOSURE AGREEMENT APPENDIX G PROPOSED FORM OF OPINION OF BOND COUNSEL ii ;/- 4(P OFFICIAL STATEMENT $ . CITY OF CHULA VISTA, CALIFORNIA MUL TIFAMIL Y HOUSING REVENUE BONDS SERIES 1998A (GATEWAY TOWN CENTER APARTMENTS) INTRODUCTION This Official Statement and the Appendices hereto set forth certain information relating to the issuance by the City of Chula Vista (the "Issuer") of the above-captioned Bonds (the "Bonds"). The Bonds are being issued by the Issuer to provide funding for a mortgage loan (the "Mortgage Loan") to be made by the Issuer to Gateway Town Center, L.P., a California limited partnership (the "Borrower"), to provide construction and permanent financing for a multifamily residential housing project known as the Gateway Town Center Apartments located in the City of Chula Vista, San Diego County, California (the "Project"). The Bonds are being issued pursuant to a Trust Indenture dated as of October I, 1998 (the "Indenture") by and between the Issuer and State Street Bank and Trust Company of California, N,Å., as trustee (the "Trustee"), and pursuant to Chapter 5 of Division 7 of Title I of the California Governrnent Code, together with the provisions of Chapter 7 of Part 5 of Division 31 of the California Health and Safety Code, as the same may be amended (the "Act"). Certain capitalized terms used in this Official Statement are summarized in "APPENDIX A - SUMMARY OF CERTAIN DEFINITIONS." The Mortgage Loan win be made pursuant to the Financing Agreement dated as of October I, 1998 (the "Financing Agreement") among the Issuer, the Trustee, ARCS Commercial Mortgage Co., L.P., a California limited partnership (the "Servicer") and the Borrower. The Mortgage Loan win be evidenced by a promissory note executed by the Borrower and made payable to the Issuer (the "Mortgage Note") and win be secured by, among other things, a multifarnily deed of trust, assignment of rents and security agreement ITom the Borrower, in favor of the Issuer (the "Mortgage"), encumbering the Project The Mortgage Loan will be made by the Issuer in accordance with the requirements of Fannie Mae ("Fannie Mae") and subject to the terms and conditions of a commitment (the "Fannie Mae Commitment") issued by Fannie Mae to the Servicer with respect to the Mortgage Loan. Under the Fannie Mae Commitment, Fannie Mae has agreed, subject to satisfaction of the terms and conditions of the Fannie Mae Commitment, to provide credit enhancement for the Mortgage Loan pursuant to, and subject to the limitations of, a Conateral Agreement (described herein). In addition, under the Fannie Mae Commitment, if the Conditions to Conversion (as described under the caption "SECURITY FOR THE BONDS--Conversion; Issuance of Fannie Mae Pass-Through Certificate-Conversion; Failure of Conversion To Occur") are satisfied prior to the Termination Date such that the Trustee will issue a Conversion Notice prior to the Termination Date, the Mortgage Loan win convert ITom the Construction Phase to the Permanent Phase, effective on the Conversion Date and, on such date, or thereafter upon satisfaction of the Fannie Mae Pass-Through Certificate Delivery Requirements, the Mortgage Loan will be acquired by Fannie Mae in exchange for a Fannie Mae Pass-Through Certificate. On the Closing Date, the Mortgage Note and the Mortgage will be executed by the Borrower in favor of the Issuer and assigned (except for certain Reserved Rights) by the Issuer to the Trustee and . Preliminary, subject to change. ;1-41 "-'---.- ..~,.._..'.._-'--'-'-"----"-----""'--- Fannie Mae, as their interests may appear, and, upon such assignment, will be part of the Trust Estate securing the Bonds. In addition to the other security provided under the Indenture, prior to the Issue Date (as described under the caption "SECURITY FOR THE BONDS-Issuance of the Fannie Mae Pass- Through Certificate; Conversion"), if it occurs, certain required mortgage payments under the Mortgage Note designated as "Required Mortgage Payments" (as defmed herein) will be secured, pursuant to a Collateral Agreement dated as of October I, 1998 between Fannie Mae and the Trustee (the "Collateral Agreement"), by a pledge and security interest granted by Fannie Mae to the Trustee of interests in certain residential mortgages and other collateral owned by Fannie Mae (the "Pledged Collateral"). The Trustee's security interest in the Pledged Collateral will be unperfected. The obligation of the Borrower to reimburse Fannie Mae for any funds provided by Fannie Mae pursuant to the Collateral Agreement is established by the tenns and conditions of a Reimbursement Agreement dated as of October I, 1998 by and between the Borrower and Fannie Mae (the "Reimbursement Agreement"). See "SECURITY FOR THE BONDS - Collateral Agreement" and "APPENDIX C - SUMMARY OF CERTAIN PROVISIONS OF THE COLLATERAL AGREEMENT." The Conditions to Conversion include satisfaction of each of the tenns and conditions of the Fannie Mae Commitment. The conditions of the Fannie Mae Commitment include, for example, completion of construction of the Project and the achievement of a specified occupancy level rrom the leasing of units. No assurance can be given that all of the conditions stipulated by Fannie Mae in the Fannie Mae Commitment will be satisfied with respect to the Project or that other events or circumstances mayor may not occur with respect to the Project as a result of which Conversion will not occur. In addition, no assurance can be given that the principal amount of the Mortgage Loan, as finally detennined in accordance with the Fannie Mae Commitment, will not be less than the original principal amount of the Mortgage Loan; if the principal amount of the Mortgage Loan as finally detennined in accordance with the Fannie Mae Commitment is less than the original principal amount of the Mortgage Loan, a corresponding portion of the Bonds will be subject to special mandatory redemption. See "THE BONDS - Redemption - Special Mandatory Redemption-Special Mandatory Redemption in Connection with Conyers ion." If the Conditions to Conversion, including the conversion requirements and other tenns and conditions of the Fannie Mae Commitment, cannot be or are not satisfied (or, to the extent not satisfied, are not waived by Fannie Mae) prior to the Tennination Date, the Bonds will be subject to special mandatory redemption at par plus accrued interest to the Redemption Date, or to purchase by or for account of the Construction Phase Credit Facility Provider in accordance with the tenns and conditions of the Indenture. See "THE BONDS - Redemption" herein. In the event of such a special mandatory redemption or purchase, the redemption price or purchase price will be paid with funds provided under the Collateral Agreement. The Collateral Agreement will then tenninate in accordance with its tenns, The Tennination Date specified in the Fannie Mae Commitment is ; the Servicer rnay request one six-month extension of the Tennination Date. The grant of any such extension is in the discretion of Fannie Mae. If Conversion does occur and if and at such time as the Fannie Mae Pass-Through Certificate Delivery Requirements (as described under the caption "SECURITY FOR THE BONDS-Conversion; Issuance of the Fannie Mae Pass-Through Certificate - Fannie Mae Pass- Through Certificate Delivery Requirements") are satisfied, such that the Trustee will issue the Fannie Mae Pass-Through Certificate Delivery Notice, Fannie Mae will acquire all of the remaining interests in the Mortgage Loan in exchange for a Fannie Mae Pass-Through Certificate, The Fannie Mae Pass-Through Certificate will (a) be issued and delivered to the Trustee, (b) evidence an interest in a mortgage pool comprised solely of the Mortgage Loan and (c) be held by the Trustee to secure payment of the Bonds. Distributions under the Fannie Mae Pass-Through Certificate corresponding to scheduled payments of principal and interest on the Mortgage Loan (less the Spread Amount with respect thereto, comprising the servicing and guaranty fees payable to 2 A - 4-Y: .0_ _ _.._ .. __,_.______~~_,.___,.____ the Servicer and Fannie Mae, respectively) will be made to the Trustee, as holder of the Fannie Mae Pass-Through Certificate. See "SECURITY FOR THE BONDS - Conversion; Issuance of the Fannie Mae Pass-Through Certificate." It is anticipated that Fannie Mae's acquisition of the rernaining interests in the Mortgage Loan and, therefore, Fannie Mae Pass-Through Certificate Delivery, will coincide with Conversion to the Permanent Phase, If Conversion does occur, but the Fannie Mae Pass-Through Certificate Delivery does not coincide with Conversion, then until such time as the Fannie Mae Pass-Through Certificate Delivery does occur, the Collateral Agreement will continue in effect as credit enhancernent for the Mortgage Loan. Fannie Mae's obligation to make payments under the Collateral Agreement is absolute, unconditional and irrevocable, See "SECURITY FOR THE BONDS - Collateral Agreement" If, for any reason, Fannie Mae Pass-Through Certificate Delivery does not occur, the Collateral Agreement will continue in effect as credit enhancement for the Mortgage Loan. If Fannie Mae Pass-Through Certificate Delivery does occur, whether at or after Conversion, the obligation of Fannie Mae to make distributions under the Fannie Mae Pass-Through Certificate will be the general, unsecured obligation of Fannie Mae. If Fannie Mae fails to perfonn such obligation, distributions to the Trustee will consist of payments and other recoveries on the Mortgage Loan itself, and a delinquency or default on the Mortgage Loan at that time would seriously and adversely affect monthly distributions to the Trustee. The Trustee will accumulate and invest the monthly payments on the Mortgage Loan and, after Fannie Mae Pass-Through Certificate Delivery, the monthly distributions under the Fannie Mae Pass-Through Certificate, for application semiannually to payments of interest and principal, as due, on the Bonds and for payment of certain fees and expenses associated therewith. See "APPENDIX B - SUMMARY OF CERTAIN PROVISIONS OF THE INDENfURE." IF THE FANNIE MAE PASS-THROUGH CERTIFICATE IS ISSUED, FANNIE MAE WILL BE OBLIGATED UNDER THE FANNIE MAE PASS-THROUGH CERTIFICATE TO MAKE TIMELY DISTRIBUTIONS OF SCHEDULED PRINCIPAL AND INTEREST UNDER THE FANNIE MAE PASS-THROUGH CERTIFICATE REGARDLESS OF WHETHER THE CORRESPONDING PAYMENTS ARE RECEIVED ON THE UNDERLYING MORTGAGE LOAN, FANNIE MAE WILL HAVE NO OBLIGATION UNDER THE FANNIE MAE PASS-THROUGH CERTIFICATE TO PAY PREMIUM, IF ANY, ON THE BONDS. Prior to Conversion, pursuant to the Construction Phase Financing Agreement, Fannie Mae will be protected against risk of loss by a Construction Phase Credit Facility acceptable to Fannie Mae issued by a Construction Phase Credit Facility Provider acceptable to Fannie Mae. Certain events concerning the Construction Phase Credit Facility Provider, the Construction Phase Financing Agreement and the Construction Phase Credit Facility may result in the prepayment of the Mortgage Loan and a corresponding special mandatory redernption of the Bonds. See "THE BONDS - Special Mandatory Redemption - Special Mandatory Redemption in Connection with Conversion." The interest rate on the Mortgage Note will be established at a rate, and the monthly payments under the Mortgage Note will be scheduled, such that the monthly payments of principal and interest on the Mortgage Note and upon issuance of the Fannie Mae Pass-Through Certificate, the corresponding distributions under the Fannie Mae Pass-Through Certificate, plus, in each instance, other moneys on deposit with the Trustee pursuant to the Indenture and Investment Income, will be sufficient to pay, when due, the serni-annual principal of and interest on the Bonds, as well as, the Issuer's Annual Fee, the Trustee's Annual Fee and the Rebate Analyst's Annual Fee, if any (collectively, the "Fees," as defined in the Indenture). Fannie Mae has not prepared, review or verified, makes no representation or warranty 3 A -.jq - -- -_.._.__._~--_. .-.._,.._------------~_.~._~.,_.- with respect to, does not certify to, and assumes no responsibility or liability for, any calculations used to establish such schedule of payments and corresponding distributions, the assurnptions used in rnake such calculations, their mathernatical accuracy or for the sufficiency of payrnents on which they are based to pay the principal of and interest on the Bonds when due, the Fees when due or any other amounts at any time. The Project is required to be occupied by tenants whose incomes satisfy certain provisions of the Act and the Internal Revenue Code of 1986 (the "Code"), as set forth in a Regulatory Agreement and Declaration of Restrictive Covenants dated as of October I, 1998 and entered into by and among the Issuer, the Trustee and the Borrower (the "Regulatory Agreement"). See "TIlE BORROWER AND THE PROJECT - Rental Restrictions - Regulatory Agreement" and "APPENDIX D - SUMMARY OF CERTAIN PROVISIONS OF TIlE REGULATORY AGREEMENT." In addition, the Project is subject to an Extended Use Agreement required by the Code and the California Tax Credit Allocation Committee described under the caption "TIlE BORROWER AND TIlE PROJECT - Rental Restrictions - Tax Credits" herein, The agreements described in this paragraph impose substantial restrictions on the operation of the Project, including (but not limited to) restrictions on the income of occupants and the amount of rent that may be charged. TIlE BONDS ARE NOT A DEBT OF TIlE UNITED STATES OF AMERICA OR ANY AGENCY TIlEREOF OR OF FANNIE MAE. PAYMENT OF PRINCIPAL OF, PREMIUM,IF ANY, AND INTEREST ON TIlE BONDS IS NOT GUARANTEED BY FANNIE MAE SO LONG AS TIlE COLLATERAL AGREEMENT IS IN EFFECT WITIl RESPECT TO TIlE MORTGAGE LOAN, FANNIE MAE'S OBLIGATIONS WILL BE SOLELY AS PROVIDED IN TIlE COLLATERAL AGREEMENT. IF A FANNIE MAE PASS-TIIROUGH CERTIFICATE IS ISSUED WITIl RESPECT TO TIlE MORTGAGE LOAN, FANNIE MAE'S SOLE OBLIGATION WILL BE CONTAINED IN TIlE FANNIE MAE PASS-TIlROUGH CERTIFICATE AND WILL BE LIMITED TO MAKING DISTRIBUTIONS OF PRINCIPAL AND INTEREST UNDER TIlE FANNIE MAE P ASS- TIlROUGH CERTIFICATE, IN ACCORDANCE WITIl ITS TERMS, TO TIlE RECORD OWNER OF TIlE FANNIE MAE PASS-TIIROUGH CERTIFICATE TIlE OBLIGATIONS OF FANNIE MAE UNDER TIlE COLLATERAL AGREEMENT AND UNDER THE FANNIE MAE P ASS- TIlROUGH CERTIFICATE, IF ISSUED, WILL BE OBLIGATIONS SOLELY OF FANNIE MAE, A FEDERALLY CHARTERED STOCKHOLDER-OWNED CORPORATION. TIlE OBLIGATIONS OF FANNIE MAE ARE NOT BACKED BY THE FULL FAITIl AND CREDIT OF TIlE UNITED STATES OF AMERICA. FANNIE MAE HAS NO OBLIGATION TO PURCHASE, DIRECTLY OR INDIRECTLY, ANY OF TIlE BONDS. Fannie Mae has designated the Servicer to service the Mortgage Loan; however, Fannie Mae may subsequently designate other eligible servicing institutions to service the Mortgage Loan for Fannie Mae or may elect to service the Mortgage Loan itself (the Servicer or any such other mortgage servicer so acting from time to time may herein be referred to as the "Mortgage Servicer"). The Bonds are subject to optional, special mandatory and mandatory sinking fund redemption prior to maturity as described under the heading "TIlE BONDS" herein. Any failure of a Borrower to cornply with the terms of the Regulatory Agreement may cause interest on the Bonds to be included in the gross income of the owners thereof for federal income tax purposes, possibly retroactively as well as prospectively. See "TAX MATTERS" herein. None of the Trustee, the Issuer or the Bondholders may cause an acceleration or redemption of the Bonds solely by reason of a default by the Borrower under the Regulatory Agreement or of interest on the Bonds becoming includable in the gross income of the owners thereof for federal 4 A -5() ---_._------~._----~_._._- income tax purposes. In addition, the interest rate on the Bonds will not be adjusted in the event that interest payable on such Bonds becomes includable in the gross income of the owners thereof for federal income tax purposes. The Bonds are special, limited obligations of the Issuer payable solely from and secured by, among other property comprising the Trust Estate described in the Indenture and the security for such Bonds, the following: (a) prior to the Fannie Mae Pass-Through Certificate Delivery Date, (i) all payments made under the Mortgage Note, (ii) all payments made under the Collateral Agreement, (iii) the Net Bond Proceeds, to the extent not disbursed to the Borrower, (iv) the Revenues and any other moneys received by the Trustee for the payment of the principal of and interest on the Bonds, (v) arnounts otherwise on deposit in the Funds and Accounts (other than moneys on deposit from time to time in the Rebate Fund, the Costs of Issuance Fund and the Fees Account), all of which will be invested in Permitted Investments, and (vi) Investment Income (excluding Investment Income earned on amounts on deposit in the Rebate Fund the Costs ofIssuance Fund (other than Investment Incorne earned on amounts on Net Bond Proceeds deposited into the Costs of Issuance Fund and Investment Income on such Investment Income and transferred to the General Receipts and Disbursements Account)) and (b) on and after the Fannie Mae Pass-Through Certificate Delivery Date, (i) the Revenues, including distributions under the Fannie Mae Pass-Through Certificate, and any other moneys received by the Trustee for the payment of the principal of and interest on the Bonds, (ii) amounts otherwise on deposit in the Funds and Accounts (other than moneys on deposit from time to time in the Rebate Fund, the Costs of Issuance Fund and the Fees Account), all of which will be invested in Permitted Investments, and (iii) Investment Income (excluding Investment Income earned on amounts on deposit in the Rebate Fund the Costs of Issuance Fund (other than Investment Income earned on amounts on Net Bond Proceeds deposited into the Costs of Issuance Fund and Investment Income on such Investment Income and transferred to the General Receipts and Disbursements Account). TIlE BONDS ARE SPECIAL, LIMITED OBLIGATIONS OF TIlE ISSUER, PAYABLE SOLELY FROM AND SECURED BY TIlE PLEDGE OF TIlE TRUST ESTATE PURSUANT TO TIlE INDENfURE. TIlE ISSUER HAS NO TAXING POWER. TIlE BONDS ARE NOT A DEBT OF TIlE STATE OF CALIFORNIA, TIlE ISSUER OR ANY OTIlER POLITICAL SUBDIVISION OF TIlE STATE OF CALIFORNIA. NEITIlER TIlE FAITIl AND CREDIT NOR THE TAXING POWER OF TIlE STATE OF CALIFORNIA, THE ISSUER OR ANY OTIlER POLITICAL SUBDIVISION OF TIlE STATE OF CALIFORNIA IS PLEDGED TO TIlE PAYMENT OF TIlE PRINCIPAL OF OR THE INTEREST ON TIlE BONDS. NONE OF THE UNITED STATES OF AMERICA, FANNIE MAE, ANY AGENCY OF THE UNITED STATES OF AMERICA, THE STATE OR ANY OTIlER POLITICAL SUBDIVISION OF TIlE STATE (EXCEPT TIlE ISSUER, TO TIlE LIMITED EXTENT SET FORTIl IN TIlE INDENfURE) SHALL IN ANY EVENT BE LIABLE FOR TIlE PAYMENT OF TIlE PRINCIPAL OF, PREMnJM (IF ANY) OR INTEREST ON THE BONDS OR FOR TIlE PERFORMANCE OF ANY PLEDGE, OBLIGATION OR AGREEMENT OF ANY KIND WHATSOEVER OF THE ISSUER, AND NEITHER TIlE BONDS NOR ANY OF TIlE ISSUER'S AGREEMENTS OR OBLIGATIONS SHALL BE CONSTRUED TO CONSTITUTE AN INDEBTEDNESS OF OR A PLEDGE OF TIlE FAITH AND CREDIT OF OR A LOAN OF TIlE CREDIT OF ANY OF TIlE FOREGOING WITIlIN TIlE MEANING OF ANY CONSTITUTIONAL OR STATUTORY PROVISIONS WHATSOEVER TIlE BONDS ARE NOT GUARANTEED BY TIlE FULL FAITIl AND CREDIT OF TIlE UNITED STATES OF AMERICA. Brief descriptions of the Bonds, the security for the Bonds, the Issuer, Fannie Mae, the Collateral Agreement, the Fannie Mae Commitment, the Fannie Mae Pass-Through Certificate, the Servicer, the Project and the Borrower are included in this Official Statement together with summaries of the Indenture, the Financing Agreement, the Regulatory Agreement and the Collateral Agreement, the Continuing Disclosure Agreement Such descriptions do not purport to be comprehensive or defi"itive, 5 ¡I-S/ - -- --- ----"-. ._~-_._----_._---._._---- All references herein to the Indenture, the Financing Agreement, the Regulatory Agreement, the Continuing Disclosure Agreernent, the Collateral Agreernent, the Fannie Mae Pass-Through Certificate, Fannie Mae Cornrni1ment or other document are qualified in their entirety by reference to such documents, and references herein to the Bonds are qualified in their entirety by reference to the fonns thereof included in the Indenture and the infonnation with respect thereto in the aforementioned documents, copies of all of which are available for inspection in the designated office of the Trustee in San Francisco, California. THE BONDS General The Bonds are issuable only as fully registered bonds, without coupons, in denominations of $5,000 or any integral multiple thereof. The Bonds are dated as of the Dated Date set forth on the cover hereof and will bear interest at the rates per annum, and mature in the principal amounts, as set forth on the inside cover of this Official Statement, until maturity or earlier redemption as described under the caption "Redemption" below. Interest on the Bonds will be calculated on the basis of a 360-day year composed of twelve 30-day months and be payable on June I and December I of each year, cornrnencing on June I, 1999 (each, an "Interest Payment Date") calculated from the Interest Payment Date next preceding the date of authentication of the Bonds, provided that if the date of authentication is an Interest Payment Date for which interest has been paid or is after the Record Date but prior to the next Interest Payment Date, the Bonds shall bear interest from such Interest Payment Date, provided further that if the date of authentication is on or before the Record Date for the first Interest Payment Date, the Bonds shall bear interest from the Dated Date of the Bonds. Notwithstanding the foregoing, if, at the time of authentication of any Bond, interest on any Bond is in default, the Bond shall bear interest frorn the Interest Payment Date to which interest has previously been paid or rnade available for payment or, if no interest has theretofore been paid on the Bond, from the Dated Date of the Bond. The Bonds will be delivered in fully registered fonn only and, when issued and delivered, will be registered in the name of Cede & Co., as nominee of The Depository Trust Company, New York, New York ("DTC'l Ownership interest in the Bonds may be purchased in book-entry fonn only. Ultimate purchasers of Bonds will not receive physical certificates representing their interest in the Bonds. So long as the Bonds are registered in the name of Cede & Co., as nominee of DTC, references herein to the Bondholders shall mean Cede & Co. and shall not mean the ultimate purchasers of the Bonds. Payments of the principal of and interest on the Bonds while under the Book-Entry System shall be made in accordance with the rules, regulations and procedures established by DTC in connection with such Book-Entry System. See "TIlE BONDS - Book-Entry-Only System." 6 /1- S~ _._._~._---.. Redemption Optional Redemption, The Bonds are not subject to optional redemption prior to June I, 2008. On and after June I, 2008, the Bonds will, to the extent optional prepayment of the Mortgage Loan is made pursuant to and as permitted by the tenns of the Mortgage Loan Documents (the right to optionally prepay the Mortgage Loan prior to the Fannie Mae Pass-Through Certificate Delivery Date other than wholly with Available Moneys is subject to, and must be evidenced by, the prior written consent of Fannie Mae provided to the Trustee, on which the Trustee may conclusively rely), be subject to corresponding optional redemption on the first day of any month on or after June I, 2008 in whole but not in part. Such redemption shall be made on any date for which timely notice of redemption can be given during the periods set forth in the below table and at the respective redemption prices set forth below (expressed as percentages of the principal amounts of the Bonds called for redemption), plus accrued interest, if any, to the Redemption Date: Redernption Period Redemption Prices (Both Dates Inclusive) Œxuressed as a PercentalZe) June I, 2008 through May 31, 2009 102% June 1,2009 through May 31, 2010 101 June I, 20 I 0 and thereafter 100 Unless Fannie Mae provides its prior written consent to an optional prepayment of the Mortgage Loan prior to the Fannie Mae Pass-Through Certificate Delivery Date other than wholly with Available Moneys, optional redemption shall not be pennitted unless such redemption is effected solely with Available Moneys. Notwithstanding any other provision of the Indenture to the contrary, the optional redemption of the Bonds arising from the optional prepayment of the Mortgage Loan at any time shall not be made, and notice of any redemption arising frorn the optional prepayment of the Mortgage Loan shall not be given to Bondholders, unless and until thirty (30) days prior to the Redemption Date, the Trustee has on hand Available Moneys in an amount sufficient to pay the End Period Payment. Neither the Issuer, Fannie Mae nor the Servicer shall have any responsibility or liability to provide funds to be included in the End Period Payment. Special Mandatory Redemption. Special Mandatory Redemption in Connection with Conversion. The Bonds are subject to special rnandatory redemption, in whole or in part: (a) in the event, and to the extent that: (i) amounts remaining in the Mortgage Loan Fund are transferred to the Redemption Account pursuant to the Indenture for application to the redemption of Bonds; or (ii) proceeds of insurance from any casualty to, or proceeds of any award from any condemnation or any award as part of a settlernent in lieu of condemnation of, the Project are not applied in accordance with the Mortgage Loan Documents to the rebuilding, restoration or replacement of the Project, or, with the prior written consent of 7 ¡J -53 _____ _.__._._______._~~___.________.____'_.m_ Fannie Mae, otherwise used for irnprovernents to the Project, or applied to the reimbursement of arnounts owed to Fannie Mae pursuant to the Reirnbursement Agreement following (A) the involuntary destruction or loss of the Project in its entirety or nearly in its entirety as a result of casualty or condemnation, such special mandatory redemption of Bonds to be a redemption of all of the Bonds Outstanding and, therefore, in a principal amount equal to the unpaid principal balance of the Mortgage Note, provided further that the Trustee shall be entitled to payment under the Collateral Agreement, in accordance with its terms, to the extent the insurance or condemnation proceeds, as applicable, applied to the payment of the Mortgage Note, and moneys, if any, on deposit in the Funds and Accounts (other than the Rebate Fund) are less than the unpaid principal balance of the Mortgage Note and are, therefore, insufficient to redeern all of the Bonds Outstanding and (B) the partial destruction or condemnation of the Project, such special mandatory redemption of Bonds to be a redernption of Bonds Outstanding in a principal amount equal to the insurance or condemnation proceeds received with respect to the Project; and (b) at the written direction or with the prior written consent of Fannie Mae to the Trustee and in the amount specified by Fannie Mae: (i) as soon as the notice requirements of the Indenture permit, following (A) any event of default under the Mortgage Loan, including any default under the Mortgage Note, the Mortgage or any other Mortgage Loan Document or any "Event of Default" under and as defined in the Reimbursement Agreement or the Financing Agreernent (including any Event of Default under, and as defmed in, the Reimbursement Agreement or the Financing Agreement caused by a default under the Mortgage Note, the Mortgage or any other Mortgage Loan Document) or (B) the occurrence of a "Borrower Default" or a "Direction to Draw" under, and as each such term is defmed in, the Construction Phase Financing Agreement; (ii) on or after the Termination Date, as soon as the notice requirements of the Indenture permit, if the Conversion Notice is not issued by the Servicer prior to the Termination Date; or (iii) on or after the Conversion Date, as soon as the notice requirernents of the Indenture permit, if, and to the extent that, the Permanent Phase Mortgage Loan Amount (as such term is defined in, and determined in accordance with the terms and conditions of, the Fannie Mae Commitment) with respect to the Mortgage Loan is less than the original principal arnount of the Mortgage Loan. Special Mandatory Redemption After the Fannie Mae Pass-Through Certificate Delivery Date From Fannie Mae Pass-Through Certificate Distributions. The Bonds are subject to special mandatory redemption in whole or in part after the Fannie Mae Pass-Through Certificate Delivery Date and prior to their stated maturity at a redemption price equal to 100% of the principal amount of the Bonds to be redeemed plus accrued interest to the Redemption Date, but without prernium, in each case from and to the extent that the Trustee receives a distribution under the Fannie Mae Pass-Through Certificate resulting from: (a) Fannie Mae's determination that the Mortgage Loan is or is to be deerned a Fully Prepaid Mortgage Loan (other than by reason of optional prepayment of the entire principal balance of the Mortgage Loan prior to final maturity, causing an optional redemption of the Bonds pursuant to the Indenture); or 8 A -,:)-z.j ') ._...-- --.....------ - . .._.._-~. - '.,-- .-.."-'-- _._.~--~.-~_.__.-.._--_.._-~------ (b) other moneys received by Fannie Mae on account of the Mortgage Loan (other than by reason of optional prepayment of the entire unpaid principal balance of the Mortgage Loan prior to final rnaturity, causing an optional redemption of the Bonds pursuant to the Indenture), including, without limitation, prepayment as a result of a casualty or condemnation affecting the Project, or a default under the Mortgage Loan; provided, however, that at the direction of Fannie Mae, all or part of the proceeds of such a prepayment of the Mortgage Loan shall be used, in lieu of redeeming Bonds, to acquire a Substitute Fannie Mae Pass-Through Certificate pursuant to the Indenture. Because of the timing of the distribution under the Fannie Mae Pass-Through Certificate, the Redemption Date of any such special mandatory redemption shall be the first day of the month following the rnonth in which falls the Distribution Date on which Fannie Mae will make such distribution. Special Mandatory Redemption After the Fannie Mae Pass-Through Certificate Delivery Date Upon Purchase of Fannie Mae Pass-Through Certificate. In the event that Fannie Mae is in default of its payment obligations under the Fannie Mae Pass-Through Certificate, the Trustee is authorized to accept frorn Fannie Mae an offer to purchase the Fannie Mae Pass-Through Certificate ¡¡-orn the Trustee at a purchase price not less than the aggregate Stated Principal Balance (as defined in the Fannie Mae Trust Indenture) of the Mortgage Loan plus accrued interest. If such a purchase occurs, the Trustee shall thereafter immediately call all of the Outstanding Bonds for redemption on the first day for which the requisite notice of redemption can be given but in no event more than 10 days after the Trustee receives the purchase price ¡¡-om Fannie Mae, and shall apply the proceeds received ¡¡-om Fannie Mae in respect of purchase of the Fannie Mae Pass-Through Certificate, together with Available Moneys held by the Trustee, to the payment of the redemption price of the Bonds. No such offer ¡¡-om Fannie Mae shall be accepted by the Trustee unless the Available Moneys held by the Trustee under the Indenture, together with the arnounts to be paid by Fannie Mae in respect of the purchase of the Fannie Mae Pass-Through Certificate, are sufficient to pay in full the principal amount of the Bonds Outstanding and interest accrued and to accrue on the Outstanding Bonds to the Redemption Date. Any redemption of Bonds pursuant to this paragraph shall be at a redemption price equal to 100% of the principal amount of the Bonds to be redeemed plus accrued and unpaid interest on the Bonds to the Redemption Date, but without premium. Mandatory Sinking Fund Redemption. Bonds Maturing on April 1, _' The Bonds maturing on April I, _ are subject to mandatory redemption in part, by lot, prior to maturity, ¡¡-om sinking fund installments on each Sinking Fund Redemption Date of June I and December I commencing June I, _, at a redemption price equal to 100% of the principal amount of the Bonds to be redeemed, plus accrued interest, to the Redemption Date, but without premium, as follows: Redemption Redemption RedemDtion Date Amount RedemDtion Date Amount Bonds Maturing on April 1. _. The Bonds maturing on April I, _ are subject to mandatory redemption in part, by lot, prior to maturity, from sinking fund installrnents on each Sinking 9 /1- ~-S- - --.....-.. - '-- - -_._--_._--_.,---_.._-,-,.~---- Fund Redemption Date of June 1 and December 1 commencing June 1, _ at a redemption price equal to 100% of the principal arnount of the Bonds to be redeerned, plus accrued interest, to the Redernption Date, but without premium, as follows: Redemption Redemption RedemDtion Date Amount RedernDtion Date Amount Adjustment for Redemptions From Other Than Sinking Fund Installments, If less than all of the Bonds of a specific maturity shall have been redeemed other than rrom sinking fund installments applicable to such Bonds, the principal amount of Bonds of such maturity to be redeemed in each year rrom sinking fund installments shall be decreased pro rata among all sinking fund installments applicable to such Bonds, or, if Fannie Mae Pass-Through Certificate Delivery has occurred, by an amount in proportion, as nearly as practicable, to the decrease in the distributions under the Fannie Mae Pass-Through Certificate in such year or, if there is no decrease in the distributions under the Fannie Mae Pass-Through Certificate, pro rata among all sinking fund installments. Any such proportional redemption shall be confirmed in writing to the Trustee and the Issuer by the Servicer. Special Mandatory Redemption from Excess Cash Flow Distributions. The Bonds are subject to special mandatory redemption, in whole or in part, prior to their stated maturity, at a redemption price equal to 100% of the principal amount of the bonds to be redeemed, plus accrued interest to the Redemption Date, but without premiurn, in Authorized Denominations, on the next succeeding Interest Payment Date for which notice of redemption can be given pursuant to the Indenture, rrom funds transferred to the Redemption Account pursuant to the Indenture. Bonds redeemed pursuant to this section shall be redeerned in inverse order of maturity. Notice of Redemption Notice of the call for redemption of any Bonds shall be given by the Trustee in the name and on behalf of the Issuer not less than 30 nor more than 45 days prior to the anticipated Redernption Date by rnailing such notice, first-class mail, postage prepaid, to the Registered Owner of each Bond to be redeemed at the address of such Registered Owner as shown on the Bond Register, provided that notice of any optional redemption or any special mandatory redemption pursuant to the Indenture may be given not less than 15 nor rnore than 20 days prior to the date fixed for such redemption. Notwithstanding the foregoing, so long as the Book Entry System is maintained in effect, notice of redemption shall be given to the entity designated in the Letter of Representations executed among the Issuer, the Trustee and DTC in connection with the issuance and sale of the Bonds, and the Trustee shall not be required to give any other notice ofredemption. In the event of (a) prepayment that will give rise to an optional redemption, (b) a special rnandatory redemption in connection with Conversion, (c) prepayment of amounts payable to the Trustee under the Fannie Mae Pass-Through Certificate that will give rise to a special mandatory redemption or (d) a purchase by Fannie Mae of the Fannie Mae Pass-Through Certificate that will give rise to a special mandatory redemption, the Trustee (1) immediately following receipt of notice of a prepayment that will give rise to a Fannie Mae Pass-Through Certificate distribution that in turn will give rise to an optional redemption or (2) immediately following receipt of funds rrom Fannie Mae with 10 A-~~ ^ ..._._...._-"~--_.__.._.__...._...__.... respect to a special mandatory redemption in connection with Conversion, or (3) immediately following receipt of notice of a Fannie Mae Pass-Through Certificate distribution that will give rise to a special mandatory redernption or (4) immediately following receipt by the Trustee of notice ITorn Fannie Mae that a purchase of the Fannie Mae Pass-Through Certificate is to be made, will select the Bonds to be redeemed pursuant to the corresponding provisions of the Indenture and notify the Securities Depository by Electronic Means of the redemption of Bonds on the date fixed for redemption of Bonds. With respect to any redemption that takes place at any tirne that the Bonds are not subject to the Book Entry Systern, the Trustee shall cause a second notice of redemption to be sent by first class mail, postage prepaid, on or about the 45th day following the Redemption Date, to any Bondholder who has not submitted its Bond to the Trustee for payment on or before the 45th day following the Redernption Date. Notice of redemption may be given by the Trustee prior to the receipt of all funds necessary to effect the redemption, provided that special mandatory redemption in connection with Conversion shall not occur unless and until the Trustee has on deposit and available or, if applicable, has received ITom Fannie Mae, all of the funds necessary to effect such special mandatory redemption, and such special mandatory redemption shall be canceled if, as of the date fixed for redemption, the Trustee does not have on deposit and available or, if applicable, shall not have received ITom Fannie Mae, all of the funds necessary to effect such special mandatory redemption. A copy of the notice of any special mandatory redernption in connection with Conversion shall be given to the Construction Phase Credit Facility Provider. Neither failure to give or receive any notice of redemption as required under the Indenture, failure to give timely notice nor any defect in any notice (or in its content or in the manner in which notice is given) shall affect the validity or sufficiency of any proceedings for the redemption of the Bonds to be redeemed. Selection of Bonds To Be Redeemed Upon Partial Redemption of Bonds If less than all of the Outstanding Bonds are to be called for redemption, Bonds to be redeerned shall be selected by the Trustee on a reasonably proportionate basis (except for redemption as a result of Excess Cash Flow, which shall be in inverse order of maturity), in minimum amounts of $ , ITom among all the then existing rnaturities of the Bonds Outstanding, such reasonably proportionate basis to be detennined and effectuated as nearly as practicable by multiplying the total amount of money available to redeem Bonds by the ratio which the principal amount of Bonds Outstanding in each maturity bears to the principal amount of all of the Bonds Outstanding, and within a maturity by lot or in such other manner as the Trustee shall deern fair, provided that with respect to any redemption of Bonds pursuant to Section 3.2, 3.3(1) or 3.3(2) of the Indenture, the sufficiency of the scheduled cash flow ITorn the monthly payments to be made under the Mortgage Note or the scheduled cash flow ITOm the monthly distributions to be made under the Fannie Mae Pass-Through Certificate, as the case may be, and Investment Income with respect to the General Receipts and Disbursements Account to pay the principal of and interest on the Bonds and the Fees when due and payable, after such redemption, shall be established by a then current Cash Flow Projection which shall be verified by a Verification Report, each prepared and delivered to the Trustee and Fannie Mae, at the Borrower's expense, at least 45 days prior to the Redemption Date, provided that Bonds to be redeerned pursuant to Section 3.3(4) of this Indenture shall be selected by the Trustee first ITom the Term Bonds maturing on April I, 2030. In the event that any Bonds of the same maturity are to be redeemed in part, the Trustee shall assign to each Bond then Outstanding a distinctive number for each $_ of the principal amount of such Bond and ITom the nurnbers so assigned to such Bonds, the Trustee shall randomly select as rnany nurnbers as, at $ for each number, shall equal the principal amount of such Bonds to be redeemed. The Bonds within a maturity that are to be redeemed shall be the Bonds to which are assigned the numbers selected by the Trustee, but only so much of the principal amount of each such Bond of a denomination of more than $_ shall be redeemed as shall equal $_ for each number assigned to it and so selected. Bonds may be redeemed only in Authorized Denominations. Notwithstanding the foregoing, so long as the 11 A-SÎ ,---_...,.-_.~.- --'--~ _ ___~.__u Bonds remain in the Book-Entry System, on the records of DTC or any successor Securities Depository as the Bonds to be redeemed shall be selected by DTC, or any successor Securities Depository, and the DTC Participant through such selection process as is applicable at such time. For the purposes of this paragraph, Bonds which have theretofore been selected for redemption shall not be deemed Outstanding. Purchase of Bonds in Lieu of Redemption Unless otherwise expressly provided in the Indenture, if at any time moneys are held in any Fund or Account to be used to redeern Bonds, in lieu of such redemption the Borrower may direct the Trustee to use part or all of such moneys to purchase Bonds which would otherwise be subject to redemption !Tom such moneys. The purchase price of such Bonds (excluding accrued interest, but including any brokerage and other charges) shall not exceed the applicable redemption price of the Bonds which would be redeemed but for the operation of this provision (accrued interest to be paid !Tom the same Fund or Account !Tom which accrued interest would be paid upon the redemption of such Bonds). Any such purchase must be completed prior to the time notice would otherwise be required to be given to redeern the Bonds and may not occur, without the consent of the Trustee, after a Record Date. All Bonds so purchased will be canceled by the Trustee and the face amount of the Bonds so purchased shall be applied as a credit against the Issuer's obligation to redeem such Bonds !Tom such moneys. Savings resulting !Tom the purchase of Bonds at less than their respective redemption prices shall be used to purchase or redeem additional Bonds to the extent permitted by the provisions of the Indenture at the written direction of the Borrower. The Borrower may, at the Borrower's expense, direct the Trustee to request the submission of tenders following notice to Bondholders requesting such submission prior to making the purchase authorized by this paragraph. Notice of acceptance of tenders shall be given by first-class mail, postage prepaid, to all registered Bondholders, or, in the case of Book-Entry Bonds, to DTC, or any successor Securities Depository. The Borrower may specify the maximum and minimum period of time which shall transpire between the date upon which such notice is to be given and the date upon which such tenders are to be accepted. No tenders shall be considered or accepted at any price exceeding the price specified in this paragraph. The Trustee shall accept bids with the lowest price and in the event the moneys available for purchase pursuant to such tenders are not sufficient to permit acceptance of all tenders and if there shall be tenders at an equal price above the amount of moneys available for purchase, then the Trustee shall select by lot, in such manner as it shall determine in its discretion, the Bonds tendered which shall be purchased. Special Purchase in Lieu of Redemption Subject to the satisfaction of all applicable terms and conditions set forth in the Indenture, if all Bonds Outstanding are called for redemption under paragraphs (ii)(A) or (ii)(B) under the caption "THE BONDS-Redemption-Special Mandatory Redemption-Special Mandatory Redemption in Connection with Conversion), such Bonds may be purchased in whole, but not in part, on the date such Bonds are otherwise scheduled to be redeemed, at the purchase price and !Tom the source of funds specified in the Indenture, by the Trustee at the written direction of the Construction Phase Credit Facility Provider and for the account of the Construction Phase Credit Facility Provider. The Payment Source shall consist solely of funds to be delivered by Fannie Mae under the Collateral Agreement in connection with such redemption together with funds otherwise available under the Indenture to pay the redemption price of the Bonds as directed by Fannie Mae. The Purchase Price shall be equal to the principal amount of the Bonds otherwise subject to redernption, plus accrued interest, if any, on such Bonds to the Purchase Date. Book-Entry-Only System The Bonds will be available initially in book-entry form only in the principal amount of $5,000 and any integral multiples thereof. Purchasers of beneficial ownership interests in the Bonds will not 12 /l- ~-ð' --~---~._--~_._-_.._.._.__._.- receive bonds representing their interests in the Bonds purchased. The Underwriter will confirm original issuance purchases with statements containing certain terms of the Bonds purchased, The following information concerning DTC and DTC's book-entry system has been obtained from sources the Issuer and the Underwriter believe to be reliable; however, the Issuer and the Underwriter take no responsibility as to the accuracy or completeness thereof. There can be no assurance that DTC will abide by its procedures or that such procedures will not be changed from tirne to tirne. DTC will act as initial Securities Depository for the Bonds. The ownership of one fully registered Bond in the aggregate principal amount of the Bonds for each maturity will be registered in the name of Cede & Co., as nominee for DTC, and will be deposited with DTC. DTC is a limited-purpose trust company organized under the New York Banking Law as a Banking Organization within the meaning of the New York Banking Law. DTC is 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, as amended. DTC was created to hold securities of its participants (the "DTC Participants") and to facilitate the settlement of securities transactions among DTC Participants in such securities though computerized book-entry changes in accounts of the DTC Participants, thereby eliminating the need for physical movement of securities certificates. DTC Participants include securities brokers and dealers, banks, trust companies, clearing corporations and certain other organizations. DTC is owned by a number of its DTC Participants and by the New York Stock Exchange, Inc., the American Stock Exchange, Inc. and the National Association of Securities Dealers, Inc. Access to the DTC system is also available to others such as securities brokers and dealers, banks and trust companies that clear through or maintain a custodial relationship with a DTC Participant, either directly or indirectly ("Indirect Participant"), The Rules applicable to DTC and its Participants are on file with the Securities and Exchange Commission. Purchases of the Bonds under the DTC system must be made through DTC Participants, which will receive a credit for the Bonds on DTC's records. The ownership interest of each actual purchaser of each Bond (the "Beneficial Owner") will be recorded on the DTC Participants' records. Beneficial Owners will not receive written confirmation from DTC of their purchase, but Beneficial Owners are expected to receive written confirmations providing details of the transaction, as well as periodic statements of their holdings, from the DTC Participßnt or the Indirect Participant through which the Beneficial Owner entered into the transaction. Transfers of ownership interests in the Bonds are to be accomplished by entries made on the books of Participants acting on behalf of Beneficial Owners. Beneficial Owners will not receive certificates representing their ownership interests in Bonds, except in the event that use of the book-entry system for the Bonds is discontinued. To facilitate subsequent transfers, all Bonds deposited by Participants with DTC are registered in the name of DTC's partnership nominee, Cede & Co. The deposit of Bonds with DTC and their registration in the name of Cede & Co. effect no change in beneficial ownership. DTC has no knowledge of the actual Beneficial Owners of the Bonds; DTC's records reflect only the identity of the DTC Participants to whose accounts such Bonds are credited, which mayor rnay not be the Beneficial Owners. The Participants will remain responsible for keeping account of their holdings on behalf of their custorners. NEITHER THE ISSUER, THE TRUSTEE, THE SERVICER NOR FANNIE MAE WILL HAVE ANY RESPONSIBILITY OR OBLIGATION TO DTC PARTICIPANTS, OR THE PERSONS FOR WHOM THEY ACT AS NOMINEES WITH RESPECT TO THE BONDS, IN RESPECT OF THE ACCURACY OF ANY RECORDS MAINTAINED BY DTC OR ANY DTC PARTICIPANT: THE 13 A -~-c; ~--_._--- - -.-_._.._,--_.~---_.. PAYMENT BY DTC OR ANY DTC PARTICIPANT OF ANY AMOUNT IN RESPECT OF THE PRINCIPAL, INTEREST OR REDEMPTION PRICE OF THE BONDS; ANY NOTICE WHICH IS PERMITTED OR REQUIRED TO BE GIVEN TO BONDHOLDERS UNDER THE INDENfURE; THE SELECTION BY DTC OR ANY DTC PARTICIPANT OF ANY PERSON TO RECEIVE PAYMENT IN THE EVENT OF A PARTIAL REDEMPTION OF THE BONDS; OR ANY OTHER ACTION TAKEN BY DTC AS BONDHOLDER. SO LONG AS CEDE & CO. IS THE REGISTERED OWNER OF THE BONDS, AS NOMINEE OF DTC, REFERENCES HEREIN TO THE OWNERS OR HOLDERS OF THE BONDS (OTHER THAN UNDER THE CAPTION "TAX MATTERS") SHALL MEAN CEDE & CO, AND SHALL NOT MEAN THE BENEFICIAL OWNERS OF THE BONDS. DTC may discontinue providing its services as securities depository with respect to the Bonds at any time by giving written notice to the Issuer and the Trustee, Under such circurnstances, if no successor to DTC is appointed to act as securities depository, Bond certificates are required to be delivered as described in the Indenture, The Issuer may determine that continuation of the system of book-entry transfers through DTC (or a successor securities depository) is not in the best interest of the Beneficia] Owners. In such event, Bond certificates will be delivered as described in the Indenture. Conveyances of notices and other communications by DTC to DTC Participants, by DTC Participants to Indirect Participants and by DTC Participants and Indirect Participants to Beneficial Owners will be governed by arrangements among them, subject to such statutory and regulatory requirements as may be in effect !Tom time to time. Neither DTC nor Cede & Co. will consent or vote with respect to Bonds. Under its usual procedures, DTC mails an Omnibus Proxy to the Issuer as soon as possible after the record date. The Omnibus Proxy assigns Cede & Coo's consenting or voting rights to those DTC Participants to whose accOtmts the Bonds are credited on the record date (identified in a listing attached to the Omnibus Proxy). Payments of principal of, premium, if any, and interest on the Bonds will be made to DTC. DTC's practice is to credit the accounts of the DTC Participants in accordance with their respective holdings shown on the records of DTC unless DTC has reason to believe that it will not receive payment on the payable date. Payments by DTC Participants and Indirect Participants to Beneficial Owners will be governed by standing instructions and customary practices, as is now the case with municipal securities held for the accounts of customers in bearer fonn or registered in "street name," and will be the responsibility of such DTC Participant or Indirect Participant, and not of DTC, the Trustee or the Issuer, subject to such statutory and regulatory requirements as may be in effect !Tom time to tirne. Payment of principal and interest to DTC is the responsibility of the Issuer or the Trustee. Disbursement of such payments to the DTC Participants is the responsibility of DTC, and disbursement of such payments to the Beneficial Owners is the responsibility of the DTC Participants and the Indirect Participants. In the event the Bonds are removed !Tom the Book-Entry System, the principal of and the interest on the Bonds shall be payable to the persons in whose names the Bonds are registered on the Bond Register on the applicable Record Date. Payments of interest on the Bonds shall be rnade to the registered owner of the Bonds (as detennined at the close of business on the Record Date next preceding the applicable Interest Payment Date) by wire transfer to any account within the United States of America designated by a Bondholder (if requested in writing of the Trustee by a Bondholder of not less than $],000,000 in aggregate principal amount of Bonds not less than five days prior to the applicable Interest Payment Date and if such Bondholder otherwise cornplies with the reasonable requirements of the Trustee 14 /1-(.;,0 --.-- . .' .._ ___.__ __.'._._______.________m (such request may specify that it is effective with respect to all succeeding payments of principal, premiurn, if any, and interest and will be so effective unless and until rescinded in writing by the Bondholder at least five days prior to the Record Date for the first Interest Payment Date to which such rescission is designated to apply) or by check mailed by first-class mail, postage prepaid, on the Interest Payment Date to the address of such Bondholder as it appears on the regis1ration books of the Issuer maintained by the Trustee as Bond Regis1rar, or to such other address as may be furnished in writing to the Trustee prior to the applicable Record Date by such registered Bondholder. Payments of principal of a Bond shall be made by check only upon presentation and surrender of the Bond at the designated office of the Trustee on or after its maturity date or date fixed for redemption. If interest on the Bonds is in default, the Trustee shall, prior to payment of interest, establish a special record date (the "Special Record Date") for such payment, which Special Record Date shall be not more than 15 or less than 10 days prior to the date of the proposed payment. Payment of such defaulted interest shall then be rnade by check or wire transfer, as permitted above, mailed or remitted to the persons in whose names the Bonds are registered on the Special Record Date at the addresses or accounts of such persons shown on the Bond Register. SECURITY FOR THE BONDS Pledge of Trust Estate Pursuant to the Indenture, the Issuer has assigned and granted a security interest in, and pledged, the property described below to the Trustee and its successors in trust for the benefit of the Bondholders, and to Fannie Mae, and its successors and assigns, to secure the payment of the principal of, premium, if any, and interest on the Bonds when the same become due and payable, to secure all obligations owed to Fannie Mae under the Reimbursement Agreement, and to secure the performance and observance by the Issuer of all the covenants express or irnplied in this Indenture and in the Bonds (the "Trust Estate"): (a) all right, title and interest of the Issuer in and to the Financing Agreement, the Regulatory Agreement, the Mortgage Loan, including the Mortgage Note, the Mortgage and the other Mortgage Loan Documents, further including, but not lirnited to, all rights to receive payments on the Mortgage Note and under the Mortgage Loan Docurnents, including all proceeds of insurance or condemnation awards, but subject to the provisions of the Assignment and the Collateral Agreement, including the right of Fannie Mae, as provided in the Collateral Agreement, to direct the Trustee to assign the Mortgage Loan to Fannie Mae, including within such assignment the Mortgage Note and the Mortgage, and all amendments, rnodifications, supplements, renewals and restatements of the foregoing, reserving, however, the Reserved Rights; (b) all right, title and interest of the Issuer in and to the proceeds derived from the sale of the Bonds and all Funds and Accounts under the Indenture (including, without limitation, moneys, documents, securities, investments, instruments and general intangibles on deposit, or othetwise held by the Trustee under the Indenture), including Investment Income, but excluding moneys on deposit from time to time in the Fees Account, the Rebate Fund and the Costs of Issuance Fund (including, within such exclusion, Investment Income retained in the Costs of Issuance Fund); (c) all Revenues; (d) all funds, moneys and securities and any and all other rights and interests in property, whether tangible or intangible, frorn time to tirne hereafter by delivery or by writing of any kind conveyed, rnortgaged, pledged, assigned or 1ransferred as and for additional security 15 ¡J-tof ---- ~,.~ -- -- ------"-------"--...-. ._-_._.._._-,------~--~-_._-_....,_.- under the Indenture for the Bonds by the Issuer, or by anyone on its behalf, or with its written consent, to the Trustee, which is authorized to receive any and all such property at any and all times, and to hold and apply the same subject to the tenns of the Indenture; and (e) all of the proceeds of the foregoing, including, without limitation, Pennitted Investments and Investment Income. Prior to the Fannie Mae Pass-Through Certificate Delivery Date, the principal of and interest on the Bonds will be secured by the Mortgage Loan and by Fannie Mae's credit enhancement of the Mortgage Loan pursuant to the Collateral Agreement and by the Net Bond Proceeds, to the extent not disbursed to the Borrower, the Revenues, other moneys received by the Trustee for payment of the principal of and interest on the Bonds, amounts otherwise on deposit in the Funds and Accounts (other than moneys on deposit from time to time, in the Rebate Fund, the Costs of Issuance Fund and the Fees Account) all of which will be invested in Pennitted Investments and certain Investment Income. If a Fannie Mae Pass-Through Certificate is issued and, on the order of the Servicer, delivered to the Trustee, then from and after the delivery of such Fannie Mae Pass-Through Certificate to the Trustee, the principal and interest on the Bonds will be secured by, among other things, the Fannie Mae Pass-Through Certificate, the Revenues and any other moneys received by the Trustee for payment of the principal of and interest on the Bonds, amounts otherwise on deposit in the Funds and Accounts (other than moneys on deposit from time to time, in the Rebate Fund and the Fees Account), all of which will be invested in Pennitted Investments, and certain Investment Income. The Trustee will hold the Fannie Mae Pass-Through Certificate for the benefit of the holders of the Bonds. THE BONDS ARE NOT A DEBT OF THE UNITED STATES OF AMERICA OR ANY AGENCY THEREOF OR OF FANNIE MAE, PAYMENT OF PRINCIPAL OF, PREMIUM, IF ANY, AND INTEREST ON THE BONDS IS NOT GUARANTEED BY FANNIE MAE. SO LONG AS THE COLLATERAL AGREEMENT IS IN EFFECT WITH RESPECT TO THE MORTGAGE LOAN, FANNIE MAE'S OBLIGATIONS WILL BE SOLELY AS PROVIDED IN THE COLLATERAL AGREEMENT, IF A FANNIE MAE PASS-THROUGH CERTIFICATE IS ISSUED WITH RESPECT TO THE MORTGAGE LOAN, FANNIE MAE'S SOLE OBLIGATION WILL BE CONTAINED IN THE FANNIE MAE PASS-THROUGH CERTIFICATE AND WILL BE LIMITED TO MAKING DISTRIBUTIONS OF PRINCIPAL AND INTEREST UNDER THE FANNIE MAE PASS-THROUGH CERTIFICATE, IN ACCORDANCE WITH ITS TERMS, TO THE RECORD OWNER OF THE FANNIE MAE PASS-THROUGH CERTIFICATE, THE OBLIGATIONS OF FANNIE MAE UNDER THE COLLATERAL AGREEMENT AND UNDER THE FANNIE MAE PASS-THROUGH CERTIFICATE, IF ISSUED, WILL BE OBLIGATIONS SOLELY OF FANNIE MAE, A FEDERALLY CHARTERED STOCKHOLDER-OWNED CORPORATION. THE OBLIGATIONS OF FANNIE MAE ARE NOT BACKED BY THE FULL FAITH AND CREDIT OF THE UNITED STATES OF AMERICA. FANNIE MAE HAS NO OBLIGATION TO PURCHASE, DIRECTLY OR INDIRECTLY, ANY OF THE BONDS, THE BONDS ARE SPECIAL, LIMITED OBLIGATIONS OF THE ISSUER, PAYABLE SOLELY FROM AND SECURED BY THE PLEDGE OF THE TRUST ESTATE PURSUANT TO THE INDENTURE, THE ISSUER HAS NO TAXING POWER. THE BONDS ARE NOT A DEBT OF THE STATE OF CALIFORNIA, THE ISSUER OR ANY OTHER POLITICAL SUBDIVISION OF THE STATE OF CALIFORNIA. NEITHER THE FAITH AND CREDIT NOR THE TAXING POWER OF THE STATE OF CALIFORNIA, THE ISSUER OR ANY OTHER POLITICAL SUBDIVISION OF THE STATE OF CALIFORNIA IS PLEDGED TO THE PAYMENT OF THE PRINCIPAL OF OR THE INTEREST ON THE BONDS. NONE OF THE UNITED STATES OF AMERICA, FANNIE MAE, ANY AGENCY OF THE UNITED STATES 16 ¡el-b d-- -"- ---~- --- ------_._--~--_..~ - ----..-. OF AMERICA, THE STATE OR ANY OTHER POLITICAL SUBDIVISION OF THE STATE (EXCEPT THE ISSUER, TO THE LIMITED EXTENT SET FORTH IN THE INDENTURE) SHALL IN ANY EVENT BE LIABLE FOR THE PAYMENT OF THE PRINCIPAL OF, PREMIUM (IF ANY) OR INTEREST ON THE BONDS OR FOR THE PERFORMANCE OF ANY PLEDGE, OBLIGATION OR AGREEMENT OF ANY KIND WHATSOEVER OF THE ISSUER, AND NEITHER THE BONDS NOR ANY OF THE ISSUER'S AGREEMENTS OR OBLIGATIONS SHALL BE CONSTRUED TO CONSTITUTE AN INDEBTEDNESS OF OR A PLEDGE OF THE FAITH AND CREDIT OF OR A LOAN OF THE CREDIT OF ANY OF THE FOREGOING WITHIN THE MEANING OF ANY CONSTITUTIONAL OR STATUTORY PROVISIONS WHATSOEVER. THE BONDS ARE NOT GUARANTEED BY THE FULL FAITH AND CREDIT OF THE UNITED STATES OF AMERICA. Non-Recourse Obligations THE OBLIGATION TO MAKE LOAN PAYMENTS AND ADDITIONAL PAYMENTS IS A NON-RECOURSE OBLIGATION. NO RECOURSE SHALL BE AVAILABLE FOR THE PAYMENT OF ANY LOAN PAYMENTS AND ADDITIONAL PAYMENTS OR THE PRINCIPAL, INTEREST OR PREMIUM, IF ANY, WITH RESPECT TO THE BONDS AGAINST ANY PAST, PRESENT OR FUTURE OFFICER, DIRECTOR, PARTNER, COUNSEL, FINANCIAL ADVISOR OR AGENT OF THE BORROWER, OR OF ANY SUCCESSOR TO THE BORROWER, AS SUCH, EITHER DIRECTLY OR THROUGH THE BORROWER OR ANY SUCCESSOR TO THE BORROWER, UNDER ANY RULE OF LAW OR EQUITY, STATUTE OR CONSTITUTION OR BY THE ENFORCEMENT OF ANY ASSESSMENT OR PENALTY OR OTHERWISE, AND ALL SUCH LIABILITY OF ANY SUCH OFFICERS, DIRECTORS, PARTNERS, COUNSEL, FINANCIAL ADVISORS OR AGENTS, AS SUCH, IS EXPRESSLY WAIVED AND RELEASED AS A CONDITION OF AND CONSIDERATION FOR THE EXECUTION AND DELIVERY OF THE BONDS. Collateral Agreement On the Closing Date, the Trustee will enter into the Collateral Agreement with Fannie Mae and thereafter the Trustee is required to abide by and take all actions required of the Trustee under such Collateral Agreement in accordance with its terms. In addition to the other security provided under the Indenture, the obligation of the Borrower to rnake Required Mortgage Payments under the Mortgage Note will, so long as the Collateral Agreement is in effect, be secured by a pledge by Fannie Mae to the Trustee of interests in certain Pledged Collateral pursuant to the terms of the Collateral Agreement. The Pledged Collateral may consist of (a) an interest in residential mortgages insured by the Federal Housing Administration of the United States Department of Housing and Urban Development under the National Housing Act of 1934, as amended, or otherwise insured or guaranteed by an agency of the United States of America, (b) mortgage-backed securities guaranteed as to payment when due by Fannie Mae, the Federal Home Loan Mortgage Corporation or the Government National Mortgage Association, (c) any general obligation of Fannie Mae and/or (d) participation interests in any such securities or obligations described in clauses (b) and (c). The pledge made by Fannie Mae in the Collateral Agreernent is in the nature of a hypothecation in which pledged collateral is not delivered to the pledgee. On the basis of the pledge and security interest with respect to the Pledged Collateral, Fannie Mae is obligated, upon the Borrower's default in rnaking any Required Mortgage Payment under the Mortgage Note when due, and upon receipt of notice frorn the Trustee of such default, to pay to the Trustee, from proceeds of the Pledged Collateral or other funds of Fannie Mae, an amount equal to the Required Mortgage Payment that was to have been made by the Borrower. In addition, under certain terms and conditions set forth in the Collateral Agreement, proceeds derived from 17 ;4 -63 - - --------------...- redeeming all or a portion of the Pledged Collateral from the Trustee or other funds of Fannie Mae will be available to the Trustee under the Collateral Agreement in amounts which, when aggregated with certain other funds held by the Trustee under the Indenture, and, in certain cases, with funds received by the Trustee, will be sufficient to provide for the timely payment of the principal of and interest on the Bonds (other than Bonds purchased, pursuant to the Indenture, at the direction of the Construction Phase Credit Facility Provider for the account of the Construction Phase Credit Facility Provider). Fannie Mae's obligations under the Collateral Agreement with respect to the Mortgage Loan are limited to (i) making payments to the Trustee to the extent that the Borrower fails to make a Required Mortgage Payment under the Mortgage Note, as described in the Collateral Agreernent, including payment of the unpaid principal balance of the Mortgage Note and all accrued and unpaid interest due on the Mortgage Note on the maturity date of the Mortgage Note, (ii) making payments to the Trustee to redeem Pledged Collateral upon acceleration of the Bonds (other than Purchased Bonds) or upon special mandatory redemptions of Bonds (other than Purchased Bonds) and (iii) making payments following certain proceedings under the Bankruptcy Code resulting in recoveries of certain payments previously paid. Fannie Mae has no obligation under the Collateral Agreement to make any payment with respect to any other payments which may be due and payable under the Mortgage Note, the Mortgage, any other Mortgage Loan Document or the Bonds. Fannie Mae's obligation to rnake payments under the Collateral Agreement is absolute, unconditional and irrevocable and is not dependent upon the principal arnount or the fair market value of the Pledged Collateral or whether cash 'flow on the Pledged Collateral (whether or not Pledged Collateral is identified to the Trustee pursuant to the Collateral Agreement) is sufficient to make the payments required by the Collateral Agreement. Under the Collateral Agreement, Fannie Mae has the right to direct the Trustee to assign the Mortgage Loan to Fannie Mae. If Fannie Mae does not redeem the Pledged Collateral in connection with such assignment, it must file with the Trustee a certification reaffirming Fannie Mae's obligations under the Collateral Agreement. Fannie Mae is obligated to assign the Mortgage Rights with respect to the Mortgage Loan to the Trustee upon any payment default by Fannie Mae under the Collateral Agreernent. The Trustee is required to give notices to Fannie Mae as required by, and pursuant to and in accordance with, the terms and conditions of the Collateral Agreement, in order to receive payments from Fannie Mae under, and as and to the extent provided in and permitted by, the Collateral Agreement, and is to cause moneys received frorn Fannie Mae to be applied for the purposes specified in the Collateral Agreement and the Indenture, provided the Trustee shall, in accordance with the Indenture and the Collateral Agreement, first apply any amounts then on deposit in the Funds and Accounts (other than the Rebate Fund) for such purposes provided for in the Collateral Agreement. All moneys derived from the Collateral Agreernent are to be deposited into the Credit Facility Account of the Revenue Fund under the Indenture pending their application by the Trustee. In the event that the Trustee shall have received any payment from Fannie Mae under or pursuant to the Collateral Agreement, and thereafter amounts shall be received by the Trustee from the Borrower or other source, which later received amounts were in payment of amounts satisfied by the payment under or pursuant to the Collateral Agreement, then such later received amounts shall be promptly reimbursed to Fannie Mae to the extent of the amount so paid by Fannie Mae. The Trustee has covenanted that it will not, without the prior written consent of the registered owners of all of the Bonds then Outstanding, transfer, assign or release the Collateral Agreement until the principal of and interest on the Bonds shall have been paid or duly provided for in accordance with the terms of the Indenture, except (a) to a successor Trustee or (b) to Fannie Mae upon expiration or other termination of the Collateral Agreement in accordance with its terms, including termination on its stated 18 A -6 cJ _ _ ,_._-_.~.~_.__._---_. -".-- expiration date and upon payment under the Collateral Agreement of the full amount payable under the Collateral Agreement. If at any time during the term of the Collateral Agreernent a successor Trustee shall be appointed and qualified under the Indenture and the Collateral Agreement is not assignable or transferable to the successor Trustee, the resigning Trustee is to request that Fannie Mae enter into a new Collateral Agreement, substantially identical to the Collateral Agreement, with the successor Trustee for the benefit of the holders of the Bonds, and the resigning Trustee is to continue to serve as Trustee under the Indenture until such time as the new Collateral Agreement is delivered to the successor Trustee. If the resigning Trustee fails to make this request, the successor Trustee is to do so before accepting its appointment. Upon issuance of the new Collateral Agreement to the successor Trustee, the Collateral Agreement is to be returned to Fannie Mae and canceled, and the new Collateral Agreement is to thereafter be subject to all of the provisions of the Indenture relating to the Collateral Agreement and is to be deemed for all purposes of the Indenture to be the Credit Facility in effect. Upon receipt of the Fannie Mae Pass-Through Certificate, the Trustee is to relinquish all of its rights and interests in the Collateral Agreement effective as of the expiration or earlier tennination of the Collateral Agreement in accordance with its tenns. If all Conditions to Conversion are not satisfied prior to the Termination Date set forth in the Fannie Mae Commitment, the Collateral Agreement will tenninate in accordance with its tenns and the Bonds will be subject to special rnandatory redernption. See "THE BONDS - Redemption." Each purchaser of the Bonds should be aware that the Collateral Agreement does not guarantee payment of principal of, premium, if any, or interest on the Bonds. Neither does the Collateral Agreement create a perfected security interest in specific Pledged Collateral. The Collateral Agreement only provides that payments corresponding to the Required Mortgage Payments due under the Mortgage Note will be made by Fannie Mae if not made by the Borrower or that Fannie Mae will redeem the Trustee's interest in the Pledged Collateral in certain events. A summary of certain provisions of the Collateral Agreement is contained in "APPENDIX C- SUMMARY OF CERTAIN PROVISIONS OF THE COLLATERAL AGREEMENT." Infonnation regarding Fannie Mae is contained herein under the caption "FANNIE MAE." Conversion; Issuance of Fannie Mae Pass-Through Certificate Conversion; Failure of Conversion To Occur. Fannie Mae has issued the Fannie Mae Commitment to the Servicer, pursuant to which Fannie Mae has agreed, subject to satisfaction of the tenns and conditions of the Fannie Mae Commitment, to (a) provide credit enhancement for the Mortgage Loan pursuant to, and subject to the limitations of, the Collateral Agreement, and (b) acquire the Mortgage Loan in exchange for a Fannie Mae Pass-Through Certificate if, and at such time as, the Fannie Mae Pass-Through Certificate Delivery Requirements set forth in the Indenture {including, but not limited to, issuance of the Conversion Notice by the Servicer prior to the Tennination Date evidencing that each of the Conditions to Conversion set forth in the Fannie Mae Commitment has been satisfied (or, to the extent that any Condition to Conversion has not been satisfied prior to the Tennination Date, such Condition to Conversion has been waived in writing by Fannie Mae prior to the Termination Date)) are satisfied such that the Trustee will issue the Fannie Mae Pass-Through Certificate Delivery Notice. If all Conditions to Conversion are not satisfied prior to the Tennination Date, (a) Conversion will not occur, (b) the Bonds will be subject to special mandatory redemption pursuant to paragraph (ii)(B) of Section 3.3(1) of the Indenture not later than twenty (20) days after the Termination Date unless the Bonds are purchased by offor the account of the Construction Phase Credit Facility Provider pursuant to Section 3.9 of the Indenture (c) the Collateral Agreement will tenninate in accordance with its tenns, and (d) Fannie Mae will have no obligation to acquire the Mortgage Loan or to issue the Fannie Mae Pass-Through 19 A-6S- -- ~.._-~-_.._._._~.__. . -.- Certificate. See "TIlE FANNIE MAE COMMITMENT - Commitment With Respect to Mortgage Loan." Issuance of Fannie Mae Pass-Through Certificate. The Trustee acknowledges and agrees, that the Trustee, acting for and on behalf of the Issuer, will, on the Fannie Mae Pass-Through Certificate Date, assign its interest in the Mortgage Loan to the Servicer who, in turn, will concurrently assign such interest in the Mortgage Loan to Fannie Mae in exchange for the Fannie Mae Pass-Through Certificate as provided in and subject to the terms and conditions set forth in the Indenture. The Issuer and the Trustee understand that the Fannie Mae Pass-Through Certificate will be issued, on the Fannie Mae Pass-Through Certificate Delivery Date, in accordance with the Fannie Mae Trust Indenture, electronically, in "book entry" form, as shown on the records of the Federal Reserve Bank of New York, Fannie Mae's mortgage- backed securities transfer and paying agent; accordingly, all references in this Indenture to the Fannie Mae Pass-Through Certificate shall be deemed references to the electronic book entry reflecting the interest of the Trustee or a custodian for the Trustee in the Fannie Mae Pass-Through Certificate as shown in the records of the Federal Reserve Bank of New York. Delivery of the Fannie Mae Pass-Through Certificate to the Trustee or to a custodian for the Trustee shall be deemed to have occurred when the Trustee shall have received confirmation trom the Federal Reserve Bank of New York that the Fannie Mae Pass-Through Certificate has been issued in book-entry form and registered on the registration hooks of the Federal Reserve Bank of New York, in the name of the Trustee or a custodian for the Trustee. Registration of the Fannie Mae Pass-Through Certificate in the name of the Trustee or in the name of a custodian for the Trustee shall be made with such recitals as are appropriate to indicate that the Fannie Mae Pass-Through Certificate is to be held by or for the Trustee in its capacity as trustee under the Indenture and subject to the terms and provisions of the Indenture. The Trustee shall give written notice to the Rating Agency upon receipt by the Trustee or a custodian for the Trustee of the Fannie Mae Pass- Through Certificate. If the Trustee does not, for any reason, acquire the Fannie Mae Pass-Through Certificate on the Fannie Mae Pass-Through Certificate Delivery Date, the Trustee shall immediately give notice of that fact to Fannie Mae. The obligation of the Trustee to accept delivery of the Fannie Mae Pass-Through Certificate shall be subject to the following (all of which shall be provided at the sole cost and expense of the Borrower): (a) satisfaction of the Fannie Mae Pass-Through Certificate Delivery Requirements, see" - Fannie Mae Pass-Through Certificate Delivery Requirements" below. (b) the Trustee's confirmation based on information furnished to it by Fannie Mae (a) that the Fannie Mae Pass-Through Certificate has an Issue Date Principal Balance equal to the then aggregate unpaid principal balance of the Mortgage Loan, which written confirmation may be an Issue Supplement, (b) that such Issue Date Principal Balance equals the then outstanding principal amount of the Bonds, and (c) of the Fannie Mae Pass-Through Certificate Rate; (c) the Trustee's confirmation based on information furnished to it by Fannie Mae that the last scheduled distribution under the Fannie Mae Pass-Through Certificate will be made not later than in the month preceding the final Maturity Date of the Bonds; (d) the Trustee's receipt of an Issue Supplement to the Fannie Mae Trust Indenture which has attached to it a Mortgage Loan Schedule specifYing the Mortgage Loan (and no other rnortgage loan) as the Mortgage Loan constituting the Pool (as defined in the Fannie Mae Trust Indenture); and (e) the Trustee's receipt of confirmation frorn Fannie Mae that the Fannie Mae Legal Department will issue to the Trustee on the Fannie Mae Pass-Through Certificate Delivery Date an Opinion of Counsel to the effect that the Fannie Mae Pass-Through Certificate constitutes 20 fi -6 b .. - ----~~---_._----_._-" a valid and binding obligation of Fannie Mae, entitled to the benefits of the Fannie Mae Trust Indenture, subject to any applicable bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights from tirne to tirne in effect and to general equity principles. From and after the Fannie Mae Pass-Through Certificate Delivery Date, the Trustee shall hold the Fannie Mae Pass-Through Certificate (or evidence of the Trustee's interest in the Fannie Mae Pass- Through Certificate) for the benefit of the Bondholders. Upon issuance of the Fannie Mae Pass-Through Certificate, the Trustee shall receive distributions from Fannie Mae under the Fannie Mae Pass-Through Certificate in accordance with the tenns of the Fannie Mae Pass-Through Certificate and shall deposit, hold and invest such amounts in accordance with this Indenture. In the event that an Investment Agreement shall at any time be in effect for the investment of funds on deposit in any Account within the Revenue Fund, the Trustee may, in its discretion, designate the office of the custodian of funds invested under the Investment Agreement as the address to which distributions under the Fannie Mae Pass- Through Certificate are to be made; provided that such custodian shall have agreed to notifY the Trustee by telephone in the event that any amount distributable under the Fannie Mae Pass-Through Certificate is not received by the close of the Business Day following the Distribution Date. A default under the Mortgage Loan Documents may result in the Mortgage Loan being deemed, by Fannie Mae, a Fully Prepaid Mortgage Loan (as defined herein), which could result in mandatory redemption of the Bonds. See "THE BONDS - Redemption - Special Mandatory Redemption- Special Mandatory Redemption After the Fannie Mae Pass-through Delivery Date From Certain Fannie Mae Pass-Through Certificate Distributions" herein. Fannie Mae Pass-Through Certificate Delivery Requirements. The requirements for the Trustee to issue the Fannie Mae Pass-Through Certificate Delivery Notice are the following: (a) the Servicer shall have issued the Conversion Notice to the Trustee prior to the Tennination Date; (b) the Servicer shall have confmned in writing to the Trustee that the Servicer has ordered the Fannie Mae Pass-Through Certificate (i) in a principal amount equal to the Issue Date Principal Balance and (ii) with an interest rate equal to the Fannie Mae Pass-Through Certificate Rate; (c) the Trustee shall have received written confinnation from the Servicer that the Servicer has received confinnation from Fannie Mae that Fannie Mae intends to issue the Fannie Mae Pass-Through Certificate; (d) the Trustee shall have received written confinnation frorn Fannie Mae that Fannie Mae will, on the Fannie Mae Pass-Through Certificate Delivery Date, deliver to the Trustee an Issue Supplement to the Fannie Mae Trust Indenture, which will have attached to it a Mortgage Loan Schedule specifYing the Mortgage Loan (and no other mortgage loan) as the Mortgage Loan constituting the Pool (as defined in the Fannie Mae Trust Indenture); (e) the Servicer shall have confmned in writing to the Trustee that the Servicer has received confinnation from Fannie Mae that the Fannie Mae Legal Department will issue to the Trustee on the Fannie Mae Pass-Through Certificate Delivery Date, an Opinion of Counsel to the effect that the Fannie Mae Pass-Through Certificate constitutes a valid and binding obligation of Fannie Mae, entitled to the benefits of the Fannie Mae Trust Indenture, subject to any applicable 21 ,A -b 1 .-...--.--.--, .. .._,,_.-._.--'~-"----~-~------'---'--'-"--'- bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights trom time to time in effect and to general equity principles; (e) the Trustee, the Servicer, the Issuer, the Borrower, Fannie Mae and the Rating Agency shall have received either (i) a written confinnation of the original Cash Flow Projection trom the Verification Agent or (ii) a then current Cash Flow Projection, in the latter instance accompanied by a Verification Report, showing that the scheduled payments to be made under the Mortgage Loan and the corresponding distributions to be made under the Fannie Mae Pass- Through Certificate, together with other Revenues, will be sufficient to timely pay the principal of and interest on the Bonds and the Fees when the same shall become due and payable; (f) the Trustee shall have received ITom BOi1d Counsel the fonn of, and confinnation trom Bond Counsel that, subject to satisfaction of the Fannie Mae Pass-Through Certificate Delivery Requirements, Bond Counsel will issue to the Trustee, Fannie Mae, and the Issuer on the Fannie Mae Pass-Through Certificate Delivery Date, a then current Opinion of Bond Counsel to the effect that, absent a change in law or material fact bearing on the matters covered in the fonn of Opinion of Bond Counsel, the substitution of the Fannie Mae Pass-Through Certificate for the Collateral Agreement is pennitted by this Indenture and will not affect the excludability ITom gross income, for federal income tax purposes, of the interest payable on the Bonds; (g) the Trustee shall have detennined that all other agreements, documents, instruments, certificates (including an update of the Tax Certificate, dated as of the Conversion Date) and opinions as the Issuer, the Trustee or Fannie Mae shall require, in their respective discretion, to effect Fannie Mae Pass-Through Certificate Delivery have been prepared, agreed upon and accepted as to fonn and content by the intended recipients of such agreements, documents, instrurnents, certificates and opinions; (h) the Trustee shall have received written confinnation trom the Rating Agency that the Bonds will be assigned a rating, or will maintain a rating, not less than the rating in effect prior to the Fannie Mae Pass-Through Certificate Delivery Date; (i) the Borrower shall have deposited with the Trustee moneys sufficient to pay all fees, costs and expenses (including attorneys' fees and expenses) necessary to effectuate the tenns and conditions of this Section; and (j) if the Issue Date will coincide with the Conversion Date, any special mandatory redemption, as set forth in the Indenture, shall have occurred concurrently. (k) Fannie Mae Pass-Through Certificate Summary Description of Fannie Mae Pass-Through Certificate. The following description of the Fannie Mae Pass-Through Certificate assumes that at the time the Fannie Mae Pass-Through Certificate is issued, the Fannie Mae Trust Indenture and the fonn of Fannie Mae Pass-Through Certificate issued by Fannie Mae under the Fannie Mae Trust Indenture will be in substantially the fonn they are in on the date of this Official Statement. Under the tenns of the Fannie Mae Pass-Through Certificate, if issued by Fannie Mae, Fannie Mae will distribute to the registered holder (the Trustee or a custodian for the Trustee) on the twenty-fifth day of each month or, if any such twenty-fifth day is not a business day, the succeeding business day (each a "Distribution Date"), commencing with the Distribution Date in the month following the rnonth in which the Fannie Mae Pass-Through Certificate is issued, an arnount equal to the total of (i) Aggregate 22 A-68 ---. ..--.~~.-~_.__._--.--'"-----"-..---.-- Scheduled Principal (as defined below), (ii) the scheduled payment of interest on the Mortgage Loan during the period beginning on the second day of the preceding rnonth and ending on the first day of the month of such Distribution Date, less the portion of such monthly scheduled payment of interest attributable to the Spread Amount, (iii) the Stated Principal Balance of the Mortgage Loan if such Mortgage Loan became or was deemed by Fannie Mae to be a Fully Prepaid Mortgage Loan (as defined below) in the month prior to the month of distribution, and (iv) any unscheduled partial payments or other recoveries of principal on the Mortgage Loan which are not accompanied by an amotmt representing scheduled interest due after the month of payment, which payments or recoveries are received or deemed to have been received in the month prior to the month of distribution. "Aggregate Scheduled Principaf' means, with respect to any Distribution Date, the aggregate principal due on the Mortgage Loan during the period beginning on the second day of the month preceding the month of such Distribution Date and ending on the first day of the rnonth of such Distribution Date. "Guaranty Fee" rneans the guaranty fee payable to Fannie Mae for issuing the Fannie Mae Pass- Through Certificate, "Issue Supplement" means an instrument published by Fannie Mae pursuant to the Fannie Mae Trust Indenture which supplements the Fannie Mae Trust Indenture and identifies and establishes a mortgage pool comprising the Mortgage Loan and the Fannie Mae Pass-Through Certificate related to the Mortgage Loan. "Spread Amount" means the portion of interest on the Mortgage Loan allocable to the Servicer's Servicing Fees and Fannie Mae's Guaranty Fee. "Stated Principal Balance" means, with respect to the Mortgage Loan and any Distribution Date, the principal balance of the Mortgage Loan on the date of issuance of the Fannie Mae Pass-Through Certificate reduced by all amounts distributed to the registered owner of the Fannie Mae Pass-Through Certificate in respect of principal of the Mortgage Loan. A Mortgage Loan will constitute a "Fully Prepaid Mortgage Loan" if (i) payment of the entire principal balance of the Mortgage Loan is made prior to final maturity, (ii) cash is received in connection with the liquidation of the Mortgage Loan (whether through insurance proceeds, condemnation awards, proceeds of any sale of the Project or otherwise and whether or not such cash is equal to the unpaid principal amount of the Mortgage Loan and all accrued interest on the Mortgage Loan) in an amount determined by Fannie Mae in its reasonable judgment to be the full amount finally recoverable on accotmt of the Mortgage Loan, or (iii) a default has occurred under the Mortgage Loan which, in accordance with the Fannie Mae Trust Indenture, causes the Mortgage Loan to become or to be deemed by Fannie Mae to be a Fully Prepaid Mortgage Loan. Under the Fannie Mae Trust Indenture, a Mortgage Loan will be deemed a Fully Prepaid Mortgage Loan if Fannie Mae exercises certain rights with respect to the Mortgage Loan, such as withdrawing the Mortgage Loan from the mortgage pool. Fannie Mae has the right and option, without obligation and in its discretion, to withdraw the Mortgage Loan from the mortgage pool, for example (i) at any time after the Mortgage Note becomes delinquent, in whole or in part, as to four consecutive monthly installments of interest or principal and interest, (ii) if the Borrower shall be in violation of or default under any covenant or agreement under the Mortgage Note or the Mortgage or under the Regulatory Agreement or any similar document intended to insure compliance by the Project with certain laws and regulations relating to the tax-exempt status of the Bonds and such violation or default shall have continued for 60 days or (iii) if the principal balance of the Mortgage Loan is declared to be immediately due and payable by Fannie Mae and such principal balance shall not have been paid within 10 days after such declaration. In addition, Fannie Mae shall have the right to withdraw 23 ,A -6 '1 -,-_._-,'---,.,- - .-...-..--------- the Mortgage Loan !Torn the rnortgage pool if the Project is transferred, or proposed to be transferred, under circumstances in which Fannie Mae is legally pennitted or reasonably believes that it is legally pennitted, to accelerate the rnaturity of the Mortgage Loan pursuant to the tenns of the "due-on-sale" or like clause contained in the Mortgage, or if Fannie Mae acquires the Project through foreclosure, deed-in-lieu of foreclosure or comparable conversion of the Mortgage Loan, Upon the exercise of any such rights by Fannie Mae, the Mortgage Loan will be deemed to be a Fully Prepaid Mortgage Loan resulting in a prepayment under the Fannie Mae Pass-Through Certificate and a corresponding redemption of the Bonds. See "1HE BONDS - Redemption - Special Mandatory Redemption- Special Mandatory Redemption After the Fannie Mae Pass-Through Certificate Delivery Date From Fannie Mae Pass-Through Certificate Distributions." The obligation of Fannie Mae to make distributions under the Fannie Mae Pass-Through Certificate is a general, unsecured obligation of Fannie Mae. If Fannie Mae fails to perfonn such obligations, distributions to the Trustee will consist of payments and other recoveries on the Mortgage Loan, and a delinquency or default on the Mortgage Loan at that time would seriously and adversely affect rnonthly distributions to the Trustee. The monthly distributions under the Fannie Mae Pass-Through Certificate will be subject to adjustment by reason of any prepayments or other early or unscheduled recoveries of principal of the Mortgage Loan. In any event, Fannie Mae is obligated to pay to the Trustee, as registered owner of the Fannie Mae Pass-Through Certificate, rnonthly installments of not less than the interest due on the Fannie Mae Pass-Through Certificate, together with any scheduled installments of principal, whether or not collected !Tom the Borrower, and any prepayments or early recoveries of principaL The Fannie Mae Pass-Through Certificate will mature no later than the Distribution Date subsequent to the maturity date of the Mortgage Loan. Prior to the issuance of the Fannie Mae Pass-Through Certificate, or if the Fannie Mae Pass-Through Certificate is not issued, Fannie Mae will not have any obligation to make any distributions with respect to the Mortgage Loan as would otherwise be contemplated to be made pursuant to the provisions of the Fannie Mae Trust Indenture. Following its acquisition of the Fannie Mae Pass-Through Certificate, the Trustee will not, without the prior written consent of Fannie Mae and of the owners of all of the Bonds then Outstanding, sell, exchange, transfer, assign or otherwise dispose of the Fannie Mae Pass-Through Certificate other than to Fannie Mae in exchange for (a) a Substitute Fannie Mae Pass-Through Certificate pursuant to the Indenture or (b) payment to the Trustee of Available Moneys in an amount sufficient to payor defease, in accordance with the Indenture, the principal of and interest due and owing on the Bonds, provided that the Fannie Mae Pass-Through Certificate may be assigned to a successor Trustee under the Indenture. THE BONDS ARE NOT A DEBT OF THE UNITED STATES OF AMERICA, OR ANY AGENCY THEREOF, OR OF FANNIE MAE, PAYMENT OF PRINCIPAL OF, PREMIUM, IF ANY, AND INTEREST ON, THE BONDS IS NOT GUARANTEED BY FANNIE MAE. SO LONG AS THE COLLATERAL AGREEMENT IS IN EFFECT WITH RESPECT TO THE MORTGAGE LOAN, FANNIE MAE'S OBLIGATIONS WILL BE SOLELY AS PROVIDED IN THE COLLATERAL AGREEMENT, IF THE FANNIE MAE PASS-THROUGH CERTIFICATE IS ISSUED WITH RESPECT TO THE MORTGAGE LOAN, FANNIE MAE'S SOLE OBLIGATION WILL BE CONTAINED IN THE FANNIE MAE PASS-THROUGH CERTIFICATE, AND WILL BE LIMITED TO MAKING DISTRIBUTIONS OF PRINCIPAL AND INTEREST UNDER THE FANNIE MAE PASS-THROUGH CERTIFICATE, IN ACCORDANCE WITH ITS TERMS, TO THE RECORD OWNER OF THE FANNIE MAE PASS-THROUGH CERTIFICATE, THE OBLIGATIONS OF FANNIE MAE UNDER THE 24 /l-7{) --- --- -_._~---_._---- COLLATERAL AGREEMENT AND UNDER THE FANNIE MAE PASS-THROUGH CERTIFICATE, IF ISSUED, WILL BE OBLIGATIONS SOLELY OF FANNIE MAE, A FEDERALLY CHARTERED STOCKHOLDER-OWNED CORPORATION. THE OBLIGATIONS OF FANNIE MAE ARE NOT BACKED BY THE FULL FAITH AND CREDIT OF THE UNITED STATES OF AMERICA, FANNIE MAE HAS NO OBLIGATION TO PURCHASE, DIRECTLY OR INDIRECTLY, ANY OF THE BONDS, Limited Liability THE BONDS ARE SPECIAL, LIMITED OBLIGATIONS OF THE ISSUER, PAYABLE SOLELY FROM AND SECURED BY THE PLEDGE OF THE TRUST ESTATE PURSUANT TO THE INDENTURE, THE ISSUER HAS NO TAXING POWER. THE BONDS ARE NOT A DEBT OF THE STATE OF CALIFORNIA, THE ISSUER OR ANY OTHER POLITICAL SUBDIVISION OF THE STATE OF CALIFORNIA. NEITHER THE FAITH AND CREDIT NOR THE TAXING POWER OF THE STATE OF CALIFORNIA, THE ISSUER OR ANY OTHER POLITICAL SUBDIVISION OF THE STATE OF CALIFORNIA IS PLEDGED TO THE PAYMENT OF THE PRINCIPAL OF OR THE INTEREST ON THE BONDS. NONE OF THE UNITED STATES OF AMERICA, FANNIE MAE, ANY AGENCY OF THE UNITED STATES OF AMERICA, THE STATE OR ANY OTHER POLITICAL SUBDIVISION OF THE STATE (EXCEPT THE ISSUER, TO THE LIMITED EXTENT SET FORTH IN THE INDENTURE) SHALL IN ANY EVENT BE LIABLE FOR THE PAYMENT OF THE PRINCIPAL OF, PREMIUM (IF ANY) OR INTEREST ON THE BONDS OR FOR THE PERFORMANCE OF ANY PLEDGE, OBLIGATION OR AGREEMENT OF ANY KIND WHATSOEVER OF THE ISSUER, AND NEITHER THE BONDS NOR ANY OF THE ISSUER'S AGREEMENTS OR OBLIGATIONS SHALL BE CONSTRUED TO CONSTITUTE AN INDEBTEDNESS OF OR A PLEDGE OF THE FAITH AND CREDIT OF OR A LOAN OF THE CREDIT OF ANY OF THE FOREGOING WITHIN THE MEANING OF ANY CONSTITUTIONAL OR STATUTORY PROVISIONS WHATSOEVER. THE BONDS ARE NOT GUARANTEED BY THE FULL FAITH AND CREDIT OF THE UNITED STATES OF AMERICA. No Additional Bonds The Indenture does not authorize the issuance of additional bonds. Sufficiency of Cash Flow Fannie Mae does not guarantee the payment ofthe principal of, premium, if any, or interest on the Bonds. The interest rate on the Mortgage Loan has been established at a rate expected to be sufficient to pay the Servicing Fee of the Servicer, the Fannie Mae Facility Fee or the Guaranty Fee, as the case may be, and certain other fees, as well as the debt service on the Bonds, taking into consideration the projected investment earnings on the moneys on deposit in the various funds and accounts. Such investment earnings are not guaranteed by Fannie Mae. In the event that the investment of such money at an anticipated rate of return should fail, or there is an error in the cash flow projections, the interest rate on the Mortgage Loan may not be sufficient to pay all such fees and expenses, together with the debt service on the Bonds. This could result in a payment default on the Bonds even though there is no default under the Collateral Agreement or the Fannie Mae Pass-Through Certificate, as the case may be. The remedies of the Trustee are limited in this event. See APPENDIX B-"SUMMARY OF CERTAIN PROVISIONS OF THE INDENTURE-Default Provisions and Remedies." An independent verification of the cash flow sufficiency for the Bonds has been provided by . FANNIE MAE HAS NO RESPONSIBILITY FOR THE CASH FLOW PROJECTIONS OR THE VERIFICATION THEREOF AND MAKES NO REPRESENTATION WITH RESPECT TO THE SUFFICIENCY OR THE 25 /1- 71 _~_______·'"__.m·_'·._'·__~_·~______ _ ACCURACY OF SUCH CASH FLOWS OR THE ASSUMPTIONS TIIEREIN. See "VERIFICATION OF CASH FLOWS" herein. Construction Phase Credit Facility Provider Pursuant to the Construction Phase Credit Reimbursernent Agreement, the Construction Phase Credit Facility Provider, Bank of America National Trust and Savings Association, has provided to Fannie Mae the Construction Phase Credit Facility in the form of a Letter of Credit (the "Letter of Credit"), The Letter of Credit is to be used to reimburse Fannie Mae in the event Fannie Mae is required to pay amounts under the Collateral Agreement Under the terms of the Construction Phase Financing Agreement, Fannie Mae will be authorized, subject to the terms and conditions of the Construction Phase Financing Agreement, to draw on the Letter of Credit in certain events, including, but not limited to, (a) a default by the Borrower under the Mortgage Note, (b) the receipt by Fannie Mae of a notice from the Trustee demanding payment from Fannie Mae under the Collateral Agreement, or (c) the failure to satisfy the Conversion Requirements on or before the Termination Date. In addition, the Construction Phase Credit Facility Provider rnay direct Fannie Mae, upon the occurrence of a default under the Construction Phase Credit Reimbursement Agreement, to draw on the Letter of Credit and effect a corresponding redemption of the Bonds with funds drawn on the Collateral Agreement Year 2000 Problem The inability of many computer programs and microprocessors to distinguish between the years 2000 and 1900 (the "Year 2000 Problem") could disrupt the ability of the Issuer, the Trustee, the Borrower and others to provide certain services, including services pertaining to the Bonds, or could increase the cost of providing such services. For example, the Year 2000 Problem could impede or make more costly (i) the timely payment of loan payments under the Mortgage Loan to the Trustee; (ii) the timely payment of principal of or interest on the Bonds by the Trustee to the registered owners thereof; (iii) the administration by the Trustee of the funds and accounts held by it pursuant to the Indenture; (iv) the timely compliance by the Issuer and/or the Borrower with on-going disclosure requirements and with restrictions applicable to investment yield and rebate; and (v) the distribution by DTC (and its Direct Participants and Indirect Participants) to the Beneficial Owners of the Bonds of their respective shares of the principal thereof and interest thereon. The Issuer and the Trustee each believes that it will be able to address the Year 2000 Problem successfully and that it will be able to continue to provide all necessary services related to the Bonds, including the services described above, without interruption, so long as any Bonds remain outstanding. Prospective purchasers of the Bonds should be aware, however, that no assurance can be given that such services will not be interrupted by the Year 2000 Problem. In addition, prospective purchasers of the Bonds should contact DTC and the DTC Participants through which they would purchase Bonds in order to determine whether DTC and such DTC Participants will be able to address the Year 2000 Problem in a timely and efficient manner. Fannie Mae has informed the Issuer that information regarding Fannie Mae's efforts toward compliance with the Year 2000 Problem is contained in the Information Statements and Supplements thereto described herein under the heading "FANNIE MAE." THE FANNIE MAE COMMITMENT The following is a brief summary of the Fannie Mae Commitment The summary does not purport to be complete or definitive and is qualified in its entirety by reference to Fannie Mae Commitment 26 ,A-7d.- . .-- -------.----,'- -----.. ---"- .--_._._._._---~------_._.,-.~-_._-_._- The Mortgage Loan will be made by the Issuer in accordance with the requirements of Fannie Mae and subject to the tenns and conditions of the Fannie Mae Commitment. Under the Fannie Mae Commitment, Fannie Mae has agreed, subject to satisfaction of the terms and conditions of the Fannie Mae Commitment, to provide credit enhancement for the Mortgage Loan pursuant to, and subject to the limitations of, the Collateral Agreement. If, however, the Conditions to Conversion set forth in the Fannie Mae Commitment are not timely satisfied or waived by Fannie Mae prior to the Termination Date established by the Fannie Mae Commitment, (i) Conversion will not occur, (ii) the Bonds will be subject to special mandatory redemption or to purchase by or for the account of the Construction Phase Credit Facility Provider in accordance with the tenns and conditions of the Indenture and (iii) the Collateral Agreement will tenninate in accordance with its tenns. Under the Fannie Mae Commitment, Fannie Mae will, if Conversion occurs and if, and at such time as, the Fannie Mae Pass-Through Certificate Delivery Requirements are satisfied, acquire the Mortgage Loan in exchange for a Fannie Mae Pass-Through Certificate. If Conversion does not occur, Fannie Mae will have no obligation to acquire the Mortgage Loan or to issue the Fannie Mae Pass-Through Certificate, The "Conversion Requirements" set forth in the Fannie Mae Commitment include, among other requirements (i) completion of the Project, (ii) satisfaction of Fannie Mae's Minimum Occupancy Requirement (i,e., the Project's achievement of 90% occupancy of all units in the Project under acceptable leases for a specified three-month period), (iii) completion of various real estate due diligence requirements, (iv) delivery of various mortgage loan documents to Fannie Mae, (v) release of the lien of the Construction Phase Credit Facility Provider's subordinated mortgage, if any, and (vi) the absence of any default. Under the Fannie Mae Commitment, the principal amount of the Mortgage Loan on the Closing Date may not exceed $ . . The Pennanent Phase Mortgage Loan Amount will be detennined following completion and stabilization (as required by the Fannie Mae Commitment) of the Project by application of the following fonnula and may be less than the principal amount of the Mortgage Loan pennitted by the Fannie Mae Commitment on the Closing date: (Net Operating Income -+- Debt Service Coverage Factor) -+- Annual Debt Service Constant. For purposes of the Fannie Mae Commitment, the tenns "Net Operating Income," "Debt Service Coverage Factor" and "Annual Debt Service Constant" have the following meanings: "Net Operating Income" means the difference between (a) the annualized effective gross incorne of the Project detennined on the basis of the actual effective gross income produced by the Project during the three consecutive full calendar months immediately preceding the month in which the Servicer delivers the Conversion Requirements Satisfaction Notice and (b) the annualized expenses for the Project detennined on the basis of the higher of (i) the actual year to date expenses of the Project approved by the Servicer or (ii) the expenses for the Project assumed by the Servicer in underwriting and approving the Mortgage Loan. "Annual Debt Service Constant" means the constant annual percentage necessary to fully amortize the Mortgage Loan in level monthly annuity payments over the amortization period of the Mortgage Loan at the Mortgage Note Rate (when expressed as a percentage, the Annual Debt Service Constant must be carried out to at least six decimal places). "Debt Service Coverage Factor" means _ to 1.00, . Preliminary, subject to change. 27 /1-73 ----- ----~- -- .-------. FANNIE MAE Fannie Mae is a federally chartered and stockholder-owned corporation organized and existing under the Federal National Mortgage Association Charter Act, 12 U.S.C. 1716 et seq. It is the largest investor in home mortgage loans in the United States with a net portfolio of $349 billion of mortgage loans as of June 30, 1998. Fannie Mae was originally established in 1938 as a United States government agency to provide supplemental liquidity to the mortgage market and was transformed into a stockholder- owned and privately managed corporation by legislation enacted in 1968 Fannie Mae purchases, sells and otherwise deals in mortgages in the secondary rnarket rather than as a primary lender. It does not make direct mortgage loans but acquires mortgage loans originated by others. In addition, Fannie Mae issues mortgage-backed securities ("MBS"), primarily in exchange for pools of mortgage loans from lenders. Fannie Mae receives guaranty fees for its guarantee of timely payment of principal of and interest on MBS certificates. Fannie Mae is subject to regulation by the Secretary of Housing and Urban Development ("HUD") and the Director of the independent Office of Federal Housing Enterprise Oversight within HUD. Approval of the Secretary of Treasury is required for Fannie Mae's issuance of its debt obligations and MBS. Five of the eighteen members of Fannie Mae's Board of Directors are appointed by the President of the United States, and the other thirteen are elected by the holders of Fannie Mae's common stock. The securities of Fannie Mae are not guaranteed by the United States and do not constitute a debt or obligation of the United States or any agency or instrumentality thereof other than Fannie Mae. As of June 30, 1998, Fannie Mae's stockholders' equity was $1420 billion. Information on Fannie Mae and its financial condition is contained in Fannie Mae's Information Statement dated March 31,1998 and Supplements thereto dated May 15, 1998 and August 13,1998 (and any later update of such Information Statement). Copies of the most recent Information Statement and MBS Prospectus, as well as any supplement to the Information Statement and Fannie Mae's most recent annual and quarterly reports to stockholders and proxy staternent, are available without charge from the Office of Investor Relations, Fannie Mae, 3900 Wisconsin Avenue, NW, Washington, D.C., 20016 (telephone: 202/752-7115). Fannie Mae makes no representation as to the contents of this Official Staternent, the suitability of the bonds for any investor, the feasibility of performance of any project, or compliance with any securities, tax or other laws or regulations. Fannie Mae's role is limited to discharging its obligations under the Collateral Agreement. THE ISSUER [TO BE PROVIDED BY ISSUER] 28 A-7<t .. ....,.'"'._ .......~"______._.___.u . ESTIMATED SOURCES AND USES OF BOND PROCEEDS The following is a description of the sources and uses of proceeds of the Bonds (other than accrued interest on the Bonds, which is to be deposited in the Bond Fund) and other amounts: Sources of Funds: Principal Amount of Bonds $ Total Sources $ Uses of Funds: Deposit to Mortgage Loan Fund $ Deposit to General Receipts and Disbursements Account of the Revenue Fund Deposit to Costs ofIssuance Fund Total Uses $ 29 A-7S- -------- - --_..._-~-----.------_._- PLAN OF FINANCING Estimated Sources and Uses of Funds for Project Costs The following table sets forth estimated sources and uses of funds in connection with the construction of the Project: . Sources of Project Financing: Bond Proceeds $ Series B Bond Proceeds Subordinate Bridge Loan Tax Credit Equity Developer Note Owner Equity Total Sources: $ Uses of Project Financing: Acquisition and Pre-Development Land Purchase $8,300,000 Closing and Title 5,000 Legal/Broker 15,000 Architectural and Engineering 437.790 Pre-Development Financing and Carry Costs 0 Subtotal $ 8,757,790 Construction Fees and Permits $3,740,000 Onsite/Offsite Costs 1,134.000 Base Construction 21,250,990 Exterior Common Area Costs 1,358,000 Models and Recreation Building 245,000 Indirect Onsite Supervision 1,083,965 Developer Overhead and Fees 1,200.000 Bridge Loan Fees and Interest 377,822 Credit Enhancement Fees 0 Construction Interest 2,091,598 Construction Loan Fees and Taxes 1,644.388 Construction Contingency 1,185,348 Miscellaneous Copy and Messenger Expenses 25,000 Subtotal $35,316,110 Lease Up and Sales Operating Reserve $845,046 MarketinglLeasing/Legal 345.000 Lease Up Period Interest and Carry Costs 84.415 Permanent Financing Costs 1.290,339 Syndication Expense 0 TCAC Application/Monitoring Fees 36,106 Subtotal $ 2.600.906 Total Uses $46 674 806 Source: Borrower >I< Pre1iminary, subject to change. 30 A-7b _..._...~_..._....__.- _.om_··,_ _....._""..________'-_,__~.._ Tax-Exempt Financing Pursuant to a rèquest for financial assistance ¡rom the Borrower, the Issuer applied for and has received an allocation from the California Debt Limit Allocation Committee ("CD LAC") to issue $43,000,000 in tax-exempt multifamily revenue bonds to provide for the construction and permanent financing of the Project. Based on the CDLAC allocation, the Issuer is issuing two series of tax-exempt bonds as follows; (i) the Bonds, in the aggregate principal amount of $ , and (ii) the Series B Bonds, in the aggregate principal amount of $ . The Bonds will be secured by, among other things, credit enhancement to be provided by the Federal National Mortgage Association ("Fannie Mae") and, during the construction phase only, a standby letter of credit to be issued by the Bank, as discussed herein. The Series B Bonds will also be secured, during the construction phase only, by a standby letter of credit to be issued by the Banle The obligation of the Borrower to make payments under the Series B Loan Agreement is subordinate to the obligation of the Borrower to make payments under the Financing Agreement. See "SECURITY FOR THE BONDS" herein. THE BORROWER AND THE PROJECT The Borrower The Borrower, Gateway Town Center, L.P., a California limited partnership, is a single asset limited partnership that was created to own and develop the Project. The Borrower includes three general partners; Pacific Southwest Community Development Corporation, a California nonprofit public benefit corporation ("Pacific Southwest"), its managing general partner; CIC Commercial Real Estate Services, L.L.c., a California limited liability company (''eIC''), its advising general partner; and Gateway Town Center Investors, Inc., a California corporation ("Gateway Investors"), its tax matters general partner. Pacific Southwest is a California nonprofit public benefit corporation recognized under Section 501(c)(3) of the Code. Pacific Southwest has experience in the development and management of affordable housing projects, primarily in the southwestern United States. CIC is an affiliate of Chelsea Investment Corporation, a California corporation ("Chelsea"), a local real estate firm that negotiated the acquisition of the site on which the Project is to be constructed and continues to take the lead role in negotiating the development plans for the Project. Chelsea has participated both as consultant and partner in numerous real estate developments, including single and multifamily residential development, high-rise multi-purpose buildings, rehabilitation projects and raw land acquisition and assemblage. Chelsea also has extensive experience working with nonprofit partners and tax equity investors in connection with affordable housing projects. CIC provides comprehensive development services, including daily supervision of on-site operations and financial and market analysis. Gateway Investors is a wholly-owned subsidiary of Kaufman and Broad Multi-Housing Group, Inc. ("KBMH"), which is a wholly-owned subsidiary of Kaufman and Broad Horne Corporation (NYSE:KBH). KBMH is one of the nation's prernier developers of affordable family and seniors housing. Since 1994, KBMH has planned, built and/or financed more than 5,000 affordable housing units, mostly in California, Colorado and Utah. These projects often included financing that utilized tax- exempt, mortgage-backed revenue bonds, HOD and Fannie Mae affordable housing assistance, as well as a variety of state and local housing programs. KBMH also has extensive experience related to the purchase and resale of tax credits as permitted under Section 42 of the Code. Due to its extensive experience and expertise in low-income residential development, KBMH is able to provide a complete framework for an affordable housing program using both public and private financing sources. 31 /1- 7 7 ---_._----.--- ----~. The Project The Project will consist of 440 three-story garden apartment units. Each unit will include a balcony or patio, washer/dryer hook-up, full-sized energy efficiency appliances, ceiling fans, air conditioning, outdoor storage, security features and dual glazed windows. The units will have either an enclosed garage or assigned covered parking. The design includes the provision of 273 attached garages, of which 88 have direct access to the living unit. Project arnenities are expected to include two 2,500 square foot clubhouses, two swimming pools and spas, a media center, an exercise room, laundry facilities, security features, a children's play area and a multi-station computer laboratory with Internet access. The units in the Project will be distributed as follows: No. of Units TVDe of Unit Souare Footage Total SQuare Per Unit Footage 95 IBR,IBA 726 68,970 165 2 BR, 2 BA 942 155,430 40 2 BR, 2 BA 1,037 41,480 140 3 BR, 2 BA 1,167 163.380 Totals 440 429.260 Property Management Insignia Residential Group of California, Inc. (the "Manager"), an affiliate of Insignia Financial Group ("Insignia"), is expected to provide management services for the Project under subcontract with Chelsea. Insignia is the largest multifamily property rnanager in the United States, It's portfolio of residential communities includes properties controlled by Insignia Financial Group (and its affiliates) and notable third-party institutional clients such as major banks, insurance companies and other private investors and lenders, as well as the Federal Home Loan Mortgage Corporation. Insignia performs all day-to-day property rnanagement and accounting duties for its properties, including rent processing, accounts payable (with day-to-day expenses, mortgages, taxes and insurance), payroll and financial reporting. Acting as rental agent, Insignia develops and implements marketing programs, directs resident relations and oversees routine maintenance for each property. Insignia also has extensive experience managing multifamily developments subject to federal and state tax credit restrictions. Since 1988, Insignia has managed approximately 89 low-income housing tax credit properties that require the full range of management duties !Tom initial rent up of new properties placed into the tax credit prograrn to existing properties that were converted into tax credit properties. The size of the properties managed by Insignia that are subject to tax credit restrictions range in size !Tom 16 to 640 units. 32 A-7f? ,_........ .______~___._.__,..._ .... _.__ _0'__'_"_ _ ___________.__.__.~_....u._._.·_ Rental Restrictions Regulatory Agreement. As noted above, the Project is subject to the terms of the Regulatory Agreement. A brief summary of the Regulatory Agreement is provided here. See also "APPENDIX D- SUMMARY OF CERTAIN PROVISIONS OF THE REGULATORY AGREEMENT" herein. The Regulatory Agreement imposes certain requirements on the Borrower with respect to the tax- exempt status of the Bonds under the Code, which include, among other requirements, a set aside of 20% of the units for rental to persons or families having incomes at or below 50% of area median gross income, adjusted for family size and determined in accordance with Section 142( d) of the Code and certain other requirements under State law. The Regulatory Agreement also requires that rent on such 20% of the units not exceed 30% of an amount equal to 50% of area median adjusted gross income. The Regulatory Agreement contains provisions that cornply with certain affordable housing requirements previously imposed on the Project by the Issuer. See "APPENDIX D - SUMMARY OF CERTAIN PROVISIONS OF THE REGULATORY AGREEMENT" for a description of the requirements affecting the operation of the Project in order to assure compliance with the Code and State law. Tax Credits. The Project will also be encumbered by an Extended Use Agreement required by the Code and the California Tax Credit Allocation Committee ("TCAC"), which during the Qualified Project Period will (a) restrict the income levels of 20% of the units in the Project to amounts not greater than 50% of area median income adjusted for family size, and (b) restrict the rents which may be charged for occupancy of those units in the Project to not more than 30% of an amount equal to 50% of area median gross income, adjusted for family size, as provided in the Code and by TCAC. The Master Planned Community The Project will be built on an approximately IS-acre site in the Otay Ranch master planned community (the "Otay Ranch Master Planned Community"). The Otay Ranch property consists of approximately 23,000 acres situated within southwestern San Diego County, approximately 3.5 miles eat of downtown Chula Vista and 13 miles southeast of downtown San Diego. The United States international border with Mexico is approximately two miles south of the Otay Ranch property, which is served by the Interstate 5 and Interstate 805 highways. The approved general development plan for the Otay Ranch Master Planned Community provides for a variety ofland uses to be arranged in 18 villages. Approved uses include residential, commercial, community purpose facilities, schools, parks, open space and circulation element roads. A Sectional Planning Area ("SPA") plan has been approved for the initial two villages (Villages I and 5), which covers approximately 1,100 acres and provides for 5,758 dwelling units. The Project is located in Village I of SPA 1. The seller of the Project site to the Borrower was McMillin Otay Ranch, LLC, a Delaware limited liability company (formerly known as McMillin-DA America Otay Ranch, LLC) (the "Seller"). The Seller is concurrently developing other portions of SPA-I as the master developer. Pursuant to the purchase agreement between the Seller and the Borrower for the Project site (the "Project Purchase Agreement"), the Seller has agreed to complete certain pre-closing and post-closing improvements, including backbone utilities, streets, landscaping and lot grading and certification. The Borrower is obligated under the Project Purchase Agreement to cooperate with the Seller in connection with the Project and the development of the Otay Ranch Master Planned Community. The deed granting ownership interest in the Project to Borrower will contain covenants of the Borrower regarding compliance with provisions of the Project Purchase Agreement, including rnodification of fencing, commencement and cornpletion of construction, scheduling, surplus affordable housing credits, rezoning 33 /7-79 ------ ~--~ ~.__..._._.~~~-.---_._.__._,_.- and amendments to the applicable development plan, approval of Borrower's improvements, neighborhood monumentation, national pollution discharge elimination systern development, cleanup of debris, formation of community facilities districts, and Seller's right of first refusal regarding any future transfer of interests in the Project. The Seller's right of first refusal is for a period of two years after sale of the Project to the Borrower and does not apply to any portion of the property that a construction loan has been recorded for the construction of Borrower's proposed improvements. The Project will be subject to various agreernents with the Issuer and other governmental agencies pertaining to development, including agreements regarding the applicable general plan, development plans and fees, environmental impact and mitigation, any resource management plan, detention basin and desilting, and subdivision improvements agreements. The Project is proposed to be included in five community facilities districts to be formed pursuant to the Mello-Roos Community Facilities Act of 1982, to finance certain school facilities and other public improvements and maintenance services, Each community facilities district will be authorized to levy special taxes on property within the boundaries of such district. Limited Recourse to Borrower Neither the Borrower nor its partners have been nor will they be (subject to certain exceptions to nonrecourse liability set forth in the Mortgage Note and the Mortgage) personally liable for payments on the Mortgage Note backing the Fannie Mae Pass-Through Certificate, the payments on which are to be applied to pay the principal of and interest on the Bonds, nor will the Borrower or the partners of the Borrower be (subject to certain exceptions to nonrecourse liability set forth in the Mortgage Note and the Mortgage) personally liable under the other documents executed in connection with the issuance of the Bonds and the making of the Mortgage Loan. Furthermore, no representation is made that the Borrower will have the necessary funds available for the development of the Project or for the payment of principal and interest on the Mortgage Note. Accordingly, neither the Borrower's financial statements nor those of its partners are included in this Private Placement Memorandum, THE BORROWER AND THE PROJECT The Borrower The Borrower, Gateway Town Center, L.P., a California limited partnership, is a single asset limited partnership that was created to own and develop the Project. The Borrower includes three general partners: Pacific Southwest Community Development Corporation, a California nonprofit public benefit corporation ("Pacific Southwest"), its managing general partner; CIC Commercial Real Estate Services, L.L.c., a California limited liability company ("CIC"), its advising general partner; and Gateway Town Center Investors, Inc" a California corporation ("Gateway Investors"), its tax matters general partner. [NEED INFO RE OPERATIONS AND mSTORY OF PACIFIC SOUTHWEST] CIC is an affiliate of Chelsea Investment Corporation, a corporation ("Chelsea"), a local real estate firm that negotiated the acquisition of the site on which the Project is to be constructed and continues to take the lead role in negotiating the development plans for the Project. [NEED MORE INFO RE OPERATIONS AND mSTORY OF CHELSEA] 34 A-gO Gateway Investors is a wholly-owned subsidiary of Kaufman and Broad Multi-Housing Group, Inc. ("KBMH"), which is a wholly-owned subsidiary of Kaufman and Broad Home Corporation (NYSE:KBH), one of the nation's prernier developers of affordable farnily and seniors housing. Since 1994, KBMH has planned, built and/or fmanced more than 5,000 affordable housing units, mostly in California, Colorado and Utah. [MORE INFO RE OPERATIONS AND mSTORY OF KBMH?] The Project The Project will consist of 440 three-story garden apartment units. Each unit will include a balcony or patio, washer/dryer hook-up, full-sized energy efficiency appliances, ceiling fans, air conditioning, outdoor storage, security features and dual glazed windows. The units will have either an enclosed garage or assigned covered parking. The design includes the provision of 273 attached garages, of which 80 afford direct access to the living unit. Project amenities are expected to include two 2,510 square foot clubhouses, two swimming pools and spas, a media center, an exercise roorn, laundry facilities, security features, a children's play area and a multi-station computer laboratory with Internet access. The units in the Project will be distributed as follows: No. of Units Tvoe of Unit Sauare FootalZe Total Sauare Per Unit FootalZe 95 1 BR, 1 BA 726 68,970 165 2 BR, 2 BA 942 155,430 40 2 BR, 2 BA 1,037 41,480 (dual master) 140 3 BR, 2 BA 1,167 163.380 Totals 440 429.260 Property Management Insignia Residential Group of California, Inc. (the "Manager"), an affiliate of Insignia Financial Group ("Insignia"), is expected to provide management services for the Project. Insignia is the largest multifamily property manager in the United States. It's portfolio of residential communities includes properties controlled by Insignia Financial Group (and its affiliates) and notable third-party institutional clients such as major banks, insurance cornpanies and other private investors and lenders, as well as the Federal Home Loan Mortgage Corporation. Insignia performs all day-to-day property management and accounting duties for its properties, including rent processing, accounts payable (with day-to-day expenses, mortgages, taxes and insurance), payroll and financial reporting. Acting as rental agent, Insignia develops and implements marketing programs, directs resident relations and oversees routine maintenance for each property. Insignia also has extensive experience managing multifamily developments subject to federal and state tax credit restrictions. Since 1988, Insignia has managed approximately 89 low-income housing tax credit properties that require the full range of management duties trom initial rent up of new properties 35 A-8! placed into the tax credit program to existing properties that were converted into tax credit properties. The size of the properties managed by Insignia that are subject to tax credit restrictions range in size !Tom 16 to 640 units. Rental Restrictions Regulatory Agreement. As noted above, the Project is subject to the tenns of the Regulatory Agreement. A brief summary of the Regulatory Agreement is provided here. See also "APPENDIX D- SUMMARY OF CERTAIN PROVISIONS OF THE REGULATORY AGREEMENT" herein. The Regulatory Agreement imposes certain requirements on the Borrower with respect to the tax- exem;>t status of the Bonds under the Code, which include, among other requirements, a set aside of 20% of the units for rental to persons or families having incomes at or below 50% of area median gross income, adjusted for family size and detennined in accordance with Section 142(d) of the Code and certain other requirements under State law. The Regulatory Agreement also requires that rent on such 20% of the units not exceed 30% of an amount equal to 50% of area median adjusted gross income. See "APPENDIX D - SUMMARY OF CERTAIN PROVISIONS OF THE REGULATORY AGREEMENT" for a description of the requirements affecting the operation of the Project in order to assure compliance with the Code and State law. Tax Credits. The Project will also be encumbered by an Extended Use Agreement required by the Code and the California Tax Credit Allocation Committee, which during the Qualified Project Period will (a) restrict the income levels of 100% of the units in the Project to amounts not greater than 60% of area median income adjusted for family size, and (b) restrict the rents which may be charged for occupancy of those units in the Project to not more than 30% of an amount equal to 60% of area median gross income, adjusted for family size. Limited Recourse to Borrower Neither the Borrower nor its partners have been nor will they be (subject to certain exceptions to nonrecourse liability set forth in the Mortgage Note and the Mortgage) personally liable for payments on the Mortgage Note backing the Fannie Mae Pass-Through Certificate, the payments on which are to be applied to pay the principal of and interest on the Bonds, nor will the Borrower or the partners of the Borrower be (subject to certain exceptions to nonrecourse liability set forth in the Mortgage Note and the Mortgage) personally liable under the other documents executed in connection with the issuance of the Bonds and the making of the Mortgage Loan. Furthennore, no representation is made that the Borrower will have the necessary funds available for the development of the Project or for the payment of principal and interest on the Mortgage Note. Accordingly, neither the Borrower's financial statements nor those of its partners are included in this Official Statement. THE MORTGAGE NOTE The Mortgage Loan will be evidenced by a Mortgage Note. The Mortgage Note will be a non-recourse obligation of the Borrower to repay the Mortgage Loan and is secured by the Mortgage. The Mortgage Note will be payable monthly, interest only, in arrears, to and including the Conversion Date and, thereafter, will be due and payable in 360 consecutive level monthly installments of principal and interest (computed at the Mortgage Note Rate then in effect on the outstanding principal amount of the Mortgage Loan) beginning on the first day of the rnonth following the month in which the Conversion Date occurs until the entire indebtedness evidenced by the Mortgage Note ;s paid in full, provided that any remaining indebtedness, if not sooner paid, shall be due and payable on the thirtieth anniversary of the Conversion Date, but in any event, not later than . The Mortgage Note is 36 A-g~ .··____~_.__w_ .,___...._ subject to optional and rnandatory prepayment at the times, in the rnanner and on the tenns set forth therein. The Mortgage Note will bear interest at the "Mortgage Note Rate." The Mortgage Note Rate comprises (i) a pass-through rate of interest (the "Pass-Through Rate"), which shall be a rate sufficient to pay when due the interest on the Bonds, the Trustee's Annual Fee and the Rebate Analyst's Annual Fee, if any; and (ii) a fixed rate of interest which (a) prior to the Conversion Date, shall be equivalent to the Facility Fee payable to Fannie Mae and, (b) on and after the Conversion Date and until the Issue Date, will be equivalent to the sum of (I) the Facility Fee payable to Fannie Mae, as increased to reflect Conversion, and (2) the Servicing Fee and (b) on and after the Issue Date will be equivalent to the sum of (I) the Guaranty Fee and (2) the Servicing Fee. The Pass-Through Rate is, beginning on and including the Closing Date, to, but not including the Conversion Date, 5.75% per annum, and beginning on and after the Conversion Date, 6.40% per annum to final payment of the Mortgage Note. The Mortgage Note provides that, if any installment under the Mortgage Note is not paid when due, or any other default exists under the Mortgage Note, the Mortgage of any other Mortgage Loan Document, Fannie Mae, at its option, may declare the entire principal amount outstanding under the Mortgage Note, plus accrued interest thereon, at once due and payable, FANNIE MAE AND SERVICING FEES General Effective on the Closing Date, Fannie Mae will receive a Credit Fee for providing credit enhancement for the Mortgage Loan. The Credit Fee is included in the Mortgage Note Rate and is (a) prior to the Issue Date of a Fannie Mae Pass-Through Certificate issued by Fannie Mae in connection with the acquisition of all of the right, title and interest in and to the Mortgage Loan, equivalent to the Facility Fee charged by Fannie Mae for entering into and maintaining the Collateral Agreement as credit enhancement for the Mortgage Loan and (b) on and after the Issue Date of any such Fannie Mae Pass-Through Certificate, equivalent to the Guaranty Fee charged by Fannie Mae for issuing the Fannie Mae Pass-Through Certificate. The Facility Fee, expressed as a percentage, is (i) prior to the Conversion Date, .15% per annum, or IS "basis points" per annum, of the outstanding principal amount of the Mortgage Loan and (ii) on and after the Conversion to, but not including, the Issue Date, .45% per annum, or 45 "basis points" per annum, of the outstanding principal amount of the Mortgage Loan. The Facility Fee component of the Mortgage Note Rate accrues !Tom and including the Accrual Date to, but not including, the first to occur of the Issue Date or the date the Mortgage Note is paid in full and is payable on the first day of each month, in arrears, as part of the Mortgage Note Rate, to and including the first to occur of the Issue Date or the date the Mortgage Note is paid in full. The Facility Fee payable on the first day of each month to and including the Conversion Date shall, as part of the Mortgage Note Rate, be paid to and received by the Trustee, and remitted by the Trustee solely to Fannie Mae, in accordance with the Indenture, in consideration of Fannie Mae entering into and maintaining the Collateral Agreement in effect The Facility Fee payable on the first day of each month after the Conversion Date and to and including the first to occur of the Issue Date or the date the Mortgage Note is paid in full shall, as part of the Mortgage Note Rate, be paid to and received by the Servicer and remitted by the Servicer solely to Fannie Mae in consideration of Fannie Mae entering into and maintaining the Collateral Agreement in effect on and after the Conversion Date. The Guaranty Fee, expressed as a percentage, is .45% or 45 "basis points" per annum of the outstanding principal arnount of the Mortgage Loan; the Guaranty Fee component of the Mortgage Note Rate accrues !Tom and including the Issue Date to the date the Mortgage Note is paid in full. 37 A-<óa ----~ -.---------."..--- --- ----_.'.-- Effective on the Conversion Date, the Servicer will receive a Servicing Fee for servicing the Mortgage Loan. The Servicing Fee is .45% per annum or 45 "basis points" per annurn of the outstanding principal amount of the Mortgage Loan and accrues !Tom and including the Conversion Date to, but not including, the date the Mortgage Note is paid in full. The Servicing Fee is included in the Mortgage Note Rate. The Credit Fee and the Servicing Fee (when applicable) will be based on the unpaid principal amount of the Mortgage Loan and will be calculated and payable monthly on the principal balance of the Mortgage Loan outstanding on the fIrst day of each month. The Servicer will deduct the Servicing Fee !Tom, and Fannie Mae will deduct the Guaranty Fee !Tom, the interest portion of the monthly payments on the Mortgage Loan, so that distributions of interest received by the Trustee will be net of the Guaranty Fee and the Servicing Fee. Fannie Mae is also entitled to retain late charges or, in certain cases, to share with the Servicer late charges, assumption fees, interest float on advance payments, and similar charges to the extent they are collected !Tom the Borrower. Timing of Receipt of Revenues The payment of the principal of and interest on Bonds depends upon timely distributions of principal and interest on the Fannie Mae Pass-Through CertifIcate, as well as receipt of Investment Income on amounts on deposit in the Revenue Fund. The scheduled debt service payments on the Bonds have been calculated based on the assumed receipt of these payments and income. THE SERVICER [ARCS TO UPDATE] ARCS Commercial Mortgage Co., LP., a California limited partnership ("ARCS," or the initial "Servicer"), will perform rnortgage servicing functions with respect to the Mortgage Loan on behalf of and in accordance with Fannie Mae's servicing requirements, beginning on the Conversion Date. ARCS is headquartered in Calabasas, California and is Fannie Mae's largest originator and servicer of Fannie Mae DUS loans. Any servicing contracts or arrangements between Fannie Mae and the Servicer for the servicing of the Mortgage Loan are solely between Fannie Mae and the Servicer and neither the Issuer nor the Trustee is deemed to be party thereto or has any clairn, right, obligation, duty or liability with respect to the servicing of the Mortgage Loan, The Servicer will be obligated, pursuant to its contract with Fannie Mae and Fannie Mae's servicing requirements, to perform diligently all services and duties customary to the servicing of mortgages, as well as those specifIcally prescribed by the contract, the Fannie Mae Commitment and the DUS Guide. Fannie Mae will monitor the Servicer's performance and has the right to remove the Servicer at any time and to designate a successor servicer. The duties performed by the Servicer include general loan servicing responsibilities, collection and remittance of principal and interest payments, administration of mortgage escrow accounts and collection of insurance claims. The Servicer rnakes no representation as to the contents of this OffIcial Staternent, the suitability of the Bonds for any investor, the feasibility of performance of the Project or compliance with any securities, tax or other laws or regulations. The Servicer's role is limited to the underwriting and servicing of the Mortgage Loan. 38 /I-glj - ------------....---.---.....--...-...-----.".-..---.--.-----~-_._- ENFORCEABILITY OF REMEDIES The rernedies available to the Trustee, the Issuer and the owners of the Bonds upon an Event of Default under the Indenture are in many respects dependent upon regulatory and judicial actions, which are often subject to discretion and delay. Under existing law and judicial decisions, the remedies provided for under the Financing Agreement, the Regulatory Agreement or the Indenture may not be readily available or may be limited. The various legal opinions to be delivered concurrently with the delivery of the Bonds, the Financing Agreement, the Regulatory Agreement and the Indenture will be qualified as to enforceability of the various legal instruments by limitations imposed by bankruptcy, reorganization, insolvency or other similar laws affecting the rights of creditors generally and by equitable rernedies and proceedings generally. TAX MATTERS In the opinion of Stradling, Y occa, Carlson & Rauth ("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 incorne tax purposes under the Internal Revenue Code of 1986 (the "Code"), except that no opinion is expressed as to the status of interest on any Bond during any period such Bond is held by a "substantial user" of the facilities financed or refmanced by the Bonds or by a "related person" within the meaning of Section l47(a) of the Code. Bond Counsel observes, however, that interest on the Bonds is a specific preference item for purposes of the federal individual and corporate alternative minimum taxes. Bond Counsel is also of the opinion that interest on the Bonds is exempt from State of California personal income taxes. A complete copy of the proposed form of the opinion of Bond Counsel is set forth in APPENDIX G. To the extent the issue price of any maturity of the Bonds is less than the amount to be paid at maturity of such Bonds (excluding amounts stated to be interest and payable at least annually over the term of such Bonds), the difference constitutes "original issue discount," the accrual of which, to the extent properly allocable to each owner thereof, is treated as interest on the Bonds which is excluded ITorn gross income for federal income tax purposes and State of California personal income taxes. For this purpose, the issue price of a particular rnaturity of the Bonds is the first price at which a substantial amount of such maturity of the Bonds is sold to the public (excluding bond houses, brokers, or similar persons or organizations acting in the capacity of underwriters, placement agents or wholesalers). The original issue discount with respect to any maturity of the Bonds accrues daily over the term to maturity of such Bonds on the basis of a constant interest rate compounded semiannually (with straight-line interpolations between compounding dates), The accruing original issue discount is added to the adjusted basis of such Bonds to determine taxable gain or loss upon disposition (including sale, redemption, or payment on maturity) of such Bonds. Owners of the Bonds should consult their own tax advisors with respect to the tax consequences of ownership of Bonds with original issue discount, including the treatment of purchasers who do not purchase such Bonds in the original offering to the public at the first price at which a substantial amount of such Bonds is sold to the public, 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 Bonds. The Issuer and the Borrower have covenanted to comply with certain restrictions designed to ensure that interest on the Bonds will not be included in federal gross income. Failure to comply with these covenants may result in interest on the Bonds being included in federal gross income, possibly ITom the date of issuance of the Bonds. The opinion of Bond Counsel assurnes 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 Bonds may adversely affect the value of, or 39 A -'8~ ~ .,.- _.......-~---~_._~-_._...,--,-"--_.,,_._- the tax status of interest on, the 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 arnendments to the Code, will not adversely affect the value of, or the tax status of interest on, the Bonds. Prospective Bondholders are urged to consult their own tax advisors with respect to proposals to restructure the federal income tax. Certain requirements, agreements and procedures contained or referred to in the Indenture, the Financing Agreement, the Regulatory Agreement, the Tax Certificate and other relevant documents may be changed and certain actions (including, without limitation, defeasance of the Bonds) may be taken or omitted under the circumstances and subject to the terms and conditions set forth in such documents. Stradling, Y occa, Carlson & Rauth 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 Stradling, Yocca, Carlson & Rauth. Although Bond Counsel is of the opinion that interest on the Bonds is excluded from gross income for federal income tax purposes and is exernpt from State of California personal income taxes, the ownership or disposition of, or the accrual or receipt of interest on, the 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 and the Bondholder's other items of income or deduction. Bond Counsel expresses no opinion regarding any such other tax consequences. CERTAIN LEGAL MATTERS Legal matters incident to the authorization, issuance and sale of the Bonds are subject to the approving opinion of Stradling, Yocca, Carlson & Rauth, Newport Beach, California, as Bond Counsel. A complete copy of the proposed form of opinion of Bond Counsel is attached hereto as APPENDIX G. Bond Counsel undertakes no responsibility for the accuracy, completeness or fairness of this Official Statement. Certain legal matters will be passed upon for the Issuer by Stradling, Y occa, Carlson & Rauth, Newport Beach, Califomia, as Bond Counsel; for the Borrower by Turner, Aubert & Young, LLP, Beverly Hills, California for Fannie Mae by its Legal Department and by Arent Fox Kintner Plotkin & Kahn, PLLC, Washington, D.C., Fannie Mae Counsel; and for the Underwriter by its counsel, Cox, Castle & Nicholson LLP, Los Angeles, California. Fees and expenses of certain of the above-mentioned counsel are contingent upon issuance of the Bonds. The various legal opinions to be delivered concurrently with the delivery of the Bonds will be qualified as to the enforceability of the various legal instruments by limitations imposed by the valid exercise of the constitutional powers of the State of California and the United States of America and bankruptcy, reorganization, insolvency or other similar laws affecting the rights of creditors generally, and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). The various legal opinions to be delivered concurrently with the delivery of the Bonds express the professional judgment of the attomeys rendering the opinions on the legal issues explicitly addressed therein. By rendering a legal opinion, the opinion giver does not become an insurer or guarantor of that expression of professional judgment, of the transaction opined upon or of the future performance of parties to such transaction, nor does the rendering of an opinion guarantee the outcome of any legal dispute that may arise out of the transaction, 40 /i-86 ,.'.._....._w__..__________ The rernedies available to the bondholders upon a default under the Indenture or the Financing Agreernent are in rnany respects dependent upon judicial actions which are often subject to discretion and delay. Under existing constitutional and statutory law and judicial decisions, including specifically Title 11 of the United States Code (the federal bankruptcy code), the remedies provided in the Indenture and the Financing Agreement may not be readily available or may be limited. UNDERWRITING Newman & Associates, Inc. has agreed, subject to certain conditions, to purchase the Bonds trorn the Issuer at a price of par. As consideration for its purchase of the Bonds, the Underwriter will be paid an aggregate fee equal to $ , trom which the Underwriter will pay certain expenses. The obligation of the Underwriter to purchase the Bonds is subject to certain terms and conditions set forth in the purchase contract entered into among the Underwriter, the Borrower and the Issuer. The Bonds may be offered and sold to certain dealers, banks and others at prices lower than the initial offering prices, and such initial offering prices may be changed, trom time to time, by the Underwriter. CONTINUING DISCLOSURE The Borrower has entered into a Continuing Disclosure Agreement dated as of October I, 1998 (the "Contil1uing Disclosure Agreement") with the Trustee obligating the Borrower to send, or cause to be sent, certain financial information with respect to the Project to certain information repositories annually and to provide notice, or cause notice to be provided, to the Municipal Securities Rulemaking Board and a state information repository, if any, of certain enumerated events for the benefit of the Beneficial Owners and Holders of any of the Bonds, pursuant to the requirements of Section (b)(5)(i) of Securities Exchange Commission Rule 15c2-12 (the "Rule"), See APPENDIX F-"FORM OF THE CONTINUING DISCLOSURE AGREEMENT" herein. The Borrower has not entered into any other such undertaking with respect to the Rule. A failure by the Borrower to comply with the provisions of the Continuing Disclosure Agreement will not constitute a default under the Indenture or Financing Agreement (although Bondholders will have any available remedy at law or in equity). Nevertheless, such a failure to comply must be reported in accordance with the Rule and must be considered by any broker, dealer or municipal securities dealer before recommending the purchase or sale of the Bonds in the secondary market. Consequently, such a failure rnay adversely affect the transferability and liquidity of the Bonds. VERIFICATION OF CASH FLOWS The mathematical accuracy of certain computations included in the schedules provided by the Underwriter on behalf of the Issuer relating to the computation of the cash flows trom the projected payments of principal and interest on the Mortgage Loan and the sufficiency of such payments together with certain amounts held under the Indenture for the payment of the principal of and interest on the Bonds and certain fees will be verified by , certified public accountants (the "Verification Agent"). The Verification Agent has restricted its procedures to verifying the arithmetical accuracy of certain computations and has not made any study or evaluation of the assumptions and information on which the computations are based and, accordingly, has not expressed an opinion on the data used, the reasonableness of the assumptions or the achievability of the projected outcorne. 41 /l-F 1 -- -~ -.--.,----......-.- - ---_.,....._._~_.._. ._------------,.~._.~ -- NO LITIGATION To the best knowledge of the Issuer no litigation of any nature is pending, or to its knowledge threatened, in any way relating to, affecting or questioning the issuance, sale, execution or delivery of the Bonds, or of any of the proceedings of the Issuer taken with respect to the issuance or sale thereof, or otherwise affecting or questioning the validity of the Bonds, the pledge or application of any rnoney or securities provided for the payment of the Bonds and the existence or powers of the Issuer or the title of any officers of the Issuer to their respective offices. To the best knowledge of the Borrower, there is no pending or threatened action, suit or proceeding restraining or enjoining the execution or delivery of the Bonds, or in any way contesting or affecting the validity of the foregoing or, which in any way contests the existence or powers of the Borrower, and there is no pending or threatened action, suit or proceeding pending against or relating to the Borrower or the Project or which could have a material adverse effect on the financial condition or operation of the Borrower or the Project. RATING Standard & Poor's Ratings Services, a division of The McGraw-Hill Companies, Inc" has assigned the Bonds the rating shown on the cover page hereof. Such rating reflects only the view of such organization, and an explanation of the significance of such rating may be obtained only !Tom Standard & Poor's Ratings Services, a division of The McGraw-Hill Companies, Inc., 25 Broadway, New York, New York 10004, telephone number (212) 208-1002. There is no assurance that such rating will continue for any given period of time or that it will not be revised downward or withdrawn entirely by the rating agency if, in the judgment of such rating agency, circumstances so warrant. Any such downward revision or withdrawal of such rating may have an adverse effect on the marketing price of the Bonds. ADDITIONAL INFORMATION The foregoing references to, and summaries or descriptions of, provisions of the Bonds, the Collateral Agreement, the Fannie Mae Pass-Through Certificate, the Financing Agreement, the Indenture, the Regulatory Agreement and all references to other documents or materials not stated in full are only brief references, outlines or summaries of sorne of the provisions thereof and do not purport to summarize or describe all of the provisions thereof. Copies of the Collateral Agreement, the Financing Agreement, the Regulatory Agreement and the Indenture may be obtained !Tom the Underwriter or the Trustee, The Issuer has provided only the information under the headings "THE ISSUER," and "NO LITIGATION," as such information relates to the Issuer, and the Issuer is not responsible for the accuracy or completeness of any other information contained herein. 42 A --8 '8 _.__...~_..,- .."...--. The use of this Official Statement in connection with the offering of the Bonds has been duly authorized by the Issuer and the Borrower. CITY OF CHULA VISTA By: /s/ Mayor GATEWAY TOWN CENTER, L.P, a California limited partnership By: Pacific Southwest Community Development Corporation, a California nonprofit public benefit corporation, Its Managing General Partner By: Executive Director 43 /I -C; Cf <-+..-- ___._ __._....·m _..._~__.__..____~...._". APPENDIX A SUMMARY OF CERTAIN DEFINITIONS [TO BE PROVIDED BY BOND COUNSEL] A-I ,/1-90 . ..~u__ --- -_.~..".__. n" _..__.._____.._~_.__ ,..___.~__.___... __.._.._.~_._,_..___..,~______._ APPENDIX B SUMMARY OF CERTAIN PROVISIONS OF THE INDENTURE [TO BE PROVIDED BY BOND COUNSEL] B-1 /1-1 I -- - _.~- ".--- --".--.,,~---------_._" APPENDIX C SUMMARY OF CERTAIN PROVISIONS OF THE COLLATERAL AGREEMENT [TO BE PROVIDED BY FANNIE MAE] C-I /1- 9d-. -- ,.. --------- -.-.-...-."- . ".--..--... APPENDIX D SUMMARY OF CERTAIN PROVISIONS OF THE REGULATORY AGREEMENT [TO BE PROVIDED BY BOND COUNSEL] D-l A - 93 --~,-_.--_.- APPENDIX E SUMMARY OF CERTAIN PROVISIONS OF THE FINANCING AGREEMENT [TO BE PROVIDED BY BOND COUNSEL] E-l A-9{ APPENDIX F FORM OF CONTINUING DISCLOSURE AGREEMENTS [TO FOLLOW] F-l Ii - 9S- --. ~_._,.__.,_..- ..' ..-.-~.----~-.-.-~.-----~.'._-------.-- ------ APPENDIX G PROPOSED FORM OF OPINION OF BOND COUNSEL [TO BE PROVIDED BY BOND COUNSEL] G-l ~-1c:' -.,..-.-- .-^-..---. - - .-...-.--..-.-----..--.----..-.-. ---_..._.~-------_.,.__..- ----~._-,--_._--~-_._----~----- EXHIBIT 5 PRIVATE PLACEMENT MEMORANDUM DATED ,1998 NEW ISSUE: BOOK ENTRY ONLY UNRATED In the opinion of Stradling, Yocca, Car/son & Rauth ("Bond Counse/'J. based on an analysis of existing laws, regula/ions, rulings and court decisions, and assuming, among other matters, compliance with certain covenants, interest on the Bonds is excluded/rom gross incomeJor federal income tax purposes under Section 103 of the Internal Revenue Code of 1986 (the "Code "), except that no opinion is expressed as to the status olinterest on any Bond during any period such Bond is held by a person who is a "substantial user" of the facilities financed by the Bonds or is a "related person" within the meaning of Section 147(a) oj the Code, Bond Counsel observes, however, that interest on the Bonds is a specific preference item for purposes of the federal individual and corporate alternative minimum taxes. Bond Counsel is also of the opinion that interest on the Bonds is exempt from State of California personal income taxes. Bond Counsel expresses no opinion regarding other tax consequences relating to the ownership or disposition of. or the accroal or receipt of interest on, the Bonds. See "TAX MA TTERS "for additional information. $ . CITY OF CHULA VISTA, CALIFORNIA SUBORDINATE MULTIFAMILY HOUSING REVENUE BONDS SERIES 1998B (GA TEW A Y TOWN CENTER APARTMENTS) Dated: Octoher 1, 1998 Maturity: June 1, as shown below The above·captioned Bonds (the "Bonds") are heing issued by the City of Chu1a Vista, Califomia (the "Issuer") to provide financing for the construction and development by Gateway Town Center, LP., a California limited partnership (the "Borrower"), of a multifamily residential housing project (the "Project"). The Bonds are being issued pursuant to a Trust Indenture dated as of October 1. 1998 (the "Indenture") by and between the Issuer and State Street Bank and Trust Company of California, N.A. (the "Trustee"). In addition, proceeds from the sale of the Bonds will be used to fund certain reserves and to pay certain costs in connection with the issuance of the Bonds. THIS PRIVATE PLACEMENT MEMORANDUM IS FURNISHED SOLELY FOR THE PURPOSE OF CONSIDERATION OF AN INVESTMENT IN THE BONDS BY SOPHISTICATED INSTITUTIONAL INVESTORS WITH THE EXPERIENCE AND FINANCIAL EXPERTISE TO UNDERSTAND AND EVALUATE THE RISKS INHERENT IN THE INVESTMENT, THE BONDS ARE UNRATED. PURCHASE OF THE BONDS WILL CONSTITUTE AN INVESTMENT SUBJECT TO SIGNIFICANT RISKS, INCLUDING THE RISK OF NONPAYMENT OF PRINCIPAL AND INTEREST AND THE LOSS OF ALL OR PART OF THE INVESTMENT. THE BONDS ARE BEING ISSUED IN MINIMUM DENOMINATIONS OF $100,000 OR ANY INTEGRAL MULTIPLE OF $5,000 IN EXCESS THEREOF AND ARE SECURED SOLELY BY A MORTGAGE ON THE PROJECT AND CERTAIN AMOUNTS HELD UNDER THE INDENTURE AND CERTAIN OTHER SECURITY DESCRIBED HEREIN. THERE CAN BE NO ASSURANCE THAT THE PROJECT WILL BE COMPLETED AND RENTED IN A TIMELY AND SUCCESSFUL MANNER NOR THAT THE OPERATING PERFORMANCE OF THE PROJECT WILL ASSURE THAT THERE WILL BE AVAILABLE TO THE TRUSTEE SUFFICIENT REVENUES TO PAY THE PRINCIPAL OF, PREMIUM, IF ANY, AND INTEREST ON THE BONDS AND TO AVOID A DEFAULT ON THE BONDS IN THE FUTURE. NEITHER THE ISSUER, THE BORROWER NOR THE UNDERWRITER HAVE MADE ANY REPRESENTATIONS WHATSOEVER REGARDING THE FUTURE PERFORMANCE OF THE PROJECT. SEE "CERTAIN BONDHOLDERS' RISKS" HEREIN. The Bonds will be secured by a pledge and assignment of the Trust Estate (as defined in the Indenture), including certain revenues from the Project and funds held under the Indenture. In addition, the Bonds wi11 initially be secured, to the limited extent described herein, by an irrevocable standby letter of credit (the "Letter of Credit") issued by Bank America National Trust and Savings Association (the "Bank"). The Letter of Credit will secure the timely payment of the principal of, interest on and purchase price of the Bonds. The Letter of Credit will initially terminate on (the "Stated Expiration Date"), but will be subject to extension and may terminate earher should certain events occur. See "SECURITY FOR THE BONDS-Letter of Credit" and "APPENDIX E - THE MORTGAGE" herein. Upon the expiration of the Letter of Credit, the Bonds will not be secured by any credit enhancement. See "CERTAIN BONDHOLDERS' RISKS" herein THE BONDS ARE SPECULATIVE IN NATURE AND ARE SUBJECT TO CERTAIN RISKS. SEE "CERTAIN BONDHOLDERS' RISKS" HEREIN. . Preliminary, subject to change. GMGEDDES 30641600847 v3 ¡)-11 - ------~.__.. _._---_._-------~~...,.,.._---_..- The Bonds are being issued as fully registered Bonds without coupons in the denomination of $1 00,000 or any integral multiple of $5,000 in excess thereof. The Bonds will be registered in the name of Cede & Co., as nominee of The Depository Trust Company, New York, New York ("DTC"). Purchases of beneficial interests in the Bonds will be made in book-entry only fonn. DTC will act as securities depository for the Bonds. So long as the Bonds are registered in the name of Cede & Co., as nominee of DTC, references herein to the owners or registered owners of the Bonds shall mean Cede & Co., and shall not mean the beneficial owners of the Bonds. Purchasers of beneficial interests in the Bonds will not receive physical delivery of Bonds. Payments of principal of, premium, if any, and interest on the Bonds win be made directly to DTC or its nominee, Cede & Co., by the Trustee, so long as DTC is the registered owner of the Bonds. DTC will remit such payments to the applicable DTC Participants. The disbursement of such payments will be made by DTC Participants to the beneficial owners of the Bonds. For further details, see "THE BONDS·Book-Entry Only" herein. Principal of and premium, if any, on the Bonds are payable at the principal corporate trust office of the Trustee in San Francisco, California. Interest on each Bond will be payable semiannually on June I and December 1 of each year (each, an Interest Payment Date"), commencing June I, 1999, by check mailed to the registered owner thereof as of the applicable record date, or at the option of any registered owner of at least $1,000,000 in aggregate principal amount of Bonds, by wire transfer to such owner to the bank account number on file with the Trustee as of said record date. See "THE BONDS" herein The Bonds are subject to redemption prior to maturity as described herein. See "Redemption of Bonds." THE BONDS ARE NOT GENERAL OBLIGATIONS OF THE ISSUER, BUT ARE LIMITED AND SPECIAL OBLIGATIONS PAYABLE SOLELY FROM THE TRUST ESTATE, WHICH SHALL BE USED FOR NO OTHER PURPOSE THAN TO PAY THE PRINCIPAL OF AND INTEREST ON THE BONDS, EXCEPT AS MAY BE OTHERWISE EXPRESSLY AUTHORIZED IN THE INDENTURE. EACH AND EVERY COVENANT MADE IN THE INDENTURE BY THE ISSUER IS PREDICATED UPON THE CONDITION THAT ISSUER WILL NOT IN ANY EVENT BE LIABLE FOR THE PAYMENT OF THE PRINCIPAL OF, PREMIUM, IF ANY, OR INTEREST ON THE BONDS, OR OTHER FEES AND EXPENSES PROVIDED UNDER THE INDENTURE OR THE PERFORMANCE OF ANY PLEDGE, SECURITY AGREEMENT, OBLIGATION OR AGREEMENT CREATED BY OR ARISING UNDER THE INDENTURE OR THE BONDS FROM ANY PROPERTY OTHER THAN THE TRUST ESTATE, AND THAT NEITHER THE BONDS NOR ANY SUCH OBLIGATION OR AGREEMENT OF THE ISSUER WILL BE CONSTRUED TO CONSTITUTE AN INDEBTEDNESS OF THE ISSUER WITHIN THE MEANING OF ANY CONSTITUTIONAL OR STATUTORY PROVISION WHATSOEVER, OR AS A PLEDGE OF THE GENERAL CREDIT, FAITH OR TAXING POWER OF THE ISSUER. THE BONDS ARE NOT A DEBT OF THE STATE OF CALIFORNIA, THE ISSUER OR ANY OTHER POLITICAL SUBDIVISION OF THE STATE OF CALIFORNIA. NEITHER THE FAITH AND CREDIT NOR THE TAXING POWER OF THE STATE OF CALIFORNIA, THE ISSUER OR ANY OTHER POLITICAL SUBDIVISION OF THE STATE OF CALIFORNIA IS PLEDGED TO THE PAYMENT OF THE PRINCIPAL OF OR THE INTEREST ON THE BONDS. MATURITY SCHEDULE· The Bonds will bear interest at the rate(s) per annum and shall mature (subject to redemption prior to maturity, including sinking fund redemption) on the dates and in the principal amounts, stated in the table set forth below. Maturity Principal Interest Maturity Principal Interest Date Amount Rate Price Date Amount Rate Price $ _% Term Bonds Due June 1,_ - Price: - % $ _0/0 Term Bonds Due JUDe 1, _ - Price: _ % THIS PRIVATE PLACEMENT MEMORANDUM IS INTENDED TO PROVIDE INFORMA nON CONCERNING THE TERMS OF THE BONDS ONLY IN CONNECTION WITH THE ORIGINAL OFFERING OF THE BONDS, AFTER THE DATE HEREOF, WHENEVER THE BONDS MAY BE REOFFERED OR RESOLD, INVESTORS SHOULD MAKE INVESTMENT DECISIONS ONLY UPON THE INFORMATION PROVIDED IN CONNECTION WITH SUCH REOFFERING OR RESALE AND NOT UPON THE INFORMA nON CONTAINED HEREIN. . Preliminary, subject to change. GMGEDDES 30641600847v3 17- q~ ----.- ----~-_..__..._._.._,. This cover page contains limited information for reference only. It is not a summary of this issue. The entire Private Placement Memorandum, including the appendices, must be read 10 obtain information essential to make an informed investment decision. The Bonds are offered when, as and if issued and received by the Underwriter, and subject to the approval as to their legality by Stradling. focca, Carlson & Rauth. Newport Beach, California. Bond Counsel, and certain other conditions. Certain legal matters will be passed upon for the Borrower by Turner, Aubert & Young, UP, Beverly Hills, California, and for the Underwriter by Cox, Castle & Nicholson LLP, Los Angeles, California. It is expected that the Bonds will be available for delivery in book-entry form through DTC in New York, New York on or about October 20, 1998. Newman & Associates, Inc, Dated: October _' 1998 GMGEDDES 3064] 600847 v3 A- q 9 <_.d__ -------- "____~___'m__ No dealer, broker, salesperson or other person has been authorized by the Issuer, the Borrower or the Underwriter to give any information or to make any representations with respect to the Bonds other than those contained in this Private Placement Mernorandum, and, if given or made, such information or representations must not be relied upon as having been authorized by any of the foregoing. This Private Placement Memorandum does not constitute an offer to sell or the solicitation of an offer to buy nor shall there be any sale of the Bonds by any person in any jurisdiction in which such offer, solicitation or sale is not authorized or in which the person making such offer, solicitation or sale is not qualified to do so or to any person to whom it is unlawful to make such offer, solicitation or sale. The information herein has not been independently verified and is not guaranteed as to accuracy. The information and expressions of opinion stated herein are subject to change without notice. The delivery of this Private Placernent Memorandum shall not, under any circumstances, create any implication that there has been no change in the information or opinions set forth herein or in the affairs of the Issuer or any other parties described herein since the date hereof. The information set forth herein has been furnished by the Issuer and other sources which are believed to be reliable, but it is not guaranteed as to accuracy or completeness by, and is not to be construed as a representation by, the Underwriter. The information herein is subject to change without notice, and neither the delivery of this Private Placement Memorandum nor any sale made hereunder may, under any circumstances, create any implication that there has been no change in the affairs of the Issuer or the Borrower. References in this Private Placement Memorandum to the Indenture, the Loan Agreement, the Regulatory Agreement and other documents do not purport to be complete, and reference should be made to such documents for full and complete details of their contents. In reliance upon applicable exemptions, no registration statement relating to the Bonds has been filed with the United States Securities and Exchange Commission (the "Commission") or with any state securities agency, The Bonds have not been approved or disapproved by the Commission or any state securities agency, nor has the Commission or any state securities agency passed upon the accuracy or adequacy of this Private Placement Memorandum. Any representation to the contrary is a criminal offense. IN CONNECTION WITH THIS OFFERING, THE UNDERWRITER MAY OVERALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE BONDS OFFERED HEREBY AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME. /I-toO _.._..~,,-------.- ------~ TABLE OF CONTENTS Pal!e INTRODUCTION .........u.................................................... .........................................u...,.....................u.u.1 General....... u......,.............,...,..... u......,.... u.....,...............,................... u................,...................··············· I The Bonds.........................,...,.........,. u...,............ u,............,..,..........,...,.......·.····.·........,.··,· u...........·· u,..' 2 Loan to Borrower.. u..............,.............,.................,...........................··.,.......·.··········'···'···'············'······ ...2 Security for the Bonds.. u...,...,.............,..........................,.............,.........,...······,···,··········,···,···········,· u.'· 2 The Borrower........,.."..........,..,..,......,......,.,........,..,.........,··,· u,......,. u...,............,..........,.··,·········,··,··,····· 3 The Project.............,.............,......,...,..,.................,..,........................··,·.........·.,··············,,·· ................,.,..4 Management and Operation of Project. ...,..,..,...........,..,......... ....,...,.. ... ... ....,.u.................. ....,..,............. 4 Bondholders' Risks...........,.........................,..,...............,............,·.·...,.....·,·············,······················· .... u.. 4 Investor Letter.........,...,. u..........'...,........,..,.................,........... u,.........,...,..........··,···············,·············'···· 4 Miscellaneous........................,.........,............. u...............,.............,·........,. u.·...... u..··,··........,. u··......,...... 4 1HE BONDS..,............ .......,...... ......u.. ..........,..,..............,.....,.u...,.. ...u...,··'" ... ......u.. ........ .... .,.......u..,..,......4 GeneraL........,............... u..,............ u......................... u,........,. u,..................... u...,.............·,..........·.,········ 4 Assignment and Security.... u...,................... u..................,.........,.. u.........,..,..........,..························,····· 5 Limited Obligations.......,............................,......... u...,..........··,·.... u...,··,..........· u.......,. u,.............··········, 5 Mutilated, Lost, Stolen or Destroyed Bonds.u........,...,....u...,.u..,..........,..,.....,...,...,... ......u········· ...,..,.,.. 6 Registration and Transfer of Bonds; Persons Treated as Owners...u..uuu..........u.u...uuuuuu...u.u.u.uu6 Book-Entry Only ......,. u.............,. u............. u. u..,..,........ u. u..... u...............................'.··.......,....··,··········· 7 REDEMPTION OF BONDS.....u...........u.......u.. ......,............,........u... .......,......... ........,...... ...u.··,·············'u 9 Mandatory Redemption of Bonds........................................,........................,.........u..u...,...........·,···u.... 9 Optional Redemption of Bonds.. u. u' u....... u...........,................,......... u. u........ u...,.........·,············,··,····· 10 Mandatory Sinking Fund Redemption......,........................... ....... ....,...........u.....u...,...,............,.··,· ...... 10 Selection of Bonds to Be Redeemeduu...uuu....uuuuuu.uuuu..u..uuuu...uu.uu....uuu.u.u...uu.u.uu.u...11 Notice of Redemption ....,...........................,...............,........... ............,............,..... .... .... ......u.. ...........u. II Payment of Redernption Price. u................ u........,............,.............,...........·,..........,.··,······,·····,···········, 12 No Partial Redemption After Default u.uu..u.uuu.u......uuuu...uuuu...u.u..u..........u.......u.uuuu.....uuu 12 Special Redemption or Purchase uuuuu...uuuu...uuu...u..uuuu.uu.uuu...uuuuuu..uuuuu.....uuuuu..uu.12 SECURITY FOR 1HE BONDS uu.....uuuuuu.uuuu'u'uu.uu'u..uuu.u'u.uuuuu...uuu........uu....uuu.uuu....13 Trust Estate..................................,...........,.......................,..,......,...,··.......,··,··········,···,········ .............,..,. 13 Limited Liability of Issuer .uuuu.u'" uuu'....u..u .u'" u. uuuu" .u. uu'" .uuu uu...u uu uu .uuuuu," ..uu u...u·" 13 Letter of Credit u.u..... u.uu..uuuu uu.u" u. uuu,uuu. u. ....uuu uuu' u. uu .uuu.u u. ....... uu uu.u.... uuu.u uuu... 14 The Mortgage.u.. ............. ....,..... ............... ...,..............,..... ... ... .". .... ... .,........ ... ........,...... .,..... ...,.. ...,....... IS Project Revenues .,.... u...,.....................,..,..........,..,........,...,.........,···......,.·,···························,··············· 15 Reserve Fund.......... u.........,...............,..........,..............,.........,···.......,..'·········'··'······'················'··········· 16 Investments......,............,............,........,.......................................,...................,...,.......... ...,........,.....,.... 16 Additional Indebtedness,................. u.... u..............,........,..,.........,...,........·,··'...........··'· u...,. u. u..,......... 16 No Credit Enhancement......,.. .................. ..................,.. ..........,.. ... .... ....,..... ... ....,.. ....,...,..,........ ... .,. ..u.' 17 Limited Obligations .......... ... ....,..,.....,.. ...,..........,.. ...... ....,..... ... ....,.. ....,..,.. ... ........,.. ....... ....,.. ... ... ...,......17 ESTIMATED SOURCES AND USES OF FUNDS.uu...uuu....uuuu.uu.uu.uuu.uuuu.......uuuuu..uuu.u...18 CERTAIN BONDHOLDERS' RISKS u u. uuu'" uu.. u u' uuu.u.... u. u. uu u" u..u... ....u....· ...uu .u·......... u. u.uuu 18 Security; Subordinate Pledge ofRevenuesuu.uu.uuu.uu..u.u..u.u.uuu....u..u.uu..uuuu..u.....u..u......u.18 Risks of Real Estate Investment Generallyu.u.uuu.u,uuuuu.u.........u..u.......u.u.u..u..u.u....u.u.u.u.u...19 í /1-10 I ..._..-_.,------_..~._.----_..- Operation of the Project...,...............,..,......................................,.......,......,..............,............................ 20 Uninsured Losses...................................,...................,.....,...,........................................................ ........21 Certain Risks Associated with the Title Insurance ...............................................................................21 Certain Risks Associated with the Mortgage......................,.................................................................22 Enforceability of Remedies......,..,..,.....,........,.................,..,..........,...................................................... 23 Effect of Bankruptcy..........,...............,...................,.....,..,.........,...,...,................................................... 24 Lack of Financial Resources of the Borrower .......................................................................,.....,.......,24 Government Regulation of Project - Rental and Occupancy Restriction.............................................24 Lack of Market for Resale of the Bonds ....,.............,............................................................................24 Reserve Fund ..,...'.. ..........,......,..... ......... ............,.................,..,.. ....,...,...,..,.. .,......,..,.......,..,..................24 Reliance Upon Manager and Conflicts ofInteresL.............................................................................25 No Registration.........,................................................,...............,..........,..,.............................. ...........,..25 [Lack of Feasibility Study....................................................................,......,..........,......,......,................ 25 Environmental Matters...,..,......,..,.....,..,..,..,.....,...........,.....,..,...............................,................,..........,.. 25 No Rating on Bonds....,.........,.........,..,..,...................... ... ............................,...... .....................,.......,...., 25 Continuing Compliance with Certain Covenants .................................................................................25 Other Factors ..............................,.................,..,..............,.........,.......,................................................... 26 Lack of Audited Financial Statements ....,.. ..................,......................,....................................... .. ...... 26 Year 2000 Problem .,............ ......................,.............,..,..,.. ..........,... ... .............. ....................... ... ... ........ 26 Summary....,..,......,..,...,..,..,..,..,......,..............................................................,..,...,..,...,...,.. ...,...............26 THE ISSUER ............,..,.........,...,.....,..,........,.. ..................................... .......,......,......,...,......,...................... 26 PLAN OF FINANCING ....,........................... ...........................,......... ....,.. ... .,..,...... ........... ....... ........... ...... 27 Estimated Sources and Uses of Funds for Project Costs ......................................................................27 Tax-Exempt Financing ...................,..,......................... ........................,.. .......,...,..,...,.. .,....................... 28 THE BORROWER AND THE PROJECT ........................,........................................................,...............28 The Borrower ..,.....,.........,............,......................... ...... ................ ..............,...,.. ....,...............................28 The Project................,.........,........,..............,.....,..,........,..,....................................,......,..,.. ,..,..,..,....,..,.29 Property Management............... .....................,.................,..,......,..,....................,.........,..... .........,..,. ...,. 29 Rental Restrictions.................,...............,..........................................,......,..,............................... ...,......30 The Master Planned Community .....,..,..,..,..,............. ................,...... ....... ... ....,...,..,............ ......... ......... 30 Limited Recourse to Borrower ..........................,..,..,.....,.....,.. ........... ... .......,...... ....,......,........,..,..,..,.... 31 ENFORCEABILITY OF REMEDIES ....... ... ...... ...'..,.... ... ....,..,.. ... ... .... .... ... ....,...,......,...,......,.....,.....,.,...... 31 TAX MATIERS .,...............................,................'..,..............,..,..,..,............................,................,..........,..31 CERTAIN LEGAL MA TIERS ..................................................................................................................33 UNDERWRITING ...,...............,..,......,..,....,...............................,..,...,...,.........,.................,...............,.......,.33 VERIFICATION OF CASH FLOWS,................... .............. ..................... ..................... ....... .......,....... ....... 33 NO LITIGATION.. ................'..,........ ......... ......... ......,............. ....... .................................... ....... ........... ...... 34 NO RATING ...........,..,.....,......,..,...,.,...........,.............,.................,...,...,..,...,..,....................,...'.....,..,.......... 34 ADDITIONAL INFORMA TION ............................................................................................................... 34 ii ;1-IO;L __ __ _ ___~.___w..·... .. _.u._.,__.__..__. ___~_._.__. - -- ,----,....-.._....,.- --.... _._,-~.__.._--_._.__.~-----_._._-~---~,-_.__._-- APPENDIX A PROPOSED FORM OF BOND COUNSEL OPINION APPENDIX B THE INDENTURE APPENDIX C THE LOAN AGREEMENT APPENDIX D THE REGULA TORY AGREEMENT APPENDIX E TIlE MORTGAGE APPENDIX F FORM OF LETTER OF CREDIT APPENDIX G THE REIMBURSEMENT AGREEMENT APPENDIX H PROFORMA TITLE INSURANCE POLICY APPENDIX I FORM OF INVESTOR LETTERS APPENDIX J EXPECTED FORM OF EXTENDED USE AGREEMENT APPENDIX K SUMMARY OF APPRAISAL iii ~ -/03 ,...~ . - --.-..-.----...----.........-.-.-.--..--------- PRIVATE PLACEMENT MEMORANDUM $ . CITY OF CHULA VISTA, CALIFORNIA SUBORDINATE MULTIFAMILY HOUSING REVENUE BONDS SERIES 1998B (GATEWAY TOWN CENTER APARTMENTS) INTRODUCTION General This Private Placement Memorandurn, including the cover page and appendices hereto, is furnished in connection with the issuance and sale by the City of Chula Vista, California (the "Issuer") of $ · in aggregate principal amount of its Subordinate Multifamily Housing Revenue Bonds, Series 1998B (Gateway Town Center Apartments) (the "Bonds") The Bonds are being issued pursuant to a Trust Indenture dated as of October I, 1998 (the "Indenture") by and between the Issuer and State Street Bank and Trust Company of California, N.A., as trustee (the "Trustee"), and pursuant to Chapter 5 of Division 7 of Title I of the California Government Code, together with the provisions of Chapter 7 of Part 5 of Division 31 of the California Health and Safety Code, as the same may be amended (the "Act"). Certain capitalized tenus used in this Private Placement Memorandum are summarized in "APPENDIX B - THE INDENTURE" herein. THIS PRIVATE PLACEMENT MEMORANDUM IS FURNISHED SOLELY FOR THE PURPOSE OF CONSIDERATION OF AN INVESTMENT IN THE BONDS BY SOPHISTICATED INSTITUTIONAL INVESTORS WITH THE EXPERIENCE AND FINANCIAL EXPERTISE TO UNDERSTAND AND EVALUATE THE RISKS INHERENT IN THE INVESTMENT. THE BONDS ARE UNRATED. PURCHASE OF THE BONDS WILL CONSTITUTE AN INVESTMENT SUBJECT TO SIGNIFICANT RISKS, INCLUDING THE RISK OF NONPAYMENT OF PRINCIPAL AND INTEREST AND THE LOSS OF ALL OR PART OF THE INVESTMENT. THE BONDS ARE BEING ISSUED IN MINIMUM DENOMINATIONS OF $100,000 OR ANY INTEGRAL MULTIPLE OF $5,000 IN EXCESS THEREOF AND ARE SECURED SOLELY BY A MORTGAGE ON THE PROJECT AND CERTAIN AMOUNTS HELD UNDER THE INDENTURE AND CERTAIN OTHER SECURITY DESCRIBED HEREIN. THERE CAN BE NO ASSURANCE THAT THE PROJECT WILL BE COMPLETED AND RENTED IN A TIMELY AND SUCCESSFUL MANNER AND THAT THE OPERATING PERFORMANCE OF THE PROJECT WILL ASSURE THAT THERE WILL BE AVAILABLE TO THE TRUSTEE SUFFICIENT REVENUES TO PAY THE PRINCIPAL OF, PREMIUM (IF ANY) AND INTEREST ON THE BONDS AND TO AVOID A DEFAULT ON THE BONDS IN THE FUTURE. NEITHER THE ISSUER, THE BORROWER NOR THE UNDERWRITER HAVE MADE ANY REPRESENTATIONS WHATSOEVER REGARDING THE FUTURE PERFORMANCE OF THE PROJECT SEE "CERTAIN BONDHOLDERS' RISKS" HEREIN. The Bonds are being issued for the purpose of providing financing for the construction and development of a 440-unit multifamily rental housing project and related support facilities currently known as the Gateway Town Center Apartments (the "Project"). In addition, proceeds !Torn the sale of the Bonds will be used to fund a Reserve Fund for the Bonds and to pay certain costs in connection with the issuance of the Bonds, See "ESTIMATED SOURCES AND USES OF FUNDS" herein. . Preliminary, subject to change. /i-IDt/- ~--_.--.., +...........---.--..----..-.-....--.. -. --- -.....--.-.-.,-.-.+--------+-+-- The Project is subject to a Regulatory Agreement described under the caption "THE BORROWER AND THE PROJECT - Rental Restrictions - Regulatory Agreernent" herein. See also "APPENDIX D -THE REGULATORY AGREEMENT" herein. In addition, the Project is subject to an Extended Use Agreement required by the Code and the California Tax Credit Allocation Committee (the "Extended Use Agreement"), as described under the caption "THE BORROWER AND THE PROJECT - Rental Restrictions - Tax Credits" herein. The Regulatory Agreement and the Extended Use Agreement impose substantial restrictions on the operation of the Project, including (but not lirnited to) restrictions on the income of occupants and the amount of rent that may be charged. These restrictions may adversely affect the operations of the Project. Any failure of the Borrower to comply with the terms of the Regulatory Agreement or the Extended Use Agreement described herein may cause interest on the Bonds to be included in the gross income of the owners thereof for federal income tax purposes, possibly retroactively to the date of issuance of the Bonds, as well as prospectively. See TAX MATIERS" herein.. None of the Trustee, the Issuer or the Bondholders may cause an acceleration or redemption of the Bonds solely by reason of a default by the Borrower under the Regulatory Agreement or by reason of interest on the Bonds becoming includable in the gross income of the owners thereof for federal income tax purposes. In addition, the interest rate on the Bonds will not be adjusted in the event that interest payable on the Bonds becomes includable in the gross income of the owners thereof for federal income tax purposes. The Bonds The Bonds bear interest at the rates and shall mature on the dates and be issued in the amounts set forth on the cover page hereof. The Bonds are subject to redemption as described herein under the caption "REDEMPTION OF BONDS." For a more complete description of the Bonds, see "THE BONDS" and "REDEMPTION OF BONDS" herein. Loan to Borrower Pursuant to a Loan Agreement dated as of October I, 1998 (the "Loan Agreement"), by and among the Issuer, the Trustee and the Borrower, the Issuer will loan the proceeds from the sale of the Bonds to the Borrower (the "Loan"). The Loan will be evidenced by the Loan Agreement and secured by the Mortgage. Under the terms of the Loan Agreement, the Borrower has agreed to rnake loan payments to the Issuer in amounts sufficient to make payments of principal of and premium, if any, and interest on the Bonds. Under the Indenture, all of the Issuer's rights under the Loan Agreement (except for certain Reserved Rights of the Issuer) will be assigned to the Trustee for the benefit of the owners of the Bonds, See "APPENDIX C -- THE LOAN AGREEMENT" herein. The liability of the Borrower under the Loan Agreement is limited to the Borrower's interest in the Project and the amounts held in the funds and accounts held under the Indenture. Security for the Bonds The Mortgage. The Borrower will grant in favor of the Trustee, for the benefit of the registered owners of the Bonds (each, an "Owner"), a subordinate lien on and security interest in the Project evidenced by a Deed of Trust, Assignment of Rents and Security Agreement dated as of October I, 1998 (the "Mortgage') See "APPENDIX E -- THE MORTGAGE" herein. The Mortgage is subordinate to that certain multifarnily deed of trust, assignment of rents and security agreement executed by the Borrower in favor of the Issuer (the "Mortgage"). The Mortgage secures the Borrower's obligations under a rnortgage loan made by the Issuer to the Borrower concurrently with the Loan to provide 2 ~ - IDS" .._~._..- construction and permanent financing for the Project. Payments made under said mortgage loan secure the payment of principal of and interest on the City of Chula Vista, California, Multifamily Housing Revenue Bonds, Series 1998A (Gateway Town Center Apartments) (the "Series A Bonds") to be issued concurrently with the Bonds in an aggregate principal amount equal to $ . Reserve Fund The Bonds are also secured by a Debt Service Reserve Fund (the "Reserve Fund"). The Reserve Fund is initially funded from Bond proceeds in an amount equal to $ Amounts on deposit in the Reserve Fund for the Bonds will be used to pay the principal of and interest on the Bonds to the extent moneys on deposit in the Principal Account or Interest Account established with respect to the Bonds are insufficient therefor. So long as the Letter of Credit (as defined herein) is in effect, no amounts shall be transferred from the Debt Service Reserve Fund to the Bond Fund for payment of debt service until the Trustee has drawn under the Letter of Credit the full amount that may be drawn thereunder for the purpose of making payments on the Bonds. See "APPENDIX B - THE INDENTURE - Section 5.06 - Debt Service Schedule" herein for a description of the uses of moneys on deposit in the Reserve Fund. Pledge of Trust Estate. The Bonds are secured by a first lien on and pledge and assignment of a security interest in the Trust Estate. The Trust Estate includes (i) all right, title and interest of the Issuer in and to the Loan Agreement (except the Reserved Rights of the Issuer), (ii) all moneys and securities held by the Trustee, under the terms of the Indenture (except amounts on deposit in the Rebate Fund established thereunder, and (iii) any and all other property, rights and interest pledged as additional security for the Bonds. Under the Indenture, the Issuer has also pledged and assigned to the Trustee a security interest in moneys and securities on deposit in the Bond Fund and Reserve Fund established with respect to the Bonds for the benefit of the Owner thereof. See "SECURITY FOR THE BONDS" herein. The Letter of Credit. In addition to the other security provided under the Indenture, the Bonds will initially be secured by an irrevocable standby letter of credit (the "Letter of Credit") issued by Bank of America National Trust and Savings Association (the "Bank") pursuant to a Reimbursement Agreement, dated as of October I, 1998, by and between the Borrower and the Bank (the "Reimbursement Agreement"). Under the tenns of the Letter of Credit, the Trustee may draw on the Letter of Credit for payment of the principal of and interest on and purchase price of the Bonds to the extent moneys are not available therefor in the funds and accounts held under the Indenture for that purpose. The Letter of Credit expires on , _ (i.e. _ months following the date of issuance of the Letter of Credit, which shall be on or about the Closing Date) but is subject to extension and earlier tennination in certain events. Upon the termination of the Letter of Credit the Bonds will not be secured by any credit enhancement. See "SECURITY FOR THE BONDS - Letter of Credit," "APPENDIX F - FORM OF LETfER OF CREDIT" and "APPENDIX G - THE REIMBURSEMENT AGREEMENT" herein. The Borrower Gateway Town Center, LP., a California limited partnership (the "Borrower"), is a single asset limited partnership that was created to own and develop the Project. See "THE BORROWER AND THE PROJECT" for a more detailed description of the organization and experience of the Borrower. * Preliminary, subject to change. 3 ;1-10 b -- "-_._~_.- ----.-.-.--.---"- The Project The Project, known as Gateway Town Center Apartments, will consist of 440 apartment units and will be located in the City of Chula Vista, California. See "THE BORROWER AND THE PROJECT" for a more detailed description of the Project. Management and Operation of Project Insignia Residential Group of California, Inc., an affiliate of Insignia Financial Group, is expected to provide management services for the Project. See "THE BORROWER AND THE PROJECT _ Property Management" herein for a more detailed description of the property managernent and its duties. Bondholders' Risks An investment in the Bonds is speculative and is subject to certain risks as described herein under the caption "CERTAIN BONDHOLDERS' RISKS" herein. Investor Letter The initial purchaser of the Bonds will be required to deliver an Investor Letter in one of the forms attached as Appendix I hereto. Miscellaneous This Private Placement Memorandum and the appendices attached hereto contain descriptions of, among other matters, the Bonds, the Borrower, the Project, the Indenture, the Loan Agreement, the Regulatory Agreement and the Mortgage. Such descriptions and information do not purport to be cornprehensive or definitive. Definitions of certain terms and words used in this Private Placement Memorandum and not otherwise defmed are set forth in Appendices to this Private Placernent Memorandum. All references herein to any agreements are qualified in their entirety by reference to such agreements and documents, and all references herein to the Bonds are qualified in their entirety by reference to the form thereof included in the Indenture. Copies of such agreements and all other docurnents referenced herein are on file with the Issuer. THE BONDS General The Bonds will be dated, bear interest at the respective rates, payable on the dates, and mature on the respective dates set forth on the cover of this Private Placement Memorandum. The Bonds shall bear interest from the Interest Payrnent Date preceding the date of authentication thereof, unless the date of such authentication shall be an Interest Payment Date, in which case they shall bear interest from such Interest Payment Date; provided that if, as shown by the records of the Trustee, interest on the Bonds shall be in default, Bonds issued in exchange for or upon the registration of transfer of Bonds shall bear interest from the date to which interest has been paid in full on the Bonds, or if no interest has been paid on the Bonds, from their date. The principal of and premium, if any, on the Bonds shall be payable, when due, in lawful rnoney of the United States of America at the principal corporate trust office of the Trustee upon presentation and 4 ;4-107 surrender of such Bonds. Payment of interest on the Bonds shall be made on each Interest Payment Date to the Owner thereof as of the Record Date, by check mailed ftrst class by the Trustee on such Interest Payment Date to the Owner at its address as it appears on the regis1ration books rnaintained by or on behalf of the Issuer or at such other address as is furnished to the Trustee in writing by such Owner prior to such Record Date. Payment of interest on any Bonds may, upon written request of any Owner of such Bonds in an aggregate principal amount of at least $1,000,000, be 1ransmitted by wire 1ransfer of immediately available funds on the Interest Payment Date to such Owner to the bank account nurnber at a bank located within the United States on file with the Trustee as of the Record Date. Any such wire 1ransfer request shall continue in force until revoked in writing by such Owner to the Trustee, and to be effective as to any interest payment such revocation must be received by the Trustee prior to the applicable Record Date. Assignment and Security Pursuant to the Indenture, the Issuer, in order to secure the payment of the principal of, premium, if any, and interest on the Bonds and to secure the performance and observance by the Issuer of all the covenants expressed or implied in the Indenture and in the Bonds, shall bargain, sell, convey, mortgage, assign, pledge and grant, a security interest in the Trust Estate to the Trustee, and its successors in trust and assigns, including all of the Issuer's right, title and interest in and to the following property: (a) The Loan Agreernent, including all extensions and renewals of the terms thereof, if any (except for the Reserved Rights of the Issuer), including, but not limited to, the present and continuing right to make claim for, collect, receive and receipt for any of the sums, amounts, income, revenues, issues and proftts and any other sums of money payable or receivable under the Loan Agreement, to bring actions and proceedings thereunder or for the enforcement thereof, and to do any and all things which the Issuer is or may become entitled to do under the Loan Agreement; (b) All moneys and securities from time to time held by the Trustee under the terms of the Indenture (except amounts on deposit in the Rebate Fund and except that moneys and securities on deposit in the Funds and Accounts established with respect to the Bonds shall be held solely for the Owners of such Bonds); and (c) Any and all other property rights and interests of every kind and nature from time to time hereafter by delivery or by writing of any kind granted, sold, conveyed, 1ransferred, mortgaged, pledged, or otherwise subjected to the Indenture, as and for additional security herewith, by the Issuer or any other person on its behalf or with its written consent. Limited Obligations The Bonds shall not be general obligations of the Issuer but, as provided in the Act, shall be limited, special obligations of the Issuer, repayable solely from payments of principal and interest on account of loans funded thereby, which shall be used for no other purpose than to pay the principal of, and interest on the Bonds, except as may be otherwise expressly authorized in the Indenture. EACH AND EVERY COVENANT MADE IN THE INDENTURE BY THE ISSUER IS PREDICATED UPON THE CONDITION THAT THE ISSUER WILL NOT IN ANY EVENT BE LIABLE FOR THE PAYMENT OF THE PRINCIPAL OF, PREMIUM, IF ANY, OR INTEREST ON THE BONDS, OR OTHER FEES AND EXPENSES PROVIDED UNDER THE INDENTURE OR THE PERFORMANCE OF ANY PLEDGE, SECURITY AGREEMENT, OBLIGATION OR AGREEMENT CREATED BY OR ARISING UNDER THE INDENTURE OR THE BONDS FROM ANY PROPERTY OTHER THAN THE TRUST ESTATE, AND THAT NEITHER THE BONDS NOR ANY SUCH 5 A-log ,-----.-------.------- . ,--.- .-~-----_.- - ...-- ... ._-"_.-..-~_._--~---~-_._-~-_., OBLIGATION OR AGREEMENT OF THE ISSUER WILL BE CONSTRUED TO CONSTITUTE AN INDEBTEDNESS OF THE ISSUER WITHIN THE MEANING OF ANY CONSTITUTIONAL OR STATUTORY PROVISION WHATSOEVER, OR AS A PLEDGE OF THE GENERAL CREDIT, FAITH OR TAXING POWER OF THE ISSUER NEITHER THE MEMBERS OF THE ISSUER NOR ANY PERSON EXECUTING THE BONDS SHALL BE PERSONALLY LIABLE FOR THE BONDS OR BE SUBJECT TO ANY PERSONAL LIABILITY OR ACCOUNT ABILITY BY REASON OF THE ISSUANCE THEREOF. Mutilated, Lost, Stolen or Destroyed Bonds In the event any Bond is mutilated, lost, stolen or destroyed, the Issuer may execute and the Trustee may authenticate and deliver a new Bond of like date, rnaturity and denomination as the Bond mutilated, lost, stolen or destroyed; provided that, in the case of any mutilated Bond, such mutilated Bond shall fIrst be surrendered to the Trustee, and, in the case of any lost, stolen or destroyed Bond, there shall be fIrst furnished to the Trustee evidence of such loss, theft or destruction satisfactory to the Trustee, together with indemnity to the Issuer and the Trustee satisfactory to thern. In the event any such Bond shall be about to mature or have matured or been called for redernption, instead of issuing a duplicate Bond, the Issuer may pay the same without surrender thereof. The Issuer and the Trustee may charge the Owner of such Bond their reasonable fees and expenses incurred pursuant to the provisions described in the Indenture. Registration and Transfer of Bonds; Persons Treated as Owners The Issuer shall cause books for the registration and for the transfer of the Bonds as provided in the Indenture to be kept by the Trustee. At reasonable times and under reasonable regulations established by the Trustee and subject to applicable law providing to the contrary, such list may be inspected and by the Issuer, the Trustee, the Borrower or the Owners of 15% or more in aggregate of the Bonds, or a designated representative of such Owners. Bonds may only be sold to and resold to qualifIed institutional buyers of the type described in the Indenture ("QualifIed Institutional Buyers"). Therefore, the Trustee is prohibited trom registering the ownership or transfer of ownership of any Bond to other than a QualifIed Institutional Buyer, and as evidence thereto, the Trustee may not register the ownership or transfer of any Bond unless it has received a certifIcate trom the proposed owner in the form set forth in Appendix I hereto. Promptly following surrender for transfer of any Bond at its principal corporate trust offIce, the Trustee shall enter the name and address of the transferee upon the registration books of the Issuer and shall deliver to the transferee a new fully authenticated and registered Bond or Bonds in the name of the transferee, such new Bond or Bonds to be of Authorized Denominations and of the same maturity and for the aggregate principal amount which the new Owner is entitled to receive. In addition, promptly following surrender of any Bond at the principal corporate trust offIce of the Trustee, duly endorsed in blank, such Bond may at the option of the Owner thereof, be exchanged for a Bond or Bonds in an equal aggregate principal amount of Authorized Denominations and of the same form and tenor of the Bond or Bonds being exchanged. All Bonds presented for transfer, exchange, redernption or payment shall (if so required by the Issuer or the Trustee) be accompanied by a written instrument or instrurnents of transfer, in form and with guaranty of signature as set forth in the form of Bond or as may be satisfactory to the Trustee, duly executed by the Owner or by its duly authorized attorney. 6 /i-101 -- - --- ~ ~.._,,------._------_._..._,--- The Trustee also may require payment from the Owner of a sum sufficient to cover any tax or other governmental fee or charge that may be imposed in relation thereto. Such taxes, fees and charges shall be paid before any such new Bond shall be delivered. The cost of printing Bonds and any services rendered or expenses incurred by the Trustee in connection with any transfer shall be paid by the Borrower. The Issuer and the Trustee shall not be required (a) to issue or register the transfer of any Bonds during any period beginning on a Record Date with respect thereto and ending at the close of business on the Business Day preceding the next Interest Payment Date or (b) to transfer any Bonds selected, called or being called for redemption in whole or in part. The Issuer, the Trustee and the Borrower may treat the person in whose name a Bond is registered on the registration books of the Issuer maintained by the Trustee as the absolute owner thereof for all purposes, whether or not such Bond shall be overdue, and shall not be bound by any notice to the contrary. Book-Entry Only The Bonds will be issued and delivered on the date of delivery thereof as fully-registered bonds in the name of Cede & Co., as nominee ofDTC, as Owner of the Bonds. Purchasers of such Bonds will not receive physical delivery of bond certificates. For purposes of this Private Placement Memorandum, so long as all of the Bonds are immobilized in the custody of DTC, references to Bondholders, holders, Bondowners or Owners means DTC or its nominee. The infonnation in this section concerning DTC and the DTC book-entry system has been obtained from DTC and none of the parties mentioned herein takes any responsibility for the accuracy or cornpleteness thereof. The Beneficial Owners (as defined herein) should confinn the following infonnation with DTC or the DTC Participants. DTC will act as securities depository for the Bonds. The Bonds will be issued as fully-registered securities in the name of Cede & Co., DTC's partnership norninee ("Cede"). One fully-registered Bond certificate will be issued for the Bonds in the aggregate principal arnount of each maturity, and will be deposited with DTC. DTC 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 Systern, a "clearing corporation" within the meaning of the New York Unifornl Commercial Code and a "clearing agency" registered pursuant to the provisions of Section 17 A of the Securities Exchange Act of 1934. DTC holds securities that its participants (the "Participants") deposit with DTC. DTC also facilitates the settlement among Participants of securities transactions, such as transfers and pledges, in deposited securities through electronic computerized book-entry changes in Participants' accounts, thereby eliminating the need for physical movement of securities certificates. Direct Participants include securities brokers and dealers, banks, trust companies, clearing corporations and certain other organizations. DTC is owned by a number of its Direct Participants and by the New York Stock Exchange, Inc., the American Stock Exchange, Inc., and the National Association of Securities Dealers, Inc. Access to the DTC system is also available to others such as securities brokers and dealers, banks and trust companies that clear through or maintain a custodial relationship with a Direct Participant, either directly or indirectly ("Indirect Participants"). The Rules applicable to DTC and its Participants are on file with the Securities and Exchange Commission. 7 ¡:J-lfO .-... ,m_~~__..__^_'·_'·_··__·_··__·~·~______·_____·_____·__ - Purchases of Bonds under the DTC system must be made by or through Direct Participants, which will receive a credit for the Bonds on DTC's records. The ownership interest of each actual purchaser of each Bond ("Beneficial Owner") is in turn to be recorded on the Direct and Indirect Participants' records. Beneficial Owners will not receive written confinnation from DTC of their purchase, but Beneficial Owners are expected to receive written confmnations 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 Bonds are to be accomplished by entries made on the books of Participants acting on behalf of Beneficial Owners. Beneficial Owners will not receive certificates representing their ownership interests in Bonds, except in the event that use of the book-entry systern for the Bonds is discontinued. To facilitate subsequent transfers, all Bonds deposited by Participants with DTC are registered in the name of DTC's partnership nominee, Cede. The deposit of Bonds with DTC and their registration in the name of Cede effect no change in beneficial ownership. DTC has no knowledge of the actual Beneficial Owners of the Bonds; DTC's records reflect only the identity of the Direct Participants to whose accounts such Bonds are credited, which rnay or may not be the Beneficial Owners. The Participants will remain responsible for keeping account of their holdings on behalf of their custorners. The giving 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. Redemption notices shall be sent to Cede. If less than all of the Bonds 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 will consent or vote with respect to Bonds. Under its usual procedures, DTC mails an Omnibus Proxy to the Issuer as soon as possible after the record date. The Omnibus Proxy assigns Cede's consenting or voting rights to those Direct Participants to whose accounts the Bonds are credited on the record date identified in a listing attached to the Omnibus Proxy. Principal and interest payments on the Bonds will be made to DTC DTC's practice is to credit Direct Participants' accounts on a payment date in accordance with their respective holdings shown on DTC's records unless DTC has reason to believe that it will not receive payment on such payment date. Payments by Participants to Beneficial Owners will be governed by standing instructions and customary practices, as in 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 ofDTC, the Trustee or the Issuer, subject to any statutory or regulatory requirements as may be in effect from time to time. Payment of principal and interest to DTC is the responsibility of the Trustee or the Issuer, disbursement of such payments to Direct Participants shall be the responsibility of DTC, and disbursement of such payments to the Beneficial Owners shall be the responsibility of Direct and Indirect Participants. The requirernent for physical delivery of Bonds in connection with a demand for purchase or a mandatory purchase will be deemed satisfied when the ownership rights in the Bonds are transferred by Direct Participants on DTC's records. NEITHER THE ISSUER NOR THE TRUSTEE WILL HAVE ANY RESPONSIBILITY OR OBLIGATION TO SUCH PARTICIPANTS, OR TO THE PERSONS FOR WHOM THEY ACT AS NOMINEES WITH RESPECT TO THE BONDS, OR TO ANY BENEFICIAL OWNER IN RESPECT OF THE ACCURACY OF ANY RECORDS MAINTAINED BY DTC OR ANY PARTICIPANT OR INDIRECT PARTICIPANT, THE PAYMENT BY DTC OR ANY PARTICIPANT OR INDIRECT PARTICIPANT OF ANY AMOUNT IN RESPECT OF THE PRINCIPAL OR REDEMPTION PRICE OR PURCHASE PRICE OF OR INTEREST ON THE BONDS, ANY NOTICE WHICH IS 8 ¡1 -III --.--- _._..._----~--_._---_._._.,._---_. - PERMUTED OR REQUIRED TO BE GIVEN BY DTC OR ANY DIRECT PARTICIPANT OR INDIRECT PARTICIPANT TO BONDOWNERS UNDER THE INDENTURE, THE SELECTION BY DTC OR ANY PARTICIPANT OR INDIRECT PARTICIPANT OF ANY PERSON TO RECEIVE PAYMENT IN THE EVENT OF A PARTIAL REDEMPTION OF THE BONDS, OR OTHER ACTION TAKEN BY DTC AS REGISTERED BONDOWNER. DTC may discontinue providing its services as securities depository with respect to the Bonds at any time by giving reasonable notice to the Issuer and the Trustee. Under such circumstances, in the event that a successor securities depository is not obtained, Bond certificates are required to be printed and delivered as described in the Indenture. The Issuer or the Borrower, with the consent of the other, but without the consent of any other person, may tenninate the services of DTC with respect to the Bonds. If the Borrower is in default under any of the Bond Documents or Mortgage Loan Documents, the Issuer shall not be required to obtain the consent of the Borrower if it elects to terminate the services of DTC. Upon the discontinuance or termination of the services of DTC with respect to the Bonds pursuant to the foregoing provisions, unless a substitute securities depository is appointed to undertake the functions of DTC under the Indenture, the Trustee, at the expense of the Borrower, is obligated to deliver Bond certificates to the Beneficial Owners of the Bonds, as described in the Indenture, and the Bonds shall no longer be restricted to being registered in the Bond Register in the name of Cede & Co. as nominee of DTC, but may be registered in whatever name or names Bond Owners transferring or exchanging Bonds shall designate to the Trustee in writing, in accordance with the provisions of the Indenture. The Issuer may determine that the Bonds shall be registered in the narne of and deposited with a successor depository operating a securities depository system, qualified to act as such under Section 17(a) of the Securities Exchange Act of 1934, as arnended, as may be acceptable to the Issuer, or such depository's agent or designee. For purposes of this Private Placement Memorandum, at any tirne after replacernent Bonds have been issued, references to Owners shall mean the registered owners of such replacernent Bonds and references to such Bonds shall mean such replacement Bonds. REDEMPTION OF BONDS Mandatory Redemption of Bonds (a) Bonds shall be called for redemption (1) in the event the Project or any portion thereof is damaged or destroyed or taken in a condemnation proceeding and Net Proceeds resulting therefrom are in an amount equal to at least $100,000 and the Borrower pursuant to the Loan Agreement has elected to use the Net Proceeds to redeem such Bonds, (2) in the event the Borrower exercises its option to terminate the Loan Agreement pursuant to the provisions thereof (and cause all of the Bonds to be redeemed as provided in the Loan Agreement), (3) in the event a demand has been made that the Borrower prepay all or any portion of the Loan following a "Determination of Taxability" or any other "Default" under the Loan Agreement or (4) upon receipt by the Trustee from the Bank of notice that an event of default has occurred under the Reimbursement Agreernent and requesting that the Trustee call the Bonds for redemption.. (b) The Bonds shall be subject to redernption in part on the earliest practicable Interest Payment Date for which notice of redemption may be given pursuant to the Indenture after the Cornpletion Date, at a price equal to the principal amount of Bonds redeerned plus interest accrued thereon to the date fixed for redemption without premium, in a principal amount as nearly equal as possible to, but not more than the amount transferred by the Trustee from the Construction Account to the respective Bond Fund following the Completion Date as provided in the Indenture. 9 /1- / fa . , /. . n...- - - -- - -" -,_._._~~-----,--,-- (c) If called for redemption at any time pursuant to (a) or (b) above, the Bonds to be redeerned shall be subject to redemption by the Issuer prior to maturity, in whole at any time or (in the case ofredernption pursuant to clause (a)(l) or (b) above) in part on any Interest Payment Date (less than all of such Bonds to be selected in accordance with the provisions of the Indenture (as described under the caption "Selection of Bonds to be Redeemed" below» at a redemption price equal to 100% of the principal amount thereof plus accrued interest to the redemption date; such redemption date, in the case of redemption pursuant to the provisions described in clause (a)(3) or (a)(4) above, to be the earliest practicable date, as determined by the Trustee, following acceleration of amounts due under the Loan as described in (a)(3) or following receipt of the notice described in (a)(4) above. Optional Redemption of Bonds The Bonds are subject to optional redemption by the Issuer, at the direction of the Borrower, on or after June I, 2008, in whole or in part at any time, at a redemption price (expressed as a percentage of principal amount) plus accrued interest as follows: Redemption Dates (inclusive) Redemption Price June I, 2008 through May 31, 2009 102% June 1,2009 through May 31, 2010 101% June I, 20 I 0 and thereafter 100% Notwithstanding anything to the contrary in the Indenture, if all Bonds are called for optional redemption pursuant to the optional redemption provisions of the Indenture, then upon written direction from the Issuer to the Trustee on or before the proposed redemption date, all or any portion of the Bonds may remain Outstanding, shall not be canceled by the Trustee, and shall be rernarketed on the proposed redemption date, all as set forth in a supplemental indenture executed and delivered pursuant to the Indenture. Mandatory Sinking Fund Redemption The Bonds are subject to mandatory sinking fund redemption at a redemption price equal to 100% of the principal arnount thereof on June I and December I of each year and in the principal amount shown below: 10 j1 -/ / 3 ---- ._-_...._.~.".....- .____n __ ________...____________..______ Date Amount Date Amount *Maturity . The amounts set forth above shall be reduced pro rata in the event of any redemption of Bonds in part pursuant to a rnandatory or optional redernption of the Bonds as set forth in the Indenture. Selection of Bonds to Be Redeemed Bonds may be redeerned in whole or in part, but no part of any Bond shall be redeerned by an amount less than $5,000. Ifless than all of the Bonds are being redeemed: (i) the principal amount of the Bonds to be redeemed shall be designated by the Borrower in writing to the Trustee; and (ii) the particular Bonds or portions thereof to be redeemed shall be selected by the Trustee by lot, provided that the remaining Bonds shall be in Authorized Denominations. If it is determined that less than all of the principal amount represented by any Bond is to be called for redemption, then, following notice of intention to redeem such principal amount, the Owner thereof shall surrender such Bond to the Trustee on or before the applicable redemption date for (a) payrnent on the redemption date to such Owner of the redemption price of the amount called for redernption and (b) delivery to such Owner of a new Bond or Bonds in the aggregate principal amount of the unredeemed balance of the principal amount of such Bond, which shall be an Authorized Denomination. A new Bond representing the unredeemed balance of such Bond shall be issued to the Owner thereof, without charge therefor. If the Owner of any Bond or integral multiple of the Authorized Denornination selected for redemption shall fail to present such Bond to the Trustee for payment and exchange as aforesaid, such Bond shall, nevertheless, become due and payable on the date fixed for redemption to the extent of the amount called for redemption (and to that extent only) and interest shall cease to accrue ITom the date fixed for redemption. Notice of Redemption In the event any of the Bonds are called for redemption, the Trustee shall give notice, in the name of the Issuer, of the redemption of such Bonds, which notice shall (i) specify the Bonds to be redeemed, 11 /Î-II'/ "- ~,-- --------------------.--.-..,..-.,.- -- --.-._..-~--~-'._--"-".- the redemption date, the redemption price and the place or places where amounts due upon such redemption will be payable (which shall be the principal corporate trust office of the Trustee) and, if less than all of the Bonds are to be redeerned, the numbers of the Bonds, and the portions of the Bonds, to be so redeemed, (ii) state any condition to such redemption and (iii) state that on the redemption date, and upon the satisfaction of any such condition, the Bonds to be redeemed shall cease to bear interest. Such notice may set forth any additional information relating to such redemption. Such notice shall be given by fIrst class mail to the Owners of the Bonds to be redeemed, at least thirty (30) days but no more than sixty (60) days prior to the date fIxed for redemption, except that, in the case of redemption following a default under the Loan Agreement, such notice may be given up to the Business Day before the date fIxed for redemption. If a notice of redemption shall be unconditional, or if the conditions of a conditional notice of redemption shall have been satisfIed, then upon presentation and surrender of the Bonds so called for redemption at the place or places of payment, such Bonds shall be redeemed. Any Bonds which have been duly selected for redernption and which are deemed to be paid in accordance with the Indenture shall cease to bear interest on the specifIed redemption date. Payment of Redemption Priee For the redemption of any of the Bonds, the Issuer shall cause to be deposited in the Special Redemption Account of the Bond Fund, out of any moneys constituting the Trust Estate, including Net Proceeds available for such purpose pursuant to the Loan Agreement, or otherwise, an amount sufficient to pay the principal of, premium, if any, and interest to become due on the date fIxed for such redemption. The obligatian of the Issuer to cause any such deposit to be made under the Indenture shall be reduced by the amount of moneys in such Special Redemption Account available for and used on such redemption date for payment of the principal of, premium, if any, and accrued interest on the Bonds to be redeemed. No Partial Redemption After Default Anything in the Indenture to the contrary notwithstanding, if there has occurred and is continuing an Event of Default under the Indenture (see "APPENDIX B -- THE INDENTURE - ARTICLE VIII - DEFAULTS AND REMEDIES") with respect to the Bonds, there shall be no redernption of less than all of such Bonds Outstanding. Special Redemption or Pnrchase The Owners of the Bonds shall have the right to tender their Bonds to the Trustee, and to receive payment of the principal amount thereof plus interest accrued thereon to the date of such tender (the "Tender Date"), as follows: (a) on the date fIve (5) days before the tennination date of the Letter of Credit, including any extensions thereof, unless on or before such Tender Date the Trustee receives the following: (I) a completion certifIcate as described in the Loan Agreement and a certifIcate of the Borrower (the "CertifIcate") to the effect that the Borrower retains ownership and control of the Project and has entered into a sufficient number of fully executed tenant rental agreernents, each providing that the respective tenant has the right to reside in an assigned Project unit for a tenn of not less than [six months] commencing not later than the date of the CertifIcate, so that the sum of monthly rents payable by such tenants will be not less than $ ; and (2) copies of any executed tenant rental agreements requested by any BenefIcial Owner of a majority of the Bonds. The conditions set forth in clauses (I) and (2), inclusive, immediately above are collectively referred to as the "Release Conditions," and may be satisfIed at any time prior to the Tender Date; or 12 /l-II~ ,~._, " -..--- _.___..___'''"''_.__.·_'___.w.'_,.___··_____ (b) on the date forty (40) days after the Trustee receives notice that the credit rating of the Bank has been reduced below investment grade, unless within thirty (30) days after receiving such notice the Bank, in its sole discretion, has (i) deposited Govemrnental Obligations having a market value equal to the stated amount of the Letter of Credit, with the Trustee or a third party collateral agent acceptable to the Trustee or (ii) provided for the delivery of a confinuing letter of credit to the Trustee £rom a bank having a rating of at least "A" or its equivalent £rom Moody's or S&P. In order to receive payment pursuant to a tender of Bonds, the Owner of any Bonds for which payment is to be received shall deliver such Bonds to the Trustee not later than the Tender Date. Upon such tender, the Bank shall have the option to purchase such Bonds or to direct the Trustee to redeem the same, in each case with amounts drawn under the Letter of Credit. The Trustee is under the Indenture directed to draw upon the Letter of Credit in accordance with its tenus to effect such purchase or redemption, as specified by the Bank. In the absence of an election by the Bank, the Trustee shall apply the amount so drawn to purchase such Bonds for the account of the Bank. In the event any Owner of Bonds fails to tender its Bonds before the Tender Date, such Bonds shall' remain Outstanding without any further right of tender. In addition to the foregoing, the Bank shall have the right to purchase any Bonds that are called for redemption, which shall then be purchased and not redeemed; and the Trustee is under the Indenture directed to draw upon the Letter of Credit to effect such purchase upon notice ITom the Bank of such election at least ten (10) days before the redemption date for such Bonds. Any Bonds so purchased by or for the account of the Bank shall remain outstanding with no further right of tender and with no change in the interest rate or other terms of the Bonds. Not less than ten (10) days before the Tender Date (unless the Letter of Credit has been released as provided above) the Trustee shall give written notice to each Owner of Bonds, in the same manner that notices of redemption are required to be given, specif'ying the Tender Date and stating (a) that upon delivery of such Bonds to the Trustee not later than the Tender Date, such Owner shall receive payment of the principal amount thereof plus accrued interest thereon to the Tender Date; and (b) that any Bonds not so delivered shall remain Outstanding without any further right of tender. SECURITY FOR THE BONDS Trust Estate The Bonds are secured by a pledge and assignment of and a security interest in the Trust Estate, including (i) all right, title and interest of the Issuer in and to the Loan Agreement (except certain rights to payment of fees, expenses and indemnification), (ii) all moneys and securities held by the Trustee under the Indenture (except amounts on deposit in the Rebate Fund established thereunder, and except that moneys and securities on deposit in the Funds and Accounts established with respect to the Bonds shall be held solely for the benefit of the owners of such Bonds) and (iii) any and all other property, rights and interest pledged as additional security for the Bonds. Limited Liability orIssuer THE ISSUER WILL NOT IN ANY EVENT BE LIABLE FOR THE PAYMENT OF THE PRINCIPAL OF, PREMIUM, IF ANY, OR INTEREST ON THE BONDS, OR OTHER FEES AND EXPENSES PROVIDED UNDER THE INDENTURE OR THE PERFORMANCE OF ANY PLEDGE, SECURITY AGREEMENT, OBLIGATION OR AGREEMENT CREATED BY OR ARISING UNDER THE INDENTURE OR THE BONDS FROM ANY PROPERTY OTHER THAN THE TRUST ESTATE, AND NEITHER THE BONDS NOR ANY SUCH OBLIGATION OR AGREEMENT OF THE ISSUER WILL BE CONSTRUED TO CONSTITUTE AN INDEBTEDNESS OF THE ISSUER WITHIN THE MEANING OF ANY CONSTITUTIONAL OR STATUTORY PROVISION 13 /1 -/ (t -- - ---.....---..---...-. -_.~_..- -...,--..-... ....._...-._--_.__._..._--,...__..----~,--_._.._- WHATSOEVER, OR AS A PLEDGE OF THE GENERAL CREDIT, FAITH OR TAXING POWER OF THE ISSUER. Letter of Credit The Bonds will initially be secured by an irrevocable standby letter of credit (the "Letter of Credit") issued by Bank of America National Trust and Savings Association (together with any successor to the business thereof or any issuer of a substitute Letter of Credit, the "Bank") pursuant to a Reimbursement Agreement, dated as of October I, 1998, between the Borrower and the Bank (the "Reimbursement Agreement"). The Letter of Credit will secure the tirnely payment of the principal of, interest on, and purchase price of the Bonds. The Reimbursement Agreement provides that on or before the date of issuance of the Bonds, the Bank will issue the Letter ùf Credit to the Trustee in an amount equal to $ (the "Maximum Available Credit") of which $ will be available to the Trustee to pay the aggregate principal of the Bonds at maturity or upon redemption or acceleration or to pay the portion of the purchase price of Bonds, representing the principal amount of Bonds, excluding the Reserve Fund in the amount of $ , and $ will be available to pay (i) interest on the Bonds and (ii) monthly payments due on the Loan. The Maximum Available Credit is subject to reduction and reinstatement in accordance with the terms of the Letter of Credit. The Letter of Credit will be delivered and will be effective immediately upon the issuance of the Bonds. The Letter of Credit shall expire on the earliest of (i) the close of business on , - (such date as extended in the manner provided below in this paragraph being called the "Stated Expiration Date"), (ii) when any draft accompanied by the Borrower's certification is honored and paid by the Bank for redemption or payment of a tender purchase price of all of the Outstanding Bonds pursuant to certain drawings as set forth in the Letter of Credit, (iii) upon the Bank's receipt of notice from the Trustee that no Bonds remain outstanding or (iv) the fifteenth (15th) calendar day after the receipt by the Trustee of written notice from the Bank, that an Event of Default under and as defmed in the Reimbursement Agreement has occurred and is continuing. In addition, the Trustee may cancel the Letter of Credit upon a special redemption or purchase of the Bonds under the conditions set forth in the Indenture. As provided in the Letter of Credit and Reimbursement Agreement and in accordance with the terms and conditions thereof, the Bank, at the Borrower's request, may consent to an extension of the Stated Expiration Date to a date not later than , _' unless the Beneficial Owners of a majority in principal amount of the Bonds consent to a later date, which consent shall not be unreasonably withheld. The Indenture directs that so long as the Letter of Credit is outstanding and to the extent that funds available for payment of accrued and unpaid interest on the Bonds are not deposited in the Interest Account, if by the fifteenth day of any month thereafter the Trustee has not received from the Borrower the payment due on the Loan on the first day of such month, the Trustee shall draw on the Letter of Credit in accordance with its terms in an amount equal to any such deficiency. The Trustee shall also draw on the Letter of Credit in the event of a special redernption or purchase as described herein under the caption "REDEMPTION OF BONDS-Special Redemption or Purchase." In addition, the Trustee shall draw on the Letter of Credit (i) in the amount necessary to redeem Bonds pursuant to a mandatory redemption of the Bonds as described in (a)(3) or (a)(4) herein under the caption "REDEMPTION OF BONDS- Mandatory Redemption of Bonds," taking into account any other funds available to the Trustee under the Indenture; (ii) in the amount necessary to accelerate payment of the Bonds pursuant to the Indenture, taking into account any other funds available to the Trustee under the Indenture; and (iii) in the amount of any payment made to the Owners of Bonds within 91 days before the filing of a bankruptcy proceeding by or against the Borrower in any federal or state court to the extent the Trustee has received written notice of such filing. 14 ,/1-1/1 _ _~__^·._.·".~._,..m_w·_,___ All arnounts drawn under the Letter of Credit shall be deposited in a separate trust account created and ordered established separate from all other funds and accounts under the Indenture, designated the "Letter of Credit Account." Amounts on deposit in the Letter of Credit Account shall be held therein until required to pay amounts due in respect of the Bonds pursuant to the terms of the Indenture, All amounts held in the Letter of Credit Account which are not required to pay such amounts shall be transferred to the Bank. Following any drawing on the Letter of Credit, any amounts held in any fund or account under the Indenture, which would othelWise be transferred to the Borrower pursuant to any provision under the Indenture, shall instead be transferred to the Bank, up to the amount of such drawing which has not been reirnbursed, as set forth in a certificate of the Bank delivered to the Trustee; and the Bank shall have a first lien on such amounts to secure such payment. The Trustee shall accept from the Bank any instrument evidencing any extension of the termination date of the Letter of Credit permitted by the Indenture. The Trustee shall surrender the sarne to the Bank (i) within one Business Day following satisfaction of the Release Conditions set forth in the Indenture, or (ii) upon the termination date of the Letter of Credit. Upon surrender of the Letter of Credit, the Trustee shall request that the Bank provide evidence of the release of any deed of trust or other security for the obligations of the Borrower to the Bank under the Reimbursement Agreement, within 10 days of such release, If demand for payment is made in strict conformity with the terms and conditions of the Letter of Credit not later than 12:00 noon, California time, on a Business Day, the Bank will make immediately available funds available to the Trustee no later than 10:00 a.m. California time, on the following Business Day. If demand for payment is made under the Letter of Credit in strict conformity with the terms and conditions of the Letter of Credit after 12:00 noon, California time, on a Business Day, the Bank will make immediately available funds available to the Trustee on the second following Business Day specified by the Trustee in the demand for payment. See "APPENDIX F - FORM OF LETTER OF CREDIT" and "APPENDIX G - THE REIMBURSEMENT AGREEMENT" herein. The Mortgage Pursuant to the Mortgage, the Borrower will grant in favor of the Trustee for the benefit of the Owners of the Bonds a mortgage lien (subject to certain permitted encumbrances) on and security interest in the Project, which lien is subordinate to the Series A Bonds. An event of default under the Mortgage constitutes a Default under the Loan Agreement which may result in redemption of the Bonds. See "APPENDIX E -- THE MORTGAGE." An appraisal of the Project (the "Appraisal") has been prepared by . Pursuant to the Appraisal, [BRIEF SUMMARY OF THE ASSUMPTIONS AND FINDING OF THE APPRAISAL). For a more detailed description of the Appraisal, see "APPENDIX K - SUMMARY OF APPRAISAL" herein, Project Revenues Payments to be made by the Borrower pursuant to the Loan Agreement will be derived solely from revenues generated by the operation of the Project, which are also subject to a senior lien and pledge thereof to the payment of debt service on the Series A Bonds. In addition, the liability of the Borrower under the Loan Agreement is limited to the Borrower's interest in the Project and the monies held in the Funds and Accounts held under the Indenture, NO REPRESENTATIONS OR ASSURANCES CAN BE MADE THAT REVENUES WILL BE REALIZED BY THE BORROWER IN AMOUNTS NECESSARY TO ENABLE THE BORROWER TO MAKE PAYMENTS PURSUANT TO THE LOAN 15 A-I/<2 - - --- -_.._._.,_.~ --- ~---_.._._" -----. ....,....---.- - - -----...- AGREEMENT SUFFICIENT TO PAY THE PRINCIPAL OF AND PREMIUM, IF ANY, AND INTEREST ON THE BONDS. WHILE THE INDENTURE CREATES A SECURITY INTEREST IN THE FUNDS HELD UNDER THE INDENrURE (OTHER THAN THE REBATE FUND ESTABLISHED THEREUNDER), AND THE MORTGAGE CREATES SECURITY INTERESTS IN THE PROJECT REVENUES, THE REVENUES OF THE PROJECT ARE NOT SUBJECT TO ANY LOCKBOX OR OTHER ESCROW ARRANGEMENTS, AND THE LOAN AGREEMENT AND THE MORTGAGE OTHERWISE PLACE NO RESTRICTIONS UPON THE EXPENDITURES OF SUCH REVENUES BY THE BORROWER. FURTHERMORE, ALL OF THE PROJECT REVENUES, TO THE EXTENT REQUIRED, HAVE BEEN PLEDGED TO THE PAYMENT OF THE PRINCIPAL OF AND INTEREST AND REDEMPTION PREMIUM, IF ANY, ON THE SERIES A BONDS, WHICH PLEDGE IS SENIOR TO THE MORTGAGE. Reserve Fund There will be deposited in the Reserve Fund established with respect to the Bonds from Bond proceeds the amount of $ (such amount being the "Reserve Fund Requirement" for the Bonds). Amounts on deposit in the Reserve Fund established with respect to the Bonds will be used to pay the principal of and interest on the Bonds, as applicable, when due to the extent moneys on deposit in the Principal Account or Interest Account are insufficient therefor; provided that so long as the Letter of Credit is in effect, no amounts shall be so transferred from the Reserve Fund until the Trustee has first drawn under the Letter of Credit the full amount that may be drawn thereunder. In addition, moneys in the Reserve Fund will be transferred to the Principal Account of the Bond Fund at the direction of the Borrower to pay the last maturing principal of the Bonds on a Principal Payment Date or, if all the Bonds are being redeemed, to the Special Redemption Account of such Bond Fund for redemption of the Bonds. If the amount on deposit in the Reserve Fund is less than the applicable Debt Service Reserve Requirement, either as a result of withdrawal or as a result of revaluation of investments therein accordance with the Indenture, the Borrower is required to pay the Trustee the amount of such deficiency in not more than six equal monthly installments, commencing with the first monthly mortgage payment on the Mortgage following any withdrawal from or determination of deficiency in, as the case may be, such Reserve Fund. See "APPENDIX B -- THE INDENTURE - Article V - Deposit of Bond Proceeds; Funds and Accounts; Revenues" herein. Investments Moneys in all Funds and Accounts will be invested and reinvested by the Trustee, at the direction of the Borrower, in Investment Securities. If no such instructions are provided, the Trustee will invest such moneys in its cash management funds which constitute certain Investment Securities as set forth in the Indenture until instructions regarding investments are received, See "APPENDIX B -- THE INDENrURE - ARTICLE VI - INVESTMENTS." Additional Indebtedness The Indenture contains no provision for the issuance of additional bonds. [Moreover, the Indenture permits no further encumbrance of the Project or the Project Revenues except as permitted by the Loan Agreement and the Mortgage. Permitted encumbrances include the Series A Bonds, the Mortgage and the third deed of trust securing the Borrower's obligation to the Bank, as described under 16 /1-/19 _ _ _ _ _ _ ___m.___~~_~__~_________ the caption "PLAN OF FINANCING" below. The Mortgage prohibits further encurnbrances of the Project without the consent of the Trustee as beneficiary thereunder on behalf of the Owners of the Bonds.] No Credit Enhancement Upon expiration of the Letter of Credit, there will be no credit enhancement facility securing any of the Bonds as initially issued, nor will there be any provision for a credit enhancement facility ever to be provided to secure any of the Bonds. Limited Obligations THE BONDS ARE NOT GENERAL OBLIGATIONS OF THE ISSUER, BUT ARE LIMITED AND SPECIAL OBLIGATIONS PAYABLE SOLELY FROM THE TRUST ESTATE, WHICH SHALL BE USED FOR NO OTHER PURPOSE THAN TO PAY THE PRINCIPAL OF AND INTEREST ON THE BONDS, EXCEPT AS MAYBE OTHERWISE EXPRESSLY AUTHORIZED IN THE INDENTURE, EACH AND EVERY COVENANT MADE IN THE INDENTURE BY THE ISSUER IS PREDICATED UPON THE CONDITION THAT ISSUER WILL NOT IN ANY EVENT BE LIABLE FOR THE PAYMENT OF THE PRINCIPAL OF, PREMIUM, IF ANY, OR INTEREST ON THE BONDS, OR OTHER FEES AND EXPENSES PROVIDED UNDER THE INDENTURE OR THE PERFORMANCE OF ANY PLEDGE, SECURITY AGREEMENT, OBLIGATION OR AGREEMENT CREATED BY OR ARISING UNDER THE INDENTURE OR THE BONDS FROM ANY PROPERTY OTHER THAN THE TRUST ESTATE, AND THAT NEITHER THE BONDS NOR ANY SUCH OBLIGATION OR AGREEMENT OF THE ISSUER WILL BE CONSTRUED TO CONSTITUTE AN INDEBTEDNESS OF THE ISSUER WITIDN THE MEANING OF ANY CONSTITUTIONAL OR STATUTORY PROVISION WHATSOEVER, OR AS A PLEDGE OF THE GENERAL CREDIT, FAITH OR TAXING POWER OF THE ISSUER. THE BONDS ARE NOT A DEBT OF THE STATE OF CALIFORNIA, THE ISSUER OR ANY OTHER POLITICAL SUBDIVISION OF THE STATE OF CALIFORNIA, NEITHER THE FAITH AND CREDIT NOR THE TAXING POWER OF THE STATE OF CALIFORNIA, THE ISSUER OR ANY OTHER POLITICAL SUBDIVISION OF THE STATE OF CALIFORNIA IS PLEDGED TO THE PAYMENT OF THE PRINCIPAL OF OR THE INTEREST ON THE BONDS. An investment in the Bonds is speculative and is subject to a high degree of risk. See "CERTAIN BONDHOLDERS' RISKS" herein. 17 Ii -/d.-Ò --- ---_.~,_._-~----------_._._-,_..,. ESTIMATED SOURCES AND USES OF FUNDS The following is a description of the sources and uses of proceeds of the Bonds (other than accrued interest on the Bonds, which is to be deposited in the Bond Fund) and other amounts: Sources of Funds Principal Amount of Bonds $ Total Sources $ Estimated Use of Funds Deposit to Debt Service Reserve Fund $ Deposit to Construction Account Deposit to Bond Fund for Accrued Interest Deposit to Costs of Issuance Account Total Uses $ CERTAIN BONDHOLDERS' RISKS THE BONDS ARE SPECULATIVE SECURITIES AND ARE SUBJECT TO CERTAIN RISKS. PROSPECTIVE PURCHASERS OF THE BONDS SHOULD MAKE SUCH INVESTIGATIONS AND OBTAIN SUCH ADDITIONAL INFORMATION DIRECTLY FROM THE ISSUER, THE BORROWER, AND OTHERS AS THEY DEEM ADVISABLE IN CONNECTION WITH THEIR EVALUATION OF THE SillTABILITY OF THE BONDS FOR INVESTMENT. BEFORE PURCHASING ANY OF THE BONDS, PROSPECTIVE INVESTORS AND THEIR PROFESSIONAL ADVISORS SHOULD CAREFULLY CONSIDER, AMONG OTHER THINGS, THE FOLLOWING RISK FACTORS, WHICH ARE NOT MEANT TO BE AN EXHAUSTIVE LISTING OF ALL RISKS ASSOCIATED WITH THE PURCHASE OF BONDS. MOREOVER, THE ORDER OF PRESENTATION OF THE RISK FACTORS DOES NOT NECESSARILY REFLECT THE ORDER OF THEIR IMPORTANCE. THIS PRIVATE PLACEMENT MEMORANDUM IS FURNISHED SOLELY FOR CONSIDERATION BY PROSPECTIVE PURCHASERS OF THE BONDS WITH THE EXPERIENCE AND FINANCIAL EXPERTISE TO UNDERSTAND AND EVALUATE THE SIGNIFICANT DEGREE OF RISK INHERENT IN THE INVESTMENT. PURCHASE OF THE BONDS WILL CONSTITUTE AN INVESTMENT SUBJECT TO A SIGNIFICANT DEGREE OF RISK, INCLUDING THE RISK OF NONPAYMENT OF PRINCIPAL AND INTEREST. Security; Subordinate Pledge of Revenues The Bonds are payable solely !Tom payments to be made by the Borrower pursuant to the Loan Agreement and the amounts held by the Trustee under the Indenture with respect to the Bonds, Payments to be made by the Borrower pursuant to the Loan Agreement will be derived solely !Tom revenues generated by the operation of the Project, to the extent such revenues are not required to make payments with respect to the Series A Bonds. In addition, the liability of the Borrower under the Loan Agreement is limited to the Borrower's interest in the Project and the arnounts held in the Funds and Accounts held under the Indenture. Future revenues and expenses of the Borrower and the Project are subject to conditions which rnay change in the future to an extent that cannot be determined at this time. 18 A -/d I .··w....·___.___.·._____.,·_.__.^'..·_ WHILE THE INDENfURE CREATES A SECURITY INTEREST IN THE FUNDS HELD UNDER THE INDENfURE (OTHER THAN THE REBATE FUND ESTABLISHED THEREUNDER), AND THE MORTGAGE CREATES A SECURITY INTEREST IN THE PROJECT REVENUES, THE REVENUES OF THE PROJECT ARE NOT SUBJECT TO ANY LOCKBOX OR OTHER ESCROW ARRANGEMENT, AND THE LOAN AGREEMENT AND THE MORTGAGE OTHERWISE PLACE NO RESTRICTIONS UPON THE EXPENDITURE OF SUCH REVENUES BY THE BORROWER. FURTHERMORE, ALL OF THE PROJECT REVENUES, TO THE EXTENT REQUIRED, HAVE BEEN PLEDGED TO THE PAYMENT OF THE PRlNCIP AL OF AND INTEREST AND REDEMPTION PREMIUM, IF ANY, ON THE SERIES A BONDS, WHICH PLEDGE IS SENIOR TO THE MORTGAGE. No representations or assurances can be made that revenues will be realized by the Borrower in the amounts necessary to make payrnents sufficient to pay the principal of, premiurn, if any, and interest on the Bonds, or that the Trustee, upon taking of remedial action under the Indenture, the Loan Agreement and the Mortgage, will be able to realize amounts sufficient for such purpose, Risks of Real Estate Investment Generally The owners of the Bonds will be subject to the risks generally incident to an investment in real estate, including without limitation the uncertainty that the Project will produce sufficient revenues to enable the Borrower to make timely payments pursuant to the tenns of the Loan Agreement; adverse changes in local market conditions, such as changes in the supply of or demand for competitive properties in an area; changes in interest rates and the availability of financing moneys that may render any refinancing or sale of the Project difficult, unattractive, or even impossible; changes in real estate tax rates and other operating expenses, governmental laws (including, without limitation, zoning laws) and fiscal policies; and natural disasters (including, without limitation, earthquakes and floods), which may result in uninsured losses. The owners of the Bonds will be subject to the risk that the Project will be unable to attract and retain tenants as a result of adverse changes affecting the Project, the local real estate market or other factors, including the resn-ictions on the Project imposed under the Regulatory Agreement and the other agreements imposing rental or occupancy restrictions. Such inability to attract and retain tenants would result in a decline in rental income and may affect the ability and willingness of the Borrower to make timely payments due on the Loan. There can be no assurance that the Project will generate sufficieut reveuue to cover operating expenses and meet required payments related to the Series A Bonds and the Bonds. Residential real estate, including the Project, can be subject to adverse housing pattern changes and uses, vandalism (resulting in, among other things, exn-a security costs), vacancies, rent conn-ols, rising operating costs, and adverse changes in local market conditions, such as a decrease in dernand for residential housing due to a decline of the local economy and a decrease in employment. The success of the Project is, to a great extent, dependent upon the City of Chula Vista and San Diego County econornies. [DISCUSS COUNTY'S mSTORIC VACANCIES, HOUSING SUPPLY AND REAL ESTATE MARKET]. [While economic and real estate market conditions in the region have improved significantly beginning in _, as evidenced by decreasing vacancy rates, multiple rent increases, and decreasing overall rates, there can be no assurances that conditions will not deteriorate.] Rationing or other resn-ictions with respect to the availability or use of utilities could also significantly affect the profitability of operating the Project. Sirnilarly, governmental or adminisn-ative entities may impose resn-ictions requiring structural alterations of or capital improvements to residential buildings, resulting in significant additional costs to the Borrower that the Borrower may be unable to 19 A -I.).d-. --,.._.,-~-_..__._.,,_._-_._--_..." ...- afford, and which would significantly irnpact the cash flow of the Project. If the local regulatory bodies having jurisdiction over the Project restrict or limit rent increases imposed by the Borrower to offset increased costs, the cash flow of the Project may be reduced, Any future organization of the tenants of the Project could also result in resistance against rent increases, in the fonn of rent strikes, litigation or other action. If rental receipts after Operating Expenses (other than debt service) are insufficient to service the debt with respect to the Loan, foreclosure and sale of the Project is possible. Some of the risks mentioned herein are more particularly described in the following subsections. Operation of the Project General. The primary source of payment of the Loan and the Bonds is revenues generated by the Project, minus the operating expenses of the Project and the revenues required to pay the Series A Bonds, Accordingly, the registered owners of the Bonds are exposed to the risk that, if the expected Project Revenues are not achieved, required payments by the Borrower under the Loan Agreement will not be made at all or will be made in amounts less than are due. In the event that interest and principal are not paid pursuant to the Loan Agreement or are only partially paid, the Trustee will draw on the Reserve Fund (subsequent to drawing on the Letter of Credit if available) to the extent that the Reserve Fund has not been depleted. The availability of Project Revenues to make payments under the Loan Agreement could be adversely affected by a failure to (i) continue to rent or lease the Project at the rental rates expected by the Borrower, or (ii) maintain the operating expenses and capital expenses at or below the level expected by the Borrower. The Project has no operating history, and no feasibility study has been undertaken in connection with the future operation of the Project and the offer and sale of the Bonds. Income Risks. The availability of sufficient operating income to pay the obligations of the Borrower with respect to the Loan Agreement are subject to the ability of the Borrower to maintain and increase rental rates for, and the continuing ability to rent units in, the Project. Any constraint on rental increases due to regulatory (including, but not limited to, rent control) or market demand factors that inhibit annual rent increases may adversely affect the Borrower's ability to cover expenses and financing costs. The Project will also face competition from other rental housing projects, residential hotels and mobile home facilities and will face additional competition in the future as a result of the construction of new, or the renovation of existing, facilities. No assurance can be given that occupancy of the Project will not be adversely affected by the availability of other housing facilities in the market area of the Project and elsewhere, including other low income housing facilities that the Borrower may develop in the same market area as the Project. Regulatory Restrictions on Occupancy and Rent. Rental units in the Project are subject to restrictions on the maximum level of income of tenants who will be pennitted to rent the units, as well as maximum rent that will be pennitted to be charged to tenants. See "THE BORROWER AND THE PROJECT -Rental Restrictions" herein for a summary of these restrictions. In addition, each applicable regulatory agreement is attached as an Appendix. See "APPENDIX D -- THE REGULATORY AGREEMENT" and "APPENDIX J -- EXPECTED FORM OF EXTENDED USE AGREEMENT" herein. Risks Associated with Operating Expenses, An extended period of inflation may cause the rate of increases in operating expenses to rise more rapidly than the Borrower's ability to raise rents. In addition, any underestimation by the Borrower in the current operating expenses of the Project may 20 /1-1 ~ 3 -.-.-...- ---_.~~--,-_._~---_._.- materially adversely affect the operating income of the Project. The consequences of this risk are similar to a deterioration in the base rental income and would adversely affect the Project Revenues. Property reserves are an important consideration for replacing such items as kitchen appliances, heaters, roofs and other major capital items to maintain the quality of the Project over time. The adequacy of the Project's property reserve funds will depend in part on the quality of workmanship perfonned during the Project's construction and the longevity of mechanical equipment that was installed in the units. The deterioration and replacement of capital items is not predicable with certainty, and real estate properties such as the Project rnay encounter a periodic need for capital for replacernent and/or repair of capital items in excess of property reserves on hand. In the event that additional capital is needed for the replacement of capital items, it is likely that the Borrower will either have to seek additional debt capital from third-party lenders or pay for such capital replacement and/or improvement out of residual cash flow from the Project. The Issuer has no obligation with respect to any operating, reserve or capital expenses of the Project. Risks Associated with Other Expenses. To the extent there are any expenditures required to maintain the Project that are not foreseen by the Borrower, any uninsured losses are experienced, or additional property taxes become due on the Project as a result of a change in the law, regulation or interpretation of a court of competent jurisdiction, the only source of moneys to pay such expenses would be additional resources available to the Borrower. The Borrower may be unable or unwilling to pay for such additional expenditures. Risks Associated with the Management of the Project. The Project will be managed and operated by an on-site manager, initially Insignia Residential Group of California, Inc. (the "Manager"), an affiliate of Insignia Financial Group,. The Manager has represented to the Borrower that it has substantial experience managing apartment projects. (See "THE BORROWER AND THE PROJECT - Property Management" herein.) A disruption in management continuity may temporarily impact the operations of the Project. In addition, a new manager of the Project may not have the same ability to raise rents or to contain operating expenses as the current manager. Uninsured Losses The Mortgage requires that the Borrower obtain and keep in force certain types and amounts of insurance on the Project so long as the Bonds are outstanding. However, there are certain types of losses (generally of a catastrophic nature) that are either uninsurable or not economically insurable. Such risks include, but may not be limited to, earthquakes, war and floods. Moreover, such insurance coverage is subject to certain upper limits, which may not be sufficient to pay the costs of remedying each and every event of casualty which may occur. In addition, the Borrower could allow the insurance on the Project to lapse. If an uninsured loss occurs, a default in payrnent of the Bonds could result and, if such loss is substantial, a non-payment of all or a portion of the Bonds, including the Bonds, would almost certainly occur. Certain Risks Associated with the Title Insurance The lien imposed on the Project by the Mortgage is insured by a title insurance policy on the Project issued by (the "Title Insurance Policy"). A tentative pro fonna Title Insurance Policy for the Project is attached hereto as Appendix H. The insurance coverage provided by the Title Insurance Policy will be subject to certain limitations as set forth in full in the tentative pro fonna Title Insurance Policy. In addition, as set forth in the tentative pro fonna Title Insurance Policy, and as is expected to be set forth in the final Title Insurance Policy, the Title Insurance Policy will insure the title to the Project subject to 21 A -I;;L~ _.,..._ ~._,. '0 __._ __....._._..____'''.,__._________..___ ___.___.____..__.___________ prior liens (including the Series A Bonds), subordinate liens, encumbrances and restrictions on the Project. There can be no assurances that, if there is a defect in the title of the Project, will have the financial s1rength to honor the Title Insurance Policy, Certain Risks Associated with the Mortgage The Borrower will execute the Mortgage on the Project in favor of the Trustee to secure the Borrower's obligations pursuant to the Loan Agreement. Because the Borrower has limited fmancial assets other than the Project, if there is a default under the Loan Agreement, the primary remedy of the Trustee is to foreclose on the real and personal property security granted pursuant to the Mortgage. The Trustee has the right to foreclose on the Project under certain circumstances, All amounts collected upon foreclosure of the Project pursuant to the Mortgage will be uöed to pay certain costs and expenses incurred by, or otherwise related to, the foreclosure, the performance of the Trustee and/or the beneficiary under the Mortgage, and then to pay amounts owing under the Loan Agreement in accordance with the provisions of the Indenture and the Loan Agreement. [DISCUSS FANNIE MAE'S PROIDBITION AGAINST FORECLOSURE, IF ANY) Any valuation of the Project is based on future projections of income, expenses, capitalization rates and the availability of the partial or total property tax exemption. Additionally, the value of the Project will at all times be dependent upon many factors beyond the con1rol of the Borrower and/or Issuer, such as changes in general and local economic conditions, changes in the supply of or dernand for competing properties in the same locality, and changes in real estate and zoning laws or other regulatory restrictions. A material change in any of these factors could materially change the value in use of the Project. Any weakened market condition may also depress the value of the Project. Any reduction in the market value of the Project will adversely affect the security available to the owners of the Bonds. There is no assurance that the amount available upon foreclosure of the Project after the payment of foreclosure costs will be sufficient to pay the arnounts owing by the Borrower on one or more of the Bonds. In the event of foreclosure, a prospective purchaser of the Project may assign less value to the Project than the value of the Project while owned by the Borrower since such purchaser may not enjoy the favorable financing rates associated with the Bonds, real estate tax exemption and other benefits. To the extent that buyers whose income is not tax-exempt may be willing to pay less for the Project than nonprofit buyers, then the resale of the Project after foreclosure may require more time to solicit nonprofit buyers interested in assuming the fmancing now applicable to the Project. In addition, there can be no assurance that the Project could be sold at one hundred percent (100%) of its fair market value in the event of foreclosure, Although the owners of the Bonds will have available the remedy of foreclosure of the Mortgage in the event of a default (after giving effect to any applicable grace periods, and subject to any legal rights which may operate to delay or stay such foreclosure, such as may be applicable in the event of the Borrower's bankruptcy), there are substantial risks that the exercise of such a remedy will not result in recovery of sufficient funds to pay amounts due on the Bonds. See "APPENDIX B -- THE INDENTURE - ARTICLE VIII - DEFAULTS AND REMEDIES." The Mortgage will be in the form of a deed of trust with power of sale and will be governed by California law. Under California law, the beneficiary of a deed of trust with power of sale (e.g. the lien holder described above) may cause the instrument to be foreclosed either judicially (by a court proceeding) or nonjudicially by a trustee's sale. California law also requires the beneficiary of a deed of trust to realize on the underlying security first before suing on the debt. In the event that the Mortgage is actually foreclosed, then, in addition to the customary costs and expenses of operating the maintaining the Project, the party or parties succeeding to the interest of the Borrower in the Project (including the Issuer or the Owner(s), if such party or parties were to acquire the 22 /l-/;¿ç +.__._.__._,~-~-_._---- . .. -- --.-.---.---.-...--..--- .~..__._.__._--_.__..- --. ~._--_.~---- -.--,.- -_._.~_..,,- interest of the Borrower in the Project) could be required to bear certain associated costs and expenses, which could include: the cost of cornplying with federal, state or other laws, ordinances and regulations related to the rernoval or rernediation of certain hazardous or toxic substances; the cost of cornplying with laws, ordinances and regulations related to health and safety, and the continued use and occupancy of the Project such as the Americans with Disabilities Act; and costs associated with the potential reconstruction or repair of the Project in the event of any casualty or condemnation. In order to realize on its pledge of the Loan Agreement and the Mortgage, the Trustee will be required to conduct a foreclosure sale of the Project under the Loan Agreement and such Mortgage pursuant to Article 9 of the California Commercial Code. Such a foreclosure sale must be held in a "commercially reasonable" manner, and is subject to subsequent claims that the sale was not "commercially reasonable'· and therefore was invalid. Because there is no established market for deeds of trust comparable to the Mortgage, little guidance exists for conducting a "commercially reasonable" sale under these circumstances. Therefore, no assurance can be given that a foreclosure sale of the Trustee's interest in the Loan Agreement and the Mortgage will not subsequently be held to be invalid and set aside or that a purchaser could be found for such interests. IN ORDER TO UNDERSTAND IN FULL THE RISKS AND PROCEDURES INVOLVED IN FORECLOSURE OF THE MORTGAGE UNDER CALIFORNIA LAW, POTENTIAL OWNERS OF THE BONDS ARE ADVISED, AND EXPECTED, TO CONSULT WITH AN EXPERT IN THE FIELD BEFORE PURCHASING THE BONDS. Enforceability of Remedies The Bonds are secured by the Indenture and the Mortgage, which provide for the grant of a lien on and security interest in the Project, including a security interest in furniture, furnishings, decorations, chattels and other personal property in the Project, and in the revenues pledged to the payment of the Bonds. The practical realization of value from the property subject to the mortgage lien upon any default will depend upon the exercise of various rernedies specified by the Indenture, the Loan Agreement and the Mortgage, as described above and in Appendices B, C and E hereto. These and other remedies may, in many respects, require judicial actions which are often subject to discretion and delay. UNDER EXISTING LAW, THE REMEDIES SPECIFIED BY THE INDENTURE AND THE MORTGAGE MAY NOT BE READILY AVAILABLE OR MAYBE LIMITED. A COURT MAY DECIDE NOT TO ORDER THE SPECIFIC PERFORMANCE OF THE COVENANTS CONTAINED IN THOSE DOCUMENTS. ALTHOUGH THE BORROWER AND THE ISSUER HAVE NO PRESENT INTENTION TO INSTITUTE BANKRUPTCY PROCEEDINGS OR TO SEEK PROTECTION UNDER TITLE 11 OF THE UNITED STATES CODE OR ANY OTHER FEDERAL OR STATE DEBTOR RELIEF LAWS, THE BORROWER AND THE ISSUER MAY NOT BE PREVENTED FROM INSTITUTING SUCH PROCEEDINGS OR SEEKING SUCH PROTECTION OR RELIEF AND ANY SUCH PROCEEDINGS OR PROTECTIONS COULD HAVE THE EFFECT OF LIMITING, RESTRICTING, DELAYING, PRECLUDING OR OTHERWISE AFFECTING THE REMEDIES WHICH ARE SPECIFIED IN THE INDENTURE AND THE MORTGAGE. The various legal opinions to be delivered concurrently with the delivery of the Bonds will be qualified as to the enforceability of the various legal instruments by limitations imposed by state and federal laws, rulings and decisions affecting remedies and by bankruptcy, reorganization or other laws affecting the enforcement of creditors' rights generally. [DISCUSS FANNIE MAE'S PROIDBITION, IF ANY, AGAINST FORECLOSURE] 23 ,A -/ ,;z {¿, ..~,- - - -- --~,-""..._--~-~--,_._..__.,.._,------~._-_._----~----_.------..-- Effect of Bankruptcy The Indenture provides that notwithstanding anything therein to the contrary, neither the Owners of the Bonds nor the Trustee acting on behalf of the Owners of the Bonds shall have any right, and are deemed to have waived any right, to institute a proceeding under the Bankruptcy Code seeking to adjudge the Issuer or the Borrower insolvent or a bankrupt or seeking a reorganization of the Issuer or the Borrower. However, if, notwithstanding such provisions, proceedings were commenced by any person to reorganize or declare the Borrower bankrupt under the federal bankruptcy code, such proceedings would cause any proceeding to foreclose the lien of the Mortgage on the Project to be stayed pending further order of the bankruptcy court Any such proceeding will constitute an event of default under the Loan Agreement Further, the commencement of proceedings to reorganize or declare the Issuer bankrupt under the federal bankruptcy code may affect the Trustee's ability to (i) receive direct payments pursuant to the applicable Loan, and (ii) apply such payment to the payments of the principal of and premium, if any, and interest on the Bonds. Payments on the Bonds derived from payments under the Loan Agreement will not be "preference proof" and sucb payments may be recoverable by a trustee in bankruptcy should the Borrower or the Issuer be subject to any such bankruptcy proceedings, Lack of Financial Resources of the Borrower The Borrower has only limited assets other than the Project Accordingly, in the event that unexpected obligations, unbudgeted or uninsured capital expenditures or shortfalls in anticipated revenues arise that are not covered by the revenues from the Project, no monies are expected to be available to pay such obligations or other expenditures. Any such unexpected obligations or expenditures rnay adversely affect the ability of the Borrower to make timely payments on the Loans. See "CERTAIN RISK FACTORS - Operation of the Project" herein. Government Regulation of Project - Rental and Occupancy Restriction The Regulatory Agreement and the Extended Use Agreement set forth certain requirements regarding rental rates and tenant qualifications, including income restrictions applicable to the Project There can be no assurance that the Borrower will be able to satisfY those requirements. Upon an acceleration of the Loan and subsequent foreclosure on the Project, insufficient proceeds may be available to pay all principal of and interest due on the Bonds. Additionally, interest payable with respect to the Bonds could become includable in gross income for the purposes of federal income taxation relating back to the date of noncompliance. Lack of Market for Resale ofthe Bonds There are no assurances that a market for resale of the Bonds will exist or will develop in the future. Purchase of a Bond should be considered a long-term investment and one with significant risks. Reserve Fund The Indenture establishes a Reserve Fund for payment of principal and interest due the Owners of the Bonds, to the extent moneys on deposit in the Principal Account and Interest Account are insufficient Although the Borrower believes such reserves to be reasonable and anticipates that Project Revenues will be sufficient to cover the debt service on the Bonds, there is no assurance that funds reserved and future Project Revenues will be sufficient to cover the debt service on the Bonds. 24 A-I.;;1.7 - -~_.- .__._------_.,-_._-~._-~,_._--_.. ,-- Reliance Upon Manager and Conflicts ofInterest The success of the Project will be largely determined by the efforts and abilities of the Borrower and the Manager. The Manager may have conflicts of interest in allocating management time, services and functions between the Project and other properties in which the Manager has an interest. The failure of the Manager to adequately perform its obligations with respect to the Project could have a material adverse effect upon the success of the Project. See "THE BORROWER AND THE PROJECT - Property Management" herein. In the event the Manager ceases to serve the Project for any reason, there is no assurance other parties can be found to perform the services of the Manager as well or for comparable compensation. No Registration The Bonds are not currently required to be, have not been, and are not intended to be, registered under the Securities Act of 1933, as amended, nor have the Bonds been qualified or registered under the securities or blue sky laws of any State. The Indenture is not currently required to be, has not been, and is not intended to be, qualified under the Trust Indenture Act of 1939, as amended. [Lack of Feasibility Study PAYMENT OF DEBT SERVICE ON THE BONDS IS DEPENDENT UPON THE SUCCESSFUL COMPLETION AND RENT-UP OF THE PROJECT AND UPON THE PROJECT'S ACHIEVING A SUCCESSFUL LEVEL OF OPERATING RESULTS. THE PROJECT HAS NO HISTORY OF PAST OPERATIONS. SEE "THE PROJECT." NO FEASIBILITY STUDY OR SIMILAR ANALYSIS OF THE PROJECTED FUTURE OPERATIONS OF THE PROJECT HAS BEEN PERFORMED, AND NONE OF THE ISSUER, THE BORROWER OR THE UNDERWRITER MAKES ANY REPRESENTATIONS WHATSOEVER REGARDING THE FUTURE OPERATIONS OF THE PROJECT.] Environmental Matters There are potential risks relating to environmental liability associated with the ownership of any property on which the Project will be located. If hazardous substances are found to be located on property, owners of such property, and in certain instances lenders, may be held liable for costs and other liabilities relating to such hazardous substances. [A Phase I environmental audit was performed on by The report concludes that there is no evidence of recognized environmental conditions associated with the Project site. Copies of the environmental report may be obtained from the Underwriter.] No Rating on Bonds The Bonds are not rated by any rating agency. No rating has been applied for and no representation is made regarding the likelihood of obtaining a rating should any such application therefor be made. Continuing Compliance with Certain Covenants Failure of the Issuer and the Borrower to comply with certain covenants contained in the Indenture, the Loan Agreement and the Regulatory Agreement could result in interest on the Bonds becorning taxable retroactive to the date of original issuance thereof. See "TAX MA TIERS" herein. 25 /1-/4 ..,.~.. - ..-..-.-+---....-..^.. " .."~_ .o·_·._.._.·^······.__,_·· ________.______ Other Factors An investment in the Bonds involves a substantial element of risk In order to identity risk factors and make an infonned investment decision, potential investors should be thoroughly familiar with this entire Private Placement Memorandum (including the appendices hereto) in order to make a judgment as to whether the Bonds are an appropriate investment. Purchasers of the Bonds, particularly purchasers that are corporations (including S corporations and foreign corporations operating branches in the United States of America), property or casualty insurance companies, banks, thrifts or other financial institutions or certain recipients of Social Security benefits, are advised to consult their tax advisors as to the tax consequences of purchasing or holding the Bonds. Lack of Audited Financial Statements Due to no operating history for both the Project and the Borrower, there are no audited or unaudited fmancial statements available for either the Borrower or the Project. [Audited financial statements for the Issuer for the past three years are available ITom the Issuer,] Year 2000 Problem The inability of many computer programs and microprocessors to distinguish between the years 2000 and 1900 (the "Year 2000 Problem") could disrupt the ability of the Issuer, the Borrower, the Trustee and others to provide certain services, including services pertaining to the Bonds, or could increase the cost of providing such services. For example, the Year 2000 Problem could impede or rnake more costly (i) the timely payment of loan payments under the Loan Agreement by the Borrower to the Trustee; (ii) the timely payment of principal of or interest on the Bonds by the Trustee to the Owners thereof; (iii) the administration by the Trustee of the funds and accounts held by it pursuant to the Indenture; (iv) the timely cornpliance by the Issuer and/or the Borrower with on-going disclosure requirements and with restrictions applicable to investment yield and rebate; and (v) the distribution by DTC (and its Direct Participants and Indirect Participants) to the Beneficial Owners of the Bonds of their respective shares of the principal thereof and interest thereon. The Issuer, the Borrower and the Trustee each believes that it will be able to address the Year 2000 Problem successfully and that it will be able to continue to provide all necessary services related to the Bonds, including the services described above, without interruption, so long as any Bonds remain outstanding. Prospective purchasers of the Bonds should be aware, however, that no assurance can be given that such services will not be interrupted by the Year 2000 Problem. In addition, prospective purchasers of the Bonds should contact DTC and the DTC Participants through which they would purchase Bonds in order to detennine whether DTC and such DTC Participants will be able to address the Year 2000 Problern in a timely and efficient manner. Summary The foregoing is intended only as a summary of certain risk factors attendant to an investment in the Bonds. In order for potential investors to identity risk factors and make an infonned investment decision, potential investors should be thoroughly familiar with this entire Private Placement Memorandum and the appendices hereto, THE ISSUER [TO BE PROVIDED BY ISSUER] 26 A -/¿9 ~__.,.,____.____'"_,_,_ ww',,'·__,_._ ___._.~..___~_~__.__._._ _~~___ __ ___ PLAN OF FINANCING Estimated Sources and Uses of Funds for Project Costs The following table sets forth estimated sources and uses of funds in connection with the construction of the Project: . Sources of Project Finllncing: Series A Bond Proceeds $ Bond Proceeds Subordinate Bridge Loan Tax Credit Equity Developer Note Owner Equity Total Sources; $ Uses of Project Financing: Acquisition and Pre-Development Land Purchase $8,300,000 Closing and Title 5.000 LegallBroker 15,000 Architectural and Engineering 437,790 Pre-Development Financing and Carry Costs C Subtotal $ 8.757,790 Construction Fees and Permits $3,740,000 OnsiteJOffsite Costs 1,134,000 Base Construction 21,250,990 Exterior Common Area Costs 1,358,000 Models and Recreation Building 245,000 Indirect Onsite Supervision 1,083,965 Developer Overhead and Fees 1,200,000 Bridge Loan Fees and Interest 377,822 Credit Enhancement Fees 0 Construction Interest 2,091.598 Construction Loan Fees and Taxes 1,644,388 Construction Contingency 1,185.348 Miscellaneous Copy and Messenger Expenses 25,000 Subtotal $35,316,110 Lease Up and Sales Operating Reserve $845,046 MarketinglLeasing/Legal 345,000 Lease Up Period Interest and Carry Costs 84,415 Permanent Financing Costs 1,290.339 Syndication Expense 0 TCAC Application/Monitoring Fees 36,106 Subtotal $ 2 600.906 Total Uses $46674 806 Source: Borrower .. Preliminary, subject to change. 27 /1-1.3-0 "~_...",.._-. _.-------,,----------_....__....,,_.~--~_._-_..__.. Tax-Exempt Financing Pursuant to a request for financial assistance frorn the Borrower, the Issuer applied for and has received an allocation from the California Debt Limit Allocation Committee ("CDLAC") to issue $43,000,000 in tax-exempt multifamily revenue bonds to provide for the construction and permanent financing of the Project. Based on the CDLAC allocation, the Issuer is issuing two series of tax-exernpt bonds as follows: (i) the Series A Bonds, in the aggregate principal amount of $ , and (ii) the Bonds, in the aggregate principal amount of $ . The Series A Bonds will be secured by, arnong other things, credit enhancement to be provided by the Federal National Mortgage Association ("Fannie Mae") and, during the construction phase only, a standby letter of credit to be issued by the Bank. The Bonds will also be secured, during the construction phase only, by a standby letter of credit to be issued by the Banle The obligation of the Borrower to make payments under the Loan Agreement is subordinate to the obligation of the Borrower to make payments with respect to the debt service for the Series A Bonds. See "SECURITY FOR THE BONDS" herein. THE BORROWER AND THE PROJECT The Borrower The Borrower, Gateway Town Center, L.P., a California limited partnership, is a single asset limited partnership that was created to own and develop the Project. The Borrower includes three general partners: Pacific Southwest Community Development Corporation, a California nonprofit public benefit corporation ("Pacific Southwest"), its managing general partner; CIC Commercial Real Estate Services, L.L.c., a California limited liability company ("CIC"), its advising general partner; and Gateway Town Center Investors, Inc., a California corporation ("Gateway Investors"), its tax matters general partner. Pacific Southwest is a California nonprofit public benefit corporation recognized under Section 501(c)(3) of the Code. Pacific Southwest has experience in the development and management of affordable housing projects, prirnarily in the southwestern United States. CIC is an affiliate of Chelsea Investment Corporation, a California corporation ("Chelsea"), a local real estate firm that negotiated the acquisition of the site on which the Project is to be constructed and continues to take the lead role in negotiating the development plans for the Project. Chelsea has participated both as consultant and partner in numerous real estate developments, including single and multifamily residential development, high-rise multi-purpose buildings, rehabilitation projects and raw land acquisition and assemblage. Chelsea also has extensive experience working with nonprofit partners and tax equity investors in connection with affordable housing projects. CIC provides comprehensive development services, including daily supervision of on-site operations and financial and market analysis. Gateway Investors is a wholly-owned subsidiary of Kaufman and Broad Multi-Housing Group, Inc. ("KBMH"), which is a wholly-owned subsidiary of Kaufman and Broad Home Corporation (NYSE:KBH). KBMH is one of the nation's premier developers of affordable family and seniors housing. Since 1994, KBMH has planned, built and/or financed more than 5,000 affordable housing units, mostly in California, Colorado and Utah. These projects often included financing that utilized tax· exempt, mortgage-backed revenue bonds, HUD and Fannie Mae affordable housing assistance, as well as a variety of state and local housing programs. KBMH also has extensive experience related to the purchase and resale of tax credits as permitted under Section 42 of the Code. Due to its extensive experience and expertise in low-income residential development, KBMH is able to provide a complete framework for an affordable housing program using both public and private financing sources. 28 A -/3/ --.------.---. - ------.----..-----.-,-, -- --_.~,,-- '".------------ The Project The Project will consist of 440 three-story garden apartment units. Each unit will include a balcony or patio, washer/dryer hook-up, full-sized energy efficiency appliances, ceiling fans, air conditioning, outdoor storage, security features and dual glazed windows. The units will have either an enclosed garage or assigned covered parking. The design includes the provision of 273 attached garages, of which 88 have direct access to the living unit. Project amenities are expected to include two 2,500 square foot clubhouses, two swimming pools and spas, a media center, an exercise room, laundry facilities, security features, a children's play area and a multi-station computer laboratory with Internet access. The units in the Project will be distributed as follows: No. of Units TVDe of Unit Sauare Footage Total Sauare Per Unit F ootat!e 95 IBR,IBA 726 68,970 165 2 BR, 2 BA 942 155,430 40 2BR,2BA 1,037 41 ,480 140 3 BR, 2 BA 1,167 163.380 Totals 440 429.260 Property Management Insignia Residential Group of California, Inc. (the "Manager"), an affiliate of Insignia Financial Group ("Insignia"), is expected to provide management services for the Project under subcontract with Chelsea. Insignia is the largest multifamily property manager in the United States. It's portfolio of residential communities includes properties controlled by Insignia Financial Group (and its affiliates) and notable third-party institutional clients such as major banks, insurance companies and other private investors and lenders, as well as the Federal Horne Loan Mortgage Corporation. Insignia performs all day-to-day property management and accounting duties for its properties, including rent processing, accounts payable (with day-to-day expenses, mortgages, taxes and insurance), payroll and financial reporting. Acting as rental agent, Insignia develops and implements marketing programs, directs resident relations and oversees routine maintenance for each property. Insignia also has extensive experience managing multifamily developments subject to federal and state tax credit restrictions. Since 1988, Insignia has managed approximately 89 low-income housing tax credit properties that require the full range of management duties from initial rent up of new properties placed into the tax credit program to existing properties that were converted into tax credit properties. The size of the properties managed by Insignia that are subject to tax credit restrictions range in size from 16 to 640 units, 29 ,4-/3;)" .~. . ... - "'.,------.-.-... ...._-~._~----_._._-----_._._'- Rental Restrictions Regulatory Agreement. As noted above, the Project is subject to the terms of the Regulatory Agreement. A brief summary of the Regulatory Agreement is provided here. See also "APPENDIX D- 1HE REGULATORY AGREEMENT" herein. The Regulatory Agreement imposes certain requirements on the Borrower with respect to the tax- exempt status of the Bonds under the Code, which include, among other requirements, a set aside of 20% of the units for rental to persons or families having incomes at or below 50% of area median gross incorne, adjusted for family size and determined in accordance with Section 142(d) of the Code and certain other requirements under State law. The Regulatory Agreement also requires that rent on such 20% of the units not exceed 30% of an amount equal to 50% of area median adjusted gross income. The Regulatory Agreernent contains provisions that comply with certain affordable housing requirements previously irnposed on the Project by the Issuer. See "APPENDIX D -1HE REGULATORY AGREEMENT" for a description of the requirements affecting the operation of the Project in order to assure compliance with the Code and State law. Tax Credits. The Project will also be encumbered by an Extended Use Agreement required by the Code and the California Tax Credit Allocation Committee ("TCAC"), which during the Qualified Project Period will (a) restrict the income levels of 20% of the units in the Project to amounts not greater than 50% of area median income adjusted for family size, and (b) restrict the rents which may be charged for occupancy of those units in the Project to not more than 30% of an amount equal to 50% of area median gross income, adjusted for family size, as provided in the Code and by TCAC. The Master Planned Commnnity The Project will be built on an approximately IS-acre site in the Otay Ranch master planned community (the "Otay Ranch Master Planned Community"). The Otay Ranch property consists of approximately 23,000 acres situated within southwestern San Diego County, approximately 3.5 miles eat of downtown Chula Vista and 13 miles southeast of downtown San Diego. The United States international border with Mexico is approximately two miles south of the Otay Ranch property, which is served by the Interstate 5 and Interstate 805 highways. The approved general development plan for the Otay Ranch Master Planned Community provides for a variety of land uses to be arranged in 18 villages. Approved uses include residential, commercial, community purpose facilities, schools, parks, open space and circulation element roads. A Sectional Planning Area ("SPA") plan has been approved for the initial two villages (Villages I and 5), which covers approximately 1,100 acres and provides for 5,758 dwelling units. The Project is located in Village I of SPA L The seller of the Project site to the Borrower was McMillin Otay Ranch, LLC, a Delaware limited liability company (formerly known as McMillin-DA America Otay Ranch, LLC) (the "Seller"). The Seller is concurrently developing other portions of SPA-l as the master developer. Pursuant to the purchase agreement between the Seller and the Borrower for the Project site (the "Project Purchase Agreernent"), the Seller has agreed to complete certain pre-closing and post-closing irnprovements, including backbone utilities, streets, landscaping and lot grading and certification. The Borrower is obligated under the Project Purchase Agreement to cooperate with the Seller in connection with the Project and the development of the Otay Ranch Master Planned Community. The deed granting ownership interest in the Project to Borrower will contain covenants of the Borrower regarding compliance with provisions of the Project Purchase Agreernent, including modification of fencing, commencement and completion of construction, scheduling, surplus affordable housing credits, rezoning 30 /1-/33 -.-..- ...._,_, ___'_n'__ _.___._._.___.____~__.___ and amendrnents to the applicable developrnent plan, approval of Borrower's improvements, neighborhood monumentation, national pollution discharge elimination system development, cleanup of debris, fonnation of community facilities districts, and Seller's right of first refusal regarding any future transfer of interests in the Project. The Seller's right of first refusal is for a period of two years after sale of the Project to the Borrower and does not apply to any portion of the property that a construction loan has been recorded for the construction of Borrower's proposed improvements. The Project will be subject to various agreements with the Issuer and other governmental agencies pertaining to development, including agreernents regarding the applicable general plan, development plans and fees, environmental impact and mitigation, any resource management plan, detention basin and desilting, and subdivision improvernents agreements. The Project is proposed to be included in five community facilities districts to be fonned pursuant to the Mello-Roos Community Facilities Act of 1982, to finance certain school facilities and other public improvements and maintenance services. Each community facilities district will be authorized to levy special taxes on property within the boundaries of such district. Limited Recourse to Borrower Neither the Borrower nor its partners have been nor will they be (subject to certain exceptions to nonrecourse liability set forth in the Mortgage Note and the Mortgage) personally liable for payments on the Mortgage Note, the payments on which are to be applied to pay the principal of and interest on the Bonds, nor will the Borrower or the partners of the Borrower be (subject to certain exceptions to nonrecourse liability set forth in the Mortgage Note and the Mortgage) personally liable under the other documents executed in connection with the issuance of the Bonds and the making of the Mortgage Loan. Furthermore, no representation is made that the Borrower will have the necessary funds available for the development of the Project or for the payment of principal and interest on the Mortgage Note. Accordingly, neither the Borrower's financial statements nor those of its partners are included in this Private Placement Memorandum. ENFORCEABILITY OF REMEDIES The remedies available to the Trustee, the Issuer and the owners of the Bonds upon an Event of Default under the Indenture are in many respects dependent upon regulatory and judicial actions, which are often subject to discretion and delay. Under existing law and judicial decisions, the remedies provided for under the Loan Agreement, the Regulatory Agreement or the Indenture may not be readily available or may be limited. The various legal opinions to be delivered concurrently with the delivery of the Bonds, the Loan Agreement, the Regulatory Agreement and the Indenture will be qualified as to enforceability of the various legal instruments by limitations imposed by bankruptcy, reorganization, insolvency or other similar laws affecting the rights of creditors generally and by equitable rernedies and proceedings generally. TAX MATTERS In the opinion of Stradling, Y occa, Carlson & Rauth ("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 the Internal Revenue Code of 1986 (the "Code"), except that no opinion is expressed as to the status of interest on any Bond during any period such Bond is held by a "substantial user" of the facilities financed or refinanced by the Bonds or by a "related person" within the meaning of Section 31 A-13V ,--^" --- -------_.~_.- --- -......------..-" 147(a) of the Code. Bond Counsel observes, however, that interest on the Bonds is a specific preference item for purposes of the federal individual and corporate alternative minirnum taxes. Bond Counsel is also of the opinion that interest on the Bonds is exempt frorn State of California personal income taxes. A complete copy of the proposed form of the opinion of Bond Counsel is set forth in APPENDIX G. To the extent the issue price of any maturity of the Bonds is less than the amount to be paid at maturity of such Bonds (excluding amounts stated to be interest and payable at least annually over the term of such Bonds), the difference constitutes "original issue discount," the accrual of which, to the extent properly allocable to each owner thereof, is treated as interest on the Bonds which is excluded from gross income for federal income tax purposes and State of California personal income taxes. For this purpose, the issue price of a particular maturity of the Bonds is the first price at which a substantial amount of such maturity of the Bonds is sold to the public (excluding Bond houses, brokers, or similar persons or organizations acting in the capacity of underwriters, placement agents or wholesalers). The original issue discount with respect to any maturity of the Bonds accrues daily over the term to maturity of such Bonds on the basis of a constant interest rate compounded semiannually (with straight-line interpolations between compounding dates). The accruing original issue discount is added to the adjusted basis of such Bonds to determine taxable gain or loss upon disposition (including sale, redemption, or payment on maturity) of such Bonds. Owners of the Bonds should consult their own tax advisors with respect to the tax consequences of ownership of Bonds with original issue discount, including the treatment of purchasers who do not purchase such Bonds in the original offering to the public at the first price at which a substantial amount of such Bonds is sold to the public. 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 Bonds. The Issuer and the Borrower have covenanted to comply with certain restrictions designed to ensure that interest on the Bonds will not be included in federal gross income. Failure to comply with these covenants may result in interest on the Bonds being included in federal gross incorne, possibly from the date of issuance of the 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 Bonds may adversely affect the value of, or the tax status of interest on, the 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 Bonds. Prospective Bondholders are urged to consult their own tax advisors with respect to proposals to restructure the federal income tax. Certain requirements, agreements and procedures contained or referred to in the Indenture, the Loan Agreement, the Regulatory Agreement, the Tax Certificate and other relevant documents may be changed and certain actions (including, without limitation, defeasance of the Bonds) may be taken or ornitted under the circumstances and subject to the terms and conditions set forth in such documents. Stradling, Y occa, Carlson & Rauth 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 Stradling, Y occa, Carlson & Rauth. Although Bond Counsel is of the opinion that interest on the Bonds is excluded from gross income for federal income tax purposes and is exernpt from State of California personal income taxes, the ownership or disposition of, or the accrual or receipt of interest on, the Bonds rnay 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 and the Bondholder's other items of income or deduction. Bond Counsel expresses no opinion regarding any such other tax consequences. 32 A-/3S -.-~---------_._-_._._...__.._--- CERTAIN LEGAL MATTERS Legal matters incident to the authorization, issuance and sale of the Bonds are subject to the approving opinion of Stradling, Y occa, Carlson & Rauth, Newport Beach, California, as Bond Counsel. A complete copy of the proposed form of opinion of Bond Counsel is attached hereto as APPENDIX G. Bond Counsel undertakes no responsibility for the accuracy, completeness or fairness of this Private Placement Memorandum. Certain legal rnatters will be passed upon for the Issuer by Stradling, Y occa, Carlson & Rauth, Newport Beach, California, as Bond Counsel; for the Borrower by Turner, Aubert & Young, LLP, Beverly Hills, California for Fannie Mae by its Legal Department and by Arent Fox Kintner Plotkin & Kahn, PLLC, Washington, D,C., Fannie Mae Counsel; and for the Underwriter by its counsel, Cox, Castle & Nicholson LLP, Los Angeles, California. Fees and expenses of certain of the above-mentioned counsel are contingent upon issuance of the Bonds. The various legal opinions to be delivered concurrently with the delivery of the Bonds will be qualified as to the enforceability of the various legal instruments by limitations imposed by the valid exercise of the constitutional powers of the State of California and the United States of America and bankruptcy, reorganization, insolvency or other similar laws affecting the rights of creditors generally, and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). The various legal opinions to be delivered concurrently with the delivery of the Bonds express the professional judgment of the attorneys rendering the opinions on the legal issues explicitly addressed therein. By rendering a legal opinion, the opinion giver does not become an insurer or guarantor of that expression of professional judgment, of the transaction opined upon or of the future performance of parties to such transaction, nor does the rendering of an opinion guarantee the outcome of any legal dispute that may arise out of the transaction. The remedies available to the Bondholders upon a default under the Indenture or the Loan Agreement are in many respects dependent upon judicial actions which are often subject to discretion and delay. Under existing constitutional and statutory law and judicial decisions, including specifically Title II of the United States Code (the federal bankruptcy code), the remedies provided in the Indenture and the Loan Agreernent may not be readily available or rnay be limited, UNDERWRITING Newman & Associates, Inc. has agreed, subject to certain conditions, to purchase the Bonds from the Issuer at a price of par. As consideration for its purchase of the Bonds, the Underwriter will be paid an aggregate fee equal to $ , from which the Underwriter will pay certain expenses. The obligation of the Underwriter to purchase the Bonds is subject to certain terms and conditions set forth in the purchase contract entered into arnong the Underwriter, the Borrower and the Issuer. The Bonds may be offered and sold to certain dealers, banks and others at prices lower than the initial offering prices, and such initial offering prices may be changed, frorn time to time, by the Underwriter. VERIFICATION OF CASH FLOWS The rnathematical accuracy of certain cornputations included in the schedules provided by the Underwriter on behalf of the Issuer relating to the computation of the cash flows from the projected 33 A -/3(", --- ~~-~_.._-,- .-.-.-.---.-- payments of principal and interest on the Mortgage Loan and the sufficiency of such payments together with certain amounts held under the Indenture for the payment of the principal of and interest on the Bonds and certain fees will be verified by , certified public accountants (the "Verification Agent"). The Verification Agent has restricted its procedures to verifying the arithmetical accuracy of certain computations and has not made any study or evaluation of the assumptions and infonnation on which the computations are based and, accordingly, has not expressed an opinion on the data used, the reasonableness of the assumptions or the achievability of the projected outcome. NO LITIGATION To the best knowledge of the Issuer no litigation of any nature is pending, or to its knowledge threatened, in any way relating to, affecting or questioning the issuance, sale, execution or delivery of the Bonds, or of any of the proceedings of the Issuer taken with respect to the issuance or sale thereof, or otherwise affecting or questioning the validity of the Bonds, the pledge or application of any money or securities provided for the payment of the Bonds and the existence or powers of the Issuer or the title of any officers of the Issuer to their respective offices. To the best knowledge of the Borrower, there is no pending or threatened action, suit or proceeding restraining or enjoining the execution or delivery of the Bonds, or in any way contesting or affecting the validity of the foregoing or which in any way contests the existence or powers of the Borrower, and there is no pending or threatened action, suit or proceeding pending against or relating to the Borrower or the Project or which could have a material adverse effect on the financial condition or operation of the Borrower or the Project. NO RATING The Bonds have not been rated by any rating service. No rating has been applied for and no representation is made regarding the likelihood of obtaining a rating should any such application therefor be made. ADDITIONAL INFORMATION The foregoing references to, and summaries or descriptions of, provisions of the Bonds, the Collateral Agreement, the Fannie Mae Pass-Through Certificate, the Loan Agreement, the Indenture, the Regulatory Agreement and all references to other documents or materials not stated in full are only brief references, outlines or summaries of some of the provisions thereof and do not purport to summarize or describe all of the provisions thereof. Copies of the Collateral Agreernent, the Loan Agreement, the Regulatory Agreement and the Indenture may be obtained from the Underwriter or the Trustee. The Issuer has provided only the infonnation under the headings "THE ISSUER," and "NO LITIGATION," as such infonnation relates to the Issuer, and the Issuer is not responsible for the accuracy or completeness of any other information contained herein. 34 /1-/37 ----..-'+-.., - - - --.-- --~..__._-_. ._-"-'--.-.-~------.----'--- The use of this Private Placement Memorandum in connection with the offering of the Bonds has been duly authorized by the Issuer and the Borrower. CITY OF CHULA VISTA By: Is! Mayor GATEWAY TOWN CENTER, L.P, a California limited partnership By: Pacific Southwest Community Development Corporation, a California nonprofit public benefit corporation, Its Managing General Partner By: Executive Director 35 A -13 g .........._._._-~-~._.._~ .._._------~ --- ,-"".-.-,----..- APPENDIX A PROPOSED FORM OF BOND COUNSEL OPINION [TO BE PROVIDED BY BOND COUNSEL] A-l /1- /3 9 ...._-_._~..__..__...._-~._-"-_...__..._.__._._~--,-_.---_._---~----- APPENDIX B THE INDENTURE [TO BE PROVIDED BY BOND COUNSEL] B-1 Ii -I t/O - ---..---------.--- .--".-"-- APPENDIX C THE LOAN AGREEMENT [TO BE PROVIDED BY BOND COUNSEL] C-l A - /<f I _____^~__ . u_..__..____ ~_.__._-------_....__.._.,._-_.- APPENDIX D THE REGULATORY AGREEMENT [TO BE PROVIDED BY BOND COUNSEL] 0-1 II-/~d.. ~..._, ___.__~.~___._.___._.._.u_,,__·,_"_,,~··___~~·___ ___ APPENDIX E THE MORTGAGE [TO BE PROVIDED BY BOND COUNSEL] E-I 1l-/~3 ------------.- ------,------------.- - -.... ,.-- - -.---...- -. -_._-----~---_._._"_._- APPENDIX F FORM OF LETTER OF CREDIT [TO BE PROVIDED BY BANK] F· A-Icf-ý __'c..·"'_ _._.._-----~_. ._-_.._-_.__._-_.._.--,-~.._.__._----------""-'-'-- APPENDIX G THE REIMBURSEMENT AGREEMENT [TO BE PROVIDED BY BANK] G-l /J- ¡<IS;- -- ----~-----~-_..._-_..._..._- ---- ---"- APPENDIX H PROFORMA TITLE INSURANCE POLICY [TO BE PROVIDED BY BORROWER] H,¡ /I-I .¡ to -.-"- .__.~--_-.--._._.- ,--.-,....-...... APPENDIX I FORM OF INVESTOR LETTERS [TO BE PROVIDED BY UNDERWRITER] 1,[ /1- 1£/7 -- ----.----. _._._~,._.,_.,. -- - --,.----------- APPENDIX J EXPECTED FORM OF EXTENDED USE AGREEMENT [TO BE PROVIDED BY BORROWER] J·I /I-!4~ __on --.- . --- -' -,--,-_._---_.._-,--,---_.__.._~- APPENDIX K SUMMARY OF APPRAISAL [TO BE PROVIDED BY BORROWER] K-l /1-119 .._---~._-_..- EXHIBIT 6 - ~- -- - - ---------------------.---.-..-.- Recording Requested by: ) CITY CLERK ) ) When Recorded, Mail to: ) ) CITY OF CHULA VISTA ) 276 Fourth Avenue ) Chula vista, CA 91910 ) Attn: Housing Coordinator ) ------------------------------------------------------------ FIRST AMENDMENT TO AFFORDABLE HOUSING AGREEMENT [MCMILLIN OTAY RANCH LLC] This FIRST AMENDMENT TO AFFORDABLE HOUSING AGREEMENT ("Amendment" ) ià entered into effective as of October 6, 1998 by and between McMillin Otay Ranch, LLC, a Delaware limited liability company ( "Developer") , and the city of Chula Vista, a California municipal corporation ("City") , with reference to the following facts: A, Developer and city have previously entered into that certain Affordable Housing Agreement dated February 10, 1998 ( "Agreement" ) relating to Developer's proposed development of a master planned community (" proj ect") on certain real property owned by Developer within the City described on Exhibit A attached hereto and incorporated herein by this reference ( "Property") . B. The Agreement implemented The Chula vista Housing Element of the General Plan, and related entitlements, including Condition 96 of Tentative Map 97-01, by committing the developer to provide low income and moderate income affordable housing units within the project on the terms and conditions set 'forth therein. . C. Developer is proposing to satisfy its obligations under the Agreement with the development by Gateway Town Center, L.P. ("Gateway" ) of a 440 unit multi-family apartment project ( "Gateway proj ect" ) on parcels R-43 and R-44 of the Property, subject to the terms and conditions of a Regulatory Agreement and Declaration of Restrictive Covenants by and among the city, Gateway and State Street Bank and Trust Company of California, N.A. ( "Regulatory Agreement") . D. city is willing to agree that Developer has satisfied its obligations under the Agreement through the development of the Gateway Project on the terms and conditions set forth herein. H:\Home\Attorney\McMillin.3 1 /1 -/~() --"- -- ~-_.._~. E. Except as otherwise provided herein, all capitalized terms used herein shall have the meanings ascribed thereto in the Agreement. NOW THEREFORE, in consideration of the above recitals, the mutual promises described herein, and other good and v'aluable consideration the parties acknowledge as satisfactory, the parties agree to amend the Agreement as follows: 1. Low Income Housinq. Developer shall be deemed to have satisfied its Developer's Obligation under the Agreement with respect to Low Income Housing for the Project upon the completion of construction of the Gateway Project and the ~ertification by Gateway that seventy four (74) "Low Income Units" have been occupied therein by "Low Income Tenants". For purposes of this Section, "Low Income units" and "Low Income Tenants" shall have the meanings ascribed thereto in the Regulatory Agreement. 2. Moderate Income Housinq. Developer shall be deemed to have satisfied its Developer's Obligation under the Agreement with respect to Moderate Income Housing for the Project upon the completion of construction of the Gateway project and the demonstration by Developer, based upon information provided by Gateway and reasonably approved by City, that seventy four (74) "Moderate Income Housing units" have been occupied therein by "Moderate Income Households". This requirement relates to initial occupancy only and shall not be a continuing obligation. For purposes of this section, "Moderate Income Housing Units" and "Moderate Income Households" shall have the meanings ascribed thereto in the Agreement. 3 . Pro; ect Level Aqreement. City agrees that the Regulatory Agreement shall constitute the Project Level Agreement with respect to the Gateway Project. 4. Aqreement to Meet and Confer Reqardinq For-Sale Moderate Income Opportunities. Developer agrees ,to meet and confer in good faith with city staff from time to time'to explore the potential for the provision of "for sale" Moderate Income Housing within the Project to Moderate Income Households in accordance with City programs established for such purpose. Notwithstanding the foregoing, such agreement to meet and confer does not commit the Developer to provide additional Moderate Income Housing units above and beyond those required by the Agreement as amended hereby. 5. Pro; ect Size Increases. Developer acknowledges and agrees that the extent of Developer's Obligation described herein is premised upon the Project being comprised of one thousand four hundred and eighty (1480) residential units. In the event that the total number of residential units within the Project increases beyond 1480, Developer may be required to provide additional H:\Home\Attorney\McMil1in.3 2 /I-(~-/ " I))" affordable housing units within the Project in accordance with the SPA One Affordable Housing Plan and the Agreement. 6. Effect of Amendment. This Amendment revises the Agreement to the extent inconsistent therewith. Except as.?mended hereby, all other terms and conditions of the Agreement shall remain in full force and effect. [NEXT PAGE IS SIGNATURE PAGE] " H:\Home\Attorney\MCMillin.3 3 A -I .:J d... ---"---... SIGNATURE PAGE TO AFFORDABLE HOUSING AGREEMENT IN WITNESS WHEREOF, city and Developers have executed this Agreement effective as of October 6, 1998. . CITY OF CHULA VISTA McMILLIN OTAY RANCH, LLC, a Delaware limited liability company By: McMILLIN O'3'i"<Y R.:--.nffií, CP Shirley Horton COMPANIES, a Delaware Mayor limited liability company, its m a member Attest: Beverly Authelet City Clerk Approved as to form by TO BE NOTARIZED city Attorney Approved as to form by Attorney for Developer " H:\Home\Attorney\McMillin.3 4 A-IS3 =E?,,~.:397' 3;Ø4~i1 0- ~ EXHIBIT A . P8_ge 1 0,£ 2 LEGAL DESCRIPTION PARCELl BEING A PORTION OF QUARTER SECTION 11 AND A PORTION OF QUAR'reR SECTION 12 OF RANCHO DE LA NActON,1N THB COwrY OF SAN DIEGO, STATE OF CALIFORNIA, ....CCORDING TO MAP THEREOF NO. 166. EY MORlULL FJl.BD IN THE omCE OF THE COtJN'I'Y RECORDER OF SAN DIEGO COUNTY, MAY 1. 1869, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT 'THE sotJTHE.ASTE1U.Y CORNER OF FRAcrIONAL QUAR'reR SBCTION 13: THENCE ALONG THE soUTHERLY LINE OF SAID FRACTIONAL QUARTER SOUTH 71"57'24" WEST 2600.99 FEET TO THE soUffiWESTERL Y CORNER OF SAID FRAC110NAL QUARTER: THENCE ALONG THE WESTERLY LINE '!'HEREOF NORTH 17'51"21" WEST 4171.11 PBET TO THE sotrl'HWESTERLY CORNER OF SAID QUAR'l'BR SECTION 11; THENCE cQNTINUING ALONG THE .WE!S'l$RLY LINE THEREOF " NORTH 17°51'21" WEST 201.45 FEET TO THE TRUE POIN'l' OF BEGJNNING; 11ŒNCE coNTINUING ,.'--.;> NORTI{ 17°51'21" WEST 1677.69FEET TO THE sotJTHERLY RIGH'l'-OF-WAY LINE OF TEL.EORAPH CANYON ROAD AS DESClUBED IN PARCEL NO, 66141-A IN DEED RECORDED APR1L 18, 1967 AS FILE NO, 53304 OF OFfICIAL RECORDS; THENCEALONO SAID RIGHT-OF-WAY NORTH 42°03'10" EAST 426,71 FEET ; TBBNCE SOU'IH 47'56'50" EAST 0.04 FEET TO THE BEGINNING OF ANON-TANGENT. 1933.00-FOOT RADWS CURVE CONCAVE soUTHEASTE1U.Y, A RADIAL LINE TO SAID POINT BEARS NORTH 47'52'S7" WEST; THENCE ALONG TEE ARC OF SAID CURVE NORTHEAS'I'ERLY 707.61 FEET 11iROUGH A CENTRAL ANGLE OF 2O"S8'27"; THBNCE " TANGENT TO SAID CURVE NORTH 63'05'30" EAST 1341.68 FEET ; THENCE SOU'IH 26'S2'33" EAST 0.65 FEET ; '!'BENCE NORTH 63'07'26" EAST 154.45 FEET TO THE BEGINNING OF A TANGENT 1933.00-FOOT RADIUS CURVE CONCAVE SoUTHEAS'ŒRLY, A RADIAL LINE TO SAID POINT BEARS NORTH 26°52'34" WEST; THENCE ALONG THE ARC OF SAID CURVE NORTHEASTERLY 89.77 FEET TBR.QUQHA CENTRAL ANGLE OF 02"S9'4O" TO THE EASTERLY LINE OF SAID QUARTER SBCnON 11; TBBNCE !BAYING SAID CURVE ALONO THE EASTERLY L1NB TBBREOF SOUTH 17"52'24" EAST 3694.65 FEET TO THE BBOINNINd OF A NON-TANGENT 500.00-FOOT RADIUS CURVB CONCAVE sotJTHWESTERLY. A RADIAL LINE TO SAID CtJJtVBBEARS NORTH 25"40'03" EAST, SAID POINT BBJNG A DISTANCE OF 1107.47 FEET sOUTBBRLY OF 'I'HE NOR.'f.BEAS'l'BRLY CORNER OF SAID QUARTBR SECrION ~2; 'IBENCE ALONG THE ARC OF SAID ctJR.VE NORTHWESTBRLY 131,37 FEET THROUGH A æmw.. ANGLB OF 15"03'14"; THBNCE TANGBNI'TO SAID CtJR.VE NORTH 79"23'11" WEST 2461.02 FEET TO THE BBQINNINå OF A TANGENT óOO.oo.FOOT R.ADIUS CUR,VB CONCAVE sotJTHERL Y; THENCE ALONG THE! AltC OF sAID CURVE NORTHWES'I'EIlLY 342.82FEET 11iROUGH A CBNTJW. ANGLE OF 32'44'13" TO THE n'CB poINT OF BEGJNN]NG. CONTAINS 162.960 ACRES MORE OR LESS ¡ /I-/~--cj 1.IIQnSMJIØItCI' I ... nr î? :~. :'=':;1'(' \ :::...J41""\'" , EXHIBIT A Page 2 of 2 ; PARCEL 2 BEING A PORTION OF QUARTER SEcnON 11. .... PORTION OF QUARTER SEcnON 12 ....ND A PORTION OF FRACTIONAL QUARTER SEcnON 13 OF RANCHO DE LA NACION, IN THE COUNTY OF SA1~ DIEGO, STATE OF CALIFORNIA. ACCORDING TO ~ 11iEREOF NO. 166, BY MORRILL FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY. ~A Y 1. 1869, BEING MORE PARTICL'LARL Y DESCIUBED AS FOU.OWS; COMMENCING AT THE sot.rI1ŒAS1'ERLY CORNER OF FRAcnONAL QUAR'ŒR sECI'ION 13; THENCE ALONG THE soUTHERLY LINE' OF SAID FRA,cnONAL QUARTER SOUTH 71°57'24" WEST 2600.99 FEET 70 THE sourHWESTERLY CORNER OF SAID PRACI'IONAL QUARTER SEcnON 13; THENCE ALONG THE WESTERLY UNB THEREOF "' RTH 17°51'21" WEST 1272.13 FEET TO THE TRUE POINT OF BEGINNING, SAID POINT'BmNG A DISTANCE OF 263.21 FEET SOUTHERq: OF 'mE soUTIiWESTERL Y coRNER OF SAID QUARTER .sECIIœf 12; ~:~,' THENCE coNTINUE ALONG THE WESTE.RL Y LINB '!'f!É!ltáŒ NORTH 17°51'21" WEST 310Q.43 FEET TO THE '9EGINNING OF .... :-!ON-TANGS'IT 600,oo-OOOT RADIUS CL'RVE CONCAVE soUI1ŒRL y, ... RADIAL LINE, TO SAID POINT BEARS NORTH 22°07'24" WEST. SAID POn-I'T'ALSO BEING A DISTANCE OF 201.45 FEET NORT1ŒRLY OF TBB NORTHWESTERLY CORNER OF SAID QUARTER SECl'ION 12; THENCE LEAVING SAID WESTERLY LINE ALON~THE ~ OF sAID CURVE EASTERLY 342,82 FEET THROUGH A CENTRAL ANGLE OF 32°44'13": THENCE TANGENT TO SAID CURVE SOUTH 79°23'11" EAST 2461.02 FEET TO THE BEGINNING OF A TANGENT 500.00-FOOT RADIUS CURVE CONCAVE so'(J'1'HWESTERLY; THENCE ALONG 'I'HB ARC OF SAID CURVE soUTHEASTERLY 131.37 FEEl' THROUGH A CENTRAL ANGLE OF 15°03'14" TO 'I'HB EASTERLY LINE OF SAID QUARTER SECl'ION 12. SAID l'OINT BEING A DISTANCE OF 1107.47 FEET soUI'HERLY 01' THE NORTHEASTERLY CORNER OF SAID QUARTER SECl'ION 12; THENCE ALONG SAID EASTERLY LINE THEREOF SOUTH 17"52'24" EAST 922.18 FE5T TO A POINT BEING 598,00 FEET NOR'I'HERLY OF 'I'HB soUTHEASTERLY CORNER OF QUARTER SBCl'ION. 12; TEENCE LEA VINO.SAID EASTEBL Y LINE SOUTH 52"21'27" WEST 611,39 FEET TO THE BEŒNNING OF A TANGENT 3S00.oo-POOT RADIUS €lIRVE CONCAVE sourHBASTERLY; THENCE ALONG TIm ARC OF SAID CURVE soUIHWBSTERL Y 288,16 FEET THROUGH A CENTRAL ANGLE OF 04°43'02": THENCE TANGENT TO SAID CURVE SOt.Tl'H 47"38'25" WEST 581,33 FEET TO TBE BBGINNING OF A TANGENT 2S00.oo-POOT RADIUS CURVE CONCAVE! NQB,TRWESTERLY; THENCE ALONG 'lEE ~ OF SAID CtJRVB sotJ1'HWES'TERL Y 621.73 FEET THROUGH A CBN'I1tAL ANGLE OF 14°14'56"; THENCE TANGENT TO SAID CURVE SOUTH 61°53'21" WEST 647,78 FEET TO THE TRUE POINT OF BEGlNNING CONTAINS 126.945 ACRES MORE OR LESS :: /!-I-SS""" ~ _.~---_..---_.__._.__.- COUNCIL AGENDA STATEMENT Item cÅ 1 Meeting Date: 10106198 ITEM TITLE: A Resolution /9.211.? Approving a Final Map for Chula Vista Tract No. 98- 04, McMillin Otay Ranch SPA One, Phase 2, Accepting on Behalf of the Public a Portion of Santa Cora A venue, a Portion of La Media Road, and a portion of East Palomar Street, Dedicated on Said Map within Said Subdivision, Accepting on Behalf of the City of Chula Vista Assignable and Irrevocable General Utility and Access Easements Granted on Said Map within Said Subdivision, Acknowledging on Behalf of the Public the Irrevocable Offers of Dedication of the Fee Interests of Lots "A" and "B" for Open Space and Other Public Purposes and Lots 2 and 5 for Public Park Purposes. ß Resolution /9 2tJ 1 Approving a Final Map Subdivision Improvement Agreement for Chula Vista Tract 98-04, McMillin Otay Ranch SPA One, Phase 2 and authorizing the Mayor to Execute Said Agreement. C Resolution / 1.20 ~pproving a Final Map Supplemental Subdivision Improvement Agreement for Chula Vista Tract 98-04, McMillin Otay Ranch SPA One, Phase 2 and authorizing the Mayor to Execute Said Agreement. SUBMITIED BY' J);redm ofPobli, Wmh ~ REVIEWED BY, Ci'Y -..~ b _ (4I5tb. Yot<, Ya_NoX) The Tentative Map for McMillin Otay Ranch, ortion of Villages I and 5, Chula Vista Tract 98-04 (CVT 98-04), was approved by Council on June 9, 1998. Tonight, Council will be considering the approval of a Final Map and associated agreements for a portion of CVT 98-04. Said map includes two Multifamily lots, one Mixed Use Lot (Commercial!Residential), two Open Space Lots, and two Park lots located south of East Palomar Street (see Attachment 1). RECOMMENDATION: That Council approve the resolutions approving a Final Map, Final Map Subdivision Improvement Agreement, and Final Map Supplemental Subdivision Improvement Agreement for the McMillin Otay Ranch, SPA One, Phase Two project. DISCUSSION: On June 9, 1998, by Resolution 19034, City Council approved the Tentative Subdivision Map for a portion of Villages 1 and 5 of the McMillin Otay Ranch project, Chula Vista Tract 98-04 (see Attachment 2). An excerpt of the minutes of said meeting are included herewith as Attachment 3. The developer has requested a fInal "B" map for a portion of CVT No. 98-04, covering a portion of the Tentative Map located south of East Palomar Street, for what is commonly known as Gateway Town Center. Condition 104 of CVT No. 98-04 requires that the development of a multifamily lot which does not require the subsequent fIling of a "B" Map shall meet, prior to building permit :< c¡-! Page 2, Item_ Meeting Date 10/06/98 issuance, all the applicable conditions of approval of the Tentative Map, as detennined by the City Engineer. Lots I and 4 of the Final Map will be developed as multifamily units and Lot 3 is planned as a mixed use with ground floor commercial and second and third story multifamily (Gateway Town Center). The developer desires to apply for building permits for the Gateway Town Center shortly after Council approval of the subject Final Map and has requested that the Subdivision Improvement Agreement and Supplemental Subdivision Improvement Agreement include all the applicable conditions of approval for building permit issuance. The Final Map has been reviewed by the Public Works Department and found to be in substantial conformance with the approved tentative map. Approval of the map constitutes acceptance by the City of Assignable and Irrevocable General Utility and Access Easements within the subdivision. Approval of this map also constitutes acceptance on behalf of the public of Santa Cora Avenue within this subdivision, a portion of La Media Road, and a portion of East Palomar Street adjacent to the subdivision. Further, approval of the map constitutes acknowledgment on behalf of the public ofIrrevocable Offers of Dedication of Fee interests for Lots "A" and "8" for Open Space and Other Public Purposes and Lots 2 and 5 for Public Park Purposes. Irrevocable Offers of Dedication (lODs) in fee interest are being made for Open Space Lot "A" and "8" because those lots will be improved in conjunction with the future construction of La Media Road (ftom East Palomar Street to Olympic Parkway). IODs in fee interest are also being made for the Public Park lots. Under Section 7050 of the Government Code, such irrevocable offers of dedication may be accepted at any time. Upon completion of the required open space and/or park improvements, staffwill prepare a resolution proposing acceptance of the open space and/or parks lots. The developer has also executed a Subdivision Improvement Agreement for this map and provided bonds to guarantee the construction of the following public improvements: · Santa Cora Avenue Loop South of East Palomar Street · East Palomar Street Phase II (ftom Santa Cora Avenue to the easterly subdivision boundary). · A portion of the easterly half of La Media Road adjacent to the Subdivision The developer has paid all applicable fees and has provided a bond to guarantee the monwnentation for said subdivision. The agreements is now before Council for approval. The developer has also executed a Supplemental Subdivision Improvement Agreement (SSIA) to satisfy Condition Nos. 1,3,4,6,7, 29b, 29c, 32, 45, 46, 66, 67, 68, 69, 70, 71, 72, 73, 74, 76c, 80, 95,96,99, 100, 102, 104, 105, 106, 112, 113, 114, 116 and 121 of Resolution 19034. Staff has reviewed said Agreement and determined that it satisfies all the applicable tentative map conditions for final map approval and building permit issuance and recommends Council approval. All the conditions, excepting conditions 7 and 73, are addressed using typical language used in previous agreements. A short discussion on conditions 7 and 73 is included at the appropriate location in this report. Following are the conditions included in the agreement: :29 ~;¿ Page 3, Item_ Meeting Date 10/06/98 1. Prior to each final applicable map, the Developer will comply with all requirements and guidelines of the Parks, Recreation, Open Space and Trails Plan, Public Facilities Financing Plan, Ranch Wide Affordable Housing Plan, Spa One Affordable Housing Plan, and the Non-Renewable Energy Conservation Plan, 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. 3. If any of the tenns, covenants or conditions contained herein shall fail to occur or if they are, by their tenns, to be implemented and maintained over time, if any of such conditions fail to be so implemented and maintained according to their tenns, the City shall have the right to revoke or modify all approvals herein granted including issuance of building pennits, deny, or further condition the subsequent approvals that are derived uom the approvals herein granted, institute and prosecute litigation to compel their compliance with said conditions or seek damages for their violation. The applicant shall be notified 10 days in advance prior to any of the above actions being taken by the City and shall be given the opportunity to remedy any deficiencies identified by the City. 4. The applicant shall comply with all applicable SPA conditions of approval. 6. Prior to approval of each final "B" Map, the applicant shall enter into a supplemental subdivision agreement to implement all applicable mitigation measures identified in EIR 95-01, the CEQA Findings of Fact for this Project and the Mitigation Monitoring and Reporting Program. 7. Prior to the approval of each Final Map, the applicant shall comply with all applicable requirements of the Phase 2 Resource Management Plan (RMP) as approved by the City Council on June 4,1996 and as may be amended uom time to time by the City. 1 29 Enter into an agreement with the City, prior to approval of the first final Map (including an "A" Map), in which the developer agrees to the following: 1 Because the developer does not currently own land for conveyance to the Otay Ranch Preserve and the in-lieu fee is not in place, the Supplemental Subdivision Improvement Agreement (SSIA) requires the developer to deposit cash with the City in the amount of $86,765.95 (28.392 acres of conveyance obligation X the average value of$3, 056 per acre determined in the appraisal) concurrent with the execution of the SSIA. Developer fùrther agrees to purchase landfor conveyance to the Preserve, within 18 months after the date of the SSIA. lfthe developer does not buy land within the specified 18 months and/or the cash deposit is used by the City or the Preserve Owner Manager to purchase or condemn land to meet the developer's land conveyance obligations, the developer agrees to provide for any difference between the actual cost incurred by the City or the Preserve Owner Manager and the cash deposit, .21 ~3 -------~...- ..~..._- Page 4, Item_ Meeting Date 10/06/98 b. Not protest the fonnation of any future regional benefit assessment district to finance the Light Rail Transit. c. Fund its fair share of the cost of construction of the two pedestrian bridges connecting Villages One to Village Two and Village Five to Village Six as detennined by the City Engineer based on the proportionate benefit received from the improvements. The developer shall also identify the financing mechanism to be used to fund said cost. 32. In the event the Federal Government adopts ADA standards for street rights-of-way which are in conflict with the standards and approvals contained herein, all such approvals conflicting with those standards shall be updated to reflect those standards. Unless otherwise required by federal law, City ADA standards may be considered vested, as detennined by Federal regulations, only after construction has commenced. 45. In conjunction with the as built grading plans, the applicant shall submit a list of proposed lots with the appropriate grading plan indicating whether the structure will be located on fill, cut or a transition between the two situations. 46. Applicant shall comply with all the provisions of the National Pollutant Discharge Elimination System (NPDES) and the Clean Water Program. 66. The project shall satisfy the requirements of the Park Land Dedication Ordinance (PLDO). The ordinance establishes a requirement that the project provide three (3) acres of local parks and related improvements per 1, 000 residents. Local parks are comprised of community parks and neighborhood parks. A minimum of two thirds (2 acres/1,000 residents) of local park requirement shall be satisfied through the provision of turn-key neighborhood parks. The remaining requirement (1 acre/1,000 residents) shall be satisfied through the payment of fees. 67. All local parks shall be consistent with the SPA One PFFP and shall be installed by the Applicant. A construction schedule, requiring all parks to be completed in a timely manner, shall be submitted for review and approval by the Director of Planning and Building. 68. All local parks shall be designed and constructed consistent with the provisions of the Chula Vista Landscape Manual and related Planning and Building Department specifications and policies. 69. All aspects of the neighborhood parks, shall be designed in accordance with the City Landscape Manual. 70. The Applicant shall receive surplus park credit to the extent the combined park credit for neighborhood parks, and the town square park exceeds the 3 acres per 1,000 residents standard. This surplus park credit may be utilized by the Applicant to satisfy local park requirements in future SPAs. 02, 7-,/ Page 5, Item_ Meeting Date 10/06/98 71. The Applicant and the City shall mutually agree on a PAD fee reimbursement schedule in coordination with the adopted construction schedule. Milestones will be established for partial reimbursement during the construction process. The City may withhold up to 20% of the park construction funds until the park has been completed and accepted. Reimbursement of PAD fees shall include the interest accrued by the City on said PAD fees minus the City's cost of processing and administering this reimbursement program. 72. Unless otherwise specifically stated herein, Developer shall provide the City with an irrevocable offer of dedication, in a fonn approved by the City Attorney, for all designated public park lands prior to approval of the first final Map within the phase identified in the PPPP for said parks. 73. Neighborhood Parks: Developer shall provide the City with an irrevocable offer of dedication, in a fonn approved by the City Attorney, for the parks identified in the PFFP as P-7 and P-8 prior to the approval of the final map in accordance with the PFFP phasing. a. In addition to those required PAD fees, the Applicant shall pay PAD fees based on a fonnula of2 acres per 1,000 residents for the first 833 dwelling units. In the City's sole discretion, PAD fees may be required for units in excess of the first 833 dwelling units. 1 b. Prior to the approval of the first final map which creates residential lots ("B" Map), the applicant shall enter into a supplemental agreement where the applicant agrees to construct and guarantees construction of the fust neighborhood park, no later than issuance of the building permit for the 833rd dwelling unit. The agreement shall also provide the following: l. The level of amenities required in the neighborhood park shall be detennined by the Directors of Planning and Building in conjunction with the park master planning effort required by the City of Chula Vista Landscape Manual. The applicant shall complete construction of the neighborhood park within six (6) months of commencing construction of said park. 2 The Supplemental Subdivision Improvement Agreement (SSIA) stipulates that the developer shall not be required to pay PAD fees so long as the developer is in compliance with the park construction provisions (paragraphs I6b and I6c) contained in the SSIA. In paragraph I6b the developer agrees to provide the City, concurrent with the execution of the SSIA, irrevocable grant offee title for parks P-7 and P-8. Such grants are attached as Exhibit HC" of the SSIA. Paragraph I6c establishes the construction schedule for parks P-7 and P-8 and determines that the level of amenities shall be determined by the Director of Planning and Building in co1ifunction with the park master planning effort required by the City ofChula Vista Landscape Manual. As to improvements, the net efftct is that the developer shall be creditedfor the neighborhood park development fee component of the PAD fie (i. e., $1,51 O/single family d.u) c2~~~ Page 6, Item_ Meeting Date 10/06/98 2. The timing of construction of Parks P-7, P-8 and the regional trails shall be addressed in the revised PFFP. 3. At no time following completion of construction of the first phase of the first neighborhood park shall there be a deficit in "constructed neighborhood park" based upon 2 acresll ,000 residents. Applicant agrees that the City may withhold the issuance of building permits should said deficit occur. For purposes of this condition, the term "constructed neighborhood park shall mean that construction of the park has been completed and accepted by the Director of Planning and Building as being in compliance with the Park Master Plan, but prior to the mandatory one year maintenance period. This condition is not intended to supersede any of the City's maintenance guarantee requirements. 4. The Applicant shall receive reimbursement of PAD fees for any amount above their pro-rata share for the costs of constructing a turn-key park constructed in accordance with the Parks Master Plan. c. The applicant shall grant to the City, at the Final Map stage, an irrevocable offer of dedication for all neighborhood parks shown on the Tentative Map. 74. Community Parks: Prior to the approval of each final Map the Applicant shall pay PAD fees for the Community Park~ based upon a formula of I acre per I, 000 residents.3 76. Prior to the approval of the fIrst fInal "B" Map, the developer shall: c. Submit evidence acceptable to the City Engineer and the Directors of Planning and Building of the formation of a Master Homeowner's Association (MHOA), or another fInancial mechanism acceptable to the City, which includes all the properties within the approved tentative map prior to approval of the fIrst Map. The MHOA shall be responsible for the maintenance of the improvements listed in Condition 76<1. The City Engineer and the Directors of Planning and Building may require that some of those improvements 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 require such annexation of future tentative map areas. The MHOA formation documents shall be approved by the City Attorney. 3 What this means is that the developer shall pay community park fee based on the formula contained in the PAD fie ordinance. c2J --ø Page 7, Item_ Meeting Date 10/06/98 80. Agree to not protest formation or inclusion in a maintenance district or zone for the maintenance of landscaped medians and scenic corridors along streets within and adjacent to the subject subdivision. 95. Developer shall enter into a supplemental agreement with the City, prior to approval of each final Map, where the developer agrees to the following: a. That the City may withhold building permits for the subject subdivision if anyone of the following occur: 1. Regional development threshold limits set by the adopted East Chula Vista Transportation Phasing Plan have been reached. 2. Traffic volwnes, levels of service, public utilities and/or services exceed the threshold standards in the then effective Growth Management Ordinance. 3. The applicant does not comply with the terms of the Reserve Fund Program. b. That the City may withhold building permits for any of the phases of development identified in the Public Facilities Financing Plan (PFFP) for Otay Ranch SPA One if the required facilities, as identified in the PFFP or as amended by the Annual Monitoring Program, have not been completed. c. 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 approval. d. Hold the City harmless from any liability for erosion, siltation or increase flow of drainage resulting from this project. e. Ensure that all franchised cable television companies ("Cable Company") are permitted equal opportunity to place conduit and provide cable television service to each lot on public streets within the subdivision. Restrict access to the conduit to only those franchised cable television companies who are, and remain in compliance with, all of the terms and conditions of the franchise and which are in further compliance with all other rules, regulations, ordinances and procedures regulating and affecting the operation of cable television companies as same may have been, or may from time to time be issued by the City of Chula Vista. ..2 tj-7 Page 8, Item_ Meeting Date 10/06/98 f. Include in the Articles of Incorporation or Charter for the Homeowners' Association (HOA) provisions prohibiting the HOA from dedicating or conveying for public streets, land used for private streets (i.e., in multi-family areas) without approval of 100% of all the HOA members. g. Ensure that all insurance companies are permitted equal opportunity to go out to bid to provide a Cooperative Homeowner's Insurance Program (CHIP). 96. Developer shall enter into a supplemental agreement with the City prior to approval of the first fmal Map, where the developer agrees to the following: a. Participate, on a fair share basis, in any deficiency plan or financial program adopted by SANDAG to comply with the Congestion Management Program (CMP). b. To not protest the formation of any future regional impact fee program or facilities benefit district to fmance the construction of correctional facilities. 99. Prior to the approval of the first final Map, the Developer shall submit and obtain approval by the City Engineer of an "Improvement Phasing Schedule" which will identify the timing of construction of all backbone facilities and/or completion of the activity noted in the following table. The Improvement Phasing Schedule shall be consistent with the PFFP as amended from time to time. COST ITEM TO BE INCLUDED IN IMPROVEMENT PHASING SCHEDULE FACILITY *Payment of Telegraph Canyon Basin Drainage For areas covered by backbone streets and all DlF common areas with include, but are not limited to, parks, schools, paseos and open space lots. * Acquisition/dedication of off-site drainage Poggi Canyon Channel (on-site and off-site) and easement. detention basin *Construction and maintenance (prior to City acceptance). Security satisfactory to the City shall be provided for the above backbone facilities when their construction or compliance is triggered as identified in the approved Improvement Phasing Schedule. In addition to the foregoing, prior to approval of the first final "B" Map, the Developer shall provide security satisfactory to the City Engineer to guarantee the construction of the following: a. Full improvements of that portion of East Palomar Street contained within the tentative map boundaries including full improvements of the transit stop proposed in East Palomar Street at the Village Five core. c2 9 ~o Page 9, Item_ Meeting Date t 0/06/98 b. Fair share of the improvements for the pedestrian bridges connecting Village One to Village Five, Village One to Village Two and Village Five to Village Six. The amount of the security for the above noted improvements shall be 110% times a construction cost estimate approved by the City Engineer if improvement plans have been approved by the City; 150% times the approved cost estimate if improvement plans are being processed by the City or 200% times the construction cost estimate approved by the City Engineer if improvement plans have not been submitted for City review. A lesser percentage may be required if it is demonstrated to the satisfaction of the City Engineer that sufficient data or other infonnation is available to warrant such reduction. 100. The Applicant shall deliver to the School District, a graded elementary school site including utilities provided to the site and an all weather access road acceptable to the District, located within Village Five, prior to issuance of the 500th residential building permit (150 students) . The all weather access road shall also be acceptable to the Fire Department. This schedule is subject to modification by the School district as based on District facility needs. 102. The Developer is required to submit copies of Final Maps in a digital fonnat such as (DXF)graphic file prior to approval of each Final Map. Provide Computer Aided Design (CAD) copy of the Final map based on accurate coordinate geometry calculations and submit the infonnation in accordance with the City Guidelines for Digital Submittal in duplicate on 5-114" HD or 3-1/2" disks. Submit as-built improvement and grading plans in digital fonnat. Provide security to guarantee the ultimate submittal of improvements and grading digital files. Update electronic files after any construction pen and ink changes to the grading or improvement plans and resubmit to the City. 104. The developer may submit and obtain the approval of the City of a master final map ("A" Map) showing "super block" lots corresponding to the units and phasing or combination of units and phasing thereof. Said" A" map shall also show the backbone street dedications and utility easements required to serve the "super block" lots. All "super" block lots created shall have access to a dedicated public street. Said "A" map shall not be considered the first map as indicated in other conditions of approval unless said map contains single or multiple family lots or a subdivision of the multiple family lots shown on the tentative map or unless otherwise indicated in said conditions of approval. The City shall not require improvement plans in order to approve a final map for any "A" Map lots, but the developer shall provide security to guarantee the construction of the backbone facilities, prior to approval of any "A" Map in the following amounts: The amount of the security for the above noted improvements shall be 110% times a construction cost estimate approved by the City Engineer if improvement plans have been approved by the City, 150% times the approved cost estimate if improvement plans are being processed by the City or 200 % times the construction cost estimate approved by the City Engineer if improvement plans have not been submitted for City review. A lesser percentage may be required if it is c2 9--1 Page 10, Item_ Meeting Date 10/06/98 demonstrated to the satisfaction of the City Engineer that sufficient data or other information is available to warrant such reduction. Prior to approval of the first" A" Map, the Developer shall enter into an agreement where the Developer agrees that the subsequent development of a multiple family lot, which does not 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. Construction of non-backbone streets adjacent to multiple family lots will not need bonding with the [mal "A" Map which created such lot. However, such improvements will be required to be constructed under the Municipal Code provisions requiring construction of street improvements under the design review and building permit issuance processes. In the event of a filing of a final map which requires over sizing (in accordance with the restrictions of state law and City ordinances) of the improvements necessary to serve other properties, said final map shall be required to install all necessary improvements to serve the project plus the necessary over sizing of facilities required to serve such other properties. The developer may seek repayment from other property owners through a reimbursement district. 105. Prior to approval of the first "A" Map, the Developer shall enter into an agreement to secure approval of a Master Precise Plan for the Village Five Core Area prior to submitting any development proposals for commercial, multi-family and Community Purpose Facility areas within the SPA Five Village Core. 106. Pursuant to the provisions of the Growth Management Ordinance (Section 19.09 of the CVMe) and the Otay Ranch General Development Plan (GDP), the Applicant shall complete the following: (1.) Fund the preparation of an annual report monitoring the development of the community of Otay Ranch. The annual monitoring report will analyze the supply of, and demand for, public facilities and services governed by the threshold standards. An annual review shall commence following the first fiscal year in which residential occupancy occurs and is to be completed during the second quarter of the following fiscal year. The annual report shall adhere to those guidelines noted on page 353, Section D of the GDP/SRP; and (2.) Prepare a five year development phasing forecast identifying targeted submittal dates for future discretionary applications (SPAs and tentative maps), projected construction dates, corresponding public facility needs per the adopted threshold standards, and identifying financing options for necessary facilities. 112. The Public Facilities Finance Plan or revisions hereto 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. The PFFP identifies a facility phasing plan based upon a set of assumptions concerning the location and rate of development within and outside of the project area. Throughout the build-out of SPA One, actual development may differ from the assumptions contained in the PFFP. Neither the PFFP nor any other SPA One document grant the Applicant an entitlement to develop as assumed in the PFFP, or limit the SPA One's facility improvement requirements to those identified in the PFFP. Compliance with the City of Chula Vista threshold standards, based on actual development patterns and updated forecasts in reliance on changing entitlements and market conditions, shall govern SPA One development patterns and the facility improvement requirements to serve such development. In addition, the ,2 9 ~)tJ Page 11, Item_ Meeting Date 10/06/98 sequence in which improvements are constructed shall correspond to any future Eastern Chula Vista Transportation Phasing Plan or amendment to the Growth Management Program and Ordinance adopted by the City. The City Engineer may modify the sequence of improvement construction should conditions change to warrant such a revision. CODE REQUIREMENTS 113. Developer shall comply with all applicable sections of the Chula Vista Municipal Code. Preparation of the Final Map and all plans shall be in accordance with the provisions of the Subdivision Map Act and the City of Chula Vista Subdivision Ordinance and Subdivision Manual. 114. The Public Facilities Finance Plan or revisions hereto 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. 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. Thoughout the build-out of SPA One, actual development may differ from the assumptions contained in the PFFP. Neither the PFFP nor any other SPA One document grant the Applicant an entitlement to develop as assumed in the PFFP, or limit the SPA One's facility improvement requirements to those identified in the PFFP. Compliance with the City of Chula Vista threshold standards, based on actual development patterns and updated forecasts in reliance on changing entitlements and market conditions, shall govern SPA One development patterns and the facility improvement requirements to serve such development. In addition, the sequence in which improvements are constructed shall correspond to any future Eastern Chula Vista Transportation Phasing Plan or amendment to the Growth Management Program and Ordinance adopted by the City. The City Engineer may modify the sequence of improvement construction should conditions change to warrant such a revision. 116. Underground all utilities within the subdivision in accordance with Municipal Code requirements. 121. The Applicant shall comply with Chapter 19.09 of the Chula Vista Municipal Code (Growth Management) as may be amended from time to time by the City. Said chapter includes but is not limited to: threshold standards (19.09.04), public facilities finance plan implementation (19.09.090), and public facilities finance plan amendment procedures (19.09.100). The applicant acknowledges that the City is presently in the process of amending its Growth Management Ordinance to add a proposed Section 19.09.105, to establish provisions necessary to ensure compliance with adopted threshold standards (particularly traffic) prior to construction of State Route 125. Said provisions will require the demonstration, to the satisfaction of the City Engineer, of sufficient street system capacity to accommodate a proposed development as a prerequisite to final map approval for that development, and the applicant hereby agrees to comply with adopted amendments to the Growth Management Ordinance. ;2. t:) --/1 Page 11, Item_ Meeting Date 10/06/98 sequence in which improvements are constructed shall correspond to any future Eastern Chula Vista Transportation Phasing Plan or amendment to the Growth Management Program and Ordinance adopted by the City. The City Engineer may modify the sequence of improvement construction should conditions change to warrant such a revision. CODE REQUIREMENTS 113. Developer shall comply with all applicable sections of the Chula Vista Municipal Code. Preparation of the Final Map and all plans shall be in accordance with the provisions of the Subdivision Map Act and the City of Chula Vista Subdivision Ordinance and Subdivision Manual. 114. The Public Facilities Finance Plan or revisions hereto 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. The PFFP identifies a facility phasing plan based upon a set of assumptions concerning the location and rate of development within and outside of the project area. Throughout the build-out of SPA One, actual development may differ from the assumptions contained in the PFFP. Neither the PFFP nor any other SPA One document grant the Applicant an entitlement to develop as assumed in the PFFP, or limit the SPA One's facility improvement requirements to those identified in the PFFP. Compliance with the City of Chula Vista threshold standards, based on actual development patterns and updated forecasts in reliance on changing entitlements and market conditions, shall govern SPA One development patterns and the facility improvement requirements to serve such development. In addition, the sequence in which improvements are constructed shall correspond to any future Eastern Chula Vista Transportation Phasing Plan or amendment to the Growth Management Program and Ordinance adopted by the City. The City Engineer may modify the sequence of improvement construction should conditions change to warrant such a revision. 116. Underground all utilities within the subdivision in accordance with Municipal Code requirements. 121. The Applicant shall comply with Chapter 19.09 of the Chula Vista Municipal Code (Growth Management) as may be amended from time to time by the City. Said chapter includes but is not limited to: threshold standards (19.09.04), public facilities finance plan implementation (19.09.090), and public facilities fmance plan amendment procedures (19.09.100). The applicant acknowledges that the City is presently in the process of amending its Growth Management Ordinance to add a proposed Section 19.09.105, to establish provisions necessary to ensure compliance with adopted threshold standards (particularly traffic) prior to construction of State Route 125. Said provisions will require the demonstration, to the satisfaction of the City Engineer, of sufficient street system capacity to accommodate a proposed development as a prerequisite to final map approval for that development, and the applicant hereby agrees to comply with adopted amendments to the Growth Management Ordinance. ;2,CJ-/! Page 12, Item_ Meeting Date 10/06/98 FISCAL IMP ACT: None to the General Fund. Developer has paid all costs associated with the proposed final map and agreements. Attachments: Attachment 1: Plat -Final Map Attachment 2: CVT 98-04 Attachment 3: Minutes of 06/09/98 Meeting (Resolution No 19034) ? N ~ H:\HOMEIENGINEERILANDDEV\OTA YRNCHlAGENDA4.LDT October I, 1998 ;2,C¡--/2 ~':"nu':.es ';une 9, 19ge 3 Page 5 ATTACHMENT - ..\'" 11.A. PUBLIC HEARING PCM 98-21 _ CONSIDERATION OF hN AMENDMENT TO THE OTAY RANCH GENERAL DEVELOPMENT PLAN/SUBREGIONAL PLAN (GDP/SRP) TO Al.1.0W REDUCTION IN VILLAGE CORE DENSITIES - The McMillin Companies has submitted an application to amend the otay Ranch General Development Plan/Subregional Plan (GDP/SRP) and the otay Ranch Sectional Planning Area (SPA) One Plan. In addit.ion, they have submitted a revised Tentative Tract Map, PCS 98-04, which covers the Village Five Core area south of East Palomar Street and Park and Communi~y Purpose Facility uses north of East Palomar Street. Staff recommends approval of the resolutions. (Director of Planning) RESOLUTION 19032 APPROVING AN AMENDMENT TO THE OTAY RANCH GENERAL DEVELOPMENT PLAN (PCM 98-21) B. PUBLIC HEARING PCM 98-16 - CONSIDERATION OF AN AMENDMENT TO THE OTAY, RANCH SECTIONAL PLANNING AREA (SPA) ONE PLAN ON PROPERTY GENERALLY LOCATED ON 1, 110 ACRES SOtr.rl! OF TELEGRAPH CANYON ROAD BETWEEN PAS EO RANCHERO AND THE FUTURE SR-12S ~IGNMENT RESOLUTION 19033 APPROVING AN AMENDMENT PCM 98-16 TO THE OTAY RANCH SECTIONAL PLANNING AREA (SPA) ONE PLAN, WHICH INCLUDES THE OVERALL DESIGN PLAN, VILLAGE DESIGN PLAN AND SUPPORTING DOCUMEllTS, PARKS, RECREATION, OPEN SPACE AND TRAILS PLAN, REGIONAL FACILITIES REPORT, PHASE 2 RESOURCE MANAGEMENT PI.JIH AND SUPPORXING PI.JIHS, NON-RENEWABLE ENERGY CONSERVATION PLAN, RANCH-WIDE AFFORDABLE HOUSING PI.JIH, SPA ONE AFFORDABLE HOUSING PLAN AND THE GEOTECHNICAL RECONNAISSANCE REPORX C. PUBLIC HEARING PCS 98-04 - CONSIDERATION OF A TENTATIVE SUBDIVISION MAP FOR 101.4 ACRES OF THE OTAY RANCH SPA ONE, TRACT 98-04, GENERALLY LOCATED OFF THE SOUTHERN EXTENSION OF OTAY LAKES ROAD, SOtr.rl! OF TELEGRAPH CANYON ROAD ...-..~\ REsò:£iiri:ó¡¡:'i903~ ADOPTING THE FOURTH ADDENDUM TO THE FINAL ENVIRONMENTAL IMPAc:r"REPORT'FEIR 95-01 (SCH #95021012) AND APPROVING A TENTATIVE SUBDIVISION MAP FOR PORXIONS OF TIlE OTAY RANCH SPA ONE, TRACT 98-04, AND MAKING THE NECESSARY FINDINGS councilmember Moot abstained on the item because it. involved the McMill in Company, a client of his company; he left the dais. Beverly Blessant, Associate Planner, presented the staff report. This being the time and place as advertised, the publ ic hearing was declared open. Addressing Council were: . Craig Fukuyama, 2727 Hoover, National City, 91950, representing the McMillin Companies. He stated they were present to respond t.o questions. Councilmember Rindone asked if the 15 dwelling units per acre was the minimum that MTDB would be comfortable with. Mr. Rosaler responded that staff took the applicant's proposal to MTDB and asked if they were satisfied with it; they said they were. He was not sure what ~he minimum density in the Village Core would have to be, but staff believes we have enough units to support the trolley line when it comes through. Councilmember Rindone stated he was sure that MTDB would not give that sanction if it was not the case. He felt it would be good informat.ion for councilmembers, sta~f, and develo~ers to know what the minimum number is. It is essential that the light rail be ·constructed. Since this is the beginning of major developments on the Otay Ranch, and one of the fundamental keys in processing t.he land use provisions was to ensure that when the critical mass was reached, it would forestall the issuance of any building permits until the light rail had opened up. . Robert Fisher, RCC member, 512 patricia Avenue, Chula Vista, 91910, st.ated tha~ RCC did review the second tier EIR and the Resource Management Plan. The:'r ;2.'1-1,3 Y.:':"'.:..:~es JU:J~ 9, 1998 Page 6 3 ATTACHMENT ~ c~nts should be on record. The concern the RCC had with this was some of the indirect impacts north of East Orange. RCC had suggested some standards as to how the natural lands that have wildlife will be restructured and modified. We had set some standards as to how they could proceed to best minimize those impacts, and as they revegitated those slopes to best maintain the integrity, so it was intact with the western Poggi Canyon and the connectivity eventually to Wolfe Canyon. We had reviewed tnat;-and he did not know why the Council was unaware of their recommendations on these plans. He was concerned that it was wasted effort on their part. Mayor Horton stated that Council does get copies of their minutes, so somewhere along the line, Council has reviewed them. There being no one else indicating a desi=e to address the Council, the public hearing was declared closed. Councilmember Rindone remarked that it was not often that a developer comes to the City for permission to reduce density. He asked who would be responsible for the maintenance of the parks. ~~. Rosaler replied that staff is discussing the maintenance of the parks as part of the community facilities district that is being formed for these two neighborhoods. The park maintenance itself are general fund maintenance items as are all public parks. These will be public parks, RESOLUTIONS 19032, 19033, AND 19034 OFFERED BY COUNCILMEMBER RINDONE, headings read, texts waived, passed and approved 4-0-0-1 (Moot abstaining). BOARD AND COMMISSION RECOMMENDÄTIONS , .--- None submit~ed. . c2 ~ ~/t/ 1 ~-z. L ~.AL£I r· 3f)O' MEDIA ROAD I LOT "A" " WT"B" I PARCEL 2 CERT1FJCATE OF .~ COMPLJANCE 1:1'- ,<:> .~ DOC. 1997-0443746 1 ~ ..... » REC. 9-12-97 II) ¡::~ .... ~ ~~ ~1::I:t.. --\ '1¡~::::: ..':I> ~"fb ('"') ~ ~ :I:. 3: II> ~ fT'1 .~ ~ ~~ 2: ..... ~ ..... ~ ~ ~ 3 ~ c.,¡~C) I CI':b:;'-I ~ ,- 6 " C!¡.....>() t- Ii:> PARK .1;\;) '¡I ~ ~~ , :b:;l\i fb ..... h'¡ I\.¡ 'II) ..... ~ - SUBDNISION BOUNDAffr AIa:UC PHASE 2 >() tJ6~ S~"O€. \ ~",P FRACT10NAL SECT! ON 4 T18S¡ R1lV S.B.M. RICK ENGINEERING COMPANY CML ENGINEERS· SURVEYORS· PLANNERS CHULA VISTA TRACT NO. 98-04 ' 5620 FRIARS' ROAD. SAN DIEGO McMILLIN OTA Y RANCH CA. 9211cr2596 PHONE. (619) 291-0707 SPA 1"PHASE 1 PROJECT NUMBER. 13126R c2 9 .--' KEY MAP - 300 SCAlE DATE. SEPTEMBER 15. 1998 ''/.J " CVT qs - 04- .....(0i/!1/. . '«5-:2 . . . .,::/,...../.::/.. '. ," ," .' " , . .,. c.~..4 . \ ~4~ . ~t\\) ?..1 ATTACHMENT l RESOLUTION NO. J9.2ð? RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING A FINAL MAP FOR CHULA VISTA TRACT NO. 98-04, MCMILLIN OTAY RANCH SPA ONE, PHASE 2, ACCEPTING ON BEHALF OF THE PUBLIC A PORTION OF SANTA CORA AVENUE, A PORTION OF LA MEDIA ROAD, AND A PORTION OF EAST PALOMAR STREET, DEDICATED ON SAID MAP WITHIN SAID SUBDIVISION, ACCEPTING ON BEHALF OF THE CITY OF CHULA VISTA ASSIGNABLE AND IRREVOCABLE GENERAL UTILITY AND ACCESS EASEMENTS GRANTED ON SAID MAP WITHIN SAID SUBDIVISION, ACKNOWLEDGING ON BEHALF OF THE PUBLIC THE IRREVOCABLE OFFERS OF DEDICATION OF THE FEE INTERESTS OF LOTS "A" AND "B" FOR THE OPEN SPACE AND OTHER PUBLIC PURPOSES AND LOTS 2 AND 5 FOR PUBLIC PARK PURPOSES NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula vista hereby finds that certain map survey entitled Chula vista Tract 98-04, McMillin Otay Ranch SPA One, Phase 2, and more particularly described as follows: Being a subdivision of a portion of Quarter section 11 and a portion of Quarter section 12 of Rancho de La Nacion in the County of San Diego, State of California, according to map thereof No. 166, by Morril, filed in the office of the County Recorder of San Diego County, May 1, 1869. Area: 31.622 Acres No. Of lots: 7 Numbered lots: 5 Lettered lots: 2 is made in the manner and form prescribed by law and conforms to the surrounding surveys; and that said map and subdivision of land shown thereon is hereby approved and accepted. BE IT FURTHER RESOLVED, said Council hereby accepts on behalf of the public the public streets to-wit: La Media Road, Santa Cora Avenue and East Palomar Street, all as shown on said map within this subdivision and said streets are hereby declared to be public streets and dedicated to the public use. BE IT FURTHER RESOLVED that said Council hereby accepts on behal f of the City of Chula vista the 20' pedestrian access easement as shown on said map within said subdivision. BE IT FURTHER RESOLVED that said Council hereby acknowledges on behalf of the City of Chula vista the Irrevocable Offer of Dedication of the Fee interest of Lots A and B for open 29/1--/ -~.__. space and other public purposes. 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 2 and 5 for public Park purposes. Be IT FURTHER RESOLVED that said Council hereby accepts on behalf of the public the assignable and irrevocable Public utility and Access Easements, all as shown on said map within this subdivision. BE IT FURTHER RESOLVED that the city Clerk of the City of Chula vista be and 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 Assignable And Irrevocable General Utility and Access Easements, and the 20' pedestrian access easement as granted hereon and shown on said map within this subdivision are accepted on behalf of the city of Chula Vista as hereinbefore stated. BE IT FURTHER RESOLVED that City Clerk be and she is hereby directed to transmit said map to the Clerk of the Board of Supervisors of the County of San Diego. Presented by Approved as to form by John P. Lippitt 0-~k John M. Kaheny Director of Public Works City Attorney h:\home\attorney\mm.sia c2C¡A~;z RESOLUTION NO. / '/21J ? RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING A FINAL MAP SUBDIVISION IMPROVEMENT AGREEMENT FOR TRACT 98-04, MCMILLIN OTAY RANCH SPA ONE, PHASE 2 AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT NOW THEREFORE, BE IT RESOLVED that the city Council of the City of Chula vista hereby approves that certain Subdivision Improvement Agreement for Chula vista Tract 98-04, dated the for the completion of improvements in said subdivision, a copy of which is on file in the office of the City Clerk as Document No. BE IT FURTHER RESOLVED that the Mayor of the City of Chula vista is hereby authorized and directed to execute said Agreement for and on behalf of the City of Chula vista. Presented by Approved as to form by John P. Lippit t Cl- ~ ~rfh John M. Kaheny - Director of Public Works city Attorney h,\home\attorney\mmsl.res 19ß-/ Recording Requested by: CITY CLERK When Recorded, Mail to: CITY OF CHULA VISTA 276 Fourth Avenue Chula vista, Ca. 91910 No transfer tax is due as this is a conveyance to a public agency of less than a fee interest for which no cash consideration has been paid or received. Declarant SUBDIVISION IMPROVEMENT AGREEMENT THIS AGREEMENT, made and entered into this day of ____ , 199__, by and between THE CITY OF CHULA VISTA, a municipal corporation, hereinafter called "City", and McMillin Otay Ranch LLC, a Delaware Limited Liability Company, 2727 Hoover Avenue, National City, CA 91950, hereinafter called "Subdivider" with reference to the facts set forth below, which recitals constitute a part of this agreement; R~Ql.:rAl1â... WHEREAS, Subdivider is about to present to the City Council of the City of Chula vista for approval and recordation, a final subdivision map of a proposed subdivision, to be known as McMillin Otay Ranch SPA One, Phase Two, 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 -1- d-7ß-'e>Z ~......_-~--~, ......-.--.,., approval and recordation of said map by the Council, to enter into this agreement wherein it is provided that Subdivider will install and complete, at Subdivider's own expense, all the public improvement work required by City in connection with the proposed subdivision and will deliver to City improvement securities as approved by the City Attorney, and WHEREAS, a tentative map of said subdivision has heretofore been approved, subject to certain requirements and conditions, as contained in Resolution No. 19034, approved on the 9th day of June, 1998 ("Tentative Map Resolution"); and WHEREAS, complete plans and specifications for the construction, installation and completion of said public improve- ment work have been prepared and submitted to the City Engineer, as shown on Drawings Nos. 98-716 through 98-721 (Santa Cora Avenue Phase II) Drawings Nos. 98-964 through 98-870 (East Palomar Street Phase II) and Drawings Nos. 98-871 through 98-873 (La Media Road) , 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 amounts as follows: Santa Cora Avenue Phase II $837,688 East Palomar Street Phase II $741,084 La Media Road $262,299 NOW, THEREFORE, IT IS MUTUALLY UNDERSTOOD AND AGREED AS FOLLOWS: 1. Subdivider, for itself and his successors in interest, an obligation the burden of which encumbers and runs with the land, agrees to comply with all of the terms, conditions and requirements of the Tentative Map Resolution; to do and perform or cause to be done and performed, at its own expense, without cost to City, in a good and workmanlike manner, under the direction and to the satisfaction and approval of the City Engineer, all of the public improvement and/or land development work required to be done in and adjoining said subdivision including the improvements described in the above recitals ( "Improvement Work") ; and will furnish the necessary materials therefor, all in strict conformity and in accordance with the plans and specifications, which documents have heretofore been filed in the Office of the City Engineer and by this reference are incorporated herein and made a part hereof. 2 . It is expressly understood and agreed that all monuments have been or will be installed within thirty (30 ) days after the completion and acceptance of the Improvement Work, and that Subdivider has installed or will install temporary street name signs if permanent street name signs have not been installed, -2- ;L9ß/J 3. It is expressly understood and agreed that Subdivider will cause all necessary materials to be furnished and all Improvement Work required under the provisions of this contract to be done on or before the second anniversary date of Council approval of the Subdivision Improvement Agreement. 4. It is understood and agreed that Subdivider will perform said Improvement Work as set forth hereinabove, or that portion of said Improvement Work serving any buildings or structures ready for occupancy in said subdivision, prior to the issuance of any certificate of clearance for utility connections for said buildings or structures in said subdivision, and such certificate shall not be issued until the city Engineer has certified in writing the completion of said public improvements or the portion thereof serving said building or structures approved by the City; provided, however, that the improvement security shall not be required to cover the provisions of this paragraph. 5. It is expressly understood and agreed to by Subdivider that, in the performance of said Improvement Work, Subdivider will conform to and abide by all of the provisions of the ordinances of the City of Chula vista, and the laws of the State of California applicable to said work. 6. Subdivider further agrees to furnish and deliver to the City of Chula vista, simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sums as shown on Schedule "1", attached hereto and incorporated herein by reference, which security shall guarantee the faithful performance of this contract by Subdivider and is attached hereto, marked Exhibit "A" and made a part hereof. 7. Subdivider further agrees to furnish and deliver to the city of Chula Vista simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the city in the sums as shown on Schedule "1" , attached hereto and incorporated herein by reference, to secure the payment of material and labor in connection with the installation of said public improvements, which security is attached hereto, marked Exhibit "B" and made a part hereof and the bond amounts as contained in Exhibit "B", and made a part hereof. B. Subdivider further agrees to furnish and deliver to the City of Chula vista, simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the city in the sum of TEN THOUSAND DOLLARS AND NO CENTS ($10,000.00) to secure the installation of monuments, which security is attached hereto, marked Exhibit "C" and made a part hereof. 9, It is further agreed that if the Improvement Work is not completed within the time agreed herein, the sums provided by said -3- 021 ß---t( improvement securities may be used by City for the completion of the Improvement Work within said subdivision in accordance with such specifications herein contained or referred, or at the option of the City, as are approved by the city Council at the time of engaging the work to be performed. Upon certification of completion by the City Engineer and acceptance of said work by City, and after certification by the Director of Finance that all costs hereof are fully paid, the whole amount, or any part thereof not required for payment thereof, may be released to Subdivider or its successors in interest, pursuant to the terms of the improvement security. Subdivider agrees to pay to the City any difference between the total costs incurred to perform the work, including design and administration of construction (including a reasonable allocation of overhead), and any proceeds from the improvement security. 10. It is also expressly agreed and understood by the parties hereto that in no case will the City of Chula Vista, or any department, board or officer thereof, be liable for any portion of the costs and expenses of the work aforesaid, nor shall any officer, his sureties or bondsmen, be liable for the payment of any sum or sums for said work or any materials furnished therefor, except to the limits established by the approved improvement security in accordance with the requirements of the State Subdivision Map Act and the provisions of Title 18 of the Chula vista Municipal Code. 11. It is further understood and agreed by Subdivider that any engineering costs (including plan checking, inspection, materials furnished and other incidental expenses) incurred by City in connection with the approval of the Improvement Work plans and installation of Improvement Work hereinabove provided for, and the cost of street signs and street trees as required by City and approved by the city Engineer shall be paid by Subdivider, and that Subdivider shall deposit, prior to recordation of the Final Map, with City a sum of money sufficient to cover said cost. 12. It is understood and agreed that until such time as all Improvement Work is fully completed and accepted by city, Subdivider will be responsible for the care, maintenance of, and any damage to, the streets, alleys, easements, water and sewer lines within the proposed subdivision. It is further understood and agreed that Subdivider shall guarantee all public improvements for a period of one year from date of final acceptance and correct any and all defects or deficiencies arising during said period as a result of the acts or omission of Subdivider, its agents or employees in the performance of this agreement, and that upon acceptance of the work by City, Subdivider shall grant to City, by appropriate conveyance, the public improvements constructed pursuant to this agreement; provided, however, that said acceptance shall not constitute a waiver of defects by City as set forth hereinabove. 13. It is understood and agreed that City, as indemnitee, or any officer or employee thereof, shall not be liable for any injury -4- 02'7ß~~ 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. IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed the day and year first hereinabove set forth, [NEXT PAGE IS SIGNATURE PAGE] -5- -21ß ~~ [SIGNATURE PAGE TO MCMILLIN OTAY RANCH LLC SUBDIVISION IMPROVEMENT AGREEMENT] THE CITY OF CHULA VISTA McMillin Otay Ranch LLC, a Delaware limited liability company - By: McMd~nies, LLC Mayor of the City of -W Chula Vista Its: Ma a 1, mber By: Title: VIt-e. ~-M-~ ATTEST City Clerk By: Tit ß<'t';/r,,/ Approved as to form by city Attorney (Attach Notary Acknowledgment) -6- ;¿9ß --? - '\ ~':J "'- "<,. } STAìE OF CALI~ORNIA . }ss. COUNTY OF :J£l,v\ ~ } On lo l~q~ . before me,{):¡lA/Y\ PJ. rY\trJ.o-z¡¡ N.()~ pu~lt¿ , personally appeared YD b((r A. 0~ \-(h.€,ï cÞncÅ ~(~ J 1: F\J~ "j.,{}.-'fYI.P- ,personally own to me lor 3r6ved tð "'t: UII tilt: t;ä~i~ ui "dti3fact6r¡, 9"¡de>nl'p.} to be the person(s) whose name(s)..i6Iare subscribed to the within instrument and acknowledged to me that ;¡ol£hB.'they executed the same in I ,¡"fller/their authorized capacity (ies), and that by i'1i6:i:ler/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 ¡h Wk ~~ l~~[;A"~~~) i@ COMM.# 1125049 ~ ¡ NOTARY PUBlIC-CA.UFORN~ ~ SAN DIEGO. CA - k _ ~~Y~;~~:~~N;~ ¡This area lor offiCial notarial seal) i SJ0 ~~ ~Vlj- O~ Title of Document ¡ Date of Document No. of Pages I , Other signatures not acknowledged ;¿9ß-!š 3008 (1194) ¡General) First Amencan Title Insurance Company LIST OF EXHIBITS Exhibit" A " Improvement Security - Faithful Performance Bonds Santa Cora Avenue Phase II - $418,844.00 East Palomar Street Phase 11- $370,542.00 La Media Road - $131,150.00 Exhibit "B" Improvement Security - Material and Labor Bonds Santa Cora Avenue Phase II - $418,844.00 East Palomar Street Phase 11- $370,542.00 La Media Road - $131,150.00 Exhibit "c" Improvement Security - Monuments Installation Bond $10,000.00 Securities approved as to form and amount by City Attorney Improvement Completion Date: Two (2) years from date of Council approval of the Subdivision Improvement Agreement, c:\cbs\=vc~ty\s~a\~~ap.ag -7- c29ß~ 1 SCHEDULE "1" IMPROVEMENT FAITHFUL PERFORMANCE MATERIALS AND LABOR Santa Cora A venue Phase II $418,844.00 $418,844.00 East Palomar Street Phase II $370,542.00 $370,542.00 La Media Road $131,150.00 $131,150.00 TOTAL COST: $920,536.00 $920,536.00 -8- O<7ß;---;V ~/YD· Z"1é.-L ~:~ RESOLUTION NO. / tJ :;¿ Ð tfJ - RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING A FINAL MAP SUPPLEMENTAL SUBDIVISION IMPROVEMENTS AGREEMENT FOR CHULA VISTA TRACT 98-04, MCMILLIN OTAY RANCH SPA ONE, PHASE 2 AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT WHEREAS, the developer for Chula vista Tract No. 98-04, has executed a Supplemental Subdivision Improvement Agreement (SSIA) in order to satisfy Conditions 1, 3, 4, 6, 7, 29 (b), 29 (c) , 32, 45, 46, 66, 67, 68, 69, 72, 73, 74, 76 (c) , 80, 95 (a) through 95 (g), 96, 99, 99 (b), 100, 102, 104, 105, 106, 112, 113, 114, 116 and 121 of Resolution 19034, NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula vista does hereby approve the Supplemental Subdivision Improvement Agreement for Chula vista Tract No. 98-04, McMillin Otay Ranch First Final "B" Map, for Spa One, Village Five, Phase 2, a copy of which is on file in the office of the City Clerk as Document No. BE IT FURTHER RESOLVED that the Mayor of the City of Chula vista is hereby authorized and directed to execute said Agreement. Presented by Approved as to form by (~~ 1-rh John P. Lippitt John M. Kaheny Director of Public Works city Attorney c:\cbs\cvcity\reso\mmorsl.vS ~ ;')10, :¿<f'C-.L ~~ RESOLUTION NO. N ~[) ~ - RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING A FINAL MAP SUPPLEMENTAL SUBDIVISION IMPROVEMENTS AGREEMENT FOR CHULA VISTA TRACT 98-04, MCMILLIN OTAY RANCH SPA ONE, PHASE 2 AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT WHEREAS, the developer for Chula Vista Tract No. 98-04, has executed a Supplemental Subdivision Improvement Agreement (SSIA) in order to satisfy Conditions 1, 3, 4, 6, 7, 29 (b), 29 (c) , 32, 45, 46, 66, 67, 68, 69, 72, 73, 74, 76 (c) , 80, 95 (a) through 95 (g), 96, 99, 99 (b) , 100, 102, 104, 105, 106, 112, 113, 114, 116 and 121 of Resolution 19034. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula vista does hereby approve the Supplemental Subdivision Improvement Agreement for Chula vista Tract No. 98-04, McMillin Otay Ranch First Final "B" Map, for Spa One, Village Five, Phase 2, a copy of which is on file in the office of the City Clerk as Document No. BE IT FURTHER RESOLVED that the Mayor of the City of Chula vista is hereby authorized and directed to execute said Agreement. Presented by Approved as to form by Lippitt (~~~ John P. John M. Kaheny Director of Public Works city Attorney c:\cbs\cvcity\reso\mmorsl,v5 ;;L9e.-/ ----...-- - ---------.-_...._-- RECORDING REQUEST BY: ) ) City Clerk ) ) WHEN RECORDED MAIL TO: ) ) CITY OF CHULA VISTA ) 276 Fourth Avenue ) Chula Vista, CA 91910 ) ) No transfer tax is due as this is ) conveyance to a public agency of ) less than a fee interest for which ) no cash consideration has been paid ) or received. ) ) ) ) Developer ) ) Above Space for Recorder's Use McMILLIN OTAY RANCH SPA ONE VILLAGE FIVE SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FIRST FINAL B MAP (Conditions 1, 3, 4, 6, 7, 29 (b), 29 (c) , 32, 45, 46, 66, 67, 68, 69, 72, 73, 74, 76 (c) , 80, 95(a) through 95 (g) , 96, 99, 99 (b), 100, 102, 104, 105, 106, 112, 113, 114, 116, and 121) This Supplemental Subdivision Improvement Agreement ( "Agreement" ) is made this _ day of , 1998, by and between THE CITY OF CHULA VISTA, California ("City" or "Grantee") and McMillin Otay Ranch LLC, a Delaware limited liability Company, ("Developer" or "Grantor"), with reference to the facts set forth below, which recitals constitute a part of this Agreement: RECITALS A. This Agreement concerns and affects certain real property located in Chula vista, California, more particularly described on Exhibit "A" attached hereto and incorporated herein ("Otay Ranch Property") . B. The City has approved, by Resolution No. 19034 ("Resolution") , a Tentative Subdivision Map commonly referred to as Chula vista Tract 98-04 ("Tentative Subdivision Map") for the subdivision of the Otay Ranch Property, subject to certain conditions as more particularly described in the Resolution. The h:\home\attorney\mmbmap,ag2 1 ;¿7C~~ Conditions are attached hereto as Schedule 1. c. Developer has requested a final "B" map for a portion of the Otay Ranch Property, as more particularly described on Exhibit "A-I", (referred to herein as "Property") for what is commonly known as the Chelsea Project. For purposes of this Agreement the term "Project" shall also mean "Property." D. City is willing, on the premises, security, terms and conditions herein contained to approve the final "B" map for which Developer has applied ("Final Map" or "Final -B' Map") as being in substantial conformance with the Tentative Subdivision Map conditions, as described above. Developer understands that subsequent final maps may be subject to the same conditions, E. The following defined terms shall have the meaning set forth herein, unless otherwise specifically indicated: 1. "commencing construction" means when a construction permit or other such approval has been obtained from the City or a construction contract has been awarded for the improvement, whichever occurs first. 2. "complete construction" means when construction on an improvement has been completed and the City has accepted the improvement. 3. "guest builder" means those entities obtaining any interest in the Otay Ranch Property or a portion of the Property, after this "B" Map has been recorded. 4. "Owner" or "Developer" means the person, persons, or entity having a legal or equitable interest in the Otay Ranch Property, or parts thereof, (Including the Property) and includes Developer's successors-in-interest and assigns. 5. "PFFP" means the SPA I Public Facilities Financing Plan adopted by Resolution No. 18286, amended on October 6, 1998 by Resolution No. and as may be amended from time to time. 6. "RMP Phase 2" means the Otay Ranch Resource Management Plan Phase 2, approved by the City Council on June 4, 1996, as may be amended from time to time. 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 h:\home\attorney\mmbmap.ag2 2 21C-3 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 otay Ranch 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") benefit and burden the otay Ranch Property, its successors and assigns and any successor in interest thereto as well as benefit the City. 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 Otay Ranch Property or Project to a guest builder, Developer may request to be released from Developer's obligations under this Agreement, that are expressly assumed by the guest builder, provided Developer obtains the prior written consent of the City to such release. Such assignment to the guest builder shall, however, be subject to this Agreement and the Burden of this Agreement shall remain a covenant running with the land. The City shall not withhold its consent to any such request for a release so long as the assignee acknowledges that the Burden of the Agreement runs with the assignee's 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. d. Partial Release of Developer I s Assignees. If Developer assigns any portion of the Otay Ranch Property or the Project subject to the Burden of this Agreement, upon request by the Developer or its assignee, the City shall release the assignee of the Burden of this Agreement as to such assigned portion if the requirements of this Agreement has been met to the satisfaction of the City and the City determines, in its sole discretion, that and such partial release, will not jeopardize the satisfactory performance of the remainder of the Burden. e. Release of Individual Lots. Upon conveyance of a residential lot to a buyer of an individual housing unit, Developer may have the right to obtain a release for such lot from the Developer's obligations under this Agreement, provided Developer obtains the prior written consent of the city to such release. The h:\home\attorney\mrnbmap.ag2 3 02'jC-Lj City shall not withhold its consent to such release so long as the City finds that the Developer is in compliance with the terms of this Agreement and that such partial release will not jeopardize the City's assurance that the obligations set forth in this Agreement will be performed. 2. Condition No.1 - ~General preliminary). In satisfaction of Condition 1 of the Resolution, Developer hereby agrees to comply with the requirements and guidelines of the Parks, Recreation, Open Space and Trails Plan, PFFP, Ranch wide Affordable Housing Plan, SPA One Affordable Housing Plan, and the Non- Renewable Energy Conservation Plan, as may be amended from time to time, and shall remain in compliance with and implement the terms, conditions and provisions of said documents. 3. Condition No.3 - (General Preliminary). In satisfaction of Condition No. 3 of the Resolution, Developer agrees that if any of the terms, covenants or conditions contained within the Resolution shall fail to occur or if they are, by their terms, to be implemented and maintained over time, if any of such conditions fail to be so implemented and maintained according to their terms, the City shall have the right to deny the issuance of building permits for the Otay Ranch Property or Project, deny, or further condition the subsequent approvals that are derived from the approvals herein granted, institute and prosecute litigation to compel their compliance with said conditions or seek damages for their violation. The Developer shall be notified ten (10) days in advance prior to any of the above actions being taken by the City and shall be given the opportunity to remedy any deficiencies identified by the City within a reasonable period of time. 4. Condition No.4 - (General Preliminary). In satisfaction of Condition 4 of the Resolution, Developer hereby agrees, that Developer shall comply with all applicable SPA conditions of approval. 5. Condition No. 6 - (Environmental). In satisfaction of Condition No. 6 of the Resolution, the Developer hereby agrees to implement all applicable mitigation measures identified in EIR 95- 01, the CEQA Findings of Fact for the Otay Ranch Property and the Mitigation Monitoring and Reporting Program. 6. Condition No.7 - (Environmental). In satisfaction of Condition NO.7 Developer agrees: a. Cash Deposit. Developer understands and agrees that mitigation of the environmental impacts caused by development within the Otay Ranch Project, requires conveyance of land to the Preserve Owner Manager or the payment of an in-lieu fee, in accordance with the requirements of the RMP Phase 2, and other related documents. Developer does not currently own land required h:\home\attorney\mmbmap.ag2 4 -!7C-S to be conveyed to the Preserve Owner Manager but wishes to obtain approval of the Project's final B map before an In-lieu fee has been adopted by the City. Therefore Developer agrees to deposit cash with the city in the amount of $86,765.95 ("Cash Deposit") concurrent with execution of this Agreement. (The City agrees to retain the Cash Deposit in a separate fund account in accordance with the provisions contained in this paragraph 6.) The Cash Deposit represents an estimate of the cash equivalent of the Project's conveyance obligation that is identified in the RMP Phase 2. Developer understands and agrees that Developer's conveyance obligation for the Project is calculated by including development areas, streets, open space lots, paseos, pedestrian parks and slope areas shown on the Final "B" map for the Project. b. Purchase Land. Developer further agrees to use its best efforts to purchase real property, identified in the Conveyance Plan of the RMP Phase 2 ("Land"), within 18 months after the date of this Agreement, in an amount equivalent to the Project's conveyance obligation identified in the RMP Phase 2, as may be amended from time to time. Upon the request of the Developer, City agrees to place the Cash Deposit, into an escrow account for the purchase of the Land within 20 days of Developer's request; provided, however, the City has approved the purchase of the Land as complying with· the criteria of the RMP Phase 2. Notwithstanding the foregoing, Developer understands and agrees that if the City is required by court order or by some state or federal agency to use the Cash Deposit to purchase real property or to deliver said funds to the Preserve Owner Manager to satisfy the Project's land conveyance obligation, the City shall not be required to place the Cash Deposit into the escrow account. If this should occur, the Developer shall no longer be required to use its best efforts to purchase the Land. c. Payment of Any Difference. If the Developer does not buy the Land within 18 months after the date of this Agreement and/or the Cash Deposit is used by the City or the Preserve owner Manager to purchase or condemn real property to meet the Developer's land conveyance obligation for this Project, the Developer agrees to pay the difference between the costs incurred by the City or the Preserve Owner Manager to purchase said property, including administrative costs, escrow and attorney fees and land improvements as required by the RMP Phase 2, and the Cash Deposit that has been provided by the Developer. Developer shall pay the difference within 10 days of being requested by the City. d. Fee Title. If Developer purchases the Land, Developer agrees to deliver, no later than 18 months after the date of this Agreement, fee title to the Land to the City and County of San Diego as joint tenants, approved by the Preserve Owner Manager, and free and clear of liens or encumbrances, except for easements for existing public infrastructure and easements for planned public h:\home\attorney\mmbmap.ag2 5 :2. 9C -~ ~ ._"----- - -----. infrastructure as permitted in the RMP Phase 2. 7. Condition No. 29 (b) - (Not Protest Formation of any Future Regional Benefit Assessment District to Finance the Light Rail Transit). In satisfaction of Condition No. 29 (b) of the Resolution, Developer hereby agrees not to protest the formation and inclusion of the Otay Ranch Property in a regional benefit assessment to finance the construction of the Light Rail Transit. This agreement to not protest the inclusion of these public improvements shall not be deemed a waiver of the right to challenge the amount of any assessment which may be imposed due to addition of these new improvements and shall not interfere with the right of any person to vote in a secret ballot election. 8. Condition No. 29(c) and 99(b) - (Pedestrian Bridges). In accordance with Condition No. 29(C) and Condition No. 99(b) of the Resolution, Developer agrees as follows: a. Payment of Fees. Developer acknowledges and agrees that the "pedestrian bridge" concept is an integral element of the proj ect 's Village Design Plan. Developer has requested that a Development Impact Fee ("DIF") be established to finance the construction of the pedestrian bridges. In partial satisfaction of Condition No. 29(c) and 99(b) of the Resolution, Developer hereby agrees that concurrent with execution of this Agreement, the Developer shall provide the City with cash equal to $183,200.00, which is the amount equal to the estimated DIF amount of $400.00 per dwelling unit within the Property. This represents the Project's fair share, of the cost of construction of the pedestrian bridges connecting Villages One to Two, Villages One to Five, and Villages Five to six. If a DIF mechanism is adopted by the City Council which is less than $400.00 per dwelling unit, once the statutory period for challenging the DIF has expired without a challenge to the DIF, the City agrees to refund the Developer the difference between the cash provided herein and the actual DIF requirement. If the amount of the DIF is more than $400.00 per dwelling unit, Developer agrees to pay the difference between the cash provided herein and the actual DIF requirement. Developer agrees to pay said difference on a prorated basis with each building permit remaining to be issued for the Project or should no further building permits be required for the Project, in total within five (5) days of City's request for payment. b. Retaining Cash. Developer acknowledges that if no DIF mechanism is established for any reason, the City has the right to retain the cash deposit to use for the construction of the pedestrian bridges, Developer further agrees to pay the City, the difference between the Project's fair share of the actual total costs incurred to construct the pedestrian bridges and the amount paid herein. Developer further understands and agrees that the City may use the funds so collected to refund any developer who h:\home\attorney\mmbmap.ag2 6 d.7C -l constructs the pedestrian bridges. c. Subsequent Maps. Developer understands and agrees that subsequent final maps for the Otay Ranch Property may require further compliance with Conditions 29 and 99 including paying a like amount or bonding for said pedestrian bridges. 9. Condition No. 32 - (ADA Standards). In satisfaction of Condition No. 32 of the Resolution, the Developer hereby agrees that in the event the Federal Government adopts ADA standards for street rights-of- way which are in conflict with existing standards and approvals of the City, Developer shall be required to comply with the new ADA standards adopted by the Federal Government. All City's approvals and standards conflicting with new federal standards shall be updated to reflect the most recently adopted standards. Unless otherwise required by federal law, City ADA standards may be considered vested, as determined by Federal Regulations, only after construction has commenced. 10. Condition No. 45 - (Grading). In satisfaction of Condition No. 45, in conjunction with the "as built" grading plans, the Developer hereby agrees to provide a list of proposed lots within the applicable grading plans indicating whether the structures to be constructed on said lots will be located on fill, cut, or at transition between the two situations. 11. Condition No. 46 - (NPDES). In satisfaction of Condition No. 46 of the Resolution, Developer shall comply with all the provisions of the National Pollutant Discharge Elimination System (NPDES) and the Clean Water Program. 12. Condition No. 66 - (Neighborhood Parks). In satisfaction of Condition No. 66 of the Resolution, Developer agrees to provide three (3) acres of local parks and related improvements per 1,000 residents. Local parks are comprised of community parks and neighborhood parks. A minimum of two thirds (2 acres/l,OOO residents) of local park requirement shall be satisfied through the provision of turn-key neighborhood and pedestrian parks. The remaining requirement (1 acre/l,OOO residents) for community parks shall be satisfied through the payment of Park Acquisition Development ("PAD") fees unless otherwise agreed to by the parties. 13. Condition No. 67, Condition No. 68 and Condition 69 - (Parks) In satisfaction of Condition Nos. 67, 68, and 69 of the Resolution, Developer agrees that all local parks shall be installed by the Developer in accordance with the PFFP. In addition, all local parks shall be designed and constructed consistent with the provisions of the Chula Vista Landscape Manual and related Parks and Planning Department specifications and policies. In addition, upon the request of the City, Developer agrees to submit for the approval of the Director of Planning, a h:\home\attorney\mmbmap.ag2 7 J.. <J C - g-- construction schedule that details the construction milestones for the completion of both neighborhood parks P-7 and P-S, within the Otay Ranch Property. 14. Condition No. 71 - (Parks). In accordance with Condition No. 71, The Developer and City agree to negotiate in good faith a Park agreement concerning Developer' s neighborhood and community park obligations described herein. 15. Condition No. 72 and Condition No. 73. - (Parks) In satisfaction of Condition No. 72 and Condition No. 73 of the Resolution, Developer agrees to the following: a. PAD Fees. The Developer shall not be required to pay the neighborhood park portion of the PAD fees for the Project so long as Developer is in compliance with the park construction provisions (paragraphs l5(b) and (c)) contained in this Agreement. b. Grant of Fee Title. Developer agrees to provide the City, concurrent with execution of this Agreement, with an irrevocable grant of fee title, in a form approved by the City Attorney, and free and clear of liens or encumbrances, for the parks identified in the PFFP as P-7 and P-8. (Such Grant shall be attached as exhibit "cn to this Agreement.) c. Construction of Parks. Developer agrees to commence construction of P-7 and P-8 no later than April 2, 2000. Developer may extend commencement of construction of P-7 and/or P-8 for a period of time approved by the City, if such postponement is caused by the City's delay in approving the park plans for P-7 and/or P-8 or for some other reason approved by the City. The level of amenities required in said neighborhood parks shall be determined by the Director of Planning in conjunction with the park master planning effort required by the City of Chula Vista Landscape Manual. Prior to commencing construction of such improvements, Developer shall provide the City with improvement securities, approved as to form by the City attorney, and shall thereafter maintain, in an amount equal to 110% of the cost of constructing the park improvements for Parks P-7 and P-8. The Developer shall complete construction of the neighborhood parks within 8 months of commencing construction of said parks. For purposes of this paragraph 15, the term completion of construction of the neighborhood parks shall mean that construction of the parks have been completed and accepted by the Director of Planning, but prior to the City's established maintenance period. d. No Deficit. Developer further acknowledges and agrees that at no time following completion of construction of the first neighborhood park within the otay Ranch Property (P-7 or P- 8), shall there be a deficit in constructed neighborhood parks in Village 5 based upon 2 acres per /1000 residents. Developer agrees h:\home\attorney\mmbmap.ag2 8 .2~c--1 that the city may withhold the issuance of building permits for the Otay Ranch Property should said deficit occur. 16. Condition No. 74 - (Community Parks): In satisfaction of Condition No. 74 of the Resolution, prior to approval of each final "B" map for the Otay Ranch Project, the Developer agrees to pay PAD fees for a community Park based upon a formula of 1 acre per 1,000 residents and in accordance with the formula set forth in the Park Acquisition Development Ordinance, Municipal Code section 17.10 et seq. ("PADO"). a. Payment within 60 Days. Notwithstanding the foregoing, with respect to the Final "B" Map for the Project, Developer agrees to pay, in cash, the PAD fees for the community park based upon a formula set forth in the PADO of 1 acre per 1,000 residents ("PAD Fees"), no later than 60 days after the Final "Bn Map for the Project has been approved by the City Council. Developer has provided the City concurrent with execution of this agreement, an improvement security or a letter of credit, from a sufficient surety approved by the City and in a form approved by the City Attorney, to guarantee Developer's payment of the PAD Fees for the community park within said 60 days. Developer acknowledges and agrees that if the Pad Fees are not paid within the time agreed herein, the sums provided by the improvement security or the letter of credit may be used by the city to fulfill Developer's PAD Fee obligation. b. Interest Payment. In accordance with Municipal Code Section 17.10.100, Developer further agrees to provide the City with an interest payment, on the PAD Fees, equal to the following; commencing from the date of Final "B" Map approval for the Project, a t the City's average earning rates, computed and compounded quarterly, experienced by the City on its average investments, as determined by the City ("Base Interest Rate") for the first 60 days after said map approval, and thereafter at the Base Interest Rate plus two percentage points until paid, together with any attorney fees and costs incurred in enforcing this provision. c. withhold Building Permits. Notwithstanding any other provision of law, City may withhold final or interim inspection of units for which building permits may have been issued and may withhold issuance of additional building permits, certificates of occupancy, if applicable or any other processing of entitlement on any property or improvements within the Otay Ranch Project, until the required fees are received by the city, including the interest payment. 17. Condition No. 76(c) - (Master Home OWners Association). In satisfaction of Condition No. 76 (c) of the Resolution, the Developer agrees to the following: a. Establishment of MHOA. The Developer agrees to create a Master Homeowner's Association ("MHOA") to own and/or maintain in a professional manner open space areas, medians or h:\home\attorney\mmbmap.ag2 9...2)' C-;/O parkways (referred to collectively herein as "Open Space Area") not maintained by the Community Facility District or the City. Developer shall complete the formation of the MHOA prior to making application for the first building permit for any units within the Otay Ranch Project, excluding sales offices and model homes on the condition that the sales offices and model homes are not sold prior to the Developer's compliance with the provision of this paragraph. Developer agrees that the City has the right to withhold issuance of any building permits for the Otay Ranch Project if no MHOA is established to maintain the Open Space Areas or the city has not approved the final version filed with the Department of Real Estate of that MHOA' s Declaration of Conditions, Covenants and Restrictions (" CC&Rs") . Any revisions to such CC&R' s shall be approved by the City. b. ROA Documentation. On or before 60 days from the date of Council approval of this Agreement, Developer shall submit for City's approval the CC&R's, grant of easements and maintenance agreements, in the form shown on Exhibit "D", and other appropriate documentation, describing the maintenance standards and responsibility of the MHOA's for the Open Space Areas within the Otay Ranch Property. Developer acknowledges that the MHOA' s maintenance of the Open Space Areas may expose the City to liability. Developer agrees to establish an MHOA that will hold the City harmless from any negligence of the MHOA in the maintenance of such Open Space Areas. The MHOA shall be structured to allow annexation of future tentative map areas in the event the City Engineer and Director of Planning require such annexation of future tentative map areas. c. CC&R Provisions. Developer agrees to include the following provisions within the MHOA's CC&Rs: L Before any revisions to provisions of the CC&Rs that may affect the City can become effective, said revisions shall be approved by the city. 2. The MHOA shall identify and hold the City harmless from any claims, demands, causes of action liability or loss related to or arising from the maintenance activities of the MHOA, 3. The MHOA shall not seek to be released by the City from the maintenance obligations described herein without the prior consent of the City and 100 percent of the holders of first mortgages or property owners within the MHOA. 4. The MHOA is required to procure and maintain a policy of comprehensive general liability insurance written on a per occurrence basis in an amount not less than one million dollars combined single limit. h:\horne\attorney\mmbrnap.ag2 10 -J 9 c - /1 d. Approval of CC&Rs. The City shall not unreasonably withhold its approval of the CC&R's or other documentation. Any amendment to these documents shall be submitted to the City for approval prior to becoming effective. 18, Condition No. 80 - (No Protest of Maintenance District or Assessment District). In satisfaction of Condition No. 80 of the Resolution, the Developer hereby agrees not to protest the formation of or the inclusion in, a maintenance district, including a community facility district or a benefit zone, for the maintenance of landscaped medians and scenic corridors along streets within and adjacent to the subject Otay Ranch Property. This agreement to not protest the inclusion of these public improvements shall not be deemed a waiver of the right to challenge the amount of any assessment which may be imposed due to the addition of these new improvements and shall not interfere with the right of any person to vote in a secret ballot election. 19. Condition No. 95 (a) and 95 (b) - (Withhold Building Permits and Hold Harmless). In satisfaction of Condition Nos. 95(a) and 95(b) of the Resolution, the Developer understands and agrees that the performance of Developer's obligations hereunder is required for the health and safety of the residents of the Otay Ranch Property. Therefore, Developer hereby agrees that the City may withhold building permits for any and all buildings within the Otay Ranch Property if anyone of the following occur; 1. Regional development threshold limits set by the East Chula Vista Transportation Phasing Plan have been reached, or 2. Traffic volumes, levels of service, public utilities and/or services exceed the adopted City threshold standards in the then effective Growth Management Ordinance, or 3. The Developer does not comply with the terms of the Reserve Fund Program, or 4. If the required public facilities, as identified in the PFFP or as amended or otherwise conditioned have not been completed or constructed to satisfaction of the City. 20. Condition No. 95(c) - (Hold Harmless). In satisfaction of Condition No. 95(c) of the Resolution, the Developer understands and agrees the Developer shall 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 councilor any approval by its agents, officers, or employees with regard to this subdivision approval. h:\home\attorney\mmbmap.ag2 11 ;? ¡C-/;Z 21. Condition No. 95 (d) - (Erosion). In satisfaction of Condition No. 95 (d) of the Resolution, Developer shall 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, related to erosion, siltation or increased flow of drainage resulting from the Otay Ranch Property. City agrees to reasonably cooperate with Developer in the defense of any such action, claim or proceeding. 22. Condition No. 95(e) - (Cable Company). In satisfaction of Condition No. 95 (e) of the Resolution, Developer agrees to permit all cable television companies franchised by the city of Chula Vista equal opportunity to place conduit to and provide cable television service for each lot or unit within the Otay Ranch Property. Developer further agrees to grant, by license or easement, and for the benefit of, and to be enforceable by, the City of Chula Vista, conditional access to cable television conduit within the properties situated within the Otay Ranch Property only to those cable television companies franchised by the city of Chula Vista the condition of such grant being that (a) such access is coordinated with Developer's construction schedule so that it does not delay or impede Developer's construction schedule and does not require the trenches to be reopened to accommodate the placement of such conduits; and (b) any such cable company is and remains in compliance with, and promises to remain in compliance with, the terms and conditions of the franchise and with all other rules, regulations, ordinances and procedures regulating and affecting the operation of cable television companies as same may have been, or may from time to time be, issued by the City of Chula Vista. Developer hereby conveys to the City of Chula Vista the authority to enforce said covenant by such remedies as the city determines appropriate, including revocation of said grant upon a determina- tion by the city of Chula vista that they have violated the conditions of the grant. 23. Condition No. 95(f) - (Master HOA). In satisfaction of Condition 95(f) of the Resolution, Developer agrees to include in the Articles of Incorporation or CC&RS for the MHOA provisions prohibiting the MHOA from dedicating or conveying for public streets, land used for private streets without approval of 100% of all the MHOA members. 24. Condition No. 95 (g) - (Insurance Companies). In satisfaction of Condition No. 95(g), Developers agree to permit all insurance companies equal opportunity to bid for providing a Cooperative Homeowner's Insurance Program (CHIP). 25. Condition No. 96 - (Congestion Management Program). In satisfaction of Condition No. 96 of the Resolution, the Developer hereby agrees to participate, on a fair share basis, in any deficiency plan or financial program adopted by SANDAG to comply h: \home\attorney\mmbmap .ag2 12 ~tJC-J J with the Congestion Management Program (CMP). Developer further agrees to not protest formation of any future regional impact fee program or facilities benefit district to finance the construction of facilities as defined by the Otay Ranch Plan documents. This agreement to not protest the inclusion of these public improvements shall not be deemed a waiver of the right to challenge the amount of any fee which may be imposed due to these new improvements and shall not interfere with the right of any person to vote in a secret ballot election. 26. Condition No. 99 - (Backbone Facilities). In satisfaction of Condition No, 99 of the Resolution, Developer has submitted an "Improvement Phasing Schedule," attached as Exhibit "En, and adopted by amendment to PFFP, on October 6, 1998. Developer agrees to commence construction of the public street improvements and agrees to provide security satisfactory to the City Attorney in accordance with the time frames and in such sums as set forth in said Improvement Phasing Schedule, as may be amended by the City from time to time. 27. Condition No. 100 - (Schools). In partial satisfaction of Condition No. 100 of the Resolution, the Developer hereby agrees to deliver to the Chula vista Elementary School District, a graded elementary school site including utilities provided to the site and an all weather access road acceptable to the District, located within Village Five, prior to issuance of the sooth residential building permit (150 students) within Village 5 of SPA One. The all weather access road shall also be acceptable to the Fire Department. The Developer understands and agrees that this schedule is subject to modification by the Chula Vista Elementary School District as based on said District's facility needs. 28. Condition No. 102 - (As-Built Plans). In partial satisfaction of Condition No. 102 of the Resolution, the Developer hereby agrees to submit "as-built" improvement and storm drain plans in DXF file format to the satisfaction of the City Engineer. 29. Condition No. 104 - (Multiple Family Lot). In partial satisfaction of Condition No. 104 of the Resolution, Developer agrees and covenants that the subsequent development of a multiple family lot or any other lot that does not require the filing of Final "B" Map, shall meet, prior to the issuance of a building permit for that lot, all the applicable conditions of approval of the tentative map, as determined by the city Engineer. Improvements will be required to be constructed under the Municipal Code provisions requiring construction of street improvements under the design review and building permit processes and in accordance with the PFFP. 30. Condition No. 105 - (Master Precise Plan). In partial satisfaction of Condition No. 105 of the Resolution, the Developer h, \home\attorney\mmbmap. ag2 13 2iC ~ /'1 agrees to secure approval of a Master Precise Plan for the Village Five Core Area from the City, prior to submitting any development proposals for commercial, multi-family and Community Purpose Facility areas within the SPA One Village Cores. 31- Condition No. 106 - (Growth Management Ordinance) . In satisfaction of Condition NO.~106 of the Resolution, the Developer agrees to fund the preparation of an annual report monitoring the development of the community of Otay Ranch. The annual monitoring report will analyze the supply of, and demand for, public facilities and services governed by the threshold standards. An annual review shall commence following the first fiscal year in which residential occupancy occurs and is to be completed during the second quarter of the following fiscal year. The annual report shall adhere to those guidelines noted on page 353, Section D of the GDP/SRP. Developer further agrees to prepare a five year development phasing forecast identifying targeted submittal dates for future discretionary applications (SPAs and tentative maps), projected dates, corresponding public facility needs per the adopted threshold standards, and identifying financing options for necessary facilities. 32. Condition No. 112 - (PFFP) . In satisfaction of Condition No. 112 of the Resolution, Developer agrees to adhere to the PFFP and any amendments thereto, including but not limited to the SPA and tentative map improvements installed in accordance with said Plan or as required to meet threshold standards adopted by the City. Developer and City acknowledge that the PFFP identifies a facility phasing plan based upon a set of assumptions concerning the location and rate of development within and outside of the project area. Throughout the build-out of SPA One, actual development may differ from the assumptions contained in the PFFP. Developer understands that neither the PFFP nor any other SPA One document grant the Developer an entitlement to develop as assumed in the PFFP, or limit the SPA One's facility improvement requirements to those identified in the PFFP. Developer acknowledges that compliance with the City's threshold standards, based on actual development patterns and updated forecasts in reliance on changing entitlements and market conditions, shall govern SPA One development patterns and the facility improvement requirements to serve said development. In addition, the sequence in which improvements are constructed shall correspond to any future Eastern Chula Vista Transportation Phasing Plan or amendment to the Growth Management Program and Ordinance adopted by the City. Developer understands and agrees that the City Engineer may modify the sequence of improvement construction should conditions change to warrant such a revision. 33. Condition No. 113 - (Code Requirements). In satisfaction of Condition No. 113 of the Resolution, Developer agrees to comply with all applicable sections of the Chula Vista Municipal Code. h:\home\attorney\mmbmap.ag2 14 c29é- /ç Developer further agrees that any final map for the Project and all plans for said Project shall be prepared in accordance with the provisions of the Subdivision Map Act and the City of Chula Vista Subdivision Ordinance and Subdivision Manual. 34. Condition No. 114 - (Underground Utilities). In satisfaction of Condition No. 114 of the Resolution, Developer agrees to underground all utilities within the subdivision in accordance with Municipal Code requirements. 35. Condition No. 116 - (Code Requirements). In satisfaction of Condition No, 116 of the Resolution, Developer agrees to comply with all relevant Federal, State, and Local regulations, including the Clean Water Act. The Developer shall be responsible for providing all required testing and documentation to demonstrate said compliance as required by the City Engineer. 36. Condition No. 121 - (Code Requirements). In satisfaction of Condition No. 121 of the Resolution, Developer agrees to comply wi th Chapter 19. 09 of the Chula vista Municipal Code (Growth Management) as may be amended from time to time by the city. Said chapter includes but is not limited to: threshold standards (19.09.04), public facilities finance plan implementation (19.09.090), and public facilities finance plan amendment procedures (19.09.100). Developer further acknowledges and agrees that the City is presently in the process of amending its Growth Management Ordinance to add a proposed Section 19.09.105, to establish provisions necessary to ensure compliance with adopted threshold standards (particularly traffic) prior to construction of State Route 125. Said provisions will require the demonstration, to the satisfaction of the City Engineer, of sufficient street system capacity to accommodate a proposed development as a prerequisite to final map approval for that development, and the applicant hereby agrees to comply with adopted amendments to the Growth Management Ordinance. 37. Satisfaction of Conditions. City agrees that the execution of this Agreement constitutes satisfaction of Developer's obligation with respect to this Final "B" Map of Conditions Nos. I, 3, 4, 6, 7, 29(b), 32, 45, 46, 66, 67, 68, 69, 72, 73, 74, 76(c), 80, 95(a) through 95(g), 96, 99, 106, 112, 113, 114, 116, and 121 and in partial satisfaction of Condition Nos. 29(c), 99(b), 100, 102, 104, and 105 of the Resolution. Developer further understands and agrees that some of the provisions herein may be required to be performed or accomplished prior to the approval of other final maps for the Otay Ranch property as may be appropriate. 38. Unfulfilled Conditions. Developer hereby agrees, unless otherwise conditioned, that Developer shall comply with all unfulfilled conditions of approval of the Tentative Map, established by the Resolution and shall remain in compliance with h: \horne\attorney\rnrnbrnap. ag2 15 :l7é- /¿; -~._--_.__...._-- ------ and implement the terms, conditions and provisions therein. 39. Recording. This Agreement, or an abstract hereof shall be recorded simultaneously with the recordation of the Final Map, 40. Building Permits. Developer understands and agrees that the City may withhold the issuance of building permits for the Otay Ranch Property, 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. 41. Miscellaneous. a. Notices. Unless otherwise provided in this Agreement or by law, any and all notices required or permitted by this Agreement or by law to be served on or delivered to either party shall be in writing and shall be deemed duly served, delivered, and received when personally delivered to the party to whom it is directed, or in lieu thereof, when three (3) business days have elapsed following deposit in the u.s. mail, certified or registered mail, return receipt requested, first-class postage prepaid, addressed to the address indicated in this Agreement. A party may change such address for the purpose of this paragraph by giving written notice of such change to the other party. CITY OF CHULA VISTA 276 Fourth Avenue Chula vista, CA. 91910 Attn: Director of Public Works Developer: McMillin Otay Ranch LLC, 2727 Hoover Avenue National City, California, 91950 Attn: Robert Pletcher b. Captions. Captions in this Agreement are inserted for convenience of reference and do not define, describe or limit the scope or intent of this Agreement or any of its terms. c. Entire Agreement, This Agreement contains the entire agreement between the parties regarding the subject matter hereof. Any prior oral or written representations, agreements, understandings, and/or statements shall be of no force and effect. This Agreement is not intended to supersede or amend any other agreement between the parties unless expressly noted. d. preparation of Agreement. No inference, assumption or presumption shall be drawn from the fact that a party or his attorney prepared and/or drafted this Agreement, It shall be h: \home\attorney\mmbmap. ag2 16 c29é - /) conclusively presumed that both parties participated equally in the preparation and/or drafting this Agreement. e. Recitalsl Exhibits. Any recitals and exhibits set forth above are incorporated by reference into this Agreement. f. Attorneys' ~ees. 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 attorneys' fees and court costs incurred. The "prevailing party" shall be deemed to be the party who is awarded substantially the relief sought. IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed the day and year first hereinabove set forth. THE CITY OF CHULA VISTA McMillin Otay Ranch LLC, a Delaware limited liability company By: McMillin Companies, LLC Its: M gin er Mayor of the City of Chula vista By ATTEST city Clerk Approved as to form by v't~~. f.¡-(.~~ Title: City Attorney (Attach Notary Acknowledgment) h:\home\attorney\mmbmap.ag2 17 29C -/Y '\ } STATE OF CALIFORNIA, }ss. COUNTY OF 5tv\ ~ } On lO Wq~ ' before me, JXAWY\ PJ. O'\tr\101J¡,. N,()~ PU~ll¿ . personally appeared J20 b((t A. Çk tt-her- o...t'\cÅ ÛiU~ I 1: Ful¡::. J{}.-yYl.p"- ,personally own to me (er 3re.ed tô """ url (he uâ::.i::. uf :><,[isfacler!' 8"irlpnr-e.j.to be the person(s) whose name(s)..i6,lare subscribed to the within instrument and acknowledged to me that R.e,'£l:1g/they executed the same in I ,i"tl,¿r/their authorized capacity(ies), and that by l'1is,'Rer/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 ~ WJ.\ a-.~ ~~~~ en . 0;'0 ! NOT AR't PUlLICoCAUI'OAHIA Z'.,.. SANOIIOO,Oi. - ~ ~YCC-"""''''lsslQNr.t''''MaJ.\NIa.IOO\ j ¡This area jor official notarial seal) ~_ _...J....~.,..,J.....~- Title of Document Sir SJ~ ~ì? ~-o~ ç\ \1\1\, ç ¡ Date of Document I .' I 0Jo,-ò¡ Pages I Other Slgna1Ures not acknowledged )9é-/; 3008 (1/94) (General) Firsl American Title Insurance Company EXHIBIT LIST Exhibit "A" Legal description of all tentative map area Exhibit "A-I" Legal description of Final Map area Exhibit "c" Fee title to parks Exhibi t "D" Sample of Easement Agreement Exhibit "E" Improvement Phasing Schedule :¿9C-;¿û -.------- EXHIBIT A -- J-13126R LEGAL DESCRIPTION FOR SUBDIVISION SUPPLEMENTAL AGREEMENT A parcel of land being that portioÐ of Parcel 2 of Certificate of Compliance recorded September 12, 1997 as Document No. 1997-0443746 in the City of Chula Vista, County of San Diego, State of California described as follows: Beginning at the Southeasterly corner of Chula Vista Tract No. 97-02 per Map No. 13605, said corner also being a point on the Easterly line of said Certificate of Compliance; thence along said Easterly line South 17°52'24" East 791.31 feet; thence leaving said line South 52°39'34" West 397.84 feet to the beginning of a tangent 4000.00 foot radius curve concave Southeasterly; thence Southwesterly along the arc of said curve through a central angle of 05°20'02" a distance of 372.38 feet; thence South 47°19'32" West 694.48 feet to the beginning of a tangent 2400.00 foot radius curve concave Northwesterly; thence Southwesterly along the arc of said curve through a central angle of 14°37'18" a distance of 612.47 feet; thence South 61 °56'50" West 217.05 feet; thence North 28°29'50" West 172.53 feet to the beginning of a tangent 2400.00 foot radius curve concave Northeasterly; thence Northwesterly along the arc of said curve through a central angle of 11 °28'26" a distance of 480.62 feet; thence North 17"01'24" West 1 011.22 feet to the beginning of a tangent 2000.00 foot radius curve concave Easterly; thence Northerly along the arc of said curve through a central angle of 27°44'15" a distance of 968.22 feet; thence North 10°42'51" East 75.36 feet to a point on the Southwesterly line of said Map No. 13605; thence along said Southwesterly line the following courses: South 79°17'09" East 68.00 feet; thence North 55°52'51" East 28.28 feet; thence South 79°17'09" East 726.28 feet; thence South 34 °17'09" East 28.28 feet; thence South 79°17'0.9" East 58.00 feet; thence North 55°42'51" East 28.28 feet; thence South 79°17'09" East 52.23 feet; thence South 75°28'18" East 45.10 feet; thence South 79°17'09" East 81.53 feet; thence South 83°06'00" East 45.10 feet; thence South 79°17'09" East 114.55 feet; thence South 34°17'09" East 28.28 feet; thence North 79°17'09" West 52.00 feet; thence North 55°42'51" East 28.28 feet; thence South 79°17'09" East 311.52 feet; thence South 34°17'09" East 28.28 feet; thence South 79°17'09" East 58.00 feet; thence North 55°42'51" East 28,28 feet; thence South 79°17'09" East 244.69 feet to the beginning of a tangent 522.50 foot radius curve concave Southwesterly; thence Southeasterly along the arc of said curve through a central angle of 23°23'22" a distance of 213.30 feet to the Point of Beginning. Containing 91.93 acres more or less. ~ß~ f-2~-', Robert G, Schoettmer L.S. 4324 jbl1 31 26.003 ;¿~C-cJ../ SEP-30-9B 02:54 PM RICK ENGINEERING COMPANY 2914165 P..02 EXHIBIT .4- 1 ...-Afu. J-1 31 26R LEGAL DESCRIPTION FOR MCMILLIN OTAY RANCH SPA I PHASE 2 A parcel of land being that portion of Parcel 2 of Certificate of Compliance recorded September 12, 1997 as Document No. 1997-0443746 in the City of Chula Vista, County of San Diego, State of California déscribed as follows: Commencing at the intersection of East Palomar Street with La Media Road as shown on Chula Vista Tract No. 97-02 according to Map No, 13605; thence South 10"42'51" West 97.50 feet to the TRUE POINT OF BEGINNING being a point on the Southwesterly boundary line of said Map No. 13605; thence along said boundary line the following courses: South 79"17'09" East 68.00 feet; thence North 55"42'51" East 28.28 feet; thence South 79"17'09" East 726,28 feet; thence South 34"17'09" East 28.28 feet; thence South 79"17'09" East 58.00 feet; thence 55 "42'51" East 28.28 feet: thence South 79"17'09" East 52.23 feet: thence South 75"28'18" East 45.1 ° feet; thence South 79"17'09" East 81.53 feet; thence South 83"06'00" East 45.10 feet; thence South 79"17'09" East 114.55 feet; thence South 34"17'09" East 28.28 feet; thence South 79°17'09" East 52.00 feet; thence North 55°42'51" East 28.28 feet; thence South 79" 17'09" East 3 1 1 .52 feet; thence South 34 0 17'09" East 28.28 feet; thence South 79"17'09" East 58.00 feet; thence leaving said line South 1 0"42'51" West 71.12 feet to the beginning of a tangent 1028.00 foot radius curve concave Northwesterly; thence Southerly along the arc of said curve through a central angle of 00"12'25" a distance of 3.71 feet; thence South 10"55'16" West 508.89 feet to the beginning of a tangent 448.00 foot radius curve concave Northerly; thence Northwesterly along the arc of said curve through a central angle of 179"47'35" a distance of 1405.82 feet; thence North 10"42'51" East 46.86 feet; thence South 87"48'57" West 159.31 feet: thence South 88"34'33" West 94.12 feet; thence South 86" 11 '56" West 39,24 feet; thence South 83"46'21" West 51.12 feet: thence South 77"04'25" West 75.78 feet; thence North 86"10'22" West 84.01 feet; thence South 81 "21 '48" West 184,30 feet; thence South 81021 '48" West 64,00 feet to the beginning of a non-tangent 2000.00 foot radius curve concave Easterly, to which a radial line bears South 81 "21'48" West: thence Northerly along the arc of said curve through a central angle of 19°21 '03" a distance of 675.47 feet; thence North 10"42'51" East 75.36 feet to the TRUE POINT OF BEGINNING. Containing 31.62 acres more or less. .#2/þg"¿&~ ,-'t:I-,ß Robert G, Schoettmer jb/1 31 26r.OO1 ~C¡C-,2,cÅ Recording requested by and please return to: City Clerk City of Chula Vista P.O. Box 1087 Chula Vista, CA 91912 This instrument benefits City. only, No fee required . (This space for Recorder's use, only) . APN(s) 642-060-]] & 642-080-0] C.V. File No, 0600-80-0R217F IRREVOCABLE OFFER OF DEDICATION OF FEE INTEREST FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, McMillin Otav Ranch, LLC. a Delaware Limited Liabilitv Companv, formerlv known as McMillin-DA America Otay Ranch LLC, a Delaware Limited Liabilitv Comnany represents that, as the owner(s) of the herein-described real property, (in the case of multiple owners, collectively referred to as "Grantor"), hereby makes an Irrevocable Offer of Dedication of fee interest to THE CITY OF CHULA VISTA, A MUNICIPAL CORPORATION, the hereinafter described real property for the following public purpose: FOR OPEN SPACE PURPOSES The real property referred to above is situated in the City of Chula Vista, County of San Diego, State of California, and is more particularly described as follows: Lots "A" and "B" of Chula Vista Tract 98-04. McMillin Otav Ranch Spa 1 Phase 2, MaD No. Contains 2,402 acres, more or less This Offer of Dedication is made pursuant to Section 7050 of the Government Code of the State of California and may be accepted at any time by the City Clerk of the City of Chula Vista. This Offer of Dedication of fee interest shall be irrevocable and shall be binding on the Grantor, its heirs, executors, administrators, successors and assigns. Page I of2 jb/misccomp/sjslformsliodform.004 :2 7C-c23 , £.¿!ffl3 II' l0e. 0' ---..-».. _._----_._~.- SIGNATURE PAGE Signed this Z5~ day of ~ ,19 "18 McMillin Otay Ranch LLC, a Limited Liability Company, fonner1y known Grantor Signatures: as McMillin-DA America Otay Ranch LLC. a Limited Liability Company By: McMillin Companies, LLC, a Delaware Limited Liability Company, its Mana 'n b By: B: (Notary Acknowledgment Required for Each Signatory) This is to certify that the interest in real property offered herein to the City of Chula Vista. a governmental agency. is hereby acknowledged by the undersigned. City Clerk, on behalf of the Chula Vista City Council pursuant to authority conferred by Resolution No. 15645 of the Chula Vista City Council adopted on June 5.1990, and the grantee(s) consent(s) to the recordation thereofby its duly authorized officer. BEVERLY A. AUTIIELET CITY CLERK By: Date: jb/misccomp/sjs/forms/iodform.004 Page 2 of2 ;¿ 9c -c2ý > STATE OF CALIFORNIA . > COUNTY OF 5C1.n DI~ > On ~ ~qe> before me, _ J)Q¡pn 1!>. t'Y\ cLO-z..A.; Notd.j- J1vbit£.> , personally appeared Robcri- A. Pk~ (),rcd 1Mm¡u .A .çVìk1'" , personally !mown to me{ IIr preys!! Ie ffiG g¡:¡ tJ:¡(' ]¡:;¡~i~ ef sflti3faetsf)' e,..i!!~uGG) to be the person(s) whose name(s).ielare subscribed to the within instrument and ac!mowledged to me that Ì!efSfte/they executed the same in 1ris4Ier/their authorized capacity(ies), and that by h~/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 ,J2IlW'/l.. (J;., /1'1Ltt dj ~f.~~~11 '" .~. NOTARY PlaJCCAUFORN~ > Z .. ..... SAN DIEGO. CA _ STATE OF CALIFORNIA > ~~~ COUNTY OF > On before me, _ , personally appeared , personally !mown 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 ac!mowledged to me that he/she/they executed the same in hislher/their authorized capacity(ies), and that by hislher/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 notary.sig c2<jc-if Recording requested by and please return to: City Clerk City of Chula Vista P,O. Box 1087 Chula Vista, CA 91912 This instrument benefits City, only. No fee required ... (This space for Recorder's use, only) ... APN(s) 642-060-11 & 642-080-01 CY File No, 0600·80-0R217F IRREVOCABLE OFFER OF DEDICATION OF FEE INTEREST FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, McMillin Otav Ranch, LLC, a Delaware Limited Liabilitv Comoanv, formerlv known as McMiIlin-DA America Otav Ranch LLC, a Delaware Limited Liabilitv Comoanv represents that, as the owner(s) of the herein-described real property, (in the case ofmu1tiple owners, coHectively referred to as "Grantor"), hereby makes an Irrevocable Offer of Dedication of fee interest to THE CITY OF CHULA VISTA, A MUNICIPAL CORPORATION, the hereinafter described real property for the fonowing public purpose: FOR PUBLIC PARK PURPOSES The real property referred to above is situated in the City of Chula Vista, County of San Diego, State of California, and is more particularly described as foHows: Lots 2 and 5 of Chula Vista Tract 98-04, McMillin Otav Ranch So a ] Phase 2, Map No. Contains 6.575 acres, more or less This Offer of Dedication is made pursuant to Section 7050 of the Government Code of the State of California and may be accepted at any time by the City Clerk of the City of Chula Vista. This Offer of Dedication offee interest shan be irrevocable and shaH be binding on the Grantor, its heirs, executors, administrators, suçcessors and assigns. Page 1 of2 jbfmisccomp/sjslforms/iodform.OO3 ,f\Lh,b,f- '. C. " ;<fé-'¿ ? - . ---~_.. SIGNATURE PAGE Signed this ZS~ dayof~ ,19.,jL McMillin Otay Ranch LLC, a Limited Liability Company, formerly known Grantor Signatures: as McMillin-DA America Otav Ranch LLC. a Limited Liabilitv ComDanv By: McMillin Co anies, LLC, a Delaware Limited Liability Company, itsM M me B: B ~?KJ ~ (Notary Acknowledgment Required for Each Signatory) This is to certifY that the interest in real property offered herein to the City of Clzula Vista, a governmental agency. is hereby acknowledged by the undersigned. City Clerk. on behalf of the Chula Vista City Council pursuant to authority conferred by Resolution No. 15645 of the Chula Vista City Council adopted on June 5.1990. and the grantee(s) consent(s) to the recordation thereofby its duly authorized officer. BEVERLY A. AUTIŒLET CITY CLERK By: Date: jb/misccomp/sjslformsliodform.003 Page 2 of2 c29é-;¿ / > STATE OF CALIFORNIA > COUNTY OF 'SLln D,'1'Ù > On q I1!-li2> before me,_ _Paw"" 1', yY\ll'\.c{,.oVtj Np1w -P.;blu. , personally appeared 'Rober:( A. ?\d-d-ur OArÁ Thl:.ì'Y\-1U A~l-<.ý , personally known to IDP_(nr prnvpr1 to ~~ QR tQ@ sari. gf .:iÍidactery e.;d~u~c} to be the person(s) whose name(s).ielare subscribed to the within instrument and acknowledged to me that ~/they executed the same in !åeA!er/their authorized capacity(ies), and that by ~/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument -------------1 WITNESS my hand and official seal. r-. ~_~.- DAWN Š~MÈÑDÕŽA- i@ COMM.# 1125049 ~ Signature ¡J¿fJ{).M.. (1;;. }Yt¡..,.. dJ- .~.: NOTAFlY PUBL.1CGA.Ull()A,N.... Z SAN DIEGO. CA .... ~....... ...YCOtM.tlS5lOf'fJ:F'I~J-.H~X!O\_J ~~J...¿,"'_ _ _.__ > STATE OF CALIFORNIA > COUNTY OF > On before me, _ , personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person( s) whose name(s) islare 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 hislher/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 notary.sig 2 9C-~'6 EXHIBIT. D ___...Jt RECORDING REQUESTED BY AND WHEN RECORDED RETIJR.>,J TO: Cil)' Clerk Cily of Chula Vista 276 Fourth A venue Chula Vista, CA 91910 No ¡raMJer lar is due lD this is D conveyance 10 Q public aK~ncy for 1= than a fe~ int~rat far whi~h no cash cDnslderation nas b~tr. paid or re:ei»ed. 'ABOVE s'"cr fOR R.E.CORDER'S LISE) GRANT OF EASEMENTS AND MAINTENANCE AGREEMENT (DEDICATED EASEMENTS) This GRAJl.ï OF EASEMThïS AND MAJ}.'TENANCE AGREEMENT ("Agreement") is mad~ this day of . 199_, by and ~tw~en the: CITY OF CHtJLA VISTA, a municipal corporation ("Cil)'''), and McMILLIN OTA Y RANCH LLC, a Dc:lawa..., limited iiabilil)' company ("LLC"). RECITALS A. Tnis Agrc:c:ment concerns and affects =in real prop:ny located in Cbula Vista. California. more panicularly des...'"TÏbc:d in Exhibit "A" attached herc:tDand incorpo:-attd berein ("Property"). The Property is part ofa planned =idential development project commonly known as "McMiin Lomas Verdes". For purposes of this Agreement, the tenn "Project" shall also mean the Proper.y". 3. LLC is the owner of the Property and the Declarant under tbat certain Master Declaration of Restrictions For McMillin Lomas Verdes Master Association filed for n::cord on . 1998 as Document No. 1998-_, Official Records of San Diego County, California (the: "Master Declaration"), LLC bas caused the formation of McMiIlin Lomas Verdes Master Association, a nonprofit mutual bendit corporation (the "MHOA ") to maintain certain an::as in tbe Project. C. Tbe Property is coven::d by that certain final map (the "Final Map") described on Exhibit .. A" attacbed hereto. D. On 1998, in order for LLC to obtain the Final Map and for the Cìl)' to bave assurance tbat tbe maintenance of the Projecrs open space areas and thoroughfare median an::as would be provided for, the City..od LLC entered into a Supplemental Subdivision improvernent Agreement. by Resolution No, _, in wbicb LLC agn::ed that maintenance of sucb an::as shall ~ accomplished by tbe creation of a home owners association and the establishment of a Community Facilities DistricL Exhibit "B" attached he:,."to descri~s those particular casements which were dedicated to the public on tbe Final Map but which arc: to ~ maintained by the MHOA. Tne public easements to be: maintained by the Homeowner Association are collectively n::feITed to as tbe "MHOA Maintained Public Areas". T ,,"¡:lIulhn>omy\PrkwyE.ur..2 + 'i~l'91 :27C-2.Cj --~._-_.------ E. Tne City desires to grant to LLC el!Sements for landscape maintenance purposes u;>on. over and across the MHOA Maintained Public Areas consisting of Lpa:kways/ trailsj In order to facilitate the obligations ofLLC I!S se1 forth in the Supplemenlal Subdivision Improvement Agreement adopted by Resolution No. _. F. Tne City also will allow LLC to cross appropriate portions of that certain general utility C2Scmem ("General Utility Easement") described on Exhibit "C" attached hereto for purposes of access to slo~s within the Project which will initially bt: maintained by LLC and eventually maintained by the MHOA. NOW, THEREFORE, in considc:r¡¡tion of the mutual covenants herein contained, the parties agree 2.S set forth below. L Grallt ofF.'emenu. The City hereby grants to LLC and its agents, successor¡; and assigns, non-cxclusive eas..-mcms and rights-of-way over-and across the MHOA Maintained Public An:as. for the purpose of maintaining. repairing and replacing the landscaping improvements located thereon. The City also hereby grants to U-C and its agents, su= and assigns, a non-exclusive aa:::ss easc:ment across the General Utility Easement for the purpose of obtaiIlÎng access to maintajn those slopes within the Properties which will become part of the area maintained by the MHOA. 2. MaiDteDaDce Oblil'ations, (a) LLC to Initially Maintain. LLC hereby covenants and agrees, at its sole C051 ane expense, to maintain, repair and rcplac::. or ::ause to be maintained. repaired Dr rq>iacee. the MHOA Maintained Public A=, ineluding alllandsca~ improvements located thereon. at a level equal to or bene: than the level of maintenance set for-Jt in the Project's Landscape and irrigation PI2.n ("Lands::a~ Plan"), as approved by the City. For purposes of this Agr=ment the term "Maintenance" or "Maintain" shal! mean the maintenance. repair and replac::ment obJigations described herem, (b) Transfer to MEOA. Upon LLCs transfer of Maintenance obligations 10 the MHOA. LLC (i) the MHOA shall become obligated to pcrform the obligations so transferred and (ii) LLC shall be released from such obligation. LLC represents to the City that LLC intends to and h2.S th: authority to unilaterally trnnsfer the obligation to maintain the MHOA Maintained Areas to thc MIiOA and that such transfer has been provided for in the Master DecJaration. (c) Notice of TrallSfer, At ¡east sixty (60) days prior to any uansfer of Maintenance obligation, LLC shall give notice to the City ofLLC's intent to transfer the Maintenancc obligations and shall provide the City with a copy of the signed document which effects such transfer. 3, Insnrance, Section 5.1 (a) of the Master Declaration requires that the MHO A procure and maintain certain insurance. That Section 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 Owner¡; against liability incident to owner¡;hip or us: of the Master Association Property. The limits of such insurance shall not be less than S3 Million covering all claims for death, pcrsonal injury and propeft)-' damage T ';m"".UmlO~J'n.....,.EuY"'...1 ·2· I,-:~IQI c29C-::;O ------_._......~".- arismg out of a single occurrence. Such insurance shall include thc following additional provisions provided they are available on a commercially reasonablc basis: (i) The City of Chula Vista shall be named as an additionally insured party to such insurance:: (ij) The poljcy shall not contain a cross-suit exclusion clause which would abrogate coverage should litigation ensue betWeen insureds; (iii) Tne policy shall ::ontain the following severability clause (or language which is substantiaJJy the same): "The coverage shall appJy separately to each insured except with r:spc::1 to the limits of liability." This Section 5. I (a) may not be amended without the written consent of thc Cit" Planning Dire.."'IOr or City Attorney. Until such time as the MHOA has obtained such insurance:, LLC hereby agrees to procure and maintain thc insurance as is required by the Section 5.J (a), at its sole cost and expense. 4, Indemnity. LLC hereby indemnifies the City as stated in Section 63 of the Master Declaration which reads as follows: Ind=nitv The Declarant and Master Association. res~..ctively shall indemnify and hold the City harmless from any liability, cost or expense. including reasonably incurred attorneys' fees, which result from the D-..clarant's or the Master Association's respective failure to comply with the requirements of the Section above entitled "Continuing Obligation To Maintain Cenain Public Areas". Neither the Declarant nor the Master Association shall have any liability W1der this Section by reason of the other party's failure to maintain. It is specifically intended that the City shall have the right to enforce this Section, This Section may not be amended without thc written consent of the City Planning Director or City Attorney. 5, AO'r~~meDt ADDlicablr to Subsequent Owners. (a) Agreement Binding Upon any SuccC5sive Declarant!, This Agreement shall be binding upon LLC and any successive Declarant under the Master Declaration. This Agreement shall inure to the benefit of the successors, assigns and interests of the partics as to any or all of the Prope!t)·. (b) Agreement Runs Witb tbe Land. The burden of the covenants contained in this Agreement ("Burdenì is for the benefit of the Property and the City, its successors and assigns. and any successor-in-interest thereto. The City is deemed the beneficiary of such covenants for and in its own right and for the purposes ofprotccting the interest of the community and other panics. public or private, in whose favor and for whose benefit such covenants running with the land have been provided. without regard to whclher the City has been, remained or arc owncrs of any panicular land or interest therein. if such covenants arc breached, the City shall have the right to cxercise all ~ights -=- ',JII.:rrlllbo·wvy\Mvyf.as921 ·3· 'l_:!:''"11 27'L- 3 / ---.,,-. and remedies and to maintain any a::tions or suits at law or in equity or other proper proceed,ngs 10 enforce the 'curing of such breach to which it or any other beneficiaries of this Agreement a..,d the covenants may be entitled. 6. Govrrninp Law. This Agre::ment shall be governed and construed in accordance with the laws of Ihe State of California. 7, Effective Date. The terms and condiúons of this Agrecm=nt shall be effective as of the date this Agreement is reeorded in the Official Records of the San Diego County Recorder's Office. 8. Counterparts, This Agrœment may be executed in any number of counterpans. each of which shan be original and all of which shall constitute one and the same document. 9. Recordinp. Tne parties shall cause this Agreement to be recorded in the Official Records of the San Diego County Recorder's Office within thiny (30) days after this Agreement has been approved by the City CounciL 10. Miscellaneous Pmvision!. (a) Notices. Unless otherwisc provided in this Agre::ment or by iaw, any and all notices required or permitted by this Agreement or by law to be served on or delivered 10 either party shall be in writing and shall be deemed duty served. delivered and received when persona!!y delivered 10 the party to whom it is directed or, in lieu thereof. when three (3) business days have elapsed fonowing deposit in the United States maiL certified or regist..~d mail. return receipt requested. first-class pos:age prepaid. addressed to the address indicated in this Agreem=nt. A party may change such address for the purpose of this Parzgraph by giving written notice of such change to the other party. Facsimile transmission shall constitute personal delivery, ¡fTo City: CITY OF CHULA VISTA Department of Pub Ii: WorkslEngineering Division 276 Fourth Avenue Chula Vista, CA 91910 Ann: City Engineer ¡fTo LLC: McMillin Otay Ranch LLC Development Engineering The McMillin Companies 2727 Hoover A venue National City, California 91950 Ann: Mr. Robert A. Pletcher T '.rIIc....III1I'.aU!f\P'rilwyE&r9l2 .4. <;1.':2"91 j.9C- 32. .~-,. ~..._--_._-_.-.- (b) Captions. Captions in this Agreement arc ins:ned for convenience of reference and do not defiñe. describe or limit the scope or intent of this Agreement or any of its tenns, (c) EatireAgreemenl This Agreement, together with any other written document ",felTed to herein. embody the entire agreement and understanding between the parties regarding the subject matter hereof, and any and all prior or contempononeous onr.l or wrinen representations. agreements. understandings anellor 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 incorponr.ted by reference into this Agreement. (e) CompliaDœ With Laws. In the pcrfonnance of its obligations under this Agreement LLC. its agents and employees. shall comply with any and all applicable federal, state and local rules, regulations, ordinances, policies, pennits and approvals. (I) Authority of Signatories, Each signatory and patty hereto hereby wamlnts and represents to the other party that it has legal authority and capacity and direction from its principal to enler into this Agreement, and that all ",solutions anellor other actions have been taken so as to enable said signatory to enter into this Agreement. (g) Modifiation. This Agreement may not be modified. !crminated or rescinded, in whole or in part. except by written instrument duly executed and acknowledged by the panics hereto, their successors or assigns, and duly recorded in the Official Records of the San Diego County Recorder's Office. (h) Severability. I f any tenn, covenant or condition of th is Agreement or the app I ication thereof to any person or circumstance shall. to any extent, be invalid or unenforceablc, the remainder of this Ag=ment, or the application of such tenn, covenant or condition to person or circumslance, shall not be affected thereby and each tenn, covenant or condition shall be valid and be enforced to the fullest extent pennitted by Jaw. (j) Preparation of Agreemeat. No inference, assumption or presumption shall be d:1!WIl from the fact that a pany or its attorney prepared anellor drafted this Agreement It shall be conclusively presumed that both parties participated equally in the preparation and/or dfGfting of this Agreement. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] õ ~¡¡I¡"'"",""r\r;wyEas9n ·5· ~'~I ;¿C¡C- J;J' --- --_._._-~,._----_...-_.._---_..- ---~. ------- --_.__._-_..~~_.._----_._-- - ¡I; WITNESS WHEREOF. the parties hereto hzve caused this Agreemen: to be executed the da" . . znd year fir51 set forth above. CITY OF CHULA VISTA, a municipal McMILLIN OT A Y RANCH, LLC. corp"",!i"" a Delaware limited liability company BY: McMILLIN COMPANIES, LLC, a Delaware limited liability company By: Its: Managing Member Mayor By Title Attest: By Title Ekvt:rly Au!hd"t. City Clerk APPROVED AS TO FORM: By: By: . 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Accepting on Behalf of the City of Chula Vista the Assignable and Irrevocable General Utility and Access Easements on Said Map within Said Subdivision. Acknowledging on behalf of the Public the Irrevocable Grant of Fee Title of designated Resource Preserve areas, and the Irrevocable Offer of Dedication of Fee Interest of designated land for public park purposes. ß . Resolution /7':</tJ Approving "B" Map Subdivision Improvement Agreement for Chula Vista Tract No. 96-04, Otay Ranch SPA One Village 1, Neighborhoods R-3, and authorizing the Mayor to Execute Said Agreement . C, Resolution /9:U/ Approving a Supplemental Subdivision Improvement Agreement for fIrst fInal "B" Map for Village 1 of the Otay Ranch Project, Chula Vista Tract No. 96-04, SPA One and authorizing the Mayor to Execute Said Agreeme SUBMITTED BY: Director of Public Works REVIEWED BY, Ci~ M~"'Ì)? ~ ~ (41.... Y"", Y,,-NoX) The tentative map for Otay Ranch, Village 1 a portion of Village 5 (CVT 96-04) was approved by the Council on November 19, 1996. The Council will consider the approval of the fIrst Final "B" Map within Village 1, together with the associated agreements for the "B" Map. The fInal "B" Map for Neighborhood R-3, Otay Ranch, Village 1 consists of 75 single family lots, four private street lots and six private open space lots totaling 10.603 acres (the private lots will be maintained by a Homeowner's Association). A plat and location map of the subdivision is attached herewith as Attachment 2. BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. RECOMMENDATION: That Council approve the Resolution approving the Final "B" Map, the "B" Map Subdivision Improvement Agreement, and the Supplemental Subdivision Improvement Agreement for fIrst Final "B" Map for Village One of the Otay Ranch Project. DISCUSSION: On November 19, 1996, by Resolution No. 18398, the City Council approved a portion of the Tentative Subdivision Map for Chula Vista Tract 96-04, Otay Ranch SPA One including all of Otay Ranch Village 1. On June 16, 1998, the City Council approved the Otay Ranch Village One "A" Map No.1 by Resolution 19043 and the Supplemental Subdivision Improvement Agreement for that map by Resolution 19044 ("A" Map Agreement). The Final "A" Map created 3¿J-/ ~_. -,+- '---',-"---.-...-.-.-.- Page 2, Item __ Meeting Date 10\6\98 "superblock" lot 3 corresponding to Tentative Map Neighborhood R-3. Neighborhood R-3 is located north of Monarche Drive between Santa Ynez Avenue and the Village 1 Pedestrian Paseo. This is the first "B" Map within the entire SPA One. A number of Tentative Map and "A" Map Agreement conditions are triggered specifically by the first "B" Map, in addition fees and/or cash deposits specific to this "B" map have been collected in satisfaction of various Tentative Map conditions of approval, these are discussed more fully below. The Developer of Neighborhood R- 3, Centex Homes, has executed a Subdivision Improvement Agreement. A Supplemental Subdivision Agreement has been executed by all Village 1 property owners as part of the first "B" Map approval process. The purpose of this Supplemental Agreement subsequent to the "A" Map Agreement (Resolution No. 19044) is to address conditions that must continue to run with the land but are made effective only before approval of the first "B" Map. The final map for this subdivision has been reviewed by the Public Works and Planning Departments and found to be in substantial conformance with the approved Tentative Map. Approval of the map and associated agreements constitutes acceptance by the City of all assignable and irrevocable general access and utility easements and acknowledgement of the Irrevocable Grant of Fee Interest of resource preserve area in satisfaction of Neighborhood R-3' s conveyance requirement under the Resource Management Plan (see Condition No. 11 of the Supplemental Subdivision hnprovement Agreement). There are no public streets or open space to be dedicated or granted within the subdivision. The Developer has paid, in cash, its share of the development portion of the Park Acquisition and Development (PAD) fees for SPA One community parks in the amount of $56,250. The Developer has submitted an IOD in fee for its portion of the land acquisition obligation for community parks. The Telegraph Canyon Drainage Basin DIF in the amount of $48,551.14 has been paid. The Developer has deposited a cash bond in the amount of $45,000 to guarantee participation in the pedestrian bridge development impact fee. A Supplemental Subdivision Improvement Agreement was executed by all the property owners of Village 1 including Otay Ranch Development, L.L.C., the Developer of Otay Ranch (Chula Vista Tract 96-04). The major provisions of this Agreement, which were not part of the Village 1 "A" Map Agreement, include the following: compliance with Otay Ranch Resource Preserve in lieu fee program; agreement to pay the Pedestrian Bridge DIP when it is established and for subsequent final maps to provide security in like manner as Neighborhood R-3 until the DIF is established; agreement to comply with the Park Land Dedication Ordinance; agreement to identify the relocation, if any, of the Village 2 Community Park; the Developer agrees to create a Master Homeowner's Association to own and maintain the dedicated right-of-way areas not maintained by the Community Facilities District; the Developer agrees to pay the Public Facilities Development hnpact Fee in effect at the time of issuance of building pennits; agreement to adhere to the Public Facilities Financing Plan and any amendments thereto, and installation of improvements in accordance with the PFFP. The Developer has submitted an improvement phasing schedule that is consistent with the approved SPA One Public Facilties Financing Plan in satisfaction of Condition No. 109. The phasing schedule identifies the timing of major the backbone facilities listed in Condition No. 109. JtY -:2-- --------.-.-.--- Page 3, Item __ Meeting Date 10\6\98 Security for these improvements shall be provided when their construction is triggered by the development milestones indicated the hnprovement Phasing Schedule (see Attachment No.4). The Developer has bonded for and agrees to complete all on and off-site street improvements required for the approval of this "B" Map within two years following map approval, or sooner if construction permits for the required improvements have been issued. The conditions of approval of Resolution Nos. 18398 (Tentative Subdivision Tract No. 96-04) that are satisfied by the Second Supplemental Subdivision Improvement Agreement and listed herein are as follows: Nos. 1,3,4,5, 8, 9, 10, 11,21,22, 28(c), 31, 36, 37, 52, 75, 82, 82(c), 83(c), 86(c), 93,95, 103, 104, 108, 109, 109(4), 120, 137, 142, 147 and 152. Condition No, 1 - (General Preliminary). In satisfaction of Condition No. 1 of the Resolution, Developer hereby agrees, to comply with the requirements and guidelines of the Parks, Recreation, Open Space and Trails Plan, Public Facilities Financing Plan ("PFFP"), Ranch Wide Affordable Housing Plan, SPA One Affordable Housing Plan, and the Non-Renewable Energy Conservation Plan, as may be amended from time to time, and shall remain in compliance with and implement the terms, conditions and provisions of said documents. Condition No, 3 - (General Preliminary), In satisfaction of Condition No.3 of the Resolution, Developer agrees that if any of the terms, covenants or conditions contained within the Resolution shall fail to occur or if they are, by their terms, to be implemented and maintained over time, if any of such conditions fail to be so implemented and maintained according to their terms, the City shall have the right to deny the issuance of building permits for the Project, deny, or further condition the subsequent approvals that are derived from the approvals herein granted, institute and prosecute litigation to compel their compliance with said conditions or seek damages for their violation. The applicant shall be notified ten (10) days in advance prior to any of the above actions being taken by the City and shall be given the opportunity to remedy any deficiencies identified by the City within a reasonable period of time. Condition No, 4 - (General Preliminary). In satisfaction of Condition No. 4 of the Resolution, Developer agrees to indemnify, protect, defend and hold the City harmless from and against any and all claims, liabilities and costs, including attorneys' fees, arising from challenges to the Environmental hnpact Report for the Project and/or any or all entitlements and approvals issued by the City in connection with the Project. Condition No, 5 - (General Preliminary). In satisfaction of Condition No.5 of the Resolution, Developer hereby agrees, that Developer shall comply with all the applicable SPA conditions of approval. Condition Nos, 8, 9, 10 and 11 - (Conveyance Obligation), In partial satisfaction of Condition Nos. 8,9, 10, and 11, the Developer agrees as follows: a, That concurrently with the execution of this Agreement, Developer shall provide City with an Irrevocable Grant of Fee Title, as attached hereto as Exhibit "B", of 245 acres of real property in accordance with the RMP2 which satisfies a 12.596 acre obligation for this Final Map as of the date of this Agreement, but such obligation may be subject to change in 3(/-3 Page 4, Item -- Meeting Date 10\6\98 accordance with paragraph "C". Any remaining amount shall be credited towards any future map obligations . b, That such dedicated property shall be granted in fee title to the City and County of San Diego as joint tenants and subject to the approval of the Preserve Owner Manager. Should the Preserve Owner Manager not approve this conveyance, Developer agrees to convey equivalent real property that complies with this provision. c, That Developer shall convey additional real property if necessary in order to comply with the conveyance formula described in RMP2, as may be amended by City. Developer acknowledges that the amended RMP2 may contain a conveyance formula greater than 1.188 acres per developable acre. d, That all land to be conveyed as described above shall be free and clear of liens and encumbrances except for easements for existing public infrastructure and other easements approved by the City or for planned public infrastructure as permitted in the RMP, Phase 2. e, Developer acknowledges that property within the boundaries of the "A" Map which will be the subject of future fInal maps may have conveyance obligations to fulf1ll for all development areas, including applicable streets, open space lots, paseos, pedestrian parks and slope areas shown on the "A" Map. Condition No, 21 and 22 - Public Street Improvements, In partial satisfaction of Condition Nos. 21 and 22 of the Resolution, the Developer agrees to the following: a Improvement Work, Developer agrees to construct the street improvements and land development work in and adjoining said subdivision and as shown on the Drawings set forth on Exhibit "C" ("Street Improvements"), at its own expense, without any cost to the City, in a good and workmanlike manner, under the direction and to the satisfaction and approval of the City Engineer. Developer further agrees to furnish the necessary materials therefor, all in strict conformity and in accordance with the plans and specifIcations, which documents have heretofore been filed in the OffIce of the City Engineer and by this reference are incorporated herein and made a part hereof. Developer shall complete construction of the Street Improvements on or before the earlier of the second anniversary date of Council approval of this Agreement or, if prior to Council approval of this agreement, a construction permit was issued for any portion of said Street Improvement, then construction on that portion for which a permit was issued shall be completed on or before the second anniversary date of issuance of said permit. It is expressly understood and agreed to by Developer that, in the performance of construction of said Street Improvements, Developer shall conform to and abide by all of the provisions of the ordinances of the City of Chula Vista, and the laws of the State of California applicable to said work. b, Bonding, i. Developer agrees to furnish and deliver to the City of Chula Vista, simultaneously with the execution of this Agreement, and to thereafter maintain until City acceptance of the work referenced herein, an approved improvement security from a suffIcient 3ð~Lj Page 5, Item __ Meeting Date 10\6\98 surety, whose sufficiency has been approved by the City in the sums as set forth on Exhibit "C", which security shall guarantee the faithful performance in connection with the installation of the Street Improvements as shown on Exhibit "C". ii. Developer agrees to furnish and deliver to the City of Chula Vista simultaneously with the execution of this Agreement, and to thereafter maintain until City acceptance of the work referenced herein, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sums as set forth on Exhibit "C" to secure the payment of material and labor in connection with the installation of said Street Improvements, which security is shown on Exhibit "C." iii. Developer acknowledges and agrees that if the Street Improvements are not completed within the time agreed herein, the sums provided by said improvement securities may be used by City for the completion of the Street Improvements in accordance with those approved plans and specifications contained on Exhibit "C", or at the option of the City, for those improvements shown on Exhibit "c" that are less than, but not greater to, the sums provided by said improvement securities. Upon certification of completion by the City Engineer and accep- tance 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 the Developer or its successors in interest, pursuant to the terms of the improvement security. Developer agrees to pay to the City any difference between the total costs incurred to perform the work, including limited and reasonable design and administration of construction in substantial conformance with the approved plans (including a reasonable allocation of overhead), and any proceeds from the improvement security. c, Developer's Costs and Expenses, 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 the City or the City's officer, sureties or bondsmen, be liable for the payment of any sum or sums for said work or any materials furnished therefor. d, Plan Check fees and Additional Costs, It is further understood and agreed by Developer that any engineering costs (including plan checking, inspection, materials furnished and other incidental expenses) incurred by City in connection with the approval of the Street Improvements plans and installation of Street Improvements described above, as required by City and approved by the City Engineer shall be paid by Developer, and that Developer shall deposit, prior to recordation of the Final Map, with City a sum of money sufficient to cover said cost. e, Maintenance Costs, Developer understands and agrees that until such time as all of the Street Improvements as covered by any particular bond are fully completed and accepted by City, Developer shall be responsible for the care, maintenance of, and any damage to, such streets and any alleys, easements, water and sewer lines. It is further understood and agreed that Developer shall guarantee all of the Street 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 Developer, its agents or employees in the performance of this Agreement, and that upon acceptance of the work by City, Developer shall grant to City, by ---- 30 - ~ I Page 6, Item __ Meeting Date 10\6\98 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. f, Indemnification, Developer further understands and agrees that City, as indemnitee, or any officer or employee thereof, shall not be liable for any injury to person or property occasioned by reason of the acts or omissions of Developer, its agents or employees, or indemnitee, related to the construction of the Street Improvements. Developer further agrees to protect and hold the City, its officers and employees, hannless from any and all claims, demands, causes of action, liability or loss of any sort, because of or arising out of acts or omissions of Developer, its agents or employees, or indemnitee, related to the construction of the Street Improvements; the approved improvement securities referred to above shall not cover the provisions of this paragraph. Such indemnification and agreement to hold hanniess 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 Street 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 the Street Improvements and the drainage systems. The approval of plans for the Street Improvements and related improvements shall not constitute the assumption by City of any responsibility for such damage or taking, nor shall City, by said approval, be an insurer or surety for the construction of the Street Improvements and related improvements. The provisions of this paragraph shall become effective upon the execution of this Agreement and shall remain in full force and effect for ten (10) years following the acceptance by the City of the Street Improvements. Condition Nos, 28(c) and 109(4) - (Pedestrian Bridges), In satisfaction of Condition Nos. 28(c) and 109(4) of the Resolution, Developer acknowledges and agrees that by the provisions of this paragraph City is not waiving Developer's obligation and duties with reference to Condition No. 28(d) as set forth in the "A" Map Agreement and that City retains the right to require Developer to provide cash or security to guarantee the Property's fair share of the pedestrian bridges as referenced in the "A" Map Agreement. Developer further acknowledges and agrees that the "pedestrian bridge" concept is an integral element of the Project's Village Design Plan. Developer has requested that a Development Impact Fee ("DlF") be established to finance the construction of the pedestrian bridges. In partial satisfaction of Condition Nos. 28(c) and 109(4) of the Resolution, developer hereby agrees that concurrent with execution of this Agreement, the Developer shall provide the City with cash equal to $45,000.00, which is the amount equal to the estimated DIF amount of $600.00 per dwelling unit within the Final "B" Map for Neighborhood R-3. This represents the Final Map's fair share, of the cost of construction of the pedestrian bridges connecting Villages One to Two, Villages One to Five, and Villages Five to Six for Neighborhood R-3. If a DlF mechanism is adopted by the City Council which is less than $600.00 per dwelling unit, once the statutory period for challenging the DlF has expired without a challenge to the DlF, the City agrees to refund the Developer the difference between the cash provided herein and the actual DIP requirement for the Final Map Neighborhood R-3. If the amount of the DlF is more than $600.00 3¿J-? i Page 7, Item__ Meeting Date 10\6\98 per dwelling unit, Developer agrees to pay the difference on a prorated basis, with each building permit remaining to be issued for the Final Map or should no further building permits be required for the Final Map, payment shall be in total within five days of City's request for payment. Developer further understands and agrees that the City may use the funds so collected to refund any developer who constructs the pedestrian bridges. Developer acknowledges that if no DIF mechanism is established for any reason, the City has the right to retain the cash deposit to use for the construction of said pedestrian bridges and that Developer shall pay the City any difference between the Final Map's fair share of the actual total costs incurred to construct the pedestrian bridges and the amount paid herein. Developer further understands and agrees that the City may use the funds so collected to refund any developer who constructs the pedestrian bridges. Developer understands and agrees that subsequent final maps for the Property may require further compliance with Condition Nos. 28(c) and 109(4) including paying a like amount or bonding for said pedestrian bridges. Condition No, 31 - (ADA Standards) In satisfaction of Condition No. 31 of the Resolution, the Developer agrees that in the event the Federal Government adopts ADA standards for street rights-of-way which are in conflict with the existing standards and approvals of the City, Developer shall be required to comply with the new ADA standards adopted by the federal government. All City's approvals conflicting with new federal standards shaU be updated to reflect those standards. Unless otherwise required by federal law, City ADA standards may be considered vested, as detennined by Federal regulations, only after construction has commenced. Condition No, 36 - (Driveway Setback), In satisfaction of Condition No. 36 of the Resolution, except as provided for in the Planned Community District Regulations or approved by the City Engineer and the Planning Director City the Developer shall submit a site plan of all properties fronting on cul-de-sac streets which are 150 feet or less in length. The site plan shall indicate: (1) a twenty foot setback on the driveways from the property line to the garage, and (2) sectional roll-up type garage doors at all such properties. Condition No, 37 - (Encroachment Permit), In partial satisfaction of Condition No. 37 of the Resolution, the Developer shall apply for an encroachment permit prior to instaUation of all private facilities within the public right-of-way. Condition No, 52 - (As-Built Plans). In satisfaction of Condition No. 52 of the Resolution, Developer shall submit "as-built" improvement and storm drain plans in DXF file format to the satisfaction of the City Engineer. Condition No, 75 - (parks), In partial satisfaction of Condition No. 75 of the Resolution, the Developer shall, upon the request of the City, submit for the approval of the Director of Planning, a construction schedule that details the construction milestones for the completion of all neighborhood parks within the Property. 3tJ -? I ... _.__.._~-..- Page 8, Item __ Meeting Date 10\6\98 Condition No, 82 - (Park P-l), In accordance with Condition No. 82 of the Resolution, Developer agrees as follows: a. That" A" Map Agreement provisions set forth in paragraph l5(b) and (f) as to Park Phasing shall be and hereby are modified and that this paragraph and the requirements contained herein shall supersede and replace "A" Map Agreement paragraph 15(b) and (t). b. Developer shall commence construction of the first neighborhood park in SPA One, identified as Park P-l, at the location set forth in SPA One Plan and as shown on the "A" Map, no later than issuance of the building permit for the 500th dwelling unit for the Project. The level of amenities required in said construction of the first neighborhood park shall be determined by the Director of Planning in conjunction with the park master planning effort required by the City of Chula Vista Landscape Manual. Notwithstanding anything herein to the contrary, the developer shall complete construction of the entire P-l neighborhood park as identified in SPA One Plan within eight (8) months after commencing construction of said park. For purposes of this paragraph, "complete construction" shall mean that the construction of the park has been completed and accepted by the City as being in compliance with the Park Master Plan, but prior to the City's required mandatory maintenance period. Condition No, 82(c) - (Park P-2), In accordance with Condition No. 82(c) of the Resolution, Developer agrees to commence construction of the second neighborhood park in SPA One, identified as P-2, at the location set forth in the SPA One Plan and as shown on the "A" Map. Such construction shall commence upon the earlier of: a) issuance of the building permit for the 2033th dwelling unit for SPA One, or b) if the Project is determined by the City to be in deficit in COnstructed neighborhood parks based upon 2 acres/l ,000 residents. Such construction shall be completed within eight (8) months after commencing construction of said park. For purposes of this paragraph, "complete construction" shall mean that the construction of the park has been completed and accepted by the City as being in compliance with the Park Master Plan, but prior to the City's required mandatory maintenance period. This is not intended to supersede any of the City's maintenance guarantee requirements. The Developer and City agree to negotiate in good faith a park agreement concerning Developer's neighborhood and community park obligations for Villages 1 and 5 of SPA One. Condition No. 83(c) - (Community Parks), In partial satisfaction of Condition No. 83 the Developer agrees to identify the relocation, if any, of the Village 2 Otay Ranch Community Park prior to issuance of the building permit for the l,15Oth dwelling unit for SPA One plus those portions of Villages One and Five owned by McMillin Otay Ranch LLC. Said relocation may require an amendment to the Otay Ranch General Development Plan. Developer further agrees that concurrently with the execution of this Agreement, Developer shall provide City with Irrevocable Offers of Dedication of 15.30 acres of real property as described in Exhibit "D", attached hereto and incorporated herein and pay the facility improvement component of the PAD fees for the community parks for this Final Map in accordance with the formula set forth in Municipal Code section 17.10 et seq. The dedicated property shall be free and clear of liens and incumbrances. 3{/-~ I Page 9, Item -- Meeting Date 10\6\98 Condition No, 86(c) - (MHOA). In satisfaction of Condition No. 86(c) of the Resolution, the Developer agrees to create a Master Homeowner's Association ("MHOA") to own and maintain in a professional manner open space areas medians, or parkways not maintained by the Community Facility District or the City (referred to collectively as "open space areas"). Developer shall complete the fonnation of the MHOA prior to making application for the first building permit for any units within the Project excluding sales offices and model homes on the condition that the sales offices and model homes are not sold prior to the Developer's compliance with the provision of this paragraph. Developer agrees that the City has the right to withhold issuance of any building permits for the Otay Ranch Project if no MHOA is established to maintain the Open Space Areas or the City has not approved the final version filed with the Department of Real Estate of that MHOA's CC&Rs. Any revisions to such CC&R's shall be approved by the City. On or before 60 days from the date of Council approval of this Agreement, Developer shall submit for City's approval the CC&R's, grant of easements and maintenance agreements, and other appropriate documentation, describing the maintenance standards and responsibility of the MHOA's for the Open Space Areas within the Property. Developer acknowledges that the MHOA's maintenance of the open space may expose the City to liability. Developer agrees to establish an MHOA that will hold the City harmless from any negligence of the MHOA in the maintenance of such open space areas. The MHOA shall be structured to allow annexation of future tentative map areas in the event the City Engineer and Director of Planning require such annexation of future tentative map areas. Developer agrees to include the following provisions within the MHOA's CC&Rs: 1. Before any revisions to provisions of the CC&Rs that may effect the City can become effective, said revisions shall be approved by the City. 2. The MHOA shall identify and hold the City harmless from any claims, demands, causes of action liability or loss related to or arising from the maintenance activities of the MHOA. 3. The MHOA shall not seek to be released by the City from the maintenance obligations described herein without the prior consent of the City and 100 percent of the holders of first mortgages or property owners within the MHOA. 4. The MHOA is required to procure and maintain a policy of comprehensive general liability insurance written on a per occurrence basis in an amount not less than one million dollars combined single limit. The provisions to be contained within the CC&R's which reflect Condition No. 86(c) of the Resolution and this section may not be revised at any time without prior written permission of the City. The City shall not unreasonably withhold its approval of the CC&R's or other said documentation. Any amendment to these documents shall be submitted to the City for the City's approval prior to becoming effective. 3¿J--'l Page 10, Item _ _ Meeting Date 10\6\98 Condition No, 93, - (Public Facilities Development Impact Fee), Developer has requested that the City allow satisfaction of Condition No. 93 of the Resolution be continued until such time as the City completes and approves the Public Facilities Development Impact Fee ("PPDIP") Program revisions. In order for the City to allow said continuance of satisfaction of this obligation, Developer agrees to pay the "PFDIP" in effect at the time of building permit issuance. In partial satisfaction of Condition No. 93, Developer has deposited $20,000 for commencement of said revision and shall receive 100% credit for such deposit towards future PPDIP fees. Condition No, 95 - (Otay Water District Indebtedness and City Parcels). In satisfaction of Condition No. 95 of the Resolution, the Developer agrees to provide written evidence from Otay Municipal Water District indicating that any assessments (or bonded indebtedness) associated with all parcels dedicated or granted in fee to the City have been paid or that no assessments exist on the parcel(s). Said evidence shall be provided prior to the City's acceptance of said dedication or grant in fee. Condition No, 103 - (Withhold Building Permits and Hold Harmless), In satisfaction of Condition No. 103 of the Resolution, the Developer understands and agrees that the performance of Developer's obligations hereunder is required for the health and safety of the residents of its Project. Therefore Developer agrees: 103.a That the City may withhold building permits for any and all buildings within the Project if anyone of the following occur: i. Regional development threshold limits set by the East Chula Vista Transportation Phasing Plan have been reached. ii. Traffic volumes, levels of service, public utilities and/or services exceed the adopted City threshold standards in the then effective Growth Management Ordinance. iii. The Developer does not comply with the terms of the Reserve Pund Program. 103.b That the City may withhold building permits for any of the phases of development identified in the PPPP, if the required public facilities, as identified in the PPPP or as amended by the Annual Monitoring Program or otherwise conditioned have not been completed or constructed to satisfaction of the City. 103.c That, on the condition that City shall promptly notify the Developer of any claim, action or proceeding and on the further condition that the City fully cooperates in the defense, the Developer shall 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 3¿J-/C Page 11, Item __ Meeting Date 10\6\98 approvals by its Planning Commission, City Council, or any approval by its agents, officers, or employees with regard to this Project. 103.d That, on the condition that City shall promptly notify the Developer of any claim, action or proceeding, Developer shall 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, related to erosion, siltation or increased flow of drainage resulting from the Property. City agrees to reasonably cooperate with Developer in the defense of any such action, claim or proceeding. 103.e To permit all cable television companies franchised by the City of Chula Vista equal opportunity to place conduit to and provide cable television service for each lot or unit within the Project. Developer further agrees to grant, by license or easement, and for the benefit of, and to be enforceable by, the City of Chula Vista, conditional access to cable television conduit within the properties situated within the Project only to those cable television companies franchised by the City of Chula Vista the condition of such grant being that (a) such access is coordinated with Developer's construction schedule so that it does not delay or impede Developer's construction schedule and does not require the trenches to be reopened to accommodate the placement of such conduits; and (b) any such cable company is and remains in compliance with, and promises to remain in compliance with, the terms and conditions of the franchise and with all other rules, regulations, ordinances and procedures regulating and affecting the operation of cable television companies as same may have been, or may from time to time be, issued by the City of Chula Vista. Developer hereby conveys to the City of Chula Vista the authority to enforce said covenant by such remedies as the City determines appropriate, including revocation of said grant upon a determination by the City of Chula Vista that they have violated the conditions of the grant. 103.f To include in the Articles of Incorporation or Charter for the Homeowners' Association (HOA) provisions prohibiting the HOA from dedicating or conveying for public streets, land used for private streets without approval of 100% of all the HOA members. Condition No, 104 - (Congestion Management Program), In satisfaction of Condition No. 104 of the Resolution, the Developer agrees to participate, on a fair share basis, in any deficiency plan or financial program adopted by SANDAG to comply with the Congestion Management Program (CMP) and agrees to not protest formation of any future regional impact fee program or facilities benefit district to finance the construction of facilities described in the Otay Ranch Planning documents. This agreement to not protest the inclusion of these public improvements shall not be deemed a waiver of the right to challenge the amount of any fee which may be imposed due to these new improvements and shall not interfere with the right of any person to vote in a secret ballot election. Condition No, 108 - (Insurance), In satisfaction of Condition No. 108 of the Resolution, Developer agrees to ensure that all insurance companies are permitted equal opportunity to provide a cooperative Homeowner's Insurance Program. 3t9~1/ Page 12, Item -- Meeting Date 10\6\98 Condition No, 109 - (Backbone Facilities), In satisfaction of Condition No. 109 of the Resolution, Developer has submitted an Improvement Phasing Schedule which has been approved by the City Engineer and Developer agrees to comply with such Improvement Phasing Schedule which is attached hereto as Exhibit "E" and which shall also be attached to and become a part of the PFFP, which may be amended from time to time. Developer agrees to commence construction of the public street improvements and agrees to provide security satisfactory to the City Attorney in accordance with the time frames and in such sums as set forth in said Improvement Phasing Schedule, as may be amended by the City from time to time to comply with the PFFP. Condition No, 120 - (Growth Management Ordinance), In satisfaction of Condition No. 120 of the Resolution, the Developer agrees upon the request of the City: 120.(1) To 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. Developer agrees to commence the annual review following the fIrst fIscal year in which a residential occupancy occurs within the Property and shall be completed during the second quarter of the following fIscal year. The annual report shall adhere to those guidelines noted on page 353, Section D of the GDP/SRP; and 120.(2) To prepare a fIve year development phasing forecast identifying targeted submittal dates for future discretionary applications (SPAs and tentative maps), projected dates, corresponding public facility needs per the adopted threshold standards, and identifying fmancing options for necessary facilities. 26, Condition No, 137 - (Code Requirements), In satisfaction of Condition No. 137 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 (19.09.100). Developer further acknowledges and agrees that the City is presently in the process of amending its Growth Management Ordinance to add a proposed Section 19.09.105, to establish provisions necessary to ensure compliance with adopted threshold standards (particularly traffIc) prior to construction of State Route 125. Said provisions will require the demonstration, to the satisfaction of the City Engineer, of suffIcient street system capacity to accommodate a proposed development as a prerequisite to fInal map approval for that development, and the applicant hereby agrees to comply with adopted amendments to the Growth Management Ordinance. Condition No, 142 - (Guarded Entrances), In satisfaction of Condition No. 142 of the Resolution, Developer shall not install physical ban:iers at guarded entrances. Such entrances shall be staffed from dusk to dawn and such requirement shall be set forth in the CC&R's for the Project. Condition No, 147 - (Speed Bumps and Staffing), In partial satisfaction of Condition No. 147 of the Resolution, the CC&R's shall prohibit "speed bumps" on private streets. The CC&R's shall also include language which states that any proposal by the HOA to delete staffmg or to 3éJ ~/:¿ I .... - .-.- --~._..-.-.~_.__.- Page 13, Item _ _ Meeting Date 10\6\98 allow "speed bumps" in the future shall require prior written approval of l()(}% of all the Homeowners Association's members. Condition No, 152 - (Maintenance Responsibilities), In satisfaction of Condition No. 152 of the Resolution, Developer agrees to notify all future property owners during escrow by means of a document to be approved by the City Engineer and Director of Planning of the maintenance responsibilities of the MHOA and the estimated annual cost thereof. FISCAL IMPACT: None to the City. Developer and/or builder has paid all costs associated with the proposed "B" Map and all Agreements associated therewith. enls: ttachment 1: Minutes of 11119/% (Resolution No. 18398) Attachment 2: Plat - Chula Vista Tract 96.()4, Otay Ranch SPA One, Village 1, Neighborhood R-3 Attachment 3: Developer's Disclosure Statement Attachment 4: Improvement Phasing Schedule for Otay Ranch SPA One, Village 1 Tract 96.()4 (SSIA Exhihit "E") H:IHOME\ENGINEERIAGENDAIORVI_ R4,DRS DRS/drs File No. 0600·8()'()RI23F :J¿; ,-/3 C/£ ¡ÚJ; ¡: 3ð A TTA CHME:!\T'f 1 EXCERnOF MINUTES OF A1ŒGDLAR MEETING OF THE CITY COONCll.. OF THE CITY OF CHIJLA v:rs-.LA T1!::SÓay, Nov=D= 19, 19% Coum:i1 Chamb= 6:10p.m, ?!mjj;: Scrvi= Bciiåing (W19!96) 11. A. RESOLUTION 1!!4]6 APPROVING A RESOURCE C01l<"VEYA.TIJCE AGREE:MEI>.T FOR THE 01AY RANCH SPA ONE, TRACT 96-{)4 - IThiç is a T'Pbt-ñ fu=. but do.,; not reuuÏn: a DlÙJlk bearin~) (11119/%) B. RESOLUTION 18417 APPROVING .AN INDEMNIEICATION .AGREEMENT WITH VILLAGE DEVELOP.ME!I.T FOR TRACT .%-04 - ITbiç is 2 ~M it..... ÌIItt does 'Dot 1 cu.w = 2 , nublic ~) (11/19196) C. PUBLTC HRARTNG :PCS 9tHI4:CONSIDERAnON OF A 1ŒVJSED T.ENTA:rIVE SDBDIVISIONMA:PFOR THE OTAYRANCHSPA ONE, TRACT 96-04 GENERALLyLOC.A:lED SOUTH OFTELEGRAPH CANYONRO'AD El wl!J!N:PASEO :RANCHERO' AND '!BE l"Ul UIŒ SR-1"~ ALIGNMENT AND EXCLtIDING 288 ACRES IN Ac;CW<:~R :PARCELNDMBER (Al'N) 642-060-11 AND A PO'RTIO'N OF.APN 642-080-11 - Adopt ¡¡ 5=d Þ.riri....ñnm m FEIR 95-û1 and r.......U:íJ' E!R 95-û1 :and :tæ EIst Þ.riñ....ñnm farm: 0Iay Ranch SPA One and Tww.üv¡;-Sabdivisian Map Ïar VïJJa,g: Ole and P.bas: I-A afvÏllag!: F.iv: DÎ:tæ 0Iay Ræl::ì:tSPA One, CimJ¡¡ V1s:a TIact 96-04, in - accarãan:::: v¡j¡ the iin,;;,,~ and S1Ù!ie::t m :tæ candiIians 'H....;.~JÌ in 1æ ,IÍ:AÏI: =ohttion. S:aff "". ,.....~..,;" approvaI of:tæ =n1TTrions. {0Iay R2n::it~ocrJ C'.nnfinn"" from tœmeetiu¡; of lll12!96. (1l119/96) D. RRc;oLUTION 18398 .AD01'TING THE SECOND ADDENDUM TO AND CERlll rlNG FINAL :E!\'VIRO'NMENTAL IMP ACT REPORT FEIR 95-01 {SCH #95021Ol2} AND FIRST ADDENDTlM'lrnA noPDNG THESTA.TEM:E:r.TO'F OVF.RRmING CONSIDF.R A TrONS AND THE MInG.ATIO'NMO'NlTORING AND .REPORTING l"ROGRAMFOR '!BEEElRAND APPROVING A 1ŒVISED TE!liTATIVE SUBDIVISION MAP FOR 1'ORTIO'NS OF THE OUY RANCH SPA ONE, CBDLA VISTA TRACT 96-Ð4, AND MAKING THE .NE'r1<'<:<:ARV :FINDINGS AND CONTINUING ALTERNATIvE TENTATIVE MA:P l"ROPOSALS (11/19196) Je:ny i"""';,b. 0Iay P.;mci¡ Spe::ial Pmj= MæIag::t, ~ ¡¡ ~,""",riOJlr.::_"iin~ the 0Iay P.;mci¡ d..-vclopm=. Conn-i'rm-mhe:r Rinå= 2S1œd why wzs S~'"lÌan 7.1 DÎ 1D= agr=cm ~h:m~ m reflc::t tb:: :B Map level, as :iI wzs nm"~ ............Mri far ~ other d..-vclcp=r. Ann Moor.:, Ac:ting DIy .A1Iam=y, sam mar conåìriOD of m: å..-v:1opm=m agI~ was ri=å m m: condirians aÍ m: tcmaIÏv: :map ",¥¥-,u...r, SDCÌl as Cnnñirinn ]08, wÌlÏCÌ1 wari::s hand in hand wm one anoth::r. """rim!: is requir-..d wh::n m: improv= = Irig.,ocred by 1D= PFFP. Mr. J=isbt staf:j 1ÌI: improv= pi¡asing s::h:àuJ. :r-~ 10 œ 5n~ will iã=DY all oÏ the bacidJ= fa..~. and bci= tb:: Ci!y "n&>-:- approvo:s tb:: :firs¡ jj¡¡¡¡J :B map. mar ::anå:iIian will jê:m:iíy all the~..d baci:D= :f;!"';iiri... ". w-..II as ... pJJm :fur 1ÌI: :finaIL'"ing. T~ b~ -;:,,-,-,-¡,;.. would nm æ Irig.,ocred by 1ÌI: ~= oÏ!h=:ims m ... diff= :uu~ 0WICc. T.o: trig,,= pam :fur 1ÌI: œckbone ;;,,.,om.. oc---m wh::n m: jj¡¡¡¡J B map is rcq=:i. .30 - 1'1' ^.-..--....---. --...---..------ _____u_____ _________u ___" __..__".~__ EXCERPT OFMI'.L: n::5 OF A K£GULAR MEE'I'L"<G OF THE CITy COUNcn.. }';:n'=:lD= 19, ~~ hg:2 j OŒ Lippin, Dir=.ar of Pubfu: Worb;, gave aD e:;ampie of:Eas1:I..aic: Gx=, tha1 th..-y == m witb aD av=all A map fur ~ ba::i:Dtm:: = and s= of ~ baclå>= f",..,ïm.. Th..-y w= ~ ID ixmrl for thos:: = WÍIÌriD Iici;- ia::iliri~ and = r=qIJin:d ID ~ s= off-sit: Ïmprovemcms. Tne City would ~ ~ Iigin ID wmmoid bnìiåiDg p=i!s if IÌJ..-y w=', d=, and iI was ID COlIÎarm witb am i:v:1 of scrviœ arrTi=n,.,. and !De growth =~!"T1f Ul~. Those waulån', have ID be bcmded umiI suclJ rim: as IÌJ..-y w= apprœ:mng those ñJ:r...sbairis. 1v'...ayar B= ñ;';" '¡ b-..ii~e there was ~::r aD cffan ID ~ !De primary ianrl 0= or ã...-v-..iap=n; sc!I ar a pani::War 5:2ge, and as ID w'-....a: is ::=iy being proposed. th::rc = D...-vcr a mav= ID do tha1 WÌ!Ïl Eastlakc or Randlo œ¡ P-".)·, so iI may !JOt appJy m this simaIiQIt. She sI3ICd ~ == was aâår=:d m the I::pœ! wh::n iI taIk:.d ahem ~ ëffi= 51'!~; ñaw~cr, iI is b::r mui.-manding tha1 s¡¡¡ff incazpar;m:d ~ prmectiCIIS 1ÍIar ~ fa",1m-. will be Ïmili. Ms. Moozc said 5=:ricm 7.1 sbifis ~ band Ibj"';'== ID ~ J:DaSœ:r bnìiå::r, tha1 they will be r.:s¡xmsibJe for an ~ ~ ii:or",ïm..1:g3IdIess of~ n.w..h.wt buiJdcr. Th::I: would be a.wwdr.a of issœs and mn.........s if we w= ID I:I!Jrir.: IDCIt:ÌIam ìmildcrs COIIIÎIIg m with sma]] proj= 10 bniJd 'or COI>S1:LU¡;¡ Im!Ïor baãDaue ii:or",1Tri.. Sc=tion 7.1 pIllS iI bad: 1D 1Í!:: master build::r furthcir r.:sponsiiñiiry, and j¡: is b::r nnri-=mrTing !bar ñnnm.,g fur ~ baciãxmc fiI~··'i;m~ has o==m:r:d at 1hc A .map ~~. 1n this cas::, iI's bemg ã= ar the B map =~e, =cpt fur two im:mav= !bar = fuIcd m CODåirion 108. CamnÏTn-mh-:r Moat 2S1œd if ~ =!:ham baildcIs wonid ~ ~ boniiin,g or would vïl1.~ ~apm:m oinain ~ ixmãing bcfur: 1Í!:: City anows a saJe ID the m=bam btJiiàcrs. Mr. J"""';cb said 1h::rc w= :four basic Xcm that m:cåcd 10 be bonded prior 10 the :first phase of ~ ba::kÏxmc f"...-rm-.. ædj¡:js >hl; ;l~''"!J jrwillkthc:n..,¡"';'==m of~J:DaSœ:rbuiI.ii:= A1l sobseq=i=1dxme -;"Mïm.. will - pmbabiy falllJPDn!De inIrdcn of ci!h:r~ =builà::r and/or the !l=......... blliJdcrs. Camri"rm-m,= P:aãilla Wdn', thiIJJ:: 1Í!::rc was a ãìsIiD..'"IÎan 1Í!::rc and as fur 2S i=ùdng daw:n WÏm the oh]i~nnJevcl waulrl Dc at ~ g¡= build::r leveL Yau ci!h:r have a COD:IpÌC!C obligæion In gDaI3IIICC 100 ~ of the baclå>= -;"Mm;.. at1Ìl:: Amapmgc aryanmm: 100 p::rœu! L.~ or relief of that oiiligarion ID 1Í!:: <:n~s= m im::rcst. Ms. Moore said !De hnnñing:is the saÏcs! gDaI3IIICC the City = have, and having the bnnñin~ ar the A map =~ is .a = = pasÏñan fur the City than doing j¡: ar 1= s:agcs. Mr.. Lippitt said j¡ was staffs apiIñon as long as 111= was a CDDdÏIion m 1D=,thcy ='1 do any B ImIpS or any ã...-v-..Japm= k....= this has ID Dc:r::sa1vcd. 1! is a siIif¡ m 1ÍmC, but nor a sirift in d..-v-..iapm::m st.ag:ing iIctw= Maps A and B. Qmn--;rm-m,= Rmå= said if we c:iJaDg: the time sc:q¡= of this and !b= is samc IUCS!ÏaIl of :respcmsibiliIy that wDcn a =cham Inñiå= = in.and cammt afford 1ha!, !De J:DaSœ:r build::r dœsn't h.avc ~ =PDJlSibiliry. H: ãid DO!:b=- the = !bar the City IDc:rcascd iIs l'lU....oon, be:::ans:: the "'""~ btûld= will !JOt have the h.ò>uw=o the == bIIîld= wauld have. Mayor Borum said iI was her 1IDdcrs:anãing from the S!2ÍÏ ICpart that it is 1Í!:: saIc ICSpDDSÏiñiiIy of Otay Ranch ùd.., or iIs == m ~ ID provide or fimm~ ~ cast oÍ the bacl:bon= f"""ïTri..~ rcquin:d m any finaJ map. incinãing bath A and B maps. Ms. Maar:: said iI = = and >VÌJa! S!2ÍÏ c:auld do 1D clarify iI would be In insert sp'"..::ifi¡: ¡""gnage m Se...'"!ion 7.1 tha1 = th::y shaJl prov.iàc ~ bcmding. 3tJ - J~ Z EXCEPJ>T OFMI\"LTI:S OF A P2GIJLAR MEETING OF THE em' COUNCIL NO"=i= 19, 19;': P~3 Corm-ïtm-=b::r hãilla zsIœd wj¡¡¡¡ = s= of ~ po'.=iaJ is=s jf ~ Clry allowed Ii= ÍIOnåh1g to D:: a: ¡h, B map s:ag:, as a¡>po=:! to !ÌI:: A map =~. Ms. Moore said if yen r-..qnirc !ÌI:: ixmåiIJg ax !ÌI:: A map ""'~, you hav~ ~ ixmåing up:from. If som..~ w= to :b2pp::n to !ÌI:: = imild::r, we would have Ii: bonëmg 10 go añ..-r in orë= to e= Ii: improVMn~" If we wair 1IDIÌl1ar:r s:>g:s, = IÌIDIIgil rh= is that provjsi¡m in Ii: agr= that d:als with fu; =on; in im:r-..st, th:z: is iiways Ii: pD'.2riaI thaI we migin nO! D:: ab1:: to g:t 1:ÍI: == bmïô- to actUally =c:t th~ ba.:kDon:: faciiiri:s, and we = '¡ hav~ bonëmg aI that poim b-..= j¡ """' don:: aI " Z:r stag~ in é..-v-..iopm=. W~ w01Ùd Ih:n 1:}'1O go to Ii: ==i:Iam buiìé:::, wDi::h would D:: ãiffi::¡¡JI 10 have !ÌI:: .=..~ build:r a::maJ1y eons=! major b~~ Com=ïm-h.o:r Æ::oy said in reaåÌDg IÌI: mmm~ oflÌl: PlaIming Cu......;";rm. Co1m"¡¡n~"'~>Q-clect Mary Salas ~,.. "~¡!ÌI:: sp=dfi:: mnr-T'n< 1Ì1aI 1h= master imild:r is :im:v=r obligæed 10 ão !ÌI:: bar:kiIt= miÌ2SIrIJcmre SÏIou1d 1hcynot smvivc ¡;..";",;.;-.,,, 10 b= ohñ.?""'" to!ÌI:: ¡".,.~ m:írasttu=, =. and!ÌI:: timing is the ÌSSDc we're t2Jkiog iixmt. bm 1:ÍI: =fuy is that 1h= = build::r is I"'""iw,a! to be ah:i= 1D band to do ñz. ~lm-.t>~:Rinå= said!ÌI:: Ib~";' ......"" offuuãing1h= backbone T:.",-,¡,;... is a grcaI::;'!ÍSt. In 0Iti:r to try to '."",. ..--I~ 1hatrisi:, 'P-'vcput otb:r sai=gnm!s in 1h: /!g!"='-nt ,Counci!ñas1h: ttspnn<immy1O = that 1h: ¡".~~ T:.MÕ;';", = baiIt. He åidJlOt= w.hy!ÌI:: oJd:mJcs = "h,,"!""i. bc::aDsc 1hcy wmi:=d well and prtJ\'ÏdW .~ ~ 5: said 1h: bom:mt fin: is that with1h: sm: of 1h: O:ay P.am:h and 1h: pmj=ð buildom, we dcm'I~ 1h: ...".." from 1h: w::ryfumr that 1h: ~ ~ = in pJaœ, ¡¡¡¡¡j j¡ will SCI!ÌI:: wrong ~ furtbis Ik:vcIopucm. If we had......wa! !ÌI:: ÌXIDIÏÏI1g æ: 1h= w::ry b_~ asåanc in 1:ÍI: pas¡, we wouldn'I 1mv:: 10 CIIIIIe up wiIh all OÍ ñ= <'1m';;';""" " -- Ms. Moon: said =ämg to !ÌI:: d=v-..icp=m ~-nt. :if laDgua"oe is ~ 10 speciñ""Uy ë=a1 with bonãing, it would I=!IJÍt'e Villag: D=v-.lopm:m, ¡¡¡¡¡j its = in ÍtII::rcst, 10 prtJV1œ 1h= bonding. T= is also a prm".sion in 1h= ~ thatIafrs abom snLu.";;"..;",, so itregnÌr::S 1h= Jcoå= 10 ~""'= Ie!ÌI:: d=v-"jopm= ~-nt It is nm 1h= same as ñaving 1h: bonãing up irom, bm th= is " provision 1Ìm:i1oJds Village D=v-..lcpmcm 10 proviå: 1h: f2::iiity and 1h= ixmd. Ccnm...ïm..",her P3ãiß¡¡ said this ~ pr=ned itself ax 1h: I"'..qœst of V1ll'~ DcveJ.cpm:m. T= is " =son "<,nnmm,,,,11y wiIy1il::y= 10 be ab1::1D s::1l offpa:rccls WÍtÌlDmmaJång 1h= ;,....,"-< IIp fumr em IÏIis siz= of a SPA or ax 1h= A Map =~. imt!ÌI:: qu:såm¡ is wñcrbcr that is WÌIaI Cmm::il 'WallIS.. IiI: qucsrion 11= js 1his was chan,,-=d ax 1h= n:q¡= of 1h= "!',!'ñr=n:. tb= = =sans for that æuì 1h= gucsrion for Cmm::il:is-whem=r or DOt when we get to the IbcIopmcm 4þ~ and we 10ak ax 1h: tt:mæivc maps, wh..-thcr we w.iII be ';";<ñ..,¡. æuì we have CIlO1JgÌI cnmfnrr with 1his 1=i of ,,~ Th::re is no qu:såm¡ that!ÌI:: '"""".... in WÌIiI:Ìl mff is 1. . .......""""'.g is Jess s=ñy 10 !ÌI:: City 1Ì:m if we r:qnired 1h= bonds ax 1h: A map SCJge. · lGm1<m-rmy,l1975El r"""mnR::al,SælDicgo, CA, '"i"~",;"g ~DevclDpIl:lCŒ,=:d 1hat City s:afÏ æuì vïIægc DcveJ.op=¡rs:afÏ put" 1m OÍ rime 10 = 1h= pmbl=s that .............djn St. CbIÏœ = DOt cperi::m:=d in 0:ay:Ranch. Villag: D=1opmcmis =Dug to pmvid: sc::mity """";"""D'w]¡j¡!ÌI:: PFFP, m! IÌIaI is when" pi= of d..-v:lopm::m reqDi!=s ;an irnprov==m in ord::r to serve that påas~, th::n ..;~ =uri1;y has 1D œ provided. Tæ d..-v:lopIm:m agr= = that Vìn2g: Devclopmcm is 1h: emity responsfuj:. As" gcncii ¡¡¡J= when you 1mv:: a TC:!IaIÏvc map ":!'l'M';¡}, and 1hat's WÌIaI v1J1ag.:' Devclopmcm is _rn.~ in 1iris lI=:ing, 1h= is DOt an obIi¡¡aIion in S=!4w or Coun::¡¡ polli::y thaI;an appii::;m! follow-up" =ñvc map ...¡nu,.1 with ml A map. WhaJ: js dill",iõUl ahem 1iris projc::t is 1ÌImDgÌl !ÌI:: devc10pmcm agrecmcm = a proposal from mff 1hat Vl1¡"~ Devc10pmem D:: ~ 1D do ml A map em 1h: whoJe OÍ 1h= SPA, viIlag: by viIlag:. If Y0ll1oak ax 1h:: enn';;';""" of approval, 1h..-y have 1D D:: bonded ax 1h=!WÍœ tbcir esDn=:, which is S160 million. If Ccmc::ii = to J!1ItSæ 1i::: common pr=i=: of allowing V~ D=v-,,¡..!!= to ão A maps on " Jesser =. Village De?-..lopm::ms wonld œ w.iIIing 10 proviå: 1h: s=ity on tb= jmprov= associæ=d with thaI l= ar-..a.. If they äo ;an A map on 1h= WÍlOIe of!ÌI:: viIlag: . ,...~ . _. _.. ". ",..._~.:_ 1$ ..., , ,..._.__......__...., ....__. D:SP.PT OF Mr-oL lES OF A P..EGIJL.1J1. MEETlNG OF THE CITY COUNCIL ~".,~ 19, 19;': ~4 ar 2Il A map en IiI: whole of !be sn~ th::n !be bontiIng sc::nriry n:quir= be:::om:s inmi:nsomc b-~ !be t=2Iiv:: map is so izrgz. If you looi:: ar the whole of cL-vciopm= agI~ in conjum:rian with the 1=z±v: map r::gniI=, !be 0Iy is assun:d mar :fa..'iliI:ies will b: inIfu.in a rim::ly =, the St. Oairc cxp::ri= will noI n:-= and the = of the ;o"",ïm"'< will b: cauitabiy.>i:Iar-..rl am=.an ~;;, ;"" ¥'UlT~ri::s in the projc::"_ .. .. - ...... ~ C¡m.ri'rmo-mh::r Rin:i= asked if s¡¡¡:ff crmci';""'..rl Mr. K1r.-.my's sugg::>uOIl of the A map far a small ponicn of !be pro.Ì;... to == IiI: ba::i::bonc fat:iiirics w= pan of !be A map. Corm-ïrm-mb::r MOO! SIaI:d staffs propos¡¡] was a ÌJ::I!:r gIIanmI::C far !be City. Mr.l.ippin rcpIicli j¡ was COIrC..'"t. SIa:ff 1ried to come up wiIb. a m~~h:rrri"", mar w01Ùd m- IÏI: àevc1op--..r's nccãs and a1so assure IÏI: CiIy's ('nmpTi~ Rici:zrdRosa1cr, 5=:ñar 1'Immcr. N'mrinn-rl staff's ¥" ~ "..,;.,., :rcgarãingIÏI: Oœy Ram:h~ T.ais b::ing the time and p1~- as aåvcniscd, the public h=ing was d=:1aIcd op::Il. · William Licb=an. 852 B!a::kwood Road, CImla ,,-=. CA, Dir=m of P1:mnin" and Oœr.aions wiIb. IÏI: - . M::impoiicm TI2IISÎ!D::?-..!cpmcmBœrd, suppom:d IÏl:pmj= He~""""¡ """.........Ic1æing1O guarded =i=; and ,;-".,m~ in IÏI: villag::s. · Rä:WïI1iams.3130BaniIaRoad, CImla VJS!a, withJ>ožmBni1dcrs. ~an bchaIfOÏWest CoastLandFmui, OWIC' of the 28ß.= pan:cl ~l~"";":; Villages 1 and 5. Wcsr Coast ~"±'l^"-'-' Slaff'n, w....,~r,,;,,,;an. a1Ihongit tb::y wDDid Iïiœ to JY~ imild the =1'110 defer any "!'l"uv.Js in ~ 51111IiI the City, West Coast. and "ïTI~~ "- D::v=Jopm::m lmvc an oppommÏIy 10 m=r and explore 1=. j . Kjm Ki1Jr..nny .~W ' .";",, "1J!a!!c D=lapm::m, ==d staff's ¡~~.."",,'.,nr;..ti.,., with the =nen of .. - -' - - -- - mocñfying a ponian of the tcIII:!Iivc 1Dap in Village 5 to '"!1""'11:J'as5 .an of 1ñ:ir own=1rip Ïn 'V¡¡¡age 5. wiIb. IÏI: =::priem OÏ two sp=:iñc pan:cls. "' "' "' Comu::ilmcmbcr Padilla èft the dais at 11:11 p.m. "' .. "' · KcmDaydcn. 11975 El rmninn R:al. San Diego. CA, '~l'" Sr"';"~ ViII2gc Devc1"1"'~"'" gave a pzc;cmarien n:garãing Otay Ran::ñ and .cf......¡:;¡;¡ 10 the :report by ViJJBgc DevcJ~ . Mr. ~ <> on, ñ.,i-,>] with the i= of the scope oflhe ........,¡v~ map. He mm,"""",, ViJJagc D=vcJopmc¡n suppom sra:ff .=",,,,,,,,,,,,,rl..ti.,., wiIb. the <in~i- II1Ddfficæi0Il thar IÏI: scope of IÏI: tcm3Iivc map sbaDJd im:Jude V¡¡¡age Dcvciopmcms own=irip in Village 5, ::::::pI for two pan:cls that imm_ñm-1y abut West Coast l" u1""'Y wi:ã::it is Pm:::J .R-29 and Pm::::l P-3. West Coast:ilas previo1JSly ;"m"","¡ they would Iïiœ to :flip a sëmoJ or parle OIDD our ~. The poIIÏtm of !be 1"U>=L.Y inR-29 andP-3 wiñt:h sbouJd be: ...,.1nrl"¡ from 1hc:mç is "!'l.....;"'A,-1y 1 0 10 15 =. an 2I!:ÇI1c size to fiip 1hcsc kinds of 115:5, I!O! that they an: ""'"""1'Uug or advu...uWg that, bin at J::as¡ it provides the possiDiliry. Th= b::ing no ÍÌIIñJ:: sp=ak=. !be public 1Icaring was closed. Conn,.,m..-m"'::r MOO! =::pressed =~ of 1hc practi::a! cñ= OÏ delaying IÏI: banding um:il IÏI: B map leveL He asked WÌIaI """.....w.= were in pb= mar the backbcmc inÏrës!m...-nm:s would be c:onstructcd. Mr. K1rl-=y answ:=! mar 1hc cL"'Yciopmcm agr=cm """"'"" a Sf'ITP'Tn....mar um:ill""..Jcascrl by 1hc City Cmm:::il, (1... Village DevcJopm= is obligated 10 provide for the ~~. The àevcJopm=m agr= æso 30 ~ EX'-~P.J>T OF 1I1I"l: ŒS OF A REGULAR MEETl.'I/G OF THE CITY COUNCll.- ~:J"'~ 19, 19?5 hz:: 5 r=q¡ri:':s th: PfD\".5Íœ1 DÍ ¡¡ suberñ;"";"" ¡¡gr=m:m by IÍl: J:nå::r en IÍl: 1" U.",",LJ in th~ = th..-y take IiIl:: !O IÍl: 1'LU~Lj. th..-y = ÏxJI!nd by tœ: provisions of th: à..~~Jopm= ~'""'. m~lnñmg the ba:i::ixm= provision. TlL"T~ = ¡¡:::mpIe ofJ=:!s DÍ == Ïn IÍ1iS pmj=t. Tæ CiIy DÍ Cbula VISta l:2s ¡¡ very aggr:;:õÎV: à..~c!opm::m impa=r f= pIOg¡¡m¡ ami :ci in1iiding p=t 1Ïm g= tiIrough IÍl: proc:ss has to pay far thos= à..-v:iop=m impact f= for ¡¡ w.iJO~ ¡¡m¡y DÍ -;;'-;-m;~, ami tœ: CiIy wiD cons::amiy ÌIi!v: ~ fiow of = !O make sur: =:h Ïndiviåwù par-..::] 1"'J.S far m:fuir sì:ia:: of~ ;;,,,,liri~ Wmn both IÍl: d:v:icp= ¡¡gr=JIIUi t=:arive :m¡¡pl:;rv~ are rcgnir= tiJ¡¡¡ ~ b:: m PZ:: through ÌIOIufuJg, ÌJ1I! tiJcre = otb::r m~~h:m;""'" !O = compJ:Iio:n of th~ fuciliry Ïn a rin=i:r m:rrm-r". Cr=-ïrm"'TnÏ1!:r A-~' zsJœd why IÍl: pmj==r ãid Dot ÌD::h1d: sp=d bumps, D=ms~ it was ~= Ïrom th: paiL)' Cmm::iI =cœd in= mamhs. Mr. J"""';<1-:I ",,:!,ï.m-ri tœ: ~ blimps w= DOt provüi:d in:r:spaDSC to r..q=tS by tœ: F:iI: Ciñcf ami Ciñ:f of Poii:: w.ho felt .. - . mrlñc fl won1d lIinõ::r th:ir '. m¡r "'~~~'''~~'101æ ow qma:r.:spanse. Corm~;im"'Tn"':r AJ::vy as1œd s¡¡¡ff to adàI= tœ: impaa DÍMSCP en ¡¡ Ccmmy-widc basis en 1Iås particular pmj==r, ami wlm arc the impa::Is ofProposiIÏon218 en tiús proj=t. Mr. ~1'jn said = impa::t would ÏI: ifwe had 1hc op:n "!"'- ãistrictto n,.;"";,, 1hc open S!"'- around tœ: viIiag=. Ii tiJcre arc g¡a:d .",,,,,,,,,,,;,;~, """'JIbllig privat: w.iIirin th: gazed ''''''''''''';'J would œ m.;"".m~d by ~ ~W=L>' ~,-, :";"". ami it won1dDOtÏl: r.-gnlotM æ:aIl by Proposi!ien2l&. Ferth: ponÏcnprobably alcmg m~ slop=s DÍTclegr,apit Canycm:Rœd ami 0raDgc AVCDDC w11Ï1 is=s su.ci¡ as ã:Ama.,oe, tho~ COIl!d be and probahly wDl1idial11md::r1D: prov.isicms DÍP10~'''';';'''' 218 w.lñch= 1hc :iniria1 ¡,.",.;,,~ would b:: s:t tip before y.:opl: IIJDV::d in. Ii th: =nl: hadlllrcaåy 1IIDVed ïmo tœ: proj:::tb::fme the... ....~.,', 1b::rc won1d 1mve to be a VotC. - - , '-' Comci'rm-mi-=r Moœ ~ =~ abom guard=d r""""",,,;,;~. H~ ãidDOt:ia:vor staffs =omm..",rl:nion ami do='r = the big ;;;;7~, -,,- wiJeth:r it l:2s ¡¡ g:ne or ga¡¡rd, b=usc 1hc =,,1 is still the ==. H~ could DOt s= valid =SOIlS to J:SI:i::¡ m¡r ciIÏzcn Ïn IÍl: City of Cbula ,,1= from åriviDg Ïn ami around tiús pmicnlar area. Conrr.-rñn-mñn- Rmtian: was mn~ 1ita:t: gnard=d or ga:r::d I.oUWWLWÍties s:nñs the ~.P¿u~ Tn"~~~~e OÍ wb.at tiús proj:::t was mi~r'Y com:civcd to be. Wh::n yon have anifu:ial ba1:ri= ami cven IÍl: m.mn.rilJD of mas:: bani:::s, = nth=y = guards 1haI = DDt tiJcre during 1hc day, :ir = ¡¡ åiffi::r= sense of ::nnhi:m....... w~ = to haY::: tÍI:: pIC$Q= 1iñs is ¡¡ good '"""""" ';'J ami all paris ÌIi!v: good prot=:IÎIm ami safety, DDt jnst those wño c::m añcmi to be in th: ån~¡'_:fænily er lrigiJ::r ""';rl...,,;.1 facility. He ãid DOt favor guarded eu,,,,,,,,,,;,;~ ÎD m¡r farm.. Ma:yorHomm m,;;..",..,; 1ÌIaI gated eu"",,,,,,;,;,,,, w= ~nrmnl1J1, ami th=rcw=two areas inR=bo del Reyw.lñch Cmm::iI ãid DOt ~ T= = mobii: home parks ~..iñnd ga¡=s, b=ws::ir is the lifcsry1: IÍl: particular moDjj~ hem: parl:s wam::d. Sb: ãœsn't think :ir is exclnsiv~; :ir is a cboice ami motir-dng tool far tiús pmj<=..'"t. Comrirm-mi-=r AL-vy r.:i=d to an arri:le 1.0= NCXI :Eå::n, . from CalifornÏ¡¡ Lawver m.~ tha1 ta1lœd abom tb: D=fus ofha.viDg ~ eu,..."",,'-';"'. Earli..,. tiús CVCIIÏng Ccnmcil spok= ¡¡¡ lcn","th rcgæãÏng sectÏOD 7.1 ofth: à..~::Jop=m ag=.r¡= ami 1hc ba:i::ixm= in:i'r2mucmres, and :ir was clear 1haI CoUDCil ãid DDt waDI to cr-..aI: ¡¡ SÎlWlI:ian in1bis à..-y"i~ 1haI was DDt n:quircd of ot!:ler à..-vc!DpIIICIlIS. Hc mñi=~d w~ De:d 10 = tha1 armmd w:ith =!=! 10 g=s, h-.m.~ we ÌIðV: allowed ga¡=s in otb::r pam of 111: C:iry. W~ have privaæ siDgle-iænily =iñ...- à..-vc!uro= w:irlt ga¡=s Ïn bcnh ;::"..1... ami Ran:Do Dcl R=y, ami h: mIcd COUDCiI simuld b~ consis=. Ii we = goÍDg 10 hoid :Ram:ho d::1IL-y lIDd Eastlak: to th: same x-..çnir::m= en otb::r issues as Vill¡¡g~ D:v:iopm=, then w: shon!d be consis= ami de m~ == w:irlt giving 1Ï1=m tœ: oppomm:iry from ¡¡ maz:k::ring s:anåpojm 10 allow g¡:¡¡rå:d portions or 1Ï1cir à..~:iopm=m. .5 3ð - 1& ------------_._-- ...--.---- IT!ZP.PT OFMr><-c u:5 OF A P.EGULAR MEE'TING OF THE CITY COUNCIL ~:r"=:::::1b= 29. ~?;o: ~5 ¥SC (HorwnlAL"'ry) to allow gom closures from dusI.: to dawn, failo:d 2-2-1 with MOO! and Rindon~ oppos~d amj PadiI1a abs=.. (11119/96) MSC (AlevyIHmum) to allow smœ facilities gnarded from dusI.: to dawn, "Pi" liVed 3-1-1., with Rindoæ opposo:d amj PadiI1a abs=.. (11119/96) RE50LlJTl0N518416, 18417 A.1>ID 18398 OFFERED BY COUNCILMEMBER RINDONE, with the aœption of raking the issœ: of the banning s~ which is 11= 12, approvo:d 44-1 with Padilla absent. (11/19/96) 12. PUBLIC HEARING ADOPTING OTAY RANCH P.RE-ANNEXA.TIOK DEVELOPMEfI,'T AGREEMEfI.'T WITH VII...LAGE DEVELOP1v.IE!\'T - AIl :!Tn."ñm_ to th= ë...-v-.lopm::m agr= to ÍIII1ÌIcr !"='"'- ÍIIfI4strn::mr: improv::mcms wñ::rc th= dcvc1op= wams to = pan:=ls for sal: prier to -ñmoim-1Ï!: :iÏ!Ia1 sobålvisicn :map. The ",",""mn- aJso -3dd:r= Ïmmc probJ:ms wiJh:regard to any debt paym::¡¡¡ 1i:aI might be kvjed to make public impmve:mcms or should dcvc1op:m:m be DIlly parriaIJy "-"",;,i.-ö an any parDaùar~ dnc 10 any SIDppagC of wort ~'11y dnc 10 a imJkmpn:y aaian. SIaff "r". "Bur ",k CmmciI p1ac= th= ornm="'" an:fim::r.:aãing. (Dcpmy City M=::r P1:mnm.. DiI= and _ 9 _ , 0:3y R=:h Manager) CnntinnPfJ from the meeting of 11112196. (11/19/96) ORDINA1\lCE 2691 AMENDING OTAY RANCH P.RE-ANNEXA.TION DEVELOPMENT AGF~'T )s.t;l'W~ OTAY RANCH, LP., A CAIJFORNlA. LIMITED PARTNERSHIP, V1LLAGE DEVELOPMENT, A CALIFORNIA GENERiU, PAR1NERSHIP, A.TIID THE CI'IY OF CHULA VISTA mrst .-rñnø) (11/19196) ORDINANCE 269l OFn:RED BY COUNCILMEMBER. MOOT, mMnñÍ11g adding the bonding hm.,øuage to -- se::tion 7.1, ai'l" u.d 3-1-1 with Rindone opposed and Padilla absent. (11/19/96) i 6 -' :3~ -/9 ------- -- --- f' II .' ~ I z . 1 J" . ... ~ ~ . t') I ø: ~ ! fro Q III:T"' ~8 : , ~I < °0 ~~ '" ¡-.. Z J:.L! ::E ~~ ::r: u ~ ~ ~~ ¡-.. -< ~I ... IT"' III: ~ ~ 7 ,10 -2.0 __...... ._._..___. ~___________..._.__". m_ ..---.--------. -...-.- .,--...- -..- -.--. ¡. " ': .~ ~ it ----, z , 'i ...../ . ~ ~ . 't at\¡ <tho) 1-",10 CD I'> T'" _ ~ T"" .... T'" >0 I ' I') t "':z:o --> _'1_:Z: ::)00. :r:",,,, 't (I) Oa:::¡: at\¡ I- <:t6m I --- - 1-",10 D: - CD I'> - I» _ ~T'" - - .... T'" >Q I ' Q :-- - II. t "':z: 0 ~8 - -- --> -J I-:Z: -- . ::)00. - .. :r:",,,, Ii 0a:::¡: l- So ·m ~ø ~~ ~ N E- a- Z w ";2 ~~ ~ U -< E- 't E- a -< 1 '" il Q) ò :z: 't I-t\¡ at\¡ <t:chœ 0'" 1-Q)1O <t;~ CD I'> s..a:,., - ,~ ......>0, II-I-· ~ I I- "':Z: 0 .. 0 ",0 .. 0 :z: --> I-:Z: --> -J I- <Do.. ::)00. E-ó :r:~<t; :;:'" 0 o ::!i ",::!i I- -J ::) :r: 0 ~ ð -Z-j Oft"U,ft8 FRI 15:14 FAX 61ft 6ftl 51il CHrL~ nSTA E"GIXEERI,<G ~(lO~ ATTACHMENT 3 CITY OF CHULA VISTA DISCLOSURE STATEJ\1El\l You are required to me a Statement of Disclnsnre of certain owm:rship or financial interests. payments, or campaign contributions on all matters which will require discretionary action on the part of the City Council, PI8DDing CoIIIIIIÍSsion. and aJl other official bodies. The following information must be disclosed: 1. List the names of all pérsons having a financial mœrest in the property which is the subject of the application or the Comract, e,g.. owner, applicant, Contractor. subcontractor, material supplier, elC, (!.e.nre¡t J.JC)m~ ~ /1k.//19 OR tJ-e¡¡.r_¡ A~rsJ,;I1. 2, If any pcrson* identified pursuant to (1) above is a corpolation or partnels!:úp, list the names of all individuals owning more than 10% of the shares in the corporation or owning any partnership interest in the partnership. Publif.. t.""""'Y 1?'clJ~J DN NY5 F- e C T.() (No Sroc#( 1.0 JiÙ'L.r ho 1'/ ¿ /o'Yc,) 3. If any person" identified pursuant to (1) above is a non-profit organization or a trust, list the names of any person servin£ as director of the non-profit organization or as trustee or beneficiary or trustor of the trust. 4. Havc you had more than $250 worth of business transacted with any member of the City staff, Boards, Commissions, Committees, and Council within the past twelve months? Yes_ No)Ç If yes, please indicate person(s): 5. Please identify eacb and every person, including agents, employees, consultants. or int1ependent Contractors who you have assigned to represent you before the City in this matter. ANY C;::::}., /7F'J< Ç)U pi I'll / ,::::;F LFj ~Jp.j .y 1/ S GoC . C (;./3Z)n;;¡:.J J , ) ¡.Je J,./M,¿ ¡./¡¡Cä/I.I.5Ç,oC. ( M4:1, fFCr0 .M ,1 '{ (,tZ 0<-1 P ( AJ~/IJ¡¿Bt IJlC. ¡./OWArm .45">OC.{ LAN~4&t!j 6. Have you and!or your officers or agents, in the aggregate, cròured more Than $1,000 to a Councj\ member in the current or preceding election period? Yes_ No Jf yes, state which Council member(s): * .. .. (NOTE: Attach A Dare: "7//7 17.8 0J-.J A- Ú) f./l. 13f2ENT Printed or Typed Name of Contractor! Applicant .. E= is d4ined as: "Any individ1U1l, firm, co-partnership. joinT venture, associarion, social club. fratemal organizalÌðn, corporaJlon, eSlate. /rUst, receiver, syndicate, thIs and any other counIy, ciry, or couTUry, dry municipaliTY, district, or other poli1ical subdivision, or any orMr group or combination ac¡jng as a unit. H',\liOME\ENGtNEER\LANDDEV\FORMSIDtSCLOSE.FRM 1 30 '-ZÞ- - -.--------- ~ " I ~ ~ ------- ---- ---- - -- ~ - '" ...I~ ~ 1.0 to 1.0 N cw) N N I"- N C") N N N co to _ ~ ------- ---------- - -- ~ ~ ~ ~ ~ < :s :::E ~ ----- ----- ----- - -- ~ ~ ~~~~~ ~~C~~_~~CCC ~ ~e ~ ~ ~ ~ - I I I : ! I ~ ~ .- o~ --,--- - _0_____0__ - __ n: ~ o Q) 'C"'~I~ 1.0 to NON (") _ ...... NON M N to (D :: ft 0_ __1___ _ -n-----M-- _ __ ~ £ 0 :Sm i É 'i ; ;:¡ - ..: :;.] õ o I :: ~ 13 ~ W ~ .;;; _ 2 g o ----- _____ _____ _ __ ~ B ~ ~ ,2 = CD ~1'I:f" ~ U") 1.0 N N N N ,.... 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C m- ----- - ---- ----- ---- Ë::I ~.E 1t ~ '" [~ W GlelD;~ID~IU.E :t: >û"'8-'" c:- o CD 12,t1D ii IDC: 0:5 en 1! î ~ª~~Ë:2- --lÐfO) --Q)Q) r).....COft)fO) M.....CDCD ~-;:.2-Gl~~ C>.!!!::> .....NN ....._fO)U"}_ ..........r':IU') M .;:Oþ~ID16~i)GI- Z ::lOr'\!. ~ct!.~ r'\!.cnR_"~~ ~~_"": 0; æ:g'£j~6'liQ.'¡;¡!"! ü.i Ew N~V NMfO) NMr':I š¡::~~uÆ.£~8 < ::I __ __ __ :t: U ~c.""~!£.""~~ ~ '. ~ b z ¡ w - ~ :E fii ... 'i) CLI:; W 0. m II/) ."J I:) > - "E œ C)LU o 0 o~ - II> o ~ .... ...a. O~- a: .: ..... m... s:::-!! D.. .E¡;,... m ¡¡; Cf)'fi8. Õ ~f ~ g~ ~ i...õ ~ii-; ¡f B~ - u. >.~ 0, 0;:ECG>. roC:::'E 5;: en - I: ca ... E'" ..J Om.. -; m C cae.. m cum cu E- =>..:::: W r'\ ~ . 0 _ >. mil).... _ 11).....0 >. o-1im camll)Cf) .....e- m a ~- CII CII 1:0e..call)-CII>ca LU~ ~ ca --~Q.E ~ _0 m- w~Oe..o~ ~¡ U I: CÞQ)ca 11)'" C::Oii) ~__..._ .~~ ... - --...>. o~ca>. "'CGo()cum~'" Q, ê ~~U')NCO~Õ ~':E~ g~w~ I:I:£~ ..,~ o ØCII)CÐc)- ~mo.!! mO m;;::oo _ cog. " OI:::IÐ ca o.c»all).B o~1im ml:..EEw>'>'-m "':: õ .:CD ~.ECDmmf- I: Oil. m Il.CU 0-1:1:0_ 1- .B:cnll.lÐ===œ m- w .E C::~1imrom~1: ~~ ~ o..=..:.::o.Æ»>i)CI)e> C::!:!:øo ~..Eo-gll.~ouoCDE C~ => t ....c.......> "'C omal-I:-U)CI) ~..r::~ "'-;¡::JI:)::J CDr::Clðgr::.E...E...EalJg.....&nCD~w....ëñmoCÐ~Øí~~~.=~ ~.æ:I:)... 0 £CD~m~..........U'):::E>&&;goËalcm~caca~~f"'Co 8!!~t LU V c! '>r::CDCDCÐCII I caroc..m-om9~ ~w>.O)or::~ "'~~::J,,~ mmC::-cCllaoo_ --- c::m- - .. I CIICDCDCIIE GlE=>O õ' L..... .....c::.....mc:Ummmcc:->->=o =ëcag¡.............-Oïüã)1IP € OLU"t~ .... lIi5-m ===mO -OCDD..__Ooo0f-f-a.- ::o..cLU........ II> Z ~gœ~~~555Wê~m~~~øëCDññññ, I ~E ~~:~t~~~ ~ ¡;O'I::Jãie~11 ~CI)::;::¡:!~tGtGtG,!g~8B88aC)om.!! ~¡iDu:::~"'t~ E~mc..c> O)ID Cþ CÐ ~)(==~e..-IW~ 0 Q) ~ Q) i).§.§.§-g ~ 2!~ 'ê ~ fij æ..t Q;. CD II:CC~~~~ow~~~_~~_>''Eëëë»~men ~!~C:~œ~~ :::I:: i;... CD CD CD¡!;::-=~ ~EãíU.L1.. fZ) lIP CD Q) m æ----»:>~- e!1 'i:! ~ ~ ~ fa u ....caCDQ)m_tDmmQ)!~~ËêËêËuQjÎj)Îj)QjüõõCÐ~ .¡:.~:!:::?~O~ .... C.EEo.!.!.!o_C:C:f--.B.Emmalrom.c::t3:~3:Q)Q)Q)~1- .!!:;..,o:: II .r:UJ~ ~ _fZ)IDID_ftlmm www..r::~~~~~IIPQ)Q)CDCC:C~_ ~ ~;..,_ ~_ ~ =m.Q.D..Q~E:E:E~m UUUUUrowt/)(I)wgcgenê ~;~E-ëf:;:1I ~ ~~gggE~~~o~ëñëñ~~~~~~~~~~~ª~c:R ..~~~æ.w~uæ ........ om en en Cf) >''''C-:J'''C E E ¡: ¡: oO)O)O)oÆ C)O)o)DCD m m (!) 0) :¡ e;¡:;~:s E ~.:1 8 ~ .... m CD ro ro m CD lIP Q) (!) = .... .... 0 ° 0 0 0 CD 0 0 0 01 to - - ~ CD I õ ~ OJ ~ :;:, CD'" .c c..w~c..e..~~~~~L1..I-~~~D..c..c..I-~~Il.c..C:CCO~ ~~~~~UU~~ IÓ 30-23 RESOLUTION NO. /9.2.tJr RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING A FINAL IIBn MAP TRACT NUMBER 96 - 04, OTAY RANCH SPA ONE, VILLAGE 1, NEIGHBORHOOD R-3, ACCEPTING ON BEHALF OF THE CITY THE ASSIGNABLE AND IRREVOCABLE GENERAL UTILITY AND ACCESS EASEMENTS GRANTED ON SAID MAP WITHIN SAID SUBDIVISION, ACKNOWLEDGING ON BEHALF OF THE PUBLIC THE IRREVOCABLE GRANT OF FEE TITLE OF DESIGNATED RESOURCE PRESERVE AREAS, AND IRREVOCABLE OFFER OF DEDICATION OF FEE INTEREST OF DESIGNATED LAND FOR PUBLIC PARK PURPOSES NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista hereby finds that certain map survey entitled Chula vista Tract 96-04, Otay Ranch SPA One, Village 1, Neighborhood R-3, and more particularly described as follows: Lot 3 of Map 13592 filed in the office of the County Recorder of San Diego County, June 24, 1998. Area: 10.603 Acres No. Of lots: 85 Numbered lots: 75 Lettered lots: 10 is made in the manner and form prescribed by law and conforms to the surrounding surveys; and that said map and subdivision of land shown thereon is hereby approved and accepted. BE IT FURTHER RESOLVED that said Council hereby accepts on behalf of the public the assignable and irrevocable Public Utility and Access Easements, all as shown on said map within this subdivision. BE IT FURTHER RESOLVED that the city Clerk of the city of Chula Vista be and 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 the Irrevocable Offer of Fee Interest of designated Resource Preserve Areas and designated land for public park purposes are accepted on behalf of the City of Chula vista as hereinbefore stated. BE IT FURTHER RESOLVED that city Clerk be and she is hereby directed to transmit said map to the Clerk of the Board of Supervisors of the County of San Diego. Presented by Approved as to form by I;) ~ (1/1 ( ., John P. Lippitt UP1!? .: ¡ r ~'J!/:J John . Ka eny , Director of Public Works City Attorney :JOff; RESOLUTION NO. /~..</t1 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING liB" MAP SUBDIVISION IMPROVEMENT AGREEMENT FOR CHULA VISTA TRACT 96-04, OTAY RANCH SPA ONE VILLAGE 1 NEIGHBORHOODS R-3 AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT NOW THEREFORE, BE IT RESOLVED that the City Council of the city of Chula vista hereby approves that certain Subdivision Improvement Agreement for Chula Vista Tract 96-04, dated the for the completion of improvements in said subdivision, a copy of which is on file in the office of the City Clerk as Document No. BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby authorized and directed to execute said Agreement for and on behalf of the City of Chula Vista. Presented by Approved as to form by CL ~µ¿~ John P. Lippitt John M. Kaheny Director of Public Works City Attorney h:\home\attorney\ORS1Vl-3.RES 3¿Jß ---- / Recording Requested by: CITY CLERK When Recorded, Mail to: CITY OF CHULA VISTA 276 Fourth Avenue Chula vista, Ca. 91910 No transfer tax is due as this is a conveyance to a public agency of less than a fee interest for which no cash consideration has been paid or received. Declarant SUBDIVISION IMPROVEMENT AGREEMENT THIS AGREEMENT, made and entered into this day of , 199 __, by and between THE CITY OF CHULA VISTA, a municipal corporation, hereinafter called "City", and CENTEX HOMES, a Nevada General Partnership, 5962 La Place Court, Suite 250, Carlsbad, California, 92008, hereinafter called "Subdivider"; ý!l.:rNEââE:rH~ WHEREAS, Subdivider is about to present to the City Council of the City of Chula vista for approval and recordation, a final subdivision map of a proposed subdivision, to be known as OTAY RANCH VILLAGE ONE, NEIGHBORHOOD R-3 pursuant to Chula Vista Tract 96-04 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 -1- .30[5/2 this agreement wherein it is provided that Subdivider will install and complete, at Subdivider's own expense, all the public improvement work required by City in connection with the proposed subdivision and will deliver to city improvement securities as approved by the City Attorney, and WHEREAS, a tentative map of said subdivision has heretofore been approved, subject to certain requirements and conditions, as contained in Resolution No. 18398, approved on the 19th day of November, 1996 ("Tentative Map Resolution"); and WHEREAS, complete plans and specifications for the construction, installation and completion of said public improve- ment work have been prepared and submitted to the City Engineer, as shown on Drawings Nos. 98-517 through 98-521, inclusive, on file in the office of the City Engineer, (as included within the definition of "Improvement Work") and WHEREAS, an estimate of the cost of constructing said public improvements according to said plans and specifications has been submitted and approved by the City in the amount of $766,000.00. NOW, THEREFORE, IT IS MUTUALLY UNDERSTOOD AND AGREED AS FOLLOWS: 1. Subdivider, for itself and his successors in interest, an obligation the burden of which encumbers and runs with the land, agrees to comply with all of the terms, conditions and requirements of the Tentative Map Resolution; to do and perform or cause to be done and performed, at its own expense, without cost to City, in a good and workmanlike manner, under the direction and to the satisfaction and approval of the City Engineer, all of the public improvement and/or land development work required to be done in and adjoining said subdivision ("Improvement Work"); and will furnish the necessary materials therefor, all in strict conformity and in accordance with the plans and specifications, which documents have heretofore been filed in the Office of the City Engineer and by 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 this 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 -2- 3(}ß-;1 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 wri t ing the completion of said public improvements or the portion thereof serving said building or structures approved by the City; provided, however, that the improvement security shall not be required to cover the provisions of this paragraph. S . It is expressly understood and agreed to by Subdivider that, in the performance of said Improvement Work, Subdivider will conform to and abide by all of the provisions of the ordinances of the City of Chula Vista, and the laws of the State of California applicable to said work. 6. Subdivider further agrees to furnish and deliver to the City of Chula Vista, simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of Three Hundred Eighty Three Thousand Dollars and No Cents ($383,000.00) which security shall guarantee the faithful performance of this contract by Subdivider and is attached hereto, marked Exhibit "A" and made a part hereof. 7. Subdivider further agrees to furnish and deliver to the City of Chula vista simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of Three Hundred Eighty Three Thousand Dollars and No Cents ($383,000.00) to secure the payment of material and labor in connection with the installation of said public improvements, which security is attached hereto, marked Exhibit liB!! and made a part hereof and the bond amounts as contained in Exhibit "BI! , and made a part hereof. 8 . Subdivider further agrees to furnish and deliver to the city of Chula vista, simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of six Thousand Dollars and No Cents ($6,000.00) (per private civil Engineer's or Land surveyor's estimate) to secure the installation of monuments, which security is attached hereto, marked Exhibit "CII 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 -3- 3tlß --1 payment thereof, may be released to Subdivider or its successors in interest, pursuant to the terms of the improvement security. Subdivider agrees to pay to the City any difference between the total costs incurred to perform the work, including design and administration of construction (including a reasonable allocation of overhead), and any proceeds from the improvement security. 10. It is also expressly agreed and understood by the parties hereto that in no case will the city of Chula Vista, or any department, board or officer thereof, be liable for any portion of the costs and expenses of the work aforesaid, nor shall any officer, his sureties or bondsmen, be liable for the payment of any sum or sums for said work or any materials furnished therefor, except to the limits established by the approved improvement security in accordance with the requirements of the State Subdivision Map Act and the provisions of Title 18 of the Chula Vista Municipal Code. 11. It is further understood and agreed by Subdivider that any engineering costs (including plan checking, inspection, materials furnished and other incidental expenses) incurred by City in connection with the approval of the Improvement Work plans and installation of Improvement Work hereinabove provided for, and the cost of street signs and street trees as required by city and approved by the City Engineer shall be paid by Subdivider, and that Subdivider shall deposit, prior to recordation of the Final Map, with City a sum of money sufficient to cover said cost. 12. It is understood and agreed that until such time as all Improvement Work is fully completed and accepted by City, Subdivider will be responsible for the care, maintenance of, and any damage to, the streets, alleys, easements, water and sewer lines within the proposed subdivision. It is further understood and agreed that Subdivider shall guarantee all public improvements for a period of one year from date of final acceptance and correct any and all defects or deficiencies arising during said period as a result of the acts or omission of Subdivider, its agents or employees in the performance of this agreement, and that upon acceptance of the work by City, Subdivider shall grant to City, by appropriate conveyance, the public improvements constructed pursuant to this agreement; provided, however, that said acceptance shall not constitute a waiver of defects by City as set forth hereinabove. 13. It is understood and agreed that City, as indemnitee, or any officer or employee thereof, shall not be liable for any injury to person or property occasioned by reason of the acts or omissions of Subdivider, its agents or employees, or indemnitee, related to this agreement. Subdivider further agrees to protect and hold the City, its officers and employees, harmless from any and all claims, demands, causes of action, liability or loss of any sort, because of or arising out of acts or omissions of Subdivider, its agents or employees, or indemnitee, related to this agreement; provided, however, that the approved improvement security shall not be -4- ..30ß~.5 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 ~aters, 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. IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed the day and year first hereinabove set forth. [NEXT PAGE IS SIGNATURE PAGE] -5- 3¿Jg/t [SIGNATURE PAGE TO OTAY RANCH VILLAGE ONE, SPA 1 NEIGHBORHOOD R-3 SUBDIVISION IMPROVEMENT AGREEMENT] THE CITY OF CHULA VISTA CENTEX HOMES, A Nevada General partnership By: Cent ex Real Estate Corporation, A Nevada Corporation Its: Mayor of the City of Chula Vista By: Ronald M. Brent Title: ATTEST city Clerk Approved as to form by ..., :J2-1"1i-J) Î ~ '{;~l'~ City'Attorney < (Attach Notary Acknowledgment) -6- 3tJ[J'-? LIST OF EXHIBITS ~ ! Exhibit "A": ~" Improvement Security - Faithful Performance: $ 383,000.00 S- ~ Exhibit "B": ~provement Security - Material and Labor: $ 383,000.00 ! Estimated Cost of Improvements $ 766,000.00 ~ f>" Exhibit "C": ~CJ Improvement Security - Monuments: $ 6,000.00 ~....~ ,,-, )?::i ''''~~'' '",,1 .t~/ Securities approved as to form and amount by "-. ./0' ~ ~ ì iqr;1o ---;¡~, c~ v.' v ",¿/ )~ -) f/II ~ .....f:..~ J,?!iI(:M. Kaheny J C~ty Attorney Improvement Completion Date: Two (2) years from date of Council approval of the Subdi- vision Improvement Agreement. ::; : \ c::'.::.' ::;...:::_ ': y \ s:' a \ Oí;::: 5 :N. ;:(-3 -7- JtJß-g/ - ~Alc :3c c- 1- I~"~ RESOLUTION NO. /tf;<l/ - RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE SUPPLEMENTAL SUBDIVISION IMPROVEMENTS AGREEMENT FOR FIRST FINAL "B" MAP FOR VILLAGE 1 OF THE OTAY RANCH PROJECT, CHULA VISTA TRACT 96-04, SPA ONE AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT WHEREAS, the developer for Chula Vista Tract No. 96 - 04, has executed a Supplemental Subdivision Improvement Agreement (SSIA) in order to satisfy Conditions 1, 3, 4, 5, 8, 9, 10, 11, 21, 22, 28 (c) , 31, 36, 37, 52, 75, 82 (c) , 83 (c) , 86 (c) , 93, 95, 103, 104, 108, 109, 109 (4) , 120, 137, 142, 147 and, 152 of Resolution 18398. NOW, THEREFORE, BE IT RESOLVED the City Council of the city of Chula Vista does hereby approve the Supplemental Subdivision Improvement Agreement for Chula Vista Tract No. 96-04, First Final "B" Map, for Village One of the Otay Ranch Project, a copy of which is on file in the office of the city Clerk as Document No. BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby authorized and directed to execute said Agreement. Presented by Approved as to form by John P. Lippitt vC)¿q:;:.Jf'l ~~J& John';! .u Kaheny , Director of Public Works City Attorney c,\cbs\cvcity\reso\r-30rvlf,inb ~AlJ. 3D C - 1- æ.w.~ RESOLUTION NO. /9;:¿1/ - RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE SUPPLEMENTAL SUBDIVISION IMPROVEMENTS AGREEMENT FOR FIRST FINAL "B" MAP FOR VILLAGE 1 OF THE OTAY RANCH PROJECT, CHULA VISTA TRACT 96-04, SPA ONE AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT WHEREAS, the developer for Chu1a Vista Tract No. 96-04, has executed a Supplemental Subdivision Improvement Agreement (SSIA) in order to satisfy Conditions 1, 3, 4, 5, 8, 9, 10, 11, 21, 22, 28 (c) , 31, 36, 37, 52, 75, 82 (c) , 83 (c) , 86 (c) , 93, 95, 103, 104, 108, 109, 109 (4) , 120, 137, 142, 147 and, 152 of Resolution 18398. NOW, THEREFORE, BE IT RESOLVED the city Council of the City of Chula Vista does hereby approve the Supplemental Subdivision Improvement Agreement for Chula Vista Tract No. 96-04, First Final "B" Map, for Village One of the Otay Ranch Project, a copy of which is on file in the office of the City Clerk as Document No. BE IT FURTHER RESOLVED that the Mayor of the City of Chula vista is hereby authorized and directed to execute said Agreement. Presented by Approved as to form by " 'J)ý''''-~ John P. Lippitt G~J/9il;¡''- l U "-#;1 John¿¡ .' Kaheny Director of Public Works City Attorney c,\cbs\cvcity\reso\r-30rvlf.inb / 3c;e ~ / ~ _ ____~___u ~M. 30-6 ~~ RECORDING REQUEST BY: ) f~ ~¿)L? Z ,4- ~,2J ) City Clerk ) ) WHEN RECORDED MAIL TO: ) ) CITY OF CHULA VISTA ) 276 Fourth Avenue ) Chula Vista, CA 91910 ) ) No transfer tax is due as this is a ) conveyance to a public agency of ) less than a fee interest for which ) no cash consideration has been paid ) or received. ) ) ) ) Developer ) ) Above Space for Recorder's Use SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR FIRST FINAL "B" MAP FOR VILLAGE ONE OF THE OTAY RANCH PROJECT (Conditions 1, 3, 4, 5, 8, 9, 10, 11, 21, 22, 28 (c) , 31, 36, 37, 52, 75, 82, 82 (c) , 83 (c) , 86 (c) , 93, 95, 103, 104, 108, 109, 109 (4) , 120, 137, 142, 147, and 152, of Resolution No. 18398) This Supplemental Subdivision Improvement Agreement ( "Agreement" ) is made this ___ day of October, 1998, by and between THE CITY OF CHULA VISTA, California ("City" or "Grantee" for recording purposes only) and the signators of this Agreement, ( "Developer" or "Grantor") I with reference to the facts set forth below, which recitals constitute a part of this Agreement: RECITALS A. This Agreement concerns and affects certain real property located in Chula Vista, California, more particularly described on Exhibit "A" attached hereto and incorporated herein ("Property") . The Property is part of the Otay Ranch SPA One, a master planned development. For purposes of this Agreement the term "Property" shall also mean "proj ect." Developer has applied for a final map for a portion of the Property, more specifically known as Neighborhood R-3 and as described on Exhibit "A-1" hereto. B. Otay Ranch L.P. conveyed title of the Project area to South Bay proj ect, LLC, a Delaware limited liability company on c:\cbs\cvcity\ssia\r-30rnr-3,vi 1 3DC--2- , August 26, 1997, which in turn conveyed the Property, except for SPA One Planning Area R-20, to Otay Project LLC, ("Otay Project") , a venture jointly owned by South Bay Project, LLC, a Delaware limited liability company and Otay Ranch Development, LLC, a Delaware limited liability company; and Otay Project sold SPA One Planning Area R-1 to UDC Homes, DME/AEW Land Holdings Two LLC, which conveyed to Shea Land Holdings, LLC, an Arizona limited liability company, (Shea Homes) ; and Otay Project sold SPA One Planning Area R-2 to Standard Pacific Corp., a Delaware corporation on January 2, 1998; and Otay Project sold SPA One Planning Area R-3 to Cent ex Homes, a Nevada general partnership on January 2, 1998; and otay Project sold SPA One Planning Area R-4 to DMB/AEW Land Holdings Two LLC, which conveyed to Shea Homes (Shea Homes) ; and Otay Project sold SPA One Planning Area R-S to Standard Pacific Corp., a Delaware corporation on January 2, 1998; and Otay Project sold SPA One Planning Area R-8 to Cent ex Homes, a Nevada general partnership on April 7, 1998; and Otay project sold SPA One Planning Area R-6 to Trimark pacific-LXX, LLC, a California limited liability company on July 9, 1998; and Otay Project sold SPA One Planning Area R-7 which conveyed to Shea Homes (Shea Homes) ; and Otay Project sold SPA One Planning Area R-9 to PHI otay Ranch Associates LLC, a Delaware limited liability company on June 26, 1998; and Otay Project sold SPA One Planning Area R-14 to PHI Otay Ranch Associates LLC, a Delaware limited liability company on June 26, 1998; and Otay Project sold SPA One Planning Area R-IO to DMB/AEW Land Holding Two LLC, which conveyed to Shea Homes (Shea Homes) ; and Otay Project sold SPA One Planning Area R-12 to Cent ex Homes, a Nevada general partnership on July 1, 1998; and Otay Project sold SPA One Planning Area R-13 to Centex Homes, a Nevada general partnership in July 1, 1998. C. Developer and/or Developer's predecessor in interest has applied for and the City has approved a Tentative Subdivision Map c:\cbs\cvcity\ssia\r-30rnr-3.vi 2 3ÐC-3 commonly referred to as Chula Vista Tract 96-04 ("Tentative Subdivision Map") by Resolution No. 18398 ("Resolution") for the subdivision of the Property subject to certain conditions as more particularly described in the Resolutions. The conditions are attached hereto as Schedule "1." D. City is willing, on the premises, security, terms and conditions herein contained to approve a final map for a portion of the property as described on Exhibit "A-1", and known as Neighborhood R-3, as being in substantial conformance with the Tentative Subdivision Map described in this Agreement. Developer understands that subsequent final maps may be subject to the same security, terms and conditions contained herein. E. The following defined terms shall have the meaning set forth herein, unless otherwise specifically indicated: a. For purposes of this Agreement, "Final Map" means the final map for Neighborhood R-3 of Otay Ranch Village 1, SPA I as described on Exhibit "A-1". b. "commencing construction" means when a construction permit or other such approval has been obtained from the City or a construction contract has been awarded for the improvement, whichever occurs first. c. "complete construction" means when construction on said improvement has been completed and the city accepts the improvement. d. Developer means any and all owners of real property with the boundaries of the Tentative Map for the Property. e. "guest builder" means those entities obtaining any interest in the Property or a portion of the Property, after the Final Map has been recorded. f. "Otay Ranch Project" means Village One of the master planned community, commonly known as Otay Ranch, including the Property. g. "SPA One" means Village One and Five owned by the Developer. h. "PFFP" means the SPA I Public Facilities Financing Plan adopted by Resolution No. 18286 as may be amended from time to time. i. "RMP 2" means the Otay Ranch Resource Management Plan, Phase 2, approved by the city Council on June 4, 1996, as may be amended from time to time. c:\cbs\cvcity\ssia\r-30rnr-3.vi 3 30c.-4 j . "....AI Map Agreement" means the Supplemental Subdivision Improvement Agreement for the Village One flAil Map adopted by Resolution No. 19044. NOW, THEREFORE, in exchange for the mutual covenants, terms and conditions herein contained, the parties agree as set forth below. 1. Performance Obligation, Otay proj ect, LLC, signator to this Agreement, represents to the City that it is acting as the Master Developer for this Project and expressly assumes performance of the obligations set forth in paragraphs 7, 8, 13, 14, 15, 16 and 17 of this Agreement. Notwithstanding the foregoing, all parties to this Agreement acknowledge and agree that all such obligations remain a covenant running with the land as set forth more particularly in paragraph 2 below. 2. Agreement Applicable to Subsequent OWners. a. Agreement Binding Upon Successors. This Agreement shall be binding upon and inure to the benefit of the successors, assigns and interests of the parties as to any or all of the Property until released by the mutual consent of the parties. b. Agreement Runs with the Land. The burden of the covenants contained in this Agreement ("Burden" ) is for the benefit of the Property and the City, its successors and assigns and any successor in interest thereto. City is deemed the beneficiary of such covenants for and in its own right and for the purposes of protecting the interest of the community and other parties public or private, in whose favor and for whose benefit of such covenants running with the land have been provided without regard to whether City has been, remained or are owners of any particular land or interest therein. If such covenants are breached, the city shall have the right to exercise all rights and remedies and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breach to which it or any other beneficiaries of this Agreement and the covenants may be entitled. c. Developer Release on Guest Builder Assignments. If Developer assigns any portion of the Project to a guest builder, Developer may request to be released from Developer's obligations under this Agreement, that are expressly assumed by the guest builder. Developer must obtain the written consent of the City to such release. Such assignment to the guest builder shall, however, be subject to this Agreement and the Burden of this Agreement shall remain a covenant running with the land. The City shall not withhold its consent to any such request for a release so long as the assignee acknowledges that the Burden of the Agreement runs with the land, assumes the obligations of the Developer under this Agreement, and demonstrates, to the satisfaction of the City, its c:\cbs\cvcity\ssia\r-30rnr-3.vi 4 30C- :;: . .----......-.----.-..--.- ability to perform its obligations under this Agreement as it relates to the portion of the Project which is being acquired by the Assignee. d. Partial Release of Developer's Assignees. If Developer assigns any portion of the Project subject to the Burden of this Agreement, upon request by the Developer or its assignee, the city shall release the assignee of the Burden of this Agreement as to such assigned portion if such portion has complied with the requirements of this Agreement to the satisfaction of the City and such partial release will not, in the opinion of the city, jeopardize the likelihood that the remainder of the Burden will not be completed. e. Release of Individual Lots. Upon the occurrence of any of the following events, Developer shall, upon receipt of the prior written consent of the City Manager (or Manager's designee), have the right to release any lot(s) from Developer's obligation under this Agreement: i. The execution of a purchase agreement for the sale of a residential lot to a buyer of an individual housing unit; ii. The conveyance of a lot to a Homeowner's Association; iii. The execution of a purchase agreement for the sale of a Commercial or Community Purpose Facility lot as identified in SPA One Plan; or iv. The issuance of a permit for the development of a multifamily lot as identified in the SPA One Plan. The City shall not withhold its consent to such release so long as the City finds in good faith that such release will not jeopardize the City's assurance that the obligations set forth in this Agreement will be performed. At the request of the Developer, the City Manager (or Manager's designee) shall execute an instrument drafted by Developer in a recordable form acceptable to the City Manager (or Manager's designee) which confirms the release of such lot or parcel from the encumbrance of this Agreement. Notwithstanding the foregoing, i) at the close of an individual homeowner's escrow, or ii) conveyance to a homeowner's association of any lot or parcel encumbered by this Agreement, such lot or parcel shall be automatically released from the encumbrance hereof. 3. Condition No. 1 - (General Preliminary) , In satisfaction of Condition No. 1 of the Resolution, Developer hereby agrees, to comply with the requirements and guidelines of the Parks, Recreation, Open Space and Trails Plan, PFFP, Ranch Wide Affordable Housing Plan, SPA One Affordable Housing Plan, and the Non- c:\cbs\cvcity\ssia\r-30rnr-3.vi 5 30C.-þ Renewable Energy Conservation Plan, as may be amended from time to time, and shall remain in compliance with and implement the terms, conditions and provisions of said documents. 4. Condition No.3 - (General Preliminary). In satisfaction of Condition No. 3 of the Resolution, Developer agrees that if any of the terms, covenants or conditions contained within the Resolution shall fail to occur or if they are, by their terms, to be implemented and maintained over time, if any of such conditions fail to be so implemented and maintained according to their terms, the City shall have the right to deny the issuance of building permits for the Project, deny, or further condition the subsequent approvals that are derived from the approvals herein granted, institute and prosecute litigation to compel their compliance with said conditions or seek damages for their violation. The applicant shall be notified ten (10) days in advance prior to any of the above actions being taken by the city and shall be given the opportunity to remedy any deficiencies identified by the City within a reasonable period of time. 5. Condition No.4 - (General Preliminary). In satisfaction of Condition No. 4 of the Resolution, Developer agrees to indemnify, protect, defend and hold the City harmless from and against any and all claims, liabilities and costs, including attorneys' fees, arising from challenges to the Environmental Impact Report for the Project and/or any or all entitlements and approvals issued by the City in connection with the Project. 6. Condition No.5 - (General Preliminary). In satisfaction of Condition No. 5 of the Resolution, Developer hereby agrees, that Developer shall comply with all the applicable SPA conditions of approval. 7. Condition Nos. 8, 9, 10 and 11 - (Conveyance Obligation). In partial satisfaction of Condition Nos. 8, 9, 10, and 11, the Developer agrees as follows: a. Grant of Fee Title. That concurrently with the execution of this Agreement, Developer shall provide City with an Irrevocable Grant of Fee Title, as attached hereto as Exhibit "B", of 245 acres of real property in accordance with the RMP2 which satisfies a 12.596 acre obligation for this Final Map as of the date of this Agreement, but such obligation may be subj ect to change in accordance with paragraph "CO' below. Any remaining amount shall be credited towards any future map obligations. b. Dedicated Property. That such dedicated property shall be granted in fee title to the City and County of San Diego as joint tenants and subject to the approval of the Preserve Owner Manager. Should the Preserve Owner Manager not approve this conveyance, Developer agrees to convey equivalent real property that complies with this provision. c:\cbs\cvcity\ssia\r-30rnr-3.vi 6 30C--7 c. Additional Property. That Developer shall convey additional real property if necessary in order to comply with the conveyance formula described in RMP2, as may be amended by City. Developer acknowledges that the amended RMP2 may contain a conveyance formula greater than 1.188 acres per developable acre. d. No Liens. That all land to be conveyed as described above shall be free and clear of liens and encumbrances except for easements for existing public infrastructure and other easements approved by the City or for planned public infrastructure as permitted in the RMP 2. e. Developer acknowledges that property within the boundaries of the "A" Map which will be the subject of future final maps may have conveyance obligations to fulfill for all development areas, including applicable streets, open space lots, paseos, pedestrian parks and slope areas shown on the "A" Map. 8. Condition No. 21 and 22 - Public Street Improvements. In partial satisfaction of Condition Nos. 21 and 22 of the Resolution, the Developer agrees to the following: a. Improvement Work. Developer agrees to construct the street improvements and land development work in and adjoining said subdivision and as shown on the Drawings set forth on Exhibit "c" ("Street Improvements"), at its own expense, without any cost to the city, in a good and workmanlike manner, under the direction and to the satisfaction and approval of the City Engineer. Developer further agrees to furnish the necessary materials therefor, all in strict conformity and in accordance with the plans and specifica- tions, which documents have heretofore been filed in the Office of the city Engineer and by this reference are incorporated herein and made a part hereof. Developer shall complete construction of the Street Improvements on or before the earlier of; a) the second anniversary date of Council approval of this Agreement or, b) if a construction permit was issued for any portion of said Street Improvements prior to Council approval of this Agreement, then construction on that portion for which a permit was issued shall be completed on or before the second anniversary date of issuance of said permit. It is expressly understood and agreed to by Developer that, in the performance of construction of said Street Improve- ments, Developer shall conform to and abide by all of the provisions of the ordinances of the city of Chula vista, and the laws of the State of California applicable to said work. b. Bonding. i. Developer agrees to furnish and deliver to the City of Chula Vista, simultaneously with the execution of this Agreement, and to thereafter maintain until City acceptance of the work referenced herein, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City c:\cbs\cvcity\ssia\r-30rnr-3,vi 7 30c-'f? in the sums as set forth on Exhibit "C", which security shall guarantee the faithful performance in connection with the installa- tion of the Street Improvements as shown on Exhibit "C". ii. Developer agrees to furnish and deliver to the city of Chula vista simultaneously with the execution of this Agreement, and to thereafter maintain until City acceptance of the work referenced herein, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sums as set forth on Exhibit "c" to secure the payment of material and labor in connection with the installation of said Street Improvements, which security is shown on Exhibit "C." iii. Developer acknowledges and agrees that if the Street Improvements are not completed within the time agreed herein, the sums provided by said improvement securities may be used by City for the completion of the Street Improvements in accordance with those approved plans and specifications contained on Exhibit "C", or at the option of the City, for those improvements shown on Exhibit "c" that are less than, but not greater to, the sums provided by said improvement securities. Upon certification of completion by the City Engineer and acceptance of said work by City, and after certification by the Director of Finance that all costs hereof are fully paid, the whole amount, or any part thereof not required for payment thereof, may be released to the Developer or its successors in interest, pursuant to the terms of the improvement security. Developer agrees to pay to the City any difference between the total costs incurred to perform the work, including limited and reasonable design and administration of construction in substantial conformance with the approved plans (including a reasonable allocation of overhead), and any proceeds from the improvement security. c. Developer's Costs and Expenses. 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 the City or the City's officer, sureties or bondsmen, be liable for the payment of any sum or sums for said work or any materials furnished therefor. d. Plan Check fees and Additional Costs. It is further understood and agreed by Developer that any engineering costs (including plan checking, inspection, materials furnished and other incidental expenses) incurred by city in connection with the approval of the Street Improvements plans and installation of Street Improvements described above, as required by City and approved by the City Engineer shall be paid by Developer, and that Developer shall deposit, prior to recordation of the Final Map, with City a sum of money sufficient to cover said cost. c:\cbs\cvcity\ssia\r-30rnr-3,vi 8 30L-~ e. Maintenance Costs. Developer understands and agrees that until such time as all of the Street Improvements as covered by any particular bond are fully completed and accepted by City, Developer shall be responsible for the care, maintenance of, and any damage to, such streets and any alleys, easements, water and sewer lines. It is further understood and agreed that Developer shall guarantee all of the Street 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 Developer, its agents or employees in the perfor- mance of this Agreement, and that upon acceptance of the work by City, Developer shall grant to City, by appropriate conveyance, the public improvements constructed pursuant to this agreement; provided, however, that said acceptance shall not constitute a waiver of defects by City as set forth hereinabove. f. Indemnification. Developer further understands and agrees that City, as indemnitee, or any officer or employee thereof, shall not be liable for any injury to person or property occasioned by reason of the acts or omissions of Developer, its agents or employees, or indemnitee, related to the construction of the Street Improvements. Developer further agrees to protect and hold the City, its officers and employees, harmless from any and all claims, demands, causes of action, liability or loss of any sort, because of or arising out of acts or omissions of Developer, its agents or employees, or indemnitee, related to the construction of the Street Improvements; the approved improvement securities referred to above shall not cover the provisions of this paragraph. Such indemnification and agreement to hold harmless shall extend to damages to adjacent or downstream properties or the taking of property from owners of such adjacent or downstream properties as a result of the construction of said Street 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 modifica- tion of the point of discharge as the result of the construction and maintenance of the Street Improvements and the drainage systems. The approval of plans for the Street Improvements and related improvements shall not constitute the assumption by city of any responsibility for such damage or taking, nor shall City, by said approval, be an insurer or surety for the construction of the Street Improvements and related improvements. The provisions of this paragraph shall become effective upon the execution of this Agreement and shall remain in full force and effect for ten (10) years following the acceptance by the City of the Street Improvements. 9. Condition Nos. 28(c) and 109(4) - (Pedestrian Bridges). In satisfaction of Condition Nos. 28(c) and 109(4) of the Resolution, Developer acknowledges and agrees that by the provisions of this paragraph City is not waiving Developer's obligation and duties with reference to Condition No. 28(d) as set c:\cbs\cvcity\ssia\r-30rnr-3.vi 9 3oC.-/O forth in the "A" Map Agreement and that City retains the right to require Developer to provide cash or security to guarantee the Property's fair share of the pedestrian bridges as referenced in the "A" Map Agreement. a. Deposit. Developer further acknowledges and agrees that the "pedestrian bridge" concept is an integral element of the Project's Village Design Plan. Developer has requested that a Development Impact Fee ("DIF") be established to finance the construction of the pedestrian bridges. In partial satisfaction of Condition Nos. 28 (c) and 109(4) of the Resolution, developer hereby agrees that concurrent with execution of this Agreement, the Developer shall provide the City with cash equal to $45,000.00, which is the amount equal to the estimated DIF amount of $600.00 per dwelling unit within the Final uBII Map for Neighborhood R-3. This represents the Final Map's fair share, of the cost of construction of the pedestrian bridges connecting Villages One to Two, Villages One to Five, and Villages Five to Six for Neighborhood R-3. If a DIF mechanism is adopted by the City Council ("DIF Requirement") which is less than $600.00 per dwelling unit, once the statutory period for challenging the DIF has expired without a challenge to the DIF, the City agrees to refund the Developer the difference between the cash provided herein and the actual DIF Requirement for the Final Map. If the amount of the DIF Requirement is more than $600.00 per dwelling unit, Developer agrees to pay the difference between the cash provided herein and the DIF Requirement. Developer agrees to pay said difference on a prorated basis with each building permit remaining to be issued for the Final Map or should no further building permits be required for the Final Map, payment shall be in total within five days of City's request for payment. Developer further understands and agrees that the City may use the funds so collected to refund any developer who constructs the pedestrian bridges. b. DIF Difference. Developer acknowledges that if no DIF mechanism is established for any reason, the City has the right to retain the cash deposit to use for the construction of said pedestrian bridges and that Developer shall pay the City any difference between the Final Map's fair share of the actual total costs incurred to construct the pedestrian bridges and the amount paid herein. Developer further understands and agrees that the city may use the funds so collected to refund any developer who constructs the pedestrian bridges. Developer understands and agrees that subsequent final maps for the Property may require further compliance with Condition Nos. 28 (c) and 109(4) including paying a like amount or bonding for said pedestrian bridges. 10. Condition No. 31 - (ADA Standards) In satisfaction of Condition No. 31 of the Resolution, the Developer agrees that in the event the Federal Government adopts ADA standards for street rights-of-way which are in conflict with the existing standards and approvals of the City, Developer shall be required to comply with the new ADA standards adopted by the federal government. All City's approvals conflicting with new federal standards shall be updated c:\cbs\cvcity\ssia\r-30rnr-3.vi 10 30C-f( 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. 1l. Condition No. 36 - (Driveway Setback) . In satisfaction of Condition No. 36 of the Resolution, except as provided for in the Planned Community District Regulations or approved by the city Engineer and the Planning Director City the Developer shall submit a site plan of all properties fronting on cul-de-sac streets which are 150 feet or less in length. The site plan shall indicate: (1) a twenty foot setback on the driveways from the property line to the garage, and (2) sectional roll-up type garage doors at all such properties. 12. Condition No. 37 - (Encroaclunent Permit) . In partial satisfaction of Condition No. 37 of the Resolution, the Developer shall apply for an encroachment permit prior to installation of all private facilities within the public right-of-way. 13 . Condition No. 52 - (As-Built Plans). In satisfaction of Condition No. 52 of the Resolution, Developer shall submit lIas- built" improvement and storm drain plans in DXF file format to the satisfaction of the city Engineer. 14. Condition No. 75 - (Parks) . In partial satisfaction of Condition No. 75 of the Resolution, the Developer shall, upon the request of the City, submit for the approval of the Director of Planning, a construction schedule that details the construction milestones for the completion of all neighborhood parks within the Property. 15. Condition No. 82 - (Park P-1) . In accordance with Condition No. 82 of the Resolution, Developer agrees as follows: a. Modification of Agreement That (jA" Map Agreement provisions set forth in paragraph 15 (b) and (f) as to Park Phasing shall be and hereby are modified and that this paragraph and the requirements contained herein shall supersede and replace "A" Map Agreement paragraph 15 (b) and (f) . b. Construction of P-l. Developer shall commence construction of the first neighborhood park in SPA One, identified as Park P-l, at the location set forth in SPA One Plan and as shown on the "A" Map, no later than issuance of the building permit for the SOOth dwelling unit for the Project. The level of amenities required in said construction of the first neighborhood park shall be determined by the Director of Planning in conjunction with the park master planning effort required by the City of Chula vista Landscape Manual. Notwithstanding anything herein to the contrary, the Developer shall complete construction of the entire P-l neighborhood park as identified in SPA One Plan within eight (8) months after commencing construction of said park. For purposes of this paragraph, "complete cons t ruct ion" shall mean that the construction of the park has been completed and accepted by the city as being in compliance with the Park Master Plan, but prior to the city's required mandatory maintenance period, c:\cbs\cvcity\ssia\r-30rnr-3.vi 11 50C.- 12- ---"- -"----..-.--.."-- 16. Condition No. 82(c) - (Park P-2). In accordance with Condition No. 82(c) of the Resolution, Developer agrees to commence construction of the second neighborhood park in SPA One, identified as P-2, at the location set forth in the SPA One Plan and as shown on the "A" Map. Such construction shall commence upon the earlier of: a) issuance of the building permit for the 2033th dwelling unit for SPA One, or b) if the Project is determined by the city to be in deficit in constructed neighborhood parks based upon 2 acres/I,OOO residents. Prior to commencing construction, Developer shall provide improvement securities from a surety approved by the city and in a form approved by the City Attorney equal to 110% of the cost of the park improvements. Such construction shall be completed within eight (8) months after commencing construction of said park. For purposes of this paragraph, "complete construction" shall mean that the construction of the park has been completed and accepted by the city as being in compliance with the Park Master Plan, but prior to the city's required mandatory maintenance period. This is not intended to supersede any of the City's maintenance guarantee requirements. The Developer and City agree to negotiate in good faith a park agreement concerning Developer's neighborhood and community park obligations for villages 1 and 5 of SPA One. 17. Condition No. 83 (c) - (Community Parks). In partial satisfaction of Condition No. 83 the Developer agrees to identify the relocation, if any, of the Village 2 Otay Ranch Community Park prior to issuance of the building permit for the 1,lSOth dwelling unit for SPA One plus those portions of villages One and Five owned by McMillin Otay Ranch LLC. Said relocation may require an amendment to the Otay Ranch General Development Plan. Developer further agrees that concurrently with the execution of this Agreement, Developer shall provide City with Irrevocable Offers of Dedication of 15.30 acres of real property as described in Exhibit "D", attached hereto and incorporated herein and pay the facility improvement component of the PAD fees for the community parks for this Final Map in accordance with the formula set forth in Municipal Code section 17.10 et seq. The dedicated property shall be free and clear of liens and encumbrances. 18. Condition No. 86(c) - (MHOA). In satisfaction of Condition No. 86(c) of the Resolution, the Developer agrees to create a Master Homeowner's Association ("MHOA") to own and maintain in a professional manner Open Space Areas medians, or parkways not maintained by the Community Facility District or the City (referred to collectively as "open space areas"). Developer shall complete the formation of the MHOA prior to making application for the first building permit for any units within the Project excluding sales offices and model homes on the condition that the sales offices and model homes are not sold prior to the Developer's compliance with the provision of this paragraph. Developer agrees that the City has the right to withhold issuance of any building permits for the Project if no MHOA is established to maintain the Open Space Areas or the City has not approved the final version filed with the Department of Real Estate of that MHOA's CC&Rs. Any revisions to such CC&R's shall be approved by the City. c:\cbs\cvcity\ssia\r-30rnr-3.vi 12 30G- (3 On or before 60 days from the date of Council approval of this Agreement, Developer shall submit for city's approval the CC&R's, grant of easements and maintenance agreements, and other appropriate documentation, describing the maintenance standards and responsibility of the MHOA's for the Open Space Areas within the Property. Developer acknowledges that the MHOA's maintenance of the open space may expose the City to liability. Developer agrees to establish an MHOA that will hold the City harmless from any negligence of the MHOA in the maintenance of such Open Space Areas. The MHOA shall be structured to allow annexation of future tentative map areas in the event the City Engineer and Director of Planning require such annexation of future tentative map areas. Developer agrees to include the following provisions within the MHOA's CC&Rs: 1. Before any revisions to provisions of the CC&Rs that may effect the City can become effective, said revisions shall be approved by the City. 2. The MHOA shall identify and hold the city harmless from any claims, demands, causes of action liability or loss related to or arising from the maintenance activities of the MHOA. 3. The MHOA shall not seek to be released by the City from the maintenance obligations described herein without the prior consent of the City and 100 percent of the holders of first mortgages or property owners within the MHOA. 4. The MHOA is required to procure and maintain a policy of comprehensive general liability insurance written on a per occurrence basis in an amount not less than one million dollars combined single limit. The provisions to be contained within the CC&R's which reflect Condition No. 86(c) of the Resolution and this section may not be revised at any time without prior written permission of the city. The city shall not unreasonably withhold its approval of the CC&R's or other said documentation. Any amendment to these documents shall be submitted to the City for the city's approval prior to becoming effective. 19. Condition No. 93. - (Public Facilities Development Impact Fee) . Developer has requested that the City allow satisfaction of Condition No. 93 of the Resolution be continued until such time as the city completes and approves the Public Facilities Development Impact Fee ("PFDIF") Program revisions. In order for the City to allow said continuance of satisfaction of this obligation, Developer agrees to pay the f'PFDIF" in effect at the time of building permit issuance. In partial satisfaction of Condition No. 93, Developer has deposited $20,000 to fund the preparation of said revision and c:\cbs\cvcity\ssia\r-30rnr-3.vi 13 3°C -If ,,-~-- ...---- -- ---.. ...-.. shall receive 100% credit for such amount towards future PFDIF fees. 20. Condition No. 95 - (Otay Water District Indebtedness and City Parcels) . In satisfaction of Condition No. 95 of the Resolution, the Developer agrees to provide written evidence from Otay Municipal Water District indicating that any assessments (or bonded indebtedness) associated with all parcels dedicated or granted in fee to the City have been paid or that no assessments exist on the parcel(s). Said evidence shall be provided prior to the City's acceptance of said dedication or grant in fee. 21- Condition No. 103 - (Withhold Building Permits and Hold Harmless) . In satisfaction of Condition No. 103 of the Resolution, the Developer understands and agrees that the performance of Developer's obligations hereunder is required for the health and safety of the residents of its Project. Therefore Developer agrees: a. The City may withhold building permits for any and all buildings within the Project if anyone of the following occur: i. Regional development threshold limits set by the East Chula vista Transportation Phasing Plan have been reached. ii. Traffic volumes, levels of service, public utilities and/or services exceed the adopted city threshold standards in the then effective Growth Management Ordinance. iii. The Developer does not comply with the terms of the Reserve Fund Program. b. The City may withhold building permits for any of the phases of development identified in the PFFP, if the required public facilities, as identified in the PFFP or as amended by the Annual Monitoring Program or otherwise conditioned have not been completed or constructed to the satisfaction of the city. c. On the condition that City shall promptly notify the Developer of any claim, action or proceeding and on the further condition that the City fully cooperates in the defense, the Developer shall 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 approvals by its Planning commission, City Council, or any approval by its agents, officers, or employees with regard to this Project. d. On the condition that City shall promptly notify the Developer of any claim, action or proceeding, Developer shall 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, related to erosion, siltation or increased flow of drainage resulting from the c:\cbs\cvcity\ssia\r-30rnr-3.vi 14 30C.-/Ç"' Property. city agrees to reasonably cooperate with Developer in the defense of any such action, claim or proceeding. e. In partial satisfaction of Condition 103(C) developer agrees to permit all cable television companies franchised by the City of Chula vista equal opportunity to place conduit to and provide cable television service for each lot or unit within the Final Map area, as described on exhibit A-l. Developer further agrees to grant, by license or easement, and for the benefit of, and to be enforceable by, the City of Chula Vista, conditional access to cable television conduit within the properties situated within the Final Map only to those cable television companies franchised by the City of Chula vista the condition of such grant being that (a) such access is coordinated with Developer's construction schedule so that it does not delay or impede Developer's construction schedule and does not require the trenches to be reopened to accommodate the placement of such conduits; and (b) any such cable company is and remains in compliance with, and promises to remain in compliance with, the terms and conditions of the franchise and with all other rules, regulations, ordinances and procedures regulating and affecting the operation of cable television companies as same may have been, or may from time to time be, issued by the City of Chula Vista. Developer hereby conveys to the City of Chula vista the authority to enforce said covenant by such remedies as the City determines appropriate, including revocation of said grant upon a determina- tion by the city of Chula Vista that they have violated the conditions of the grant. f. To include in the Articles of Incorporation or Charter for the MHOA provisions prohibiting the HOA from dedicating or conveying for public streets, land used for private streets without approval of 100% of all the MHOA members. 22. Condition No. 104 - (Congestion Management Program). In satisfaction of Condition No. 104 of the Resolution, the Developer agrees to participate, on a fair share basis, in any deficiency plan or financial program adopted by SANDAG to comply with the Congestion Management Program (CMP) and agrees to not protest formation of any future regional impact fee program or facilities benefit district to finance the construction of facilities described in the Otay Ranch Planning documents. This agreement to not protest the inclusion of these public improvements shall not be deemed a waiver of the right to challenge the amount of any fee which may be imposed due to these new improvements and shall not interfere with the right of any person to vote in a secret ballot election. 23. Condition No. 108 - (Insurance). In satisfaction of Condition No. 108 of the Resolution, Developer agrees to ensure that all insurance companies are permitted equal opportunity to provide a cooperative Homeowner's Insurance Program. 24. Condition No. 109 - (Backbone Facilities). In satisfaction of Condition No. 109 of the Resolution, Developer has submitted an Improvement Phasing Schedule which has been approved c:\cbs\cvcity\ssia\r-30rnr-3.vi 15 30e--ICp - ---.--.-----... by the City Engineer and Developer agrees to comply with such Improvement Phasing Schedule which is attached hereto as Exhibit "E" and which shall also be attached to and become a part of the PFFP, which may be amended from time to time. Developer agrees to commence construction of the public improvements and agrees to provide security satisfactory to the city Attorney in accordance with the time frames and in such sums as set forth in said Improvement Phasing Schedule, as may be amended by the City from time to time. 25. Condition No. 120 - (Growth Management Ordinance). In satisfaction of Condition No. 120 of the Resolution, the Developer agrees upon the request of the City: (1) To 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. Developer agrees to commence the annual review following the first fiscal year in which a residential occupancy occurs within the Property and shall be completed during the second quarter of the following fiscal year. The annual report shall adhere to those guidelines noted on page 353, Section D of the GDP/SRP; and (2) To prepare a five year development phasing forecast identifying targeted submittal dates for future discretionary applications (SPAs and tentative maps), projected dates, corresponding public facility needs per the adopted threshold standards, and identifying financing options for necessary facilities. 26. Condition No. 137 - (Code Requirements). In satisfaction of Condition No. 137 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 (19.09.100). Developer further acknowledges and agrees that the City is presently in the process of amending its Growth Management Ordinance to add a proposed section 19.09.105, to establish provisions necessary to ensure compliance with adopted threshold standards (particularly traffic) prior to construction of State Route 125. Said provisions will require the demonstration, to the satisfaction of the city Engineer, of sufficient street system capacity to accommodate a proposed development as a prerequisite to final map approval for that development, and the applicant hereby agrees to comply with adopted amendments to the Growth Management Ordinance. 27. Condition No. 142 - (Guarded Entrances). In satisfaction of Condition No. 142 of the Resolution, Developer shall not install physical barriers at guarded entrances. Such entrances shall be staffed from dusk to dawn and such requirement shall be set forth in the MHOA's CC&Rs for the Project. c:\cbs\cvcity\ssia\r-30rnr-3.vi 16 3DC- t ï "_...--_._.~....,--~ 28. Condition No. 147 - (Speed Bumps and Staffing). In partial satisfaction of Condition No. 147 of the Resolution, the MHOA's CC&Rs shall prohibit "speed bumps" on private streets. The CC&R's shall also include language which states that any proposal by the MHOA to delete staffing or to allow "speed bumps" in the future shall require prior written approval of 100% of all the MHOA members. 29. Condition No. 152 - (Maintenance Responsibilities). In satisfaction of Condition No. 152 of the Resolution, Developer agrees to notify all future property owners during escrow by means of a document to be approved by the city Engineer and Director of Planning of the maintenance responsibilities of the MHOA and the estimated annual cost thereof. 30. satisfaction of Conditions. city agrees that the execution of this Agreement constitutes satisfaction of Developer's obligation of Conditions: 1, 3, 4, 5, 8, 9, 10, 11, 28(C), 31, 36, 52,82, 83(c), 86(c), 93, 95, 103(a) through (d) and 103(f), 104, 108, 109, 109(4), 120, 137, 142, 147, and 152, of the Resolution and partial satisfaction of Condition Nos. 21, 22, 37, 75, 82(C), 93, 103(e), and 147. Developer further understands and agrees that the some of the provisions herein may be required to be performed or accomplished prior to the approval of other final maps for the Project, as may be appropriate. 31. Unfulfilled Conditions. Developer hereby agrees, unless otherwise conditioned, that Developer shall comply with all unfulfilled conditions of approval of the Tentative Map, established by the Resolution and shall remain in compliance with and implement the terms, conditions and provisions therein. 32. Previous Agreement. The Developer acknowledges that nothing in this Agreement shall supersede, nullify or otherwise negatively impact the terms of the "An Map Agreement unless otherwise expressly noted herein, This Agreement affirms and reflects the terms, conditions and provisions of the "An Map Agreement and of the Tentative Map 96-04 conditions applicable specifically to the Final Map for the Property. 33. Recording. This Agreement, or an abstract hereof shall be recorded simultaneously with the recordation of the Final Map. 34. Building Permits. Developer understands and agrees 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. 35. 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 c:\cbs\cvcity\ssia\r-30rnr-3.vi 17 3ÐC - I~ shall be in writing and shall be deemed duly served, delivered, and received when personally delivered to the party to whom it is directed, or in lieu thereof, when three (3 ) business days have elapsed following deposit in the u.s. mail/ certified or registered mail¡ return receipt requested, first-class postage prepaid, addressed to the address indicated in this Agreement. A party may change such address for the purpose of this paragraph by giving written notice of such change to the other party. CITY OF CHULA VISTA 276 Fourth Avenue Chula vista, CA. 91910 Attn: Director of Public Works Developers: Otay Project, LLC 11975 El Camino Real, suite 104 San Diego, CA 92130 Attn: Kim John Kilkenny Fax (619) 259-4364 South Bay Project, LLC 191 West Wilbur Road, suite 102 Thousand Oaks, CA 91360 Attn: David Green Fax (805) 379-4472 A party may change such address for the purpose of this paragraph by giving written notice of such change to the other party in the manner provided in this paragraph. b. Captions. Captions in this Agreement are inserted for convenience of reference and do not define, describe or limit the scope or intent of this Agreement or any of its terms. c. Entire Agreement. This Agreement contains the entire agreement between the parties regarding the subject matter hereof. Any prior oral or written representations, agreements, understandings, and/or statements shall be of no force and effect. This Agreement is not intended to supersede or amend any other agreement between the parties unless expressly noted. d. Preparation of Agreement. No inference, assumption or presumption shall be drawn from the fact that a party or his attorney prepared and/or drafted this Agreement. It shall be conclusively presumed that both parties participated equally in the preparation and/or drafting this Agreement. e. Recitals, Exhibits. Any recitals and exhibits set forth above 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 c:\cbs\cvcity\ssia\r-30rnr-3.vi 18 30 c - t 9 "prevailing party" shall be deemed to be the party who is awarded substantially the relief sought. g. 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. [NEXT PAGE IS PAGE ONE OF SIGNATURE PAGE] c:\cbs\cvcity\ssia\r-30rnr-3.vi 19 3DC--ZD [PAGE ONE OF TWO OF SIGNATURE PAGE TO SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT NEIGHBORHOOD R-3 OF VILLAGE ONE OF THE OTAY RANCH PROJECT] 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 SHEA LAND HOLDINGS, LLC an Arizona limited liability company, By: Shea Homes Limited Partnership, Mayor of the city a California limited partnership, of Chula vista Member By: J.F. Shea Co., Inc. , Attest: a Nevada corporation, Its General Partner By: Beverly Authelet city Clerk By: Approved as to Form: PHI OTAY RANCH ASSOCIATES, LLC a Delaware limited liability company John M. Kaheny By: PH Institutional Ventures, City Attorney a California corporation, Its Managing Member By: Its: By: Its: CENT EX HOMES A Nevada general partner By: Cent ex Real Estate Corporation, a Nevada corporation, Its Managing Partner By: [NEXT PAGE IS PAGE TWO OF SIGNATURE PAGE] c:\cbs\cvcity\ssia\r-30rnr-3.vi 20 soc-21 - . ..~.--....._--_.~.--._---- [PAGE TWO OF TWO OF SIGNATURE PAGE TO SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT NEIGHBORHOOD R- 3 OF VILLAGE ONE OF THE OTAY RANCH PROJECT] STANDARD PACIFIC CORPORATION, a Delaware corporation By: Its: Authorized Representatives TRIMARK PACIFIC-LXX LLC, a California limited liability company By: TPH LLC a California limited liability company, a Managing Member By: Trimark Ventures, Inc. , a California corporation, Its Member By: Its: (ATTACH NOTARY ACKNOWLEDGMENT) c:\cbs\cvcity\ssia\r-30rnr-3.vi 21 30C-2-/A List of Exhibits A: Legal Description of Property ("A" Map) A-I: Legal Description of Final "B" Map B: Irrevocable Grant of Fee Title of Resource Preserve Area c: Street Improvements D: Irrevocable Dedication of Fee Interest for Public Park purposes E: Improvement Phasing Schedule 30C-.2:2 EXHIBIT "A" Property Description Chula Vista Tract No. 96-04, Otay Ranch Village 1 "A" Map No. 1 in the City of Chula Vista, County of San Diego, State of California, according to Map thereof No. 13592, filed in the Office of the County Recorder of San Diego County, June 24, 1998. 3cJC-02,3 EXHIBIT A-I LOT 3 OF OTAY RANCH, VILLAGE 1 "A" MAP, CHULA VISTA TRACT NO. 96 - 04, ACCORDING TO MAP THEREOF NO. 13 592 FILED IN THE OFFICE OF THE COUNTY RECORDER JUNE 24, 1998 IN THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA. EXHIBIT "A-I" .JCJé -;<'1 OCT-01-1998 13:07 HUNSAKER SD EXHIBIT B 6195581414 P,06/07 Rac()(Ijing Requested by and Please Return to: City Clerk City of Chula Vista P.O, Box 1087 Chula Vista, CA 91912 This Instrument Benefits City Only. No fee is required. This Space for Recorder's Use Only APN(a) 598·140-01 C.Y. File No. IRREVOCABLE GRANT OF FEE TITLE FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, OTAY PROJECT. LLC, A CALIFORNIA LIMITED LIABILITY COMPANY represents that, as the owner(s} of herein-described real property, (in the CBse of multiple owners, collecüve/y referred to as "Granto"), hereby make(s} an Irrevocable Offer of Dedication of fee interest, pursuant to Section 7050 of the Govemment Code of the State of Califomia, to THE CITY OF CHULA VISTA, A MUNICIPAL CORPORATION, the hereinafter described real property for the following public purpose: OPEN SPACE AND OTHER PUBLIC PURPOSES. The real property referred to above is situated in the City of Chula Vista. County of San Diego, State of California and is more particularly descnbed as follows: THE EAST HALF OF THE NORTHEAST QUARTER, THE NORTHWEST QUARTER OF THE NORTHEAST QUARTER AND THE NORTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 32, TOWNSHIP 17 SOUTH, RANGE 1 EAST, SAN BERNARDINO MERIDIAN, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO OFFICIAL PLAT THEREOF, (Contains 163. 8 ACl11s, mOI11 or less) This Offer of Dedication is made pursuant to Section 7050 of Govemment Code of the State of Califomia and may be accepted at any time by the City of Chula Vista. This Offer of Dedication of fee interest shall be irrevocable and shall be binding on the Grantor, its heirs, executors, administrators, successors and assigns. PAGE 1 OF 2 3 ¿;J C - ..2.~ ~...--. . - L..I1.. ,......\4'. ..__,.- -- SIGNATURE PAGE Signed this '2~ day of ""'t 'Ç'~ ' 19C\16 Grantor Signatures: By: Otay Ran Development, LLC, a Delaware mit (Notary Acknowledgement Required for Each Signatory) This is to certify that the interest in real property offered herein to the City of Chula Vista, a governmental agency, is hereby acknowledged by the undersigned, City Clerk, on behalf of the Chula Vista City Council pursuant to authority conferred by Resolution No. 15645 of the Chula Vista City Council adopted on June 5, 1990, and the grantee(s) consent(s) to the recordation thereof by its duly authorized officer. BEVERLY A, AUTHELET CITY CLERK By: Dated: PAGE 2 OF 2 J tYé-"¿ t DSdIfI5m:\pfoœuIng~bleo".rs\OO25-.o1opens~ce'_doc woOO2So265X ALL-PURPOSE ACKNOWLEDGMENT r·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·, · State of California } . ! County of ~/};)' fJD 55. _ ! ! On \fl'f'/lI~::¿~ I1r ~ before me, 'SDIt'e.- J;-. ~~A~Y) , t t personally appeared Xut Ade/L i SIGNER(5) · · t ¡gJ personally known to me - OR- o proved to me on the basis of satisfactory t · evidence to be the person(-s3 whose nameEs7 · t is/me subscribed to Ihe within instrument and t · acknowledged to me that hel~l,ei!Bey executed · the same In his/her.'tR¡.ir authorized t capacity(~. and that by his/ker.'tkei..- · signature(~ on the instrument the personW. t or the emity upon behalf of which the · l~ JOlIE ,",YO ~ person(;¡7 acted. executed the inslfument. t · t - Comm.' 1141932 'ß NOTARY PUBLIC· CALIFORNIA ~ WITNESS my hand and official seaL · 1 San Diego Counly ... t My CO"lIl. h~f" JUlI' 13.2001 ~ · t · t t · OPTIONAL INFORMATION · t The information below is not required by law. However, it could prevent fraudulent attachment of this acknowl- t · edgmem to an unauthorized document · t CAPACITY CLAIMED BY SIGNER (PRINCIPAL) DESCRIPTION OF AifACHED DOCUMENT t · · o INDIVIDUAL Jr((jJublc. dkr Df Qd(q~Ì?A lfeLMf~t,)t ! ŒJ CORPORAT~FFICER _I)¡'(~ TCSi(Je?!- TITLE OR TYPE OF DOCUMENT t TITLE(S) 2- · D PARTNER(S) NUMBER OF PAGES t D ATTORNEY·IN·FACT · D TRUSTEE(S) t D GUARDIAN/CONSERVATOR DATE OF DOCUMENT · D OTHER: t · OTHER t . · . t RIGHT THUMBPRINT ~ " SIGNER IS REPRESENTING: " OF ~ · N1jJ7;;rK;Ælt7Jf}ëlft?1~ f-) AU ~ E t SIGNER - " 'õ ~ · L._._._._._._._._._._._._._.~._._._.-' APA 5/97 VALLEY,SIERRA. 800-362,3369 .3 cJ C--..2 ? OCT-01-1998 13:08 HUNSAKER SD EXH¡BIT B 6195581414 P.07/07 Recording Requested by and Please Return to: City Clerk City of Chula Vista P.O. Box 1087 Chula Vista, CA 91912 This Instrument Benefits City Only. No fee is required. This Spac:II far R8COrd.~s Use On APN(s) 598·140-01 C,V. File No. IRREVOCABLE GRANT OF FEE TITLE FOR A VALUABLE CONSIDERATION, reœipt of which is hereby acknowledged, OTAY PROJECT, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY represents that, as the owner(s) of herein-described real property, (in the case of multiple owners, colfective/y referred to as 'Grantor¡, hereby make(s) an Irrevocable Offer of Dedication of fee interest, pursuant to Section 7050 of the Government Code of the State of California, to THE CITY OF CHULA VISTA, A MUNICIPAL CORPORATION, the hereinafter described real property for the following public purpose: OPEN SPACE AND OTHER PUBLIC PURPOSES, The real property referred to above is situated in the City of Chula Vista, County of San Diego, State of California and is more particularly described as follows: THE SOUTHWEST QUARTER OF THE NORTHEAST QUARTER AND THE SOUTHEAST QUARTER OF THE NORTHWEST QUARTER OF SECTION 32, TOWNSHIP 17 SOUTH, RANGE 1 EAST, SAN BERNARDINO MERIDIAN. IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO OFFICIAL PLAT THEREOF. (Contains 81.1 Acres, more or less) This Offer of Dedication is made pursuant to Section 7050 of Government Code of the State of California and may be accepted !It any time by the City of Chula Vista. This Offer of Dedication of fee interest shall be irrevocable and shall be binding on the Grantor. its heirs, executors, administrators, successors and assigns. PAGE 1 OF 2 DBdIN\\--_. 1->- '...~ .. ....fIID:II\..IIII.............. :1 tJ¿--.2Y -- TOTAL P,07 SIGNATURE PAGE Signed this ~ day of ~ ,1~ Grantor Signatures: By: Otay, Ranch Development, LLC, a Delaware Ii . â liability pany (Notary Acknowledgement Required for Each Signatory) This is to certify that the interest in real property offered herein to the City of Chula Vista, a governmental agency, is hereby acknowledged by the undersigned, City Clerk, on behalf of the Chula Vista City Council pursuant to authority conferred by Resolution No. 15645 of the Chula Vista City Council adopted on June 5, 1990, and the grantee(s) consent(s) to the recordation thereof by its duly authorized officer. BEVERLY A AUTHELET CITY CLERK By: Dated: PAGE 2 OF 2 DScIrr6\'4JCHfVII'I'\n'IIIpping~wrevocabIeofters\0025W02opens~ce_ÓDC ;J tJC--d-.1 woD02s.-mx ALL-PURPOSE ACKNOWLEDGMENT r·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·' · State of California } . ! County of ~ iÄtjO 55. ! ! On .&¡kM.~l~; /11<1 before me, 00\'1:. ~. I1C1Jj.[JARY) , t t personal1y appeared ~ C;¡fAdC/L i SIGNER(S) · · t ¡KI personally known to me - OR- D proved to me on the basis of satisfactory t · evidence to be the person~ whose name~ · t is/Me subscribed to the within instrument and t · acknowledged to me that heJs~y executed · t the same in h is/ln..-.iJ' Lla.",~r authorized t · capacity(~, and that by his/her/tl,cir · t signature~ on the instrument the person(~, t · or the entity upon behalf of which the · t t person(s') acted, executed the instrument. · · t .I ~ JOU! E.",YO ~ WITNESS my hand and official seaL t · - Comm.I1141932 · t () NOTARY PUBLIC· CALIFORNIA ~ t San Diego County .... · My Comm, Ex,,,,, June 13.1001 · t t · · t t · OPTIONAL INFORMATION · t The information below is not required by law. However. it could prevent fraudulent attachment of this acknowl- t · edgmem to an unauthorized document. · t CAPACITY CLAIMED BY SIGNER (PRINCIPAL) DESCRIPTION OF ATTACHED DOCUMENT t · · t D INDIVIDUAL !r((;JOCaQIL OÇfcr of Pe¡Ùaho,¡ d k!"hr-rÅ 00 CORPORATE OFFICER U¡'(L .frt5i'døf TITLE OR TYPE OF DOCUMENT TITLE(S) 2- o PAR1NER(S) o ATTORNEY·IN·FACT NUMBER OF PAGES o TRUSTEE(S) o GUARDIAN/CONSERVATOR DATE OF DOCUMENT o OTHER: OTHER RIGHT THUMBPRINT i SIGNER IS REPRESENTING: :s OF ~ NrÆ1P~d1R ÞwCJ~f1f ) ).LC- ~ t SIGNER § £ ~ · ~ L._._._._._._._._._._._. _._.~._._._.~ APA 5/97 VALLEY·SIERRA. 800-362·3369 :JCC-3d EXHIBIT "C" Street Improvements CHULA VISTA TRACT 96-04 VILLAGE ONE - NEIGHBORHOOD R-3 !lilll!lllii!lïflfif. i¡¡I.¡;il"i: ..................................................... .......,.... .....-,........... jllli111lil iliillli,iliilll :IIIIII¡¡¡ :Ît1Iiîftii111iiillI11'i[1~iir~ijt~ii¡iii¡i1~1¡ !¡¡:!!¡!lillfl!¡¡I: ;.y.;.;.;.;.;.;.;.;.;.;.;.;.;.:.,.;,:.;.:.:.;.;.;.;.;.;.:':':<':':~':::'''::':':':':::':':':':';':' ::;:;:;:;:;:;:;:;8;:;:;:;:;:;:;:;:::;:;::::::::::=::::;:;::::::=::;::" ........................................ .....-............-....-......-.--................ ... ...........-.._,....-.-...... Paseo Ranchero: $635,000.00 $635,000.00 6/14/98 98-290 Telegraph Cyn. to Road to East 98-305 Palomar Street East Palomar St.: $730,000.00 $730,000.00 8/18/98 98-277B Paseo Ranchero to to East Monarche Dr. 98-289 East Palomar St.: $877 ,318.50 $877,318.50 N/A N/A East Monarche Dr. to Easterly Subdivision line Monarche Drive: $225,000.00 $225,000.00 8/20/98 98- 9 to 98-14 3ðC-- J J OCT -01-1998 13:05 HUNSAKER SD EXHIBIT D 6195581414 P.02/07 Recording Requested by and Please Return to: City Clerk City of Chula Vista P.O. Box 1087 Chula Vista, CA 91912 This Instrument Benefits City Only. No fee is required. This Space for Recordør's Use Only APN(a) 598-140-01 C.V. File No. . IRREVOCABLE OFFER OF DEDICATION OF FEE INTEREST FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, OTAY PROJECT, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY represents that, as the owner(s) of herein-described real property, (in the case of multiple owner:s, collectively referred to as 'Grento"), hereby make(s) an Irravoc:able Offer of Dedication of fee interest, pursuant to Section 7050 of the Government Code of the State of California, to THE CITY OF CHULA VISTA, A MUNICIPAL CORPORATION, the hereinafter described real property for the following public purpose: PUBLIC PARK AND OTHER PUBLIC PURPOSES. The real property referred to above is situated in the City of Chula Vista, County of San Diego, State of California and is more particularly described as follows: THE SOUTHWESTERLY 660.00 FEET OF THE SOUTHEASTERLY 1010.00 FEET OF LOT 30 OF OTAY RANCHO IN THE COUNTY OF SAN DIEGO. STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 862, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, FEBRUARY 7, 1800, (Contains 15.3 Acres, more or less) This Offer of Dedication is made pursuant to Section 7050 of Government Code of the State of California and may be accepted et any time by the City of Chula Vista. This Offer of Dedication of fee interest shall be irrevocable and shall be binding an the Grantor, its heirs, executors, administrators, successors and assigns. PAGE 1 OF 2 ~v.-...._·~"'T _11, . .....M..oa___ ;lOC - -32- -- OCT-01-1998 13:05 HUNSRKER SD 6195581414 P.03/07 SIGNATURE PAGE Signed this day of ,19 Grantor Signatures: By: Otay Ranch Development, LLC, a Delaware limited liability company Kent Aden. Vice President (Notary Acknowledgement Required for Each Signatory) This is to certify that the interest in røsl property offered herøin to the City of Chula Vista. a governmental agency. is herøby acknowledged by the undersigned. City Cleric, on behalf of the Chula Vista City Council pursuant to authority conferred by Resolution No. 15645 of the Chuls Vista City CounCl7 adopted on June 5, 1990, and the grantee(s) consent(s) to the recordation thereof by its duly authorized officer. BEVERLY A. AUTHELET CITY CLERK By: Dated: PAGE20F2 :JOC-;1 .J DIIIrna.__..___ It",.. -.....,.,~'*'...- -- ~ . u ¡ ~ ------- ---- ----- - -- þ ~ ~~~~~~~ ~~~~-~~~~~ ~ ~~ ~ 11. . ~ i Q - ~ - - . u ê...~ ~ÑMMM;~ÑMMM Ñ êê 5 ~ ~ ----- ----------- - -- ~ e á < :; 4' ~ 'á. ~ ... I: ~ 1l a. &~ ----- - _0_____0__ - - "r: ¡- ~O C~.~~ ~ NONM_~NONM N øø ~ ~'... ----- - -n-----M-- _ __ ~ ~ D .:: m 8.. .~ <; => " - i J o > : ."" w~ ; - 2 i Uo ----- ----- ----- - -_ 0 e ~ ~ -= CD....'C'IO It)NNNN ,...NNNN N coco I: Iii: =u ----- ----- -____ _ __ w S ~ ~ ¡: >- ~ .Ii" . Q. 0 5.. I ~ . l .. -';. It .ðt ..¡ ! oo" --~- ___0_____0__ - -- ~ J!f~ . oooo m...~. ~It)NOMN_,...NOMN N CC ~... ---- ---M-----M-- - -- j i ._~ 11.0 - j" ~~ ... b a. f . 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ECOmn.O .1D1D.-=='Q..~WU"'''''''''''''c:c:c:"C''' ..!;Q ÏlOIt ..Q.___~QOQÕ~ÜÜ~" ,o~~.!.!~;:~;:~~;:¡~ 2i~C~~;:) >' ~......,,-~"C~ ..co______c:c:c:c ~~ ~_.Q GGIID -::-=---U.U.UIDUCDGJ...----..J e.· U~IU E ~ U U U ~ ŒI m m i ~ ~ ~ ê ê ê ê 2 0 ~ ~ ~ m ü ü ü B .~ 8 & ~ ~ ~ ~ W Cl.EEo.!.!.!occ:c:....-.2.2a1.C'lIIC'II..r::~.:t:~uuuaI.... ..-%tt"" _-.._co.. 000..r::~~~..r::0.....c:c:c:~_ ~~ !:: -·.D.D.D¡:S:S:S~ID UOOUOal00(1)0g5ðcn~ !~..·e·e m ÜQ.oOOE"'Ift"'oõ-¡;¡;¡----·-¡;;.----uouc:o f.~~.. - II) IIDII)U CPCP.... c:_cnOtOtOtOtQ)OJOtOtt71....~.... ._ -'=<r.,I.I.S:: =1 ë;:;:;:;¡;-i~i¡~!!f!~~~~g_¡;8'gg8'~~~~Z' ::¡'B¡'¡'~8 ~ Q.wQ.n.Q.~~~Q.~~........Q.Q.a..Q.Q.....a..Q.~a..c:cc:o~ ~!~~~20 Joê~3~ Unless otherwise specified or required by law: (a). the conditions and Code requirements set forth below shall be completed prior to the related final map as determined by the Director of Planning, Parks and Recreation, and the city Engineer (b). unless otherwise specified, "dedicate" means grant the appropriate easement, rather than fee title. Where an easement is required the applicant shall be required to provide subordination of any prior lien holders in order to ensure that the City has a first priority interest in such land unless otherwise excused by the City. Where fee title is granted or dedicated to the City, said fee title shall be free and clear of all encumbrances, unless otherwise excused by the city. Should conflicting wording or standards occur between these conditions of approval, any conflict shall be resolved by the City Manager or designee. GENERAL/PRELIMINARY 1. Comply with all requirements and guidelines of the Parks, Recreation Open Space and Trails Plan, Public Facilities Financing Plan, Ranch Wide Affordable Housing Plan, Spa One Affordable Housing Plan, and the Non-Renewable Energy Conservation Plan, 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. 2. All of the terms, covenants and conditions contained herein shall be binding upon and inure to the benefit of the heirs, successors, assigns and representatives of the Developer as to any or all of the Property. For purposes of this document the term "Developer" shall also mean "Applicant". 3. If any of the terms, covenants or conditions contained herein shall fail to occur or if they are, by their terms, to be implemented and maintained over time, if any of such conditions fail to be so implemented and maintained according to their terms, the City shall have the right to revoke or modify all approvals herein granted including issuance of building permits, deny, or further condition the subsequent approvals that are derived from the approvals herein granted, institute and prosecute litigation to compel their compliance with said conditions or seek damages for their violation. The applicant shall be notified 10 days in advance prior to any of the above actions being taken by the City and shall be given the opportunity to remedy any deficiencies identified by the city. 4. Applicant shall indemnify, protect, defend and hold the City harmless from and against any and all claims, liabilities and costs, including attorney's fees, arising from challenges to the Environmental Impact Report for the Project and/or any or all entitlements and approvals issued by the City in connection with the project. 5. The applicant shall comply with all applicable SPA conditions of approval. SCHEDULE "1" 3tJC- 3S- 6. Any and all agreements that the applicant is required to enter in hereunder, shall be in a form approved by the city Attorney. 7. The terms, conditions and time limits associated with this tentative map shall be consistent with the Development Agreement approved by Ordinance No. 2679 by the city council on July 16, 1996 ("Development Agreement") and as amended on October 22, 1996. 8. The applicant shall comply with the terms of the Conveyance Agreement, adopted by Resolution No. 18416 by the city Council on October 22, 1996 ("Conveyance Agreement"). ENVIRONMENTAL 9. Prior to approval of each final "B" Map, the applicant shall implement all applicable mitigation measures identified in EIR 95- 01, the CEQA Findings of Fact for this Project (on file in the City Clerk's Office as Document No. C096-056) and the Mitigation Monitoring and Reporting Program (on file in the city Clerk's Office as Document No. C096-057). 10. Prior to the approval of each final "B" Map, the applicant shall comply with all applicable requirements of the Phase 2 Resource Management Plan (RMP) as approved by the City Council on June 4, 1996 and as may be amended from time to time by the city. 11. Prior to the approval of each final "B" Map, the applicant shall comply with the Otay Ranch Resource Preserve in lieu fee program to be adopted by the City Council. 12. The Applicant shall comply with any applicable requirements of the California Department of Fish and Game, the u.s. Department of Fish and Wildlife and the u.s. Army Corps of Engineers. DESIGN 13. The secondary access in the southern portion of Neighborhood R-30 shall be surfaced with "grass-crete", "turf-block" or some other comparable material unless otherwise approved by the Planning Director and Fire Chief. Bollards shall be provided instead of the locking gate noted on the map. The bollards shall be located closer to the terminus of the cul-de-sac (Parker Mountain Road), rather than adjacent to Santa Rosa Drive. 14. Any proposed monumentation/signage shall be consistent with the village Design Plan and shall be reviewed and approved by the Planning Director prior to approval of the appropriate final map. 15. In addition to the requirements outlined in the City of Chula Vista Landscape Manual, privately maintained slopes in excess of 25 feet in height shall be landscaped and irrigated to_soften their appearance as follows: one 5-gallon or larger size tree per each 150 square feet of slope area, one 1-gallon or larger size shrub per each 100 square feet of slope area, and appropriate groundcover. Trees and shrubs shall be planted in staggered clusters to soften and vary the slope plane. Landscape and irrigation plans for private slopes shall be reviewed and approved by the Planning Director prior to approval of the appropriate final map. SCHEDULE "1" 3¿:JC -.3 0 16. A comprehensive wall plan indicating color, materials, height and location shall be reviewed and approved by the Planning Director prior to approval of any final "B" Map. Materials and color used shall be compatible and all walls located in corner side-yards or rear yards facing public or private streets or pedestrian connections shall be constructed of a decorative masonry and/or wrought iron material. A revised acoustical analysis indicating if view fencing, such as a combination of masonry and wrought iron, is allowable at the ends of cul-de-sacs backing up to Telegraph Canyon Road, East Orange Avenue and Paseo Ranchero, shall be prepared prior to submittal of the wall plan indicated above. If such fencing is allowable per the final acoustical analysis it shall be provided at the ends of the following streets: Parker Mountain Road, Geyserville Street, Jamestown Drive, Moss Landing Avenue, Porterville Court, Firebaugh Court, Street C4, San Dimas Court, Hanford Court, Rocklin Court, Colton Court, Rincon Point, Santa Inez Avenue, Traver Court, Vernon Court, Lindsay Street, Applegate Street, and Dunsmuir Court. View fencing shall be provided at the ends of all other open cul-de-sacs where a sound wall is not required. Any combination free standing/retaining walls shall not exceed 8.5 feet in height. The applicant shall submit a detail and/or cross section of the maximum/minimum conditions for all "combination walls" which include retaining and free standing walls. Said detail shall be reviewed and approved by the Director of Planning prior to the approval of the first final map. The maximum height of all retaining walls shall be 2.5 feet in height when combined with freestanding walls which are six feet in height. A 2-3 foot separation shall be provided between free standing and retaining walls where the combined height would otherwise exceed 8.5 feet. 17. Lots backing or siding onto pedestrian paseos or parks shall be provided with view fencing, such as three feet of wrought iron on top of a three foot masonry wall, subject to approval by the Fire Marshal and the Planning Director. 18. Should the applicant propose an amendment to the Otay Ranch General Development Plan to reduce density within the village Cores at some time in the future, the provision of additional alley product shall be analyzed and considered concurrently with said amendment. 19. The Design Review Committee shall review and approve the elevations of all homes backing and siding onto Telegraph Canyon Road in Neighborhood R-5. 20. A minimum of thirty percent of all 55 x 105 feet lots in each final map shall be provided with Hollywood driveways. The applicant agrees to process an amendment to the Planned Community District Regulations for SPA One to reflect said requirement. STREETS, RIGHT-OF-WAY AND PUBLIC IMPROVEMENTS 21. Dedicate for public use all the public streets shown on the tentative map within the subdivision boundary. Prior to the SCHEDULE "1" :1 CC- - J? approval of the applicable "B" Map, the applicant shall enter into an agreement to guarantee the construction of all street improvements as required by the PFFP for each particular phase. 22. Secure in accordance with Section 18.16.220 of the Municipal Code, as necessary, the construction and/or construct full street improvements for all on-site and off-site streets deemed necessary to provide service to the subject subdivision. Said improvements shall include, but not be limited to, asphalt concrete pavement, base, concrete curb, gutter and sidewalk, sewer, reclaimed water and water utilities, drainage facilities, street lights, signs, landscaping, irrigation, fencing and fire hydrants. Street cross sections shall conform to the cross sections shown on the Tentative Map. All other design criteria shall comply with the current Chula Vista Design Standards, Chula Vista Street Design Standards, and the Chula Vista Subdivision Manual unless otherwise conditioned or approved herein. Exhibit A indicates the relationship between the Otay Ranch SPA One roadway designations and the approved City designations in the Circulation Element of the General Plan for purposes of determining the appropriate design standards for all streets within SPA One. Should the City Engineer deem that the construction of sidewalks along the offsite portions of East Orange Avenue and East Palomar Street west of Paseo Ranchero is not necessary to provide service to the subject sUbdivision, their construction may be delayed. The developer shall dedicate on the appropriate final "B" Map, the right-of-way to extend Carmel Avenue, Santa Lucia Road, Santa Flora Drive, Gold Run Road, Applegate Street, Livingston Avenue and Grayson Court to the easterly subdivision boundary of Village One. The city Engineer and the Planning Director may waive this requirement if it is demonstrated that a street does not need to be extended to provide access to the adjacent property. Unless otherwise approved by the City Engineer, the developer shall provide a cul-de-sac at the end of all proposed street stubs along the subdivision boundary. The City Engineer may approve the installation of a temporary turnaround at the end of those streets that might be extended in the future to provide access to the adjacent property. 23. In accordance with the pre-annexation Development Agreement the developer shall grant to the city fee title to the right-of-way for SR 125. Said right-of-way shall be contained in a lot granted to the city for open space, transportation and other public purposes. The right-of-way shall be granted at such time as requested by the city. 24. As part of the improvement plans associated with the final "B" Map which triggers the installation of the related street improvements, install a fully activated traffic signal including interconnect wiring at the following intersections: a. East Palomar Street and Paseo Ranchero SCHEDULE "1" .3 tJC - J 6' b. East Palomar Street and La Media Road c. East Palomar Street and East Orange Avenue d. East Orange Avenue and Paseo Ranchero e. East Orange Avenue and La Media Road Install underground improvements, standards and luminaries with construction of street improvements, and install mast arms, signal heads and associated equipment as determined by the City Engineer. 25. Submit to and obtain approval by the City Engineer of striping plans for all collector or higher classification streets simultaneously with the associated improvement plans. 26. Design all vertical and horizontal curves and intersection sight distances to conform to the Caltrans Highway Design Manual. Sight visibility easements shall be granted as necessary to comply with the requirements in the Caltrans Highway Design Manual. 27. Plant trees within all street parkways which have been selected from the revised list of appropriate tree species described in the Village Design Plan which shall be approved by the Directors of Planning, Parks and Recreation and Public Works. The applicant shall provide root control methods per the requirements of the Parks and Recreation Director and a deep watering irrigation system for the trees. An irrigation system shall be provided from each individual lot to the adjacent parkway. The improvement plans, including final selection of street trees, for the street parkways shall be approved by the Directors of Planning, Parks and Recreation and the city Engineer. 28. Enter into an agreement with the city, prior to approval of the first final "A" Map, where the developer agrees to the following: a. Fund and install Chula vista transit stop facilities when directed by the Director of Public Works. The improvement plans for said stops shall be prepared in accordance with the transit stop details described in the village Design Plans and approved by the Directors of Planning and Public Works. b. Not protest the formation of any future regional benefit assessment district to finance the Light Rail Transit. c. Fund its fair share of the cost of construction of the two pedestrian bridges connecting Villages One to Village Two and Village Five to Village six as determined by the City Engineer based on the proportionate benefit received from the improvements. The developer shall also identify the financing mechanism to be used to fund said cost. 29. Grant in fee to the City the right-of-way for the Light Rail Transit as indicated on the approved Tentative Map. Said right-of- way shall be contained in lots granted to the city for open space, transportation, and other public purposes. Said lots shall not SCHEDULE "111 30C-3? extend across street intersections unless approved by the City Engineer. Include said lots in an open space district. 30. Guarantee the construction and enter into an agreement to construct the pedestrian bridge connecting village One to Village Five in accordance with improvement plans approved by the City prior to approval of the final map that requires construction of La Media Road between East Palomar street and East Orange Avenue. The developer shall be responsible for the construction of said bridge and may seek, with the concurrence of the city, repayment from other benefiting property owners through a reimbursement district. 31. In the event the Federal Government adopts ADA standards for street rights-of-way which are in conflict with the standards and approvals contained herein, all such approvals conflicting with those standards shall be updated to reflect those standards. Unless otherwise required by federal law, city ADA standards may be considered vested, as determined by Federal regulations, only after construction has commenced. 32. Prior to approval of any final map that requires the construction of Santa Madera Avenue between Telegraph Canyon Road and Morgan Hill Drive ("Temporary Roadway"), in order to access the final map property, the developer shall accomplish the following: a. Obtain all permits and agreements with the environmental regulatory agencies required to construct the "Temporary Roadway" . b. Obtain a construction permit from the City approving the necessary modifications to the existing improvements in Telegraph Canyon Road including the provision of a fully activated traffic signal as directed by the city Engineer. c. Enter into an agreement where the developer agrees to: (1) Perform the following: (a) Restore the median improvements and remove the traffic signal as directed by the City Engineer to provide only right-in/right-out access at said intersection. This work shall be performed at such time as La Media Road between Telegraph Canyon Road and East Palomar Street is opened for public use. (b) Remove to the satisfaction of the City Engineer the remaining "Temporary Roadway" improvements required to close said intersection, at such time as a permanent road connecting Filmore Street in Village One to East Orange Avenue is opened for public use. SCHEDULE "1" :J i/é - 'I tJ (2) Restore the Telegraph Canyon Road improvements and regrade the area to be consistent with the streetscape of Telegraph Canyon Road and the drainage channel as directed by the City Engineer and Director of Parks and Recreation. (3 ) Install signs as directed by the city Engineer, indicating that the "Temporary Roadway" will be closed once the permanent road connecting Filmore Street in Village One to East Orange Avenue is opened for public use. (4) Provide a Notice in any residential disclosure document that the "Temporary Roadway" will be closed once the permanent road connecting Filmore Street in village One to East Orange Avenue is opened for public use. (5) Provide security acceptable to the City in the amount determined by the city Engineer to guarantee the following: (a) Restoration of the median improvements and removal of the traffic signal required to provide only right-in/right-out access at said intersection. said bonds shall be provided prior to approval of the final map requiring the construction of La Media Road between Telegraph Canyon Road and East Palomar street. (b) Removal of the remaining temporary improvements required to close said intersection and restoration of the area as directed by the City Engineer and Director of Parks and Recreation. Said bonds shall be posted prior to approval of the final map for Village One Core or any unit thereof. (6) Provide for all costs associated with the vacation of the "Temporary Roadway" 33. As part of the improvement plans associated with the first final "B" Map which triggers the construction of Pas eo Ranchero, La Media or Santa Paula Drive, provide the necessary modifications to the applicable existing traffic signals including interconnect wiring at the following intersections: a. Telegraph Canyon Road at st. Claire Drive b. Telegraph Canyon Road at Otay Lakes Road c. Telegraph Canyon Road at Paseo Ranchero Install underground improvements, standards and luminaries with construction of street improvements, and install mast arms, signal heads and associated equipment as determined by the City Engineer. SCHEDULE "1" ~¿)C-'I/ , 34. Include the right of way for the proposed "Temporary Roadway" (Santa Madera Avenue between Telegraph Canyon Road and Morgan Hill Drive) in a separate lot. In the appropriate final "B" Map, as determined by the City Engineer, grant said lot in fee to the City for open space, transportation, and other public uses. 35. Guarantee the construction and enter into an agreement to construct, prior to the approval of any final "B" Map for Neighborhoods R-15, 15, 17, 18, 19, CPF-l, 2, 3, C-l or 2 or any unit thereof, the construction of a permanent public road connecting Filmore Street in Village One to East Orange Avenue as depicted on the Tentative Map. This road shall have a right-of-way width of 40 feet and be designed and constructed to City standards for residential streets except that it shall have a width (curb to curb) of 25 feet and sidewalk only on one side. 35. Provide (1) twenty feet setback on driveways from property line to garage and (2) sectional roll-up type garage doors at all properties fronting on streets where cul-de-sacs are 150 feet or less in length except as provided for in the Planned Community District Regulations or approved by the City Engineer and the Planning Director. 37. Not install privately owned water, reclaimed water, or other utilities crossing any public street. This shall include the prohibition of the installation of sleeves for future construction of privately owned facilities. The city Engineer may waive this requirement if the following is accomplished: a. The developer enters into an agreement with the City where the developer agrees to the following: (1) Apply for an encroachment permit for installation of the private facilities within the public right- of-way. (2) Maintain membership in an advance notice such as the USA Dig Alert Service. (3) Mark out any private facilities owned by the developer whenever work is performed in the area. The terms of this agreement shall be binding upon the successors and assigns of the developer. b. Shutoff devices as determined by the city Engineer are provided at those locations where private facilities traverse public streets. 38. Grant on the final "B" Map containing the proposed connection to EastLake Parkway (between the two existing Otay Water District parcels) a 50-foot wide easement for street right-of-way and other public purposes along said connection. Prior to approval of the same map the developer shall guarantee the construction of the following improvements within said 50-foot wide easement: SCHEDULE "1" 3 CJ é - t.j,Z a. Pedestrian, cart and bicycle improvements as determined by the City Engineer and Planning Director. The improvement plans shall be prepared in such a way as to not preclude the option of providing street improvements for vehicular access in the future, b. Vehicular access improvements to the existing Otay Municipal Water District parcels as determined by the City Engineer and the Otay Municipal Water District. 39. Grant on the final "B" Map containing the paseo between Neighborhoods R-8 and R-9 a 60-wide easement for street right-of- way and other public purposes. The paseo improvements shall be constructed within said easement. Prior to approval of the same final map the developer shall accomplish the following: a. Guarantee the construction of the paseo improvements (if public) as directed by the Director of planning, Director of Parks and Recreation, and City Engineer. b. Enter into an agreement with the City where the developer agrees to construct street improvements for vehicular access within the 60-foot easement in accordance with improvement plans approved by the City Engineer if vehicular access is needed in the future. 40. Include in separate lots the right-of-way required to accommodate the future grade separation at the intersections of (1) Telegraph Canyon and Otay Lakes Road, and (2) East Orange Avenue and Paseo Ranchero. These lots shall be granted in fee to the city for Open Space, transportation, and other public purposes on the appropriate final "B" Map, as determined by the City Engineer. 41. Residential Street Condition A as denoted on the cover page of the tentative map is the preferred section and shall be implemented on all residential streets, excluding the alley product, unless otherwise approved by the City Engineer and Planning Director. 42, The applicant shall submit a conceptual design for the bridge connections between village One and Village Five which indicates materials, height, location, etc. Said design plan shall be reviewed and approved by the Planning Director prior to approval of the final "B" Map that requires construction of La Media Road between East Palomar Street and East Orange Avenue. 43. Requested General Waivers 1, 2, and 3 and Specific Waiver 3, as indicated on the cover sheet of the tentative map, are hereby approved. Specific waivers 1 and 2 are approved subject to the condition that one-way circulation be provided at the north-south streets adjacent to parks P-4 and P-S, unless otherwise approved by the City Engineer. 44. The applicant shall submit and obtain approval from the City Engineer and the Planning Director of a final conceptual design of the proposed traffic circles prior to approval of the first final "B" Map. The developer shall submit striping, signage and SCHEDULE "1" J¿:;é - '1;5 landscape plans for all traffic circles indicated on the tentative map. In the event the traffic circles are not approved, some type of alternative enhanced landscaping and/or entry statement at those intersections acceptable to the City Engineer and the Planning Director, shall be identified prior to approval of the first final "B" Map. 45. Right-of-way for the light rail transit line shall provide for spiral curves as required by MTDB and approved by the City Engineer. 46. Unless otherwise approved by the City Engineer, the developer shall provide sewer stubs extending to the easterly subdivision boundary of Village One at the following locations: (1) all the street stubs proposed along said boundary, and (2) at those locations where right-of-way dedication is required to extend Carmel Avenue, Santa Lucia Road, Santa Flora Drive, Gold Run Road, Applegate Street, Livingston Avenue and Grayson Court to said subdivision boundary. 47. Prior to approval of the first final "B" Map the developer shall submit and obtain the approval of the City Engineer of a design study of the connection of the sewerline shown on the tentative map as ending at the northerly end of Gold Run Road to an approved public sewer system. GRADING AND DRAINAGE 48. Provide a setback, as determined by the City Engineer, between the property lines of the proposed lots and the top or toe of any slope to be constructed where the proposed grading adjoins undeveloped property or property owned by others. The City Engineer shall not approve the creation of any lot that does not meet the required setback. The developer shall submit notarized letters of permission to grade for all off-site grading. 49. Submit a list of proposed lots with the appropriate grading plan indicating whether the structure will be located on fill, cut or a transition between the two situations unless otherwise approved by the City Engineer. 50. Comply with all the provisions of the National Pollutant Discharge Elimination System (NPDES) and the Clean Water Program. 51. Provide runoff detention basins or any other facility approved by the City Engineer to reduce the quantity of runoff from the development to an amount equal to or less than the present lOa-year frequency runoff. 52. Provide "as built" improvement and storm drain plans in DXF file format to the satisfaction of the city Engineer. 53. Grant on the appropriate final "B" Map a 15 feet minimum drainage and access easement for storm drain lines located between SCHEDULE "1" .3éJC-1/i residential units unless otherwise directed by the City Engineer. All other easements shall meet City standards for required width. 54. Prior to approval of (1) the first final "B" Map or grading permit for land draining into the Poggi Canyon or (2) the first final "B" Map or grading permit which requires construction of Santa Madera between Telegraph Canyon Road and Morgan Hill Drive ("Temporary Roadway") , the developer shall: a. Guarantee the construction of the applicable drainage facility, unless otherwise approved by the City Engineer as follows: (1) Runoff detention/desilting basin and naturalized channel in Poggi Canyon; or (2 ) Runoff detention Basin in Telegraph Canyon Channel The City Engineer may approve that these facilities are constructed at a later time if the developer provides private temporary runoff detention basins or other facilities, approved by the City Engineer, which would reduce the quantity of runoff from the development to an amount equal to less than the present 100 year flow. Said temporary facilities shall comply with all the provisions of the National Pollutant Discharge Elimination System (NPDES) and the Clean Water Program, Prior to issuance of any grading permit which approves any temporary facility, the developer shall enter into an agreement with the City to guarantee the adequate operation and maintenance (0 & M) of said facility. The developer shall provide security satisfactory to the city to guarantee the 0 & M activities, in the event said facilities are not maintained to City standards as determined by the city Engineer. The developer shall be responsible for obtaining all permits and agreements with the environmental regulatory agencies required to perform this work. b. Prepare a maintenance program including a schedule, estimate of cost, operations manual and a financing mechanism for the maintenance of the applicable facilities. Said program shall be subject to approval of the City Engineer, the Director of Parks and Recreation, and the applicable environmental agencies. c. Enter into an agreement with the city of Chula vista and the applicable environmental agencies (Fish and Game, Fish and Wildlife) wherein the parties agree to implement the maintenance program. d. Enter into an agreement with the City where the developer agrees to the following: SCHEDULE 111 IT 3t/C'-~S-- (1) Provide for the maintenance of the proposed detention basin in Telegraph Canyon and the proposed naturalized channel and detention basin in Poggi Canyon until such time as maintenance of such facilities is assumed by the City or an open space district. (2) Provide for the removal of siltation in the Telegraph and Poggi Canyon Channels (including detention basins) until all upstream grading within the development is completed and erosion protection planting is adequately established as determined by the City Engineer and Director of Parks and Recreation. (3) Provide for the removal of any siltation in the Telegraph and Poggi Canyon Channels (including detention basins) attributable to the development for a minimum period of five years after maintenance of the facility is assumed by the City or an open space district. 55. Enter into an agreement with the City, prior to approval of the first final "B" Map or grading permit for land draining into the existing Telegraph Canyon Channel, where the developer agrees to perform the following activities within the portion of said existing channel extending from Paseo Ladera to the eastern subdivision boundary: a. Provide for the removal of siltation until all upstream grading within the development is completed and erosion protection planting is adequately established as determined by the City Engineer and Director of Parks and Recreation. b. Provide for the removal of any siltation attributable to the development for a minimum period of five years after maintenance of the channel is assumed by the City or an open space district. 56. Ensure that brow channels and ditches emanating from and/or running through City Open Space are not routed through private property and vice versa. 57. Provide a graded access (12 feet minimum width) and access easements as required by the City Engineer to all public storm drain structures including inlet and outlet structures. Improved access as determined by the City Engineer shall be provided to public drainage structures located in the rear yard of any residential lot. 58. Provide a protective fencing system around (1) the proposed detention basins at Telegraph Canyon and Poggi Canyon, and (2) inlets and outlets of storm drain structures, as directed by the City Engineer. The final design and types of construction SCHEDULE "1" 3CC- '/~ materials shall be subject to approval of the Director of Planning and the city Engineer. 59. Designate all drainage facilities draining private property to the point of connection with public facilities as private. 60. Provide a 6 inch thick concrete access road to the bottom of the proposed detention basins. This access shall have a minimum width of 12 feet, a maximum slope of 8%, and a heavy broom finish on the ramp as directed by the city Engineer. 61. Obtain a Letter of Map Revision (LOMR) from the Federal Emergency Management Agency revising the current National Flood Insurance Program maps of the Telegraph Canyon Channel to reflect the effect of the proposed drainage improvements. The LOMR shall be completed prior to acceptance by the City of the proposed detention facility. 62. Provide graded maintenance access roads along both sides of the proposed onsite and offsite portions of the Poggi Canyon Channel. The width of said roads shall be 12 feet unless otherwise approved by the City Engineer. The final dimensions and location of the access roads shall be as determined by the City Engineer. 63. Obtain, prior to approval of the first final "B" Map, the approval of the Director of Public Works to any amendment necessary to make the Master Drainage plan consistent with the approved Tentative Map. 64. Prior to the installation of the regional trail, install a fence along those portions of (1) the existing maintenance access roads along the Telegraph Canyon Channel, and (2) the proposed maintenance access roads of the Poggi Canyon Channel, which are proposed to be incorporated into the Regional Trail System. The fence shall be erected only at those locations where its installation will not interfere with the normal channel maintenance. The specific locations where the fence will be allowed and the fence details shall be as determined by the city Engineer and Director of Parks and Recreation. 65. Prepare and obtain approval by the City Engineer, Director of Planning, and Director of Parks and Recreation of an erosion and sedimentation control plan and landscape/irrigation plans as part of the grading plans. 66. Landform grading, similar to what has been proposed along Telegraph Canyon Road and consistent with city policy, shall be implemented adjacent to all off-site major roads. 67. Indicate on all affected grading plans that all walls which are to be maintained by open space districts shall be constructed entirely within open space lots dedicated to the city. 68. Prior to the approval of the grading plans proposing the grading of the area that would accommodate the future grade separated intersections at East Orange Avenue/Paseo Ranchero and SCHEDULE "1" :]t?C-- '17 Telegraph Canyon Road/Otay Lakes Road, the developer shall submit a design study, acceptable to the city Engineer, of the grading required for said grade separated intersections. 69. The grading plans for the intersection at East Orange Avenue/Paseo Ranchero shall include a partial grading of the area that would accommodate the eastbound on-ramp and off-ramp and the westbound on-ramp of the future grade separated intersection. The elevations and extent of the required grading shall be determined by the city Engineer to: (1) allow in the future the construction of any additional grading necessary for the ultimate intersection configuration, and (2) construct the Poggi Canyon Channel at its ultimate location. 70. Prior to approval of the grading and/or improvement plans proposing the construction of the culvert under La Media Road at the crossing with the Telegraph Canyon Channel, the developer shall submit a study acceptable to the City Engineer demonstrating that the proposed culvert will be capable of handling the design flow in the event said culvert needs to be extended in the future in conjunction with the grading for a grade separated intersection at Telegraph Canyon Road/Otay Lakes Road. 71. Unless otherwise approved by the city Engineer, the developer shall provide an underground storm drain connecting the cleanout in Park P-9 to the Telegraph Canyon Channel Drainage easements shall be provided as required by the city Engineer. SEWER 72. Provide an improved access road with a minimum width of 12 feet to all sanitary sewer manholes. The roadway shall be designed for an H-20 wheel load or other loading as approved by the city Engineer. 73. Grant on the appropriate final "B" Map a 20 feet minimum sewer and access easement for sewerlines located between residential units unless otherwise directed by the city Engineer. All other easements shall meet city standards for required width. PARKS/OPEN SPACE/WILDLIFE PRESERVATION General 74. The SPA one project shall satisfy the requirements of the Park Land Dedication Ordinance (PLDO). The ordinance establishes a requirement that the project provide three (3) acres of local parks and related improvements per 1,000 residents. Local parks are comprised of community parks and neighborhood parks. Pedestrian parks are an integral component of the plan and shall receive partial park credit as defined below. A minimum of two thirds (2 acres/1,000 residents) of local park requirement shall be satisfied through the provision of turn-key neighborhood and pedestrian parks within SPA One. The remaining requirement (1 acre/1,000 residents) shall be satisfied through the payment of fees. 75. All local parks shall be consistent with the SPA One PFFP and shall be installed by the Applicant, A construction schedule, SCHEDULE "1" ;1 ClC-~;g/ requiring all parks to be completed in a timely manner, shall be approved by the Director of Parks and Recreation. 76. All local parks shall be designed and constructed consistent with the provisions of the Chula Vista Landscape Manual and related Parks and Recreation Department specifications and policies. 77. The applicant shall enter into a Chula vista standard three party agreement with the City of Chula Vista and design consultant (s) , for the design of all aspects of the neighborhood and community parks in accordance with the Master Plan whereby the Parks and Recreation Director selects the design consultant(s), to be funded by the applicant. The cost for the consultant(s) shall be established and said amount deposited into an account prior to any work being initiated by the consultant. The agreement shall include, but not be limited to, master planning, design development phase, construction document phase and construction supervision phase for the park sites. The construction documents shall reflect the then current requirements of the City's COde/Landscape Manual requirements. 78. The Applicant shall receive surplus park credit to the extent the combined park credit for neighborhood parks, pedestrian parks, the town square park and the community park exceeds the 3 acres per 1,000 residents standard. This surplus park credit may be utilized by the Applicant to satisfy local park requirements in future SPAs. 79. The Applicant and the City shall mutually agree on a PAD fee reimbursement schedule in coordination with the adopted construction schedule. Milestones will be established for partial reimbursement during the construction process. The City may withhold up to 20% of the park construction funds until the park has been completed and accepted. Reimbursement of PAD fees shall include the interest accrued by the City on said PAD fees minus the City's cost of processing and administering this reimbursement program. 80. Grant in fee all designated public park lands at such time as is necessary to implement the requirements of the PLDO and the PFFP. 81. pedestrian Parks (also known as mini-Darks) : Pedestrian parks less than five acres, as identified in the SPA One Plan, shall be maintained by a funding entity other than the City's General Fund. Pedestrian parks shall receive a minimum of 25% and a maximum of 50% park credit, as determined by the Director of Parks and Recreation pursuant to the City wide small park credit criteria which shall be approved by the City Council. 82. Neighborhood Parks: a. In addition to those PAD fees required by Condition No. 83, the Applicant shall pay PAD fees based on a formula of 2 acres per 1,000 residents for the first 500 dwelling units, In the City's sole discret ion, PAD fees may be SCHEDULE "1" 3¿JC-¥j required for units in excess of the first 500 dwelling units. b. Prior to the approval of the first final map which creates residential lots ("B" Map), the applicant shall enter into a supplemental agreement where the applicant agrees to construct the first neighborhood park in SPA One, in a location determined by the Director of Parks and Recreation, no later than issuance of the building permit for the 500th dwelling unit. The agreement shall also provide the following: (1) The level of amenities required in the first phase of construction of the first neighborhood park shall be determined by the Director of Parks and Recreation in conjunction with the park master planning effort required by the city of Chula vista Landscape Manual. Said level of amenities shall be equivalent to five acres of neighborhood park improvements as described in the PLDO ordinance and the Park Master Plan as approved by the Director of Parks and Recreation. The applicant shall complete construction of the first phase of the first neighborhood park within six (6) months of commencing construction of said park. (2) Prior to issuance of the building permit for the 1150th dwelling unit, the Director of Parks and Recreation shall determine the level of amenities required for the second phase of construction of this park consistent with the PLDO and the Park Master Plan, or in lieu of the second phase, require the construction of another neighborhood park at a different location. If the applicant cannot build a park at a different location chosen by the Director of Parks and Recreation, the City may require the applicant to pay PAD fees. (3) At no time following completion of construction of the first phase of the first neighborhood park shall there be a deficit in "constructed neighborhood park" based upon 2 acres/1,OOO residents. Applicant agrees that the City may withhold the issuance of building permits should said deficit occur. For purposes of this condition, the term "constructed neighborhood park" shall mean that construction of the park has been completed and accepted by the Director of Parks and Recreation as being in compliance with the Park Master Plan, but prior to the mandatory 9-12 month maintenance period, This condition is not intended to supersede any of the city's maintenance guarantee requirements. (4) The Applicant shall receive reimbursement of PAD fees, proportionate to what has been constructed, SCHEDULE "I" 3 tJ ¿ - S-õ should they deliver a turn-key park which has been constructed in accordance with the Parks Master Plan. c. The applicant shall grant to the City, at the "A" Map stage, an irrevocable offer of dedication for all neighborhood parks shown on the Tentative Map. 83. Community Parks: a. Prior to the approval of each final "B" Map the Applicant shall pay PAD fees for the Community Park based upon a formula of 1 acre per I, 000 residents, until such time as a turn-key facility has been accepted by the Director of Parks and Recreation. Said turn-key facility is subject to the reimbursement mechanism set forth below. b. The first Otay Ranch Community Park, to satisfy SPA One demand, shall be located in Village 2 as identified in the GDP. c. The Applicant shall identify the relocation, if any, of the Village 2 Otay Ranch Community Park prior to issuance of the building permit for the l,150th dwelling unit. Said relocation may require an amendment to the Otay Ranch General Development Plan. d. Notwithstanding that the community park requirement (1 acre/l,OOO residents) shall be satisfied through the payment of PAD fees, the Applicant shall commence construction of the first phase of the Community Park prior to issuance of the building permit for the 2,650th dwelling unit. The first phase of construction shall include, but not be limited to, improvements such as a graded site with utilities provided to the property line and an all weather access road acceptable to the Fire Department. e. The Applicant shall commence construction of the second phase of the Community Park prior to issuance of the building permit for the 3,OOOth dwelling unit. Second phase improvements shall include recreational amenities as identified in the Park Master Plan. f. The Community Park shall be ready for acceptance by the Director of Parks and Recreation for maintenance prior to issuance of the building permit for the 3,900th dwelling unit. g. If the Director of Parks and Recreation determines that it is not feasible for the Applicant to commence construction of the first phase improvements of the community park prior to issuance of the building permit for the 2,650th unit, then the Director of Parks and Recreation shall have the option to utilize the PAD fees for said improvements, or to construct another park SCHEDULE "1" .3 ¿j c. ~ .s-? facility, east of the I-80S Freeway within an acceptable service radius of SPA One, as set forth in the GDP. h. The Applicant shall provide a maintenance period of 9-12 months in accordance with the city of Chula Vista Parks and Recreation Department policy. i. The Applicant shall receive reimbursement of PAD fees, proportionate to what has been constructed, excluding the cost of construction of the all weather access road, for the community park should they deliver a turn-key facility to the City in accordance with the Community Park Master Plan. 84. Trails/Open Space: a. All trails shall connect to adjoining existing and/or proposed trails in neighboring development projects, as determined by the Director of Parks and Recreation, b. The two connector trails from Neighborhoods R-24 and R-25 in Village Five to Telegraph Canyon Road shall be combined into one trail in Open Space Lot 37 and shall connect to the regional trail in one location. c. The maximum gradient for connector trails shall be 10%. Steeper grades of up to 12% for short runs of 50 feet may be permitted subject to the approval by the Parks and Recreation Director. d. The graded section upon which the connecting trails are constructed shall be 10 feet in width. six feet shall be provided for the trail bed, with a 2 foot graded shoulder on either side. e. Landscape and irrigation plans for the transit right-of- way shall be reviewed and approved by the Parks and Recreation Director in conjunction with the landscape plans for East Palomar Street. 85. Communi tv Gardens: a. Community Gardens shall be consistent with the guidelines in the SPA One Parks, Recreation, Open Space and Trails Master Plan, including creation of the Community Garden Committee and their responsibilities. b. Water lines shall be stubbed from the nearest open space water meter to the site(s) in order to facilitate development of the Community Gardens. c. Community Garden sites shall be consistent with those identified on the tentative map. d. Maintenance of Community Gardens shall be funded by an Open Space Maintenance District, Homeowner's Association SCHEDULE "1" ;1 ÔC -S-2.. facility, east of the I-80S Freeway within an acceptable service radius of SPA One, as set forth in the GDP. h. The Applicant shall provide a maintenance period of 9-12 months in accordance with the city of Chula vista Parks and Recreation Department policy. i. The Applicant shall receive reimbursement of PAD fees, proportionate to what has been constructed, excluding the cost of construction of the all weather access road, for the community park should they deliver a turn-key facility to the city in accordance with the Community Park Master Plan. 84. Trails/ODen SDace: a. All trails shall connect to adjoining existing and/or proposed trails in neighboring development projects, as determined by the Director of Parks and Recreation. b. The two connector trails from Neighborhoods R-24 and R-25 in Village Five to Telegraph Canyon Road shall be combined into one trail in Open Space Lot 37 and shall connect to the regional trail in one location. c. The maximum gradient for connector trails shall be 10%. Steeper grades of up to 12% for short runs of 50 feet may be permitted subject to the approval by the Parks and Recreation Director. d. The graded section upon which the connecting trails are constructed shall be 10 feet in width. six feet shall be provided for the trail bed, with a 2 foot graded shoulder on either side. e. Landscape and irrigation plans for the transit right-of- way shall be reviewed and approved by the Parks and Recreation Director in conjunction with the landscape plans for East Palomar Street. 85. Communitv Gardens: a. Community Gardens shall be consistent with the guidelines in the SPA One Parks, Recreation, Open Space and Trails Master Plan, including creation of the Community Garden Committee and their responsibilities. b. Water lines shall be stubbed from the nearest open space water meter to the site(s) in order to facilitate development of the Community Gardens. c. Community Garden sites shall be consistent with those identified on the tentative map. d. Maintenance of Community Gardens shall be funded by an Open Space Maintenance District, Homeowner's Association SCHEDULE "III ;1 ôc -S-.2.. or other funding mechanism approved by the Director of Parks and Recreation and the city Engineer. e. Community Gardens shall not receive park credit. OPEN SPACE/ASSESSMENTS 86. Prior to the approval of the first final "B" Map, the developer shall: a. Submit and obtain approval of the SPA One Open Space Master Plan from the Director of Parks and Recreation. The Open Space Master Plan shall be based upon the approved Concept and Analysis Plan, the requirements of which are outlined in the City of Chula Vista Landscape Manual and include but are not limited to elements such as final recreational trail alignments and fencing and phasing. b. Request the formation of an Open Space District pursuant to the 1972 Landscaping & Lighting Act for the Otay Valley Parcel of the Otay Ranch. This district formation shall be submitted to Council for consideration prior to approval of the first final "B" map. Maintenance of the open space improvements shall be accomplished by the developer for a minimum period of one year or until such time as accepted into the open space district by the Director of Parks and Recreation. If Council does not approve the open space district formation, some other financing mechanism shall be identified and submitted to for consideration prior to approval of the first final map. c. Submit evidence acceptable to the city Engineer and the Director of Parks and Recreation of the formation of a Master Homeowner's Association (MHOA), or another financial mechanism acceptable to the city Manager, which includes all the properties within the approved tentative map prior to approval of the first "B" Map. The MHOA shall be responsible for the maintenance of the improvements listed below. The City Engineer and the Director of Parks and Recreation may require that some of those improvements 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 Parks and Recreation require such annexation of future tentative map areas. The MHOA formation documents shall be approved by the City Attorney. d. Submit a list of all Otay Ranch SPA One 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 SCHEDULE "1" J ¿;;? C - 53 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 limited to the following facilities and improvements: (1) All facilities located on open space lots to include but not be limited to: 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 turf, irrigated, and non- irrigated open space to aid in the estimation of a maintenance budget thereof. (2) Medians and parkways along East Orange Avenue (onsite and offsite) , Paseo Ranchero, La Media Road, East Palomar street (onsite and offsite) and all other street parkways proposed for maintenance by the open space district or Homeowners' Association. (3 ) The proposed detention basin in Telegraph Canyon and the fair share of the maintenance of the existing naturalized Telegraph Canyon Channel east of Pas eo Ladera as determined by the City Engineer based on the proportional benefit received from the improvements. This includes but is not limited to the cost of maintenance and all cost to comply with the Department of Fish and Game and Corps of Engineers permit requirements. (4) The proposed detention basin and naturalized channel in Poggi Canyon. This includes but is not limited to the cost of maintenance and all cost to comply with the Department of Fish and Game and the Corps of Engineers permit requirements. (5) Community Gardens (5) Pedestrian Bridges. (7 ) The proportional share of the maintenance of the median and parkways along that portion of Telegraph Canyon Road adjoining the development as determined by the city Engineer. (8 ) All proposed facilities and improvements (excepting street improvements) within the 50-foot wide easement to be dedicated to the city for right-of- way at the following locations: (1) between Neighborhoods R-8 and R-9, and (2) at the proposed connection to EastLake Parkway (between the two Otay Water District Parcels. SCHEDULE "l" ;]tJC--51 d. Submit an initial deposit of $15,000 to begin the process of formation of the open space district. All costs of formation and other costs associated with the processing of the open space relating to this project shall be borne by the developer. e. Provide all the necessary information and materials (e.g., exhibits, diagrams, etc.) as determined by the city Engineer to prepare the engineer's report for the proposed open space district. 87. Include in the CC&R's, if applicable, the obligation of the Homeowners' Association to maintain all the facilities and improvements within the open space lots rejected by the City prior to the approval of the final map containing said lots. 88. Grade a level, clear area at least three feet wide (face of wall to top of slope), along the length of any wall abutting an open space district lot, as measured from face-of-wall to beginning of slope, said area as approved by the City Engineer and the Director of Parks and Recreation. 89. Ensure that all buyers of lots adjoining open space lots containing walls maintained by the open space district sign a statement, when purchasing their homes, stipulating that they are aware that the walls are on City property and that they shall not modify or supplement the wall or encroach onto City property. These restrictions shall also be incorporated in the CC&R's for each lot. 90. Agree to not protest formation or inclusion in a maintenance district or zone for the maintenance of landscaped medians and scenic corridors along streets within and adjacent to the subject subdivision. 91. Grant in fee to the city on the appropriate final map, all open space lots shown on the tentative map and execute and record a deed for each of the lots to be maintained by the City through the open space district. Provide on the final map a certificate, pursuant to section 66477.2(a) of the Subdivision Map Act, rejecting those open space lots to be maintained by the Homeowner's Association. 92. Provide documentation, prior to the approval of the first final "B" Map, to the Director of Planning and the City Engineer that an annexable Mello-Roos District, or other financing mechanism approved by the Sweetwater High School District and the Chula vista Elementary School District has been established to provide for construction of schools. 93. Fund the revision of the Public Facilities Development Impact Fee (PFDIF) Program, which shall be prepared by the City, as directed by the city Manager or his designee, and approved by the City Council prior to approval of the first final "B" Map. The developer shall receive 100% credits towards future PFDIF fees for funding this update. Provide a deposit of $20,000 to begin this SCHEDULE "1" J,I)C -J~ process. All cost of revising the PFDIF shall be borne by the developer. 94. Prior to issuance of any grading permit which includes Landscaping and Irrigation (L & I) improvements to be installed in an open space lot to be maintained by the open space district, the developer shall place a cash deposit with the City which will guarantee the maintenance of the L & I improvements, prior to city acceptance of said improvements, in the event the improvements are not maintained to City standards as determined by the City Engineer and the Director of Parks and Recreation. The amount of the deposit shall be equivalent to the estimated cost of maintaining the open space lots to City standards for a period of six months as determined by the city Engineer. Any unused portion of said deposit could be incorporated into the open space district's reserve at such time as the maintenance of the open space lot is assumed by the open space district. WATER 95. Provide to the city a letter from Otay Municipal Water District indicating that the assessments/bonded indebtedness for all parcels dedicated or granted in fee to the City have been paid or that no assessments exist on the parcel(s). 96. Present verification to the City Engineer in the form of a letter from Otay Water District that the subdivision will be provided adequate water service and long term water storage facilities. EASEMENTS 97. Grant to the city a 10' wide easement for general utility purposes along public street frontage of all open space lots offered for dedication to the City unless otherwise approved by the city Engineer. 98. Indicate on the appropriate "B" Map a reservation of easements to the future Homeowners' Association for private storm drain and private sewer facilities within open space lots as directed by the city Engineer. 99, Obtain, prior to approval of any final "B" Map, all off-site right-of-way necessary for the installation of the required improvements for that subdivision thereto. The developer shall also provide easements for all on-site and off-site public drainage facilities, sewers, maintenance roads, and any other public facilities necessary to provide service to the subject subdivision. 100. Notify the City at least 60 days prior to consideration of the final map by City if off-site right-of-way cannot be obtained as required by the Conditions of approval. (Only off-site right-of- way or easements affected by section 66462.5 of the Subdivision Map Act are covered by this condition.) After said notification, the developer shall: SCHEDULE "I" 3 ¿;; ¿ - /? a. Pay the full cost of acquiring off-site right-of-way or easements required by the Conditions of Approval of the tentative map. b. Deposit with the city the estimated cost of acquiring said right-of-way or easements. Said estimate 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. The requirements of a, b, and c above shall be accomplished prior to the approval of the appropriate Final Map. 101. Grant easements to subsequent owners pursuant to section 18.20.150 of the City Code on any final map that proposes private utilities or drainage facilities crossing property lines as directed by the City Engineer. 102. Grant to city on the appropriate final "B" Map two foot access easements along the rear and side property line of lots adjoining walls to be maintained by the open space district. The locations of these easements shall be as required by the Director of Parks and Recreation and the City Engineer to provide adequate access for maintenance of said walls. AGREEMENTS/FINANCIAL 103. Enter into a supplemental agreement with the City, prior to approval of each final "B" Map, where the developer agrees to the following: a. That the city may withhold building permits for the subject subdivision if anyone of the following occur: (1) Regional development threshold limits set by the adopted East Chula Vista Transportation Phasing Plan have been reached. (2) Traffic volumes, levels of service, public utilities and/or services exceed the threshold standards in the then effective Growth Management Ordinance. (3) The applicant does not comply with the terms of the Reserve Fund Program. SCHEDULE "1" 3 V'c. .... S-? b. That the City may withhold building permits for any of the phases of development identified in the Public Facilities Financing Plan (PFFP) for Otay Ranch SPA One if the required facilities, as identified in the PFFP or as amended by the Annual Monitoring Program, have not been completed. c. 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 Councilor any approval by its agents, officers, or employees with regard to this subdivision provided the City promptly notifies the subdivider of any claim, action or proceeding and on the further condition that the City fully cooperates in the defense. d. Hold the City harmless from any liability for erosion, siltation or increase flow of drainage resulting from this project. e. Ensure that all franchised cable television companies ("Cable Company") are permitted equal opportunity to place conduit and provide cable television service to each lot on public streets within the subdivision. Restrict access to the conduit to only those franchised cable television companies who are, and remain in compliance with, all of the terms and conditions of the franchise and which are in further compliance with all other rules, regulations, ordinances and procedures regulating and affecting the operation of cable television companies as same may have been, or may from time to time be issued by the City of Chula vista. f. Include in the Articles of Incorporation or Charter for the Homeowners' Association (HOA) provisions prohibiting the HOA from dedicating or conveying for public streets, land used for private streets without approval of 100% of all the HOA members. 104. Enter into an supplemental agreement with the City prior to approval of the first final "B" Map, where the developer agrees to the following: a. Participate, on a fair share basis, in any deficiency plan or financial program adopted by SANDAG to comply with the Congestion Management Program (CMP) , b. To not protest the formation of any future regional impact fee program or facilities benefit district to finance the construction of correctional facilities. 105. Prior to the approval of the first final map after January 11, 2000, as per Section 1 of the Telegraph Canyon Estates Affordable Housing Agreement adopted by Resolution No. 17737, the applicant SCHEDULE "1" :1 de.- -~¿; shall grant in fee three (3) acres of buildable land acceptable to the City of Chula vista within Village One of SPA One of the Otay Ranch in order to satisfy the affordable housing implementation measure contained in the approved Otay Ranch GDP (ref. GDP; section B.2, Pg. 242) and the terms of an existing agreement adopted by Resolution No. 17737. In addition, said existing agreement, dated December 1, 1995, shall be amended to permit the land dedication within Village One. 106. Prior to approval of the first "A" Map, or as otherwise determined by the Director of Planning, within SPA One and consistent with the city's Housing Element, Ranch-Wide and SPA One Affordable Housing Plans, the applicant shall enter into and execute with the City an Affordable Housing Agreement ("SPA One Affordable Housing Agreement") containing, but not limited to, the following provisions: (a) The obligation to provide the total number of low and moderate income units required under the City's Affordable Housing Program, based on the number of dwelling units contained within the Master Tentative Map for SPA One; (b) Identify the overall number of dwelling units within the Master Tentative Map for which the applicant can receive final map approval prior to the applicant selecting and guaranteeing, to the ci ty' s satisfaction, final affordable housing site (s) ; (c) The number of dwelling units within the master tentative map area which can receive building permit authorizations prior to the applicant obtaining building permits for a specified number of the required low income units; and (d.) A description of what information must be provided in subsequent Project Level Affordable Housing Agreements. Upon its approval by the City, the terms and conditions of the SPA One Affordable Housing Agreement shall become conditions of this Resolution, and is hereby incorporated herein by this reference. 107. The Applicant shall pay, prior to approval of the first "B" Map, their proportional share, as determined by the Director of Parks and Recreation, of a collaborative study analyzing local park needs for the area east of the I-80S Freeway. 108. The applicant shall enter into an agreement with the City, prior to approval of each final "B" Map, where the applicant agrees to ensure that all insurance companies are permitted equal opportunity to go out to bid to provide a Cooperative Homeowner's Insurance Program (CHIP). 109. Prior to the approval of the first final "B" Map, the developer shall submit and obtain approval by the City Engineer of an "Improvement Phasing Schedule" which will identify the timing of construction of all backbone facilities noted in the following table. The Improvement Phasing Schedule shall be consistent with the PFFP. COST ITEM TO BE INCLUDED IN FACILITY FINANCING PLAN SCHEDULE "1" 3J?¿ - S--1 East Palomar Street between *Acquisition/Dedication of Paseo Ranchero and La Media Road offsite right of way and between La Media Road and *Construction of full street East Orange Avenue improvements *Acquisition/Dedication of the Paseos in Villages One and Five offsite port ions of open space including the paseo between lots containing the paseos Neighborhoods R-8 and R-9 *Construction of full paseo improvements * Payment of Telegraph Canyon For areas covered by: backbone Basin Drainage DIF streets and all common areas which include, but are not limited to: parks, schools, paseos and open space lots *Construction of pedestrian Pedestrian bridge connecting bridges Village One to Village Five, Village One to Village Two and Village Five to Village Six *Removal of temporary "Temporary Roadway" (Santa improvements Madera Avenue between Telegraph *Restoration of the area to Canyon Road and Morgan Hill original conditions Drive *Construction of full street Permanent public road connecting improvements Filmore Street to East Orange Avenue *Construction of full Transit stop facJ.lities in improvements Villages One and Five *Acquisition/Dedication of Poggi Canyon Channel (onsite and offsite drainage easement offsite) and detention basin *Construction and maintenance (prior to City acceptance) *Construction and maintenance Telegraph Canyon Channel (prior to City acceptance) detention basin *Acquisition/Dedication of Poggi Canyon Sewer Interceptor offsite sewer easement (onsite and offsite) *Upgrading of the existing Poggi Canyon Interceptor required to accommodate C.V.T. 96-04 flows *Construction of the improvements required to connect C.V.T 96-04 to the existing Poggi Canyon sewer improvements (near I-80S) *Installation of interconnect Traffic signals along Telegraph wiring Canyon Road at the intersections with St. Claire Drive, Otay Lakes Road and Paseo Ranchero *Construction of full Open space lots landscaping and irrigation improvements *Construction of full trail Regional trail system improvements SCHEDULE Ill" 3tJC-t CJ ----~---------_...- Security satisfactory to the City shall be provided for the above backbone facilities when their construction is triggered as identified in the approved Improvement Phasing Schedule. In addition to the foregoing, security satisfactory to the City shall be provided to guarantee the construction of the following First Phase Backbone Facilities: 1) One-half of the improvements in East Palomar Street between Paseo Ranchero and La Media including the two full traffic circles in Village One prior to approval of the first "B" Map for Village One. 2 ) The remaining improvements in East Palomar Street within Village One at the time the trigger point is reached in the PFFP for the corresponding "B" Map. 3) Full improvements in East Palomar Street between La Media and East Orange Avenue in Village Five at the time the trigger point is reached in the PFFP for the corresponding "B" Map. 4) Fair share of full improvements for the pedestrian bridge connecting village One to Village Five and fair share of one half of the improvements for the pedestrian bridges connecting Village One to village Two and Village Five to Village six¡ prior to the approval of the first final I1BII Map. The amount of the security for the above noted improvements shall be 110% times a construction cost estimate approved by the City Engineer if improvement plans have been approved by the City, 150% times the approved cost estimate if improvement plans are being processed by the city or 200% times the construction cost estimate approved by the City Engineer if improvement plans have not been submitted for City review. A lesser percentage may be required if it is demonstrated to the satisfaction of the City Engineer that sufficient data or other information is available to warrant such reduction. SCHOOLS 110. Prior to the approval of the first final "B" Map, the applicant shall prepare and submit an application for an amendment to the Otay Ranch General Development Plan replacing the Village Seven High School location with a site in either the area west of Paseo Ranchero in Village One or the northern portion of Village Two. The applicant shall enter into a supplemental agreement prior to approval of the first final map in which applicant agrees to the following: The City shall not issue building permits for more than 1,400 units within SPA One until the City has acted on the proposed plan amendment unless the District consents to the further issuance of such permits. The Applicant shall deliver to the school District a graded high school site including utilities provided to the site and an all weather access road acceptable to the District prior to issuance of the 2,650th building permit (504 students) or upon written request by the District not prior to 1,800 permits. The all weather access road shall also be acceptable to the Fire SCHEDULE "111 :J¿}C-~/ Department. This schedule is subject to modification by the School District as based on District facility needs. 111, The Applicant shall deliver to the School District, a graded elementary school site including utilities provided to the site and an all weather access road acceptable to the District, located within village One, prior to issuance of the SOOth residential building permit (150 students). The all weather access road shall also be acceptable to the Fire Department. This schedule is subject to modification by the School district as based on District facility needs. 112. The Applicant shall deliver to the School District, a graded elementary school site including utilities provided to the site and an all weather access road acceptable to the District, located within Village Five, prior to issuance of the 2,500th residential building permit (750 students). The all weather access road shall also be acceptable to the Fire Department. This schedule is subject to modification by the School District as based on District facility needs. 113. The applicant shall deliver to the School District, a graded elementary school site including utilities provided to the site and an all weather access road acceptable to the District, located west of Paseo Ranchero, prior to issuance of the 4,500th residential building permit (1,350 students). The all weather access road shall also be acceptable to the Fire Department. This schedule is subject to modification by the School District as based on District facility needs. MISCELLANEOUS 114. Include in the Declaration of Covenants, Conditions and Restrictions (CC&R's) provisions assuring maintenance of all streets, driveways, drainage and sewage systems which are private. The city of Chula vista shall be named as party to said Declaration authorizing the City to enforce the terms and conditions of the Declaration in the same manner as any owner within the subdivision. The CC&R' s shall also include language which states that any proposal by the HOA for dedication or conveyance for public purposes of land used for private streets will require prior written approval of 100% of all the Homeowners' Association members. 115. Submit copies of Final Maps and improvement plans in a digital format such as (DXF) graphic file prior to approval of each Final Map. Provide computer aided Design (CAD) copy of the Final Map based on accurate coordinate geometry calculations and submit the information in accordance with the city Guidelines for Digital Submittal in duplicate on 5-1/4" HD or 3-1/2" disks prior to the approval of each Final Map. 116. Tie the boundary of the subdivision to the California System -Zone VI (1983). 117. Prior to approval of the first final map within each Village, the developer shall submit and obtain the approval of the City of SCHEDULE "1" 3{)¿ - ¿f;;¿ a master final map ("A" Map) over the portion of the tentative map within each Village area showing "super block" lots corresponding to the units and phasing or combination of units and phasing thereof. Said "A" map shall also show the backbone street dedications and utility easements required to serve the "super block" lots. All "super block" lots created shall have access to a dedicated public street. Said "A" map shall not be considered the first map as indicated in other conditions of approval unless said map contains single or multiple family lots or a subdivision of the multiple family lots shown on the tentative map. A lot line adjustment, if utilized in accordance with City standards and procedures, shall not be considered the first "A" Map. The subsequent development of a multiple family lot which does not 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, Construction of non-backbone streets adjacent to multiple family lots will not need to be bonded for with the final "A" Map which created such lot. However, such improvements will be required to be constructed under the Municipal Code provisions requiring construction of street improvements under the design review and building permit issuance processes. In the event of a filing of a final map which requires oversizing (in accordance with the restrictions of state law and City ordinances) of the improvements necessary to serve other properties, said final map shall be required to install all necessary improvements to serve the project plus the necessary oversizing of facilities required to serve such other properties. 118. Signage shall be provided at Bouquet Canyon Drive and the pedestrian paseo in village Five and at stanislaus Drive and the pedestrian paseo in village One which alerts motorists to a pedestrian mid-block crossing. A signage plan indicating the location and content of said signs shall be reviewed and approved by the Planning Director prior to approval of the appropriate final "B" Map, as determined by the Planning Director and City Engineer. 119. The Applicant shall secure approval of a Master Precise Plan for the Village One and village Five Core Areas, prior to submitting any development proposals for commercial, multi-family and Community Purpose Facility areas within the SPA One village Cores. 120. Pursuant to the provisions of the Growth Management Ordinance (Section 19.09 of the CVMC) and the Otay Ranch General Development Plan (GDP) , the Applicant shall complete the following: (1) Fund the preparation of an annual report monitoring the development of the community of Otay Ranch. The annual monitoring report will analyze the supply of, and demand for, public facilities and services governed by the threshold standards. An annual review shall commence following the first fiscal year in which residential occupancy occurs and is to be completed during the second quarter of the following fiscal year. The annual report shall adhere to those guidelines noted on page 353, section D of the GDP/SRP; and SCHEDULE "1" 3¿JL - ¿, y (2) Prepare a five year development phasing forecast identifying targeted submittal dates for future discretionary applications (SPAs and tentative maps), projected construction dates, corresponding public facility needs per the adopted threshold standards, and identifying financing options for necessary facilities. 121. The owners of each village shall be responsible for retaining a project manager to coordinate the processing of discretionary permit applications originating from the private sector and submitted to the City of Chula vista. The project manager shall establish a formal submittal package required of each developer to ensure a high standard of design and to ensure consistency with standards and policies identified in the adopted SPA Plan. The project manager shall have a well rounded educational background and experience, including but not limited to land use planning and architecture. 122. The applicant shall submit copies of any proposed CC&R's for review and approval by the Director of Planning and the City Engineer prior to approval of each final "B" Map. 123. Fully accessible handicap access shall be provided at the ends of the following cul-de-sacs: Arteria Street, Glendora Court, Calistoga Avenue, Monte Sereno Avenue, Antioch Avenue, Coalinga Court, Westmoreland Street, Cordelia Street, Iowa Hill Court, Live Oak Street, Marion Court, Lodi Court, Larkspur Court, Santa Lucia Road, Parker Mountain Road, Geyserville Street, Escalon Court, Sheep Ranch, Meeks Bay Drive, Harrills Mill Avenue and Volcano Creek Road. Access via stairs shall be provided at the ends of the following cul-de-sacs: Stanislaus Drive, Amador Street, Woods ford Court, Lockeport Court, Clovis Court, Millbrae Court, Mayfield Court, Cache Creek Road, Jedediah Road, Kingsburg Avenue, and Lassen Peak Street 124. The CPF-2 site located within village One, shall be considered a floating designation and shall be located in Neighborhood R-15. proj ect design for this site will be submitted, reviewed and approved by the Director of Planning concurrently with the Precise Plan for this area. 125. If developer desires to do certain work on the property after approval of the tentative map but prior to recordation of the applicable final "B" Map, they may do so by obtaining the required approvals and permits from the City. The permits can be approved or denied by the City in accordance with the City's Municipal Code, regulations and policies. Said permits do not constitute a guarantee that subsequent submittals (i. e" final "B" Map and improvement plans) will be approved. All work performed by the developer prior to approval of the applicable "B" Map shall be at developer's own risk. Prior to permit issuance, the developer shall acknowledge in writing that subsequent submittals (i.e., final "B" Map and improvement plans) may require extensive changes, at developers cost, to work done under such early permit. The SCHEDULE "1" .3 ~ C - t. i developer shall post a bond or other security acceptable to the city in an amount determined by the City to guarantee the rehabilitation of the land if the applicable final "B" Map does not record. PHASING 126. If the applicant modifies the SPA One approved phasing plan, the applicant shall submit to the City a revised phasing for review and approval prior to approval of the first final "B" Map. The PFFP shall be revised where necessary to reflect the revised phasing plan 127. 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 prior to approval of any final map. 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. 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. The city Engineer and Planning Director may, at their discretion, modify the sequence of improvement construction should conditions change to warrant such a revision. 128. The Public Facilities Finance Plan or revisions hereto 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. The PFFP identifies a facility phasing plan based upon a set of assumptions concerning the location and rate of development within and outside of the project area. Throughout the build-out of SPA One, actual development may differ from the assumptions contained in the PFFP (i.e., the development of EastLake III). Neither the PFFP nor any other SPA One document grant the Applicant an entitlement to develop as assumed in the PFFP, or limit the SPA One's facility improvement requirements to those identified in the PFFP. Compliance with the City of Chula vista threshold standards, based on actual development patterns and updated forecasts in reliance on changing entitlements and market conditions, shall govern SPA One development patterns and the facility improvement requirements to serve such development. In addition, the sequence in which improvements are constructed shall correspond to any future Eastern Chula Vista Transportation Phasing Plan or amendment to the Growth Management Program and Ordinance adopted by the city. The City Engineer may modify the sequence of improvement construction should conditions change to warrant such a revision. Concurrent with the approval of the first final map approved after the PFFP for the EastLake III GDP Area, the Applicant shall update, at the Applicant's expense and subject to a Reimbursement Agreement, the SPA 1 PFFP and agrees that the city Engineer may change the timing of construction of the public facilities, including without limitation, the nature, sizing, extent and timing for the construction of public facilities caused by SPA One, shall become a condition for all subsequent SPA One entitlements, including tentative and final maps. SCHEDULE "1" 3 C;¿-C:, S- CODE REQUIREMENTS 129. Comply with all applicable sections of the Chula Vista Municipal Code. Preparation of the Final Map and all plans shall be in accordance with the provisions of the Subdivision Map Act and the City of Chula vista Subdivision Ordinance and Subdivision Manual. 130. Underground all utilities within the subdivision in accordance with Municipal Code requirements. 131. 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. d. Interim SR-125 impact fee. e. Telegraph Canyon Sewer Basin DIF. f. Poggi Canyon Sewer Basin DIF as may be adopted by the City in the future. g. Telegraph Canyon Basin Drainage DIF. h. Reimbursement District for Telegraph Canyon Road Phase 2 Undergrounding. i. Otay Ranch Reserve Fund fee. Pay the amount of said fees in effect at the time of issuance of building permits. 132. Comply with all relevant Federal, State, and Local regulations, including the Clean Water Act. The developer shall be responsible for providing all required testing and documentation to demonstrate said compliance as required by the City Engineer. 133. Ensure that prospective purchasers sign a "Notice of Special Taxes and Assessments" pursuant to Municipal Code section 5.46.020 regarding projected taxes and assessments. Submit disclosure form for approval by the City Engineer prior to Final Map approval. 134. Comply with Council Policy No. 570-03 if pump stations for sewer purposes are proposed. 135. Comply with Council Policy No. 522-02 regarding maintenance of natural channels within open spaces. 136. The applicant shall comply with all aspects of the City of Chula vista Landscape Manual. SCHEDULE 11111 :1 d C--cf~ 137. The Applicant shall comply with Chapter 19.09 of the Chula vista Municipal Code (Growth Management) as may be amended from time to time by the City. said chapter includes but is not limited to: threshold standards (19.09.04) , public facilities finance plan implementation (19.09.090) , and public facilities finance plan amendment procedures (19.09.100) . The applicant acknowledges that the City is presently in the process of amending its Growth Management Ordinance to add a proposed Section 19.09.105, to establish provisions necessary to ensure compliance with adopted threshold standards (particularly traffic) prior to construction of State Route 125. Said provisions will require the demonstration, to the satisfaction of the City Engineer, of sufficient street system capacity to accommodate a proposed development as a prerequisite to final map approval for that development, and the applicant hereby agrees to comply with adopted amendments to the Growth Management Ordinance. 138. Upon submittal of building plans for small lot single family (5,000 square feet or less as defined in the City of Chula vista Design Manual) residential development, plans shall clearly indicate that 750 square feet of private open space will be provided. 139. The applicant shall apply for and receive a take permit from the appropriate resource agencies or comply with an approved MSCP or other equivalent 10 (a) permit applicable to the property. 140. All proposed development shall be consistent with the Otay Ranch SPA One Planned Community District Regulations. GUARDED AREAS 14l. The following locations as proposed by the applicant are authorized for guarded entrances: Santa Ynez Avenue and Santa Lucia Road in Village One, including the multi-family neighborhoods R-20 and R-21; Santa Rosa Drive and Santa Paula Drive in village Five. Emergency access locations are authorized at Morgan Hill Drive between R-l0 and R-11 in Village One, and Bouquet Canyon Road between R-24 and R-25 in Village Five. 142. Guarded entrances shall not have physical barriers and shall be staffed from dusk until dawn. 143. Parks located within guarded areas shall not receive park credit. 144. All streets within guarded areas shall be designated as private. Design of said streets shall meet the city standards for public streets unless otherwise approved by the City Engineer. Private street cross sections shall conform to those shown on the Tentative Map. 145. All private streets shall be included in separate lots. The applicant shall provide a certificate granting to the City a public utility easement over the entire private street lots on the appropriate Final IIBU Map. SCHEDULE 11111 :?OC-(, ? 146. Guarded entrances shall: a. Require approval by the City Engineer and the Planning Director. b. Provide sufficient room on the private roadway to queue without interrupting traffic on public streets. c. Provide a turn around. The size and location of said turn around shall be approved by the city Engineer. d. Provide a clearly delineated border between public and private streets through the use of distinctive pavements. e. Provide a dedicated parking space for the gate attendant. f. Be equipped with a video camera to record entering and exiting vehicles. 147. The CC&R's shall prohibit "speed bumps" on private streets, The CC&R's shall also include language which states that any proposal by the HOA to delete staffing or to allow "speed bumps" in the future shall require prior written approval of 100% of all the Homeowner's Association members. 148. Physical barriers shall be prohibited at the entrances to guarded areas unless specifically approved by City Council. 149. Emergency entrances shall be provided with mechanical gates and an "opticom" system, or some other automated system with backup and/or fail safe features acceptable to the Police and Fire Chief. 150. Prior to approval of any liB" Map proposing private streets, the applicant shall initiate and complete the process enabling the city to enforce the California Vehicle Code on said private streets. 151. The MHOA shall be responsible for the maintenance and operation of all facilities within the common areas and streets behind the guarded entrance. The facilities to be maintained include, but are not limited to, pavements, sidewalks, street trees, street lights including energy, street sweeping, private drainage facilities and landscaping of private common areas. The only facilities to be maintained by the City are mainline sewers and public concrete drainage facilities (i.e. , pipes and catch basins) . 152. Future property owners shall be notified during escrow, by a document to be initialed by the owners, and approved by the City Engineer and Director of Planning, of the maintenance responsibilities of the MHOA and their estimated annual cost. SCHEDULE "1" 30C-d> ?' ATTACHMENT D ,"::SOLUTION NO, 13905 - R::SOLUïION 0;: ïH:: CfïY COUNCIL 0;: ïH:: ClïY 0;: CHULA VIST A R~GARDING ITS INT~NïION TO ISSU~ TAX ¡:X¡:MPT 03L1GAï10r6 TO ;:INANC~ ïH~ ClïY'S ANIMAL Si-ELER WHEREAS. the City Council of the City of Chula (the "Issuer") desires to finance the costs of acquiring certain public facilities and improvements, as provided in Exhibit A attached hereto and incorporated h=:rein (the "Project"); and \/vH=R~AS, the issuer intends to finance the acquÎsition of the Project or portions of the Project wi¡:h the proceeds of -the sale of obligations the interest upon which is excluded from gross income for federa! Încome tax purposes (the "Obiigations''); and \1\/H::r:\=AS, p...ior to the !ss'Jance of the Obligations the !ssuer desires to incur cer~ain expenditures with respect 10 the Project from available monies of the Issuer which expenditures are desired to be reimbursed by the Iss'Jer from a portion of the proceeds of the sal9 oi the Obligations, NO\V, ïH:::R::::=O,~=, T:-E CiTY CDUNCIL O~ ï:':= ClïY OF CHULA VIS! A DO:::5 H=R::3Y r:::SOLV:::, O;:\D::,=: AND D:::TERMIN::: AS ¡::O~LO\.i\/S: - S=CïION ì. The Issuer hereby states Its i:ltention and reasonably expects to reimburse Project costs incurred põior to the issuance or the Obligations \Nith proceeds of the Obligations. Exhibit A describes eitn9:r the g9neral c:ia,"aCt9r, type, purpose, and function of the Project, or the Tund or a:C·:)U;lt from \N~ich Projec: cos:s a...e to be 8aid and :he general functional p:Jrpos'3 of the fU;l-j or a::courr;:.. 5:::Ci101\1 2" The rS3S:::J.í2biy SX82,::ed íil2x:r:-:"-1:T1 ;-Jri:l:i;J2! 2íTì-:)'-.Jn: aT :~e Ooiìgatio:ls 's $ 3.200.000. SëCTION 3" This resolution is bein~ adoPted 0:1 or prior to the da:e (the "::xpenditures Date or Oates") that the Issuer \tviii eXDend monies for the portion of the ?roject COts to be reimbursed from pr·oceeds of the O~iíçations" S~CTION L, Except as desc:-ìbed below, the expected cate 07 issue or the Obíigations '.vill be within eigh'leen months of the later or the ::xpenditure Date or Dates and the date the Project is piaced in service; provided, the reimbursement may not be made more than three years after the original exp9nditure is paid. F:x Obligations subject to the smal! issuer exception of Section í ~3(f){L)(D) of the Internal fievenue Code, the "eighteen-monlh ¡imit" of the previous s9ntence is changed to "three years" and the 1imitation of the previo'-.1s sent9nce beginning '.vìth "; previded,""". " is not applica":¡ie. S::CTION 5" ,::Jroceeds of the Obíìga:ions to be !Jsed to reimburse for Project costs are not expected to be used, within one year or reimbursement, directlv or indirectJy to pay deb: service with respe·:t to any obligation (oi:her than to pay current debt service coming due within the next succeeding one year period on any tax-exempt obligation of the Issuer (other -- than the Obligations}) or to be held as a re3sona':J!Y required reserve or replacement fund I,t/i:h íespect to an obligation of the Issuer or any entii:y related in any manner to the Issueí, or to reimburse 3ilY eX02.i.j¡:ure that \,\'2S origina!iy pad v/i::¡ the pro::ee-:s of any obligation, or tJ ,3/ ~esoJu~ion ì 3905 ,:Jage 2 replace funds that are or will be used in such manner. SECïlON 6. ïhis resolution IS cOi:sistent "vith the budgetary and fi,"lancial circumstances of the Issuer, as of the date hereof. No monies from sources other than the obligation issue are, or are reasonably expected to be reserved, or otherwise set aside by the Issuer (or any related party) pursuant to their budget or financial policies with respect to the ,:Jroject costs on a long-term basis, To the best of our knowJedge, this Ci'Cy Cou:lcil is not aware of the previous adoption of official intents by the Issuer that have been made as a matter of course for the purpose of reimbursing expenditures and for which tax-exempt o~jigations have not been issued. S=CïION 7, The limitations described in Section 3 and Section':;' :]8 no: a,:Jply :0 (a) c,:;sts of issuance of the Obligations, (bJ an amount not in excess of the lesser of $ ì 00,000 or five percent (5%) of the proceeds of the Obligations. or (c) any preiimJ:lary ex.:>enditures, s:.J::h as architectural, engineering, surveying, soil testing, and similar cos:s other than Jand a:quisition, site preparation, and similar costs incident to commencement of construction, no: În excess of twenty percent (20::;'~) of the aggregate issue price of the Obii;a:io,'ls that 7i,.ances the Project for which the preliminary expenditures were incurred. SECïlON S, Th:s reso!ut!O:ì is a.:Jo:Jted 2$ official acti:Jrì of -.::'e Issuer if"', order ::J , ' , Treasury :::eguJatio,is § 1. ì 50-2 and any Oth9í re;rcJ:a-.:Îo;:s of the Internal ::::O<Tì;JIY \Nltn ,=;e\~'eni...Je Service reiatin;j to the qu::;íificatÎon fo' reimbursement of [ss'....!er eX,:Jeíìd::ures incurred arÎar to the date of issue of the Obligations, is paít of the Issuer's .offic:3! ;Jío:::eedi:l;;s, and Vi;¡J be available f.or inspection by' the genera) public at the main admin:S:í2:ive office of the !ssi..J::r. S:::CïID!\J 9 ;:".!: t~e re'::~a:s Î,í t;í;S ,::;e50!u:i:J."l 2"8 :r:J8 a":' C:Jrre::: ::;::: ::':5 C::'.' ::;'--'.:cii so finds, de:erL.lin8S 2:ìj re:>rese.ítS. -- , ;".pq,-oveJ as to f:Jrí:: by ,.....-r~.se:ite::::: Dy (JL. S~~~ QÁ ).___ /'(/0 C::;-:5 Salomone John l;.i. K'aheny ( Co,-;-¡munity Deve¡o~ment Dire,::or C ,~ / veney 3~ ~es:J¡u-::ion 12903 ?ag~ 3 - ?ASS=D, ,A,???OV:::D, and ADO?T:::D by the CI~"" Cou:-¡::il of :~e CI:Y a~ C:iula V:Sï:~, Caiifornia. this 17th day aT '=e~r:...;ary, i 993, by the following \/a:e: AY:::S: Counc:ilr:l2r7"\bers: Padilla, ;:;inJ8:ìe, Salas a~d ;-;'Jrtan NA Y:::S: Councilmem ':>ers: Moot A3S:::Nï: Counciimernbers: Noœ A3STÞ.,If\:: Counciir:lem':Je:s: None ¿:'//~/j;: ~-:-- ~. ., " / ::::.-:':.'12V :iQ;,zJ:i, r1:2\~'J; t.---~- .-..J I ::;::¡:: ~Ujf¿ (i ÍÌ I ./ LL ~(I() \.1.. " I.L./J/~ ::J;:¡voriv t. i (\ u,:"h~i~,:" '-':':"'y" ::.=--:, ....J..., ~ ,........,......L ~ _., 1..-1. ...,,_, r. 5T A T:: O~ C.~Li~'='~¡"<:A ::our\r:y 0.= s.~rJ =:);::G,J i CIT\;' O~ C~UL..A \.':37,'::". 3e'/2,-i.... /-. .':;'J:~ei:::, :i:y =:2;"":1: :he,:::y 0: Ch..::::: ';5::::, :3: ;:);¡::::, ::::; ~2"'ejy :e;:ify :.....,3: :.12 To;e:;Oin;} ?eSJ;'J~;G:l :\JD. ., :':~'J3 \:.:es duly P2S3:::':, 3:JJ-Tv'e:. a,¡:; a:JoJ:ed ~y ~:'ie City '-.-:Jun:::: 3: 3 ;:;;)'..1:3; ;-':22:::-1;; ); ::'.s '=h·..J~3 V:s:a CI>;' =T~;,::i: :-~~:: ,J..... :i.2 ",7::1 ::::='1 07 ~eb"'t.;a;y. 10;:}:> L-,-,-,. ::X2C',j:2: ::-:~s i 7:,í :2y of F=~:)i'-...:3;-Y. ": ~33. /) ~ßJ2 (} Cb~ ::'.:l\ =...-: 'I ~ I/,. ,.~-' -. ,'-'.. ,"""'1;:1 I, -,~J_,,~ ,-,. ~.-";'_,,:::I:::., ,...,I~Y "-' ~r~, 33 ,.---.-.-.-- "--.-- - - ---.-------. .--------.--.-..--....-.. ,~2SDiu~IO,1 i 3905 ~2º::: 4 ::XHI3iT A D:?scrip:i:J.1 Df ,~,oject -ene ~roposed Animal Shelter oroject is necessery to provide current and tutur" anirr.el control a,íj pet adoption service needs for the Chula Vista community. ïhe current facility on Otay Valley R:Jad has been determined to be i,íajeq~ate. ',le pro~osed project site. with an estimated cost of s570.000. cons'sts of three parcels tJteliin; 2.3.1 acres located on ¡he northwest corn,,, 0; Seyer 'Nay and Fo'urth Avenue just SJ~.J:h of ¡'/;ai.'l Stree;: in the City of Chula ViSl:2. .=i:-:a: T:3cii::y design and corresPCJndin;; cons:;u,::ion C:JS:S have not been determined. ïhe fa:ii!ty is expected to be plan.'ìed Tor the Chl.J::; V~s;:::; ::J:JDu!ation ~- OU:i:<:H.J: \.../;¡ich 1$ ~\ 2St::-:-;ate::: :0 be 277.00:J by the year 2'::3J. cJo~:a:iJ,-, estimates WJCJlj dictate a ;acili:y 0; e: least ~ 3,000 sc, ft, he,l::iling an annual Det :::::"~:a:io,. of 3,OOD-i O,OJJ. The ¡;2xi~urT1 esti.-:la:ec:' :otal COSt of s'.Jch faciiity is ex.::!ec:ed '~::-:J-ex':s2.J $3.2 milji:1n. - 3f COUNCIL AGENDA STATEMENT ".mib Meeting Date 9/22/98 ITEM TITLE: Resolution / 9 / ~ .:2ordering certain changes and modifications to the Engineer's Reponfor Assessment Disnict No. 97-2 (Otay Ranch Village One). SUBMITIED BY: Director of Public Works (fI/ REVIEWED.Y, C¡~M""'~W!ì~ (415"""" Yu_N·XJ On February] O. 1998 the City Council establis ed ~ssment District 97-2 and levied assessments on Otay Ranch Village One, pursuant to the Municipal Improvement Act of 1913, with the purpose of acquiring and financing infrastructure improvements serving that development. Changes in the district boundary requires the Engineer's Repon for this district to be modified. RECOMMENDATION: That Council approve the resolution ordering changes and modifications to the Engineer's Repon for Assessment District No. 97-2. BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. DISCUSSION: The Municipal Improvement Act of 1913 is a financing mechanism which allows the financing of the acquisition or construction of public infrastructure improvements from the proceeds of assessment districts bonds which are repaid from payments collected from the property owners with their property taxes. There is no direct cost to the City. Assessment Disnict No. 97-2 (AD 97-2) is an acquisition district wherein the developer is constructing the public improvements and the City will acquire them upon completion with funds derived from the sale of bonds. Area of Benefit The current boundary of AD 97-2 encompasses all parcels of Village One located east of Pas eo Ranchero. excepting those parcels owned by McMillin Otay Ranch (see Exhibit A). ImDrovements In accordance with City Policy. OIÙy backbone improvements providing full service to the Otay Ranch Village One are proposed in AD 97-2. The developer will finance the construction of the additional facilities required to serve the subdivision. The public improvements proposed to be financed through this acquisition proceeding include: L Paseo Ranchero (four of six lanes) from Telegraph Canyon Road to East Palomar Street 2. East Palomar Street from Paseo Ranchero to the Eastern Boundary of AD 97-2. 3. Monarche Drive around Park P-I 4, Right turn lane at the intersection of Telegraph Canyon Road and Paseo Ranchero. ProDosed Assessments The total amount assessed to the district is $13,778,405. The confmned assessments for AD 97-2 are as follows: ~ 3/-/ , - II --,,- Page 2, hemn Meeting Date 9/22/98 TOTAL Single Family ($fDU) $ 6,325 Multifamily ($fDU) $ 4,429 Commercial ($/acre) $111,000 Community Purpose Facility $ 36,643 (CPF) ($/acre) The Chanl!e and Modification Recently the City approved a Lot Line Adjustment in Village One of the Otay Ranch project which will permit the Otay Ranch Company and McMillin Otay Ranch to perform a land swap at their common boundary (see Exhibit B). After this land exchange is completed, each developer will be able to plan and develop a complete neighborhood in conformance with the approved Tentative Map. The Otay Ranch Company will develop Neighborhoods 12, 13, and 14 and Otay Ranch McMillin will control the development of Neighborhood 12E. Both developers have requested the City to process a Change and Modifications (C&M) to AD 97-2 to make the boundaries of the district consistent with their proposed land swap. The new boundaries of AD 97-2 will exclude that piece of land to be received by McMillin and will incorporate the property to be received by the Otay Ranch Company (see Exhibit C). The total assessment levy on the parcels " , located within the new boundaries of AD 97-2 remains unchanged. Bond Counsel (Brown, Diven Hessell and Brewer) has recommended that since the assessments arc not increasing that a public hearing is not necessary. Therefore, by adopting the proposed resolution, Council will be approving the proposed Change and Modifications to AD 97-2. Future Actions . Approval of the bond sale docwnents (i,e. Official Statement, Bond Indenture, Bond Purchase Agreement) is scheduled for October 20, 1998. . Bond sale is scheduled for early November 1998. FISCAL IMPACT: None to the General Fund. The Otay Ranch Company will pay all costs associated with the "Changes and Modification" to AD97-2, subject to reimbursement from bond sale proceeds.. Exhibits: A· Land Swap B· CWTCllt Boundary Map C· Boundary Map as Modified file.07::!S-10-AD91..{2 H:\HOMEIENGlNEERIAGENDA \97·2CM _1. WPD September 8, 1998 ~ 31'~ - - - - ~ - ! · ~';1 ~ '.::; , - ' \ ~ - ; ~ v I -I! "~ ..,." ~ . ,; ::1 j /1 \\ ,,!!; . i; =~ ... -"_II , ~:> I' _"_"_1'_1' '\~ >- I ~ · u_, , ,. · ,. -, ." 0" ...:Z: I <~ · \ %:1 I c.': : 00 1_0 ' .......CD üz : -~ 1 ~~ I : \ _! lIð ' ~ .. '.. .. J 1fI~ ' Z \ :: ~z I : _ '4 i ¡ ~¡;: . · . - ~ '_u IN :',1' : ; \ '.;' : ~ ~ ©- -' .: ôw _,~ . = ~... : õ. -, z!? ..~ t .. \ . .. 0 . . , . - :; , I ~~ I : \~. I:~ : .. .,.. -« : ."6. s;;. .---____.20...\ . I-IS 7-' ..'__ · ! V- I : ® o.~.,ï. O. ¡ \Y!I · ",- \ : ~: · ~: Z· ; ~,j. , . -, - , .~ :.~.\'," - , D. >-, , ! : ;; ~ .';¡ '. \... 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B~ ¡ :: - -"" mi:m - -- ~," ¡hHi - --!: v1 _ E~~2""" ,,~ =,_,_v ~ D-;,' < ~ - - ~ RESOLUTION NO. /9'/ Jl2 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA, CALIFORNIA, ORDERlNG CERTAIN CHANGES AND MODIFICATIONS IN THE BOUNDARlES OF ASSESSMENT DISTRlCT NO. 97-2 (OT A Y RANCH VILLAGE ONE) AND APPROVING AN AMENDED BOUNDARY MAP WHEREAS, the CITY COUNCIL of the CITY OF CHULA VISTA, CALIFORNIA, has previously initiated proceedings, held a public hearing and assessment ballot procedures pursuant to the terms and provisions of the " MUIÙcipal Improvement Act of 1913", being Division 12 of the Streets and Highways Code of the State of California (the "Improvement Act") and Arúc1e XllID of the Constitution of the State of California (" Anicle XllID"") and the Proposition 218 Omnibus Implementation Act (Government Code Section 53750 and following) (the "Implementation Act") (the Improvement Act, Anicle )CIIID and the Implementation Act are referred to collectively as the "Assessment Law") for an assessment district designated as ASSESSMENT DISTRlCT NO. 97-2 (OT A Y RANCH VILLAGE ONE) (the" Assessment District"); and, WHEREAS, the owners of that property identified Assessment No. 12 and the owner of the property adjacent to the property identified as Assessment No. 12 have requested that the City approve a lot line adjustment which will result in an exchange of cenain property between the property owners; and WHEREAS, such owners have requested changes in the boundaries of the Assessment District to reflect the property exchange; and WHEREAS, the Assessment Engineer, in anticipation of the above referenced lot line adjustment and property exchange, did in the proceedings to consider the formation of the Assessment District originally apponion the costs of the improvements and the special benefits therefrom to reflect the proposed property exchange; and WHEREAS, at this time it appears to this legislative body that cenain changes and modifications in the boundaries of the Assessment District are necessary in order to add cenain property to the Assessment District and to eliminate a porúon of the Assessment District; and WHEREAS, such change and modification in the boundaries of the Assessment District will not result in an increase in the total amount of the assessment or increase the amount of any assessment by reason thereof. NOW, THEREFORE, IT IS HEREBY RESOLVED AS FOLLOWS: SECTION I. The above recitals are all true and correct. SECTION 2. The public interest, conveIÙence and necessity requires, and this legislative body orders certain changes and modifications in the boundaries of the Assessment District as set forth in Amended Assessment Diagram Assessment District No. 97-2 (Otay Ranch Village One), a copy of which is on file in the office of the City Clerk. The City Clerk is hereby authorized and directed to cause a copy of such ~ ~ 3/-6 - - amended assessmem diagram 10 be filed in Ù1e office of Ù1e County Recorder of Ù1e County of San Diego. SECTION 3. The decision and detemúnalion of Ù1is City Council shall be fina1 and conclusive upon all person emitled 10 appeal Ù1ereupon 10 this City Council. PREPARED BY: APPROVED AS TO FORM BY: 0_ ~ Þ John P. Lippil John Kaheny Direclor of Public Works City Anorney H: \shared\engineer\lorraine\resoluú. wpd J 3/~7 JO - " ......-.-- "--------- October 1, 1998 TO: Chula Vista City Council FROM: Shirley Horton, Mayor SUBJECT: Proposition JJ An election will be held in the Chula Vista Elementary School District on November 3, 1998 to authorize the sale of $95 million in general obligation bonds. If approved by two thirds of the voters, it will provide funding for much-needed classroom and facility improvements throughout the Chula Vista Elementary School District. Proposition JJ is important to the future of the education system locally. As you know, tremendous enrollment growth is occurring in all parts of the District and this is placing stress on school facilities. All schools also are feeling the facility crunch of class size reduction, which will be expanded to four grade levels in 1999. Proposition JJ will allow the District to build hundreds of additional classrooms. By providing these classrooms, class size reductions can continue, including expansion to kindergarten. The District has made great strides in recent years to improve many of its oldest schools, some of which are 30 or more years old. Still, much more needs to be done. With Proposition JJ, existing classrooms will be renovated, plumbing, electrical systems, leaky roofs, windows will be repaired, and classes made handicapped accessible. A master plan for modernization, renovation, and new school construction has been developed with specific plans for each school. Every schoOl in the district will see significant improvements, To address citizen concerns, a Citizen's Oversight Committee will be formed to assure that the money generated by Proposition JJ is used to build or improve school facilities, and an audit will be conducted annually by an independent accounting firm. The Chula Vista Elementary School District is a well-managed district with the lowest level of administrative overhead of any district in San Diego County. This means that historically the District has placed the needs of children first. Every child deserves the opportunity to be educated in a safe and secure learning environment. By supporting Proposition JJ, we will do our part to put children first and help to ensure that our children have the tools they need to succeed. SH :3:J/J /1 'J ~ ~_._._.__.--~--- · SCHOOLS p01(Jl :NEW CENTU RY Chula Vista Elementary School District 84 East J Street, Chula Vista, CA 91910 . (619) 425-9600 The Cllul. Vista Elementary School District is committtd 10 pmvidin8 equal educational. cOIItracUng. and cmylnymcnl oprartunilY 10 all in strict com~li~ with aU applicable Stale andFedcrallawsand fe8ulalions. l::n~I~~~~~C~~a~hf~{'~~~~:I~~I\~~~~me~~~:r~~w;;~.n~~~c:,: :~~~r::~ ==~~: ~~~ f~:~¡·c~~lIpfa~~s:;¡t~~~~i~:~ft~sOA~~~k~~~~':~)6Æ~~.340· Any indIVidual WM believes sIhe ha.~ Pamela B. Smith. President Michael A. Speyrer. Vice President Patrick A. Judd. Clerk Sharon Giles. Member Libia S. GiI. Ph.D,. Superintendent Larry Cunningham, Member JJ ß ~::2-. --..- . - --------.-----------------. ----- Proposition JJ Fingertip Facts If Proposition JJ is supported by two of three voters, citizens of Chula Vista Elementary School District will see: 1. Repair and renovation provided for all schools to meet modern standards for safety and educational programs with specific emphasis on technology 2. District class size reduction efforts supported, including addition of kindergarten 3. All schools handicap accessible 4. Relief from overcrowded schools 5. Equity in school facilities between new and established communities 6. Site specific plans with something for all schools 7. The District in position to receive over $13 million of matching State school construction funds 8. $38 million for renovation and modernization of existing schools 9. $57 million for school facilities construction 10. Taxpayer cost on average less than $1.60 per month per $100,000 assessed valuation or $18.93 per year per $100,000 assessed valuation 11. Mello-Roos assessments offset by general obligation bond tax; Community Facilities District residents don't pay twice!! 12. $95 million total bond authorization 13. An independent citizens oversight committee to ensure funds are used as planned i :J54~3 .'---_.--_.___-___0--.. "Schools for a New Century" Information Guide to Proposition JJ Table of Contents Message from Chula Vista Mayor Shirley Horton and Superintendent Libia S. GiI ...............,..................................,..,....... Page 2 Introduction to Proposition JJ ............................................................................... Page 3 · What the Chula Vista Elementary School District will receive if Proposition JJ passes School Needs/Age of Schools.............................................,............................... Page 4 How Facility Needs Were Determined ............................................................... Page 5 · New Schools, Mello-Roos Assessments, and Proposition JJ · Projected Growth Frequently Asked Questions about Proposition JJ ...................,...................... Page 6 Chula Vista Elementary School District Priority................................................ Page 10 Ten-Year Facility Improvement Plan San Diego County Public School District Budget............................................Page 51 News article "School bond bid is going on ballot," by Lillian Salazar Leopold, Union-Tribune ........................................... Page 54 News article "...and school bond, too" from the Union- Tribune.. ......... .......... ................ .... ................ ............ ..... ......... .......... Page 55 District Administrative Services ................................................,..,....................... Page 56 District Vision and Values ..................................................................................... Page 57 District Student-Based Decision Making .......,................................................... Page 59 -1- 334~r -----, ----- "'-"'- -----..---..--...-.--.....-.--......--...--.-- -~----_._---_..__._--- A Message From THE MAYOR of the City of Chula Vista and the SUPERINTENDENT of the Chula Vista Elementary School District You are about to embark upon what will be one of the most important public policy undertakings of the 20th Century. As we move into the 21 st Century we find that 80 percent of our Chula Vista Elementary School District schools are over 25 years in age and ill prepared to adequately provide for our students and community. The school district has made great strides to improve its oldest schools, but more remains to be done. A master plan for modemization, renovation, and new school construction has been developed with specific plans outlined for each school. Proposition JJ has been placed on the November ballot by the Chula Vista Elementary School District. If approved by two thirds of the voters, every school in the District will see significant improvements. We are confident that monies from Proposition JJ will be well spent. An independent citizens oversight committee will be appointed to oversee the program. Furthennore, children are the priority of our local elementary school district as demonstrated by dollars going directly to students and their educational program. An independent study identified the Chula Vista Elementary School District as having the lowest centralized administrative overhead of any County school district. Please join together on November 3, 1998 and vote. Children in the Chula Vista Elementary School District are the future of our community. T~YHorton ~ S. LJa¡g Dr. Libia S. Gil, Superintendent Mayor, City of Chula Vista Chula Vista Elementary School District -2- 3:Jt7'~ Introduction to Proposition JJ Schools in many parts of the Chula Vista Elementary School District have aged, and all are feeling the facility crunch of class size reduction which will be expanded to four grade levels (K-3) in 1999. In addition, tremendous enrollment growth in all parts of our District is placing great stress on school facilities. Our schools need to be expanded, repaired, and renovated to meet the needs of the 21 st Century. Many schools do not have sufficient electrical capacity to fully utilize computer networking and Internet connections placed in all classrooms. Modern phone and communication systems are also absent in many classroorns. The Chula Vista Elementary School District is a well-managed District with the lowest level of administrative support of any district in San Diego County. This means that historically the District has placed the needs of children first. In the last two years combined, District general fund and state funds have provided for nearly $30 rnillion of health, safety, and modernization initiatives in District schools. Yet more remains to be done. Proposition JJ is a general obligation bond that will provide funding to expand modernization efforts to all District schools, provide funding for new classrooms, alleviate facility impact of class size reduction, help us expand class size reduction to kindergarten, and ensure that our students are educated in healthier and safer learning environments. Every school in the Chula Vista Elementary School District will benefit if Proposition JJ is passed. It will cost, on average, less than $20.00 per year per $100,000 of assessed valuation. Current legislative initiatives in Sacramento will, in the future, require District match for any State modernization or new school construction grants. Additionally, the District may soon be required to attempt a local bond before full mitigation for new development can be required. Without the capability to house new enrollment growth, our schools will become severely crowded. We need to maintain our local mitigation plan, and Proposition JJ would help us accomplish this task. It allows the District to continue its demand on developers to provide adequate school housing and will also provide for school facility construction. In order to pass, Proposition needs 66.7 percent of the vote -- that's two "yes" votes for every "no." You can vote on Proposition JJ on Tuesday, November 3, 1998 at your regular polling place. You can receive a voter registration form in the mail by telephoning the California Voter Registration Hotline at (800) 345-VOTE (or contacting your neighborhood school). What Our School District Will Receive if Proposition JJ Passes: · Improve facilities to house classes with 20 students per teacher in grades K-3 · Enhance electrical service to power technology and expanded facilities · Build new classrooms and schools · Ensure renovation and modernization of all District schools and classrooms · Provide enhanced handicap accessibility in all schools · Help qualify the District for millions of dollars of State matching grant funds · Meet criteria to allow continued full mitigation for local development -3- 33<"9 --¿ School Needs/AQe of Schools Renovation and upgrade of schools include important elements for the educational program. Electrical service and wiring is essential for technology upgrades. Basic safety, health, and hygiene upgrades address the District's strategic goal to provide a safe and secure learning climate. Every school in the District will receive the benefit of this facility improvement program. As you can see below, many of our schools are old with 80 percent 25 years or older. School Year Built Age in 1998 Sunnyside 1916 82 Lilian J. Rice 1938 60 Hilltop Drive 1943 55 Vista Square 1944 54 Montgomery 1945 53 Allen 1946 52 Feaster 1950 48 Castle Park 1952 46 Rosebank 1952 46 Harborside 1953 45 Hazel Goes Cook 1955 43 Robert L. Mueller 1955 43 J. Calvin Lauderbach 1956 42 Karl H. Kellogg 1958 40 Palomar 1959 39 Halecrest 1961 37 Myrtle S. Finney 1961 37 Greg Rogers 1962 36 Loma Verde 1964 34 Fred H. Rohr 1965 33 Valle Lindo 1967 31 Silver Wing 1968 30 Valley Vista 1969 29 Parkview 1970 28 Juarez-Lincoln 1970 28 Los Altos 1971 27 Tiffany 1975 23 Otay 1975 23 Chula Vista Hills 1989 9 EastLake 1990 8 Clear View 1991 7 Discovery 1993 5 Olympicview 1995 3 -4- J3/l~ ? . '.--- ..._-------------~- -----,- -~--- How Facilitv Needs Were Determined In 1991 the Chula Vista Elementary School District began a process of evaluating and assessing District facility needs. Specific attention was given to 30-year or older schools. Application was made to the State Office of Public School Construction for modernization funding. In the spring of 1996, State Proposition 203 was passed and the District began an extensive modernization project. Eleven of the oldest District schools received nearly $15 million state funding and over $8 million of District general fund dollars. These funds provided for complete classroom renovation and modernization. Additionally, the District has recently constructed a new school (Casillas Elementary), has provided $3 million for retrofit of unsafe air-conditioning and heating systems, and has placed over $3 million of facilities for kindergarten, first, second and third grade class size reduction. These projects have established templates for establishing long range, Districtwide facility needs. Costs have been established on a school-by-school basis using current construction costs experienced with recent facility construction, renovation, and repair. Currently, most schools are operating at or above their established maximum enrollment and 11 other schools have reached the 30 year old threshold for modernization. Applications to the State Office of Public School Construction are on file and with local matching funds, would result in excess of $13 million of state funding coming to the District. Additionally, seven other schools are approaching the 30 year mark and all have large facility improvement needs. Even our newest schools have felt the facility impact of reducing class size from 20 students per teacher from the prior standard of thirty-one to one. New Schools, Mello-Roos Assessments, and Proposition JJ Recent, newly-constructed schools have been built utilizing Mello-Roos Bonds with debt service managed from assessments in these Community Facility Districts, Mello-Roos Agreements are worded so that homeowners and land owners will not pay twice, If passed, taxes assessed for Proposition JJ would be used in new communities to help build needed school facilities and at the same time reduce all Mello Assessments by a similar amount. Under Proposition JJ, all property owners will have the opportunity to support school facility development and renovation. Additionally, Proposition JJ will qualify the District to continue its program to receive full mitigation for new development and will provide local dollars to help seek matching state dollars for both new school construction and modernization of older schools. Projected Growth The Chula Vista Elementary School District has been experiencing steady 2 percent to 3 percent growth for the last ten years. In the last two years, and projected into the next ten years, the District will grow at a rate beyond the historical standard. Currently, the District is the largest elementary school district in the state and provides services to more than 21,000 students. Class size reduction has created a huge need for additional space. Currently, the District has a need for 1,257 classroom seats to provide standard classroom space, room for schools of choice, and neighborhood students. If approved, Proposition JJ will help the District keep pace with growth. -5- 3J>1~~ FREQUENTLY ASKED QUESTIONS ABOUT PROPOSITION JJ Q. What is Proposition JJ? A:. Proposition JJ is a general obligation bond measure that will provide funding for new schools, more classrooms to help reduce class size, and improvements to infrastructure and school facilities in the Chula Vista Elementary School District. Q, What would the passage of Proposition JJ mean to our School District? A: Existing classrooms, most of which are over 25 years old, would be repaired and renovated. Plumbing and electrical systems would be repaired. Classrooms would be rewired to allow for today's computer technology. Handicapped access would be provided as required by law. Existing libraries would be upgraded and/or expanded. Hundreds of new classrooms would be built or purchased. By providing these additional classrooms, class size reduction can continue and our children will have a greater opportunity to go to their neighborhood school or select a school of choice. The Chula Vista Elementary School District will not only keep pace with growth, but also a technologically advanced world. Children will have a safer and healthier environment. Q. When can I vote on Proposition JJ? A: Tuesday, November 3, 1998, is the day you can vote on Proposition JJ. In order to pass, the bond needs 66.7 percent of the vote. That's two ''yes'' votes for every "no." Q, What is a general obligation bond? A: General obligation bonds fund projects such as new classrooms and the renovation of certain buildings. Similar to a home loan, general obligation bonds are repaid while the project is being used - typically over 25 years. The loan repayment comes from a tax on all property located within the District boundaries: residential, commercial, agricultural, and industrial. This funding method is widely used by school districts throughout California. Q. How much will my property taxes be raised under Proposition JJ? A: Property owners on average will pay less than $1.60 a month or $18.93 a year on $100,000 of assessed valuation. Total bonding requested is $95 million. -6- 35/J~1 Q. Will the tax go up annually? A: On the average, the rate will be $18.93 or less than $1.60 per month per assessed valuation of $100,000. Q. What is assessed valuation? A: Do not confuse assessed valuation with market value. Assessed valuations are typically much lower than a property selling price. Check your property tax statement for your current assessed valuation or call the San Diego County Assessor's Office for more information. Q. Are any school bonds currently outstanding in Chula Vista? A: No. Q, If Proposition JJ passes, for how many years will the bonds be issued? A: School bonds will be issued for 25 years. Q. What can Chula Vista Elementary School District do with the bond money? A: By law, bond money can only be used to build or improve school facilities. The payment of salaries or operating expenses is strictly prohibited. Q. How did the School District determine the $95 million figure? A. The combined needs of modernization for older schools and obligations to size the bond commensurate with growth in undeveloped land to the east generated the $95 million figure. This will provide for match money for state school construction grants, provide modernization and improvements to current schools, and help support growth needs All older schools will be renovated and new schools will be built under Proposition JJ. Q, How did the District determine the District's facilities needs? A: District staff, architects, contractors, and developers studied city plans, school site surveys, and toured school campuses to gather first-hand information. A team of architects and engineers have studied each school and have prepared a comprehensive construction document. The plan has been reviewed by facilities experts, District staff, and School Board members. -7- J3/9 -/tJ Q, Why does the District need more classrooms? A. There are a number of reasons why Chula Vista Elementary School District needs to build new schools and classrooms. The District is 99% full. The city of Chula Vista has grown enormously in the last 20 years, and crowding is widespread throughout the District. A "baby boomlet" is making its way through our schools -- this year's first-grade class is the largest in District history. Perhaps most unexpectedly, the state implemented a new program in 1996 that funds smaller class sizes in the early elementary years but has not provided full funding for facilities. Q, How have repair needs at schools happened faster than the District could keep up? A: The State cannot and will not fund all of our necessary renovations. Last year, we were eligible for approximately $475,169 from the State for repair and maintenance projects. For schools which average 36 years in age, this amounts to $14,000 per site. This same shortfall occurs year after year. Q: Couldn't the Chula Vista Elementary School District switch to a multi-track, year-round education to use the existing schools on a full-time basis, reducing the need for new schools? A: Parents and community overwhelmingly agree that multi-track, year-round education would negatively impact the quality of life in Chula Vista. In addition, single track, year-round education does not create extra classroom/facility space. Q: If Proposition JJ passes, when will work on schools begin? A: Immediately. Q: My children are grown up and have moved away, why should I care about this bond proposition? A: Proposition JJ is an investment in our community. Proposition JJ projects will generate construction jobs and stimulate our local economy. Improvements made in local neighborhood schools will enhance everyone's property values. Q: What about using lottery money for these projects? A: Lottery money cannot be used for construction or repairs to facilities. It is used to support direct services to students and the educational program. -8- 3)/J--// "1 ~-_.. ,----."------..----".- Q: Why aren't developers required to build new schools? A: Under state law, developers are required to contribute a certain amount of funds to offset the cost of growth. Developers in the Chula Vista Elementary School District have entered into Mello-Roos agreements, or other plans that provide new schools. Proposition JJ would allow the District to possibly get matching state funds and continue our program for full mitigation of development. If passed, homeowners in Mello-Roos districts will not need to pay double. Q: What happens if Proposition JJ fails? A: The Chula Vista Elementary School District will continue to have wide gaps in the quality of educational facilities and our District Vision and Values will not be met. Q. What's in it for my neighborhood? A: A list of specific improvements for the school in your area is available from the District office or by contacting the principal of the school nearest your home. Q: What if I live in the City of San Diego or the County, can I still vote? A: All registered voters within the Chula Vista Elementary School District boundaries in the City of Chula Vista, portions of San Diego County, and portions of San Diego City will have the opportunity to vote on Proposition JJ. Q: Who can I talk to at the District if I have other questions on Proposition JJ? A: Assistant Superintendent, Business Services and Support, Lowell Billings can be reached by calling (619) 425-9600 extension 1370, -9- :1:1/1;1 tP- Chula Vista Elementary School District TEN-YEAR FACILITY IMPROVEMENT PLAN PRIORITIES 1 - 5 Proposition JJ Requires Two-Thirds Voter Support on November 3, 1998 -10- .13/7 //:3 ..----.--. Chula Vista Elementary School District PRIORITY 1 37/-9-/( Cook Priority 1 Handicap Compliance Casework Roofing Doors/Hardware Ceilings Paint Tack Surface Whiteboards Teaching Walls Window Treatment Plumbing HVAC Electrical Rest Room Renovation Asbestos Removal (as needed) Structural Repair (as needed) Concrete/Walkway Repair (as needed) Furniture and Equipment Replacement Terrazzo Polish Finish Carpet Vinyl Flooring Multipurpose Room Upgrade Signage Child Nutrition Area Upgrade Sun Shelter Construction Library Remodel Drinking Fountain Addition/Replacement Phone/Security Upgrade Playground Renovation Safety Improvement Anticipated State Funding $ 1,074,234 District Share 1.773,899 TOTAL $ 2,848,133 37/9-/; _ "_ _.__~__u__________ - -~~---, Finney --...-~-,,'~~-, ':i!Ç",'"' Priority 1 Handicap Compliance Casework Roofing Doors/Hardware Ceilings Paint Tack Surface Whiteboards Teaching Walls Window Treatment Plumbing HVAC Electrical Rest Room Renovation Asbestos Removal (as needed) Structural Repair (as needed) Concrete/Walkway Repair (as needed) Furniture and Equipment Replacement Terrazzo Polish Finish Carpet Vinyl Flooring Multipurpose Room Upgrade Signage Child Nutrition Area Upgrade Sun Shelter Construction Library Remodel Drinking Fountain Addition/Replacement Phone/Security Upgrade Playground Renovation Safety Improvement Anticipated State Funding $ 667,100 District Share 2.652.900 TOTAL $ 3,320,000 33/1 ~/? Halecrest Priority 1 Handicap Compliance Casework Roofing Doors/Hardware Ceilings Paint Tack Surface Whiteboards Teaching Walls Window Treatment Plumbing HVAC Electrical Rest Room Renovation Asbestos Removal (as needed) Structural Repair (as needed) Concrete/Walkway Repair (as needed) Furniture and Equipment Replacement Terrazzo Polish Finish Carpet Vinyl Flooring Multipurpose Room Upgrade Signage Child Nutrition Area Upgrade Sun Shelter Construction Library Remodel Drinking Fountain Addition/Replacement Phone/Security Upgrade Playground Renovation Safety Improvement Anticipated State Funding $ 726,760 District Share 2.306.240 TOTAL $ 3,033,000 33ff /? ,AT "- - -. - .-. --- ~._._...._--_._-_._.._-_..._--_._--_.~-----_._- Lauderbach Priority 1 Handicap Compliance Casework Roofing Doors/Hardware Ceilings Paint Tack Surface Whiteboards Teaching Walls Window Treatment Plumbing HVAC Electrical Rest Room Renovation Asbestos Removal (as needed) Structural Repair (as needed) Concrete/Walkway Repair (as needed) Furniture and Equipment Replacement Terrazzo Polish Finish Carpet Vinyl Flooring Multipurpose Room Upgrade Signage Child Nutrition Area Upgrade Sun Shelter Construction Library Remodel Drinking Fountain Addition/Replacement Phone/Security Upgrade Playground Renovation Safety Improvement Anticipated State Funding $ 1,367,486 District Share 1.617.514 TOTAL $ 2,985,000 3J/J ~~ Lorna Verde Priority 1 Handicap Compliance Casework Roofing Doors/Hardware Ceilings Paint Tack Surface Whiteboards Teaching Walls Window Treatment Plumbing HVAC Electrical Rest Room Renovation Asbestos Removal (as needed) Structural Repair (as needed) Concrete/Walkway Repair (as needed) Furniture and Equipment Replacement Terrazzo Polish Finish Carpet Vinyl Flooring Multipurpose Room Upgrade Signage Child Nutrition Area Upgrade Sun Shelter Construction Library Remodel Drinking Fountain Addition/Replacement Phone/Security Upgrade Playground Renovation Safety Improvement Anticipated State Funding $ 681,880 District Share 1.591.120 TOTAL $ 2,273,000 3;1/1-/9 ----- ------._.._._~~.__.._.._--- Mueller Priority 1 Handicap Compliance Casework Roofing Doors/Hardware Ceilings Paint Tack Surface Whiteboards Teaching Walls Window Treatment Plumbing HVAC Electrical Rest Room Renovation Asbestos Removal (as needed) Structural Repair (as needed) ConcretelWalkway Repair (as needed) Furniture and Equipment Replacement Terrazzo Polish Finish Carpet Vinyl Flooring Multipurpose Room Upgrade Signage Child Nutrition Area Upgrade Sun Shelter Construction Library Remodel Drinking Fountain Addition/Replacement Phone/Security Upgrade Playground Renovation Safety Improvement Anticipated State Funding $ 1,392,950 District Share 1.017.450 TOTAL 2,410,400 33d~;:¿O Palomar Priority 1 Handicap Compliance Casework Roofing Doors/Hardware Ceilings Paint Tack Surface Whiteboards Teaching Walls Window Treatment Plumbing HVAC Electrical Rest Room Renovation Asbestos Removal (as needed) Structural Repair (as needed) Concrete/Walkway Repair (as needed) Furniture and Equipment Replacement Terrazzo Polish Finish Carpet Vinyl Flooring Multipurpose Room Upgrade Signage Child Nutrition Area Upgrade Sun Shelter Construction Library Remodel Drinking Fountain Addition/Replacement Phone/Security Upgrade Playground Renovation Safety Improvement Anticipated State Funding $ 1,357,566 District Share 1.257.430 TOTAL $ 2,614,996 ;?3/l ~:2/ .'.. _..H..._..~ . ___"_'_'_____"_ __"_______m_.'..~__.___ _ __ __ _ _ k____~_·__.__...."__.___. Rogers Priority 1 Handicap Compliance Casework Roofing Doors/Hardware Ceilings Paint Tack Surface Whiteboards Teaching Walls Window Treatment Plumbing HVAC Electrical Rest Room Renovation Asbestos Removal (as needed) Structural Repair (as needed) ConcretelWalkway Repair (as needed) Furniture and Equipment Replacement Terrazzo Polish Finish Carpet Vinyl Flooring Multipurpose Room Upgrade Signage Child Nutrition Area Upgrade Sun Shelter Construction Library Remodel Drinking Fountain Addition/Replacement Phone/Security Upgrade Playground Renovation Safety Improvement Anticipated State Funding $ 356,360 District Share 3.720.640 TOTAL $ 4,077,000 :1..3,4 ~ 2 ;:L Rohr Priority 1 Handicap Compliance Casework Roofing Doors/Hardware Ceilings Paint Tack Surface Whiteboards Teaching Walls Window Treatment Plumbing HVAC Electrical Rest Room Renovation Asbestos Removal (as needed) Structural Repair (as needed) Concrete/Walkway Repair (as needed) Furniture and Equipment Replacement Terrazzo Polish Finish Carpet Vinyl Flooring Multipurpose Room Upgrade Signage Child Nutrition Area Upgrade Sun Shelter Construction Library Remodel Drinking Fountain Addition/Replacement Phone/Security Upgrade Playground Renovation Safety Improvement Anticipated State Funding $ 772,060 District Share 1.677.940 TOTAL $ 2,450,000 J3/J r-.23 -- -- - ...--.--- .'.-.-,---.,.,.__.-- Silver Wing Priority 1 Handicap Compliance Casework Roofing Doors/Hardware Ceilings Paint Tack Surface Whiteboards Teaching Walls Window Treatment Plumbing HVAC Electrical Rest Room Renovation Asbestos Removal (as needed) Structural Repair (as needed) Concrete/Walkway Repair (as needed) Furniture and Equipment Replacement Terrazzo Polish Finish Carpet Vinyl Flooring Multipurpose Room Upgrade Signage Child Nutrition Area Upgrade Sun Shelter Construction Library Remodel Drinking Fountain Addition/Replacement Phone/Security Upgrade Playground Renovation Safety Improvement Anticipated State Funding $ 744,320 District Share 1.998.680 TOTAL $ 2,743,000 33~--ø2Y Valle Lindo Priority 1 Handicap Compliance Casework Roofing Doors/Hardware Ceilings Paint Tack Surface Whiteboards Teaching Walls Window Treatment Plumbing HVAC Electrical Rest Room Renovation Asbestos Removal (as needed) Structural Repair (as needed) Concrete/Walkway Repair (as needed) Furniture and Equipment Replacement Terrazzo Polish Finish Carpet Vinyl Flooring Multipurpose Room Upgrade Signage Child Nutrition Area Upgrade Sun Shelter Construction Library Remodel Drinking Fountain Addition/Replacement Phone/Security Upgrade Playground Renovation Safety Improvement Anticipated State Funding $ 715,760 District Share 1.676.240 TOTAL $ 2,392,000 JJff"~ Chula Vista Elementary School District PRIORITY 2 J3/l--;¿b ~_._. .-.".,-- -. ....--""-..,.-- -;.+.;~.. Juarez-Lincoln Priority 2 HV AC Renovation $ 200,000 Asphalt Installation Repair/ Expand Parking 120,000 Gas/Water/Sewer 70,000 Playground Safety Enhancements 75,000 Library/Media Center 100,000 Child Nutrition Center Renovation 100,000 Replace/Repair Tack Walls 75,000 Install New Ceilings 50,000 Whiteboards 20,000 Carpet 100,000 Teaching Walls/Casework 160,000 Furniture Equipment 100.000 TOTAL $ 1,170,000 3Y/J--;Z) ---~-------"~--------...._------ Los Altos Priority 2 HV AC Renovation/Duct Repair $ 50,000 Gas/Water/Sewer 70,000 Playground Safety Enhancements 75,000 Child Nutrition Center Renovation 100,000 Replace/Repair Tack Walls 75,000 Install New Ceilings 50,000 Whiteboards 20,000 Carpet 100,000 Teaching Walls/Casework 160,000 Exterior Building 30,000 Furniture and Equipment 1 00,000 TOTAL $ 830,000 33/9 '--;L~ Otay Priority 2 HV AC Renovation $ 30,000 Gas/Water/Sewer 70,000 Playground Safety Enhancements 75,000 Child Nutrition Center Renovation 100,000 Replace/Repair Tack Walls 75,000 Install New Ceilings 50,000 Whiteboards 20,000 Carpet 100,000 Teaching Walls/Casework 160,000 Furniture and Equipment 100.000 TOTAL $ 780,000 3J/9---c2~ ---- -_.._----~-- Parkview Priority 2 HV AC Renovation $ 300,000 Gas/Water/Sewer 70,000 Playground Safety Enhancements 75,000 Child Nutrition Center Renovation 100,000 Replace/Repair Tack Walls 75,000 Install New Ceilings 50,000 Whiteboards 20,000 Carpet 100,000 Teaching Walls/Casework 160,000 Exterior Building Repair 25,000 Furniture and Equipment 100,000 TOTAL $ 1,075,000 33/1-51) Tiffany Priority 2 HV AC Renovation $ 300,000 Asphalt Installation Repair/ Expand Parking 50,000 Gas/Water/Sewer 70,000 Playground Safety Enhancements 75,000 Child Nutrition Center Renovation 100,000 Replace/Repair Tack Walls 75,000 Install New Ceilings 50,000 Whiteboards 20,000 Carpet 100,000 Teaching Walls/Casework 160,000 Exterior Building Repair 20,000 Furniture and Equipment 100.000 TOTAL $ 1,120,000 J3/9 --'3 / Valley Vista Priority 2 Optimize HV AC/Replace Duct Work $ 150,000 Asphalt Repair/Replacement 50,000 Gas/Water/Sewer 70,000 Playground Safety Augmentation 85,000 Exterior Repair 30,000 Child Nutrition Center Renovation 100,000 Carpet Replacement 100,000 Teaching Walls/Casework 160,000 Install Ceiling Tiles 50,000 Repair/Replace Tack Walls 75,000 Exterior Building Repair 50,000 Furniture and Equipment 100,000 TOTAL $ 1,020,000 33/9'- 3 2- Chula Vista Elementary School District PRIORITY 3 3:Jô "';?J -- -_._,._---,~,_.~._.~-~._----_._.__. Allen/Ann Daly Priority 3 Roof Replacement $ 140,000 Playground Safety Renovation 40,000 Exterior Building Repair 50,000 Sidewalk Replacement 40,000 Asphalt Removal/Replacement 40,000 Child Nutrition Center Renovation 100,000 Gas/Water/Sewer 70.000 TOTAL $ 480,000 3;J/l r 31 Castle Park Priority 3 Roof Replacement $ 100,000 Playground Safety Renovation 80,000 Exterior Building Repair 50,000 Improve Parking and Lighting 30,000 Child Nutrition Center Renovation 100,000 Playground Asphalt Replacement 60,000 Gas/Water/Sewer 70.000 TOTAL $ 490,000 J;3/J --:;S- .._-,._~--_.~._-_.--_._._- Feaster-Edison Priority 3 Roof Replacement $ 100,000 Playground Safety Renovation 80,000 Playfield Renovation 50,000 Exterior Building Repair 50,000 Expand/Improve Parking/Lighting 50,000 Child Nutrition Center Renovation 100,000 Gas/Water/Sewer 70.000 TOTAL $ 500,000 33A--30 Harborside Priority 3 Roof Replacement $ 80,000 - Asphalt Playground Replacement 45,000 Playground Safety Enhancement 50,000 Exterior Building Repair 50,000 Improve Parking Lighting 50,000 Child Nutrition Center Renovation 100,000 Gas/Water/Sewer 70.000 TOTAL $ 445,000 33A-~;? ) -- ---'~-"--'--------"--"'----""--- Hilltop Priority 3 Playground Safety Enhancements $ 75,000 Child Nutrition Center Renovation 100,000 Gas/Water/Sewer 70,000 Exterior Building Repair 50,000 Roof Replacement 90.000 TOTAL $ 385,000 J;?/J-;Jr Kellogg Priority 3 GasIWater!Sewer $ 70,000 Roof Replacement 100,000 Playground Renovation! Safety Enhancements 50,000 Exterior Building Repair 50,000 Child Nutrition Center Renovation 1 00.000 TOTAL $ 370,000 37/l~J) Montgomery Priority 3 Roof Replacement $ 80,000 Playground Safety Enhancement 55,000 Exterior Building Repair 100,000 Improve Parking Lighting 50,000 Child Nutrition Center Renovation 100,000 Gas/WaterlSewer 70,000 TOTAL $ 455,000 33/? ~1¿} Rice Priority 3 Roof Replacement $ 80,000 Playground Safety Renovation 80,000 Renovate Playfield 50,000 Exterior Building Repair 50,000 Child Nutrition Center Renovation 100,000 GaslWater/Sewer 70.000 TOTAL $ 430,000 :J3/9 - ~/ Rosebank Priority 3 Playground Safety Enhancements $ 75,000 GaslWater/Sewer 70,000 Exterior Building Repair 50,000 Roof Replacement 75.000 TOTAL $ 270,000 3:3/9 --~;2 Sunnyside Priority 3 Roof Replacement $ 60,000 Playground Safety Renovation 40,000 Exterior Building Repair 50,000 Asphalt Removal/Replacement 30,000 Child Nutrition Center Renovation 100,000 Gas/Water/Sewer 70,000 TOTAL $ 350,000 33/9 --7;5 ____,.__..."'.._ . n___. . Vista Square Priority 3 Roof Replacement $ 100,000 Playground Safety Enhancement 55,000 Exterior Building Repair 50,000 Improve Parking Lighting 50,000 Child Nutrition Center Renovation 100,000 Gas/Water/Sewer 70.000 TOTAL $ 425,000 3;1/9 ~ 1/1 Chula Vista Elementary School District PRIORITY 4 r-- 3J/J-7~ 1 - --_.__._-~---~-_._--_..._.__.- Casillas Priority 4 Block Grant $ 50,000 3J/J--1/~ Chula Vista Hills Priority 4 Block Grant $ 200,000 3J/ì~L/? . ~~--_..~-----_..~ Clear View Priority 4 Block Grant $ 200,000 33/1 ~f 2" Discovery Priority 4 Block Grant $ 200,000 3Jff "1/1 .~-- .. _ __.,__ '~'··._H."____........_.____"__ EastLake Priority 4 Block Grant $ 200,000 33/J ~ Ç¿;) Olympicview Priority 4 Block Grant $ 200,000 ]']/1- -- S-f --...--- Chula Vista Elementary School District PRIORITY 5 3'3/9 ~~;)- Education Service and Support Center Priority 5 Relocate Corporate Yard to Industrial Area $ 4,000,000 .3;3ff-3'3 · Second Annual Analysis of San Diego County Public School Distrtct Budgets for the Girard Foundation By Steven B. Frates and Eric S. Norby June 1998 Rose Institute of State and Local Government Claremont McKenna College Claremont. CA 91711-6420 (909) 621-8159 -51- :3 )/9-.50/ Preface This Is the second annual analysis of San Diego County public school budgets conducted by the Rose Institute of State and Local Government at Claremont McKenna College, This report was comm1ssioned by the Girard Foundation, of La Jolla, California, The authors wish to acknowledge the strong support and assistance provided by the Girard Foundation Advisory COmm1ttee, an advisory group of prominent San Diego citizens, who provided invaluable assistance in the development of this report, Thanks go also to Laura Fleming and JoAnn DePlano of the Girard Foundation, who were most helpful. The authors met frequently with a group of school distrtct finance staff personnel. led by Owen Sweeny and Don Shelton from the San Diego County Office of Education. Their assistance is greatly appreciated, As always, the staff of the Rose Institute, Dr, Alan Heslop, Director, Dr, Florence Adams, Deputy Director, and Ms, Marionette Kusn1er, Executive Assistant, were supportive of our efforts, F1nally, we wish to acknowledge the superb work done by Rose Institute student staff members Ashw1n Navin, Marc Buchanan, Stephen Mansell, and Todd Cawthron, The contents of this report are the sole responsibility of the authors. Steven B. Frates and Ertc S, Norby Claremont, CA June 1998 33ft '-53' - - ---,---~ - -. -..---------------...---- -.-....-----...-...-,....---.---. ..----- Table 3 District Administration as % of Revenue Borreao Serinas Unified 10.5% San YSidro Elementary 10.0% Dehesa Elementary 10.0% Vallecitos Elementary 9.4% Escondido Union Hioh 9,3% National Elementary 9.2% Julian Union Elementary 8.8% Fallbrook Union Elementary , 8.6% San Marcos Unified 8.6% Jamul-Dulzura Union Elementary 8.5% Bonsall Union Elementary 7.9% Grossmont Union Hioh 7.9% Carls bad Unified 7.7% Escondido Union Elementary 7.4% Fallbrook Union High 7.4% Encinitas Union Elementary 7.3% San Dieoo City Unified 7.2% Julian Union Hioh 7.1% Coronado Unified 6.9% Santee Elementary 6.8% Alpine Union Elementary 6,7% Caion Valley Union Elementary 6.6% Sweetwater Union High 6.5% La Mesa-Spring Valley Elementary 6.5% Lakeside Union Elementary 6.4% San Dieouito Union Hioh 6.3% Poway Unified 6.2% Ramona City Unified 6.1% Vista Unified 6.1% Rancho Santa Fe Elementary 5.9% Oceanside City Unified 5.8% Del Mar Union Elementary 5.7% South Bay Union Elementary 5.4% Cardiff Elementary 5.4% San Pasaual Union Elementary 5.2% .... Valley Center Union Elementary 5.2% . . Lemon Groye Elementary 5.0% .~ · . . . - ... .' . . Chula Vista Elementary 4.9% · -' . .. ... Mountain Empire Unified n/~ . . . . . . . . .. ... , . .. . n/~ · . . . . Pauma Elementary Solana Beach Elementary n/~ Spencer Valle" Elementarv n/~ Wamer Unified n/~ JJ.ff~SZ School The school baard voted last bid month to place the measure on the bond Nov. 3 ballot. The district would use the bond proceeds to buüd addi- tional classrooms to catch up with class-size reduction in Grades 1 . going through 3 put into effect two years. IS ago. ~ ewer schools also would get a slice o{ the bond money. on ballot The Legislature is haggling over a new statewide scl100l bond issue. and Chula Vista officials want to use bond money to match any funds that would be-available from a state Chula Vista district ml!asure. In turning to its 84,258 regis- tries far $95 millian tered voters, C1tuI.a Vista's educa- tors are {oUoWlng other South Bay school districts that have asked {or By Lillian Salazar I.eo1IOIå voter approval of bond measures. ST.\11 wtITU In ~arch 1997, San Y sidra CHULA VISTA - Like some passed a 5250 aWlioa boacl issue, surrounding school districts, the wluch was the largest school bond Chula Vista Elementary School [)is.. issue ever approved in the state at tnct will try passing a.multimillion- the time. The South Bay UniOJl dollar bond measure. School District was sucœsatul dur- District voters are being asked to ing that same electiOD, pa.saiDg aD pass a $95 million bond issue aD the $8.5 aWlioo boacl isaue. ~ovember ballot to modernize old The Sweetwater Union High schools and improve newer am- School District garnered 62 per- puses. ChuJa Vista last turned. to cent of the vote {or a $500 miIIiod voters in 1969, when an $8 millioa bond measure in March 1997, but it bond issue was approved. was not enough ¡or the two-thirds -Every School In the distri,ct is approval Deeded. going to benefit," board P:esldent San Diego Unified baa a $1.51 Pam Smith salli "There IS not a billion' band issue on the ballot in school that doesn't need some- November. Among other things. thing," the boacl measure would buy 13 ~early 21.000 students are new elementary !Chools. a new Lin- taught in 33 scl100ls throughout the colD High Sc:booI. new or improved distnct. libnries at 10. campuses me! h~ Over the life o{ the 25-year boacl dreds of miIIioaa of dollars worth of issue. district officials plan to mod- plumbing ~tems. new rnofa and emize 11 schools by adding air con- playground equipment. ditioning and retrofitting electrical systems. The bond issue would mean an additIonal taX of roughly 520 per SIOO.OOO of assessed valuation per "ear {or homeowners. A home as- San Diego Union-Tribune sessed at $150.000 would be taxed at $30 annually, for example. July 17, 1998 >Jthough the district used state and local money to modernize 11 of its oldest schools last year. it can- not afford to do that with the 11 that still need modernizing, said Lowell Billings. assistant supenn- tendent of business services and C,,""nt"lrt -54- ]]/1 rS-? - .-----,._--- _..---_._-_._--~-_._.._.- . . . and school bond, too Time is running out for repairs, construction N" ili" "" ,.",.. ... ....Oy do Unified $17 million, Lemon Grove approved a proposed $9.2 bU- Elementary $12 million, and San ,pas- . lion state school bond, the As- qual Elementary $1. 7 million. Eàch of sembly should follow suit and these districts has a stake in passage of get it to Gov. Pete Wilson for a state bond issue, because if the state- his signature as soon as possible, wide measure is successful, they could Tomorrow is the deadline for placing qualify for state matching funds, the bond issue on the November ballot. That hasn't been the case for San As matters stand, it will cost the state Diego Unified, which for years has de- an extra $3 million just to publish a clined to seek state funds because of the special voter pamphlet after the Legis- strings attached. But thanks to pro- lature missed an earlier deadline to in- posed changes in state rules and regula- elude it in the standard voters' guide, tions, the city schools could participate The school bond has been in limbo for in this program. several months while the governor and The proposed bond measure would legislators have been haggling over spe- eliminate ~tate liens on school proper- cifics. Nearly everyone agrees, howev- ties, scrap the requirement that all er, that the bond is n,eeded to help shore property management funds be fun- up California's aging public schools and neled to Sacramento, and ease strict wriversities, and to build new faciljties limits on the style and scope of school to keep pace with steadily increasing construction, student enrollment. Demographers are projecting a The $6.7 billion earmarked for ele- 48.000-student surge in enrollment mentary and high schools would go to- countywide during the next nine years, ward repairs that have been deferred To cope with this explosive growth, far too long, and for new construction. school districts will need $2.6 billion, or The remaining $2.5 billion would be approximately $330 million each year, spent on institutions of higher learning, School districts can try to keep pace many· of which have been allowed to as best they can by placing local bond deteriorate during the last two decades issues on the ballot. But there is no way for want of sufficient fW1ds, the districts alone can handle the costs. This November in San Diego COW1ty, They need state matching funds. there will be no fewer than five school That is why it is crucial that the bond issues on the ballot.· San Diego Assembly get cracking and approve thE: Unified is seeking $1.5 billion, Chula $ 9.2 billion school bond issue so it can Vista· Elementary $95 million. Corona- be placed on the November ballot. San Diego Union-Tribune August 26. 1998 -55- 3 :iff ~ S-?' . Chula Vista Elementary School District District Administrative Services Full-Time Equivalent Employees by Department Fiscal Years 1995-96 - 1997·98 Change Over 3 Years Administrative DeDartments 1995-96 1996·97 1997-98 FTES % Superintendent's Office 4.00 4.00 3.00 ·1.00 -25.00% Assistant Superintendent's Offices 6.00 6.00 6.00 0.00 0.00% Assistant to the Superintendent 0.90 0.00 1.00 0.10 11.11% Business and Financial Services: Accounting 6.00 6.00 6.50 Budget and Finance 3.50 3.50 4.00 Payroll 4.00 4.00 4,00 Subtotal 13.50 13.50 14.50 1.00 7.41% Human Resources: 10.00 10.00 11.00 1.00 10.00% Student Services: Media Services 6.00 6.00 6.00 Pupil Services' 24.28 26.15 26.18 Student Welfare & Attendance 3.82 3.82 3.57 Subtotal 34.10 35.97 35.75 1.65 4.84% Educational Services: Curriculum 8.77 9.77 9.67 Staff Development - - - Categorical 9.87 8.66 7.49 Testing & Evaluation . - - Subtotal 18.64 18.43 17.16 -1.48 -7.94% Operational Support Services: Food Services" 6.44 6.44 6.44 Information Services 8.20 9.20 9.25 Maintenance/Operations'" 45.00 45.00 43.00 Planning 0.50 0.50 0.50 Publications 3.50 3.50 3.75 Purchasing & Warehousing 6.50 6,50 7.00 ...... . . , . . . . Transportation 35.19 36.81 40.51 ..... . , . . . . . . . ..... . Subtotal 105.33 107.95 110.45 5.12 4.86% ..... . ~ .., .. TOTALS 192.47 195.85 198.86 6.39 3.32% .. ," ... ,.. . . .. .. ... ... ...... . 'Includes nurses & psychs ,..... . "Excludes food service workers; includes whse & delivery .....". . ---Excludes school custodians Sources: District adopted budgets & R-2 reports . , . . District CBEDS Enrollment 19.3471 19,899 20,7481 1,401 7,24% ~ ns 3~çz rS-;3 fte_dpt.xls . .......~.., ~10···""" ..~..·'H, .\\o'~""" ~U':jll:#~ -\t\\\\1Þ;¡· ..iti;/~II;} ,t;'\\~)J;f: "~..., .;ttii'l- .¡.~n'i;' .!,:.~ ".'~~' .·t'U~.. :~~UŠ~·:I!..':. "'N:.·~~··· ·~~·~-~ttl~'·>.. . . .,:.:.~::!:~~ ,.~.~.~.~;:~' '. ~-:;...~. CHULA VISTA ELEMENTARY SCHOOL DISTRICT ..~'.-:::.:.: .~....... OUR SHARED VISION :::;:=:..' .~.,....:,.. ......~.~ The Chula Vista Elementary School District is committed to providing a successful, safe, challenging, and nurturing educational experience, while promoting the joy and importance of learning for all our clúldren, Our clúldren are high:·aclùeving innovative thinkers. They are multi- literate, self-reliant, and confident. They have a lifelong love of learning and are socially responsible citizens. The District takes pride in developing each child's full potential, while recognizing his or her uniqueness. We. value and find strength in our diversity, Learning is meaningful and relevant, connected with each clúld's individual needs, ethics, culture, and experiences, and is linked with the world outside the classroom, Families, staff, and our entire community are full partners actively working in a collaborative manner for the benefit of each child's education. Together we have an investment in our District's VISion and believe a clúld's success equals our success, We ensure an environment in which everyone is valued and treated with dignity and respect, Everyone assumes responsibility for the success of the school community, The entire educational community accepts the challenge of change and is motivated to acquire skills and values for a rapidly changing world, We create dynamic learning experiences by supporting and encouraging excellent teaching and the educational growth of family and staff. .~~'-. The Chula VlSta Elementary School District community is dedicated to .::::-.~~ :.::::::~ instilling hope for the future so that today's children will share their vision ~~:. with future generations. J J ð ~ ¿f. ¿) Adopted by Board of Education, March 21, 1995 """ ...... :·...::,:ii\~\·: 'fiiJj~ ~'. :j;E=:...~:,;~ !;;~l~~1:;: .~..~.~.",.,-~. .~,:.~::.. -57- '$~\~'.,,,.. ......"... ,,\~""."" '\(\'''\d';,: ~i:t:1JI.IJ1.. ~(~~\\tfi:.; :!\\\~!::::!.::. '····~·.·tfiiif!. .:\\\~~~:. ..,:,: ~~.:.....", "'-'~ J..~". " , CHULA VISTA ELEMENTARY SCHOOL DISTRICT OUR SHARED VALUES Equality We believe each child is an individual of great worth entitled to develop to his or her full potential. All children can and will learn, and deserve equal access to a quality education. Equity We believe there is no significant difference in educational outcomes based on race, gender, or economic status, Solutions, resources, programs, services, and support are applied in a manner which develops the full potential of each child. Accountability We value and recognize individuals who assume responsibility for and demonstrate commitment and dedication to serving the interests of all children. Ethical Responsibility We value each individual who practices, teaches, and serves as a role model of dignity, respect, honesty, integrity, and trust. Diversity We seek, encourage, and respect each individual's contributions and value a multicultural perspective. Teamwork We believe that families are the primary role models for our chiIdn!n. We are committed to teamwork and collaboration to provide maximum serviœs for students, staff, and community. 1ñis partnership among families, community, and schools is the foundation of our children's educational success. Innovation We are committed to challenging the status quo and embracing a technological world. Excellence We are committed to high standards of performance throughout the District and continuously seek and utilize new knowledge and skills. '3:J/f --¿, / <\ Þi," .1;~·~\\"'''.. ":.':.0. ,~,'.~~~~:;;;. .'i1t:··~~~\'H:.::!··'·' ·i~.··::;. ........-. '!";'J;:-'_ .//;.. CHULA VISTA ELEMENTARY SCHOOL DISTRICT ;%i~]j: STUDENT-BASED DECISION MAKING ·jl.:.: .;1;..':;. ·~-::i .~:::. ':;¡¡;.:;;;: Essential Questions :::~:~:-:. ~:..::: :::s . ~..-..::::. ...::~". Improving Student Learning, Ethical Responsibility, and Involving All Stakeholders are three principles we work with in the decision making process. The following essential questions provide guidelines as we apply these principles. HOW DOES THE DECISION IMPROVE STUDENT LEARNING? · rationale or evidence that it makes a difference for all children · support our vision statement IS THE DECISION ILLEGAL, UNETHICAL OR IMMORAL? ..~;.,-. · support our values statement :~~{~; {~f{ [~t IS THERE ADVERSE IMPACT ON OTHERS? '~~j:'-='f · collaboration with staff, parents, community '!"{f/' · data collection/research · "district" included in problem solving process · fiscal and personnel impact ~~~~ HOW ARE INDIVIDUAL NEEDS BALANCED WITH GROUP .~{~:. ..~;. NEEDS? :~t{~: · equity ;{!{{~~i. ··~~i ...~~' 'ff¡'::'" 3J/J -k;2 :~~!.' .~.;.~;~;=i~\W· "!;~~i\~·~S\· ....... -59-