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Home My WebLink AboutAgenda Packet 1999/04/20 Tuesday, April 20, 1999 6:00 p.m. (immediately following the City Council Meeting) Council Chambers Public Services Building 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 permitted by law 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 ofthe City. The Council is required by law to return to open session, issue 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 terminated at this point in order to save costs so that the Council's return 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 available in the City Clerk's Office. . E. Cowan v. City ofChula Vista. E '" ..- OJ '" _.c-o .....-cu"C (t C ~.. ~- s:."- 2 ~ ..... .s a.OO ~ en - c: ::I> ~ :.t:,,; '¡:' t!J ~ C) ~':J ~ Š _.r: -::",1 (~ ~')c o I'J ~ (JJ.= L&J >,_'.<::-oz ....c.~::.....~CJ ro>,;-;t::,aü; ~:~Ó ~~: c. . >. u II) ... f",¡) .',",.~ '\~ ~:: ;3 !J "è: c .~. <V ~ , :;¡ n' .r:~ ('t Q) .,..."t' U~ ... -a._ 1::._ elI- Q.I- .!E ... 0 I),O..Q .. oó'ø«:So CU-C.,) D..I.LI "C D_·_ U) .... E::·-Q)c:a: :Q)O=;;c 1. CONFERENCE WITH LEGAL COUNSEL REGARDING: . Existing litigation pursuant to Government Code Section 54956.9(a) A. Graceffa v. City ofChula Vista. B. Lopez v. City ofChula Vista. C. Alverez v. City ofChula Vista. D. Bernard v. City ofChula Vista. F. Fritsch v. City ofChula Vista. 2. CONFERENCE WITH LABOR NEGOTIATOR - Pursuant to Government Code Section 54957.6 . POA Negotiations. 3. CONFERENCE WITH REAL PROPERTY NEGOTIA TOR- Pursuant to Government Code Section 54956.8 . Property: 428 F Street (5 parcels totaling 1.6 acres): 568-181-34 0.24 acres, 568-181-35 0.2 acres, 568-181-36 0.23 acres, 568-181-37 0.25 acres, and 568-181-41 0.69 acres Negotiating Parties: City ofChula Vista (Sid Morris, Chris Salomone) and Security Title Insurance Company as Trustee of its Trust No. PT 1452. Under Negotiations: Purchase terms and conditions. ,. .. --...--..-- ...-.......-,...-.- CALL TO ORDER A~f?IJ?~rlul'Y thst I sm "I declare und~r P~~" of Chl¡'1 V!sta in the ern,love1 b~ t ¡e ;_'¡~"" ~n ' t'-\t \ posted Ofhce Q. '.'- ... the Bulletin Board at this A.gen·::.;::.f·~o~,~e c; :Ictin::: and at..,(;it Ha 1 the Public erv es U'GNED /7/-'.-" DATED" ? 51 / ROLL CALL: Councilme be Davis, Moot, Padilla, alas, and Mayor Horton. 6:00 p.m. April 20, 1999 1. 2. PLEDGE OF ALLEGIANCE TO THE FLAG, MOMENT OF SILENCE 3. APPROVAL OF MINUTES of March 23, 1999 and April 13, 1999 (Joint Meeting of the Redevelopment Agency and the City Council). 4. SPECIAL ORDERS OF THE DAY A. Oath of Office: Robert White - Veterans Advisory Commission. B. Presentation of 1999 Fair Housing poster and essay contest winners and proclamation "Recognizing April as National Fair Housing Month." Mayor Horton will present the proclamation to Mary Scott Knoll, Executive Director, Fair Housing Counsel of San Diego. CONSENT CALENDAR (Items 5 through 14) The staff recommendations regarding the following items listed under the Consent Calendar will be enacted by the Council by one motion, without discussion, unless a Councilmember, a member of the public, or City staff requests that the item be removedfordiscussion. Ijyou wish to speak on one of these items, please fill out a "Request to Speak" form (available in the lobby) and submit it to the City Clerk prior to the meeting. Items pulled from the Consent Calendar will be discussed after Action Items. Items pulled by the public will be the first items of business. 5. WRITTEN COMMUNICATIONS A. Letter from the Senior Assistant City Attorney stating that the City Council did not meet in Closed Session on April 13, 1999. Staff recommendation: The letter be received and filed. B. Letter of resignation from the Veterans Advisory Commission - Doc Anthony Anderson 111. Staff recommendation: The resignation be accepted with regret and the City Clerk's be directed to post immediately according to the Maddy Act in the Clerk's Office and the Public Library. C. Letter from Jennifer Haug requesting financial assistance to attend a National Youth Leadership Conference in Washington, D.C Staff recommendation: That this request be denied. . ._...~.m_._____,.,. .~,____.....H_ Agenda 2 April 20, 1999 D. Letter from The Hilltop High Music Tech Ensemble Students and Dennis Mauricio, Director, requesting financial support to perfonn on the steps of the California State Capital, as well as at Pier 39 in San Francisco. Staff recommendation: That Council fund this $250 request ITom the Council Contingency Fund. 6. ORDINANCE 2777, AMENDING THE ZONING MAP OR MAPS EST ABLlSHED BY SECTION 19.18.010 OF THE MUNICIPAL CODE PREZONING 509 ACRES AT THE NORTHERN TERMINUS OF HUNTE PARKWAY A-8, AGRICULTURAL (SECOND READING AND ADOPTION) The proposed project consists of prezoning 509 unincorporated acres to A-8, Agricultural, a prerequisite to annex the property to the City, and establishing an 18-hole championship golf course and associated facilities, including a driving range, clubhouse, and other amenities. Staff recommendation: Council place the ordinance on second reading and adoption. (Director of Planning and Building) 7. ORDINANCE 2778, AMENDING SECTION 2.28.11 OA OF THE MUNICIPAL CODE RELATING TO THE ORGANIZATION OF THE BOARD OF ETHICS (FIRST READING) On January 1, 1999, the Superior Courts and Municipal Courts in the County of San Diego were consolidated. As such, there is now one unified Superior Court. Chula Vista Municipal Code Section 2.28.11 OA relating to the organization of the Board of Ethics mandates that prior to a person being appointed to membership on the Board of Ethics, that Council must refer for recommendation the list and qualification of applicants to the presiding judge of the South Bay Municipal Court Judicial District or his or her designee. The amendment to the ordinance would replace "South Bay Municipal Court Judicial District" with "South County Division of the San Diego Superior Court" to conform with the Court consolidation. Staff recommendation: Council place the ordinance on first reading. (City Attorney) 8. RESOLUTION 19437, APPROVING V ARlOUS PERSONNEL ACTIONS INCLUDING RECLASSIFICATIONS, SALARY ADJUSTMENTS, AND THE ADDITION OF POSITIONS The requests for salary adjustment, reclassification, and the addition of new positions all result from the growth the City is experiencing. This growth has resulted in increased volume on work, complexity of issues, recruitment and retention difficulties, and the need to do things more efficiently than in the past. Approval of each of the recommendations will address one or more of these needs. For this reason they are presented now rather than as part of the upcoming budget process. Staff recommendation: Council adopt the resolution. (Director of Human Resources) Agenda 3 April 20, 1999 9. RESOLUTION 19438, WAIVING THE CITY'S FORMAL BIDDING PROCESS AND APPROVING CONTRACT WITH JOHN SHANNON ASSOCIATES TO PROVIDE CLASSIFICATION/COMPENSATION SERVICES TO THE CITY In the 1998/99 budget, Council approved the addition of $80,000 to the Human Resources Department budget for the purpose of hiring a consultant to conduct a comprehensive classification/compensation study of all non-safety positions in the City. After months of committee work developing a Request for Proposal and reviewing those proposals submitted, the Committee concluded that none of the four submitted met all criteria specified in the Request. It was subsequently decided by the Committee that with the assistance of John Shannon, City staffwould be trained in classification analysis and compensation comparison. Staff recommendation: Council adopt the resolution. (Director of Human Resources) 10. RESOLUTION 19439, ACCEPTING FINGERPRINT SCANNING TECHNOLOGY FROM THE DEPARTMENT OF mSTICE Since 1998, the Department ofJustice has promoted the development of Fingerprint Scanning Technology that is replacing the inked and rolled fingerprint system. Effective January 2000, Live Scan fingerprints will be the only acceptable method of fingerprinting acceptable to the Department of Justice. Staff recommendation: Council adopt the resolution. (Chief of Police ) 11. RESOLUTION 19440, ACCEPTING A REIMBURSEMENT TO THE LIBRARY AND RECREATION DEPARTMENT FROM UNIVERSAL SERVICE ADMIN1STRATIVE COMPANY THROUGH PACIF1C BELL; AND AMENDING F1SCAL YEAR 1998/99 BUDGET; AND APPROPRIATING $14,471.55 IN UNANTICIPATED REVENUE FOR RELATED EXPENSES (4/5TH'S VOTE REQUIRED) In a letter dated March 4, 1999, from the Universal Service Administrative Company to Pacific Bell, the Library has been advised that it will receive a reimbursement in the amount of$14,471.55 for the discounted portion ofintemet and data line service provided by Pacific Bell. The Library is eligible for this discounted service as a participant in the Federal Universal Service (AKA E-Rate) Program. Staff recommendation: Council adopt the resolution (Library and Recreation Director) 12. RESOLUTION 19441, APPROVING SUBMISSION OF THE FISCAL YEAR 1999/00 TRANSPORTATION DEVELOPMENT ACT ARTICLE 4.0 CLAIM The Transportation Development Act claim for fiscal year 1999/00 Chula Vista Transit operations and capital expenditures is in the amount of$2,858,684, consisting of$2, 729.064 from the City's Transportation Development Act account and $129,620 from the County of San Diego account. Staff recommendation: Council adopt the resolution. (Director of Public Works) _._---_._-~------'_._--_.._- Agenda 4 April 20, 1999 13. RESOLUTION 19442, APPROVING AGREEMENT WITH THE COUNTY OF SAN DIEGO FOR PUBLIC TRANSPORTATION SERVICES FOR FISCAL YEAR 1999/00 The agreement authorizes the City to claim $129,620 of County of San Diego Transportation Development Act Article 4.0 funds for Chula Vista Transit service in the unincorporated area of the County. Staff recommendation: Council adopt the resolution. (Director of Public Works) 14. RESOLUTION 19422, APPROVING THE FIRST AMENDMENT TO THE ACQUISITION/FINANCING AGREEMENT WITH MCMILLIN OT A Y RANCH FOR COMMUNITY FACILITIES DISTRICT NUMBER 97-3 (MCMILLIN OTAY RANCH SPA ONE) (CONTINUED FROM APRIL 13, 1999) On December 8, 1998, Council approved the AcquisitionlFinancing Agreement for Community Facilities District Number 97-3. The agreement set forth the conditions and procedures for acquiring the improvements from the developer. The amendment will ensure that the AcquisitionlFinancing Agreement is consistent with the applicable terms and conditions of the Olympic Parkway Agreement. Staff recommendation: Council adopt the resolution. (Director of Public Works) ORAL COMMUNICATIONS PUBLIC HEARINGS AND RELATED RESOLUTIONS AND ORDINANCES The following items have been advertised and/or posted as public hearings as required by law. If you wish to speak to any item, please fill out a "Request to Speak" form (available in the lobby) and submit it to the City Clerk prior to the meeting. 15. PUBLIC HEARING ON CONSIDERING AMENDMENT TO THE MASTER FEE SCHEDULE TO ADJUST EX1STING AN1MAL CONTROL FEES AND ADD NEW FEES Staff recommendation: The public hearing be continued to May 4, 1999. (Chief of Police) 16. PUBLIC HEARING ON PCM 95-0 IB, AN APPLICATION TO AMEND THE OTAY RANCH SPA ONE PUBLIC FACILITIES FINANCING PLAN (PFFP) TO AMEND THE SECURITY THRESHOLD FOR OLYMPIC PARKWAY CONSTRUCTION AND AMEND THE PFFP FOR PHASE 7 OF VILLAGE ONE AND VILLAGE ONE WEST AREA (CONTINUED FROM APRIL 13, 1999) Note: This item should be trailed and considered together with Item # 18. RESOLUTION 19408, AMENDING THE OT A Y RANCH SECTIONAL PLANNING AREA PLAN PUBLIC FACILITIES FINANCE PLAN On June 4, 1996, the Otay Ranch SP A One Public Facilities Finance Plan (PFFP) was adopted by Council as part of the SPA One Plan for Villages One and Five. The SPA One PFFP established thresholds for public improvements serving these two villages, including Olympic Parkway. In order to expedite the improvements of Olympic Parkway, a financing plan with Agenda 5 April 20, 1999 security for construction has been negotiated with the Otay Ranch Company and McMillin Companies. An amendment to the SPA One PFFP has been proposed to establish security thresholds so that Otay and McMillin can equitably share in the number of units as the Olympic Parkway thresholds are achieved. In addition, on February 16, 1999, Council approved an amendment to the Otay Ranch SPA One Plan for the Village One Core - Phase Seven (purple Phase), and the area of Village One west of Pas eo Ranchero (Village One West). The amendment to the SPA One PFFP for these areas was consolidated with the Olympic Parkway amendment in order to bring one amended PFFP forward for Council approval. Staff recommendation: Council adopt the resolution. (Director of Planning and Building) 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 public. The items will be considered individually by the Council, and staff recommendations may, in certain cases, be presented in the alternative. lj you wish to speak on any item, please fill out a "Request to Speak" form (available in the lobby) and submit it to the City Clerk prior to the meeting. 17. RESOLUTION 19443, DECLARING C1TY'S INTENTION TO INCREASE SEWER SERVICE CHARGES AND SETTING A PUBLIC HEARING ON CONSIDERATION OF AN INCREASE IN SEWER SERV1CE CHARGES FOR JUNE 8,1999 AT 6:00 PM. The City's last sewer service rate increase was passed on August 5, 1997. Annual expenditures have increased ITom $13.65 million in fiscal year 1997/98 to an estimated $14.29 million in fiscal year 1998/99. Expenditures are projected to exceed revenues by a total of approximately $3.57 million between fiscal years 1999/00 and 2001/02. In order to continue to meet expenses related to the construction and operation ofthe sewage transportation and treatment system, the sewer service rates must be increased. Staff recommendation: Council adopt the resolution. (Director of Public Works) 18. RESOLUTION 19410, APPROVING AN AGREEMENT FOR THE FINANCING AND CONSTRUCTION OF OLYMPIC P ARKW A Y PHASE 1, II, AND III WITH MCMILLIN OT A YRANCH LLC AND OT A Y RANCH PROJECT LLC (CONTINUED FROM APRIL 13, 1999) The purpose ofthis item is to outline a financial plan for Olympic Parkway Phases I, n, and n, which extends ITom Brandywine Avenue to SR-125. The goal is to outline the project costs and how they apply to each party, to establish time frame milestones for the various work components such as grading, channel and roadway construction, to establish financial guarantees to secure the work, to decide how the work will be paid for by whom, and to construct the road when needed. In addition, and equally important, to make sure that development does not outpace the road construction or result in an unacceptable level of service on Telegraph Canyon/Otay Lakes Road. Staff recommendation: Council adopt the resolution. (Deputy City Manager and Director of Public Works) Agenda 6 April 20, 1999 19.A. RESOLUTION 19411, APPROVING A FINAL "B" MAP FOR TRACT NUMBER 99-02, MCMILLIN OT A Y RANCH SPA ONE, R-46, ACCEPTING ON BEHALF OF THE CITY 1HE EASEMENTS GRANTED ON SAID MAP WITHIN SAID SUBDIVISION, ACKNOWLEDGING ON BEHALF OF THE PUBLIC THE IRREVOCABLE OFFER OF GRANT OF FEE INTEREST OF LOTS FOR OPEN SPACE AND OTHER PUBLIC PURPOSES ON SAID MAP WITHIN SAID SUBDIVISION, AND APPROVING SUBDIVISION IMPROVEMENT AGREEMENT FOR THE COMPLETION OF IMPROVEMENTS REQUIRED BY SAID SUBDIVISION, AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT (CONTINUED FROM APRil- 13, 1999) B. RESOLUTION 19412, APPROVING SUPPLEMENTAL SUBDIVIS10N IMPROVEMENT AGREEMENT FOR TRACT NUMBER 99-02, OT A Y RANCH, R-46, AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT This item is to consider the approval of Final "B" Map, Subdivision Improvement Agreement, and Supplemental Subdivision Improvement Agreement for Otay Ranch R-46 (CVT 97-02). The project consists of117 condo units and is known by the marketing name of Capri by Cornerstone. R-46 is located at the northeast corner of La Media Road and East Palomar Street. Staff recommendation: Council adopt the resolutions. (Director of Public Works) 20.A. RESOLUTION 19435, APPROVING FINAL MAPS OF TRACT NUMBER 96-04, OTAY RANCH, VILLAGE ONE, NEIGHBORHOODS R-6, R-9, AND R-14 ACCEPTING ON BEHALF OF THE CITY GENERAL UTILITY AND ACCESS EASEMENTS, AND WALL EASEMENTS GRANTED ON SAID MAPS WITHIN SAID SUBDIVISIONS, REJECTING AN IRREVOCABLE OFFER OF DEDICATION FOR STREET AND OTHER PUBLIC PURPOSES AND APPROVING THE SUBDIVISION IMPROVEMENT AGREEMENTS FOR THE COMPLETION OF IMPROVEMENTS REQUIRED BY SAID SUBDIVISIONS, AND AUTHORIZING THEMA YOR TO EXECUTE SAID AGREEMENTS (CONTINUED FROM APRil- 13, 1999) B. RESOLUTION 19436, APPROVING SUPPLEMENTAL SUBDIVIS10N IMPROVEMENT AGREEMENTS FOR THE FINAL MAPS OF TRACT 96-04, OTAY RANCH, VILLAGE ONE, NEIGHBORHOODS R-6, R-9, AND R-14 AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENTS The tentative map for Otay Ranch, Village One, and a portion of Village Five (CVT 96-04) was approved by Council on November 19. 1996. Council will consider the approval of three Final "B" Maps within Village One, together with the associated agreements for the "B" Maps. Staff recommendation: Council adopt the resolutions. (Director of Public Works) ITEMS PULLED FROM THE CONSENT CALENDAR OTHER BUSINESS 21. CITY MANAGER'S REPORTS A. Scheduling of meetings. .~_.~------,._-~...,_. <-- Agenda 7 April 20, 1999 22. MAYOR'S REPORTS 23. COUNCIL COMMENTS ADJOURNMENT to a Closed Session and thence to the Regular Meeting of April 27, 1999, at 6:00 p.m. in the Council Chambers. *** A Meeting ofthe Redevelopment Agency will be held immediately following the City Council meeting.*** _.__._M__.___________,_··__ .".-..____~~..____ April 15, 1999 FROM: The Honorable Mayor and City Council ~ David D. Rowlands, Jr., City Managerw-- ~ ~ City Council Meeting of April 20, 1999 TO: SUBJECT: This will transmit the agenda and related materials for the regular City Council meeting of Tuesday, April 20, 1999. Comments regarding the Written Communications are as follows: 5a. This is a letter from the City Attorney stating that the Council did not meet in Closed Session on 4/13/99. IT IS RECOMMENDED THAT THIS LETTER BE RECEIVED AND FILED. 5b. IT IS RECOMMENDED THAT DOC ANTHONY ANDERSON III'S RESGINATION FROM THE VETERANS ADVISORY COMMISSION BE ACCEPTED WITH REGRET AND THE CITY CLERK'S OFFICE BE DIRECTED TO POST IMMEDIATELY ACCORDING TO THE MADDY ACT IN THE CLERK'S OFFICE AND THE PUBLIC LIBRARY. 5c. This is a letter from Jennifer Haug requesting financial assistance to attend the National Youth Leadership Conference in Washington D. C. This request does not meet the criteria established under Council Policy 159-02 because it lacks a "specific tangible benefit." We have, however, funded students attending the Freedoms Foundation because of past precedent dating back prior to the adoption of Council Policy 159-02. IT IS RECOMMENDED THAT THIS REQUEST BE DENIED. However, if Council desires to contribute to Ms. Haug's expenses in attending this Conference, the amount of $50 per student has been approved for attendance by other students at the Freedoms Foundation. 5d. Council originally considered this request on March 23, 1999 from the Hilltop High Music Tech Ensemble for financial support to perform at the State Capitol Building and Pier 39 in San Francisco. At that time, Mayor Horton recommended that the request be forwarded to the Performing Arts Task Force instead of taking funds out of the Council Contingency account (4-0-1). The Performing Arts Task Force met on April 14, 1999 and deferred action on this request due to the fact that the funding criteria and a grant application process for the performing arts funds has not yet been finalized. It is expected that this process will be ready for Council action in early June 1999. In the meantime, STAFF RECOMMENDS THAT COUNCIL FUND THIS $250 REQUEST FROM THECOUNCIL CONTINGENCY FUND. DDR:mab MINUTES OF A REGULAR MEETING OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA, CALIFORNIA April 20, 1999 CALL TO ORDER 6:00 P.M. A Regular Meeting of the City Council ofthe City ofChula Vista was called to order at 6:09 p.m. in the Council Chambers located in the Public Services Building, 276 Fourth Avenue, Chula Vista, California. 1. ROLL CALL: PRESENT: Councilmembers Davis, Moot, Padilla, Salas, and Mayor Horton. ABSENT: None ALSO PRESENT: City Manager Rowlands, Senior Assistant City Attorney Moore, Deputy City Clerk Mitchell 2. PLEDGE OF ALLEGIANCE TO THE FLAG, MOMENT OF SILENCE 3. APPROVAL OF MINUTES of March 23, 1999 and April 13, 1999 (Joint Meeting of the Redevelopment Agency and the City Council). ACTION: Councilmember Salas moved to approve the minutes. Councilmember Davis seconded the motion, and it carried 5-0. 4. SPECIAL ORDERS OF THE DAY A. Deputy City Clerk Mitchell administered the oath of office to Robert White, newly appointed member of the Veterans Advisory Commission, and Councilmember Salas presented Mr. White with a certificate of appointment. B. Mayor Horton announced April as National Fair Housing Month and Mayor Pro Tern Salas presented a proclamation to Mary Scott Knoll, Executive Director, Fair Housing Council of San Diego. Ms. Knoll and David Medina presented the student winners of the 1999 Fair Housing poster and essay contest, and their teachers and parents were also acknowledged. CONSENT CALENDAR (Items 5 through 14) 5. WRITTEN COMMUNICATIONS A. Letter ITom the Senior Assistant City Attorney stating that the City Council did not meet in Closed Session on April 13, ] 999. Staff recommendation: The Jetter be received and filed. ...^,-.,-.--.-."..-~--- ..." CONSENT CALENDAR (Continued) B. Letter of resignation from the Veterans Advisory Commission - Doc Anthony Anderson m. Staff recommendation: The resignation be accepted with regret and the City Clerk be directed to post immediately according to the Maddy Act in the Clerk's Office and the Public Library. C. Letter from Jennifer Haug requesting financial assistance to attend a National Youth Leadership Conference in Washington, D.C. Staff recommendation: That this request be denied. D. Letter ITom The Hilltop High Music Tech Ensemble Students and Dennis Mauricio, Director, requesting financial support to perform on the steps of the California State Capitol, as well as at Pier 39 in San Francisco. Staff recommendation: The Council fund the $250 request from the Council Contingency Fund. 6. ORDINANCE 2777, AMENDING THE ZONING MAP OR MAPS EST ABLlSHED BY SECTION 19.18.010 OF THE MUN1CIPAL CODE PREZONING 509 ACRES AT THE NORTHERN TERMINUS OF HUNTE P ARKW A Y A-8, AGRlCUL TURAL (SECOND READING AND ADOPTION) The proposed project consists of prezoning 509 unincorporated acres to A-8, Agricultural, a prerequisite to annex the property to the City, and establishing an 18-hole championship golf course and associated facilities, including a driving range, clubhouse, and other amenities. Staff recommendation: Council place the ordinance on second reading for adoption. (Director of Planning and Building) 7. ORDINANCE 2778, AMENDING SECTION 2.28. I lOA OF THE MUN1CIPAL CODE RELATING TO THE ORGANlZAT10N OF THE BOARD OF ETH1CS (FIRST READING) On January 1, 1999, the Superior Courts and Municipal Courts in the County of San Diego were consolidated, and there is now one unified Superior Court. Chula Vista Municipal Code Section 2.28.11 OA relating to the organization of the Board of Ethics mandates that prior to a person being appointed to membership on the Board of Ethics, the Council must refer for recommendation the list and qualification of applicants to the presiding judge of the South Bay Municipal Court Judicial District or his or her designee The amendment to the ordinance would replace "South Bay Municipal Court Judicial District" with "South County Division of the San Diego Superior Court" to conform with the Court consolidation. Staff recommendation: Council place the ordinance on first reading. (City Attorney) Page 2 04/20/99 CONSENT CALENDAR (Continued) 8. RESOLUT10N 19437, APPROVING V ARlOUS PERSONNEL ACT10NS INCLUDING RECLASSIFICATIONS, SALARY ADJUSTMENTS, AND THE ADDITION OF POSITIONS The requests for salary adjustment, reclassification, and the addition of new positions all result ITom the growth the City is experiencing. This growth has resulted in increased volume on work, complexity of issues, recruitment and retention difficulties, and the need to do things more efficiently than in the past. Approval of each of the recommendations will address one or more of these needs. For this reason, they are presented now rather than as part of the upcoming budget process. Staff recommendation: Council adopt the resolution. (Director of Human Resources) 9. RESOLUTION 19438, WAIVING THE CITY'S FORMAL BIDDING PROCESS AND APPROVING CONTRACT WITH JOHN SHANNON ASSOC1ATES TO PROVIDE CLASSIFICATION/COMPENSATION SERVICES TO THE CITY In the 1998/99 budget, Council approved the addition of $80,000 to the Human Resources Department budget for the purpose of hiring a consultant to conduct a comprehensive classification/compensation study of all non-safety positions in the City After months of committee work developing a Request for Proposal and reviewing the proposals submitted, the Committee concluded that none of the four submitted met all criteria specified in the Request. 1t was subsequently decided by the Committee that with the assistance of John Shannon, City staff would be trained in classification analysis and compensation comparison. Staff recommendation: Council adopt the resolution. (Director of Human Resources) 10. RESOLUTION 19439, ACCEPTING FINGERPRINT SCANNING TECHNOLOGY FROM THE DEPARTMENT OF JUSTICE Since 1998, the Department ofJustice has promoted the development of Fingerprint Scanning Technology that is replacing the inked and rolled fingerprint system. EffectiveJanuary 2000, Live Scan fingerprints will be the only acceptable method of fingerprinting acceptable to the Department of Justice. Staff recommendation: Council adopt the resolution. (Chief of Police) 11. RESOLUTION 19440, ACCEPTING A REIMBURSEMENT TO THE LIBRARY AND RECREATION DEPARTMENT FROM UNIVERSAL SERVICE ADMINISTRATIVE COMPANY THROUGH PACIFIC BELL; AND AMENDING F1SCAL YEAR 1998/99 BUDGET; AND APPROPRIATING $]4,471.55 IN UNANTICIPATED REVENUE FOR RELATED EXPENSES (4/5TH'S VOTE REQUIRED) Page 3 04/20/99 CONSENT CALENDAR (Continued) In a letter dated March 4, 1999, from the Universal Service Administrative Company to Pacific Bell, the Library has been advised that it will receive a reimbursement in the amount of $14, 4 71.55 for the discounted portion oflntemet and data line service provided by Pacific Bell. The Library is eligible for this discounted service as a participant in the Federal Universal Service (AKA E-Rate) Program. Staff recommendation: Council adopt the resolution. (Library and Recreation Director) 12. RESOLUTION 19441, APPROVING SUBMISS10N OF THE FISCAL YEAR 1999/00 TRANSPORTATION DEVELOPMENT ACT ARTICLE 4.0 CLAIM The Transportation Development Act claim for fiscal year 1999/00 Chula Vista Transit operations and capital expenditures is in the amount of$2,858,684, consisting of$2, 729,064 ITom the City's Transportation Development Act account and $129,620 ITom the County of San Diego account. Staff recommendation: Council adopt the resolution. (Director of Public Works) 13. RESOLUTION 19442, APPROVING AGREEMENT WITH THE COUNTY OF SAN DIEGO FOR PUBLIC TRANSPORTATION SERVICES FOR FISCAL YEAR 1999/00 The agreement authorizes the City to claim $129,620 of County of San Diego Transportation Development Act Article 4.0 funds for Chula Vista Transit service in the unincorporated area of the County. Staff recommendation: Council adopt the resolution. (Director of Public Works) 14. RESOLUT10N 19422, APPROVING THE FIRST AMENDMENT TO THE ACQUISITION/FINANCING AGREEMENT WITH MCMILLIN OT A Y RANCH FOR COMMUNITY FACILITIES DISTRlCT NUMBER 97-3 (MCMILLIN OTAY RANCH SP A ONE) (CONTINUED FROM APRIL 13, 1999) On December 8, 1998, Council approved the Acquisition/Financing Agreement for Community Facilities District Number 97-3. The Agreement set forth the conditions and procedures for acquiring the improvements ITom the developer. The amendment will ensure that the Acquisition/Financing Agreement is consistent with the applicable terms and conditions of the Olympic Park-way Agreement. Staff recommendation: Council adopt the resolution. (Director of Public Works) ACTION: Mayor Horton moved to approve staff recommendations and offered the Consent Calendar, headings read, texts waived. The motion carried 5-0, except on Item # I 4, which carried 4-0-1, with Council member Moot abstaining. Page 4 04/20/99 ~~_"____"'_._.'.._~__.__._"U_~.__·_.._.'_·______~_·_ ORAL COMMUNJCATIONS Thomas Gibson, 1025 Broadway #32, stated that the Grand Jury is reviewing his request to investigate the signed oaths of office of City officials. Rebecca Arreola, 1111 Bay Blvd #E, Economic Development Department, and Jan Vaclt, 4521 Newport, San Diego, Sweetwater Union High School District, informed the Council of the May 22, 1999 Job Fair to provide jobs for youth and Welfare-to-Work recipients. Carolyn Butler, 97 Bishop Street, inquired about the final development reports for Otay Ranch. Mayor Horton stated that Mr. Leiter could help her with the information. PUBLIC HEARINGS AND RELATED RESOLUTIONS AND ORDINANCES 15. PUBLIC HEARING ON CONSIDERING AMENDMENT TO THE MASTER FEE SCHEDULE TO ADJUST EXISTING ANIMAL CONTROL FEES AND ADD NEW FEES Staff recommendation: The public hearing be continued to May 4, J 999. (Chief of Police) Notice of the hearing was given in accordance with legal requirements, and the hearing was held on the date and at the time specified in the notice. Mayor Horton opened the public hearing and asked if anyone from the audience wished to speak. There was no response. ACTION: Councilmember Padilla moved to continue the hearing to May 4, 1999. Councilmember Davis seconded the motion, and it carried 5-0. 16. PUBLIC HEARING ON PCM 95-0 lB, AN APPLICAT10N TO AMEND THE OTAY RANCH SPA ONE PUBLIC FACILITIES FINANCING PLAN (PFFP) TO AMEND THE SECURITY THRESHOLD FOR OLYMPIC PARKWAY CONSTRUCTION AND AMEND THE PFFP FOR PHASE 7 OF VILLAGE ONE AND VILLAGE ONE WEST AREA (CONTINUED FROM APRIL 13, 1999) RESOLUTION 19408, AMENDING THE OTAY RANCH SECTIONAL PLANNING AREA PLAN PUBLIC FACILITIES FINANCE PLAN OnJune4, 1996, theOtayRanch SPA One Public Facilities Finance Plan (PFFP) was adopted by Council as part of the SPA One Plan for Villages One and Five. The SPA One PFFP established thresholds for public improvements serving these two villages, including Olympic Parkway. In order to expedite the improvements of Olympic Parkway, a financing plan with security for construction has been negotiated with the Otay Ranch Company and McMillin Companies. An amendment to the SPA One PFFP has been proposed to establish security Page 5 04/20/99 PUBLIC HEARINGS AND RELATED RESOLUTIONS AND ORDINANCES (Continued) thresholds so that Otay and McMillin can equitably share in the number of units as the Olympic Parkway thresholds are achieved. In addition, on February] 6, 1999, Council approved an amendment to the Otay Ranch SPA One Plan for the Village One Core - Phase Seven (Purple Phase), and the area of Village One west of Pas eo Ranchero (Village One West). The amendment to the SPA One PFFP for these areas was consolidated with the Olympic Parkway amendment in order to bring one amended PFFP forward for Council approval. Staff recommendation: Council adopt the resolution. (Director of Planning and Building) Item #]6 was considered in conjunction with Item #18, which was taken out of agenda order 18. RESOLUTION 19410, APPROVING AN AGREEMENT FOR THE FINANCING AND CONSTRUCTION OF OL YMP]C P ARKW A Y PHASE 1, IJ, AND 1Il WITH MCMILLIN OT A Y RANCH LLC AND OT A Y RANCH PROJECT LLC (CONTINUED FROM APRIL 13, 1999) The purpose of this item is to outline a financial plan for Olympic Parkway Phases I, II, and 1Il, which extends ITom Brandywine Avenue to SR-125. The goal is to outline the project costs and how they apply to each party, to establish time frame milestones for the various work components such as grading, channel and roadway construction, to establish financial guarantees to secure the work, to decide how the work will be paid for and by whom, and to construct the road when needed; and in addition, and equally important, to make sure that development does not outpace the road construction or result in an unacceptable level of service on Telegraph Canyon/Otay Lakes Road. Staff recommendation: Council adopt the resolution. (Deputy City Manager and Director of Public Works) Items #]6 and #18 were considered jointly. Councilmember Moot stated that he was precluded from voting on Items #] 6, #] 8, and # 19; and he left the Chambers during discussion of these items. Notice of the hearing was given in accordance with legal requirements, and the hearing was held on the date and at the time specified in the notice. Mayor Horton opened the public hearing. Councilmember Salas asked about the difference in cash contributions for Otay Ranch and McMillin. She stated that Otay Ranch is required to secure its obligation under a deed of trust for $] 7 million and asked if the city was taking the deed of trust in lieu of the cash amount due to the City in the year 2000. Senior Assistant City Attorney Moore responded that the deed of trust is being taken by the City as security to assure that Otay Ranch pays its cash contribution. Councilmember Salas asked why the City was not requiring the same of McMillin. Ms. Moore replied that McMillin has already Page 6 04/20/99 PUBLIC HEARINGS AND RELATED RESOLUTIONS AND ORDTNANCES (Continued) designated $4.7 million towards the Olympic Park"Way from its community facilities district, and Otay Ranch has not yet formed its community facilities district. Councilmember Davis asked if this was a first trust deed. Senior Assistant City Attorney Moore responded affirmatively. Councilmember Davis questioned the date for payment of the funds. Ms. Moore indicated that McMillin's cash contribution for Phases 1 & 2 is due on August 31, 1999 and the Phase 3 contribution is due on October 1, 2000. The cash contribution for Otay Ranch is due by January 1, 2000. Mayor Horton asked if anyone in the audience wished to speak. Carolyn Butler, 97 Bishop Street, stated that United Mortgage Company has asked to view her deed of trust for her property, and she expressed concern that sites next to the easement are being sued. Joan Wisser, 834 Lori Lane, expressed concern that without SR 125, the roads will not handle the additional traffic caused by the new housing developments. There being no further comments, Mayor Horton closed the public hearing. City Manager Rowlands thanked Senior Assistant City Attorney Moore for her excellent work on the agreement; and the developers and staff for their cooperative efforts, as well. Councilmember Padilla extended his thanks to Senior Assistant City Attorney Moore for her efforts on this complex and difficult agreement. He stated that the City's needs are being well met and offered congratulations on a job well done to all parties involved. Mayor Horton praised the joint effort of the developers and staff. She recognized City Manager Rowlands for his strong leadership in advancing this project ACTION: Councilmember Padilla offered Resolutions # 19408 and # 19410, headings read, texts waived. The motion carried 4-0-1, with Councilmember Moot abstaining. ACT10N ITEMS 17. RESOLUTION 19443, DECLARING CITY'S INTENTION TO INCREASE SEWER SERVICE CHARGES AND SETTING A PUBLIC HEARING ON CONSIDERATION OF AN INCREASE IN SEWER SERVICE CHARGES FOR JUNE 8, 1999 AT 6:00 P.M. The City's last sewer service rate increase was passed on August 5, 1997. Annual expenditures have increased ITom $1365 million in fiscal year 1997/98 to an estimated $14.29 million in fiscal year 1998/99. Expenditures are projected to exceed revenues by a total of approximately $3.57 million between fiscal years 1999/00 and 2001102. In order to continue to meet expenses related to the construction and operation of the sewage transportation and treatment system, the sewer service rates must be increased. Staff recommendation: Council adopt the resolution. (Director of Public Works) Page 7 04/20/99 ACTION ITEMS (Continued) Staff commented that the proposal is for three increases of six percent each, rather than a major increase in two years. Councilmember Moot commented that background information should be provided to the public regarding the need to raise the sewer rates. ACT10N: Councilmember Padilla offered Resolution #19443, heading read, text waived. The motion carried 5-0. 19.A. RESOLUTION 19411, APPROVING A FINAL "B" MAP FOR TRACT NUMBER 99-02, MCMILLIN OT A Y RANCH SPA ONE, R-46, ACCEPTING ON BEHALF OF THE CITY THE EASEMENTS GRANTED ON SAID MAP W1TIIIN SAID SUBDIVlSION, ACKNOWLEDGING ON BEHALF OF THE PUBLIC THE IRREVOCABLE OFFER OF GRANT OF FEE INTEREST OF LOTS FOR OPEN SPACE AND OTHER PUBLIC PURPOSES ON SAID MAP W1TIIIN SAID SUBDlVlSION, AND APPROVING SUBDlVlSION iMPROVEMENT AGREEMENT FOR THE COl\1PLE1l0N OF IMPROVEMENTS REQUIRED BY SAID SUBDIVISION, AND AUTHORIZING THE MAYOR TO EXECUIE SAID AGREEMENT (CONTINUED FROM APRIL 13, 1999) B. RESOLUTION 19412, APPROVING SUPPLEMENTAL SUBDIVlSION IMPROVEMENT AGREEMENT FOR TRACT NUMBER 99-02, aT A Y RANCH, R-46, AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT This item is to consider the approval of Final "B" Map, Subdivision Improvement Agreement, and Supplemental Subdivision Improvement Agreement for Otay Ranch R-46 (CVT 97-02). The project consists of 117 condo units and is known by the marketing name of Capri by Cornerstone. R-46 is located at the northeast comer of La Media Road and East Palomar Street. Staff recommendation: Council adopt the resolutions. (Director of Public Works) ACTION: Mayor Horton offered Resolution #19411 and Resolution #19412, headings read, texts waived. The motion carried 4-0-1, with Councilmember Moot abstaining. 20.A. RESOLUTION 19435, APPROVING FINAL MAPS OF TRACT NUMBER 96-04, OT A Y RANCH, VILLAGE ONE, NEIGHBORHOODS R-6, R-9, AND R-14 ACCEPTING ON BEHALF OF THE CITY GENERAL UTILITY AND ACCESS EASEMENTS, AND WALL EASEMENTS GRANTED ON SAID MAPS WITHIN SAID SUBDIVIS10NS, REJECTING AN IRREVOCABLE OFFER OF DEDICATION FOR STREET AND OTHER PUBLIC PURPOSES AND APPROVING THE SUBDIV1S10N IMPROVEMENT AGREEMENTS FOR THE COMPLET10N OF IMPROVEMENTS REQUIRED BY SAID SUBDIVISIONS, AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENTS (CONTINUED FROM APRIL 13, 1999) B. RESOLUTION 19436, APPROV1NG SUPPLEMENT AL SUBD1V1S10N IMPROVEMENT AGREEMENTS FOR THE FINAL MAPS OF TRACT 96-04, OT A Y RANCH, VILLAGE ONE, NEIGHBORHOODS R-6, R-9, AND R-14 AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENTS Page 8 04/20/99 ACTION ITEMS (Continued) The tentative map for Otay Ranch, Village One, and a portion of Village Five (CVT 96-04) was approved by Council on November 19, 1996. Council will consider the approval of three Final "B" Maps within Village One, together with the associated agreements for the "B" Maps. Staff recommendation: Council adopt the resolutions. (Director ofPub1ic Works) ACTJON: Mayor Horton offered Resolution #19435 and Resolution #19436, headings read, texts waived. The motion carried 4-0, with Councilmember Moot absent ITom the dias. OTHER BUSINESS 21. CITY MANAGER'S REPORTS There were none. 22. MAYOR'S REPORTS Mayor Horton acknowledged the fine work of the Police Department and its aggressive program to curb underage purchases of alcoholic beverages. She mentioned that she and Vice Mayor Salas met with the Mayor of Tijuana, who also intends to aggressively enforce regulations to curb underage drinking. She felt it was important to let the public know that Mexican authorities will be checking identifications at the border and will turn away young people under the legal drinking age. Mayor Horton commended Councilmember Moot for his leadership on the San Diego Regional Power Pool and the offering of the Green Power option with the Commonwealth Energy Corporation. 23. COUNCIL COMMENTS Councilmember Moot thanked Mayor Horton but he wanted to acknowledge that for over ten years the City ofChula Vista has been involved in the issues of what local government can do to improve the environment. At 7:28 p.m., Mayor Horton recessed the meeting to Closed Session. CLOSED SESSIONS 24. CONFERENCE WITH LEGAL COUNSEL REGARDING EXISTING LIT1GATJON PURSUANT TO GOVERNMENT CODE SECT10N 549569(A) Page 9 04/20/99 CLOSED SESS10NS (Continued) A. Graceffa v. City ofChula Vista B. Lopez v. City ofChula Vista C. AJverez v. City of Chula Vista D. Bernard v. City ofChula Vista E. Cowan v. City ofChula Vista F. Fritsch v. City ofChula Vista. These items were not discussed. 25. CONFERENCE WITH LABOR NEGOTIA TOR PURSUANT TO GOVERNMENT CODE SECTION 54957.6: POA Negotiations. No action was taken. 26. CONFERENCE WITH REAL PROPERTY NEGOTIATOR PURSUANT TO GOVERNMENT CODE SECTION 549568: Property: 428 F Street (5 parcels totaling 1.6 acres): 568-181-34 0.24 acres, 568-181-35 0.2 acres, 568-181-36 0.23 acres, 568-181-37 0.25 acres, and 568-]81-41 0.69 acres Negotiating Parties: City ofChula Vista (Sid Morris, Chris Salomone) and Security Title 1nsurance Company as Trustee of its Trust No. P.T. 1452. Under Negotiation: Purchase terms and conditions. No action was taken. ADJOURNMENT At 8:10 p.m., Mayor Horton adjourned the meeting. Respectfully submitted, ~ ÎUtktL Susan Mitchell, Deputy City Clerk Page ] 0 04/20/99 ~~~ iiiiIïi: .¡;~~~ ~- -~ CllY Of CHUIA VISfA OFFICE OF THE CITY ATTORNEY Date: April 15, 1999 To: The Honorable Mayor and city council From: Ann Y. Moore, Senior Assistant <A 1ÝI¡ City Attorney Re: Report Regarding Actions Taken in Closed Session for the Meeting of 4/13/99 The Senior Assistant City Attorney hereby reports that the City Council did not meet in Closed Session on April 13, 1999. AYM: 19k C:\lt\clossess.no 5// // 276 FOURTH AVENUE· CHULA VISTA· CALIFORNIA 91910· (619) 691-5037· FAX (619) 409-5823 Pi'; Poot-Conlume,AecycledPaper LAW OFFICES OF SUITE 1200 401 WEST "A" STREET SAN DIEGO, CA 92101 Doc ANTHONY ANDERSON III TEL (619) 615~6580 FAX (619) 615-6582 E·MAlL doc@daandersonlaw.com WEBSITE daandersonlaw.com April 8, 1999 ("')("') ~ :::¡=i City Clerk -<-< ::0 City of Chula Vista ("')0 I J'I'1 r- ." (') m("') 276 Fourth Avenue :;Q:x: I IT1 Chula Vista, CA 91910 ~c: 'D v>r- < oþ è!a J'I'1 me:;::: C> 0 Dear SirlMadam: -r,-' -V> .:.:. (J.-, ,.,-,;::.. 0 It is with the deepest regret that I must resign my position as a Commissioner with the City's Veteran's Advisory Commission. The commitments of my fledging law practice makes it impossible for me to participate effectively as a Commissioner. My sincere thanks go out to my fellow Commissioners for the opportunity to work with such outstanding individuals and members of the Chula Vista community. :.> ....- cc WRITTEt.~ ~J?r(tI) fJ:;k ~ '"\·';-1 ,,~~:.~,:;,;;;.;., .'..^"':.~\ ".' ~. ~'.~~....'.."'" II! YIONS ':,,"':;',';' (!\' ~~. ~-'Ío:! ~ \~ ~ '~þ~ ' ' ~f~7 s2J~/ RECEIVE.D L. C') ---~- ~ j h "_.. Jennifer Haug 511 Timber Street Chula Vista, CA 91911 '99 Am 12 P4:Q7 APR I 2 ¡qqq City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91911 CITY OF CHULA ViS I:. CITY CLERK'S OFFICf (,'t:' ; ('~ç' --_J April 5, 1999 Dear City of Chula Vista, My name is Jennifer Haug. I am a junior at Castle Park High School in Chula Vista, California. I currently am ranked #11 in a class of 230, holding a GPA of 4.06. I am enrolled and excelling in one oftlie most rigorous educational college-prep programs offered to students in the world, the International Baccalaureate Programme. I am also proactive within my school. I am a member of the following clubs and organizations: Octagon [Key], Pep, True Asian Origin, Link Crew, and Anti-Defamation League (ADL). I am also a Senator in our student government, on the Principal's Advisory Committee, one of the coordinators for the Multi-Cultural "Unity" Weeklong celebration at my school, and am an integral part of the Images Literary Magazine at Castle Park. I shall be nuDÙng for the office of Vice President of the ASB in May. I volunteer in the community and am a student aid. I have received many awards and recoguition from a munber of organizations; National Merit Scholar, National Academic Academy, California Scholastic Federation, Who's Who in America Among High School Students, and first prize in the Voice of Democracy essay contest sponsored by the Veterans of Foreigu Wars. While at Castle Park I have played Varsity Volleyball since my freshman year. The reason I am writing is I have been nominated as a National Scholar to attend a National Youth Leadership Conference held in Washington D.C. which gives me the chance to take part in a unique learning experience that will give me the leadership skills I need to face the challenges of tomorrow. I will be part of a group of scholar-leaders from high schools across the country. During this eleven- day conference we will meet with high ranking government officials, Members of Congress. representatives of the international diplomatic community, national media figures and distinguished scholars. We will also attend special functions in recognition of our scholarship; including a presentation on the Floor of the House of Representatives, a panel discussion with prominent journalists at the National Press Club and an issue briefing conducted by a senior member of the President's administration. This is a once in a lifetime experience that is being offered to me. I would experience, embrace. and absorb so many important aspects that I would gain from this trip. The tuition of $1800 is of concern to my family, having an older sister attending university these past two years. If your organization can sponsor any money [any amount] to help pay for this trip. it would be greatly appreciated. Please make checks payable to Castle Park High School ASB [CPHS ASB]. The deadline to turn in my tuition is May 14, 1999, so if your organization could please mail the donated amount to me by May 2, 1999. Please be sure to write my name on the check or attach a memo with my name on it to ensure I receive the donation. If your organization wishes to interview me, ask any questions about the conference or myself. you can contact me, Jennifer Haug (619) 482-0921 or the executive director of the National Youth Leadership Conference, Michael Lasday (202) 638-0009. cc.~ Thank Y~u for our time and generosIty III consldermg a sponsorship. tt.' ~ 11 Wi J nnfer y H ~ ~h(\;) ,J - 1""r1"i;'" J!I FJ ~ p .", "x."" '" "'''''f'~NS WRs~ _/~'";'~"')""~~y '7 ~~ Castle Park High School SWEETWATER UNION HIGH SCHOOL DISTRICT Debra A. Allison IE, AP, GATE Coordinator 1395 Hilltop Drive Chula Vista, CA 91911-4599 Phone: (619) 427-{j250 "A TRADiTiON OF EXCELLENCE" nn =t=i -<-< no ,"T'¡ mn ~:r _ .C::: N AprilM~ ~<:: :!Jv:; ~~ w I am writing to introduce the most comprehensive academic program and talented students I have~v~r had W the honor to teach. :g ~ ::0 I"T1 ("') I"T1 < I"T1 o To whom this may concern: " .... The International Baccalaureate Diploma-Associate Program is the most rigorous course of studies which the Sweetwater Union High School District currently offers. It is a comprehensive two-year college level course of studies leading to examinations for students in the eleventh and twelfth grades. nus prestigious program serves as the cornerstone of our Gifted and Talented Education curriculum with the Associate Certificate as a second option. Based on the pattern of no single country. the Diploma Program is a deliberate compromise between the specialization required in some national educational systems and the breadth preferred in others. The general objectives of the ill are to provide students with a balanced education: to facilitate geographic and cultural mobility: and to promote international understanding through a shared academic experience. In the thirty years since its founding, the IB Diploma has become a symbol of academic integrity and intellectual promise. The student who satisfies its demands demonstrates a strong commitment to learning, both in the terms of the mastery of subject content and in the development of the skills and discipline necessary for success in a competitive world. Along with the course work and their requisite examinations, all candidates are required to complete 150 hours minimum of community service, research and write an extended college level essay of 4,000 words on their own time, and successfully complete a unique Theory of Knowledge course. Colleges and universities are well served by encouraging the enrollment of these able young scholars. Indeed, upon completion of the program, all of our I.B. candidates are eligible to matriculate in many of the world's most renown educational institutions. If you require further information regarding the IB Program, please contact me at your earliest possible convenience. Thank you for your kind consideration on behalf of the CPHS - ill students. Respectfully submitted, æbé-l1 c"( æL¿;~t/f Debra A. Allison IB,AP,GATE-Honors Coordinator-Teacher (619) 427-{j250 Voice mail: 422-4748 Box 125 WRITT~.~~!!1"'~'~\"'," ., ~ "~~!'!"'AT·I^. , _2.> '. ~~. :""'¡'¡ý'J..~j~..,:;'\1'~,,_.,;;I;..;-'~J ,~_, I~NS SC - d-- ïíífif ffi Ðl5EIIIBU RECEIVED March1,1999 CITY OF CHULA VIS CITY CLERK'S OFF I . ~ Tï-:rïï1r¡- [, 1.£ ~ ' I) ,of IL' !r~' -'~ /999!:' , . Shirley Horton, Mayor Chula Vista City Council Members: John Moot Steve Padilla Mary Salas Patty Davis 276 Fourth Avenue Chula Vista CA 91910 ;: Of-rll'fe- , ^'; I ----...J Dear Mayor Horton and City Council Members: As members of the Hilltop High School Music Tech Ensemble we have come to understand the importance of community support, and realize that the opportunities that we have been given, and continue to receive, would never be possible without this support. This year we have been invited to perform on the steps of the California State Capitol as well as at Pier 39 in San Francisco. We are very happy and excited to report that we have already raised over three-fourths of the money needed. At this time, we would like to request the city council for a donation, letting you know at the same time that we will be performing for the community during the ArtsFest in April. We have raised money in various ways in addition to our performances. We have continued to sell our previously recorded albums; Kaleidoscope, featuring such songs as Birdland, Chariots of Fire, Come Rain or Come Shine, our Songs of the Seasons holiday album and Digital Genesis, our first album 1n addition we had a yard sale and sold cookie and pizza dough and held a rehearsal marathon which we obtained sponsors for. Each family is also contributing a set amount We still have another yard sale scheduled for March 6, 1999. We would also like to take this opportunity to inform the Mayor and council members ofthe dates of the spring concert - May 7th & 8th, at 7:00 PM, and to let each of you know there",~ll be two complimentary 'v1P tickets available for each of you on either of the ni'ghts you choose. More information will be forwarded in a few weeks, but we would like you to mark your calendars now, in hopes that some of you might be able to attend one of the performances We are very grateful to be in a school district that supports the arts programs so generously, and we are additionally thankful for the city support in the past Thank you in advance, for your consideration of this request. _H . .. - _, _. ... ".;- ~ ._n. "'! _~~-. ... :;:¡ ~ p':'J;!M"':'~i!'I\<'l.~""":""_c''''''';'''· ,r", . _ " _: .c,-' ~'~:>" .--,;~; c-.. Sincerely, V"i'~(¡ i I L;¡,;~ ;.;...;.¡,¿t·;¡,·d>i...'...;....·~¡j'~.:'4I, Ii á~~;r.. 7he Hilltop High Music Tech Ensemble Stz!c!.ents 0 ' r ,. 0;~ /. ~ & ,¿X "{r~(y) 0.:. 1---1" ,;::-~ 'lJ 17/ Dennis Mauricio, Director L c. ~/ ~ /1 ,/7 , G ' c:~ / d~ -I ~'^ µ.-; Hilltop High School Music Technology 555 Cbm: A~ue Chub. VISta, CA 91910 (619) 585-6141 )~~.s/ 5j)-j ~ - , - ~ , ORDINANCE NO. 2 77 7 AN ORDINANCE OF THE CITY COUNCll.. OF ~ CITY OF CHULA VISTA AMENDING THE zo~MAP OR MAPS ESTABUSHED BY SECrION l~Ó OF THE CHULA VISTA MUNICIPAL CODE GS09ACRES ATTHENORlJiliKN . PARKWAY A- S, AGRICULTURAL WHEREAS, the property consists of approximately 509 acres located at the northern terminus of Hunte Parkway (site) and diagrammRtica1ly represented in the attached Exhibit A, and, WHEREAS, a duly verified application for a prezoning was :filed wÏth the Planning Division of the Planning and Building Department on September 14, 1998; and, WHEREAS, said application requested to prezone 509 acres A-8, Agricultural; and, WHEREAS, the Planning Division of the Plsmtñng and Building Department set the time and place for a hearing on said request, together with its purpose was given by its publication in the newspaper of general circu1ation in the City and its mailing to property owners within 500 feet of the . exterior boundaries of property at least 10 days prior to the hearing; and, WHEREAS, the hearing was held at the time and place as advertised, namely 7:00 p.m., March 10, 1999 in the Council Chatnbers, 276 Fourth Avenue, Chula VISta, California, before the Planning CDmmi.sion and said hearing was thereafter closed; and WHEREAS, the Planning Commission found that the project would have no significant environmental impacts and adopted the Mitigated Negative Declaration issued for the project; and WHEREAS, from the facts presented, the Planning Commission has determined that the prezoning is consistent with the City of Chula Vista General Plan and that public necessity, convenience and good zoning practice support the prezoning to A-8, Agricultural; and WHEREAS, the Planning Commission found that the project would have no significant enviromnentaJ impacts and adopted the Negative Declaration issued on the project, and voted 5-0 to recommend that the City Council approve the prtzoning of the project site to A-8, Agricultural. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City ofChula VIsta does hereby find, determine, and ordain as follov.'S: 1 ~t"/ Section I: Based on the findings and recommendation of the Environmental Review Coordinator, the City Council does hereby adopt Negative Declaration issued for the project. Section II: That the proposed prezoning is consistent with the City General Plan, and that public necessity, convenience, general welfare, and good zoning practice support the prezoning to City's Agricultural zone. Section ill: That the zoning map or maps established by Section 19,18.010 of the Chula VIsta Municipal Code are hereby amended to prezone the property Agricultural, as reflected in the Zoning Map, attached hereto and made a part hereof; to become effective only upon annexation of the property to the City of Chula Vista. Section IV: This Ordinance shall take effect and be in full force the thirtieth day from its adoption. Presented by Approved as to form by ~~~~~r0 Jo , Kahaney City Attorney Robert A Leiter Director of Planning H,IHOMElPLANNlNG\KIM\CITYCNCLIOWD.ORD 2 ';¿'C/9 c:r ~-.2 L ~.'" F~I ----- . D.Sf NUMBER: ACREAGE: SOO1:: D,I;TE: DRAWN BY: OiECIŒD BY; o ªI·~ .::> '> ~ S <Z>,::> ....% 00 ~.... ~I'~ o - o 0 PCZ - 99 - 01 509.80 N.H. 2 - 11 - 99 C. J. (ë"....Jø:? , 650.68' , '\ ',,--- I I I I ~ / 2555.24' i COUNiY OF SAN DIEGO CITY OF CHULA VISTA .... "! N N CD N . . ---L-. . . . I J Ò 0> ...: 0> &0 CD 3998.58' ~ ~2 1::-~>?:^ ' ROWNG HILLS .L:'~:'\V_ __.ç:;-,3?j§ SUBDMSION , l'~",,~._ ':":'v:__ ~~ ,~'\.. ._.~ '. ',,,:,, "'T:'L-','~ . '. \': :-: .---- - / EXHIBIT A CHULA VISTA PLANNING & BUILDING DEPARTMENT I HEREBY CERTIFY THAT THIS ZONING MAP WAS APPROVED AS A PART OF ORDINANCE BY THE 01Y COUNOL ON C) h:\home\DlannmO'Qnios\zonm!J\."'~CQn'" ...~.. "'''''1!')!" NORTH an' QER( ~TE - _",\I~- ~ - ow'" CiLIA VISTA .-. Z 7 NING MAP ~J CITY COUNCIL AGENDA STATEMENT ITEM / ITEM TITLE: Ordinance J...?7r' No. Amending section 2.28.110A of the Chula Vista Municipal Code relating to the Organization of the Board of Ethics MEETING DATE: 4/20/99 SUBMITTED BY: City Attorneyífb=~tnl:...- 4/5ths Vote: Yes ___ No -X- DISCUSSION: On January 1, 1999, the Superior Courts and Municipal courts in the County of San Diego were consolidated. As such, there is now one unified Superior Court. Chula Vista Municipal Code section 2.28. 110A relating to the organization of the Board of Ethics mandates that prior to a person being appointed to membership on the Board of Ethics, that the city Council must refer for recommendation the list and qualification of applicants to the presiding judge of the South Bay Municipal Court Judicial District or his or her designee. The amendment to the ordinance would replace "south Bay Municipal Court Judicial District" with "South County Division of the San Diego Superior Court" to conform with the Court consolidation. RECOMMENDATION: That Council adopt the attached ordinance amending section 2.228.110A of the Chula vista Municipal Code relating the organization of the Board of Ethics. BOARDS/COMMISSION ACTION: The Board of Ethics was notified of the necessity for this amendment on February 25, 1999. FISCAL IMPACT: None h:\home\carmens\cbs\ethics\judge.A113 h:\home\attarney\judge.A113 7~/ ORDINANCE NO. :¿?7Y ORDINANCE OF THE CITY OF CHULA VISTA AMENDING SECTION 2.28.110 OF THE CHULA VISTA MUNICIPAL CODE RELATED TO THE ORGANIZATION OF THE BOARD OF ETHICS The City Council of the City of Chula vista does ordain as follows: SECTION I.: That section 2.28.110A of the Chula vista Municipal Code is hereby amended as follows: 2.28.110 Organization. A. The Board shall be composed of seven members appointed by the city council for a term of four years, as prescribed by the provision of the City Charter. and the Municipal Code of the City of Chula vista. Prior to exercising their authority to appoint a person to membership, the city council shall refer for recommendation the list and qualifications of applicants to the Presiding Judge of the South Bay County Division of the San Dieao Superior Mwu~(,.;ipð.l Court J\.oLJ~,-,iQl Dist:t:ict or his or her designee, who shall review the list of applicants and their qualifications, and who should select not less than five for the purpose of conducting in person interviews and who shall conduct such interviews. If said Judge or designee declines or fails to review such applicants, or conduct such interviews, or make such recommendations, then the council shall interview such applicants themselves personally, and may make an appointment jointly passed with four affirmative votes. No such person may be appointed as a member, or shall be entitled to retain their membership, if he or she, within the past ten (10) years prior to the date of appointment, has been convicted of a crime involving moral turpitude, or has been found to have committed a criminal violation of the Fair Political Practices Act. III 1/1 7--2 SECTION II.: This ordinance shall take effect on the thirtieth day from and after its adoption. Presented by 9fl1u~ ~(DOO +v John M. Ka en City Attorney ?--3 and be in full force second reading and COUNCIL AGENDA STATEMENT ITEM t MEETING DATE April 20. 1999 ITEM TITLE: RESOLUTION 1 qL{Ò 7 Approving Various Personnel Actions Including Reclassifications, Salary Adjustments, and the Addition of Positions. SUBMITTED BY: DIRECTOR OF HUMAN RESOURCES (!ßJ REVIEWED BY: CITY MANAGER (4I5th Vote: Yes]LNo_) RECOMMENDATION: Exhibit A. Adopt Resolution approving various personnel actions detailed in BOARD/COMMISSION RECOMMENDATION: N/A DISCUSSION: The following requests for salary adjustments, reclassifications, and the addition of new positions all result from the growth the City is experiencing. This growth has resulted in increased volume of work, complexity of issues, recruitment and retention difficulties, and the need to do things more efficiently than in the past. Approval of each of the following recommendations will address one or more of these needs. For this reason they are presented now rather than as part of the upcoming budget process. Department: Library and Recreation Recommendation: Reclassify the Administrative Office Assistant 1/ position in Recreation to Customer Service Representative, effective January, 1999; and move the position to the Public Works/Operations budget. Earlier this year, Council approved the reclassification of two Administrative Office Specialists to Senior Administrative Office Specialist. One position was in the Library Division and one in Recreation. At that time there should have been a third position recommended for reclassification. The position inadvertently omitted was the Administrative Office Assistant II position in Recreation, which is responsible for the Parks Reservation System and customer assistance at the public counter. Additionally, the incumbent provides a full range of clerical support to Recreation staff. These duties are consistent with the Customer Service Representative class specification, and are well above the general clerical duties associated with the Administrative Office Assistant II class. Another significant difference between the position in question and the journey level class, is the level of supervision. Because the incumbent has full responsibility for the Parks reservation process, supervision on day-to-day duties is minimal. The position requires the ability to deal with a myriad of problems without the immediate assistance of a supervisor. - 1 - 8'-1 Item Meeting Date April2Q, 1999 Though the duties will remain unchanged, it has become apparent that moving this position to Public Works/Operations with the Parks Division management staff is appropriate at this time. Service to the community will be enhanced with the availability of additional clerical back-up and eventual cross-training of staff at the same level. Departments: Police and Public Works Recommendation: Reclassify the Principal Management Assistant positions in Police and Public Works to Administrative Services Manager (Unclassified) in the Senior Management group, at the salary level of Purchasing Agent and Risk Manager. With the growth of the City have come increased workloads, more complex financial issues, technological advances, and many changes in job duties. No departments have experienced these changes to a greater degree than Police and Public Works. While changes are felt throughout all City departments, in these two, the Principal Management Assistants (PMA) have assumed a far greater level of responsibility than the existing classification provide for. They have assumed roles consistent with the Senior Managers in the respective departments and are integral members of the senior management teams. In more than one instance, both incumbents coordinate activities between large and/or diverse divisions or between their department and Finance or Administration. Additional citywide responsibilities may be a significant aspect of the job duties. Over the past three years, the City and the Police Department have grown dramatically. What has not kept pace is the level of civilian support. Additionally, the complexity and sophistication level of the department's fiscal component has increased thereby requiring expanded management skills. The grant component alone has grown from one, $300,000 grant for four officers, to the current level of 18 grants for $2.2 million for 32.65 positions. Monitoring of all grants, as well as, the budget and CIP development/monitoring is the responsibility of the Principal Management Assistant (PMA). On a daily basis, the PMA supervises the Business Office Manager's fiscal duties; manages the departmental budget, procurement and contract activities. It is proposed that the PMA, if reclassified to Administrative Services Manager, would assume responsibility for auditing and updating of the Master Fee Schedule and licensing; grant writing as well as grant monitoring; contract administration; and research and development. These duties are clearly above the PMA level, and reclassification to a higher level in the Unclassified Service as a Senior Manager is appropriate. The duties and responsibilities of the Principal Management Assistant (PMA) in the Public Works Department have increased significantly over the past three years, since the second PMA position for the Department was deleted. The PMA is responsible for the submittal and overseeing of the Department's $16 million General Fund budget, monitoring and maximizing revenues, making staff time reimbursements to the General Fund, and submitting $24 million in Special funds budgets, such as Open Space, Garage, and Sewer Fund. In addition, the PMA works directly with the Deputy City Manager in the preparation of the City's $15 million Capital Improvement Project budget. The PMA reports to the Director of Public Works, and works closely with the Division heads for Engineering, Operations, and Transit. The PMA acts as business office manager for the Department, responsible for the work done by the -2- ?~;¿ Item Meeting Date April 20. 1999 Engineering Administrative support staff, and the technical staff in Operations Administration. The PMA will be responsible for working with Finance on updating the Master Fee Schedule, revising full cost recovery factors (FCR), implementing a new project accounting numbering system to track staff time usage; and will continue to perform other administrative duties such as assisting with preparing bid requests for contracts, updating Operations' work management system and fleet management system, and working with the Fleet Manager in calculating and tracking the annual vehicle and equipment maintenance and replacement charges for the City fleet. It is proposed that the PMA, if reclassified to Administrative Services Manager, would continue assuming responsibility for these duties, as well as working with other employees on special projects for the Department, and supervising management analysts, technicians or assistants. These duties are above the PMA level and reclassification to a higher level in the Unclassified Services as a Senior Manager is appropriate. Department: Public Works/Engineering Recommendation: Increase salary ranges as follows: Assistant Engineer I: Assistant Engineer 11: Civil Engineer: Land Surveyor: Senior Civil Engineer: 10% 10% 10% 10% 5% The aforementioned increases are necessary if the City is to recruit and retain well-qualified employees to keep pace with the increasing workload demands. It has been extremely difficult to recruit a sufficient number of qualified applicants, and when offered a position, eligibles often decline because they have been offered higher paying positions in other agencies. This experience over the last two years has shown that without increases, the City will be unable to attract employees with the necessary education and skills and will further risk losing the valuable existing employees to other agencies that pay more. A survey of comparable classifications in other public agencies shows that the City of Chula Vista is ranked third or fourth in the County (depending upon classification). The recommended increases, coupled with the City's excellent benefit package. should enable recruitment of well-qualified engineers from other local agencies or the private sector. Department: Planning/Building Recommendation: Increase the salary range for Chief Plans Examiner - 23.41 % (This will bring the CPE to the level recommended for Senior Civil Engineer) and move to Mid Management Recruiting well-qualified Chief Plans Examiners has long been difficult for the Building Division. Over the last three years, the position has become vacant four times. This - 3 - 8'<3 Item Meeting Date April2Q, 1999 incredibly high turnover has had a significant impact on the Division's efficiency and morale. It has become increasingly clear that the basis for the turnover is salary. The position of Chief Plans Examiner not only requires a high degree of engineering technical ability, but also the ability to manage the Plan Review Section and assume the role of Acting Building Official as needed. Adding to these requirements is the adoption of more complex building codes and increasing workload. In addition to moving this position to Mid-Management, the class specification will include a requirement for licensing as a Civil or Structural Engineer. Recommendation: Increase the salary range for Plans Examiner 23.41 %. (This will maintain the existing internal relationship between Chief Plans Examiner and Plans Examiner) We have experienced similar problems recruiting and retaining qualified Plans Examiners. The increase in construction activity is not unique to Chula Vista. Most local agencies and CalTrans are experiencing great difficulty recruiting Engineers, Plans Examiners, and Building Inspectors. A salary increase is essential if we are to keep up with the workload in the development services departments. Recommendation: Increase the salary range for Code Enforcement Manager 15.0% The recommended increase will create an appropriate internal relationship between the two Mid-Management positions in the Building Division. Without the adjustment, the Code Enforcement Manager would be compensated at a lower rate than the Plans Examiners. Given the additional management level duties associated with the supervision of the Building Inspection/Code Enforcement Section, the resulting spread between supervisor and subordinate classifications is appropriate. Department: City Clerk Recommendation: Change the title of the Administrative Secretary position to Confidential Administrative Secretary and move the position to the Confidential Unit. No change in salary is recommended. This recommendation is based on need for the incumbent to have access to sensitive, confidential labor relations' material. In preparing the Agenda packets, the incumbent is in a position to review all labor relations-related materials that are forwarded to the Council. For this reason, including the position in the Confidential Unit with similar positions is appropriate. Department: Community Development Recommendation: Reclassify the Environmental Projects Manager position to Planning and Environmental Manager, in the Unclassified Service, and increase the salary by 12.89%, the same level as the other division managers in the department. This position was added to the department approximately five years ago. It was created to process environmental approvals and manage consultants in a proactive effort to expedite -4- ~- tf Item Meeting Date April 20. 1999 important economic development projects. (It is to further this goal that a Senior Planner position was added in the current budget.) Since its creation, the department has grown to rely upon the incumbent for policy development and higher-level project management duties. Duties and responsibilities assigned to this position will support coordinating and facilitating consensus on planning and environmental policy issues for the Department's redevelopment, economic development, and housing projects, and will include supervision of the new Senior Planner. The recommended reclassification will create an appropriate supervisor/subordinate spread between the Planning and Environmental Manager and Senior Planner and are on a par with the other division managers: Redevelopment Coordinator, Housing Coordinator, and Economic Development Manager. FISCAL IMPACT: Fiscal impact for the remainder of FY 98-99 is $53,094. Fiscal impact for FY99/00 will be $275,281. A portion of the adjustment cost for FY 99/00 will be reimbursed from various fees and reimbursements ($138,552). -5- g___ ~ Item Meeting Date April 20, 1999 Exhibit A DEPARTMENT CURRENT POSITION/ PROPOSED POSITION/BENEFIT COST FOR FUND SOURCE GROUP REMAINDER .. E" STEP SALARY ANNUAL "E" STEP SALARY OFFY Library! Administrative Office Customer Service Rep.! Recreation Assistant II Move to Public WorkslOps Salary Savings $27,027 $31,041 $562 Police Principal Administrative Services Management Manager (UC)! Salary Savings Assistant Senior Management $62,536 $73,506 $2,761 City Clerk Administrative Confidential Administrative Secretary Secretary! Salary Savings Confidential Unit $36,293 $36,293 $162 Community Environmental Planning Environmental Development Projects Manager Manager (UC) Salary Savin9s $62,536 $70,592 $1,970 Public Works! Assistant Engineer I Engineerina $46,055 $50,660 $6,747 General Fund Assistant Engineer II $53,311 $58,642 $11,273 General Fund Civil Engineer $61,850 $68,035 $11,844 General Fund Land Surveyor $61 ,850 $68,035 $1,396 General Fund Senior Civil $71,952 $75,550 $4,362 General Fund Principal Administrative Services Management Manager (UC)!Senior Assistant Management $62,536 $73,506 $2,761 General Fund Planning! Building Chief Plans Examiner $61 ,220 $75,550 $2,183 General Fund Plans Examiner $47,846 $59,045 $5,054 General Fund Code Enforcement Manager General Fund $54,381 $62,538 $2,019 TOTAL $53,094 g;-- ?- - 6 - RESOLUTION NO. 19-'/37 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING VARIOUS PERSONNEL ACTIONS INCLUDING RECLASSIFICATIONS, SALARY ADJUSTMENTS, AND THE ADDITION OF POSITIONS WHEREAS, the requests reclassifications and the addition of growth the city is experiencing; and for salary adjustments, new positions all result from WHEREAS, this growth has resulted in increased volume of work, complexity of issues, recruitment and retention difficulties, and the need to do things more efficiently than in the past; and WHEREAS, approval of each of the recommendations will address one or more of these needs. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula vista does hereby approve the following personnel actions including reclassifcations, salary adjustments, and the addition of positions: 1. Library and Recreation - Reclassify the Assistant II position in Recreation Representative, effective January, 1999; to the Public Works/Operations budget. Administrative Office to Customer Service and move the position 2. Public Works/Engineering - Increase the salary range by 10% for the positions of Assistant Engineer I; Assistant Engineer II, Civil Engineer and Land Surveyor and 5% for Senior civil Engineer. Reclassify the Principal Managment Assistant position to the Senior Management position of Administrative Services Manager in the Unclassified Service. 3. Planning/Building - Increase the salary for the Chief Examiner and the Plans Examiner by 23.41% and the Enforcement Manager by 15%. Plans Code 4. Police Reclassify the Principal Management Assistant position to the Senior Management position of Administrative Services Manager in the Unclassified Service. 5. City Clerk - Change the title of the Administrative Secretary position to Confidential Administrative Secretary and move the position to the Confidential unit. 1 g'» 6. Community Development - Reclassify the Environmental proj ects Manager position to Planning and Environmental Manager, in the Unclassified Service, and increase the salary by 12.89% to the same level as the' other division manager in the department. Presented by Approved as to form by ~ -yVl~ ~-O-~ John M. Kaheny, City Attorney Candy Emerson, Director of Human Resources H:\home\attorney\reso\reclass.var 2 ?rfS COUNCIL AGENDA STATEMENT ITEM 1 ITEM TITLE: MEETING DATE April 20. 1999 Resolution ) 91"J~aiVing the City's formal bidding process and approving contract between the City of Chula Vista and Shannon Associates to provide classification/compensation services to the City. SUBMITTED BY: Director of Human ResO~ff\ Q)/ REVIEWED BY: City Manag~ W- ~ \ (4/5th Vote: Yes.x No_) In the 1998/99 budget, Council approved t~e addition of $80,000 to the Human Resources Department budget for the purpose of hiring a consultant to conduct a comprehensive classification/compensation study of all non-safety positions in the City. A committee was formed of representatives from CVEA, WCE, Mid-Management, Confidential, Senior Management and Executive Management to prepare a Request for Proposal and review the submittals. RECOMMENDATION: Approve Resolution authorizing the City Manager execute an agreement (Attachment A) between the City and Shannon Associates not to exceed $80,000 for classification/compensation services, and waiving the City's formal bidding process. BOARD/COMMISSION RECOMMENDATION: N/A DISCUSSION: In response to a recognized need for a citywide classification/compensation study of all non-safety positions in the City, the Council authorized expenditure of up to $80,000 to hire a consultant to conduct a comprehensive study and make recommendations for adjustment. Subsequently, a committee of representatives from each recognized "group" was formed to assist in consultant selection and design of the process. A sub-group of that committee assisted in the preparation of a Request for Proposal (RFP). The Human Resources Department followed Chapter 2.56 of the Municipal Code. In response to that RFP, the City received 4 proposals. 1 9--/ _._'·_·_m.__·___~ ..._____....,._.....____.._._ Item Meeting Date April 20. 1999 A City Selection Committee was formed which was comprised of representatives from CVEA, Mid-Management and the Human Resources Department. The criteria utilized by the Selection Committee was 1) experience in conducting municipal classification analysis; 2) ability to personally interview the majority of employees; 3) appropriateness of the classification questionnaire; 4) the firm's technical and professional qualifications; and, 5) cost. The following are the results of the Selection Committee's analysis: Reason Firm Proposed Fee for Non-Responsiveness Cost; would not meet with Johnson & Associates $96,000 each employee Would not meet with each Personnel Concepts, Inc. $75,000 employee; classification form was too complex Lacking in experience, Nash and Co, Inc. $37,500 technical qualifications Cost, classification form was Fox Lawson & Assoc. $135,000 too complex Based upon the Committee's analysis, it has been determined that the aforementioned proposals be classified as non-responsive. After discussing alternatives with other Human Resources professionals and the Committee, it was determined that three possible courses of action could be pursued: .¡' Re-issue a RFP in the hopes of attracting other firms that would more closely meet the City's needs. .¡' Have Human Resources staff conduct the study "in-house." .¡' Identify a consultant who could provide training and oversight but not conduct all phases of the process. The first option was dismissed after a number of firms were contacted and indicated that few consultants perform such comprehensive studies. The second option was discarded due to existing workload. The third alternative was further explored with the Committee, and the consulting firm of Shannon Associates. This firm has had extensive experience in classification analysis work, and is familiar with classification and compensation issues in California. References proved to be excellent and the cost is within the allotted budget. Based upon staff's findings above, staff recommends that Council waive the City's formal bidding process as impractical pursuant to Municipal Code § 2.65.070. 2 9-.2 Item Meeting Date April 20. 1999 Scope of Work The attached agreement for consultant services includes the scope of work to be performed by the Consultant. Phase I - Formulation of a Compensation Policy and Audit of Classification Plan- The Consultant will meet with City Council Members, City Manager, Human Resources Director, Department Heads, and the Classification Committee to develop a compensation policy that will include, but may not be limited to: v' Competitive position to be maintained by City of Chula Vista v' Measurement of that position v' Balance of market pricing and internal relationships v' Appropriate mix of base salary, other cash and benefits v' Linkage of performance to compensation At the same time, the Consultant, with assistance from City staff, will perform an audit of the City's classification plan and will prepare a report detailing specific problem areas and a strategy to resolve such problems. Phase 11 - Conduct a Salary or Total Compensation Survey - This phase includes selection of appropriate benchmark survey classes; development of survey methodology; and, collection and analysis of survey data. City staff will assist in the collection of data. Phase 111- Development of a Revised Salary Plan - Consultant will develop a salary plan based upon an analysis of survey data and internal relationships between classifications. Phase IV - Development of an Appeal Process - Consultant will assist staff in the development and oversight of an appeal process for employees. Phase V - Preparation of a Final Report - The Consultant will provide documentation of the City's compensation policy, survey methodology, survey results, revised salary plan, and implementation plan. The contract for services (Attachment A) has been reviewed and approved by the City Attorney. 3 f- J Item Meeting Date April 20. 1999 FISCAL IMPACT: The total costs for consultant services will not exceed $80,000. Sufficient funds have been budgeted in Human Resources. Staff time and associated costs will be absorbed. Attachment A - Agreement between City of Chula Vista and Shannon Associates 4 ~~y RESOLUTION NO. /9I/Yf'" RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA WAIVING THE CITY'S FORMAL BIDDING PROCESS AND APPROVING CONTRACT BETWEEN THE CITY OF CHULA VISTA AND JOHN SHANNON ASSOCIATES TO PROVIDE CLASSIFICATION/ COMPENSATION SERVICES TO THE CITY WHEREAS, in the 1998/99 budget, Council approved the addition of $80,000 to the Human Resources Department budget for the purpose of hiring a consultant to conduct a comprehensive classification/compensation study of all non-safety positions in the City; and WHEREAS, a city Selection Committee was formed to develop a Request for Proposal and to review the four proposals submitted; and WHEREAS, the Committee concluded that none of the four proposals submitted met all criteria specified in the Request due to cost complexity of the classification form and other factors; and WHEREAS, the Committee decided that with the assistance of John Shannon Associates, City staff would be trained in classification analysis and compensation comparison; and WHEREAS, John Shannon Associates has extensive experience in classification analysis work, is familiar with classification and compensation issues in California, and had excellent references; and WHEREAS, with this training, Human Resources staff and other management staff would review data collected and with the consultant's assistance, complete the process. NOW, THEREFORE, BE IT RESOLVED in light of the foregoing, that the City's formal bidding process is waived as impractical pursuant to Chula vista Municipal Code Section 2.56.070. BE IT FURTHER RESOLVED that the City Council of the City of Chula vista does hereby approve the contract between the city of Chula Vista and John Shannon Associates to provide classification/ compensation services to the City, a copy of which shall be kept on file in the office of the city Clerk. BE IT FURTHER RESOLVED that the City Manager of the City of Chula Vista is hereby authorized and directed to execute said contract on behalf of the City of Chula vista. Presented by Approved as to form by Candy Emerson, Director of Human Resources ~--s- ATTACHMENT A AGREEMENT FOR SERVICES BETWEEN THE CITY OF CHULA VISTA AND SHANNON ASSOCIATES TillS AGREEMENT is entered into as of the 20th day of April between the City of Chula Vista, hereinafter referred to as the "CITY" and Shannon Associates, hereinafter referred to as "CONSUTLANT". RECITALS WHEREAS, the CITY requires assistance in conducting a classification and compensation study; and WHEREAS, CONSUTLANT is ready, willing, and able to provide such services; I. The CITY herein retains CONSULTANT for the purpose of providing assistance In conducting a classification and compensation study. 2. Said services to be provided by CONSULTANT to the CITY shall include assistance in the following areas (Duties, Scope and Work Schedule detailed in Exhibit A): a. developing and implementing a Compensation Policy; b. auditing City's current classification plan to identify problems within the plan; c. working with staff in the CITY and other City departments, as needed, to properly develop classification descriptions that accurately reflect employees job duties and eliminate the problems identified in the classification audit; d. conducting a compensation survey that will compare City compensation levels to that of the appropriate labor markets; e. providing written reports that may be required by the CITY including, but not limited to: Compensation Policy, Classification Audit, Salary Plan, and Final Report that includes documentation of the City's compensation policy, survey methodology, survey results, revised salary plan and implementation plan; and f. conducting other related activities which may arise in the course of conducting the Compensation and Classification study. The services detailed above reflect tasks to be completed over a 6-month period. 1. CONSULTANT'S DUTIES In addition to the duties enumerated into above CONSULTANT agrees to the following: 9-¿ a. In addition to performing the Defined Services herein set forth and in Exhibit A, CITY may require CONSULTANT to perform additional consulting services ("Additional Services"), and upon doing so in writing, if they are within the scope of services offered by CONSULTANT, CONSULTANT shall perfonn same on a time and materials basis at the rates set forth in part 6a of this agreement, unless a separate fixed fee is otherwise agreed upon. All compensation for Additional Services shall be paid as set forth in 6a of this agreement. b. Standard of Care. CONSULTANT, in performing the Services under this agreement, whether Defined Services or Additional Services, shall perform in a manner consistent with that level of care and skill ordinarily exercised by members of the profession currently practicing under similar conditions and in similar locations. c. Business License. CONSULTANT agrees to obtain a business license from the City and to otherwise comply with Title 5 of the Chula Vista Municipal Code. 2. CONFIDENTIALITY Confidentiality of Data. CONSULTANT acknowledges that data on participants in the Project are sensitive and shall treat all such data as confidential and shall exercise the standard of care to protect the confidentiality and proprietary data. CONSULTANT further agrees to abide by all federal and California State laws requiring confidentiality of records. . 3. ORAL PRESENTATION It is specifically understood and agreed hereby that this contract contains the complete expression of the whole Agreement between the parties hereto, and that there are no promises, representations, agreements, warranties, or inducements, either expressed or implied by said parties, except as are fully et forth herein; and further, that this Agreement cannot be enlarged, modified, or changed in any respect except by written agreement duly executed by and between the said parties. 4. TIME Time is of the essence of this contract and each and all of its provisions. 5. WAIVER The waiver by the CITY of any breach of any term, covenant, or condition herein contained shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant, or condition herein contained. . 6. COMPENSATION a. Invoices will be submitted by CONSULTANT monthly, as work is completed. The CONSULTANT's hourly rate is demonstrated in Exhibit A, paragraph 3. Total cost to the CITY shall not exceed $60,000 for the term of 6 months commencing on or about April 20, 1999 and ending on or about October 20, 1999. Compensation will also include fees related to necessary travel expenses, printing costs, postage/delivery costs and long distance telephone call costs. All billings submitted by CONSULTANT shall contain sufficient information as to the propriety of the billing to permit the CITY to evaluate that the amount due and payable thereunder is proper. C;-l b. Charges for Services. The charges for services provided during the entire term of this Agreement are payable to CONSULTANT by the CITY within 30 days of the receipt of the billing. 7. HOLD HARMLESS CONSULTANT shall defend, indemnify, protect and hold harmless the CITY, its elected and appointed officers and employees, from and against all claims for damages, liability, cost and expense (including without limitation attorney's fees) arising out of the conduct of the CONSULTANT, or any agent or employee, subcontractors, or others in connection with the execution of the work covered by this Agreement, except only for those claims arising from the sole negligence or sole willful misconduct of the CITY, its officers, or employees. CONSULTANT's indemnification shall include claims, whether the same proceeds to judgment or not. Further, CONSULTANT at its own expense shall, upon written request by the CITY, defend and such suit or action brought against the CITY, its officers agents, or employees. CONSULTANT's indemnification of CITY shall not be limited hy any prior or subsequent declaration by the CONSULTANT. 8. INSURANCE CONSULTANT represents that it and its agents, staff and consultants employed by it are protected by workers' compensation insurance and the CONSULTANT has the coverage under public liability and property damage insurance policies which this Agreement requires to be demonstrated in the form of a certificate of insurance. CONSULTANT will provide, prior to the commencement of the services required under this agreement the following certificates of insurance on a form acceptable to the CITY prior to beginning work: Statutory Worker's Compensation coverage. General and Automotive Liability coverage to $1,000,000 combined single limit which names the City as an additional insured, and which is primary to any policy which the City may otherwise carry ("primary coverage"), and which treats the employees of the City in the same manner as members of the general public ("cross-liability coverage"). All policies shall be issued by a carrier that has a Best's Rating of "A, Class V", or better, or shall meet with the approval of the City's Risk Manager. All policies shall provide that same may not be canceled without at least thirty (30) days written notice to the CITY. 9. TERMS OF AGREEMENT a. Commencement. The term of this Agreement shall be for a period of 6 months commencing on April 20, 1999 and ending on October 20,1999. b. Termination of Agreement for Cause. If, through any cause, CONSULTANT shall fail to fulfill in a timely and proper manner CONSULTANT's obligations under this Agreement, or if CONSULTANT shall violated any of the covenants, agreements or stipulations of this Agreement, the City shall have the right to terminate this Agreement by giving written notice to CONSULTANT of such termination and specifying the effective date therefore at least five (5) days before the effective date of such termination. In that event, all finished or unfinished documents, data, studies, surveys, evaluation surveys, interview surveys, drawings, maps, reports and other materials prepared by CONSULTANT shall, at the option of the City, become the property of the City, and CONSULTANT shall be entitled to receive just and 9-~ equitable compensation for any work satisfactorily completed on such documents and other materials up to the effective date of Notice of Tennination, not to exceed the amounts payable hereunder. and less any damages caused City by CONSULTANT's breach. 10. ASSIGNABILITY The services of CONSULTANT are personal to the CITY, and CONSULTANT shall not assign and interest in this Agreement, and shall not transfer any interest in the same (whether by assignment or novation), without prior written consent of CITY. 11. INDEPENDENT CONTRACTOR CITY is interested only in the results obtained and CONSULTANT shall perform as an independent contractor with sole control of he manner and means of performing the services required under this Agreement. CITY maintains the right only to reject or accept CONSULTANT's work products. CONSULTANT and any of the CONSULTANT's agents, employees or representatives are, for all purposes under this Agreement, an independent contractor and shall not be deemed to be an employee of the CITY, and none of them shall be entitled to any benefits to which CITY employees are entitled including but not limited to, overtime, retirement benefits, worker's compensation benefits, injury leave or other leave benefits. Therefore, CITY will not withhold state or federal income tax, social security tax or any other payroll tax, and CONSULTANT shall be solely responsible for the payment of same and shall be solely responsible for the payment of same and shall hold the CITY harmless with regard thereto. 12. ADMINSTRATIVE CLAIMS REQUIREMENTS AND PROCEDURES No suit or arbitration shall be brought arising out of this agreement, against the CITY unless a claim has first been presented in writing and filed with the CITY and acted upon by the CITY in accordance with the procedures set forth in Chapter ].34 of the Chula Vista Municipal Code, as same may from time to time be amended, the provisions of which are incorporated by this reference as if fully set forth herein, and such policies and procedures used by the CITY in the implementation of same. Upon request by the CITY, CONSULTANT shall meet and confer in good faith with CITY for the purpose of resolving any dispute over the terms of this Agreement. 13. MISCELLANEOUS a. CONSULANT not authorized to Reoresent City. Unless specifically authorized in writing by the CITY, CONSULTANT shall have no authority to act as CITY's agent to bind CITY to any contractual agreements whatsoever. b. Entire Al!J'eement. This Agreement, together with any other written document referred to or contemplated herein, embody the entire Agreement and understanding between the parties relating to the subject matter hereof. Neither this Agreement nor any provisions hereof may be amended, modified, waived or discharged except by an instrument in writing executed by the party against which enforcement of such amendment, waiver or discharge is sought. c. Caoacity of Parties. Each signatory and party hereto hereby warrants and represents to the other party that it has legal authority and capacity and direction from its principal to enter it to this Agreement, and that all resolutions or other actions have been taken so as to enable it to enter into this Agreement. 9-7 14. GOVERNlNGLAWNENUE This Agreement shall be governed by and construed in accordance with the laws of the State of California. Any action arising under or relating to this Agreement shall be brought only in the federal or state courts located in San Diego County, State of California, and if applicable, the City of Chula Vista, or as close thereto as possible. Venue for this Agreement, and perfonnance hereunder, shall be the City of Chula Vista. IN WI1NESS WHEREOF, the parties have executed this Agreement as of the date written above. CONSULTANT CHULA VISTA John Shannon, Shannon Associates Candy Emerson, Director of Human Resources CITY OF CHULA VISTA David D. Rowlands, Jr., City Manager 7-/t/ Exhibit A I) General Duties a) The Consultant shall conduct a Classification and Compensation Study ("Study") for the City of Chula Vista. The consultant shall prepare a Compensation Policy after consulting with the City Manager, City Council, City Employee Committee and the various Labor Unions within the City. The Consultant shall then oversee and conduct a detailed audit of the City's Classification Plan. The Consultant will provide training to selected City managers who will collect classification data for the audit. This training will instruct the managers on the appropriate methods for collecting said data. Once the data has been collected and determined to be as accurate as possible, the Consultant will assess the overall classification structure, job descriptions and career ladders. In this assessment, the Consultant will identify significant classification issues and recommend a strategy to significantly reduce or eliminate the problems. The Consultant will recommend a method for employees to address concerns with the outcome of the classification audit. The Consultant will then conduct a total compensation survey. This compensation survey will utilize the appropriate labor markets and sound survey methodology. The survey will include base wage analysis for all benchmark classifications, as well as, total compensation analysis for five representative survey classifications (i.e. at least one survey class from each level of the organization). The Consultant will develop a revised salary plan that is based upon the analysis of the market data, and the maintenance of internal salary relationships. Upon completion of the above duties, the Consultant will provide to the City a detailed final report that includes the documentation of the City's compensation policy; the methodology used for the compensation survey; the results of the compensation survey; a revised salary plan; and a recommended implementation plan. 2) Scope of Work and Schedule: a) Detailed Scope of Work i) The consultant shall conduct a Classification and Compensation Study ("Study") for the City. This Study will include: (I) Formulating a Compensation Policy that meets the approval of the City Council, City Manager and recognized Labor Unions within the City. This Compensation policy will include: (a) Definition of an appropriate labor market for the various levels of classifications (b) Competitive position the City wants to maintain in the market (c) How to measure competitive position (i.e. base salary, total cash, total compensation) (d) Importance of market pricing vs. internal relationships (e) Appropriate mix of base salary, total cash and benefits (I) The linkage of performance to compensation (2) Performing an Audit of the City's Classification Plan and present an audit report that details specific problem areas and recommends a strategy to resolve the problems. This audit will include: (a) Overview assessment of the City's classification structure, job descriptions and career ladders (b) Initial evaluation of each City position to identify significant classification issues (c) Preparation of an audit report that identifies specific problem areas and recommends a strategy to resolve the problems (3) Conduct a Total Compensation Survey. This will include selecting appropriate labor markets and survey classes; development of survey methodology; and collection and analysis of total compensation survey data including: ( a) Base salary data for each survey class (b) Total compensation analysis of five representative survey classes (4) Development of a revised salary plan that is based upon: (a) Analysis ofthe market data (b) Internal salary relationships (5) Preparation of a fmal report that includes: (a) Documentation of the City's compensation policy (b) Survey methodology 9-// (c) Survey results (d) Revised salary plan (e) Implementation plan b) Date for Commencement of Consultant Services: i) Same as Effective Date of Agreement c) Dates or Time Limits for Delivery of Deliverables i) Review compensation policy with City Council ii) Final version of Compensation Policy iii) Presentation of draft classification audit to Committee and City Manager iv) Presentation of draft survey report with City Manager and HR Director v) Presentation of draft survey report with Employee Committee vi) Distribute report to study participants vii) Collect comments and questions fÌ'om study participants viii) Presentation of final draft of survey report wi City Council ix) Presentation of draft salary plan to CM and HR Director x) Presentation of draft salary plan to Employee Committee xi) Presentation of final compensation report and salary plan 3) Consultant Fee's (Rate Schedule) a) President, Primary Consultant b) Consultant c) Consultant d) Consultant John Shannon Mary Egan Kris Kristensen Dave Harris 9~/C:< $150/hr $150/hr $125/hr $125/hr May 14, 1999 May 21,1999 May 18, 1999 July 30, 1999 July 30, 1999 August 6, 1999 August 20, 1999 August 27, 1999 August 27, 1999 August 27, 1999 September 10, 1999 COUNCIL AGENDA STATEMENT Item ffi ITEM TITLE: Meeting Date: 4-20-99 Resolution /9J/Yi_ Accepting Fingerprint Scanning Technology from the Department of Justice. Chief of POIiC~ ~ City Managert;n 'vM j ¡J ~ -U ~\4/5ths Vote: Yes_ Noj_) SUBMITTED BY: REVEIWED BY: BACKGROUND: Since 1998, the Department of Justice (DOJ) has promoted the development of Fingerprint Scanning Technology that is replacing the inked and rolled fingerprint system. Effective January 2000, Live Scan fingerprints will be the only acceptable method of fingerprinting acceptable to DOJ. RECOMMENDATION: That Council accept the Live Scan Fingerprint System from the Department of Justice. BOARDS/COMMISIONS RECOMMENDATIONS: Not Applicable DISCUSSION: Fingerprint services are currently provided by the Chula Vista Police Department utilizing the inked and rolled fingerprint card system. Effective January, 2000, fingerprint cards will nO longer be accepted by the Department of Justice (DOJ). As a result, DOJ has begun a statewide implementation program to place "free" applicant Live Scan devices in selected sites. The Chula Vista Police Department has been selected to receive a free applicant Live Scan device valued at $50,000 to replace its fingerprint card system. The Live Scan device will enable the department to digitize the fine detail of fingerprints and transfer both the fingerprint data and applicant information electronically to DOJ and receive the results within hours. There are a few stipulations the Department must comply with in order to receive the Live Scan device. The stipulations include the following: /¡l~1 1) The Police Department shall provide a disability compliant location which is not in an arrestee allowed area, to place the Live Scan device: 2) The Police Department shall provide full-time equivalent staffing to operate the Live Scan device and to communicate with DOJ's central site; and 3) The Police Department shall pay the annual maintenance cost for the Live Scan device. The cost of the stipulations can be offset by additional revenue (estimated at a minimum of $25,000) generated from the fingerprint services provided. Presently, the City generates approximately $16,000 annually by the inked and rolled fingerprint system. Human Resources estimated their "new applicant" fingerprinting costs at $2500 annually. Recently they entered into a contract with the San Diego School District to process their new applicant fingerprints. This contact will be terminated once the Live Scan is in place and it will have an added benefit for cost avoidance. Acceptance of this technology would result in an opportunity to generate additional fingerprint revenue estimated at $25,000, thus offsetting the staffing and annual maintenance cost. Furthermore, the department would have the unique opportunity to provide this required service to our local schools, local service providers (YMCA, the Boys and Girls Club, pre- schools, etc.). Missing this opportunity would mean a loss of the offered technology, valued at $50,000, and a minimum loss of $16,000 annually from fingerprint revenues. In addition to loss of revenue, the City of Chula Vista will loose the opportunity to become the South County Live Scan provider. In the event we decline acceptance of the equipment; the Department will need to purchase the same equipment after January 2000 if the City continues to offer this service. FISCAL IMPACT: For the remainder of the fiscal year, costs associated with this project will be absorbed in the existing Police Department budget. Future years will require the City to maintain a full-time equivalent position estimated at an amount of $19,000 and pay an annual maintenance fee of $5,600. Staff anticipates the costs of both the position and maintenance will be offset by fingerprint revenues. / ¿:J - ø2... RESOLUTION /9737 . RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING FINGERPRINT SCANNING TECHNOLOGY FROM THE DEPARTMENT OF JUSTICE. WHEREAS, the Chula Vista Police Department has the opportunity for further technological integration with State and Federal Agencies; and, WHEREAS, all California police agencies will be required to use fingerprint scanning technology by 2000; and, WHEREAS, the Police Department is eligible to receive a Livescan fingerprint scanner valued at $50,000 at no cost to the Department; and, WHEREAS, cost avoidance for City applicants is estimated at $2,500 per year; and, WHEREAS, the average fees generated by the Police Department for fingerprinting over the last three years is $16,000; and, WHEREAS, the training for Livescan is furnished by DOJ at no cost to the City. NOW, THEREFORE, BE IT RESOLVED that the City Council hereby accepts the Live Scan Fingerprint system from the Department of Justice. Presented by: {2la~J t&,,~ Richard P. Emerson Police Chief Approved as to form by: ~¡~J~~ ohn M. Kah City Attorney jf) -~ ...-."----".- COUNCIL AGENDA STATEMENT ITEM / / MEETING DATE: 04/20/99 REVIEWED BY: Resolution /9 Jj 'I ¡J accepting a reimbursement to the Library and Recreation Department from Universal Service Administrative Co., through Pacific Bell; and amending FY 98/99 budget; and appropriating $14,471.55 in unanticipated revenue for related expenses Library and Recreation DTI~O~ City Manage~ ~ ~~415thS Vote: YES.lL NO -> ITEM TITLE: SUBMITTED BY: In a letter dated March 4, 1999, from the Universal Service Administrative Co. to Pacific Bell (attached), the Chula Vista Public Library has been advised that it will receive a reimbursement in the amount of $14,471.55 for the discounted portion of Internet and data line service provided by Pacific Bell. The Library is eligible for this discounted service as a participant in the Federal Universal Service (AKA E-Rate) Program. The Library and Recreation Department is requesting to amend the FY 98/99 budget and appropriate these funds for needed expenditures. STAFF RECOMMENDATION: That Council adopt the Resolution accepting the reimbursement from Universal Service Administrative Co., through Pacific Bell, and appropriating the funds for expenditures in the Library and Recreation Department budget. BOARDICOMMISSION RECOMMENDATION: N/A DISCUSSION: The City of Chula Vista Public Library is eligible for the "E-Rate" discount program as a result of federal legislation. The Universal Service Program was implemented by Congress to ensure affordable telecommunication and information services for eligible schools and libraries. In order to establish eligibility, libraries must submit a Technology Plan that certifies that they maintain a "sufficient budget to acquire and maintain the hardware, software, professional development, and other services that will be needed to implement [their] strategy for improved education or library services." The Chula Vista Public Library has submitted all required documentation to be an eligible entity and be provided with discounted telecommunication services. The $14,471.55 is a reimbursement for calendar year 1998. The 66% rate of discount is based on the school lunch program eligibility rate at neighborhood schools and is applied to Internet services for patrons and staff; and network data lines to connect the three branch libraries to each other, and to the Internet Service Provider. [E:\home\library\a113\E-rate. A13 - 03-30-99} /)/ I The Library requests that the reimbursement now being received be appropriated back to the Library and Recreation Department budget, and be used for the acquisition and maintenance of hardware, software, and professional development. Such action will insure that the City is meeting the legislative intent of the discount program. These reimbursed funds will be used to implement improved library services vis-à-vis new technologies 1. Provide funding for staff training on Microsoft Access (data base) and Excel (spreadsheet) ($1,350) computer software programs; and 2. Purchase computer room furniture and storage racks for new network hardware ($7,500); and 3. Purchase 14 ergonomic computer desk chairs for staff ($5,621.55). The appropriated line items are shown in Attachment "B". FISCAL IMPACT: Accepting this reimbursement in FY 98/99 to the Library and Recreation Department will provide for needed supplies and services. The Library will receive a second reimbursement check later this year for the period of January - June 1999. In FY 99/00 the discount will appear as a credit on the Library's telecommunication bills. Those savings have already been taken into account during the preparation of the FY 99/00 budget. Attachments: "A" - Letter from USAC dated march 4, 1999 "B" - Line Item Descriptions for Appropriated Expenditures [E:\home\Jibrary\a113\E-rate. A 13 - 03-30-99] ) /~:2 RESOLUTION NO. )9 JjJ/tJ RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING A REIMBURSEMENT TO THE LIBRARY AND RECREATION DEPARTMENT FROM UNIVERSAL SERVICE ADMINISTRATIVE CO., THROUGH PACIFIC BELL; AND AMENDING FY 98/99 BUDGET; AND APPROPRIATING $14,471.55 IN UNANTICIPATED REVENUE FOR RELATED EXPENSES WHEREAS, in a letter dated March 4, Universal Service Administrative Co. to Pacific vista Public Library has been advised that it reimbursement in the amount of $14,471.55 for portion of Internet and data line service provided and 1999 from the Bell, the Chula will receive a the discounted by Pacific Bell; WHEREAS, the Library is eligible for this discounted service as a participant in the Federal Universal Service (AKA-E- Rate) Program; and WHEREAS, the Library requests that the reimbursement now being received be appropriated back to the Library and Recreation Department budget and be used for the acquisition and maintenance of hardware, software, and professional development; and WHEREAS, such action will insure that the City is meeting the legislative intent of the discount program; and WHEREAS, these reimbursed funds will be used to implement library services by providing funding for staff training, purchasing computer room furniture, storage racks and desk chairs. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula vista does hereby accept a reimbursement to the Library and Recreation Department from Universal Service Co., through Pacific Bell. BE IT FURTHER RESOLVED that the FY 98/99 budget is hereby amended by appropriating $14,471.55 in unanticipated revenue for related expenses. Presented by Approved as to form by David Palmer, Library and Recreation Director H:\home\attorney\reso\pacbell.rem //---3 Ih~AC: UNIVER.SAL SERVICE ADMI N ISTRA,:"I~_~~O Schools and Libraries Division Box 125 - Correspondence Unit 100 South Jefferson Road Whippany, NJ 07981 Phone: 888-203-8IlU Pacific Bell Russell Foersch 666 Folsom street Room 825 San Francisco, CA 94107 March 04, 1999 Subject: Approval of Billed Entity Applicant Reimbursement For~, Pacific Bell Service Provider Identification Number: 143002665 471 Applicant: CHULA VISTA PUBLIC LIBRARY Diane Z. Bednarski 365 F ST CHULA VISTA CA 91910-2697 Billed Entity Number: 143617 Total Amount of Reimbursement Approved for Payment: $14471.55' Applicant Reimbursement Form Number: cvp1472 SLD Applicant Reimbursement Form Number: 11110 Contact Name for Billed Entity Applicant Reimbursement Form: Diane Z. Bednarski Preferred Mode of Contact: FAX Contact Info: (619) 427-4246 As you know from a "Funding Commitment Decisionsll letter previously sent to you, the SLD has committed to reimbursing you for the discounted portion of eligible services provided to eligible entities pursuant to Form(s) 471 filed by the 471 Applicant named above. You also know from a "Form 486 Notification" letter also sent to you previously that this 471 Applicant has filed a Form 486 advising the SLD that service has begun to be delivered. You have also worked with the 471 Applicant to complete a Billed Entity Applicant Reimbursement Form seeking reimbursement to the 471 Applicant of the discounted portion of bills paid in full to you since the effective date of the discount. The SLD has processed the Billed Entity Applicant Reimbursement Form and found it to be in compliance with Federal Communications Commission (FCC) rules. Pursuant to the Service Provider Acknowledgement page of the Billed Entity Applicant Reimbursement Form, which you signed, you must remit to the 471 Applicant as soon as possible the amount shown as "Total Amount of /)/ 'I 0061i15-M ·".v-oooo4 Reimbursement Approved for Payment II above, but in no event later than 10 calendar days after receipt of payment of the approved discounts from the Universal Service Administrative Company. You also agreed not to tender or make use of the payment of the approved discounts issued by the Universal Service Administrative Company to you prior to remitting the discount to the Billed Entity Applicant. If the "Total Amount of Reimbursement Approved for Payment II is greater than the amount of the "Total Funding Commitment Decision", then the Universal Service Administrative Company will issue a check in an amount not to exceed the "Total Funding Commitment Decision". To provide the discount amount, the "Total Amount of Reimbursement Approved for Payment", to the Form 471 Billed Entity Applicant, the service provider may (1) issue a check, or (2) issue a credit on the 471 Applicant's bill. On the following pagers) is a list, by row of Items 15 and 16 of FCC Form 471, showing the Reimbursement amount billed for each FRN. For each item, there is the Funding Request Number (FRN) , and several other identifying pieces of information. For each FRN, the SLD will deduct the amount approved for reimbursement from the Funding Commitment Decision it has made for the FRN, so that the maximum remaining amount to be paid will be the original commitment less the amount approved for reimbursement to the 471 Applicant. Explanation of Information Provided in Approval of Billed Entity Applicant Reimbursement Form Letter On the following pages we prov~de you with identifying information for the FRNs for which the 471 Applicant is seeking reimbursement. To help understand this synopsis the following definitions are provided: · Funding Request Number (FRN): A number assigned by the SLD that identifies a Funding Request. A Funding Request is a single row of Item 15 or 16. · 471 Application Number: The Form 471 Application Number assigned by the SLD to the Form 471, from Item 3b of the Form 471. · Funding Year: The funding year for which discounts have been approved. ~ Provider Contract Number: The number of the contract between the eligible party and the service provider. This will be present only if a contract number was provided on Form 471. · Total Funding Commitment Decision: This represents the total amount of discounts for the funding year that the SLD has reserved to pay the discounted cost of this service. · Reimbursement Amount for this FRN: This is the amount of reimbursement to the 471 Applicant that has been approved for the FRN. This amount will be deducted from the Total Funding Commitment Decision. · Reimbursement Request Decision Explanation (if applicable): This is the reason(s) that a Reimbursement Request may be reduced or rejected. Schools and Libraries Division/USAC Page 2 of 3 J/~S BEAR Ltr. 03/04/1999 ooil'i-M _VVV_00004 Synopsis of Approved Applicant Reimbursement Amounts by FRN Funding Request Number: 103713 471 Application Number: 31658 Funding Year: 01/01/1998 - 06/30/1999 Provider Contract Number: N/A . Total Funding Commitment Decision: $13531.32 Reimbursement Amount for this FRN: $7551.30 l"undlng t<equest NumDer: .lUj! .lj 471 Application Number: 31658 Funding Year: 01/01/1998 - 06/30/1999 Provider Contract Number: N/A Total Funding Commitment Decision: $13531.32 Reimbursement Amount for this FRN: $3917.25 l'Unalng Hequest NumDer: .lUj/.l~ 471 Application Number: 31658 Funding Year: 01/01/1998 - 06/30/1999 Provider Contract Number: N/A Total Funding Commitment Decision: $4158.00 Reimbursement Amount for this FRN: $3003.00 CC: CHULA VISTA PUBLIC LIBRARY Schools and Libraries Division/USAC Page 3 of 3 BEAR Ltr. 03/04/1999 )J~? 00'6'7-...-"""·00004 Budget 1711 1713 Total [E:\home\library\a113\E-rate. A13 - 03-30-99] LINE ITEM BUDGET Line Item 5224 5398 //~ ? ATTACHMENT "8" Amount $ 1,350 $13,121.55 $14,471.55 COUNCIL AGENDA STATEMENT ITEM TITLE: Item / ~ Meeting Date 4/20/99 Resolution J 9'1'/( Approving submission ofFY 1999-00 Transportation Development Act (TDA) Article 4.0 Claim Director of Public Works V City Manag'ëŒf<. ~ ~ (4/Sths Vote: Yes_NoX) SUBMITTED BY: REVIEWED BY: The FY 1999-00 Claim for TDA Article 4.0 funds to support Chula Vista Transit (CVT) operations and capital procurements was submitted to SANDAG and MTDB on April 1, 1999, as required by State law. A "TDA Claim" is an application for TDA operating and capital funds for the upcoming fiscal year. SANDAG issues the TDA guidelines, which includes the City's total TDA funds available for next fiscal year, during the first week in March. Staff prepares the TDA claim and submits it to both SANDAG and MTDB by the April 1 deadline. Staff then returns to Council in April for ratification of the claim. An amendment to the claim may be made by direction of Council after submission to SANDAG and MTDB. The total claim is in the amount of$2,858,684 consisting of$2,729,064 claimed against the City ofChula Vista's TDA funds and $129,620 claimed against the County of San Diego's TDA funds. RECOMMENDATION: That Council adopt resolution approving the FY 1999-00 TDA Article 4.0 claim. BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. DISCUSSION: The FY 1999-00 TDA 4.0 Claim consists of the following components: City of Chula Vista County of San Diego TDA Account TDA Account Total Operations $2,685,564 $129,620 $2,815,184 Capital 43,500 0 43,500 Total $2,729,064 $129,620 $2,858,684 The $129,620 ITom the County's TDA account is for CVT service in the unincorporated areas provided by Routes 705 and 711. The $2,729,064 is for the balance ofCVT operating and capital costs claimed against the City of Chula Vista's IDA funds as contained in the preliminary FY 1999- 00 Transit Division budget request. /:2. 1 Page 2, Item_ Meeting Date 4120/99 Following is a breakdown of estimated Transit Division costs and revenue sources for FY 1999-00. Estimated Costs: Contractual Service for CVT Operation $3,707,410 Other Supplies & Services 1,024,274 Capital Outlay 43,500 Total Estimated Costs $4,775,184 Estimated Revenue Sources: Fare Revenue $1,860,000 TDA Article 4.0 Funds 2,858,684 Investment Earnings 56,500 Total Revenue Sources $4,775,184 The claim is based on estimated costs and revenues for FY 1999-00, and may be modified due to: changes in the proposed FY 1999-00 Transit Division budget; and a difference between actual and estimated costs and revenues in FY 1999-00. FISCAL IMPACT: The FY 1999-00 TDA Article 4.0 claim contains no City of Chula Vista General Fund contribution. Transit Division operating and capital costs are funded by City of Chula Vista TDA Article 4.0 funds, County of San Diego Article 4.0 funds, farebox revenue and investment earnings. The FY 1999-00 City ofChu1a Vista TDA Article 4.0 apportionment is $3,531,133. Total estimated Article 4.0 funds available, including the FY 1999-00 claim and prior year unallocated funds, are $6,140,901. This balance can be used for future CVT operations or capital expenditures. WMG/File: DS-022 H:IHOMEIENGINEERIAGENDA ITDA99.BG ;:2 ~;Z _.___"__.._~~._m". __~._..,_".___ ..__________._.. RESOLUTION NO. J9J/~/ RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING SUBMISSION OF FY 1999-00 TRANSPORTATION DEVELOPMENT ACT (TDA) ARTICLE 4.0 CLAIM WHEREAS, the FY 1999-00 Claim for TDA Article 4.0 funds to support Chula vista Transit (CVT) operations and capital procurements was submitted to SANDAG and MTDB on April 1, 1999, as required by State law; and WHEREAS, the total claim is $2,858,684 consisting of $2,729,064 claimed against the City of Chula Vista's TDA funds and $129,620 claimed against the County of San Diego's TDA funds. NOW, THEREFORE, BE IT RESOLVED that the city Council of the City of Chula Vista does hereby approve submission of FY 1999- 00 Transportation Development Act Article 4.0 Claim in the amount of $2,858,684. Presented by Approved as to form by John P. Lippitt, Director of Public Works ~a~),"~~r torney H:\home\lorraine\rs\TDA4.0 );2 :J COUNCIL AGENDA STATEMENT SUBMITTED BY: Item /.3 Meeting Date 4/20/99 Resolution /91 -V ,)..Approving agreement between County of San Diego and City of Chu1a Vista for public transportation services for FY 1999-00 Director of Public Works ~ City Manage~ ~ ~ (4/5ths Vote: Yes_NoX) ITEM TITLE: REVIEWED BY: This agreement authorizes the City of Chu1a Vista to claim $129,620 of County of San Diego Transportation Development Act (TDA) Article 4.0 funds for provision of Chu1a Vista Transit (CVT) service in the unincorporated area ofthe County. RECOMMENDATION: That Council adopt resolution approving agreement with the County of San Diego for public transportation services for FY 1999-00. BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. DISCUSSION: This agreement authorizes the City ofChula Vista to claim $129,620 of County TDA Article 4.0 funds for CVT service provided by Routes 705 and 711 in the unincorporated area during FY 1999- 00. Route 705 operates between the Bayrront Trolley Station and Southwestern College. Route 711 operates between Plaza Bonita and Southwestern College. Both these routes pass through unincorporated areas rrom their origin points to their destinations. The estimated net cost (gross operating cost minus revenue credit) for CVT service in the County next fiscal year is $129,620, a 30% increase rrom this fiscal year's cost of $99,944. This increase is due to a recalculation of both miles operated and projected passengers in the unincorporated area resulting rrom service adjustments on both routes. This agreement estimates a gross CVT cost per mile of $3.25, estimated 64,675 passengers, and total revenue credit of $56,554. The $129,620 represents full cost recovery for CVT service in the unincorporated areas, and includes the FY 1999- 00 San Diego Transit contract cost for CVT operation. FISCAL IMPACT: This agreement will authorize the City ofChula Vista to claim $129,620 of County of San Diego TDA Article 4.0 funds for CVT service in FY 1999-00. WMG:File DS-027 H:\HOME\ENGINEER\AGENDA \ TRAGMT99.BG /3// RESOLUTION NO. ¡ij?~fI;z RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AGREEMENT BETWEEN COUNTY OF SAN DIEGO AND CITY OF CHULA VISTA FOR PUBLIC TRANSPORTATION SERVICES FOR FY 1999-00 WHEREAS, Chula vista Transit (CVT) has two routes which provide service in the unincorporated part of the County; and WHEREAS, the cost to CVT to provide the service to the unincorporated area of the County is $129,620; and WHEREAS, the agreement authorizes the City of Chula vista to claim $129,620 of County of San Diego Transportation Development Act (TDA) Article 4.0 funds for provision of CVT service in the unincorporated area of the County. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula vista does hereby approve the Agreement between the County of San Diego and city of Chula Vista for public transpor- tation services for FY 1999-00, a copy of which shall be kept on file in the office of the City Clerk. BE IT FURTHER RESOLVED that the Mayor of the city of Chu1a 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 ~~d~ J.lp Þ Jo . Kaheny, ity Attorney John P. Lippitt, Director of Public Works H:\home\lorraine\rs\SDC.tda ¡ij- -2 AGREEMENT BETWEEN COUNTY OF SAN DIEGO AND THE CITY OF CHULA VISTA FOR PUBLIC TRANSPORTATION SERVICES FOR FY 1999-00 THIS AGREEMENT is entered into by and between the County of San Diego hereinafter called "COUNTY" and the City ofChula Vista, hereinafter called "OPERATOR". RE ClT AL~ WHEREAS, COUNTY is desirous of providing public transit service to areas within the jurisdiction of the COUNTY; and WHEREAS, the City ofChula Vista is the OPERATOR ofChu1a Vista Transit; and WHEREAS, OPERATOR has the knowledge and expertise to provide the service desired by the COUNTY; and WHEREAS, COUNTY recognizes the value of the service to be provided by OPERATOR to its citizens and is willing to contract with OPERATOR to provide transportation service within the unincorporated area of the COUNTY; and WHEREAS, Public Utilities Code, Section 99288, authorizes COUNTY and OPERATOR to enter into a contract for OPERA TOR to provide such public transportation service for the benefit of the COUNTY and permitting OPERATOR, when such contract is entered into, to claim for local transportation purposes, rrom the Local Transportation Fund, the apportionment of the COUNTY or so much thereof as may be agreed upon, in the manner provided in Article 4 (commencing at Section 99260) of the Mills-Alquist-Deddeh Act (Ch. 4, PI. 11, Div. 10 of the Public Utilities Code); NOW, THEREFORE, COUNTY and OPERATOR mutually agree as follows: /J~J PUBLIC TRANSPORTATION SERVICES AGRfiEMENT H:\HOME\ENGINEER\BJLLGICOUNTY99.AGT - PAGE I 1. PUBLIC TRANSPORTATION I. I. Public Transportation Services to be Provided OPERATOR shall provide public transportation services for the benefit of residents of and visitors to COUNTY, upon those routes, during those times, and at the level of service specified in Exhibit A. 1.2. Passenger Counts OPERATOR shall perform at least once annually, a one-day count of passengers boarding and departing the services provided under this Agreement. The number of counts and specific methods of counting will be determined by the OPERATOR, upon consultation with the COUNTY, and in conjunction with the regional transit passenger counting program, where practicable. A report summarizing the results of the count will be submitted to the COUNTY. 2. TERM OF AGREEMENT 2.1. Base Term The term of this Agreement is rrom July 1, 1999 through June 30, 2000, unless terminated earlier as provided herein. 3. COMPENSATION FOR SERVICES 3.1. Claim - OPERATOR may, without further authorization, include in any claim filed with the Local Transportation Planning Agency of San Diego County under the provisions of Article 4 (commencing with Section 99260) of the Mills-Alquist-Deddeh Act (Ch. 4, Pt. 11, Div. 10 of the Public Utilities Code), an amount up to but not exceeding $129,620 of the apportionment to the unincorporated area of the COUNTY for FY 1999-00. 3.2. Service Actually Performed - OPERATOR sha1l be compensated for service provided under this Agreement. If OPERATOR performs only a portion of the services described in Exhibit A of this Agreement, OPERATOR shall be paid.an amount equal to the unit of service (determined by miles operated) actually provided. Operator shall not be required to perform such services if the above described claim (paragraph 3.1) is not available to operator for any reasons. 3.3. It is estimated that in FY 1999-00 OPERATOR shall be compensated based on the estimated net operating cost for services as described in Exhibit A. 3.3.1. If COUNTY and OPERATOR agree to change the level or type of service provided for in this Agreement, or there is a change in the level of service provided by OPERATOR due to strike, civil disaster or other public calamity, COUNTY and OPERATOR shall negotiate a mutually agreeable cost rate for the specific additional or reduced service provided. J3~'-/ PUBLIC TRANSPORTA TION SERVICES AGRJ;EMENT H:\HOME\ENGINEER\BILLG\COUNTY99.AGT PAGE 2 3.3.2. OPERATORshall revise and update Exhibit A annually. The level of public transit service and the rate(s) for service shall be provided by OPERA TOR to COUNTY for approval at least 90 ca]endar days prior to the beginning of any fiscal year covered by this Agreement. 3.4. Periodic Payments - Upon submittal of valid invoice, OPERATOR shall be compensated by periodic payments in advance rrom the San Diego Association of Governments (SANDAG), the Local Transportation Planning Agency of San Diego County. g If the amount allocated to OPERA TOR by the Local Transportation Planning Agency is insufficient to meet the cost of services as described in Exhibit A, OPERATOR shall immediately notify COUNTY. In that event, COUNTY agrees that this Agreement shall be amended to reduce the services provided or to pay OPERATOR rrom other sources the amount necessary to meet the cost of services as described in Exhibits A and B (Route Analysis). 4. INSURANCE 4.1. OPERA TOR, through its Agreement with its contractor, shall produce the following insurance, which may' contain self insurance retentions: 4.1.1. Commercia1 General Liability Insurance including Business Automobile Insurance coverage in the amount of $10,000,000 naming the COUNTY and its empJoyees and officers as additional insureds. This coverage shall include Comprehensive General Liability Insurance including contractua11iability, and personal injury liability. 4.2. On or before July 1, 1999, OPERATOR shall provide COUNTY a complete copy of OPERATOR's contractor's Certificate of Insurance indicating that the insurance required above has been obtained. OPERATOR shall give COUNTY 30 calendar days written notice of cancellation or material change required by the insurance company in the insurance coverage required by this Agreement. 4.3. . Occurrence means any event or related exposure to conditions which results in bodily injury or property damage. 4.4. Neither OPERATOR nor its contractors shall cancel or materially change any of the required insurance coverages. 5. AUDIT 5.1. At any time during normal business hours and as often as COUNTY may deem necessary, OPERATOR shall make available to COUNTY for examination all of its records with respect to all matters covered by this Agreement, shall permit COUNTY to audit, examine and make excerpts of transcripts of such records, and shall permit COUNTY to perform audit procedures as deemed necessary with respect to all invoices, payrolls, equipment, materials, and other data relating to matters covered by this Agreement. J3~-> PUBLIC TRANSPORTATION SERVICES AGREEMENT H:\HOME\ENGrNEER\BILLG\COUNlì'99.AGT ~.- PAGE 3 6. INDEMNITY 6.1. Except as may be provided otherwise in the Agreement, OPERATOR shall investigate, indemnify, defend and hold hannless the COUNTY, its officers, agents and employees rrom any and all claims, demands, loss or liability of any kind or nature whether real or alleged which COUNTY, its officers, agents and employees may sustain or incur, or which may be imposed upon any kind of or for any acts or omissions by OPERATOR, its officers, agents or employees hereunder. 7. WHEN RIGHTS AND REMEDIES NOT WAIVED In no event shall any payment by the Local Transportation Planning Agency as provided herein constitute or be construed to be a waiver by COUNTY of any breach of conditions or any default which may then exist. The existence of any such breach or default shall in no way impair or prejudice any right or remedy available to COUNTY with respect to such breach or default. 8. INTEGRATED DOCUMENT 8.1. This document, including Exhibit A and B, embodies the entire Agreement between COUNTY and OPERATOR for the transportation service described herein and the terms and conditions. No verbal agreements or conversation with any officer, agent or employee of COUNTY prior to the execution of this Agreement shall affect or modify any of the terms or obligations contained in any documents comprising this Agreement. No such verbal agreement shall bind COUNTY. 8.2. This Agreement may be changed only by a written amendment signed by both parties. 9. SEVERABILITY OF PROVISIONS If any provisions of this Agreement are held to be invalid, the remainder of this Agreement sha1l not be affected, provided the remainder conforms to the terms and requirements of applicable law. , 10. TERMINATION r: f 10.1. COUNTY may terminate this Agreement at any time for reasonable cause, defined as the failure by OPERATOR to substantially perform in accordance with the terms and conditions of this Agreement, by giving written notice to OPERATOR of such termination and specifying the effective date thereof, at least 90 days before the effective date of such termination. OPERATOR may terminate this Agreement at any time for failure by COUNTY to substantially perform in accordance with the terms and conditions of this Agreement by giving written notice to COUNTY of such termination and specifying the effective date thereof, at least 90 days before the effective date of such termination. J3~t PUBLIC TRANSPORTA nON SERVICES AGRt:EMENT H:\HOME\ENGINEER\BILLG\COVNTY99.AGT -' PAGE 4 ________.."______~~__.___.._.__~_________. _.w·__·,·,,_._.__ 10.2. During the time between the written notice of termination and the effective date of termination, both parties shall work toward remedying the cause or reasons for the intent to tenninate. If COUNTY tenninates this Agreement without cause, COUNTY shall pay all settlement costs, claims and attorneys arising out of such termination. 11. INDEPENDENT CONTRACTOR For purpose of this Agreement, OPERATOR is an independent contractor, and no employee of OPERATOR is, for purposes of this Agreement, an employee of COUNTY and OPERATOR. 12. BUS STOPS 12.1. Specific bus stops shall be established by agreement with COUNTY. 13. REPRESENTATIVES OF CITY AND COUNTY 13.1. The City's Transit Coordinator or designated representatives shall represent CITY in all matters pertaining to this Agreement and shall administer this Agreement on behalf of the CITY. The County's Director of Public Works or designated representatives shall represent COUNTY in all matters pertaining to this Agreement and shall administer this Agreement on behalf of the COUNTY. 14. EQUAL OPPORTUNITY AND AFFIRMATIVE ACTION 14.1. In performing under this Agreement, OPERATOR and COUNTY shall not discriminate against any employee or applicant for employment because ofrace, creed, color, sex, or national origin. This performance shall include, but not be limited to, the following: employment, upgrading, demotion, transfer, recruitment advertising, layoff or termination, rates of payor other forms of compensation, and selection for training, including apprenticeship. 15. NOTICE 15.1. All notices and cornmunications with respect to this Agreement shall be effective upon mailing thereof by registered or certified mail (return receipt requested) and addressed as follows: OPERATOR City of Chula Vista 707 "F" Street Chula Vista, CA 91910 ATTN: Bill Gustafson, Transit Coordinator COUNTY County Dept. of Public Works 5555 Overland Ave., MS 0332 San Diego, CA 92123 A TTN: Larry Watt, Deputy Director )'1-7 , PUBLIC 1RANSPORTATION SERVICES AGRjòEMENT H,IHOMEIENGINEERIBILLGICOUNTY99.AGT . - . PAGE 5 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective representatives thereunto duly authorized on this day of , 1999. APPROVED AS TO FORM CITY OF CHULA VISTA By ~ðka ~ Ir/u£r¿ jr) . ity Attorney By Mayor Attest City Clerk ¡ . , , APPROVED AS TO FORM COUNTY OF SAN DIEGO By By County Counsel Clerk of the Board of Supervisors ~'" C '," /3~~ PUBLIC TRANSPORT A nON SERV1CES AGR!iEMENT H:\HOME\ENGINEER\BILLG\COUNTY99.AGT . ~ - PAGE 6 _._,..~_._._.._'._._._----~--_.,..__._._-_....- EXHIBIT A SERVICE AND COST SUMMARY' F1SCAL YEAR 1999-00 COUNTY OF SAN DIEGO BUS SERVICE CHULA VISTA TRANSIT Gross Cost @ Projected Route Miles $3.25 Mile Passengers Revenue Credit Net Cost 705 30,599 $99,447 50,299 $44,766 $54,681 711 24,786 $80,555 14,376 $11,788 $68,767 Subtotal IDA Subsidy: 5% Administrative Pass-Through Claim: TOTAL IDA AMOUNT: $123,448 $6,172 $129,620 Route Description Route 705: Enter County on Bonita Road, eastbound, at the intersection of Bonita Road and Lynnwood Drive to the Chula Vista City limit line at the eastern boundary of Glen Abbey Cemetery on Bonita Road. The inbound trip follows the same route in the opposite direction. ;.' ~., Route 711: From Plaza Bonita, enter County· at the intersection of Plaza Bonita Road and Bonita Mesa Road, east of Bonita Mesa Road, north of Mesa Vista Road, east on Sweetwater Road, south on Willow and to the Chula Vista City limit line. Re-enter County on Bonita Road about one-fourth mile east of Otay Lakes Road, turn northeast on Central Avenue, south on Corral Canyon Road, and enter Chula Vista City limit at a point approximately 400 feet north of County Vista Lane. The inbound trip follows the same route in the opposite direction. /3~! PUBLIC TRANSPORTA nON SERVJCES AGREEMENT H,\HOMElENGINEERIBil.LGlCOUN1Y99.AGT PAGE 7 .- -.---.-.,",.-." --"'-'~--'~-'-'--'-'----'- '-"-"~..~---_.-._~--..__.,. -,-,- EXHIBIT B ROUTE ANALYSIS ANNUAL MILEAGE FY 1999-00 :' Roundtrip No. of No. of Route Total Gross Cost @ Route No. Miles Trips Days Mileage Mileage $3.25/Mi1e 705 wI Plaza Bonita Loop Weekdays 4.24 18 259 19,767 Saturdays 4.24 14 50 2,968 Sundays 4.24 14 52 3,086 Holidays 4.24 14 2 118 705 wlo Plaza Bonita Loop Weekdays 2.44 6 259 3,788 Saturday 2.44 5 50 609 Sunday 2.44 2 52 253 Holidays 2.44 2 2 10 30,599 $99,447 711 Weekdays 8.70 11 259 24,786 24,786 $80,555 TOTALS $180,001 , ¡ r {. ,. ~- PROJECTED RIDERSIDP AND REVENUE Total Route Passengers Revenue Credit Revenue 705 50,299 $0.89/passenger $44,766 711 14,376 $0.82/passenger $11,788 TOTAL 69,927 $56,554 /3---/0 PUBLIC TRANSPORTATION SERVICES AGREEMENT H:\HOME\ENGINEER\BILLG\COUNlY99.AGT PAGE 8 . ..- ~. --_.--------._--_._--_._---",._-,...~_.,---_...."._-----_._--- COUNCIL AGENDA ST A TEME]\'T Item. Meeting Date:. /'1 ,/.2197' ITEM TITLE: Resolution J 9 7.z.2.. approving the First Amendment to the AcquisitionIFinancing Agreement with McMillin Otay Ranch for Community Facilities District No. 97-3 (McMillin Otay Ranch SPA One) SUBMITTED BY: Director of Public worksf REVIEWED BY: City Manager":. - - ':.- (4/5ths Vote: Yes _ No X) ,.,- On December 8, 1998, Council approved the AcquisitionIFinancing Agreement for Community Facilities District No. 97-3 (CFD 97-3). This agreement set forth the conditions and procedures for acquiring the improvements from the developer. Tonight, Council will also be considering the approval of the "Agreement for Financing the Construction of Olympic Par1.-way and Related Roadways Improvements". CFD 97-3 will provide partial financing for the construction of Olympic Parkway. The proposed amendment will ensure that the AcquisitionIFinancing for CFD 97-3 is consistent with the applicable te=s and conditions of the Olympic Parkway Agreement. RECOMMENDATION: Approve the First Amendment to the AcquisitionIFinancing Agreement with McMillin Otay Ranch for Community Facilities District No. 97-3. BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. DISCUSSION: Exlûbit "A" presents the boundaries of the proposed CFD which includes all parcels located ",oithin the Otay Ranch McMillin SPA One. Preliminary estimates show that the district would support a total bond indebtedness of approximately $11.9 million. The developer is proposing the financing of backbone facilities and associated improvements serving their project (i.e. grading, landscaping, streets, utilities, drainage, sewer, and a pedestrian bridge). The approved AcquisitionIFinancing Agreement allocates $4.7 million of the bond proceeds for constructing the Phase One and the Phase Two Olympié Par1.:way improvements. Said funds will be deposited in the "Olympic Par1.-way Improvement Account". The proposed First i\mendment will accomplish the following: 1. Ensure that the terms and conditions of the original AcquisitionlFinancing agreement as amended by the proposed First Amendment, are consistent ",oith the applicable terms and conditions of the Olympic Par1.-way Agreement. ") Establish that the aggregate amount of the Development Impact Fee (DIF) improvements (Transportation, Poggi Canyon Sewer, or Pedestrian Bridges) to be financed by CFD 97-3 shall not exceed the applicable DIF obligation for all the property within the district. This /1-/-/ Page 2, Item Meeting Date 4/13/99 will ensure that the property within CFD 97-3 will only pay their faIT share of the applicable DIP program. 3. Authorize the release of funds from the Olympic Parl..way Improvement Account which exceed the McMillin's FaIT Share obligation for constructing Phases 1 and 2 of the Olympic Parkway Improvements, as determined pursuant to the Olympic Parl..way Agreement. Said released funds may be used for financing other (than the offsite Olympic Parkway) CFD 97-3 improvements. 4. Authorize McMillin to submit a letter of credit or any other type of security approved by the City Manager and the City Attorney in an amount equal to the amount which the developer requests to be released from the Olympic Parl..way Improvement Fund. Said security may be drawn upon if and to the extent that City requires a portion of McMillin's Fair Share to pay the cost of acquisition or construction of Olympic Parkway and McMillin does not pay to City such portion within thirty (30) days of City's request. 5. Require that the CFD 97-3 bond proceeds deposited in the Olympic Par1..way Improvement Account shall be invested in interest earning accounts and all earnings on such investments be used for financing the acquisition or construction of CFD 97-3 improvements. Staffhas reviewed the proposed amendment and recommends Council approval. The City retained the fum of Brown, Diven, Hessel & Brewer as Bond Counsel for CFD 97-3. They already reviewed and approved the form of the proposed agreement. Future Actions . The issuance of bonds is anticipated for May of 1999. FISCAL IMP ACT: The developer will pay all costs and has deposited money to fund initial consultant costs, and City costs in accordance With the approved Reimbursement Agreement. The City will receive the benefit of the full cost recovery for staff time involved in district formation (estimated at $25,000) and administration activities. Staff anticipates that most of the CFD 97-3 administration will be contracted out. The CFD administration cost is estimated at $125,000 annually during buildout and $75,000 annually thereafter. In accordance with the CFD Policy, as consideration for the City's agreement to use the City's bonding capacity to provide the fmancing mechanism for the construction of the proposed improvements, the developer will pay one percent (1 %) of the total bond authorization prior to bond sale. Exhibit A CFD Boundary H:\HOME\ENGINEER\AGENDA \97·3AF _1. WPD LDT' Fil~ O~5-1 ()...Cf1)973 Ji-J- McMillin I Otay Ranch EXHIBfT "A" CFD No. 97-3 PLANNING AREA MAP --~ . -- ~ P&D CONSU~ ';' ~NTS .::- 1'::-' ~. :=:.=- :.": .2:'::: ;:;" :::;:. =",-"-:,=-:,..: =:-:- :.:........;. :~~::. :.::-~:-: ~.., ::'-'-3::: / ~/~} ~ - -'~' - - - - - --...-.---..-.-.--....-..-....-.-".. RESOLUTION NO. /97:22 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE FIRST AMENDMENT TO THE ACQUISITION/FINANCING AGREEMENT WITH McMILLIN OTAY RANCH FOR COMMUNITY FACILITIES DISTRICT NO. 97-3 (McMILLIN OTAY RANCH SPA ONE) WHEREAS, on December 8 , Acquisition/Financing Agreement for No. 97-3 (CFD 97-3) which set forth for acquiring the improvements from 1998, Council approved the Community Facilities District the conditions and procedures the developer; and WHEREAS, Council will also be considering the approval of the "Agreement for Financing the Construction of Olympic Parkway and Related Roadway Improvements"; and WHEREAS, CFD 97-3 will provide partial financing fDr the construction of Olympic Parkway; and WHEREAS, the First Amendment tD the Acquisition/Financing Agreement with McMillin Otay Ranch will ensure that the Acquisition/Financing for CFD 97-3 is consistent with the applicable terms and conditions of the Olympic Parkway Agreement. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does hereby approve the First Amendment to the Acquisition/Financing Agreement with McMillin Otay Ranch for Community Facilities District No. 97-3 (McMillin Otay Ranch SPA One), a copy of which shall be kept on file in the Office of the City Clerk. BE IT FURTHER RESOLVED that the Mayor of the city of Chula Vista is hereby authorized and directed to execute said First Amendment for and on behalf of the City of Chula Vista. Presented by Approved as to form by John P. Lippitt, Director of Public Works ~ Yv~~ ~ /9A. John M. Kaheny, City A~torney P., \home\a=t.orney\::-eSO\:FD5I73 .1st / i/_ rj FffiST AMENDMENT TO ACQUlSITION/FINANCING AGREEMENT THIS FIRST AMENDMENT TO ACQUlSITION/FlNANClNG AGREEMENT (the "First Amendment") is made and entered into this _ day of 1999, by and between the CITY OF CHULA VISTA, a charter city duly organized and validly existing under the Constitution and laws of the State of California, ("City"), acting for and on behalf of itself and COMMUNITY F ACILlTIES DISTRICT NO. 97-3 (OTA Y RANCH McMILLIN SPA ONE) (the "Community Facilities District") and McMILLIN OT A Y RANCH, LLC, a California limited liability company ("Developer") to amend that certain ACQUlSITION/FlNANClNG AGREEMENT made and entered into on the 15th day of December 1998, by and between the City and the Developer (the "Original Agreement"). R E C I TAL S: WHEREAS, the City and the Developer entered into the Original Agreement to establish the terms and conditions to provide, among other things, for the acquisition of Improvements by the City rrom the proceeds of Bonds (as defined in the Original Agreement); and WHEREAS, included among the 1mprovements authorized by the Original Agreement to be financed rrom that portion of the proceeds of such Bonds identified as the Reserved Portion (as defined in the Original Agreement) are the Olympic Parkway Offsite Improvements (as defined in the Original Agreement); and WHEREAS, the Original Agreement established specific terms and conditions pursuant to which acquisition of the Olympic Parkway Off site Improvements may be paid for rrom the Reserved Portion; and WHEREAS, the City, the Developer and Otay Project, LLC ("Otay") have entered into that certain agreement entitled "Agreement for Financing the Construction of Olympic Parkway and Related Roadway 1mprovements" made as of , 1999 (the "Olympic Parkway Agreement") to establish terms and conditions pertaining to, among other things, the engineering, design and construction of certain roadway improvements including, but not limited to, the Phase 1 Olympic Parkway Improvements and the Phase 2 Olympic Parkway Improvements (each as defined in the Olympic Parkway Agreement), the securing of the completion of such improvements and the allocation of the cost of such improvements between the Developer and Otay; and WHEREAS, the City and the Developer desire to enter into this First Amendment to, among other things, ensure that the terms and conditions of the Original Agreement, as amended by this First Amendment, are consistent with the applicable terms and conditions of the Olympic Parkway Agreement. H:\SHARED\ENGINEER\FIRSTA-l 1 /'1-3 NOW, THEREFORE, IT 18 MUTUALLY AGREED BETWEEN THE RESPECTIVE PARTIES AS FOLLOWS: SECTION 1. Recitals. The foregoing recitals are true and correct. SECTION 2. Definitions. Except as otherwise provided for or indicated in this First Amendment, the capitalized terms used in this First Amendment shall have the meanings given such terms in the Original Agreement. SECTION 3. Amendments to Section 7. ofthe Original Agreement. (a) The last paragraph of Section 7(a) is hereby amended to read as follows: ''In no event shall the cost or value of the construction of an 1mprovement be deemed to exceed the construction contract price set forth in the contract for the construction of such Improvement and any change orders to such contract which have been approved by the City. Notwithstanding any other provision of this Agreement to the contrary, the aggregate Purchase Price of all Improvements which are included among the improvements authorized to be financed rrom the proceeds of one of the City's development impact fees CDIF') shall not exceed the aggregate amount of the applicable DIF obligation as determined by the City Engineer pursuant to the applicable DIF Program (defined in Section 19 below) for all of the property within the Community Facilities District." (b) Subsection 7(g) is hereby deleted in its entirety. (c) Section 7.1 entitled "Financing of the Acquisition or Construction of the Olympic Parkway Improvements" is hereby added to read: "SECTION 7.1 Financingofthe Acquisition or Construction of the Olympic Parkway Improvements. A portion of the proceeds of the Bonds in an amount not to exceed $4,700,000 (the 'Setaside Amount') shall be deposited in a separate account (the 'Olympic Parkway 1mprovement Account') to be established pursuant to the bond indenture setting forth the terms and conditions pursuant to which the Bonds shall be issued and sold (the 'Bond Indenture'). Pursuant to the requirements of this Section 7.1, the City may rrom time to time authorize the disbursement of funds on deposit in the Olympic Parkway Improvement Account to pay for the acquisition of the 'Phase 1 Olympic Parkway 1mprovement' and the 'Phase 2 Olympic Parkway Improvement' (excepting thererrom the 'Land Development Work' and the 'McMillin Olympic Parkway Improvement' as such terms are defined H:\SHARED\ENGINEER\FIRST A-I 2 /i-? --------.-----.-----.--..------..-..,,- ,__.._....._..._. û·,,__..·..___,. in the Olympic Parkway Agreement.) in accordance with the provision of Sections 4 through 9 hereof. For purposes of this Section 7.1, the term "Developer" as used in Sections 4 through 9 shall mean the entity which is responsible for the construction of the Offsite Olympic Parkway 1mprovements and may include an entity other than McMillin Otay Ranch, LLC. The Phase 1 Olympic Parkway Improvement and the Phase 2 Olympic Parkway Improvement (excepting thererrom the Land Development Work and the McMillin Olympic Parkway Improvement) are referred to herein as the "Offsite Olympic Parkway Improvements." Prior to approval by the City of any request for the payment for the acquisition of all or any portion of the Offsite Olympic Parkway 1mprovements, the City shall provide Developer with copies of each such request for payment and developer shall have a reasonable opportunity to review and comment upon such request for payment. Developer acknowledges that the right to review and comment upon requests for payment does not convey to or impart upon Developer any express or implied right to approve such requests for payment and the approval of any such request for payment is vested in the sole discretion of the City. 1n addition to utilizing the funds on deposit in the Olympic Parkway Improvement Account for the acquisition of the Offsite Olympic Parkway Improvements as described in the preceding paragraph, the City may use such funds to pay directly for the construction of such Improvements pursuant to the provisions of paragraph I.J l.c. ofthe Olympic Parkway Agreement. Except as provided below in this Section 7.1 and in the Olympic Parkway Agreement, funds on deposit in the Olympic Parkway 1mprovement Account may not be utilized to pay all or any portion of the Purchase Price of any other Improvements. If the Fair Share (as such term is defined in the Olympic Parkway Agreement) of the Developer is reduced by the City pursuant to the provisions of paragraph l.l1.e. of the Olympic Parkway Agreement and the amount on deposit in the Olympic Parkway 1mprovement Account then exceeds such Fair Share as so reduced, the City shall authorize the transfer of such excess amount rrom the Olympic Parkway 1mprovement Account pursuant to the provisions of the Bond Indenture. Funds so released rrom the Olympic Parkway 1mprovement Account shall be authorized to be used to pay for the acquisition of Improvements (other than the Offsite Olympic Parkway Improvements) pursuant to the provisions of this Agreement and the Bond Indenture. H:\SHARED\ENGINEER\FIRST A-I 3 /tj-? _··'··~.·__·_'·d_._·_.·"._,. . ...._.,......_ ....._.__..........__.__...... The Developer may at any time post a letter of credit or other form of security in a form and rrom a financial institution approved by the City Manager and the City Attorney (the 'Security') and in an amount equal to the amount which the Developer requests to be released rrom the Olympic Parkway Improvement Account. Such Security shall guaranty payment by Developer of that portion of the Developer's Fair Share in an amount equal to the amount of the Security. The Security may be drawn upon if and to the extent that City requires a portion of the Developer's Fair Share to pay for costs of the acquisition or construction of the Offsite Olympic Parkway Improvements and the Developer does not pay such portion to the City within thirty (30) calendar days following the City's written request for such payment. The Bond Indenture shall provide that all funds on deposit in the Olympic Parkway Improvement Account shall be invested in such permitted investments as may be established by the terms of the Bond Indenture. All earnings on such investments shall be deposited in the improvement fund established by the Bond Indenture and shall be available to pay for the acquisition or construction of the Improvements (other than the Offsite Olympic Parkway Improvements) pursuant to the terms of such Bond Indenture and this Agreement. Except as otherwise provided herein, the provisions of the Olympic Parkway Agreement shall control the actual bonding for and acquisition or construction of the Offsite Olympic Parkway Improvements; provided, however, such acquisition or construction shall be subject to all applicable provisions of the Act. In the case of any conflict between the provisions of this Agreement and the Olympic Parkway Agreement, the Olympic Parkway Agreement shall prevail." SECTION 4. Amendmentto Exhibits "A," "B," and "E." Exhibits "A," "B," and "E" are hereby amended to read as set forth in the corresponding exhibits attached hereto and incorporated herein by this reference. SECTION 5. Other Terms and Provisions of the Original Agreement to Remain in Effect. Except as expressly amended by this First Amendment, all terms and provisions of the Original Agreement shall remain in full force and effect. [End of page. Next page is signature page.] H:\SHARED\ENGINEER\FIRST A-I 4 /L/-~ EXECUTED by and between the parties hereto on the day and year first hereinabove written. "CITY" CITY OF CHULA V1STA MAYOR CITY OF CHULA V1STA STATE OF CALIFORNIA ATTEST: APPROVED AS TO FORM: CITY CLERK CITY OF CHULA VISTA STATE OF CALIFORNIA Q. /'- "yt/\A~ ~,.<h- JOHN KAHENY, CITY ATTORNEY C1TY OF CHULA V1STA STATE OF CALIFORNIA "DEVELOPER" McMILLIN OTA Y RANCH, LLC, a Delaware limited liability company, By: McM1LLIN COMPANIES, LLC, its ::agi~~~. ~~~ By: ·"I'(.~~ H:\SHARED\ENGINEER\FIRST A-I 5 /1-; EXHIBIT "A" DESCRIPTION OF IMPROVEMENTS AND PROJECTS PI1a$#I< ........ ...... Substantial Completed Completion y C"""' Pre-ROF .<i < ....... Criteria I Offsite OIYl1lpic Parkway Improvements (as defined in Section 7.1 ofthe Agreement) "'Developer's Fair Share obligation (not to exceed Setaside Amount) Grading, including site preparation & mobilization and I stonn drain (per grading plans) Surface Improvements, including sewer and stonn drains (per street improvement 2 plans), traffic signals, specialty items, site concrete and AC paving Landscaping 3 2 La Media Road North (Telegraph Canyon Road to East Palomar Street West) Grading, including site preparation & mobilization and ¡ I stonn drain (per grading plans) Surface Improvements, including sewer and stonn drains (per street improvement 2 plans), traffic signals, specialty items, site concrete and AC paving Landscaping 3 2 East Palomar Street West CFD (West CFD Boundary to Santa Cora A venue North) Grading, including site preparation & mobilization and ¡ I stonn drain (per grading nlans) H.\SHAREDIENGINEERIFIRSTA-1 A-1 /Jj~ )¿J -'---"-'---'-'''---"'---''--'---''-~-"' Substantial Completion Criteria Surface Improvements, including sewer and stonn drains (per street improvement plans), traffic signals, specialty items, site concrete and AC paving 2 Landsca in 3 H:\SHARED\ENGINEER\FIRSTA-I A-2 /Lj ~/ / Substantial Completion Criteria 2 Santa Cora A venue North (East Palomar Street West to Boquet Canyon Drive) Grading, including site preparation & mobilization and .[ I stonn drain (per grading plans) Surface Improvements, 2 including sewer and stonn drains (per street improvement plans), traffic signals, specialty items, site concrete and AC paving Landscaping 3 2 Master Utility Loop (Santa Cora North to La Media Road North) Surface Improvements, including sewer and stonn drains (per street improvement 2 plans), traffic signals, specialty items, site concrete and AC paving 2 La Media Road Crossing Grading, including site (at Telegraph Canyon Channel) preparation and mobilization .[ 1 and stonn drain (per grading plans) H:\SHARED\ENGINEER\FIRST A-I A-3 )1/'---/ ;¿ ----.-..-.--.-,.,-..----.." Substantial Completion Criteria Surface Improvements, including stonn drains (per street improvement plans), specialty items, site concrete and AC avin ¡ 2 3 East Palomar Street East (Santa Cora Avenue North to East CFD Boundary Line) Grading, including site preparation & mobilization and I stonn drain (per grading plans) Surface Improvements, including sewer and stonn drains (per street improvement 2 plans), traffic signals, specialty items, site concrete and AC paving Landscaping 3 3 Santa Cora A venue South Loop (East Palomar Street West to East Palomar Street East) Grading, including site preparation & mobilization and I stonn drain (per grading plans) Surface Improvements, including sewer and stonn drains (per street improvement 2 plans), traffic signals, specialty . items, site concrete and AC paving Landscaping 3 4 La Media Road South (East Palomar Street West to Olympic Parkway Onsite) Grading, including site preparation & mobilization and I stonn drain (per grading plans) H:\SHARED\ENGINEER\FIRSTA-I A-4 jt/~/3 ___ ____. ..._._.u ""'__..--...._ ._ Completed Pre-ROF Subst¡¡ntial Completion Criteria Surface Improvements, including sewer and stonn drains (per street improvement plans), traffic signals, specialty items, site concrete and AC paving 2 Landsca in 3 4 Olympic Parkway Onsite (La Media Road South to East Palomar Street) Grading, including site preparation & mobilization and I stonn drain (per grading plans) Surface Improvements, including sewer and stonn drains (per street improvement 2 plans), traffic signals, specialty items, site concrete and A C paving Landscaping 3 4 Pedestrian Bridge (at La Media Road South) Grading, including site I preparation and mobilization Site Concrete 2 Substantial Completion Criteria: I. Grading: grading complete, stann drain installation complete, certification of geotechnical and civil engineer and inspection. 2. Surface Improvements: installation complete and inspected. 3. Landscaping: installation complete and inspected. H:\SHARED\ENGINEER\FIRST A-I A-5 /t/'--Jy EXHIBIT "B" ESTIMATED COSTS OF PROJECTS ii ii ......... i iiii ..... ........ Cost Estimate La Media Road North (Telegraph Canyon Road to East Palomar Street West) $3,269,654 East Palomar Street West (West Boundary to Santa Cora Avenue North) $889,304 Santa Cora Avenue North (East Palomar Street West to Boquet Canyon Drive) $615,807 Master Utility Loop (Santa Cora North to La Media Road North) $82,080 La Media Road Crossing (at Telegraph Canyon Channel) $294,736 East Palomar Street East (Santa Cora Avenue North to East Boundary Line) $534,493 Santa Cora A venue South Loop (East Palomar Street West to East Palomar Street East) $465,204 La Media Road South (East Palomar Street West to Olympic Parkway Onsite) $1,207,554 Olympic Parkway Onsite (La Media Road South to East Palomar Street) $1,136,879 Offsite Olympic Parkway Improvements (as defined in Section 7.1 ofthe Agreement) """Developer's Fair Share obligation $4,700,000 Pedestrian Bridge (at La Media Road South) $729,896 Total Estimated Cost $13,927,873 H:\SHARED\ENGINEER\FlRSTA-l B-1 ,/'" /(-0 --~.-..-.~....__.- ,_.__.,,-..<_.._,,---,~--,..,-~~~ tT1 , - :E~ t'" (II ;;3 I» ~(i":;:: ~"" " ~ 0.. ., -. 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" .52 " '" J: " ë '" '" 1~ " ·š e Q " "'" § '" > -< -¡;; " e " B " - e .5 .g '" ¡¡; <J .§ " ., " <J " <J 0 " <J " .,¡ Ë ~ U <J '" " 'i3 " S <f! "'" :;¡ ",¡ '" ., ~ ., " ~ Ii! .¡;; ., 'õ " ~ " ~ - ;:I " 0 '-' '" E- ¡¡; '" ....¡ Q ii5 '" u .... .... .... .... .... .... '-> .... .... .... .... .... .... '-> " 0 .~ ] :E '" 0 ::;; - " " a(! e gf " " > .¡:; <= .52 0 .2 " .S ë 9 " e " - fl .§ " '§ u " " gf " 2 ~ 0 .@ .,¡ - 0.. <J U OJ <f! :;¡ ",¡ <= .2 ~ .2 '" ., 'õ 0 ;:I " ¡¡; ¡¡; Q - U '" '" '" ~ -" :; 0 '" ,,"'" ",," =s~ ~ ~ .::= ,,"'" ., " '5 ~ '" ., " ....¡ "'" " ~ 0.. '<t , p:.¡ )1~ /7 COUNCIL AGENDA STATEMENT --- Item: /::> Meeting Date: 04/20/99 ITEM TITLE: PUBLIC HEARING: CONSlpERING AMENDMENT TO THE MASTER FEE SCHEDULE TO ADJUST EXISTING ANIMAL CONTROL FEES AND ADD NEW FEES. REVIEWED BY: Chief of pOliceß~ /ÜA City Manag~ ~ Z!!!! \ (4/5ths Vote: Yes l No_) SUBMITTED BY: Recommendation: Staff recommends this item be continued to the meeting of May 4, 1999. J~'/ "----_._.."--_._,,_...._.,._-,---,--'"_._---_._-~,.._-_.. -..- COUNCIL AGENDA STATEMENT Item: 'a-f J Lv Meeting Date: 4/13/99 ITEM TITLE: Public Hearing: PCM-95-0lB - An application to amend me Otay Ranch SPA One Public Facilities Finance Plan to include security thresholds for Olympic Park-way construction and to amend me PFFP for Phase 7 of Village One and add Village One West. RE\1EWED BY: On Juœ 4, 1996, me Otay Ranch SPA One Public Facilities Finance Plan (pFFP) was adopted by me City Council as part of me SPA One Plan for Villages One and Five. The SPA One PFFP established threshoJds for public improvements serving these twO villages, including Olympic Parl:v.'ay. In order to expedite me improvements of Olympic Park-way, a financing plan wim security for construction has been negotiated with me Otay Ranch Company and McMillin Companies. An amendment to the SPA One PFFP has been proposed to establish security threshoJds so that Otay and McMillin can equitably share in me number of units as me OJympic park-way thresholds are achieved. Resolution Ff Lfr./¿ of me City of Chula Vista amending me Otay Ranch Sectional PJanning .:...rea (SPA) One PubJic Facilities Finance Plan. ,¿j4! Director of Planning and Building ~ ~ / '-, ,,_' ,-Î C· M (,,- ¡t" anager ~> ,./ ~) ~ / . ) . (4/5ths Vote: Yes_ ;-;o-Å.-) SUBMITTED BY: In addition, on February 16, 1999, the City Council approved an amendment to the Otay Ranch SPA One Plan for the Village One Core _ phase 7 (Prnp\e phase), and the area of Village One west of Paseo Rarlchero (Village One West). The amendment to the SPA One PFFP for these areas was consolidated \\~m the Olympic Parkway amendment in order to bring one amended PFFP forward for City Council approval. The City Council certified EJR 97-03 on October 30, 1998. E1R 97-03 was prepared for me amendments to SPA One. That E1R anaJyzed amendments to the Otay Ranch SPA One for Phase 7 and \lilJage One West. 1n addition, it also anaJyzed the amendments to the Public Facilities Financing Plan to include phase 7 and VilJage One West. The modifications to Table J 1 of the SPA One PFFP are exempt from CEQA review under Section J5061(c) (3) of the Public Resources Code (General RuJe) because the modification is procedural and will not result in a significant physicaJ change to the environment. RECOM1\1E~'1)ATIO~: That the City Council adopt the Resolution approving the amendment to the Otay Ranch SPA One Public Facilities Finance Plan that will establish securiry thresholds for Pas eo Ranchero and Olympic Parkway, amend the PFFP for Phase 7 of VilJage One and add VilJage One West. ~-/ , ' . ,- / L. " _____u________ .._~.._---_._..-_.,_.._--~-'- Page 2, Item No.: Meeting Date: 4/13/99 BOARD Al\'D COMMISSION RECOMMENDATION: On February 3, 1999, the Planning Commission voted 6-0 to recommend that the City Council approve the amendment to the Otay Ranch SPA One Public Facilities Finance Plan for Phase 7 of Village One and Village One West. On March 10, 1999, the Planning Commission voted 4-0 to recommend approval of the Olympic Parl."way amendment to the SPA One PFFP. DISCUSSION: Olvmvic Parl:wav The SPA One PFFP trigger to guarantee the construction of Olympic Par1.-way rrom 1-805 to Paseo Ranchero and Paseo Ranchero from East Palomar Street to Olympic Par1.-way is currently set at 1,213 Equivalent Dwelling Units (EDUs) in Table 11. Phase I improvements include Olympic Parbvay from Brandywine to Paseo Ranchero and Paseo Ranchero to East Palomar Street. Phase II extends Olympic Parkway from Paseo Ranchero to East Palomar Street. Phase ill extends Olympic Par1.-way from East Palomar to SR-125. In order for the Otay Ranch Company and the McMillin Companies to share the EDUs in the next phase of SPA One development, the developers and staff are proposing that additional thresholds be established for the approval of Final Maps. In a separate fInancing agreement, improvement requirements for each deve10per have been determined and EDU 1iInits proposed for the future approval of Final Maps. Table 11-A will be added to the SPA One PFFP to further defme the security thresholds for the construction of Olympic Par1.-way. Currently, Final Maps containing 1,209 EDUs have been approved. With the approval of the agreement by the City Council guaranteeing the construction of Paseo Ranchero and 01ympic Parbvay, Final Maps containing up to 1,800 EDUs can be approved in Stage 1. When the 4d Take Allocation environmental permits for the habitat in Poggi Canyon have been approved by the Wildlife Agencies, Final Maps containing up to 1,995 EDUs may be approved by the City Council in Stage 2. Prior to the approval of Final Maps with 2,526 EDUs, Stage 3 requires: 1) full environmental clearance from the appropriate agencies including clearance for the Quino checkerspot butterfly; 2) approval of grading plans with full bonding for Phases I and II (Olympic Parl."way and Paseo Ranchero); and 3) approval of the detention basin agreement for Poggi Canyon. Receipt of bond proceeds by the City for McMillin Companies improvements in CFD 97-03 (La Media, East Palomar and OJympic Parbvay) will allow 2,690 EDUs to be approved in Stage 4. Stage 5 requires the Phase 1 improvements for OJympic Par1.-way and Paseo Ranchero to be approved and bonded, which will allow up to 3,126 EDUs to be approved. With Phase II Olympic Par1.-way improvement approved and bonded along with La Media and East Palomar, 5,429 EDUs can be approved in Stage 6. Stage 7, full buildout of SPA One including Village One West, requires Phase III approval of improvement plans and bonding for OJympic Parbo,¡ay from East Palomar to the SR-125 right-of-way. H:'.5HARED'.PL.o\.'rsfNG\PfFPcc.AII3.doc 7t-~ , , Page 3, Item No.: Meeting Date: 4/13/99 Security for PFFP improvements is typical1y required prior to Final Map approval because this is the furthest point in the development process where the City has the greatest control with fmancial obligations. Most bonds guaranteeing improvements are posted prior to the approval of Final Maps. These proposed modifications in Table ll-A are not a reduction of the construction threshold, but rather a refmement of the threshold security which cannot be exceeded until the roadway construction is guaranteed for Phase 1, 11 and ill of Olympic Parkway. The PFFP amendment will be considered by the City Council along with: 1) the overall alignment study and finance plan for Olympic Park-way; 2) a contract for consultant services for project management and plan checking of improvement plans for Olympic Park-way; and 3) a security agreement between the City and the Otay Ranch Company and the McMillin Companies to construct phases 1, 11 and ill of Olympic Park-way. Villa2:e One Phase 7 and Villa2:e One West The recently approved SPA One Amendment changed the land use plan for Phase 7 of Vil1age One and added Village One West to the SPA One Plan. The SPA One PFFP is modified to reflect the revised Phase 7 of Village One land use plan and to incorporate the new plan for Village One West. The PFFP analyzed the amendments and concluded that none of the original1y established thresholds for public facilities were exceeded. The PFFP is based on a non-sequential colored phasing plan. CONCLUSION: Staff has concluded that the proposed agreement between the Otay Ranch SPA One developers and the City of Chu1a Vista for fmancing and construction of Olympic Park-way and Paseo Ranchero will facilitate timely construction of the facilities. Staff reconunends Table llA be added to the Otay Ranch SPA One Public Facilities Finance Plan to establish security thresholds for the construction of Olympic Park-way. In addition, the PFFP should be amended to reflect the amended land use plan for phase 7 of Village One and add Village One West. The PFFP concludes that al1 public services will be provided in accordance with the City's threshold standards. FISCAL IMPACT: All staff costs associated with this amendment are covered under the processing agreements between the City and the Otay Ranch Company and the McMillin Companies. H:'SHARED\PLA.'TNING\PFFPcC.AI13.dClc ~-3 If¡ Page 4, Item No.: Meeting Date: 4/13/99 Attachments I. Planning Commission Minutes and Resolutions 2. Amended Table II and new Table ¡I·A 3. Exhibits 8 and 9, SPA One PFFP 4. Disclosure Statement. H:\SHARED\PLA.......'NING\PFFPcc.AI13.doc ~-lf I ~. ._'_...~--_._~~_.._--_.__._- - 0.. _'___._..____.______._ RESOLlTJON NO. J9!J¡íg/ RESOLUTIO:-O¡ OF THE CITY COU!\CIL OF THE CITY OF CHULA VISTA APPROYl~G AN AME~DMENT TO THE OTAY R~"iCH SPECIFIC PLA.'\:\'ING AREA Ol'o'E PUBLIC FACILITIES FL"\A..NCE PLA:-O¡ TO CHANGE IMPLEMENTATION THRESHOLDS FOR PAS EO RA."iCHERO A.."iD OLYMPIC PARKWAY. WHEREAS, the Otay Ranch General Deve10pment Plan was approved on October 18, 1998, anò the Otay Ranch Specific P1anning Area One PJan and Public Faci1ities Finance Plan were approved on June 4, 1996; and WHEREAS, the Equivalent Dwelling Unit (EDU) trigger for Paseo RancherolEast Palomar Street to Olympic Parl..,,·ay (Facility No.4) and 01ympic Parkway/l-805 to Paseo Ranchero (Facility No.7) is shown as 1.213 EDUs on Table 11 of the Otay Ranch SPA One PFFP; and WHEREAS, in oròer to facilitate the construction of Olympic Par]...,,·ay in a time1y manner, the Otay Ranch SPA One developers anò the City of Chu1a Vista have entered into a financial anò construction agreement to construct Facility No.4 and Facility No.7; and WHEREAS, on February 16, 1999, the City Council approved an amendment to the Otay Ranch SPA One Plan for theVillage One Core - Phase 7 (Purple Phase) and the area ofViI1age One west of Pas eo Ranchero (Village One West). The amenòment to the SPA ONE PFFP for these areas was consoliòateò with the Olympic Parhvay amendment in order to bring one amendeò PFFP forwarò for City Counci1 apprO\'al; and WHEREAS, the City Council certified ErR 97-03 on October 30,1998 which was prepared for the amendments to SPA One for Phase 7 anò Village One West anò in addition, it also ana1yzeò the amenòments to the Public Facilities Financing P1an to include Phase 7 and Village One West; and WHEREAS, the modifications to Table 11 of the SPA One PFFP are exempt from CEQA re\';ew under Section l506l(c) (3) of the Public Resources Code (General Rule) because the modification IS procedural and will not result in a sigmficant physical change to the environment; and WHEREAS, the P1anning Commission held an advertised public hearing on the Project on January 13, 1999 and voted unanimous1y to approve P1anning Commission Resolution No. PCM-95-01B recommending to the City Counci1 approval of the amendment to the PFFP; and WHEREAS, the City Council set the time and place for a hearing on said amendment to the PFFP and notice of said hearing. together wllh its purpose, was given by its publication in a newspaper of general circulation in the city and its mailing to property owners within 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 6:00 p.m. on April 13, 1999 in the Council Chambers. 276 Fourth A venue, before the City Counci1 and said hearing was thereafter closed. ;;?-/-- I (0 PLA.'\':\L'\'G COMMISSIOl\' RECORD The proceedings and al1 evidence on the amendment to the PFFP introduced before the P1anning Commission at their public hearing on this matter he1d on January 13, 1999 and the minutes and resolution resulting therefrom, are hereby incorporated into the record of this proceeding. :'\OW, THEREFORE, BE IT RESOLVED THAT THE CITY COUNCIL hereby approves the amendment to the PFFP based on the fol1owing findings and al1 other evidence and testimony presented with respect to the proposed changes, and subject to the following findings: FI:'\DI:'\GS The amendment to the PFFP is consistent with the General Plan and the General Deve10pment Plan for the fol1owing reasons: 1. The amendment incorporales details of a financing and construction agreement between the deve10pers of Otay Ranch SPA One and the City of Chula Vista which wil1 faci1ilate timely construction of Olympic Parkway and Paseo Ranchero; and 1 The amendment wil1 not adverse1y affect adjacent land uses, residentia1 enjoyment, circulalJOn or em;ronmental qua1ity in that updated dwel1ing unit figures al10w for more exact calculations related to traffic. park requirements. po1ice, fire and emergency medica] services, schools, 1ibraries. parks, trails and open space, water requirements, sewer capacity, and drainage, among other issues. APPROVAL OF AME:\DED PFFP The City Counci1 hereby approves the amended PFFP for Vil1age One and Vil1age Five of the Olay Ranch Sectional Planning Area I Plan adding Table ]]-A and amending the PFFP for Phase 7 of Vil1age One and adding Vil1age One West to the PFFP. Presented by Approved as to form by (l--~~ John M. Kaheny City Attorney Robert A. Leiter Director of Planning and Building 2 A1ff1 C H M EAIí -1 Planning Commission Minutes - 4 - February 3, 1999 The 350 sf open space area is stridly adive, usable open space consisting of a community gardening area, rose garden area, and adive play area and quiet use areas with trellises and built-in b-b-q ar=. What is missing is the private balconies for each unit. This is a feature that Seniors prefer nút to have because of security reasons. Chair Willett stated he visited a couple of senior complexes and he too agrees that parking is not a problem and that balconies are unwelcome. Public Hearing Closed 7:30. Commissioner O'Neill stated he was confident that because of the constitute of the tenants he did not anticipate there being problems with underparking and was please to hear that the applicant is not going to stenciling a unit number in a parking space whether its used or not, because the unassigned spaces may be used by guests. Commissioner Hall s"Lilted that his personal experience too, has been that parking is not a problem because a vast majority of seniors do not have vehicles. In addition, he believes a very positive asped of the projed is that it is located next to Sharp Community Hospital which makes it very accessible to seniors, therefore, he supports the projed 25 propDsed. Commission Tarantino stated that due to the smali unit sizes, he believed that Dn those special occasions when families normally gather together, it would most likely be that the extended family would pick up the senior member to take with them to another location or family member's home, therefore, he does not have a concern with underparking and fully supports the projed as proposed. MSC (Thomas/Ray) (5-1-G-O) that the Planning Commission adopt Resolution PCC-99-25 recommending that the City Council approve the Conditional Use Permit for the proposed affordable housing projed with the condition that a total of seven guest parking spaces be provided and not be reduced in order to comply with the 2% ADA requirement for disabled parking. Motion carried with Commissioner Hall voting against. Commissioner Hall wished to express that he fully supports the projed as proposed, however, he does not concur with the motion as stated. 4. PUBLIC HEARING: PCM-97-11; Request to amend the Otay Ranch Sedional Planning Area (SPA) One for Phase Seven (Purple Phase) of the Village One Core and Village One West including the Planned Community Distrid Regulations; Village Design Plan; Parks, Recreation Open Space and Trails Master Plan; Public Facilities Finance Plan; Affordable Housing Plan; and the Phase 2 Resource Management Plan. Background: Rick Rosaler, Principal Planner reported that this is a two-fold request to amend the existing SPA One Plan, amend the plan for Phase Seven in the Village CDre and come up with the SPA Plan for Village One "Vest. '^-'hen the SPA One was approved, it was referred to { Planning Commission Minutes -" - February 3, 1999 as the area West of Paseo Ranchero and has multiple owners. The Commission requested that there be comprehensive planning of this area when it was ready to develop. The amendments being considered are consistent with General Plan Amendments that were approved by the Commission in October 1998 and City Council approved in November. Included with those approvals was EIR 97-03 and this project is consistent with that EIR. The proposed plan expands the development areas in Village One to areas that contain habitat in the area west of Paseo Ranchero and Village One VVest. In October there was a switch of land use where the Otay Ranch Company gave up development rights in Villages 13 and 15 to be able to take additional development area in SPA One West and Village One. Rich Whipple, Assistant Planner, reported that the Otay Ranch Company proposes to amend the SPA One Plan to allocate all of the multi-family units authorized in the GOP for Village One. The GOP was recently amended to provide flexibility in the number of multi-family dwelling units provided sufficient multi-family densities were approved to support the light rail transit line. Otay Ranch Company originally applied for 1,422 units in the core, but have amended their a;:¡plication to request 1,512 dwelling units, an increase of 90 units in Phase Seven of the Plan. Nei£'hborhnnd R-15 - Is a proposed multi-family project of up to 464 units with a 4.5 acre CPF site most likely designated for a church. .A.. paseo with emergency access will connect R-15 with the Village Core. Nei\!hborhnod R-16 _ Is proposed to be the second alley product design in SPA One and the SPA Conditions of Approval authorize a SPA amendment if you are adding an alley product design. Nei~hborhnnd R-17 - Expands the development area of Village One along Poggi Canyon as provided for in the recent GOP amendment and the proposal changes the land use from multi- family to single-family. Nei£'hborhood R-18 _ Proposes a single-family neighborhood, at a slightly higher density of 7.2 du/p/ac. Nf'i\!hhorhood R-19 - Remains as a multi-family site and as a target site for the affordable housing location for this Village and Telegraph Canyon Estates. Neiehborhnnd R-47ICPF-l/C-l - This is the heart of the Core and proposes a mixed-use center to provide for the day-to-day needs of the Village residents and includes a commercial ground floor along the frontage of East Palomar Street, in addition to second and third story uses, one of which is a medical office building with a first floor pharmacy. Nf'i!:'hborhnod R-48 _ Proposes a single family development located outside of the 1/4 mile radius of the transit station. c2.. Plannin¡: Commission Minutes -6- February 3, 1999 The changes to Phase Seven deal with two conditions; expansion of development areas allowed by the recent GDP amendment as well as reorienting the "Main Street" design for Village One. The applicant is proposing East Palomar Street being the "Main Street" design for this Village. The commercial is proposed to be a true mixed use with two to three stories of residential units located above ground floor commercial. Staff believes that under the previous plan, "Main Street" did not go to a particular destination, and there would be difficulty drøwing residents down the street, while under the current plan, a significant amount of pedestrian activity will occur along East Palomar Street. The SPA Plan indicates one guarded entrance for Village One on the south side of East Palomar Street Staff was concerned over the continued use of restricting access to these neighborhoods and took the issue to the Executive Committee. After review, it was decided to support the applicant's proposal for guarded entrances in Phase Seven to be consistent with the existing guarded entrances north of East Palomar. Staff believes the SPA One amendments for Phase Seven, proposed by the applicant are consistent with the Otay Ranch GDP policies and recommends approval of the amendments. Rick Rosaler reported that the SPA One West area encompasses the area west of Paseo Ranchero, south of Telegraph Canyon and north of Olympic Parkway. East Palomar Street is proposed to be e>.1ended through from Sunbow to the Village One Core. The GDP amendments that were approved in November 1998 allow for the expansion in to this area of approximately 237 acres and currently there is an issue with density between the applicant and staff. This area is suppose to be a transition area between the Sunbow project to the west and Village Core to the east It includes a 5 acre park adjacent to the Sunbow school site and an additional third park for SPA One. At this time, the school district is not sure whether the third school site is going to be necessary, however, planning and reserving the site for the school will proceed. Staff is concern with the transfer of a large number of units, increase in density, compatibility to Sunbow and compliance with the Ge'neral Plan landform grading policy in Village One \oV est. The applicant submitted a Tentative Map which proposes 818 lots which does not include Neighborhoods R-54A &8 which have 37 units for a total of 855 in Village One West. They decreased the unit count from 855 to 818 on the Tentative Map in an attempt to address staff's concerns on the landform grading policy associate with slopes adjacent to Telegraph Canyon Road, Paseo Rancher and Olympic Parkway. The current proposed tentative map does address the landform grøding policy to staff's satisfaction and there will need to be further reduction in lots along Olympic Parkway and an additional 1 0 lots would need to be eliminated to conform to the policies. Therefore, staff supports 808 units on the Ranch's portion of Village One West With the addition of 37 units in Neighborhood R-54A&B, staff supports total unit count for Village One West of 845 instead of 855 and staff's recommendation will require a transfer of 42 lots from Village One. -3 Planning Commission Minutes - 7- February 3, 1999 Commission Discussion: Commissioner Ray asked for clarification on the net increase of dwelling units specifically in Village One. Rick Rosaler stated that 90 units are being added into Village One than what was originally authorized and transferred 45 units into Village One West In the original GDP the multi-family density was fixed at 1566 to have the 1 B du/p/ac.; the multi-family density that is being proposed now is 1512, a difference of 54 units. Commissioner Thomas asked for clarification On the change in parking ratios, and also inquired if the five parks that are listed are private. Rick Rosaler responded that in the Village Planned Community Distrid Regulations there was a parking ratio of 2.5 for 3 bedroom units and it was felt that when the Gateway projed, a 420 unit multi-family projed also done by Chelsea, was looked at, because of the transit-oriented nature of the Village, that amount of parking was not needed and 2.25 is being recommended for a 3 bedroom units. In addition, Park P12,P5,P4 and P3 are all private parks located behind the private entrances. Public Hearing Opened 8:15 Kim Kilkenny, The Otay Ranch Company, 350 W. Ash Street, San Diego, introduced Kent Aden, Exec. Vice President, and Raney Hunter, Projed Manager, and expressed appreciation to staff for their efforts over the past several months in preparing the General Plan Amendment and this plan. Mr. Kilkenny stated that in light of the Commission and City Council recent tour of eastern Chula Vista, which included the Ranch, he will waive going into a discussion on that development, other than to say that they are very pleased and proud with the progress made thus far and the vision that was articulated nine years ago, is coming to fruition. Mr. Kilkenny stated that the main issue he wanted to convey is that The Otay Ranch Company endorses staff's recommendation, even in the one area that staff's report indicates there was a modest disagreement over ten units. The Ranch agrees with the number that staff has indicated; B45 units in Village One West, however, they ask that as they go through the Tentative Map, they be allowed the discretion to indicate where those ten units would be lost. Chair Willett asked for clarification on the term 'net usable acres' with regard to school and park sites. Mr. Kilkenny responded affirmatively that contained in the Public Facilities Finance Plan, the contrad with thE' Distrid, and the Tentative Map conditions, the term 'net usable acres' will be used. The school distrid will get 10 acres plus, which will be delivered in Village One. <f Planning Commission Minutes - 8- February 3,1999 Public Hearing Closed 8:35 MSC (Thomas/Ray) (6-G-O-O) to adopt Resolution PCM 97-11 recommending the City Council approve the amendment to the Olay Ranch SPA One Plan and Resolution PCM 98-02 recommending City Council approve the amendments to the Otay Ranch SPA One Planned Community District Regulations and to reduce the number of units to 845 in Village One West.. Motion carried. DIRECTOR'S REPORT: Bob Leiter, Director of Planning and Building, reviewed the upcoming schedule of meetings calendared for February; they are: · a regular meeting on February 10 a joint GMOC workshop on February 17 with a presentation by Kent Olson from CTV on the status of SR-125, a presentation on the Olympic Parkway project, and a representative from MTDB will discuss light rail transit planning; and a regular meeting on the February 24. · · In addition, Mr. Leiter polled the Commission as to their availability to attend the joint GMOOCity Council/Planning Commission annual workshop scheduled for either Monday, March 22nd or Monday, March 29th. Mr. Leiter also reported that the Economic Development Commission has requested to have a joint workshop with the Planning Commission and City Council to talk about the industrial land use policies that were discussed by the Commission a little over a year ago. The date has not been set, but will probably take place sometime in March or April. Lastly, Mr. Leiter, stated that we have not yet received the registration information on the Planners Institute in Monterrey on March 24-26, 1999, however, it would be good to start planning for it and solicited input from the Commission as to who would be interested in attending. Commissioners Hall, Ray, Thomas and O'Neill expressed interest in attending. COMMISSIONERS COMMENTS: Commissioner Tarantino wished to express his appreciation to Councilmember Davis ¡or any input she may have had in having the padlock removed ¡rom the refrigerator in the lounge. ADJOURNMENT at 8:45 p.m. to the Regular Planning Commission meeting of February 10, 1999. ~~~~ Diana Vargas, Secretary to Planr(i,hg Commission S- Jj m{ HMeAJi .1 MINUTES OF THE CITY PLANNING COMMISSION OF CHULA VISTA, CALIFORNIA Council Chambers Public Services Building 276 Fourth Avenue, Chula Vista 7:00 p.m. Wednesday, March 10, 1999 ROll CAW MOTIONS TO EXCUSE: Present: Chair Willett, Commissioners Castaneda, Ray, Thomas, and O'Neill Absent: Commissioners Tarantino and Hall Staff Present: Jim Sandoval, Assistant Director of Planning and Building Rick Rosaler, Principal Planner Kim Vander Bie, Assistant Planner Ann Moore, Assistant City Attorney Elizabeth Hull, Deputy City Attorney MSC (Thomas/Ray) to excuse Commissioners Tarantino and Hall. Motion carried. PLEDGE OF AllEGIANCE/SILENT PRAYER INTRODUCTORY REMARKS: Read into the record by Chair Willett APPROVAL OF MINUTES: December 16, 1999 MSC (Ray/O'Neill) to approve minutes of December 16, 1999 as presented. Motion carried. ORAL COMMUNICATIONS: No public input. 1. PUBLIC HEARING: PCM-95-01B; Amend the Otay' Ranch SPA One Public Facilities Financing Plan to amend the threshold for Olympic Parkway construction. The Otay Ranch Company and the McMillin Company. Background: Rick Rosaler, Principal Planner reported that the SPA One PFFP establishes thresholds for public improvements serving Villages One and Five, including Olympic Parkway. In order to expedite the improvements of Olympic Parkway, a financing plan with security for construction has been negotiated with the Otay Ranch Company and McMillin Companies. An amendment to the SPA One PFFP has been proposed to establish improvement thresholds so that Otay Ranch Company and McMillin Companies can equitably share in the number of units as the Olympic Parkway threshold. G -----_._,-~-~ Planning Commission Minutes - 2 - March 10, 1999 Mr. Rosaler stated that the triggers for EDU's in SPA One (Villages 1 and 5) are not changing. The City is entering into an agreement with the Otay Ranch Company and McMillin Company to expedite the construction of Olympic Parkway. In order to accomplish this, staff is proposing to add security thresholds to the Public Facilities Financing Plan. The SPA One PFFP trigger to guarantee the construction of Olympic Parkway from 1-805 to Paseo Ranchero and Paseo Ranchero to East Palomar Street to Olympic Parkway is currently set at 1,213 EDU's. Phase I improvements include Olympic parkway from Brandywine to Paseo Ranchero and Paseo Ranchero to East Palomar Street. Phase II extends Olympic Parkway from Paseo Ranchero to East Palomar Street. Sta2e 1. Currently, Final Maps containing 1,213 EDU's have been approved. With the approval of the agreement by the City Council guaranteeing the construction of Paseo Ranchero and Olympic Parkway, Final Maps containing up to 1,800 EDU's can be approved. Sta2e 2. When the environmental permits for Poggi Canyon are approved by the wildlife agencies, Final Maps containing up to 1,995 EDU's may be approved by Council. Prior to Final Map approval with 2,526 EDU's. Sta2e 3 Requires: 1. Full environmental clearance from wildlife agencies, including clearance for the Quino Checkerspot Butterfly; 2. Approval for grading plans with full bonding for Phases I and II (Olympic Parkway and paseo Ranchero); and 3. Approval of the detention basin agreement for Poggi Canyon. Sta2e 4. Receipt of bond proceeds for improvements in CFD 97-03 (La Media, East Palomar and Olympic Parkway) will allow approval of 2,690 EDU's. Sta2e 5. Requires the Phase I improvements for Olympic Parkway and Paseo Ranchero to be approved and bonded, which will allow approval of up to 3,126 EDU's. Sta2e 6. With Phase II Olympic Parkway improvements approved and bonded, along with La Media and East Palomar, will allow approval of 5,429 EDU's. Sta2e 7. Full build-out of SPA One, including Village One West, requires approval of improvement plans and bonding for Olympic Parkway from East Palomar to SR-125 right-of-way. 7 ._-~"----- Planning Commission Minutes - 3 - March 10, 1999 These steps are bit unusual and its take the PFFP process a bit further than other applicants have, giving the City through the financial agreement that Council will enter into with the two developers, the s~curity that Olympic Parkway will be built as the project is developed. Staff Recommendation: That the Planning Commission recommend that the City Council approve the amendment to the Otay Ranch SPA One Public Facilities Finance Planning for Paseo Ranchero and Olympic Parkway. Commission Discussion: Commissioner Ray asked about the changes made to Table 11 (Transportation Phasing). Rick Rosaler responded that staff has been meeting regularly with the two developers, even as recently as the present day, regarding the construction schedule and they have agreed to construct and to secure the facility prior to the Final B Map triggers. Chair Willett asked if staff had an estimated time for the completion of the Final B Map. Mr. Rosaler responded that approximately 8 to 10 Final Maps have been recorded and another 3 to 4 are pending approval of this by the City Council so that additional units can be recorded. Final Maps have been recorded in Village 1 and Phase 2B. Final Maps have been approved for McMillin in the area north of Palomar and the first set of Final Maps for Pacific Coast Communities in Phase lA, across from St. Claire. Public Hearing opened 6:35. No public input. Public Hearing closed 6:35. MSC (Thomas/Ray) (5-0-2-0) that Planning Commission recommend to the City Council adoption of resolution approving the amendment to the Otay Ranch SPA One Public Facilities Finance Plan for Paseo Ranchero and Olympic Parkway. Motion carried. ~ SPA One Public F aciliries FinancinJ! Plan TRA;:;:IC Table 11 Transportation Improvements I I Cumwtiv. I Phas~ (FOOtDDtr or Phasr sytedfit EDU ni::~er) IlJJœnW T ransporution lmprovemcnts I rou's I Blue I G~' Pink I Gn> I ~ I Yd I Bn> I Red I PU'1' ISilverl GDld I 4 , I I I I I I I I I I I 1!'2= R.n::h=ro - ;2s: hioma, to Olympic Ç!) C) (2) Ç!) Ç!) C) C) (2) 300 C) (2) ¡~~\.. 1 "'13 I 6 ~ McåU! - East f'a,icrr.a:-lo Oiympi: I I Ç) I Ç) (2) I :::!) I (3) I m I C!) I (2) I m I C!) I C!) 1~"2I'I." :.9] 1 ! l~B !=.zs: ~aìcmaf - ~mz has:: to Oi:-m~JI: I I 1:!¡ c¡ (:!) I C) I (3) I 300 ! (2) I (3) I C) I C) I CI I ¡h:ri~v...," 2.91 ] I J lS~. I:..: M~ pcci:stnzr: B:-ici~ I 2.911 I (4! (4) (4) I ~4 I (4) I (4) I (4) I (4) I (4) I (4) I (4, j 15B ! l.:! 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JaLC: ..1." °3 ~- --;- ~ /' J.ÆDaDU"C 0 am:ra::mrJ~~ . -c.~._.. ~"v'.%~.~ :I.. \'l-C .=._,,_~"_'_·e.n-_ ..... __': . _ _..I.o~f .'_. __ _ _c, ~~Ml~::~ :~rn-_r::~5. -~: .._'f>;' ~ame or Comra=/~ . ~ ~ ~ =: ~1m' rntii=i=l. f:rm. ~~;'iD. joint v=c. =oc=rwn. óooai dub..I7ascrnDl o~ar~ =rporrmon. =c. :=. ~.~. :nis anD am> oUocT ~. :;:V. or~, =Y ~. ¡jism.c:. :;r oUza poün:.::.i ~. or crry omrr grouD Dr comi1inrmDr. ~~ c:r D. un:lZ- (0): ""3:¡ME"~GI!,¡~I!J.!IDDEV"FOI:MS\D:SC'_::>5E.?i:.Id (6 COUNCIL AGENDA STATEMENT Itemil Meeting Date 4/20/99 ITEM TITLE: Resolution /9'1 J./ 3 Declaring City's intention to increase sewer service charges and setting a Public Hearing on consideration of an increase in sewer service charges for June 8, 1999 at 6:00 p.m. SUBMITTED BY: Director of Public Works ~C\A REVIEWED BY: City Manage~ ~ ~r\ (4/5ths Vote: Yes_NoX,J The City ofChula Vista's last sewer service rate Ucrease was passed on August, 5, 1997. Annual expenditures have increased rrom $13.65 million in Fiscal Year 1997-98 to an estimated $14.29 million in Fiscal Year 1998-99. Expenditures are projected to exceed revenues by a total of approximately $3.57 million between Fiscal Years 1999-00 and 2001-02. In order to continue to meet expenses related to the construction and operation of the sewage transportation and treatment system, the sewer service rates must be increased. RECOMMENDATION: That Council approve a resolution declaring City's intention to increase sewer service charges and setting a Public Hearing on consideration of an increase in sewer service charges for June 8, 1999 at 6:00 p.m. BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. DISCUSSION: We have recently been apprised by the City of San Diego Metropolitan Wastewater Department that the costs for sewage treatment and disposal will be increasing due to the City of San Diego Metropolitan Wastewater Department's proposal to increase their revenues by 5 % per year to finance continued upgrade and expansion of the wastewater system which is required to comply with federal and state mandates including the Clean Water Act, the Ocean Pollution Reduction Act (OPRA), the State Ocean Plan and federal court orders. Historical Revenues and Rxpenditures The charges paid to other agencies for regional sewage transportation, treatment and disposal (City of San Diego Metropolitan Wastewater Department and the County's Spring Valley Sanitation District) increased rrom $4.6 million in Fiscal Year 1991-92 to $14.29 million in Fiscal Year 1998- 99. These charges are now approximately 86 percent ofthe total budget of Fund 225. The increases are even more dramatic when compared to the total of $521,772 paid to the City of San Diego for capacity and maintenance and operation (M & 0) costs for Fiscal Year 1989-90, the year before extensive Clean Water Program costs began to be incurred. 17/1 Page 2, Item Meeting Date 4/20/99 Revenues for Fiscal Years 1991-92 through 1998-99 are shown on Attachment 1. The last sewer service charge increase, ftom $16.00 to $18.30 per single family home, was adopted in August 1997 in order to cover anticipated expenses at that time. The other increase in revenue over the past eight years has been largely due to the increase in development during this period and the work of Engineering Division staff in obtairung additional revenue by uncovering properties receiving sewer service which had not previously been billed for this service. Three Year Projection of Expenditures A projection of sewer system expenditures for Fiscal Years 1998-99 through 2001-02 is shown on Attachment 2. The City of San Diego provided an estimated overall charge per million gallons of sewage for Fiscal Years 1998-99 through 2001-02. This was multiplied times the estimated wastewater discharge for these years. Chula Vista flow includes both flow discharged directly to the San Diego Metro system and flow initially discharged to the Spring Valley Outfall. The flow takes into account wastewater quality as well as quantity. Based on the historic wastewater flow records for Fiscal Years 1991-92 through 1998-99, it is anticipated that flow directly into the Metro system will increase by at least 1.5 percent per year, while flow which discharges into the regional system through the Spring Valley Outfall Sewer should increase by at least 5.0 percent per year. As shown on Attachment 2, it is anticipated that expenditures will increase substantially during Fiscal Years 1999-00,2000-2001, and 2001-02. Expenditures for the next several years after that are expected to increase slowly based primarily on increases in sewage flow and inflation, since construction of the major Clean Water Program projects should be completed by the end of Fiscal Year 2001-02. Costs are not expected to decrease in the foreseeable future because the Clean Water Program has been financed through the issuance of bonds with minimum terms of20 years. Revenue Sources In order to meet these expenses, staff investigated the following revenue sources: 1. Reserves in Fund 225 2. Transfers from other funds 3. Increase in sewer service charges In order to determine the amount of reserve funds available, the anticipated revenues and expenditures for Fiscal Year 1998-99 through Fiscal Year 2001-02 were added to the fund balance on July 1, 1998 as shown below: Balance in Fund 225 as of 7/1/98 Est. FY1998-99 thru FY2001-02 Revenue Est. FY1998-99 thru FY2001-02 Expenditures $10,726,372 $55,036,000 ($69,334,797) ($3,572,425) Est. Balance as of7/1/02 J7~2 '_._--------"..~.- . Page 3, Item Meeting Date 4/20/99 The reserve will be significantly in deficit by the end of Fiscal Year 2001-02 if additional revenue is not obtained. 1fMetro rates are higher than projected it is possible that enough money will not be available to pay these costs. The reserve in Fund 225 can therefore no longer be used to cover revenue shortfalls. Fund 222, the Trunk Sewer Capital Reserve Fund, currently has an approximate value of $16.0 million in cash and investments (cash balance is approximately $13.6 million). Revenues from sewer capacity charges are deposited into this fund. As stated in Section 3.14.010 of the Municipal Code, these funds shall only be used, "for the planning, design, or construction of sewage collection or treatment or water reclamation purposes." Funds deposited in Fund 222 will need to be used within the next five years in order to construct the Salt Creek sewage trunk line along the southern border of Chula Vista which will provide sufficient sewer capacity to accommodate the major developments in the eastern areas ofthe City, such as Eastlake, Otay Ranch, Rolling Hills Ranch, the Olympic Training Center and Sunbow II. Portions of these developments are currently being temporarily pumped into the Telegraph Canyon trunk sewer; however, there will not be enough capacity to accommodate these flows in the near future. The cost of this trunk line is estimated to be $20.0 million, however, only $12.0 million will be covered by fund 222. Transferring $3.0 million over the next three fiscal years ($1.0 million per year) rrom this fund into Fund 225 should not affect the financing of the Salt Creek sewer facility. The use of Fund 222 to pay for a portion of the future debt service for construction of Clean Water Program Capital Improvement Projects will depend on the amount of annual revenue, the amount of annual debt service payable to San Diego and the actual cost ofthe regional sewerage facilities. Since the non-interest revenue is dependent on the amount of new development, it can fluctuate ITom year to year. A review of revenues in this account from Fiscal Year 1991-92 indicates that revenues have fluctuated between $1.8 and $2.3 million per year with the exception of Fiscal Year 1992-93, when annual revenues were only $964,154. Previous calculations indicate that the future development portion of Clean Water Program CIP projects will likely be at least $1.0 million per year. It therefore seems reasonable to project future transfers rrom Fund 222 to Fund 225 at $1.0 million per year. Revenue PrQ,jections Based on the fund transfers discussed above, revenue projections were prepared for the next three years. It was assumed that monies which could not be obtained from other funds, interest and miscellaneous revenue such as industrial waste permit fees would need to be obtained from sewer service charges. It was also assumed that a minimum reserve of20 percent of expenses would need to be maintained, since revenues rrom the Montgomery area collected on the tax bills are generally not received by the City until December at the earliest, and revenues collected by the Otay Water District are received by the City two to three months after they are collected. The number of Equivalent Dwelling Units (EDUs) per year was projected based on the anticipated increase in flows into the Spring Valley trunk sewer and Metro system. Based on the prior years' /7~ 3 Page 4, Item Meeting Date 4/20/99 history, this increase is anticipated to be about 2.3 percent per year. By comparing historical flows to revenues and reviewing prior studies, it was estimated that one EDU would be equal to approximately 220 gallons per day of flow. Since the vast majority of sewer service revenues are rrom single family or multiple family residences (over 90 percent in the Otay Water District service area), and since the rate for both categories is the same per EDU, it was considered appropriate to use the residential rate in the analysis. Alternative I presents the sewer service rates which would be needed to pay for expenses and maintain the reserve as discussed above. . Due to the fund transfers, it would be possible to avoid enacting a rate increase for Fiscal 1999-00. However, this would mean that an increase of approximately $4.95 per month will be required in Fiscal Year 2001-02. The total single family sewer service charge would be increased rrom $18.30 to $23.25 per month. Due to the problems caused by a sudden high increase ofthis magnitude, a second alternative was prepared (Attachment 3). This involved increasing the revenue to Fund 225 from the sewer service charges by 18 percent over the next three fiscal years (6% per year). Alternative 2 is recommended, since three increases of 6 percent per time should be easier for customers to budget for than one large increase. Additionally, the overall rate after three years is lower under Alternative 2. Neither alternative includes an increase ofthe sewer replacement or storm drain fees, which are each $0.70 per EDU for all years considered. The storm drain rate may be reevaluated at a later date. In evaluating the appropriateness of a rate increase, we reviewed the current rates of other sewer agencies in San Diego County (Attachment 4). Out of the twelve Metro agencies surveyed, Chula Vista has the third lowest rate and is well below the average Metro rate for single family homes. Even with the rate increase to $19.36 in Fiscal Year 1999-00 for the sewer portion of the bill, Chula Vista would still have the third lowest rate of the Metro agencies based on the previous year's schedule. Therefore, the rate increase appears to be reasonable. The City of San Diego has already raised the rates by 5% per year for the next three years. Proposed Sewer Rates The proposed sewer service rates for all categories are shown below. In order to be equitable and comply with State Guidelines for setting sewer rates, all rates will be increased by the same percentage (Attachment 5). Proposition 218 Impacts It is not clear if the sewer fee is covered under Proposition 218. This is because Prop 218 covers fees that are charged solely because of property ownership. Sewer fees are not charged if the house is not connected to the sewer. Therefore, a property owner who has a septic tank would not be charged a sewer fee. Also, if the water is turned off, there would not be a sewer fee for that time period. If the sewer fee is covered by Prop. 218 it is clear that it is not necessary to raise the fee through the ballot process. However, there would have to be a public hearing held not less than 45 days after / /r t( ------- -~.._._--,.- Page 5, Item Meeting Date 4/20/99 mailing notices of the rate increase to each property owner. To be safe, we are complying with that provision of Prop. 218. FISCAL IMPACT: Approval ofthe proposed sewer rate increase next June and adoption of the proposed rate structure and the recommended transfers, will allow the City to cover the anticipated sewer-related expenses in Fiscal Years 1999-00,2000-01, and 2001-02. The City has sufficient funds in Fund 222 to cover the transfer of$3.0 million. Increased revenues over the next three fiscal years are anticipated to be approximately $4.05 million. The revenue for FY 1999-00 is estimated to increase by $0.51 million. The FY 2000-01 revenue is estimated to increase by $1.32 million. FY 2001-02 would yield the highest increase which is estimated to be $2.22 million. All revenue rrom sewer service charges is deposited into Fund #225. Failure to approve the proposed sewer rate increase would put Fund #225, at the end ofFY 2001-02, in a deficit estimated to be $3.57 million. Attachments: 1. Sewer Revenues Over the Past Fiscal Years 2. Sewer Revenues and system expenditures for Fiscal Years 1999-00 through 2001-02 3. Revenue Projections - Gradual Rate 1ncrease 4. Survey of San Diego County Sewer Fees per EDU 5. Proposed Sewer rates for the next three fiscal years H:\HOME\ENGlNEERIAGENDA \RA TE-INC.SMN /7-Ç ----._---.__._---_._~". RESOLUTION NO. /9t/Lfy RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA DECLARING CITY'S INTENTION TO INCREASE SEWER SERVICE CHARGES AND SETTING A PUBLIC HEARING ON CONSIDERATION OF AN INCREASE IN SEWER SERVICE CHARGES FOR JUNE 8, 1999 AT 6:00 P.M. WHEREAS, the City of Chula Vista's last sewer service rate increase was passed on August 5, 1997; and WHEREAS, annual expenditures have increased from $13.65 million in FY 1997/98 to an estimated $14.29 million in FY 1998/99; and WHEREAS, expenditures are projected to exceed revenues by a total of approximately $3.57 million between fiscal years 1999-00 and 2001-02; and WHEREAS, in order to continue to meet expenses related to the construction and operation of the sewage transportation and treatment system, the sewer service rates must be increased to the rates proposed in Attachment 5. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does hereby declare the City's intention to J.ncrease sewer service charges and sets a public hearing on consideration of an increase in sewer service charges for June 8, 1999 at 6:00 p.m. in the Council Chambers, City of Chula Vista, 276 Fourth Avenue, Chula Vista. BE IT FURTHER RESOLVED that the City Clerk is hereby directed to advertise said public hearing in a newspaper of general circulation at least ten (10) days prior to the hearing. BE IT FURTHER RESOLVED that staff is hereby directed to provide notice by mail at least 45 days prior to the public hearing to all property owners who may be impacted by the fee increases. Presented by Approved as to form by John P. Lippitt, Director of Public Works ~~~~JW~ Joh M. Kaheny City Atton~y H:\home\attorney\reso\sewer.ph )7~t ----------. ,.. .__.,-~-_._...._.__.,,_..._- 0 0 0 0 0 0 0 0 0 0 0 ° m ° ..... ...... m N 0 "! m ai M ~ m cD Ò CD .... N IX) ~ .... M V ..... IX) I() V O. IX) N '<t CD m ... Ò ~ en ... ... ... >- ;;; ;;; >- u.. u.. . N 0 N N ..... en CO CO 0 CO CO It) ~ CD It) m '<t m ~ m Ò m å ¡::: ".; It) ~ ¡::: oj ~ M CO ° m ~ m N '" ..... It) CO 0 >- ... ... ... >- ... N CO_ u.. '" It) u.. ~ ~ ... ... 0 ~ ~ CO m ..... ..... 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ATTACHMENT 5 PROPOSED SEWER RATES FOR THE NEXT THREE FISCAL YEARS 6 PERCENT INCREASE FOR FY 1999/00 Category Single Family Multiple Family Low income Without Storm Drain or Replacement Fee $18.66/month $1.89/100 cubic feet (HCF) water used $12.84/month Commercialllndustrial Low $1.72/HCF water used Medium $2.13/HCF water used High $2.89/HCF water used 6 PERCENT INCREASE FOR FY 2000/01 Category Single Family Multiple Family Low income Without Storm Drain or Replacement Fee $19.78/month $2.00/100 cubic feet (HCF) water used $13.61/month Commercial/Industrial Low $1.82/HCF water used Medium $2.26/HCF water used High $3.06/HCF water used 6 PERCENT INCREASE FOR FY 2001/02 Category Single Family Multiple Family Low income Without Storm Drain or Replacement Fee $20.96/month $2.12/100 cubic feet (HCF) water used $14.43/month Commercial/Industrial Low $1.93/HCF water used Medium $2.40/HCF water used High $3.24/HCF water used Includin9 Storm Drain & Replacement Fee $20.06/month $2.01/HCF water used $14.24/month $1.84/HCF water used $2.25/HCF water used $3.01/HCF water used Including Storm Drain & Replacement Fee $21.18/month $2.12/HCF water used $15.09/month $1.94/HCF water used $2.38/HCF water used $3.18/HCF water used Including Storm Drain & Replacement Fee $22.36/month $2.24/HCF water used $16.00/month $2.05/HCF water used $2.52/HCF water used $3.36/HCF water used (H:\HOMEIENGINEER\SEWER\RA TINCR.WB1) /7//1 COUNCIL AGENDA STATEMENT ITEM TITLE: RESOLUTION: Item / r Meeting Date: 4~ A/' ¡t;J//tJ ~ 'f M¡ ~ 1 Approving an Agreement for the Financing and Construction of Olympic Parkway Phase I, II, and III and Related Roadways Between the City of Chu1a Vista, McMillin Otay Ranch LLC and Otay Ranch Project LLC and Authorizing the Mayor to Execute said Agreement SUBMITTED BY: Deputy City Manager / I. /' Public Works Direct~¿:/ - '-¡<./ City Manager }.! 1) (4/5ths Vote: Yes_NoX) REVIEWED BY: The purpose of this item is to outline a fmancial plan for Olympic Parkway Phases I, II & Ill, which extends rrom Brandywine A venue to SR#125. The goal of the financial plan is to be able to get Olympic Parkway constructed in a timely fashion and at the same time allow subdivision development on the Otay Ranch to proceed in an orderly manner. The objectives of the financial plan are as follows: to outline the project costs and how they apply to each party, to establish time rrame milestones for the various work components such as grading, channel and roadway construction, to establish financial guarantees to secure the work, to decide how the work will be paid for and by whom, and to construct the road when needed. In addition, and equally important, a companion item to amend the Otay Ranch Public Facility Financing Plan is being brought forward to make sure that development does not outpace the road construction or result in an unacceptable level of service on Telegraph Canyon/Otay Lakes Road. As to environmental review, the City Council , in approving the Financing Agreement, is implementing a component of the Olympic Parkway Extension Project, a project for which the Council previously adopted a mitigated negative declaration, 1S # 99-20. RECOMMENDATION: Approve the agreement for the financing and construction of Olympic Parkway Phases I, II & III and related roadways. BOARD AND COMMISSIONS RECOMMENDATION: Not Applicable 1 /2'-/ BACKGROUND: Olympic Parkway is a major east-west roadway on the General Plan Circulation Element similar to East "H" Street and Telegraph Canyon Road/Otay Lakes Road which is needed to serve new development in the Eastern Territories. Along with SRff125 it will be the new backbone roadway network to serve Sunbow, Otay Ranch, Eastlake, Rolling Hills, and Rancho San Miguel. Transportation modeling indicates that Olympic Parkway is needed within the next couple of years to relieve future level of service impacts to Telegraph Canyon Road. Due to the magnitude of the construction work and permits needed, including environmental, it is imperative to start as soon as possible. For those reasons, the City contracted with Kimley- Horn and Associates, Inc. in February, 1998, to prepare an Olympic Parkway Feasibility and Engineering Study and hired McGill, Martin, Self, Inc. in January, 1999 to manage the project, do plan check and assist with the public financing mechanisms. In order for the City to monitor the project development timing compared with the inrrastructure construction timing, the City outlined various requirements in the project's Public Facility Finance Plan. The Public Facility Finance Plan (PFFP) for Otay Ranch SPA I identified certain traffic capacity limits by which Olympic Parkway should be built. It established a final map threshold, recognizing that construction of Phase I improvements to accommodate the anticipated trips requires design, processing and construction time. The requirement is that the Phase I improvement shall be constructed or an agreement entered into to construct said improvements prior to approval of the first final map which contains units exceeding 1,213 equivalent dwelling units (EDU). The EDU's for final map approval for SPA I of the Otay Ranch are now at the limit requiring this agreement. Approximately 800 EDU's have been approved for the McMillin Lomas Verdes Project and 400 EDU's for the Otay Ranch Project. This agreement, along with a related Council agenda item modifying the Otay Ranch PFFP, establishes the requirements and the process by which the City may continue to approve additional final maps and continue to issue building permits in accordance with the city's growth management ordinance and threshold standards. The approach is not simply to secure and guarantee the construction of only Phase I of Olympic Parkway but the entire roadway from Brandywine to SRff125. It should be noted that other pieces of Olympic Parkway are being addressed by others. The segment rrom I-80S to Brandywine is already secured with the Sunbow Project. In addition, Eastlake has the easterly segment of Olympic Parkway from the Olympic Training Center to Hunte Parkway under construction. The proposal calls for Olympic Parkway Phase I to be completed by October, 2000; Phase II by October, 2001; and Phase III by March, 2002. In addition to Olympic Parkway, other 2 /í5---;L ---_.._~--,-"......"-_._~--_. .,._----_.....".,,~ ........-.-.., .,-.--.-..--- .-....-.----...-,., portions of the circulation system within SPA I will be completed including Paseo Ranchero and La Media between Telegraph Canyon Road and Olympic Parkway and East Palomar rrom Sunbow through Otay Ranch to Olympic Parkway. DISCUSSION: The total estimated cost of the first three phases of Olympic Parkway is estimated at $57.5 million. Of that amount, $14.4 million is estimated to be McMillin's fair share and $43 million Otay's fair share. The agreement lays out how these obligations are to be met by the parties. The following outlines the parameters of the agreement: McMillin agrees to: Gradinl! - to prepare and process grading plans, post appropriate performance bonds, and begin grading on their property to accommodate the necessary roadway facility and improvements that will be located on the McMillin Property. McMillin agrees to complete all the Land Development work no later than July 28,2000. The cost estimate for this work is estimated at about $4 million. Construction Work - McMillin further agrees to construct the following improvements: 1) Poggi Canyon Drainage Channel; 2) a temporary drainage channel to be located on the southern portion of Olympic Parkway; 3) a concrete culvert road crossing at the La Media Improvement; 4) sewer improvements along Phase II Olympic Parkway Improvement: 5) waterline improvements along the Phase II Olympic Parkway Improvement; and 6) channel and full slope landscaping in accordance with City approved plans. Roadwav ImDrovements- McMillin agrees to construct McMillin's Olympic Parkway Improvement Segment (from La Media to East Palomar), the La Media Improvement (rrom Olympic Parkway to East Palomar) and other associated improvements such as landscaping on or before October 11, 2001. Cash Contribution- McMillin agrees to deposit, on or before July 28, 2000, the amount of $4.7 million in cash to pay for their estimated fair share for the construction of the phase I and II Olympic Parkway Improvement. It should be noted that if the construction contracts for Phase I and II Improvements are less than $4.7 million, the City will reimburse McMillin for any difference. In addition, in lieu of the cash payment, the City agrees to accept an equal amount from Community Facilities District No. 97-03 that has been specified for Olympic Parkway. 3 /ó3 In addition, on or before October 1, 2000, McMillin agrees to provide the City in cash its fair share of the Phase III Olympic Parkway improvement. Revenue Shortfall- If there is a revenue shortfall for the construction of Phase I and 11 Roadway Improvements, or if the cost exceeds the current construction costs, McMillin agrees to pay its fair share equal to 25 % of the total cost of construction minus the cost of constructing the McMillin Olympic Parkway Improvement. Otay Agrees to: Grading- to prepare and process grading plans, post appropriate bonds, and begin grading on their property to accommodate the necessary roadway improvements that will be located on the Otay Property. Otay agrees to complete all the grading work within one year rrom the City issuance of the permits for said work but no later than July 28, 2000. The cost estimate for this work is estimated at $20.9 million. Construction Work- Otay further agrees to construct the following improvements: 1) Poggi Canyon drainage channel; 2) a temporary drainage channel to be located adjacent to Olympic Parkway; 3) a concrete culvert road crossing at the Paseo Ranchero Improvement at Palomar Street; 4) sewer and waterline improvements along the entire length of Olympic Parkway between Brandywine and SRff125 but excluding the McMillin Property; 5) a detention basin within SPA I West; and 6) channel and full slope landscaping in accordance with City plans Roadway Improvements- Otay agrees to construct Phase I Olympic Parkway 1mprovement (from Brandywine to Paseo Ranchero) and the Paseo Ranchero Improvement (rrom Olympic Parkway to East Palomar) on or before October 19, 2000 and Phase 11 Olympic Parkway Improvements (rrom Paseo Ranchero to East Palomar excluding McMillin's Olympic Parkway Improvement) and the East Palomar Improvements on or before October 25, 2001 and Phase III Olympic Parkway on or before March 1, 2002. Cash Contribution- Otay agrees to provide the City on or before January 1, 2000 the amount of $17.2 million in cash (estimated as their fair share) for the construction of the Phase I and 11 Olympic Parkway Improvement or the total cost of constructing the Phase I and 11 roadway minus McMillin's share and any already posted bonds still in effect for the Project. If the amount of Otay's cash contribution and bonds exceeds the cost of the Phase I & 11 roadway, the City shall release an amount of Otay's bonds equal to said surplus. In lieu of the cash payment but within the same time rrame, the City agrees to accept an equal amount from the bond proceeds of a proposed Community Facilities District which is being proposed by Otay. The boundaries of the CFD are being defined at this time in order to assure a proper lien to value ratio. Otay has deposited $100,000 toward initiation of that work and 4 /3-1 agrees not to take any action which would decrease the lien to value ratio as of the date of this agreement. On or before October 1, 2000, Otay agrees to have Phase III Olympic Parkway plans approved and bonds posted to secure the facility construction. Revenue Shortfall- Otay is required to construct the improvements even if the costs exceed current estimates for the project work. Deed of Trust- For purposes of securing Otay's obligations under this agreement, a deed of trust shall be executed by Otay (City's Trust Deed). If Otay fails to provide the cash to the City by January 1, 2000, the City may foreclose under the City's Trust Deed. The City has requested titles reports and information verifying the value of the Trust Deed property and has stipulated that the value of the property not be diminished below the Minimum Value specified in the Agreement. City Agrees to: Final MaD and Buildilll.!: Permit Tri!.!:~ers- City will release fmal map approvals beyond the current 1,213 Equivalent Dwelling Units (EDU's) in a phased manner based upon certain roadway and financial milestones being met in the following manner: 1,800 EDU's with approval of the Financing Agreement 1,995 EDU's with resolution of the 4d coastal sage scrub deficit and with concurrence by the Resource Agencies of existing biological surveys for the Olympic Parkway roadway and associated earth borrow sites 2,526 EDU's with issuance of the appropriate Section 404,401, 4(d) and 1601 permits by the Resource Agencies for Olympic Parkway and the borrow sites , approval of full grading plans and posting of bonds for grading for Olympic Parkway Phases I & II, and detention basin agreements 2,690 EDU's with delivery to the City of bond proceeds for McMillin's CFD 97-3 (McMillin est. $4.7 million for Olympic) 3,126 EDU's with the posting of bonds for Phase I Olympic Parkway and Paseo Ranchero road construction 5,429 EDU's when plans are approved and security received for Phase II Olympic Parkway, La Media, and East Palomar Road construction from Santa Rosa to Olympic Parkway in accordance with the adopted Otay Ranch PFFP Full buildout of SPA I and SPA I West when plans for Phase III of Olympic Parkway are approved and security received 5 .--- /~-~ -~-_._--------_.- .-.".. -_....~.- .---~,,-_.__..- As to the above number of EDU's, McMillin and Otay have agreed to an allocation of the resultant final map approvals between them both. TRANS DIF Update- The City agrees to make completion of the TRANS DIF Update a high priority and to bring it forward to the City Council in a timely manner. (Staff is targeting coming forward to Council on this item in early May.) Environmental Permits- The City will cooperate in good faith to obtain all the required permits from the applicable environmental agencies for the construction of the Phase I , II & III of Olympic Parkway, Paseo Ranchero, LaMedia and East Palomar Improvements. Outside Consultant- The City has hired an outside consultant, McGill, Martin, Self Inc. to manage the processing and approvals of all plans and permits and will include regularly scheduled meetings for the monitoring of progress with Otay and McMillin. Relationship to the Threshold Standards and the Growth Manag:ement Ordinance- The threshold standards remain in place and are unaffected by this agreement. Should the traffic threshold be violated, then a building permit moratorium would be declared on all developments within the Eastern Territories until the appropriate mitigation requirements were addressed. To better anticipate any potential threshold problems, staff is proposing to monitor traffic compliance every 6 months instead of annually. FISCAL IMPACT: The complete obligation to construct the Phase I, II & III of Olympic Parkway and related improvements to Paseo Ranchero, La Media and East Palomar are the responsibility of the developers. Portions of the roadway will be paid for from the proceeds of assessment districts formed on the McMillin and Otay property ownerships, portions will be eligible for Transportation DIP credits, and portions will be paid with cash as onsite development cost obligations. The total cost is $57.5 million. 6 /f'/þ ._----_.._--_.._~---_.. ---..--- -- ._'----,_.__._-_.,.,------~.._-- Otay Ranch Obligations: Plan and Bond Submittal Schedule Page 1 of 2 Improvement Facility Stage per Definition Plan Bond Form of Security Improvement Exhibit "I" (Per Exhibit "Dn) Submittal Submittal I. Otay Ranch Village 5, 3 N/A 1/15/99 7/28/99' Grading Bond· Earthwork bonded Phase 2 Mass Grading at 100% within public R.O.W. and Channel Easement 2. Otay Ranch Village I, 3 N/A 2/11/99 7/28/99' Grading Bond - Earthwork bonded Phase 7 Mass Grading at 100% within public R.O. W. and Channel Easement 3. Otay Ranch SPA I 3 N/A 121l4/98 7/28/99' Grading Bond - Earthwork bonded West Mass Grading at 100% within public R.O. W. and Channel Easement 4. Otay Ranch Off-Site (Sunbow) 3 2 3/8/99 7/28/99' Grading Bond - Earthwork bonded Rough Grading for Olympic at ]00% within public R.O.W. and Parkway and Channel Channel Easement 5. Channel, Roadway, and Detention 3 2 3/8/99 7/28/99' Grading Bond - Earthwork bonded Basin Rough Grading Plans from at 100% within public R.O.W. and Sunbow to SRI25 Channel Easement 6. Channel Landscape Plans (Otay 3 2 4/27/99 7/28/99 . Landscape and lITigation Bonds. Ranch): Maintenance Bonds for Mitigation a. Brandywine to Pasco Area. Ranchero b. Paseo Ranchero to La Media c. E. Palomar to SR 125 d. Mitigation Area 7. Right-of-Way Documents 3 3A,4A,5A,6A,10 5/7/99 N/A 8. Olympic Parkway Improvements 5 3A 2/11199 10/15/99 Faithful Performance Bonds and from Brandywine to Paseo Labor & Material Bonds Ranchero 9. Olympic Parkway Street 5 3B 6/7/99 10/15/99 Landscape and lITigation Bonds. Landscape Plans Brandywine to Paseo Ranchero 10. Pasco Ranchero Improvements 5 4A 3/15/99 10/15/99 Faithful Performance Bonds and from East Palomar to Olympic Labor & Material Bonds Parkway II. Pasco Ranchero Street 5 4B 5/4/99 10/15/99 Landscape and Irrigation Bonds. Landscape Plans from East Palomar to Olympic Parkway [2. Olympic Parkway Improvements 6 5A 4/16/99 10115/99 Faithful Performance Bonds and from Pasco Ranchero to La Media LiJbor & Material Bonds 13. Olympic Parkway Street LiJndscape 6 5B 6/7/99 10115,99 L:mdscape and IrrigatIOn Bonds. Plans Paseo Ranchero to LiJ MediiJ 14. East Palomar Village I 6 9A.9B· 10/] 5199 Faithful Performance Bonds and Improvements, Landscaping, and LiJbor & Materia! Bonds. Water ConnectJOn LiJndscape and lITIgation Bonds. Page 1 of2 -'~--"-'"-'---"'---"--------,,,-~,--,,-,-,_._"---,-,-------.-------.----.. /g'~ 7 Page 2 of2 Otay Ranch Obligations Continued: Improvement Facility Stage per Definition Plan Bond Form of Security Improvement Exhibit "I" (Per Exhibit tlD") Submittal Submittal 15. East Palomar Village 5 6 8A,8B,8C 4/15/99 10115/99 Faithful Perfonnance Bonds and Improvements and Landscaping Labor & Materia! Bonds. Landscape and Irrigation Bonds. 15. Olympic Parkway Improve~ 7 10 1/1/00 1011/00 Faithful Perfonnance Bonds and meots from E. Palomar to Labor & Material Bonds. SR-125 Landscape and Irrigation Bonds. McMillin Obligations: 1. McMillin's Otay Ranch Villages I 3 i 2/l/99 7/28/99' Grading Bond - Earthwork bonded & 5, Phase 3 Rough Grading for at 100% within public R.O.\\'. and Olympic Parkway, La Media, and Channel Easement. Channel 2. Poggi Canyon Channel landscaping 3 I 4/15/99 7/28/99' Landscape and Irrigation Bonds. Plans La Media to E. Palomar Maintenance Bonds for Mitigation Area. 3. Right-of-Way Documents 3 6A.7A 7/28/99 N/A N/A 4. Olympic Parkway Improve- S 6A 3/31/99 10/15/99 Faithful Perfonnance Bonds and ments from La Media to E. Labor & Material Bonds. Palomar 5. Olympic Parkway Street S 6B 5128/99 10/15/99 Landscape and Irrigation Bonds. Landscape Plans from La Media to E. Palomar 6. La Media Improvements from E. 6 7A 3115/99 10115/99 Faithful Perfonnance Bonds and Palomar to Olympic Parkway Labor & Material Bonds. 7. LaMedia Landscape Plans from E, 6 7B 5/14/99 10/15/99 Landscape and Irrigation Bonds. Palomar to Olympic Parkway 8. Olympic Parkway Improve- 7 10 1/1/00 10/1/00 Cash Deposit for McMi]!in's "fair ments from E. Palomar to share" of Phase 3. SR-125 . Or within 30 dJ.ys after environmental permitting is received. H:",HO:.1E··E::\GDiEERL.....:-:ODEV,OLY;O"IPICEXHlBITC.DOC Fridav. ......prii 09. ]9994:15:35 P.\-1 Page20f2 jg' /~ ------_._..__._~,.._-~._~.,_.,.. _..~~--"'_......._-----~~"_.. ----_..__.~-----,-_. RESOLUTION NO. /9'7/tJ RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AN AGREEMENT FOR THE FINANCING AND CONSTRUCTION OF OLYMPIC PARKWAY PHASE I, II AND III AND RELATED ROADWAYS BETWEEN THE CITY OF CHULA VISTA, McMILLIN OTAY RANCH LLC AND OTAY RANCH PROJECT LLC AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT WHEREAS, it is necessary to outline a financial plan for Olympic Parkway Phase I, II and III and related roadways which extends from Brandywine Avenue to SR-125; and WHEREAS, the goal of the financial plan is to be able to get Olympic Parkway constructed in a timely fashion and at the same time allow subdivision development on the Otay Ranch to proceed in an orderly manner; and WHEREAS, the objectives of the financial plan are to outline the project costs and how they apply to each party, to establish time frame milestones for the various work components such as grading, channel and roadway construction, to establish financial guarantees to secure the work, to decide how the work will be paid for and to construct the road when needed; and WHEREAS, it is equally important to make sure that development does not outpace the road construction or result in an unacceptable level of service on Telegraph Canyon/Otay Lakes Road. NOW, THEREFORE, BE IT RESOLVED that the City Council of the city of Chula vista in approving the Agreement for the Financing and Construction of Olympic Parkway Phase I, II and III and related roadways between the city of Chula vista, McMillin Otay Ranch LLC and Otay Ranch project LLC, a copy of which shall be kept on file in the office of the City Clerk, is implementing a component of the Olympic parkway Project, approved by Resolution No. 19431, a proj ect for which the Council previously adopted a mitigated negative declaration (IS-99-20). 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 O--~~ Deputy City John M_ Kaheny, City Attorney H \home\attO=:Jeì'\:-eso\ol,/lT'.picl ~in '1~ Q ~-/ v /6---(' THIS PAGE BL~l\¡l( ) 8"'-/ {J """---'"-..--.-.-.---.-- AGREEMENT FOR FINANCING AND CONSTRUCTION OF OLYMPIC PARKWAY AND RELATED ROADWAY IMPROVEMENTS This Agreement for the Financing and Construction of Olympic Parkway and related roadway improvements ("Agreement") is made as of this day of April, 1999, by and among the CITY OF CHULA VISTA, a municipal corporation ("City"), McMILLIN OTAY RANCH LLC, a Delaware limited liability company ("McMillin"), and OTAY PROJECT LLC, a California limited liability company ("Otay"), with reference to the following facts: 1. The Properties. This Agreement has been prepared for the benefit of that certain real property located within the master planned community commonly known as "Otay Ranch SPA One and SPA One West", shown on Exhibit "A" (collectively ref.erred to herein as the "Property"), in order to secure the construction of the Olympic Parkway Improvement (as defined below) and other related roadway improvements. The McMillin Property. A portion of the Property is owned by McMillin and its successors in-interest or assignees, as shown on Exhibit A-1 (the "McMillin property") . The Otay Property. The other portion of the Property is owned primarily by Otay (and South Bay Project, LLC) and its successors in-interest or assignees, as shown on Exhibit A-2 (the "otay Property") . 2. Final Map Threshold. The Public Facility Financing Plan for the Property ("PFFP") , was amended by the City on October 6, 199B, which required property owners within SPA One to agree to construct and secure the construction of the improvements including portions of the Olympic Parkway Improvement, prior to approval of the final map that triggers such improvements. More particularly, Table 11 of the PFFP indicates that certain phases of the Olympic Parkway Improvement and other related roadway improvements must be secured prior to approval of final maps containing a certain number of cumulative "EDUs," as the term "EDU" is defined in the PFFP. 3. Amendment to the PFFP. In order for McMillin and Otay to continue to comply with the PFFP requirements and to receive final map approval for the benefit of all existing property owners within the Property, Otay and McMillin have consented to the City's amendment of the PFFP, dated April 20, 1999, ("PFFP Amendment") that now requires the Phase 1 of the Olympic Parkway Improvement to be secured prior to the approval of final maps containing cumulative 2690 EDUS, Phase 2 Olympic Parkway Improvement to be 1 /g'/ II -----.-.----.-..--..-.......-..-.-'--. --_._--_._~ secured prior to approval of final maps containing cumulative 3126 mapped EDUS and the Phase 3 Olympic Parkway Improvement to be secured prior to approval of final maps containing cumulative 5429 mapped EDUS. 4. Olympic Parkway. The Olympic Parkway Improvement is a planned major east-west thoroughfare in the City of Chula Vista providing access to the Property. Transportation modeling in the PFFP Amendment indicates that the Olympic Parkway Improvement is needed to relieve future level of service impacts to Telegraph Canyon Road and the City's transportation system as a result of development within the Property and elsewhere in the Eastern Territories. 5. Purpose of Agreement. McMillin, otay and the City want to assure the financing and construction of the Olympic Parkway Improvement and related roadway improvements, comply with the PFFP Amendment requirements, and continue the orderly development of the Property. The parties intend by this Agreement to establish a system for the financing and construction of the Olympic Parkway Improvement and the related transportation improvements required by the PFFP Amendment to allow the approval and recording of additional final maps for the Property. The execution and performance of this Agreement will allow the approval and recording of additional final maps within the Property to proceed, by "stages" as set forth in the PFFP Amendment. 6. City Olympic Parkway Improvements. The city has applied for five million ($5,000,000.00) in matching federal funding for the construction of the portion of the Olympic Parkway Improvement from I-B05 to Brandywine Avenue, including the I-80S Interchange ("Highway Interchange Project"). The construction of this portion of Olympic Parkway Improvement is not an obligation of McMillin or Otay under this Agreement. 7. Definitions: For purposes of this Agreement, the following terms shall mean: "Commence Construction" means when a construction contract has been awarded for the appropriate improvement and actual physical work on the improvement has begun. "Complete Construction," means that an improvement has been constructed and the City Engineer has determined that such improvement is ready for use by the public. Neither; (a) formal acceptance of the improvement by the City, nor (b) the completion of minor "punch list" item(s) related but not essential to the safe operation of the roadway, as determined by the City Engineer, is required for construction of an improvement to be deemed completed pursuant to the terms of this Agreement. "East Palomar Improvement A" means the full four 2 /ð/) ;:L lane right-of-way roadway improvement, known as East Palomar Road, that extends from the eastern boundary of McMillin's Property to Olympic Parkway, as more particularly depicted on Exhibit "B." "East Palomar Improvement B" means the full four lane right-of-way roadway improvement, known as East Palomar Road, that extends from the westerly boundary of the Otay Property to Paseo Ranchero, as more particularly depicted on Exhibit "B." "La Media Improvement" means the full four lane right-of-way roadway improvement, known as La Media Road, that extends from Olympic Parkway to East Palomar, as more particularly depicted on Exhibit "B." "McMillin's Acquisition and Financing Agreement" means that certain Acquisition and Financing Agreement for Community Facilities District No. 97-3 (Otay Ranch/McMillin SPA One) ("CFD-97-3"), made as of December 15, 1998, and amended on April 20, 1999, and as may be amended from time to time. "McMillin's Olympic Parkway Improvement" means the portion of the full six lane right-of-way improvement identified as Olympic Parkway located primarily on the McMillin Property and that extends from La Media to East Palomar, as more particularly depicted on Exhibit "B". "Olympic Parkway Improvement" means the full six lane right-of-way improvement identified as Olympic Parkway Roadway that extends from Brandywine to SR-125, described in the PFFP Amendment as Phases 1, 2 and a port ion of Phase 3, as more particularly depicted on Exhibit "B." "Paseo Ranchero Improvement" means the full four lane right -of -way roadway improvement, known as Paseo Ranchero Road, that extends from East Palomar Street to Olympic Parkway, as more particularly depicted on Exhibit "B." "Phase 1 Olympic Parkway Improvement" means a portion of the full six lane right-of-way improvement identified as Olympic Parkway Roadway that extends from Brandywine to Pas eo Ranchero, as more particularly depicted on Exhibit "B." "Phase 2 Olympic Parkway Improvement" means a portion of the full six lane right-of-way improvement identified as Olympic Parkway Roadway that extends from Paseo Ranchero to East Palomar, as more particularly depicted on Exhibit "B." "Phase 3 Olympic Parkway Improvement" means a portion of the full six lane right-of-way improvement identified as Olympic Parkway Roadway that extends from East Palomar to SR-125, as more particularly depicted on Exhibit "B." 3 /g //,) NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties agree as set forth below. Article 1 McMillin's Obligations 1.1. Plan Submittal. McMillin agrees to submit by the dates set forth in the Plan and Bond Submittal Schedule attached as Exhibit "C," and to thereafter diligently process for the City's approval, the following plans: a. Grading Plans. The following grading plans; (i) mass grading plans for the McMillin Property, (ii) channel landscaping plans for identified in McMillin's Obligation NO.2 in Exhibit those areas IIC", and (iii) rough grading plans for the McMillin Property for the purpose of constructing the following improvements; the Olympic Parkway Improvement located on the McMillin Property, the La Media Improvement, related erosion control and slope landscaping improvements, and all other related improvements reasonably required by the City Engineer for the completion of such grading work, including those improvements described in Exhibit "D" as Facility No. 1. b. Improvement Plans. Improvement Plans for McMillin's Olympic Parkway Improvement, the La Media Improvement, and other related improvements necessary for the construction of such improvements, as reasonably required by the City Engineer, including, those improvements described in Exhibit "D" as McMillin's Obligations. All such plans shall be prepared in accordance with the City's standards, ordinances and requirements. McMillin shall pay all required processing costs as set forth in the paragraph below entitled "Plan Check Fees and Additional Costs". 1.2 Improvement Work. a. Grading. McMillin agrees to grade, to install such grading improvements reasonably required by the City Engineer for the completion of such grading work, including those improvements described in Exhibit "D" as Facility No.1, and to perform all related land development work described in Exhibit "D" as Facility NO.1 (all of the above described grading work shall be referred to collectively as "McMillin's Grading Work"). McMillin's obligations hereunder shall include the obligation to complete all said work shown on the above described grading plans, approved by the city. McMillin agrees to commence and complete all of McMillin's Grading Work on or before the dates set forth in Exhibit "D." 4 ¡g-> /1 b. Construction Work. McMillin agrees to construct in accordance with City approved plans and the City's Prime Arterial Standards, McMillin's Olympic Parkway Improvement and the La Media Improvement, and other related roadway improvements necessary for completion of said improvements as reasonably required by the City Engineer, including the sewer and waterline improvements, dry utility improvements, landscaping and those improvements described as McMillin's Obligations in Exhibit "D". (All of the aforementioned improvements shall be referred to collectively as "McMillin's Improvements," unless specifically mentioned). McMillin agrees to commence and complete construction of McMillin's Improvements on or before the dates set forth in Exhibit "D", McMillin shall be responsible for obtaining the permission of the appropriate agencies and other property owners to construct said improvements, excluding however, any permits, approvals or permission of the Fish and Game, Army Corps of Engineers or Fish and Wildlife Service. McMillin further agrees to relocate, any facilities or improvements necessary to install McMillin's Improvements. McMillin acknowledges and agrees that McMillin shall be responsible for constructing McMillin's Olympic Parkway Improvement, even if the cost of the construction thereof, exceeds the current estimate of the cost of constructing said improvement as shown in the "Olympic Parkway Feasibility Study," dated March 25, 1999. 1.3 Manner of Construction. McMillin agrees to perform McMillin's Grading Work and construct McMillin's Improvements, in a good and workmanlike manner, free of any flaws and defects and consistent with City's design standards and specifications, City approved plans, and all necessary permits and approvals. McMillin further agrees to furnish any necessary materials therefore, all in strict conformity and in accordance with City approved plans and specifications. McMillin understands and agrees that, in the performance of all such work, McMillin 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. 1.4 Improvements Securities. McMillin agrees to furnish and deliver to the City, on or before the dates set forth in Exhibit "C", and to thereafter maintain until City's acceptance of said work, improvement securities from a sufficient surety, whose sufficiency has been approved by the City, in the sums determined by the City Engineer in accordance with the requirements in Exhibit "C", to guarantee the faithful performance of, and the payment of the materials and labor in connection with the performance of McMillin's Grading Work and the construction of McMillin's Improvements. McMillin and Otay agree, that failure to provide any of the aforementioned improvement securities by the dates set forth in Exhibit "C" or McMillin's failure to continuously maintain such improvement securities at all times required hereunder, shall be considered a failure to secure Phase 2 Olympic Parkway Improvement or the La Media Improvement as required by PFFP Amendment and the applicable conditions of the tentative maps for the Property, and will prevent McMillin and Otay from receiving any final maps for 5/fj/'¡) the Property within that stage identified in PFFP Amendment for which such securities are required, and for all subsequent stages of the PFFP Amendment unt il such securities are provided. In addition, McMillin's failure to provide the City with any of the aforementioned improvement securities or McMillin's failure to continuously maintain such improvement securities at all times required hereunder, shall be considered a default under this Agreement. City agrees to not unreasonably withhold its acceptance of the improvement securities; provided, however, the improvement securities comply with all of the requirements stated herein. The aforementioned improvement securities shall contain a provision that such securities cannot be terminated for non-payment of the premiums for such securities unless and until 15 days written notice of the proposed termination has been delivered to the City. In such event, notwithstanding the provisions of paragraph 6.2 entitled "Default", McMillin shall promptly pay such premium upon the request of the city. 1.5 Completion of Work. McMillin acknowledges and agrees that if McMillin's Grading Work or construction of McMillin's Improvements are not commenced or has not been completed within the dates set forth in Exhibit "D", the sums provided by said improve- ment securities may be used by city for the completion of McMillin's Grading Work or McMillin's Improvements. McMillin agrees to pay the City any difference between the total costs incurred to perform the work, including, but not limited to, reasonable design and administration of construction (including a reasonable allocation of overhead), and any proceeds received by the City from the improvement securities. The City may at its sole discretion, use the sums provided by the improvement securities to complete a smaller portion of McMillin's Grading Work or McMillin's Improvements. 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 of the improvement securities, or any part thereof not required for payment, shall be released to McMillin or its assigns, pursuant to the terms of the improvement security. 1.6 McMillin's Costs and Expenses. It is also expressly agreed and understood by McMillin that in no case will the City, or any department, board, officer, employee or agent thereof, be liable for any portion of the costs and expenses of the aforementioned work, nor shall the City or the city's officers, employees, agents, sureties or bondsmen, be liable for the payment of any sum or sums for said work or any materials furnished therefor. 1.7 Plan Check Fees and Additional Costs. City has entered into a contract with an outside consultant to perform plan checking and management services for the purpose of processing McMillin's grading plans and improvement plans, as described above. The City may also perform engineering services (including plan checking and inspection) for the processing of McMillin's grading plans and improvement plans and for the construction of McMillin's Improvements. The outside consultant may be paid out of 6/yr/þ Transportation Development Impact Fees ("Trans-DIF") for those services which are determined by the City Engineer to be eligible for payment from the Trans -DIF. The remainder of the outside consultant and City costs that are not paid from the Trans-DIF, shall be paid by McMillin, which may be covered under the existing Processing Agreement between McMillin and the City. McMillin acknowledges that it is ultimately responsible for all of the outside consultant charges and costs of the City's engineering services in connection with the processing of McMillin's grading plans (including plan checking and inspection) and improvement plans and that these charges may alter the rate of depletion of any deposit provided by McMillin and accelerate the replenishment of that deposit. 1.8 Maintenance Costs. McMillin understands and agrees that until such time as all of McMillin's Grading Work and construction of McMillin's Improvements are fully completed and accepted by City, McMillin shall be responsible for the care, maintenance of, and any damage to, McMillin's Grading Work and McMillin's Improvements. It is further understood and agreed that McMillin shall guarantee all of McMillin's Grading Work and McMillin's Improvements for such period required by the City Engineer in accordance with what is customarily required by the city for such work, and correct any and all defects or deficiencies arising during said period as a result of the acts or omission of McMillin, its agents, employees or assigns in the performance of this Agreement. McMillin acknowledges and agrees that there will be a need for subsequent agreements to address McMillin's maintenance obligations with respect to the Poggi Canyon Drainage Channel and similar improvements in accordance with city policies and standards and nothing herein shall be construed as a waiver by the City of such responsibilities of McMillin. 1.9 Conveyance of Title. Prior to the city's acceptance of McMillin's Improvements, McMillin shall grant to the city, free and clear of all encumbrances (excepting therefrom any City approved encumbrances), by appropriate conveyance as determined acceptable to the City, the public improvements constructed on the McMillin Property pursuant to this Agreement; provided, however, that acceptance of said title shall not constitute a waiver of defects by City as set forth hereinabove. It is understood that if any portion of the public improvement is constructed within the property currently owned in fee by the city of San Diego that such public improvement may be conveyed to city by easement rather than in fee. 1.10 Indemnification. McMillin further understands and agrees that City, (as "Indemnitee") or any officer or employee thereof, shall not be liable for any bodily injury, death, or property damage, including thereto hazardous materials and property takings claims occasioned by reason of the acts or omissions of McMillin, its subcontractors or suppliers, its agents or employees, or Indemnitee (which are not the result of Indemnitee's sole negligence or willful misconduct), related to McMillin's Grading Work and the construction of McMillin's Improvements. McMillin further agrees to defend, indemnify, protect and hold the 7 ) (~ /? Indemnitee, its officers and employees, harmless from any and all claims, demands, causes of action, liability, costs and expense (including, without limitation, reasonable attorney's fees) or loss for bodily injury, death or property damage, including thereto hazardous materials and property takings claims because of or arising out of McMillin's Grading Work and construction of McMillin's Improvements or the acts or omissions of McMillin, its subcontractors or suppliers, its agents or employees, or Indemnitee, related thereto; provided, however, that McMillin shall have no obligation to indemnify, defend, protect or hold Indemnitee harmless from any such losses, claims, demands, causes of action, liability, damages, costs or expenses which arise out of the sole negligence or willful misconduct of the Indemnitee or any officer or employee thereof. McMillin further agrees to defend, indemnify, protect and hold the Indemnitee, its officers and employees, harmless from any and all claims, demands, causes of action, liability, cost and expense (including without limitation, reasonable attorney's fees) made or incurred by third parties (other than Otay) pursuant to or arising out of contracts entered into by such third parties with or on behalf of McMillin or its successors, assigns or agents concerning McMillin's Grading Work and construction of McMillin's Improvements; provided, however, that McMillin shall have no obligation to indemnify, defend or hold Indemnitee harmless from any such losses, claims, demands, damages, causes of action, liability, costs and expenses to the extent that they have arisen due to the sole negligence or willful misconduct of Indemnitee. The improvement securities referred to above shall not cover the provisions of this paragraph. Such indemnification and agreement to hold harmless shall extend to damages to adjacent or downstream properties or the taking of property from owners of such adjacent or downstream properties as a result of McMillin's Grading Work or construction of McMillin's 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 McMillin's Grading Work or construction of McMillin's Improvements. The approval of plans for McMillin's Grading Work and McMillin's Improvements shall not constitute the assumption by City of any responsibility for such damage or taking, nor shall City, by said approval, be an insurer or surety for said work and related improvements. The provisions of this paragraph shall become effective upon the execution of this Agreement and shall remain in full force and effect for ten (10) years following the acceptance by the City of McMillin's Grading Work and McMillin's Improvements. 1.11 Cash contribution. McMillin agrees to the following: a. McMillin's Fair Share. McMillin agrees to pay the City, in accordance with the terms and conditions of this paragraph 1.11 entitled "Cash Contribution," its fair share equal to twenty- five percent (25%) of the total final costs of constructing Phase 1, Phase 2 and Phase 3 Olympic Parkway Improvements ("Fair Share"), including but not limited to, design and engineering costs, the costs of any appurtenant improvements, costs of acquiring right-of- ways or easements and other related expenses incurred in the 8 )6~ / ð construction of said improvements. McMillin shall receive a credit, against the amount it is obligated to pay to the City for its Fair Share, for the costs incurred by McMillin for the construction of McMillin's Olympic Parkway Improvement and related grading work. McMillin shall also receive a credit against its Fair Share equal to twenty-five percent (25%) of any monies that may be received from other parties including from the City (except, however, any monies from Otay) , for the construction of Phase 1, Phase 2, and/or Phase 3 Olympic Parkway Improvements. Notwithstanding the foregoing, McMillin shall not receive a credit against its Fair Share for any money received by the City from the federal government for the Highway Interchange Project or from ACI SunBow, LLC or its successors in interest ("SunBow"), pursuant to that Supplemental Subdivision Improvement Agreement, adopted by the City on January 19, 1999. Furthermore, McMillin shall not receive a credit against its Fair Share for any of costs it incurs in the construction of the La Media Improvement and the associated grading work for La Media. For purposes of determining McMillin's final Fair Share of Phase 1, Phase 2 and Phase 3 Olympic Parkway Improvements and the credits to be received by McMillin, the total cost of constructing Phase 1, Phase 2, Phase 3 Olympic Parkway Improvements and McMillin's Olympic Parkway Improvement shall be determined by the City Engineer after all said improvements have been accepted by the City and final costs have been determined by the City Engineer. b. Deposits for Improvements. McMillin agrees to provide the City on or before August 31, 1999, a deposit of four million seven hundred thousand dollars ($4,700,000.00) in cash, ("McMillin's Cash Deposit") to guarantee the payment of McMillin's Fair Share of Phase 1 and Phase 2 Olympic Parkway Improvement. McMillin further agrees to provide the City with an additional cash deposit equal to twenty-five percent (25%) of the City Engineer's estimate of the cost of constructing Phase 3 Olympic Parkway Improvement, plus fifteen percent (15%) of such amount as a contingency reserve, (if a contingency is not included in the Engineer's estimate) no later than October 1, 2000 (" Phase 3 Deposit") to guarantee the payment of McMillin's Fair Share of Phase 3 Olympic Parkway Improvement. McMillin's Cash Deposit and the Phase 3 Deposit (if cash has been provided to the city for said deposits) shall be held by the City in a separate interest-bearing account and all earnings on such funds shall accrue to the account and be disbursed and released in accordance with paragraphs l,ll(c), l.ll(e), l.ll(f), 2.13(d) and 2.13(f) herein. c. Use of Funds. The City may use McMillin's Cash Deposit as the City deems appropriate prior to final determination of McMillin's Fair Share to acquire completed portions of Phase 1 or Phase 2 Olympic Parkway Improvements and/or pay directly for the construction of portions of said improvements, if at any time the City determines, in its absolute discretion, that the construction of Phase 1 or Phase 2 Olympic Parkway Improvements is not progressing within a reasonable time and the party performing said work fails to demonstrate a continuing ability to complete construction of said improvements within said reasonable time. Prior to using the Cash Deposit for purposes of paying directly for 9 /'i(>/Î the construction of Phase 1 or Phase 2 Olympic Parkway Improvements, the City shall provide written notification to McMillin a minimum of ten (10) days prior to its intended use of said funds. In addition, the City may use the Phase 3 Deposit as the city deems appropriate, to either acquire completed portions of Phase 1, Phase 2 and/or the Phase 3 Olympic Parkway Improvements or pay directly for the construction of portions of said improvements if at any time the city determines, in its absolute discretion, that the construction of said improvement is not progressing within a reasonable time or the party performing said work fails to demonstrate a continuing ability to complete construction of the improvement within said reasonable time. d. Bond Proceeds in lieu of Cash. City agrees to accept in lieu of the Cash Deposit, the bond proceeds of an equal amount from Community Facilities District No. 97-3 ("McMillin's Bond Proceeds") that have been reserved for the Phase 1 and Phase 2 Olympic Parkway Improvements; provided, however, the city's Finance Director has certified that McMillin's Bond Proceeds are available for use by the City. McMillin's Bond Proceeds, if provided in lieu of McMillin's Cash Deposit, shall be applied to finance the acquisition and/or construction of the Phase 1 and Phase 2 Olympic Parkway Improvements in the same manner as described in paragraph 1.11 (c) entitled "Use of Funds." In addition, city agrees to accept in lieu of the Phase 3 Deposit, the bond proceeds of an equal amount (or a combination of bond proceeds and cash equal to the amount of the Phase 3 Deposit) from an established community facilities district, for which funds have been reserved to finance all or a portion of the cost of acquisition and/or construction of the Phase 3 Olympic parkway Improvement; provided, however, taxes have been levied and indebtedness has been authorized for said community facilities district and the City's Finance Director has certified that the money is available for use by the city. McMillin may provide bond proceeds for an amount less than McMillin's Phase 3 Deposit; provided, however, the total amount of cash and bond proceeds delivered by McMillin equal the amount of the Phase 3 Deposit. The bond proceeds, shall be applied to finance the acquisition and/or construction of the Phase 3 Olympic Parkway Improvement in the same manner as described in paragraph 1.11 (c) above entitled "Use of Funds." e. Early Reimbursement. Upon award of construction contracts for both Phase 1 and Phase 2 Olympic Parkway Improvements, the City Engineer shall make an initial determination of McMillin' Fair Share of such improvements, based on the amount of the awarded contracts. If McMillin's Bond Proceeds have been reserved for said improvements, and the city Engineer has initially determined that McMillin's Fair Share of both Phase 1 and Phase 2 Olympic Parkway Improvements based on the amount of the awarded contracts plus fifteen percent (15%) of McMillin's Fair Share of the awarded contracts as a contingency reserve (less the amount of McMillin's Olympic Parkway Improvement if such amount is included in the contract for the Phase 2 Olympic Parkway Improvement), is less than the amount of McMillin's Bond Proceeds, the excess amount of McMillin's Bond Proceeds shall be made available within a 10 /6'r..20 --~---_.,-,-,-"_.,---------,-,. reasonable period for the acquisition of other CFD 97-3 facilities, in accordance with the terms and provisions of McMillin's Acquisition and Financing Agreement. If McMillin's Cash Deposit has been delivered for said improvements, and the City Engineer has initially determined that McMillin's Fair Share of both Phase 1 and Phase 2 Olympic Parkway Improvements based on the amount of the awarded contracts plus fifteen percent (15%) of McMillin's Fair Share of the awarded contracts as a contingency reserve, is less than the amount of McMillin's Cash Deposit, the excess amount of McMillin's Cash Deposit shall be returned to McMillin within thirty (30) days of McMillin's request for the money. If the city Engineer determines that McMillin's Cash Deposit or McMillin's Bond Proceeds (whichever has been made available to the City) is less than McMillin's Fair Share of both Phase 1 and 2 Olympic Parkway Improvements, based on the awarded contracts plus said contingency reserve, McMillin shall provide the City with an additional cash deposit for the difference within fifteen (15) days of city's request for such money. The remaining amount of McMillin's Bond Proceeds or McMillin's Cash Deposit (equal to the amount of the awarded contracts plus the 15% contingency) shall be retained by the City ("Retained Deposit") to be used in the manner described in paragraph 1.11(c) above. f. Additional Funds. Notwithstanding the foregoing, upon the acceptance of the Phase 1 and Phase 2 Olympic Parkway Improvements by the City and the City Engineer's determination of the final costs for said improvements, if McMillin's Fair Share of the actual final costs of construction of Phase 1 and Phase 2 Olympic Parkway Improvements less any credits received by McMillin in accordance with Section 1.11(a) is greater than McMillin's Cash Deposit or McMillin's Bond Proceeds (whichever has been delivered to the city) or the Retained Deposit (if there has been an early reimbursement), McMillin agrees to pay in cash to the city the difference between McMillin's Fair Share of the actual final costs for Phase 1 and Phase 2 Improvements less any credits received by McMillin in accordance with section 1.11 (a) and the amount of McMillin's Cash Deposit or McMillin's Bond Proceeds (whichever has been delivered to the City) or the Retained Deposit (if there has been an early reimbursement) within (30) days of the City's written request for such funds. g. Unspent Proceeds. If upon the acceptance of the Phase 1 and Phase 2 Olympic Parkway Improvements by the city and the city Engineer's determination of the final costs for said improvements, there are any unspent proceeds of McMillin's Cash Deposit (if McMillin has deposited cash) the City agrees to return such amounts, within thirty (30) days of McMillin's written request, or if there are any unspent funds from McMillin's Bond Proceeds (if bond proceeds have been made available), the City agrees to release such amounts, within thirty (30) days of McMillin's written request, for the acquisition of other CFD 97-3 facilities pursuant to McMillin's Acquisition and Financing Agreement. h. Phase 3 Deposit. In addition, upon the acceptance of Phase 3 Olympic Parkway Improvement by the city and the city 11 /?jrdL! Engineer's determination of the final cost for said improvement, if McMillin's Fair Share of the cost of Phase 3 Olympic Parkway Improvement is greater than the Phase 3 Deposit, McMillin agrees to pay in cash to the City the difference between McMillin's Fair Share of the actual final cost for the Phase 3 Olympic Parkway Improvement and the Phase 3 Deposit within thirty (30) days of such written request by the City, or if there are any unspent funds, the City agrees to return such amount within thirty (30) days of McMillin's written request. i. Failure to Provide Deposits. McMillin and Otay agree, that failure to provide McMillin's Cash Deposit, or the Phase 3 Deposit by the time frames set forth herein, shall be considered a failure to secure Phase 1, Phase 2 or Phase 3 Olympic Parkway Improvements, respectively, as required by PFFP Amendment and the applicable conditions of the tentative maps for the Property, and will prevent McMillin and Otay from receiving any further final maps for the Property within that stage identified in the PFFP Amendment for which such security is required and for all subsequent stages of the PFFP Amendment until such security is provided. In addition, McMillin's failure to provide the city with the Cash Deposit or the Phase 3 Deposit shall be considered a default by McMillin under this Agreement. Article 2 Otay's Obligations 2.1 Plan Submittal. Otay agrees to submit by the dates set forth in the Plan and Bond Submittal Schedule attached as Exhibit "C," and to thereafter diligently process for the City's approval, the following plans: a. Grading Plans. The following grading plans; (i) mass grading plans for the Property (excluding the McMillin Property) and for the off-site locations shown on Exhibit uB," and (ii) channel landscaping plans for those areas identified in Otay's Obligation NO.6 in Exhibit "C," and (iii) rough grading plans for the Property and other off- site locations identified in Exhibit "D" in Facility No.2, for the purpose of constructing the following improvements; East Palomar Improvements A and B, Paseo Ranchero Improvement, Olympic Parkway Improvement (excluding that portion of the Olympic Parkway Improvement located on the McMillin Property), related erosion control and slope landscaping improvements, and all other related improvements reasonably required by the City Engineer for the completion of the grading work, including those improvements described on Exhibit "D" as Facility NO.2. b. Improvement Plans. Improvement plans for Phase 1 Olympic Parkway Improvement, Phase 2 Olympic Parkway Improvement (excluding McMillin's Olympic Parkway Improvement), the Pas eo Ranchero Improvement, East Palomar Improvements A and B, Phase 3 12 /S>- ,,);¿ .... .-._~~--_..._---_._---,--- Olympic Parkway Improvement and other related improvements reasonably required by the city Engineer for completion of said roadway improvements, including those improvements described as Otay's Obligations in Exhibit "D." All such plans shall be prepared in accordance with the City's standards, ordinances and requirements. Otay shall pay all required processing costs as set forth in the paragraph below entitled "Plan Check Fees and Additional Costs". 2.2 Improvement Work. a. Grading. Otay agrees to grade, to install such grading improvements reasonably required by the City Engineer for the completion of the grading work, including those improvements described in Exhibit "D" as Facility No.2, and to perform all related land development work as described in Exhibit "D" as Facility No. 2 (all such grading work shall be referred to collectively as "Otay's Grading Work".) Otay's obligations hereunder shall include the obligation to complete all said work shown on the above described grading plans approved by the city. Otay agrees to commence and complete all of Otay's Grading Work on or before the dates set forth in Exhibit "D." Subject to the provisions of paragraph 2.3 below, Otay understands and agrees that Otay shall be responsible for obtaining permission to grade from other property owners as necessary to perform the aforementioned work. b. Construction. Otay also agrees to construct in accordance with City approved plans and the city's Prime Arterial Roadway Standards, the following improvements; 1) Phase 1 Olympic Parkway Improvement, 2) the Paseo Ranchero Improvement, 3) Phase 2 Olympic Parkway Improvement excluding therefrom McMillin's Olympic Parkway Improvement, 4) East Palomar Improvements A and B, 5) Phase 3 Olympic Parkway Improvement and 6) other related roadway improvements as reasonably required by the city Engineer for the completion of said roadway improvements, including, dry utilities, landscaping, sewer improvements along the entire length of the Olympic Parkway Improvement (excluding therefrom the McMillin's Olympic Parkway Improvement), the Otay Water District's waterline improvements along the entire length of Olympic Parkway Improvement (excluding McMillin's Olympic Parkway Improvement) and those improvements described as Otay's Obligations in Exhibit "D". (The above-described improvements shall be referred to herein collectively as "otay's Improvements" unless specifically mentioned.) Otay agrees to commence and complete construction of Otay's Improvements on or before the dates set forth in Exhibit "D". Otay shall be responsible for obtaining the permission of the appropriate agencies and property owners to construct Otay's Improvements, excluding however, any permits, approvals or permission from the Fish and Game, Army Corps of Engineers or Fish and wildlife Service. Otay further agrees to relocate any facilities or improvements necessary, as determined by the city Engineer, to install Otay's Improvements. 2.3 Otay's Offsite Improvement Obligations. certain 13 J~r~3 provisions of this Agreement impose obligations upon Otay to cause certain improvements to be made or installed on property that is not owned by Otay. (For purposes or this paragraph 2,3 only, such improvements shall be referred to as "otay Offsite Improvements" and for all other paragraphs of this Agreement, Otay's Offsite Improvements shall be included in the definition of "Otay Improvements".) If Otay is unable to acquire, through its commercially reasonable efforts, from the property owner of any Otay Offsite Improvements the rights necessary to enable otay to fulfill its obligations to cause any of the Otay Offsite Improvements to be made or installed pursuant to this Agreement, Otay shall request that City acquire such rights on its behalf through condemnation proceedings, in which event, city shall commence condemnation proceedings, at Otay's expense and pursuant to the applicable provisions of state law and its authority as a charter City. City may draw upon any cash deposit, bond proceeds or other security provided to the city pursuant to this Agreement to pay any costs its incurs in connection with such condemnation proceedings, including attorney fees, and, to the extent they are insufficient to reimburse City for any such costs it incurs, Otay shall reimburse City in cash for such deficiency within fifteen (15) days after receipt of a request therefor from City. Furthermore, notwithstanding the language of any other provision of this Agreement, Otay may fulfill its obligations to cause any of the Otay Offsite Improvements to be made or installed by notifying City in writing of Otay's election to have City cause such Otay Offsite Improvements to be made or installed, in which event City shall undertake to cause such Otay Offsite Improvements to be made or installed at Otay's sole cost and expense provided, however, there are sufficient funds provided by Otay or available for city to draw upon to construct said improvements. city may draw upon any cash deposit, bond proceeds or other security available to secure the completion of such Otay Offsite Improvements to pay any costs it incurs in connection therewith and, to the extent they are insufficient to reimburse city for any such costs it incurs, Otay shall reimburse City for such deficiency within fifteen (15) days after receipt of a request therefor from City. In the event Otay elects to have City cause such Otay Offsite Improvements to be made or installed, any maintenance of the Otay Offsite Improvements shall be performed by Otay at its sole expense, and all of the other obligations of Otay under this Agreement shall remain unchanged and in full force and effect, including without limitation: (a) All liability arising from any failure to construct the Otay Offsite Improvements in a good and workmanlike manner, free of any flaws and defects and consistent with City's design standards and specifications, City approved grading and improvement plans, and all necessary permits and approvals; (b) Otay shall remain fully liable to indemnify, defend and hold harmless city and any officer or employee thereof pursuant to and in accordance with Section 2.11 hereof and any other indemnification obligations of Otay set forth in this Agreement; and 14 /grc;2f (c) Otay assumes any and all risk concerning any inability of City to obtain reimbursement for costs incurred by the City for the installation of the Otay Offsite Improvements. (d) Otay agrees to cooperate in good faith with the City in the construction of Otay's Off site Improvements. 2.4 Manner of Construction. Otay agrees to perform Otay's Grading Work and to construct Otay's Improvements in a good and workmanlike manner, free of any flaws and defects and consistent with city's design standards and specifications, City approved grading and improvement plans, and all necessary permits and approvals. Otay further agrees to furnish any necessary materials therefor, all in strict conformity and in accordance with City approved plans and specifications. Otay understands and agrees that, in the performance of the otay's Grading Work and the construction of Otay's Improvements, Otay 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. 2.5 Improvement Securities. Otay agrees to furnish and deliver to the City, on or before the dates set forth in Exhibit "CO, and to thereafter maintain until City's acceptance of said work, improvement securities from a sufficient surety, whose sufficiency has been approved by the City, in the sums determined by the City Engineer in accordance with the requirements in Exhibit "C," to guarantee the faithful performance of and the payment of the materials and labor in connection with, otay's Grading Work and the construction of Otay's Improvements. Otayand McMillin agree, that failure to provide any of the aforementioned improvement securities by the dates set forth in Exhibit "CO or Otay's failure to continuously maintain such improvement securities at all times required thereunder shall be considered a failure to secure the applicable improvement for which such improvement security is required by the PFFP Amendment and the applicable conditions of the tentative maps for the Property, and will prevent Otay and McMillin from receiving any final maps for the Property within that stage identified in the PFFP Amendment for which such securities are required and for all subsequent stages of the PFFP Amendment until such securities are provided. In addition, otay's failure to provide the City with any of the aforementioned improvement securities shall be considered a default by Otay under this Agreement. City agrees to not unreasonably withhold its acceptance of the improvement securities provided, however, the improvement securities comply with all of the requirements stated herein. The improvement securities described herein shall contain a provision that such security cannot be terminated for non-payment of the premiums for such securities unless and until 15 days written notice of the proposed termination has been delivered to the City. In such event, notwithstanding the provisions of the section entitled "Notice of Default", Otay shall promptly pay such premium upon the request of the City. 2.6 Completion of Work. Otay acknowledges and agrees that if Otay's Grading Work or construction of Otay's Improvements are not r 15 ) 5r" r' ,)-~ commenced or have not been completed within the dates set forth in Exhibit "D" I the sums provided by the respective improvement securities may be used by City for the completion of otay's Grading Work or otay's Improvements. Otay agrees to pay any difference between the total costs incurred to perform the work, including but not limited to reasonable design and administration of construction (including a reasonable allocation of overhead), and any proceeds received by the city from the improvement securities. The City may at its sole discretion, use the sums provided by the improvement securities to complete a smaller portion of Otay's Grading Work or Otay's Improvements. 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, of the improvement securities or any part thereof not required for payment thereof, shall be released to Otay, or assigns, pursuant to the terms of the improvement security_ 2.7 Otay's Costs and Expenses. It is also expressly agreed and understood by Otay hereto that in no case will the City, or any department, board, officer, employee or agent thereof, be liable for any portion of the costs and expenses of the work aforesaid, nor shall the City or the City's officers, sureties or bondsmen, be liable for the payment of any sum or sums for said work or any materials furnished therefor. 2.8 Plan Check Fees and Additional Costs. City has entered into a contract with an outside consultant to perform plan checking and management services for the purposes of processing Otay's grading plans and improvement plans, as described above. The city may also perform engineering services (including plan checking and inspection) for processing of grading plans and improvement plans and construction of the Otay's Improvements. The outside consultant may be paid out of the Trans-DIF for those services which are determined by the City Engineer to be eligible for payment from the Trans-DIF. The remainder of the outside consultant and City costs that are not paid from the Trans-DIF shall be paid by Otay, which may be covered under the existing Processing Agreement between Otay and the City. Otay acknowledges that it is ultimately responsible for all of the outside consultant charges and costs of the City's engineering services in connection with the processing of Otay's grading plans (including plan checking and inspection), and improvement plans and that these charges may alter the rate of depletion of any deposit provided by otay and accelerate the replenishment of that deposit. 2.9 Maintenance Costs. Otay understands and agrees that until such time as all of the Otay's Grading Work and Otay's Improvements are fully completed and accepted by City, Otay shall be responsible for the care, maintenance of, and any damage to, Otay's Grading Work or Otay's Improvements. It is further understood and agreed that Otay shall guarantee all of Otay's Grading Work and Otay's Improvements for the period customarily required by the City for such work and correct any and all defects or deficiencies arising during said period as a result of the acts or omission of Otay, its agents, employees or assigns in the 16 /8'rcJ-? performance of this Agreement. Otay acknowledges and agrees that there will be a need for subsequent agreements to address Otay's maintenance obligations with respect to the Poggi Canyon Detention Basin, drainage channel and similar improvements in accordance with City policies and standards and nothing herein shall be construed as a waiver by the City of such responsibilities of Otay. 2.10 Conveyance of Title. Prior to City's acceptance of the Otay's Improvements, Otay shall grant to City, free and clear of all encumbrances, excepting therefrom any City approved encumbrances, (which approval may not be unreasonably withheld) by appropriate conveyance, the public improvements constructed on Otay's Property pursuant to this Agreement; provided, however, that said acceptance shall not constitute a waiver of defects by city as set forth hereinabove. It is understood that if any portion of the public improvement is constructed within the property currently owned in fee by the City of San Diego that such public improvement may be conveyed to City by easement rather than in fee. 2.11 Indemnification. Otay further understands and agrees that City, as "Indemnitee," and any officer or employee thereof, shall not be liable for any bodily injury, death, property damage including thereto hazardous materials and property takings claims, occasioned by reason of the acts or omissions of Otay, its subcontractors or suppliers, its agents or employees, or Indemnitee, (which are not the result of Indemnitee's sole negligence or willful misconduct) related to Otay's Grading Work, and construction of Otay's Improvements. Otay further agrees to defend indemnify, protect and hold the Indemnitee, its officers and employees, harmless from any and all claims, demands, causes of action, liability costs and expense (including, without limitation, reasonable attorneys fees) or loss for bodily injury, death or property damage including thereto hazardous materials and property takings claims, because of or arising out of Otay's Grading Work and construction of Otay's Improvements or the acts or omissions of Otay, its subcontractors or suppliers, its agents or employees, or Indemnitee, related thereto; provided, however, that Otay shall have no obligation to indemnify, defend, or hold harmless from any such losses, claims, demands, causes of action, liability, damages, costs or expenses which arise out of the sole negligence or willful misconduct of the Indemnitee, or any employees or officers thereof_ Otay further agrees to indemnify, protect and hold the Indemnitee, its officers and employees, harmless from any and all claims, demands, causes of action, liability, cost and expense (including without limitation, reasonable attorneys fees) made or incurred by third parties (other than McMillin) pursuant to contracts entered into by such third parties with or on behalf of Otay or its successors, assigns or agents concerning Otay's Grading Work and construction of Otay's Improvements; provided, however, that Otay shall have no obligation to indemnify, defend or hold Indemnitee harmless from any such losses, claims, demands, damages, causes of action, liability, costs and expenses to the extent that they have arisen due to the sole negligence or willful misconduct of Indemnitee or any employees or officers thereof, The improvement securities referred to above shall not cover the provisions of this paragraph. Such indemnification and agreement to hold harmless 17 /8-/;2? 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 Otay's Grading Work and construction of Otay's 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 otay's Grading Work or construction of Otay's Improvements. The approval of plans for Otay's Grading Work and Otay's 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 Otay's Grading Work and Otay's 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 last date of acceptance of such work by the City. 2.12 Establishment of Community Facilities District. Otay agrees to submit an application for the formation of a community facilities district covering that real property shown on Exhibit "E", in accordance with State law and the City's ordinances and policies ("Otay' s Community Facility District"). Otay further agrees to take all actions necessary to process said application for the establishment of the district and to authorize the levy of special taxes and incurring indebtedness to secure Otay's share of the cost of Phase 1 and Phase 2 Olympic Parkway Improvement or a portion thereof. otay has provided the City with a deposit of $100,000.00 for the processing of said application. Otay shall enter into a reimbursement agreement with the city, substantially in the form attached as Exhibit F ("Reimbursement Agreement"). The City shall diligently process the application for Otay's Community Facilities District provided said deposit is current. Notwithstanding the foregoing, Otay understands and agrees that the City Council maintains its sole discretion to approve or deny the formation of such district. The parties agree that neither this Agreement nor the Reimbursement Agreement shall create a contractual, legal or equitable obligation or commitment by the city to approve the formation of Otay's Community Facilities District. Prior to fulfilling its obligations under paragraphs 2.13(a) and 2.13(b) of this Agreement, Otay shall not take any actions that would cause the lien to value ratio of the real property, for which Otay's Community Facilities District will cover, to be decreased below the requirement of the City's Community Facility District's Policy, adopted by City on January 13, 1998. 2.13 otay's Contribution. Otay agrees to the following: a. otay's Cash Payment. In order to partially guarantee the construction of Phase 1 and Phase 2 Olympic Parkway Improvements, Otay agrees to provide the city with a cash payment on or before January 1, 2000, in an amount equivalent to whichever is greater ("Otay's Cash Payment); (1) seventeen million two hundred thousand dollars ($17.2 million), or (2) the total estimated cost of constructing the Phase 1 and Phase 2 Olympic Parkway Improvements, as determined by the city Engineer, minus the 18 )2' / J-2" following amounts; (1) McMillin's Cash Deposit or the Retained Deposit (if there has been an early reimbursement to McMillin in accordance with paragraph 1.II(C)), (2) any additional monies for Phase I and Phase 2 provided by McMillin pursuant to this Agreement, and (3) the amount of the fai thful performance and material and labor bonds (or other equivalent improvement securities) from Otay and McMillin that have been delivered to the city and are currently in force and effect for Phase 1 and Phase 2 Olympic Parkway Improvements. If the amount of Otay's Cash Payment and McMillin's Cash Deposit retained by the City as of January 1, 2000, and the amount of performance and material and labor bonds (or the equivalent improvement securities) provided by Otay and McMillin for Phase 1 and Phase 2 Olympic Parkway Improvements exceed the total estimated cost of constructing said improvements, as reasonably determined by the City Engineer, the City agrees to release an amount of Otay's performance and/or material and labor bonds (or the equivalent improvement securities so provided) equal to said surplus. Otay understands and agrees that release of said bonds (or the equivalent improvement securities so provided) is in the sole discretion of the City Engineer, but will not be unreasonably withheld. Otay's Cash Payment shall be held by the City in a separate interest-bearing account and all earnings on such funds shall accrue to the account and be disbursed and released in accordance with paragraphs 2.13(d) and (f) herein, b. Bond Proceeds. The City agrees to accept in lieu of Otay's Cash Payment, the bond proceeds, of an equal amount (or a combination of bond proceeds and cash equal to the amount set forth in paragraph 2.13(a)), from Otay's Community Facilities District as established herein, for which said funds have been reserved to finance all or a portion of the cost of acquisition and/or construction of Phase I and Phase 2 Olympic Parkway Improvements; provided, however, taxes have been levied and indebtedness has been authorized for said Community Facilities District and the City's Finance Director has certified that the money is available for use by the City. Otay may provide bond proceeds from Otay's Community Facilities District for an amount less than Otay's Cash Payment; provided, however, the total amount of cash and said bond proceeds delivered by otay to the City for Phase 1 and Phase 2 Olympic Parkway Improvements equal the amount of Otay's Cash Payment set forth in paragraph 2.13(a). c. Release of Excess Cash. Otay may later replace Otay's Cash Payment with an equivalent amount of bond proceeds from the Community Facilities District, for which said proceeds are reserved to finance all or a portion of the acquisition and/or construction of Phase 1 and Phase 2 Olympic Parkway Improvements; provided, however, that taxes have been levied and indebtedness has been authorized by the City for said Community Facilities District. The City agrees to release the equivalent amount of the cash to Otay once the City's Finance Director has certified the proceeds from said Community Facilities District are available for use by the City for said improvements. d. Use of Cash. Otay understands and agrees that the 19 /fšr;27 City may use Otay's Cash Payment and/or the bond proceeds from Otay's Community Facilities District, as the City deems appropriate to acquire completed portions of Phase 1 and Phase 2 Olympic Parkway Improvements and/or pay directly for the construction of such improvements if at any time the City determines in its absolute discretion that the construction of Phase 1 and/or Phase 2 Olympic Parkway Improvements (other than McMillin's Olympic Parkway Improvement) are not progressing within a reasonable time or otay or any permitted successor or assign fails to demonstrate a continuing ability to complete construction of said improvements within said reasonable times_ In this event, the City shall give written notice of such failure of performance to Otay. Otay shall have forty-five days from the date of receipt of the notice to cure such failure of performance by demonstrating to the satisfaction of the City during such forty-five day period, reasonable progress in the construction of the improvements and a continuing ability to complete the construction of the Phase 1 and/or Phase 2 Olympic Parkway Improvements, within such reasonable time. Should Otay fail to satisfactorily demonstrate such reasonable progress or such continuing ability, the City may take whatever legal or equitable remedies it may have against Otay including without limitation using otay's Cash Payment and/or bond proceeds from Otay's Community Facilities District for construction of the Phase 1 and/or Phase 2 Olympic Parkway Improvements. Otay further agrees that should the City construct or cause to construct the improvements or portions thereof, Otay shall pay the City, within thirty (30) days of City's request for payment, the difference between the total costs incurred to perform such work, including limited and reasonable design and administration of construction, and the proceeds received from Otay's Cash Payment, the bond proceeds from Otay's Community Facilities District and any improvement securities. e. Failure to Provide Cash Payment. Otay and McMillin agree, that failure to provide Otay's Cash Payment by January 1, 2000, shall be considered a failure to secure the Phase 1 and/or Phase 2 Olympic Parkway Improvements, as required by PFFP Amendment and the applicable conditions of the tentative maps for the Property, and will prevent Otay and McMillin from receiving any final maps for the Property within that stage identified in the PFFP Amendment for which such security is required and for all subsequent stages of the PFFP Amendment, until such security is provided. In addition, Otay's failure to provide the City with Otay's Cash Payment shall be considered a default by Otay under this Agreement. f. Otay Reimbursement. Otay shall be entitled to be reimbursed, in accordance herewith, for all eligible costs, as eligible is determined by the City Engineer, that Otay incurs in connection with the construction of Phase 1, Phase 2, and Phase 3 Olympic Parkway Improvements in accordance with the provisions herein. All such eligible costs incurred by Otay shall first be reimbursed to otay from the bond proceeds from Otay's Community Facilities District in accordance with the applicable provisions of said Community Facilities District's Acquisition and Financing Agreement as negotiated by Otay and City. Once all of the bond 20 I g>- 3¿J proceeds from Otay's Community Facilities District have been reimbursed to Otay, then Otay shall be entitled to reimbursement from McMillin's Bond Proceeds (as may be adjusted in accordance with section l.ll) in the manner set forth in McMillin's Acquisition and Financing Agreement, attached as Exhibit G, for such excess costs in an amount no greater than McMillin's Fair Share of the costs of constructing said improvements minus any credits to be received by McMillin pursuant to paragraph l.ll(a). In addition, Otay shall be entitled to reimbursement from any other amount paid by McMillin pursuant to this Agreement, including McMillin's Cash Deposit and McMillin's Phase 3 Deposit (as may be adjusted in accordance with Section 1.11)) in a manner substantially in the form set forth in Section 7 of the McMillin's Acquisition and Financing Agreement. In addition, Otay shall be entitled to reimbursement from Otay's Cash Deposit (if there are any such funds retained by the city) in a manner mutually agreed to by Otay and City. Otay and city agree to negotiate in good faith with respect to such reimbursement schedule. Notwithstanding the foregoing, city and Otay agree that if the manner of such reimbursement cannot be negotiated satisfactorily to both parties, Otay shall be reimbursed all such eligible costs from Otay's Cash Deposit in accordance with the terms of Section 7 of McMillin's Acquisition and Financing Agreement attached as Exhibit G. Otay shall be further entitled to reimbursement from any monies received by City from other parties (other than McMillin or SunBow and the federal government for the Highway Interchange Project) to pay for the eligible costs of constructing Phase 1, Phase 2, and/or Phase 3 Olympic Parkway Improvements after all said improvements have been accepted by city. In addition, if the City receives federal funding for the construction of the Highway Interchange Project and the City receives one million five hundred thousand dollars from Sunbow in accordance with the Supplemental Subdivision Improvement Agreement, adopted by the City on January 19, 1999, the City shall reimburse Otay equal to a total of one million two hundred thousand dollars for the eligible costs of construction of Phase 1, Phase 2 or Phase 3 Olympic Parkway Improvements, after all said improvements have been accepted by city. If the City receives less than one million five hundred thousand dollars from Sunbow, the City shall reimburse Otay an amount equal to the amount received from Sunbow less three hundred thousand dollars ($300,000.00). Notwithstanding the foregoing, Otay understands and agrees that Otay is not entitled to any money received by the City from the federal government for the Highway Interchange Project or from any money received by the City from Sunbow for the Highway Interchange Project. g. Otay's Fair Share. Otay acknowledges and agrees that Otay shall be responsible for constructing the Phase 1 Olympic Parkway Improvement, Phase 2 Olympic Parkway Improvement (excluding therefrom McMillin's Olympic Parkway Improvement portion), and Phase 3 Olympic Parkway Improvement, even if the cost of construction thereof, exceeds the current estimate of the cost of constructing said improvements as shown in the "Olympic Parkway Feasibility Study." Otay and McMillin acknowledge that Otay shall be responsible for seventy-five (75%) of the total final costs of construction of said improvements, all such construction costs 21 /~-y I includes design and engineering costs, the costs of any appurtenant improvements, costs of acquiring rights-of-way or easements and other related expenses incurred in the construction of said improvements. Otay shall receive a credit, against its obligation to pay for 75% of the total final costs of constructing Phase 1, Phase 2 and Phase 3 Olympic Parkway Improvements, equal to 75% of any monies that may be received from other parties, including from the City (except for any monies paid by McMillin) for the construction of such improvements. Notwithstanding the foregoing, Otay shall not receive any credit for any money received by the city from the federal government for the Highway Interchange proj ect or from SunBow. Furthermore, Otay shall not receive a credit against its final share of constructing the Olympic Parkway Improvement for any of costs it incurs in the construction of the other roadway improvements (the Paseo Ranchero Improvement and East Palomar A and B Improvements) and the associated grading work_ ARTICLE 3 otay 's Deposit of Deed of Trust. 3.1 Deed of Trust. within five (5) days of the City's approval of this Agreement, Otay agrees to provide the city with a properly executed and acknowledged deed of trust, in a form attached hereto as Exhibit H, to be approved by the City, ("City's Trust Deed") to be recorded in the Office of County Recorder, for the purpose of securing the performance and satisfaction of Otay's duties and obligations as contained in paragraphs 2.13 (a) and 2.13(b) of this Agreement. The occurrence of a breach or default under paragraph 2.13(a) or 2,13(b) of this Agreement shall constitute a "default" under the City's Trust Deed. 3.2 Property. The real properties which are the subject matter of the City's Trust Deed, are as described in said Trust Deed ("Trust Deed Property") and is commonly known as portions of Village 2, 4, 6 and 7 of the Property. 3.3 Equity. Otay warrants and represents that the value of Otay's equity in said Trust Deed Property is at least equal to Seventeen Million Dollars ($17,000,000.00) ("Minimum Value") as of the effective date of this Agreement and is free and clear of all encumbrances thereon, other than those encumbrances that are approved by the city (the "Approved Trust Deed Property Encumbrances") and that the amount of all liens, except ad valorem and special tax liens and assessment liens, against said Trust Deed Property do not exceed zero. As used herein, the term "Approved Trust Deed Property Encumbrances" shall mean all of the following: (1) all of those encumbrances and exceptions to title set forth in that certain preliminary title report issued by Chicago Title Company (Order No. 93076107-U54) dated as of March 22, 1999 which is attached hereto as Exhibit I, other than items Nos. 21, 26, and 2B thereof, and (2) such other encumbrances reasonably approved by City. Otay shall bear the cost of said title report and any supplemental title reports as may be required herein. Otay shall cause Chicago Title Company to issue to City at Otay's sole cost and expense within forty-five (45) days after the recordation of the City's Trust Deed a CLTA loan policy dated as of the date and 22 /%'32 time of the recordation of the City's Trust Deed with liability in the amount of the Minimum Value. This loan policy shall insure City as beneficiary under the City's Trust Deed and as holder of a good and valid lien against the Trust Deed Property, subject only to (i) the standard printed exceptions of Chicago Title Company, and (ii) the Approved Trust Deed Property Encumbrances. Any item shown in said preliminary title report which is not an Approved Trust Deed Property Encumbrance may be included as an exception to the title policy to be issued to the City, but only if said title policy includes an endorsement which specifically addresses to the City's reasonable satisfaction the risks resulting from such item. If such loan policy or the appropriate endorsement are not issued to the City within the time frame set forth herein, Otay agrees to substitute the portion of the Trust Dêed Property so encumbered, with other real property to equal the Minimum Value and in which the City has approved all encumbrance and exceptions to title to such substituted property (which approval shall not be unreasonably withheld), Otay agrees not to encumber the Trust Deed Property in a manner which would adversely affect the City until the City's Trust Deeds are released pursuant to Section 3.8. Otay further agrees not to take any actions which would cause the value of the equity of said Trust Deed Property to decrease below the Minimum Value. If Otay takes any such action which causes the value of the equity of said Trust Deed Property to decrease below the Minimum Value, such action shall not be a default by Otay under this Agreement, if, in such event, Otay supplements the Trust Deed Property with real property that has sufficient equity to cure such deficiency in the same manner set forth in paragraph 3.4 below. 3.4 Appraisal. Otay shall bear the cost of an appraisal of the Trust Deed Property satisfactory to the City. Otay shall provide the appraisal within forty-five (45) days of City's approval of this Agreement. If the appraisal determines that the value of Otay's equity in the Trust Deed Property is greater than the Minimum Value, then Otay may obtain a partial reconveyance from the city's Trust Deed for a portion of the Trust Deed Property comprised of one or more legal lots pursuant to the California Subdivision Map Act provided that the equity value of the remaining portion of the Trust Deed Property is not less than the Minimum Value. If the appraisal determines that the value of Otay's equity in the Trust Deed Property, is less than the Minimum Value, then Otay shall supplement the Trust Deed Property, within 10 days of delivery of the appraisal, with additional real property (the "Additional Trust Deed Property") in which Otay has an equity value such that the equity value of the Trust Deed Property and Additional Trust Deed Property, collectively, is no less than the Minimum Value. Otay shall furnish to City a preliminary title report which indicates that the Additional Trust Deed Property is subject only to Approved Trust Deed Property Encumbrances and such other encumbrances reasonably acceptable to City. The City's Trust Deed shall be amended to encumber the Additional Trust Deed Property within ten (10) days of delivery of said appraisal. 3.5 Alternative Security. Otay may substitute with the City's approval, which shall not be unreasonably withheld, other real property ("Substituted Trust Deed Property") for all of the 23 /3'---33 Trust Deed Property and/or Additional Trust Deed Property (or any portions thereof which are comprised of one or more legal lots pursuant to the California Subdivision Map Act) ("Released Property") provided that: (i) otay furnishes to city an appraisal which determines that the sum of otay's equity in the Substituted Trust Deed Property and the equity value of the portions (if any) of the Trust Deed Property and Additional Trust Deed Property which will remain subject to the City's Trust Deed immediately after such substitution occurs shall be no less than the Minimum Value, and (ii) Otay furnishes to City a preliminary title report which indicates that the Substituted Real Property is subject only to Approved Trust Deed Property Encumbrances and such other encumbrances reasonably acceptable to City_ The city's Trust Deed shall be amended to encumber the Substituted Real Property and to reconvey the Released property. 3.6 Failure to Provide Trust Deeds. Otay agrees, that failure to provide the appraisal and Additional Trust Deed Property (if needed) within the time frame set forth herein, shall be considered a failure to secure the Phase 1 and/or Phase 2 Olympic Parkway Improvements, as required by PFFP Amendment and the applicable conditions of the tentative maps for the Property, and will prevent Otay from receiving any final maps for the Property within any stage identified in the PFFP Amendment and for all subsequent stages of the PFFP Amendment. In addition, Otay's failure to provide the city with said instruments shall be considered a default under this Agreement. Notwithstanding any provisions of the Agreement to the contrary, McMillin shall have no obligation related to this section (Article 3) and shall be allowed to proceed to further stages as allowed within the PFFP Amendment, provided that all other required securities for the stages of the PFFP Amendment have been provided to the City. 3.7 Additional Remedies. In addition to any other remedies which City may have for breach of this Agreement, a breach of paragraphs 2.13(a) or paragraph 2.13(b) of this Agreement by Otay shall be grounds for the City's foreclosure under the City's Trust Deed. 3.8 Release of Trust Deed. within 10 days of request by Otay, city shall execute a full reconveyance of City's Trust Deed, at such time as all of the obligations of Otay under paragraphs 2.13(a) and 2.13(b) of this Agreement have been fulfilled to the city's satisfaction, ARTICLE 4 City's Obligations 4.1 City's Obligations. City agrees to the following: a. Trans DIF Update. To bring to the city Council for consideration, within a reasonable period of time, an update to the Transportation Development Impact Fee. b. Environmental Permits. To process in good faith all required permits from the applicable environmental agencies for the 24 1S":if construction of the Phase 1, Phase 2 and Phase 3 Olympic Parkway Improvements, Otay and McMillin agree to cooperate in good faith with the City in the processing of the permits. Notwithstanding the foregoing, otay and McMillin understand and agree that the construction of the Phase 1, Phase 2, and Phase 3 Olympic Parkway Improvement is contingent on the appropriate environmental clearances and that the City does not warrant and can not guarantee that said clearances will be received within the time frames required to construct said improvements as set forth in this Agreement. In which case, the provisions of paragraph 6.1 shall apply. c. Outside Consultant. To effectively use the City's consultant to manage the processing and approvals of all plans and permits necessary to accomplish construction of the Phase 1 and Phase 2 Olympic Parkway Improvement and to verify completion of the improvements for reimbursement purposes. City also agrees to use its reasonable best efforts to hire a consultant to manage the processing and approvals of all plans and permits necessary to accomplish construction of the Phase 3 Olympic Parkway Improvement. d. Cooperation. To meet with Otay and MCMillin, including scheduling regular status meetings, for the monitoring of progress of performance obligations of the City, otay and McMillin as described within this Agreement. e. Certificate of City. Within ten (10) business days of a written request therefor from Otay or McMillin, City shall furnish to the requesting party a certificate stating as of the date of such certificate (1) whether or not there is any unrescinded notice of default under this Agreement issued by City to Otay or McMillin for a default hereunder which has not been cured, and if so, (2) a copy of any such notice of default or a statement describing the nature thereof. ARTICLE 5 PFFP Amendment and Allocation of Final Maps 5.1 PFFP Amendment. Notwithstanding the City's discretion to amend the PFFP from time to time pursuant to its police powers as a charter City, McMillin and Otay agree that in order for McMillin and Otay to continue to comply with the PFFP requirements and to receive final map approval for the Property, Otay and McMillin have consented to the City's approval of the PFFP Amendment, attached hereto as Exhibit "J," with respect to securing and constructing the Phase 1, Phase 2 and Phase 3 Olympic Parkway Improvements and other related roadway improvements. Otay and McMillin further agree to be responsible for the notification of all of their respective purchasers of real property (excluding therefrom individual home purchasers) within the Property that may be affected by said PFFP Amendment. 5.2 Allocation of Final Maps. a. Agreed Allocation of Final Maps. McMillin and otay have negotiated and agreed to an allocation of final maps 25 /?~ß ,-_.._----~-- ("Allocation"), set forth in Exhibit "J," which shall control the number of final mapped ED Us that shall be received by McMillin and Otay, South Bay Project, LLC, and their subsequent purchasers, assignees and successors-in-interests within the Property, for each "stage" of security for improvements identified within the PFFP Amendment, b. Attribution of Allocation. Any final maps approved in the Otay Property, whether obtained by Otay and South Bay Project, LLC or their successors in interest (e.g., its merchant builder buyers), shall be counted against Otay's Allocation. Similarly, any final maps approved in the McMillin Property, whether obtained by McMillin or its successors in interest (e.g. merchant builder buyers) shall be counted against McMillin's Allocation. c. Compliance with Allocation, McMillin and Otay agree not to request maps which would exceed the agreed Allocation for their respective properties to be submitted to the City Council for approval. McMillin shall exercise its commercially reasonable efforts to prevent its merchant builders and other successors in interest in all or any portion of the McMillin Property from requesting City council approval of final maps which would exceed the agreed Allocation for their property. otay shall exercise its commercially reasonable efforts to prevent its merchant builders and other successors in interest in all or any portion of the Otay Property from requesting city council approval of final maps which would exceed the agreed Allocation for their property. McMillin and otay agree to obligate their buyers, in all contract for the sale of all or any portion of their respective properties, to comply with the agreed Allocation schedule, and to name the other developer party as an express third party beneficiary of such properties. d, Trip Deferral Agreement. If a final map is approved subj ect to a trip deferral agreement, it shall not be counted against the party's map Allocation until the trip deferral agreement is released. Trip deferral agreements, whether entered into before or after the date of this Agreement, may be released at any time (pursuant to the terms of the trip deferral agreement), but the associated map shall then be counted against the developer's map Allocation, e. City's Role. McMillin and Otay shall be responsible for obtaining compliance with said Allocation from all applicable parties in accordance with section 5.2(c). city agrees to use its reasonable best efforts and to cooperate in good faith to enforce the provisions of the Allocation. 5.3 Indemnification. a. McMillin. McMillin agrees to defend, indemnify and hold harmless the City, its officers and employees from any and all claims, demands, causes of action, liability or loss of any sort arising out of the PFFP Amendment as described herein, the withholding of final maps in accordance with the provisions of said 26 /Y'~3Þ --_._--~._..- .. ._---"...~.,,-",.__..._._--_.._- amendment and the City's compliance with the allocation system attached as Exhibit "J" if and to the extent such claim, demand or cause of action is made by or on behalf of an owner or a successor in interest or assignee, of all or any portion of the McMillin Property and/or the owners of any bonds secured by assessment or special tax liens on the McMillin Property or any portion thereof. b. Otay. Otay agrees to defend, indemnify and hold harmless the City, its officers and employees from any and all claims, demands, causes of action, liability or loss of any sort arising out of the PFFP Amendment as described herein, the withholding of final maps in accordance with the provisions of said amendment and the City's compliance with the allocation system attached as Exhibit "J" and to the extent such claim, demand or cause of action is made by or on behalf of an owner or a successor in interest or assignee of all or any portion of the Otay Property and/or the owners of any bonds secured by assessment or special tax liens on the Otay Property or any portion thereof. ARTICLE 6 Delays, Default, Time of the Essence 6.1 Delay in Performance. city agrees that should Otay and/or McMillin be delayed in performing their respective obligations under this Agreement primarily as a result of a permitted excuse (as hereunder defined) McMillin and Otay shall be allowed a reasonable extension of time to perform said obligation, as such reasonable time shall be determined by the City, but in no circumstances shall be less than the length of the delay resulting from the Permitted Excuse. As used herein, the term "Permitted Excuse" shall mean any of the following: (i) the City's actions, omissions or inaction which result in a delay of performance by McMillin or otay; (ii) the inability or failure to obtain the appropriate environmental clearances within the time frames required to construct the Phase 1, Phase 2 and Phase 3 Olympic Parkway Improvements as set forth in paragraph 4.1 (b), (iii) the nonperformance of one party to this Agreement that makes performance impossible for the other party, and (iv) labor disputes, acts of God, war, riots, insurrections, civil commotions, moratoriums (other than those imposed by the City pursuant to Growth Management Ordinance, as may be amended from time to time) litigation (other than any litigation brought by or on behalf of Otay or McMillin and such parties' successors-in-interests, assignees or agents against the City) inability to obtain labor or materials or reasonable substitutes for either, fire, unusual delay in transportation, adverse weather conditions not normally anticipated in a project of this type or casualties beyond the reasonable control of McMillin or Otay. Permitted Excuse shall not include delays due to a party's own negligence or financial inability to perform. 6.2 Default. a. Notice of McMillin to perform any constitutes a default by Default. Failure or delay by Otay or of its Obligations under this Agreement such party under this Agreement; however, 27 /6" 3? for those defaults relating to the provisions of security or the payment of cash, the party shall not be deemed to be in default if such party cures corrects or remedies such default by providing the required security or cash within fifteen (l5) days after the date of the notice by City specifying such failure or delay. If the alleged default relates to the grading or the construction of improvements, the party alleged to be in default shall have forty five (45) days after the date the written notice by City to either commence or complete the construction before the party shall be deemed in default. If the alleged default relates to any other matter under this Agreement, the party alleged to be in default shall have thirty (30) days after the date of the written notice by City to commence to cure such default and diligently pursue such cure to completion before the party shall be deemed in default. Copies of any such default notice shall also be delivered to the other party not in default. If the defaulting party has not cured its default within the appropriate cure period set forth herein, the city shall provide an additional notice, within 10 days after said cure period, to the party not in default informing it of the defaulting party's failure to so cure. Any failure or delay by city in giving such notice or in asserting any of its rights and remedies as to any default shall not constitute a waiver of any default, nor shall it change the time of default, nor shall it deprive the city or other the party not in default, of its rights to institute and maintain any actions or preceding which it may deem necessary to protect, assert or enforce any of its rights or remedies. b. Rights of Developer not in Default, If either McMillin or otay default by failing to do anything required of it by this Agreement, ( "Defaulting Party"), then the party not in default (the "Non-Defaulting Party") shall have the right, but not the obligation, within thirty(30) days' following the appropriate cure period, as described above, to cure such default by performing the Defaulting Party's obligations or commence such cure and diligently pursue to completion, at the Defaulting Party's expense;provided however, the Non-Defaulting party shall provide written notice to the Defaulting party of its intent to cure. If the Non-Defaulting Party so elects to cure such default, the city will reasonably cooperate with the Non-Defaulting Party in connection with its efforts to cure such default, including city agrees to use its best efforts to enforce for the benefit of the city and the Non-Defaulting Party any security it holds from the Defaulting Party with respect to the obligation in default (other than the City's Trust Deed). Notwithstanding the foregoing, city shall not be responsible for obtaining any reimbursement from the Defaulting Party for the costs incurred (including interest payments) by the Non-Defaulting Party in curing such default. The Defaulting Party shall reimburse the Non-Defaulting Party within twenty (20) days after a demand therefor accompanied by reasonable supporting documentation for one hundred ten percent (110%) of all costs incurred by the Non-Defaulting Party to cause the Defaulting Party's obligations hereunder to be performed less the amount of any reimbursement therefor received by the Non-Defaulting Party from the security furnished by the Defaulting Party, plus interest thereon at the maximum rate permitted by law from the date such 28 / sv~ 37 costs are expended by the Non-Defaulting party to the date such costs are reimbursed to the Non-Defaulting Party. In the event of a default hereunder, the Defaulting Party (and any permitted successor or assignee of the Defaulting Party) shall not be entitled to receive any of the benefits or privileges conferred by this Agreement (including receiving any further final maps) unless and until (i) the Default has been cured and (ii) the Non- Defaulting Party has been reimbursed for one hundred ten percent (110%) of the costs it incurred in connection therewith plus interest thereon as described above. c. City's Rights. In addition, in the event that McMillin or otay do not cure a default in accordance with this Agreement, the City shall have the right to exercise any and all of its 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 default to which it may be entitled, including specific performance, and any and all remedies provided in this Agreement. 6.3 Time of the Essence. Notwithstanding the foregoing provisions, time is of the essence of each and every provision of this Agreement in which time is an element. McMillin and otay further covenant to perform their obligations in an expeditious manner and to diligently complete their performance of their respective obligations described within this Agreement. Failure to comply with this provision shall be materi.al breach of this Agreement. ARTICLE 7 Assignment, Entry Permits 7.1 Assignment. otay and McMillin may not, voluntarily or by operation of law, assign or otherwise transfer any of its rights or obligation under this Agreement without obtaining the prior written consent of the City, which consent may be withheld by City in its sole and absolute discretion. In no event will any such assignment relieve otay or McMillin of its obligations hereunder. Any attempted assignment made in violation of this provision shall be null and void. Notwithstanding the foregoing, Otay and McMillin each shall have the right, without the consent of the City (a) to assign its rights and obligation under this Agreement to any partnership or limited liability company of which assignor is the managing general partner or managing member (as applicable) and majority owner of the voting rights and beneficial interest thereof or (b) to assign its rights with respect to the recordation of final subdivision maps and the issuance of building permits to any merchant builder or apartment developer which acquires a portion of the Otay Property or McMillin Property. 7.2 Entry Permits. Concurrently with the execution hereof, otay and McMillin shall each execute in favor of the other an Entry Permit in the form attached hereto as Exhibit K. 29 /3"/3; ARTICLE 8 General Provisions 8.1 Governing Law, This Agreement shall be governed. and construed in accordance with the laws of the State of California. 8.2 Effective Date. The Agreement shall be effective as approved by the City Council. terms and conditions of this of the date this Agreement is 8.3 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. 8.4 Notice. a. Notices. Unless otherwise provided in this Agreement or by law, any and all notices required or permitted by this Agreement or by law to be served on or delivered to either party shall be in writing and shall be deemed duly served, delivered and received when personally delivered to the party to whom it is directed or, in lieu thereof, when three (3) business days have elapsed following deposit in the united States mail, certified or registered mail, return receipt requested, first-class postage prepaid, addressed to the address indicated in this Agreement. A party may change such address for the purpose of this Paragraph by giving written notice of such change to the other party. If to City: City of Chula vista Department of Public Works/Engineering Division 276 Fourth Avenue Chula Vista, CA 91910 Attn: City Engineer If to McMillin: McMillin Otay Ranch LLC c/o Development Engineering The McMillin Companies 2727 Hoover Avenue National City, California 91950 Attn: Mr. Robert A. Pletcher If to Otay Project LLC: Otay project LLC 350 W. Ash Street, Suite 730 San Diego, CA 92101 Attn: Kent Aden 30 )6'/ fo South Bay Project, LLC 2600 Michelson Avenue, Suite 250 Irvine, CA 92715 Attn: Harold Beral 8.5 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. 8.6 Entire Agreement. This Agreement, embody the entire agreement and understanding between the parties regarding the subject matter hereof, and any and all prior or contemporaneous oral or written representations, agreements, understandings and/or statements shall be of no force and effect. This Agreement is not intended to supersede or amend any other agreement between the parties unless expressly noted. 8.7 Recitals1 Exhibits. Any recitals set forth above and any attached exhibits and Diagrams are incorporated by reference into this Agreement. 8.8 Authority of Signatories. Each signatory and party hereto hereby warrants and represents to the other parties that it has legal authority and capacity and direction from its principal to enter into this Agreement, and that all resolutions and/or other actions have been taken so as to enable said signatory to enter into this Agreement, 8.9 Modification. This Agreement may not be modified, terminated or rescinded, in whole or in part, except by written instrument duly executed and acknowledged by the parties hereto, their successors or assigns. 8.10 Severability. If any term, covenant or condition of this Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such term, covenant or condition to person or circumstance, shall not be affected thereby and each term, covenant or condition shall be valid and be enforced to the fullest extent permitted by law. 8.11 Preparation of Agreement. No inference, assumption or presumption shall be drawn from the fact that a party or its attorney prepared and/or drafted this Agreement. It shall be conclusively presumed that all parties participated equally in the preparation and/or drafting of this Agreement. 8.12 Third Party Beneficiaries. Notwithstanding any other provision of this Agreement to the contrary nothing herein is intended to create any third party beneficiaries under this Agreement, and no person or entity other than City, McMillin and otay and the permitted successors and assignee of each of them, shall be authorized to enforce the provisions of this Agreement. 31 /f''';)/ (NEXT PAGE IS SIGNATURE PAGE) 32 /r- r.7 SIGNATURE PAGE TO FINANCING AND CONSTRUCTION OF OLYMPIC PARKWAY PHASE 1 AGREEMENT IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first set forth above_ CITY OF CHULA VISTA, a municipal corporation McMILLIN OTAY RANCH, LLC, a Delaware limited liability company Mayor By: McMILLIN COMPANIES, LLC, a Delaware limited liability company By: Attest: Its: Ma ai~r By Title ~. ~' By - .' i -' tl ¡' 'Ù (f0Ide..vrT- City Clerk APPROVED AS TO FORM: OTAY PROJECT LLC, a California limited liability company, ~ 1'vl~ City Attorney By: Otay Ranch Development LLC, a California limited liability company, Its: Authorized Member By Title By Title [acknowledgments required] 33 /k~Jj3 SIGNATURE PAGE TO FINANCING AND CONSTRUCTION OF OLYMPIC PARKWAY PHASE 1 AGREEMENT IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first set forth above. CITY OF CHULA VISTA, a municipal corporation McMILLIN OTAY RANCH, LLC, a Delaware limited liability company Mayor By: McMILLIN COMPANIES, LLC, a Delaware limited liability company By: Its: Managing Member Attest: By Title City Clerk By Title APPROVED AS TO FORM: OTAY PROJECT LLC, a California limited liability company, çt,,- 11{~ (~ C~ty Attorney By: Otay Ranch Development LLC, a California limited liability company, Its: Authorized Member By By [acknowledgments required] 33 /'6~f1 LIST OF EXHIBITS EXHIBIT A. .......... ..... Illustration of Otay Ranch SPA ONE Planning Sectors EXHIBIT A-l.. ............ . Illustration of McMillin Property Exhibit A-2...,..... ......Illustration of Otay Property EXHIBIT B. ......._.... ... Diagram of location of Phase One, Two, and Three Olympic Parkway Improvement Exhibit C.......... ._.... .Plan and Bond Submittal Schedule Exhibit D..... ..., ....... . Performance Schedule Exhibit E.". ..........,. . Illustration of CFD district area Exhibit F................ Community Facilities Reimbursement Agreement District Exhibit G... ..... ........ McMillin's Agreement Acquisition and Funding Exhibit H. ...... ..... .._..Trust Deed Form Exhibit I. ,.......... ....,Preliminary Title Report Exhibit J. .......". ......PFFP Amendment and Allocation of Final Maps Exhibit K.. ...,..,... .....Entry Permit H:\Home\Attorney\Olympic9.cln r- 34 ) g- ~ ¿¡'.5 ('/' --= 1\ .'" :, / M \( \ 1<"1< .~::¡; 'S"S'~1< :\ "'~ . \~.. ...., '\ ~¡ -~ 0- ... ) ._ . . ;:. ¡..; I...,,'" ...., \ ..--¡ ( 9 '<" 1 \ ,,-"- jf ~ ":." I ..-,,- 9 '...~ 1\ ,,_,,_ !.... :\\ " "',. ~ ''\;.-:/ ,\-,,- - ~~ \,,-,,# \. .......'..,....... ~;\ ,,-" \~ /, \ '%\ ./- . \, _--lrJ ~'\( \\ ~ ~'\ .../,) 1! 9 \\ ',\\ ....,/ a~ < "', &; \ \. \:, S; .:: \ " ,~ \~~) ,:\, \\ /~\\, ~~ \\'.// \~., '\s:,>- (\\"" '\ ':i:> \ \ :." ~\ '~" ",,," ~ ~\ ""- ':'~ .. . 6_ V:, '\ ~. \\ &! '\ :<\¡\\ ~ " . - \; \~,: s.: ..\:'" "~, ~ II \ \"\~.. , , :' 'ý, -,,- \~ -......,.,.." '- \ ' "-;'; \ ..j \\ ,.~ / i,,-"- ' \ ,-,,- '--::../ \....,,-,,-"-' ~~. l~ '-" u_.. ,/--,\ ~ . , ~\:t7 j [~¡ J!I ~1 ~i ~ r.=. h ~b¡S~ /Y-1j "' <c .. , .. 'J- -. to - :J: >< W ~ o - tJ Q (/) C) c .- c C IU ë: Q c o « Q. en .c tJ c IU a: :>. IU - o 0. -. \P-6.1 P-6.5 " o ; . )ý---1? EXHIBIT "A-1" MCMILLIN PROPERTY .'- .......;~:~._.....:--- ,... /. \" _"C,_"-- ..~ /': ,.\ ',' '..... ~-::'''--.. .ø',. . '. ,.-- 0.·..."'· ,., '" -..~,. -. ..::..-. \-.i':í f't j 10 \ a. I --........ -..!-.. ~~ , ~ I·~: ¿; \'. :2 ~ ---~. l ., ::!I' :1; Q ..c \\\' ; ,I _\\'\ ..! <i \.\ ~ ~ , ' . ~ 1 ;:.. Ii '\ ~ \' _' :g. r: I ,\ ~ .. I,~, :? ;; ,\;; l_ ¡.l---..J. ':\ Ë il¡I~\ ". \1 ..""",//- ',". ¿ ..:----Þ=~=f~ ij ¡:- \ ~ ;; ~'" I'!~! ~ I ~ \ "'~\ J CO- ~ '\ ¿ H I. _ \ ~ Ie I ~ I?: ~ " '\ "" "'<Ii _ c.; CI:' ti: IfIIl\ I ~ 1.,;\' 1 . 0 Q I .. 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"- ..Q '- ..t::: ~ ~~ e,~ \'I \}"''<., ~ ~, ~ ~~'J Ea~ ~ "--- ~ S2¡ _ ~ 0<,: S' ~ "'1(.. '6 - ý~ ~ ~O Y,;, t,) ~ 'Ý"" IV t> ..ó~ <-0 t:~ r9' .... '@ Y,i) 0..( - \ é) I- :z 0 LUc.¿ :::?:LU LUI >\,) 9:z IL~ :::?:O ~LU ~é) ::J« LLIL /8'-1/; -::: 1!') oC\J 0- :zai: «é) LUO ~I- :z~ <:(:z c.¿O 0é) . I- o :z :ZLU st¡¡§ c.¿> o 0 ~c.¿ ~IL ::J'5 LL - ~ o Jo ~<,: =- '-. ~ :JUI;w\Þù~ LU :z ~ o ~ c.¿ a:J é)O I-c.¿ :zLU LUI :::?:\,) LU':Z 6~ c.¿O ILLU :::?:~ ~IL ~ ~ ~ .... = '" = .c It- THIS PAGE BL-\.t~K /'3/ ~{J . --'-~'---->~"->_." -_.__.._-_..._,..._~-_.- ~~ 'í\U~ e· ~ ~ ~ ;. G ¡ y~ ~ " tn . 't-.I '-' ~ -. ..t:: d1 .>?;¡ '" ";>- S' Ý y~ ~ -...... ~~ ~ ~ <s) ~ LU [ô > o ft« 2D - LU :::J2 2:5 ,Q~ <-0 ~ ~ ~<;>' ""..s '1'... ...( <s) I- Z LU 2c¿ LU« >2 90 (L.-I 2« _(L .-II- ~~ LLLU (~~ S) o LU <s) « . (Lc¿ « 22 99 LL« <S)(L 1-1- iiJ~ 2LU LUO >1- 00 ftc¿ 2LU _I: .-IU .-12 2~ c¿ « 2° 9~ «<s) (L- 1-[6 ~O . LUI-S: o ~9~ <S)LU::) I-I:<s) zUZ LU~- 2c¿<S) ~O~ OLULU c¿G12 (L«LU 2(L> - 0 .-I2c¿ s9(L LLLL2 \ , , ~ \, "", '\ '>"'ö \ ... ~ -=' 0, \\>"-> : -' ð\ ' ~- ' :=;UIMÁp¡..~~ - N = '" ~ .c: a.. (Xl ~ - ~ - .t: d1 ~""'~ 'f\\)~'(,e. t)~ ~ \ . '{ ~'i Ea~ ~ "--- ~ £2/ - ~ ~ B ~ ~ o - ~~ ~ ~O ~ '" ~ .y ,;>~.. ~ ~~ 4-0 ""t:' b r9': ... <oS y,;} ~ 2 ?2 LL <J)LD f-N z- lLJc.L ~<J) >0 Of- oLoL (L~ 22 :::J9 ::)~ LL (L -V = , , , , '\ èPe,~o' €.O.µr, Q...'t~ , , ~ -;.;!-, .......' <:Yo' ~, ;:::' 0\ ~o : ~~ I ~ ' ) 0 /5:J- 0- ~úfiMp-¿~~) cw= = ~ = .= a. Exhibit "C" Plan and Bond Submittal Schedule Otay Ranch Obligations: Page 1 of2 Improvement Facility Stage per Definition Plan Bond Form of Security Improvement Exhibit "I" (Per Exhibit "D") Submittal Submittal l. Dtay Ranch Village 5, 3 N/A 1/\5/99 7/28/99' Grading Bond· Earthwork bonded Phase 2 Mass Grading at 100% within public R.O.W. and Channel Easement 2. Otay Ranch Village I, 3 N/A 2/\ 1/99 7/28/99' Grading Bond· Earthwork bonded Phase 7 Mass Grading at 100% within public R.O.W. and Channel Easement 3, Otay Ranch SP A I 3 N/A 12/\4/98 7/28199' Grading Bond - Earthwork bonded West Mass Grading at lOO% within public R.O.W. and Channel Easement 4. Otay Ranch Off-Site (Sunbow) 3 2 3/8/99 7/28/99' Grading Bond· Earthwork bonded Rough Grading for Olympic at \00% within public R.O.W. and Parkway and Channel Channel Easement 5. Channel, Roadway, and Detention 3 2 3/8/99 7/28/99' Grading Bond - Earthwork bonded Basin Rough Grading Plans from at 100% within public R.O.W. and Sunbow to SR125 Channel Easement 6 Channel Landscape Plans (Otay 3 2 4/27/99 7/28/99' Landscape and Irrigation Bonds. Ranch): Maintenance Bonds for Mitigation a. Brandywine to paseo Area. Ranchero b. paseo Ranchero to La Media c. E, Palomar to SR 125 d. Mitigation Area 7. Right-of-Way Documents 3 3A.4A,5A,6A,10 5/7/99 N/A 8. Olympic Parkway Improvements 5 3A 2/11/99 10/15/99 Faithful Performance Bonds and from Brandywine to Paseo Labor & Material Bonds Ranchero 9. Olympic Parkway Street 5 3B 6/7/99 10/15199 Landscape and Irrigation Bonds. Landscape Plans Brandywine to Paseo Ranchero 10. Paseo Ranchero Improvements 5 4A 3115/99 10/15/99 Faithful Performance Bonds and from East Palomar to Olympic Labor & Material Bonds Parkway II. P:1seo Ranchero Street 5 4B 5/4199 10/15/99 Landscape and Irrigation Bonds. Landscape Plans from East P:1lomar to Olympic Parkway 12. Olympic Parkway Improvements 6 5A 4/16/99 10/15/99 F:1ithful Performance Bonds and from Pasco Ranchero to L:1 Media Labor & ~ateria¡ Bonds 13. Olympic Parkway Street L::mdsc:Jpe 6 5B 6iï/99 10/15/99 Landscape and Irrigation Bonds. Plans paseo Ranchero to La ~edia 14. East Pa!om:1r Village \ 6 9A,98 101\5/99 Falthfu! Performance Bonds and Improvements, Landscaping, and Labor & ~aterìai Bonds. Water Connection Landscape and Irrigation Bonds. Page I of2 )r:--£7 ._---~----- ---...---- Exhibit "C" Page 2 of 2 Otay Ranch Obligatiolls COlltillued: Improvement Facility Stage per Definition Plan Bond Form of Security Improvement Exhibit "I" (Per Exhibit "D") Submittal Submittal 15. East Palomar Village 5 6 8A,8B,8C 4/15/99 10/15/99 Faithful Performance Bonds and Improvements and Landscaping Labor & Material Bonds. Landscape and Irrigation Bonds. 15. Olympic Parkway Improve~ 7 10 1/1/00 10/1/00 Faithful Performance Bonds and ments from E. Palomar to Labor & Material Bonds. SR-125 Landscape and Irrigation Bonds. 1. McMillin's Gtay Ranch Villages 1 3 \ 2/1/99 7128/99' Grading Bond - Earthwork bonded & 5. Phase 3 Rough Grading for at 100% within public R.O.W. and Olympic Parkway, La Media. and Channel Easement. Channel 2. Poggi Canyon Channel landscaping 3 I 4/15/99 7/28/99' Landscape and Irrigation Bonds. Plans La Media to E. Palomar Maintenance Bonds for Mitigation Area. 3 Right-of-Way Documents 3 6A,7A 7/28/99 N/A NlA 4. Olympic Parkway Improve- S 6A 3/31/99 10115/99 Faithful Performance Bonds and ments from La Media to E. Labor & Material Bonds. Palomar 5. Olympic Parkway Street S 6B 5/28/99 10/15/99 Landscape and Irrigation Bonds. Landscape Plans from La Media to E. Palomar 6. La Media Improvements from E. 6 7A 3115199 10115/99 Faithful Performance Bonds and Palomar to Olympic Parkway Labor & Material Bonds. 7. LaMedia Landscape Plans from E. 6 7B 5/14/99 10115/99 Landscape and Irrigation Bonds. Palomar to Olympic Parkway 8 Olympic Parkway Improve- 7 10 111100 1011100 Cash Deposit for McMiJlin's "fair ments from E. Palomar to share" of Phase 3. SR-125 McMillill Obligatiolls: . Or within 30 d.:&ys :lIter en"ironmental permitting is recei\'ed. H:'.HO\1.E"'E>;Gr.-;EERL.:..:-.<OOEV,OL Y~1PICEXHlBlTC.DOC Frid.:&v. April 09. ]999 ~:!5:35 ?~I /~~{ Page 2 of2 .---~.__.~-- -- .~.__._-----_. Exhibit "D" Performance Schedule I. Otav Ranch Obligations . Facility Commence Complete Obligation Definition Construction Construction Grading for the entire length of Olympic 2 7/28/99 7/28/00 Parkway and Poggi Canyon Channel from Brandywine to SR-12S, except McMillin obligation, including full slope and channel landscaping Olympic Parkway Improvements from \ 3A 2/4/00 10/19/00 Brandy-wine to Paseo Ranchero Street Landscaping for Olympic Parkway 3B 8/25/00 4/5101 from Brandywine to Paseo Ranchero Olympic Parkway Improvements from SA 12/15/00 10/25/01 Paseo Ranchero to La Media Street Landscaping for Olympic Parkway SB 8/7/01 4/4/02 from Paseo Ranchero to La Media Paseo Ranchero Improvements from East 4A 2/4/00 10/19/00 Palomar to Olympic Parkway Street Landscaping for Paseo Ranchero 4B 8/25/00 4/5/01 from East Palomar to Olympic Parkway East Palomar Village 5 Improvements, 8A,8B,8C 2/1/01 10/1/0\ Landscaping, and Water Connection East Palomar Village I West \ 9A,9B 1/1/01 11/1/01 Improvements and Landscaping Olympic Parkway Improvements from E. \ 10 3/1101 311/02 Palomar to SR-12S II. McMillin Obligations Facility Commence Complete Obligation Definition Construction Construction Grading for those portions of Olympic 1 7/28/99 7/28/00 Parkway, La Media and Poggi Canyon Channel on McMillin property, including full slope and channel landscaping from La Media to East Palomar Olympic Parkway Improvements from La 6A 2/9/01 \ 10/11/01 Media to East Palomar La Media Improvements from East \ 7A \ 2/9101 10111/01 I Palomar to Olympic Parkway. Street Landscaping for Olympic Parkway 6B,7B 8/17/01 4/4/02 from La Media to East Palomar and Street Landscaping for La Media from East P:llomar to Olympic Parkway. Page I of3 /g-~ç -_._---~---- .,,------ -.-.,...--"- Exhibit "D" Performance Schedule Facility Definitions Item Definition 1. McMillin Grading Obligation Earthwork for the roadway and channel, and incidental slopes and borrow areas, channel improvements, channel mitigation planting, and erosion control planting for the portion of Olympic Parkway on the McMillin property and La Media Road. Irrigation system, meters, and planting for slopes adjacent to Olympic Parkway, slopes adjacent to the channel, and slopes within the channel for the McMillin property (SPA I, Phase 3). 2, Otay's Grading Obligation Earthwork for the roadway and channel, and incidental slopes and borrow areas, channel improvements, detention basin, channel mitigation planting, and erosion control planting for the portions of Olympic Parkway on the Sunbow property, Village I West, Village I to the McMillin west boundary, Village 5 from the McMillin east boundary to SR-125 and Paseo Ranchero. Irrigation system, meters, and planting for slopes adjacent to the channel and slopes within the channel for the area within Village I West, Village I to the McMillin west boundary, and Village 5 from the McMillin east boundary to SR-125 and Paseo Ranchero. 3A. Olympic Parkway Phase I Sewer, water, reclaimed water, Otay Pipeline No.2 relocation, Improvements curb and gutter, asphalt paving, traffic control signals, signage, and lighting and electrical service interconnects for Olympic Parkway from Brandywine Avenue to Paseo Ranchero Street. 3B. Olympic Parkway Phase I Irrigation system, meters, and planting within parkways and Landscaping medians for Olympic Parkway from Brandywine A venue to Paseo Ranchero. 4A. Paseo Ranchero Improvements Sewer, water, reclaimed water, Otay Pipeline No.2 relocation, curb and gutter, asphalt paving, traffic control signals, signage, and lighting, electrical service, and interconnects for Paseo Ranchero from East Palomar Street to Olympic Parkway. 4B, Paseo Ranchero Landscaping Irrigation system, meters, and planting within parkways and medians for Paseo Ranchero from East Palomar Street to Olympic Parkway. SA, Olympic Parkway Phase 2A Sewer, water, reclaimed water, Otay Pipeline No.2 relocation, Improvements curb and gutter, asphalt paving, traffic control signals, signage, and lighting, electrical service, and interconnects for Olympic Parkway from Paseo Ranchero Street to La Media Road. 5B. Olympic Parkway Phase 2.'\ Irrigation system, meters, and planting within parkways and Improvements medians for Olympic Parkway from Paseo Ranchero Street to La Media Road. 6A. Olympic Parkway Phase 2B Sewer, water. reclaimed water, curb and guner, asphalt paving, Improvements traffic control signals, signage, and lighting, electrical service, and interconnects for Olympic Parkway from La :vledia Road to East P:llomar Street. 6B. OlympIc Parkway Phase 2B Landscaping \ lrngation system, meters, and planting wnhin parkways and medians for Olympic Parkway from La :Æedia Road to East 1 Palomar Street. Page 2 of3 ) ~/' S-t .......---.--. ...--------...-- Exhibit "D" Performance Schedule Item Definition 7 A, La Media Improvements Sewer, water, reclaimed water, curb and guner, asphalt paving, traffic control signals, signage, and lighting, electrical service, and interconnects for La Media from East Palomar StTeet to Olympic Parkway, 7B. La Media Landscaping Irrigation system, meters, and planting within parkways and medians for La Media from East Palomar StTeet to Olympic Parkway. SA. East Palomar Village 5 Sewer, water, reclaimed water, curb and gutter, asphalt paving, Improvements traffic control signals, signage, and lighting, electrical service, and interconnects for East Palomar Street from the McMillin east boundary . SB. East Palomar Village 5 Irrigation system, meters, and planting within parkways and Landscaping medians for East Palomar Street from the McMillin east boundary to Olympic Parkway. 8e. Village 5 Water Connection Potable water main from East Palomar StTeet to the Otay Water \ District 711 Pump Station at the Reservoir site. 9A. East Palomar Village I West Sewer, water, reclaimed water, Otay Pipeline No.2 relocation. Improvements curb and gutter, asphalt paving, traffic control signals, signage, and lighting, electrical service, and interconnects for East Palomar Street from Paseo Ranchero to existing improvements in SUNBOW II, 9B. East Palomar Village 1 West Irrigation system, meters, and planting within parkways and Landscaping medians for East Palomar Street from Paseo Ranchero to existing improvements in SUNBOW II. 10, Olympic Parkway Phase 3 Any and all remaining grading, channel improvements, incidental Improvements and Landscaping slopes, mitigation planting, and erosion control planting east of the Phase 2 Improvements described above. Sewer, water, reclaimed water, curb and gutter, asphalt paving, traffic control signals, signage, and lighting, electrical service, and interconnects for Olympic Parkway from East Palomar Street to the centerline of SR-125, Irrigation system, meters, and planting within parkways and medians for Olympic Parkway from East Palomar St. to SR-125 R HOME'E"GINEER\LMIDDEV'OL Y'-IPIC'.EXHIBITDDOC Fnday, 4/l4/99 II :58 A~¡ Page30f3 )'iš<S/ ,--.--- .__._._.._--"~..,------_._- W~ :: ~.: r: ~. {' ~ ~ ~ r ~ C) ~ -n ~ CJ ;:;:¡ <C ::: cp ~ ~ , OJ '" 0 :;: § c. 9 ~ ¡;; -< iI:~ EB! Î¡¡' r EXHIBIT "E" ¡ ~I /8'<S Iš ..__..-~_._-'--'- .,--- ---""--'--~- .-.., enI By; BROWN DIVEN HESSELL & BR~WEn LLPj619 2~= u¿=¿j ;->'f-'I - I':' _~ I u. .....'-',.-.,"J I EXHIBIT ç.. COMMUNITY FACILITIES Dl~CT REIMBURSEMENT AGREE NT THIS AGREEMENT is made and entered imo this _ day of , 19 by and betw~n the CITY OF CHULA VISTA, a municipal corporation (hereinafter referred to as "City"), a d OTAY PROJECT LLC, a California limited liability company (hereinafter referred to as "Otay"), A. RECITALS City and Otay have entered inl1') that· certain agreement entitled "Agreement For Financing and Construction of Olympic Parkway and Related Roadway Improvements' dated as 0 March _ ' 1999 (the "Financing and Constroaion Agr~ment") pursuant to which Otay has agreed to undertake the design, engineering and construction of certain improvements identified therein as the Phas 1 Olympic Parkway Improvement. the Phase 2 Olympic Parkway ImprovemeDt (excluding the McMilli¿'s Olympic Parkway Improvement as identified therein) and the Paseo Ranchero Improvement. The Finanbng ancI Construction Agreement further provides that Otay will submit an application to City requesting that the City initiate proceedings under the provisions of the "Mello-Roos Community Faciliti,," Act u( 1982," as amended, (Government Code Section 53311 and following), to form a community facilities dis~ict (the' Community Facì1ìtie5 District") to form a community facilities di~"trict to finance Otay's shake of the cost of the construction of the Phase 1 and Phase 2 Olympic Parkway Improvements. B, In the Financing and Construction Agreement, Otay agreed to advance funds to the City for the payment of all initial consulting and administration costs and expenses related to the proceeding¡; to consider the formation of the Cnmmunity Facilities District and tn subsequently authorize, issue ~ sell bonds for the Community Facilities Distric:.t (the "Proceedings "), Such monies shall be subject 'to reImbursement or credit pursuant to the provisions of this Agreement upon the successful sale of bondl' for the Community Facilities District and the receipt by the City of the proceeds of such bonds_ The parties hereto wish to enter ¡ntoan Agreement tn memorialize the' terms and 'f'nditinns putsuant to which Otay.shall advance monies and the monies so advanced may. subjet."'t to cerrai cnm1ítioßS contained herein, be reÌlnbursed or credited against future special tax uhligatiuns. c. AGREEMENT The parties heretn, for mutual consideration, agree as follows: SECTION 1. Advances. Oray shall advance monies to the City in such amounts and at such times as specitied below to pay all cost.~ and expenses incurred hy the City in undertaking the Proceedings. including without limitation, the following: A, Special Tax Consultant services; B_ Bond counsel services; C. Financial advisory services; 1 )f/5~ ..__..._-"_._-~.__._'---- -.,-.--..-,'-'" ~"._.. :::I~ ¡;;:y. Dr\UV~I\ UJ..vLj~ nt:.~QCl..l- u. ~1~C..;¡t:.r1 1....-. -" - ~.~- -----, D. Appraisal and market absorption servicl:5; iIIId E, City staff and City Attorney time. All such costs and expenses are collectively referred to as the "Formation and Issu ce Costs," Advances sbaH be made to the City pursuant to the following schedule: Otay shall advance the amount uf $100,000, receipt of which is heœby ackn wledged by the City, If monies in addition to the initial advance are necessary to pay fur the FoLation and Issuance Costs, the City sball as nece..sary and from time In time make _itten deman~Ul'on Otay and Otay sbail immediately thereafter, within flvl' (5) working days, deposit said m nies with the City tu pay for thl' balance of the Formation and Issuance Costs. If such additional onies are not tirn"ly received, all Proceedings shall be suspended until such monies are receivoo. SEC110N 2, Records. The City agrees to keep records consistent with its regular acro.Ling practices of the amount of monies advanced and the expenditure of such monies. Additionally, the Ci~;hall enter inID and maintain contracts with all consultants which shall specify the scope of services and comp Mation tu be paiù tu all such consultants- Such records and contracts shall be available for review by the Otay d ring normal busine..s hours upon reasonable notice to the City. A. B. A. All monies advanced sha1l be reimbursed in casb solely from bond pro SECTION 3. Reimbursement. If the Community Facilities District is formed, Otay ay elect among the following options for the reimbursement of monies advanced pursuant to this Agreement: B. All monies advanced shall be applied as a credit upon the special taxes to be levied against propertìe.~ then owned by the Clay; or C, A combination of the above_ If the Proceediogs to form the Community Pacìlitic:! District are not comph,ted anù are abandoned for any reason at any time prior to the successful sale of bonds or the Community Facilities Disttïct is unable for any reason to issue Of sell the bonds, there will be no obligation on the part of the City or theJ"mmunity Facilities District to reimburse Clay for any monies previously advanced pursuant to this Agreemen~ provided, however, the City does agree to rell1m to Otay any monies previowsly advanced whicb remain on deposit with the City and which the City determines are in excess of the amount necessary to pay for any outstanding FJI rmation and Issuance Costs previously incurred by the City. SECTION 4. Ownership of Documents. All plans, specifiCõltÎoDS, reports, appraisals an other docum"ntatiun as pIl,pared as a part of the Proceedi:ngs shall become the property of the City, regardlrl s as to whether the Community Facilities District is actUally formed, SECTION 5. No Ohllgatlon to Form Community Facilities District. Qtay acknuwledges that the decision of the City Council to form the Community Facilities District I. an exercise of the legislative! authority of the City Cuuncil and that the City may not enter inlû a contract to obligate the City Council to e~erdse its legislative I 2 \ j'ff r ~ 1) --------.-- ---~-----_.__._,-~-_..,.._--_._-------'-- ern DY; t:\HU',~I\ L.;1.Vt:.11I Ht:.SScLL 6. bt\c.';"c.t\ L:.....;Ç,·.:: "--- .~..._- discretion in a particular manner, This Agreement does not, therefore, in any way create con[ractual, legal or equitable obligation of or ccnunitmeDt by Ihe City t.o approve the formation afme Commun ty FaciJities District. The City expressly reserves the right to abandon the Proceedings for any reason at. any time prior to the completion thereof. Should Otay desire !C abandon the Proceedings, Otay shall provide writteo notification of such desire tr> the City and request. the City to immediat.ely terminat.e all consult.ing agreements and usejl effortS to minimire any and all Fonnation and Issuance Cos1S. SECTION 6. Counterparts. This Agreement may be executed in one or more counterp , each of which shall be deemed an original, but all of which together shall constiwte one and the sam" inst:rumJnt. SECTION 7. Arbitration. Any controversy arising out of this Agreement or its breaJh shall be settled by arbitration if, prior to the commencement of any legal proceeding arising out of this Agrfement or its breach, either party demands by wriuen notice that such controversy be arbitrated. After such demanl1, and within ten (10) days from such demand. the parties shaH auempt to designate a mutually acceptable indi~idual to arbitrate the controversy. If within the ten (10) day period Ibe parties are unable t.o desigTIate an indivitlual, the controversy shall he arhitrated under the rules of the American Arhitration Association. and judgment dn the award rendered by the arbitrator chosen by the parties or used pursuant to the rules of the American Arbitj[ion Association may be entered in any court having jurisdiction and shall be fully bindiog on the parti""_ SECTION 8. Authority to Execute Aweement. The City and the Otay represent that e individuals signing this Agreement have full right. and authority to bind their respective parties to this Agree nt. SECTION 9 BEst Efforts. The parties promise lO use their best efforts t.o satisfy all conditions to Ibis Agreement and to take all further steps and execute all further documents reasonably ecessary [0 put this Agreement into effect. SECTION 10, Su<:œssor and A....ign.~. This Agreement shall be binding o.n and inure to the benefit of the respective parties and their respective heirs, legal representatives, successors and assigns. ay may not assign it~ righrs or obligations hereunder except upon written notice to City within ten (10) day of the date of such assignment indicating the name and address of the assignee. Upon sucb notice and the assujPtion hy Ibe assignee in writing delivered to the City of the rig.hts. dut.ies and CJbligatio!lli of the Otay arisin under or from this Agre.emell[, OLaY shall be released for. all future duties or obligations arising under or fro this Agreement. SECTION 11_ Singular and Plural; Gender. Whenever used herein, the singular number) all include the plural. the plural number shall include the singular, and the masculine feminine or nellter gender .~all include the others whenever the cont.ext of the Agreement so indicat..,. l SECTION 12_ Entire Agreement. This Agreement contains the entire Agreement betWeen e parties hereto with respect to the suhject matter hereof, This Agreement may not be altered, moditïed or abended except by an instrument in writing e.ecuted by all of the parties. . \ SECTION 13. Governing Law. This Agreement has heen executed in and shall be governed by the laws of th" State of California. \ . SEC"TION 14. Con:droction. This Agreement shall be construed as a whole and in acwrdance with irs fair meaning. Captions and organizations are for convenience amI shall not be used in construihg meaning, I I 3 )X"Þ I -------_.~._.- -..-------.-. ---..-----------.. ..-.-----------. ent By: BROWN DIVEN HESSELL & BREWER LLP;619 209 u¿~¿; ....r.-'I - I, ~_ ,,-,.'~_r~"' SECTION 15. Severability. If any term, covenant, condition or ørovision of this Agreel11 nt is held by a coun of competent jurisdiction to be invalid. void or unenforceable me remainder of me provisio . thereof shall remain in full force and effect and shan in no way be affected, Impaired or invalidated mereby. SECTION 16. NotIcei. An notices and demands sban be given in writing by personal deliv y or first-class mail, postage prepaid. Notices shall be addressed as appears below for me respective party; prov ded that., if any party givesnòtice of a change of name of address, notices to the giver of that notice shall ereafter be given a., demanded in mat notice. Notices shall be deemed received seventy-two (72) hours after eposit In the United Stàtes mail. CITY: CITY OF CHULA VISTA 276 Fourth Avenue Chula Vista, CA 91910 Attention: City Manager CITAY: OT A Y PROJECT LLC 350 W, Ash Street, Suite 730 San Diego, CA 92101 Attention: Kent Aden South Bay Projeçt, LLC 191 W, Wilbur Road, Suite 102 Thousand Oaks, CA 91360 Attention: David Green SECflON 17. Time or the Essence. Time is of the essence in the performance of e parties respective obligations herein contained. SECTION 18. Waiver. The waiver by one pany of the performance of any covenant, cond tion or promise shall not invalidate this Agreement, nor shall it be considered a waiver by him of any other c:qvenant, COJ1dition or promise, The waiver by either or both. panies of the time for performing any act shall not tnnstitute awaiv..r of the time for performing any other actor an identical act required to be performed at a lateEtime. The exerdse of any remedy provided in this Agreement shall not be a waiver of any consistent remedy vided by law, and any provision of this Agreement for any remedy shall not exclude other consistent rem ies unless they are expressly excluded_ SECTION 19. Amendment. No provision of this Agreement may be modified, waived, except by a writing signed by the pany against which the enforcement of such modification or addition is or may be sought. ended or ;ø.lded lO waiver, amendment SECTION 20. Hold Harmless. Otay shaIl defend, indemnify, protect and hold harmless me City, its elected officials and appointed officers, employees and agents, from1\nd against all claims for damages, liability, cost and expense (including without limitation attorneys' fees) arising directly or indirectly out of tile waiver hy the City Council of the City's procedures for the selection of any of the consultant>; identified in Sehion 1.. and retainoo by the City to assist in undertaking the Proceedings. Otay's indemnification shall include any and all costs, 4 Ig{b~ - _.."~---' ,. - -"---,_._~_._---- "-'--'--~-"- ent By: BROWN DIVEN HESSELL & BREWER LLP;619 259 o¿~¿; .....f-'I - I£. ___ expenses, attorneys' fees and liability incurred by the City, it, officet~. agents. ot emplo~ in defending against such c1aims~ whether the.same ptoceed to judgment or not. Further. Otay at its own e"-pen e shaH, upon written request by the City, defend any such suit or action brought against the City, its officers, gents or employ"""' Otay's indemnification of City shall not be limited by any prior or subsequent declaration y the consultant, (Remainder of this page int",ntionally left blank,.! 5 Jg~~3 ".- -------- ---~--"..._---.~-,.._-_. .,~---_._.- -, -.". -- -. -..-.......... Signature Page to Community Facilities Distria Reimbursement Agreement between the City of Chula Vista and Otay Project lie \ IN WITNESS WHEREOF, City and Otay have executed this Agreement thereby indicating that they have read and underswod same, and indicate their fun and complete consent to its terms. \ \ \ Dated: ,19_ CITY OF CHULA VISTA By: Mayor A lI.eSt: City Clerk Approved a¡; to Form: City Attorney City of Chula Vista Otay Project LLC, a Califor1Ùa limited liability company, I \ Otay Ranch Development LtC, a CaJiforni~ limited liabi1ity fompany, \ I I I Autharized Member By: Its: By: Title: By: Title: 6 )g/jY/ --,.---. Policies") and this Agreement, and Developer is desirous that the City acquire such Projects, a.'1d at this time any of such Projects currently existing are owned by Developer. NOW, THEREFORE, IT IS MUTU.A.LL Y AGREED between the respective parties as follows: SECTION I. Recitals. The above recitals are all true and correct. SECTION 2. Plans and Specifications. All plans, specifications and bid documents for the Projects (the "Plans and Specifications") shall be prepared by the Developer at the Developer's initial expense, subject to City approval. The costs of acquisition of such Improvements shall include costs ofthe preparation ofthe Plans and Specifications and all related documentation as set forth in Section 7 below, Developer shall not award bids for construction, commence construction or cause commencement of construction of a Project until the Plans and Specifications for such Project have been approved by the City. SECTION 3. Construction oflmprovements. Developer covenants and agrees that each Project to be acquired from Developer pursuant to this Agreement shall be constructed (a) in substantial compliance with the approved Plans and Specifications for such Project; (b) in a good and workmanlike manner by well-trained adequately supervised workers; (c) in strict compliance with all governmental and quasi-governmental rules, regulations, laws, building codes and all requirements of Developer's insurers and lenders: (d) free of any design flaws and defects; and (e) in compliance with the requirements of this Section 3. With respectto Improvements completed prior to adoption of the resolution offormation of the Community Facilities District (which are identified in ExJ:úbit A), Developer shall have solicited at least three (3) bids for the construction of such Improvements and awarded the bid to the lowest responsible bidder. With respectto Improvements to be completed after adoption of such resolution, Developer shall comply with the requirements of the attached, referenced and incorporated Exhibit C. SECTION 4, Inspection and Acceptance of the Improvements, The construction activiÜes relating to the Improvements shall be subject at all reasonable times to inspection by authorized representatives of City, Once an entire lraprovement to be acquired by City is substantially 1:~-98 9009-00003 S:'.17:'.98110003..AG5 2 ---- / g/&ý -.-.-'-- .._.__,_,~__m ' completed in accordance with the approved Plans and Speciflcations (including any change orders reasonably approved by City), then such Improvement shaIl be eligible for acceptance by the City for purposes of paying the Base Increment of the Purchase Price (as deflned in Section 7 below) for such Improvement. Prior to acceptance of any Project by City for purposes of paying the Retained Increment (as deflned in Section 7 below) of the purchase Price, the Developer shaIl provide to City Engineer of the City, or his designee (the "City Engineer"), the documentation set forth in Section 7( c )(ii) below and obtain approval of as-built drawings in accordance with the process described below in this Section 4. The engineer of record for the Project ("Engineer of Record") shaIl flIe form PW-E-I06 (Request for Release of Bonds) with the City Engineer. Within 20 working days of such flIing, the fleld inspector of the City ("Field Inspector") shaIl issue and transmit to the Engineer of Record a letter requesting (i) as-built drawings and soils reports and (ii) a punchEst. Within 20 working days of receipt of the Field Inspector's letter, the Engineer of Record shall prepare redline as-built drawings and submit them to the Field Inspector and the Developer shall complete the punchlist items. Within 10 working days of the Engineer of Record's submittal, the Field Inspector shaIl review the redline as-built drawings and provide comments, The Engineer of Record shaIl revise the redline as-built drawings per the Field Inspector's comments and resubmit within 10 working days. The Field Inspector shall make his flnal review within 5 working days of the Engineer of Record's resubmittal and notify the Engineer of Record to prepare mylar as-built drawings and a microflche copy and submit both to the Public Works Director or his designee and the Developer shaIl complete the punchlist items. The City and Developer shaIl make best efforts to perform within the time periods described above. The inability of City or Developer to perform within each time period, notwithstanding its best efforts. shaIl not constitute a breach of this Agreement. SECTION 5. Warranty of Improvements. Prior to payment of the Retained Increment of the Purchase Price for an Improvement, the Developer shall be responsible for maintaining the Improvement at the Developer's expense. The Developer shall be obligated for a period of twelve (12) months after the date Ciry accepts an Improvement for purposes of paying the Retained Increment to repair or replace any defects or failures resulting from the work of Developer. its contractors or agents. Upon the expiration of such twelve (12) month period, Developer shaIl assign to Ciry and the Communiry Facilities District its rights in and to any warranties, guarantees or other evidence of contingent obligations of third persons with respect to such Improvement. At the time City accepts an Improvement and as a condition precedent to the payment of the Retained Increment (as deflned in Section 7 below) of the purchase Price. Developer shall post a maintenance bond in a form reasonably approved by the City. cause a maintenance bond to be posted. or assign Developer's rights under such a bond naming City andJor the Community Facilities District as beneficiary in an amount equal to fifteen percent (15%) of the purchase Price of the Improvement in order to secure Developer's obligations pursuant to this Section, Upon posting of such maintenance bond. the City shall release any performance- labor and material bonds for such Improvement. 1:..0.1-98 9009...i)Q{}()3 S:. 17:::'.98110003 .AG5 - j6r-~~ SECTION 6. Notice of Completion and Lien Releases. Developer shall notify the City Engineer in writing upon completion of each of the Improvements to be acquired hereunder. Upon completion of a Project, Developer shall notify the City Engineer in V¡riting of such completion and shall prepare and execute a Notice of Completion for such Project in the form prescribed by Section 3093 of the California Civil Code and shall record such notice in the Official Records of the County of San Diego. Developer shall cause its contractors to provide unconditional lien releases for such Project or all Improvements thereof in accordance with Section 3262 of the Civil Code. Notwithstanding the foregoing, City may waive the requirement for a Notice of Completion and lien releases if City determines that as of the date of payment of the Retained Increment of the purchase Price for an Improvement, title to such Improvement or portion thereof satisfies the requirements for Acceptable Title (as hereinafter defined). SECTION 7. Payment of Purchase Price. (a) Amount of purchase Price, The amount to be paid by City for the Improvements to be acquired from Developer (the "purchase Price") shall, as to each such Improvement, (i) be determined by City in accordance with the provisions of this Section 7, (ii) equal the lesser of the cost or the value thereof, (iii) include the reasonable cost or value of eligible appurtenant public facilities, (iv) include the costs of the title insurance policy described in Section 9 (a), and (v) include all other costs of construction and incidental costs eligible under the Act and the Goals and policies as a part of the cost of the Improvements, including the following: (i) Usual and customary design and engineering costs not to exceed the following percentages: a. Civil engineering - 7.5% of the cost of the construction of the Improvement for which the service was performed. b, Soils engineering - 15% of the cost of the grading for the Improvement. c, Landscape architecture - 10% of the cost of applicable landscaping and irrigation relating to the Improvement. d. Survey and construction staking - 2% of the combined cost of the construction cost and grading for the Improvement. e. Utility engineering/coordination - 3% of the cost of the construction of the applicable traffic signal. 1:~-98 9009..00003 S:'.lï:'.98110003.AG5 4 ) ð/ t ;; (ii) Construction administration and supervision not to exceed, in aggregate, 1.75% of the total construction cost of the Improvement. (iii) Special engineering studies related to "collector" or "transmission" facilities as reviewed and approved by the Public Works Director. (iv) Plan check and inspection fees (less any refunds). (v) Capacity or connection fees related solely to the Improvement. (vi) Costs of acquisition of off-site rights-of-way and/or e:tsements including the following: a. Appraisal and title insurance costs. b. Costs of preparing acquisition plats. c. The appraised value or actual cost of right-of-way or easement, whichever is less. d. Legal fees and costs related to eminent domain proceedings approved by the City Attorney. (vii) Costs of environmental review, pennitting and mitigation related to the Improvement. In no event shall the cost or value of the construction of the Improvements be deemed to exceed the construction contract prices set forth in the contracts and change orders approved by City, (b) Incremental Pavment of purchase Price. The Purchase Price for an Improvement shall be payable in not to exceed two increments: the "Base Increment" which shall be an amount not to exceed 75% of the Purchase Price for such Improvement and the "Retained Increment" which shall be an amount not to exceed the remaining, unpaid portion of the purchase Price for such Improvement determined pursuant to the provisions of (a) above. (c) Reauisition for Incremental Pavment of purchase Price. (i) Base Increment. The Developer may submit a written request to the City Engineer for the payment of the Base Increment for an Improvement upon the substantial completion of the construction of such Improvement in accordance ",ith the approved Plans:md Specifications, Notwithstanding the foregoing, 100% of the Purchase Price of any grading Improvement shall be paid upon substantial completion of such work. Tne criteria for determining "substantial 12~98 9009-00003 S:'.lï:'.98110003.AG5 5 / ~/ Þ 7' completion" of each Improvement is described in Exhibit A and shall mean generally that construction, or work with respect to the Improvement has progressed to the point where it is sufficiently complete so that the Improvement can be utilized for the purpose for which it was intended. Each Base Increment payment request must be in the form attached hereto as Exhibit D-l and conform to the requirements of (d) below, (ii) Retained Increment. The Developer may submit a written request to the City Engineer for the payment of the Retained Increment for an Improvement upon the completion of all ofthe Improvements within a Project and all Projects within the same Phase in accordance with the approved Plans and Specifications. Notwithstanding the foregoing, the City Engineer may approve the payment of the Retained Increment foran Improvement upon completion of the Improvements within a Project within Phases 3 or 4 prior to completion of all Projects within the same Phase. Such Retained Increment payment request must be in the form attached hereto as Exhibit D-2 and conform to the requirements of (d) below and, unless previously provided to the City, must be accompanied by (l) as-built drawings or other equivalent plans and specifications for such Improvement in a form reasonably acceptable to the City, (2) evidence that the Developer has posted a maintenance bond for such Improvement as required by Section 5 hereinabove, and (3) evidence ofthe satisfaction of the requirements of Section 9, hereinbelow directly related to such Improvement. (d) Documentation. Any payment request submitted by Developer shall be properly executed and shall include all supporting documents referred to in the payment request, including, (i) as a condition precedentto payment of the Retained Increment, evidence acceptable to the City Attorney ofthe City (the "City Attorney") that the Developer's contractors have provided unconditional lien releases for the Improvement or portion thereofto be acquired and (ii) as a condition precedent to payment of the Base Increment, evidence acceptable to the City Attorney that the Developer's contractors have provided conditional lienreleases in an amount not less than the Base Increment, (e) Review ofPavment Reauest. The City Engineer shall review each payment request. Ifthe City Engineer finds that any such payment request is incomplete. improper or othe!'\Vise not suitable for approval, the City Engineer shall inform Developer in writing ",ithin twenty (20) working days after receipt thereof, the reasons for his finding. Developer shall have the right to respond to this fmding by submitting further documentation and/or to resubmit the payment request within thirty (30) days after receipt of the denial. A resubmittal shall be deemed a new payment request for purposes of this Section. The City Engineer shall review any resubmitted payment request and inform Developer of his approval or denial of it in accordance ",ith this Section ",ithin ten (l0) working days after receipt of the resubmission. Costs incurred under a construction contract entered into pursuant to the requirements of this Agreement and pursuant to change orders approved by City shall be deemed to be reasonable. The City Engineer shall, after the sale of Bonds (defmed in Section :::-/)..1.98 9OO9.J)()Q{}3 S;',lï::'.9811000~.AG5 6 / ~/ t / - ~----- 18 below) pursuant to Section 18 and the receipt of the proceeds of such Bonds which are intended to be used to acquire the Improvements and after his or her approval of a payment request, immediately forward a requestto the Finance Director of the City notifying the Finance Director of his or her approval of the payment request and requesting that such payment be made to the appropriate payee. The Finance Director shall process any such request of the City Engineer pursuant to the applicable procedures of the Finance Department and shaIl make or authorize such payment pursuant to such procedures and subsection (f) below. (f) Pavment. The increment of the purchase Price for each Improvement shaIl be paid to Developer within thirty (30) days after the date ofthe City Engineer's approval of the payment request for any such increment; provided, however, no Retained Increment may be paid earlier than thirty-five (35) days after the recording of a Notice of Completion for the Improvement. Notwithstanding the foregoing, the Purchase Price or any increment thereof shall not be due and payable to the Developer except to the extent of available funds solely from the proceeds of the sale of Bonds as provided in Section 18 hereof, after all costs of formation of the Community Facilities District and all costs of issuance of such Bonds have been paid and deposits of accrued and capitalized interest to the redemption fund and the initial deposit to the reserve fund have been made. Beyond the amount of such available proceeds, the City shall have no obligation to pay for the Improvements contemplated hereby. In addition to the foregoing, the City shall have the right to withhold payment of the Purchase Price or any increment thereof of any Improvement if (a) the Developer is delinquent in the payment of any assessment installments or special taxes levied by the City or a community facilities district established by the City on properties then owned by the Developer 'WiÙ1in the Community Facilities District or (b) the City Engineer reasonably determines that the Developer is not then in substantial compliance with all applicable conditions and obligations imposed upon the Development pursuant to the land use entitlements approved by the City of the Development, including but not limited to, payment of all applicable fees, dedication of all applicable rights-of-way or other property and construction of all applicable public improvements. The City Engineer shall provide written notice to the Developer of the decision to withhold any such payment and shall specify the reason for such decision. If the payment is withheld as a result of the delinquency in the payment of assessment installments or special taxes, the notice shall identify the delinquent parcels and the amount of such delinquency, If the payment is withheld as a result of substantial non-compliance with a condition or obligation. the notice shall specify such condition or obligation and what action will be necessary by the Developer to substantially comply with such condition or obligation. Upon receipt by the City Engineer of evidence reasonably satisfactory to the City Engineer of the ¡:J}¡-98 9OO9.l)()()()3 s:-..r:-::',98110003.AG5 7 /g--/)~ .~-- payment ofthe delinquent special ta;œs or assessments or upon the determination by the City Engineer that the Developer has substantially complied v,ith the subject condition or obligation, the City shall forthwith make any payment which has been withheld pursuant to the provisions ofthis paragraph. (g) 01vmuic Parkwav Imurovements. The estimated fair share of the costs of constructing Olympic Parkway offsite (paseo Ranchero to Brandywine A venue) and associated Poggi Canyon sewer improvements (the "Olympic Parkway Offsite Improvements") allocable to the Development are included within the Improvements. Except as provided below in this subsection (g), a portion of the available proceeds of the Bonds not to exceed $4,742,742 (the "Reserved Portion") shall be reserved for the Olympic Parkway Offsite Improvements and shall not be available for funding the Purchase Price of any other Improvements. Upon the City's acceptance of the Olympic Parh.-way Offsite Improvements, the lesser of (i) the Reserved Portion or (ii) the fair share of the costs of the Olympic Parkway Offsite Improvements allocable to the Development shall be disbursed as required to acquire the Olympic Parkway Offsite Improvements. Any additional amount ofthe Reserved Portion shall then be disbursed to pay all or any portion of the Purchase Price of other Improvements. The Reserved Portion may be reduced from time to time upon Developer' s request and funds made available to fund the purchase Price of other Improvements if and to the extent the City Manager, or his designee (the "City Manager") reasonably determines that the Community Facilities District estimated fair share ofthe cost ofthe Olympic Parh.-way Offsite Improvements is less than the Reserved Portion. In addition, the City shall release all or any portion of the Reserved Portion to fund the purchase Price of other Improvements if Developer provides a contract bond, letter of credit or other form of security (the "Security") in a form and from a fmancial institution approved by the City Manager and in the amount of the released funds securing Developer's obligation to fund the amount of the released funds as required to acquire the Olympic Parkway Offsite Improvements. The Security shall be drawn on if and to the extent Developer fails to perform such obligation, shall be reduced upon, and in the amount of each payment by Developer and shall be released in total upon Developer's full satisfaction of such obligation. The City and Developer anticipate entering into a separate agreement regarding, among other things, the Olympic Parkway Offsite Improvements and the threshold requirements ofthe SPA One Public Facilities Financing Plan dmed September I, 1998 which shall take into account the provisions of this Agreement with respect to the Reserved Portion. SECTION 8. Audit. The authorized representatives of City shall have the right, upon two (2) days prior v,TItten notice to Developer and during normal business hours. to review all books and records of Developer pertaining to costs and expenses incurred by Developer in construction of the Improvements, 1:-[',4-98 9009-00003 s: .li:'.981100Œ.AG3 8 ) g'" ') / .---"--- SECTION 9. Ownership and Transfer oflmprovements. The conveyance of the Improvements by Developer to City shall be in accordance with the following procedures: (a) Imurovements Constructed on Land not Ovrned bv Citv, As a condition to the payment of the Retained Increment of the purchase Price, Developer shall cause an irrevocable offer of dedication to be made to City or an outright grant of a fee interest or easement interest as appropriate, in the sole discretion of the City of the appropriate right, title and interest in and to the portion of the applicable property related to the applicable Improvement, including any temporary construction or access easements, Developer, whether or not it is the entity constructing the Improvements, agrees to execute and deliver to the City the documents required to complete the transfer of Acceptable Title. For purposes of this Agreement, the term "Acceptable Title" shall mean title to the portion of the property to be conveyed free and clear of all taxes, liens, encumbrances, assessments, easements, leases, whether any such item is recorded or unrecorded, except those non-monetary encumbrances and easements which are reasonably determined by the City not to interfere with the intended use ofthe portion of the property. As a further condition to the payment of the Retained Increment ofthe Purchase Price for any Improvement. Developer at its sole cost and expense, subject to reimbursement pursuant to Section 7, shall cause to be issued a policy of title insurance for such portion of the property in an amount not to exceed the Purchase Price and in the fonn normally required by City in connection with the dedication ofland for subdivision improvements and containing such title endorsements as may be reasonably requested by City. City's final acceptance of the portion of the property and the Improvements constructed thereon shall not be unreasonably withheld or delayed. (b) Imurovements Constructed on Land Owned bv Citv, If Developer is authorized to construct an Improvement on land owned in fee by City or on land over which the City owns an easement Developer shall obtain the necessary encroachment permits to enter such land for purposes of constructing such Improvement. City shall cooperate with Developer in issuing such encroachment permits. The Improvements shall be inspected by City on an ongoing basis. SECTION 10. Grading and Subdivision Improvement Bonds, Except as provided below, Developer shall be required to post bonds or other security acceptable to the City to guarantee completion of the Improvements in accordance with City's standard subdivision requirements and conditions of approval of the Development (the "Conditions of Approval"). Performance and labor and material bonds for specific Improvements shall not be required or may be released if: (1) such Improvements constitute a portion of the required subdivision improvements- (:2) Bond proceeds to construct or acquire such Improvements are available, and (3) r:>OJ.-98 9009-00003 S:.1'7:"98110003.AG5 9 16~ ì;L -.----- the Improvements are to be constrUcted or acquired entirely with the proceeds of the Bonds. Provided that conditions (1) and (2) are satisfied, if an Improvement is to be constrUcted or acquired only in part with the proceeds of the Bonds, performance and labor and material bonds shall not be required for that portion of the Improvements to be so constructed or acquired except with respect to the portion that will not be acquired or constrUcted with Bond proceeds. City will cooperate with Developer in the termination or exoneration of any performance and labor and material bonds assuring completion ofImprovements for which bonds have been sold. SECTION 11. Indemnification by Developer. Developer shall defend, indemnify and hold harmless City, its officers, directors, employees and agents, and the Community Facilities District, its officers, directors, employees and agents from and against any and all claims, losses, liabilities, damages, including court costs and reasonable attorneys, fees by reason of, or resulting from, or arising out of the design, engineering and constrUction of the Improvements; provided that any claims which relate to the Improvements shall be limited to those arising out of personal injury or property damage caused by actions or omissions by Developer or Developer's employees, agents, independent contractors or representatives which occurred during the period prior to the transfer of title to the Improvements by City, whether or not a claim is filed prior to the date of acceptance of the Improvements. Nothing in this Section 11 shall limit in any manner the rights of the City and/or the Community Facilities District against any of the architects, engineers, contractors or other consultants employed by the Developer which has performed work in connection with construction or financing of the Improvements- Except as set forth in this Section 1 I, no provision ofthis Agreement shall in any way limit the extent of the responsibility of Developer for payment of damages resulting from the operations of the Developer, its agents, employees or contractors. SECTI ON 12. Obligation of City. Neither the City nor the Community Facilities District has a legal or fmancial obligation to constrUct or fmance the actual construction of the Improvements. All costs incurred for actual construction of the Improvements, including all incidentals thereto, shall be borne by Developer. The obligations of the City are limited to the acquisition of the Improvements pursuant to the provisions of this Agreement. SECTION 13. Failure by Developer to Construct Improvements. At any time that the constrUction of the Improvements is not progressing within a reasonable time in accordance with the Conditions of Approval or the Developer fails to demonstrate a continuing ability to complete the constrUction of the Improvements in accordance with the Conditions of Approval, the City may give written notice of such failure of performance to the Developer. Developer shall have sixty (60) days from the date of receipt of such notice to cure such failure of performance by demonstrating to the satisfaction of the City during such cure period reasonable progress in the constrUction of the Improvements and a continuing ability to complete the constrUction of the Improvements in accordance ",ith the Conditions of Approval. Should Developer fail to satisfactorily demonstrate such reasonable progress or such continuing ability, this contract may be terminated by the City by I:!-..04-98 9009-00003 S;'.lí:'.98110003.AG5 10 /g-~)J providing ten (10) days wrinen notice to the Developer. Upon termination, the City may in its sole discretion then proceed to advertise and bid the balance of the Improvements, and there will be no further obligation on the part of the City for payment due to Developer pursuant to this Agreement. In the event that the City chooses not to advertise and bid the balance of the Improvements following such a termination, any monies remaining in the improvement fund for the Community Facilities District and not appropriated or subject to appropriation for eligible expenses of the Community Facilities District previously incurred shall be transferred to the redemption fund for the Community Facilities District and used to call outstanding Bonds. SECTION 14. Agreement Contingent. As a precondition to the sale of the Bonds of the Community Facilities District, Developer shall pay in cash to City an origination charge of 1.0% of the amount of the Bonds ("Origination Payment"). Said Origination Payment shall be at Developer· s own expense and not recoverable from the proceeds of the special taxes or from the proceeds of the Bonds. In the event that the Bonds are, for any reason, not sold, the amount of the Origination Payment shall be returned to the Developer. Tills Agreement is contingent upon the formation of the Community Facilities District, the authorization by the qualified electors of the Community Facilities District to levy special t<L'{es and incur bonded indebtedness and the successful sale of Bonds, and it shall be null and void if said Bonds are not sold within a three (3) year period follov.ing the date of this Agreement, or any mutually agreed extension; however, this time can be extended by request of the Developer and concurrence of the legislative body. The City may, at its option, suspend the performance of its obligations under this Agreement if, during the 30-day statute of limitations period following the formation of the Community Facilities District, any legal challenge is filed relating to the validity or enforceability of this Agreement, the Community Facilities District proceedings or the issuance of the Bonds. The obligations of the City hereunder shall be reinstated upon the entry of a final judgment in any such proceedings upholding the validity and enforceability of the Agreement, the Community Facilities District proceedings and the issuance of the Bonds. In the event that a final judgment is entered invalidating or declaring unenforceable this Agreement, the Community Facilities District proceedings or the issuance of the Bonds, the City may, at its option, terminate this Agreement. SECTI ON 15. Notice of Special T ax. Developer, or the successor or assigns of the Developer, shall provide wrinen notice to all potential purchasers ofIots in a form satisfactory to City so advising the potential owner of the fact of the proposed or confirmed Community Facilities District, with said document being executed by the potential purchaser. Such notice shall be provided to the potential purchaser a reasonable time before the potential purchaser becomes contractually commined to purchase the lot so thatthe potential purchaser may knowingly consider the impact ofthe special ta., in the decision to purchase the lot. A copy of all such notices executed by actual purchasers shall be sent to the City Engineer. 1:-OJ..98 9009-00003 S:'.lí~\.981100Œ.AGS 11 /5-/') { SECTION 16. Limitation of Aggregate Taxes and Assessments. Developer shall include in any future agreement to sell all or any portion of the property to any person or entity for the purpose of constructing and marketing owner-occupied residential dwelling units (a "Builder") provisions requiring the inclusion of the following "escrow instructions" in all sales by such Builder to residential home owners: 1. At or prior to the close of each such escrow, the escrow company shall apply a "calculation formula" previously approved by the City Engineer and deposited with the escrow company by the Builder to determine the aggregate of all annual ad valorem property taxes, all special ta;'í:es authorized to be levied to fmance the construction or acquisition of public facilities and all assessment installments authorized to be levied to finance the construction or acquisition of public facilities (the "Total Annual Ta:<es and Assessments") applicable to the parcel subject to such escrow (the "Applicable Parcel"), 2. If the Total Annual Taxes and Assessments exceed 2% of the sales price of the Applicable Parcel, the Escrow Company will make immediate written demand upon the Builder for deposit into the escrow of the funds necessary to partially prepay the special ta.,< obligation for the Community Facilities District or any other community facilities district so that the Total Annual Taxes and Assessments will thereafter be equal to or less than 2% of the sales price of the Applicable Parcel. Such funds must be received by the escrow company prior to the close of escrow of the sale of the Applicable Parcel. Upon closing of such escrow, the amount so deposited by the Builder pursuant to this escrow instruction shall be sent by the escrow company to the Finance Director, together \vith written instructions that such amount is to be used to partially prepay the special ta.,< obligation of the Applicable Parcel for the Community Facilities District or shall be sent to the community facilities district for which the special ta.,< obligation has been prepaid with similar written instructions. In addition to any other remedy provided for by law or in equity, the City may enforce the provisions of this Section 16 by an action for specific performance or injunctive relief or both. SECTION 17. Relationship to Public Works. This Agreement is for the construction and acquisition of certain Improvements by City and the sale of the Bonds for the payment of construction and acquisition costs for such Improvements and such other amounts as are herein provided, and is not intended to be a public works contract. In performing its obligations under this Agreement, Developer is an independent contractor and not the agent of City. City shall have no responsibility for paymerlt to any contractor or supplier of Developer. Notwithstanding the foregoing, Developer may be subject to certain public contract requirements as provided in Section 3 of this Agreement. 12...0.+·98 9009-00003 S:"'1'j'~\98110003.AG5 12 . ----- / ;t/') ~ -.-- SECTION 18. Sale ofBonds. Ifand when the Community Facilities District is successfully fonned, and authorization for the levy of special taxes approved by the qualified electors, the City shall proceed with the issuance and sale of bonds secured by such special taxes (the "Bonds") to be issued pursuant to the Act. The proceeds of the Bonds shall be used in the follo\\>1ng priority to (i) fund a reserve fund for the payment of principal and interest with respect to the Bonds; (ii) fund capitalized interest on the Bonds in an amount not to exceed the amount required to pay interest on the Bonds until sufficient special taxes of the Community Facilities District are collected; (iii) pay for costs of issuan"e of the Bonds including, without limitation, underwriter's discount, bond counsel fees, printing, and paying agent fees; (iv) pay for the costs offonning the Community Facilities District; and (v) pay for the costs of the construction or acquisition of the Improvements pursuant to the provisions of this Agreement_ The timing of the issuance and sale of the Bonds, the tenns and conditions upon which the Bonds shall be issued and sold, the method of sale of the Bonds and the pricing of the Bonds shall be determined solely by the City and shall confonn to the Goals and Policies and this Agreement. The sale of the Bonds shall be subject to receipt by the City of a competitively bid or negotiated bond purchase agreement which is acceptable to the City. The aggregate principal amount of the Bonds shall not exceed one-fourth (1/4) of the value of the property within the Community Facilities District subject to the levy of special taxes as determined by an independent appraisal undertaken for the City utilizing appraisal assumptions approved by the City. Notwithstanding the foregoing, a value-to-lienratio ofIess than 4: I but equal to or greater than 3: I may be approved, in the sole discretion of the City Council, upon detennination by the City Manager, after consultation with the Finance Director, the bond counsel, the underwriter and the financial advisor, that a value-to-lien ratio of less than 4: I is fmancially prudent under the circumstances of the Community Facilities District. The City may, in its sole discretion, accept a form or fonns of credit enhancement such as a letter of credit, bond insurance or the escrow of bond proceeds to offset a deficiency in the required value-to-debt ratio, The amount of the Bonds to be issued shall be determined in accordance with the Goals and Policies such that the maximum projected annual special ta."{ revenues equal 11 0% of the projected annual gross debt service on the Bonds. Developer agrees to provide all information regarding the development of the property within the Community Facilities Disuict, including the financing plan for such development, which are necessary to ensure that the official statement for such Bonds complies with the requirements of Rule 15c2-12 of the Securities and Exchange Commission (the "Rule") and all other applicable federal and state securities laws. Additionally, Developer agrees to enter into a continuing disclosure agreement to provide such continuing disclosure pertaining to the Community Facilities District, the development thereof and the Deve10per as necessary to ensure ongoing compliance with the continuing disclosure requirements of the Rule. I:~-98 9009-00003 S:'.l'i:".98110003.AG5 13 /¡j----/b SECTION 19. Development Impact Fee Credit. The Improvements include public facilities that are included in several City development impact fee programs (each, a "DIF Program"), as indicated in the attached referenced and incorporated Exhibit E. Credits against the applicable DIF Program fees shall be granted in accordance with the applicable City ordinances, regulations and policies. SECTION 20. Conflict with Other Agreements. Except as specifically provided herein, nothing contained herein shall be construed as releasing Developer from any condition of development or requirement imposed by any other agreement with City. In the event of a conflicting provision, such other agreement shall prevail uruess such conflicting provision is specifically waived or modified in writing by City. SECTION 21. General Standard of Reasonableness. Any provision of this Agreement which requires the consent, approval, discretion or acceptance of any party hereto or any of theirrespective employees, officers or agents shall be deemed to require that such consent, approval or acceptance not be unreasonably withheld or delayed, unless such provision expressly incorporates a different standard. SECTION 22. Entire Agreement; Amendment. This Agreement and the agreements expressly referred to herein contains all of the agreements of the parties hereto with respect to the matters contained herein and no prior or contemporaneous agreement or understandings, oral or written, pertaining to any such matters shall be effective for any purpose. No provision of this Agreement may be modified, waiver, amended or added to except by a writing signed by the party against which the enforcement of such modification, waiver, amendment or addition is or may be sought_ SECTION 23. Notices. Any notice, payment or instrument required or pennitted by this Agreement to be given or delivered to either party shall be deemed to have been received when personally delivered or seventy-two (72) hours following deposit of the same in any United States Post Office in California, registered or certified, postage prepaid, addressed as follows: Developer: McMillin Otay Ranch, LLC 2727 Hoover Avenue National City, CA 91950 City: City of Chula Vista 276 Founh Avenue Chula Vista, CA 91910 Attn: City Manager Each party may change its address for delivery of notice by delivering \vritten notice of such change of address to the other party. 1:~-98 9009-00003 S:\.lï:'.98110003.AG5 14 /&- // ? SECTION 24. Severability. If any provIsIon of this Agreement is held to be illegal or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be given effect to the fullest extent reasonably possible, SECTION 25. Successors and Assigns, This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto. Developer may not assign its rights or obligations hereunder except upon written notice to City within ten (I 0) days of the date of such assignment indicating the name and address of the assignee. Upon such notice and the assumption by the assignee of the rights, duties and obligations of the Developer arising under or from this Agreement, Developer shall be released by City from all future duties or obligations rising under or from this Agreement_ Notwithstanding the preceding sentence, Developer may assign its rights and obligations hereunder as security to lenders for the purpose of obtaining loans to finance development within the Community Facilities District, but no such assignment shall release Developer from its obligations hereunder to City, SECTION 26. Governing Law. This Agreement and any dispute arising hereunder shall be governed by and interpreted in accordance with the laws of the State of California, Additionally, this Agreement and the construction of the Improvements shall be subject to all City ordinances and regulations relating to the requirement of improvement agreements, land division, improvement security or other applicable development requirements. SECTION 27. Waiver. Failure by a party to insist upon the strict performance of any of the provisions of this Agreement by any other party, or the failure by a party to exercise its rights under the default of any other party, shall not constitute a waiver of such party's right to insist and demand strict compliance by any other party with the terms of this Agreement thereafter. SECTION 28. Singular and Plural; Gender. As used herein, the singular of any work includes the plural, and terms in the masculine gender shall include the feminine. SECTI ON 29. Counterparts. This Agreement may be executed in counterparts, each of which shaIl be deemed an original. SECTION 30. Construction of Agreement. This Agreement has been reviewed by legal counsel for both the City and the Developer and shall be deemed for all purposes to have been jointly drafted by the City and the Developer. No presumption or rule that ambiguities shall be construed against the drafting party shall apply to the interpretation or enforcement of this Agreement. The language in all parts of this Agreement. in all cases, shall be construed as a whole and in accordance with its fair meaning and not strictly for or against any party and consistent with the provisions hereof, in order to achieve the objectives of the parties hereunder. The captions of the sections and subsections of this Agreement are for convenience only and shaIl not be considered or referred to in resolving questions of construction. 1~-O~98 9OO9-DOOO3 S:\lï:'\98110003.AG5 15 /g -- ? ð SECTION 31. No Obligation to Form Community Facilities District. Developer acknowledges that the decision of the City Council of the City to form the Community Facilities District is a legislative action and the City may not enter into an agreement to obligate the City Council to exercise its legislative discretion in a particular manner or for a particular result. This Agreement does not, therefore, in any way create a contractual, legal or equitable obligation of or commitment by the City to approve the formation of the Community Facilities District. [End of page, NeJ\.1: page is signature page.] 1:~-98 9OO9-iJOOOJ S:\.lï:'.98110003.AG5 16 /¿ç~)/ Signature Page to AcquisitionlFinancing Agreement by and between the City of Chula Vista and McMillin - D.A. America Otay Ranch L.L.c. EXECUTED by and between the parties hereto on the day and year first hereinabove written. "CITY" CITY OF CHULA VISTA Ætu~l..J¡jl~~ MAYOR Ii CITY OF CHULA VISTA STATE OF CALlFORNIA ATTEST: ~º^-IlU~\Ç& CITY CLERK éf'- CITY OF CHULA VISTA STATE OF CALIFOR.."NIA APPROVED AS TO FORM: "DEVELOPER" McMILLIN OT A Y RANCH, LLC, a Delaware limited liability company, By: McMILLIN COMPANIES, LLC, its managin~" e er By: ~ v\tC., 8, f~~ 12~98 9009~3 S:'·,lï:\98110003.AG5 1Î /g--¿¡o EXHIBIT "A" DESCRIPTION OF IMPROVEMENTS M"D PROJECTS Phase! Completed Substantial Priority Project Improvements Pre-ROF Completion Criteria I Olympic Parkway Offsite (Brandywine A venue to Pas eo Rnnchero) "ofair share obligation (not to exceed Reserved Portion) Grading, including site preparation & mobilizàtion and I storm drain (per grading plans) Surface Improvements, including sewer and stonn drains (per street improvement 2 plans), traffic signals, specialty items, site concrete and AC paving Landscaping I 3 2 La Media Road North (Telegraph Canyon Road to East Palomar Street West) Grading, including site preparation & mobilization and .{ I storm drain (per grading plans) Surface Improvements, including sewer and stonn drains (per street improvement 2 plans), traffic signals, speciaity items, site concrete and AC paving 1 Landscaping I I 3 2 East Palomar Street West CFD (West crn Boundary to Santa Cora Avenue North) Grading, including site preparation & mobiiiZ¡:lIion and .{ 1 storm drain (per grading plans) 1:...0.+-98 9009-00003 S:'.ln'.9~110003.AG5 A-I j5~27 · ~ Substantial Improvements Completed Completion Pre-ROF Criteria Surface Improvements, including sewer and storm drains (per street improvement 2 plans), traffic signals, specialty items, site concrete and AC paving Landscaping \ 3 A,,_7 /8- / cY:J Phase! \ \ \ Completed \ Substantial Priority Project Improvements Pre-ROF Completion Criteria Surface Improvements, including sewer and storm drains (per street improvement 2 plans), traffic signals, specialty items, site concrete and AC paving Landscaping 3 4 Olympic Parkway Onsite (La Media Road South to East Palomar Street) Grading, including site preparation & mobilization and 1 storm drain (per grading plans) Surface Improvements, including sewer and storm drains (per street improvement 2 plans), traffic signals, specialty items, site concrete and AC paving I Landscaping I 3 4 I Pedestrian Bridge (at La Media I I Road South) I Grading, including site I I 1 preparation and mobilization I Site Concrete I I 2 Substantial Completion Criteria: 1. Grading: grading complete, storm drain installation complete. certification of geotechnical and civil engineer and inspection. 2, Surface Improvements: installation complete and inspected. 3, Landsca.ping: installation camp Jete and inspected. 1~"{µ~98 9009-00003 S:\1ï:'.98110003.AG5 1\-5 Jcf'~%5 EXIDBIT "C" DESIGN, BID Ai'I"D CONTR-\CT REQUIREMENTS 1. General These requirements shall be applied to all improvements proposed to be acquired through the Community Facilities District. Any deviation from these requirements must be approved in advance by the Public Works Director. References to the Public Works Director means the Public Works Director, City Engineer or their designee. The City reserves the right to make the final dete=ination of cost of the lmprovements to be acquired in accordance with this Agreement. II. Design Phase A. Only design costs directly related to the public improvements to be acquired are eligible for inclusion. B. Bidding Documents. Two complete sets of bidding documents, including improvement plans, general provisions, and bid proposal forms shall be submitted to the Engineering Division for review and approval within 15 working days of submittal. Advertising for bids shall not take place until the bidding documents are approved in writing by the City. This procedure shall be followed for each contract proposed to be advertised. Unless otherwise noted, the bidding documents shall conform to the following minimum requirements: I. Unless impractical due to the narure of the improvement, the bid proposal shall be unit priced rather than lump sum. A.C- pavement, base and sub-base shall be bid on a square foot per inch thickness basis. 2. following bonds: The bidding documents shall require the bidder/contractor to provide the a. Bid Bond - 10% of the amount of the bid. b. Material and Labor Bond - 50% of the contract amount. c. Performance Bond - 50% of the contract amount. 1::-Q4.-98 9009-00003 S:\lï:\98110003.AG5 C-l /y---Y1 3. The bidding documents shall require the successful bidder to provide evidence of comprehensive public liability insurance in the amount of at least $1,000,000 prior to the award of the contract. 4_ The bidding documents shall provide for monthly progress payments to the contractor. 5. prevailing wages. Unless otherwise required by the City, the contractor is not required to pay 6, The bidding documents must clearly state the time, date, and place where bids are to be submitted and opened. 7. The bidding documents shall clearly state the amount of time to complete the work. The time allowed must be reasonable for the amount of work. Accelerated construction time allowances must be supplementally bid, and are not eligible for public finance unless previously approved by the City Engineer. III. Bidding Phase A. The Notice inviting Sealed Bids shall be published in the Chula Vista Star News and the San Diego Daily Transcript. The notice inviting bids shall state where bidding documents are available. B. The bidding period following the advertisement of the Notice Inviting Sealed Bids shall be a minimum of 14 calendar days. C. Developer shall provide complete sets of bidding documents to all contractors, subcontractors, or suppliers requesting them. A reasonable price may be charged for bidding documents, D. Developer shall keep a log of all persons obtaining bidding documents, and their mailing address. E. Addenda shall be mailed by first class mail to all bidding document holders and the Public Works Director. If an addendum is required within five working days of the noticed bid opening date, the bid opening date shall be extended_ F, Submitted bids shall be in se3.1ed envelopes. G. Bids shall not be accepted after the stated time for submission. 11...fJ4.-98 9OO9-DOOO3 5:\172\9811ooo3..-\G5 C-1 JS~ðS- D. Any additional costs incurred for the benefit of the Developer, such as accelerating the constructio~ schedule, shall not be eligible for public financing unless previously approved by the City Engineer. E. Any additional construction costs incurred due solely to delays caused by the Developer shall not be eligible for public fmancing, F. All contracts and construction related records shall be available to the City as and when required for the final determination of eligible costs for the public financing. This shall include trip tickets and other confirmations of material delivered to the project. 12-04-98 9Q09..1}()()()3 S:'·,lï2'.98110003.AG.5 C-4 ) g--/ Y? EXHIBIT "D-l" BASE INCREMENT PAYMENT REQUEST NO. The undersigned (the "Developer") hereby requests payment in the total amount of $ for the Base Increment of the Purchase Price of the Improvements (as defined in the Acquisition/Financing Agreement by and among the City ofChula Vista (the "City") and Developer and described in Exhibit A to that Agreement), all as more fully described in Attachment I hereto. In connection with this Payment Request, the undersigned hereby certifies, represents and warrants to the City as follows: I. He(she) is a duly authorized officer of Developer, qualified to execute this Payment Request for payment on behalf of Developer and is knowledgeable as to the matters set forth herein. II. The Improvements that are the subject of this Payment Request have been substantially completed in accordance with Exhibit A. III. The Purchase Price for the Improvements has been calculated in conformance 'With the te=s of the Agreement. All costs for which payment is requested hereby are eligible costs (as permitted in the Agreement) and have not been inflated in any respect. The Base Increment for which payment is requested has not been the subject of any prior payment request paid by the City. IV. Supporting documentation (such as third party invoices, change orders and checks) is attached with respect to each cost for which payment is requested. V. The Improvements for which payment is requested were constructed in accordance with the requirements of the Agreement. VI. Developer is in compliance with the te=s and provisions of the Agreement. VII. No mechanics liens or other encumbrances have attached, or to the best knowledge of Developer, after due inquiry, will attach to the Improvements, r::~.-{U..98 9009-00003 S:'".17::',98110003.AG5 D-l-l )5-?? I hereby declare under penalty of perjury that the above representations and warranties are true and correct. DEVELOPER: McMILLIN OTA Y RA.~CH, LLC, a Delaware limited liability company, By: McMILLIN COMPANIES, LLC, ItS managing member By: By: Dated: CITY Payment Request Approved for Submission to Finance Director Public Works Director Dated: 11.1J..1-98 9009-00003 S:\lï:'.9811000J.AG5 D-1-2 /g-~~S- ATTACHMENT I SUMMARY OF IMPROVEMENTS TO BE ACQUIRED AS PART OF PAYMENT REQUEST NO. Phase No, Proiect ImDfovement Purchase Price Base Increment Disbursement Reauested [List here all Improvements for which payment is requested, and attach supporting documentation] 12~·98 9OO9..!JOOO3 $:\lï2'.9811000J.AG5 D-1-3 /f5~g-( EXHffiIT "D-2" RETAINED INCREMENT PAYMENT REQUEST NO. The undersigned (the "Developer") hereby requests payment in the total amount of $ for the Retained Increment of the Purchase Price of the Improvements (as defined in the Acquisition/Financing Agreement by and among the City of Chula Vista (the "City") and Developer and described in Exhibit A to that Agreement), all as more fully described in Attachment 1 hereto. In connection with this Payment Request, the undersigned hereby certifies, represents and warrants to the City as follows: 1. He(she) is a duly authorized officer of Developer, qualified to execute this Payment Request for payment on behalf of Developer and is knowledgeable as to the matters set forth herein. 2. Developer has submitted or submits herein to the City, if applicable, as-built drawings or similar plans and specifications for the Improvements and such drawings or plans and specifications, as applicable, are true, correct and complete. 3. The Purchase Price for the Improvements has been calculated in conformance with the terms of the Agreement. All costs for which payment is requested hereby are eligible costs (as permitted in the Agreement) and have not been inflated in any respect. The Retained Increment for which payment is requested has not been the subject of any prior payment request paid by the City. 4. Supporting documentation (such as third party invoices, change orders, lien releases and checks) is attached with respect to each cost for which payment is requested. 5. The Improvements for which payment is requested were constructed in accordance with the requirements of the Agreement. 6. Developer is in compliance with the terms and provisions of the Agreement. 7. No mechanics liens or other encumbrances have attached, or to the best knowledge of Developer, after one inquiry, will attach to the Improvements. r:·()....I.·98 9009-00003 S:'.lï:2'.98110003.AGS D-2-1 I ¿rr' 90 I hereby declare under penalty of perjury that the above representations and warranties are true and correct. DEVELOPER: McMILLIN OTA Y RANCH, LLC, a Delaware limited liability company, By: McMILLIN COMPANIES, LLC, its managing member By: By: Dated: CITY Payment Request Approve~ for Submission to Finance Director Public Works Director Dated: 1:2·04.-98 9009-00003 S:'.17:'.98110003.AG5 D-2-2 /%~7/ ATTACHMENT 1 SUMMARY OF HvIPROVEMENTS TO BE ACQUIRED AS PART OF PAYMENT REQUEST NO. 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STAre Title Order No. Escrow No. SPACE ABOVE TIllS UNE FOR RECORDER?, USE DEED OF TRUST WITH ASSIGNMENT OF RENTS AS ADDITIONAL SECURITif This DEED OF TRUST, made Ma1:ch , 1999 , betwe.en Dtay P1:oject L.P., a California l1m11:ed pa1:1:ne1:ship, I I I herein called TRUSTOR, 92101 whose address is 350 lien Ash St., Suiu 730, San Diego, California (Number and StreBt) (CII)') ,Slate, I ~p Coda} CHICAGO TITLE COMPANY, a California Corporation, herein called TRUSTEE, and City of Chula Vista, a municipal corpo1:ation ,herein caned BENEFICIARY, I Trustor irrevocably grants, transfers and assigns to Trustee in Trust, With Power of Sale that property in city of Chula Vista, County San Diego ,Callfc/rnia, described as: I Se.e Exhibit: IIA" I Togathet with the rents, ¡$Sues alld pl'1:lfits thereof, subject, however, to thll right, power and authorlt)! hereinafter given to and conferred upon Søneficiary tcr.~~1 t,and ~-º! such rents, issues and rofitss ""'h''-i "B" I' ~ :oe 'u< Ose ot SeCUr1n ... ee ~ ~ t ~ ~=""<c" -.._~-~.~;,~'::-~; ~~--. ~.KD;Kl:Rb.I__~tItIUX._'''''''IIn\a1'' ~r\I"~~~-1-~WN"II'.~lEI:I:I;m:JttI¡_. .:fI:RJe:1IJSbC -..~"....~"'V'f "-~''W:!!rI'M'~""..IIII_IC_~_'''''''''''''''A'_'''''~~~ X.tII~ . I . I To protect the 98CUrily of this Deed olTrust, and w{th res:lQct te the property above de&e:ribed. Trustorex:Iressly makes each and aU 0' ttle agreements. and adepts and agrees to perform and be bound by each and all of the terms and þrovisions set: forth in subdivision A of that ~rtain Fjc:titiou~ Deed of Tl'1Jst referenced herliiin, and it is mutua.lly agreed that all at the provisions set 1erth in subdivisicn B of that C8nain FictitìcuSl Deed of Trust recorded in the book and pagG of Officia.l Ascards in the office of the county recorder òf the county where· said propeny Is located, noted below oppo.sile the name of sucl'1 cQunty, namely: ! I I COUNTY BOOK , PAGE COUNTY BOOK PAGE COUNTY BOOK PAGE COU~TY BOOK PAGE Alameda 1288 556 KIngs 858 713 Placer 1028 379 Sle"jl 38 187 A1pine 3 1:10·31 Lake 437 110 Plu""", 168 1307 Siskiyou 506 762 Amador 133 438 Lassen 1S2 387 Riverside 3778 347 SOlano 1287 821 Butt. 1330 513 Los Angeles T -3878 874 Sacramento 71-10-26 , 2067 427 615 Sonoma Calaveras 185 338 Madera 911 '36 San Sen¡lo 300 405 Stan~laus 1970 56 Colusa 323 391 Marin 1849 '22 San Bemõlrdino 6213 769 , 655 585 Sutter Centra Casta 4&84 1 Mariposa 90 453 San Francisco A-<lD4 59. Tehama 4õ7 183 Cel Norte 101 549 Mendocino 667 99 San Joaquin 2855 293 Tr1nl~ 108 595 El Cor:¡do 704 635 Merced 1680 753 San luU¡ Obispo 131' 137 Tulare 2630 '08 Fresno 5052 623 Modoc 191 93 San Mateo 4778 175 TUQI~mne 177 '80 Glenn 469 75 Mono 6S' 302 Santa Barbara 2065 .61 Ventura 2807 237 Humcoldt 80' 83 Monterey 357 239 Santa C1.fa 652. 664 YOlo: 769 1. Imperial 1189 701 Napa 704 742 Santa Ctuz 1638 807 Yuba 388 693 Inyo 165 672 Nevada 363 9" Shasta 800 633 Kern 3756 690 Orange 7182 18 San Diego Series 5 Book 19154. Pllge 149774 T J65 Lega! (12.g4 CtTW\lII~I"'"""" Pago 1 /f/>9 ? --.-.---,.- ---- i i ! shall inure to anc bind the parties narale, with respect to the property above describttd. Said agreements, terms and pro~sions contained in ;aid subdivisions A and 6, (identic:al in all countie:¡) are preprinted on Ihefollowing pagas hOl'llof and aro by Ihe wfthin raferoncolhorato, incorporaled horoln and made a pan of !his Deed of TNst for all purposes as tully as If set forth at len9lh herein, III1d Beneficiary may charge fer a statement regarding the obligation secured hsreby. ~ro\lidad U1Q charge rherQcf does not exceed the maximum allowed by laws. ~ , i The unàorsignec! Trustor, requOSIS that a copy of 8/'Iy notice of detault aJ'\d arrt notice of sale hereunder be mailed to him III his addr~SS hereinbefore set forth. , ! STATE OF CALIFORNIA COUNTY OF } 5.5. Signature of Truster On before me, e Notary Public in and ftlr said County and State, personally appeared personaUy known to me (or proved te me on the basis of satisfactory evidence) to be the person(s) whose name(s) islan> subsc~bed 10 the within instl'l.lmenl and acknowledged to me that he/she/they eXliCul.d the same In hlslherltheir authorized capacily(les), and that by hi8ll1erltheir signa"".{s) on the instl'l.lment the persøn(s), or the entity upcn behalf ot whIch the persan(s) acted, ø:r::øcutsd the instrument. WITNESS my hand and offic:iaf seat Signa\ure (Thl$ are¡¡z. fer officiai l"Iot4rîa, seal) T J5S WlgaJ p2.94) DO'- " )?~7tr crrW1tn....._'ØlFI~ EXHIBIT I @ CHICAGO TITLE COMPANY -, PRELIMINARY REPORT ARST AMENDED Dated as ot March 22, 1999 at 7:30 AM Reference: VILlAGE 2 Order No.: 93076107 - U54 CHICAGO TITLE COMPANY hereby reports !hat it is prepared to issue. or cause to be issued, as of the date hereof. a Policy or Policies of Tille h1suraI1CS describing the land and the estate or interest therein hereinafter set forth. insuring against loss which may be sustained by reason of arr-¡ defect, lien or encumbrance not shown or referred to as an E=ption in Schedule B or nO! E!)<C!uded from coverage pursuant to the pòr:d:ed Schedules, Conditions and Stipulations of said Policy forms. The printed Exceptions and Exclusions from the COIIeI'age of said Policy orPoIides are set forth in theattac:hed lIst- Copies of the Policy formS are available upon request Please read the exceptions shown' or referred to In Schedule B and the exœptIons and exduslons set forth In the allached list of this repeln:. carêfully. The exceptions and exclusions are meant to provide you with notice of matters which are net covei-ed under the terms of the title ïnsuranca policy and should be c:arefuIIy considered. It Is Important to nata that this preiJmlnarì report Is not e written Æpresantatlon as to the condition of title and may not list all liens, .dafeds, and encumbl'ances affedlng title to the land THIS REPORT (AND ANY SUPPI..£MENTS OR AMENDMENTS HERETO) IS ISSUED SOLELY FOR THE PURPOSE OF FAClUTATING THE ISSUANCE OF A F'OUCY OFTITtE INSURANCE AND NO UABILJ'N' IS ASSUMED HEREBY_IF IT IS DESIRED THAT UABIUlY BE ASSUMED PRIOR TO THE ISSUANCE OF A POUCY OF TITLE INSURANCE. A BINDER OR COMMITMENT SHOULD BE REQUESTED. The form of policy of title insUranœ contempla!ed by this report is: CAUFORNIA LAND TITLE ASSOCIATION STANDARD COVERAGE POUCY TIlle Department . CHICAGO TITLE COMPANY 925 "B" STREET SAN DIEGO. CA. 92101 (619)511 5291 fax: (619)S44-Q75 @ CATHY CLARK / BETIYTHURMAN TITLE OFFICER ~~/~~ /%/17 SCHEDULE A QrdcrNQ:' 93076J.07 US4 , Your Ref: VILLAGE :2 '- 1. The estate or mteresl: in the 1and hereinafter desa:ibed or refcned to am:red by tDis report is: A FEE .. 2.; . 'I1de to gajd estate or int~ at the datéhcreof is <>cstcd in: OTAY PRo.:Œcr, . LLC, A CALIFORNIA LIMI'r:E:D LIABILITY COMPANY 3. The land xcf=ed to in this repaxt is sítuatcd in the State af Califoruia, cOunty of SAN DIEGO . and is descñbcd as f0!Icw3: SEE ATTACiIED DEsCRIPTION F'REi1t. oI0f31/'õm* /8- //M Page ~ Order No. 93076~07 PARCEL :;!: DESCRIPTION , LOT 30 OF OTAY RANCHO, IN TIm COtIN'rY' OF SAN DIEGO, STATE OF CALIFORNIA, J\,CCORD= TO MAP TEEREOF NO. 86;!, FILED IN THE OFFICE OF TIŒ COUNTY RECORDER OF SAN DIEGO C01JNT'i, FEBRw.:RY 7, ~900. EXc:EPTINGTHEREFROM THAT PORTION CONVEYED AS PARCEL 3 IN AMENDED COMPI.AINr IN CONDEMNATION CrvIL NO. 79-0907-N, RECORDED IN THE OFFICE: OF THE C01JN'!Y RECORDER OF SAN'DIEC~ C01JNT'i, JANCJ\,RY ~5. ~980 AS PILE NO. 80-~3765~ OF OFFICIAL RECORDS_ ALSO EXCEP'l'ING TBEREFROM 'l'm\.T PORTION OF SAID IÞr 29 CONVEYED BY SAN DIEGO LAND COMPAF.! TO TIŒ SOl:lT!3ERN. c:AI.UO:!UITA MOUFI'AIN WATBR. COMPl\NY. BY DEED DATBD APRIL ~~, ~9~2 ~ RECORDED JaNE 24, 19~2 IN SOCK 570, PAGE ~~3 OF DEEDS, RECORDS OF SAN DIEGO COtJN'1'Y; 'I'D . PARCELS OF = SO CONVEYED TO SAID WATER COMPANY BEING '!HE S01J'I:E: 492_5 FEET OF THE EAST S06 FEET OF LOT 4 OF SAID OTAY RANCRO AND S'I'!UPS OF LAND WlRYING IN WID'l'R FROM ~OO FEET 'l'O 50 FEET FOLLOWING THE" .LINE OF 'I'D RIG8.T OF WAY OF THE OTAY-SAN DIEGO PIPE LINE AND THE LINE OF. THE RIGHT OF WJcr OF '!HE OTAY-CQRONADO PIPE L:m:B, AS DESCRIEED IN SAID DEED AND SHOWN ON 'PŒ MAPS WHICB ARE A'l"'""rmm 'l'O AND'MllDE A PART OF SAID. INSTRtIMENT. REFl!:!'..ENCE _BEING HERImY.MllDE 'l'O' THE RECORD OF SAID !li5TRt1!ŒN'!' FOR A MORE pnTICULAR DESCRIPTION OF SAID PARon.s. PARCEL 97: LO'l'S 3~, 32, 40 AND 4i, ALL BEING IN 'I'D =Y RANCB SAN BERNARDnro MElUDD\N. IN 'I'D C01JNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO tJNITEDS"l'ATES GOVERNMENT stJI/.VEY 'I'5EREOF, ACCORDING TO MAP TmmEOF NO. 862. FILED IN '= OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY. P'EBR!!ARY 7. ~900. EXC:¡;;Z"L.LÑGTHEREPROM', TIiOSE PORTIONS. CONV'I>YED BY SAN DIEGO'LAND COMPAN'l TO THE SOtJ'I'BERN CALIFO:!UITA MOmITAIN'WATER COMPJ\1iY, BY DEED DATED APRIL ~~. ~9J.2 AND RECORDED J1JlŒ 24.,.~9~2 IN BOOK S70. PAGEU3 OF DEEDS. IŒCORDS OF SAN DIEGO c:auNT.l, THE PARCELS OF LAND SO ·CONVEYED 'l'O SAID WATJ;:R COMPANY BEING THE SOUTH 492.5 'l"BET . OF 'I'D EAST 506 FEET OF toT 4 .OF SAID =Y RANCR AND STRIPS OF LAND vnYDiG IN WIDTH l'ROM:l.OO FEET TO 80 .FEET FOLLOWDiG THE LINE OF .TEE RIG8.T OF 1Q\Y OF .THE QTA'Y-SAN DIEGO PIPE LINE AND THE LINE OF' THE IU= OF WAY OF 'I'D OTAY-CORONADO PIPE LINE, AS DESCRIBED IN SAID DEED = SROWN ON THE MAPS WEICE: ARE A'J:"T"1'.'"""'" ro AND M1\DE A PART OF SAID INS'rRUMENT, REFERENCE BEING ~Y MllDE . TO THE RECORD OF SAID INSTRt!MENT FOR A.MORE PARTICULAR. DESCRIPl'ION OF SAID PARCELS." ALSO EXCEPTING 'I'5EREFROM '!EAT PORTION ·DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTIDlEST COR1ŒR OF I"aACTIONAL SEC'J.'ION ~7, TO'1iNSRI? 18 S01;JTI!, RANGE ~. WEST, SAN BElUlroIDINC MER,ID:u.N,m SAID SAN DIEGO COCINT'l, ACCGRDmG ro LICENSED stJI/.VEYOR'S MAP 'I'BEREOP NO_ 275, A PLAT OF ¡mICE: IS Pn:.ED m THE OFFICE OF THE COUNTY 'RECORDER . OF S~ DIEGO COtJNTY, NOVEMBER 5, :1.926; TEENCE ALONG THE SOtTœERLY LINE OF SAID FRACTION1IL SECTION ~7. SOUTH 88· 55' 00· EAST, A DISTÞ.NCE OF 2;074.03 FEET (2,074.27 PER SAID L:I:=SED SURVl>YOR'S MAP NO.' 27S) TO A PO:rNT ON '= WESTERLY BOCNDARY OF SAID 0'l'JlY RANCE: SAID POm BEING ALSO TEE TR1JE POnrr OF BEGINNING, 'I'!ŒNCE LEAVING SAID SOUTmmLY LINE, NORTE: ~9· 00' 00" WEST, ALŒTG SAID WESTERLY EC=A."I.Y, A DISTANCE OF 2.893.65 FEET (2,893,04 FEET PER SAID LICENSED SURVEYOR'S MAl? NO. 275) TO TI!E !'!CST NORTJ3ERLY NORTHEAST COR."ŒR OF THAT LAND DESCRIEED IN DEED TO THE COUNTY OF SAN DIEGO. RECORDED APRIL :1.6, :L96:;! AS FILE NO_ 643:L5 OF OFFICI,;;L RECORDS, IN nm OFFICE OF THE COtJNTY RECORDER OF SAN leY r-/~/ 1'age 2 DESCRIPTION Order No. 930761.07 DIEGO CQUNT.{; THENCE CONTINUING ALONG SAD) WESTERLY OO'ONDARY NORTH 1.9° 00' 00" WJ::ST, A ,D:ISTANC1> OF 741..41. FEET, _0: LÉAV:ING SAID WESTERLY BOtlNDARY, NORTH 74" 23' 37" EAST, A D:IS'!ANCE OF OF 3,829.24 FEET; 'I'lmNCE SOUTE: 02· 44' 38n EAST, A D:IS~CE OF 2,922.46 FEET; TSENCE SOUTH 59· 39' 21." WEST, A DISTANCE OF 3,064.30 FEET TO THE TRUE PO:INT OF BEGINN:ING. PARCEL 98-1.4, FRACl'IOmu. QUJ\RTER. SECTION 140, ALL OF RANCHO DE LA NM:ION, IN 'I'BE COUNTY OF SAN DIEGO. STATE OF CALIFORNIA', ACCOJIDING TO MAP 'l'REREOF NO_ 1.66. BY MOR1ULI.. FILED :tit THE OFFICE OF TEE COUNTY RECORDER OF SAN DIEGO COUNT\!'. MAY 1.. 1.869_ EXCEPTING THEREFROM '!HAT PORTION TEElŒOF LYING WI'J:'HDf cm:r.r.A VISTA TRACT NO. 96-04 arÞ.:l RANCH _ V:ILLAGE 1. "An MAP NO. 1., :tit THE CITY OF CHULA VISTA. COUNTY OF SAN DIEGO, STATE OF OLIFOmIIA, ACCOJIDING TO MAP THEREOF NO. i35n. FILED IN THE. OFFICE. OF THE COUNTY RECOI!DD. OF SAN DIEGO COUNTY, JONE 24. 1.998. =- PARCEL 1.03; ALL OF FRACT:IONIIL Qt:ti\R.TER SE=ONS 40 AND 65 OF R1INt:HO DE LA }1AC:ION. nr TEE C01JN'tY OP SAN DIEGO, S'IATE OF CALIFOBNIA, ACCORDING TO MAP THl!:REOF NO. 1.66 BY MOIUULIi, YILJ>) IN 'I'HE OFFICE OF THE COUNTY RECORDER. OF SAN DIEGO COUNTY. MAY 1.1.. 1.869. B1uæ-..£NG ~ Tm\.T PORTION OF QtmRTER. SECTJ:ON 40 DESClUBED AS FOLLOWS: SSGINN:ING A:r A POINT ON THE WEST ·I.Dm OF QtmRTER SE=ON 40. lU\NCR0 DE IA NAcrON, wmc:a: IS NOR'l'I! 1.8° SO' WEST :L1.9.4 ~. FROM 'IEE S01JTHHEST C01!NER OF = QUARTER. SECT1:0N 40 AND .RtINInNG; TBEllCE NOR'l'I! 1.8° SO' WEST J.l.9.4 FEET ALONG THE SAm WEST LmB OF SAID ~ SE=ON 40; .THENCB NOR'l'I! 7:L°08' EAST 660.'58 F:EE'I', TESNCE SOCT.a :LBo. 49' EAST 1.1.8.34 FEET; THENCE SOCTH 71.° 02' 30" WEST 660.54 FEET TO TIm POJ:NT OF BEGDmING. ALSO EXCEPTI:NG TBEREFROM = pORTION OF SAID QtmRTER SECTION 40 INCLUDED WI'l'RD! THE BOCNDARIES. OF 'l1!OSE c:s:R'tI\.IN ST!UPS '01." LAND CONVEYED BY SOu H.>=N CAL:IFOIUUA MOtIN'J:ADi WATER COMP;,NY TO SAN D:IEGO LAND AND TOWN COMP;,NY BY DE1>D RECOJIDJ::D IN BOOK 570, PAGE J.l.3 OF DEEDS, SSING A PARCEL OF LAND 20 FEJrr ON TEE NOR'I'HEASTERLY S'IDE OF THE CENTER LmB OF SAID PIPE L:INE AND 80 FEET ON T!Œ soUTBI/ESTERLY S'IDE J.'lŒREOF, :s:s= A W=rE: OF 1.00 FEET BETWEEN :sN'G:rNEœ:R'S STATION 238 FLUS 69_4 AND ENGINEER'S S'!A:r:ION 288 .PLUS 00, ALSO A PARCEl. OF IJIND 25 FEEI' WIDB ON THE EASTERLY S'IDE OF T!1E CEN'I'El!.IoDŒ OF SAID "PIPE :i.DIE Am> 25 FBXl'ON THE WESTERLY S'IDETlmREOF, BED1G A w= OF 50 FEET BETWEEN ImGDIEER'S STATJ:ON 288 PLUS 00 AND ENGINEER'S. S'IATION 297 FLUS 00, ALSO A FAR=' OF LAND 20 FEET ON TEE EASTERLY S'IDE OF" T!1E c:EN'l'ER LDIB OF SAID PIPE L:INE AND 80 FEET ON TEE WESTERLY ,S'IDB TlmREOF. BEING.A w= OF ~!,O FEET BE'I'WEEN'=J:NEER'S STATION 297 AND ENGINEER'S STA:rJ:ON 453 PLUS 42.S, ALL AS SHOWN ON MAP ATTAamD TO EXHIBIT "AU W SAm AGIŒ:EME:NT AND D= RECORDED IN BOOK 570, PAC;¡¡: 1.1.3 OF DEEDS. ALSO .EXCEPTING 'I'HEREFRCM = PORTION OF FRACTIOmu. QUJ\R'I""'.:.R SECTION 40 OF RANGO DE IA NAC:l:ON, DI!SeR-IBm AS FOLLOWS: S'l':ARTING AT = NOR'nolo"EST c:omIER OF QtmRTER SEcr:rON 41., 'l'EENCE 50= :l.9n 00' EAST ALONG'I13:E LINEBETW""..EN QœR= SECTION 41. AND 64. A DISTJ\NC:: OF :1..352.00 FBET TO A POINT; TlŒNCZ 50= 4~' 07'EAST. A DISIANCE OF 92.0 FEET TO = TRUE l'OllIT OF BEG:INNING. BEWG A PDn.--r ON 'I1!E NOR=.sTERLY T "-)oIE OF = J?IPI! L= R:IG!!T OF WAY /%'---- /CcJ Pagc 3 DESCRIPTION Order No. g3076~07 DIŒDED TO THE CITY OF S;.N DIEGO BY nŒ 50= CALIFORNIA M01JN'!AIN WATER CO~J\N:{,1\ND RECORDED m BOOK 5g8 OF "DEEDS: COMMENCmG AT PAGE 54 'mEREOF, WHICH TRUE POINT OF BEGINNmG IS DISTJ>.NT 20 FEET AT lUG:aTAN~ FROM ENGINEER'S S'rA'nON 303 PLUS loG. 5 OF 'I1!E SAID PIPE LINE SURVEY; THENCE sot1TR '49° 07' EAST ON A :t.:tNB PAP."'TT"'T, TO = ~25 raT D:I:5= AT == ANGLES :IN A NOIt'rEEAS'J$!U.Y DIREC1'ION FROM TIŒ CENTER LINE OF TONNEL NO. 4 ON SAID PIPS LINE, A DISTANCE OF i.67G.g~ FEET 'IO A OOmT; 'I'!iE!iCE ctrRVE TO mE RIGa'! ON A RADIUS OF 225 FEET. THROUGH AN ANGLE OF Soo 30' 30", A DIS'!:ANCE OF 1.gS.33 FEET MEASUI'I.ED ALONG THE ARC OF SAID CtJRVE TO A POmT OF REVEl'/.SE CtJR'JE: ~CB CtJRVLNG TO TEE LEFT OF A RADrcs OF 1.75 FEET, THROUGH AN ANGLE OF 44° 56' 20'; A DISTANCE OF 1.37.36 FEET MEASORi!:D ALONG THE iIIlC OF SAID 'CURVE TO.A J?OINT; '!BENCE S01JT!i 46° 25' WEST, A DISTANCE OF 1.1..0 FEET TO A POINT ON THE NOR'I'BEASTERLY BOlJNDAP.Y LINE OF THE PIPE L:tNB ¡UGHT OF 'WAY OF 'I'RE cJ:n OF S1\N DIEGO 1mJ:CIi POINT IS DIS'I1\NT 20 FEET AT ¡u= ANGLES FROM EN'G='S STATION 283 PLUS 30_~7 OF SAID PIPE 'L:tNB SURVEY; TBENCE lILONG' SAID NORnlEASTERLY B01JNDARY LINE OF TEE S:I:DE PIPE LINE RIGHT OF WAY TO TIŒ /I'R.UE !?OINT OF BEGINNDIG, MORE PARTIC1JIJ\!<LY DESClUBED AS FOLLOWS: NORTE: 430 35' WEST, 'A DISTANCE OF 3:1.7 l"IŒT TO A POINT; TI!ENc::E: NORTH 4:1° 40' WEST, A DISTANCE OF 348.27 FEET TO A POINT; THENce C!JRVLNG TO TEE LEFT lUTE A RADIUS OF 306.S4 FEE'l' 'l'1I1'/.OUGB J\N ANGLE OF 7° 27'. A DIS'J:J\NCE OF 3g_9 FEET MEAStJRED ALoNG'TIŒ iIIlC OF THE CtJRVE TO'A PO:INl'; '!BENCE NORTH 4go 07' WEST, A DISTl\N1:S OF 42.0 FEET TO A POINT: '!'HENCE NORTH 40° 53' DST, A DISTANCE OF 5.0 FEET TO A POINT; 'nIENc:e: NORm 49° 07' WEST. A DISTANCE OF .gOO.Q FEET TO A POINT: TIŒNc:e: SOC'l'R 400 53' ìŒST, A DISTANCS OF 5.0 FEET TO A .POINT; TBm!C:E NORTH 49° Q7' WES'!, A DISTANO> OF 1.4:1.:1 FEET TO A POmT: TBENce CTJRvmG TO THE RIGHT ON A RADIUS OF 266.S4 l'JŒT '!BROUGH'J\N J\NGLE OF 1.9° 20', A.DJ:S= OF 90.Q4 FEET MB1ISIJREI) ALONG TE:E iIIlC OF '!BE SAID c:1JRVE TO' A POINT;. 'l'BENc:e: NORm 2 g ° 47' WEST ON A nNGEIIT 'l'O TBE LAST DESCRIBED c:œ.vE, A DISnNce OFJ.28.4 FEET'TO A PoINT; 'I'EENce CtJ:INING'tO TBE LEFT O:N A RADIDS OF 306.84 FBS'l' THROUGH AN ANGLE OF 9° 3Q', A DISTANCE OF 50;8S FEE'! MRASt:IRED loLONG TBE AP.C OF SAm"C1JRIIETO A ·poDtt; ''l'EENCE NOR'rÐ: 390 1.7' WEST ON A 'tANGENT TO 'I'!!E LAS'! DSSClUBED cURvE. A DIS'tANCEOF 202.g FEET TO 'TIlE TRUE POINT OF BEGINNING. AIoSO EXCEFl'ING TBEREFROM TIm EAST ~ OF '!BE NOR'l'BEAST ~TER OF FI1ACTIONAL Q1JAl!.TER SECTJ:O:N 65, ALSO nlAT PORTION OF SAID FRA=ONAL Q1J2\I!.'IER SECTION 65, DESClUBED AS FOLLOWS:' BEGINNING AT 'TIlE SOUTHIIEST CORNER OF SAID Qt!IUI.':rER SECT'ION 65, RUNNll'tõ THENCE NORTH .1S~ 51' WEST J.,568.7 FJŒTloLONG THE WESTJœLY LINE OF SAID' QtmRTER SECTION 65 TO TBE :NORTmŒST CORNER '!HERBOF: THEliCE IiORTE: 7J.° .4J.' ·DST J.,320.7 F!!ET, MCI'/.E OR LESS, ALONG TIm ANLY :r.:tNB OF SAID QtDlRTEi'/. SE=ON 65 TO TEE NORTHEAST COI<NER OF THE'WEST HALF OF SAID Q1JJ\RTER SECTION 65; T1tSNCE SO'O"l'H lSo 57'EAST J.,563.5 FEET ALONG TEE EASTERLY LINE OF SAID WEST m\LF OF QœRTER SECTION .65 TO 'I'BE SOUTHEAST CORNER OF SAID WEST HALF OF SAID Q1J1I1<= S:ëOCTION 65; 'I'!iE!iCE S01JT!i n° 00' WEST ~,323.4 FEET N:.ONG THE sAID SOtrI'EERLY LINE OF RANCliO DE LA NACION TO TBE"OOINT OF BEGINNING. ALSO EXCEPTING TBAT pORTION DES=BED AS FOLLOWS: BEGIN:NING AT T!!E NOItm QtmRTER CORNER OF Q1J1\RTER SECTION 65 AND RUNNING THENCE :NORm no J.4' EAST 660_65 FEET ALONG 'I'BE NORTH LINE 01' SAID QtmRTER SECTION 65; THENCE SOUTH 1.8° 53' ~Q. ~~T 660 .-~; THENCE SOUTH 71.° 14' WEST 659_87 FEET TO THE WEST LDIE OF T"rlE EAST EI\LF OF SAID Q1JA..'t= SE=ON 65; THENC::: NORTE: lSo 57' WEST 660 FEE'! ALONG TEE'SAID "'''EST LINE OF = EAST H.'>LF OF QUAR= SECT!ON 65 TO T!!E POINT OF BEGINNING. /¿(r-/c5 Page 4 Order No_ 9307G~07 DESCRIPTION ALSO EXCEPTING 'mEREFROM THAT PORTION DESåuBED AS FOLLOWS: :6EGnmING AT ".I'BB SOtn'BEAST CORNER. OF QU-~ER SECT1:0N 65 AND R'"ONN'nlG TEEN'CJt SOtJ"l'Y 71.0 00' 1ŒST 65S.80 FEET ALONG 'l'EE SOUTH LINE OF SJ\.J:D RANCI!O DE LA NACION; THENCE NORT.a 180 53' 30. WEST 24~_1.5 FEET; 'l'BENCE NORTH 71° l4' EAST 659.09 FEET TO THE ~T L= OF QmlRTER' SECTION 65; '!!ŒNCR SOur.e:·l8° 50' EAST 238.80 FEET ALONG '!HE SAID EAST LlEE OF QU1'.R= SECrION 65 TO TIm pOINT OF BEGINNING. EXCJ>YïING THEREFROM 'I'BJ',X pORTION T!Œl1EOF LYING WIT:!IÌN c:atJIA VISTA TRACT NO_ 96'-04 =- RlINCH - VILLAGE 1: "AO MAP 00_ ~, IN THE CITY OF G!tJLA VISTA. C01JNTY OF SAN DIEGO, S= OF CALIFORNIA. ACCORDniG TO MAP T!Œl1EOF NO. 1.3592. FILED IN TEE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, .:roNE 24. 1998_ PARCEL ~09: ALL OF FRACTIONJ\L Q~'I'BR SECTION 39 OF RANCE:O DE LA NACION, IN TEE COmITY OF SAN DIEGO. STA'rE OF CALIFORNIA. ACCORDING TO MAP TEEREOF NO. 1.66 BY MORIULL. . FILED IN 'l'EE OFFICE OF T.BE COUNTY RECORDER OF SAN DIEGO COCN'I'Y. EXCEPTING THEREFROM '1'!3:0SE PORTIONS CONVE'lED BY SAN DIEGO LAND COMPANY TO TEE SOtrIXE:RN CALJ:FORNIA HQtJlITAIN WATER COMPANY, BY DImD DA:Œ]) N1RIL P. 1.91.2 AND RECORDED JUNE 24.. 193,2, IN BOOK 570, PAGE ~J.3 OF DEEDS. iŒCOlIDS OF SAN DIEGO COtINTY; 'l'EE PARCELS OF = SO CONV1i::ŒD TO SAID ~TER COM!?ANY BEING THE SOUTH 492 _5 FEEt OF THE EAST 506 FEET OF LOT 4 OF SAID =- RANCH AND' STRIPS OF IJ\ND VJ>.RYING IN W'IDTH FROM 100 FImT· TO 80 n;:!!:T FOLLOWDlG TEE LINE OF THE Rr= OF WAY OF THE OTAY-SiIN DIEGO PIPE LINE·1>N!) THE L= OF TIm RIGBT OF WAY OF TEE O'l'AY -coRONADO PIPE L=. AS DESCRIBED IN SAID DEED AND . SliOHN . ON 'mE MAPS WHICH Al!.E . ATTACBED TO AND MADE A PM'! OF SAID INSTR'CMENT, REFERENCE BEING :BEREBY' MADE .TO '!'BE iŒCORD OP SAID INSTRt!MENT FOR A MORE PMTJ:c:uI.:I\R DESCIl:IPTION OF SUD PARCELS . EXCEP'rDlG 'I'BXREFROM TEAT pORTION T!Œl1EOF LY!NG mT1UN c::a:oLA VISTA TRACT NO. 96-04 O'rAy RANC!i - VILLAGE J. "A" MAP NO_ J., IN TEE CITY OP CHOIA VISTA. C01JNTY OF SiIN DIEGO, STA'rE OF CALIPOWJ:A, ACCORD~'TO MAP T!Œl1EOP NO. 13592,. FJ:LED IN T.BE OFFICE OF T.BE COUNTY iŒCORDER OF sm DIEGO COtJNTY. JUNE 24.. ~99S. Jg--r /&1 Page 1 Order No: 93076107 U54 SCHEDUlE B Your Ref: v:rLLAGE 2 At the date hereof exceptions to ~ ÍI1 addirion to the printed E=ptions and E:tdusians ÍI1 the policy form "....;gr'~'~d on the face page of this Report. would be as fo\lcm¡: " 1. PROPERTY TAXES, INCLUDING ANY ASSSSSMBN!S cOLLECTED WI'I'H TAXES, TO BE LEVIED POR THE FISCAL YE1.R 1.999-2000 TEAT ARE A LIEN NOT YB'l' DUE. Il 2. l'ROPER'r'l TAXES, INCLUDING J\NY PERSON7U. PROP1!Rn' '!:AXES AND ANY ASSESSMENTS COLLECTED WITH TA1ŒS, FOR THE FISCAL Yi:AR. :1.998-1999 :1.ST INSTALLMENT: 2ND INSTALLMENT: PENALTY 2\ND COST: HOMEOWNERS EXEMPTION: CODE ~: AsSESSl'WI'I' NO: AFFECTS; PARCEL 2. $13,039.58 (PAID) $13,039.S8 $:1.,313.96 (DOE AFTER APRIL :1.0) i?NONE 01262 643-060-04-00 I PROPERTY TAXES, INCLUDING Mri: PE:i1S0NAL PROPERTY T1IXES AND ANY ASSESSMEN'!S COLLECTED WITH TAXES, FOR = FISCAL Yi:AR. :1.998-:1.999 :1.ST INST1\LUŒN'l": 2ND . INSTALLMENT: PJõ:N2U,TY AND COST; !roMEOWNERS ,~ON; CODEAIŒA: ASSESSMENT NO; i?:l.S,112.42 (PAID) $lS,1:1.2.42 '$3.,S21.24 (DUE AFm:R APRIL 10) $NONE 0:1.262 644-030-01-00 c AFFECTS A PORTION OF PARCEL 97_ D PROPERTY TAXES. INCLUDING ANY PE:i1S0NAL PROPERTY TAXES r.ND J\NY ASSESSMENTS COLLBCTED WI'IR TAXES, FOR THE FISCAL YEAR 1998-19·99 1ST INSTALLMENT ; 2ND INSTI\LI.MENT; PENALTY 2\ND COST: HOMEOWNERS EXEMl'TION ; CODE AREA: ASSESSMENT NO: $3.2,423.26 (PAID)· $3.2,423.26 $1,252_33 (DOE APTER APRIL 10) $NONE 01262 644-030-06-00 AFFECTS: A PORTION OF PARCEL 97_ E PROPERTY TAXES. INCLUDING ANY PERSONAL PROPERTY TAXES J\ND ANY ASSESSMENTS PÆB -1Q¡=1,....n. /6 r-/¿/5' Page 2 Ordc:rNo: 93076J.07 1:1'54 SCHEDULE B (continued) . YonrRef: VILLAGE 2 COu.E= WITH TAXES, PO!> TEE 'ISCAL YEAR. J.998-J.999 J.ST INSTALLMEN'I': 2ND INSTALLMENT: PENALTY AND COST: HOMEOWNERS EXEMPTION: CODE AREA: . ASSESSMENT NO: $11,60J..25 (PAID) $11,GOJ..25 $J.,J.70.J.2 (~~ AFTER APRIL J.O) . $NONE . Oi262 G4J.-070-0J.-00 A..~CTS: A PORTION OF PARCEL 103 AND = LAND. T PROPERTY TAXES, INCL1J'DING. I\N'i PERSOm>.L PROPERTY TAXES AND AN'! ASSESSMENTS COLLBCTED WITH 'croXSS. FOR THE FISCAL YEAR J.998-J.999 J.ST INS~: 2ND ÍNSTALLMENT: PENALTY AND COST: HOIŒOWNERS EXEMPTION : CODE AREA: ASSBSSlŒNT NO: $2,3G5.J.9 (pAID) $2,365.J.9 $246.51 (DOE AFTER APRIL 10) $NCNB 012G2 64J.,-OGO-06-00 AFFECTS: APQ1I.TION OF PARCEL J.03 AND OTHER LAND. G I'RQPERTY =S, INCL\JDING' JINY. PERSONAL PROPERTY TAXES AND ANY ASSESSMENTS COLLECTED W!:TH TAXES, FOR. THE FISCAL YEAR J..998-19.99 J.ST INS'l'J\LLMBNT: 2ND INsTALLMENT: . pJi:NALTY AND COST: HOMEOWNERS. , EXli:MPTION: CODE AREA: ASSESSMENT NO: $J., 073.62 (>'AJ:D) $1,073.62 $107.3G (PUE AFTER APRIL 10) $NONE 0J.260 64J.-060-04-00 AFFECTS: A I'ORTION OF PARCEL 103. J 3 _ THE LIEN' OF S!JPP~ ()R ESC1\PED ASSESSMENTS OF PROPERTY v,xES. IF ANY, MAPE PURstJJ>.NT 'to TEE PROVISIONS OF >'ART 0_5, CHAPTER 3.5 OJ;< PART 2, CB:1\PTER 3, ARTICLES 3 AND 4 IœS>'E=Y (CQMMENC= wrm.SECTION 75) O' 'rBE ImVENUE AND TAXATION CODE OF 'I'BE STATE OF CALIFOmuA AS A ~StJLT OF TEE TRANSF2R OF TI'l'LE TO THE .VESTEE N1!MED IN S=ü:t.B A; OR AS A RES'CLT OF ~GES IN oWNB:RSE:IP OR NEW CONSTR1:I'CTION OCCURRING PRIOR TO PATE OF ]?OLleY- J( 4. EASEMENT FOR ROAD PURPOSES 'to CE1\1U.ES STERLING AND JUDSON I< KA'IXERINE IL """,-"",=¡z>n- /g-~/(Jþ Page 3 SCE1IDULE B (continued) , Orde:rNo: 93076107 U54 Your Ref: VILLAGE 2 =SON, IŒCOBDED AP1UL 21., 1.922 m BOOK 816, ?1IGE 265011 DEEDS, OVER THE ROADWIY TEEN EXISTD;G FROM TELEGRAPH aNYON ROM) IN QUARTER SEC'!'rON 41 'l'HROtIGS: SAID Q'C1\RTER SBCTION AND SECTIONS 38 AND 39 lCNOiìN AS LOWER OTAY ROJ\D AND AFFECTI1lG PARCEL 109. L s. RrGHTS OF THE PtJBLJ:C ~. AND 'I'O ANY PORTrON OF 'I'I:IE 1!EREIN DESCRIBED PROPERTY LYntG WITHm ROADS, ST!œETS OR EJ:Gmi1IYS. AFFECTS ALL PARCELS . l'f ,.. AN EASEMENT FOR THE ~ SHOiìN BELOW AND RIGHTS INCIDE1<"'!J\L THERETO AS SET . FOR'l'Ð: IN A DQC!JME1IT RECORDED : AFFECTS: CIT.! OF SAN DIEGO - iIA:rBR PIPELIlŒS AND TRØCB: AND EXCAVATION SLOPES AND ~TllIG OF EXCESS EXCAVATED MATERIALS .roLY 14, J.S23 IN BOOK ~37, PAGES 460 AND 463 OF DEEDS TIlE ROUTE AFFECTS A PORTION OF SAID PARCELS ~7 AND 10~ AS HORE FOLLY DESCRIBED IN SAID DOCDMENT GRAN'rEDTO: l'tIRPOSE : . 1J 7. AN EASEIŒN'l' FOR 'IRE PtJ1æQSE SHOWN BEU:)W AND RIGIn'S INCIDENTAL TEERE'1'O AS S'E'l' PORT.!! IN A DOCCMENT GRAN'rED TO: PIJRPOSE: c:rTY OF SJ\J!l DIEGO 1O.TER PIPELDlES, ROADS AND SPOIL BAlUG, TREIlCB: AND EXCAVATION SIDPES = IõASTING OF EX=S EXCA-== MA'I'BRDILS .roLY 14, 1930 IN BOOK 1762, APGE 207 OF DEEDS mE ROUTE AFFECTS A PORTION OF SAID: PARCELS 2, 97 AND 10~. RECORDED : AFFECTS: " 8. AN EASEIŒN:l' FOR THE ptJ1æQSE SI!OiìN BEU:)W AND RIGFrS INCIDI!:NTAL THERETO AS SET. FORT.!! . IN'A DOCCMEN'I' AFFECTS: SAN DIEGO GAS AND ELECTRIC COMPANY EI'lmR OR BOTH POLE LINES, UNDERGROUND CONDUITS A= 12, 1.936 IN BOOK 538, PAGE 374 OF OFFICIAL RECORDS LOTS 2S, 30, 31 AND 32 PER MAP 862 , BEING PORTIONS OF PARCELS 2 AND ~7 GRA1ITED TO: l'tIRPOSE: . RECORDED : p 9 _ AN EASEMENT FOR THE PURPOSE SEOWN BELOW AFt) R!:G!i'l'S INCIDENTAL TEER...""!O AS SET FORTH IN A =C1:JMImT - ~f'ZJf"S'2*. /8 r1tl7 Pag(' 4 SCHEDULE B (continued) . Your Rd': VILLAGE 2 Order No: :>3076107 tl54 AFF.BCTS: C~TY OF SAN DXEGO THE RIGHT TO LOCATE. lŒLOCATE, CONSTRtlCT. RECONSTRtlCT, =ADI', oPERATE cAN!) REPAIR Ä CATBODIC PROTECTION STATION OR S'!ATIONS JJ\NW\II.Y 1.1., 1.957 m BOOK 641.4, PAGE 239 OF OFFICIAL RE:CORDS TEE' ROUTE AP'¡¡'ECTS A PORTION OF SAID PARCEL 97_ GRANTED oro: PURPOSE: l<ECORDED : p J.O. AN 2ASEMEN'l' FOR. THE 'P1JRJ1OSE SHom; BELOW AND RI=S mCIDENTAL =0 AS SET FORTH m A DOCtJIŒN"! AFF.BCTS: SAN DIEGO GAS AND m..EC'IRIC COMPANY ÉrrHE:i1. OR 50'l'R POLE LINES, 1JNDERGROUND CONDUITS ~GuST 16, J.957 m BOOK 6710, PAGE 545 OF OFFICIAL RECORDS TEE ROUT!! AP?ECTS A pORTION OF SAID PARCELS 2 AND 97. Gl!AN'l'ED TO: PURPOSE: . RECORDED : R 1.1.. AN ~ FOR THE PtIRPOSE SHOiiN5SLOW AND RIGHTS INCID:E:NTAL 'I'!ŒRETO AS SET roRTH .m A DOC1JMEN'1' GRANTED TO:' PURPOSE: RECORDED : Al"FECTS : SAN DIEGO GAS AND !!I.EC'IRIC COMPANY EI'I'BER OR 5= POLE LINES, UNDERGROUND CONDUITS JtJNE 3, 1.963 AS FILE NO_ 95990 OF OI'FICDU. RECORDS TEE .ROUTE AE'l'BC'1'S A PORTION OF SAID PARCELS 2 AND 97_ s 1.2. PIi1U'E'l'tnILEASEMmITS AND RIGEïrS-OF-Wlcr TO LOCATE, CONSTRtlCT, OPERATI> , MAnn'AIN. AND REPJcrR '.A ROAD'iiAY AND 1JTJ:LI= LINES, 'l'-"""'.U1J'''' WITH TEE RIGHI' TO TRIM CtIT,PELL.AND REMOVE TK!i:RBJmOM ALI.'T!ŒES, UND¡¡:¡¡:¡!RUSE:, OBSTRU=ONS, AND ANY OTBE:I< VEGlnATIoN, STRUC'1'tJlIES. OR OBS'!ACI.ES W:¡:TE:J:N = LIMITS OF TEE RIGEïr .OF W1I.Y, AND INCIDENTAL PURPOSES IN FAVOR OF '!:HE == ST=S OF »Œ:R.J:CA.AS 'ACQU:æEDTHROUGE! DECLARATION OF TAKINGS :i!ECORDED APRIL 23. 1.980 AS FILE NO. 80-J.3765J. AND APRIL 27, J.982 AS FILE NO. 82-J.201.68, BOTH OF . 0l'FIC'J:AL RECORDS, :LOCATED WI'1'RIN 'IBOSE PORTIONS OF TIlE !JÉREm DESClUBED PROPER.TY AS· SET I'ORTH IN SAID mSTR1JMENTs. REFERENCE IS o\DE TO. SAID DOCCMENT FOR FULL PART~=. T AFFECTS: PARCELS 2 AND 97. ~ 1.3. AN BASEMENT FOR'THE PURPOSE 5ROiiN BELOW AND RIGHTS' mCID:E:NTAL THERETO AS SET FOR'IE IN A DOctJIŒNT GRANTED TO: PtJRPQSE: 1ŒCORDED : TItS PACIl'IC TELEPBONE " TELEGRAPE. COMPANY Err:s::ER OR BOTE: l'OLE LINE, UNDERGROUND CONDUITS JUNE J.4, J.982 AS FILE NO. 82-1.81.896 OF OFFICIAL RECORDS ~"'~/Z)/ø:JÞk )S-~/¿Jg-- 1'age 5 sCHEPULE B (continued) . Yo'tIrRef: VILLAGE 2 Orde:rNo: 93076107 1:154 AFFS=S, THE ROUTE TBE!ŒOP AFFE=S A pORT1:0N of SAID LAND J\ND IS MO~ FOLLY PESCRJ:BED IN SAJ:P POCtJMEN'l'- AFFECTS: TEE ROUTE AFFECTS A PORTION OF SAJ:P PARe:¡;¡¡. 2. v . 14. A CERTJ:FICATE OF COMPLD\NCE AFFIõCTING THE HEREm PESCRIBED PROPERTY WAS lUtCORDED Þ.PlUL 28, 198~ AS FILE NO. 83-138907 OF OFFIC= ~CORDS. IŒFERENC5 IS Ml\DE TO SAID DOCCMEN'l' FOR FtJLL PARTICULARS. AFFECTS., PARCELS 2, 97, 98_14 AND 109. " 15. AN BASmœN'l' :FOR INGRESS = EGRESS AND mCJ:DENTAL Pœ<r05ES :m FAVOR OF UNJ:'l'ED ENTERPRISES, LTD., A CALIFORNIA LIMrIED PAATNERSBIP, RECORD¡¡:]) NOVEMBER 4, 1988 AS FJ:LE NO. 88-567316 OF OFFICDIL RECORPS_ T!Œ ROUTE OR LOCATION CANNOT BE DETERMJ:NED FROM SAID :mS=1JMENT. AFFECTS, PARCEL 97. . % 16. TEE FAc:T:· TEAT SAID LAND LIES ....I.'.1'...u:¡ T.EE TERRITORY FOR FtJ'l'Cl!.E=ION TO COMMCNTY FAc::rLITIES - PISTRIcr NO.5. AS DISCLOSED BY mSTRUMEN'I' RECORDED DECÐ!EER 29. 1992 AS FILE NO. 1992-0832751 OF OFFICIAL '~CORPS_ r 17. AN AGREEMEN'l'. AND TEE TERMS J\ND CONDITIONS AS Co:NTAJ:NED 'J::!!EREm REGARDDIG , OCTOBER 28, 1993 TEE CITY OF CR1JLAVIS'l'A, A CBAR'I'DED MUNICIPAL COR1?ORATION AND TEE COUNTY OF SAN Dn:GO. A POLITICAL S=J:V'J:SION OF T.EE State of California AND WAY VISTA ASSOCIA'IES. a Califor%Û.a Limited Partnership FEBRUARY 7, 1994 AS F~ NO. 1994-0084743 OF OFFICIAL RECOlWS INDBHNIFICATION. IMPLEMENTATION OF MJ:T1:GATION MEAS'ClŒS. AND PAYMENT OF è:ERTAIN. FEES m CONNECTION mm TBE APPROVAL OF TBE GENERAL PUoN »ŒNDMENT. GENERAL AND OTHER DBV1>LOPM!šNT PLANS FOR TEE OTAY RANCI! DATED: BY AND 1>...1"....,....."., RECORDED . REFERENCE IS MADE TO SAID OOCCMEN'I' FOR FtJLL PARTICULARS- . 18. THE FACT TEAT SAID LAND LIES WITHIN THE: B01JNDAAY MAP 'COMMCNITY FACILITIES DISTRICT NO_ :I. ANNEXA:I'ION NO. 2 (CR1JLA VISTA ELEMENTAAY SC:S:OOL DISTRICT) . AS DISCLOSED BY INTRtIMEN'l' RECORDED SEPTEMBER 20. 1994 AS FILE NO. 1994-0559277 OF OFFICIAL RECORDS_ Yo ~CTS: PARCEL 2 AND 97. . PRaJMB::;..d('ZJ¡s:sÞIc /g--//() 9 Page 6 SCHEDULE B (continued) . YcurRef: VILLAGE 2 Orde:rNo: 93076:1.07 US4 AS 19. = EASEMENT FOR 'I';Œ PURPOSE SHOWN BELOW AND RIGliTS mCIDEN'IAL '!HERETO AS sET FORm IN A J:)OCIJMEN'r . AFFECTS: TIlE COtINT'í OF S1IN DrBGO LANDF:J:LL NUISSANCE 1?1JlI.P0SES MARCH 17, 1997 AS FILE NO. :1.997-0118928 OF OFFICIAL RECORDS T!!E ROUTE AFnCTS A PORTIoN OF S1úD PARCEL 97 GRANTED TO: PiJRPOSE: RECORDED : MI 20. A DOCDMEN'I' ENTIn.ED "RESTATED AND »Œ:NDED PRE-ANNBXM::J:oN DEVELOPMENT J\GREE!o\ENT WITB OTAY RANC!I, L.P.", DATED MARCH 4,1997 EXECt1TED BY C:J:TY OF = VISTA AND T!Œ OTAY R)\NC!i, L.!?, A OL:J:FOlUnA LIMITED .PA11.nŒRSS::J:P, SCBJECT TO ALL T.I!E 'I'E1<MS, PROVISIONS AND 'CQND:J:T:J:ONS TIlEREIN CON'!ArnED, RECORDED.wcr 12, 1997 AS.' FILE NO. 1997-.02:1.9970 OF OFF:J:CIAL RECOM)S_ "" 21. 1:INRECORDED LEASES DATED ~Y :1., 13!17. EIS'rWEEN.],MERICAN 1Œ:t.P CORPORATION AND O'!AY RJ\NCIi, L.P., AND DA':rED MARœ 14, 1390> BETWEEN Pun. & HEATHER REEmGANS &, OTAY RANCH, L.P., AS DISCLOSED TO 'IBB COMPANY m wRITING. AS 'IBB PRESENT. ~P Ol" 'IBB LEASEHOLD. C1mATED TN SJUD LEASE· AND Q'IHER MATTERS AFFECTING TEE nrrmœST OF 'IBB LESSEE ARE NOT snoWN m;:¡mIN. ;IF AMERICAN 1ŒLP CORPORAT:J:ON I£ASE AFFEC'æS:, PARCELS 2 AND 97 . PRIL &, BEAT!J:ER RBEINGloNS LEASE 2\FFEC'l'S:' PARCELS 2, 97, 98-14, AND 103 .IG 22. A DOi:tIMENT ENT:rTI.ED "DETENTION BASIN AND SII.T.1\.T:J:ON AGREJ!MENT", DATED AUGUST :1.2,' 1997 BXEC1J'1'ED BY cn:AY 1(ANCE:, L.P., A CALJ:FotmIA LnnTED PAR'J:NERSH:J:P AND TEE CrrY OF C!ItiLA VISTA, A CALIFORNIA MON:I:C:J:PAL C:Ol!l'O!!1crION, SUBJECT TO ALL TIlE TERMS, PROVIS:J:ONS AND CONDrr:J:ONS ':J:HEIŒm cONTAINED, RECORDED SEPTEMSER 26, 1997 AS FILE NO. 1997-0477304 OF OFF:rCIAL RECORDS. A!I A PIR5TAMENDMENT TO DETENSION BASIN AND SILTATION l>GP.EJiMEN'I". RECORDED ~Y :1.7, 1998 AS FILE NO. 1998-00793i40F OFFICIAL RECORDS- AI 23 _ A PENDDTG ASSESSMENT FOR T!!E DISTRIC'æ SOOWN BELOW. "iJŒN NOT:rCE OF THE ASSESSMENT IS RECORDED W1:TB TEE COUNTY RECORDER T!!E ASSESSMEN'I' sHALL BECOME A LIEN ON SAID· LAND . D:rSTRIC'æ: DISCLOSED BY: RECORDED : ASSESSMENT D:J:STRICT NO. 97-2' (OTAY RANCH/VILLAGE ONE) AsSESSME:N1' DISTRICT DIAGroIM FEBR~Y 12, 1998 AS FILE NO. 1998-0075439 OF OFFICIAL RECORDS "" NOTICE OF ASSESSMENT, RECORDED FEßR~Y12, :1.998 AS FILE NO. 1998-0075440 PRe.IM~fZJ,/93bIr. /g--~//t? Pag~ 7 S~ULE B . (continued) . Y~R~f: VILLAG¡;; 2 Order No: 5j3076107 US4 011 OFFICIAL RECO¡1DS. AX 24. A DOCDMENT EN'fl'I'LED "AFFQ¡1DABLB HOUSING AGREEMENT", DATED DECEMBER :1.6, 1997 BXECOTE:D BY O'I'AY PRo.JECT LLC, A DBLAWÞJŒ LIMITED LIABILITY COMPANY AND sO'C'I:E BAY PROJECT, LLC, A D~ LIMITED LIABILITY COMPANY, AND THE CITY OF CHiJLA VISTA, A CALIFORNIA MCN:I:C'IPAL CORPORATION, SUB.JEC'l' TO ALL THE 'J$RMS, PROVJ:SIONS AND CONDITIONS 'mEREIN CQNTAI1<ED, RECORDED FEBRUARY 17, 1998 AS FILE NO_ 1998-0079313 OF OFFICIAL RECORDS_ AL 25. A NOTICE OF SPECIAL '!AX LIEN PORSUJ\NT TO SECTIONS 3114.5 01.' THE STlŒE'J:S J\ND HI~Y CODE 1\ND SECTION 53328_3 OF THE GQV!!:RNMENT CODE II".POSING A comINUING LIEN'. EXECO'l'IID BY: AMOUNT : DATED : . ¡¡>œPOSE: . RECORDED : SEc:;tI.E'I'AAY CB:tJIJl VISTA Et.EME:NTAAY SCHOOL DISTRICT NO 1,MOUNT IS SHOWN :rn SAID NÒTICE SEPTEMBER :I., 1998 TO PAY FOR CER:rAJ:N PUBL:IC CAP:ITAL FAC:IL:IT:IES sEPTEMBER.:l.5, 15jS8 AS FILE NO. :l.95j8-0S84273 OF OFfiCIAL RECORDS A1!! AFFECTS: PAACELS 98-14; 103 AND 109_ AN 26. ANY R:IGR'I', TITLE, CLAD! OJ!.mrEREST OF TBE RO~ CATROL:IC DIOCESE OF SAN D:I:EGO BY !!EASON OF MA'1"l'ØS D:ISCWSED TO 'l'1ITS COMPANY IN WRITING_ AFFECTS ALL PARCEI.S-. AD 27. ANY FACTS, R:IGR'I'S, IN'l'!æESTS' OR cr.AIMS WEICH ARE NOT SHOWN BY THE ]?1JBLIC RECORDS BUT mnœc:otJLD BE ASCEJ!.= BY AN INSPECTION OF THE LAND OR w:e:IC:::S: MAY BE ASSERTED BY' PSRSONS IN POSSESSION TBEREOF; AND PUBLIC =LITY' EASEMEN'IS OR CLADIS nmREOF, 1I1llCE: ARE NOT SHOWN BY THE PUBLIC RECO¡¡I)S; AND DISCIŒJ?ANCIES, CONFLICTS :IN BOUNDARY LniES, SHORTAGE IN JIREJ', ENCROAC!!MENTS, OR ANY Q'I'BER.'FACTS maCE: A CORRECT S1JRVEY . WoULD DISCLOSE, AND WEICE: ARE NOT SROWN BY· 'µõB PUBLIC RJi:CORDS. AP 28. THE EFFECT' OF THE INTERcOMI?ANY AGREEMENT BETWEEN BALDWIN :aU'ILDE!<5 AND/OR BALDWIN BtTILDING CONTRACTORS AND OTHER RELATED EN'!=ES. AFFECTS ALL PARCELS. A(2 END OF sCHEDULE B AR NOTE NO.' :1.: YOUR oPEN ORDER REQUEST INDICATES T1!AT A LIMITED LIABILITY COMPANY = BE ACQUIRING, ENCüMBERING OR cONVEYING IŒAL PROPE-"-= IN YO= TRANSACT:I:ON. tJNDEI!. THE PROVISIONS OF "'!'BE CALIPtJRNIA LIMITED LIAE:IL:ITY ACT. EFFECTIVE SEP'I'EMBER 30, 15j94" THE FOLLOWING W:I:LL BE REQ1JTR..."t>: """"'""""""".,.. /ž-//) Page 8 Order No: 93076107 US4 scHEDULE B (continued) . Your Ref: VILI.AGE 2 1. .A COPY OF THE ARTICLES OF ORGANIZATION (AND ALL AMENDMENTS, IF 1IN"f) THAT HAS BEEN FILED WITH THE SEClI.E'TARY OF STATE. .2. TIm 1ŒQUIREMEN'I' THAT 'mIS COMPANY BE PROVIDED WITH A COpy OF TEE OPEl<ATDI'G AGIŒSMENT. THE COpy PROVIDED MOST BE CERTIFIED BY THE ~!?ROP!UATE MANAGER OR KEMBER 'l'HAT IT IS A COpy OF THE CURRENT OPERATING AGiŒEI'ŒNT . 3. IF THE L=n:P LIASIUTY COMPANY IS MEHBER-MAW>.GBD THEN THIS COMPANY MUST BE PROVIDED w:tTH A CtrRRENT LIST OF THE KEMBER mMES. lIS NO'l'2 ·NO. 2: SUPPLEl'lENTJ\L OR ESCAPED TAXES FOR THE FISCAL YEAR 1998-1999, ~SBSSED PURSmINT TO THE PROVJ:SIONS OF c:E:AI?TER 3.5 (COMMENCING WITH SECTION 75) OF THE Rxvmrtm AND T~IO!l CODE OF nœ: STATE OF CALIFORNIA. 1ST mSTALI.MDI'I: 2ND msTALUœNT: CODE AREA:' ~SBSS!ŒN'r NO.: $5,679_87 (PAID) $5,679.67 (PAID) 01262 679-466-63-07 AFFECTS: A PORTION OF PJlRCEL 103, AND OTHER LAI:ID. AN S1JPPLBMENT~..·OR ESCAPED 'l'AXES FOR THE FISCAL Y'EAR 1996-1999, ASSESSED P1JRStJJIm TO TBE PROVISIONS OF eHAP'rER 3.5 (CQMMBNCD'IG WI'IH SEcrION 75) OF THE IŒV'BN1JE AND TAXA')!ION CODE OF THE STATE O'l? C:=IFPIUUA· 1ST INS'l'ALLMENT: 2ND msTALLMEN'I': CODE AREA: ASSBSS!ŒN'l' NO. : $930.57 (PAID) $930.57 (PAID) 01262 679-466-62-97 AFFEcrS: À PORTION OF PJlRCEL 103, = = LAI:ID. AX SUPPLEMENTAL OR ESCAPs:DTAXES FOR TEE FISCAL 'n:AR 1998-:1.999, ~SES= ~. TO.TBE PROVISIONS OF œAPTER 3 _5 (COMMENCING WlTH SECTJ:ON 75) OF THE REVENUE AND TAXATION CODB OF THE STATE. OF CALIFOIUTIA. 1ST mSTALLMENT: 2ND mSTALLMENT: CODE AREA: ASSESSMBNT NO.: $142.51 (PAID) :;>142.51 (..AID) 01260 679-466-62-87 AFFEcrS: A PORTION OF J?JlRC"..L 103, AND = LAND. M SUi'PLEMEN'I'1>L OR ESCAPED =S FCR = FISCAL YEAR 1996-1999. ASSESSED = TO '!'HE PROVISIONS OF c:!!AI'T!!:R 3.5 (COMMENCING WlTE: SEcrICN 75) OF P'FIJ3jMec;.g,/:Z:S~ /J>'--- / /~ Page 9 sCHEDULE B (continued) YourRd: VIl.lAGE 2 Order No: 93076107 U54 THE R.E:VEN1JE ~ TAXATION CODS OF -nœ STATE OF (;\¡.IFORNIA. J.ST INSTALLMENT: 2ND msTALLI'ŒNT: CODE AREA: ASSESSMENT NO. : $6.857.76 (PAID) $6,857_76 (PAID) 01262 879-466-83-17 AFFECTS: A PORTION OF PARCEL J.09, AND OTHER LAND. JIZ NOTE NO.3: PROPERTY' TAXES FOR -nœ FIS(;\¡. YEAR SHOWN BELOW ARE PAID - FOR. INFOBMATJ:ON P1JIU'OSES THE »IO=S A.<¡S: FISCAL YEAR: J.ST INS'IALLMEN"I': 2ND mSTJ\LLMENT: EXEMPTION : CODE AREA: ASSESSMENT NO: 1998-19951 $13,648 _ 86 $13,648.86 $NONB ·01262 642-090-0J.-00 AFFECTS: pJ>.RCEL 98-J.4 ~ QTIŒ!!. LJ\ND_ SA P!!.0l'ERT'l TI\XES FOR. THE "FIS(;\¡' ~ SHOWN BELOW ARE PAID_ FOR INFORMATION PURPOSES THE AM01JN'l'S ARE: FISCAL "!EAR: 1ST INSTALLMEIIT: 2ND. INsTALLl'\EI:IT: EXEMPTION: CODE AREA: 1\SS¡¡:SSI;!ENT NO: J.998-'1999 $13,Q76_751 $13,076.79 $NON'S: 01262 641-080-01.-00 AFFECTS: P1IRCELS 1.09 AND OTHER LAND. I. AS NOTE: AN'! FONDING m:RES ro OilCAGO TITLE COMPAN'! ARE TO 'BE DU!BCTBD AS FOLLOWS, BANK OF AMERICA 1850 GATEWAY Bot1I.EIIAFD CONCORD, CALIFORNIA 1\BA 121-000358 CREDIT TO CHICAGO TITLE SUB-ESCROW DEPOSITORY ACCOUNT NO. 123551-50752 FURTIŒ-"< CREDIT ro O~ER NO: 0513076107 A:I'TN : CATHY C".uA.."-"/B= ~ """""""'''''1=* /!?---j¡J Page ~o SCHEDUlE B (continued) , Order No: 93076~07 US4 .~. .,.. Your Ref: VILLAGE 2 ~ TITLE OFFICER AT = lAMEND/ Jrl' PFEL..IMEC:o!i/Z3/'B::111. /~---/)'I Order No: 930761.07 - U54 Your Ref: VILL1\.GE 2 As part of the settlement of a class action lawsuit, we are required to placetbis notifiClrlon in all prpHm;n:!ry' reports: IF YOU BOUGHT, SOLD OR REFINANCED A HOME (RESIDENTIAL REAL PROPERTY) IN CALIFORNIA BETWEEN JULY 1, 1989 AND FEBRUARY 28, 1997, PLEASE READ THE FOLLOWING: Pur-mant to a Settlement Agreement in a class action lawouit filed in the Superior Court for Los Angeles County, a settlement, agreement hàs ,'been entered into that provides persons wno bought, sold or refinanced residential real property in the State of CalifoIDÌa between July 1, 1989 and February 28, 1997, with certain rights. If you are such a person and you are DeW engaged in an escrow' traDSaction with Chicago Title Company, Gateway Title, Company,' Benefit Land Title Company or Fidelity National TItle Insurance Company, you have the following righ1s: If one of these companies previously handled a residen1ial escrow trnnSaction for you that involved residential real property in wbich a mortgage, promissory note, or similar debt ÍDStrument, repayment of wbich was secuied by a duly recorded deed of trUSt, was fully paid., satisfied or discharged arid a reconveyance of that deed of trUSt was executed and was delivered to one of those title compames for recording but was inadvertently not recorded, you havè the right to request that a release of obligation or reconveyance be recorded in accordana: with the terms of the Settl=ent Agreement. To obtain this right you must: (1) Establish, to the s¡;tÏ!faction of the title company that you actually closed an escrow between July 1, 1989 and Februaxy 28, 1997, which was handled by one of the above-listed title , insurance compameS, in which a mortgage, promissory note, or ~mihT debt instrument secured by a duly recorded deed of trust was fully paid, satisfied or ilischarged and a reconveyance of that deed of trust was executed and was delivered for recordation to the title company 'that handled the prior tr=ctio~ Proof of said traDSac:tion shall be made by presenting a clo,,;n~ statement, preliminary report, title insurance policy or a paid escrow invoice which identifies you and the' prior deed of trust; and (2) Request in writñ:igthe recording of a reconveyance or release of obligation in the event that one inadvertently had not been previously recorded in the escrow transaction previously handled by one of the above-named title compames. (SS -¢:3./07/9ð1:JI¡(. /ð~//S --,,-_..~-_...,..... -.-----, ..-------.- TRAFFIC SPA One Public Facilities FinallcinK Plan EXHIBIT J Table 11 Transportation Improvements Cumulative Phase (Footnote or Phase specific EDU trigger) I Internal Tra.nsportation Improvements EDU's Blue Grey Pink Grn Org Yel 8rn Red I Purp Silver Gold I 4 Paseo Ranchero - East Palomar to Olympic (2) (2) (2) (2) (2) (2) (2) (2) I 300 (2) (2) Parkway· 1.213 6 La Media· East Palomar to Olympic (2) (2) (2) (2) (3) (2) I (2) (2) I (2) (2) (2) I Parkway· 2.911 128 East Palomar· Santa Rosa to Olympic (2) (2) (2) {21 (3) 300 I (2) I (3) I (2) (2) I (2) I Parkway· 2.911 15A La Media Pedestrian Bridge 2,911 (4) (4) (4) (4) I (4) I (4) (4) I (4) I (4) (4) I (4) 158 1/2 Olympic Parkway Bridge (Village ¡ to I (4) (4) (4) (4) (4) (4) (4) I (4) I (4) (4) I (4) VillaO:f 2) 4.629 15C 1/2 Olympic Parkway Bndge (VilJage 5 to (4) (4) (4) (4) (4) (4) I (4) (4) I (4) (4) (4) Villaoe 6) -+.629 21 Olympic Parkway· Pasco Ranchero to La (2) C!) (2) (2) 300 (2) I 300 (3) I 0) (2) (2) Media- 2.9! 1 22 Olympic Parkway - La Media to East (2) (2) (2) (2) I (3) (2) I (2) I (3) I (2) I (2) I (2) Palomar- 3,136 23 IOlymPiC Parkway - East Palomar to eastern I (2) (2ì (2) (2) I (2) I (2ì (2) I (3) I (2) \2ì I (2) Otav Ranch houndarv· 5.-1.29 Regional Transportation Improvements I 7 ¡OlympiC Parkway _ (.805 to Pa..seo Ra.nchero· I (2) (2) I (2) (2) I (2) I (2) I (2) I C:) I (2) I (2) I (2) 1.213 10 \ East Palomar - existing impro....ementS to I (2) (2) I (2) (2) I C!ì I (2) I (2) I ':) I (2) I (]) I (}"I I I Paseo Ranchero· 2.9\ 1 I I Footnote Legend (1) Interim improvementS for :1ny facility can be constructed at the discretion of the City Engineer. (2) Agree to construct and to secure the facility prior to the Final "8" Map that triggers the cumulative EDL"s as defiried in ¡his Exhibit and Table II·A (3) Agree to construct and to secure the facility prior to the first final map in the Phase. 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'0- ///--. - N c;; N - :: - <:.. (1) N '-..J C "" c N '--, '~ ;5.E :õ - - ~- o~ cs ~- '" - ~ - ,., š. c' ,., .. 0 n .., '" '" '" - =~ = to: 0:: U'I 2 - ,; § - ~ o - ..., n o S !::. - rl ":: ¿ ." ,., - [ - - - '" "" - N '"' - - "" '.... :::0 r - =- ~ g" ;:::: ~ :- -.. :::0 :::0 r '" -' ;> ¡:j ~ - ::: "C - "" o < - 3: ~ ::2 -' rJ'i :;:. C -' ...: - ~ - .- - .- ~ .c c: - - .- ~ :;;> ... - I..-~ ::2 -' rJi ~ (Q '" c: :;;> ... ~ ::2 ..., " c: ... r ,., - '< - ,., - "'- :;",¿ I': ::; - - :;;> - "C - .- o < ~ , I ~ >- t:: t'* t"':: - - I > r - .. ... - -' rJi ,. ? ;; ~>< 0- <::::: <:: ::: Cl ,.; ,., -' ...: - ::;: - -~ - >- C'JJC - - , .... - ~ - EXHIBIT "K" ENTRY PERMIT THIS ENTRY PERMIT is made as 199_, by and between (hereinafter "Licensee"), of this _ day of (hereinafter ¡¡Licensor"), and RECITALS A. Licensee owns certain real property in the City of Chula Vista ("City"), described in Exhibit A, attached hereto and incorporated herein by this reference ("Licensee's Property"). B, described in Property") , Licensor owns certain real property adjacent to Licensee's Property and Exhibit B, attached hereto and incorporated herein by this reference ("the C. In connection with the improvement of Olympic Parkway, Licensee desires to come on Licensor's property for the purpose of grading and construction of drainage- related improvements described in the plans and specifications delivered to Licensor on or before the date hereof as the same may be reasonably modified by Licensee with Licensor's approval (collectively referred to as "the Improvements"). TERMS AND CONDITIONS NOW, THEREFORE, the parties hereto agree as follows: 1. License to Enter and Use Pronertv. Licensor hereby grants to Licensee a revocable license and pennission to enter upon the Property for the purposes set forth above, subject to Licensee's compliance with all the tenns of this Entry Pennit. This license and pennission extends to Licensee's duly authorized representatives, agents, employees or contractors (collectively "representatives") in connection with their use of the Property hereunder. All representatives who enter upon and use Licensor's property shall notify the project superintendent and shall not unreasonably interfere with the construction operations being conducted on Licensor's property, 2. Term. Subject to the provisions for earlier tennination set forth in Section 10 below, the tenn of this Entry Pennit shall commence as of the date hereof and shall continue for two years, J (f-~ /c2.0 3, Restoration of Proper tv. Upon termination of this Entry Permit, and except for the Improvements or, as may be otherwise agreed in writing by the parties, Licensee shall repair and restore every portion of the Property disturbed or graded by Licensee to a condition which is as close as practical to the condition of the Property as existed prior to Licensee's entry onto the Property. 4, Gradinl!, Licensee may perform grading and related work on the Property as necessary or desirable to complete the Improvements, 5. Government Reg:ulations and Other ObIi!!ations of Licensee, As a condition precedent to the license granted herein, Licensee shall obtain at its sole cost and expense all governmental permits and authorizations of whatever nature required by any and all governmental agencies for Licensee's use of the Property and which have not already been obtained by Licensor. Licensor agrees to execute documents necessary for Licensee to obtain such permits and authorizations provided that Licensor does not incur any material cost, expense and/or liability in connection therewith. While on the Property, Licensee will comply, and will cause all of its representatives on the Property to comply, with all applicable governmental laws and regulations. All persons who enter upon the Property pursuant to this Entry Permit do so at their own risk. 6. Liens. Licensee shall not suffer or permit to be enforced against the Property, or any part thereof, any mechanics', materialmen's, contractors' or subcontractors' liens or any claim for damage arising ITom the work of any construction, excavation, survey, tests, grading, repair, restoration, replacement or improvement perfonned by Licensee or its representatives, but Licensee shall payor cause to be paid all of said liens, claims or demands before any action is brought to enforce the same against the Property, Licensee expressly agrees to indemnify and hold Licensor and the Property free and hannless ITom all liability for any and all such liens, claims and demands, together with reasonable attorneys' fees and all costs and expenses in connection therewith. Notwithstanding anything to the contrary set forth above, if Licensee shall in good faith contest the validity of any such lien, claim or demand, then Licensee shall, at its expense, defend itself and Licensor against the same and shall pay and satisfy any adverse judgment that may be rendered thereon before the enforcement thereof against Licensor or the Property, but only upon the condition that if Licensor shall require, Licensee shall procure and record or furnish to Licensor a surety bond or other acceptable security satisfactory to Licensor in an amount at least equal to one and one-half times such contested lien, claim or demand indemnifying Licensor against liability for the same and holding the Property ITee ITom the effect of any lien or claim, Licensor reserves the right at any time and ITom time to time to post and maintain on the Property or any portion thereof or improvement thereon such notices of nonresponsibility or otherwise as may be necessary to protect Licensor against liability for any such liens and claims, 7. Notice of Nonresponsibilitv. Immediately upon entry upon the Property for the purpose of commencing the activity pennitted under this Entry Permit, Licensee shall provide immediate written notice of such activity to Licensor so that Licensor can post on the Property and record a notice of nonresponsibility, J<¡f--/;2! 8. Licensor Not Liable, As a material part of the consideration for this Entry Permit, Licensee hereby waives any claims for and agrees to indemnify, defend and hold harmless Licensor from and against any loss, damage, claim, cost or expense (including, but not limited to, attorneys' fees) incurred by, or asserted against Licensor and resulting from any use of the Property by Licensee or its representatives or any act or misconduct of Licensee or any of its representatives on the Property. 9, Insurance. Prior to Licensee, or any contractor(s) hired by Licensee, commencing any work or activities on the property, and continuing until all work or activities cease or until all work is completed upon the property, Licensee or his contractor(s) shall, at its sole cost and expense maintain, with a reputable insurance company or companies qualified to do business in California, and acceptable to Licensor, in full force and effect a policy or policies of broad form comprehensive or commercial general liability insurance, including broad form contractual liability insurance, which covers all activities or operations to be undertaken upon the property, Such insurance shall provide a liability limit of not less than $2,000,000 per occurrence, Licensee shall name Licensor as an "Additional Insured" on all such policies of insurance prior to commencement of any work. Alternatively, Licensee may elect to require that Licensee's contractor(s) shall be required to name both Licensee and Licensor as "Additional Insured" on all such policies held by the contractor(s). Certificates ofInsurance and Additional Insured endorsements evidencing all such insurance shall be provided to Licensor. 10. Termination and Remedies, If Licensee shall be in breach of any of its obligations under this Entry Permit and fail to cure such breach within thirty (30) days of a written notice from Licensor specifying the nature of such breach, Licensor shall have the right to terminate this Entry Permit by written notice to Licensee effective the date of such notice. Licensee acknowledges that this Entry Permit is solely a license and that Licensee has no rights as an owner, purchaser or tenant by virtue hereof. Upon termination of this Entry Permit for any reason, Licensee shall promptly vacate the Property, I I, Insnection, Licensor and any authorized representative, employee, agent or independent contractor shall be entitled to enter and inspect the Property or any portion thereof or improvements or work of Licensee thereon at any time and from time to time, 12, Assi!mabilitv, This Entry Permit shall be binding upon the parties hereto and their respective heirs, successors, representatives and assigns, This Entry Permit may not be assigned by Licensee without Licensor's written consent, which consent may be witheld in Licensor's sole discretion. 13, Cost of Enforcement. In the event it is necessary for Licensor to employee an attorney or other person or commence an action to enforce any of the provisions of this Entry Permit, the prevailing party, as determined by the court, shall be entitled to receive from the other party all costs of enforcement in connection therewith, including, but notlimited to, court costs and attorneys' fees. )!) --- /~2 14. Miscellaneous. No supplement, modification or amendment of this Entry Permit shall be binding unless in writing and executed by the parties hereto. No waiver of any of the provisions of this Entry Permit shall be deemed or shall constitute a waiver of any other provisions, whether or not similar, nor shall any waiver be a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver. This Permit shall be construed and enforced in accordance with, and governed by, the laws of the State of California. The headings of this Entry Permit are for purposes of reference only and shall not limit or define the meaning of the provisions hereof. This Permit may be executed in any number of counterparts, each of which shall be an original and all of which shall constitute one and the same instrument. 1N WITNESS WHEREOF, the parties hereto have executed this instrument as of the date first above written. LICENSOR: LICENSEE: Title Title )g/I:<3 - .~ .~ " COUNCIL AGENDA STATEMENT ITEM TITLE: ~1 Item , Meeting D~te 3/30/99 Resolution /5' Y / / Approving a final "B" map for Chula Vista Tract No. 99-02, Otay Ranch, R-46, accepting on behalf of the City of Chula Vista the easements granted on said map within said subdivision, acknowledging on behalf of the public the irrevocable offer of grant of fee interest of lots for open space and other public purposes on said map within said subdivision, and approving Subdivision Improvement Agreement for the completion of improvements required by said subdivision, and authorizing the mayor to execute said agreement A) SUBMITTED BY: B) Resolution /91//:2. Approving Supplemental Subdivision Improvement Agreement for Chula Vista Tract Number 99-02, Otay Ranch, R-46, and ~~rg the mayor to execute said agreement Director of Public Works If ¿;;:()'Å City Manage~ ~ ~Y (4/Sths Vote: Yes_NoX) REVIEWED BY: This item is to consider the approval of Final "B" Map, Subdivision Improvement Agreement, and Supplemental Subdivision Improvement Agreement for Otay Ranch R-46 (CVT 97-02). The project consists of 11 7 condo units and is known by the marketing name of Capri by Cornerstone. R-46 is located at the northeast comer of La Media Road and East Palomar Street. BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. RECOMMENDATION: That Council approve the Resolutions approving the: A) Final B Map and Subdivision Improvement Agreement for Otay Ranch R-46; and B) Supplemental Subdivision Improvement Agreement for Otay Ranch R-46. . DISCUSSION: On July 14, 1998, the City Council approved the McMillin Otay Ranch, Phase 1 Final "A" Map and the Subdivision Improvement Agreement ("A" Map SIA) for that map by Resolution No. 19079. The Final "A" Map created "superblock" Unit 6 corresponding to Otay Ranch Neighborhood R-46. On December 8, 1998, by Resolution No. 19294, the City Council approved the Tentative Subdivision Map for Chula Vista Tract 99-02 for neighborhood R-46 in Village Five of the Otay Ranch. An excerpt of the minutes of that meeting is presented in Attachment I. 'i2:6 - ) /1 · Page 2, Item _ Meeting Date 3/30/99 Final MaD and Associated Aln"eements The final map consists of the following: I (1.52 acres )1 1) All open space lots are private and will be maintained by a Master Homeowner's Association. The map (see Attachments 2) has been reviewed by the Departments of Public Works and Planning & Building and found to be in substantial conformance with the approved Tentative Map. All intemaI streets are privately maintained (the loop street is named "Via Capri"). All fees and/or cash deposits specific to this map have been collected in satisfaction of various Tentative Map conditions of approval. Approval of the map constitutes acceptance by the City of all sewer, general utility and access easements granted on said map. There is one Open Space Lot (Lot A) within the Final Map. An Irrevocable Offer of Grant of Fee Title for this open space lot is conveyed on the map, noting that Section 7050 of the Government Code of the State of California provides that such offers may be accepted at any time by the City Council. Said lot will remain in private property and will be maintained by a Master Homeowner's Association. Genstar Southwest Holdings LLC has already executed a Subdivision Improvement Agreement and has provided bonds to guarantee the construction of the onsite public improvements. The Subdivision Improvement Agreement and bonds are on file in the office of the City Clerk. The construction of all offsite improvements Serving Unit 6 have been secured in conjunction with other finaI maps previously approved by Council. Genstar Southwest Holdings LLC has already executed a Supplemental Subdivision Improvement Agreement (SSIA) for the subject finaI map. The Tentative Map conditions of approval of CVT No. 97-02 are presented in Attachment 3 (Resolution No. 19294). The conditions that are satisfied by the SSIA are: 1, 4, 5, 6, 7, 20, 28, 32, 48, and 65. These conditions, excepting Nos. 65 and 32 are addressed using typical language used in previous agreements. Following is a discussion on conditions Nos. 65 and 32: Condition Nos. 65 - (Conveyance Obligation). This condition stipulates that prior to the approval of the Final Map, the applicant shall comply with all applicable requirements of the Phase 2 Resource Management Plan (RMP). 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 SSIA requires the developer to deposit cash with the City in the amount of $33,465 (9.266 acres of conveyance obligation X the average value of $3,056 per acre determined in the appraisal) concurrent with the execution of the SSIA. :<t - J- \q Page 3, Item_ Meeting Date 3/30/99 The developer further agrees to purchase land for conveyance to the Preserve, within 18 months after approval of the agreement If the developer does not buy land within the specified 18 months andlor 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. It should be mentioned that McMillin is currently in escrow to purchase property that will be conveyed to the Preserve Owner Manager to meet the conveyance obligations for the entire McMillin Otay Ranch SPA One (approximately 200 acres). They are also requesting that all cash deposits, submitted at final map approval, be released upon conveyance of said preserve land. Condition No. 32 _ (Community Parks). This condition requires the developer to pay community park fee based on the formula contained in the PAD fee ordinance. In satisfaction ofthis condition the agreement requires that prior to approval of each final B map, the developer agrees to pay PAD fees as determined in the PAD fee ordinance based upon a formula ofl acre per 1,000 residents. With respect to the final map for R-46, the developer agrees to pay, in cash, the PAD fees within 60 days of approval of the final map. In addition, the developer agrees to provide, concurrent with the execution of this agreement, security to guarantee the payment of PAD fees. The developer also agrees to pay interest, on the PAD fees, as required by the Municipal Code. The City may withhold final or interim inspection of units for which building permits have been issued and may withhold issuance of additional building permits or any other processing of entitlement on any property or improvements until the required fees have been received by the City. The SSIA also specifies that the obligation to pay PAD fees will be waived if the developer and City enter into an agreement (within 60 days of approval of the final map) for constiucting the Community Park. The SIA and SSIA are included as attachments to the resolution. FISCAL IMPACT: None to the City. The developers has paid all costs associated with the proposed "B" Map and associated agreements. It should also be mentioned that City staff is currently working with the applicant on a global approach regarding payment ofP AD fees between the Qtay Ranch Company and McMillin. That agreement may be brought to Council in March 1999. Attachments: Attachment I: Attachment 2: Attachment 3: Attachment 4: Minutes of 12/8/98 for R-461M (Resolution No. 19294) Unit 6 Final Map Tentative Map Conditions of Approval for R-46 Developer's Disclosure Statement H:\home\engineer\1anddev\otay ranch\113r46 TA 3/17/99 2:28:ss PM OR-219f ~/) -_.._._..----~...-- - ...---.---'. RESOLUTION NO. /9 '1// RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING A FINAL "B" MAP FOR CHULA VISTA TRACT NO. 99-02, McMILLIN OTAY RANCH SPA ONE, R-46, ACCEPTING ON BEHALF OF THE CITY OF CHULA VISTA THE EASEMENTS GRANTED ON SAID MAP WITHIN SAID SUBDIVISION, ACKNOWLEDGING ON BEHALF OF THE PUBLIC THE IRREVOCABLE OFFER OF GRANT OF FEE INTEREST OF LOTS FOR OPEN SPACE AND OTHER PUBLIC PURPOSES ON SAID MAP WITHIN SAID SUBDIVISION, AND APPROVING SUBDIVISION IMPROVEMENT AGREEMENT FOR THE COMPLETION OF IMPROVEMENTS REQUIRED BY SAID SUBDIVISION, AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENì 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 99-02, McMillin Otay Ranch SPA One, R- 46, and more particularly described as follows: Lot 6 of Chula Vista Tract 99-02, McMillin Otay Ranch, SPA I, Phase 1, in the City of Chula Vista, County of San Diego, State of California, according to map thereof No. 13605, filed in the Office of the County Recorder of San Diego County, July 2B, 199B. Area: 9.266 Acres Numbered Lots: 2B No. of Condominiums: No. of Lots: 29 Lettered Lots: 1 117 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 acknowledges on behalf of the Cit of Chula Vista the Irrevocable Offer of a Grant of Fee interests of Lot "A" for open space and other public purposes, all as shown on this map within this subdivision, noting that Section 7050 of the Government Code of the State of California provides than an offer of a Grant shall remain open and subject to future acceptance. BE IT FURTHER RESOLVED that said Council hereby accepts on behalf of the public the assignable and irrevocable General Utility and Access Easements over, under, upon and across Lots 22, 23, 24, 25, 26, 27 and 2B, all as shown on said map within this subdivision. 1 ;H,./l - / /1 BE IT FURTHER RESOLVED that said City Council hereby accepts the sewer easement over a portion of Lot A all as shown on said map within said 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 Dedication of the fee interest of said lots be acknowledged and that those certain Assignable and Irrevocable General Utility and Access Easements, said sewer easement, as granted hereon and shown on said map within said subdivision, are accepted on behalf of the city of Chula vista as hereinabove stated. BE IT FURTHER RESOLVED that the City Clerk be and is hereby directed to transmit said map to the Clerk of the Board of Supervisors of the County of San Diego. BE IT FURTHER RESOLVED that that certain Subdivision Improvement Agreement dated the , 1999 for the completion of improvements in said subdivision, a copy of which shall be kept on file in the office of the City Clerk, is hereby approved. BE IT FURTHER RESOLVED that the Mayor of the City of Chula vista is hereby authorized and directed to execute said Agreement for and on behalf of the city of Chula vista. Presented by Approved as to form by John P. Lippitt, Director of ~<I}11 ~~ Jo Kaheny, City A orney Public Works B:\bome\attorney\reeO\McmilRt6.fm ~/l-c2 \~ --- RESOLUTION NO. J9'11;¿ RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR CHULA VISTA TRACT NUMBER 99-02, OTAY RANCH, R-46, AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT WHEREAS, the developer for the Chula Vista Tract Number 99-02 for McMillin Otay Ranch Spa One, R-46, has executed a Supplemental Subdivision Improvement Agreement (SSIA), a copy of which is on file in the office of the City Clerk, in order to satisfy Conditions 1, 4, 5, 6, 7, 8, 20, 28, 32, 48 and 65 of Resolution No. 19294 approving the Tentative Map for Tract 99-02. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does hereby approve the Supplemental Subdivision Improvement Agreement for the Chula Vista Tract Number 99-02, for McMillin Otay Ranch Spa One, R-46, requiring developer to comply with certain unfulfilled conditions of Resolution No. 19294. 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. Lippitt J~y Director of Public Works City Attorney h:\hom@\attorney\reso\cv99-02 jfß - / Item Meeting Date 4/13/99 ~j)O COUNCIL AGENDA STATEMENT ITEM TITLE: A) Resolution / '1 13 ~ Approving Final Maps of Chula Vista Tract No.96-04, Otay Ranch, Village One, for Neighborhoods R-6, R-9 and R-14, Accepting on Behalf of the City of Chula Vista General Utility and Access Easements, and Wall Easements Granted on said maps within said Subdivisions, rejecting an Offer of Dedication for street and oIher public purposes and approving the Subdivision Improvement Agreements for the completion of improvements required by said subdivisions, and authorizing the Mayor to Execute Said Agreements. B) ,Resolution) tj iP!rfving Ihe Supplemental Subdivision Improvement Agreements for Tract No. 96-04, Otay Ranch Village One, Neighborhoods R- 6, R-9 and R-14, respectively, requiring Developer to comply with certain unfulfilled conditions of Resolution Number 18398 and authorizing the Mayor to Execute Said Agreemen:.,A / SUBMITTED BY: Director of Public Works IF V REVIEWED BY: City Manager 01- 'I (4/Sths Vote: Yes_No...xJ ¡:~ ;' l"' The tentative map for Otay Ranch, Village One and a portion of Village Five (CVT 96-04) was approved by the Council on November 19, 1996. The Council will consider the approval of three Final "B" Maps within Village One, together with the associated agreements for the "B" Maps. Prior to the approval of Ihese Resolutions, however, the Agreement for the Financing and Construction of Olympic Parkway Phase I, which is also on this evening's agenda, should be approved, BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. RECOMMENDATION: T,hat Council approve Ihe Resolutions: A) approving the Final "B" Map and the "B" Map Subdivision Improvement Agreements; and B) the Supplemental Subdivision Improvement Agreements associated with these Final "B" Maps 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 One. On June 16, 1998, the City Council approved the Otay Ranch Village One "A" Map by Resolution 19043 and the Supplemental Subdivision Improvement Agreement for that map by Resolution 19044 ("A" Map Agreement), The Final "A" Map created "superblock" lots 12,16 and 19 corresponding to Tentative Map Neighborhoods R-6, R-9 and R-14. These neighborhoods are generally located north and south of East Palomar Street between the Village One pedestrian paseo and the McMillin Otay Ranch Project. The three maps total 290 dwelling units. These neighborhoods are the third set of "B" Maps within Village One, SPA One. The Owner/Builders of Neighborhoods R-6, Trimark-Pacific Homes; R-9 and R-14, Presley Homes have executed Subdivision Improvement Agreements and have provided bonds to guarantee the construction of the public improvements within these neighborhoods. Supplemental Subdivision Improvement Agreements have been executed by each of the owners and Otay Project, L.L.c., the Master Developer ofOtay 7$-- / Item Meeting Date 4/13/99 Ranch, Village One. The supplemental agreements cover off-site improvements within the adjacent public streets and those public improvements identified in the Public Facility Finance Plan that are triggered by the approval of these final maps. The final maps for these subdivisions have been reviewed by the Public Works and Planning Departments and found to be in substantial conformance with the approved Tentative Map, Approval of the maps and associated agreements constitutes acceptance by the City of all assignable and irrevocable general access and utility easements and wall easements granted thereon. A 30-foot easement for public street purposes is offered for dedication within Neighborhood R-9. TIús easement is required by the Tentative Map conditions to provide for a street connection to East Palomar within the area of the current paseo, if needed in the future. There are no parks or open space lots offered for dedication within the subdivisions. The Developer has secured its share of the development portion of the Park Acquisition and Development (PAD) fees for SPA One neighborhood and community parks. The Developer has previously submined an Irrevocable Offer of Dedication of Fee Interest for its portion of the land acquisition obligation for community parks with the approval of the first final "B" Map in Village One (Neighborhood R-3, approved 10/6/98, Resolution No. 19210). The Telegraph Canyon Drainage Basin DlF in the amount of $256,314.09 has been paid. The Developer has bonded for and agrees to complete all on and off-site street improvements required for the approval of these "B" Maps within two years following map approval, or sooner if construction permits for the required improvements have been issued. Ail other applicable tentative map conditions have been met, The conditions of approval of Resolution No, 18398 (Tentative Subdivision Tract No. 96-04) that are satisfied by the Supplemental Subdivision Improvement Agreements (SSIA) are as follows: Nos. I, 3, 4,5, 8, 9, 10, 11,21,22,27, 39,44 and 123. The complete list of conditions of approval are included as Schedule I of the SSIAs wlùch is included as an attachmeru to the SSIA Resolution. None of the provisions of the SSIAs included therein are considered to be significant changes from the tentative map conditions. FISCAL IMPACT: None to the City. Developer and/or builder has paid all costs associated with the proposed "B" Maps and all Agreements associated therewith, Attachments: 1. Minutes of 11/19/96 (Resolution No, 18398) 2, Plats-Chula Vista Tract 96-04, Otay Ranch SPA One, Village I, Neighborhood R·6. R-9 and R-14 H:IHOMEIENGlNEERIAGENDAIOR.B_MAP.DRS (W) DRS/drs File No, 0600-80-0RI19F-130F-136F ~-2 . .......... Mun:!"'S Kov=b=- 19, 1996 ?2g~ 4 ATTACHMENT 1 .- EXCERPT colIl;>"titÏveness. "=use it is S<>",..,,;~ nDt CIIDUgh to maiDtaiD the I2te if everybody else lowcn; theirs. TD~ is a risk of lomg busiD:sses Ì>e:::a1>2 it suddCDly becomes cheaper to move Den door. Cmm=i1-...;.,¡. :RÍIIdoDe statal whetb<:r the busiDess li= is maiDtaiDed, r.ùsed or 1~ the =- =ariD limits the Council in =!isIic optÏoDS. He mqucsted bringing back the .mastez' fee ""hMule for 1998 to ""fle::t the proposed r.úes of 1992, ~ch is the iirst year it was abmd. He requested staff not only consider the aha!..-=z¡t n=t y=, but to consider revamping so if there. is an ad".1"-' and a signüicant busin= up-turn, th= is an option for Coun::il to roIect it in a modest I2te adjustm::ut. RESOLUI'ION 18501 OFFERED BY COUNC1LMEM:BER R.1ND01\"E, reading of the text was waived, title read, passed and approved nn"";"'ously. 10. PUBLIC HEARING :UV-96-12; APPEAL nOM PLANNING COMMISSION DENIAL OF A REQtJEST FOR A V.ARIANCE TO .INCREASE THE HEIGHT OF A ROOFTOP SIGN :FROM 35 FEET TO 42 FEET FOR THE COMMERCIAL BUILD.lNG LOC.A.TED AT 396 "Eo STREET .IN THE C-T THOROUGHFARE COMMERCIAL ZONE - MAIrIIN ALTBAUM - This is an appeal from the Planning Commission's àezDaI of a n:qnest for a -w.œ to a110w 1he CO%ISI:r1Idion of a rooftop sign to ?2 feet in =ght for the co_:oå1 buiIåingloc:ated at 396 "Eo Stnoet, within the C-T'I'horoagìüzœ Cnm~ 2DDC.. The C-T zone limits the =gbt of rooftop signs to 35 feet above ì:nu!e. At the ~ of the 8uuli""nt staff =mmends that the DDblie heaJin,. be !:!!!Ttinued ñI the meetil11' of 12/1 0196.. (Director of Planning) MSC (Hortonl.A1evy) to continue to the meeting of I2I10/9&, approved 4-Ð-Ð-l with Rmdoae abstaining. 11.A. lŒSOLUTION 18416 AP1'.ROVING A RESOURCE CONVEYANCE AGREEME:NT FOR THE OTAY RANCH SPA ONE, T.RACI' 96-04 - (This is a rdated item.. but does not rem.i..., a DUbHe hearin.n-) B. lŒSOLUTION 18417 AP1'.ROVING AN INDEMNIFICATION AGREEMENT WlTH VILLAGE DEVEL01'.MEJo.ï FOR T.RACI' 96-04 - (This is 8 rdated item. but does not re<>ui..., a uublie hea1"Ïn!>') C. mLIC HEARlNG PCS 96-04: CONSIDERATION OF A Rt;v ~ 'ŒN:rA.T.lVESUBDIVISION MAP FOR THE OTAYRANCHSPA ONE, T.RACI' 96-04 GENERAu..YLOCA1:ED SOUTH OFT.ELEGRAPH CANYON ROAD B1:.IWUJ'i PASEO RANCHERO AND THE .tU1UJŒ SR-12S AUGNMENT A.1I/D EXCLUDING288ACRES.IN ÁSI:F"SORPARCEI.NUMBER (~6C-Ð60-llANDAPORTION OF APN D42-Ð811-ll- Adopt 8 Se:ond Add=JdmD to FEIR 95-01 and =tify FEIR 95-01 and the Fnst Addendum for the Otay .Ran::h SPA One aDd T CDI3!Ïve Subdivision Map for 'ViJJqe One and Phase I-A of Village FIVe of the Otzy Ranc:h SPA One, 0m1a V1Sta T17Id 96-04, in a=rdanœ wi1h the findings and subject to the c:onåitions contaiDed in the d:oaf! resolution. Staff =mm...~s approval of the resolutions.. (Otay Ranch Mana,...) Continued from the m~ of l1fl2/96. - D. RESOLUTION 18398 ADOPI'ING THE SECOND ADDENDUM TO AND CERTIFYING FTh'AL E.'\·VIRONMEþ''TAL IMPACT REPORT EEIR 9S-Ð1 (SCH #95021012) AND FlRST ADDENDUM READOPTING THE STATEMEJI.'T OF OVERRIDING CONSIDERATIONS AND THE MITIGATION M01\'ITORING AND REPORTING PROGRAM FOR THE EEIR AND APPROVING A REVISED ' TE!\'TATIVE SOBDIVISION MAP FOR PORTIONS OF THE OTAY RANCH SPA ONE, CBULA VISTA TRACT 96-04, A.1I/D MA1ùNG THE NECESSARY FINDINGS AND CONTINUING ALTERNATIVE TE....ìTATIVE MAP PROPOSALS J""')' J2.::!.-iska, Otzy Ran::n Spe::ial P:Dj= Manager, gave a P=CDta1Ìon regarding the Otay Ranc:h developm.",t- CoUI:I=¡¡"'~:nber R.indOD~ zsked why W2S Section 7.1 of the agroem=nt ~h'.!!jed to refle::t the B M.., ¡evel, as it "''as / not :-...:;o=""ded for any other develop='. ;l-g: r .-5 d0 Minu~ Novemœr 19, 1996 ?t:.~: 5 .- .A..:ln Moore, Acting City Allamey, said that c:cndiúon oi the å:velopme¡¡[ a~ ......[ was tied [0 the :>DDåiúODS of the t::Dtative map approval, such as Condition 108, wiri::h works hand in hand with ODe another. BODding is r"..qWr-..4 when the improve:mcnts are triggered by the P r r P. M~. Jamriska staled the improvcm:m phasing schedule requjred to be snbmitted will idcntiiy all of the ba::kbone iL-ilities, and 'before the City Engin= approves the first fina! Ii map, that condition will identify aD the r=guU-..4 ba::kbone facilicies, as well as a plan for the financing. The baclcbone facilities would nol be trigg=<! by the =v~-am:= of those Jots to a diñ=1 p.o¡.Mty owner. The trigger points for the backbone iL-ilities o::..-ur wñ.., the fu:aJ Ii map is J"'!ucsted. JoÏ!D Lippitt, Dir=r of Public Worl:s, gave an example of ~...T .1-.. Greens. that tb..-y came in with an ov=1l A =p for the bad.:bone str=!s and some of the backixme facilities. TlI--Y w=-e reqni=! to bond for tho.. = wililin their faciliú.. and were reqnin:d to provide some off-iõile improv""'*'".. The Ci1y would have the righl to wiÛ1Ílold building pemIÌ!S if they wen:u. 'I done, and it was to COIIÍDIm with onr level of service ornin",,~o and the :;:rowth =gemem ordinance. Those wouldn't have to be bonded until sw:h time as they were approaching thos: th:=siwlds. Mayor Horton diån't b-..Iieve ther: was ever an e:ffurt to have the ¥~ i Jand awn= or developers .....II at a pa.-tiaùa:r stage.. and as to what is =tly being proposed. there was DeVer a :tIIOVe:III:Dt to do that with EzstIake or Rancho del Rey, SO it may not apply in this situation. She staled the """"'"ID was addressed in the rq>ort wh::n il :zJk=d abont the di,ffen:Dt sta,.oes; however, it is her 'UlllÙ::""'nding that staff Ïncorpor.Ited the protc::tions that the Ïa::iliti.. will be built. Ms.. Moore said S=ion 7.1 shifts the bond requÎII:mcnt to the master build=. that they will be responsible for all the ba::kbone faciliti.. t:ga:dIess of the me:rchant bui1d=r.. 'I1=e would 'be a number of issnes and =~_. if we w= to ~ :m=mnt buiJde:s coming in with smaIl projects to build or constnIá ""!Îor backhon: facilities. S=ion 7.1 pats it back to the mast=' builder for their respœsibility, and it is her 'UII~ñing that bonding for the ba::kbone fò",ì;,;~ has oc.-....d at the A map stage.. In this c:ase, it's being done at the Ii map stage, ""_~ for two improv= that are listed in Condition 10&. Coun:i1m=be:r Moot asked if the me:rcbant buiJde:s would provide the bonding or would Village ~elopc:nt obtain the bonding before the City allows a sale to the m::rchaut build=. Mr. Jamriska said thcre were four basic items that needed to be bonded prior to the first phase of the bac:l:bon= facilici:s, and it is anticipated it will be the ¡equù=-t of the master build=. AD subsequ:nt backbone faciiici.. will probably fia] upon the burden of eit!= the master builder mdlor the me:rcbant build=. Con<,,,,ìmombe:r hdi!Ia dido't think there was a n;ctWdÏOIl thcre and as far as breaking down what the obligation level would be at the ~ builder level.. Y OD cit!= have a complete obligation to gnar.mræ 100 per--=n! of the ba::kbone iL""ilicies at the A map stage or you have 1 00 per.:cnt tr.IIIsfer or relief of that obligation to the ==ors in int=st. Ms. Moore said the boDding is th= safest gnar.mœ: the City can have, and having the bonding at the A =p "-"ge is a more =ure position for th= City than doing il at 1= stages.. M~. Lippitt said it Was staff's opinion as long as th= was a condition in ther:. they em'l do aDY Ii maps or aD)' developc""ts b=us:: this has to be r=lved. It is a shift in tim=, but DOt a shift in developmenl staging Ì>erw= Maps A and Ii. Gun::ilmember Rindon= said if we ::hange the tim:: seq=::e of this and th= is so= ques-';on of r=spollSi"iii:¡' that wil.., a m=rci!anl builders com=; in and cannol afford that, tbe master builå=r doesn'l have the r-..spoDSÎoi],i:¡,. H= did nOI b= the assurance that the City increased its prot=::tiOD, b=use the m...-rt:banl builcL..,. will Dot nav. :;,e r"-SOur-=s the == build= wouJd have. Ll \ ~ 10-/ MiDnt=s !\'ovemb=r 19, 1996 P2;~ 6 «- Mzvor Horton said it was nor wuL.-standing from Ibe s:aff mport thai it is Ibe soJe responsibility of O"'y R==.b wi, or its = iD iDt.cresl, to provide or finane: the cost. of Ibe bacldxme beiliu.. ~ in any ñnaI map. inc1uding both A and B maps. Ms. Moore said it was = and what sWf could do to clarify it would be to insert sp-_;ñe language in Sc::tion 7.1 that states they shall provide the bonding. 12. Councilm=b=r Paåilla asked what were SDIIIC of the pot:ntial issues if the City allowOm-tnmg w= to Dappcn to the master builder, wc would have the hnntimg to go afu:r in on:I=- to COIISt:I1Id: the improv=ts. If we wait untiI latc:r stages. = thongb tbc:rc is that provision in the agr=-=t that dca1s with its = in intcn:st, tbc:rc is always th: pot<:ntia1 that wc might not be able to ~ th: mast=' buil&::- to actwùly COIISt:I1Id: the ba::kbone facilities, and we won't have bonding at that paint bc::a1Isc it was d= at a latc:r stage in: develop=!. We would then try to go to th: m=hant builder, which would be difficnJt to have th: m=hant builder =ny COIISt:I1Id: major bacl:bone facilities. Conn....,............. Alcvy said in =ding th: minutes of the Planning rnnnmmon, Conn....-¡.......,.....-clcct Mary Salas ....!".......J the speciñc con= that th: master builder is for=ver ob1iga1:d to do the bacl:bone Ïnfr.IstrncImc should iliey no! survÏve li::nholdc%s to bc::omc obligated to the ba::kbonc ~ de. and the timing is th: ~ we' ~ taDcing about, bllI th: reality is thai the master buildc:r is r.:quired to be able to bond to do that. Conn"".............. Rindone said the requiI=ts of funding th: backboœ ....,.,'ih"'5 is a gr.at:r risk. In on:I=- to try to comp=lSate that risk, wc'vc put other SÚ=¡;....~ in the ~." .......t CoanciI bas the rcspoDSIìñIity to = that th: backbone facilities &:: built. He åid DOt see why the old rules wen: changed, bccmse tbe.Y WDrl<cd well and provided adcqu3tc safeguards. He said the bottom line is that with th: m:. of th: Otz.y Ranch and thc projected buildont, wc don't have the assnr.mcc from the very fÌ'aDt that the "'~Hv.n_ ÍIIirastrucIIIr II%: in place, and it will ~ the wrong tone for this deve1opmcnt. If wc had ,~cd the hnnñ"'1 at the very be.~ as done in the past, we WouJdn't have to come 'lip with an of these rnnñihnn< r' Ms. Moore said a=råing to the d..-velopment &gr.. "-.'. jfIangnage is add:d to sp-n:;""¡¡y deal with bonding, it woold n:quirc ViDagc Devc1opmcnt, and its ~ ",. in interest, to provide the bonding. Thc:rc is also a provision in the a"nr=t that ta1Jcs about subordinatiOluo itrequ;.... the 1=dcrs to subordinate to the devc10pmcnt aI:' 0...-..4. It is not the same as h2ving the hnntG.,¡ up front, but tbc:rc is a provision that holds Vï1la"oe Development to provide the facility and the bond. Co""," ,........Ix:r PadiJJa said this issue p=ted iIseJf at the n:quest of ViDa"oe Devc1op=t. Th= is a =n =omiC2!ly why they want to be able to sell off p.azœ!s witbout making the guarantees up front on this sæ of a SPA or .at the A Map stage, bllI the qucstÏon is whether that is what Council wants. The qucstÏon b= is this was cbangO<i .at the request of the applicant, th= &:: reasons for that and the qucstÏon for Council is whether or not wbc:¡ we get to th: development ,,~ and _ look at the tc:awive maps, whether _ will be satisfied, and we have enou¡;li comfort with this levc1 of a gwuanre... T= is no qœstion that the ==- in whi:h .......'f is ,...""ommc:¡ding is Jess s=rity to the City than if_ ~ the bonds.at the A map ~ · Kim Kilkenny. 11975 EI Camino Real, San Diego, CA, rcp=ting Vi11ag= Develop=ts, stated thai City ...aff and Villag= Developmc:¡t sWf pIlI a lot of time to = the probl=ns that ~ in SL Claire arc not e"peri.,,:=<! in Otay R.an:h. Villa.ge Development is =l::i:ng to provide =::ity consï=t wilb the PFF?, and that is wb." a pease of à..-velop= TCC1Ú1=S an improvement in order to se:'Ve that phase, then adcqu.atc s.....u,..ity bas 1 () to be plt>vidO<i. TlIe à..-vcJopment ag=m::nt stales that "v ïIl2ge Develop=!. is the entity rcspons1òle. _~ a gc:¡""'¡'/ ".-- ruje wb::n you have a tc:atative map approved, .and that's what ViIlage Development is sœking in this hearing, ti1= ~J, is not an obligation in S= law or eoun..-il policy that an appli=t follow-up a tc:atativc map approval with an A =p. What is diff=t about this projc::t is through the d=velopmcnt ~'"-u.=! = a !"upv>oJ from....aff that ~ Village Developmcnt be ,......quired to åo an A map on the who]e of the SPA., village by vilizge. If you look a: tbe :~~ditìor:s of approval, tbe)' have to ~ bonå~ at the Nri~ their estimat~. \1.l!tÎ=b 1~ ~, fi0 ....,:1~;..,... u r,.,.._-:' ',..._.. Minu~ Nov~mber 19, 1996 Pa.ge 7 .- to p=~ th~ common pI3Cticc of allowing Villa:;~ Dev~1opm:nts to do A maps 011 a 1= ar--", Villa:;~ ~v~1opments would be willing to provide th~ =rity 011 th~ improvem:nts .!'cnM.,M with tb.at Jesser a=.. If th~y do an A map on the whole of the village or an A map on the whole of the SPA, th:n the bonding =rity r-...quÏremmts becomes burdensome b=use the tentative map is 50 large. If you Ioak at the whole of dcvelopm:nt ag=m:nt in COJ!ÌI=!Ïon with the !eII!acive map requir=ts, the City is assured that f2ciJities will be built in a ti=Jy =. the St. ~ apcrimce will not re-oc=ur. and the cost of the facilities will be equitably shared amongst all benefiting /" uF'ties in the project. Coun::iImember Rindone asked if s:aff considered Mr. 1(,l"-,,,,,y's sngg~on of th~ A map for a small portion of the project to == the backbon. fa=il.ities were part of the A map. C:;1t1Il"lm'"tDber Moot stated stiffs proposal was a Ì!*'..tt= guar.mtee for the City. Mr. !...ippittrcplied it was c:om=:t. Staff tried to come 'up with a m.... h...;.... thatwouJd m=t thl> cL."clopcr's D=!s and also =: the Ci1y's COIIIpWm=. Ricilard Rosa1cr, Smior!'hmner, amtinued stiffs þ.-....d"tion regarding the Otay Ranch project. This being the time and pJaœ as advc:1ised, the public heaIÍDg was declared open. · 'William r.;..~........... 852 Blackwood Road, Cbu1a Vista, CA, Di= of Plmming and Op=ti0DS with th. M=polit:m TransitD:ve1opmemBoard, sapported the project. H~ """¥.~ = ~to guarded :ntries and d:nsities in the viIla"oes.. -<~:'i · Rick w;1hmn,. 3130 BODiIa Road, Cbu1a Vista, wi1h PoiD1 Buildc:rs, span on bc:balf of West Coast L:md FuDd, own::r of the 288-a:::re pmœl ~: Villages 1 and S. West Coast ""f'putt. staff's ,.....,."..."",;.,;OD, although th..y would Jib to pcriIaps buiJd the """'""1" to defer ;my approvals in Vï1lage 5 U11til the Gty. West Coast, and ViIlag~ Developmem have au oppu.1wÜ1.r to m=t and <:plene issues. · Kim ~y. .............ting ViIIage Developm=1, supported staff's ......"........,;.,;'>11 with the exception of moãifying a portion of the t:nta!ive map in ViD.a".... 5 to c:acompass an of their own=hip in ViJIage 5. with the cx::..ptian of two speciiic parcels. . · . Ct>nnM""....~ PadiUa 1eft the dais at n:U p.m. . · . · K=1t Daydcn, 11975 E Camino B:al, San Diego, CA, '.............ting Vï1lage Develop=1S, gavl> a p=wÍan r::garãing OIay Rauch and rcfem:d to th~ n:port by Vï1lage Develop=t. Mr. lWlr""ry con::1uàed with the issue of th~ scope of the tœta!ivc map. He indicated Village Develop=t supports staff . oco=dation wi1h the SÍDgle modification that the scope of thl> tœlatÍve map should includcvïIlag~ Developments OWlIership in ViI1age 5, except for two parc=1s tb.at ;........,.¡;...¡y abut W cst Coast property which is Par..cl R-29 and I'...~ P·3. West Coast bas previous1y indicated they would like to flip a school or pari.: 0lIt0 our OWII=hip. TlIl> portion of the /"o¡r"-I'ty in R-29 and P-3 which should be excluded from thl>1D2p is apprcximaœ1y 10 to 15 acres, all ample size to flip those kinds of =. Dot tb.at th..y are a=¡>ting or advocating that, but at 1= it proviàos the poSS1õility. T,,= Ì!*'..Íng DO fu."ÙI:r spcaIccrs. the public hearing was closed. M:_ KiIk=y answ=red tb.at the cL."elop=t agr~m_ contains a 5'oI_...t tb.at 11DIil released by th~ City Coun:il. Vill"gl> Develop=t is obligated 10 provide for the back!xm~ Í1If1"'s1rt1:t. TlIl> cL."e1op=t a¡" ""= also Coun::ilm~ber Moot ~pressed c.an=n of the pI2:ci:aI eff==ts of delaying the bonåing untii the B map l~v~l. He z.;i::d WÏ1at == were in place tb.at the baci::Ì>DDIO ínÎ12S1ructurcs would be CODS!nICt=i J.!Jff.- ¡, tt- ~ Min1>t:S Novomb=- 19, 1996 Pag~ g .- "'..<¡1Úres the provision of a subordinalion agreemeat by the lend... on the I" u:=rIJ in the ev=rt they take title to the proP=rty, they = boUDd by the provisions of the developmem &£="1Jt, in::luding the ba:±bone provision. To= aT: a couple of levels of iSSIIŒIœs in this project. The City of Q¡uIa VIS:a bas . very aggressive d~elop=t ÎmD2::t foe program and each baildingpemÜt that goes through the proc::ss has to pay for those developm=rt impact f"::' for a whole ami)' of r,,"',;ri.... and the City will constantly have the flow of r:v= to make = :a::h ÌI1åi\~dua] pan:e1 pays for its fair share of the f.ocilities. What both the d..-v:lopm=rt a,gi ~ and t:DtatÍve map ~ are ~ts that security be in place through bonding, but th= = otho:r 1I'~·1,.n;"'"< to = completion of the facility in a timely =ner. COtm~;lm-mì-::r Alevy asked why the project did not inclwJe speed bumps, be::ause it was diif=t from the policy Coun:i1 .....M...:! in r:::ent months. Mr. Jamriska explained the speed 'bumps were not provided in response to r.oqnests by the 7"LI; Clrief and Clrief of l'oIico who fclt ""y ÚIIJ>'""- to the I:2ffic flow would :binder their qnick response. CoUXI'" '""","'I-r A1evy asked staff to address the impact ofMSCP on a County-wide 'basis on this particnJar proje::t, and what are the ;..'!'"' ts of Proposition 218 on this project. Mr. Lippitt said one impact would be if we had the open space district to maintain the open space around the village. If there = gated communities, everything private within the gated ~""""""¡ty wonld be ""';n"';""¡ by the Domeownen;' ."""';"';'JJ1, and it wonld not be r.ogulated at all by :r:.u~1ion 218. For the portion probably along the slopes ofTeJegt3ph Canyon:Road and Orange Avenue with issœs such as dr.ånage, those could be and probab1y would iåIl1lDtler the provisions ofProposiJion218 which means the initial hearing would be set "P ¡"..fure people moved in.. If the people had aJm.dy moved into the project befono the ., ..on",. tb= would ÌlZve to be a voœ. ,'-", Cc"""""-!-.r Moot ~l"........cI ~.nn~ about guarded .................¡ties. He didnot fitvor slaff's =,....".....iation and doesn't see the big diffi:n:nce whetl= it has a gale or guard. ~- the concept is st:iJl the same. He could not see V2lid = to =trict any citizen in the City of CImIa VlSIa from cixivmg in and around this particnJar a=.. Conn""l",Mn!.cr Rindonewas concemed that guarded or gated .. ..·,··..···õties s=ds the ~l',u~message of what this proj:ct was originaJly conceived to be. Wheu you have artificial bam= and even the insinuation of those bani=. evc:a if they are gnards that are not there during the day, it creaI::s a Jiffw-=c sense of ambian~ We want to have the p= this is a good ccmmunity and all parts ÌlZve good protection and saú:ty, not just those who can afford to be in the single-family or bigher residc:atiaI f.oc:ility. He did DOt mror guarded communities in U1J fOIm. Mayor Horton indicated' ðIat gated .................;!Íes were common, and there were two >=15 in Ranci.o del Rey wñic:h Cmm:i1 did not oppose. Tht:re = mobile home pari.:s behind gates, becanse it is the lifestyle the particular mobile ' ho= pari.:s wanted.. ~ doesa't think it is exclusive; it is a choice and matUting tool for this proje..'t Coun::ilmember Alevy mCIreð to an article "The Next Ed::n, . from California Lawver mag-..ziœ that Ulked 2OOU! the I=efits of having gated communities. Earlier this evening Council spoke at length regzråjng =tion 7.1 of the deveiopment ag.o........ut and the bacl::bone infnstrucnues, and it was cI_ that Council did not want to = a situation in this development that was not required of other developments. He indicated we need to turn that around with "'-'J=! to gates, be::ause we have allowed gates in other parts of the City. We ÌlZve private singJe-f2mily ,....siden::e developments with gates in both Eastlake and Ran::ho Del Rey. and ñe stated Council SÌlouJd be consi=L If we 31: going to hold Rancho del Rey and East1ake to the same requi=ents on other issues as "v -1l!age D~jopment, then we should be consisten1 and do the same with giving them the oppornn:ity from a ma:'''''-",g stanåpoint to allow guarded portions of their develop=t.. MSC (HortonlAlery) to allow gate closures from dusk to dawn, failed 2-2-1 with Moot and Rindone opposed and Padilla absent. ~.... ? 3 ;).cì .- Minu~ November 19, 1996 Page 9 ~ MSC (AlevylHortDa) to allow some facilities guarded from dusk to dawn, appro..ed 3-1-1. with .Rindone opposed and Padilla absent. RESOLUTIONS 18416, 18417 A.1\ID 18398 OFFERED BY COlJNCILMEMBER RINDONE, with the =::eption of taking the issue of the bonding sepante which is Item 12, appro-.ed 4-0-1 with Padilla absent. 13. PUBLIC HEARING ADOPTING OTAY RANCH PRE-ANNEXATION DEVELOPMD;T AGREEMENT 'WITH Vll..LAGE DEVELOl'MEJl.ï - Au ........ñ...- to the deve1op=aí a,.~ to further gu=atœ Ìnfr2st:rndm'c improvem=ts wh= the developer waats to c=I1e parcels for sale prior to i'm.1img the ñnal subdivision map. The ........ñ......., also addresses !i.tture problems with regard to auy debt paym::at that might be l=vied to make public improvem=ts or should deve1opm::at be only partially completed on auy particular project due to any stoppage of work espe:::iaIly due to a ba:.Luplt;] action. Staff ..:..o..."...nñ. Coaacil place the orãinance on fust nadiag. (Dqmty City Manager, PJaaaiag Director, and Otay Rauch Manag:r) Cootinued from the meeting of 11112f96. ORDINANCE 2691 AMENDING Ony RANCH PRE-ANNEXATION DEVELOPMENT AGREEMENT B.l:.l w.l:.tJ'l OTAY RANCH, LP., A CALIFORNIA LIMITED PARDŒR5HIP, 'VILLAGE DEVELOPME!\ï, A CALIFORNI.4. GENERALPA1crNERSHIP, A.1\ID THE CITY OF CHULA VISTA (first r""din!') ORDINANCE 2691 OFFERED BY COlJNCILMEMBER MOOT, including adding the bonding language to section 7.1, appro-.ed 3-1-1 with Rindone opposed and Padilla absent. .-~ ORAL COMMUNICATIONS · Bill Bnsher, 1755 Old Gillette Ave=e, Irviae, CA., .'"1"'~g Baldwin B1ûlÓCls, gave au update with the SL Claire Crossing developmem. BOARD A.1I,'D COMMISSJONRECOMMENDATIONS None submitted.. A CTION ,ITEMS 14. RESOLUTION 18494 DISSOLVING THE COlJNŒ. APPOINTED IJI.'TERIM BECA BOARD _ On ' 8f'1219S, Council apprtI\"'d au Interim BECA Adviscny Board represented by 11 oxpnizatioasimdividua1s. T= OIpaizationsrmdiviåua1s were =ded by staff to provide a mix of public and private entities who are stak:holde:s in the regioaaJ BECA alliaace. The Boani's contributions include wori:ing with staff in the = of ::oortiiI:a.ting and lev=ging regioaaJ reso=, ....h",,'-'¡ program marketing, and providingt""'¡'''¡<:'1Ù advice.. Tll= ñm:tions may be œs: =ved by the Boani continuing to act in an advisoty capacity to the BECA program and staff. ¡: or the pwposes of legal clarification, staff is recommenãing the existing Interim Board, as appointed by Coun::il, œ ãissoJved and the Dew Boani m:mb=bip be selected by staff. Staff recommends approvoI of the resoiutiOIl. (Dir-..:tor of Community Deveiopm::at) Continued from the meeting of 11/12/96. Ch~] Dye, Economic Deve1opmClltManager, said staff =mmenós Council åissolve the Coun::il-appoiDted 3=CA advisory board, with th: unde:stanãing !bat staff would appoint a board. ÛJun::ilm:mber Moot sugg:sted constituting an Ad Hoc Coun::il subcommi= on the BEe.... board and f*'..qu:s..::d .'" =' ..... or ~ '" h~ __.,¡. ~~ ~ ~~ffio;o __ 0_ ~ ) ~~u!;~ ~J 5~ II) ~ ~ ~ ..... tS c: - ~ "f C") Q) c: ~ 0 Q) ¡ ~ ..... ..... - ~ ~ F 25 CD ~ ~ ~.9 ~ q: iJj § ~ dC g¡ 15 ¡::: '" >' ID C ~ I This page blank ." dO -:tff~ / t? ---1 \ " 1 I a:: o I ( I ---- JnÑJMtr;:¡'õ;ÿ - ~ ,_ t>'JNt>'S ___ ~ -.;,-- --- !<¡ '- ~I 0') ~I : I I/") I , I ..... o ,.., r--'--,- J <; ~ - 10 " I/") "'t It') ""I I/") C\ I/") o z c:::. 10 w -' ¡;: 10 ~ ~ ~ o ..... WtD <..91 :3~ ~ -0 >0 IO UI Z~ «0 ~(D I >-<..9 «- ¡-W OZ 10 " 10 -I/") 10 110 10 "'t 0\ co I/") 10 10 "'t co C"I ¡..... Z ¡¡¡ :E - ~ - I" c:::. ::r:: ""I ""I U -< - ~ ¡..... \ ¡..... \ ~ -< 10 \ "- \ " " '-,- , " w -' I- ¡:: C\ - en ~ "U ~ c.. lD 1/1 .... 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UI L. o ..... o g: .;:.~ ,co ~ ZV1 ..0 ~w L.J'<I:~ !;eN o::~ 00 c This page blank Jo d-Ò ~~----/~, .........- ------ .'--~---- . , RESOLUTION NO. /9 i J .5' RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING FINAL MAPS OF CHULA VISTA TRACT NO. 96-04, OTAY RANCH, VILLAGE ONE, NEIGHBORHOODS R-6, R-9 AND R-14 ACCEPTING ON BEHALF OF THE CITY OF CHULA VISTA GENERAL UTILITY AND ACCESS EASEMENTS, AND WALL EASEMENTS GRANTED ON SAID MAPS WITHIN SAID SUBDIVISIONS, REJECTING AN IRREVOCABLE OFFER OF DEDICATION FOR STREET AND OTHER PUBLIC PURPOSES AND APPROVING THE SUBDIVISION IMPROVEMENT AGREEMENTS FOR THE COMPLETION OF IMPROVEMENTS REQUIRED BY SAID SUBDIVISIONS, AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENTS 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, VILLAGE ONE SPA ONE NEIGHBORHOOD R-6, and more particularly described as follows: Lot 12 of Otay Ranch, Village One "A" Map, Chula Vista Tract No. 96-04 according to the map thereof No, 13592 in the City of Chula Vista, County of San Diego, State of California, filed in the office of the County Recorder of San Diego County on June 24, 1998. Area: 21.489 Acres Numbered Lots: 77 Open Space Lots: 1,449 No. of Lots: B9 Lettered Lots: 12 Acres is made in the manner and form prescribed by law and conforms to the surrounding surveys; and that said map and subdivision of land shown thereon is hereby approved and accepted. BE IT FURTHER RESOLVED, said Council hereby accepts on behalf of the City of Chula vista sixty-two (62) foot wide general utility and access easements within Lot "A" for installation of public utilities, noting that use of said general utility and general access easements by others is subject to written permission and issuance of an Encroachment Permit from the City of Chula Vista, and wall maintenance and access easements, all as shown on 1 2f:/9 -; ';}-O this map within this subdivision, subject to the conditions set forth thereon. BE IT FURTHER RESOLVED that the City Clerk of the City of Chula Vista is hereby authorized and directed to endorse upon said map the action of said Council; that said Council has approved said subdivision map, and that those certain easements with the right of ingress and egress for general utility, and general access, and for wall maintenance as granted thereon and shown on said map within said subdivision, are accepted on behalf of the City of Chula Vista as hereinabove stated, BE. IT FURTHER RESOLVED that City Clerk is hereby directed to transmit said map to the Clerk of the Board of Supervisors of the County of San Diego. BE IT FURTHER RESOLVED that that certain Subdivision Improvement Agreement dated the for the completion of improvements in said subdivision, a copy of which is on file in the office of the City Clerk. 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, VILLAGE ONE SPA ONE NEIGHBORHOOD R-9, and more particularly described as follows: Lot 16 of Otay Ranch, Village One "A" Map, Chula Vista Tract No. 96-04 according to the map thereof No. 13592 in the City of Chula Vista, County of San Diego, State of California, filed in the office of the County Recorder of San Diego County on June 24, 1998. Area: 16.390 Acres Numbered Lots: 74 Open Space Lots: 1.814 No, of Lots: 86 Lettered Lots: Acres 12 is made in the manner and form prescribed by law and conforms to the surrounding surveys; and that said map and subdivision of land shown thereon is hereby approved and accepted. BE IT FURTHER RESOLVED, said Council hereby accepts on behalf of the City of Chula Vista sixty-two (62) foot wide general utility and access easement within Lot "A" for installation of public utilities, noting that use of said general utility and 2 -::zr /l -- c2 dÒ general access easements by others is subject to written permission and issuance of an Encroachment Permit from the City of Chula vista, all as shown on this map within this subdivision, subject to the conditions set forth thereon. BE IT FURTHER RESOLVED, said Council hereby rejects on behalf of the city of Chula vista, the offer of dedication of the easement for the street purposes and other public purposes on this map within this subdivision, noting that Section 7050 of the Government Code of the State of California provides that an offer of dedication shall remain open and subject to future acceptance by the City. BE IT FURTHER RESOLVED that the City Clerk of the city of Chula Vista is hereby authorized and directed to endorse upon said map the action of said Council; that said Council has approved said subdivision map, and that those certain easements with the right of ingress and egress for general utility, and general access as granted thereon and shown on said map within said subdivision, are accepted on behalf of the City of Chula vista as hereinabove stated. BE IT FURTHER RESOLVED that City Clerk is hereby directed to transmit said map to the Clerk of the Board of Supervisors of the County of San Diego. BE IT FURTHER RESOLVED that that certain Subdivision ImProvement Agreement dated the for the completion of improvements in said subdivision, a copy of which is on file in the office of the City Clerk. 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, VILLAGE ONE SPA ONE NEIGHBORHOOD R-14, and more particularly described as follows, Parcel 4 of Map. No. of Otay Ranch, Chula vista Tract No. 96-04 in the City of Chula Vista, County of San Diego, State of California, filed in the office of the County Recorder of San Diego County on February___, 1999. 3 2ffA - J ,-:}U Area: 18.097 Acres Numbered Lots: 139 Open Space Lots: 1,589 No. of Lots: 156 Lettered Lots: 17 Acres is made in the manner and form prescribed by law and conforms to the surrounding surveys; and that said map and subdivision of land shown thereon is hereby approved and accepted. BE IT FURTHER RESOLVED, said council hereby accepts on behalf of the City of Chula Vista sixty-two (62) foot wide general utility and access easement within Lot "A" for installation of public utilities, noting that use of said general utility and general access easements by others is subject to written permission and issuance of an Encroachment Permit from the City of Chula Vista, all as shown on this map within this subdivision, subject to the conditions set forth thereon. BE IT FURTHER RESOLVED that the City Clerk of the city of Chula Vista is hereby authorized and directed to endorse upon said map the action of said Council; that said Council has approved said subdivision map, and that those certain easements with the right of ingress and egress for general utility, and general access, as granted thereon and shown on said map within said subdivision, are accepted on behalf of the City of Chula Vista as hereinabove stated. BE IT FURTHER RESOLVED that the City Clerk is hereby directed to transmit said map to the Clerk of the Board of Supervisors of the County of San Diego. BE IT FURTHER RESOLVED that that certain Subdivision Improvement Agreement dated the for the completion of improvements in said subdivision, a copy of which is on file in the office of the City Clerk. Presented by Approved as to form by ~~~ City Atto=ey John P. Lippitt Director of Public Works H:\Home\Attorney\Reso\RESODR6.DRS 4 :&4-Y :Jò ~ ~ 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 0= 199_, by and between THE CITY OF CHULA VISTA, a municipal corporation, hereinafter called "City", and TRIMARK PACIFIC - LXX LLC, a California Limited Liability Company, 7700 Irvine Center Drive, Suite 470, Irvine, California 92618, hereinafter called "Subdivider" with reference to the facts set forth below, which Recitals constitute a part of this Agreement; RECITALS, WHEREAS, Subdivider is about to present to the City Council of the City of Chula vista for approval and recordation, a final subdivision map of a proposed subdivision, to be known as Otay Ranch, village 1, Neighborhood R-6, CVT 96-04 pursuant to the provisions of the Subdivision Map Act of the State of California, and in compliance with the provisions of Title 18 of the Chula Vista Municipal Code relating to the filing, approval and recordation of subdivision map; and WHEREAS, the Code provides that before said map is finally approved by the Council of the City of Chula Vista, Subdivider must have either installed and completed all of the public improvements and/or land development work required by the Code to be installed in subdivisions before final maps of subdivisions are approved by the Council for purpose of recording in the Office of the County Recorder of San Diego County, or, as an alternative thereto, Subdivider shall enter into an agreement with City, secured by an approved improvement security to insure the performance of said work pursuant to the requirements of Title 1B 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 1 WHEREAS, Subdivider lS willing In consideraLion of the approval and recordaLion 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_ 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. 98-947 through 9B-939, on file in the office of the City Engineer; and WHEREAS, an estimate of the cost of constructing said public improvements according to said plans and specifications has been submitted and approved by the City in the amount of Four Hundred Sixty-Five Thousand Four Hundred Ninety Dollars and No Cents 1$465,490.00) . NOW, THEREFORE, IT IS MUTUALLY UNDERSTOOD AND AGREED AS FOLLOWS: 1_ Subdivider, for itself and his successors in interest, an obligation the burden of which encumbers and runs with the land, agrees to comply with all of the terms, conditions and requirements of the Tentative Map Resolution; to do and perform or cause to be done and performed, at its own expense, without cost to City, in a good and workmanlike manner, under the direction and to the satisfaction and approval of the City Engineer, all of the public improvement and/or land development work required to be done in and adjoining said subdivision, including the improvements described in the above Recitals ("Improvement Work"); and will furnish the necessary materials therefor, all in strict conformity and in accordance with the plans and specifications, which documents have heretofore been filed in the Office of the City Engineer and as described in the above Recitals this reference are incorporated herein and made a part hereof. 2. It is expressly understood and agreed that all monuments have been or will be installed within thirty (30) days after the completion and acceptance of the Improvement Work, and that 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 2 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 sum of Two Hundred Thirty-Two Thousand Seven Hundred Forty-Five Dollars and No Cents ($232,745.00) 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 Two Hundred Thirty-Two Thousand Seven Hundred Forty-Five Dollars and No Cents ($232,745.00) to secure the payment of material and labor in connection with the installation of said public improvements, which security is attached hereto, marked Exhibit "B" and made a part hereof and the bond amounts as contained in Exhibit "B", and made a part hereof. 8. Subdivider further agrees to furnish and deliver to the City of Chula Vista, simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the city in the sum of 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 improvement securities may be used by City for the completion of the Improvement Work within saiã 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. 4 13. It is understood and agreed that City, as indemnitee, or any officer or employee thereof, shall not be liable for any injury to person or property occasioned by reason of the acts or omissions of Subdivider, its agents or employees, or indemnitee, related to this agreement. Subdivider further agrees to protect and hold the City, its officers and employees, harmless from any and all claims, demands, causes of action, liability or loss of any sort, because of or arising out of acts or omissions of Subdivider, its agents or employees, or indemnitee, related to this agreement; provided, however, that the approved improvement security shall not be required to cover the provisions of this paragraph. Such indemnification and agreement to hold harmless shall extend to damages to adjacent or downstream properties or the taking of property from owners of such adjacent or downstream properties as a result of the construction of said subdivision and the public improvements as provided herein. It shall also extend to damages resulting from diversion of waters, change in the volume of flow, modification of the velocity of the water, erosion or siltation, or the modification of the point of discharge as the result of the construction and maintenance of drainage systems. The approval of plans providing for any or all of these conditions shall not constitute the assumption by City of any responsibility for such damage or taking, nor shall City, by said approval, be an insurer or surety for the construction of the subdivision pursuant to said approved improvement plans. The provisions of this paragraph shall become effective upon the execution of this agreement and shall remain in full force and effect for ten (10) years following the acceptance by the city of the improvements. 14. Subdivider agrees to defend, indemnify, and hold harmless the city or its agents, officers, and employees from any claim, action, or proceeding against the city or its agents, officers, or employees to attack, set aside, void, or annul, an approval of the City, advisory agency, appeal board, or legislative body concerning a subdivision, which action is brought within the time period provided for in section 66499.37 of the Government Code of the State of California. (NEXT PAGE IS SIGNATURE PAGE) 5 SIGNATURE PAGE TO SUBDIVISION IMPROVEMENT AGREEMENT OTAY RANCH, VILLAGE 1, NEIGHBORHOOD R-6 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 TRIMARK PACIFIC - LXX California Limited Company LLC, a Liability Mayor of the City of Chula Vista ATTEST City Clerk Approved as to form by City Attorney (Attach Notary Acknowledgment) 6 LIST OF EXHIBITS Exhibit "A" Improvement security - Faithful Performance Form: Bond Amount: $232,745.00 Exhibit "B" Improvement Security - Material and Labor: Form: Bond Amount: $232,745.00 Exhibit "C" Improvement Security - Monuments: Form: Bond Amount: Securities approved as to form and amount by city Attorney Improvement Completion Date: Two (2) years from date of city council approval of the Subdivision Improvement Agreement H:\Home\Attorney\SIA\Villl.R6 7 Recording Requested by: CITY CLERK When Recorded, Mail to: CITY OF CHULA VISTA 276 Fourth Avenue Chula Vista, Ca. 91910 No transfer tax is due as this is a conveyance to a public agency of less than a fee interest for which no cash consideration has been paid or received. Declarant SUBDIVISION IMPROVEMENT AGREEMENT THIS AGREEMENT, made and entered into this day of ____ , 199_, by and between THE CITY OF CHULA VISTA, a municipal corporation, hereinafter called "City", and PHI OTAY RANCH ASSOCIATES, LLC, a Delaware Limited Liability Company, 15373 Innovation Drive, Suite 380, San Diego, California 92128 heTeinafter called "Subdivider" with reference to the facts set forth below, which Recitals constitute a part of this Agreement; RECITALS: WHEREAS, Subdivider is about to present to the city Council of the City of Chula Vista for approval and recordation, a final subdivision map of a proposed subdivision, to be known as Otay Ranch, Village 1, Neighborhood R-9 (CVT 96-04) pursuant to the provisions of the Subdivision Map Act of the State of California, and in compliance with the provisions of Title 18 of the Chula Vista Municipal Code relating to the filing, approval and recordation of subdivision map; and WHEREAS, the Code provides that before said map is finally approved by the Council of the City of Chula Vista, Subdivider must have either installed and completed all of the public improvements and/or land development work required by the Code to be installed in subdivisions before final maps of subdivisions are approved by the Council for purpose of recording in the Office of the County Recorder of San Diego County, or, as an al ternati ve 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 1 WHEREAS, Subdivider is willing ~n consideration of the approval and recordation of said map by the Council, to enter into this agreement wherein it is provided that Subdivider will install and complete, at Subdivider's own expense, all the public improvement work required by City in connection with the proposed subdivision and will deliver to City improvement securities as approved by the city Attorney; and WHEREAS, a tentative map of said subdivision has heretofore been approved, subject to certain requirements and conditions, as contained in Resolution No. lB3 98, 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. 98-1073 through 98-1065 inclusive, on file in the office of the city Engineer, and WHEREAS, an estimate of the cost of constructing said public improvements according to said plans and specifications has been submitted and approved by the city in the amount of Three Hundred Sixty-Two Thousand Nine Hundred Seventy-Nine Dollars and No Cents ($362,979.00) . NOW, THEREFORE, IT IS MUTUALLY UNDERSTOOD AND AGREED AS FOLLOWS: 1_ Subdivider, for itself and his successors in interest, an obligation the burden of which encumbers and runs with the land, agrees to comply with all of the terms, conditions and requirements of the Tentative Map Resolution; to do and perform or cause to be done and performed, at its own expense, without cost to City, in a good and workmanlike manner, under the direction and to the satisfaction and approval of the City Engineer, all of the public improvement and/or land development work required to be done in and adjoining said subdivision, including the improvements described in the above Recitals (" Improvement Work"); and will furnish the necessary materials therefor, all in strict conformity and in accordance with the plans and specifications, which documents have heretofore been filed in the Office of the City Engineer and as described in the above Recitals this reference are incorporated herein and made a part hereof. 2. It is expressly understood and agreed that all monuments have been or will be installed within thirty (30) days after the completion and acceptance of the Improvement Work, and that 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 2 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 sum of One Hundred Eighty-One Thousand Four Hundred Eighty-Nine Dollars and Fifty Cents ($181,489.50) which security shall guarantee the faithful performance of this contract by Subdivider and is attached hereto, marked Exhibit "A" and made a part hereof. 7. Subdivider further agrees to furnish and deliver to the City of Chula vista simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of One Hundred Eighty-One Thousand Four Hundred Eighty-Nine Dollars and Fifty Cents ($181,489.50) to secure the payment of material and labor in connection with the installation of said public improvements, which security is attached hereto, marked Exhibit "B" and made a part hereof and the bond amounts as contained in Exhibit "B", and made a part hereof_ 8. Subdivider further agrees to furnish and deliver to the City of Chula Vista, simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of Twenty-Three Thousand One Hundred Dollars and No Cents ($23,100.00) to secure the installation of monuments, which security is attached hereto, marked Exhibit "C" and made a part hereof. 9. It is further agreed that if the Improvement Work is not 3 completed within the time agreed herein, the sums provided by said improvement securities may be used by City for the completion of the Improvement Work within said subdivision in accordance with such specifications herein contained or referred, or at the option of the City, as are approved by the City Council at the time of engaging the work to be performed. Upon certification of completion by the City Engineer and acceptance of said work by city, and after certification by the Director of Finance that all costs hereof are fully paid, the whole amount, or any part thereof not required for payment thereof, may be released to Subdivider or its successors in interest, pursuant to the terms of the improvement security. Subdivider agrees to pay to the City any difference between the total costs incurred to perform the work, including design and administration of construction (including a reasonable allocation of overhead), and any proceeds from the improvement security. 10. It is also expressly agreed and understood by the parties hereto that in no case will the City of Chula vista, or any department, board or officer thereof, be liable for any portion of the costs and expenses of the work aforesaid, nor shall any officer, his sureties or bondsmen, be liable for the payment of any sum or sums for said work or any materials furnished 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 fu=ished 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 4 hereinabove, 13. It is understood and agreed that City, as indemnitee, or any officer or employee thereof, shall not be liable for any injury to person or property occasioned by reason of the acts or omissions of Subdivider, its agents or employees, or indemnitee, related to this agreement. Subdivider further agrees to protect and hold the city, its officers and employees, harmless from any and all claims, demands, causes of action, liability or loss of any sort, because of or arising out of acts or omissions of Subdivider, its agents or employees, or indemnitee, related to this agreement; provided, however, that the approved improvement security shall not be required to cover the provisions of this paragraph. Such indemnification and agreement to hold harmless shall extend to damages to adj acent 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. (NEXT PAGE IS SIGNATURE PAGE) 5 SIGNATURE PAGE TO SUBDIVISION IMPROVEMENT AGREEMENT OTAY RANCH, VILLAGE 1, NEIGHBORHOOD R-9 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 PHI OTAY RANCH ASSOCIATES, LLC, a Delaware Limited Liability Company N~ Mayor of the City of Chula Vista ATTEST City Clerk !URr,¡.,iI'IerCtlÁð: 4=ß¡ç,fzv.f 5ecvrlHry Approved as to form by ~WS)7r (µ~ cit 'torney v (Attach Notary Acknowledgment) 6 LIST OF EXHIBITS Exhibit "A" Improvement Security - Faithful Performance Form: Bond Amount: $181,489_50 Exhibit "B" Improvement Security - Material and Labor: Form: Bond Amount: $181,489.50 Exhibit "C" Improvement Security - Monuments: Form: Bond Amount: $23,100.00 Securities approved as to form and amount by City Attorney Improvement Completion Date: Two (2) years from date of City Council approval of the Subdivision Improvement Agreement H:\home\attorney\sia\Villl.R-9 7 "EXECUTED IN TRIPLICATE" B01\'D FOR FAITHFUL PERFORMANCE (To Be Used Prior to Approval of Subdivision Improvement Agreement) File No.: CI; 1A7 Bond No.: 3SM 916 927 DC Premium: $6 QW, 00/2 r FIRST TERM PREMIUM FULL~ EARNED WHEREAS, the City COUIlCil of the City of Chula Vista, County of San Diego, State' of California, and PHI DTAY RANCH ASSOCIATES, LLC a Delaware limited liability c°'{'l1~er Principal) desire to enter into a Subdivision Improvemenl Agreement (hereinafter referred to as Agreement) whereby Principal agrees to ll1stall and~~9%f~te certain designated public improvements for the project known as Chula Vista Tract No ~rcel R-9 ; and WHEREAS, Principal desires to co=ence construction of said public improvements prior to approval of said Agreement by the City Council of the City of Chula Vista; and, WHEREAS, the City of Chula Vista, County of San Diego, State of California, has issued to Principal Construction P=it No. Ú IZ /.2C!.ï (hereinafter referred to as Permit) for the public improvemenl work as set forth in more detail on City of Chula Vista Drawing Nos. 1~- r¿J6:; through '19-(ô73, regariling construction of said public improvements, which Permit is hereby referred to and made a part hereof; and, 'WHEREAS, said Principal is required under the terms of said Permit to furnish a bond for faithful performance of said Permit. NOW TIIEREFORE, we, the Principal and AMERICAN MOTORISTS INSURANCE COMPANY , a corporation of the State of , ILLINOIS , (hereinafter Surety), are held and firmly bound unto the City of Chula Vista, a municipal corporation (hereinafter City) in the County of San Diego, State of California, and to and for the benefit of any and all persons who may suffer damages by breach of the conditions hereof, in the Penal sum of +wo Hundred :forty Nine ~ousand dollars ($ 249 650 50 ) lawful money å:Hr RYRd.reà ¡'1ft:.. fd. SO Qºt};¡.r ' .. , of the United States, for the payment 0 whic sum well and truly to be made, we bind ourselves, our heirs, successors, executors and anmin;<ttators, jointly and severally, fIrmly by these presents. The condition of this obligation is such that if the above-bound Principal, his or its heirs, executors, administrators, su=ssors or assigns, shall in all things stand to and abide by, and well and truly keep and perform the terms, covenants, conditions, and provisions of said Permit and a subsequent Agreement and any alteration thereof made as therein provided, on his or their part, to be kept and performed at the time and in the m~nn"r therein specified, and in all respects a=rding to their ,true intent and meaning, and shall indemnify and save harmless City, its officers, agents and employees, as therein stipulated, then this obligation shall become null and void; otherwise, it shall be and remain in full force and effect. As part of the obligation secured hereby and in addition to the face amount specified therefor, there shall be included costs and reasonable eÀ1!enses and fees, including reasonable attorney's fees, incurred by City in successfully enforcing such obligation, all to be taxed as costs and included in any judgment rendered. The Surety hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Permit or to the work to be performed thereunder or the specifications accompanying the same shan in anywise affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Permit or to the work or to the specifications . State of County of California Orange '-On December 8, 1998 DATE before me, K. R. Viodes, Notary Public NAME, TITLE OF OFFICER - E.G.. "JANE DOE. NOTARY PU8l1C' personally appeared \'ictoria M, Campbell *********** NAME(S) OF SIGNER(S) GJ personally known to me - 00- 0 ¡:cwecbt~~~~isfa~~I'1~~ to be the person(s:) whose name¢s9 is/aræ: subscribed to the within instrument and acknowledged to me that Jbe/she/!bajX executed the same in _her/~ authorized capacity(ié'S), and that byJdxDs/her/tkœirx signature(Jsl) on the instrument the person(Jsl), or the entity upon behalf of which the perso~ acted, executed the instrument. ~------------ @ '''''0 ~ ~-=- K. R. ,1,,-,__-5 - . "'. Comm¡ssbc ~ I; 80488 <~. - - r?; . :. "Notary Pu:)ii:: - CcEfomic ~ Orange County f ,. My Comm. &\jJires May 4. 200.2 p WIJ:J:?1J= official seal. / SIGNATURE OF NOTARY OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT DINDIVIDUAL DCORPORATE OFFICER TITLE OR TYPE OF DOCUMENT TITLE(S¡ DPARTNER(S) DLlMITED DGENERAL 0A TTORNEY ·IN-F ACT DTRUSTEE(S) DGUARDIAN/CONSERVA TOR DOTHER: NUMBER OF PAGES DATE OF DOCUMENT IGNER IS REPRESENTING: NAME OF PERSON(S) OR ENTITY(IES) SIGNER(S) OTHER THAN NAMED ABOVE s"í ,,~ ~ AMER..¡ o "1 4- STATE OF CALIFORNIA COUNTY OF San Diego } }ss, } On /',;}- /; 0/9' f{ . . , before me, Larry 1. Smith Joan Cuozzo, Notary personally appeared , personally known to me (6f-f>ffiìletHe-ffi€-~-Ðasi!:K)f G6ti5f6Ðtory c',ièoA€e) to be the personfst whose name(sJ is/are- subscribed to the within instrument and acknowledged to me that he/!ffleftftey executed the same in his,!OOr,lthoj¡:.authorized capacity(ies), and that by his,Q::¡eFitl:leif signature(-6t on the instrument the perso~~or the entity upon behalf of which the persor$) acted, executed the instrument. WITNESS my hand and official seaL /f I l4~¿L- c! U S' ~., Ignature ~(j /) I , ~ ~ JOAN CUOllO :<.. " Commission # 1155071 2 ~:., . ' Notary PUDli:: - California ~ ~ S01 J'~o County ~ MyCc.,.,..., S:.:Jiessep) 1,2001 (ThiS area for oHlclal nolanal seal) --.... - .---.------ Title of Document Date of Document Other signatures not acknowledged No, of Pages 300e i: 941 (Generali First Amprlcan Title InSIJr,lnce ComPéln'y' "EXECUTED IN TRIPLICl -, ,.------- / ~J5OÐ., ~ , ----- BOND FOR MATERIAL AND LABOR (To Be Used Prior to Approval of Subdivision Improvement Agreement) File No.: OJ? IZC¡ j Bond NO':3SM 916 927 00 Prerrriu.m: included in PerÍormance bond WHEREAS, the City Council of the City of Chula Vista, County of San Diego, State of California, and PHI OTAY RANCH ASSOCIATES, LLC a Delaware limited (hereinafter Principal) desire to enter into a Subdivision Improvement Agré;'ê:MJ.J(~~r referred to as Agreement) whereby Principal agrees to install and fò.ÇJ~et;_certain designated public improvements for the project known as Chura Vista -Tract No ~:rarcel R-9 . ; and .WHEREAS, Principal desires to commence construction of said public improvements prior to approval of said Agreement by the City Council of the City of Chula Vista; and, WHEREAS, the City of Chula Vista, County of San Diego, State of California, has issued to Principal Construction Permit No. IJ£ J;Zq I (hereinafter referred to as Permit) for the public improvemenI work as set forth in more detail on City of ClnJ1a Vista Drawing Nos_ ¿¡g-/a ':i' through (if) -/073 ,regarding construction of said public improvements, which Permit is hereby referred to and made a part hereof; and, WHEREAS, under the terms of said Permit, Principal is required, before entering upon the performance of the work, to file a good and sufficient payment bond with the City of Chula Vista to secure the claims to which reference is made in Title 15 (commencing with Section 3082), Part 4, Division 3, of the Civil Code of the State of California. NOW THEREFORE, said Principal and AMERICAN MOTORISTS INSURANCE COMPANY , a corporation of the State of ILLIN(Œ~, , ' (hereinafter Surety), are held and firmly bound unto the City of Chula Vista., a municipal corporation (hereinafter City) in the County of San Diego, State of California, and all contractors, subconttactors, laborers, materialmen and other persons employed in the performance of the aforesaid Permit and referred to in the aforesaid Code of Civil Procedure in the sum of T!f~n~;;~~r~~f¥~r~?:èN~1\'ilM\~¡;~and Six dollars, ($ 249,650.50), lawful money of the United States, for materials furnished or labor thereon of any kind, or for amounts due under the Unemployment Insurnnce Act with respect to such work or labor, that said Surety will pay the same in an amount not exceeding the amount hereinabove set forth, and alSo in case suit is brought upon this bond, will pay, in addi1ion to the face amounl thereof, costs and reasonable expenses and fees, including reasonable attorney's fees, incurred by City in successfully enforcing such obligation, to be awarded and fixed by the court,.<md to be taxed as costs and to be included in the judgment therein rendered. It is hereby expressly stipulated and agreed that this bond shall inure to the benefit of any and all persons, companies and corporations entitled to file claims under Title 15 (commencing with Section 3082), Part 4, Division 3, of the Civil Code, so as to give a right of action to them or their assigns in any suit brought upon this bond. Should the condition of this bond be fully perfo=ed, then this obligation shall become null and void, otherwise, it shall be and remain in full force and effect. The Surety hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Permit or to the work to be perfo=ed thereunder or the specifications accompanying "State of County of California Orange -f)n December 8, 1998 DATE before me. K. R. Viodes, Notary Puolic NAM::', TITLE OF OFFICER· =.G., "JANe DO::::. NOTARY DUBUC- personally appeared Victoria H. Campbell *********** NAME(S) OF SIGNER{S) [;J personally known to me - œ - D )Ðowcbt~~œs~mæista~~r:¡!S~ to be the person(s.) whose nameQsì is/aæ: subscribed to the within instrument and acknowledged to me that Jbe/she/~ executed the same in .,her/g¡¡ authorized capacity(~), and that byxlxi6/her/tIiœi!x signature~ on the instrument the person~, or the entity upon behalf of which the persontä) acted, executed the instrument. ~ 4 I!:.~ K, R. VIODE.\ "1 l ;~~ Commission # 1 JBD4Ba r ~~ f£~ Notary Public - California ~ . ~ Oronge County f , My Comm, EJ<p¡res May 4,2002 , - WITNESS ~ official seal. ~ ' SIGNATURE OF NOTARY OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT DINDIVIDUAL DCORPORATE OFFICER TITLE OR TYPE OF DOCUMENT TITLE(S) DPARTNER(S) DUMITED DGENERAL 0ATTORNEY-IN-FACT DTRUSTEE(S) D GUARDIAN/CONSERVATOR DOTHER: NUMBER OF PAGES DATE OF DOCUMENT IGNER IS REPRESENTING: NAME OF PERSON(S) OR ENTITY(IES) SIGNER(S) OTHER THAN NAMED ABOVE m.d7/í l~empeR. Insurance Companies Commercia! Lines Group AMERICAN MOTORISTS INSURANCE COMPANY ,l1e Office: Long Grove, IL 60049 POWER OF ATTORNEY Know All Men By These Presents: That the American Mqtorists Insurance Company, a corporation organized and existing under the laws of the State of lliinois, and having its principal office in Long Grove, Illinois, does hereby appoint -, Thomas G. McCall, K.R. Viodes, E. Urena, Victoria M. Campbell its true and lawful agent(s) and attomey(s)-in-fact, to make, execute, seal, and deliver during the period beginning with the date of issuance of this power and ending December 31,2001, unless sooner revoked for and on its behalf as surety, and as its act and deed: Name of Principal: PHI OTAY RANCH ASSOCIATES LLC a Delware limited liability company Bond No.: 3SM 916 927 00 Penal Sum: $ 249,650.50 Perf Name of Obligee: CITY OF CHULA VISTA 249,650,50 L&M .,¡,-04 'JIo- Description: Chula Vista Tr No 91, 86 Parcel R-9 EXCEPTION: NO AUTHORITY is granted to make, execute" seal and deliver any bond or undertaking which guarantees the payment or collection of any promissory note, check, drarr or letter of credit. This authority does not permit the same obligation to be split into two or more bonds in order to bring each such bond within the dollar limit of authority as sefforth herein, This appointment may be revoked at any time by the American Motorists Insurance Company. -¡:;¡,., executiOrt of such bonds and undertakings irt pursuance of these presents shall be as binding upon the said 'rican Motorists Insurance Company as fully and amply to all intents and purposes, as if the same had been duly c ,;uted and acknowledged by its regularly elected offic:ers at its principal offic:e in Long Grove, Illinois. THIS APPOINTMENT SHALL CEASE AND TERMINATE WITHOUT NOTICE AS OF DECEMBER 31, 200L This Power of Attomey is executed by authority of a resolution adopted by the Executive Committee of the Board of Directors of said American Motorists ¡nsurance Company on February 23,1988 at Long Grove, Illinois, a true and accurate copy of which is hereinafter set forth and is hereby certified to by the undersigned Secretary as being in full force and effect , 'VOTED, That the Chairman of the Board, the president, or any Vice President, or their appointees designated in writing and filed with the Secretaryl,or the Secretary sha I have the Jower and authority to appoint agents and attomeys-in-fact, and to authorize mem to execute on behalf of the Company, and attach the seal of the Company thereto, bonds and undertakinos, recognizances, c:ontracts of indemnity and other writings, obligatory in the nature thereof, and any such officers õf the 'Company may appoint agents for acceptance of process." This Power of Attomey is signed, sealed and certified by facsimile urtder and by authority of the following resolution adopted by the EXecutive Committee of the Board of Directors of the Company at a meeting duly called and held on the 23rd day of February, 1988: 'VOTED, That the signature of the Chairman of the Board, the President, any Vice president¡ or their appointees designated in writing and filed with the Secretary, and the signature of the Secretary, the sea of the Company, and certifications by the Secretary, may be affixed by facsimile on any power of attomey or bond executed pursuant to resolution adopted by the Executive Committee of the Board of Directors on February 23, 1988 and any such power so executed, sealed and certified with respect to any bond or undertaking to which it is attached, shall continue to be ' valid and binding upon the Company." In Testimony Whereof, the American Motorists Insurance Company has caused this instrument to be signed and its corporate seai to be aTñxed by its authorized officers, this 26th day of Juiy , 19 93, "'.ttested and Certified: AMERICAN MOïORISTS INSURANCE COMPANY fdkd ,o~ e 5)- ¡::y,..,.~"" J, S, Kemper, III, Exec, Vice President '(obert P. Hames, Secretary d(ÌT¡::.llt\rv¡::D^C'!!,.....,r-r-I"""\,....".",. ~_ 'An,' ",-,........ ,._~~'.. -.,-,,.-.-,.....,-..,,...~, AMER..¡ o "1 4- STAlE OF CALIFORNIA COUNTY OF San Diego } }ss. } On January 4, 1999 , before me, Joan Cuozzo, Notary Public personally appeared Kevin M. Bridges , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature ~t....#?(; /¡ ( J ¡, ''--" /I ~ (This area for offIcial notarial seal) ~ JCAj\, CJGZ20 --~ . . <: ..~' comm:ss,o,~' i= ! i55071 .., N·· --,. j ;:~ O'ocy ~co': - Co!;jornia ~ Si"":~' ".:::::.,...., r"", '~ry -, w '- ....-~~~·_-'U.I -,. " M~'CC~;r.--:, :-Y.;'= \..A"'- '1 'YY~. r ~. ',.. .-,~¡.;" ¿""^-! t - - - - - - ~ - - - ~ _ 1 Title of Document Date of Document Other signatures not acknowledged No, of Pages 3008 (1'94) (General¡ First American Title Insurance Company lI'Executed in Triplicat, File No,: (£ 12<¡r Bond NO.:3SM g] 7 095 00 Premium: $127.00(2 yr FIRST TERM PREMIUM FULLY EARNEr LET IT BE KNOWN BY THESE PRESENTS, that ;"?;p ?;:~r~;'~~i ~~~o~~~W; i gc m,,,aRY as the subdivider (hereinafter "Principal"), and AMERICAN MOTORISTS INSURANCE COMPANY , a corporation of the State of ILLINOIS (hereinafter "Surety"), are held and fIrmly bound unto the City of Chula Vista, a municipal corporation (hereinafter "City"), in the County of San Diego, State of California, and to and for the benefIt of any and all persons who may suffer damage by reason of the breach of the conditions hereof, in the penal sum of Twelve Thousand Six Hnnnrpn ,;fry and No!J OOths dollars ($ 12.650,00 ) I SURVEY MONUMENT INSTALLATION BOND I lawful money of the United States, to be paid to City, WHEREAS, Principal is presently engaged in subdividing certain lands to be known as Otay Ranch Village 1 R-9 W.O. OR-129F subdivision in the City of Chula Vista; and, WHEREAS, Principal and City have entered approved by City Council Resolution No. whereby Principal agrees to install durable survey Agreement, dated , 19_ and into a Subdivision Improvement Agreement (hereinafter referred to as "Agreement") monuments for said subdivision, which said identifIed as project Otay Ranch Village 1 R-9 W.O. OR-129F is hereby referred to and made a part hereof; and, WHEREAS, Principal desires to not install durable survey monuments prior to the recordation of the [¡nal map of the subdivision and desires to install same at a later date, NOW, THEREFORE, the condition of the above obligation is that if Principal shall have installed durable monuments of the survey by HUNSAKER & ASSOCIATES (Name of Licensed Civil Engineer or Land Surveyor) in accordance with the final map of said subdivision, a copy of which said map is hereby made and same is incorporated herein as though set forth in full, and according to the ordinances of the City of Chula Vista in full force and effect at the time of the giving of this bond, on or before the expiration of thirty (30) consecutive days following completion and acceptance of public improvements within said subdivision as specified in said Agreement. then the obligation shall be void. otherwise to be and remain in full force and effect. IN 'vVITNESS \VHEREOF, this instrument has been duly executed by the Principal and Surety above named, on December 23 19~. PHI Otay Ranch Associates LLC a Delaware limited liability company ^ -' ,.." a ~ Æsrl .7r".""<,, , Kevin M. Bridges Principal AMERICAN MOTORISTS INSURANCE COMPANY Surety (Above-signatories must be notarized.) Approved as to form: ~ :5ìí;¡C~ j~ Attorney ~ 3-5 fY\ q/ro1S-{) õ (PW-E-34) State CJf California l County of Orange On December 23, 1998 DATE before> me K. R. Viodes, Notarv Public _ , J NAME. TITLE OF OFFICER - E.G., "JANE DOE. NOTARY PUBLIC" personally appeared Victoria M. Campbell *********** NAME(S) OF SIGNER(S) bJ personally known to me . œ - 0 ~ iWi~flœ to be the person(s:) whose name~ is/aæ: subscribed to the within instrument and acknowledged to me that Jbe/she/" executed the same in _her/~ authorized capacity(i@S), and that byJdxis/her/tlmeiJxsignature(S}. on the instrument the person(S}., or the entity upon behalf of which the perso~ acted, executed the instrument. ~ J~'>'" com~í~i:~~C)í780488 t ::;;;:3~~~ Notarv PUDiì:: - Califomia ~ \ ·\:.:i-~r.:. órange County [ j."~~'./ My Comm.ExDiresMay·4,2C02 f WITNEJ2i1~al seal' SIGNATURE OF NOTARY - ---..-------...------ - OPTIONAL Though the data below is not required by iaw, ~ may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form, CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT ÙINDIVIDUAL DCORPORATE OFFICER TITLE OR TYPE OF DOCUMENT TITLE(S) DPARTNER(S) o LIMITED DGENERAL [!] ATTORN EY-I N-FACT DTRUSTEE(S) DGUARDIAN/CONSERV A TOR DOTHER: NUMBER OF PAGES DATE OF DOCUMENT ~IGNER IS REPRESENTING: ,ME OF PERSON(S) OR ENTITY(IES) SIGNER(S) OTHER THAN NAMED ABOVE l\empeR. Insurance Compan. CommerciBI Lines Group AMERICAN MOTORISTS INSURANCE COMPANY ~,- <J Office: Long Grove, IL 60049 POvVER OF ATTORNEY Know All Men By These Presents: That the American Motorists Insurance Company, a corporation organized and existing under the laws of the State of Illinois, and having its principal office in Long Grove, Illinois, does tiereby appoint . Thomas G. McCall, K.R. Viodes, E. Ureno, Victoria H. Campbell its true and lawful agent(s) and attomey(s)-in-fact, to make, execute, seal, and deliver during the period beginning with the date of issuance of this power and ending December 31, 2001, unless sooner revoked for and on its behalf as surety, and as its act and deed: Name of Principal: PHI Otav Ranch A~snciatp.:!=; T.T,r. ~ npl;::,w;¡rp. l;m;rørl l;~"h;l;t-y r-r·''TYIP"='.....;y Bond No,: 35M 917 095 00 Penal Sum: $ 12.650,00 Name of Obligee: City of Chula Vista Description: Monument Otay Ranch Village 1 R-9 EXCEPTION: NO AUTHORITY is granted to make, executeh seal and deliver any bond or undertaking which guarantees the payment or collection of any promissory note, check, drarr or letter of credit This authority does not permit the same obligation to be split into two or more bonds in order to bring each such bond within the dollar limit of authority as ser forth herein. This appointment may be revoked at any time by the American Motorists Insurance Company. The execution of such bonds and undertakings in pursuance of these presents shall be as binding upon the said Ar---öcan Motorists Insurance Company as fully and amply to all intents and purposes, as if the same had been duly e: :ad and acknowledged by its regularly elected officers at its principal office in Long Grove, Illinois. THIS APPOINTMENT SHALL CEASE AND TERMINATE WITHOUT NOTICE AS OF DECEMBER 31,2001. This Power of Attorney is executed by authority of a resolution adopted by the Executive Committee of the Board of Directors of said American Motorists Insurance Company on February 23, 1968 at Long Grove, Illinois, a true and accurate copy of which is hereinafter set forth and is hereby certified to by the undersigned Secretary as being in full force and effect ' "VOTED, That the Chairman of the Board, the President or any Vice President, or their appointees designated in writing and filed with the Secretary or the Secretary shall have the power and authority to appoint agents and attorneys-in-fact, and to authorize !hem to execute on behalf of the Company, and attách the seal of the Company thereto, bonds and undertakinas, recQ9nizances, contracts of indemnity aná other writings, obligatory in the nature thereof, and any such officers õf the COmpany may appoint agents for acceptance of process." This Power of Attorney is signed, sealed and certified by facsimile under and by authority of the following resolution adopted by the EXecutive Committee of the Board of Directors of the Company at a meeting duly called and held on the 23rd day of February, 1986: "VOTED, That the signature of the Chairman of the Board, the President, any Vice president¡ or their appointees designated in writing and filed with the Secretary, and the signature of the Secretary, the sea of the Company, and certifications by the Secretary, may be affixed by facsimile on any power of attorney or bond executed pursuant to resolution adopted by the ExecutiVe Committee of the Board of Directors on February 23, 1966 and any such power so executed, sealed ana certified with respect to any bond or undertaking to which it is attached, shall continue to be . valid and binding upon the Company." In Testimony Whereof,¡.,the American Motorists Insurance Company has caused this instrument to be signed and its corporate seal to be arnxed by its authorized officers, this 26th day of July , 19 93. Attested and Certified: AMERICAN MOTORISTS INSURANCE COMPANY 7) IdrP. I! ~ @ 9-¡;-")::'.,.~"" J. S. Kemper, III, Exec, Vice President Robert P. Hames, Secretary NOTE: ANY ERASURES OR WHITE OUT WILL VOID THIS POWER OF ATIORNEY. øg .~~ --®--.. STA1E OF CALIFORNIA COUNTY OF San Diego } }ss. } On January 4, 1999 , before me, Joan Cuozzo, Notary Public personally appeared Kevin M. Bridges , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. /f (j¿ ~~ Signature f,ij--;2f~~;;:1¥J ".~.. _ ,~~. t. ';'- ~J: - ,,''': - :œ, ¡ ..... ~ - _ i (ThIS area for offiCIal notarial sea!) Title of Document Date of Document Other signatures not acknowledged No, of Pages 3008 (1'94) (General) FlfS1 American Tille Insurance Company 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 PHI OTAY RANCH ASSOCIATES, LLC, a Delaware Limited Liability company, 15373 Innovation Drive, Suite 380, San Diego, California 92128 hereinafter called "Subdivider" with reference to the facts set forth below, which Recitals constitute a part of this Agreement; RECITALS: WHEREAS, Subdivider is about to present to the City Council of the City of Chula vista for approval and recordation, a final subdivision map of a proposed subdivision, to be known as otay Ranch, village 1, Neighborhood R-14 (CVT 96-04) pursuant to the provisions of the Subdivision Map Act of the State of California, and in compliance with the provisions of Title 1B 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 1 WHEREAS, Subdivider is willing in consideration of the approval and recordation of said map by the Council, to enter into this agreement wherein it is provided that Subdivider will install and complete, at Subdivider's own expense, all the public improvement work required by City in connection with the proposed subdivision and will deliver to City improvement securities as approved by the City Attorney; and WHEREAS, a tentative map of said subdivision has heretofore been approved, subject to certain requirements and conditions, as contained in Resolution No. 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. 98-1197 through 98-1204 inclusive, on file in the office of the City Engineer; and WHEREAS, an estimate of the cost of constructing said public improvements according to said plans and specifications has been submitted and approved by the City in the amount of Four Hundred Ninety-Nine Thousand Three Hundred One Dollars and No Cents ($499,301.00) . NOW, THEREFORE, IT IS MUTUALLY UNDERSTOOD AND AGREED AS FOLLOWS: 1. Subdivider, for itself and his successors in interest, an obligation the burden of which encumbers and runs with the land, agrees to comply with all of the terms, conditions and requirements of the Tentative Map Resolution; to do and perform or cause to be done and performed, at its own expense, without cost to City, in a good and workmanlike manner, under the direction and to the satisfaction and approval of the City Engineer, all of the public improvement and/or land development work required to be done in and adjoining said subdivision, including the improvements described in the above Recitals (" Improvement Work"); and will furnish the necessary materials therefor, all in strict conformity and in accordance with the plans and specifications, which documents have heretofore been filed in the Office of the City Engineer and as described in the above Recitals this reference are incorporated herein and made a part hereof. 2. It is expressly understood and agreed that all monuments have been or will be installed within thirty (30) days after the completion and acceptance of the Improvement Work, and that 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 2 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 sum of Two Hundred Forty-Nine Thousand six Hundred Fifty Dollars and Fifty Cents ($249,650.50) which security shall guarantee the faithful performance of this contract by Subdivider and is attached hereto, marked Exhibit "A" and made a part hereof. 7. Subdivider further agrees to furnish and deliver to the City of Chula vista simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of Two Hundred Forty-Nine Thousand six Hundred Fifty Dollars and Fifty Cents ($249,650.50) to secure the payment of material and labor in connection with the installation of said public improvements, which security is attached hereto, marked Exhibit "B" and made a part hereof and the bond amounts as contained in Exhibit "B", and made a part hereof. 8. 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 Twelve Thousand six Hundred Fifty Dollars and No Cents ($12,650.00) 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 3 completed within the time agreed herein, the sums provided by said improvement securities may be used by City for the completion of the Improvement Work within said subdivision in accordance with such specifications herein contained or referred, or at the option of the City, as are approved by the city Council at the time of engaging the work to be performed_ Upon certification of completion by the City Engineer and acceptance of said work by City, and after certification by the Director of Finance that all costs hereof are fully paid, the whole amount, or any part thereof not required for payment thereof, may be released to Subdivider or its successors in interest, pursuant to the terms of the improvement security. Subdivider agrees to pay to the city any difference between the total costs incurred to perform the work, including design and administration of construction (including a reasonable allocation of overhead), and any proceeds from the improvement security. 10. It is also expressly agreed and understood by the parties hereto that in no case will the City of Chula vista, or any department, board or officer thereof, be liable for any portion of the costs and expenses of the work aforesaid, nor shall any officer, his sureties or bondsmen, be liable for the payment of any sum or sums for said work or any materials furnished 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 1B 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 4 hereinabove. 13. It is understood and agreed that City, as indemnitee, or any officer or employee thereof, shall not be liable for any injury to person or property occasioned by reason of the acts or omissions of Subdivider, its agents or employees, or indemnitee, related to this agreement. Subdivider further agrees to protect and hold the City, its officers and employees, harmless from any and all claims, demands, causes of action, liability or loss of any sort, because of or arising out of acts or omissions of Subdivider, its agents or employees, or indemnitee, related to this agreement; provided, however, that the approved improvement security shall not be required to cover the provisions of this paragraph. Such indemnification and agreement to hold harmless shall extend to damages to adjacent or downstream properties or the taking of property from owners of such adjacent or downstream properties as a result of the construction of said subdivision and the public improvements as provided herein. It shall also extend to damages resulting from diversion of waters, change in the volume of flow, modification of the velocity of the water, erosion or siltation, or the modification of the point of discharge as the result of the construction and maintenance of drainage systems. The approval of plans providing for any or all of these conditions shall not constitute the assumption by City of any responsibility for such damage or taking, nor shall city, by said approval, be an insurer or surety for the construction of the subdivision pursuant to said approved improvement plans. The provisions of this paragraph shall become effective upon the execution of this agreement and shall remain in full force and effect for ten (10) years following the acceptance by the City of the improvements, 14. Subdivider agrees to defend, indemnify, and hold harmless the city or its agents, officers, and employees from any claim, action, or proceeding against the City or its agents, officers, or employees to attack, set aside, void, or annul, an approval of the City, advisory agency, appeal board, or legislative body concerning a subdivision, which action is brought within the time period provided for in Section 66499 _ 37 of the Government Code of the State of California. (NEXT PAGE IS SIGNATURE PAGE) 5 SIGNATURE PAGE TO SUBDIVISION IMPROVEMENT AGREEMENT OTAY RANCH, VILLAGE 1, NEIGHBORHOOD R-14 IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed the day and year first hereinabove set forth_ THE CITY OF CHULA VISTA PHI OTAY RANCH ASSOCIATES, LLC, a Delaware Limited Liability Compan Mayor of the City of Chula vista City Clerk /11e(V~"1 J ¡/,((YrDtlcJ hç;s.t-.{ )~vy I ATTEST Approved as to form by City Attorney (Attach Notary Acknowledgment) 6 s't ,~ ~ STATE OF CALIFORNIA COUNTY OF San Diego } }ss. } On ·.:;'/¡¡h0' , before me, Joan Cuozzo, Notary Public personally appeared Melvin J. Mercado , personally known to me (e~#:t€--Ðast~f aali3foc.fept€lfièeA€e) to be the person(st whose name(st isfafe subscribed to the within instrument and acknowledged to me that he/slteftfle'y-€xecuted the same in his,Ll:\ef,ltReiF-aulhorized capacily~est, and that by his/ReFl~if signaturE$)- on the inslrument the person(¡¡)-or the entity upon behalf of which the personfs) acted, executed the instrument. WITNESS my hand and official seal. .// // L~~ , ' J .~ , Signature ~- .~ -: ~~ - - ~O~~J~Z; - -~ _@ Commission # 1155071 ~.... ,Notary P, UDL.c - Colifornia ~ ~ . Sm Diegc CounTy f '. MyCO;;1rTLEx.::;r~Sepll.2'X" - - - - - - - - - - - (This area for official notanal seal) Title of Document Date of Document Other signatures not acknowledged No, of Pages 3008 (1'94) (General) FlfS1 AmenC:'1n Title InSIJranre Company LIST OF EXHIBITS Exhibit "A" Improvement Security - Faithful Performance Form: Bond Amount: $249,650.50 Exhibit "B" Improvement Security - Material and Labor: Form: Bond Amount: $249,650.50 Exhibit "C" Improvement Security - Monuments: Form: Bond Amount: $12,650.00 securities approved as to form and amount by City Attorney Improvement Completion Date: Two (2) years from date of City Council approval of the Subdivision Improvement Agreement H:\Home\Attorney\SIA\Villl.R14 7 "EXECUTED IN TR1. lCATE" ()¡2..SÛJ --- --=------- ' BOND FOR FAITHFUL PERFORMANCE (To Be Used Prior to Approval of Subdivision Improvement Agreement) File No.: (F /Ji<:J Bond NO.:3SM 917 093 00 Prenriurn: $3,630.00/2 yr FIRST TERM PREMIUM FULLY EARNED WHEREAS, the City Council of the City of ChuJa Vista, County of San Diego, State of California, and PHI Otay Ranch Associates LLC a Delaware limited liability compa:ÇtJereinafter Principal) desire to enter imo a Subdivision Improvement Agreement (hereinafter referred to as Agreement) whereby Principal agrees to install and.f.0.~~ certain designated public improvements for the project lœown as Chula Vista Tract No 94 ~4 - tav Ranch Villa~e One Npi~hnnrhnnn ~-14 ; and WHEREAS, Principal desll'es to co== constrUction of said public improvements prior to approval of said Agreement by the City Council of the City of Chula Vista; and, WHEREAS, the City of Chula Vista, County of San Diego, State of California, has issued to Principal ConsmlC:tion P=it No. ¿?-K -/36 í (hereinafter referred to as Permit) for the public improvement work as set forth in more detail on City of Chula Vista Drawing Nos. '1f3 -I H7 through t15' - /2 C4- , regarding construCtion of said public improvements, which Permit is hereby referred to and made a part hereof; and, WHEREAS, said Principal is requjred under the terms of said Permit to furnish a bond for faithful performance of said Permit. NOW THEREFORE, we, the Principal and American Motorists Insurance Companv , a corporation of the State of Illinois , (hereinafter Smety), are held and firmly bound unto the City of Chula Vista, a municipal corporation (hereinafter City) in the County of San Diego, State of California, and to and for the benefit of am; and all ~rsons who may suffer damages by breach of the conditions hereof, in the penal sum of ~~nr~df~~ht-fgtn:~g o';;;nT~R~~ß13~þ~OUrdollars, ($ 181,489.50 ), lawful money of the United States, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, su=ssors, executors and arim;ni~trators, jointly and severally, fIrmly by these presents. The condition of this obligation is such that if the above-bound Principal, his or its hell's, executors, administrators, suc("~sn~ or assigns, sball in all things stand to and abide by, and well and truly keep and perform the terms, covenants, conditions, and provisions of said Permit and a subsequent Agreement and any alteration thereof made as therein provided, on his or thell' part, to be kept and performed at the time and in the monn"f therein specified, and in all respects according to their true intent and meaning, and shall indemnify and save harmless City, its officers, agents and employees, as therein stipulated, then this obligation shall become null and void; otherwise, it shall be and remain in full force and effect. k pan of the obligation s=ed hereby and in addition to the face amount specified therefor, there shaI1 be included costS and reasonable expenses and fees, including reasonable attorney's fees, incurred by City in successfully enforcing such obligation, all to be taXed as costs and included in any judgment rendered. The Surety hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Permit or to the work to be performed thereunder or the specifIcations accompanying the same shall in anywise affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Permit or to the work or to the specifIcations. In addition to the acts bond:d for pursuant to the Permit incorporated above, the folIowing acts and performances are additionally subject to the terms of this bond: IN WITNESS WHEREOF, this insmnnent has been duly executed by the Principal and Surety above named, on December 23. , 19 Jill... By By ,1:-' /11 ' at- ÂS"",' -¡;,u..r"r Kevin M: Bridges AMERICAN MOTORISTS INSTffiANr.R r.O~ANY :~00~Pm. co no""", M _,ru.. A~' 7470 N Figueroa St Address of Surety Company OTAY RANCH ASSOCIATES, LLC ~ no 1 !J"C'.TO"""O 1 :imi t'il;:! 1; ::¡r,; 1; 'ru ,..t"\mp~fl:" Name of Principal (Applicant) . 3SM 917 093 00 Bond/Policy No. Los Angeles, CA 90041 City S~re Zip Code ABOVE-SIGNATORIES MUST BE NOTARIZEP ... ..' . ....._. .... ;... .' ..'. ._.:o»:.x.»>~:-:-.,···· ..... ....~ . I ,'RIDER'< '\, I BondIPolicy No.: 3SM 917 093 00 Principal OTAY RANCH ASSOCIATES LLC a Delaware 1 imi tpn liabi 1 i tv rnmp""J' AInount $181,489.50 In Favor of riry of rìml0 Vi<fo This bond, submitted for Performance Bönd ' covers constrUction of public improvements, if any, both prior to and subsequent to, City approval of Principal's Subdivision ImP~vement Agreement as to the project known as . It. So<- Chula V1.sta Tract No Ot'.::IY R::¡n,..'h Vi 11 ;:¡gP Onø Nø; g'h'hn.'....h,,'"'g ~ 1 ~ This Rider is Effective December 23. 199R By VICTORIA M CAMPBELL, ATTORNEY-IN-FACT ABOVE-SIGNA TO S MUST BE NOTARIZED ';:" :' ":¡;".. ";.... :. :v:(-w..~;.....¡;¡r~r""~' ..) .... :::!. '$'¡;¡' ;; ~¡z~;;' ¡.:...":~ ..;:..;v~:.;.~:.. ... . APPROVED AS TO FORM: ...!-,.¿;;; , {~(¡J{ff h^(éd~ City Atto H:\HOMEIENGINEERILANDDEV\FORMSIFP _BOND.RID ' State öt California County of Orange L_on December 23, 1998 DATE personally appeared before me, K. R. Viodes, Notary Public NAME. TITLE OF OFFICER· E.G.. "JANE DOE, NOTARY PUBLIC" Victoria M. Campbell *********** NAME(S) OF SIGNER(S) GJ personally known to me - œ - D ~ Mlt~~'me to be the person(5r) whose name~ is/aœ:: subscribed to the within instrument and acknowledged to me that Jbe/she/tbQy; executed the same in _her/~ authorized capacity(ieš), and that byxhliG/her/t:kœiIxsignature(sJ: on the instrument the person(£;" or the entity upon behalf of which the perso~ acted, executed the instrument. 4 - - - - - - - - - - - - . ~, K., R: VIODES f , (~.,;;;. CommISSion" 1180488 ~ ",:,,:;'i>~:;"~.:~~ Nmary Puoiì:: - California ~ 1,.,. f~.~Î Orange, County f ",e '__c·-· MyComm. Ð:D::e5 Mcry4,2CXJ2 .........,--,----.., ',r~. .... 'W".... __ ~ _. ",' . W~~d official seal. SIGNATURE OF NOTARY OPTIONAL Though the data below is not required by law, it may prove valuable to persons relyirtg on the document and could prevent fraudulent reattachmertl of this form, CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT UINDIVIDUAL DCORPORATE OFFICER TITLE OR TYPE OF DOCUMENT TITLE(S) DPARTNER(S) DUMITED DGENERAL 0ATTORNEY-IN-FACT DTRUSTEE(S) D GUARDIAN/CONSERVATOR DOTHER: NUMBER OF PAGES DATE OF DOCUMENT IGNER IS REPRESENTING: ..AME OF PERSON(S) OR ENTITY(IES) SIGNER(S) OTHER THAN NAMED ABOVE "Exec:uted in Triplic:"te" BOND FOR MATERIAL AND LABOR (To Be Used Prior to Approval of Subdivision Improvement Agreement) File No.: 0,£ /3{¡J Bond NO.:'1!':M q17 nq3 00 Prennura: inc:luded in Performanc:e bond WHEREAS, the City Council of the City of Chu1.a Vista, County of San Diego, State of Calif OIDia, and p~+ g1;ay Ranc:h Assoc:iates LLC a Delaware limited (hereinafter Principal) desire to enter int~aa ~uìidivis~~li"flfiprovement Agreement (hereinafter referred to as Agreement) whe:reby Principal agrees to ffista11 and COIDD1"re certain desigTI~tf"..d public improvements for the project 1m ",,-0"1- -g¡;;:..,: --" o~as Chula Vista Tract No ~~ 84 Ot~y R~nrn V;1'Agp nnØ Np;ghhn~hnn~ ~ J~ ; 4UU WHEREAS, Principal desires to commence construction of said public improvements prior to approval of said Agreement by the City Council of the City of Chula Vista; and, WHEREAS, the City of Chula Vista, County of San Diego, State of California, has issued to Principal ConstrUCtion Permit No. ttJ/Z- /3Ø.í (hereinafter referred to as Permit) for the public improvement work as set forth in more detail on City of Chula Vista Drawing Nos. Cìf!3 - ¡if 7 through c;e - 12(1+ ,regarding construction of said public improvements, which Permit is hereby referred to and made a pan hereof; and, WHEREAS, under the rerms of said Permit, Principal is required, before entering upon the performance of the work, to fIle a good and sufficient payment bond with the City of Chula Vista to secure the claims to which reference is made in Title 15 (commencing with Section 3082), Pan 4, Division 3, of the Civil Code of the Stare of California. NOW THEREFORE, said Principal and Americ:an Motorists Insurance ComnRnv , a corporation of the State of Illinois , (hereinafter Surety), are held and firmly bound unto the City of Chula Vista, a municipal corporation (hereinafter City) in the County of San Diego, Stare of Califonna, and all comractors, subcontractors, laborers, materialmen and other persons employed in the performance of the aforesaid Permit and ref=d to in the aforesaid Code of Civil Procedure in the sum of 'iïift Hunf·ed Ei~h= Thousand Four Hundrèòllars, ($181,489.50 ), lawful money of the U t~d t'a'Ms,"for ~'fumished or labor thereon of any kind, or for amounts due under the Unemployment Insurance Act with respect to such work or labor, that said Surety will pay the same in an amount not ex=ding the amount hereinabove set forth, and also in case suit is brought upon this bond, will pay, in addition to the face amount thereof, costs and reasonable expenses and fees, including reasonable attorney's fees, ÎIIC11II'ed. by City in successfully enforcing such obligation, to be awarded and fixed by the court, and to be taxed as costs and to be included in the judgment therein rendered. It is hereby expressly stipulated and agreed that this bond shall inure to the benefit of any and all persons, companies and corporations entitled to file claims under Title 15 (commencing with Section 3082), Part 4, Division 3, of the Civil Code, so as to give a right of action to them or their assigns in any suit brought upon this bond. Should the condition of this bond be fully perfo=ed, then this obligation shall become null and void, otherwise, it shall be and remain in full force and effect. The Surety hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Permit or to the work to be performed thereunder or the specifications accompanying the same shall in anywise affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the tetmS of the Permit or to the work or to the specifications . IN WITNESS WHEREOF, this inscrument has been du1y executed by the Principal and Surety above named, on December 23. , 19 98 . .': . . ¡.~. : PHIoTAY RANCH ASSOCIATES, LLC A DELAWARE LIMITIm T,TARTT,T'T'Y rnMPHrv Name of Principal (Applicant) ,<-'"", ß~ . Au-J. ?,,c...-. ",r AMERICAN MOTORISTS TNSTTRANr.1': rnMPHTV Name of Surety Company' (L BY\~~ 1V1 ~o VICTORIA M CAMPBELL, ATTORNEY IN-FACT 7470 N l<';gl1ØT'I"\::J Address of Surety Company By By Kevin M. Bridges 3SM 917 093 00 BondIPoJicy No. Los Angeles. CA 90041 City State Zip Code '..".. u~·..··· . ~OVE-~I,GNA:rORIJ1:S MUST BE NOTA.,WZEII ",.,.=" ,., .y.~.~.~..:>:.~~.,>.;::.,." ",,,y,«.y"'~_'" . . .,..,._,..,..~=' .. . ..,.,..~ .:--.....,,':x,»....~....r,.~..,... ...... ,.,-,-" y I RIDER I v...·.· Bond/PoJicyNo-: 3SM 91709300 Principal PHI OTAY RANCH ASSOCIATES LLC A DELAWARE LIMITED LIABILITY COMPANY AünOUIæ $181,489.50 In Favor of rity nf nml. Vi~. This bond. submitted for LABOR & MATERIAL BOND ' covers construction ofpub1ic improvements, if any, both prior to and subsequent to, City approval of Principal's Subdivision Im~r vement Agreement as to the project lmown as , 11·0.,. ~ Chula V~sta Tract No 0'i 1),. Otav Ranch Villa2e One Neíø-nhnrnnnn "R_l/~ This Rider is Effective December 23, 1998 Name of Surety AMERICAN MOTORISTS ~INSURANCE CO ANY By \J~ ~1(). 0- - VICTORIA M CAMPBELL ATTORNEY-IN-FACT ABOVE-SIGNATORJES MUST BE NOTARIZED :" :"V"~ m":_....····.. APPROVED AS TO FORM: fW Í{l1ré(/.~~ City A 0 H:\HOME\ENGINEERILANDDEV\FORMS\M&L_BOND.RID State of California County of Orange On December 23, 1998 1'-- DATE before me, K. R. Viodes, Notary, ?ublie NAME. TITLE OF OFFICER ~ E_G., "JANE DOE. NOTARY PUBLIC- personally appeared Victoria M. Campbell *********** NAMEIS) OF SIGNERIS) Ii] personally known to me - Œ- D ~~>é#d~~iS!lmtøl'yq3'9jøel'l~ to be the person(s.) whose nameCsì is/a¡æ: subscribed to the within instrument and acknowledged to me that Jbe/she/tbI¥ executed the same in _her/ff:1OOt authorized capacity(i@š), and that by¡¡lxŒ;/her/tltæilxsignature(.s): on the instrument the person(.s):, or the entity upon behalf of which the perso~ acted, executed the instrument. ~------------ ~, K,. R: VIODES ,,/¿~ CommISSion # 1l~048B f ~ -:'.~~I Notary Pub!lc - Califomia $: , \.':¡;.¡.~ Oranae Caurtty f ~_ ~~'- MYCOmm._~iresMay4.2CXJ2 ,~.. < -.~ .~. '" ... - -- ~ '"' - WITN~Y hand and official seal. J~ .. / SIGNATURE OF NOTARY ---- ---- OPTIONAL Though the data below is not required by law, rt may prove valuable to persons relying on the documertt and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT L.J INDIVIDUAL DCORPORATE OFFICER TITLE OR TYPE OF DOCUMENT TfTLE[S) DPARTNER(S) DLlMITED DGENERAL illATTORNEY-IN-FACT DTRUSTEE(S) o GUARDIAN/CONSERVATOR DOTHER: NUMBER OF PAGES DATE OF DOCUMENT -'!GNER IS REPRESENTING: ,ME OF PERSONS) OR ENTITY[IES) SIGNER(S) OTHER THAN NAMED ABOVE m,d7/16/98 It'empeR. Insurance Companies Commercial Lines Group AMERICAN MOTORISTS INSURANCE COMPANY Ie Office: Long Grove, IL 60049 POWER OF ATTORNEY Know All Men By These Presents: That the American Motorists Insurance Company, a corporation organized and existing under the laws of the State of Illinois, and having its principal office in Long Grove, Illinois, does hereby appoint . Thomas G. McCall, K.R. Viodes, E. Ureno, Victoria M. Campbell its true and lawful agent(s) and attomey(s)-in-fact, to make, execute, seal, and deliver during the period beginning with the date of issuance of this power and ending December 31, 2001, unless sooner revoked for and on its behalf as surety, and as its act and deed: Name of Principal: PHI Otay Ranch Associates LLC a Delaware limited liability company Bond No.: 35M 917 093 00 Penal Sum: $181,489,50 Perf Name of Obligee: City of Chub Vista 181,489.50 L&M q.,.O"f 'iI>'- Description: Chula Vista Tr 1!9(,Ø" Otay Ranch Village One Neighborhood R-14 EXCEPTION: NO AUTHORITY is granted to make, executE!h seal and deliver any bond or undertaking which guarantees the payment or collection of any promissory note, check, drarr or letter of credit This authority does not permit the same obligation to be split into two or more bonds in order to bring each such bond within the dollar limit of authority as sef forth herein. This appointment may be revoked at any time by the American Motorists Insurance Company. The execution of such bonds and undertakings in pursuance of these presents shall be as binding upon the said r'rican Motorists Insurance Company as fUlly and amply to all intents and purposes, as if the same had been duly , ¡¡tad and acknowledged by its regularly elécted officers at its principal office in Long Grove, Illinois. THIS APPOINTMENT SHALL CEASE AND TERMINATE WITHOUT NOTICE AS OF DECEMBER 31, 2001. This Power of Attorney is executed by authority of a resolution adopted by the Executive Committee of the Board of Directors of said American Motorists Insurance Company on February 23, 1988 at Long Grove, Illinois, a true and accurate copy of which is hereinafter set forth and is hereby certified to by the undersigned Secretary as being in full force and effect "VOTED, That the Chainnan of the Board, the President or any Vice President, or their appointees designated in writing and filed with the Secretary or the Secretary shall have the power and authority to appoint agents and attorneys-in-fact, and to authorize !hem to execute on behalf of the Company, and attach the seal of the Company thereto, bonds and undertakinas, recognizances, contracts of indemnity and other writings, obligatory in the nature thereof, and any such officers õf the Company may appoint agents for acceptance of process." This Power of Attorney is signed, sealed and certified by facsimile under and by authority of the following resolution adopted by the EXecutive Committee of the Board of Directors of the Company at a meeting duly called and held on the 23i'd day of February, 1988: "VOTED, That the signature of the Chairman of the Board, the President, any Vice President. or their appointees designated in writing_and filed with the Secretary, and the signature of the Secretary, the seal of the Company, and certifications by the -Secretary, may be affixed by facsimile on any power of attorney or bond executed pursuant to , resolution adopted by the Executive Committee of the Board of Directors on February 23, 1988 and any such power so executed, sealed ana certified with respect to any bond or undertaking to which it is attached, shall continue to be ' valid and binding upon the Company," In Testimony Whereo~the American Motorists Insurance Company has caused this instrument to be signed and its corporate seal to be amxed by its authorized officers, this 26th day of July , 19 93. Attested and Certified: AMERICAN MOTORISTS INSURANCE COMPANY f 8kd I! <:J/- e ÇL.t'"):;'.,........:!!!: J. S. Kemper, III, Exec, Vice President Robert P. Hames, Secretary NOTE: ANY ERASURES OR WHITE OUT WILL VOID THIS POWER OF ATTORNEY. ~'\' ,~ ~ AMEl?¡ o <ý ~ 4ffL ,~~- - --....:: ®-- STAlE OF CALIFORNIA COUNTY OF San Diego } }ss, } On January 4, 1999 , before me, Joan Cuozzo, Notary Public personally appeared Kevin M. Bridges , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature ~LkJ / / I / '-- . ~ 1 - - - - - ~G:':~j;Z; - - ~ ]~ C=C""',,"1.'55071 ~ ~ 1~~ ~C~; çJG~~~ -:~~:~~T1Ia ~ I '~,y ,. ~,~,~ c.,.=,~~.. ~,' ( , ',--- ,".y ~~ j~' ,-- ---->-- ",':'~'" F ;....- - - - - - - - - - - - ¡. (This area tor offIcIal notarial seal) Title of Document Date of Document Other signatures not acknowledged No. of Pages 3008 (1 :94) ¡General} Firs! American TItle Insurance Company AMER..¡ o "f ~ STAlE OF CALIFORNIA COUNTY OF San Diego } }ss. } On January 4, 1999 , before me, Joan Cuozzo, Notary Public personally appeared Kevin M. Bridges , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature r ¡. ;' l." ~~ (This area fOf official notarial seal) ] - - - - - - - - - - - ~ 1 ~ JC.';~:-J::ZZQ ~ -- If .,~~,.à~"_ CO:'Tl'::55 r,~ =- ~ ~ :::5'7', <. ~ ~ .... ,-/, , ".... u ;: ~~;..&' '. .'"'-".,....,...'~, ,,...,..-. ,- ."" . ~- i,~;~~'"~"'-=¿~)L?]~'~:~J Title of Document Date of Document Other signatures not acknowledged No, of Pages 3008 (1/94) (General) Firs! American Title Insurance Company 1IExecuted in TriplicaL... I I I File No,: /5£ /?(/J SURVEY MONUMENT INSTALLATION BOND BondNo.: 3SM 917 094 00 PremlUm: $231. 00/2 yr FIRST TERM PREMIUM FULLY EARNED PHI Otay Ranch Associates LLC LET IT BE KNOWN BY THESE PRESENTS, that a Delaware limited liability comuanv as the subdivider (hereinafter "Principal"), and AMERICAN MOTORISTS INSURANCE COMPANY , a corporation of the State of ILLINOIS (hereinafter "Surety"), are held and fIrmly bound unto the City of Chula Vista, a municipal corporation (hereinafter "City"), in the County of San Diego, State of California, and to and for the benefIt of any and all persons who may suffer damage by reason of the breach of the conditions hereof, in the penal sum of TWENTY THREE THOUSAND ONE HUNDRED AND NO/100ths ------dollars ($ 23,100,00 ) lawful money of the United States, to be paid to City. WHEREAS, Principal is presently engaged in subdividing certain lands to be known as Otay Ranch Village 1 R-14 W.O. OR-136F subdivision in the City of Chula Vista; and, WHEREAS, Principal and City have entered into a Subdivision Improvement Agreement approved by City Council Resolution No. (hereinafter referred to as "Agreement") whereby Principal agrees to install durable survey monuments for said subdivision, which said Agreement, dated , 19_, and identifIed as project Otay Ranch Village 1 R-14 W.O. OR-136F is hereby referred to and made a part hereof; and, WHEREAS, Principal desires to not install durable survey monuments prior to the recordation of the [mal map of the subdivision and desires to install same at a later date, NOW, THEREFORE, the condition of the above obligation is that if Principal shall have installed durable monuments of the survey by HUNSAKER & ASSOCIATES (Name of Licensed Civil Engineer or Land Surveyor) in accordance with the [¡nal map of said subdivision, a copy of which said map is hereby made and same is incorporated herein as though set forth in full, and according to the ordinances of the City of Chula Vista in full force and effect at the time of the giving of this bond, on or before the expiration of thirty (30) consecutive days following completion and acceptance of public improvements within said subdivision as specified in said Agreement, then the obligation shall be void, otherwise to be and remain in full force and effect, IN WITNESS Vr'HEREOF, this instrument has been duly executed by the Principal and Surety above named, on December 23 19--2L. PHI Otay Ranch Associates LLC a Delaware limited liability companv AMERICAN MOTORISTS INSURANCE COMPANY .< -' />7. O? AGr/. p....s·,u Kevin M. Bridges Principal Surety (Above-signatories must be notarized.) Approved as to form: ~(:rv{~ City Attorney {! 35 fh 1 ( TÒC¡ if 0 D (PW-E-34) State of County of California Orange On December 23, 1998 DATE before me> K. R. Viodes, Notarv, Public ~, , NAME, TITLE OF OFFIGt::R - E..G., "JANE DOE, NOTARY PUBLIC" personally appeared Victoria M. Campbell *********** NAME(S) OF SIGNER(S) GJ personally known to me - 0a- 0 ~m~~I'\~ to be the person(s) whose nameQsì is/aræ: subscribed to the within instrument and acknowledged to me that Jbe/she/~ executed the same in "'her/~ authorized capacity(~), and that byJdB¡/her/tiœÍ!Ksignature~ on the instrument the person{J5$:., or the entity upon behalf of which the perso~ acted, executed the instrument. ~ - .- - - - - - - - - - ~ K. R. VIODES ~ l' !'-d~ Commission # 11B0488 z ~,' ',n:-t_~~;i.' NOTary Puok: - California ?; 1 ~~;" Orange County f ~~~<:.~~. ¡"iy Comm. ExDj;es May 4, 2(X)2 ,- ~.' .. '~. '"" ..... - ,. -- WITN~, Y ha~d and official seal. ~.... , SIGNATURE OF NOTARY ___________.,__n_n__ OPTIONAL Though the data below is not required by law, ~ may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT tJlNDIVIDUAL DCORPORATE OFFICER TITLE OR TYPE OF DOCUMENT TrTLE(S) DPARTNER(S) o LIMITED DGENERAL ~ATTORNEY-IN-FACT DTRUSTEE(S) o GUARDIAN/CONSERVATOR DOTHER: NUMBER OF PAGES DATE OF DOCUMENT -IGNER IS REPRESENTING: .ME OF PERSON(S) OR ENTITY(IES) SIGNER(S) OTHER THAN NAMED ABOVE 1.,.'-', ,\,.:", It''empeR. Insurance Comper. Commercial Lines Group AMERICAN MOTORISTS INSURANCE COMPANY ¡"-"e Office: Long Grove, IL 60049 P,-"VER OF ATTORNEY Know All Men By These Presents: That the American Motorists Insurance Company, a corporation organized and existing under the laws of the State of Illinois, and having its principal office in Long Grove, Illinois, does liereby appoint . Thomas G. McCall, K.R. Viodes, E. Ureno, Victoria M. Campbell its true and lawful agent(s) and attomey(s)-in-fact, to make, execute, seal, and deliver during the period beginning with the date of issuance of this power and ending December 31, 2001, unless sooner revoked for and on its behalf as surety, and as its act and deed: Name of Principal: Phi Otay Ranch Associates LLC a Delaware limited liability compny Bond No,: 35M 917 094 00 Penal Sum: $ 23,100.00 Name of Obligee: City of Chula Vista Description: Monument Otay Ranch Village 1 R-14 EXCEPTION: NO AUTHORITY is granted to make, execu~h seal and deliver any bond or undertaking which guarantees the payment or collection of any promissory note, check, dran or letter of credit This authority does not permit the same obligation to be split into two or more bonds in order to bring each such bond within the dollar limit of authority as set forth herein. This appointment may be revoked at any time by the American Motorists Insurance Company. The execution of such bonds and undertakings in pursuance of these presents shall be as binding upon the said Ar1:æ.rican Motorists Insurance Company as fUlly and amply to all intents and purposes, as if the same had been duly e"- 'ted and acknowledged by its regular1y elected officers at its principal office in Long Grove, lUinois. Th,,,, APPOINTMENT SHALL CEASE AND TERMINATE WITHOUT NOTICE AS OF DECEMBER 31, 200,1. This Power of Attomey is executed by authority of a resolution adopted by the Executive Committee of the Board of Directors of said American Motorists lnsurance Company on February 23, 1988 at Long Grove, Illinois, a true and accurate copy of which is hereinafter set forth and is hereby certified to by the undersigned Secretary as being in full force and effect , "VOTED, That the Chairman of the Board, the President or any Vice President, or their appointees designated in writing and filed with the Secretary or the Secretary shall have the power and authority to appoint agents and attomeys.in-fact, and to authorize ltiem to execute on behalf of the Company, and attach the seal of the Company thereto, bonds and undertakinas, recognizances, contracts of indemnity aná other writings, obligatory in the nature thereof, and any such officers õf the -Company may appoint agents for acceptance of process.· This Power of Attomey is signed, sealed and certified I2Y facsimile under and by authority of the following resolution adopted by the EXecutive Committee of the Board of Directors of the Company at a meeting duly called and held on the 23i'd day of February, 1988: "VOTED, That the si9nature of the Chairman of the Board, the President, any Vice President or their appointees designated in writingand filed with the Secretary, and the signature of the Secretary, the seal of the Company, and certifications by the -Secretary, may be affixed by facsimile on any power of attorney or bond executed pursuant to , resolution adopted by. the Executive Committee of the Board of Directors on February 23, 1988 and any such power so executed, sealed ana certified with respect to any bond or undertaking to which it is attached, shall continue to be . valid and binding upon the Company." In Testimony Whereof1.the American Motorists Insurance Company has caused this instrument to be signed and its corporate seal to be arnxed by its authorized officers, this 26th day of July , 19 93. Attested and Certified: AMERICAN MOTORISTS INSURANCE COMPANY ,)dr.d I!~ @ P- ~'):(..y~~ J. S. Kemper, III, Exec, Vice President Robert P. Hames, Secretary NOTE: ANY ERASURES OR WHITE OUT WILL VOID THIS POWER OF ATTORNEY. AME~¡ o --1 ~ øg g_ t\~ ®-- STATE OF CALIFORNIA COUNTY OF San Diego } }ss, } On January 4, 1999 , before me, Joan Cuozzo, Notary Public personally appeared Kevin M. Bridges , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature ~~ ! ~' ~ "-, ':~'~~~::1 : '-'., -.,", ~.~ ....,..- " , -,.' . "=:-;:,- -':;,)-,~,-,,! - 2?~--~~;;;:~ - .~ } - ~~ :.~'):_ ;;~';:~=~;'~J,;:~.rn¡o ~ I . , V', =c-~- '!~'=' ,: ?O:1'l.' ,~.et ~ _ _ ~ -": -~ "~'~"": g (This area for official notarial seal! Title of Document Date of Document Other signatures not acknowledged No, of Pages 3008 (1'94) (General) F!rSI American Title Insurance Company RESOLUTION NO. /9-Y Y Þ RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENTs FOR THE FINAL MAPS OF CHULA VISTA TRACT NO. 96-04, OTAY RANCH, VILLAGE ONE, NEIGHBORHOODS R-6, R-9 and R-14 AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENTS WHEREAS, the developers of Otay Ranch, village One, Neighborhoods R-6, R-9 and R-14 have executed Supplemental Subdivision Improvement Agreements (SSIA) in order to satisfy Conditions of Resolution for Chula vista Tract No. 96-04. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula vista does hereby approve the Supplemental Subdivision Improvement Agreements for Chula Vista Tract No. 96-04, copies of which are on file in the office of the City Clerk. BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby authorized and directed to execute said Agreements for and on behalf of the City of Chula Vista. Presented by Approved as to form by John P. Lippitt Director of Public Works (f> :S'¡'J{ C ~ J~ Kaheny / City Attorney H:\Home\Attorney\Reøo\R-6-14.sup lig -/ dJ:o .:P0 April f 2.999 RECORDING REQUEST BY: City Clerk WHEN RECORDED MAIL TO: CITY OF CHULA VISTA 276 Fourth Avenue Chula Vista. CA 91910 NO transfer tax is due as this is a conveyance to a public agency of less than a fee interest for which no cash consideration has been paid or received. Developer Above Space for Recorder's Use SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR THE FINAL "B" MAP OF VILLAGE ONE OF THE OT A Y RANCH PROJECT, NEIGHBORHOOD R-6 (Conditions: 1,3,4, 5, 8, 9, 10, 11, 21, 22, 27, 44 and 123 of Resolution No. 18398) This Supplemental Subdivision Improvement Agreement ("Agreement") is made this_day of April, 1999, 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"), with reference to the facts set forth below, which recitals constitute a part of this Agreement: RECITALS A. This Agreement concerns and affects certain real property located in Chula Vista, California, more particularly described on Exhibit "A" attached hereto and incorporated herein ("Property"). The Property is part of the Otay Ranch, Village One SPA One, a master planned development. For purposes of this Agreement the term "project" shall also mean "Property". Developer has applied for final maps for the Property, more specifically known as Neighborhood R-6, 1 " B. Otay Ranch L.P, conveyed title of the Project area to South Bay Project LLC, a Delaware limited liability company on 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-l to UDC Homes, DMEI 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 Centex 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-5 to Standard Pacific Corp., a Delaware corporation on January 2,1998; and Otay Project sold SPA One Planning Area R-8 to Centex 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-lO 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 Centex Homes, a Nevada general 2 "------,_.__.~_.._.__...._._,------_._.._-- ..--.-- 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. Whereas Otay Project, L.L.C, is the master developer who has obligated itself to construct public improvements under the terms of the Tentative Subclivision Map and the Re-stated and Amended Pre-Annexation Development Agreement, (Ordinance No. 2695) D. Developer and/or Developer's predecessor in interest has applied for and the City has approved a Tentative Subdivision Map commonJy 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 " . E. City is willing, on the premises, security, terms and conclitions herein contained to approve final map of the property known as Neighborhood R-6, 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 conclitions contained herein. F. The following defmed 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-6 ofOtay Ranch Village One, SPA One. 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 Otay Project, L.L.C. and any and all owners of real property within the boundaries of the Property, and all signatories to this Agreement including: i.) Otay Project, L.L.C. ii,)Trimark Pacific-LXX, L.L.C 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. 3 f. "PFFP" means the SPA I Public Facilities Finance Plan adopted by Resolution No. 18286 as may be amended from time to time, g. "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. h. ""A" Map Agreement" means the Supplemental Subdivision Improvement Agreement for the Village One "A" Map adopted by Resolution No, 19044, 1. "First Final "B" Map Agreement" means the Supplemental Improvement Agreement for the Village One Neighborhood R-3 Map adopted by Resolution No, 19212, j, "Second Final "B" Map Agreement" means the Supplemental Improvement Agreement for the Village One Neighborhoods R- I, R-2, R-4 and R-5 Map adopted by Resolution No, 19235, NOW, TIIEREFORE, in exchange for the mutual covenants, terms and conditions herein contained, the parties agree as set forth below, 1. Performance Obligation. Otay Project, 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, 10 and 11 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. The City in its discretion will make a good faith effort to execute on bonds securing the obligations contained herein to the extent necessary to complete any unfulfilled obligations of the master developer. 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 4 interest therein, If such covenants are breached, the City shal1 have the right to exercise al1 rights and remedies and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breach to which it or any other beneficiaries of this Agreement and the covenants may be entitled, c. Developer Release on Guest Builder Assignments. If Developer assigns any portion of the Project to a guest builder, Developer may request to be released from Developer's obligations under this Agreement, that are expressly assumed by the guest builder. Developer must obtain the written consent of the City to such release. Such assignment to the guest builder shall, however, be subject to this Agreement and the Burden of this Agreement shall remain a covenant running with the land. The City shall not withhold its consent to any such request for a release so long as the assignee acknowledges that the Burden of the Agreement runs with the land, assumes the obligations of the Developer under this Agreement, and demonstrates, to the satisfaction of the City, its ability to perform its obligations under this Agreement as it relates to the portion of the Project which is being acquired by the Assignee. d, Partial Release of Developer's Assignees. If Developer assigns any portion of the Project subject to the Burden of this Agreement, upon request by the Developer or its assignee, the City shall release the assignee of the Burden of this Agreement as to such assigned portion if such portion has complied with the requirements of this Agreement to the satisfaction of the City and such partial release will not, in the opinion of the City, jeopardize the likelihood that the remainder of the Burden will not be completed. e. Release of Individual Lots. Upon the occurrence of any of the following events, Developer shall, upon receipt of the prior written consent of the City Manager (or Manager's designee), have the right to release any lot(s) from Developer's obligation under this Agreement: i. The execution of a purchase agreement for the sale of a residential lot to a buyer of an individual housing unit; ii. The conveyance of a lot to a Homeowner's Association, The City shall not withhold its consent to such release so long as the City finds in good faith that such release will not jeopardize the City's assurance that the obligations set forth in this Agreement will be performed. At the request of the Developer, the City Manager (or Manager's designee) shall execute an instnnnent 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 5 --..-,,----.-" -~,---_.._-- --..-,-..-. Jot or parcel shal] be automatically released fi-om the encumbrance hereof 3. Condition No.l- (General Preliminary). In satisfaction of Condition No. I of the Resolution, Developer hereby agrees, to comply with the requirements and guidelines of the Parks, Recreation, Open Space and Trails Plan, Public Facilities Finance 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. 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 oftime. 5. Condition No.4 - (General Preliminary) In satisfaction of Condition No, 4 of the Resolution, a.) Otay Project, LLC agrees to indemnify, protect, defend and hold the City harmless from and against any and all claims, liabilities and costs, including attorney's fees, arising from challenges to the Environmental Impact Report for the Project; and b.) Developer agrees to indemnify, protect, defend and hold the City harmless from and against any and all claims, liabilities and costs, including attorney's fees, arising from challenges to any and 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 II, the Developer agrees as follows: a. The Developer provided the City with Irrevocable Grants of Fee Title, of 266.6 acres of real property in accordance with the RMP 2, a portion of which (25.53 acres) is intended to satisfy the particular acreage conveyance obligation of the Final Map at a rate of 1, I 88 acres of conveyance per acre of area within the Final Map, as of the date of this Agreement. But such obligation may be subject to change in accordance with paragraph "7 .c.". Any remaining amount shall be credited towards any future map obligations. A summary of the conveyance and a copy of 6 the Irrevocable Grants of Fee Title are attached as Exhibit "B" of this agreement. 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 OwnerlManager, 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 fonnula described in RMP 2, as may be amended by City. Developer acknowledges that the amended RMP 2 may contain a conveyance formula greater than 1.188 acres per developable acre. d. That 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, Developer further agrees to pay all taxes and assessments as they came due as to the land to be conveyed until title has legally transferred to the City and County of San Diego. e. Developer 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 - Street and Public Improvements. In partial satisfaction of Condition Nos. 21 and 22 of the Resolution, the Developer agrees as follows: 8.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 Exhibits "C" ("Street and Public 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 therefore, all in strict conformity and in accordance with the plans and specifications, which documents have heretofore been filed in the Office of the City Engineer and 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. 7 .,,--..--.------ S.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 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 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 confor- mance with the approved plans (including a reasonable allocation of overhead). and any proceeds from the improvement security. S.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. 8.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 8 and approved by the City Engineer shal1 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. 8.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 finaI acceptance and correct any and all defects or deficiencies arising during said period as a result of the acts or omission of Developer, its agents or employees in the performance of this Agreement, and that upon acceptance of the work by City, Developer shall grant to City, by appropriate conveyance, the public improvements constructed pursuant to this agreement; provided, however, that said acceptance shall not constitute a waiver of defects by City as set forth hereinabove. 8.f. Indemnification. Developer further understands and agrees that City, (as "Indemnitee") or any officer or employee thereof, shall not be liable for any bodily injury, death, or property damage, including thereto hazardous materials and property takings claims occasioned by reason of the acts or omissions of Developer, its subcontractors or suppliers, its agents or employees, or Indemnitee (which are not the result of Indemnitee's sole negligence or willful misconduct), related to the construction of the Street Improvements. Developer further agrees to defend, indemnify, protect and hold the Indemnitee, its officers and employees, harmless from any and all claims, demands, causes of action, liability, costs and expense (including, without limitation, reasonable attorney's fees) or loss for bodily injury, death or property damages, including thereto hazardous materials and property takings claims because of or arising out of Developer's construction of the Street Improvements or the acts or omissions of Developer, its subcontractors or suppliers, its agents or employees, or Indemnitee, related thereto; provided, however, that Developer shall have no obligation to indemnify, defend, protect or hold Indemnitee harmless from any such losses, claims, demands, causes of action, liability, damages, costs or expenses which arise out of the sole negligence or willful misconduct of the Indemnitee or any officer or employee thereof. Developer further agrees to defend, indemnify, protect and hold the Indemnitee, its officers and employees, harmless from any and all claims, demands, causes of action, liability, cost and expense (including without limitation, reasonable attorney's fees) made or incurred by such third parties pursuant to or arising out of contracts entered into by third parties with or on behalf of Developer or its successors, assigns or agents concerning construction of the Street Improvements; provided, however, that Developer shall have no obligation to indemnify, defend or hold Indemnitee harmless from any such losses, claims, demands, damages, causes of action, liability, costs and expenses to the extent that they have arisen due to the sole negligence or wil1ful misconduct of Indemnitee. The improvement securities referred to above shall not cover the provisions of this paragraph. Such indemnification and agreement to hold harmless shall extend to damages to adjacent or downstream properties or the taking of property from owners of such adjacent or downstream properties as a result of construction of the Street Improvements as provided herein, 9 _..~..-.._---_.._._----_.._-- It shall also extend to damages resulting fÌom diversion of waters, change in the volume of flow. modification of the velocity of the water, erosion or siltation, or the modification of the point of discharge as the result of construction of the Street Improvements. The approval of plans for the Street Improvements shall not constitute the assumption by City of any responsibility for such ,damage or taking, nor shall City, by said approval, be an insurer or surety for said work and related improvements. The provisions of this paragraph shall become effective upon the execution of this Agreement and shall remain in full force and effect for ten (10) years following the acceptance by the City of the Street Improvements. 9. Condition No. 27 - (Street Trees). Otay Project, LLC, acting as the master developer for this Project, expressly assumes the overall responsibility for Condition No. 27, Additionally, the Developer assumes specific responsibility for Condition No, 27 for its particular neighborhood. Therefore, in partial satisfaction of Condition No. 27 of the Resolution, Developer, upon request of the Director of Planning and Building, shall plant within all street parkways trees which have been selected from the revised list of appropriate tree species described in the Village Design Plan which shall be approved by the Directors of Planning and Building and Public Works. The applicant shall provide root control methods per the requirements of the Director of Planning and Building and a deep watering irrigation system for the trees. An irrigation system shall be provided from each individual lot to the adjacent parkway. Developer shall obtain approval from the Director of Planning and Building and the City Engineer of a separate street tree improvement plan which includes the final selection of trees, the location of trees within the parkway, and in relation to water laterals, sewer laterals, dry utilities, driveways, inlets and pedestrian ramps, within thirty (30) days of the approval of the Final Map, Developer understands that the City may withhold the issuance of building permits within the Final Map if the street tree improvement plan is not approved within said thirty (30) day period, 10. Condition No. 44 - (Traffic Circles). In partial satisfaction of Condition No, 44 of the Resolution, the Developer shall, within twenty (20) days of the approval of the Final Map, submit for approval by the Director of Building and Planning and the City Engineer a final conceptual design and striping, signage and landscape plans for the traffic circle at the intersection of Santa Lucia and Santa Madera. 11. Condition No. 123 - (Cul-de-Sac Access). In partial satisfaction of Condition No, 123 of the Resolution, the Developer shall, within forty-five (45) days of the approval of the Final Map, submit for approval by the Director of Building and Planning and the City Engineer" a comprehensive Master Plan of Pedestrian Access Facilities that conforms to the Village Design Plan and that indicates the type of access, either fully accessible handicap access (ramp) or stairway (steps), required at each of the cul-de-sacs listed in Exhibit "D". The Master Plan shall provide complete construction details for the access facilities and shall also 10 indicate the adjacent landscaping, and the existing or approved improvements by reference to City of Chula Vista drawings. 12. Satisfaction of Conditions. City agrees that the execution of this Agreement constitutes satisfaction of Developer's obligation of Conditions: 1,2,3,4 and 5 of the Resolution and partial satisfaction of Condition Nos, 8, 9,10,11,21,22,27,44, and 123. 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 Project, as may be appropriate. 13. 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. 14. Previous Agreements. The Developer acknowledges that nothing in this Agreement shall supersede, nullify or otherwise negatively impact the terms of the "A" Map Agreement or the First or the Second Final "B" Map Agreements, unless specifically noted herein, This Agreement affIrms and reflects the terms, conditions and provisions of the "A" Map Agreement, the First Final "B" Map Agreement, the Second Final "B" Map Agreement and of the Tentative Map 96-04 conditions applicable specifically to the Final Map for the Property. 15. Recording. This Agreement, or an abstract hereof shall be recorded simultaneously with the recordation of the Final Map, 16. Building Permits. Developer understands and agrees that the City may withhold the issuance of building permits and all other permits for the entire SPA One project area, should the Developer be determined by the City to be in breach of any of the terms of this Agreement. The City shall provide the Developer of notice of such determination and allow the Developer reasonable time to cure said breach. Developer further acknowledges and agrees that the City may withhold building permits within the Final Map as defined herein if the required public facilities for SPA One, as defined in the PFFP or as amended by the Annual Monitoring Program or otherwise conditioned, have not been completed or constructed to the satisfaction of the City. 17. 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 11 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 Otay Project, LLC 350 West Ash Street, Suite 730 San Diego, CA 92101 Attn: Kim John Kilkenny Fax (619) 234-4088 South Bay Project, LLC 191 West Wilbur Road, Suite 102 Thousand Oaks, CA 91360 Attn: David Green Fax (805) 379-4472 Trimark Pacific Homes 7700 Irvine Center Drive. Suite 470 Irvine, CA. 92618 Attn.: Stephen Hester 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 shaH 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. 12 --_._._._--- 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 "prevailing party" shall be deemed to be the party who is awarded substantially the relief sought. [NEXT PAGE IS PAGE ONE OF SIGNATURE PAGES] H :\SharedlAttomey\OR614, WPD 13 PAGE ONE OF TWO SIGNATURE PAGES TO SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT NEIGHBORHOOD R-6 OF THE OT A Y RANCH, VILLAGE ONE SPA ONE] CITY OF CHULA VISTA Mayor of the City of Chula Vista Attest: Susan Bigelow City Clerk Approved as to Form: John M. Kaheny City Attorney DATED: ,1999 [NEXT PAGE IS PAGE TWO OF SIGNATURE PAGES] 14 [PAGE TWO OF TWO SIGNATURE PAGES TO SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT NEIGHBORHOOD R-6 OF THE OT A Y RANCH, VILLAGE ONE SPA ONE] DEVELOPER: OT A Y PROJECT,LLC, a Delaware limited liability company By: Otay Ranch Development, LLC, a Delaware Limited Liability Company By: Date: Its: 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: Date: Its: DATED: , 1999 (ATTACH NOTARY ACKNOWLEDGMENTS) 15 List of Exhibits Exhibit A Legal Description of Property Exhibit B Irrevocable Grants of Fee Title to preserve parcels and conveyance summary Exhibit C Street and Public Land Development Improvements Exhibit D Cul-de-Sac Pedestrian Access Locations 16 EXIDBIT "A" DESCRIPTIONS OF PROPERTY OF FINAL MAPS FOR NEIGHBORHOOD R-6 LOT 12 OF OTAYRANCH, VILLAGE 1 "A" MAP, CHULA VISTA TRACT NO, 96-04, ACCORDING TO MAP THEREOF NO. 13592 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 "B" Preserve Conveyance Irrevocable Grants of Fee Title 111~¡;:;;.II!iil¡I!II¡lllw .~ :.;. :}~;mH¥ ,................--,"',...............--....-----..'.'."""--'-",'---- .................,.....,.,...........-..----.................--,--,---...--- .;.;-:.:-,.:.:-:.:.;.;.:.:.:.:.:-,.:.:-,-;.,..-;..-;.;.;.:.:.:.:.:.;.:.:.;.:.:.;;:.;.;.:.:.:-:.:-:-:-:-:.:.;.;.;.;.;.;.;.:.;.-,:..-;.,.,::-.;.-;.: l_flN,;I; . --.................--.-.... 25.529 R-6 -~._----.--_.._-- -,.---.- EXHIBIT "C" STREET and PUBLIC LAND DEVELOPMENT IMPROVEMENTS CHULA VISTA TRACT NO. 96-04 VILLAGE ONE, SPA ONE Phase 1B and 4 Grading and $4,550,000 3SM913 1/15/99 98-809 Drainage 78600 to 98-852 Phase lB and 4 Landscape and $2,459,690 3SN9J66 1115/99 98-1212 Irrigation 2300 to 98-1273 East Palomar St.: $1,754,637 3SM915 3/4/99 98-686 Street Improvements 7900 to 98-699 East Palomar St.: $1,665,532 3SM917 Pending 98-904 Landscape Improvements 05300 to 98- 914G Santa Alicia Avenue: Backbone $384,564 3SM9I7 Pending 98-1291 Improvements 17900 to 98-1296 Santa Lucia/Santa Madera $665,205 3SM916 1/21/99 98-660 Avenue: 41600 to Backbone Im rovements 98-666 EXHIBIT "D" Cul-de-Sac Pedestrian Access Master Plan Locations Otay Ranch, Village One LOCATION CONDITION Stanislaus Dr. at East Palomar Ramo Amador St. at East Palomar Steos Cordelia St. at East Palomar Ramn Live Oak St. at East Palomar SteDs Marion Ct. at East Palomar Stens Clovis Ct. at East Palomar Stens Larksnur Ct. at East Palomar Ramo Milbrae Ct. at East Palomar Stens Mayfield Ct. at East Palomar Steos Amador St. at Santa Lucia Rd, Ramn Rutherford St. at Monarche Dr. Ramo Rid!!:e DOint ct. at Monarche Dr. Ramo Calisto!!:a Ave. at Paseo Ramn St. Helena Ave. at Paseo Ramo Sereno Ave. at Paseo Ramo Antioch Ave at Paseo Ramo Coalin!!:a Ct. at East Palomar Ramn Woodville Ave. at East Palomar Stens T . À"P ot Poot' Ro~n l".¡oril :, 1999 RECORDING REQUEST BY; City Clerk WHEN RECORDED MAIL TO; CITY OF CHULA VISTA 276 Fourth Avenue Chula Vista, CA 9l9l0 No transfer tax is due as this is a conveyance to a public agency of less than a fee interest for which no cash consideration has been paid or received. Developer Above Space for Recorder's Use SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR THE TIDRD FINAL "B" MAPS OF VILLAGE ONE OF THE OT A Y RANCH PROJECT, NEIGHBORHOODS R-9 AND R-14 (Conditions: 1,3,4,5,8,9, 10, 11,21,22,27,39,44 and 123 of Resolution No. 18398) This Supplemental Subdivision Improvement Agreement ("Agreement") is made this_day of April, 1999, 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"), with reference to the facts set forth below, which recitals constitute a part of this Agreement: RECITALS A. This Agreement concerns and affects certain real property located in Chula Vista, California, more particularly described on Exhibit "A" attached hereto and incorporated herein ("Property"), The Property is part of the Otay Ranch, Village One SPA One, a master planned development. For purposes of this Agreement the term "project" shall also mean "Property", Developer has applied for final maps for the Property, more specifically known as Neighborhood R-9 and R-14, 1 , " B. Otay Ranch L.P, conveyed title of the Project area to South Bay Project. LLC. a Delaware limited liability company on August 26,1997, which in turn conveyed the Propeny, 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-l to UDC Homes, DMEI 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 Centex 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-5 to Standard Pacific Corp., a Delaware corporation on January 2,1998; and Otay Project sold SPA One Planning Area R-8 to Centex 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 PID Otay Ranch Associates LLC, a Delaware limited liability company on June 26,1998; and Otay Project sold SPA One Planning Area R-14 to PID Otay Ranch Associates LLC, a Delaware limited liability company on June 26, 1998; and Otay Project sold SPA One Planning Area R-lO 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 Centex Homes, a Nevada general 2 partnership on July I, 1998; and Otay Project sold SPA One Planning Area R-13 to Centex Homes, a Nevada general partnership in July 1, 1998. C, Whereas Otay Project, L.L.C, is the master developer who has obligated itself to construct public improvements under the terms of the Tentative Subdivision Map and the Re-stated and Amended Pre-Annexation Development Agreement, (Ordinance No. 2695) D. Developer and/or Developer's predecessor in interest has applied for and the City has approved a Tentative Subdivision Map 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" I " , E. City is willing, on the premises, security, terms and conditions herein contained to approve fInal maps of the property known as Neighborhoods R-9 and R-14, as being in substantial conformance with the Tentative Subdivision Map described in this Agreement. Developer understands that subsequent finaI maps may be subject to the same security, terms and conditions contained herein, F. The following defined terms shall have the meaning set forth herein, unless otherwise specifically indicated: a. For purposes of this Agreement, "Final Map" means each final map for Neighborhoods R-9 and R-14 ofOtay Ranch Village One, SPA One. 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 Otay Project, L.L.c. and any and all owners of real property within the boundaries of the Property, and all signatories to this Agreement including: i.) Otay Project, L.L.C, ii.) PID Otay Ranch Associates, L.L.C. 3 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. "PFFP" means the SPA I Public Facilities Finance Plan adopted by Resolution No. 18286 as may be amended from time to time. g. "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, h. ""A" Map Agreement" means the Supplemental Subdivision Improvement Agreement for the Village One "A" Map adopted by Resolution No. 19044. i. "First Final "B" Map Agreement" means the Supplemental Improvement Agreement for the Village One Neighborhood R-3 Map adopted by Resolution No, 19212, j. "Second Final "B" Map Agreement" means the Supplemental Improvement Agreement for the Village One Neighborhoods R-l, R-2, R-4 and R-5 Map adopted by Resolution No, 19235. NOW, THEREFORE, in exchange for the mutual covenants, terms and conditions herein contained, the parties agree as set forth below. 1. Performance Obligation. Otay Project, 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, lOa, I Db, 11 and 12 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. The City in its discretion will make a good faith effort to execute on bonds securing the obligations contained herein to the extent necessary to complete any unfulfilled obligations of the master developer. 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 4 private, in whose favor and for whose benefit of such covenants running with the land have been provided without regard to whether City has been, remained or are owners of any particular land or interest therein. If such covenants are breached, the City shall have the right to exercise all rights and remedies and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breach to which it or any other beneficiaries of this Agreement and the covenants may be entitled. c. Developer Release on Guest Builder Assignments. If Developer assigns any portion of the Project to a guest builder, Developer may request to be released from Developer's obligations under this Agreement, that are expressly assumed by the guest builder. Developer must obtain the written consent of the City to such release, Such assignment to the guest builder shall, however, be subject to this Agreement and the Burden of this Agreement shall remain a covenant running with the land. The City shall not withhold its consent to any such request for a release so long as the assignee acknowledges that the Burden of the Agreement runs with the land, assumes the obligations of the Developer under this Agreement, and demonstrates, to the satisfaction of the City, its ability to perform its obligations under this Agreement as it relates to the portion ofthe Project which is being acquired by the Assignee, d. Partial Release of Developer's Assignees. If Developer assigns any portion of the Project subject to the Burden of this Agreement, upon request by the Developer or its assignee, the City shall release the assignee of the Burden of this Agreement as to such assigned portion if such portion has complied with the requirements of this Agreement to the satisfaction of the City and such partial release will not, in the opinion of the City, jeopardize the likelihood that the remainder of the Burden will not be completed. e. Release of Individual Lots. Upon the occurrence of any of the following events, Developer shall, upon receipt of the prior written consent of the City Manager (or Manager's designee), have the right to release any lot( s) from Developer's obligation under this Agreement: i. The execution of a purchase agreement for the sale of a residential lot to a buyer of an individual housing unit; ii. The conveyance of a lot to a Homeowner's Association. The City shall not withhold its consent to such release so long as the City finds in good faith that such release will not jeopardize the City's assurance that the obligations set forth in this Agreement will be performed. At the request of the Developer, the City Manager (or Manager's designee) shall execute an instrument drafted by Developer in a recordable form acceptable to the City Manager (or Manager's designee) which confirms the release of such lot or parcel from the encumbrance of this Agreement. 5 ---_.-_."._--~._..._- 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, I of the Resolution, Developer hereby agrees, to comply with the requirements and guidelines of the Parks, Recreation, Open Space and Trails Plan, Public Facilities Finance 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 sha1l remain in compliance with and implement the t=s, 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, S. Condition No.4 - (General Preliminary) In satisfaction of Condition No. 4 of the Resolution, a.) Otay Project, LLC agrees to indemnify, protect, defend and hold the City harmless from and against any and all claims, liabilities and costs, including attorney's fees, arising from challenges to the Environmental Impact Report for the Project; and b.) Developer agrees to indemnify, protect, defend and hold the City harmless from and against any and all claims, liabilities and costs, including attorney's fees, arising from challenges to any and all entitlements and approvals issued by the City in connection with the Project. 6. Condition No.5 - (General Preliminary). In satisfaction of Condition No. S 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. The Developer provided the City with Irrevocable Grant of Fee Title, of 266.6 acres of real property in accordance with the RMP 2, a portion of which (40.97 acres) is intended to satisfy the particular acreage conveyance obligation of the Final Map at a rate of 1.188 acres of conveyance per acre of area within the Final Map, as of the date of this Agreement. But such 6 obligation may be subject to change in accordance with paragraph "7 .c.", Any remaining amount shall be credited towards any future map obligations. A summary of the conveyance and a copy of the Irrevocable Grant of Fee Title are attached as Exlribit "B" of this agreement. The original Irrevocable Grant of Fee Title shall be recorded concurrently with this Agreement. 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 RMP 2, as may be amended by City, Developer acknowledges that the amended RMP 2 may contain a conveyance formula greater than 1.188 acres per developable acre, d. That all land to be conveyed as described above shall be free and clear ofIiens and encumbrances except for easements for existing public infrastructure and other easements approved by the City or for planned public infrastructure as permitted in the RMP, Phase 2. Developer further agrees to pay all taxes and assessments as they came due as to the land to be conveyed until title has legally transferred to the City and County of San Diego. e. Developer 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 - Street and Public Improvements. In partial satisfaction of Condition Nos. 21 and 22 of the Resolution, the Developer agrees as follows: 8.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 Exhibits "C" ("Street and Public 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 therefore, all in strict conformity and in accordance with the plans and specifications, which documents have heretofore been filed in the Office of the City Engineer and 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 7 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 ofCalifomia applicable to said work. 8.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 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 acceptance of said work by City, and after certification by the Director of Finance that ail 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 confor- mance with the approved plans (including a reasonable allocation of overhead), and any proceeds from the improvement security. 8.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. 8.d. Plan Check fees and Additional Costs. It is further understood and agreed by 8 - -_._.__.._~---_.._._- 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 prod 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. 8.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 sbaII 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 srod period as a result of the acts or omission of Developer, its agents or employees in the performance of this Agreement, and that upon a=ptance 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 wrover of defects by City as set forth hereinabove. 8.f. Indemnification. Developer further understands and agrees that City, (as "Indemnitee") or any officer or employee thereof, shall not be liable for any bodily injury, death, or property damage, including thereto hazardous materials and property takings claims occasioned by reason of the acts or omissions of Developer, its subcontractors or suppliers, its agents or employees, or Indemnitee (which are not the result of Indemnitee's sole negligence or willful misconduct), related to the construction of the Street Improvements. Developer further agrees to defend, indemnify, protect and hold the Indemnitee, its officers and employees, harmless from any and all claims, demands, causes of action, liability, costs and expense (including, without limitation, reasonable attorney's fees) or loss for bodily injury, death or property damages, including thereto hazardous materials and property takings claims because of or arising out of Developer's construction of the Street Improvements or the acts or omissions of Developer, its subcontractors or suppliers, its agents or employees, or Indemnitee, related thereto; provided, however, that Developer shall have no obligation to indemnify, defend, protect or hold Indemnitee harmless from any such losses, claims, demands, causes of action, liability, damages, costs or expenses which arise out of the sole negligence or willful misconduct of the Indemnitee or any officer or employee thereof. Developer further agrees to defend, indemnify, protect and hold the Indemnitee, its officers and employees, harmless from any and all claims, demands, causes of action, liability, cost and expense (including without limitation, reasonable attorney's fees) made or incurred by such third parties pursuant to or arising out of contracts entered into by third parties with or on behalf of Developer or its successors, assigns or agents concerning construction of the Street Improvements; provided, however, that Developer shall have no obligation to indemnify, defend or hold Indemnitee harmless from any such losses, claims, demands, damages, causes of action, liability, costs and expenses to the extent that they have arisen due to the sole negligence or willful misconduct of Indemnitee. The improvement securities referred to above shall not cover the provisions of this 9 ____'._''___,",".__.n_"'_··,,·.. ,_ ',.,,_,.__ paragraph. Such indemnification and agreement to hold harmless shall extend to damages to adjacent or downstream properties or the taking of property from owners of such adjacent or downstream properties as a result of construction of the 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 construction of the Street Improvements. The approval of plans for the Street Improvements shall not constitute the assumption by City of any responsibility for such damage or taking, nor shall City, by said approval, be an insurer or surety for said work and related improvements. The provisions of this paragraph shall become effective upon the execution of this Agreement and shall remain in full force and effect for ten (10) years following the acceptance by the City of the Street Improvements, 9. Condition No. 27 - (Street Trees). Otay Project, LLC, acting as the master developer for this Project, expressly assumes the overall responsibility for Condition No. 27, Additionally, the Developer assumes specific responsibility for Condition No, 27 for its particular neighborhood. Therefore, in partial satisfaction of Condition No, 27 of the Resolution, Developer, upon request of the Director of Planning and Building, shall plant within all street parkways trees which have been selected from the revised list of appropriate tree species described in the Village Design Plan which shall be approved by the Directors of Planning and Building and Public Works, The applicant shall provide root control methods per the requirements of the Director of Planning and Building and a deep watering irrigation system for the trees. An irrigation system shall be provided from each individual lot to the adjacent parkway. Developer shall obtain approval from the Director of Planning and Building and the City Engineer of a separate street tree improvement plan which includes the final selection of trees, the location of trees within the parkway, and in relation to water laterals, sewer laterals, dry utilities, driveways, inlets and pedestrian ramps, within thirty (30) days of the approval of the Final Map. Developer understands that the City may withhold the issuance of building permits within the Final Map if the street tree improvement plan is not approved within said thirty (30) day period. 10. Condition No. 39 - (Street Dedication). In partial satisfaction of Condition No. 39 of the Resolution, the Developer: a. Shall construct private paseo improvements, within the the 60 foot easement for street right-of-way and other public purposes and identified as "future Santa Madera Avenue" on the Final Maps for Neighborhood R-8 and R-9 (the "Easement"), in accordance with private landscape plans approved by the Director of Planning and Building. Said improvements shall be complete no later than six months from the date of approval of this Agreement by the City Council. i. Developer agrees to construct private paseo improvements in the Easement at their own expense, without any cost to the City, in a good and workmanlike manner, under the 10 direction and to the satisfaction and approval of the City Engineer. Developer further agrees to furnish the necessary materials therefore, all in strict conformity and in accordance with plans and specifications, which are to be filed in the Office of the City Engineer. It is expressly understood and agreed to by Developer that, in the performance of construction of said private paseo 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; and ii. Developer agrees to furnish and deliver to the City of Chula Vista, simultaneously with 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 sum of One Hundred Eighty Six Thousand Dollars and no cents ($186,000.00) which security shall guarantee the faithful performance and material and labor in connection with the installation of the private paseo improvements within the Easement. b. Shall, within one year of the approval of the Final Map, cause at their own expense to be completed a traffic study by a qualified professional traffic engineer to determine the need, if any, for vehicular access by means of the Easement. Such study shall be submitted to the City Engineer for approval. Should the City Engineer determine that vehicular access is needed: i. Developer agrees to construct private paseo improvements in the Easement at their 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 therefore, all in strict conformity and in accordance with plans and specifications, which are to be filed in the Office of the City Engineer. It is expressly understood and agreed to by Developer that, in the performance of construction of said private paseo 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; and ii. Developer agrees to furnish and deliver to the City of Chula Vista, simultaneously with 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 sum of One Hundred Eighty Six Thousand Dollars and no cents ($186,000.00), which security shall guarantee the faithful performance and material and labor in connection with the installation of the private paseo improvements within the Easement. c. Shall, simultaneously with the execution of this Agreement, submit for approval by the City Engineer and Director of Building and Planning, a notice of disclosure to future property owners of Lots 1 through 6 in Neighborhood R-8 and Lots 71 through 74 in Neighborhood R-9 stating that the Easement may be dedicated and improved as a public street at some future time, 11. Condition No. 44 - (Traffic Circles). In partial satisfaction of Condition No, 44 11 of the Resolution, the Developer shall, within twenty (20) days of the approval of the Final Map. submit for approval by the Director of Building and Planning and the City Engineer a final conceptual design and striping, signage and landscape plans for the traffic circle at the intersection of Santa Lucia and Santa Madera. 12. Condition No. 123 - (Cul-de-Sac Access). In partial satisfaction of Condition No, 123 of the Resolution, the Developer shaH, within forty-five (45) days of the approval of the Final Map, submit for approval by the Director of Building and Planning and the City Engineer" a comprehensive Master Plan of Pedestrian Access Facilities that conforms to the Village Design Plan and that indicates the type of access, either fully accessible handicap access (ramp) or stairway (steps), required at each of the cul-de-sacs listed in Exhibit "D", The Master Plan shaH provide complete construction details for the access facilities and shaH also indicate the adjacent landscaping, and the existing or approved improvements by reference to City of Chula Vista drawings. 13. Satisfaction of Conditions. City agrees that the execution of this Agreement constitutes satisfaction of Developer's obligation of Conditions: 1,2,3,4 and 5 of the Resolution and partial satisfaction of Condition Nos. 8, 9,10, I I, 21, 22, 27. 39, 44, and 123. 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 Project, as may be appropriate, 14. Unfulfilled Conditions. Developer hereby agrees, unless otherwise conditioned, that Developer shall comply with all unfu1fiHed conditions of approval of the Tentative Map, established by the Resolution and shall remain in compliance with and implement the terms, conditions and provisions therein. 15. Previous Agreements. The Developer acknowledges that nothing in this Agreement shall supersede, nullifY or otherwise negatively impact the terms of the "A" Map Agreement or the First or the Second Final "B" Map Agreements, unless specifically noted herein, Tbis Agreement affirms and reflects the terms, conditions and provisions of the "A" Map Agreement, the First Final "B" Map Agreement, the Second Final "B" Map Agreement and of the Tentative Map 96-04 conditions applicable specifically to the Final Map for the Property, 16. Recording. This Agreement, or an abstract hereof shall be recorded 'simultaneously with the recordation of the Final Map. 17. Building Permits. Developer understands and agrees that the City may withhold the issuance of building permits and all other permits for the entire SPA One project area, should the Developer be determined by the City to be in breach of any of the terms of this Agreement. The City shall provide the Developer of notice of such determination and allow the Developer reasonable 12 time to cure said breach. Deve]oper further acknowledges and agrees that the City may withhold building permits within the Final Map as defmed herein if the required public facilities for SPA One. as defIned in the PFFP or as amended by the Annual Monitoring Program or otherwise conditioned, have not been completed or constructed to the satisfaction of the City, 18. 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 Otay Project, LLC 350 West Ash Street, Suite 730 San Diego, CA 92101 Attn: Kim John Kilkenny Fax (619) 234-4088 South Bay Project, LLC 191 West Wilbur Road, Suite 102 Thousand Oaks, CA 91360 Attn: David Green Fax (805) 379-4472 Presley Homes 15373 Innovation Drive, Suite 380 San Diego, CA. 92128 Attn.: Mel Mercado 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. 13 ._--~-^.,_._.,...-"..__."-'--_._- b. Captions. Captions in this Agreement are inserted for convenience of reference and do not defme, 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 "prevailing party" shall be deemed to be the party who is awarded substantially the relief sought. [NEXT PAGE IS PAGE ONE OF SIGNA TURE PAGES] H:\SharedlAttomey\OR614, WPD 14 _____.._._______m.__·"._,·"··_·'._··,__· PAGE ONE OF TWO SIGNATURE PAGES TO SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT NEIGHBORHOOD R-9 AND R-14 OF THE OTAY RANCH, VILLAGE ONE SPA ONE] CITY OF CHULA VISTA Mayor of the City of ChuIa Vista Attest: Susan Bigelow City Clerk Approved as to Form: John M. Kaheny City Attorney DATED: ,1999 [NEXT PAGE IS PAGE TWO OF SIGNATURE PAGES) 15 iii"'" .::-,. PRESLEY HOMES ~ 6915171 "-: C~AY RAN[H CO NCJ.ØØ8 NO, üm-p :7/22 [;102 04/08/99 14:51 -- . .. . . -. ¡PA.GE TWO OF TWO SIGNATURE P A.GES TO SIJPPLEM£NT AL SUBDIVISION IMPROVEMENT AGREEMENT NEIGHBORHOODS R-9 AND R-I4 OF mE OTA v RANCH. VILLAGE ONE SPA ONE] DEVELOPER: OT A Y PROJECT .,LLC, a Delaware limited liability company By: Otay Ranch Development, LLC, a DelawlIle imite Liability Company B)': Date:: .Aþj.'i'j PHI OT A Y RANCH ASSOCIATES, LLC, a Delaware Limirc:d Liability Company, By: PHI Iustitutional '7JjT 1t.5 ember B. '/L- 7" Its: ~ It,.. f Çf,t/øJ¡ Date: 4f t/llIJ r , DATED: ,1999 (ATTACH NOTARY ACKNOWLEDGMENTS) 16 List of Exhibits Exhibit A Legal Description of Property Exhibit B Irrevocable Grants of Fee Title to preserve parcels and conveyance summary Exhibit C Street and Public Land Development Improvements Exhibit D Cul-de-Sac Pedestrian Access Locations 17 EXHIBIT "A" DESCRIPTIONS OF PROPERTY OF FINAL MAPS FOR NEIGHBORHOODS R-9 AND R-14, RESPECTIVELY LOT 160FOTAYRANCH, VILLAGE I "A" MAP,CHULA VISTA TRACT NO. 96-04, ACCORDING TO MAP THEREOF NO. 13592 FILED IN THE OFFICE OF THE COUNTY RECORDER JUNE 24, 1998 IN THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, PARCEL 4 OF MAP NO. ,CHULA VISTA TRACT NO, 96-04, FILED IN THE OFFICE OF THE COUNTY RECORDER ON _' 1999 IN THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA. EXHIBIT "B" Preserve Conveyance Irrevocable Grants of Fee Title l"tlillliilllitl'1 ....................................-....-. 1_111111,111 '.."I'i"; . . - . .... ........ . R-9 I 6 .3 90 I 9 .47 R- I 4 I 8 09 7 2 I .499 TOTAL 3 4 .49 40 ,9 7 EXlllBIT "C" STREET and PUBLIC LAND DEVELOPMENT IMPROVEMENTS CHULA VISTA TRACT NO. 96-04 VILLAGE ONE, SPA ONE ¡11B"~"~ltl!';I.llllllïi Phase lB and 4 Grading and Drainage $4,550,000 Phase lB and 4 Landscape and Irrigation $2,459,690 East Palomar St.: Street Improvements $1,754,637 East Palomar St.: Landscape Improvements $1,665,532 Santa Alicia Avenue: Backbone Improvements $384,564 Santa Lucia/Santa Madera Avenue: Backbone 1m rovements $665,205 3SM9l3 I/J 5/99 98-809 78600 to 98-852 3SN9l66 1115/99 98-1212 2300 to 98-1273 3SM915 3/4/99 98-686 7900 to 98-699 3SM917 Pending 98-904 05300 to 98- 914G 3SM917 Pending 98-1291 17900 to 98-1296 3SM916 1/21/99 98-660 41600 to 98-666 EXHIBIT "D" Cul-de-Sac Pedestrian Access Master Plan Locations Otay Ranch, Village One LOCATIoN , CONDITIoN Stanislaus Dr. at East Palomar Ramn Amador St. at East Palomar Steps Cordelia St. at East Palomar Ramn Live Oak St. at East Palomar Steus Marion Ct. at East Palomar Steps Clovis Ct, at East Palomar Steus LarksuUf Ct. at East Palomar Ramu Milbrae Ct. at East Palomar SteDs Mayfield Ct. at East Palomar Steus Amador St. at Santa Lucia Rd. Ramu Rutherford St. at Monarche Dr. Ramu Ridg:e uoint ct. at Monarche Dr. Ramu CalistO!!:a Ave. at Paseo Ramu St. Helena Ave. at Paseo Ramu Sereno Ave. at Paseo Ramu Antioch Ave at Paseo Ramu Coalin!!a Ct. at East Palomar Ramu WoodviIIe Ave. at East Palomar Steus IT' A",,, ~t P~ot P~lnm~~ R~mn