HomeMy WebLinkAboutAgenda Packet 1998/10/20
". declare tinder penalty of perjury thet I em
employed by t~'e Ci¡" of Chula Vista in the
Office of the City Cleri\ and that I posted
this Agenda/Notice on the Bulletin Board at
Tuesday, October 20, 1998 the Public rvi es Building and at City Hall on Council Chambers
6:00 p.m. DATED )ð / SIGNED ~.. Public Services Building
R ular Meeti ofth neil
CALL TO ORDER
1. ROLL CALL: Councilmembers Moot_, Padilla_, Rindone_, Salas_, and Mayor Horton_.
2. PLEDGE OF ALLEGIANCE TO THE FLAG. MOMENT OF SILENCE
3. APPROVAL OF MINUTES: October 6, 1998 and October 13, 1998.
4. SPECIAL ORDERS OF THE DAY:
A. Oath of Office: Anthony J. Jeoúson - Human Relations Comnússion; and Steve Castansda -
Resource ConselVation Commission.
B. Linda Boutin, President, Friends of the Arts, will introduce the Chula Vista School for the
Creative & Performing Arts who will present a scene from The Fantastics under the direction of
Jack Tygett.
CONSENT CALENDAR
(Items 5 through JO)
The staff recommendations regarding the following items listed under the Consent Calendar wiu be enacted by
the Councü by one motion without discussion unless a Councilmember, a member of the public, or City staff
requests that the item be pulled for discussion. If you wish to speak on one of these items, please fill out a
"Request to Speak Form" available in the lobby and submit it to the City Clerk prior to the meeting. Items pulled
from the Consent Calendar wiu be discussed after Board and Commission Recommendations and Action Items.
Items pulled by the public will be the first items of business.
5. WRITTEN COMMUNICATIONS:
A. Letter from the City Attorney stating that to the best of his knowledge from observance of
actions taken in Closed Session on October 13, 1998, that there were no actions taken which
are required under the Brown Act to be reported. It is recommended that the letter be
received and med.
6. RESOLUTION 19222 APPROVlNG LICENSE AGREEMENT WITH METRICOM, lNC. FOR
THE lNSTALLATION AND OPERATION OF A WIRELESS DlGITAL COMMUNICATION
NETWORK UTIL1ZlNG THE CITY'S STREET LIGHT STANDARDS FOR A PERIOD OF 5
YEARS WITH AN OPTION TO RENEW FOR TWO ADDITIONAL 5 YEAR TERMS - On March
18, 1997, Council conceptually approved the marketing of City property for use by telecommunications
companies. Since that time, staff has been working with a number of companies to explore the possibility
of locating facilities on City-owned property. Metricom, Inc. is a wireless data communications provider
expanding in California and the San Diego community. Metricom utilizes small radios that are affixed to
street light standards to create a wireless network that provides users with direct, unlioúted access to the
Internet and other online services without the use of phone lines. Metricom has requested to install these
radios on street lights throughout the City. It is estimated that approximately 180 street light standards will
be needed initially. Metricom will be paying both an annual pole fee and a license fee for the use of the
City's street light standards. Staff recommends approval of the resolution. (Director of Community
Development)
Agenda -2- October 20, 1998
7. RESOLUTION 19223 AUTHORIZlNG AN ABATEMENT OF $33,050 OF THE lNTERIM SR-125
DEVELOPMENT IMPACT FEES PAID FOR THE CLUBHOUSE AT EASTLAKE COUNTRY
CLUB LOCATED AT 2375 CLUBHOUSE DRIVE UPON THE EFFECTIVE DATE OF THE
IMPLEMENTING ORDINANCE AND APPROPRIATING FUNDS FROM THE
UNAPPROPRIATED FUND BALANCE OF THE lNTERIM SR-125 DEVELOPMENT IMPACT
FEE FUND - Staff received a written request from David B. Kuhn, Jr., President, Lane/Kuhn Pacific,
requesting a refund of a portion of the Interim SR-125 DlF fee paid for his project located at the EastLake
Country Club on the grounds that the fee collected was based on too high an estimate of the traffic
generated due to the new facility. Staff recommends approval of the resolution. (Director of Public
Works) 4/5th's vote required.
8.A. RESOLUTION 19224 MAKING APPOINTMENTS lN PROPOSED COMMUNITY FACILITIES
DISTRICT NUMBER 97-3 (OTAY RANCH MCMILLlN SPA ONE) - McMillin Otay Ranch has
requested the City to initiate proceedings to form a Community Facilities District Number 97-3 for the
acquisition or construction of public facilities associated with the McMillin Otay Ranch. Tonight's action
will set the rate and method of apportionment for the district, establish a boundary map, direct the special
tax consultant to prepare the Special Tax Report, and set ¡he public hearing for the district for November
24, 1998. Staff recommends approval of the resolutions. (Director of Public Works)
B. RESOLUTION 19225 ADOPTlNG A BOUNDARY MAP SHOWlNG THE BOUNDARIES OF THE
TERRITORY PROPOSED FOR THE lNCLUSION lN PROPOSED COMMUNITY FACILITIES
DISTRICT NUMBER 97-3 (OTAY RANCH MCMILLlN SPA ONE)
C. RESOLUTION 19226 DECLARlNG ITS lNTENTION TO ESTABLISH COMMUNITY
FACILITIES DISTRICT NUMBER 97-3 (OTAY RANCH MCMILLlN SPA ONE) AND TO
AUTHORIZE THE LEVY OF A SPECIAL TAX THERElN TO FlNANCE THE ACQUISITION OF
CERTAlN FACILITIES
D. RESOLUTION 19227 ORDERlNG AND DIRECTlNG THE PREPARATION OF A REPORT FOR
PROPOSED COMMUNITY FACILITIES DISTRICT NUMBER 97-3 (OT A Y RANCH MCMILLlN
SPA ONE)
E. RESOLUTION 19228 DECLARlNG lNTENTION TO ISSUE BONDS SECURED BY SPECIAL
TAXES TO PAY FOR THE ACQillSITION OF CERTAlN FACILITIES lN COMMUNITY
FACILITIES DISTRICT NUMBER 97-3 (OTAY RANCH MCMILLlN SPA ONE)
9. RESOLUTION 19229 ACCEPTlNG BIDS AND A W ARDlNG CONTRACT FOR STREET
REPAIRS AT THE INTERSECTION OF MALT A A VENUE AND MYRA COURT AND AN R. V.
PARKING LOT OFF OF WALNUT DRIVE lN THE AMOUNT OF $42,745.00 TO FRANK AND
SON PA VlNG, lNC. AND APPROPRIATlNG FUNDS - On September 21, 1998, informal bids were
received to reconstruct the intersection of Malta Avenue and Myra Court and a R.V. storage lot off of
Walnut Drive. The work is needed to repair damage to the intersection and R.V. storage lot as a result
of repairing the failed storm drain at that location. Staff recommends approval of the resolution. (Director
of Public Works) 4/5th's vote required.
10.A. RESOLUTION 19230 APPROVlNG PURCHASE AGREEMENT AND ESCROW lNSTRUCTIONS
WITH WESTERN SALT COMPANY FOR THE ACQillSITION OF 16.711 ACRES lNCLUDlNG
STREET RIGHTS-OF-WAY AND ASSOCIATED EASEMENTS FOR THE IMPROVEMENT OF
HUNTE PARKWAY AND OLYMPIC PARKWAY - The development of the EastLake Greens and the
Arco Olympic Training Center projects required the construction of portions of Hunte Parkway and
Olympic Parkway. This requirement is documented through map conditions and Public Facility Financing
Plans for the projects. In order to complete the acquisition of the property by EastLake for future right-of-
way without entering into condemnation proceedings, purchase agreements with Western Salt and EastLake
are necessary. Staff recommends approval of the resolutions. (Director of Public Works)
Agenda -3- October 20, 1998
B. RESOLUTION 19231 APPROVlNG PURCHASE AGREEMENT AND ESCROW lNSTRUCTIONS
WITH THE EASTLAKE COMPANY LLC FOR THE ACQUlSITlON OF 16.711 ACRES
lNCLUDlNG STREET RIGHTS-OF-WAY AND ASSOCIATED EASEMENTS FOR THE
IMPROVEMENT OF HUNTE PARKWAY AND OLYMPIC PARKWAY
· · · END OF CONSENT CALENDAR · · ·
ADJOURNMENT TO REGULAR AND/OR JOINT MEETING OF THE REDEVELOPMENT AGENCY
ORAL COMMUNICATIONS
This is an opportunity for the general public to address the City Council on any subject matter within the
Coundl'sjurisdiction that is!1J!J. an item on this agenda for public discussion. (State law, however, generally
prohibits the City CouncU from taking action on any issues not included on the posted agenda.) If you wish to
address the Council on such a subject, please coólete the "Request to Speak Under Oral Communications
Form" available in the lobby and submit it to the ity Clerk prior to the meeting. Those who wish to speak,
please give your name and address for record purposes and follow up action.
PUBLIC HEARlNGS AND RELATED RESOLUTIONS AND ORDlNANCES
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 the "Request to Speak Form" available in the lobby and submit it to the City
Clerk prior to the meeting.
None suboútted.
BOARD AND COMMISSION RECOMMENDATIONS
This is the time the City Council wiu consider items which have been forwarded to them for consideration by one
of the City's Boards, Commissions, and/or Committees.
None suboútted.
ACTION ITEMS
The items listed in this section of the agenda are expected to elicit substantial discussions and deliberations by
the Council, staff, or members of the general public. The items will be considered individually by the Council
and staffrecommendntions may in certain cases be presented in the alternative. Those who wish to speak, please
fill out a "Request to Speak" form available in the lobby and submit it to the City Clerk prior to the meeting.
11. RESOLUTION 19232 APPROVlNG THE MEMORANDUM OF UNDERST ANDlNG WITH
CHULA VISTA ELEMENTARY SCHOOL DISTRICT REGARDlNG A JOINT EXTENDED
SCHOOL DAY PROGRAM ("STRETCH"); APPROVlNG THE TRANSFER OF FUNDS FOR
AFTER-SCHOOL PLAYGROUND PROGRAMS FROM THE CITY'S TIIREE RECREATION
CENTER BUDGETS INTO A SlNGLE EXTENDED SCHOOL DAY PROGRAM ACCOUNT;
ACCEPTlNG AND APPROPRIATlNG A $250,000 CONTRIBUTlON FROM THE CHULA VISTA
ELEMENTARY SCHOOL DISTRICT FOR EXTENDED SCHOOL DAY PROGRAMS; AND
AMENDlNG THE FISCAL YEAR 1998/99 BUDGET TO APPROVE AN ADDITIONAL 1.0 FTE
EXTENDED DAY SUPERVISOR (UNCLASSIFIED, FULL-TIME BENEFITED POSITlON)
FUNDED FROM THE FOLLOWING SOURCES: DISTRICT CONTRIBUTlON ($8,000), PUBLIC
LIBRARY FUND ($16,000, UNANTICIPATED REVENUE), AND RECREATION TRUST FUND
NUMBER 405 ($9,000) - The City and the Chula Vista Elementary School District agreed to combine
$250,000 from the school district and $289,000 from the City to create a new extended school day
program, with the City acting as fiscal agent. This program would provide children with literacy and
acadeoúc tutoring, enrichment programs, as wen as other recreation activities. There are presently 35
schools in the Elementary School District, 28 of which are located in the City. City funds had previously
been used to provide after-school playground programs. Staff recommends approval of the resolution.
(Library and Recreation Director) 4/5th's vote required.
Agenda -4- October 20, 1998
12. RESOLUTION 19233 APPROPRIATlNG FUNDS, ACCEPTING BIDS AND AWARDlNG
CONTRACT FOR "EARTHWORK CONSTRUCTION AND REVEGETATION OF SLOPE AT 289
AND 291 GREENWOOD PLACE (PG-553)" - The project area is an uncompleted grading project started
by a private developer. This project consists of re-grading of a partially graded site in order to stabilize
tbe site and return it to a safe condition. The project is the result of the enforcement of a Letter of Credit
which was issued regarding the grading conveyed to the original grading permit. The permitted grading
project was never completed successfully. Staff recommends Council approve the resolution awarding the
contract to FSG General Engineering in the amount of $38,100.10. (Director of Public Works) 4/5th's
vote required.
ITEMS PULLED FROM THE CONSENT CALENDAR
This is the time the City Council will discuss items which have been removed from the Consent Calendar.
Agenda items pulled at the request of the public will be considered prior to those pulled by Councilmembers.
OTHER BUSINESS
13. CITY MANAGER'S REPORT IS)
A. Scheduling of meetings.
14. MAYOR'S REPORTlS)
15. COUNCIL COMMENTS
ADJOURNMENT
The meeting will adjourn to (a closed session and thence to) the regular City Council meeting on October 27, 1998
at 6:00 p.m. in the City Council Chambers.
A joint meeting of the City Council/Redevelopment Agency will be held immediately following the City Council
meeting.
"I declere under penalty of perjury that I am
employed by the City of Chula Vista in the
Office of the Ciiy Cieri, and that I posted
this Agenda/Notice on tile Bulletin Board at
Tuesday, October 20, 1998 the Public S rvic!s jJuilding 91~" on Council Chambers
6:00 p.m. DATED. /0 /. ;;f(' SIGNED . -- 'Public Services Building
(immediately following the City Council Meeting) (
CHULA VISTA CITY COUNCIL CLOSED SESSION AGENDA
Effective April I, 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 permined 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 of the 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 wiu be tenninated
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 wiu be recorded in the
minutes which wiu be available in the City Clerk's Office.
CONFERENCE WITH LEGAL COUNSEL REGARDlNG - Anticipated litigation pursuant to Government
Code Section 54956.9
1. City of Chula Vista v. Federal Home Loan COrPoration.
2. Significant exposure to litigation pursuant to subdivision (b): Two cases.
__.". u__..__"_,·_
October 14, 1998
TO: Th. Hono<abl, Mo,o< ,nd City C,=ciI ~
FROM: David D. Rowlands, Jr., City Manage~ ~ ----=
SUBJECT: City Council Meeting of October 20, 1998
This will transmit the agenda and related materials for the regular City Council
meeting of Tuesday, October 20, 1998. Comments regarding the Written
Communications are as follows:
5a. This is a letter from the City Attorney stating that to the best of his knowledge
from observance of actions taken in Closed Session on 10/13/98, there were no
actions taken which are required under the Brown Act to be reported..
IT IS RECOMMENDED THAT THIS LETTER BE RECEIVED AND FILED.
DDR:mab
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~~~~
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CllY OF
CHUlA VISTA
OFFICE OF THE CITY A TIORNEY
Date: October 14, 1998
To: The Honorable Mayor and City Council
From: John M. Kaheny, City Attorne~~
Re: Report Regarding Actions Taken in Closed Session
for the Meeting of 10/13/98
The City Council met in Closed Session on 10/13/98 to discuss:
Significant exposure to litigation pursuant to Government Code
Section 54956.9(b): Two cases.
The City Attorney hereby reports to the best of his knowledge from
observance of actions taken in the Closed Session in which the city
Attorney participated, that there were no reportable actions which
are required under the Brown Act to be reported.
JMK: 19k
C:\lt\clossess.no
~//~ )
276 FOURTH AVENUE· CHULA VISTA· CALIFORNIA 91910 . (619) 691-5037 . FAX (619) 585-5612
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COUNCIL AGENDA STATEMENT
Item ~
Meeting Date 10/20/98
ITEM TITLE: RESOLUTION ) 9"< .< eo? ApPROVING LICENSE AGREEMENT WITH METRICOM, INC. FOR THE
INSTAllATION ANO OPERATION OF A WIRELESS OIGITAl COMMUNICATION NETWORK UTILIZING THE
CITY'S STREET LIGHT STANOAROS FOR A PERIOO OF 5 YEARS WITH AN OPTION TO RENEW FOR TWO
AOOITIONAl 5 YEAR TERMS.
SUBMITTED BY: Debra D. Anderso~
"'"',.., C..m""'1y D'W'~"'"I
REVIEWED BY: City Manag~ ~ fi (4/5ths Vote: Yes_ NoX!
BACKGROUND:
The City Council approved Resolution 18601 on March 18, 1997 conceptually approving the marketing of City
property for use by telecommunications companies. Since this time, staff has been working with a number of
companies to explore the possibility of locating facilities on City owned property.
Metricom, Inc. is a wireless data communications provider. Metricom has been operating in San Francisco,
Seattle, and Washington DC metropolitan areas, as well as many airports, universities and private corporations
throughout the Country for several years. Metricom is now expanding in California and the San Diego community.
Metricom utilizes small radios that are affixed to street light standards (see Attachment 1) to create a wireless
network that provides users with direct, unlimited access to the Internet, e-mail, private intranets, local area
networks, and other online services without the use of phone lines.
Metricom, Inc. has requested to install these radios on street lights throughout the City. It is estimated that
approximately 180 street light standards will be needed initially. This number is expected to increase as Metricom
expands coverage in the eastern portion of the City. Metricom will be paying both an annual pole fee and a license
fee for the use of the City's street light standards. Staff recommends approval of the attached license Agreement
(see Attachment 2) due to the financial benefits and minimal impact on City facilities.
RECOMMENDATION: Approve license Agreement with Metricom, Inc. for the installation and operation of
a wireless digital communication network utilizing the City's street light standards for a period of 5 years with
an option to renew for two additional 5 year terms.
BOARDS/COMMISSIONS RECOMMENDATION: Not Applicable
&-J
Page 2, Item _
Meeting Date 10/20/98
DISCUSSION:
1. METRICOM,INC.:
As mentioned above, Metricom has been operating for several years in select areas throughout the country and
is now expanding their network throughout California, including San Diego County. Metricom has executed
agreements with the City of Imperial Beach and Escondida to date with the same provisions as the Agreement
attached.
Metricom provides wireless data communications service, which allows its customers to access the Internet, e-
mail, private intranets, local area networks, and online services without the use of phone lines. The service allows
for individuals to utilize their laptop computers from the field to enter reports, retrieve e·mails, or access the
Internet, among other on-line services. The service is also compatible with desktop computers and would allow
access to the Internet without an additional phone line.
2. LICENSE AGREEMENT:
The license Agreement allows Metricom to install radios on the City street light standards in the public right of
way and to operate within the scope of this Agreement for a period of 5 years. The Agreement allows for two
additional 5 year terms subject to the approval of the City Manager, for a maximum term of fifteen years. At the
beginning of each five year renewal period, the annual pole fee is subject to adjustment. Metricom is required to
comply with all applicable laws and obtain all applicable permits from the City. Metricom is solely responsible for
the installation, maintenance, and removal of the radio network. If any damage is caused by Metricom to the
public right of way or City property, they are required to promptly repair it at their sole cost.
Metricom will be paying both an annual pole fee and license fee for the use of the City's street light standards,
which are described in more detail in Section 4 below. The Agreement also provides the City with up to thirty
subscriptions to Metricom's telecommunications service at a 50% discount ($179.70 annually vs. $359.40
annually). Representatives from Metricom have indicated to staff that to date all cities have been offered the
same terms and Metricom intends to continue such practice. Nonetheless, in order to ensure fairness, the
Agreement includes a "most favored nation" clause which states that if at some point in the future a city
negotiates an agreement with superior financial benefits, that the City can request that this Agreement be
modified to incorporate the same or substantially similar benefits.
3. IMPACTS ON CITY PROPERTY:
Metricom, Inc. will be installing radios, approximately the size of a shoe box, on light standards throughout the
City. The radio will be affixed to the arm of the light standard, as depicted in Attachment 1. Metricom estimates
that they will be installing a minimum of 180 radios, approximately 7 per square mile, throughout the City. This
t .--.;¿
Page 3, Item _
Meeting Date 10/20/98
number is projected to increase as this estimate does not include the recently annexed Otay Ranch area. The
installation will not require any trenching, cabling or street hardware. There is minimal maintenance and ongoing
administration required. There is no additional equipment needed for the network operation. Public Works staff
has been working with Metricom on the placement and installation of these radios and will require Metricom, Inc.
to secure a Right-of·Way Encroachment Permit. The Department of Planning and Building has determined that
no additional permits will be required.
4. FINANCIAL BENEFITS:
Metricom, Inc. will be paying both an annual pole fee and license fee. The annual revenue projections range from
$30,800 to $60,800. The annual pole fee is $60.00 per pole, with an estimated 180 poles this equals $10,800.
The franchise fee is 5% of gross receipts from subscriptions with addresses in Chula Vista. Metricom's estimates
that between 2·5% of the households will subscribe based on the percentages in other cities with Metricom
service. The estimated number of households in Chula Vista is 55,479. Based on the previous assumption,
between 1110 and 2774 households in Chula Vista will subscribe at an annual rate of $359.40 which will
generate between $398,934 to $996,975.60 in gross receipts. The franchise fee to the City is estimated to be
between $20,000 to $50,000 per year.
FISCAL IMPACT:
As discussed above the annual revenue to be generated by this Agreement is estimated to be between $30,800
and $60,800. It is anticipated that Metricom, Inc. will locate a minimum of 180 radios within the City of Chula
Vista which will generate an annual fee of $10,800. In addition, the estimated annual license fee ranges from
$20,000 to $50,000, depending on the number of subscriptions in Chula Vista.
There will be some staff time associated with annual billing and with monitoring and ensuring compliance with
the Agreement.
(DDA) H:\HOME\COMMDEV\STAFF.REPI10·13·98Imetricom [October 15, 1998 (8:53AM)]
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RESOLUTION NO. J9cJc2.:¿
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA
VISTA APPROVING LICENSE AGREEMENT WITH METRICOM,INC.
FOR THE INSTALLATION AND OPERATION OF A WIRELESS
DIGITAL COMMUNICATION NETWORK UTILIZING THE CITY'S
STREET LIGHT STANDARDS FOR A PERIOD OF 5 YEARS WITH AN
OPTION TO RENEW FOR TWO ADDITIONAL 5 YEAR TERMS.
WHEREAS, the City Council approved Resolution 18601 on March 18,1997
conceptually approving the marketing of City property for use by telecommunications companies;
and
WHEREAS, Metricom, Inc. is a wireless data communications provider and has
requested to install radios on street lights throughout the City to create a wireless network; and
WHEREAS, Metricom, Inc. will be paying both an annual pole fee and a license fee
for the use of the City's street light standards; and
WHEREAS, this License Agreement will provide financial benefits to the City with
minimal impact on City facilities.
NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista
does hereby approve and the Mayor is authorized to execute a License Agreement with Metricom,
Inc. for the installation and operation of a wireless digital communication network utilizing the
City's street light standards in the form presented, with such minor modifications as may be
approved or required by the City Attorney, a copy of which shall be kept on file with the City
Clerk as Document No. tJð?ð-¡lfJ.
Presented by Approved as to form by
,
.,.....
David D. Rowlands, Jr. -
City Manager
[(dda) H:\HOME\COMMDEV\RESOS\metricom (October 15, 1998 (8:49AM)]
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ATTACHMENT 2
CHULA VISTA
Communications Site License Agreement
T HIS COMMUNICATIONS SITE LICENSE AGREEMENT (the "License")
is dated as of , 1998, and entered into by and between the CITY OF
CHULA VISTA, a California municipal corporation (the "City"), and METRIC OM,
INC., a Delaware corporation ("Metricom").
Recitals
A. Metricom wishes to attach, install, operate, and maintain a wireless digital
communications radio network on facilities located in the Public Way for
purposes of operating its Ricochet® wireless digital communications radio
network (the "Network").
B. City is willing to allow Metricom to attach, install, operate and maintain
the Network subject to the terms and conditions set forth herein.
Agreement
Now, therefore, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree to the following
covenants, terms, and conditions:
1 DEFlNmONS. The following definitions shall apply generally to the provisions of this
agreement:
1.1 Agency. "Agency" means any governmental or quasi-governmental
agency other than the City, including the FCC and the PUC (as such terms are
defined in §§ 1.3 and 1.9 below).
1.2 City. "City" means the City of Chula Vista.
1.3 Effective Date. "Effective Date" means the date on which this License as
finally approved by the City Council of Chula Vista.
1.4 FCC. "FCC" means the Federal Communications Commission.
Telecommunications Attachment Pennit Agreement
City ofChula Vista:: Metricom, Inc.
Page 1 of 20
rowchulavista2 [rwg07scOSapa978 ii()99~ /9ò
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1.5 Fee. "Fee" means any assessment, license, charge, fee, imposition, tax (but
excluding any utility users' tax or franchise fees), or levy of general application to
Persons doing business in the City lawfully imposed by any governmental body.
1.6 Gross Revenues. "Gross Revenues" means the gross dollar amount
accrued on Metricom's books for Services provided to its customers with billing
addresses in the City, excluding (i) the Franchise Fee, if any, payable pursuant to
§ 4 et seq. below; (ii) local, state, or federal taxes collected by Metricom that have
been billed to the subscribers and separately stated on subscribers' bills; and
(iii) revenue uncollectible from subscribers (i.e., bad debts) with billing addresses
in the City that was previously included in Gross Revenues.
1.7 Laws. "Laws" means any and all statutes, constitutions, ordinances,
resolutions, regulations, judicial decisions, rules, tariffs, administrative orders,
certificates, orders, or other requirements of the City or other governmental
agency having joint or several jurisdiction over the parties to this Permit, in effect
either at the time of execution of this Permit or at any time during the presence of
Radios in the Public Way.
1.8 Metricom. "Metricom" means Metricom, Inc., a corporation duly
organized and existing under the laws of the State of Delaware, and its lawful
successors, assigns, and transferees.
1.9 PUc. "PUC" means the California Public Utilities Commission.
1.10 License. "License"means this nonexclusive Communications Site License
Agreement and may also refer to the associated right to encroach upon the Public
Way conferred hereunder.
1.11 Person. "Person" means an individual, a corporation, a limited liability
company, a general or limited partnership, a sole proprietorship, a joint venture,
a business trust, or any other form of business entity or association.
1.12 Provision. "Provision" means any agreement, clause, condition, covenant,
qualification, restriction, reservation, term, or other stipulation in this Permit that
defines or otherwise controls, establishes, or limits the performance required or
permitted by any party to this Permit. All Provisions, whether covenants or
conditions, shall be deemed to be both covenants and conditions.
1.13 Public Way. "Public Way" means in, upon, above, along, across, and over
the public streets, roads, lanes, courts, ways, alleys, boulevards, and places,
including all public utility easements and public service easements as the same
now or may hereafter exist that are under the jurisdiction of the City. This term
shall not include any property owned by any Person or Agency other than the
Telecommunications Attachment Penn it Agreement
City ofChula Vista:: Metricom, 1ne.
Page 2 of 20
rowchulavistal {rwg07sc05apa978 1011411998
¿~~
City, except as provided by applicable Laws or pursuant to an agreement
between the City and any such Person or Agency.
1.14 Radio Month. "Radio Month" means a calendar month during which a
Radio occupies space on a City-owned pole or other City-owned property, even
if such occupancy is less than the entire month.
1.15 Radio. "Radio" means the radio equipment, whether referred to singly or
collectively, to be installed and operated by Metricom hereunder and more
particularly described in Exhibit A attached hereto.
1.16 Ricochet®. "Ricochet®" or "Ricochet® MCDN" means Ricochet®
MicroCellular Digital Network, a wireless, microcellular digital radio
communications network owned and operated by Metricom.
1.17 Services. "Services" means the wireless digital communications services
provided through Ricochet by Metricom to subscribers with billing addresses
within the City.
2 TERM. The term of this License shall commence on the Effective Date and shall
expire on the date which completes five (5) years after the Effective Date, unless it is
earlier terminated by either party in accordance with the provisions herein. The term of
this License shall be renewed for two (2) successive terms of five (5) years each on the
same terms and conditions as set forth herein, except that the Annual Fee shall be
subject to adjustment as provided in § 4.2.1 below, upon written notice by_Metricom to
the City Manager of its intention to renew not less than thirty (30) calendar days prior to
commencement of the relevant renewal term and, the City Manager's written approval
thereof.
2.1 Condemnation. If a condemning authority takes all of City's property,
or a portion, which in both parties' opinion is sufficient to render the Premises
unsuitable for Metricom's use, then the applicable schedule shall terminate as of
the date when possession is delivered to the condemning authority. In any
condemnation proceeding each party shall be entitled to make a claim against
the condemning authority for just compensation. Sale of all or part of the
premises to a purchaser with the power of eminent domain, shall be treated as a
taking by a condemning authority.
3 ScOPE OF LICENSE. Any and all rights expressly granted to Metricom under this
License, which shall be exercised at Metricom's sole cost and expense, shall be subject to
the prior and continuing right of the City under applicable Laws to use any and all
parts of the Public Way exclusively or concurrently with any other Person or Persons
and shall be further subject to all deeds, easements, dedications, conditions, covenants,
restrictions, encumbrances, and claims of title which may affect the Public Way.
Telecommunications Attachment Permit Agreement
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Nothing in this License shall be deemed to grant, convey, create, or vest in Metricom a
perpetual real property interest in land, including any fee, leasehold interest, or
easement. To the extent allowed by Laws, notwithstanding any other provisions in this
License, City further reserves full and unfettered discretion to exercise any and all
legislative, police and regulating authority with respect to Metricom and the Network.
3.1 Attachment to City-Owned Property. Subject to the terms and conditions
set forth herein,_the City hereby authorizes Metricom to attach, install, operate,
maintain, remove, reattach, reinstall, relocate, and replace Radios in or on City
street light poles, lighting fixtures, electroliers, or other City-owned property
located within the Public Way for the purposes of providing Services to Persons
located within or without the limits of the City.
3.2 Attachment to Third-Party Property. Subject to obtaining the permission
of the owner(s) of the affected property, the City hereby authorizes and permits
Metricom to attach, install, operate, maintain, remove, reattach, reinstall,
relocate, and replace such number of Radios in or on poles or other structures
owned by public utility companies, including SCE, or other property owners
located within the Public Way as may be permitted by the public utility company
or property owner, as the case may be. Metricom shall furnish to the city
documentation of such permission from the individual utility or property owner
responsible.
3.3 No Interference. Except as permitted by this License_Metricom in the
performance and exercise of its rights and obligations under this License with
respect to City property and/or right-of-way shall not interfere in any manner
with the existence and operation of any and all public and private rights-of-way,
sanitary sewers, water mains, storm drains, gas mains, poles, ærial and
underground electrical and telephone wires, electroliers, cable television, and
other telecommunications, utility, or municipal property, without the express
written approval of the owner or owners of the affected property or properties.
3.4 Liens. The Premises shall be kept free and clear of any and all liens or
claims of liens and charges on account of labor and materials used in or
contributing to any work performed by or related to Metricom, failing which
City shall have the right, but shall not be obligated, to discharge any and all such
liens or claims and Metricom shall, upon demand therefore, reimburse City for
all costs and expenses incurred by the City.
3.5 Compliance with Laws. Metricom shall comply with all applicable Laws
in the exercise and performance of its rights and obligations under this
License.
Telecommunications Attachment Permit Agreement
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Page 40f20
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3.5.1 Permits. Any and all work performed pursuant to the rights
granted under this License, including the installation, operation,
maintenance, location, and attachment of the Radios in the Public Way,
shall, if required under applicable City ordinances, policies and/or
procedures be subject to the prior review and approval of City by means
of submission of a permit application, payment of any applicable
permitting fees, and the City's ordinary administrative review. Metricom
agrees to apply for and obtain all appropriate permits required by
applicable Law prior to the commencement of any work of construction in
the Public Way. The locations of Metricom's planned initial installation of
Radios shall be incorporated in Exhibit B attached to this License. After
the initial deployment of the Radios, new attachments, removals, and
relocations of Radios shall also be subject to the City's permitting process.
If the location of any Radio is different from that applied for in the
applicable permit, the location of such Radio installed by Metricom or its
designee such changesßhall be approved by the City~
3.5.2 As-Built Drawings. Upon the completion of construction work,
Metricom promptly shall furnish to the City, in hard copy and in
Metricom's electronic format, suitable documentation showing the exact
location of the Radios in the Public Way.
3.5.3 Modification of Service Voltage. The City reserves the right to
modify the service voltage delivered to or at any street light pole or utility
pole on which a Radio may be located. Metricom shall replace or modify
any Radio that will be affected by such voltage modifications within thirty
(30) days of receiving notice of voltage modifications. In the event that
Metricom fails to replace or modify any Radio within the thirty-day notice
period before the voltage modification, the City may disconnect any such
Radio until Metricom performs and completes the necessary work and
advises City accordingly.
3.6 Annual Business License. Metricom agrees to obtain an annual
City business license prior to the Effective Date and maintain the same
throughout the term of this License.
3.7 Nuisance. Metricom shall not use the licensed premises in any manner
which, in the reasonable opinion of the City, creates a nuisance or disturbs the
quiet enjoyment of the surrounding area by persons in the said area.
3.8 Possessory Interest. Metricom shall pay personal property taxes and
possessory interest taxes, if any, assessed against Metricom's facilities and City
shall pay when due, if any, all real property taxes and all other taxes, fees and
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assessments attributable to the premises. Metricom recognizes and understands
that this license may create a possessory interest subject to property taxation and
that Metricom may be subject to the payment of property taxes levied on such
interest. Metricom further agrees that such tax payment shall not reduce any fee
paid to the City hereunder and that such tax shall be paid by Metricom before
becoming delinquent. City has no responsibility or liability for any such tax.
4 FEES AND TAXES. Metricom shall be solely responsible for the payment of all lawful
Fees and utility charges in connection with the exercise of Metricom's rights under this
License, including those set forth below.
4.1 License Fee. Metricom shall pay to the City, on an annual basis, an
amount (the "License Fee") equal to five percent (5%) of Metricom's Gross
Revenues collected during each preceding calendar year, which amount shall be
collected from subscribers of the Services and remitted to City as provided
herein. The Franchise Fee shall be due on or before the forty-fifth (45th) day after
the end of each calendar year or fraction thereof. If payment is not received by
the 45th day, a late fee of 5% of the balance due will be assessed. In addition,
interest will accrue on the unpaid balance at a rate of 6% per anum until paid.
Within forty-five (45) days after the termination of this License, the License Fee
shall be paid for the period which has elapsed since the end of the last calendar
year for which the License Fee has been paid. Metricom shall furnish to the City
with each payment of the License Fee a statement, executed by an authorized
officer of Metricom or his or her designee, showing the amount of Gross
Revenues for the period covered by the payment. If Metricom discovers that it
has failed to pay the entire or correct amount of the License Fee, Metricom shall
pay the difference to the City or make such other adjustment within fifteen (15)
days of discovery of the error or determination of the correct amount. Any
overpayment to the City through error or otherwise shall be offset against the
next payment due from Metricom. Acceptance by the City of any payment due
under this section shall not be deemed to be a waiver by the City of any breach of
this License occurring prior thereto, nor shall the acceptance by the City of any
such payments preclude the City from later establishing that a larger amount
was actually due or collecting any balance due to the City.
4.1.1 Accounting and Audit. Metricom shall keep accurate books of
account at its principal office in Los Gatos or such other location of its
choosing for the purpose of determining the amounts due to the City
under § 4.1. The City may inspect Metricom's books of account at any
time during regular business hours on five (5) days' prior written notice
and may audit the books from time to time, but in each case only to the
extent necessary to confirm the accuracy of payments due under § 4.1.
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The City shall bear the cost of any such audit, unless such audit reveals an
underpayment to the City of more than five percent (5%) of the Franchise
Fee which was due to the City for such calendar year in which case
Metricom shall reimburse the City for the cost of the audit. Payments for
audit reimbursements shall be due fifteen days after City's written notice
to Metricom of its determination of underpayment. Once each calendar
year the City may require an annual report from Metricom relating to its
operations and revenues within the City. City agrees to hold in
confidence any nonpublic information it learns from Metricom in
accordance with applicable law.
4.2 Annual Fee. Metricom shall pay to the City an annual fee (the" Annual
Fee") in the amount of Sixty Dollars ($60.00) for the use of each City-owned pole
or other structure or piece of City-owned property upon which a Radio has been
installed pursuant to this License. The initial Annual Fee shall be due and
payable not later than the date of installation of the first Radio on City-owned
poles or other City-owned property under this License (the "Installation Date")
and shall be computed based upon the number of Radios Metricom estimates as
of the Installation Date that it will install on City-owned poles or other City-
owned property during the succeeding twelve (12) months. The Annual Fee for
subsequent years shall be due and payable not later than thirty (30) days
following each anniversary of the Installation Date and shall equal the total
number of Radios then installed on City-owned poles or other City-owned
property pursuant to this License multiplied by the Annual Fee, adjusted for the
Prior Year Adjustment, as described immediately below. If payment is not
received by the 30th day following the due date, a late fee of 5% of the balance
due will be assessed. In addition, interest will accrue on the unpaid balance at a
rate of 6% per anum until paid. The Prior Year Adjustment shall either increase
or decrease a subsequent year's aggregate Annual Fee to account for the
installation or removal of Radios during the prior year, and shall equal the
difference between (i) the total number of Radios used to calculate the prior
year's aggregate Annual Fee multiplied by twelve (12) and (ii) the actual number
of Radio Months which occurred during such year, multiplied by one-twelfth of
the Annual Fee.
4.2.1 CPI Adjustment. At the commencement of each renewal term, the
Annual Fee with respect to such term shall be increased (but never
decreased) effective January 1st of the first year of such renewal term by a
percentage amount equal to the percentage change in the U.s. Department
of Labor, Bureau of Labor Statistics, Consumer Price Index of all items,
Base 1982-1984, which occurred during the previous term or renewal term,
as the case may be, for the Los Angeles-Anaheim-Riverside Consolidated
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Metropolitan Statistical Area for the most recent twelve month period for
which such statistic has been tabulated.
4.3 City Access Program Subscription Rate. In consideration of City's
execution and delivery of this License, City shall have the right throughout the
term of this License to purchase a number of subscriptions based upon the City's
population, up to the maximum number set forth below, to Ricochet™ Basic
Service Subscriptions when such service is commercially available in the City at
the rate of fifty percent (50%) of the regular Basic Service Subscription rate as
current from time to time. The number of subscriptions which the City may
purchase at the City Access Program rate shall be determined in accordance with
the City's official population, as shown on the latest available census data, as
follows: (a) for cities with a population of less than 100,000, up to a maximum of
twenty (20) discount subscriptions; (b) for cities with a population of 100,000 to
249,000, up to a maximum of thirty (30) discount subscriptions; (c) for cities with
a population of 250,000 to 500,000, up to a maximum of forty (40) discount
subscriptions; and (d) for cities with a population of over 500,000, up to a
maximum of fifty (50) discount subscriptions. City understands and agrees that
Metricom's modems and equipment required to utilize the discounted
subscriptions and any additional service subscriptions or service options the City
may desire are expressly excluded from this special City Access Program rate
and may be obtained from either Metricom or an authorized retailer at market
rates current from time to time or under other promotional programs which may
be available from time to time in addition to the City Access Program rate. City
shall use all subscriptions provided pursuant to this § 4.3 solely for its own use
and shall not be entitled to resell, distribute, or otherwise permit the use of the
same by any other party. If the City reasonably determines that additional
subscriptions would materially serve the public welfare, health and safety,
Metricom and the City will meet and confer regarding the provision of such
subscriptions at the discounted rate provided above.
4.4 Reimbursement of City's Expenses. Metricom shall reimburse the City at
City's standard rates for all reasonable expenses relating to the preparation,
issuance, and implementation of this License, promptly upon receipt of bills,
paid invoices, and such other documentation as Metricom shall reasonably
require. The reimbursement provided for in this § 4.3 shall not replace or excuse
Metricom from the payment of any applicable City permit fee for work
undertaken in connection with this License.
4.5 Potential Utility Users' Tax. Metricom acknowledges and agrees that the
City may require users of revenue-producing services such as the Services to pay
a utility users' tax ("Utility Tax") to the City pursuant to City's Municipal Code.
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Page 8 of 20
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If the City determines that the Services are subject to the Utility Tax, Metricom
agrees to collect the tax from Service users and remit such tax to the City in
accordance with City's Municipal Code.
4.6 Most-Favored Nation Clause. Should Metricom or any affiliate thereof
after the parties' execution and delivery of this License enter into an attachment
permit agreement with another municipality of the same size or smaller than the
City in the Southern California Metropolitan Statistical Area which agreement
contains financial benefits for such municipality which, taken as a whole and
balanced with the other terms of such agreement, are superior to those in this
License, City shall have the right to request that Metricom modify this License to
incorporate the same or substantially similar superior benefits and such other
terms.
5 REMOVAL AND RELOCATION OF RAmos. Metricom understands and acknowledges
that City may require Metricom to relocate one or more of its Radios, and Metricom
shall at City's direction relocate such Radios at Metricom's sole cost and expense,
whenever City reasonably determines that the relocation is needed for any of the
following purposes: (a) to facilitate or accommodate the construction, completion,
repair, relocation, or maintenance of a City project; (b) because the Radio is interfering
with or adversely affecting proper operation of City light poles, traffic signals, or other
City facilities; or (c) to protect or preserve the public health, safety, or welfare. If
Metricom shall fail to relocate any Radios as requested by the City in accordance with
the foregoing provision, City shall be entitled to relocate the Radios at Metricom's sole
cost and expense, without further notice to Metricom.
5.1 Metricom Desires Relocation. In the event Metricom desires to relocate
any Radios from one City-owned pole or other property to another City-owned
pole or other property, Metricom shall so advise City. City will use its best
efforts to accommodate Metricom by making another functionally equivalent
City-owned pole or other property available for use in accordance with and
subject to the terms and conditions of this License.
5.2 Discontinuation of Service. In the event that any Radio subject to this
License is abandoned and no longer placed in service for a period-of six (6)
months or more, Metricom promptly shall notify the City, and the City, at its
option, may require Metricom promptly to remove the abandoned Radio(s) at
Metricom's sole cost and expense or dedicate the same to the City. The City shall
not issue notice to Metricom that the City intends to exercise the option to
require removal or dedication of Radios, unless and until the City first gives
fifteen (15) days' prior written notice to Metricom to remove the Radios. If
Metricom shall fail to remove the Radios as required by the City, the City shall be
entitled to remove the Radios at Metricom's sole cost and expense. Metricom
Telecommunicatíons Attachment Permit Agreement
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Page 9 of 20
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shall execute such documents of title as will convey all right, title, and interest in
the abandoned Radios, but in no other Metricom property, intellectual or
otherwise, to the City.
5.3 Damage to Public Way. Whenever the removal or relocation of Radios is
required under this License, and such removal or relocation shall cause the
Public Way to be damaged, Metricom, at its sole cost and expense, shall
promptly repair and return the Public Way in which the Radios are located to a
safe and satisfactory condition to the satisfaction of the City's Director of Public
Works. If Metricom does not repair the site as just described, then the City shall
have the option, upon fifteen (15) days' prior written notice to Metricom, to
perform or cause to be performed such reasonable and necessary work on behalf
of Metricom and to charge Metricom for the proposed costs to be incurred or the
actual costs incurred by the City at City's standard rates. Upon the receipt of a
demand for payment by the City, Metricom shall reimburse the City for such
costs.
6 INDEMNIFICATION, WAIVER, AND BOND. Metricom agrees to inderrmify, defend (with
counsel reasonably acceptable to the City and to Metricom's insurance carrier), protect,
and hold harmless the City, its council members, officers, and employees from and
against any and all claims, demands, losses, damages, liabilities, fines, charges,
penalties, administrative and judicial proceedings and orders, judgements, remedial
actions of any kind, all costs and cleanup actions of any kind, and all costs and expenses
incurred in connection therewith, including reasonable attorney's fees and costs of
defense (collectively, the "Losses") arising, directly or indirectly, in whole or in part, out
of the activities or facilities described in this License, except to the extent arising from or
caused by the sole negligence or sole willful misconduct of the City, its council
members, officers, employees, agents, or contractors.
6.1 Waiver of Breach. The waiver by the City of any breach or violation of
any Provision of this License by Metricom shall not be deemed to be a waiver or
a continuing waiver by the City of any subsequent breach or violation of the
same or any other Provision of this License by Metricom.
6.2 Waiver of Claims. Metricom waives any and all claims, demands, causes
of action, and rights it may assert against the City on account of any loss,
damage, or injury to any Radio or any loss or degradation of the Services as a
result of a sudden or gradual loss or change of electrical power caused by,
among others events, an Act of God, an event or occurrence which is beyond the
reasonable control of the City, a power outage, a lightning strike, or occasioned
by the installation, maintenance, replacement or relocation of any City-owned
facility to which such Radio is attached.
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6.3 Limitation of City's Liability. The City shall be liable only for the cost of
repair to damaged Radios arising from the sole negligence or sole willful
misconduct of City or its employees or agents, and the City shall not be
responsible for any damages, losses, or liability of any kind occurring by reason
of anything done or omitted to be done by the City or by any third party,
including damages, losses, or liability arising from the issuance or approval by
the City of a permit to any third party or any interruption in Services.
6.4 Bond or Other Security. Prior to the commencement of any work under
this License, Metricom shall furnish or cause to be furnished to City a good and
sufficient bond, substantially in the form attached hereto as Exhibit C entitled
Surety Bond, in the amount of Seventy-five hundred Dollars ($7500), or such
other comparable security instrument as may be approved by the City's attorney
or risk manager, securing the faithful performance by Metricom of all of the
work, construction, installation, and removals required to be performed by
Metricom under this License within the time periods set forth hereunder.
7 INSURANCE. Metricom shall obtain and maintain at all times during the term of this
License (including the period between the expiration hereof and Metricom's removal of
its Radios or other equipment from the Public Way) commercial general liability
insurance and commercial automobile liability insurance protecting Metricom in an
amount not less than One Million Dollars ($1,000,000) per occurrence (combined single
limit), including bodily injury and property damage, and in an amount not less than
One Million Dollars ($1,000,000) annual aggregate for each personal injury liability and
products-completed operations. Such insurance policies shall name the City, its council
members, officers, and employees as additional insureds as respects any covered
liability arising out of Metricom's performance of work under this License. Coverage
shall be provided in accordance with the limits specified and the Provisions indicated
herein. Claims-made policies are not acceptable. When an umbrella or excess coverage
is in effect, coverage shall be provided in following form. Such insurance shall not be
canceled or materially altered to reduce coverage until the City has received at least
thirty (30) days' advance written notice of such cancellation or change. Metricom shall
be responsible for notifying the City of such change or cancellation.
7.1 Filing of Certificates and Endorsements. Prior to the commencement of
any work pursuant to this License, Metricom shall file with the City the required
original certificate(s) of insurance with endorsements, subject to the City's prior
approval, which shall clearly state all of the following:
(a) the policy number; name of insurance company; name and
address of the agent or authorized representative; name,
address, and telephone number of insured; project name and
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address; policy expiration date; and specific coverage
amounts;
(b) that thirty (30) days' prior notice of cancellation is required
to the City; and
(c) that Metricom's insurance is primary as respects any other
valid or collectible insurance that the City may possess,
including any self-insured retentions the City may have; and
any other insurance the City does possess shall be
considered excess insurance only and shall not be required
to contribute with this insurance.
(d) City is a named additional insured.
The certificate(s) of insurance with endorsements and notices shall be mailed to
the City as the address specified in § 8 below:
7.2 Workers' Compensation Insurance. Metricom shall obtain and maintain
at all times during the term of this License statutory workers' compensation and
employer's liability insurance in an amount not less than One Million Dollars
($1,000,000) and shall furnish the City with a certificate showing proof of such
coverage.
7.3 Insurer Criteria. Any bond orjnsurance provider of Metricom shall be
admitted and authorized to do business in California and shall be rated at least
A:X in A.M. Best & Company's Insurance Guide. Insurance policies and
certificates issued by non-admitted insurance companies are not acceptable.
7.4 Severability of Interest. Prior to the execution of this License, any
deductibles or self-insured retentions must be stated on the certificate(s) of
insurance, which shall be sent to and approved by the City. " Additional
insured", "Cross liability," "severability of interest," or "separation of insureds"
endorsements/clauses shall be made a part of the commercial general liability
and commercial automobile liability policies.
7.5 Contractors' and Subcontractors' Insurance. Metricom shall require that
all contractors and subcontractors obtain insurance meeting the criteria set forth
herein and shall furnish to the City copies of all certificates evidencing such
policies of insurance.
7.6 Insurance and Indemnification Obligation. Metricom's compliance with
the insurance requirements herein shall not excuse, replace, or otherwise affect
Metricom's duty to indemnify and defend the City pursuant to § 6 of this
License.
Telecommunications Attachment Permit Agreement
City ofChula Vista:: Metricom,lnc.
Page ]2 of 20
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8 NOTICES. All notices which shall or may be given pursuant to this License shall be in
writing and delivered personally or transmitted (a) through the United States mail, by
registered or certified mail, postage prepaid; (b) by means of prepaid overnight delivery
service; or (c) by facsimile transmission, if a hard copy of the same is followed by
delivery through the U. S. mail or by overnight delivery service as just described,
addressed as follows:
if to the City:
CITY OF CHULA VlSfA
Attn: Debra Depratti Anderson
276 Fourth Avenue
Chula Vista, CA 91910
if to Metricom:
METRIC OM, me.
Attn: Property Manager
980 University Avenue
Los Gatos, CA 95032
Notices shall be deemed given upon receipt in the case of personal delivery, three (3)
days after deposit in the mail, or the next day in the case of overnight delivery. Either
party may from time to time designate any other address for this purpose by written
notice to the other party delivered in the manner set forth above.
9 TERMINATION. This License may be terminated by either party upon forty five (45)
days' prior written notice to the other party upon a default of any material covenant or
term hereof by such other party, which default is not cured within forty-five (45) days
of receipt of written notice of default (or, if such default is not curable within forty-five
(45) days, if the defaulting party fails to commence such cure within forty-five (45) days
or fails thereafter diligently to prosecute such cure to completion), provided that the
grace period for any monetary default shall be ten (10) days from receipt of notice. As
used in this § 9, the term default shall include, with respect to Metricom's obligations
hereunder, Metricom's failure (i) to comply with the restrictions established in § 3,
(ii) timely to pay any sums owing to the City under § 4, and (iii) to maintain, deploy,
relocate, or remove its Radios as provided in § 5 hereof.
10 ASSIGNMENT. This License shall not be assigned by Metricom without the express
written consent of the City, which consent shall not be unreasonably withheld,
conditioned, or delayed. Any attempted assignment in violation of this § 10 shall be
void. Notwithstanding the foregoing, the transfer of the rights and obligations of
Metricom hereunder to a parent, subsidiary, or financially viable affiliate of Metricom
Telecommunications Attachment Penn it Agreement
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or to any successor-in-interest or entity acquiring all or substantially all of Metricom's
outstanding voting stock or assets shall not be deemed an assignment or transfer for the
purposes of this License, provided that (i) any such transferee will have a financial
strength after the proposed transfer at least equal to that of Metricom prior to the
transfer, (ii) any such transferee assumes all the obligations of Metricom hereunder, and
(iii) Metricom shall not be released from the obligations of this License by virtue of such
transfer. If such criteria are satisfied, it shall not be deemed reasonable for the City to
withhold its consent to the proposed transfer, unless the proposed transferee has a
record of performance under similar agreements which is unacceptable to the City
under a reasonable standard of evaluation. Lack of prior specific experience in
administering a system providing the Services described in this License shall not, by
itself, be deemed a reasonable basis for refusing or conditioning the City's consent.
Metricom shall give to the City thirty (30) days' prior written notice of any proposed
transfer for which notice is required hereunder. In the case of any proposed transfer for
which the City's consent is required hereunder, Metricom agrees to reimburse the City
for its reasonable expenses incurred in reviewing such transfer proposal.
11 MIscELLANEOUS PROVISIONS. The provisions which follow shall apply generally to
the obligations of the parties under this License.
11.1 Nonexclusive Use. Metricom understands that this License does not
provide Metricom with exclusive use of any City-owned poles or property and
that City shall have the right to permit other providers of telecommunications
services to install equipment or devices in the Public Way; however, City shall
endeavor promptly to notify Metricom of the receipt of a proposal for the
installation of communications equipment or devices in the Public Way,
regardless of whether a license is required by the FCC for the operation thereof.
11.2 Amendment of License. This License may not be amended except
pursuant to a written instrument signed by both parties.
11.3 Severability of Provisions. If anyone or more of the Provisions of this
License shall be held by court of competent jurisdiction in a final judicial action
to be void, voidable, or unenforceable, such Provision(s) shall be deemed
severable from the remaining Provisions of this License and shall in no way
affect the validity of the remaining portions of this License.
11.4 All-Hours Contact. Metricom shall be available to the staff employees of
any City department having jurisdiction over Metricom's activities twenty-four
(24) hours a day, seven (7) days a week, regarding problems or complaints
resulting from the attachment, installation, operation, maintenance, or removal
of the Radios. The City may contact by telephone the network control center
Telecommunications Attachment Permit Agreement
City ofChula Vista:: Metricom, Inc.
Page 140f20
rowchulavistal [nvg07sc05apa978 t-;LtJ 10/14/1998
operator at telephone number (800) 556-6123 regarding such problems or
complaints.
11.5 Governing Law; Jurisdiction. This License shall be governed and
construed by and in accordance with the laws of the State of California. In the
event that suit is brought by a party to this License, the parties agree that trial of
such action shall be vested exclusively in the state courts of California, County of
San Diego, or in the United States District Court, Central District of California in
the County of San Diego.
11.6 Attorneys' Fees. Should any dispute arising out of this License lead to
litigation, the prevailing party shall be entitled to recover its costs of suit,
including reasonable attorneys' fees.
11.7 Exhibits. All exhibits referred to in this License and any addenda,
attachments, and schedules which may from time to time be referred to in any
duly executed amendment to this License are by such reference incorporated in
this License and shall be deemed a part of this License.
11.8 Successors and Assigns. This License is binding upon the successors and
assigns of the parties hereto.
11.9 Rules, Regulations, and Specifications. Metricom acknowledges that the
City may develop rules, regulations, and specifications, including a general
ordinance or other regulation governing wireless telecommunications in the City
(the "Regulations"), for the attachment, installation, and removal of Radios and
any similar purpose devices on the City-owned facilities, including poles, and
that such Regulations, when finalized, shall govern Metricom's activities
hereunder as if they had been in effect at the time this License was executed by
the City; provided, however, that in no event shall such Regulations materially
interfere with or affect Metricom's right to install Radios or Metricom's ability to
transmit or receive radio signals from Radios installed pursuant to and in
accordance with this License or materially increase Metricom's obligations
hereunder.
11.10 Advice of Displacement. To the extent the City has actual knowledge
thereof, the City will attempt to inform Metricom of the displacement of any pole
on which any Radio is located.
11.11 Consent Criteria. In any case where the approval or consent of one party
hereto is required, requested or otherwise to be given under this License, such
party shall not unreasonably delay, condition, or withhold its approval or
consent.
Telecommunications Attachment Permit Agreement
City ofChula Vista:: Metricom, ]nc.
Page 15 of 20
rowchulavistal [rwg07sc05apa978 r::/d) 10/14/1998
- -"~_.~-,._~
11.12 Entire Agreement. This License contains the entire understanding
between the parties with respect to the subject matter herein. There are no
representations, agreements, or understandings (whether oral or written)
between or among the parties relating to the subject matter of this License which
are not fully expressed herein.
In Witness Whereof, the parties have executed this License as of the date
first above written.
City: CITY OF CHULA VISTA, a California municipal corporation
By:
[name typed]
ItS:
Me trico m: METRICOM, INC., a Delaware corporation
By:
[name typed]
ItS:
Telecommunications Attachment Penn it Agreement
City ofChula Vista:: Metricom, Inc.
Page 160120
rowchulavistaZ (rwg07sc05apa978 ¿-,2tÅ- 10/14/1998
EXHmrr A--DESCRIPTION
DIAGRAM OF RADIOS
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[PROPOSED RADIO LOCATIONS]
PROPOSED LOCATIONS TO BE PROVIDED
AFTER REVIEW OF STREET LIGHT MAPS
AND PRIOR TO DEPLOYMENT
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----_...--~..__._.._-
[EXHIBIT C]
[FORM OF SURETY BOND]
Bond Number:
SURETY BOND
KNOW ALL MEN BY THESE PRESENTS:
That METRICOM, INC. as Principal, and ,
incorporated under the laws of the State of , and authorized to
execute bonds and undertakings as sole surety, are held and firmly bound unto
, as Obligee, in the sum of
($ ); for the payment thereof, well truly to be made, said Principal and
Surety bind themselves, their administrators, successors and assigns, jointly and
severally, firmly by these presents.
The condition of the foregoing obligation is such that:
WHEREAS, the above bounden Principal is about to enter into a certain agreement with
the Obligee for the following: , the
award of which said agreement was made to the Principal by the Obligee, on
NOW THEREFORE, if the Principal shall well, truly and faithfully perform its
duties, all the undertakings, covenants, terms, conditions, and provisions of said
agreement during the original term thereof, and any extensions thereof which may be
granted by the Obligee, with or without notice to the Surety, and if he shall satisfy all
claims and demands incurred under such agreement, and shall fully indenmify and
save harmless the Obligee from all costs and damages which it may suffer by reason of
failure to do so, and shall reimburse and repay the Obligee all outlay and expenses
which the Obligee may incur in making good any default, then this obligation shall be
void; otherwise to remain in full force and effect.
PROVIDED, FURTHER, that the said Surety, for value received, hereby
stipulates and agrees that no change, extension of time, alteration or addition to the
terms of the agreement or to the work to be performed thereunder or the specifications
accompanying the same shall in any way affect its obligation on this bond, and it does
hereby waive notice of any such change, extension of time, alteration or addition to the
terms of the agreement or to the work or to the specifications.
Metricom Bond Form
page C-l ofl
¿'--27
PROVIDED, HOWEVER, this bond is issued subject to the following express
conditions:
1. This bond shall be deemed continuous in form and shall remain in full force and
effect until canceled under Section , after which all liability ceases except as
to any liability incurred or accrued prior to the date of such cancellation.
2. The aggregate liability of the Surety hereunder on all claims whatsoever shall not
exceed the penal sum of this bond in any event.
3. The surety reserves the right to withdraw as surety from this bond, except as to
any liability incurred or accrued, and may do so upon giving the Obligee sixty
(60) days written notice.
SIGNED AND SEALED this day of ,19_.
PRINCIPAL SURETY
(Type Company Name)
By: By:
Title: Title:
By: Address:
Telephone:
(Affix Corporate Seals)
(Attach Acknowledgments of both Principal and Surety signatures)
Met,icom Bond Form ~
page C-2 of 2 ¿, ~;:¿
COUNCIL AGENDA STATEMENT
Item2
Meeting Date 10/20/98
ITEM TITLE: Resolution / t;2 ..2-IUthOrizing an abatement of $33,050 of the Interim
SR-125 Development Impact Fees paid for the Clubhouse at Eastlake
Country Club located at 2375 Clubhouse Drive upon the effective date of
the implementing ordinance and appropriating funds from the
unappropriated fund balance of the Interim SR-125 Development Impact
Fee Fund. ¿
SUBMITTED BY: Director of Public Works ~
REVIEWED BY: City Manager~ ~ __ (4/5ths Vote: Yes.x..No~
Staff received a written request from Mr. David B. Kuhn, Jr., President of Eastlake Country Club
Partnership, requesting a refund of a portion of the Interim SR-125 DIF fee paid for his project
located at the Eastlake Country Club on the grounds that the fee collected was based on too high
an estimate of the traffic generated due to the new facility.
RECOMMENDATION: That Council authorize an abatement of $33,050 of the Interim SR-125
Fee paid for the Clubhouse at Eastlake Country Club upon the effective date of the implementing
ordinance and appropriate $33,050 from the unappropriated balance of the Interim SR-125
Development Impact Fee Fund.
BOARDS/COMMISSIONS RECOMMENDATION: Not Applicable
DISCUSSION:
Eastlake Country Club Partnership was charged a total of $66,010 for the Interim SR-125 fee for
the clubhouse at Eastlake Country Club. While they did not agree with the figure, in order not
to delay the issuance of their building permit, Eastlake Country Club Partnership decided to pay
the fee with the understanding that the City would adjust the fee accordingly based on a
comparison between actual traffic counts prior to the construction of the new clubhouse and one
year after the facility had been in operation. This procedure was discussed in the City's letter
dated January 29, 1997, to Eastlake Country Club Partnership.
Mr. Kuhn hired Urban Systems, Inc. to provide "before and after" traffic studies (copy of report
is available in Engineering) to determine if any increase in traffic resulted from the construction
of the clubhouse. Traffic counts were conducted in April 1997 and May 1998. Staff subsequently
received a letter dated June 16, 1998, from Mr. David B. Kuhn, Jr., President of Eastlake
?~/
Page 2, Item_
Meeting Date 10/20/98
Country Club Partnership, stating that the study supports a refund of $55,596 of the $66,010 paid
for the Interim SR-125 DIF fee paid for his project. However, Mr. Kuhn requested a refund of
the entire $66,010 because he contends that the traffic for the golf course has not increased at all
due to the construction of the clubhouse. His contention is that the slight traffic increase shown
by the study is due to factors other than the construction of the clubhouse. Mr. Kuhn also
believes that his position is supported by the traffic activity comparison done by the American
Golf Corporation between the fIrst three months of 1997 and the fIrst three months of 1998. This
comparison shows that the number of golfers has decreased this year.
Upon review of the report, staff does not fully concur with Mr. Kuhn's statements. The "before"
study provided by Urban Systems was done in April 1997 during a time when the days were
shorter, before the change to daylight-savings time. They conducted the "after" study during
April and May 1998, after the change to daylight-savings time. Additionally, the "before" study
was done on a 24-hour basis, while the "after" study only included counts taken between 6:30
a.m. and 5:30 p.m. Staff believes that these facts could have a major impact on the golf traffIc
counts.
Furthermore, although the American Golf Corporation comparison shows that the number of
golfers has decreased this year, staff believes that this information is not representative of the full
activity resulting from the clubhouse. Because this past winter has seen more extensive rains than
in years past due to "EI Nino", staff believes these bad weather conditions are the most logical
explanation for the decrease in golfers this year, since golf is an outdoor sport. If the study had
been done in a more representative year, staff believes it would have shown an increase in traffIc
due to the construction of the clubhouse.
Conclusion
Staff does not believe that the traffIc information provided by the Urban Systems study justifIes
a refund of $55,596 to $66,010 requested by Eastlake Country Club Partnership. Therefore, staff
has suggested that if Mr. Kuhn wants a refund of this amount that a restudy of the traffIc during
a more comparable time of year be conducted. Such a study will be completed during the fall or
next spring when the number of hours of daylight is comparable. The "before" study in the report
submitted was done in April 1997 , which was shortly before the change to daylight-savings time
went into effect. Staff has also requested a longer traffic count covering all fIve weekdays. In
order to be consistent with the original study, 24-hour counts will be performed.
Despite some problems with the Urban Systems study, it still appears that the traffIc increase is,
in fact, signifIcantly lower than estimated when the fee was originally paid and that a refund is
due to Eastlake Country Club Partnership on a portion of the Interim SR-125 DIF fee. Under the
condition that an ensuing study will be conducted and fInanced by the developer in accordance
with City requirements, based on the study prepared by the developer, staff is confident that the
City should rebate $33,050. Based on the results of the subsequent study, an additional refund
7-2
Page 3, Item_
Meeting Date 10/20/98
up to a total of $66,010 will be recommended if the traffic increase is lower provided, however,
Applicant understands that should such subsequent traffic study indicate that more traffic was
generated by the project than indicated by the Urban Systems Study, Applicant shall return the
comparable amount of the fee, not to exceed $33,050, to the City.
In order to refund the over collection the Interim SR-125 DIF ordinance needed to be amended.
The City Council held the public hearing and introduced the ordinance amending the Interim SR-
125 DIF ordinance on October 6, 1998. Under a companion item on tonight's agenda, the City
Council was requested to hold the second reading and adoption of that ordinance. That ordinance
will become effective in sixty (60) days and the actual payment can be made at that time.
FISCAL IMPACT:
There is a minima1 fiscal impact of $33,05010 the City's Interim SR-125 Development Impact Fee
Fund because of the refund of a portion of the Interim SR-125 fee paid will be refunded from that
fund. Since these fees were paid during the 1996/97 Fiscal Year, this refund needs to be
appropriated from the unappropriated balance of the Fund.
Exhibits:
A. Letter to Mr. Kuhn dated June 25, 1998
B. Letter from Mr. Kuhn dated June 16, 1998
C. Letter from Mr. Kuhn dated March 10, 1997
D. Letter to Mr. Kuhn dated January 29, 1997 fk1- S Q Q IÙttJe.d.
E. Ordinance No. 2579 (Establishment of the Interim SR-125 DIF)
File No. HX-013
H:\HOME\ENGINEERIAGENDA\CLBHSE.BOB
7~3
RESOLUTION NO. ) 9 c2;13
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA AUTHORIZING AN ABATEMENT OF
$33,050 OF THE INTERIM SR-125 DEVELOPMENT
IMPACT FEES PAID FOR THE CLUBHOUSE AT EASTLAKE
COUNTRY CLUB LOCATED AT 2375 CLUBHOUSE DRIVE
UPON THE EFFECTIVE DATE OF THE IMPLEMENTING
ORDINANCE AND APPROPRIATING FUNDS FROM THE
UNAPPROPRIATED FUND BALANCE OF THE INTERIM SR-
125 DEVELOPMENT IMPACT FEE FUND
WHEREAS, staff received a written request at the time of
building permit issuance from Mr. David B. Kuhn, Jr., President of
Eastlake Country Club Partnership, requesting a refund of a portion
of the Interim SR-125 DIF fee paid for his project located at the
Eastlake Country club on the grounds that the fee collected was
based on too high an estimate of the traffic generated due to the
new facility; and
WHEREAS, Eastlake Country Club Partnership was charged a
total of $66,010 for the Interim SR-125 fee for the clubhouse at
Eastlake Country Club and while they did not agree with the figure,
in order not to delay the issuance of their building permit,
Eastlake Country Club Partnership decided to pay the fee with the
understanding that the City would adjust the fee accordingly based
on a comparison between actual traffic counts prior to the
construction of the new clubhouse and one year after the facility
had been in operation; and
WHEREAS, Mr. Kuhn hired Urban Systems, Inc. to provide
"before and after" traffic studies to determine if any increase in
traffic resulted from the construction of the clubhouse and traffic
counts were conducted in April 1997 and May 1998; and
WHEREAS, staff subsequently received a letter dated June
16, 1998, from Mr. David B. Kuhn, Jr., President of Eastlake
Country Club partnership, stating that the study supports a refund
of $55,596 of the $66,010 paid for the Interim SR-125 DIF fee paid
for his proj ect, however, Mr. Kuhn requested a refund of the
entire $66,010 because he contends that the traffic for the golf
course has not increased at all due to the construction of the
clubhouse and that the slight traffic increase shown by the study
is due to factors other than the construction of the clubhouse; and
WHEREAS, Mr. Kuhn also believes that his position is
supported by the traffic activity comparison done by the American
Golf Corporation between the first three months of 1997 and the
first three months of 1998 which shows that the number of golfers
has decreased this year; and
1
7-1
WHEREAS, upon review of the Urban System's Report, staff
does not fully concur with Mr. Kuhn's statements and believes the
following:
(a) The "before" study provided by Urban Systems was
done in April , 1997 during a time when the days
were shorter, before the change to daylight-savings
time.
(b) The "before" study was done on a 24-hour basis
while the "after" study only included counts taken
between 6:30 a.m. and 5:30 p.m.
WHEREAS, staff believes these factors could have a major
impact on the golf traffic counts and although the American Golf
Corporation comparison shows that the number of golfers has
decreased this year, staff believes that this information is not
representative of the full activity resulting from the clubhouse;
and
WHEREAS, staff believes bad weather conditions are the
most logical explanation for the decrease in golfers this year,
since golf is an outdoor sport and the study had been done in a
more representative year, it would show an increase in traffic; and
WHEREAS, the Urban Systems study indicated that the
traffic increase is, in fact, lower than estimated when the fee was
originally paid and that a refund is due to Eastlake Country Club
Partnership on a portion of the Interim SR-125 DIF fee; and
WHEREAS, based on the information provided in the Urban
Systems study, staff does not believe that the traffic counted
justifies a refund of $55,996 to $66,000 and has suggested that Mr.
Kuhn do a restudy of the traffic during a more comparable time of
year and such a study will be completed during the fall or next
spring when the number of hours of daylight is comparable if Mr.
Kuhn wants a further refund; and
WHEREAS, based on the results of the subsequent study, an
additional refund up to a total of $66,010 will be recommended if
the traffic increase is lower.
NOW, THEREFORE, BE IT RESOLVED the City Council of the
city of Chula Vista does hereby approve the attached agreement, and
authorize, based on the data provided by the Urban Systems study,
an abatement of $33,050 from the Interim SR-125 Development Impact
Fee for the Clubhouse at Eastlake Country Club located at 2375
Clubhouse contingent upon the following:
a. Eastlake Country Club Partnership, who has
requested said refund, sign and return to the city
the attached Agreement.
2
7~S'
-"-----_....._-""---
b. Ordinance No. 2579 authorizing said refund, be
adopted by the city Council.
c. Payment for said refund be due and payable upon 60
days after the adoption of Ordinance No. 2579.
BE IT FURTHER RESOLVED that the Mayor is hereby
authorized to execute said Agreement for and on behalf of the City
of Chula Vista.
BE IT FURTHER RESOLVED that if Eastlake Country Club
Partnership would like an additional refund of up to a total of
$66,010, that the city Council would consider such request after
the results of a subsequent study is conducted during a more
comparable time of year, provided, however, Applicant understands
that should such subsequent traffic study indicate that more
traffic was generated by the project than indicated by the Urban
Systems Study, Applicant shall return the comparable amount of the
fee, not to exceed $33,050, to the City.
BE IT FURTHER RESOLVED that the amount of $33,050 is
hereby appropriated from the unappropriated balance of the Interim
SR125 Development Impact Fee Fund.
Presented by Approved as to form by
~ 'lVtf1tN kr~
John P. Lippitt, Director of John M. Kaheny, City Attorney
Public Works
H:\home\lorraine\rs\clubhse
(3098-/9'
3
?~~
AGREEMENT BY AND BETWEEN
THE CITY OF_CHULA VISTA
AND
EASTLAKE COUNTRY CLUB PARTNERSHIP
EastLake Country Club Partnership ("Applicant") shall execute
this document by signing the lines provided below, said execution
indicating that the Applicant has read, understood and agreed to
the conditions contained in Resolution No. , and will
implement same to the satisfaction of the City. The payment of the
refund requested by the Applicant from the Interim SR-l25
Development Impact Fee shall be contingent upon the adoption of the
City Council of Ordinance No. 2579 that establishes the refund
procedure for the Interim SR-l25 Development Impact Fee. Payment
shall be due to Applicant 60 days after the effective date of the
Ordinance. Applicant further understands and agrees that any
additional refund of up to $66,010.00 shall be contingent upon the
City's acceptance of a subsequent traffic study during a more
comparable time of year, that indicates that a further refund is
due to Applicant; provided however, Applicant understands that
should such subsequent traffic study indicate that more traffic was
generated by the project than indicated by the Urban Systems Study,
Applicant shall return the comparable amount of the feel, not to
exceed $33,050, to the City.
Applicant agrees on behalf of all its agents, and assignees of
said entity, to hold harmless the City, its elected and appointed
officers and employees, from and against any claims, suits, actions
or proceedings, judicial or administrative, damages, liability cost
and expense, by or against Applicant arising out of or relating to
the Interim SR-l25 Development Impact Fee and the refund of said
fee requested by Applicant.
1
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---- ---,---~_.-
10-14-1998 5,39PM FROM 949 760 0165 P_2
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SIGNATURE PAGE TO
AGREEMEN1' BY AN!) BETWEEN
THE CITY OF CIWLA VISTA
I AND
¡ EASTLAKE COUNTRY CLUB PARTNERSHIP
DATED; CITY OF CHULA VISTA
shirley Horton
: Mayor
Attest,
I
I!
¡ Beverly Authel~t
I
city Clerk
Approve~ as to form:
! .linn Moore
Sr. Assistant City Attorney
DATED: EAST1J>JΠCOUN'!RY CLUB PARTNERSHIP
By: LBK, Inc.
Its General Partner
I By:
I
I
I
Attachmen : Ile ;olution No.
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LIlY OF EXHIBIT
CHULA VISTA OFF¡C= OF TrlE CITY MANAG='1
June 25, ] 998
Mr. David B. Kuhn, Jr.
Lane/Kuhn Pacific
14 Corporate Plaza
Newport Beach, CA 92660
Subject: Clubhouse at EastLake Country Club
Dear Mr. Kuhn:
Thank you for your letter of June 16,1998 regardmg the Interim SR-125 Development Impact Fee whICh
we have been discussing. The "Before and After" study was reviewed by our Traffic Engineering Section
and have some remaining questions based on that study and your letter. As I have previously indicated
to you we wish to be fair, equituble and as fZexible as possible under existing law and consistent with city
policy.
Based on the figures given in your "before and after" study, we concur that a refund is due you ¡or a
portion of the fees. However, we do not agree with your statement that all of the traffic increase has been
due to factors other than the construction of the club house. In fact, after a review of the report and .Your
letter, we believe that the counts may not be totally accurate as you have stated.
First, you indicate that the study was done at a different time of year after the change to daylight savmgs
t,me and when days are longer. We do concur that this could have an impact on golf traffic.
Second, you note that the report cites a large weddmg re,:eptlOn at the EastLake Swim and Tennis Club
which you feel accounts for the large increase. While we do not have specìfic information about that
event, we assume that the wedding took place on the weekend. The fee calculation is based on the
weekday count. Furthermore, as indicated in the transmittal letter from Urban Systems to Ralph Levva,
the "After" count was based on a manual count which segregated traffic with destinations of golf versus
non-golf, i.e, swim club related tr,ps. As such, the trafflc far the wedding reception at the Swim Club
would not have been included in the study.
Third, while you have indicated that the traffIC activlty companson performed by Amencan Golf
Corporation for the first three months of 1997 and 1998 show that the number of golfers is down thzs
year, we do not believe this information is representative as to the full activity resulting from the
construction of the club house. As you are well aware, thzs partICular winter has seen much more
extensive rains than in years past due to the "El Niño ", particularly during the first five months 0/ this
year. Smce golf is an out door sport, we believe that the most log,cal explanation for the decrease /8 the
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276 ~O'....I;::¡Ti-< AVE"J'.JE:"''':'''',--'Lt.. \':S~~ CA~'t::)RN;¡\ ~':<;O iê~91 691·503"
..~..~'"~.--
Mr. David B. Kuhn, Jr. -2- June 23, 1998
weather and a lack of playable days. If the study were taken in a more representative year we believe that
you would find more of an increase in traffic as a result of construction of the club house.
As I stated above, it does appear to us that a refund is due you on a portion of the Interim SR-125 DIF
fees. However, based on the information itemized above, we are not ready to concur that the traffl.c as
counted accurately portrays the increase, Particularly affecting this ,s the inclement weather due ¡n the
El }h,"io which very well had a major impact on the number of potential users. In addÜion, a," .VOIl
zndzcated, the time of year relatwe to daylight savzngs may also have made a difference in the COlmt,
Therefore, I believe that the best solution to the problems you mentIOn in your letter is a restudy du "ing
a more comparable time of year which, taking into account all the factors, we believe will show a h'gher
increase. Such a study could be completed possibly during the fall or next spring when the number of
hours of daylight are comparable. It should be noted that the before study was done in April, 1997, only
a short period before daylight savings is implemented and the amount of daylight is somewhat lo'¡ger
than a period in the fall after daylight savmgs ends. Any restudy should take that into account. Also.
we do prefer a longer count covering the all five weekdays, 'f possible.
In an attempt to be fair I do believe that 50% of the previously paid Interim SR-125 DIF fees should be
refunded and will recommend to the City Council an immediate refund of $33,050. We will take an item
to the City Council as soon as possible for approval that refund. If the subsequent study indicates that
our refund was too large, I would expect that you would forward a check for the necessary amount.
Likewise, if the subsequent study indicates that a further refund is due, we will process it as soon as
possible.
With respect to the benefits of prolonging the commitment of extending EastLake Country Club to public
pay, we would be more than willing to meet with you to discuss the mutual benefits of such a proposal.
SinceT;ely,
~/ . .'
~~J~1Z-
. George rem
Deputy City Manager
c; Joh" Lippitt
CliffSwørmm
H:ISHAREDIADMINIKUHN-GK,CLS
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CITY OF CHULA VISTA )0
. EXHIBIT f3
, ~'" ... "',,«.....~
LANE/KUHN PACIFIC
Corporate Office
14 Corporate Plaza
Newport Beach, California 92660
714/640-5251
Fax 714/760-0165
June 16, 1998
Mr. George Krempl
City Manager
CITY OF CHULA VISTA
276 Fourth Avenue
Chula Vista, California 92010
Re: Refund oflnterim SR #125 Fees
Dear George:
Last year, when we protested the magnitude of the fees being charged to build the permanent
clubhouse at EastLake Country Club, you suggested that with respect to the Interim SR #125
Fees, we should perform a "before and after" study to determine if the permanent clubhouse
actually resulted in any increase in traffic. We agreed with your proposal and have had the
"before and after" studies performed by Urban Systems Associates and reviewed by Ralph
Leyva, City Traffic Engineer. The report is enclosed for your review.
The Interim SR#125 Fee paid at the time of permit was $66,010. This amount would correspond
to a facility that was expected to increase traffic by 805ADT. As the report indicates, the total
traffic for the golf course and the Swim and Tennis Club increased by 127 ADT. This represents
approximately 15.78% of the increase that the City anticipated. Those figures would support a
refund of $55,596 as shown in the report.
We do not believe the traffic for the golf course has been increased at all with the construction of
the permanent clubhouse and on that basis believe we are entitled to a full refund of the Interim
SR#125 Fees that were charged. This position is supported by the Traffic Activity Comparison
performed by American Golf Corporation between the first three months of 1997 and the first
three months of 1998, the results of which are also included in the study as Attachment 5. We
believe the measured increase of 127 ADT can be attributed to three factors. First, the "after"
study was done later in the year, after the change to daylight savings time and when the days are
longer. Second, there was a large wedding at the EastLake Swim and Tennis Club which is
noted in the report and which we feel accounts for a significant amount of the increase. Third,
the "before" study did not count the maintenance vehicles which now regularly use the west
entry. These vehicles were not counted in the original study since it measured only the traffic at
the eastern and the center driveway entrances (center entrance in the "before" report is referred to
as the "West Access"). When these factors are taken into account, we believe it is more accurate
to rely on the Traffic Activity Comparison prepared by American Golf Corporation which was
5 7---/1
Regional Offices . San Diego . San Francisco I
________n_____
Mr. George Krempl
June 16, 1998
Page Two
done over a period of three months and which indicated, if anything, a decrease in traffic. Based
on those factors, we hereby request the refund of the full $66,010.
With respect to the balance of the fees paid ($48,708.98), we would still like to discuss a refund
of those fees conditioned upon our willingness to extend the commitment of EastLake Country
Club to public play. The current commitment expires in the year 2001. We believe a fair
proposal would be a refund of 10% of those additional fees for each year we are willing to
commit to keeping the facility open to the public.
Please let me know what the process will be in order to receive the immediate refund of $66,010
and what would be the most productive way to continue discussions regarding the benefits to the
public from an increased commitment to public use on our part.
'J zijl ,
David B. Kuhn, Jr.
cc: Cliff Swanson
Ralph Leyva
f 7~ / .2
Mar 24 88 OS:25a Urban S~5tems Rssoc~ Inc.
, ,
3-i2-1997 6:22PM FROM ïl~ ï50 0165
EXHIBIT_,Ç ~,
.
LANE/KUHN PACIFIC
Corpðr3~ OH;c.:
1.( Corpor:ue Plaza
Newpon BeAd'!, (:I.IIfOM\'1I 92(i1'iO
71416-010·5251
Fall 7'1<11760-0165
March 10, 1997
Mr. George Krempl
Deputy City Manager
CITY OF CHULA VISTA
276 Fourth A~enue.
Chula Vista. California 91910
Re: Clubhouse at EastLake Country Club
Dear George:
I .pp",i.t, yo" lott" of J.""y 29, "'7 0' th', '''j,e<, F"th'",!!" I
appreciate your suggestions of how we might work together in order to assur that
the fees and assessments with respect to the permanent clubhouse at Ee tlake
Country Club' are -fair and equitable. I was sorry to learn that the e is
apparently nO' mechanism which will allow the deferment of any payment o~ fees
until Certificate' of Occupancy. The fees as proposed represent a major cost
overrun and significant cash flow burden for the project. Since the e is
apparently no alternative. however. we are paying total fees and asses~ents
today in the· amount of $114.718.98 in order to be able to draw our Building
Permits and avoid· further delay to the project. We consider this an ab lute
worst case scenario and look forward to working with you in an attempt t have
a significant amount of those fees refunded.
Although it wi 11 represent yet another cost overrun to the project. we
initiate a traffic study, as you suggested. in order to provide the info
necessary to reduce both the traffic signal fee and the State Route #125 fee_
0" oo",lt.,t will bo ,o",ot'" the """"'" ",.""" " the "" f"""'
in order to agree upon a scope of work and methodology for the study.
Secondarily. while we would very much like to see the acreage fees based 0 the
building footprint (which would be only .17 acres) or the building pad area
(which would be only .693 acres), we understand that the portion of the 1 7.24
acres being utilized for the clubhouse must be included. In our opinion. that
acreage is 2.333 acres, Utilizing that acreage. which is larger than we ould
like, will result in a refund of over $30,000.
Finally. we would like to spend the next few months with staff. and perhaps City
Council, discussing and identifying the benefits that would accrue to the City
from continuing public use of the course as opposed to its sooner privatiza ion.
Please let us know how best to proceed with that effort.
S.n Ci..o ß 7- )J
R-øionôll Offic~!o . . Sa n Pr..hclsco
Urban S~stems Assoc. Inc. [6191560-9734 F·6
Mar 24 98 09:25a
. P_ .3
3-12-1997 6:23PM FROM 714 760 0165
,
Mr. George Krempl
March 10. 1997
Page Two
I look forward to continuing to work with you on this matter. I am co~fident
that through the means outlined above. and Rerhaps through additional a~eas we
will uncover, we can substantially relieve t e fee and assessment burden Øn this
project.
incerely.
ce: John Lippitt. Public Works Director
Cliff Swanson, City Engineer
Bruce Sloan. EastLake Development Company
j/ '7~/Jj
Mar 24 98 09:24a Urban S~stems Rssoc. Inc.
. .
3-12-1997 5,24PM FROM 714 760 0155
ì EXHIBIT -12_M"
~\f?
~..~
.~~
~ ~~~.~
CI1Y OF
CHULA VlsrA
OFFICE OF THE CITY MANAGER
January 29, :1.997
Mr. David B. Kuhn, Jr.
Lane/Kuhn Pacific
14 corporate P:l.aza
Newport Beach, California 92660
Subject: ·Clubhouse at EastLake Country Club
Pear Mr. Kuhn:
.~
Thank you for your January :1.7, 1997 letter, which we rece~ve on
January 23, 1997, and the ongoing questions regarding the Co try
Clu~ fees. We appreciate your suggestions and we too want I be
fair, equitable and as rlexible as possible under existing La and
consistent with city policy_
As mentioned verbally in our previous telephone conversation , we
are open to having additional discussion on the ~tec:hn . cal··
components which make up the fee calculations including the ac -g.
and trip generation rates. A couple of comments rrom ~9ine ring
are as fo:l.lows: the acreage calculation. must be based on th lot
area and not the building pad or development site, and the tr ffic
generation rates are the general ones u$ed by the San iego
Association of Governments for 901f courses and related uses. _ A
couple of alternatives would be for you to do a traffic study o be
more specific to your proposed use and circumstances or to pä the - - .
fee now and the fee would be adjusted acco;dingly up or down as~d
upon actual traffic counts e ear arter the facilit has he n ~n
operation.
we are also willing to ~isçuss the SR#125 fee with you but
footnote that the SR/125 fee, like the overall transport
development fee program, was developed as a total system se
all the uses in the area. We, for example had objections a the
time the fee was instituted from several developers whose projects
were located close to 1-80.5 that felt they should Tlot he sUbje t to
the fee, as well as from individual businesses contending the had
no impact on the facility need or use. one possible scenar~o to
assist with the SR#125 fee calculation could be as follows: ~ for
you to agree to do a traffic stUdy (i_e., actual traffic c unts
before and after) at this time to measure the traffic generat d by
the temporary clubhouse. Then, once the permanent CIUbhOUS~ has
oeen constructed and is in operation for some agreed to period of
time, to conduct a subsequent traffic study. The SR#125 fee dould
be based upon the dirference in traf:Cic generated between the
~ 7-/~
276 ~OURTH AVENUE' CHULA VI5TA' CALIFO NIA 91910' (619) 691-5031 . FAX (S19) 58S-5S12
,(:Q. - -_..~.._..~...
.-- -"- _...~_._- ----~--_._.
Mar: ·24 98 09:24a Urban S~stems Assoc. Inc. 16191560-9734 p.4
3-12-1997 6,24P~ FROM 714 750 0155 P.::;
., \
-
teIr.porary and permanent use. In the interim, it ....ould be necessary
to pay the fee pending the final resolution of the traffic stJdies
or to enter into some binding agreement with the city ¡with
appropriate security to guarantee the fee_ !
In addition, we remain willing to discuss and identifytthe
benefits that would accrue from continued public use of the curse
as opposed to its sooner privatization. As you may recall, one
possibility I mentioned was to look at a phased payment schedu}e of
some kind in exchange for some additional public benefits. Gther
scenarios could certainly be considered.
The last suggestion in your letter was to only pay plan check fees
at this time and dafer the payment of the impact fees unti the
Certificate of Occupanoy is approvad or withhold the Certifica e of
Occupancy for the Clubhouse until thE; fee issue is reso ved.
\.Jnfo~turiate::'y, that is not an option we could cons der.
withholding a Certificate of Occupancy in any circumstances ould
be controversial and difficult once a building has been
constructed, even putting aside the is~ue of whether or not staff
could support the idea. Our counter suggestion would be tor ytu to
pay the fees at the time of building permit issuance and ¡if a
.ubs.....' '.r~.n' ~'uce. the <ee. 'hen we w=ld Pr~]e .
rebate. A further suggestion would be for you to apply to the city
Council for a fee waiver before the issuance of the bui ding
permit. Staff would evaluate the request and prepare a repo t to
Council for one of their regular Tuesday City Council meetin1s,
Let me or Mr. Swanson know if you want to discuss the item fu ther
and how you might like to prooeed.
Sincerely,
~r:~
George Krempl
Deputy City Manager
GK:mab
cc:John Lippitt, Publio works Director
Cliff Swanson, City Engineeer
Bruce Sloan, EastLake Development Company
% 7-1//1'23
EXHIBIT ~"_'""""
~- ORDINANCE NO. 2579
AN ORDINANCE OF THE CITY OF CHULA VISTA, CALIFORNIA,
ESTABLISHING AN INTERIM PRE-SR125 DEVELOPMENT IMPACT FEE
TO PAY FOR TRANSPORTATION FACILITIES IN THE CITY'S
EASTERN TERRITORIES
WHEREAS, the City's General Plan Land Use and Circulation Elements require
that adequate, safe transportation facilities be available to accommodate the
increased traffic created by new development; and,
WHEREAS, the City Council has detennined that potential delays in the
construction of State Route (SR) 125 by CALTRANS or others will adversely impact
the City's ability to accommodate said increased traffic; and,
WHEREAS, the City Council has detennined that new development within the
Eastern Territories will create adverse impacts on the City's transportation
system which must be mitigated by the financing and construction of certain
transportation facilities identified in this Ordinance: and,
WHEREAS, the Ci ty Counci 1 has detenni ned that a reasonab 1 e means of
financing the transportation facilities is to levy a fee on all development in
the Eastern Territories of the City: and,
~, WHEREAS, the fee has been justified by the financial and engineering study
enti tled "Interim State Route 125 Facil i ty Feasi bil i ty Study" dated May 1993, and
prepared by Howard Needles Tammen & Bergendoff.
WHEREAS, the financial and engineering study and the City's General Plan
show that the transportation network will be adversely impacted by new
development within the Eastern Territories unless ,new transportation facilities
are added to accommodate the new development: and,
WHEREAS, the financial and engineering study and the City's General Plan
establish that the transportation facilities necessitated by development in the
Eastern Territories comprises an integrated network: and,
WHEREAS, developers of land within the Eastern Territories should be
required to mitigate the burden created by development through the construction
of transportati on faci liti es withi n the boundari es of the development, the
construction of those transportation facilities outside the boundaries of the
development which are needed to provide service to the development in accordance
with City standards, and the payment of a fee to fi nance the development's
portion of the total cost of the transportation network: and,
WHEREAS, all development within the Eastern Territories contribute to the
cumulative burden on the transportation network in direct relationship to the
amount of traffic originated by or destined for the development: and,
---"
?r 7-/7
--.. - "M."_·'_·_'··
Ordinance No. 2579
. Page 2
WHEREAS, the amount of traffic generated has been determined based upon
average daily tri ps for vari ous 1 and areas based upon studi es conducted by SANDAG
(colIIßercial trips being modified to eliminate passerby trips) and verified by the
financial and engineering study prepared for the purposes of this fee; and,
WHEREAS, the SANDAG traffic generation determinations have been used by
numerous public agencies in San Diego County for various purposes, including the
preparation of General Plan Circulation Elements, the justification of traffic
impact fees, and transportation planning, and have been determined to be a
reliable and accepted means of allocating the burden on a transportation network
to development to be serviced by the network; and,
WHEREAS, on July 27, 1993, the City Council held a duly noticed meeting at
which oral or written presentations could be made; and,
WHEREAS, the City Council determined based upon the evidence presented at
the meeting, the City's General Plan and the various reports and other
information received by the City Council in the course of its business that
imposition of the Interim pre-SR-125 impact fee on all development in the Eastern
Territories for which building permits have not yet been issued is necessary in
order to protect the public safety and welfare and in order to ensure effective
implementation of the City's General Plan; and,
WHEREAS, the City Council has determined that the amount of the fee levied
_... \\.' this Ordinance does not exceed the estimated cost of providing the
_ransportation facilities.
NDW, TAEREFORE, the City Council of the City of Chula Vista does ordain as
follows:
SECTION I: Establishment of Fee.
(a) An interim pre-SR-125 development impact fee in the amounts
set forth in subsection (d) is hereby established to pay for
transportation improvements and facilities within the Eastern
Territories of the City. The fee shall be paid before the
issuance of buil di ng permi ts for each development project
within the Eastern Territories of the City. The fees shall be
expended only for the purposes set forth in this ordinance.
The Director of Finance is authorized to establish various
accounts within the fund for the various improvements and
facilities identified in this ordinance and to periodically
make expenditures from the fund for the purposes set forth
herein in accordance with the facilities phasing plan or
capital. improvement plan adopted by the City Council. The
City Council finds that collection of the fees established by
this ordinance at the time of the building permit is necessary
to ensure that funds will be available for the construction of
facilities concurrent with the need for those facilities and
to ensure certainty in the capital facilities budgeting for
the Eastern Territories.
ft 7~J'r
Ordinance No. 2579
Page 3
~
(b) Said fee shall be in effect commencing January I, 1995.
(c) The fee established by this section is in addition to the
requirements imposed by other City laws, policies or
regulations relating to the construction or the financing of
the construction of public improvements within subdivisions or
developments.
(d) The fee for each development shall be calculated at the time
of buil di ng permit application based upon the fo 11 owi ng
schedule:
Development Tvpe Transportation Fee
Si ngl e Family
Detached Dwelling $820/Dwelling Unit
Single Family
Attached Dwelling $656/Dwelling Unit
Multi-Family
Dwelling $492/Dwelling Unit
Commerci a 1 $20,500/Gross Acre
Industrial $16,400/Gross Acre
The City Council shall annually review the amount of the fee.
The City Council may adjust the amount of the fee as necessary
~ to reflect changes in the Engineering-News Record Construction
Index, the type, size, location or cost of the Transportation
Facilities to be financed by the fee, changes in land use
designations in the City's General Plan, and upon other sound
engineering, financing and planning information. Adjustments
to the above fee may be made by resolution amending the Master
Fee Schedule.
(e) The fees collected shall be used by the City for the following
purposes as determined by the City Council:
1. To pay for the construction of facilities by the City,
or to reimburse the City for facilities installed by the
City with funds from other sources.
2. To reimburse developers who have been required by
Section 4(a) of this ordinance to install improvements
that are street facilities and are listed in Section 3.
3. To reimburse developers who have been permitted to
install improvements pursuant to Section 4(b) of this
ordinance.
4. To admi ni ster and update the fee program including
retaining consultants to perform engi neeri ng of
financing studies.
--
% 7-/9
"--.-
Ordinance No. 2579
Page 4
~-.,
SECTION 2: Definitions.
For the purposes of this ordinance, the following words or phrases
sha 11 be construed as defined in this Section, unless from "the
context it appears that a different meaning is intended.
(a) "Building Permit" means a permit required by and issued
pursuant to the Uniform Building Code as adopted by reference
by thi s City.
(b) "Developer" means the owner or developer of a development.
(c) "Development Permit" means any di scret i ona ry permit,
entitlement or approval for a development project issued under
any zoning or subdivision ordinance of the City.
(d) "Development Project" or "Development" means any acti vity
described in Section 65927 and 65928 of the State Government
Code.
(e) "Eastern Territories" means that area of the City located
between Interstate 805 on the west, the City sphere of
influence boundary on the east, Bonita Road on the north, and
~ the alignment of the proposed extension of East Orange Avenue
on the south, as shown on the Chula Vista General Plan. The J
property known as Bonita Gateway located at the northeast
quadrant of Bonita Road and I-80S intersection is also
included. For the purposes of this fee, Eastern Territories
shall be further restricted to exclude the following projects:
East 1 ake Tra i1 s
Eastlake Vistas
Eastlake Woods
Eastlake Business Park II
Bonita Meadows
Phases of Salt Creek Ranch exceeding 1043
Equivalent Dwelling Units
Phases of San Miguel Ranch exceeding 1350
Equivalent Dwelling Units
(f) "Financial and engineering study": means the "Interim State
Route 125 Facility Feasibility Study" dated May, 1993, and on
file in the Office of the City Clerk.
SECTION 3: TransDortation Facilities to be Financed bv the Fee.
(a) The transportation facilities to be financed by the fee
established by this ordinance are:
p 7~;¿¿;)
Ordinance No. 2579
Page 5
Segment Sweetwater Road (Bonita Road to SR-125)
1
Segment Bonita Road (Sweetwater Road To San Miguel Road)
2
Segment San Miguel Road (Bonita Road to Proctor Valley Road)
3
Segment Proctor Valley Road (San Miguel Road to SR-125 corridor)
4
Segment SR-125 Corridor (The SR-125 corridor is the right-of-way reserved through
5 Eastlake and Salt Creek I)
(b) The City Council may modify or amend the list of projects in
order to maintain compliance with the Circulation Element of
the City's General Plan.
SECTION 4: Developer Construction of Transportation Facilities.
(a) Whenever a developer of a development project would be
required by application of City law or policy, as a condition
of approval of a development permit to construct or finance
the construction of a portion of a transportation facility
identified in Section 3 of this ordinance, the City Council
may impose an additional requi rement that the development
install the improvements with supplemental size, 1 ength or
capacity in order to ensure efficient and timely construction
of the transportation facilities network. If such a
requirement is imposed, the City Council shall, in its
discretion, enter into a reimbursement agreement with the
developer, or give a credit against the fee otherwise levied
by this ordinance on the development project.
(b) A developer may request authorization from the City Council to
construct one or more of the facilities listed in Section 3.
The request shall be made in writing to the City Council and
shall contain the following informational conditions:
1- Detailed description of the project with a preliminary
cost estimate.
2. Requirements of developer:
- preparati on of plans and specifications for
approval by the City;
- secure and dedicate any right-of-way required for
the project;
- secure all requi red permits, environmental
p 7-cJ, l
". "-~._..- .____, __ _n _ ___.'...._'.'.. _______u__..___ __._.~_.. ___ ____.___...._.__ '-"""'0'-' __~.
Ordinance No. 2579
- Page 6
clearances necessary for construction of the
project;
- provision of performance bonds;
- payment of all City fees and costs.
3. The City will not be responsible for any of the costs of
constructing the project. The developer shall advance
all necessary funds to construct the project.
SECTION 5: This ordinance shall take effect and be in full force on the
thirtieth day from and after its adoption.
Presented by Approved as to f~ by
;1- ~ ~ I /J
- . !
Jo Bruce M. Boogaard I
Di Works City Attorney
I
,
, I
"
Ff )~;2-Å
__._~_...._ . -,-,,-,-+,,','.'0 n.___n_...._______..._.._..u
Ordinance No. 2579
Page 7
-
~ PASSED, APPROVED and ADOPTED by the City Council of the City of Chula
Vista, California, this 4th day of January, 1994, by the followin9 vote:
AYES: Counci 1 members: Fox, Horton, Moore, Rindone, Nader
NOES: Counci 1 members : None
ABSENT: Councilmembers: None
ABSTAIN: Councilmembers: None
£~/~
Tim Nader, Mayor
ATTEST:
.~
.---\
,.
-
STATE OF CALIFORNIA )
COUNTY OF SAN DIEGO ) ss.
CITY OF CHULA VISTA )
I, Beverly A. Authelet, City Clerk of the City of Chula Vista, California, do
hereby certify that the fore90ing Ordinance No. 2579 had its first reading on
December 7, 1993, and its second reading and adoption at a regular meeting of
said City Council held on the 4th day of January, 1994.
Executed this 4th day of January, 1994.
() azxfJil
Authelet, City Clerk
[.
.~
)if /r ;¿J
. _______.._..._.._._m_,.n .--..--.'.- -- .-.. ._.~-----_.._------_.----
COUNCIL AGENDA STATEMENT
Item 1
Meeting Date 10/20/98
ITEM TITLE: A. Resolution /9:2 .;2 '/ of the City Council of the City ofChula
Vista, California making appointments in proposed Community
Facilities District No. 97-3 (Otay Ranch McMillin SPA One)
B. Resolution /9d-.d..Ç of the City Council of the City of Chula
Vista, California adopting a boundary map showing the boundaries of
the territory proposed for the inclusion in proposed Community
Facilities District No. 97-3 (Otay Ranch McMillin SPA One)
C. Resolution /9;).:(? of the City Council of the City ofChula
Vista, California declaring its intention to establish Community Facilities
District No. 97-3 (Otay Ranch McMillin SPA One) and to authorize the
levy of a special tax therein to finance the acquisition of certain facilities
D. Resolution / 9d.-d.. 7 of the City Council of the City ofChula
Vista, California ordering and directing the preparation of a report for
proposed Community Facilities District No. 97-3 (Otay Ranch McMillin
SPA One)
E. Resolution ) ~.2:2. ~he City Council of the City of Chula Vista,
California, declaring intention to issue bonds secured by special taxes to
pay for the acquisition of certain facilities in Community Facilities
District No. 97-3 (Otay Ranch McMillin SPA One)
SUBMITTED BY: Director of Public Works ~
RETIEWED BY, Ci<y ",~g,'I1z- :.0 ~ (4I5th. V,,,, V ~_N'J<J
McMillin Otay Ranch has requested the City t initiate proceedings to form a Community Facilities
District No. 97-3 for the acquisition or construction of public facilities associated with the McMillin Otay
Ranch. Tonight's action will provide the proposed rate and method of apportionment for the district,
establish a boundary map, describe the authorized improvements, direct the special tax consultant to
prepare the Special Tax Report and set the public hearing for the district for November 24, 1998.
RECOMMENDATION: That Council
1) Approve the resolution making appointments of the City Council as the
legislative body for CFD No. 97-3,
2) Approve the resolution adopting the boundary map for CFD No. 97-3,
3) Approve the resolution declaring the intention to establish CFD No. 97-3 and to
levy a special tax to finance certain facilities,
4) Approve the resolution ordering and directing the preparation of the "Report" for
CFD No. 97-3.
5) Approve the resolution declaring intention of issuing bonds for financing the
acquisition offacilities in CFD No. 97-3.
g>¡
Page 2, Item_
Meeting Date 10/20/98
BOARDS/COMMISSIONS RECOMMENDATION: Not applicable.
DISCUSSION:
McMillin atay Ranch has formally petitioned the City to form a Community Facilities District No.
97-3 (CFO 97-3) pursuant to the Mello-Roos Act of 1982 for financing the construction and/or
acquisition of certain public improvements serving the Otay Ranch McMillin SPA One project. On
May 12, 1998, Council approved an agreement with the developer providing for the advance of funds
to pay for all initial consulting, City administration, and appraisal expenses related to the formation
of this district, subject to reimbursement from bond proceeds. On June 9, 1998, Council approved
the Application submitted by the developer for the proposed CFO 97-3 and authorized the initiation
of proceedings.
Community Facilities Districts provide the necessary funding for the acquisition of public improvements
by levying an annual "special tax", which is collected from the property owners in conjunction with the
property taxes. There is no direct cost to the City. All expenses related to the district administration
(including levying and collecting the special taxes) are funded by the district. The ultimate security
behind the bonds are the properties located within the district, not the City's General Fund or its
ability to tax property within its jurisdiction. This district will be fonned in confonnance with the "City
of Chula Vista statement of goals and policies regarding the establishment of Community Facilities
Districts" (CFD Policy) as adopted on January 13, 1998 and amended on July 28, 1998.
District Boundaries
Exhibit I presents the boundaries of the proposed CFO which includes all parcels located within the Otay
Ranch McMillin SPA One (total acreage =290). At buildout, the district would contain a total of 538
Single Family Residences, 160 Attached Residences, 776 Multifamily Residences, 3 Acres of commercial
and 5 Acres for Community Purpose Facilities (churches, day care, ballfields, etc.).
The Improvements
The special tax consultant has prepared a preliminary "2% maximum tax" analysis based on estimated
house sizes and prices. Said analysis sets the amount of the maximum special tax that may be levied by
CFD 97-3. The proposed taxes are discussed below in the section "Proposed Special Taxes". Additional
calculations show that the maximum tax revenue (using the proposed taxes) from all the properties within
the district would support a total bond indebtedness of approximately $10.7 million (assuming a 7%
interest and a 30-year tenn on the bonds). A bond sale amount of $10.7 million will finance
approximately $9 million in facilities (i.e. grading, landscaping, streets, utilities, drainage, sewer,
pedestrian bridges, etc). The balance will provide for a reserve fund, capitalized interest and pay
district formation and bond issuance costs.
The developer is proposing the financing of backbone streets and associated improvements (i.e.,
grading, sewer, streets, dry utilities), a pedestrian bridge, and backbone utilities. Following is a
preliminary list of facilities identified for the project:
· La Media Road, from Telegraph Canyon Road to Olympic Parkway
· East Palomar Street, within the subdivision boundaries
· Olympic Parkway (onsite), within the subdivision boundaries
· Olympic Parkway (offsite), estimated fair share ofOtay Ranch McMillin towards the
construction of the portion from Paseo Ranchero to Brandywine Avenue
· Santa Cora A venue in its entirety and a sewer trunk line extending to the north
· Pedestrian bridge over La Media Road
8' --- ,;L
- _.- - -- ---_.._-~-_.
Page 3, Item_
Meeting Date 10/20/98
. Poggi Canyon Sewer (offsite), estimated fair share of Otay Ranch McMillin towards the
construction of the portion from Paseo Ranchero to Brandywine Avenue
It should be noted that tonight Council would only be approving the general nature (i.e. backbone streets,
backbone utilities) of the improvements to be financed by CFD 97-3. McMillin understands that the
amount of projects that can be financed by the CFD is limited to the maximum bond sale authorization
($13.5 million). The total identified improvements for the district have an estimated cost exeeding $13
million. As mentioned before, it is estimated that only $9 or 10 million will be able to be funded by the
CFD. A final priority list and cost estimate of the improvements eligible for CFD 97-3 financing will be
recommended by staff at the public hearing scheduled for November 24, 1998.
Ultimately, as subdivision exactions, the developer will finance improvements that this CFD district cannot
finance. The proposed CFD lies within various Development Impact Fee (DIF) areas (Poggi Canyon
Sewer, Transportation, and the proposed Pedestrian Bridge DIFs) which places a cap on the CFD's ability
to finance these improvements. Staff will work with the developer to achieve a balance between DIF and
non-DIF improvements within the district.
The actual amount to be financed by CFD 97-3 would depend upon a number of factors including final
interest rate on the bonds and value to lien ratio. Thus, staff recommends that tonight, Council approve
a bond sale amount not to exceed $13.5 million which is specified in the "Resolution ofIntention
to Issue Bonds" that is before Council tonight. The developer concurs with staffs recommendation.
Proposed Special Taxes
Tonight, Council would be approving the "Rate and Method of Apportionment" which establishes
the procedure for levying the special taxes in CFD 97-3. The district will have four categories of
taxation, as follows:
. Residential Developed Parcels (single and multi family residences) are taxed based on the square
footage of the building ($0.392 per square foot). Developed parcels are those parcels for which
a building permit has been issued. This tax rate has been determined by a preliminary "2%
maximum tax" analysis. Said analysis, which is based on estimated house sizes and prices, sets
the amount of the maximum special tax that may be levied by CFD 97-3 on residential parcels.
It should be noted that a final test will be required at escrow closing using actual house sale prices.
If the 2% limit is exceeded, the developer is required to buy down the lien to an amount sufficient
to meet the 2% criteria.
. Non-Residential Developed Parcels are taxed based on acreage of the parcel (Commercial at
$4,000 per acre and Community Purpose Facility (CPF) at $1,000 per acre). The apportionment
methodology assumes that one acre of commercial is equal to 5.33 single family residences (5.33
x $750 (average tax on a single family residence) = $4,000). The special tax consultant considers
this a reasonable assumption which has been used in others CFDs throughout California. This
ratio is corroborated by data published by the San Diego Area Association of Governments
(SANDAG) which provides that the people generation of one acre of commercial property is
approximately 5.6 the number of people in a single family residence. The CPF tax has been set
at 25% of the commercial rate. The developer considers this a tax that may be reasonably
supported by this land use category. A slightly higher factor of 33% was determined for
Assessment District No. 97-2 which was formed by Council to finance backbone improvements
in an adjacent property in the Otay Ranch Village One.
?~.J
Page 4, Item_
Meeting Date 10/20/98
. The Undeveloped Land category includes all the parcels for which a building pennit has not been
issued. The tax on Undeveloped Land is based on the total acreage of the parcel ($7,954 per
acre). During buildout, the collection from developed properties is not enough to cover the
annual debt service. During that period the undeveloped land taxes will cover the shortfall.
Based on a conservative housing absorption projection, the special tax consultant has detennined
that an undeveloped land tax of $7,954 is needed to meet the annual debt service. Even if no
development occurs and the whole property remains undeveloped, the proposed tax will generate
enough tax to cover the debt service on the bonds.
. The Taxable Homeowners Association Parcels are taxed based on the acreage of the parcel
($7,954 per acre). Same as the Undeveloped Land tax.
The "Rate and Method of Apportionment" detennines that no special tax shall be levied on up to 155.385
acres of Property Homeowners Association and Public Property. This acreage includes all the parcels
to be conveyed to the HOA or dedicated to the City. Any dedication of public property above the
combined HOA and public total acreage threshold of 155.385 acres would require a discharge of debt
such that no public lands would be taxed. These categories were created to provide additional assurance
to prospective bond purchasers that the collectible tax will always cover the annual debt service.
Collection of Taxes
First, the maximum special taxes will first be levied on the developed parcels (Residential and Non-
Residential). If this pool of funds is not enough to meet the annual debt service, as may be the case in the
early years of development, the district will levy a tax on the Undeveloped Land. Again, if additional
monies are needed after the first two steps have been completed, the special tax shall be levied on Taxable
Property Homeowners Association Property. After buildout, if the annual need is less than the collectible
tax from the Developed Parcels, the special taxes to be levied in that specific year will be reduced
proportionally.
Since this district is assessed based on the square footage of the home the bond holders require protection
in the event that the developer builds less than projected. This district used a Backup Special Tax where
each final map ("Planning Area") will have to meet its projected total square footage or the developer will
have to make up the lost revenue by prepayment of special taxes. This type of Backup Special Tax will
require more administration by the City to monitor the development for every building pennit pulled
however these administration costs (estimated at $125,000 per year during buildout and $75,000 per year
thereafter) are recoverable from the district. The Backup tax is payable in cash or by posting a letter of
credit. Once a Planning Area is built out the excess cash or letters of credit will be returned to the payer.
There is a five year limit on the build out process. Ifthe Planning area has not been built out within five
years of receipt ofthe first Backup Special Tax, all Backup Special Tax payments shall be used to redeem
bonds at that time.
The proposed "Rate and Method" also includes provisions for the prepayment of the special taxes
in the event the developer or a future property owner decides to do so.
Proposed Maximum Taxes
The rate of special tax levy for a variety of dwellings is as follows:
Single Family Detached (1920 SF) $752
Single Family Detached (1200 SF) $470 <2-'(
Page 5, Item_
Meeting Date 10/20/98
Attached (1100 SF) $431
Multi Family (1000 SF) $392
Commercial/Industrial ( 1 Acre) $4,000
Community Purpose Facility (1 Acre) $1,000
Vacant Land (I Acre) $7,954
In accordance with the CFD policy, these taxes are not subject to escalation.
Value to Lien Ratio Policy
Council policy requires a minimum 4: I value-to-lien ratio. A ratio of less than 4: I, but equal to or
greater than 3: 1, may be approved, in the sole discretion of Council, when it is determined that a ratio
of less than 4: 1 is financially prudent under the circumstances of a particular CFD.
A preliminary appraisal and lien ratio analysis will be prepared for Council review at the Public
Hearing for the formation of the district. A final appraisal and lien ratio analysis would be available
for Council consideration prior to bond sale, which is planned for early 1999. If the final analysis
shows parcels which fail to meet the 4:1 or 3:1 ratio, the developer would be required to either:
· Provide cash or letters of credit to maintain the lien ratio within the City criteria; or,
· The principal amount of the bonds to be issued for AD 97-2 will be reduced to comply
with City policy; or,
· Provide sufficient information to convince Council that a lesser lien ratio is prudent.
Maximum Tax Policv
Council Policy establishes that the maximum annual CFD special taxes applicable to any newly
developed residential property shall be no more than I % of the sale price of the house. In addition,
the aggregate of all annual taxes and assessments is limited to 2% of the sale price of the house.
A preliminary calculation of the maximum tax, using estimated house prices, has been completed and
all homes fall within the 2% limit. A final test will be performed at escrow closing using the actual
sale price of the house. Council Policy requires that at or prior to each closing of escrow, the escrow
company shall apply a "calculation formula" previously approved by the City Engineer to determine
the aggregate of regular County taxes, Mello-Roos taxes, and assessment installments. If the 2%
limit is exceeded, the developer would be required to provide cash to buy down the lien to an amount
sufficient to meet the 2% tax ceiling. Compliance with this procedure would ensure that the
aggregate tax to be paid by the purchaser of the house meets the City's criteria. Since the 2% limit
is a City policy the limit is not being included in the rate and method of the district.
Resolutions
There are five resolutions on today's agenda which, if adopted, will accomplish the following:
The RESOLUTION MAKING APPOINTMENTS is the fonnal action of the City Council appointing itself
as the legislative body of the proposed CFD.
8--S::
Page 6, Item_
Meeting Date 10/20/98
The RESOLUTION ADOPTING THE BOUNDARY MAP is the formal action adopting the map and
setting forth the boundaries ofthe proposed CFD.
The RESOLUTION OF INTENTION is the jurisdictional resolution declaring the intention on the City
Council to establish the proposed CFD, authorize the levy of a special tax, and set the time and place for
the public hearing for October 27,1998.
The RESOLUTION ORDERING THE "REPORT" is the formal action of the City Council directing the
preparation of a detailed report containing a description of the facilities and its estimated cost.
The RESOLUTION DECLARING INTENTION TO ISSUE BONDS is the formal declaration of the City
Council determining that the public convenience and necessity requires that a bond indebtedness be
incurred to finance certain public facilities proposed by CFD 97-3. The bond amount of $13.5 million
approved by this resolution is a maximum authorization. The actual amount of the bond sale will depend
upon a number of factors including interest rate on the bonds and compliance with the value-to-lien ratio
criteria.
Future Actions
Adoptions oftonight's resolutions will set the district's public hearing for November 24, 1998. There will
be an election following the public hearing for the land owners to vote on the district's formation. Once
the votes are in Council will be requested to certify the election and the district will be formed.
FISCAL IMPACT: None, 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
$75,000 annually thereafter.
In accordance with the CFD Policy, as consideration for the City's agreement to use the City's bonding
capacity to provide the financing mechanism for the construction of the proposed improvements, the
developer will pay one percent (1%) of the total bond authorization. Said requirement will be
memorialized in the Acquisition/Financing Agreement that will be brought to Council on November 24,
1998. Based on an estimated bond sale amount of$IO.7 million, said monetary compensation would be
$107,000. Said amount shall be paid prior to bond sale (scheduled for early 1999) and will be deposited
into the General Fund. The CFD Policy also stipulates that said compensation is not eligible for financing
by CFD 97-3.
Exhibit: 1- Boundary Map
October 15, 1998
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RESOLUTION NO. /92:2ý
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA,
CALIFORNIA MAKING APPOINTMENTS IN PROPOSED COMMUNITY
FACILITIES DISTRICT NO. 97-3 (MCMILLIN OTA Y RANCH SPA ONE)
WHEREAS, the CITY COUNCIL of the CITY OF CHULA VISTA, CALIFORNIA (the
"City Council "), desires to initiate proceedings to create a Community Facilities District pursuant
to the terms provisions of the "Mello-Roos Community Facilities Act of 1982", being Chapter
2.5, Part 1, Division 2, Title 5 of the Government Code of the State of California (the "Act") and
the City of Chula Vista Community Facilities District Ordinance enacted pursuant to the powers
reserved by the City of Chula Vista under Sections 3, 5 and 7 of Article XI of the Constitution
of the State of California (the "Ordinance") (the Act and the Ordinance may be referred to
collectively as the "Community Facilities District Law"). This Community Facilities District shall
hereinafter be designated as COMMUNITY FACILITIES DISTRICT NO. 97-3 (MCMILLIN
OTA Y RANCH SPA ONE) (the "District"); and,
WHEREAS, at this time, the legislative body is desires to appoint and designate itself as
the legislative body of the District, in order to allow the proceedings to go forward to completion
in accordance with the provisions of law.
NOW, THEREFORE IT IS HEREBY RESOLVED:
SECTION 1. The above recitals are all true and correct.
SECTION 2. Throughout the course ofthese formation proceedings and following the formation
thereof, the City Council of the City will be acting as the legislative body of proposed Community
Facilities District No. 97-3 (MCMILLIN OTAY RANCH SPA ONE), which shall upon the
formation thereof be a legally constituted governmental entity as defined by Section 53317 of the
Government Code of the State of California.
SECTION 3. All applicable regulatory rules of the City, including date, time and place of
meetings, as well as notice requirements shall be applicable for all proceedings conducted by this
legislative body as the governing body of the Community Facilities District.
SECTION 4. The Star News, or another newspaper of general circulation, is hereby designated
as the newspaper for all publications as required by law and as necessary for completion of this
District.
1
fj-/l-j
PREPARED BY: APPROVED AS TO FORM BY:
John P. Lippitt _(1--- M~-0-
John Kaheny
Director of Public Works City Attorney
2
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RESOLUTION NO. /7~~
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA,
CALIFORNIA, ADOPTING A BOUNDARY MAP SHOWING THE
BOUNDARIES OF THE TERRITORY PROPOSED FOR THE INCLUSION IN
PROPOSED COMMUNITY FACILITIES DISTRICT NO. 97-3 (MCMILLIN
OTAY RANCH SPA ONE)
WHEREAS, the CITY COUNCIL of the CITY OF CHULA VISTA, CALIFORNIA
(" City Council "), desires to initiate proceedings to create a Community Facilities District pursuant
to the terms and provisions of the" Mello-Roos Community Facilities Act of 1982" , being Chapter
2.5, Part I, Division 2, Title 5 of the Government Code of the State of California (the "Act") and
the City of Chula Vista Community Facilities District Ordinance enacted pursuant to the powers
reserved by the City of Chula Vista under Sections 3, 5 and 7 of Article XI of the Constitution
of the State of California (the "Ordinance") (the Act and the Ordinance may be referred to
collectively as the "Community Facilities District Law"). This Community Facilities District shall
hereinafter be designated as COMMUNITY FACILITIES DISTRICT NO. 97-3 (MCMILLIN
OT A Y RANCH SPA ONE) (the "District"); and,
WHEREAS, there has been submitted a map showing the boundaries of the territory
proposed for inclusion in the District including properties and parcels ofland proposed to be subject
to the levy of a special tax by the District.
NOW, THEREFORE, IT IS HEREBY RESOLVED:
SECTION I. The above recitals are all true and correct.
SECTION 2. The map designated as "BOUNDARIES OF COMMUNITY FACILITIES
DISTRICT NO. 97-3 (MCMILLIN OTAY RANCH SPA ONE)" showing the showing the
boundaries of the territory proposed for inclusion in the District including properties and parcels of
land proposed to be subject to the levy of a special tax by the District is hereby adopted.
SECTION 3. A certificate shall be endorsed on the original and on at least one (1) copy ofthe map
ofthe District, evidencing the date and adoption ofthis Resolution, and within fifteen (15) days after
the adoption of the Resolution fixing the time and place of the hearing on the formation or extent
of such District, a copy of such map shall be filed with the correct and proper endorsements thereon
with the County Recorder, all in the manner and form provided for in Sections 3110 and 3111 ofthe
Streets and Highways Code of the State of California.
1
~ß-/
REPARED BY: APPROVED AS TO FORM BY:
CL ~~ fr
John P. Lippitt John Kaheny -
Director of Public Works City Attorney
2
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--.. ._---.
RESOLUTION NO. /9.J.:2.?
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA,
CALIFORNIA, DECLARING ITS INTENTION TO ESTABLISH COMMUNITY
FACILITIES DISTRICT NO. 97-3 (MCMILLIN OTAY RANCH SPA ONE)
AND TO AUTHORIZE THE LEVY A SPECIAL TAX THEREIN TO FINANCE
THE ACQUISITION OF CERTAIN FACILITIES
WHEREAS, the CITY COUNCIL of the CITY OF CHULA VISTA, CALIFORNIA (the
"City Council"), at this time desires to initiate proceedings to create a Community Facilities
District pursuant to the terms and provisions of the "Mello-Roos Community Facilities Act of
1982", being Chapter 2.5, Part 1, Division 2, Title 5 of the Government Code of the State of
California (the "Act") and the City of Chula Vista Community Facilities District Ordinance
enacted pursuant to the powers reserved by the City of Chula Vista under Sections 3, 5 and 7 of
Article XI of the Constitution of the State of California (the "Ordinance") (the Act and the
Ordinance may be referred to collectively as the "Community Facilities District Law"). This
Community Facilities District shall hereinafter be referred to as COMMUNITY FACILITIES
DISTRICT NO. 97-3 (MCMILLIN OTAY RANCH SPA ONE) (the "District"); and,
WHEREAS, this City Council is now required to proceed to adopt its Resolution of
Intention to initiate the proceedings for the establishment of such District, to set forth the
boundaries for such District, to indicate the type of public facilities the acquisition of which is
proposed to be financed by such District, to indicate the rate and apportionment of a special tax
sufficient to finance the acquisition of such facilities and the administration of the District and any
indebtedness incurred by the District, to set a time and place for a public hearing relating to the
establishment of such District; and
WHEREAS, a map of such District has been submitted showing the boundaries of the
territory proposed for inclusion in the District including properties and parcels of land proposed
to be subject to the levy of a special tax by the District.
NOW, THEREFORE, IT IS HEREBY RESOLVED:
RECITALS
SECTION 1. The above recitals are all true and correct.
INITIATION OF PROCEEDINGS
SECTION 2. These proceedings are initiated by this City Council pursuant to the authorization
of Section 53318 of the Government Code of the State of California.
1
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BOUNDARIES OF DISTRICT
SECTION 3. It is the intention of this City Council to establish a Community Facilities District
pursuant to the provisions of the Community Facilities District Law, and to determine the
boundaries and parcels on which special taxes may be levied to fmance the acquisition of certain
facilities. A description of the boundaries of the territory proposed for inclusion in the District
including properties and parcels of land proposed to be subject to the levy of a special tax by the
District is as follows:
All that property as shown on a map as previously approved by this City Council,
such map designated by the name of this Community Facilities District, a copy of
which is on file in the Office of the City Clerk and shall remain open for public
inspection.
NAME OF DISTRICT
SECTION 4. The name of the proposed Community Facilities District to be established shall be
known and designated as COMMUNITY FACILITIES DISTRICT NO. 97-3 (MCMILLIN OTA Y
RANCH SPA ONE).
DESCRIPTION OF FACILITIES
SECTION 5. It is the further intention of this City Council to fmance the acquisition of certain
facilities. A general description of the type of facilities to be acquired is set forth in Exhibit A
attached hereto and incorporated herein by this reference.
The facilities are facilities which this legislative body is authorized by law to contribute
revenue to or to construct, own or operate. It is hereby further determined that the proposed
facilities are necessary to meet increased demands and needs placed upon the City and other public
agencies as a result of development within the District.
The cost of acquiring the facilities includes incidental expenses including but not limited
to the costs of planning and designing the facilities; all costs associated with the establishment of
the District, the issuance and administration of bonds, including the payment of any rebate
obligation due and owing to the federal government, the determination of the amount of any
special taxes to be levied, the costs of collecting any special taxes, and costs otherwise incurred
in order to carry out the authorized purposes of the District, together with any other expenses
incidental to the acquisition, construction, completion and inspection of the facilities
SPECIAL TAX
SECTION 6. It is hereby further proposed that, except where funds are otherwise available, a
special tax sufficient to pay for such facilities and related incidental expenses authorized by the
2
2šC - d.-
o _.~~. .----_..-
Community Facilities District Law, secured by recordation of a continuing lien against all non-exempt
real property in the District, will be levied annually witlùn the boundaries of such District. Under no
circumstances will the special tax levied against any parcel used for private residential purposes be
increased as a consequence of delinquency or default by the owner of any other parcel or parcels
within the District by more than 10 percent. For further particulars as to the rate and method of
apportionment of the proposed special tax, reference is made to the attached and incorporated Exhibit
"N', which sets forth in sufficient detail the method of apportionment to allow each landowner or
resident witlùn the proposed District to clearly estimate the maximum amount that such person will
have to pay.
The special taxes herein authorized, to the extent possible, shall be collected in the same
manner as ad valorem property taxes and shall be subject to the same penalties, procedure, sale and
lien priority in any case of delinquency as applicable for ad valorem taxes. Any special taxes that may
not be collected on the County tax roll shall be collected through a direct billing procedure by the
Treasurer.
PUBLIC HEARING
SECTION 7. NOTICE IS GIVEN THAT ON THE 24TH DAY OF NOVEMBER , 1998, AT THE
HOUR OF 6:00 O'CLOCK P.M., IN THE REGULAR MEETING PLACE OF THE CITY
COUNCIL BEING THE COUNCIL CHAMBERS, CITY HALL, LOCATED AT 276 E STREET,
CHULA VISTA, CALIFORNIA, A PUBLIC HEARING WILL BE HELD WHERE THIS CITY
COUNCIL WILL CONSIDER THE ESTABLISHMENT OF THE PROPOSED COMJ\.1UNITY
FACILITIES DISTRICT, THE PROPOSED METHOD AND APPORTIONMENT OF THE
SPECIAL TAX, AND ALL OTHER MATTERS AS SET FORTH IN THIS RESOLUTION OF
INTENTION. THAT AT THE ABOVE-MENTIONED TIME AND PLACE FOR PUBLIC
HEARING ANY PERSONS INTERESTED, INCLUDING TAXPAYERS AND PROPERTY
OWNERS MAY APPEAR AND BE HEARD, AND THAT THE TESTIMONY OF ALL
INTERESTED PERSONS FOR OR AGAINST THE ESTABLISHMENT OF THE DISTRICT,
THE EXTENT OF THE DISTRICT, OR THE FINANCING OF THE FACILITIES, WILL BE
HEARD AND CONSIDERED. ANY PROTESTS MAYBE MADE ORALLY OR IN WRITING.
HOWEVER, ANY PROTESTS PERTAINING TO THE REGULARITY OR SUFFICIENCY OF
THE PROCEEDINGS SHALL BE IN WRITING AND CLEARLY SET FORTH THE
IRREGULARITIES AND DEFECTS TO WHICH THE OBJECTION IS MADE. ALL WRITTEN
PROTESTS SHALL BE FILED WITH THE CITY CLERK OF THE CITY COUNCIL ON OR
BEFORE THE TIME FIXED FOR THE PUBLIC HEARING. WRITTEN PROTESTS MAYBE
WITHDRAWN IN WRITING AT ANY TIME BEFORE THE CONCLUSION OF THE PUBLIC
HEARING.
IF A WRITTEN MAJORITY PROTEST AGAINST THE ESTABLISHMENT OF THE
DISTRICT IS FILED, THE PROCEEDINGS SHALL BE ABANDONED. IF SUCH MAJORITY
PROTEST IS LIMITED TO CERTAIN FACILITIES OR PORTIONS OF THE SPECIAL TAX,
THOSE FACILITIES OR THAT TAX SHALL BE ELIMINATED BY THE CITY COUNCIL.
3
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--- -----..- ------- ----."-----
ELECTION
SECTION 8. If, following the public hearing described in the Section above, the City Council
determines to establish the District and proposes to levy a special tax within the District, the City
Council shall then submit the levy of the special taxes to the qualified electors of the District. If at
least twelve (12) persons, who need not necessarily be the same twelve (12) persons, have been
registered to vote within the District for each of the ninety (90) days preceding the close of the public
hearing, the vote shall be by registered voters of the District, with each voter having one (1) vote.
Otherwise, the vote shall be by the landowners ofthe District who were the owners of record at the
close of the subject hearing, with each landowners or the authorized representative thereof, having
one (1) vote for each acre or portion of an acre ofland owned within the District.
NOTICE
SECTION 9. Notice of the time and place ofthe public hearing shall be given by the City Clerk in
the following manner:
A. A Notice of Public Hearing shall be published in the legally designated newspaper of
general circulation, such publication pursuant to Section 6061 of the Government
Code, with such publication to be completed at least seven (7) days prior to the date
set for the public hearing.
B. A Notice of Public Hearing shall be mailed, postage prepaid, to each property owner
within the boundaries of the proposed District; such mailing to the property owners
shall be to the address as shown on the last equalized assessment roll. Such mailing
shall be completed at least fifteen (15) days prior to the date set for the public hearing.
RESERVATION OF RIGHTS TO AUTHORIZE TENDER OF BONDS
SECTION 10. The City Council reserves to itself, in its capacity as the legislative body of the District
ifformed, the right and authority to allow any interested owner of property within the District, subject
to the provisions of Government Code Section 53344.1 and to such conditions as this City Council
may impose, and any applicable prepayment penalties as may be described in the bond indenture or
comparable instrument or document, to tender to the Treasurer of the City ofChula Vista, acting for
and on behalf of the District, in full payment or part payment of any installment of the special taxes
or the interest or penalties thereon which may be due or delinquent, but for which a bill has been
received, any bond or other obligation secured thereby, the bond or other obligation to be taken at
par and credit to be given for the accrued interest shown thereby computed to the date of tender.
ADVANCES OF FUNDS OR WORK-IN-KIND
SECTION 11. At any time either before or after the formation of the District, the City Council may
accept advances of funds or work-in-kind ITOm any source, including, but not limited to, private
4
'irC-V
persons or private entities and may provide, by resolution, for the use of those funds or that work-in-
kind for any authorized purpose, including, but not limited to, paying any cost incurred by the City
in creating the District. The City may enter into an agreement, by resolution, with the person or entity
advancing the funds or work-in-kind, to repay all or a portion of the funds so advanced, or to
reimburse the person or entity for the value, or cost, whichever is less, of the work-in-kind, as
detennined by the City Council. The City has entered into a Community Facilities District
Reimbursement Agreement with McMillin - D.A. America Otay Ranch LLC to provide for such
advances for the payment of all initial consulting and administration costs and expenses related to the
proceedings to consider the formation of the District and to subsequently authorize, issue and seIl
bonds for the District. Such advances are subject to reimbursement pursuant to the terms of such
agreement. No such agreement shaIl constitute a debt or liability of the City.
PREPARED BY: APPROVED AS TO FORM BY:
C~/'- 1\~ ~
John P. Lippitt John Kaheny
Director of Public Works City Attorney
5
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EXHIBIT A
DESCRIPTION OF TYPES OF FACILITIES
Street improvements including but not limited to site concrete and street surfacing
and appurtenant facilities including but not limited to storm drain, sewer and
landscaping improvements; a pedestrian bridge; sewer improvements; and
appurtenances and appurtenant work.
A-I
<¡tC - ?
.- ...~_..".,'~~-
Exhibit" A"
RATE AND METHOD OF APPORTIONMENT FOR
CITY OF CHULA VISTA
COMMUNITY FACILITIES DISTRICT NO. 97-03
(OTAY RANCH MC MILLIN SPA ONE)
A Special Tax as hereinafter defmed shall be levied on all Assessor's Parcels of Taxable Property
in City of Chula Vista Community Facilities District No. 97-03 ("CFD No. 97-03 ") and collected
each Fiscal Year commencing in Fiscal Year 1999-2000, in an amount determined by the City
Council through the application of the appropriate Special Tax for "Developed Property,"
"Taxable Property Owner Association Property," and "Undeveloped Property" as described
below. All of the real property in CFD No. 97-03, unless exempted by law or by the provisions
hereof, shall be taxed for the purposes, to the extent and in the manner herein provided.
A. DEFINITIONS
The terms hereinafter set forth have the following meanings:
"Acre or Acreage" means the land area of an Assessor's Parcel as shown on an Assessor's
Parcel Map, or if the land area is not shown on an Assessor's Parcel Map, the land area
shown on the applicable final map, parcel map, condominium plan, record of survey, or
other recorded document creating or describing the parcel. If the preceding maps are not
available, the Acreage shall be determined by the City Engineer.
"Act" means the Mello-Roos Community Facilities Act of 1982, as amended, being
Chapter 2.5, Division 2 of Title 5 of the Government Code of the State of California.
"Administrative Expenses" means the following actual or reasonably estimated costs
directly related to the administration of CFD No. 97-03: the costs of computing the Special
Taxes and preparing the annual Special Tax collection schedules (whether by the City or
designee thereof or both); the costs of collecting the Special Taxes (whether by the County,
the City, or otherwise); the costs of remitting the Special Taxes to the Trustee; the costs
of the Trustee (including its legal counsel) in the discharge of the duties required of it
under the Indenture; the costs to the City, CFD No. 97-03 or any designee thereof of
complying with arbitrage rebate requirements; the costs to the City, CFD No. 97-03 or any
designee thereof of complying with City, CFD No. 97-03 or obligated persons disclos~re
requirements associated with applicable federal and state securities laws and of the Act; the
costs associated with preparing Special Tax disclosure statements and responding to public
inquiries regarding the Special Taxes; the costs of the City, CFD No. 97-03 or any
designee thereof related to an appeal of the Special Tax; and the costs associated with the
release of funds from an escrow account, if any. Administrative Expenses shall also
include amounts estimated or advanced by the City or CFD No. 97-03 for any other
administrative purposes of CFD No. 97-03, including attorney's fees and other costs
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City of Chula Vista October 8, 1998
Community Facilities District No. 97-03 Page I
related to commencing and pursuing to completion any foreclosure of delinquent Special
Taxes.
"Assessor's Parcel" means a lot or parcel shown in an Assessor's Parcel Map with an
assigned Assessor's Parcel number.
"Assessor's Parcel Map" means an official map of the County Assessor of the County
designating parcels by Assessor's Parcel number.
"Available Funds" means the balance in the reserve fund established pursuant to the tenns
of the Indenture in excess of the reserve requirement as defined in such Indenture,
delinquent special tax payments, foreclosure proceeds, the portion of proceeds of Backup
Special Tax payments and Special Tax prepayments collected to pay interest on Bonds, and
other sources of funds available as a credit to the Special Tax Requirement as specified in
such Indenture.
"Backup Special Tax" means the special tax that is required to be paid as a condition
precedent to the issuance of building pennits or recordation of final maps, as detennined
in accordance with Section E below.
"Bonds" means any bonds or other debt (as defined in the Act), whether in one or more
series, issued by CFD No. 97-03 under the Act.
"CFD Administrator" means an official of the City, or designee thereof, responsible for
determining the Special Tax Requirement and providing for the levy and collection of the
Special Taxes.
"CFD No. 97-03" means City of Chula Vista Community Facilities District No. 97-03
(Otay Ranch McMillin SPA One).
"City" means the City of Chula Vista.
"Council" means the City Council of the City, acting as the legislative body of
CFD No. 97-03.
"Commercial Property" means all Assessor's Parcels of Developed Property for which
a building pennit(s) was issued for a non-residential use, excluding Community Purpose
Facility Property. ..
"Community Purpose Facility Property" means all Assessor's Parcels of Developed
Property which are classified as community purpose facilities and meet the requirements
of City of Chula Vista Ordinance No. 2452.
"County" means the County of San Diego.
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City of Chula Vista October 8, 1998
Community Facilities District No. 97-03 Page 2
- _.~----_.__._-~ "---_...
"Developed Property" means, for each Fiscal Year, all Taxable Property, exclusive of
Taxable Property Owner Association Property for which a building permit for new
construction was issued prior to April 1 of the prior Fiscal Year.
"Development Projection" means an annual calculation for each Planning Area of
CFD No. 97-03 of (i) the number and total Residential Floor Area of existing dwelling
units of Residential Property, the number of existing Acres of Commercial Property, and
the number of existing Acres of Community Purpose Facility Property and (ii) a projection
of all future development, including the acreage, projected number of residential dwelling
units, projected Residential Floor Area, projected Commercial Property Acres, projected
Community Purpose Facility Property Acres, and an absorption schedule for all future
development in CFD No. 97-03. The Development Projection shall be dated as of April
1 and prepared each Fiscal Year by the Master Developer. Upon submittal, the CFD
Administrator shall review, modify if necessary, and approve the Development Projection.
If the Development Projection is not received by the CFD Administrator on or before May
I, the CFD Administrator shall then prepare or cause to be prepared a Development
Projection.
"Final Residential Subdivision" means a subdivision of property created by recordation
of a final map, parcel map, or lot line adjustment, approved by the City pursuant to the
Subdivision Map Act (California Government Code Section 66410 et seq.) or recordation
of a condominium plan pursuant to California Civil Code 1352 that creates individual lots
for which residential building permits may be issued without further subdivision of such
property .
"Fiscal Year" means the period starting July I and ending on the following June 30.
"Indenture" means the indenture, fiscal agent agreement, trust agreement, resolution or
other instrument pursuant to which Bonds are issued, as modified, amended and/or
supplemented from time to time, and any instrument replacing or supplementing the same.
"Land Use Class" means any of the classes listed in Table 1.
"Master Developer" means the owner or owners of 1he predominant amount of
Undeveloped Property in CFD No. 97-03.
"Maximum Annual Special Tax" means the maximum annual Special Tax, determined
in accordance with the provisions of Section C below, that may be levied in any Fis¡;al
Year on any Assessor's Parcel of Taxable Property.
"Occupied Residential Property" means all Assessor's Parcels of Residential Property
which have closed escrow to an end user.
"Outstanding Bonds" means all Bonds which remain outstanding.
grc-¡
City of Chula Vista October 8, 1998
Community Facilities District No. 97-03 Page 3
--.
"Planning Areas" means those areas shown on Exhibit A. Minor adjustments in the
boundaries of the Planning Areas may be made by the CFD Administrator to conform to
the tentative and final maps approved for these areas.
"Property Owner Association Property" means any property within the boundaries of
CFD No. 97-03 owned by or dedicated to a property owner association, including any
master or sub-association.
"Proportionately" means for Developed Property that the ratio of the actual Special Tax
levy to the Maximum Annual Special Tax is equal for all Assessor's Parcels of Developed
Property within CFD No. 97-03. For Undeveloped Property, "Proportionately" means
that the ratio of the actual Special Tax levy per Acre to the Maximum Annual Special Tax
per Acre is equal for all Assessor's Parcels of Undeveloped Property in CFD No. 97-03.
"Public Property" means any property within the boundaries of CFD No. 97-03 that is
used for rights-of-way or any other purpose and is owned by or dedicated to the federal
government, the State of California, the County, the City or any other public agency.
"Residential Property" means all Assessor's Parcels of Developed Property for which a
building permit has been issued for purposes of constructing one or more residential
dwelling units.
"Residential Floor Area" means all of the square footage of living area within the
perimeter of a residential structure, not including any carport, walkway, garage, overhang,
patio, enclosed patio, or similar area. The determination of Residential Floor Area shall
be made by reference to appropriate records kept by the City's Building Department.
Residential Floor Area will be based on the building pemút(s) issued for each dwelling unit
prior to it being classified as Occupied Residential Property, and shall not change as a
result of additions or modifications made after such classification as Occupied Residential
Property.
"Special Tax" means the (i) annual special tax to be levied in each Fiscal Year on each
Assessor's Parcel of Taxable Property to fund the Special Tax Requirement and (ii) the
backup special tax that may be required as a result of changes in development.
"Special Tax Requirement" means that amount required in any Fiscal Year for
CFD No. 97-03 to: (i) pay annual debt service on all Outstanding Bonds; (ii) pay periodic
costs on the Bonds. including but not limited to, credit enhancement and rebate paymeuts
on the Bonds; (iii) pay reasonable Administrative Expenses; (iv) pay any amounts required
to establish or replenish any reserve funds for all Outstanding Bonds in accordance with
the Indenture; (v) and pay directly for acquisition and/or construction of which are
authorized to be financed by CFD No. 97-03; (vi) less a credit for Available Funds.
"State" means the State of California.
"Taxable Property" means all of the Assessor's Parcels within the boundaries of CFD No.
97-03 which are not exempt from the ?ial Tax pursuant to law or Section F below.
C - /íJ
City of Chula Vista October 8, 1998
Community Facilities District No. 97-03 Page 4
"Taxable Property Owner Association Property" means all Assessor's Parcels of
Property Owner Association Property that are not exempt pursuant to Section F below.
"Trustee" means the trustee, fiscal agent, or paying agent under the Indenture.
"Undeveloped Property" means, for each Fiscal Year, all Taxable Property not classified
as Developed Property or Taxable Property Owner Association Property.
B. ASSIGl'oMENT TO LAND USE CATEGORIES
Each Fiscal Year, all Taxable Property within CFD No. 97-03 shall be classified as
Developed Property, Taxable Property Owner Association Property, or Undeveloped
Property, and shall be subject 10 the levy of annual Special Taxes determined pursuant to
Sections C and D below. Developed Property shall be assigned to Land Use Classes 1
through 3 as listed in Table 1 based on the primary land use of each such Assessor's
Parcel.
The Maximum Annual Special Tax for Residential Property shall be based on the
Residential Floor Area of the dwelling units located on the Assessor's Parcel. The
Maximum Annual Special Tax for Commercial Property and Community Purpose Facility
Property shall be based on the Acreage of the Assessor's Parcel.
C. MAXIMUM ANNUAL SPECIAL TAX RATE
1. Developed Property
The Maximum Annual Special Tax for each Land Use Class of Developed Property
shall be the amount shown in Table 1 below.
TABLE 1
Maximum Annual Special Taxes for Developed Property
Community Facilities District No. 97-03
-
Land Use
Class Description Maximum Annual Special Tax
1 Residential Property $0.392 per square foot of Residential
Floor Area .
2 Commercial Property $4,000 per Acre
3 Community Purpose Facility Property $1,000 per Acre
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City of Chula Vista October 8, 1998
Community Facilities District No. 97-03 Page 5
--'.-. .---".--.- -----_.~~..
2. Undeveloped Property and Taxable Property Owner Association Property
The Maximum Annua] Special Tax for Undeveloped Property and Taxable
Property Owner Association Property in CFD No. 97-03 shall be $7,954 per Acre.
D. METHOD OF APPORTIONMENT OF THE SPECIAL TAX
Commencing with Fiscal Year 1999-2000 and for each following Fiscal Year, the Council
shall determine the Special Tax Requirement and shall levy the Special Tax until the
amount of Special Taxes equals the Special Tax Requirement. The Special Tax shall be
levied each Fiscal Year as follows:
First: The Special Tax shall be levied Proportionately on each Assessor's Parcel of
Developed Property at up to 100% of the applicable Maximum Annual Special Tax.
Second: If additional monies are needed to satisfy the Special Tax Requirement after the
first step has been completed, the Special Tax shall be levied Proportionately on each
Assessor's Parcel of Undeveloped Property at up to 100% of the Maximum Annual Special
Tax for Undeveloped Property;
Third: If additional monies are needed to satisfy the Special Tax Requirement after the
first two steps have been completed, then the Special Tax shall be levied Proportionately
on each Assessor's Parcel of Taxable Property Owner Association Property at up to the
Maximum Annual Special Tax for Taxable Property Owner Association Property.
Notwithstanding the above, under no circumstances will the Special Tax levied against any
Assessor's Parcel of Occupied Residential Property be increased by more than ten percent
per year as a consequence of delinquency or default in the payment of Special Taxes by the
owner of any other Assessor's Parcel within the CFD.
E. BACKUP SPECIAL TAX
The following definitions apply to this Section E:
"Actual Average Special Tax Per Unit" means, for each Planning Area, the Actual
Special Tax Revenue divided by the sum of the number of units included in any current
building permit application(s) plus the number of units within such Planning Area for
which building permits have previously been issued. Any building permits issued after 111
Assessor's Parcel has been classified as Occupied Residential Property shall not be
included in determining the Actual Average Special Tax Per Unit.
"Actual Special Tax Revenue" means, for each Planning Area, the sum of the total
Residential Floor Area shown on any current building permit application(s) plus the total
Residential Floor Area from any previously issued building permits within the Planning
Area multiplied by the applicable Maximum Annual Special Tax. Any building permits
issued after an Assessor's Parcel has been classified as Occupied Residential Property shall
not be included in determining the Actual ~cial Tax Revenue.
b~/ <-
City of Chula Vista ' "" October 8, 1998
Community Facilities District No. 97-03 Page 6
----_.__._.._~-_._._,.
"Backup Special Tax Fund" means, for each Planning Area, the fund or account
identified in the Indenrure to hold Backup Special Tax payments received from property
owners within such Planning Area.
"Expected Special Tax Revenue" means, with respect to each Planning Area, the amount
shown in the column so labeled in Table 2
"Required Average Special Tax Per Unit/Acre" means, for each Planning Area, the
Expected Special Tax Revenue divided by the total expected number of dwelling units or
non-residential Acres (as applicable) expected to be developed within the Planning Area,
as determined by the CFD Administrator based on tentative maps, Final Residential
Subdivision maps, the Development Projection, and all other relevant information available
to the CFD Administrator. In cases where residential and non-residential property are both
included within a Planning Area, the CFD Administrator may adjust the Required Average
Special Tax Per Unit/Acre as necessary.
"Share of Annual Debt Service" means, for each Planning Area, the maximum annual
debt service on the Bonds multiplied by that Planning Area's percentage of the total Special
Tax revenue, as shown in Table 2 below. A Planning Area's Share of Annual Debt
Service shall be adjusted to reflect any prepayments within that Planning Area.
I. Expected Development and Special Tax Revenues
Table 2 below identifies the amount of development and Special Tax revenue that
is currently expected from each Planning Area. Table 2 may be revised by the
CFD Administrator if the Planning Area boundaries are modified.
.,
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City of Chula Vista October 8, 1998
Community Facilities District No. 97-03 Page 7
~--".._..,.~_.._-- .. . ..__..._---~-..,_. ---_.~-~---_.__.-
TABLE 2
Expected Development and Special Tax Revenue by Planning Area
Community Facilities District No. 97-03
NUMBER EXPECTED
OF TOTAL SPECIAL PERCENT
PLANNING EXPECTED UNITS! RESIDENTIAL TAX OF TOTAL
AREA PRODUCT TYPE ACRES FLOOR AREA REVENUE REVENUE
R-I-1I Residential Property 120 units 344,760 $135,146 14.22 %
R-I-22 Residential Property 86 units 156,864 $61,491 6.47%
R-I-23 Residential Property 87 units 173,391 $67,969 7.15%
R-I-24 Residential Property 13 8 units 352,038 $137,999 14.52%
R-I-46 Residential PropertY 117 units 158,535 $62,146 6.54%
CPF-I-4 Community Purpose 4.8 acres NA $4,800 0.51%
Facility Property
R-I-12 Residential Property 103 units 205,279 $80,469 8.48%
R-I-41 Residential Property 90 units 166,500 $65,268 6.87%
R-I-42 Residential Property 74 units 134,976 $52,911 5.57%
R-I-40 Residential Property 201 units 251,250 $98,490 10.37%
R-I-43 Residential Property 240 units 234,000 $91,728 9.65%
R-I-44 Residential Property 200 units 195,000 $76,440 8.05%
R-I-45 Residential Property 18 units 17,550 $6,880 0.72%
C-I-2 Commercial Property 2.1 acres NA $8,400 0.88%
TOTAL NA 1,474 units NA $950,137 100.00%
2. Calculation of Required Average Special Tax Per Unit! Acre
At the time the first building pennit application for a Planning Area is submitted
to the City, the CFD Administrator shall calculate the Required Average Special
Tax Per Unit!Acre.
3. Backup Special Tax due to Loss of Units! Acres
If at any time after the Required Average Special Tax Per Unit! Acre has been
calculated initially for a Planning Area, the CFD Administrator determines that
based on tentative maps, Final Residential Subdivision maps, the Development
Projection, and any other available information there has been a reduction in we
total expected number of dwelling units or non-residential Acres within that
Planning Area, then a Backup Special Tax payment shall be required for each lost
unit or Acre prior to the issuance of any additional building permits or the
recordation of any additional final maps for such Planning Area.
4. Backup Special Tax due to Loss of Residential Floor Area
For Planning Areas that include Residential Property, before each building permit
City of Chula Vista ~C-)t October 8, 1998
Community Facilities District No. 97-03 Page 8
-_._....._..~._.-
(or group of permits) is issued, the CFD Administrator shall calculate the Actual
A verage Special Tax Per Unit for the Planning Area. If the Actual Average Special
Tax Per Unit is less than the Required Average Special Tax Per Unit then a Backup
Special Tax payment will be required prior to issuance of the building permit(s)
included within the calculation.
5. Calculation of Backup Special Tax
The Backup Special Tax payment amount will be calculated using the prepayment
formula described in Section 1.1, with the following exceptions: (i) if the Backup
Special Tax is required as a result of Section E.3, then the amount used in
Paragraph 1 of the prepayment formula described in Section 1.1 shall equal the
number oflost units or Acres, as applicable, times the Required Average Special
Tax Per Unit/Acre; (ii) if the Backup Special Tax is required as a result of Section
E.4, then the amount used in Paragraph I of the prepayment formula described in
Section 1.1 shall equal the difference between the Actual Average Special Tax Per
Unit and the Required Average Special Tax Per Unit times the sum of the number
of units for which permits are being issued plus the number of units within the
Planning Area for which building permits have previously been issued. The amount
determined pursuant to the preceding sentence shall be reduced by the balance in
the Backup Special Tax Fund that has been established for such Planning Area; (iii)
in Paragraph 5 of the prepayment formula described in Section 1.1, compute the
amount needed to pay interest on the Bond Redemption Amount until the first
redemption date that occurs after five years from the date of the first Backup
Special Tax payment in the Planning Area; (iv) any Backup Special Tax payments
received for a Planning Area (less Administrative Fees and Expenses) shall be
deposited into the Backup Special Tax Fund for that Planning Area and disbursed
pursuant to the Indenture; and (v) the Maximum Annual Special Taxes applicable
to property within a Planning Area shall not be reduced or relieved as a result of
payment of the Backup Special Tax.
6. Use/Release of Backup Special Tax Payments
When a Planning Area reaches full buildout (i.e. all expected building permits have
been issued), the CFD Administrator shall calculate the actual Developed Property
Maximum Annual Special Tax revenues that will be generated from such Planning
Area. If the actual Developed Property Maximum Annual Special Tax revenues are
greater than or equal to 1.1 times that Planning Area's Share of Annual Debt
,.
Service, the balance in the Backup Special Tax Fund shall be returned to the payer.
If Backup Special Taxes have been paid by more than one entity, the amount of
Backup Special Taxes returned to each payer shall be in proportion to the amount
paid by each entity. If the actual Developed Property Maximum Annual Special
Tax revenues are less than 1.1 times that Planning Area's Share of Annual Debt
Service, then to the extent necessary to generate 110% coverage, the balance in the
Backup Special Tax Fund shall be used to redeem bonds on the next available
redemption date. Any moneys remaining in Backup Special Tax Fund shall be
returned to the payer. If a Planning Area has not reached full buildout within five
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City of Chula Vista October 8, 1998
Community Facilities District No. 97-03 Page 9
years after the first payment of Backup Special Taxes for such Planning Area, then
all moneys in the Backup Special Tax Fund shall be used to redeem bonds on the
next available redemption date.
F. EXEMPTIONS
No Special Tax shall be levied on up to 155.385 Acres of Property Owner Association
Property and Public Property. Tax-exempt status will be irrevocably assigned by the CFD
Administrator in the chronological order in which property becomes Property Owner
Association Property or Public Property.
After the limit of 155.385 exempt Acres has been reached, the Maximum Annual Special
Tax obligation for any additional Public Property shall be prepaid in full by the seller
pursuant to Section 1.1, prior to the transfer/dedication of such property.
Property Owner Association Property that is not exempt from Special Taxes under this
section shall be subject to the levy of the Special Tax and shall be taxed Proportionately
as part of the third step in Section D above, at up to 100% of the Maximum Annual Special
Tax for Taxable Property Owner Association Property.
G. REVIEW/APPEAL COMMITTEE
The Council shall establish as part of the proceedings and administration of CFD No. 97-
03 a special three-member Review/Appeal Committee. Any landowner or resident who
feels that the amount of the Special Tax levied on their Assessor's Parcel is in error may
file a written notice with the Review/Appeal Committee appealing the amount of the
Special Tax levied on such Assessor's Parcel. The Review/Appeal Committee may
establish such procedures as it deems necessary to undertake the review of any such
appeal. The Review/Appeal Committee shall interpret this Rate and Method of
Apportionment and make determinations relative to the annual administration of the Special
Tax and any landowner or resident appeals, as herein specified. The decision of the
Review/Appeal Committee shall be final and binding as to all persons.
H. MANNER OF COLLECTION
The annual Special Tax shall be collected in the same manner and at the same time as
ordinary ad valorem property taxes; provided, however, that CFD No. 97-03 may directly
bill the Special Tax, may collect Special Taxes at a different time or in a different manner
..
if necessary to meet its financial obligations, and may covenant to foreclose and may
actually foreclose on Assessor's Parcels which are delinquent in the payment of Special
Taxes.
Landowners shall pay the Backup Special Tax directly to the City upon notification of the
Backup Special Tax amount due, prior to the issuance the building permits or recordation
of the final map, as applicable, upon which the calculation of such Backup Special Tax is
based. Backup Special Tax payments may be made in cash or as a letter of credit with
terms acceptable to the CFD Administrator. g-- C. ./ / ?
City of Chula Vista October 8, 1998
Community Facilities District No. 97-03 Page 10
Tenders of Bonds may be accepted for payment of Special Taxes upon the terms and
conditions established by the Council pursuant to the Act. However, the use of Bond
tenders shaH only be allowed on a case-by-case basis as specifically approved by the
Council.
I. PREPAYMENT OF MAXIMUM ANNUAL SPECIAL TAX
The foHowing definition applies to this Section I:
"Outstanding Bonds" means aH previously issued Bonds which will remain outstanding
after the first interest and/or principal payment date following the current Fiscal Year,
excluding Bonds to be redeemed at a later date with the proceeds of prior prepayments of
Maximum Annual Special Taxes.
1. Payment in Full
The Maximum Annual Special Tax obligation may only be prepaid and
permanently satisfied by an Assessor's Parcel of Developed Property, Undeveloped
Property for which a building permit has been issued, or Public Property. The
Maximum Annual Special Tax obligation applicable to such Assessor's Parcel may
be fully prepaid and the obligation of the Assessor's Parcel to pay the Maximum
Annual Special Tax permanently satisfied as described herein, provided that a
prepayment may be made only if there are no delinquent Special Taxes with respect
to such Assessor's Parcel at the time of prepayment. An owner of an Assessor's
Parcel intending to prepay the Special Tax obligation shall provide the CFD
Administrator with written notice of intent to prepay. Within 30 days of receipt of
such written notice, the CFD Administrator shall notify such owner of the
prepayment amount of such Assessor's Parcel and may charge a reasonable fee for
providing this service. Prepayment must be made not less than 45 days prior to the
next occurring date that notice of redemption of Bonds from the proceeds of such
prepayment may be given to the Trustee pursuant to the Indenture.
The Prepayment Amount (defined below) shall be cal~ulated as summarized below
(capitalized terms as defined below):
Bond Redemption Amount
plus Redemption Premium ,.
plus Defeasance Amount
plus Administrative Fees and Expenses
less Reserve Fund Credit
less Capitalized Interest Credit
Total: equals Prepayment Amount
As of the proposed date of prepayment, the Prepayment Amount (defined below)
shall be calculated as follows:
<¡(c-/)
City of Chula Vista / October 8, 1998
Community Facilities District No. 97-03 Page 11
Paragraph No.:
l. For Assessor's Parcels of Developed Property, compute the Maximum
Annual Special Tax for the Assessor's Parcel to be prepaid. For Assessor's
Parcels of Undeveloped Property to be prepaid, compute the Maximum
Annual Special Tax for that Assessor's Parcel as though it was already
designated as Developed Property, based upon the building permit which
has already been issued for that Assessor's Parcel. For Assessor's Parcels
of Public Property to be prepaid, compute the Maximum Annual Special
Tax for such Assessor's Parcel using the Maximum Special Tax for
Undeveloped Property.
2. Divide the Maximum Annual Special Tax computed pursuant to paragraph
1 by the total expected Special Tax revenues as shown in Table 2 in Section
E, excluding any Assessor's Parcels which have been prepaid.
3. Multiply the quotient computed pursuant to paragraph 2 by the Outstanding
Bonds to compute the amount of Outstanding Bonds to be retired and
prepaid (the "Bond Redemption Amount '').
4. Multiply the Bond Redemption Amount computed pursuant to paragraph 3
by the applicable redemption premium, if any, on the Outstanding Bonds
to be redeemed (the "Redemption Premium").
5. Compute the amount needed to pay interest on the Bond Redemption
Amount from the first bond interest and/or principal payment date
following the current Fiscal Year until the earliest redemption date for the
Outstanding Bonds.
6. Confirm that no Special Tax delinquencies apply to such Assessor's Parcel.
7. Determine the Special Taxes levied on the Assessor's Parcel in the current
Fiscal Year which have not yet been paid. -
8. Compute the amount the CFD Administrator expects to derive from the
reinvestment of the Prepayment Amount less the Administrative Fees and
Expenses from the date of prepayment until the redemption date for the
Outstanding Bonds to be redeemed with the prepayment. ..
9. Add the amounts computed pursuant to paragraphs 5 and 7 and subtract the
amount computed pursuant to paragraph 8 (the "Defeasance Amount").
10. Verify the administrative fees and expenses of CFD No. 97-03, including
the costs of computation of the prepayment, the costs to invest the
prepayment proceeds, the costs of redeeming Bonds, and the costs of
~C -/~
City of Chula Vista October 8, 1998
Community Facilities District No. 97-03 Page 12
.-.- .._-,-~--_.._-
recording any notices to evidence the prepayment and the redemption (the
"Administrative Fees and Expenses ").
11. If reserve funds for the Outstanding Bonds, if any, are at or above 95 % of
the reserve requirement (as defined in the Indenture) on the prepayment
date, a reserve fund credit (the "Reserve Fund Credit") shall be calculated
as follows: (i) if the reserve funds are at or above 100% of the reserve
requirement, the Reserve Fund Credit shall equal the actual reduction in the
reserve requirement, if any, as a result of the prepayment, or (ii) if the
reserve funds are at 95% or between 95% and 100% of the reserve
requirement, the amount calculated pursuant to paragraph II (i) shall be
reduced by the percentage by which the reserve fund is below the reserve
requirement. No Reserve Fund Credit shall be granted if reserve funds are
below 95 % of the reserve requirement.
12. If any capitalized interest for the Outstanding Bonds will not have been
expended at the time of the first interest and/or principal payment following
the current Fiscal Year, a capitalized interest credit shall be calculated by
multiplying the quotient computed pursuant to paragraph 2 by the expected
balance in the capitalized interest fund after such first interest and/or
principal payment (the "Capitalized Interest Credit").
13. The Maximum Annual Special Tax prepayment is equal to the sum of the
amounts computed pursuant to paragraphs 3, 4, 9 and 10, less the amounts
computed pursuant to paragraphs 11 and 12 (the "Prepayment Amount").
From the Prepayment Amount, the amounts computed pursuant to paragraphs 3,
4, 9, 11 and 12 shall be deposited into the appropriate funds as established under
the Indenture. The amount computed pursuant to paragraph 10 shall be retained
by CFD No. 97-03.
As a result of the payment of the current Fiscal Year's Special Tax levy as
determined under paragraph 7 (above), the CFD Administrator shall remove the
current Fiscal Year's Special Tax levy for such Assessor's Parcel from the County
tax rolls. With respect to any Assessor's Parcel that"is prepaid, the Council shall
cause a suitable notice to be recorded in compliance with the Act, to indicate the
prepayment of the Maximum Annual Special Taxes and the release of the
Maximum Annual Special Tax lien on such Assessor's Parcel, and the obligation
of such Assessor's Parcel to pay the Maximum Annual Special Tax shall cease~
Notwithstanding the foregoing, no Maximum Annual Special Tax prepayment shall
be allowed unless the amount of Maximum Annual Special Taxes that may be
levied on Taxable Property within CFD No. 97-03 both prior to and after the
proposed prepayment is at least 1.1 times the maximum annual debt service on all
Outstanding Bonds.
City of Chula Vista g'C - /r October 8, 1998
Community Facilities District No. 97-03 Page 13
Tenders of Bonds in prepayment of Maximum Annual Special Taxes may be
accepted upon the terms and conditions established by the Council pursuant to the
Act. However, the use of Bond tenders shal1 only be al10wed on a case-by-case
basis as specifical1y approved by the Council.
2. Prepayment in Part
The Maximum Annual Special Tax on an Assessor's Parcel of Developed Property
or an Assessor's Parcel of Undeveloped Property for which a building permil has
been issued may be partial1y prepaid. The amount of the prepayment shal1 be
calculated as in Section I.1; except that a partial prepayment shal1 be calculated
according to the fol1owing formula:
PP = PE X F.
These terms have the fol1owing meaning:
PP = the partial prepayment
PE = the Prepayment Amount calculated according to Section 1.1
F= the percent by which the owner of the Assessor's Parcel(s) is partial1y
prepaying the Maximum Annual Special Tax.
The owner of an Assessor's Parcel who desires to partial1y prepay the Maximum
Annual Special Tax shall notify the CFD Administrator of (i) such owner's intent
to partial1y prepay the Maximum Annual Special Tax, (ii) the percentage by which
the Maximum Annual Special Tax shall be prepaid, and (iii) the company or agency
that will be acting as the escrow agent, if applicable. The CFD Administrator shall
provide the owner with a statement of the amount required for the partial
prepayment of the Maximum Annual Special Tax for an Assessor's Parcel within
thirty (30) days of the request and may charge a reasonable fee for providing this
service.
With respect to any Assessor's Parcel that is partially prepaid, the City shall (i)
distribute the funds renùtted to it according to the Indenture, and (ii) indicate in the
records of CFD No. 97-03 that there has been a partial prepayment of the
Maximum Annual Special Tax and that a portion of the Maximum Annual Special
Tax equal to the outstanding percentage (1.00 - F) of the remaining Maximum
Annual Special Tax shal1 continue to be authorized to be levied on such Assessor's
Parcel pursuant to Section D.-
J. TERM OF MAXIMUM ANNUAL SPECIAL TAX
The Maximum Annual Special Tax shall be levied commencing in Fiscal Year 1999-2000
to the extent necessary to meet the Special Tax Requirement for a period not to exceed
thirty-five years.
F:I WORK2\CUE\ TS2ICHL1..A }'IS. TA IMEl.1..0Icjd9ï-JIR.'WA IRMAlO _ CHlJLA.doc
Revised: October 8. 1998 fšC -c2tJ
City of Chula Vista October 8, 1998
Community Facilities District No. 97-03 Page /4
-~_.__. __.____n..._.___,_._"_."___________,
EXHIBIT A
PLANNING AREA MAP
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City of Chula Vista October 8, 1998
Community Facilities District No. 97-03 Page 15
_._.··..···_.m·.··.__,,_._
McMillin I Otay Ranch EXHIBIT "A"
CFD No. 97-3
PLANNING AREA MAP
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RESOLUTION NO. ) 9 -2.2. ?
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA,
CALIFORNIA, ORDERING AND DIRECTING THE PREPARATION OF A
REPORT FOR PROPOSED COMMUNITY FACILITIES DISTRICT NO. 97-3
(MCMILLIN OT A Y RANCH SPA ONE)
WHEREAS, the CITY COUNCIL of the CITY OF CHULA VISTA, CALIFORNIA (the
"City Council"), has declared its intention to initiate proceedings to create a Community Facilities
District pursuant to the terms and provisions of the "Mello-Roos Community Facilities Act of
1982", being Chapter 2.5, Part 1, Division 2, Title 5 of the Government Code of the State of
California (the "Act") and the City of Chula Vista Community Facilities District Ordinance
enacted pursuant to the powers reserved by the City of Chula Vista under Sections 3, 5 and 7 of
Article XI of the Constitution of the State of California (the "Ordinance") (the Act and the
Ordinance may be referred to collectively as the "Community Facilities District Law"). This
Community Facilities District shall hereinafter be designated as COMMUNITY FACILITIES
DISTRICT NO. 97-3 (MCMILLIN OTAY RANCH SPA ONE) (the "District"); and,
WHEREAS, this City Council directs, pursuant to the provisions of Section 53321.5 of
the Government Code of the State of California, the preparation of a report to provide more
detailed information relating to the proposed District, the proposed facilities to be financed
through the District, and estimate of the cost of providing such facilities (the "Special Tax
Report").
NOW, THEREFORE IT IS HEREBY RESOLVED:
SECTION 1. The above recitals are all true and correct.
SECTION 2. The Director of Public Works is hereby directed and ordered to prepare or cause
to be prepared the Special Tax Report to be presented to this City Council, generally setting forth
and containing the following:
FACILITIES: A full and complete description of the public facilities the
acquisition of which is proposed to be financed through the
District. .
COST ESTIMATE: A general cost estimate setting forth costs of acquiring such
facilities.
SPECIAL TAX: Further particulars and documentation regarding the rate and
method of apportionment for the authorized special tax.
I
61) - )
-- --...----...-- ...-- .".----.-..-" --------------.--- -
SECTION 3. The Special Tax Report, upon its preparation, shall be submitted to this City
Council for review, and such report shall be made a part of the record of the public hearing on
the Resolution of Intention to establish such District.
PREPARED BY: APPROVED AS TO FORM BY:
John P. Lippitt ~~~~
John Kaheny
Director of Public Works City Attorney
2
f(7) - ~
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RESOLUTION NO. /9..2.c2 f5
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA,
CALIFORNIA, DECLARING INTENTION TO ISSUE BONDS SECURED BY
SPECIAL TAXES TO PAY FOR THE ACQUISITION OF CERTAIN
FACILITIES IN COMMUNITY FACILITIES DISTRICT NO. 97-3 (MCMILLIN
OTAY RANCH SPA ONE)
WHEREAS, the CITY COUNCIL of the CITY OF CHULA VISTA, CALIFORNIA (the
"City Council"), has initiated proceedings to create a Community Facilities District pursuant to
the terms and provisions of the "Mello-Roos Community Facilities Act of 1982", being Chapter
2.5, Part 1, Division 2, Title 5 of the Government Code of the State of California (the "Act") and
the City of Chula Vista Community Facilities District Ordinance enacted pursuant to the powers
reserved by the City of Chula Vista under Sections 3, 5 and 7 of Article XI of the Constitution of
the State of California (the "Ordinance") (the Act and the Ordinance may be referred to
collectively as the "Community Facilities District Law") to finance the acquisition of certain
authorized facilities. This Community Facilities District shall hereinafter be referred to as
COMMUNITY FACILITIES DISTRICT NO. 97-3 (MCMILLIN OTAY RANCH SPA ONE) (the
"District")' and
, ,
WHEREAS, it is the intention of this legislative body to finance the acquisition of all or
a portion of such facilities through the issuance of bonds, such bonds to be secured by special
taxes to be levied on taxable property within the District, all as authorized pursuant to the
Community Facilities District Law.
NOW THEREFORE IT IS HEREBY RESOLVED:
SECTION 1. The above recitals are all true and correct.
SECTION 2. This City Council declares that the public convenience and necessity requires
that a bonded indebtedness be incurred to [mance all or a portion of certain public facilities as
proposed for the designated District.
SECTION 3. The purpose for the proposed debt is to finance the acquisition of authorized
public facilities consisting of the types of public facilities described in Exhibit A attached hereto
and incorporated herein by this reference.
SECTION 4. The amount of the proposed bonded indebtedness, including the cost of the
facilities, together with all incidental expenses, contingencies and financing costs is generally estimated to
be:
$13,500,000
1
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-,.....
SECTION 5. NOTICE IS GIVEN THAT ON THE 24TH DAY OF NOVEMBER, I998, AT
THE HOUR OF 6:00 O'CLOCK P.M. IN THE REGULAR MEETING PLACE OF THE LEGISLATIVE
BODY, BEING THE COUNCIL CHAMBERS, CITY HALL, LOCATED AT 276 E STREET, CHULA
VISTA, CALIFORNIA, A HEARING WILL BE HELD ON THE INTENTION OF THIS LEGISLATIVE
BODY TO INCUR A BONDED INDEBTEDNESS TO FINANCE PUBLIC FACILITIES IN THE
COMMUNITY FACILITIES DISTRICT BY THE LEVY OF A SPECIAL TAX. AT THE TIME AND
PLACE FIXED FOR SAID PUBLIC HEARING ANY PERSONS INTERESTED, INCLUDING
PERSONS OWNING PROPERTY WITHIN THE AREA, MAY APPEAR AND PRESENT ANY
MATTERS RELATING TO THE PROPOSED INTENTION AND NECESSITY FOR INCURRING THE
BONDED INDEBTEDNESS WHICH WILL PAY FOR ALL OR A PORTION OF THE PROPOSED
PUBLIC FACILITIES AND WHICH WILL BE SECURED BY A SPECIAL TAX TO BE LEVIED
WITHIN SAID COMMUNITY FACILITIES DISTRICT.
SECTION 6. Notice of the time and place of the public hearing shall be given by the City Clerk
in the following manner:
A. A Notice of Public Hearing shall be published in the legally designated newspaper of
general circulation, being the STAR NEWS, said publication pursuant to Section 6061 of
the Government Code, with said publication to be completed at least seven (7) days prior
to the date set for the public hearing.
B. A Notice of Public Hearing shall be mailed, postage prepaid, to each property owner
within the boundaries of the proposed District; such mailing to the property owners shall
be to the address as shown on the last equalized assessment roll. Such mailing shall be
completed at least fifteen (15) days prior to the date set for the public hearing.
PREPARED BY: APPROVED AS TO FORM BY:
C~ Yvt n<nsJ ~'.'h-.
John P. Lippitt John Kaheny
Director of Public Works City Attorney
2
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-
EXHIBIT A
DESCRIPTION OF TYPES OF FACILITIES
Street improvements including but not limited to site concrete and street surfacing
and appurtenant facilities including but not limited to storm drain, sewer and
landscaping improvements; a pedestrian bridge; sewer improvements; and
appurtenances and appurtenant work.
A-I
o£~3
COUNCIL AGENDA STATEMENT
Item: 9
Meeting Date: 10/20/98
ITEM TITLE: Resolution /'1 ~ 9 Accepting bids and awarding contract for street
repairs at the intersection of Malta A venue and Myra Court and an R. V. lot
off of Walnut Drive in the amount of $42,745.00 to Frank and Son Paving,
Inc. and appropriating funds
SUBMITTED BY: D",,"" ofPill>lio Wo,'" ~
REVIEWED BY: City Managerp~ ~ -z (4/Sths Vote: Yesßo-X)
Staff recommends that this item be continued to the meeting of October 27, 1998.
H:IHOMEIENGINEERIAGENDAIMALT A.FP
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COUNCIL AGENDA STATEMENT
Item / tl
Meeting Date 10/20/98
ITEM TITLE: ;9 'Resolution ) '1 J:J tl Approving Purchase Agreement and Escrow
Instructions by and between Western Salt Company (seller) and City of
Chula Vista (buyer) for the acquisition of 16.711 acres including street rights-
of-way and associated easements for the improvement of Hunte Parkway and
Olympic Parkway
ß Resolution ) 9:<.J J Approving Purchase Agreement and Escrow
Instructions by and between the City ofChula Vista (seller) and The Eastlake
Company LLC (buyer) for the acquisition of 16.711 acres including street
rights-of-way and associated easements for the improvement of Hunte
Parkway and Olympic Parkway
SUBMITTED BY: D;rectct ofPublio wo~
REVIEWED BY: City Manage~ ~ -?
(4/5ths Vote: Yes_NoX)
The development of the Eastlake Greens and the Arco Olympic Training Center (OTC) projects
required the construction of portions of Hunte Parkway and Olympic Parkway. This requirement
is documented through map conditions and Public Facility Financing Plans for the projects. In order
to complete the acquisition of the property by Eastlake for future right-of-way without entering into
condemnation proceedings, purchase agreements with Western Salt and Eastlake are necessary.
RECOMMENDATION: That the City Council approve the purchase agreements and escrow
instructions with Western Salt Company and Eastlake Company LLC for the acquisition of 16.711
acres for future right-of-way the improvement of Hunte Parkway and Olympic Parkway, purchasing
the property from Western Salt Company and selling it to Eastlake Company.
BOARDS AND COMMISSIONS RECOMMENDATIONS: Not applicable.
DISCUSSION:
The development of the Eastlake Greens and the OTC projects required the construction of Hunte
Parkway from Otay Lakes Road to Olympic Parkway and Olympic Parkway from Hunte Parkway
to Wueste Road. Portions of the improvements on Hunte Parkway between Otay Lakes Road and
South Greensview Drive and on Olympic Parkway from the OTC entrance to Wueste Road have
already been completed. The Eastlake Company is now prepared to complete the final segments of
the roadway improvements and has solicited the City's assistance in acquiring the remaining right-
of-way needed for the project. The Western Salt Company is willing to sell the property directly to
/0 -I
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I
Page 2, Item
Meeting Date 10/20/98
the City ofChula Vista in lieu of the City proceeding with a condemnation proceedings. In an effort
to facilitate the construction of the roadways, the City is entering into agreements that will transfer
the rights-of-way from Western Salt and simultaneously deed the property to The Eastlake
Company. Upon completion of the road improvements Eastlake would deed the right-of-way back
to the City and the City would accept the improvements into the City's maintained system. The
Eastlake Company is funding all costs incurred by the City in the transactions through escrow.
The following is a summary of the obligations provided for in the agreements:
WESTERN SAL TICITY OF CHULA VISTA AGREEMENT
· The purchase price of the property is $692,657.58.
· Seller (Western Salt) is conveying title subject to the exceptions identified in the title report. The
exceptions are considered minor and none are objectionable to the properties future use as a
public road. They include such items as existing easements, old CC&R's from 1939, and notice
that the property lies within an assessment district.
· Close of escrow is to occur within 2 days of the escrow holder's receipt of signed purchase
agreements
CITY OF CHULA VISTAlEASTLAKE AGREEMENT
· The purchase price of the property is $692,657.58.
· Seller (City of Chula Vista) is conveying title subject to the exceptions identified in the title
report.
· Close of escrow is to occur within 2 days of the escrow holder's receipt of signed purchase
agreements and immediately following the close of escrow of the Western Salt/City ofChula
Vista transaction.
· The Seller (City ofChula Vista) is not to pay any expenses of the escrow.
· The Buyer (The Eastlake Company) is to pay for all costs of the escrow of this agreement and
all of the City's costs incurred in the Western Salt/City ofChula Vista escrow including the
purchase price of the property.
Since the City is in the chain of title for the property, there is a risk of liability should hazardous
waste be found on the site. In general, if an entity is in the chain of title as an owner of the property,
that entity may be liable for hazardous waste clean up if it is needed on the site. Liability may be
found even if the entity never exercised control or management over the property. Thus, even
though the City will own the property only briefly, it will appear as a record owner should site clean
up ever be required. Certain steps have been taken to minimize the risk of liability. Eastlake has
indemnified the City and will hold the City harmless should hazardous waste become a liability.
Nonetheless, there is no guarantee that should clean-up costs become excessive, Eastlake's assets
will be sufficient to cover all costs. However, staff has reviewed an "Expanded Phase 1
Environmental Site Assessment" dated September 3,1998, for the southern portion of the Eastiake
J¿J" ;2
Page 3, Item
Meeting Date 10/20/98
Trails. This report revealed no evidence of recognized environmental conditions in connection with
the property. In addition, staffhas been to the site and observed no evidence of hazardous materials.
It should be noted that some barrels and debris that could be hazardous were discovered about 1,000
feet downstream in Salt Creek from the subject mitigated land and street right-of-way. However,
this material would not contaminate the subject property.
The City Attorney has approved this Agreement as to form.
FISCAL IMPACT:
The City's expenses of the escrow, including the purchase price ($692,657.58) and other incidental
closing costs, are being funded directly to escrow by The Eastlake Company prior to submission of
the purchase agreements to escrow by the City. No City funds are required for these transaction~
Attachments: ~ );. S
1. Purchase Agreement and Escrow Instructions Western Salt Company and City ofChula Vista '7
2. Purchase Agreement and Escrow Instructions City ofChula Vista and The Eastlake Company.
3. Letter from Assistant City Attorney to H.G. Fenton Company regarding voluntary sale in lieu of condemnation.
H:\HOMEIENGINEERIAGENDAIOL YMPl-l.DOC
)()~ 3
____...___._____ ____ _ __ _____ ,._____. _ ___._.________. _.__.__,_..__'_____mn_._.
RESOLUTION NO. )9~10
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING PURCHASE AGREEMENT AND
ESCROW INSTRUCTIONS BY AND BETWEEN WESTERN
SALT COMPANY (SELLER) AND CITY OF CHULA VISTA
(BUYER) FOR THE ACQUISITION OF 16.711 ACRES
INCLUDING STREET RIGHTS-OF-WAY AND ASSOCIATED
EASEMENTS FOR THE IMPROVEMENT OF HUNTE PARKWAY
AND OLYMPIC PARKWAY
WHEREAS, the development of the Eastlake Greens and the
Arco Olympic Training Center (OTC) projects required the
construction of portions of Hunte Parkway and Olympic Parkway which
requirement is documented through map conditions and Public
Facility Financing Plans for the projects; and
WHEREAS, in order to complete the acquisition of the
property by Eastlake for future right-of-way without entering into
condemnation proceedings, a purchase agreement with Western Salt is
necessary.
NOW, THEREFORE, BE IT RESOLVED the City Council of the
City of Chula vista does hereby approve Purchase Agreement and
Escrow Instructions by and between Western Salt Company (Seller)
and City of Chula vista (Buyer) for the acquisition of 16.711 acres
including street rights-of-way and associated easements for the
improvement of Hunte Parkway and Olympic Parkway, a copy of which
shall be kept on file by the City Clerk as Document No.eO q9-/9J
BE IT FURTHER RESOLVED that the Mayor of the City of
Chula vista is hereby authorized and directed to execute said
Purchase Agreement and Escrow Instructions on behalf of the city of
Chula Vista.
Presented by Approved as to form by
John P. Lippitt, Director of ~CW~
oh aheny, city Attorney
Public Works
H:\home\lorraine\rs\olympic
)¿J/J ---//10/9-:<0
PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS
WESTERN SALT COMPANY
("Seller")
and
CITY OF CHULA VISTA
("Buyer")
Dated: October _, 1998
JtJ~-~ L()q~!13
PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS
This PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS ("Agreement") is made
and entered into as of October _,1998 ("Effective Date"), by and between WESTERN SALT
COMPANY, a California corporation ("Seller"), and the CITY OF CHULA VISTA, a municipal
corporation ("Buyer"), with reference to the facts set forth below.
RECITALS
A. Seller is the owner of approximately 16.711 acres of that certain real property situated
in the City ofChula Vista, County of San Diego, State of California, as more particularly described
as Parcel A and Parcel B in Exhibit "A," attached hereto and incorporated herein (the "Property").
B. Buyer is a municipal corporation that is a political subdivision of the State of
California, and has the power of eminent domain. Buyer has determined that acquisition of the
Property is necessary for, among other things, right of way for construction of public streets known
as Hunte Parkway and Olympic Parkway. Accordingly, Buyer would, subject to compliance with
all applicable California laws, acquire the Property by power of eminent domain if necessary. Seller
has not previously marketed the Property or otherwise expressed any interest in its sale or
disposition. By executing and delivering this Agreement, Buyer and Seller agree to avoid the
necessity of such eminent domain proceedings and to cause Seller to convey the Property to Buyer,
on the terms and conditions set forth in this Agreement.
C. This Agreement is intended to set forth (i) a contract of purchase and sale between
Buyer and Seller, and (ii) joint escrow instructions ITom Seller and Buyer to CHICAGO TITLE
INSURANCE COMPANY ("Escrow Holder"), the consent of which appears at the end of this
Agreement.
NOW THEREFORE, in consideration of the mutual agreements set forth herein and for other
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Buyer agrees
to purchase and Seller agrees to sell the Property on the terms and conditions set forth below.
1. Agreement Of Purchase And Sale. Buyer agrees to purchase and Seller agrees to
sell the Property on the terms and conditions set forth herein.
2. Purchase Price. The purchase price ("Purchase Price") for the Property is Six
Hundred Ninety-Two Thousand Six Hundred Fifty-Seven Dollars and Fifty-Eight Cents
($692,657.58).
3. Escrow. The transaction contemplated by this Agreement shall be processed through
an escrow ("Escrow") established with Escrow Holder. Escrow shall be deemed opened ("Opening
of Escrow") upon Seller's delivery to Escrow Holder of a signed counterpart ofthis Agreement. The
term "Close of Escrow" and similar references shall mean the date that Seller's Grant Deed (defined
below) is filed for record in the Office of the County Recorder of San Diego County. The Close of
10/14/98
/¿//J ~
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Escrow shall occur on or before the date which is two (2) business days after Opening of Escrow.
The Close of Escrow may be extended beyond the Closing Date only by mutual agreement of the
parties, as evidenced by delivery to Escrow Holder of written instructions, signed by Seller and
Buyer, stating the agreed-upon date for the Close of Escrow.
4. Title. Seller shall convey the Property to Buyer subj ect only to those exceptions to
title identified in the preliminary title report for the Property attached hereto and incorporated herein
as Exhibit "B".
5, Deliveries By Buyer. The Purchase Price and any additional funds necessary to pay
Buyer's closing costs and prorations shall be paid in good funds on or before the Close of Escrow.
6. Deliveries By Seller. On or before the Close of Escrow, Seller shall sign,
acknowledge and deposit into Escrow a grant deed (the "Grant Deed") conveying the Property to
Buyer. Provided that all terms and conditions of this Agreement have been satisfied, Escrow Agent
shall record the Grant Deed at the Close of Escrow.
7. Close of Escrow. Escrow Holder shall close this Escrow on the Closing Date by (i)
filing for record Seller's Grant Deed and such other documents as may be necessary to procure the
Title Policy (defined below), and (ii) delivering funds and documents to the parties (as set forth
herein) when and only when each ofthe following conditions has been satisfied:
7.1 Deliveries. All funds and documents described in Sections 5 and 6 have
been delivered to Escrow Holder.
7.2 The Title Policy. Chicago Title Insurance Company is irrevocably
committed to issue a CLTA owner's policy of title insurance (Title Policy"), with liability in the
amount of the Purchase Price, insuring that the fee title to the Property vests in Buyer subject only
to: (i) the exclusions listed in the standard "Schedule of Exclusions from Coverage' of the Title
Policy; (ii) real estate taxes and assessments which are, as of the Close of Escrow, not delinquent;
(iii) the exceptions to title permitted pursuant to Section 4 above; and (iv) any liens or encumbrances
voluntarily imposed by Buyer.
8. Prorations. Expenses and Distributions.
8.1 Prorations. All real property taxes and assessments against the Property
shall be prorated between Buyer and Seller as of the Close of Escrow such that Seller is responsible
for paying all property taxes and assessments that accrue prior to the Close of Escrow. Escrow
Holder shall have no obligation in connection with this section.
8.2 Expenses of Escrow. The expenses of the Escrow shall be paid in the
following manner:
a. Seller shall pay: (i) one-half(Y2) ofthe Escrow fees and costs; (ii) all
documentary transfer taxes; and (iii) the premium for the CLTA Title Policy.
2 10/14/98
/Ô,A ~&
--.---....-.-.
b. Buyer shall pay: (i) one-half (Y2) of the Escrow fees and costs;
(ii) the cost of recording Seller's Grant Deed or other instruments executed by Seller conveying title
to the Property to Buyer; and (iii) the cost of any endorsements to the Title Policy.
8.3 Deliveries By Escrow Holder At Close Of Escrow. Promptly upon the Close
of Escrow, Escrow Holder is instructed to deliver funds and documents to the parties respectively
entitled to receive them. Escrow Holder shall instruct the recorder to mail Seller's Grant Deed to
Buyer. Unless otherwise expressly stated in this Agreement, all disbursements shall be made by
Escrow Holder's checks or immediately available funds.
8.4 Escrow Holder's General Provisions. The General Provisions of Escrow
Holder are attached hereto as Exhibit D and incorporated herein by reference. In the event of a
conflict between the provisions of this Agreement and the General Provisions, the provisions of the
Agreement shall control.
9. Assignment. Except for assignments to affiliate entities, neither Buyer nor Seller
may assign its rights under this Agreement without the written consent of the other party. An
assignment shall not release the assignor trom its obligations under this Agreement.
10. Seller's Representations and Warranties. Seller represents and warrants that (i)
Seller has no current actual knowledge, except as set forth below, that there has been released on or
beneath the Property any Hazardous Materials, and (ii) Seller has no current actual knowledge of any
environmental condition on the Property which would be violation of any applicable federal, state
or local law, ordinance or regulation relating to Hazardous Materials other than those petroleum
products, pesticides and other agricultural and commercial chemicals customarily used in
agricultural and commercial operations of the type currently conducted by Seller on Seller's overall
real property holdings in the vicinity of the Property all of which have been (subject to the following
disclosure) and will be used in accordance with all applicable laws and regulations. Seller is aware
and has disclosed to Buyer that the Western Salt Property has been used for fanning activities and
that pesticides of unknown quantities and types were used thereon. Seller is also aware and has
disclosed to Buyer, by copy of a letter trom EastLake Development Company dated January 12,
1995, that potential Hazardous Materials are located on the Western Salt Property immediately
northwest of the Olympic Training Center site. "Current actual knowledge", as used herein, means
actually known personally to Seller's president, Henry F. Hunte, or to one or both of its vice
presidents, Michael P. Neal and Allen M. Jones, without inquiry or investigation to enhance their
personal knowledge, and without imputation to any such individual of the knowledge of others,
whether or not any such others would be deemed agents of such individuals. The named individuals
have direct responsibility for administration and oversight of the Property. The named individuals
are solely for establishing an objective reference for measuring Seller's knowledge, and are not
making such representations and warranties in their individual capacities.
For purposes ofthis section of the agreement, the tenn "Hazardous Materials" means and
refers to any substance, material or waste which is or becomes (i) regulated by any local or regional
governmental authority the State of California or the United States Government as a hazardous
3 10/14/98
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,---_. ---_._-_.~_--.-- ._" ___u..__n_. __________.."_"
waste; (ii) is defmed as a "solid waste", "sludge", "hazardous waste," "extremely hazardous waste,"
"restricted hazardous waste," "Non-RCRA hazardous waste," RCRA hazardous waste," recyclable
material," under any federal, state or local statute, regulation, or ordinance, including, without
limitation, Sections 25115, 25117, 25117.9, 25120.2, 25120.5 or 25122.7, 25140, 25141 of the
California Health and Safety Code; (iii) defined as a "Hazardous Substance" under Section 25316
of the California Health and Safety Code; (iv) defined as a "Hazardous Material," "Hazardous
Substance" or "Hazardous Waste" under Section 25501 ofthe California Health and Safety Code;
(v) defined as a "Hazardous Substance" under Section 25281 of the California Health and Safety
Code; (vi) asbestos; (vii) petroleum products, including, without limitation, petroleum, gasoline,
used oil, crude oil, waste oil and any fraction thereof, natural gas, natural gas liquefied, natural gas,
or synthetic fuels, (viii) materials defined as hazardous or extremely hazardous pursuant to the
California Code of Regulations; (ix) polychlorinated biphenyls; (x) defined as a "Hazardous
Substance" pursuant to Section 311 of the Federal Water Pollution Control Act (33 U.S.C.
Section 1251 et seq.); (xi) defined as a "Hazardous Waste" pursuant to Section 1004 of the Federal
Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 ª ~., (xii) defined as a
"Hazardous Substance" or "Mixed Waste" pursuant to Section 101 of the Comprehensive
Environmental Response Compensation and Liability Act, 42 US.C. Section 9601 ª ~., and
regulations promulgated thereunder; (xiii) defined as a "Hazardous Substance" pursuant to
Section 401.15 of the Clean Water Act, 40 C.F.R. 116; or (xiv) defined as an "Extremely Hazardous
Substance" pursuant to Section 302 of the Superfund Amendments and Reauthorizations Act of
1986, 42 U.S.C. Section 11002 et~.
II. Agreements Not Involving Escrow Holder. The following provisions are
agreements between Buyer and Seller, and Escrow Holder shall have no obligation or liability in
connection therewith:
11.1 Condition Of Real Proper(y. Buyer represents that it has fully investigated
and inspected all aspects of the Property and agrees that, subj ect to the representations, warranties
and covenants of Seller expressly set forth herein, Buyer shall accept the Property in its "as is"
condition or status as of the Closing Date. Buyer acknowledges and agrees that except to the extent
expressly set forth herein, Seller has not made and is not making any express or implied warranties
or representations of any kind or character with respect to the Property, and Buyer warrants and
represents that it has not relied upon and will not rely upon, either directly or indirectly, any warranty
or representation of Seller not expressly set forth herein.
11.2 Specific Performance. The parties expressly agree that damages will not
adequately compensate Seller for any breach by Buyer of its obligations hereunder, and further agree
that Seller shall be entitled to specific performance of this Agreement.
11.3 Seller Not a Foreign Person. Seller warrants that no individual or entity
which, under the terms of this Agreement, will transfer United States Real Property Interests, as
defined in § 897(c) of the Internal Revenue Code, is a "foreign person" within the meaning of
§ 1445(f) ofthe Internal Revenue Code. Seller also warrants that Buyer as transferee will not be
required to withhold tax pursuant to § 26131 of the California Revenue and Taxation Code. Seller
4 10/14/98
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__n' _ .__ ___ _~___.________~.__.__________~..,,_,._ "._,_.
agrees to execute and deliver through Escrow prior to closing an affidavit similar in fonn and
substance to the affidavit attached hereto and incorporated herein as Exhibit D.
12. Other Provisions.
12.1 Brokers and Brokers' Commissions. Seller and Buyer each warrant and
represent that it has not contracted or otherwise obligated itself or the other party to pay any sums
as either commissions, finder's fees or other claims of a similar nature arising out of this Agreement,
and each agrees to hold the other harmless with respect to any breach on its part of this warranty and
representation. If Seller or Buyer engages the service of any broker or similar party for any matter
related to this Agreement, that party shall be responsible for all fees, payments and commissions
payable and shall indemnify and hold the other party harmless in connection therewith.
12.2 Advice trom Ind€Wendent Counsel. Each party hereto understands that this
Agreement is legally binding and may affect such party's rights. Each represents to the others that
it has received legal advice trom counsel of its choice regarding the meaning and legal significance
of this Agreement and that it is satisfied with its legal counsel and the advice received trom that
counsel.
12.3 Attorney's Fees. In the event any action shall be instituted between Buyer
and Seller in connection with this Agreement, the party prevailing in such action shall be entitled,
in addition to damages, injunctive relief or other relief, to recover trom the other party all of its costs
of action, including, without limitation, attorneys' fees and costs as fixed by the court therein.
12.4 Amendments. This Agreement may be amended, supplemented or modified
only by a written amendment executed by Seller and Buyer. No modification, waiver, amendment,
discharge or change of this Agreement shall be valid unless the same is in writing and signed by the
party against which the enforcement of such modification, waiver, amendment, discharge or change
is or may be sought.
12.5 Notices. Unless otherwise specifically provided herein, all notices, demands
or other communications given hereunder shall be in writing and shall be deemed to have been duly
delivered upon personal delivery, or by Federal Express (or similar reputable express delivery
service), or by telecopier transmission with back-up copy mailed the same day, or as of the second
business day after by United States certified mail, return receipt requested, postage prepaid,
addressed as follows:
5 10114/98
)~/J ~r
.- ----_._-_._-------_.__..._._~.,--_.__.-
If to Seller, to:
Western Salt Company
7220 Trade Street, Suite 300
San Diego, California 92121
Telephone: (619) 566-2000/Telecopier: (619) 271-7541
Attention: Michael P. Neal
If to Buyer, to:
City ofChula Vista
276 Fourth Avenue
Chula Vista, CA 91910
Telephone: (619) 691-50311Telecopier: (619) 409-5864
Attention: City Manager
If to Escrow Holder, to:
Chicago Title Company
925 B Street
San Diego, California 92101
Telephone: (619) 544-6250/Telecopier: (619) 544-6229
Attention: Shelva Molm
12.6 Construction of Agreement. The agreements contained herein shall not be
construed in favor of or against either party, but shall be construed as if both parties prepared this
Agreement.
12.7 Counterparts and Authority. This Agreement may be executed in multiple
counterparts, each of which shall constitute an original hereof, and all of which taken together shall
constitute one and the same binding Agreement. Each party executing this Agreement represents
that such party has the full authority and legal power to do so.
12.8 Governing Law and Forum Selection. This Agreement shall be construed
under and enforced in accordance with the laws of the State of California except to the extent Federal
laws preempt the laws of the State of California. In any action brought under or arising out of this
Agreement, each party hereby consents to the jurisdiction of a competent court within the State of
California, agrees that the forum for such action or actions shall be a court of competent jurisdiction
within the County of San Diego, State of California, and consents to service of process by any means
authorized by California law.
12.9 No Waiver. A waiver by either party of a breach of any of the covenants,
conditions or agreements under tlùs Agreement to be perfonned by the other party must be in writing
and shall not be construed as a waiver of any succeeding or preceding breach of the same or other
covenants, agreements, restrictions or conditions herein contained. No waiver of any default by
6 10/14/98
)tJ/J ~) ¿J
Buyer or Seller hereunder shall be implied from any omission by the other party to take any action
on account of such default if such default persists or is repeated, and no express waiver shall affect
a default other than as specified in such waiver. The consent or approval by Buyer or Seller to or
of any act by the other party requiring the consent or approval of the first party shall not be deemed
to waive or render unnecessary such party's consent or approval to or of any subsequent similar acts
by the other party.
12.10 No Warranties. Except as otherwise specifically provided herein, neither
Buyer nor Seller has made any representations, warranties or agreements by or on behalf of either
party to the other party as to any matters concerning the Property. Each party expressly waives any
rights of rescission and all claims for damages by reason of any statement, representation, warranty,
promise or Agreement, if any, not contained in this Agreement.
12.11 Possession. Possession of the Property shall be delivered to Buyer upon the
Close of Escrow.
12.12 Severability. In the event that any phrase, clause, sentence, section,
paragraph, portion of this Agreement shall become illegal, null or void or against public policy, for
any reason, or shall be held by any court of competent jurisdiction to be illegal, null or void or
against public policy, the remaining portions of this Agreement shall not be affected thereby and
shall remain in force and effect to the fullest extent permissible by law.
12.13 Survival of Warranties. Unless expressly stated herein to the contrary, all
representations and warranties shall survive the Close of Escrow ofthis Agreement and any earlier
termination ofthis Agreement.
12.14 Successors and Assigns. Subject to the restrictions and prohibitions on
assignment set forth in this Agreement, each and all of the covenants and conditions of this
Agreement shall inure to the benefit of and shall be binding upon the successors-in-interest, assigns,
and legal representatives of the parties hereto.
12.15 Captions. The caption headings for the sections of this Agreement are for
convenience only and shall not be considered to limit, amplify or define the terms or provisions
hereof.
12.16 Time of Essence. Time is of the essence of each and every provision of this
Agreement.
12.17 Cooperation and Further Documentation. Seller and Buyer agree to
cooperate to consummate the transactions set forth herein, and each agrees to take such action as is
reasonably required of it.
12.18 No Third Party Beneficiary. This Agreement is intended solely for the
benefit of Seller and Buyer.
7 10/14/98
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10/15/1998 16:18 619271 7541 HG FENTON COMPANY PAGE 02
12.19 Entire A!!Teement. Thìs Agreement, including its exhibits, constitutes the
entire Agreement between the parties pertaining to the subject matter hereof.
IN WITNESS WHEREOF, the parties, individually or through their authorized
representatives, have executed this Agreement as of the date of this Agreement. Each individual
executing this Agreement warrants and represents that he or she has the power and authority to
execute this Agreement on behalf of the party for whom the execution is made.
SELLER: BUYER:
WESTERN SALT COMPANY, CITY OF CHULA VISTA,
a California corporation a municipal corporation
~C)~~~~ By:
Herny F. Hunt Shirley Horton
Chainnan of the Board/Chief Executive Mayor
Officer
By: .n-¡~ x./ Approved as to fonn and legality:
Michael P. Neal
Vice President - R.E. Portfolio John M. Kaheny
Management & Development
By:
Ann Moore
Assistant City Attorney
[The above signatures must be notarized,]
C;\DMS\BCF\1319709,04
/1/4" ;;2-
..~._. -
CONSENT OF ESCROW HOLDER
The undersigned Escrow Holder hereby agrees to (i) accept the foregoing Agreement, (ii) be
Escrow Holder under the Agreement, and (iii) be bound by the Agreement in the performance of
its duties as Escrow Holder; provided, however, the undersigned shall have no obligations,
liability or responsibility under (a) this Consent or otherwise, unless and until the Agreement,
fully signed by the parties, has been delivered to the undersigned, or (b) any amendment to said
Agreement unless and until the same is accepted by the undersigned in writing.
Dated: ,1998
CHICAGO TITLE COMPANY ("Escrow Agent")
By:
Its:
jtJA-//J
- ---_._----~--~--~,._..__.._._..._.-
EXHmIT "A"
PROPERTY DESCRIPTION
PARCEL A:
PARCEL 2 OF PARCEL MAP NO. 18064, IN THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO,
STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF FILED IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY, WL Y 6, 1998.
PARCELB:
BEING A PORTION OF THE REMAINDER PARCEL OF PARCEL MAP 18064 IN THE CITY OF CHULA
VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, SAID MAP FILED IN THE OFFICE OF THE
RECORDER OF SAID COUNTY AND STATE, SAID PORTION BEING MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST NORTHERLY CORNER OF PARCEL 2 OF PARCEL MAP 18064, FILED IN
THE OFFICE OF THE RECORDER, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, THENCE
SOUTHERLY ALONG THE BOUNDARY OF SAID PARCEL 2, SOUTH 15'23'09" WEST 62.88 FEET;
THENCE LEAVING SAID BOUNDARY NORTH 09' 44'21" WEST 37.97 FEET; THENCE NORTH
02 '06'23" WEST 73.16 FEET; THENCE NORTH 19' 49'17" WEST 58.88 FEET; THENCE NORTH
18'34'47" WEST 31.48 FEET; THENCE NORTH 24'53'27" EAST 19.64 FEET; THENCE NORTH
41 '13'38" EAST 29.69 FEET; THENCE NORTH 53' 18'30" EAST 39.81 FEET; THENCE NORTH
29'02'56" EAST 43.81 FEET; THENCE NORTH 08'09'51" EAST 82.85 FEET; THENCE NORTH
04 '52'35" WEST 94.87 FEET; THENCE NORTH 20' 56'45" WEST 92.72 FEET; THENCE NORTH
04 '06'38" WEST 68.29 FEET; THENCE NORTH 24 '27'48" EAST 23.53 FEET; THENCE NORTH
64'29'32" EAST 49.13 FEET; THENCE NORTH 42'17'58" EAST 20.42 FEET; THENCE NORTH
24'39'28" EAST 37.15 FEET; THENCE NORTH 12'04'25" EAST 85.78 FEET; THENCE NORTH
02'03'27" EAST 46.19 FEET; THENCE NORTH 89'56'51" EAST 145.40 FEET; THENCE SOUTH
07'39'31" EAST 76.27 FEET; THENCE SOUTH 19'58'53" EAST 79.34 FEET; THENCE SOUTH
22' 13'05" EAST 66.59 FEET; THENCE SOUTH 09' 11'00" EAST 32.34 FEET; THENCE SOUTH
15'53'00" EAST 83.00 FEET; THENCE SOUTH 18'32'23" EAST 43.99 FEET; THENCE SOUTH
23' 17'55" EAST 50.06 FEET; THENCE SOUTH 28'58'56" EAST 40.42 FEET; THENCE SOUTH
39'25'54" EAST 23.44 FEET; THENCE SOUTH 69'09'24" EAST 82.57 FEET; THENCE SOUTH
43'12'04" EAST 16.60 FEET; THENCE SOUTH 02'09'19" EAST 12.84 FEET; THENCE SOUTH
24 '39'28" WEST 21.08 FEET; THENCE SOUTH 38' 12'50" WEST 14.82 FEET; THENCE SOUTH
19'21'11" WEST 72.57 FEET; THENCE SOUTH 03'49'42" WEST 60.76 FEET; THENCE SOUTH
13'29'56" EAST 131.41 FEET; THENCE SOUTH 09'55'34" EAST 38.34 FEET; THENCE SOUTH
03'27'39" EAST 73.89 FEET; THENCE SOUTH 08'38'24" WEST 26.63 FEET; THENCE SOUTH
32'12'46" WEST 15.19 FEET; THENCE SOUTH 66'35'17" WEST 10.40 FEET; THENCE SOUTH
89' 13'08" WEST 10.23 FEET TO A POINT ON THE EASTERLY BOUNDARY OF SAID PARCEL 2;
THENCE NORTHERLY ALONG SAID BOUNDARY NORTH 38' 59'37" WEST 43.60 FEET; THENCE
NORTH 71 '59'37" WEST 445.00 FEET TO THE POINT OF BEGINNING
)&/1 -/Ý
-. .-.-...--<-.- ..~._------- --------.....-
EXHIBIT "B"
PRELIMINARY TITLE REPORT
IIBruce - Attach revised PTR that removes item 17\1
.-/
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--- - --- - --~_..~-~.._--- .
EXHIBIT "C"
Grant Deed
RECORDING REQUESTED BY AND )
WHEN RECORDED MAIL TO: )
)
City of Chula Vista )
276 Fourth Avenue )
Chula Vista, CA 91910 )
Attn: City Manager )
)
Above Space for Recorder's Use
Tax Parcel Number -
GRANT DEED
The undersigned Grantor declares:
Documentary transfer tax is $
( ) Computed on full value of property conveyed, or
( ) Computed on full value less value of liens and
encumbrances remaining at time of sale.
( ) Unincorporated area: ( ) City of
FOR VALUABLE CONSIDERA nON, receipt of which is hereby acknowledged,
WESTERN SALT COMPANY, a California corporation ("Grantor"), hereby grants to the CITY
OF CHULA VISTA, a municipal corporation ("Grantee"), all of its rights, title, and interest in the
following described real property situated in the City of Chula Vista, County of San Diego, State of
California:
See Exhibit "A" attached hereto and incorporated herein by this reference.
/ C.4 -If;
IN WITNESS WHEREOF, said Grantor has caused its name to be affixed hereto and this
instrument to be executed by its officers thereunto duly authorized.
GRANTOR:
WESTERN SALT COMPANY,
a California corporation
By:
Henry F. Hunte
Chainnan of the Board/Chief Executive
Officer
By:
Michael P. Neal
Vice President - R.E. Portfolio
Management & Development
/tl/J -/7
EXHIBIT "A" to GRANT DEED
PROPERTY DESCRIPTION
PARCEL A:
PARCEL 2 OF PARCEL MAP NO. 18064, IN TIlE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE
OF CALIFORNIA, ACCORDING TO MAP TIlEREOF FILED IN TIlE OFFICE OF TIlE COUNTY RECORDER
OF SAN DIEGO COUNTY, mLY 6,1998.
PARCEL B:
BEING A PORTION OF TIlE REMAINDER PARCEL OF PARCEL MAP 18064 IN TIlE CITY OF CHULA VISTA,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, SAID MAP FILED IN TIlE OFFICE OF THE RECORDER
OF SAID COUNTY AND STATE, SAID PORTION BEING MORE P ARTICULARL Y DESCRIBED AS FOLLOWS:
BEGlNNlNG AT TIlE MOST NORTIlERL Y CORNER OF PARCEL 2 OF PARCEL MAP 18064, FILED IN THE
OFFICE OF THE RECORDER, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, THENCE SOUTHERLY
ALONG TIlE BOUNDARY OF SAID PARCEL 2, SOUTII 15'23'09" WEST 62.88 FEET; TIlENCELEA VlNGSAID
BOUNDARY NORTII 09' 44'21" WEST 37.97 FEET; THENCE NORTH
02'06'23" WEST 73.16 FEET; THENCE NORTH 19'49'17" WEST 58.88 FEET; TIlENCE NORTII
18'34'47" WEST 31.48 FEET; THENCE NORTIl24'53'27" EAST 19.64 FEET; THENCE NORTH
41 '13'38" EAST 29.69 FEET; THENCE NORTIl53' 18'30" EAST 39.81 FEET; THENCE NORTII
29'02'56" EAST 43.81 FEET; THENCE NORTII 08'09'51" EAST 82.85 FEET; THENCE NORTH
04 '52'35" WEST 94.87 FEET; TIlENCE NORTII 20' 56'45" WEST 92.72 FEET; TIlENCE NORTH
04'06'38" WEST 68.29 FEET; TIlENCE NORTIl24'27'48" EAST 23.53 FEET; THENCE NORTII
64'29'32" EAST 49.13 FEET; THENCE NORTIl42'17'58" EAST 20.42 FEET; THENCE NORTII
24'39'28" EAST 37.15 FEET; TIlENCE NORTIlI2'04'25" EAST 85.78 FEET; THENCE NORTH
02 '03'27" EAST 46.19 FEET; TIlENCE NORTH 89' 56'51" EAST 145.40 FEET; THENCE SOUTH
07'39'31" EAST 76.27 FEET; TIlENCE SOUTH 19'58'53" EAST 79.34 FEET; THENCE SOUTH
22' 13'05" EAST 66.59 FEET; TIlENCE SOUTH 09' 11'00" EAST 32.34 FEET; TIlENCE SOUTII
15'53'00" EAST 83.00 FEET; THENCE SOUTH 18'32'23" EAST 43.99 FEET; THENCE SOUTII
23' 17'55" EAST 50.06 FEET; THENCE SOUTIl28'58'56" EAST 40.42 FEET; THENCE SOUTII
39'25'54" EAST 23.44 FEET; TIlENCE SOUTII 69'09'24" EAST 82.57 FEET; THENCE SOUTH
43'12'04" EAST 16.60 FEET; THENCE SOUTII 02'09'19" EAST 12.84 FEET; TIlENCE SOUTH
24'39'28" WEST 21.08 FEET; THENCE SOUTII 38' 12'50" WEST 14.82 FEET; THENCE SOUTII
19'21'11" WEST 72.57 FEET; TIlENCE SOUTII 03'49'42" WEST 60.76 FEET; THENCE SOUTII
13'29'56" EAST 131.41 FEET; TIlENCE SOUTH 09'55'34" EAST 38.34 FEET; TIlENCE SOUTII
03'27'39" EAST 73.89 FEET; TIlENCE SOUTH 08'38'24" WEST 26.63 FEET; THENCE SOUTII
32'12'46" WEST 15.19 FEET; THENCE SOUTH 66'35'17" WEST 10.40 FEET; TIlENCE SOUTH
89' 13'08" WEST 10.23 FEET TO A POINT ON THE EASTERLY BOUNDARY OF SAID PARCEL 2;
TIlENCE NORTIlERL Y ALONG SAID BOUNDARY NORTH 38' 59'37" WEST 43.60 FEET; TIlENCE NORTH
71 '59'37" WEST 445.00 FEET TO TIlE POINT OF BEGINNING
/JJ/J -17'
....~-_._-_._-
EXHIBIT "D"
CERTIFICATE OF NON-FOREIGN STATUS
(U.S. PARTNERSHIP TRANSFEROR)
Section 1445 of the Internal Revenue Code of 1986, as amended ("Code"), provides that a
transferee (buyer) of a U.S. real property interest must withhold tax if the transferor (seller) is a
foreign person. Sections 18805 and 26131 of the California Revenue and Taxation Code provide
that a transferee (buyer) of a California real property interest must withhold tax if withholding is
required by Section 1445 of the United States Internal Revenue Code.
To infonn the City of Chula Vista, a municipal corporation ("Transferee"), that
withholding of tax under Section 1445 of the Code is not required upon disposition of certain
real property to the Transferee by the Western Salt Company, a California corporation
("Transferor"), the undersigned hereby warrants, represents and certifies the following on behalf
of the Transferor:
1. The undersigned is the duly and acting [Title of Officer
executing Certificate] of the Transferor.
2. The Transferor is not a foreign corporation, foreign partnership, foreign trust,
or foreign estate (as those tenns are defined in the Internal Revenue Code and Income Tax
Regulations), but rather is a partnership fonned under the laws of one ofthe United States.
3. The Transferor's U.S. employer identification number is
4. The Transferor's office address is
5. The Transferor understands that this certification may be disclosed to the
Internal Revenue Service by the transferee and that any false statement contained herein could be
punished by fine, imprisonment, or both.
[Remainder of Page Intentionally Left Blank]
/t1/J ~/~
.. . -.-...-.- ~- +-- - ---. - ._...._------~--_..._~_....._-----_._-_.,-,-"--,._",.-...--.."
Under penalty of perjury the undersigned declares that the undersigned has examined
this certification and to the best of its knowledge and belief it is true, correct, and complete.
Dated:
WESTERN SALT COMPANY,
a California corporation
By:
Henry F. Hunte
Chairman of the BoardlChiefExecutive
Officer
By:
Michael P. Neal
Vice President - R.E. Portfolio
Management & Development
NOTICE TO TRANSFEREE: You are required by law to retain this Certificate until the end of
the fifth taxable year following the taxable year in which the transfer takes place and to make it
available to the Internal Revenue Service if requested during that period.
/!)/! r;¿t?
_._~..H_'___~_"_.._.~·. .---,~-,._._-.---_. -~-,~ ----~--_.._--~._---~--_.-
~I!~
:. ~--~
............:::--~
--- - - . r¡
CIlY OF þ. T'"" !:'CHMENT -3
CHULA VISTA
;:J"PARTMENT OF PUBLIC WORKS
ENGIN"mING DIVISION
October 7, ] 998
Michael P. Neal, Vice President
Real Estate PortÎolio Management and Development
H. G. Fenton Company
7720 Trade S1:re:t, Suite 300
San Diego, CA 92121-2327
RE: Property; Parcel 2 and a Portion of Remainder Parce] of Parcel Map 18064 (16.71
acres)
Public Project(s): Off-Site Conditions Eastlake Greens TM, 90-6, Pennit #15200
U.S. Olympic Training Center, PFFP
Dear Mr. Neal:
A5 you have been advised, the real property you own referenced above is necessary for road
improvement projects for Orange Avenue (Hunte Parkway to Wueste Road). For these reasons, you
have been approached to discuss a purchase of the property. We understand that yOur willingness to
proceed with negotiations for a voluntary sale of the property is based on representations that, failing
such a voluntary sale, an involuntary condemnation of the property would be necessary. You have asked
us to confIrm this to you in writing.
As a municipal agency, we have the power of eminent domain pursuant to and inter alia, California
Government Code Sections 37350.5, 40404 and 66410, et seq. and Title Seven Eminent Domain Law,
to acquire the property for public purposes. Since your property is necessary for the above-described
projects, we would proceed to condemn the property under such authority if a voluntary sale of the
property cannot be negotiated.
Weare hopeful, however, that an agreement for a voluntary sale in lieu of condemnation, can be
reached.
Sincerely, .
~~~
eli' . . Swanson
Depnty Public Works Director/City Engineer
cc: Ann Moore, Assistant City Attorney
Bruce N. Sloan, V.P. - Eastlake Company
H:\.qCn,f"::."'.£NGADMIN\!'E...~_.;-7 ~ jtJ/J ~~I
VIA FAX 271-7541 10/7/98
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RESOLUTION NO. /9:<..J)
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING PURCHASE AGREEMENT AND
ESCROW INSTRUCTIONS BY AND BETWEEN THE CITY OF
CHULA VISTA (SELLER) AND THE EASTLAKE COMPANY
LLC (BUYER) FOR THE ACQUISITION OF 16.711
ACRES INCLUDING STREET RIGHTS-OF-WAY AND
ASSOCIATED EASEMENTS FOR THE IMPROVEMENT OF
HUNTE PARKWAY AND OLYMPIC PARKWAY
WHEREAS, the development of the Eastlake Greens and the
Arco Olympic Training Center (OTC) projects required the
construction of portions of Hunte Parkway and Olympic Parkway which
requirement is documented through map conditions and Public
Facility Financing Plans for the projects; and
WHEREAS, in order to complete the acquisition of the
property by Eastlake for future right-of-way without entering into
condemnation proceedings, a purchase agreement with The Eastlake
Company LLC is necessary.
NOW, THEREFORE, BE IT RESOLVED the city Council of the
city of Chula Vista does hereby approve Purchase Agreement and
Escrow Instructions by and between the city of Chula vista (Seller)
and The Eastlake Company LLC (Buyer) for the acquisition of 16.711
acres including street rights-of-way and associated easements for
the improvement of Hunte Parkway and Olympic Parkway, a copy of
which shall be k~pt on file by the City Clerk as Document No.____
-' c..O q S-' /9"'f'.
BE IT FURTHER RESOLVED that the Mayor of the City of
Chula Vista is hereby authorized and directed to execute said
Purchase Agreement and Escrow Instructions on behalf of the city of
Chula vista.
Presented by Approved as to form by
John P. Lippitt, Director of ~~~e~Attorney
Public Works
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PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS
CITY OF CHULA VISTA
("Seller")
and
THE EASTLAKE COMPANY, LLC
("Buyer")
Dated: OCTobc:r _,199g
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PURCHASE AGREEMENT AND ESCROW INSTRUCTlONS
This PURCl!ASE AGREEMENT AND ESCROW INSTRUCTIONS ("Agreement") is made
and entered into as of October _' 1998 ("Effecnve Date"), by and berween the CITY OF CHULA
VISTA, a municiplÙ corponnion ("Seller"), and THE EASTLAKE COMPANY LLC, II CalifonUa
limited liability comp!U\y ("!3uyer"), with reference to ¡he facts set forth below.
REcrT AT S
A. Pursuant ¡O a purchase agreement between the Western Salt Company and Seller
("Western Agreement"). conc¡.¡¡ren¡ with the Close of Escrow (defined below), Seller will be the
owner of approximately 16.711 ¡¡cres of that certain real property situated in the CitY ofChula Vista,
County of San Diego, State of California, as more particularly àescnbed as Parcel A !U\d Parcel B
in Exhibit "A." anached hereto and incorporated herein (the "Propeny").
B. auya: d,,~j¡,,~ to acquire tbe Property in ordeno, among other things. cons!!UCl HlUlte
Parkway and Olympic Parkway.
C. This Agreement is intended to set forth (i) a contract of purchase !U\d sale between
Buyer and Seller. and (ii) joint escrow iIlStrUctions from Seller and Buyer to CHICAGO TITLE
INSURANCE COMPANY ("Escrow Holder"), the consent of which appears at the end of this
Agreement
NOW T.HEREFORE, in considerllnon of the muruiÙ agreementS set forth herein and for other
valUllble consideration, the receipt and sufficiency of which are hereby acknowledged, Buyer agrees
to purchase !U\d Seller IIgrees to sell the Property on the terms !U\d conditions set forth below.
1- Arreemrnt Of Purehase And Sale. Subject to the satisfllction of the conditions
precedent set forth below, Buyer agrees to purc)¡¡¡se !U\d Seller agrees to sell the Propert)' on the
terms and conditions set forth herein. The Agret:mem and the pllníes obligll!Íons herelUlder are
subject to the concurrent conveyance of the Propert)' to Seller pursuant to the Western Agreement.
In the event the escrow under the Western Agreement is terminllted, Buyer and Seller shlÙl be
relellsed for 1111 obligations and liabilities under this Agreement.
2. Purchase Price. The purchllse ppce ("f'urchllse Price") fOT the Property is SIX
HlUldred Ninety-Two Thousand Six Hundred Fifty-Seven DolllU's and Fifty-Eight Cenfs
($692,657.58).
3. Escrow. The tTansaction contemplated by this Agreement shall be processed through
!U\ escrow ("Escrow") establis!¡ed with EScrow Holder. Escrpw shall be deemeà opened ("Opening
of Escrow") upon Seller's delivery to Escrow Hplder of II signeà COlUlterplln of this Agreement.
Prior to the Opening of Escrow or the opening of escrow for the Western Agreement. Buyer shall
deli ver to Escrow Hol4er II signed counterpart of this Agreement and the Purchase Price. The ¡enn
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"Close of Escrow" and similar references shall mean the date that Seller's Grant Deed (defmed
below) is filed for record in the Office of the County Recorder of San Piego COtlllty. The Close of
Escrow shall occo¡ on or before the date which is TWO (2) bllsiness days after Opening of Escrow and
concllrrent with the close of eScrow for the Western Agreement ("Closing Date"). The Close of
Escrow may be extended beyond the Closing Pate only ¡'y mlltual Agreement of the parties, as
evidencec! by delivery to Escrow Holder of written instnu:tions, signed by Seller and Buyer, stating
the agreec!-Upon dine for the Close of Escrow.
4. IiIk· Seller shall convey the Property to Hilyer subject only to those exceptions to
tir!e identified in the prelimin;¡ry title report for the PropertY IItfllChed hereto IIIld incolporated herein
as Exhibit "8".
5. Deliveries By fluver. The Po¡chllSe Price s ¡lIll be paid in good fund$ in IIccordance
with Paragraph 3 of this Agreement. Any IIdditional f¡¡nds necessary to pay the closing costs and
prorations shall be paid in good funds on or before the Close of Escrow and concurrent with me
transfer of the Propeny ftom Seller to Buyer.
6. Deliveries By Seller. On or before the Close of Escrow, Seller shall sign,
acknowledge and deposit imo Escrow a grant deed (the "Grant Deed") conveying the Property to
Buyer. Provided that all terms and conditions of this Agreement have been slltisfied, Escrow Agent
shall record ¡he Grant Deed at the Close of Escrow.
7. Close of Escro!". Escrow Holder shall close this Escrow on the Closing Date by (i)
filing for record Seller's Grant Deed and such other documents as may be necessary to proco¡e the
Title Policy (defined below), and (ii) delivering funds and docaments to the parties (as set forth
herein) when and only when each of the following con~rions has been satisfied:
7,1 Deliveries. All funds and docaments described in Sections 5 and 6 have
been delivered to Escrow Holder.
7.2 The Title Policy. Chicago Title Insurance Company is irrevocllbly
comrnined to iss!!e a CL T A owner's policy ohitle insurance ('Title Policy"), with lillbility in the
1IJt10unt of the PurchllSe Price, insuring that the fee title to the Property vests in Buyer subject only
to: (i) the exclusions listed in the standllrd "Schedule of Exclusions from Coverage' of Ihe Title
Policy; (ii) real eSUlte taxes and IIssessments which lire, lIS of the Close of Escrow, not delinquent;
(iii) the exceptions to title permitted pursuant to Section 4 abo"e; and (iv) any liens or encllITlbrances
vol¡¡ntarily imposed by Buyer.
7.3 Sale of Pro.:nenv to The CilY. Concurrent with the Close of Escrow, the
Western Salt Company conv"ys the Property to Seller.
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8. Prorations. Expenses and Dístributions.
8.1 Prorations. Buyer shall pay 1111 real property tues and assessments against
the Property as of the Close of Escrow, including all propeny tues and assessments that aCCIUe after
the Close of Escrow. Escrow Holqer shall have no obligation in cOMecnon with this secTion.
8.2 Ex,penses of Escrow. The expenses of the '¡;:scrow shall be paid in the
following manner:
a. Seller shall nOt PilY any expenses.
b. Buyer shan pay: (j) The Escrow fees and costs; (ii) the cost of
recording Seller's Grant Deed or other instruments executed by Seller conveying title to the Property
to Buyer; (iii) the premilWl for the CLTA Title Policy; (iv) the COST of any endorsements to the Title
Policy; (V) all documentary transfer tUes; ¡¡nd (vi) ¡¡ny and all other costs :relating to the tr¡¡nsfer of
the ProperlY from Seller to Buyer that are assessed arising from the sale of the Property to Buyer that
are assessed against Seller subsequent to me Close of Escrow. In ad4ition, Buyer shall PIlY all of the
costs reqlÜred to be incurred by Seller pursuant to Sections 5, 8.1 ¡¡nd 8.2(b) of the Western
Agreement, upon the request of the Seller. This Section shall survive the Close of Escrow.
8.3 Deliveries Bv Escrow Holder AT Close Of Escrow. Promptly upon the Close
of Escrow, Escrow Holder is instrUcted to deliver fi¡nds <ma aocuments to the pllrties respectively
entitled to recei ve them. Escrow Holder shall instlUct the County Recorder to mail Seller's Grant
Deed to Buyer. Unless otherwise expressly stilted in this Agreement, all disbursements shan be
made by Escrow Holaer's checks or inunediately aVllilable funds.
8-4 Escrow Holder's General Proyisions. The General Provisions of Escrow
Holder are attached hereto as Exhibit D ¡¡nd incotporaœd herein by reference. In the event of a
conflict between the provisions oftrus Agreement and the General Provisions, the provisions of the
Agreement sha1l control.
9. Aui¡¡D meDt. Except for assignments to affiliate entities, neither Buyer nor Seller
may IIssign its rights under this Agreement without the written consent of the other pllrty. An
assignmem shllll not release the assignor ftom its obligations under this Agreement.
10. Arreemenn Not Invo]v~nr Escrow Holder. The following provisions are
agreements between Buyer ¡¡nd Seller, ¡¡nd Escrow Holder shilll have no obligation or liability in
cOMecnon therewith:
10.1 CondiTion Of Real PrQpe~. Buyer represents that it has fully investigated
and inspectea 1111 aspects of the PropertY and agrees that, subject to the representations, warr¡¡nties
and covenants of Seller expressly set fOrlh herein, Buyer shall accept the Property in its "as is"
condition or status as of the Closing Date. Buyer acknowledges ana IIgrees that except to the eJ\.lent
expressly set fonh herein, Seller has not made and is not milking any express or implied warranties
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Oct-15-9B 02:25pm F rom-LUCE FORWARD SD1 (5191235-3541 519-232-B311 T-m P05/IT HIS
or represellt~tions of any kind or character with respect to the Property, and Buyer warrants and
represents that it h~s not relied upon and will not rely upon, either directly or indirectly, any W'lmlnty
Or representation of Seller not expressly set forth herein.
10.2 Specific Perfonnance. The parties expressly agree that damages will not
adequiltely compeps~te Seller for any brellCh by Buyer ofits obligations hereunder, and further ilgree
thilt Seller shilll be entitled to specific performam:e of this Agreement.
11. O[her Provisions.
11.1 "ßfOkers and Rrokers' Commissions. Seller and Buyer e¡¡ch warrant and
represent that it has not conrrilcted or otherwise obligated itself or tbe other ParIY [0 pay any sums
as either commissions, finders fees or other claims of a similar namre arising out of this Agreement,
and each agrees to bold the other hlUIIlless with respect to any breacb on its part of this warranty and
repr;:sentiltion. If Seller or Buyer engages the service of any broker or similar party for any matter
relilted to this Agreement, that party shall be responsible for all fees, payments amI! commissions
payable and shal] indemnify and bold the otber parry harmless in connection therewith.
11.2 Advice from (:r>d~endent Counse1. E¡¡cb p¡¡r¡y hereto understancls that this
Agreement is legillly binding and milY affect su.ch parry's rights. Each represents to the others that
it has received legill advice from counsel of its choice reg¡¡rding the meaning and legal significance
of this Agreement and that it is satisfied with its legiÙ counsel and the advice received from that
counse1.
11.3 Attornev's Fees· In me event any action shall be instituted betweell Buyer,
Seller in connection with this Agreement, the party prevailing in such action shall be entitled, in
addition to damages, injunctive relief or other relief, to recover from the other pany all ofits COStS
of action, including, wimout limitation. attorneys' fees and costs as fIXed by the COIU1 therein.
11.4 A mendments. This Agreement may be amended, supplemented or modified
only by a written amendment executed by Seller and Buyer. No modification, waiver, amendment,
discharge or change of this Agreement shall be valid unless the same is in writing and signee! by the
pany ilgainst which the enforcement of such modificatiQn, waiver, amendment, discharge or change
is or may be sought.
11.5 Notices. Unless ometwise specificallyprovidee! herein, all notices, demane!s
or other communiciltions given hereunder sball be in writing and shall be e!eemed to have been duly
delivertld upon peI$onal delivery, or by FederlÙ Express (or similar reputable express delivery
service), or by telecopier tranSmission with back-up copy mailed the same ¢ly, or as of the second
business day after by United States cenified mail, retllffi receipt reqllested, postage prepaid,
addressed as fonows:
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!f to Seller, to:
CiTY of Chula Vista
276 Fou:rth Avenue
Chula Vista, CA 91910
TelepÞone: (619) 691-5031
Telecopier: (619) 409-5884
Attention: City Manager
!fto Buyer, to:
The EastLake Company LLC
EastLake Business Ce:mer
900 Lane Avenue, Sl1ite 100
Chula Vista, CA 91914
Telephone:; (619) 421-0127
Telecopier: (619) 421-1830
Attention: Bruce Sloan
If to Escrow Holder, to;
Chicago Title Company
925 B Street
San Diego, California 92101
Telephone; (619) 544-6250
Telecopier: (619) 544-6229
Attention: Shelv¡¡ Molm
11.6 JndemnificalÍon and ijold Hannless. Buyer agrees to indemnify, hold
harmless, pay all COSTS inclucling anorneys' fees, and provide a defense for Seller in any leg¡¡l
aCTiop filed in a court of competent juris4iction by II third p¡¡r¡y challenging the valiQiTY of this
Agreement anQ/or the Western Agreement. In particular, it is understood an4 ¡¡greed that Seller,
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 Buyer, its agents or employees, related
to this Agreement. Buyer further agrees to protect !\nd hold the Selle., its officers IUId
employees, hannless trom any and all claims, 4eman4s, causes of ¡¡erion, hability o.loss of any
sOI1, because of or arising out of acTS o. omissions of Buyer, its agents or employees, relate4 to
this Agreement. The provisions of this Section of the Agreement shall not ¡¡pply to ¡he extent
such cliÙms, demands, c¡¡uses of action, liability, dam¡¡ges or losses of any sort are because of or
arise out of the intentional o. negligent acts or omissions of Seller, its officers, agents,
represent¡¡tives or employees.
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11.7 Hazardous Materials.
a. DefiniTion. The tenn "Hazardous Materials" means and refers to
any substance, material or waste which is or becomes (i) reglJ!aTed by any local or regional
governmemal authority the State of California or the UniTed Stlltes Government as a hazardous
waste; (ii) is defined as a "solid waste". "sludge", "hazardous waste." "extremelY hazardous
waste," "restricted !1azilfdous waste," "Non-RCRA hazardous wasTe," RCRA hazlU'dous waste."
recyclaÞle material." under any feder¡¡,l. state or ¡ocw st¡¡,Me, regulation, or ordinance, including,
without limitation, Sections 25115, 25117, 25117.9, 25120.2, 25120.5 or 25122.7,25140,25141
of the Cwifornia Health and Safety Code; (iii) defined as a "Hazarclous Substance" under
Section 25316 of the California Health and Safety Code; (iv) aefined as a "Hazardous Material,"
"Hazardous Substance" or "Hazardous Waste" under Section 25501 of the California Health and
Safety Code; (v) definea as a "Hazardous Substance" under Section 25281 of the California
HewÙ1 and Safety Code; (vi) asbestos; (vü) petroleum products, incJudipg, without limitation,
petroleum, gasoline, used oil, crude oil, wIISte oil iUld any fraction thereof, Mtural gas, natur¡11
gas liquefiea, natural gas, or synthetic fuels, (viii) materials defined as hazardous or e¡¡rreme y
haz¡¡rclous pursuant to the Cwifomia Coae of Regul¡¡tions; (ix) polychlorinated biphenyls;
(x) aefined as a "Haz¡¡,raous Substance" pursuant TO Section 311 of the Federal Water Pollution
Control Act (33 U.S.C. Section 1251 ~ se~.); (xi) defined lIS a "HazarckJus Waste" pursuant to
Section 1004 of the Federal Resource Conservation and Recovery Act. 42 US.C. Section 6901 ~
~., (xii) defined ¡¡,s a "Hazardous SuÞstapce" or "Mixed Waste" pursuant to Section 101 of the
Comprehensive Envirorunemal ReSponse Compensation and Liability Act. 42 U.S.C.
Section 9601 ÇI seQ., and regul¡¡tions promulgated thereunder; (xiii) defined as a "Hazardous
Substance" pursuant TO Section 401. 15 of the Clean W¡¡ter Act, 40 C.F.R. 116; (xiv) defined as
an "Extremely HazarclollS Substance" pursL ant to Section 302 of the Superfund Amendments and
Reauthorizations Act of 1986,42 US.C. Section 11002 ~~;
b Re1f!a.~~. auyer, its succ~ssors ana assigns, hereby fully ana
forever release Seller ami each of Seller's officers, and fhe employees, ¡¡genTs, auorneys,
successors and assigns of Seller ("Released Parties"), tram any ana wi presenT or future Jiabi1if)',
claims, c\eml\Ilds, aclions, ca~ses of action I\Ild rigbfs (conTingent, accrued, inchoate or otherwise)
of any kind, whether currently known or not which B~yer may have against I\IlY of the Released
Parties because of Seller's ownership of the PropertY ("Claims") and which arise ollt of or are
connected in any way with the actu¡¡,l or allegea presence, ~se, generalion, storage, transponation,
release or discharge of Hazardous Materials on, beneath, or above the Propeny.
c. Wi!ìver. Buyer, its S¡¡CCeSSOrs and 3$sigps, waive I\Ild rele3$e
Seiler trom any and wi pres em or fut¡.¡re Claims that Buyer, its successors and assigns may have
against the Release PlU'ties arising under the Comprehensive Environmemal Response,
Compensation, Liability ACT of 1980, as amenaed ("CERCLA"), or any other federal, state or
local law, whether statuTory or common law, ordinance or regul¡¡tion pertaining to the presence,
use, generation. storage, ¡ransponation, release, discharge or cleanup (including paying the costs
thereof) of Hazardous Materials on, beneath, or above the Property.
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In connection with the foregoing releases, Buyer expressly waives all rights ~d benefits under
California Civil Code section 1542, which provides as follows:
"A general release does not extend ¡O claims which the creditor
does not know or suspect to exist in his favor al the time of
execl-lting ¡he release, which if known by him ml-lSI have matrnillly
affected his settlement wiÙl Ùle debtor. n
d. Indemnity of Seller. As a ma¡ertal indl-lcemem to Seller, wiÙloat
which SeHer would not have agreed to sell ¡ne Property ¡O Buyer on the ¡enns set forth herein,
Bl-lyer, for itself and its successors and assigns, hereby agrees to indemnify and hold harmless
Seller and each of its officers, and the employees, agents, anomeys, and successors and assigns
of Seller ("Indemnified Panies"), from and against any and all present and ñnure liability, losses,
damages (inch.¡ding foreseeable or anforeseeable consequential damages), penalties. fines,
forfeitures, response costs and expenses (incluQing all ol-lt-of-pocket litiglltion costs IIPd
reasonable anomeys' fees) directly or indirectly arising out of Seller's ownership of the Property
and ¡lie use, gmera-Qon, storage, transportation, release, discf¡lITge or disposal of HazllTdo\!S
Materials on Ùle Property by any party OÙler than SeHer, induding Buyer or IIPy prior owner of
or operator on the Property, including, without limitation, the cost of any required or necesslllY
repair. cleanup, or detoxification and ¡ne prep/lfation of any closure or oÙle. required plan.s,
whether such action is required or necessary prior ¡a or fallowing acquisition by Buyer ofti¡le to
the Property. Bl-lyer's obligations pursuant to this paragraph shall survive the close of escrow.
11.8 Construction of AiJ"emem. The agreements contained herein shaH not
be construed in fllvor of or against either party, but shall be consrrued as ifboÙl parties prepared
this Agreement.
11.9 CoumeJ¡larts and A~[l:)ority. This Agreement may be execl!ted in
multiple counterpartS, each of which shall constitute lIP original hereof, and aU of which taken
together shllll consti¡ate one an<! tþe same binding Agreement. ElICh party executing this
Agreement represents tnat such party has the full aUÙlOnIY and legal power to do so.
11.10 Governin~ Law and Forum Selection. This Agreement shall be
construed under and enforced in accordance with the Ja.ws of the Srate of Californill except to the
extent F<:deraJ !IIWS preempt [he lllw~ of the Stale ofCaljfomia. In any IIcrton brought under Of
arising OLlt of ¡his Agreement, each party hereby consents to Ùle jurisdiction of a competent coun
within the Stll¡e of California. agree~ rnllt ¡he forum for such action or actions shllll be a court of
competent jurisdiction within the County of San Diego, State of Cabfomill. and consents to
service of process by any means lIuÙlorizeQ by California lllw.
11.11 No Waiver. A waiver by either parry of a breach of any of the
covenants, conditions or IIgreemenrs under this Agreement to be performed by ¡he omer parry
m\!S1 be in wnting and shall not be consrrued as a waiver or any succeeding or preceding breach
oirlie same or oÙler covenants, IIgreemen¡s, restrictions or conditions herein con¡lIined. No
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waiver of any defaqlt by Buyer or Seller herew¡der shall be implied trom any onússion by the
other p¡¡ny to take any action on accow¡t of such qefault if such default persists or is repeated,
anI! no express waiver shall affect a l!efaLllt other than as specified in such waive:r. The consent
or approval by BLlyer or Seller to or of any act by the: ather party requiring the consent or
approval of the first party shall not be deemed to waive or :re:nder UDl1ec:essa:¡y such party's
consent or approval to or of any subsequent simi1¡¡¡- ¡¡cts by the other party.
1 L 12 No Warranries. Except as otheTWise specifically provided herein, neither
Buyer nor Seller has made any representations, warranties or agreements by or on behalf of
either p¡¡r¡y to the other p¡¡ny as to any matters com:erning the Property. Eacn pany expressly
waives any rights of rescission and il11 claims for d;unages by reason of any statement,
representation, warranty, pronúse or Agreement, if any, not contained in this Agrec:ment.
11.13 Possession. Possession of the Property shall be delivered to Buyer upon
the Close of Escrow.
11.14 Severability. In the event that any phrase, clause, sentence, section,
paragraph, portion oftlUs Agreement shall become illegal, nLlll or void or against p1Jblic policy,
for any reason, or shall be held by any cOLl11 of competent jurisdiction to be illegal. null or void
or against public policy, the remaining pO!1:ions of this Agreement shall not be affected thereby
and shall remain in force ¡¡nq effect to the fullest extent permissible by law.
II.IS SurvivalofWanan!ies. Unless expressly stilted herein to the comra:¡y,
all represemaIions anI! warr¡¡nties shall survive the Close of Escrow of this Agreement amI any
earlier termination of this Agreement.
11.16 :¡Llccessors and Assigns. Subject to the restrictions and prohibitions on
assignmenr set forth in this Agreement, e¡¡¡;h and all of tile coven¡¡nts ana conditions of this
Agreement shall inure to the benefit of and shall be bincling upon the sLlccessors-in-interest,
assigns, and legal represe:ntatives of the parties hereto.
1\.17 Ca¡lIions. The caption headings for the sections of this Agreement are
for convenience only and shall not be considered to linút, amplify or define the terms or
provisions hereof.
11.18 Time of Essence. Time is of the essence of eacb and eVery provision of
this Agreement.
1 L19 Cooperation and Further DocumenTation. Seller and Buyer IIgree to
cooperale to consUmInate the transactions set forth herein, and e¡¡¡;h agrees to take such action as
is reasonably reqqired of it.
11.20 No Third PaTtv BeneficiafV· This Agreement is inten4ed solely for me
benefit of Seller ana Buyer.
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11.21 Emire A~''''ment. This Agreen¡em, including its exhibits, constitutes
the entire Agreement between the parties pertaining to the subject matter hereof.
IN WITNESS WHEREOF, the parties, individllally Of throllgh their authorized
representatives, have executed this Agreemem as of the clate of this Agreement. E¡¡ch individual
executing this Agreement warr¡uns and represems that he or she has the power and authoritY to
execute this Agreemenr on behalf of the party for whom the execution is made.
SELLER: BUYER:
C!TY OF CHULA VISTA, THE EASTLAKE COMPANY L.LC, a
a municipal corporation ClIlifomia limited liability company
By; By:
Shirley Horton Paul G. Nieto
Mayor BY~~
Approve\! as to fom¡ and legali¡Y:
Broce N. Sloan
John M. Kaheny Vice Presiclem
By:
AM Moore
Assistant CitY Anomey
[The IIbove signatures must be notarized.]
C,\PM,SISCF\13201:Z3.Dð 9
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Oct-15-99 02:30pm From-lUCE FORWARD SOl (619) 235-3541 619-232-6311 T-258 P 12/17 HI5
CONSENT OF ESCROW HOLDER
The undersignec1 Escrow Holder herepy agrees to (i) IICCept tÞe foregoing Agreement, (ii) be
Escrow Holl!er Wilier the Agreement, anI! (iii) be botUll! by the Agreement in Ùle perfolTIlance of
its duties as Es¡;row Holder; provil!el!, however, the unqersigned shall have no obligations,
liability or responsibility under (a) this Consent or otherwise, unless and until the Agreement,
fully signed by the p¡¡nies, has peen clelivered to the Ilnl!ersignecl, or (b) any ;¡mendment to sail!
Agreement tUlless and until ¡he same is acceptel! by !he unl!ersigned in writing_
Dated: ,1998
CHICAGO T!TLE COMPANY ("Escrow Agent")
By:
Its:
10
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-
Oct-15-ii 02:,Opm From-LUCE FORWARD SOl (6Ii) 2,5-3541 61i-202-B,11 N5B Pl,/lT H15
EXHIBIT "A"
PROPERTY DESCRIPTION
PARCE~ N
I' ARCH 2 OF PARCEL MAP NO. 18064, IN mE CITY Of CHULA \l!ST A, COUNTY OF SAN DIEGO,
STATE OF CALifORNIA, ACCORDING TO MAP mEREOf FIL¡::D IN THE OfFICE OF THE COUNTY
RECORDER Of SAN DIEGO COUNTY, JULY 6, 1998.
PARCEL B.
BEING A PORTION OF THE REMAINDER PARCH OF PARCEL MAP 18064 IN THE CITY OF CffiJLA
VISTA, COUNTY OF SAN DIEGO, STATE Of CALIFORNIA, SAID MAP fILED IN THE OffiCE Of THE
RECORDJ'R, OF SAID COLlNTY AND STATE, SAID PORTION BEING MORE PARTICULAlU. Y
DESCRIBED AS FOLLOWS:
BEGINNING AT mE MOST NORTliERL Y CORNJOR OF PARCEL 2 OF PARCH MAP 18064, FILED IN
mE OFFICE OF THE RECORDER, COUNTY OF SAN DlEGO, STATE OF CALIfORN1A, TJ:~ENCE
SOUTIiERL Y ALONG 11110 BOLlNDARY Of SAID PARCEL 2, SOUTH 15' 23'09" W¡¡ST 62.88 FEET;
THENCE LEAVING SAID BOUNDARY NORTIt 09' 44'21" WEST 37.97 FEET; THENCE NORTH
02'06'23" WEST 73.\6 FEET; THENCE NORTH 19'49'\7" WEST 58.88 FEET; THENCE NORTH
18"34'47" WEST 3\48 FEET; THENCE NOR11I24'53'27" EAST \9.64 FEET; THENCE NORTH
41' 13'38" EAST 29.69 FEET, TItENCE NOR11I53' \8'30" EAST 39.81 FEET; TflI'NCE NORTfI
29'02'56" EAST 43.8\ FEET; TflENCE NORTH 08'09'51" EAST 82.85 FEET; THENCE NORTfI
04 "52'35" WEST 94 8HEET; THENCE NORTfl20' 56'45" WEST 92.72 FEET, T}fENCE NORTH
04 '06'38" WEST 68.29 FEET; mENCE NORTH 24'27'48" EAST 23.53 FEET; THENCE NORm
64°29'32" EAST 49.13 FEET; mENCE NORTH 42' 17'58" EAST 20,42 FEET; TlffiNCE NOR11I
24'39'28" EAST37.15 FEET; 11IENCE NORm 12°04'25" EAST 85.78 FEET; THENCE NORTH
02 °03'27" EAST 46.\9 FEET: THENCE NORTH 89' 56'51" EAST 145.40 FEET; mENCE SOUTIf
07°39'31" EAST 76.27 FEET; mENC¡:: SOUTIf 19'58'53" EAST 79.34 FEET; THENCE SOUTIf
22' 13'05" EAST 66.59 FEET; mENCE SOUTH 09' 11'00" ¡::AST 32.34 FEET; THENCE soum
15'53'00" EAST 83.00 FEET; mENCE SOUTH 18'32'23" EJl,ST 43.99 FEET; THENCE SOUTIf
23' 17'55" EAST 50.06 FEET; mENCE SOUTH 28 '58'56" EAST 40.42 FEET; THENCE soum
39'25'54" EAST 23.44 FEET; mENCE SOUTH 69'09'24" EAST 82.57 FEET; mENCE SOlITH
43'12'04" EAST 16.60 FEET; THENCE SOUTH 02'09'19" EAST 12.84 FEET; THENCE SOlITH
24'39'28" WEST 2\.08 FEET; mENC¡¡ SOUTH 38'12'50" WEST 1<1 82 FEET; THENCE SOUTH
19'21'11" W¡¡ST 72.57 FEET; TflENCE SOUTH 03'49'42" WEST 60.76FEET; mENCE SOUTH
13 ·29'56" EAST 131.41 FEET; THENCE SOUTfI 09'55'34" EAST 38.34 FEET; THENCE SOlITH
03'27'39" EAST 73.89 FEET; THENCE SOUTH 08'38'24" W¡¡ST 26.63 FEET; THENCE SOUTH
32'12'46"W!'ST 15.19 FEET; mENCE SOUTH 66'35'17" WEST 10.40 FEET, T}fENCE SOUTH
89' 13'OS" W¡¡ST 10.23 FEET TO A POINT ON mE EASTER!- Y BOUNDARY OF SAID PARCEL 2;
mENCE NORTHSRL Y ALONG SAID BOUNDARY NORm 38'59'37" WEST 43.60 FßST; THSNCE
NORTH 7! '59'37" WEST 445.00 FEET TO THE POINT OF BEGINNING
EXHIB!T "A"
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Oct-15-9S DZ:81pm From-LUCE FORWARD Sol (619) Z85-8541 61 9-zgz-S811 T-Z5S P 14/IT HI5
EXHIBIT "B"
PRELIMINARY TITLE REPORT
BrllC"e - ArttlC"h rl1t'ised PTR rhtzr removes irem 1711
J¡j1J ~ /~
...-........-- -." . '. ~......__._,_.._---,--------.-._-_._-------._--
oct-15-98 02:31pm F rom-LUtE FORWARD SDI(819) 235-3541 819-232-8311 T-258 P 15/17 HI5
EXHIBIT "C"
Grant Del%!
RECORDINO REQUESTED ~y AND )
WHEN RECORDED MAIL TO: )
)
The EastLalœ Company, LLC )
EastLùe ~usinl:!ss Center )
900 Lane Avenue, Sllite 100 )
Chula Vista, CA 91914 )
Ann: Bruçe Sloan )
)
Above Space for Recorder's Use
Tax Pqrçel Number _
GRANT DEED
The undersigned Grantor deçlqres:
Doçumen¡¡u)' transfer tax is $
( ) Computed on full value of property conveyecl, or
( ) Computed on full value less value of liens and
encumbrances remaining at timl:! of sale.
( ) Unincorporated qrea: ( ) City of
FOR VALUABLE CONSID£RA nON, receIpt of which is hereby acknowledged, the CrTY
OF CHULA VISTA, a mwùcipaJ corporation ("Grantor") hereby Grants to THE EASTLAKE
COMPANY, LLC, a California limited liability company ("Grantee"), aU of its rights, title, iItId
interest in ml:! following described rl:!al property situated in the City of Chula Vista, County of San
Diego, State of California:
See Exhibit "A" anached hereto and inçorporated herein by this reference.
/¿J!3 r /~
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Oct-15-iB OZ:31pm From-lUCE FORWARD SDl (51i)Z35-3541 51 i-Z3H311 T-Z55 P 15/17 F-BI5
IN WiTNESS WHEREOF. said Grantor has caused its name to be affixed hereto and this
instrwl1em to be """cl1ted by its officers mereu.n¡o duly authorized.
GRANTOR:
CITY OF CHULA VISTA,
a municipal corporation
By;
Shirley Horton
Mayor
Approved as to fonn and legality:
JOM M. Kaheny
By:
Ann Moore
Assistant City Attorney
/{)[J~/7
Oct-15-98 OZ:31pm From-LUCE FORWARD SOl (519) Z35-3541 5l9-Z!Z-8311 T-Z5B P 17/17 H15
EXHlBIT "A" to GRANT DEED
PROPERTY DESCRIPTION
PARCEL A:
PARCEL 2 OF PARCEL MAP NO 18064. IN TIlE CITY OFCHULA VISTA. COUNTY OF SAN DIEGO, STATE
Of CALIFORNIA.. ACCORDING TO MAP THEREOF FIL¡;;D IN THE OFFICE OF THE COUNTY RECORD¡¡R
OF SAN DIEGO COUNTY, JVL Y 6, 1998
PARCEL B
BEING A PORTION OF TIlE REMAINDER PARCEL OF PARCEL MAP 18064 IN TIlE CITY OF CIWLA VISTA,
COUNTY OF SAN DIEGO, STh TE OF CALJFORNlA, SAID MAP FILED IN THE OFFICE OF THE RECORDER
OF SAID COUNTY AND STATE. SAID PORTION BEING MORE PARTICl.JL.NU. Y DESCRIBED AS fOLLOWS:
a¡;;o11'lNING AT THE JIIIOST NOKTtiERL Y CORNER OF PARCEL 2 OF PARCEL MAP 18064, FILED IN TIlE
OFfICE OF THE RECORDER. COUNTY OF SAN DIEGO. SThTE OF CALIFORNIA, THBNCE SOUTIlERL Y
ALONG THE BOUNDARY OF SAID PARCEL 2, SOUTIi 15 '23'09" WEST 62.88 FEET: TIlENCE LEAVING SAID
BOUNDARY NORTH 09° 44'21" WEST 37.97 FEET; THENCE NORTH
02 '06'23" WEST 73.16 FEET: TIlENCE NORTIi 19° 49'17" W¡¡ST 58.88 FEET; THENCE NORTH
18"34'47" WEST 31.48 F¡;ET: THENCE NORTH 24°53'27" EAST 19.64 FEET: THENCE NORTH
41 ° 13'38" EAST 29.69 FEET; THENCE NORTH 53 ° 18'30" EAST 39.81 FEET: TI!ENCE NORTH
29°02'56" EAST 43.81 FEET; TIlENCE NORTH 08 °09'51" EAST 82.85 FEET: THE1N'CB NORTH
04 °52'35" WEST 94.87 FEET: THENCE NORTH 20' 56'45" WEST 92.72 FEET: THENCE NORm
04°06'38" WEST 68.29 FEET: THENCE NORTH 24 °27'48" EAST 23.53 FEET; THENCE NORm
64 °29'32" EAST 49.13 FEE'!; THENCE NORTIi 42° 17'58" EAST 20.42FEET: THENCE NORTIf
24°39'28" EAST 37.15 FEET: THENCE NORm 12°04'25" EAST 85.78 FEET; THBNCE NORTH
02 °03'27" EAST 46.19 FEET; THENCE NORTH 89° 56'51 " EAST 145.40 FEET; THENCE SOtlTfl
07"39'31" EAST 76.27 FEET; THENCE SOUTH 19°58'53" EAST 79.34 FEET. THENCE SOUTH
22 ° 13'05" EAST 66.59 FEET; THENCE SOUTH 09 ° 1 1 '00" EAST 32.34 FEET; THENCE SOUTH
15°53'00" EAST 83.00 FEET; THENCE SOUTH 18°32'23" EAST 43.99 FEET; THENCE SOUTH
23 ° 17'55" EAST 50.06 FEET; THENCE SOUTH 28°58'56" ¡ÒAST 40.42 FEET; THENCE SOUTH
39°25'54" EAST 23.44 FEET; THENCE SOUTH 69°09'24" EAST 82.57 FEET; THENCE SOUTH
43 ° 12'04" EAST 16.60 FEET: THENCE SOUTH 02 ° 09' 19" EAST 12.84 FEET; TH¡¡NCE SOUTH
24'39'28" WEST 21.08 FEET; THENCE SOUTH 38" 12'50" WEST 14.82 FE¡;;T; TIfENCE SOtlTfl
19"21'11" WEST 72.57 F¡òET; TlŒNCE SOUTH 03°49'42" WEST 60,76 F¡¡ET: THENCE soum
13"29'56" EAST \31.41 FEET: THENCE SOUTH 09°55'34" EAST 38.34 FEET; TIlENCE SOUTH
03 °27'39" IiAST 73.89 FEET; THENCE SOUTH 08°38'24" WEST 26.63 FEET; THENCE SOUTH
32°12'46" WEST 1519 FEET; TIfENCE SOUTII 66'35'17" WEST 10.40 F¡¡ET; THENC¡;; soum
89° \3'08" WEST 10.23 FEET TO A POINT ON THE EASTER!- Y aOUNDARY OF SAID PARCEL 2;
TItENCp NORTHER!. Y ALONG SAID BOUNDARY NORTII 38°59'37" WEST 4360 FEET, THENCE NORTH
7\ °59'37" WEST 445.00 FEET TO THE POINT OF BEGINNING
)¿Jß ~/?[
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COUNCIL AGENDA STATEMENT
Item: II
Meeting Date: 10/20/1998
ITEM TITLE: Resolution 19"<32 approving the Memorandum of
Understanding between the City of Chula Vista and the Chula Vista
Elementary School District regarding a joint extended school day
program ("STRETCH'); approving the transfer of funds for After-
School playground programs rrom the city's three Recreation Center
budgets into a single extended school day program account; accepting
and appropriating a $250,000 contribution rrom the Chula Vista
Elementary School District for extended school day programs; and
amending the FY 1998/99 budget to approve an additional 1.0 FTE
Extended School Day Supervisor (unclassified, full-time benefited
position) funded rrom the following sources: District contribution
($8,000), Public Library Fund ($16,000, unanticipated revenue), and
Recreation Trust Fund #405 ($9,000).
SUBMITTED BY, J);""", 'fLi"'''''.... ~ gß
REVIEWED BY: CityManage~ ~ c-- sVote: Yes-X- No~
The FY 1998/99 budget adopted by the Chula ta Elementary School District Board in June
of this year included a new line item for extended school day programs. The Board decided to
commit $250,000 to provide children with literacy and academic tutoring, enrichment programs
(such as drama, music, dance and art), as well as other recreational activities before and! or after
regular school hours. There are presently 35 schools in the Elementary School District, 28 of
which are located in the City of Chula Vista.
The City general fund budgeted approximately $289,000 in FY 1998/99 to provide an After-
School Playground program, conducted by part-time Recreation Leaders and Aides at 26
elementary school playgrounds. Most of the funds for this program are currently budgeted in
the hourly wage line items of the city's three Recreation Centers.
The Superintendent of the Elementary School District and the City Manager agreed that the
$250,000 rrom the District's budget should be combined with funds currently being spent by
the city on After-School programs to create a new extended school day program, with the City
acting as fiscal agent. The City would provide a manager to coordinate the program.
/)~ /
^____._____..._____.._____..___,__._..___.,___..___.w__·,,_,._..._______.._.__,_._,_~._
Item --' Page 2
Meeting Date: 10/20/98
STAFF RECOMMENDATION: That Council approve the Memorandum of Understanding
between the City of Chula Vista and the Chula Vista Elementary School District regarding a
joint extended school day program ("STRETCH"); approve the transfer of funds for After-
School playground programs trom the city's three Recreation Center budgets into a single
extended school day program account; accept and appropriate a $250,000 contribution trom
the Chula Vista Elementary School District for extended school day programs; and amend the
FY 1998/99 budget to approve a 1.0 FTE Extended School Day Supervisor (unclassified, full-
time benefited position), funded trom the following sources: District contribution ($8,000),
Public Library Fund ($16,000, unanticipated revenue), and Recreation Trust Fund #405
($9,000).
BOARDS/COMMISSIONS RECOMMENDATIONS: The Parks and Recreation
Commission and Library Board of Trustees will be consulted during the implementation phases
as appropriate.
DISCUSSION:
Historically, the City of Chula Vista has taken a proactive approach towards providing an
extended day at elementary and more recently at middle schools within the City. At the twenty-
six elementary schools part-time Recreation Leaders and Aides currently coordinate two hours
of extended day with emphasis on recreational activities such as flag football and cheerleading.
In the spring of 1998, City Manager David Rowlands and Chula Vista Elementary School
Superintendent Dr. Libia Gill entered into discussions about the District's desire to expand
After-School programs with a greater focus on academics and enrichment activities, without
losing a recreation component.
Welfare refonn legislation, which directly impacts several thousand families in Chula Vista, has
created a dramatic need for even more After-School programs. Parents, primarily female heads
of household, are moving trom the home into employment and employment preparation
programs and are likely not to be at home at the end of the school day. In addition, it is
generally regarded to be true that enrichment classes such as music, drama, art, and foreign
languages, as well as literacy tutoring and homework assistance, promote students' overall
academic achievement. Finally, it is in the interest of Chula Vista residents to have youth in the
community positively engaged in enhanced After-School programming. Such programs reflect
society's changing needs
In response, the City's approved FY 1998-99 budget established an Educational Services
Manager located within the Library and Recreation Department. This position is charged with
the responsibility of overseeing and coordinating an expanded extended school day program.
Over the summer, the City's Educational Services Manager convened a multi-agency advisory
committee, including representatives trom the YMCA, the Boys and Girls Club, the Police
Department, school principals, as well as District and City staff. The Committee has begun to
// ~;L
-.-.,.-------..-.------ - -.-.....-
Item ----> Page 3
Meeting Date: 10/20/98
examine After-School programming issues and needs, and to identify what resources are
currently available in this area. In anticipation of a joint CityÆlementary District-funded
program, the advisory committee named the new program "STRETCH". The acronym stands
for "Safe Time for Recreation, Enrichment, and Tutoring for CHildren."
The Committee also developed the program's mission statement, which reads:
Our mission is to promote the physical and mental well being of young
people through safe, nurturing, extended school day programs that support
academic achievement, offer opportunities for cultural and artistic
enrichment, and provide organized recreational activities. The "STRETCH'
program brings together community stakeholders, blends and maximizes
resources, and links staff to create programs that respond to individual
communities' needs.
City and District staffhave now negotiated a Memorandum ofDnderstanding (MOU), which
incorporates the above mission statement and will allow the City to formally adopt the
STRETCH program (see Attachment 'A'). The Chula Vista Elementary School District
Board approved the MOD at their Tuesday, October 6, 1998, meeting. The MOD has been
reviewed and approved by the City Attorney's office; it includes a mutual hold-harmless
addendum.
The MOD and budget (see Attachment 'B') represent the first phase of this project, in which
the mission is defined, the fiscal mechanism for expenditure of funds is created, and a
governance structure is established. The project's next phase will be to establish clear funding
priorities; to identify schools with the greatest needs; to develop a strategic implementation
plan in partnership with District and school personnel; and to develop goals and objectives
that reflect the degree and type of services offered at individual schools.
The STRETCH program intends to apply for newly established After-School grant funds ftom
the California Department of Education, as soon as an RFP becomes available. These State
grants require a 50-50 local dollar match. The Department has indicated that only schools in
which 50% or more of the children are eligible to receive ftee and/or reduced meals will be
able to compete for these funds. Those statistics are collected by the District in October each
year. At this time, the District expects fifteen school sites to be eligible (see Attachment 'C').
In anticipation of the receipt of these grant funds, the budget sets aside $232,000 which
would be used as a match. Ifwe are awarded this three year state After-School grant, we will
hire additional staff and/or contract with individuals or organizations to provide expanded
programmmg.
))- 3
"'---'".,."-,,--"
Item -----' Page 4
Meeting Date: 10/20/98
The City's current After-School recreation program will continue in its present fonn until the
end of the fall school semester, with the following changes:
· New school sites will be added at Casillas Elementary School and at Lorna Verde
Elementary Schoo~ bringing the total number of schools served ITom 26 to 28 (out of 28
city schools).
· A full-time Extended School Day Supervisor (unclassified) will be hired to supervise City
staffparticipating in the After-Schoo1Æxtended School Day programs. This new position,
funded ITom non-general fund sources, will help to ensure that staff performance
standards are being met, and will act as a key liaison between school principals and City
staff. The position will report to the Educational Services Manager. This action restores
a single supervisor structure which previously been in place, but had been eliminated due
to budget constraints. Currently Recreation Leaders and Aides are supervised by one of
three recreation center directors.
· After-Schoo1Æxtended School Day recreation programs (2-hours/day) will be offered on
school attendance days, however Saturday flag football league games will continue as in
the past.
· A series of three mandatory workshops for Recreation Leaders and Aides will take place
this fall, providing them with a host of "hands-on" recreational games and ideas, and
training in several new sports. The workshops are also open to staff ITom the YMCA and
the Boys and Girls Club.
Several changes to the existing After-School recreation program will be phased in beginning
with the Spring school semester, however City staff will continue to provide recreation
programming at all 28 elementary school sites within the City, per the MOD with the District.
FISCAL IMPACT: All unexpended FY 1998-99 funds budgeted for the After-School
Playground Program will be transferred to general fund account 100-1786. A contribution of
$250,000 ITom the Chula Vista Elementary School District for extended school day programs
will be appropriated into this account for FY 1998-99 to augment the City's contribution. Of
the District's contribution, $8,000 will be used to partially offset the salary and benefits of a
full-time Extended School Day Supervisor (unclassified). An additional $16,000 ITom
California's Public Library Fund allocation for Chula Vista (which will be received in January,
1999) and $9,000 ITom the Recreation Trust Fund #405 will be used to cover the remaining
cost of the position (prorated for eight months in this fiscal year).
Ij~ L/
..- -- - -_.~...._..__.~ _._~-- - _...._._--_.__..~..- .
RESOLUTION NO. /9.232
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING THE MEMORANDUM OF
UNDERSTANDING BETWEEN THE CITY OF CHULA VISTA
AND THE CHULA VISTA ELEMENTARY SCHOOL DISTRICT
REGARDING A JOINT EXTENDED SCHOOL DAY PROGRAM
(" STRETCH") ; APPROVING THE TRANSFER OF FUNDS
FOR AFTER-SCHOOL PLAYGROUND PROGRAMS FROM THE
CITY'S THREE RECREATION CENTER BUDGETS INTO A
SINGLE EXTENDED SCHOOL DAY PROGRAM ACCOUNT;
ACCEPTING AND APPROPRIATING A $250,000
CONTRIBUTION FROM THE CHULA VISTA ELEMENTARY
SCHOOL DISTRICT FOR EXTENDED SCHOOL DAY
PROGRAMS; AND AMENDING THE FY 1998/99 BUDGET
TO APPROVE AN ADDITIONAL 1.0 FTE EXTENDED
SCHOOL DAY SUPERVISOR (UNCLASSIFIED, FULL-TIME
BENEFITED POSITION) FUNDED FROM THE FOLLOWING
SOURCES: DISTRICT CONTRIBUTION ($8,000),
PUBLIC LIBRARY FUND ($16,000, UNANTICIPATED
REVENUE) , AND RECREATION TRUST FUND #405
($9,000)
WHEREAS, the FY 1998/99 budget adopted by the Chula vista
Elementary School District Board in June of this year included a
new line item for extended school day programs wherein the Board
decided to commit $250,000 to provide children with literacy and
academic tutoring, enrichment programs (such as drama, music, dance
and art), as well as other recreational activities before and/or
after regular school hours; and
WHEREAS, there are presently 35 schools in the Elementary
School District, 28 of which are located in the city of Chula
vista; and
WHEREAS, the city budgeted approximately $289,000 in FY
1998/99 to provide an After-School Playground program, conducted by
part-time Recreation Leaders and Aides at 26 elementary school
playgrounds; and
WHEREAS, most of the funds for this program are currently
budgeted in the hourly wage line items of the City's three
Recreation Centers; and
WHEREAS, the Superintendent of the Elementary School
District and the City Manager agreed that the $250,000 from the
school district's budget should be combi~ed with funds currently
being spent by the city on After-School programs to create a new
extended school day program, with the City acting as fiscal agent
with the city providing a manager to coordinate the program.
1 J/--£'
NOW, THEREFORE, BE IT RESOLVED the City Council of the
City of Chula Vista does hereby approve the Memorandum of
Understanding between the City of Chula vista and the Chula vista
Elementary School District regarding a joint extended school day
program ("STRETCH") .
BE IT FURTHER RESOLVED the City Council does hereby
approve a transfer of funds for After-School playground programs
from the City's three Recreation Center budgets into a single
extended school day program account.
BE IT FURTHER RESOLVED that the City Council does hereby
accept and appropriate a $250,000 contribution from the Chula Vista
Elementary School District for extended school day programs and
amending the FY 1998/99 budget to approve an additional 1.0 FTE
Extended School Day Supervisor (unclassified, full-time benefited
position) funded from the following sources: District contribution
($8,000), Public Library Fund ($16,000, unanticipated revenue), and
Recreation Trust Fund #405 ($9,000).
Presented by Approved as to form by
David Palmer, Director of
Library and Recreation
H:\home\lorraine\rs\stretch
2
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-".- ~--~~---------~_.-
ATTACHMENT 'A'
MEMORANDUM OF UNDERSTANDING
BETWEEN
THE CITY OF CHULA VISTA
AND
CHULA VISTA ELEMENTARY SCHOOL DISTRICT
This MOU is entered into by the City Manager of the City of Chula Vista and the
Superintendent of the Chula Vista Elementary School District.
CHULA VISTA "STRETCH" MISSION STATEMENT
Safe Time for Recreation, Enrichment, & Tutoring for CHildren
Our mission is to promote the physical and mental well being of young people through safe,
nurturing, extended school day programs that support academic achievement, offer opportunities
for cultural and artistic enrichment, and provide organized recreational activities. The
"STRETCH' program brings together community stakeholders, blends and maximizes resources,
and links staff to create programs that respond to individual communities' needs.
The parties agree that the Chula Vista Elementary School District's responsibilities shall be
to:
Facilitate communication of STRETCH mission, goals, and objectives to all school
sites, in particular to principals, PT A's and School Site Councils.
Actively promote cooperation and coordination among and between school sites
and all personnel involved in STRETCH activities.
Participate in the development and actualization of a strategic plan.
Participate in the preparation and submittal of grants and other funding proposals
to further the STRETCH mission.
Provide a staff liaison with the City as a key contact.
The parties agree that the City ofChula Vista's responsibilities shall be to:
Provide a LibrarylRecreation Department Manager to coordinate STRETCH
activities in cooperation with District staff.
Facilitate communication of STRETCH mission, goals, and objectives to all city
staff participating in STRETCH activities.
Participate in the development and actualization of a strategic plan.
Participate in the preparation and submittal of grants and other funding proposals
to further the STRETCH mission.
This Memorandum of Understanding shall remain in effect for 12 months commencing
July 1, 1998 and ending June 30111, 1999, and may be renewed yearly if both parties are in
agreement. If either party does not wish to renew this Memorandum of Understanding
they shall indicate so in writing no less than 60 days prior to the end of the fiscal year.
//~ ?
_ _. ______u_.~._..-____...__._.___..._..___...._ ._. .._'N"~'._ .". _.m.._
ATTACHMENT A, PAGE 2
The parties agree that a joint decision-making panel shall be created to govern the
STRETCH program. The panel is comprised of the following City and District employees:
Assistant Superintendent for Instructional Services and Support, Chula Vista
Elementary School District
Director, Chula Vista Library & Recreation Department, City ofChula Vista
District Coordinator of Early Intervention, Chula Vista Elementary School District
Educational Services Manager, City ofChula Vista
The panel will receive input via district schools iTom parents and children on their after-
school needs, and iTom an advisory committee made up of community stakeholders,
including principals, staff iTom the district, the city, and a variety of community agencies.
In FY 1998-99, the City ofChula Vista will contribute $289,000 (plus the cost of pre-
negotiated salary increases) to the STRETCH program. In FY 1998-99, the Chula Vista
Elementary School District will provide $250,000 to the City for the STRETCH program.
The City of Chula Vista will act as fiscal agent for these combined funds. The duties of
fiscal agent include, but are not limited to, appropriating, expending, tracking and
reporting funds. The combined City/District funds shall be used to pay for an after-school
recreation program at 28 school sites within the City of Chula Vista on school days (plus
sports events on some Saturdays); a full-time Educational Services Manager to coordinate
the STRETCH program; and a .25 FTE Administrative Office Assistant. The above-
mentioned panel will determine how best to appropriate the remaining funds
(approximately $240,000), as well as any additional funds procured through grants or
donations for the STRETCH program.
The parties further agree that measures to determine the effectiveness of the program will
be jointly determined, and will be specific to activities undertaken at various school sites.
The parties envision that a large portion of the available funds will be used to leverage
additional grant funds iTom the California Department of Education. Grant monies are for
the operation of extended school day programs in communities where the needs are
highest, as documented by the percentage of children who qualify for iTee or reduced
lunch.
CHULA VISTA ELEMENTARY CITY OF CHULA VISTA
SCHOOL DISTRICT
By: By:
Date: Date:
)/ -- 3'
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ATTACHMENT A,PAGE3
ADDENDUM TO THE MEMORANDUM OF UNDERSTANDING
re EXTENDED SCHOOL (STRETCH) PROGRAM
The parties agree to defend, indemnify and hold harmless each other against any and all
claims asserted or liability established for damages or injuries, including death, to any
person or property, including an officer, agent or employee of one of the parties, which
arise trom or are connected with or are caused or claimed to be caused by the negligent
acts or omissions of the District or the City in carrying out the terms of this agreement;
provided, however, that no duty to indemnifÿ or hold harmless one party shall arise or
exist regarding the established sole negligence or wil1ful misconduct of that party.
CHULA VISTA ELEMENTARY CITY OF CHULA VISTA
SCHOOL DISTRICT
By: By:
Date: Date:
J!~ I
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ATTACHMENT 'B'
CIillLA VISTA "STRETCH" PROGRAM
ACCOUNT NUMBER 100-1786
SOURCE OF FUNDS
Transfer ITom 100-1792 Lauderbach Recreation Center
5105 Hourly Wages $71,409.00
5143 Medicare 1,036.00
5145 PARS 2,678.00
5212 Printing 255.00
5218 Postage 50.00
5225 Transportation 328.00
5301 Office Supplies 140.00
5371 Recreation Supplies 2,400.00
TOTAL to transfer to 100-1786: $78,296.00
Transfer ITom 100-1793 Lorna Verde Recreation Center
5105 Hourly Wages $56,904.00
5143 Medicare 825.00
5145 PARS 2,134.00
5212 Printing 280.00
5218 Postage 50.00
5225 Transportation 312.00
5301 Office Supplies 112.00
5371 Recreation Supplies 2,300.00
TOTAL to transfer to 100-1786: $62,917.00
Transfer ITom 100-1794 Parkway Recreation Center
5105 Hourly Wages $57,510.00
5143 Medicare 835.00
5145 PARS 2,157.00
5212 Printing 315.00
5218 Postage 50.00
5225 Transportation 624.00
5301 Office Supplies 126.00
5371 Recreation Supplies 3,900.00
TOTAL to transferto 100-1786: $65,517.00
TOTAL to transfer ITom three Recreation Center accounts
(previously budgeted for After-School Playground Programs): $206,730
11-- J{J
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ATTACHMENT 'B', Page 2
SOURCE OF FUNDS cont'd.
Chula Vista Elementary School District: $250,000.00
City ofChula Vista (Rec. Center transfers) 206,730.00*
Public Library Fund 16,000.00
Recreation Trust Fund #405 9,000.00
Exisûng funds in a/ c 100-1786 $20,688.00
TOTAL: $502,708.00
* Note- this amount reflects the 3% pay increase effective January I, 1999.
//-/1
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ATTACHMENT 'B', Page 3
PRELIMINARY BUDGET
EXTENDED SCHOOL DAY PROGRAMS
100-1786
5101 Salaries $79,900
Educational Services Manager (ppb 9/11) - $49,776
.25 AOS - $6,201
Extended School Day Supervisor (8 months) - $23,923
5105 Hourly Wages $150,384
Recreation Leaders: 9,855 hours (4.74 FTE)
Recreation Aides: 10,520 hours (5.06 FTE)
(Note: above hours are from ppb 10/23/98 - 6/30/98)
5141 Retirement $10,250
Educational Services Manager (ppb 9/11) - $6,386
.25 AOS - $796
Extended School Day Supervisor (8 months) - $3,068
5142 FLEX $10,765
Educational Services Manager (ppb 9/11) - $6,037
.25 AOS - $1,290
Extended School Day Suprvisor (8 months) - $3,438
5143 Medicare (1.45%) $3,340
5144 Workers Compo $960
5145 PARS (3.75%) $5,640
5202 Other Contractual * $232,000
J/~/d.-.
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ATTACHMENT B, Page 4
PRELIMINARY BUDGET
EXTENDED SCHOOL DAY PROGRAMS
5212 Printing $1,000
5218 Postage $300
5252 Phone $720
5225 MileageJTravel $1,266
5301 Office Supplies $800
5371 Recreation Supplies $5,383
TOTAL $502,708
*District funds which will primarily be used to satisfÿ the State of California's matching fund
requirement, ensuring the STRETCH program's eligibility to apply for additional grant
funds. Funds will be used to hire and! or contract with other agencies to provide extended
school day program staff at selected schools. Funds will also be used for staff development
and training programs.
J)- /3
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ATTACHMENT C
Title I Schools
Castle Park
Feaster-Edison Charter
Finney
Harborside
Juarez-Lincoln
Lauderbach
Lorna Verde
Los Altos
Montgomery
Mueller Charter
Otay
Rice
Rohr
Silver Wing
Vista Square
//~/f
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COUNCIL AGENDA STATEMENT
Item /;L.
Meeting Date 10/20/98
ITEM TITLE: Resolution ) 9;¿ :1 J Appropriating Funds, Accepting Bids and
A warding Contract for "Earthwork Construction and Revegetation of Slope
at 289 and 291 Greenwood Place, hula Vista, California (pG-553)"
SUBMITTED BY:
REVIEWED BY: (4/5ths Vote: Yes -X-No -->
At 2:00 p.m. on August 19, 1998, the Director of Public Works received sealed informal bids for
"Earthwork Construction and Revegetation of Slope at 289 and 291 Greenwood Place, Chula
Vista, California (PG-553)." The work to be done consists of the re-grading of a partially graded
site to return it to a condition similar to the original condition existing prior to the commencement
of the uncompleted grading project. The project involves stabilizing the subgrade and spreading
the existing imported soil to return the site to a more natural and stable condition.
RECOMMENDATION: That Council approve the resolution: 1) appropriating $55,000.00 from
the General Fund to project PG553; and 2) accepting bids and awarding the contract for
"Earthwork Construction and Revegetation of Slope at 289 and 291 Greenwood Place, Chula
Vista, California (pG-553)" to FSG General Engineering Contractors, Lakeside, CA in the
amount of $38,100.10.
BOARDS/COMMISSIONS RECOMMENDATION: Not applicable.
DISCUSSION:
The project area is an incomplete grading project started by a private developer. This project
consists of re-grading of a partially graded site in order to stabilize the site and return it to a safe
condition. The project is the result of the enforcement of a Letter of Credit which was issued
regarding the grading conveyed to the original grading pennit. The pennitted grading project was
never completed successfully and presents a threat to the safety of adjacent property.
The City is proceeding under an emergency abatement situation pursuant to Chula Vista Municipal
Code Section 15.04.320 (Emergency abatement by City - Liability for costs). The property owner,
Deborah Helm, was notified pursuant to Chula Vista Municipal Code Section 15.04.315
(Abatement of dangerous conditions), that they had ten days to abate the dangerous condition.
They have not complied. At the direction of the City Attorney's Office, staff proceeded to request
informal bids from five qualified contractors to do the work to stabilize the site.
Funds for this project are to be appropriated from the General Fund. It is anticipated that the
General Fund will be reimbursed upon completion of the project after litigation (now in progress)
is completed. /;2-,/
__ __~____.._ __ __ - n_ _,______.___.__.~._ _. ___ ____~.__ ~.
Page 2, Item
Meeting Date 10120/98
The bid proposal was divided into three portions. The base bid was for the earthwork
construction, revegetation and minor rehabilitation of street improvements that were damaged
during the original grading. Additive alternative "A" was for the import of additional soil if
necessary to complete the project. Additive alternative "B" was for the contractor to maintain the
rehabilitated landscaping for two years.
Informal bids for the project were requested from five contractors as follows:
Contractor
1. Basil Construction, Inc. - San Diego, CA
2. Single Eagle, Inc. - Poway, CA
3. MJC Construction - Chula Vista, CA
4. Roberts Engineering - Escondido, CA
5. FSG General Engineering Contractors - Lakeside, CA
The only contractor that submitted a bid for the project was FSG General Engineering
Contractors.
Their bid was for $ 35,184.10 for the base bid and $ 2,916.00 for additive alternative "A". The
contractor declined to bid on additive alternative "B". The bid has been reviewed by staff. The
bid amount appears to be reasonable for the project. After receipt of the bids, staff contacted the
other four contractors to ascertain the reasons they abstained from participation in the bid process.
The principal reason they did not submit a bid was that they were extremely busy and the project
was too small.
The maintenance portion of the project (additive alternate "B") will be bid informally by staff
once the work on the slope restoration starts. Staff will target contractors that specialize in the
landscape maintenance business only. Once we obtain the bids for maintaining the slope for two
years, we will return to Council to request award of that contract and to appropriate the necessary
funds.
Staff has reviewed the references supplied by FSG General Engineering Contractors and these
were satisfactory . Therefore, staff recommends awarding the contract to FSG General
Engineering Contractors for construction of this project.
Disclosure Statement
A copy of the contractor's disclosure statement is attached as Attachment A.
J;¿-;¿
Page 3, Item
Meeting Date 10/20/98
Environmental Status
The Environmental Review Coordinator has reviewed the work involved in this project and has
determined that the project is exempt under Section 15304, Class 4(f) of the California
Environmental Quality Act (Minor Alterations of Land; Minor Trenching and Backfilling where
the Surfacing is Restored).
Prevailin¡ Wa¡e Statement
The source of funding for this project is the General Fund with costs to be reimbursed from a
Letter of Credit. Contractors bidding this project were not required to pay prevailing wages to
persons employed by them for the work under this project. No special minority or women owned
business requirements were necessary as part of the bid documents. Disadvantaged businesses
were encouraged to bid through the sending of the Notice to Contractors to various trade
publications.
FISCAL IMPACT:
FUNDS REQUIRED FOR CONSTRUCTION
A. Contract Amount for base bid and alternate" A" $38,100.10
B. Contingencies (approximately 10%) 3,810.00
C. Staff Costs (Design, Construction & Inspection) 13,089.90
TOTAL FUNDS REQUIRED FOR CONSTRUCTION $55,000.00
FUNDS AVAILABLE FOR CONSTRUCTION
A. Appropriation of funds from General Fund to Project PG-553 $55,000.00
TOTAL FUNDS AVAILABLE FOR CONSTRUCTION $55,000.00
Funding used for this project will come from the General Fund. The General Fund will be repaid
upon completion of litigation that will permit the City access to the Letter of Credit posted as bond
for the original grading proposed at this site. Upon completion of the project, the landscaping will
require maintenance for two years. The maintenance contract will be awarded after the
rehabilitation project is completed. The City will request bids from contractors specializing in
landscaping maintenance.
Attachments: A - Contractor's Disclosure Statement
JRH:jrh
H:\HOME\ENGlNEER\AGENDA\PG553113.JRH
File No: 0735-46-PG-553 /2 -3
. . .._..._.___._____.._....N~....__._ _ __ ..__.~.....__________~__.__.__.. "__'_"_
RESOLUTION NO. /9 J.-3:5
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROPRIATING FUNDS, ACCEPTING
BIDS AND AWARDING CONTRACT FOR "EARTHWORK
CONSTRUCTION AND REVEGETATION OF SLOPE AT 289
AND 291 GREENWOOD PLACE, CHULA VISTA,
CALIFORNIA (PG-553)"
WHEREAS, at 2:00 p.m. on August 19, 1998, the Director of
Public Works received the following sealed informal bid for
"Earthwork Construction and Revegetation of Slope at 289 and 291
Greenwood Place, Chula Vista, California (PG-553) .":
FSG General Engineering Contractors
- Lakeside, CA $38,100.10
WHEREAS, their bid was for $ 35,184.10 for the base bid
and $ 2,916.00 for additive alternative \\A" and the contractor
declined to bid on additive alternative "BIf ; and
WHEREAS, the bid has been reviewed by staff and appears
to be reasonable for the project; and
WHEREAS, the Environmental Review Coordinator has
reviewed the work involved in this project and has determined that
the proj ect is exempt under section 15304, Class 4 (f) of the
California Environmental Quality Act (Minor Alterations of Land;
Minor Trenching and Backfilling where the Surfacing is Restored ) .
NOW, THEREFORE, BE IT RESOLVED the City Council of the
City of Chula vista does hereby accept the bid for "Earthwork
Construction and Revegetation of Slope at 289 and 291 Greenwood
Place" and awards the contract to FSG General Engineering
Contractors, Lakeside, Ca. in the amount of $38,100.10.
BE IT FURTHER RESOLVED that the amount of $55,000 is
hereby appropriated from the General Fund to Project PG553.
Presented by Approved as to form by
John P. Lippitt, Director of ey
Public Works
H:\home\lorraine\rs\PG553
):2 -y
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THE CITY OF CHULA VISTA DISCLOSURE STATEMENT 197r~t!N悭(}r "'8"
You are required to file a Statement of Disclosure of certain ownership or financiaJ interests, payments. or campaign contributions,
on all matters which will require discretionary action on \he pan of \he City Council, Planning Commission, and all other official
bodies. The following information must be disclosed:
1. List \he names of all persons having a financial interest in Ihe property which is the subject of the application or the
Contract, e.g., owner, applicant. Contractor, subcontractor, material supplier.
¡[IiL $/l
I
"
2, If any person' identified pursuant to (I) above is a corporation or partnership, list the names of all individuals owning
more than lO % of the shares in the corporation or owning any partnership interest in the partnership.
/1M ~
3. If any person' identified pursuant to (I) above is non-profit organization or a trust, list \he names of any person serving as
director of the non-profit organization or as trustee or beneficiary or trustor of the trust.
NA /VA
/
4. Have you had more than $250 worth of business transacted with any member of the City staff, Boards, Commissions,
Committees, and Council within the past twelve month? Yes _ No l5. If yes, please indicate person(s): AlA
5. Please identify each and every person, including any agents, employees. consultants, or independent Contractors who you
have assigned to represent you before the City in this matter.
~r~.UJ hlllæ
_/(~/..U£ FINcH
6. Have you and!or your officers or agents, in the aggregate, contributed more than $1,000 to a Council member in the
current or preceding election period? Yes _ No à If yes, stale which Council members(s): AI~.
Date: g-/¡e) q¡ · · · (NOTE: Attached addition~~ ·
( Signature of Contractor! Applicant
12/CHðU ñ/llQl (PrJ.u.) / ¡::~G- Gtw. £v6..:&vc..
.
Print or type name of Contractor! Applicant
, E.u1r.m is defined as: "Any individual, firm, co-partnership, joim venture, association, social club, fraternal organization,
corporation, estate, trust, receiver, syndicate, this and any other county, city or country, city municipality, distrier, or other
political subdivision, or any other group or combination acting as a unit./;Z - S-
6