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HomeMy WebLinkAboutAgenda Packet 2006/01/24 '.;ecl<:ire under pena:i.y ,.j": tJdlJU()- U\....., i .....')4 ;mployed by the City of Chula Vista If! lil". ~ ~ ~ f the City Clerk and that I po:;t"o tnl:':- ~ ~ t on the bulletin board accoroullJ t ~ __~~ requirements. - -.......... S. d ..g Igne Stephen C. Padilla, Mayor Patricia E. Chavez, Councilmember David D. Rowlands, Jr., City Manager John McCann, Council member Ann Moore, City Attorney Jerry R. Rindone, Councilmember Susan Bigelow, City Clerk Steve Castaneda, Council member January 24, 2006 6:00 P.M. Council Chambers City Hall 276 Fourth Avenue CALL TO ORDER ROLL CALL: Councilmembers Castaneda, Chavez, McCann, Rindone, and Mayor Padilla PLEDGE OF ALLEGIANCE TO THE FLAG, MOMENT OF SILENCE SPECIAL ORDERS OF THE DAY . INTRODUCTION BY POLICE CHIEF EMERSON OF POLICE RECRUITS JAMES ALLEN, ERIC CARTER, TODD COTE, MATTHEW DAVISON AND BRYAN MADDOX CONSENT CALENDAR (Items I through 5) The Council will enact the Consent Calendar staff recommendations by one motion, without discussion, unless a Councilmember, a member of the public, or City staff requests that an item be removed for discussion. If you wish to speak on one of these items, please fill out a "Request to Speak" form (available in the lobby) and submit it to the City Clerk prior to the meeting. Items pulled from the Consent Calendar will be discussed immediately following the Consent Calendar. I. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING A $238,500 GRANT FROM THE HAZARD ELIMINATION SAFETY (HES) PROGRAM; AND AMENDING THE FISCAL YEAR 2006 CAPITAL IMPROVEMENT PROGRAM BUDGET BY APPROPRIATING THE GRANT FUNDS AND A $50,000 CITY MATCH INTO THE "HES IMPROVEMENTS AT 4TH AND K" PROJECT, FROM THE TRAFFIC SIGNAL FEE FUND (4/5THS VOTE REQUIRED) The City has been awarded a grant from the Hazard Elimination Safety (HES) Grant Program to help meet project costs associated with the intersection at Fourth Avenue and K Street. A local match from the Traffic Signal Fee Fund will complete the funding package. Adoption of the resolution approves funding the improvements to eliminate safety hazards and improve traffic flow at this busy intersection. (City Engineer) Staff recommendation: Council adopt the resolution. Page I - Council Agenda http://www.chulavistaca.gov January 24, 2006 2 A. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE FINAL "B" MAPS OF CHULA VISTA TRACT NO. 99-04, SAN MIGUEL RANCH, PHASE III, PLANNING AREAS J-I, J-2, K AND L; ACCEPTING ON BEHALF OF THE CITY OF CHULA VISTA, THE VARIOUS STREETS AND EASEMENTS, ALL AS GRANTED ON SAID MAPS, WITHIN SAID SUBDIVISIONS AND APPROVING THE ASSOCIATED SUBDIVISION IMPROVEMENT AGREEMENTS FOR THE COMPLETION OF THE IMPROVEMENTS REQUIRED BY THE SUBDIVISION, AND APPROVING THE ASSOCIATED SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENTS, REQUIRING THE DEVELOPER TO COMPLY WITH CERTAIN UNFULFILLED CONDITIONS OF RESOLUTION NO. 2000-068 AND AUTHORIZING THE MAYOR TO EXECUTE THE AGREEMENTS B. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE . GRANT OF EASEMENTS AND MAINTENANCE AGREEMENTS FOR CHULA VISTA TRACT NO. 99-04, SAN MIGUEL RANCH, PHASE III PLANNING AREAS J-l, J-2, K AND L BETWEEN PROCTOR VALLEY WEST PARTNERS, LLC, AND CITY, REGARDING MAINTENANCE OF PRIVATE OPEN SPACE AND FACILITIES, AND AUTHORIZING THE MAYOR TO EXECUTE THE AGREEMENTS On February 29, 2000, the Council approved a tentative subdivision map for Chula Vista Tract 99-04, San Miguel Ranch. On August 3, 2004, Council approved San Miguel Ranch Phase 3 "A" Map No.1. Adoption of the resolutions approves Planning Areas J-l, J-2, K and L final maps within Phase 3 of San Miguel Ranch by the developer, Proctor Valley West Partners, LLC. (City Engineer) Staffrecommendation: Council adopt the resolutions. 3. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING THE REALLOCATION OF COMMUNITY DEVELOPMENT BLOCK GRANT FUNDS AND RESIDENTIAL CONSTRUCTION TAX FUNDS AMONG VARIOUS EXISTING CAPITAL IMPROVEMENT PROJECTS (4/5THS VOTE REQUIRED) Reallocation of Community Development Block Grant (CDBG) funds and Residential Construction Tax funds has become necessary in an effort to expend funds in a timely manner on various CDBG-eligible existing capital improvement projects as well as reallocate funds in older projects to current year projects and reco,-:er staff time as necessary. (General Services Director) Staff recommendation: Council adopt the resolution. 4. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AN AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND THE SWEETWATER UNION HIGH SCHOOL DISTRICT TO PROVIDE MIDDLE SCHOOL AFTER-SCHOOL PROGRAMS AND AUTHORIZING THE MAYOR TO EXECUTE THE AGREEMENT Page 2 - Council Agenda http://www.chulavistaca.gov January 24, 2006 The Sweetwater Union High School District has awarded the City, through its Recreation Department, a $100,542 contract for the provision of after-school programming at six Chula Vista Middle Schools. The adopted Fiscal Year 2006 Recreation Department budget includes funding for this middle school program contract. (Recreation Director) Staff recommendation: Council adopt the resolution. 5. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE SECOND AMENDMENT TO AN EXISTING CONTRACT BETWEEN THE CITY OF CHULA VISTA AND FNE OTHER AGENCIES AND DIGITAL MAPPING, INC., FOR ORTHOPHOTOGRAPHY SERVICES The City has completed the first part of a two-phased project to create new high resolution orthophotography and two-foot contours as part of the City's Geographic Information System. The orthophotography phase was successfully completed in phase one and the second phase calls for the generation of two-foot contours. The new contours are important to multiple departments and are greatly in need of updating. Significant landform changes have occurred since the last citywide contour project in 1994. (MIS Director) Staffrecommendation: Council adopt the resolution. ITEMS REMOVED FROM THE CONSENT CALENDAR PUBLIC COMMENTS Persons speaking during Public Comments may address the Council on any subject matter within the Council's jurisdiction that is not listed as an item on the agenda. State law generally prohibits the Council from taking action on any issue not included on the agenda, but, if appropriate, the Council may schedule the topic for future discussion or refer the matter to staff. Comments are limited to three minutes. ACTION ITEMS The items listed in this section of the agenda will be considered individually by the Council, and are expected to elicit discussion and deliberation. If you wish to speak on any item, please fill out a "Request to Speak" form (available in the lobby) and submit it to the City Clerk prior to the meeting. 6. CONSIDERATION OF AN AMENDMENT TO THE MUNICIPAL CODE TO REGULATE THE PROXIMITY OF SEX OFFENDERS TO SCHOOLS AND PARKS Convicted sex offenders who have committed a sexual offense against children pose a threat to the children residing or visiting this community. Adoption of the ordinance imposes additional safety precautions to further the goal of protecting children throughout the City of Chula Vista. (Police Chief) Staff recommendation: Council adopt the following ordinance: ORDINANCE OF THE CITY OF CHULA VISTA ADDING CHAPTER 9.80 TO THE CHULA VISTA MUNICIPAL CODE TO REGULATE THE PROXIMITY OF SEX OFFENDERS TO SCHOOLS AND PARKS Page 3 - CmUlcil Agenda http://www.chulavistaca.gov January 24, 2006 OTHER BUSINESS 7. CITY MANAGER REPORTS 8. MAYOR'S REPORTS A. Ratification of appointment of Mary Alim to the Childcare Commission B. Ratification of appointment of Susana Liston to the Cultural Arts Commission 9. COUNCIL COMMENTS Councilmember Chavez: A. Referral regarding condominium conversions B. Update regarding neighborhood associations CLOSED SESSION Announcements of actions taken in Closed Session shall be made available by noon on Wednesday following the Council Meeting at the City Attorney's office in accordance with the Ralph M Brown Act (Government Code 54957.7). 10. CONFERENCE WITH LEGAL COUNSEL REGARDING INITIATION OF LITIGATION PURSUANT TO GOVERNMENT CODE SECTION 54956.9(c) . One case 11. CONFERENCE WITH LEGAL COUNSEL REGARDING SIGNIFICANT EXPOSURE TO LITIGATION PURSUANT TO GOVERNMENT CODE SECTION 54956.9(b) . One case 12. PUBLIC EMPLOYEE APPOINTMENT PURSUANT TO GOVERNMENT CODE SECTION 54957 . Deputy City Attorney III 13. CONFERENCE WITH LEGAL COUNSEL REGARDING EXISTING LITIGATION PURSUANT TO GOVERNMENT CODE SECTION 54956.9(a) A. In re: The Environmental Trust, Inc. (USBC # 05-02321-LAII) B. Jesus Sanchez v. City ofChula Vista, et al. (USDC #04 0084 DMS) 14. CONFERENCE WITH LEGAL COUNSEL REGARDING ANTICIPATED LITIGATION PURSUANT TO GOVERNMENT CODE SECTION 54956.9 . One Case ADJOURNMENT to the Regular Meeting of February 7, 2006 at 4:00 p.m. in the Council Chambers, and thence to a Workshop immediately following the Regular Meeting in the Council Chambers. Page 4 - Council Agenda http://www .chula vistaca. gov January 24, 2006 In compliance with the AMERICANS WITH DISABILITIES ACT The City of Chula Vista requests individuals who require special accommodations to access, attend, and/or participate in a City meeting, activity, or service request such accommodation at least forty-eight hours in advance for meetings and five days for scheduled services and activities. Please contact the City Clerk for specific information at (619) 691-5041 or Telecommunications Devicesfor the Deaf (TDD) at (619) 585-5655. California Relay Service is also available for the hearing impaired. Page 5 - Council Agenda http://www .chulavistaca. gOY January 24, 2006 COUNCIL AGENDA STATEMENT Item Meeting Date I 1/24/06 ITEM TITLE: Resolution accepting a $238,500 grant from the Hazard Elimination Safety (HES) Program; and amending the FY 2006 Capital Improvement Program budget by appropriating the grant funds and a $50,000 City match into the HES Improvements at 4th and KProject from the Traffic Signal Fee Fund. SUBMITTED BY: City Engineer~ City Manager 11 ~ ylf.. (4/Sths Vote: YeslNo~ REVIEWED BY: BACKGROUND: The City has been awarded a grant from the Hazard Elimination Safety (HES) Grant Program to help meet project costs associated with the intersection at 4th Avenue and K Street near Chula Vista High School. A local match from the Traffic Signal Fee Fund will complete the funding package. The HES Improvements at 4th and K Proj ect will improve traffic flow and enhance safety at this busy intersection. RECOMMENDATION: That Council adopt the resolution: . Accepting $238,500 in unanticipated HES Grant Program funds; and . Amending the FY2006 CIP budget by appropriating $288,500 into the HES Improvements at 4th and K Project (TF-341), from the available balance of the Traffic Signal Fee Fund. BOARDS/COMMISSIONS: N/A DISCUSSION: The intersection at 4th Avenue and K Street liesjust north ofChula Vista High School and is heavily used during the school year by students and other pedestrian and vehicular traffic. Proposed enhancements include the installation of new traffic signal standards, mast arms, and pedestrian buttons at all four comers of the intersection at 4th Avenue and K Street. The project will also install signals and other equipment necessary to facilitate more efficient left-hand turns from all four directions. A video detection system will be provided, along with a battery backup power source for the signals to ensure continuity. In conjunction with the signal work, additional sidewalk and cross gutter reconstruction will bring sidewalks and pedestrian ramps into compliance with current Americans With Disabilities (ADA) design standards. Project Costs: The updated total estimated cost for the HES Improvements at 4th and K Project is $288,500 (see Attachment I), which represents an update of staffs preliminary year-old estimate. 1-1 Page 2, Item I Meeting Date 1/24/06 The updated costs are for preliminary design, field review, construction engineering, and project administration support. With Council approval (CR 2005-116), staff applied for and has been awarded a $238,500 federal grant ITom the Hazard Elimination Safety (HES) Grant Program to help meet project expenses (see Attachment 2). In addition, Council approved the commitment of a $27,722 City match ITom the Traffic Signal Fee Fund. However, to meet the additional estimated costs detailed above, staff recommends increasing the matching funds to $50,000. Sufficient Traffic Signal Fee funds are available for the revised match. The Department of Transportation (Caltrans) has taken the steps necessary to make the $238,500 in grant funds available to the City by programming our project into the Federal Transportation Improvements Program (FTIP). The City expects to receive Caltrans authorization in January 2006 to proceed with the work. Staff anticipates proceeding with design activities no later than February 2006, awarding construction contract(s) by August 2006, and completing the project by February 2007. The HES grant: HES grant funds are disbursed to the City on a reimbursement-only basis, as project costs are incurred. As such, project funds must be initially appropriated from another available funding source. Staff proposes pre-funding the newly createdHES Improvements at 4th and K CIP Project (TF-34l) by appropriating the total project amount - $288,500 - from the available balance of the Traffic Signal Fee Fund. During FY2006 and FY2007, the Traffic Signal Fee Fund will be reimbursed up to $238,500 from the grant proceeds as project costs are incurred. The remaining $50,000 appropriation represents the City's match, which would not be reimbursable from grant funds. FISCAL IMPACT: There is no net impact to the General Fund. Adoption of the resolution will accept $238,500 in unanticipated grant funds ITom the Hazard Elimination Safety (HES) grant program, and amend the FY2006 Capital Improvement Program (CIP) budget by appropriating $288,500 into the HES Improvements at4th and KProject (TF-341) ITom the available balance of the Traffic Signal Fee Fund. The Traffic Signal Fee Fund will, in turn, be reimbursed up to $238,500 from the HES grant during FY2006 and FY2007. Staff will be returning to Council in early FY2007 to award the contract(s) for project construction services. Attachments: 1. Project Cost Estimate (Revised 12/27/05) 2. Notification of Grant Award J "\ENGIN EER\AGENDA \CAS2006\O 1-24-06\HES Grant 1-2 CITY OF CHULA VISTA- ENGINEER'S COST ESTIMATE Attachment 1 Project: HES Improvements at 4th Avenue & K Street (TF-341) ITEM QTY UNIT UNIT COST TOTAL Traffic SiC1nal Upc!rades 1 Furnish and Install Type 24-4-80-35-15 Signal Standard on new 2 Each $ 8,000.00 $ 16,000.00 Foundation 2 Furnish and Install Type 19-3-80-25-15 Signa! Standard on new 2 Each $ 7,000.00 $ 14,000.00 Foundation 3 Re!ocate 3~Section Vehicle Indications per plan 4 Each $ 200.00 $ 800.00 4 Furnish and Instal13-Section Vehicle LED Indications with Arrow MAS 4 Each $ 700.00 $ 2,800.00 5 Replace Exist. Indication with new LED Arrow per plan 9 $ 150.00 $ 1,350.00 6 Furnish and Install Video Detection System - City Approved 1 Lump Sum $ 25,000.00 $ 25,000.00 7 Replace Exist. Pedestrian Indication with LED Countdown, SP1T per plan 8 Each $ 400.00 $ 3,200.00 8 Furnish and Install ADA Ped Push-Button & 4 part Crossing Instruct, 8 Each $ 200.00 $ 1,600.00 Plate SP1T (Polara Bulldog or approved equal) 9 Furnish and Install 250 Watts HPSV Cutoff Luminaires 4 Each $ 450.00 $ 1,800.00 10 Furnish and Install #6 Pull Box with Lid 4 Each $ 350.00 $ 1,400.00 11 Furnish and InstallllSNS with City Logo 4 Each $ 1,500.00 $ 6,000.00 12 Furnish and Install conduit per plan 400 Lineal Feet $ 25.00 $ 10,000.00 13 Furnish and Install New Sign per plan 4 Each $ 150.00 $ 600.00 14 Install New Striping 300 Lineal Feet $ 4.00 $ 1,200.00 15 Furnish and Install Conductor Cables - Wire Intersection 1 Lump Sum $ 6,500.00 $ 6,500.00 16 Furnish and Install SDGE approved Meter Pedestal with Clary UPS 1 Lump Sum $ 11,000.00 $ 11,000.00 inside the Cabinet 17 Traffic Control 1 Lump Sum $ 2,000.00 $ 2,000.00 18 Protection, Restoration, Removal and Disposal of Existing Improvements 1 Lump Sum $ 2,000.00 $ 2,000.00 Construction subtotal $ 107,250.00 19 Preliminary Engineering 1 Lump Sum $ 10,000.00 $ 10,000.00 20 Construction Engjneering 1 Lump Sum $ 8,015.00 $ 8,015.00 Traffic Signal Upgrades Subtotal $ 125,265.00 Pedestrian Facilities UpC1rades 1 Remove and Replace Cross Gutter and Span 1340 Sq Feet $ 20.00 $ 26,600.00 2 CVCS-19 Ped Ramp 2 Each $ 3,50000 $ 7,000.00 3 CVCS-25 Ped Ramp 2 Each $ 3,500.00 $ 7,000.00 4 Truncated Domes 4 Each $ 500.00 $ 2,000.00 5 Monolithic Curb, Gutter, Sidewalk 40 Linea! Feet $ 70.00 $ 2,800.00 6 Asphalt Concrete Pa.vement and Seal Coat (4") 40 Tons $ 200.00 $ 8,000.00 7 Crushed Aggregate Base (10") 100 Tens $ 100.00 $ 10,000.00 8 Survey (tope and staking) 1 Lump Sum $ 10,000.00 $ 10,000.00 9 Stem Wall (6") 30 Lineal Feet $ 50.00 $ 1 ,500.00 10 Irrigation and Landscape replacement 120 Sq Feet $ 1.30 $ 156.00 11 Demolition 1 Lump Sum $ 5,000.00 $ 5,000.00 12 Traffic Control 1 Lump Sum $ 5,000.00 $ 5,000.00 Construction subtotal $ 85,256.00 13 Construction inspection 15% 0.15 $ 12,788.40 14 Design/Preliminary Engineering 20% 0.20 $ 17,051.20 Pedestrian Facilities Upgrades Subtotal $ 115,095.60 Proiect Subtotal $ 240,360.60 Contingencies 20% 0.20 $ 48,072.12 Project Total $ 288,432.72 1-3 City of Chula Vista, Engineedng Department (Revised 12/27/05) STATE OF CALIFORNIA - BUSiNESS, TRANSPOR,TATIO,I HOUSING AGENCY ~E.Q.~ s~,:i~~:C-:N8G":;;E:~, Ga~::: DEPARTMENT OF TRANSPbRTATION DISTRICT 11 PO. BOX 85406 SAN DIEGO, CA 92186-5406 PHONE: (858) 616 5523 FAX: (858) 616-6532 !\ TT ACHMENT 2. September 8, 2005 Mr, Alex AI-Agha City Engineer City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 Dear Mr. AI-Agha: Congratulations! Your ap~lication for Hazard Elimination Safety (HES) funding for traffic siqnal uPGradlnq at the Intersection of 4 Ave. and K street has made the Itst of projects approved for funding in the 2005/2006 Federal Fiscal Year (FFY) starting October 1, 2005. Over 400 applications were submitted by loca! agencies from around the state, Seventy-two (72) applications were approved for funding. For a complete project listing of the 2005/2006 HES Program, please visit the HES website at www.dot.ca ,gov/hq/LocaIProg rams/. ~ Please notify Manieh Varner, District HES Program Coordinator when you choose to request an authorization (E-76) for federal funding on any phase of work (i.e. PE, RlW, Construction) for which you are requesting federal reimbursement after the region programs the federal dollars in the FTIP for FY05/06 (scheduled for the end of October or November 2005). Be advised that a construction contract must be awarded by September 30, 2006. Failure to award a construction contract by September 30, 2006, and a full liquidation of funds by September 30, 2007 may result in the project being dropped from the program, and/or a return of funds already expended to the State. Forms and instructions for requesting authorization of federal funds are covered in Chapter 3 of the Local Assistance Procedures Manua! (visit the website at http://www.dot.ca.Gov/hq/LocaIProqrams/lam/lapm.htm). There can be no reimbursement for any work done in advance of the authorization date. Additionally, please refer to Chapter 6 and 7 of the Local Assistance Procedures Manual for completing the Preliminary Environmental Study (PES) Form and Field Review Form respectively as a first order of work. Federal HES funding is limited to: 1) the amount shown on your application $238,500, and 2) only those features related to correcting the safety problem identified in your application. You must be prepared to fund any cost over the approved amount. Any non-safety related work done as part of your project will be considered non-participating. It is the responsibility of the Local Agency to ensure that the project will correct a safety problem and will meet all minimum AASHTO standards, and comply with federal ADA requirements. For assistance, please .call Manieh Varner at 858-616-6528 to discuss the details of these initial steps, and other future steps, that you should be aware of throughout the project development process for a federal-aid project. Sincerely '(V\(l.~.h. V?,y~ ~'Y~ Gary L. Vettese, District Local Assistance Engineer 1-4 RESOLUTION NO. 2006- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING A $238,500 GRANT FROM THE HAZARD ELIMINATION SAFETY (HES) PROGRAM; AND AMENDING THE FY2006 CAPITAL IMPROVEMENT PROGRAM BUDGET BY APPROPRIATING THE GRANT FUNDS AND A $50,000 CITY MATCH INTO THE "HES IMPROVEMENTS AT 4TH AND K" PROJECT FROM THE TRAFFIC SIGNAL FEE FUND. WHEREAS, the intersection of 4th Avenue and K Street lies just north of Chula Vista High School and is used during the school year by a large number of school-aged pedestrians; and WHEREAS, the current traffic signal system at the intersection requires updating and improvements to enhance safety conditions for both pedestrians and motorists; and WHEREAS, sidewalk and cross gutter improvements are also required at the intersection in order to comply with current Americans With Disabilities Act (ADA) design standards; and WHEREAS, the City has been awarded a grant from the Hazard Elimination Safety (HES) Grant Program to help meet project costs; and WHEREAS, total project costs can be met through a combination of HES grant funds and local matching funds; and WHEREAS, HES grant funds are disbursed to the City on a reimbursement-only basis and as such, project funds must be initially appropriated from another available funding source; and WHEREAS, sufficient Traffic Signal Fee funds are available for the necessary appropriation; NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby 1. Accept $238,500 in unanticipated Hazard Elimination Safety (HES) Grant Program funds; and 1-5 2. Amend the FY2006 Capital Improvement Program budget by appropriating $288,500 into the HES Improvements at 4th and K Project (TF-341), from the available balance of the Traffic Signal Fee Fund. Presented by Approved as to form by Sohaib AI-Agha City Engineer J~ f /!IUL Jack Griffin Director of General Services H:/Attomey/Final Resos/2006/I 24 06/Reso-HES Grant 1-6 COUNCIL AGENDA STATEMENT Item ;2. Meeting Date 01/24/06 ITEM TITLE: Resolution approving the Final "B" Maps of Chula Vista Tract No. 99-04, San Miguel Ranch, Phase ill, Planning Areas J-l; J-2, K andL. Accepting on behalf of the City of Chula Vista, the various streets and easements, all as granted on said maps, within said subdivisions; approving the associated Subdivision Improvement Agreements for the completion of the improvements required by said subdivision; approving the associated Supplemental Subdivision Improvement Agreements, requiring the developer to comply with certain unfulfilled conditions of Resolution No. 2000-068; and authorizing the Mayor to execute said Agreements. Resolution approving the Grant of Easements and Maintenance Agreements for Chula Vista Tract No. 99-04, San Miguel Ranch, Phase ill Planning Areas J-l, J-2, K and L, between Proctor Valley West Partners, LLC, and City, regarding maintenance of private open space and facilities and authorizing the Mayor to execute said Agreements SUBMITTED BY: City Engineer ~ City Manager i ~ Jl R (4/Sths Vote: Yes_NolO REVIEWED BY: On February 29, 2000, by Resolution No. 2000-068, Council approved a Tentative Subdivision Map for Chula Vista Tract 99-04, San Miguel Ranch. On August 3, 2004 by Resolution No. 2004-246, Council approved San Miguel Ranch Phase 3 "A" Map No.1. Tonight, Council will consider the approval of Planning Areas J-l, J-2, K and L final maps within Phase 3 of San Miguel Ranch by the developer Proctor V alley West Partners, LLC. RECOMMENDATION: That Council adopt the following: 1. Resolution approving the Final "B" Maps & Subdivision Improvement Agreements. 2. Resolution approving the "B" Maps Supplemental Subdivision Improvement Agreements. 3. Resolution approving the Grant of Easements and Maintenance Agreements. BOARDS/COMMISSIONS RECOMMENDATION: Not applicable DISCUSSION: The area is generally located north east of Proctor Valley Road, west ofSR-125, within the area of San Miguel Ranch Phase 3. The "B" map for Planning Area J-l consists of 70 numbered lots (Single Family Detached units) and two lettered lots, totaling a gross area of39.579 acres (see Exhibit 1). The "B" map for Planning Area J-2 consists of 69 numbered lots and two lettered lots with a total area of 23.155 acres (see Exhibit 2). The "B" map for Planning Area K consists of73 numbered lots and two lettered lots with a total area of 42.127 acres (see Exhibit 3). The "B" map for Planning Area L consists of 74 numbered lots and no lettered lots with a total area of 59.238 acres (see Exhibit 4). These four "B" maps comprise the last maps within the San Miguel Ranch Subdivision. 2-1 Page 2, Item ;2.. Meeting Date 01/24/06 The final maps have been reviewed by the Engineering and Public Works Departments and found to be in substantial conformance with the approved Tentative Map. Approval of these maps constitutes acceptance by the City of all assignable and irrevocable general utility and access easements, tree planting and maintenance easements, sight visibility easements, and emergency and pedestrian access easements within the subdivision. Proctor Valley West Partners, LLC, as subsequent and current owner of planning Areas J-l, J-2, K and L has executed the appropriate Subdivision Improvement Agreements, providing bonds to secure the construction of onsite facilities within the subdivision and Supplemental Subdivision Improvement Agreements, which address several outstanding conditions of the tentative map. Affordable Housin!! The Developer has satisfied his Affordable Housing Program obligation for San Miguel Ranch, Phase III. Parks All PAD fees were paid through the second bond sale for the infTastructure CFD 200 I-I, per Resolution No. 2004-391 approving the sale of bonds for CFD 2001-1. Grant of Easements and Maintenance A!!reement There is no maintenance CFD for San Miguel Ranch, therefore San Miguel Ranch Home Owners Association is responsible for all maintenance. The Maintenance Agreement establishes specific obligations and responsibilities of the developer, which will later be transferred to the Home Owners Association, regarding the maintenance of private open space and facilities within the right-of-way. This agreement also grants non-City crews permission to maintain parkways in the public right-of-way and storm drain inlets equipped with water quality facilities. FISCAL IMP ACT: None to the City. The developer has paid all costs associated with the proposed Final Map and agreement. Attachments: Exhibit 1: Plat - San Miguel Ranch Planning Area "1-1", Chula Vista Tract 99-04, location map. Exhibit 2: Plat - San Miguel Ranch Planning Area "1-2", Chula Vista Tract 99-04, location map. Exhibit 3: Plat - San Miguel Ranch Planning Area "K", Chula Vista Tract 99-04, 1ocation map. Exhibit 4: Plat - San Miguel Ranch Planning Area "L", Chula Vista Tract 99-04, location map. Exhibit 5: Developer's Disclosure Statements. J:\ Engineer\Agenda\CAS2006\1-24-06\San Miguel Ranch Phase lIl\Al13.doc 2-2 CHULA VISTA TRACT NO. 99-04 SAN MIGUEL RANCH PLANNING AREA "J -1" exH18IT -L ~ ~ 6 8 I s . .. I ~ 50 .. .. 81 SO .. ..,. C> , '" ~ '" . .::r: 0 Ol)<:", <:<:0..'0 G~~~ ",,..,, ~~~~ "'~"'o.. 1-' 0:>'" i!'!<:u,;:;: ~"'O:> "'O:>~ ::j 0.. E cHULA VISTA TRACT NO. 99"04 SAN MIGUEL RANcH PJ-JASES 3 'A" MAP NO, 1 MAP NO, 14863 4 II HUNSAKER & ASSOCIATES o 300 ~ SCALE 600 I 1"=300' 900 I s ~ N DIE Ga'l N C PLANNINC 10179 Huennekens Street. ENQNEERING San ~ Ca 92121 SURVEYING PH(858)558-4500. FX(858)S58-1414 R:\042J\&Map\EXH FM PA J-l COUNCIL.DWG[ 2095jAug-27-2004:09:042.~io. 2091-57 CHULA VISTA TRACT NO. 99-04 SAN MIGUEL RANCH PLANNING AREA "J -2" EXHIBIT ~ cHULA VISTA TRACT NO. 99-04 sAN MJGUEL RANcH PLANNJNG AREA "J-1" ~ LOT "A" 27 11 I I I I I I I I } / / / / ) / f-, ) , / _ // LoT "Q" AVENIDA ALTAKIRA _-' " I O-r "S" /'\~ - CHULA VJST A TRAC-r NO, 99-04 ~----------------" , SAN MIGUEL RANcH pHASES 3 'A" MAP NO.1 MAP No, 14863, 29 21 26 36 30 22 37 10 23 24 LoT "C" PLAZA PALA ALTO 6 5 / / / ( / / I LOT "A" LOT "P" II HUNSAKER & ASSOCIATES o 200 ~ SCALE 400 1"=200' 600 I SAN DIEGO, I/'Ie. PLANNING 1~ Huennekens Street ENQNEERING San Diego, Ca. 92121 SURVEYING PH(S5a)SSB-4500. FX(8SS)SSIJ.1414 R:\042J\&:Map\EXH FM PA J-2 COUNCIL.DWG[ 209SjAug-27-2004:09:042-#'o. 61-418 EXHIBI "K" o 300 ~ SCALE '0' \-0-( e?p.v" O?"I'I 9-0<' '" 0-,- ~ . <!\, 'i), "0 <>"- 68 j '" ~ 8 7 8 9 59 11 58 COln'B )IIlWJOR 19 12 18 57 13 20 17 21 63 67 64 66 65 ~ ~ / ~ ~ CHULA VISTA TRACT NO. 99-04 SAN MIGUEL RANCH PHASES 3 'A, MAP NO. i MAP No. i4653. LOT 'G' OPEN SPACE 1>." '1-0 ./:- ,><",v 0';1 <I' <) ~ ~"- <<' ",0 <'''6>-' -s' ~ o ~ II HUNSAKER & ASSOCIATES SAN DlfCO, INC. PlANNING 10179 Huennekem Street ENONEERING San Diego. Ca 91111 SURVEYING PH(S56)S58-4500. FX(a5S)558-1414 R:\0425\&Mop\EXH FM PA K eOUNe/LOWG[ 2095}Aug-27-2004:09:04 2w..!i. 270-81 CHULA VISTA TRACT NO. 99-04 SAN MIGUEL RANCH PLANNING AREA "L" 46 45 42 44 ..,. b ",'?i. "'.0 ":-0',, ~ ,,0 .$' 41 40 39 36 37 > .,.# " 30 29 26 27 26 25 24 23 22 1200 21 I 20 19 16 17 16 15 14 13 " o 400 ~ SCALE 800 I 1"=400' II HUNSAKER & ASSOCIATES 5 II N DIE Ga'l N C. PLANNING 10179 Huennekens Street ENQNEERfNC San Diego, Ca 92121 SURVEYING PH(a5a)S584500. FX(6S8)S58-1414 R:\0425\&Map\EXH FM PA L COUNCIL.OWG[ 209S]Au9-27-2004:09:04 -2~<ii 51-419 LOT "A" ;... l- e -.J 72 73 @ AvzjUDA CD 2 R06 14165 EXHIBIT '" '" " , ~ ~ ':10 0 00<: <:<; ro J-"C(Q,IO oa:~", .q:,..,<~ ~!:Y~o ",~",<: :D 12)G. s:<:",~ <<",< ","'''' :3 ~ ::r: o '" '" . '"' fi. H \ 6 i "I 5. City of Chula Vista Disclosure Statement Pursuant to Council Policy 101-01, prior to any action upon matters which will require discretionary action by the Council, Planning Commission and all other official bodies of the City, a statement of disclosure of certain ownership or financial interests, payments, or campaign contributions for a City of Chula Vista election must be filed. The following information must be disclosed: L List the names of all persons having a financial interest in the property that is the subject of the application or the contract, e.g., owner, applicant, contractor, subcontractor, material supplier. Vroc:J.o..- \k...\'O We~ ~=-r4-,^-~r$, LLc 2. If any person' identified pursuant to (1) above is a corporation or partnership, list the names of an individuals with a $1000 investment in the business (corporation/partnership) entity. ~f\~ t.\.-e--.-kr CJ~~L",-~"e>'~ - '_ ~L.,",- ~~ ~~ "B:.e> ~e... 3-eQ:.. U L;,..t-:J,J~ 3. If any person' identified pursuant to (1) above is a non-profit organization or trust, list the names of any person serving as director of the non-profit organization or as trustee or beneficiary or trustor of the trust. 4. Please identify every person, including any agents, employees, consultants, or independent contractors you have assigned to represent you before the City in this matter? ~.-'""% No._,-"."J.r.::.. /z::...." er"^-~ t-\e '7-+e.v-- 5. Has any person' associated with this contract had any financial dealings with an official" of the City of Chula Vista as it relates to this contract within the past 12 months. Yes_ No ~ 2-7 City of Chula Vista Disclosure Statement lfYes, briefly describe the nature ofthe financial interest the official" may have in this contract? 6. Have you made a contribution of more than $250 within the past twelve (12) months to a current member of the Chula Vista City Council? No t- Yes _ If yes, which Council member? 7. Have you or any member of your governing board (i.e. Corporate Board of DirectorslExecutives, non-profit Board of Directors made contributions totaling more than $1,000 over the past four (4) years to a curreot member of the Chula Vista City Council? Yes_ No...K- If Yes, which Council member? 8. Have you provided more than $300 (or an item of equivalent value) to an official" ofthe City ofChula Vista in the past twelve (12) months? (This includes being a source of income, money to retire a legal debt, gift, loan, etc.) Yes _ No-15- If Yes, which official *. and what was the nature of item provided? . Date: l- ~b - orb s~'- Signature of Contractor/Applicant Stephen E. Hester Exec.Jtive Vice President Print or type name of Contractor/Applicant · Person is defined as: any individual, finn, co-partnership, joint venture, association, social club, ftatema! organization, corporatioo, estate, trust, receiver, syndicate, any other county, city, municipality, district, or other political subdivision, -or any other group or combination acting as a unit. *. Official includes, but is not limited to: Mayor, Council member, Planning Commissioner, Member of a board, commission, or committee of the City, employee, or staffmemhers. J:\ENGINEER\LANDDEV\FORMS-OFFICIAL IMISC\DISCLOSURE ST A TEMENTDOC 2-8 RESOLUTION NO. 2006- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE FINAL "B" MAPS OF CHULA VISTA TRACT NO. 99-04, SAN MIGUEL RANCH, PHASE III, PLANNING AREAS J-1, J-2, K, and L; ACCEPTING ON BEHALF OF THE CITY OF CHULA VISTA, THE VARIOUS STREETS AND EASEMENTS, ALL AS GRANTED ON SAID MAPS, WITHIN SAID SUBDIVISIONS, AND APPROVING THE ASSOCIATED SUBDIVISION IMPROVEMENT AGREEMENTS FOR THE , COMPLETION OF THE IMPROVEMENTS REQUIRED BY SAID SUBDIVISIONS, AND APPROVING THE ASSOCIATED SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENTS, REQUIRING DEVELOPER TO COMPLY WITH CERTAIN UNFULFILLED CONDITIONS OF RESOLUTION NO. 2000-068 AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENTS. WHEREAS, the developer, PROCTOR VALLEY WEST PARTNERS, LLC, has submitted a final map for San Miguel Ranch Planning Areas "J-1, J-2, K, and L"; and WHEREAS, the developer has executed Subdivision Improvement Agreements to install public facilities associated with the projects; and WHEREAS, the developer has executed Supplemental Subdivision Improvement Agreements to satisfy remaining conditions of City Council Resolutions No. 2000-068 and No. 2001-453. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista hereby finds that certain map survey entitled Chula Vista Tract 99-04, San Miguel Ranch Planning Area "J-1", and San Miguel Ranch Planning Area "J-2", and San Miguel Ranch Planning Area "K", and San Miguel Ranch Planning Area "L", and more particularly described as follows: As to Planning Area "J-1": Being a subdivision of lots 2, 3, F, and G, and a portion of Avenida Loretta, of Chula Vista Tract No. 99-04, San Miguel Ranch Phase 3 "A" Map No.1 in the City Of Chula Vista, County of San Diego, state of California, according to Map thereof No. 14853, filed in the Office of the County Recorder of San Diego County on August 10,2004. Area: 39.579 Acres Numbered Lots: 70 No. of Lots: 72 Lettered Lots: 2 As to Planning Area "J-2": Being a subdivision of lot 4, and Lot H of Chula Vista Tract No. 99-04, San Miguel Ranch Phase 3 "A" Map No. I in the City Of Chula Vista, County of San Diego, state of California, according to Map thereof No. 14853, filed in the Office of the County Recorder of San Diego County on August 10,2004. Area: 23.155 Acres Numbered Lots: 69 No. of Lots: 71 Lettered Lots: 2 2-9 Resolution 2006- Page 2 As to Planning Area "K": Being a subdivision of lot 5, of Chula Vista Tract No. 99-04, San Miguel Ranch Phase 3 "A" Map No. I in the City of Chula Vista, County of San Diego, state of California, according to Map thereof No. 14853, filed in the Office of the County Recorder of San Diego County on August 10,2004. Area: 42.127 Acres Numbered Lots: 73 No. of Lots: 75 Lettered Lots: 2 . As to Planning Area "L": Being a subdivision of lot I, and a portion of Lot "N" of Chula Vista Tract No. 99-04, San Miguel Ranch Phase 3 "A" Map No. 1 in the City of Chula Vista, County of San Diego, state of California, according to Map thereof No. 14853, filed in the Office of the County Recorder of San Diego County on August 10, 2004. Area: 59.238 Acres Numbered Lots: 74 No. of Lots: 74 Lettered Lots: 0 is made in the manner and form prescribed by law and conforms to the surrounding surveys; and that said map and subdivision of land shown thereon is hereby approved and accepted. BE IT FURTHER RESOLVED, the City Council hereby accepts on behalf of the City of Chula Vista the various easements, all as granted on the maps within the subdivisions, subject to the conditions set forth thereon. BE IT FURTHER RESOLVED that the City Clerk of the City of Chula Vista is hereby authorized and directed to endorse upon the maps the action of the City Council; that the City Council has approved the subdivision maps, and that those certain easements, as granted thereon and shown on the maps within the subdivisions, are accepted on behalf of the City of Chula Vista as herein above stated. . BE IT FURTHER RESOLVED that City Clerk be and she is hereby directed to transmit said maps to the Clerk of the Board of Supervisors of the County of San Diego. BE IT FURTHER RESOLVED that that certain Subdivision Improvement Agreements for the completion of improvements in the subdivisions, copies of which shall be kept on file in the office of the City Clerk, are hereby approved. BE IT FURTHER RESOLVED that the certain Supplemental Subdivision Improvement Agreements for addressing on-going conditions of approval that will remain in effect and run with the land for the maps, copies of which are on file in the Office of the City Clerk are hereby approved. 2-10 Presented by Sohaib AI-Agha City Engineer 2-11 Approved as to fonn by THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIL Ann Moore City Attorney Dated: J117/Db I I Subdivision Improvement Agreement between the City of Chula Vista and Proctor Valley West Partners, LLC for San Miguel Ranch Planning Area "J-l" 2-12 Recording Requested by: CITY CLERK When Recorded, Mail to: CITY OF CHULA VISTA 276 Fourth Avenue Chula Vista, CA 91910 No transfer tax is due as this is a conveyance to a public agency ofless than a fee interest for which no cash consideration has been paid or received. - Declarant SUBDIVISION IMPROVEMENT AGREEMENT THIS AGREEMENT, made and entered into this day of ,2005, by and between THE CITY OF CHULA VISTA, a municipal corporation, hereinafter called "City", PROCTOR VALLEY WEST PARTNERS, LLC, a Delaware Limited Liability Company, 85 Argonaut, Suite 205, Aliso Viejo, CA. 92656, hereinafter called "Subdivider" with reference to the facts set forth below, which Recitals constitute a part of this Agreement; RECITALS: WHEREAS, Subdivider is about to present to the City Council of the City of Chula Vista for approval and recordation, a fmal subdivision map of a proposed subdivision, to be known as San Miguel Ranch, Planning Area "J-l", (CVT 99-04) pursuant to the provisions of the Subdivision Map Act of the State of California, and in compliance with the provisions of Title 18 of the Chu1a Vista Municipal Code relating to the filing, approval and recordation of subdivision map; and WHEREAS, the Code provides that before said map is finally approved by the Council of the City of Chula Vista, Subdivider must have either installed and completed all of the improvements and/or land development work required by the Code to be installed in subdivisions before final maps of subdivisions are approved by the Council for purpose of recording in the Office of the County Recorder of San Diego County, or, as an alternative thereto, Subdivider shall enter into an agreement with City, secured by an approved improvement security to insure the perfo=ance of said work pursuant to the requirements of Title 18 of the Chula Vista Municipal Code, agreeing to install and complete, free of liens at Subdivider's own expense, all of the improvements and/or land development work required in said subdivision within a definite period of time prescribed by said Council; and WHEREAS, Subdivider is willing in consideration of the approval and recordation of said map by the Council, to enter into this agreement wherein it is provided that Subdivider will -1- 2-13 install and complete, at Subdivider's own expense, all the improvement work required by City in connection with the proposed subdivision and will deliver to City improvement securities as approved by the City Attorney; and WHEREAS, a tentative map of said subdivision has heretofore been approved, subject to certain requirements and conditions, as contained in Resolution No. 2000-068, approved on the 29th day of February, 2000 ("Tentative Map Resolution"); and WHEREAS, complete plans and specifications for the construction, installation and completion of said improvement work have been prepared and submitted to the City Engineer, a.s shown on Drawing Sets 03121, inclusive on file in the office of the City Engineer; and WHEREAS, an estimate of the cost of constructing said improvements according to said plans and specifications has been submitted and approved by the City in the amount of ONE MILLION, ONE HUNDRED. TEN THOUSANDS, FNE HUNDREDS NINETY ONE DOLLARS, AND FIFTY CENTS ($1,110,591.50). NOW, THEREFORE, IT IS MUTUALLY UNDERSTOOD AND AGREED AS FOLLOWS: 1. Subdivider, for itself and his successors in interest, an obligation the burden of which encumbers and runs with the land, agrees to comply with all of the terms, conditions and requirements of the Tentative Map Resolution; to do and perform or cause to be done and performed, at its own expense, without cost to City, in a good and workmanlike manner, under the direction and to the satisfaction and approval of the City Engineer, all of the improvement and/or land development work required to be done in and adjoining said subdivision, including the improvements described in the above Recitals ("Improvement Work"); and will furnish the necessary materials therefore, all in strict conformity and in accordance with the plans and specifications, which documents have heretofore been filed in the Office of the City Engineer and as described in the above Recitals this reference are incorporated herein and made a part hereof. 2. It is expressly understood and agreed that all monuments have been or will be installed within thirty (30) days after the completion and acceptance of the Improvement Work, and that Subdivider has installed or will install temporary street name signs if p=anent street name signs have not been installed. 3. It is expressly understood and agreed that Subdivider will cause all necessary materials to be furnished and all Improvement Work required under the provisions of this contract to be done on or before the second anniversary date of Council approval of the Subdivision Improvement Agreement. 4. It is understood and agreed that Subdivider will perform said Improvement Work as set forth hereinabove, or that portion of said Improvement Work serving any buildings or structures ready for occupancy in said subdivision, prior to the issuance of any certificate of -2- 2-14 clearance for utility connections for said buildings or structures in said subdivision, and such certificate shall not be issued until the City Engineer has certified in writing the completion of said improvements or the portion thereof serving said building or structures approved by the City; provided, however, that the improvement security shall not be required to cover the provisions of this paragraph. 5. It is expressly understood and agreed to by Subdivider that, in the perfo=ance of said Improvement Work, Subdivider will confo= to and abide by all of the provisions of the ordinances of the City of Chula Vista, and the laws of the State of California applicable to said work. 6. Subdivider further agrees to furnish and deliver to the City of Chula Vista, simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of THREE HUNDRED THIRTY NINE THOUSANDS, SEVEN HUNDRED SEVENTY FOUR, AND FIFTY CENTS ($339,774.50), which security shall guarantee the faithful perfo=ance of this contract by Subdivider and is attached hereto, marked Exhibit "A" and made a part hereof. ..7. Subdivider further agrees to furnish and deliver to the City of Chula Vista, simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of THREE HUNDRED THIRTY NINE THOUSANDS, SEVEN HUNDRED SEVENTY FOUR, AND FIFTY CENTS ($339,774.50), to secure the payment of material and labor in connection with the installation of said improvements, which security is attached hereto, marked Exhibit "B" and made a part hereof and the bond amounts as contained in Exhibit "B", and made a part hereof. 8. Subdivider further agrees to furnish and deliver to the City of Chula Vista, simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of TWENTY THOUSANDS, AND NO CENTS ($20,000.00) to secure the installation of monuments, which security is attached hereto, marked Exhibit "C" and made a part hereof. 9. It is further agreed that if the Improvement Work is not completed within the time agreed herein, the sums provided by said improvement securities may be used by City for the completion of the Improvement Work within said subdivision in accordance with such specifications herein contained or referred, or at the option of the City, as are approved by the City Council at the time of engaging the work to be perfo=ed. Upon certification of completion by the City Engineer and acceptance of said work by City, and after certification by the Director of Finance that all costs hereof are fully paid, the whole amount, or any part thereof not required for payment thereof, may be released to Subdivider or its successors in interest, pursuant to the terms of the improvement security. Subdivider agrees to pay to the City any difference between the total costs incurred to perfo= the work, including design and administration of construction (including a reasonable allocation of overhead), and any proceeds from the improvement security. 10. It is also expressly agreed and understood by the parties hereto that in no case will -3- 2-15 the City of Chula Vista, or any department, board or officer thereof, be liable for any portion of the costs and expenses of the work aforesaid, nor shall any officer, bis sureties or bondsmen, be liable for the payment of any sum or sums for said work or any materials fumished therefore, except to the limits established by the approved improvement security in accordance with the requirements of the State Subdivision Map Act and the provisions of Title 18 of the Chula Vista Municipal Code. 11. It is further understood and agreed by Subdivider that any engineering costs (including plan checking, inspection, materials furnished and other incidental expenses) incurred by City in connection with the approval of the Improvement Work plans and installation of Improvement Work hereinabove provided for, and the cost of street signs and street trees as required by City and approved by the City Engineer shall be paid by Subdivider, and that Subdivider shall deposit, prior to recordation of the Final Map, with City a sum of money sufficient to cover said cost. . 12. It is understood and agreed that until such time as all Improvement Work is fully completed and accepted by City, Subdivider will be responsible for the care, maintenance of, and any damage to, the streets, alleys, easements, water and sewer lines within the proposed subdivision. It is further understood and agreed that Subdivider shall guarantee all improvements for a period of one year from date of final acceptance and correct any and all defects or deficiencies arising during said period as a result of the acts or omission of Subdivider, its agents or employees in the perfonnance of this agreement, and that upon acceptance of the work by City, Subdivider shall grant to City, by appropriate conveyance, the improvements constructed pursuant to this agreement; provided, however, that said acceptance shall not constitute a waiver of defects by City as set forth hereinabove. . 13. It is understood and agreed that City, as indemnitee, or any officer or employee thereof, shall not be liable for any injury to person or property occasioned by reason of the acts or omissions of Subdivider, its agents or employees, or indemnitee, related to this agreement. Subdivider further agrees to protect and hold the City, its officers and employees, harmless from any and all claims, demands, causes of action, liability or loss of any sort, because of or arising out of acts or omissions of Subdivider, its agents or employees, or indemnitee, related to this agreement; provided, however, that the approved improvement security shall not be required to cover the provisions of this paragraph. Such indemnification and agreement to hold harmless shall extend to damages to adj acent or downstream properties or the taking of property from owners of such adjacent or downstream properties as a result of the construction of said subdivision and the improvements as provided herein. It shall also extend to damages resulting from diversion of waters, change in the volume of flow, modification of the velocity of the water, erosion or siltation, or the modification of the point of discharge as the result of the construction and maintenance of drainage systems. The approval of plans providing for any or all of these conditions shall not constitute the assumption by City of any responsibility for such damage or taking, nor shall City, by said approval, be an insurer or surety for the construction of the subdivision pursuant to said approved improvement plans. The provisions of this paragraph shall become effective upon the execution of this agreement and shall remain in full force and effect for ten (10) years following the acceptance by the City of the improvements. -4- 2-16 14. Subdivider agrees to defend, indemnify, and hold harmless the City or its agents, officers, and =ployees ftom any claim, action, or proceeding against the City or its agents, officers, or employees to attack, set aside, void, or annul, an approval of the City, advisory agency, appeal board, or legislative body concerning a subdivision, which action is brought within the time period provided for in Section 66499.37 of the Government Code of the State of California. 15. Assignability. Upon request of the Subdivider, any or all on-site duties and obligations set forth herein may be assigned to Subdivider's successor in interest if the City Manager in his/her sole discretion determines that such an assignment will not adversely affect the City's interest. The City Manager in his/her sole discretion may, if such assignment is requested, pennit a substitution of securities by the successor in interest in place and stead of the original securities described herein so long as such substituted securities meet the criteria for security as set forth elsewhere in this Agreement. Such assignment will be in a form approved by the City Attorney. -5- 2-17 SIGNATURE PAGE ONE OF TWO SUBDNISION IMPROVEMENT AGREEMENT San Miguel Ranch, Planning Area "J-1" (CVT 99-04) IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed the day and year first hereinabove set forth. THE CITY OF CHULA VISTA Stephen C. Padilla Mayor ATTEST: Susan Bigelow City Clerk Approved as to form by Ann Moore City Attorney -6- 2-18 SIGNATURE PAGE TWO OF TWO SUBDIVISION IMPROVEMENT AGREEl\.1ENT San Miguel Ranch, Planning Area" J-l " (CVT 99-04) DEVELOPERS/OWNERS: Proctor Valley West Partners, LLC a Delaware limited liability company By: Trimark Pacific - Montecito, LLC, a California limited liability company, Managing Member By: TPH, LLC, a California limited liability company, Member Manager By: Trimark Ventures, Inc., a California corporation, ::Z ~ Step~ster \..... Executive Vice President (Attach Notary Acknowledgment) 2-19 CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT State of California County of Ow ~ On \,~~O(" before me, personally appear.:' . ~~ ~ - - - - - - - - - - - - @ CHERYl A. ZAPPIA _ Commission # 1406287 ~ ~ .'''; Notary Public - California f ~. Orang<' COIM1ty f _ _ _ ~:~:..~_~1~2~7 } ss. r- N~t1eDtOffiClr(Bg"'J ~ '.4--e ^ NiUT18(S~l1IIrts} B"Personally known to me o proved to me on the basis of satisfactory evidence to be the personpfwhose name",",," is/a;4' subscribed to the within instrument and acknowledged to me that he/~~xecuted the same In his/~' authorized capacity~ and that by 'hls/t!effl~ signat~~ on the instrument the perso~or the entity upon behalf of which the person~ acted, executed the instrument. OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document . Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity{ies) Claimed by Signer Signer's Name: o .Individual o Corporate Officer - Title(s): o Partner - 0 Limited 0 General o Attorney-In-Fact o Trustee o Guardian or Conservator o Other: Signer Is Representing: Number of Pages: Tap of thumb here , C 1999 National Notary AssociatiQn' 9:350 De SolO Ava., P.O. Bo:( Z402 . Chill3wor\h, CA 91313-2402' www.natlDnalnDlary.Drg Prod Nc.5907 Reorder: Call T~.FrH 1..!J0Q.876-6827 2-20 LIST OF EXHIBITS Exhibit "A" Improvement Security - Faithful Perfo=ance Form: Bond Amount: $339,774.50 Exhibit "B" Improvement Security - Material and Labor: Form: Bond Amount: $339,774.50 Exhibit "C" Improvement Security - Monuments: Form: Bond Amount: $20,000.00 Securities approved as to fo= and amount by City Attorney Improvement Completion Date: Two (2) years trom date of City Council approval of the Subdivision Improvement Agreement. C:\Documents and Settings\rimat\My Documents\projccts related\San Miguel Ranch Phase IIDSIA for I-I SMRdoc -8- 2-21 THE A TT ACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALL Y SIGNED UPON APPROVAL BY THE CITY COUNCIL Ann Moore City Attorney Dated: II/JID ~ , , Subdivision Improvement Agreement between the City of Chula Vista and Proctor Valley West Partners, LLC for San Miguel Ranch Planning Area "J-2" 2-22 Recording Requested by: CTIY CLERK When Recorded, Mail to: CTIY OF CHULA VISTA 276 Fourth Avenue Chula Vista, CA 91910 No transfer tax is due as this is a conveyance to a public agency ofless than a fee interest for which no cash consideration has been paid or received. Declarant SUBDIVISION IMPROVE:MENT AGREE:MENT THIS AGREEMENT, made and entered into this _ day of ,2005, by and between THE CITY OF CHULA VISTA, a municipal corporation, hereinafter called "City", PROCTOR V ALLEY WEST PARTNERS, LLC, a Delaware Limited J;-iability Company, 85 Argonaut, Suite 205, Aliso Viejo, CA. 92656, hereinafter called "Subdivider" with reference to the facts set forth below, which Recitals constitute a part of this Agreement; RECITALS: WHEREAS, Subdivider is about to present to the City Council of \he City of Chula Vista for approval and recordation, a final subdivision map of a proposed subdivision, to be known as San Miguel Ranch, Planning Area "J-2", (CVT 99-04) pursuant to the provisions of the Subdivision Map Act of the State of California, and in compliance with the provisions of Title 18 of the Chula Vista Municipal Code relating to the filing, approval and recordation of subdivision map; and WHEREAS, the Code provides that before said map is finally approved by the Council of the City of Chula Vista, Subdivider must have either installed and completed all of the improvements and/or land development work required by the Code to be installed in subdivisions before final maps of subdivisions are approved by the Council for purpose of recording in the Office of the County Recorder of San Diego County, or, as an altemative thereto, Subdivider shall enter into an agreement with City, secured by an approved improvement security to insure the performance of said work pursuant to the requirements of Title 18 of the Chula Vista Municipal Code, agreeing to install and complete, free of liens at Subdivider's own expense, all of the improvements and/or land development work required in said subdivision within a definite period of time prescribed by said Council; and WHEREAS, Subdivider is willing in consideration of the approval and recordation of said map by the Council, to enter into this agreement wherein it is provided that Subdivider will -1- 2-23 install and complete, at Subdivider's own expense, all the improvement work required by City in connection with the proposed subdivision and will deliver to City improv=ent securities as approved by the City Attorney; and WHEREAS, a tentative map of said subdivision has heretofore been approved, subject to certain requirements and conditions, as contained in Resolution No. 2000-068, approved on the 29th day ofFebruary, 2000 ("Tentative Map Resolution"); and WHEREAS, complete plans -and specifications for the construction, installation and completion of said improvement work have been prepared and submitted to the City Engineer, as shown on Drawing Sets 04001, inclusive on file in the office of the City Engineer; and WHEREAS, an estimate of the cost of constructing said improvements according to said plans and specifications has been submitted and approved by the City in the amount of SEVEN HUNDRED THIRTY SEVEN THOUSANDS, FOUR HUNDRED TWENTY THREE, AND NO CENTS ($737,423.00). NOW, THEREFORE, IT IS MUTUALLY UNDERSTOOD AND AGREED AS FOLLOWS: 1. Subdivider, for itself and his successors in interest, an obligation the burden of which encumbers and runs with the land, agrees to comply with all of the terms, conditions and requirements of the Tentative Map Resolution; to do and perform or cause to be done and performed, at its own expense, without cost to City, in a good and workmanlike manner, under the direction and to the satisfaction and approval of the City Engineer, all of the improv=ent and/or land development work required to be done in and adjoining said subdivision, including the improvements described in the above Recitals ("Improvement Work"); and will furnish the necessary materials therefore, all in strict conformity and in accordance with the plans and specifications, which documents have heretofore been filed in the Office of the City Engineer and as described in the above Recitals this reference are incorporated herein and made a part hereof. 2. It is expressly understood and agreed that all monuments have been or will be installed within thirty (30) days after the completion and acceptance of the Improv=ent Work, and that Subdivider has installed or will install t=porary street name signs if permanent street name signs have not been installed. 3. It is expressly understood and agreed that Subdivider will cause all necessary materials to be furnished and all Improv=ent Work required under the provisions of this contract to be done on or before the second anniversary date of Council approval of the Subdivision Improv=ent Agreement. 4. It is understood and agreed that Subdivider will perform said Improvement Work as set forth hereinabove, or that portion of said Improv=ent Work serving any buildings or structures ready for occupancy in said subdivision, prior to the issuance of any certificate of -2 - 2-24 clearance for utility connections for said buildings or structures in said subdivision, and such certificate shall not be issued until the City Engineer has certified in writing the completion of said improvements or the portion thereof serving said building or structures approved by the City; provided, however, that the improvement security shall not be requITed to cover the provisions of this paragraph. 5. It is expressly understood and agreed to by Subdivider that, in the performance of said Improvement Work, Subdivider will conform to and abide by all of the provisions of the ordinances of the City of Chula Vista, and the laws of the State of California applicable to said work. 6. Subdivider further agrees to furnish and deliver to the City of Chula Vista, simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of SEVEN HUNDRED THIRTY SEVEN THOUSANDS, FOUR HUNDRED TWENTY THREE, AND NO CENTS ($737,423.00), which security shall guarantee the faithful performance of this contract by Subdivider and is attached hereto, marked Exhibit "A" and made a part hereof. 7. Subdivider further agrees to furnish and deliver to the City of Chula Vista, simultaneously with the execution of this agreement, an approved Improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of SEVEN HUNDRED THIRTY SEVEN THOUSANDS, FOUR HUNDRED TWENTY THREE, AND NO CENTS ($737,423.00), to secure the payment of material and labor in connection with the installation of said improvements, which security is attached hereto, marked Exhibit "B" and made a part hereof and the bond amounts as contained in Exhibit "B", and made a part hereof. 8. Subdivider further agrees to furnish and deliver to the City of Chula Vista, simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of SIXTEEN THOUSANDS, FIVE HUNDREDS, AND NO CENTS ($16,500.00) to secure the installation of monuments, which security is attached hereto, marked Exhibit "c" and made a part hereof. 9. It is further agreed that if the Improvement Work is not completed within the time agreed herein, the sums provided by said improvement securities may be used by City for the completion of'the Improvement Work within said subdivision in accordance with such specifications herein contained or referred, or at the option of the City, as are approved by the City Council at the time of engaging the work to be performed. Upon certification of completion by the City Engineer and acceptance of said work by City, and after certification by the Director of Finance that all costs hereof are fully paid, the whole amount, or any part thereof not requITed for payment thereof, may be released to Subdivider or its successors in interest, pursuant to the terms of the improvement security. Subdivider agrees to pay to the City any difference between the total costs incurred to perform the work, including design and administration of construction (including a reasonable allocation of overhead), and any proceeds from the improvement security. 10. It is also expressly agreed and understood by the parties hereto that in no case will -3- 2-25 the City of Chula Vista, or any department, board or officer thereof, be liable for any portion of the costs and expenses of the work aforesaid, nor shall any officer, his sureties or bondsmen, be liable for the payment of any sum or sums for said work or any materials furnished therefore, except to the limits established by the approved improvement security in accordance with the requirements of the State Subdivision Map Act and the provisions of Title 18 of the Chula Vista Municipal Code. . 11. It is further understood and agreed by Subdivider that any engineering costs (including plan checking, inspection, materials furnished and other incidental expenses) incurred by City in connection with the approval of the Improvement Work plans and installation of Improvement Work hereinabove provided for, and the cost of street signs and street trees as required by City and approved by the City Engineer shall be paid by Subdivider, and that Subdivider shall deposit, prior to recordation of the Final Map, with City a sum of money sufficient to cover said cost. . 12. It is understood and agreed that until such time as all Improvement Work is fully completed and accepted by City, Subdivider will be responsible for the care, maintenance of, and any damage to, the streets, alleys, easements, water and sewer lines within the proposed subdivision. It is further understood and agreed that Subdivider shall guarantee all improvements for a period of one year trom date of final acceptance and correct any and all defects or deficiencies arising during said period as a result of the acts or omission of Subdivider, its agents or employees in the performance of this agreement, and that upon acceptance of the work by City, Subdivider shall grant to City, by appropriate conveyance, the improvements constructed pursuant to this agreement; provided, however, that said acceptance shall not constitute a waiver of defects by City as ~et forth hereinabove. . 13. It is understood and agreed that City, as indemnitee, or any officer or employee thereof, shall not be liable for any injury to person or property occasioned by reason of the acts or omissions of Subdivider, its agents or employees, or indemnitee, related to this agreement. Subdivider further agrees to protect and hold the City, its officers and employees, harmless trom any and all claims, demands, causes of action, liability or loss of any sort, because of or arising out of acts or omissions of Subdivider, its agents or employees, or indemnitee, related to this agreement; provided, however, that the approved improvement security shall not be required to cover the. provisions of this paragraph. Such indemnification and agreement to hold harmless shall extend to damages to adj acent or downstream properties or the taking of property trom owners of such adj acent or downstream properties as a result of the construction of said subdivision and the improvements as provided herem. It shall also extend to damages resulting trom diversion of waters, change in the volume of flow, modification of the velocity of the water, erosion or siltation, or the modification of the point of discharge as the result of the construction and maintenance of drainage systems. The .approval of plans providing for any or all of these conditions shall not constitute the assumption by City of any responsibility for such damage or taking, nor shall City, by said approval, be an insurer or surety for the construction of the subdivision pursuant to said approved improvement plans. The provisions of this paragraph shall become effective upon the execution of this agreement and shall remain in full force and effect for ten (10) years following the acceptance by the City of the improvements. -4- 2-26 . 14. Subdivider agrees to defend, indemnify, and hold harmless the City or its agents, officers, and employees from any claim, action, or proceeding agajnst the City or its agents, officers, or employees to attack, set aside, void, or armul, an approval of the City, advisory agency, appeal board, or legislative body concerning a subdivision, which action is brought within the time period provided for in Section 66499.37 of the Government Code of the State of California. 15. Assignability. Upon request of the Subdivider, any or all on-site duties and obligations set forth herein may be assigned to Subdivider's successor in interest if the City Manager in his/her sole discretion deterIDines that such an assignment will not adversely affect the City's interest. The City Manager in his/her sole discretion may, if such assignment is requested, permit a substitution of securities by the successor in interest in place and stead of the original securities described herein so long as such substituted securities meet the criteria for security as set forth elsewhere in this Agreement. Such assignment will be in a form approved by the City Attorney. -5- 2-27 SIGNATURE PAGE ONE OF TWO SUBDMSION IMPROVEMENT AGREEMENT San Miguel Ranch, Planning Area "J-2" (CVT 99-04) . IN WITNESS WHEREOF, the parties hereto have caused this agre=ent to be executed the day and year first hereinabove set forth. THE CITY OF CHULA VISTA Stephen C. Padilla Mayor ATTEST: Susan Bigelow City Clerk . Approved as to form by Ann Moore City Attorney -6- 2-28 SIGNATURE PAGE TWO OF TWO SUBDMSION IlVIT'ROVEMENT AGREEMENT San Miguel Ranch, Planning Area "J-2" (CVT 99-04) DEVELOPERS/OWNERS: Proctor Valley West Partners, LLC, a Delaware Limited Liability Company By: (Attach Notary Acknowledgment) -7- 2-29 SIGNATURE PAGE TWO OF TWO SUBDIVISION IMPROVElVIENT AGREEI'v1ENT San Miguel Ranch, Planning Area "J-2" (CVT 99-04) DEVELOPERS/OWNERS: Proctor Valley West Partners, LLC a Delaware limited liability company By: Trimark Pacific - Montecito, LLC, a California limited liability company, Managing Member By: TPH, LLC, a California limited liability company, Member Manager By: Trimark Ventures, Inc., a California corporation, Membe~ V. \ \ \ ~ By: ~~~ Step e E. Hester ~ Executive Vice President (Attach Notary Acknowledgment) 2-30 CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT State of California County of ()VT~ \ ~ 0 s:- before me, '''. personally appeared S\.-e. ~ On ~ - - - - - - - - - - - - ~ CHERYl A. ZAI'PIA . Commission # 1406287 ~ . _,,; Notary Pubtlc . California ~ ~. Orang.. County f _ _ _ ~:O~~Ex~_~1~2~7 } ss. ("\ N~n~80fOmC8r(e'!I"'Ja I ~ ",-\-f ^ Nama{3~n8r(s) B"'Personally known to me o proved to me on the basis of satisfactory evidence to be the personMwhose name~ is/~ subscribed to the within instrument and acknowledged to me that he~~xecuted the same in hiS/!Je11!'h<!!?' authorized capacity~ and that by his/Qef7t~ signatu;i(S) on the instrument the person~ or the entity upon behalf of which the person~ acted, executed the instrument. OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Titie or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: o Individual o Corporate Officer - Title(s): o Partner - 0 Limited 0 General o Attorney-in-Fact o Trustee o Guardian or Conservator o Other: Signer Is Representing: Number of Pages: Topoftl1umb here C 1999 Natlonw NotaIy A5soo;lalkm' 9350 De SotoAVI., P.O. Bc1t 2402 . Chatsworth, CA 91313-2402' www.na~onalnota!y.org Prod. No. 5SD7 ReOfder.CaIlTol'-FreeH!D~7S-S827 2-31 LIST OF EXHIBITS Exhibit "A" Improvement Secwity - Faithful Performance . Form: Bond Amount: $737,423.50 Exhibit "B" Improvement Secwity - Material and Labor: Form: Bond Amount: $737,423.50 Exhibit "C" Improvement Security - Monuments: Form: Bond Amount: $16,500.00 Secwities approved as to form and amount by City Attorney Improvement Completion Date: Two (2) years from date of City Council approval of the Subdivision Improvement Agreement. C:\Docurnents and Settings\rimat\My Documents\projects reIated\San Miguel Ranch Phase Ill\SIA for J-2 SMR.doc -8- 2-32 THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIL / Ann Moore City Attorney 1;7/ D 0 Subdivision Improvement Agreement between the City of Chula Vista and Proctor Valley West Partners, LLC for San Miguel Ranch Planning Area Dated: "K" 2-33 Recording Requested by: CITY CLERK When Recorded, Mail to: CITY OF CHULA VISTA 276 Fourth Avenue Chula Vista, CA 91910 No transfer tax is due as this is a conveyance to a public agency ofless than a fee interest for which no cash consideration has been paid or received. Declarant SUBDIVISION IMPROVEMENT AGREEMENT TIllS AGREEMENT, made and entered into this _ day of ,2005, by and between THE CITY OF CHULA VISTA, a municipal corporation, hereinafter called "City", PROCTOR VALLEY WEST PARTNERS, LLC, a Delaware Limited Liability Company, 85 Argonaut, Suite 205, Aliso Viejo, CA. 92656, hereinafter called "Subdivider" with reference to the facts set forth below, which Recitals constitute a part ofthis Agreement; RECITALS: WHEREAS, Subdivider is about to present to the City Council of the City of Chula Vista for approval and recordation, a final subdivision map of a proposed subdivision, to be known as San Miguel Ranch, Planning Area "K", (CVT 99-04) pursuant to the provisions of the Subdivision Map Act ofthe State of California, and in compliance with the provisions of Title 18 of the Chula Vista Municipal Code relating to the filing, approval and recordation of subdivision map; and WHEREAS, the Code provides that before said map is finally approved by the Council of the City of Chula Vista, Subdivider must have' either installed and completed all of the improvements and/or land development work required by the Code to be installed in subdivisions before final maps of subdivisions are approved by the Council for purpose of recording in the Office of the County Recorder of San Diego County, or, as an altemative thereto, Subdivider shall enter into an agreement with City, secured by an approved improvement security to insure the perfo=ance of said work pursuant to the requirements of Title 18 of the Chula Vista Municipal Code, agreeing to install and complete, free of liens at Subdivider's own expense, all of the improvements and/or land development work required in said subdivision within a definite period of time prescribed by said Council; and WHEREAS, Subdivider is willing in consideration of the approval and recordation of said map by the Council, to enter into this agreement wherein it is provided that Subdivider will -1- 2-34 install and complete, at Subdivider's own expense, all the improvement work required by City in connection with the proposed subdivision and will deliver to City improvement securities as approved by the City Attorney; and WHEREAS, a tentative map of said subdivision has heretofore been approved, subject to certain requirements and conditions, as contained in Resolution No. 2000-068, approved on the 29th day of February, 2000 ("Tentative Map Resolution"); and WHEREAS, complete plans and specifications for the construction, installation and completion of said improvement work have been prepared and submitted to the City Engineer, as shown on Drawing Sets 03117, inclusive on file in the office of the City Engineer; and WHEREAS, an estimate of the cost of constructing said improvements according to said plans and specifications has been submitted and approved by the City in the amount of ONE MILLION, SIXTY ONE THOUSANDS, EIGHT HUNDRED TWENTY, AND NO CENTS ($1,061,820.00). NOW, THEREFORE, IT IS MUTUALLY UNDERSTOOD AND AGREED AS FOLLOWS: . 1. Subdivider, for itself and his successors in interest, an obligation the burden of which encumbers and runs with the land, agrees to comply with all of the terms, conditions and requirements of the Tentative Map Resolution; to do and perform or cause to be done and performed, at its own expense, without cost to City, in a good and workmanlike manner, under the direction and to the satisfaction and approval of the City Engineer, all of the improvement and/or land development work required to be done in and adjoining said subdivision, including the improvements described in the above Recitals ("Improvement Work"); and will furnish the necessary materials therefore, all in strict conformity and in accordance with the plans and specifications, which documents have heretofore been filed in the Office of the City Engineer and as described in the above Recitals this reference are incorporated herein and made a part hereof. 2. It is expressly understood and agreed that all monuments have been or will be installed within thirty (30) days after the completion and acceptance of the Improvement Work, and that Subdivider has installed or will install temporary street name signs if permanent street name signs have not been installed. 3. It is expressly understood and agreed that Subdivider will cause all necessary materials to be furnished and all Improvement Work required under the provisions of this contract to be done on or before the second anniversary date of Council approval of the Subdivision Improvement Agreement. 4. It is understood and agreed that Subdivider will perform said Improvement Work as set forth hereinabove, or that portion of said Improvement Work serving any buildings or structures ready for occupancy in said subdivision, prior to the issuance of any certificate of . -2- 2-35 clearance for utility connections for said buildings or structures in said subdivision, and such certificate shall not be issued until the City Engineer has certified in writing the completion of said improvements or the portion thereof serving said building or structures approved by the City; provided, however, that the improvement security shall not be required to cover the provisions of this paragraph. 5. It is expressly understood and agreed to by Subdivider that, in the performance of said hnprovement Work, Subdivider will conform to and abide by all of the provisions of the ordinances of the City of Chula Vista, and the laws of the State of California applicable to said work. 6. Subdivider further agrees to furnish and deliver to the City of Chula Vista, simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of ONE MJLLION, SIXTY ONE THOUSANDS, EIGHT HUNDRED TWENTY, AND NO CENTS ($1,061,820.00), which security shall guarantee the faithful performance of this contract by Subdivider and is attached hereto, marked Exhibit "A" and made a part hereof. 7. Subdivider further agrees to furnish and deliver to the City of Chula Vista, simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of ONE MJLLION, SIXTY ONE THOUSANDS, EIGHT HUNDRED TWENTY, AND NO CENTS ($1,061,820.00), to secure the payment of material and labor in connection with the installation of said improvements, which security is attached hereto, marked Exhibit "B" and made a part hereof and the bond amounts as contained in Exhibit "B", and made a part hereof. 8. Subdivider further agrees to furnish and deliver to the City of Chula Vista, simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of TWELVE THOUSANDS, FIVE HUNDREDS, AND NO CENTS ($12,500.00) to secure the installation of monuments, which security is attached hereto, marked Exhibit "c" and made a part hereof. 9. It is further agreed that if the hnprovement Work is not completed within the time agreed herein, the sums provided by said improvement securities may be used by City for the completion of the hnprovement Work within said subdivision in accordance with such specifications herein contained or referred, or at the option of the City, as are approved by the City Council at the time of engaging the work to be performed. Upon certification of completion by the City Engineer and acceptance of said work by City, and after certification by the Director of Finance that all costs hereof are fully paid, the whole amount, or any part thereof not required for payment thereof, may be released to Subdivider or its successors in interest, pursuant to the terms of the improvement security. Subdivider agrees to pay to the City any difference between the total costs incurred to perform the work, including design and administration of construction (including a reasonable allocation of overhead), and any proceeds from the improvement security. 10. It is also expressly agreed and understood by the parties hereto that in no case will -3- 2-36 the City of Chula Vista, or any department, board or officer thereof, be liable for any portion of the costs and expenses of the work aforesaid, nor shall any officer, his sureties or bondsmen, be liable for the payment of any sum or sums for said work or any materials' furnished therefore, except to the limits established by the approved improv=ent security in accordance with the requirements of the State Subdivision Map Act and the provisions of Title 18 of the Chula Vista Municipal Code. 11. It is further understood and agreed by Subdivider that any engineering costs (including plan checking, inspection, materials furnished and other incidental expenses) incurred by City in connection with the approval of the Improv=ent Work plans and installation of Improvement Work hereinabove provided for, and the cost of street signs and street trees as required by City and approved by the City Engineer shall be paid by Subdivider, and that Subdivider shall deposit, prior to recordation of the Final Map, with City a sum of money sufficient to cover said cost. 12. It is understood and agreed that until such time as all Improvement Work is fully completed and accepted by City, Subdivider will be responsible for the care, maintenance of, and any damage to, the streets, alleys, eas=ents, water and sewer lines within the proposed subdivision. It is further understood and agreed that Subdivider shall guarantee all improvements for a period of one year from date of final acceptance and correct any and all defects or deficiencies arising during said period as a result of the acts or omission of Subdivider, its agents or employees in the performance of this agre=ent, and that upon acceptance of the work by City, Subdivider shall grant to City, by appropriate conveyance, the improvements constructed pursuant to this agreement; provided, however, that said acceptance shall not constitute a waiver of defects by City as set forth hereinabove. 13. It is understood and agreed that City, as indemnitee, or any officer or employee thereof, shall not be liable for any injury to person or property occasioned by reason of the acts or omissions of Subdivider, its agents or =ployees, or indenmitee, related to this agreement. Subdivider further agrees to protect and hold the City, its' officers and employees, harmless from any and all claims, d=ands, causes of action, liability or loss of any sort, because of or arising out of acts or omissions of Subdivider, its agents or employees, or indemnitee, related to this agreement; provided, however, that the approved improv=ent security shall not be required to cover the provisions of this paragraph. Such indenmification and agreement to hold harmless shall extend to damages to adjacent or downstream properties or the taking of property from owners of such adj acent or downstream properties as a result of the construction of said subdivision and the improvements as provided herein. It shall also extend to damages resulting from diversion of waters, change in the volume of flow, modification of the velocity of the water, erosion or siltation, or the modification of the point of discharge as the result of the construction and maintenance of drainage systems. The approval of plans providing for any or all of these conditions shall not constitute the assumption by City of any responsibility for such damage or taking, nor shall City, by said approval, be an insurer or surety for the construction of the subdivision pursuant to said approved improvement plans. The provisions of this paragraph shall become effective upon the execution of this agreement and shall remain in full force and effect for ten (10) years following the acceptance by the City of the improvements. -4- 2-37 14. Subdivider agrees to defend, indemnify, and hold harmless the City or its agents, officers, and =ployees from any claim, action, or proceeding against the City or its agents, officers, or employees to attack, set aside, void, or annul, an approval of the City, advisory agency, appeal board, or legislative body concerning a subdivision, which action is brought within the time period provided for in Section 66499.37 of the Gove=ent Code of the State of California. 15. Assignability. Upon request of the Subdivider, any or all on-site duties and obligations set forth herein may be assigned to Subdivider's successor in interest if the City Manager in his/her sole discretion determines that such an assignment will not adversely affect the City's interest. The City Manager in his/her sole discretion may, if such assignment is requested, permit a substitution of securities by the successor in interest in place and stead of the original securities described herein so long as such substituted securities meet the criteria for security.as set forth elsewhere in this Agreement. Such assignment will be in a fo= approved by the City Attorney. -5- 2-38 SIGNATURE PAGE ONE OF TWO SUBDMSION IMPROVEMENT AGREEMENT San Miguel Ranch, Planning Area "K" (CVT 99-04) IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed the day and year first hereinabove set forth. THE CITY OF CHULA VISTA Stephen C. Padilla Mayor ATTEST: Susan Bigelow City Clerk Approved as to form by Ann Moore City Attorney -6- 2-39 SIGNATIJRE PAGE TWO OF TWO SUBDIVISION IMPROVEMENT AGREEMENT San Miguel Ranch, Planning Area "K" (CVT 99-04) DEVELOPERS/OWNERS: Proctor Valley West Partners, LLC a Delaware limited liability company By: Trimark Pacific - Montecito, LLC, a California limited liability company, Managing Member By: TPH, LLC, a California limited liability company, Member Manager By: Trimark Ventures, Inc., a California corporation, Member By:G_l &: ~~J~~ Stephen~. Hester Executive Vice President (Attach Notary Acknowledgment) 2-40 CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT State of California County of U~ On ll".(D~~\ oS: } ss. personally appeared ersonally known to me o proved to me on the basis of satisfactory evidence ~ - - - - - - ~ - - - - - ~ CHERYl A ZAPPtA @ Commission # 1406287 ~ . -,,; . Notary Public - California ~ ~ Orang<' County f _ _ _ ~:or:m:..~_~1~2~7 to be the person~whose name;.(is/~ subscribed to the within~'ns rUl:nent and acknowledged to me that. he/s !I>eY executed the same in his/l}o>r7t r authorized capacity('~ and that by his/!>ef7tbeff' signature}4" on the instrument the person~or the entity upon behalf of which the person% acted, executed the instrument. OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document litie or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: . Top of thumb here o Individual o Corporate Officer -litie(s): o Partner - 0 Limited D General o Attorney-in-Fae! o Trustee o Guardian or Conservator o Other: Signer Is Representing: ro 1999 National Nolary ASSOCIaijon' 9350 De Sam AVfJ., P,O. Box 2402' Chatsworth, CA 91313-2402' www.naUonalnotary.org Prod. No.S907 R:eorder:C;UIToll-Free1-80D-87$-6B27 2-41 LIST OF EXHIBITS Exhibit "A" Improvement Security - Faithful Perfo=ance Fo=: Bond Amount: $1,061,820.00 Exhibit "B" Improvement Security - Material and Labor: Fo=: Bond Amount: $1,061,820.00 Exhibit "C" Improvement Security - Monuments: Fo=: Bond Amount: $12,500.00 Securities approved as to fo= and amount by City Attorney Improvement Completion Date: Two (2) years from date of City Council approval of the Subdivision Improvement Agreement. C:\Documents and Settings\rimafu'viy Documents\projects related\San Miguel Ranch Phase ITI\SIA for K SMRdoc -8- 2-42 THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIL Ann Moore City Attorney Dated: f / f 1 / 0 {, I I Subdivision Improvement Agreement between the City of Chula Vista and Proctor Valley West Partners, LLC for San Miguel Ranch Planning Area "L" 2-43 Recording Requested by: CITY CLERK. When Recorded, Mail to: CITY OF CHULA VISTA 276 Fourth Avenue Chu1a Vista, CA 91910 No transfer tax is due as this is a conveyance to a public agency ofless than a fee interest for which no cash consideration has been paid or received. Declarant SUBDIVISION IMPROVEMENT AGREEMENT THIS AGREEMENT, made and entered into this _ day of ,2005, by and between THE CITY OF CHULA VISTA, a municipal corporation, hereinafter called "City", PROCTOR VALLEY WEST PARTNERS, LLC, a Delaware Limited Liability Company, 85 Argonaut, Suite 205, Aliso Viejo, CA. 92656, hereinafter called "Subdivider" with reference to the facts set forth below, which Recitals constitute a part of this Agreement; RECITALS: WHEREAS, Subdivider is about to present to the City Council of the City of Chula Vista for approval and recordation, a final subdivision map of a proposed subdivision, to be known as San Miguel Ranch, Planning Area "L", (CVT 99-04) pursuant to the provisions of the Subdivision Map Act of the State of California, and in compliance with the provisions of Title 18 of the Chula Vista Municipal Code relating to the filing, approval and recordation of subdivision map; and WHEREAS, the Code provides that before said map is finally approved by the Council of the City of Chula Vista, Subdivider must have either installed and completed all of theo improvements and/or land development work required by the Code to be installed in subdivisions before final maps of subdivisions are approved by the Council for purpose of recording in the Office of the County Recorder of San Diego County, or, as an alternative thereto, Subdivider shall enter into an agreement with City, secured by an approved improvement security to insure the performance of said work pursuant to the requirements of Title 18 of the Chula Vista Municipal Code, agreeing to install and complete, rree of liens at Subdivider's own expense, all of the improvements and/or land development work required in said subdivision within a definite period of time prescribed by said Council; and WHEREAS, Subdivider is willing in consideration of the approval and recordation of said map by the Council, to enter into this agreement wherein it is provided that Subdivider will -1- 2-44 install and complete, at Subdivider's own expense, all the improv=ent work required by City in connection with the proposed subdivision and will deliver to City improvement securities as approved by the City Attorney; and WHEREAS, a tentative map of said subdivision has heretofore been approved, subject to certain requirements and conditions, as contained in Resolution No. 2000-068, approved on the 29th day of February, 2000 ("Tentative Map Resolution"); and WHEREAS, complete plans and specifications for the construction, installation and completion of said improvement work have been prepared and submitted to the City Engineer, as shown on Drawing Sets 04075, inclusive on file in the office of the City Engineer; and WHEREAS, an estimate of the cost of constructing said improvements according to said plans and specifications has been submitted and approved by the City in the amount of ONE MILLION, ONE HUNDRED TEN THOUSANDS, FNE HUNDREDS NINETY ONE DOLLARS, AND FIFTY CENTS ($1,110,591.50). NOW, THEREFORE, IT IS MUTUALLY UNDERSTOOD AND AGREED AS FOLLOWS: I. Subdivider, for itself and his successors in interest, an obligation the burden of which encumbers and runs with the land, agrees to comply with all of the terms, conditions and requirements of the Tentative Map Resolution; to do and perform or cause to be done and performed, at its own expense, without cost to City, in a good and workmanlike manner, under the direction and to the satisfaction and approval of the City Engineer, all of the improvement and/or land development work required to be done in and adjoining said subdivision, including the improvements described in the above Recitals ("Improvement Work"); and will furnish the necessary materials therefore, all in strict conformity and in accordance with the plans and specifications, which documents have heretofore been filed in the Office of the City Engineer and as described in the above Recitals this reference are incorporated herein and made a part hereof. 2. It is expressly understood and agreed that all monuments have been or will be installed within thirty (30) days after the completion and acceptance of the Improvement Work, and that Subdivider has installed or will install temporary street name signs if permanent street name signs have not been installed. . 3. It is expressly understood and agreed that Subdivider will cause all necessary materials to be furnished and all Improvement Work required under the provisions of this contract to be done on or before the second anniversary date of Council approval of the Subdivision Improvement Agreement. 4. It is understood and agreed that Subdivider will perform said Improvement Work as set forth hereinabove, or that portion of said Improvement Work serving any buildings or structures ready for occupancy in said subdivision, prior to the issuance of any certificate of -2- 2-45 clearance for utility connections for said buildings or structures in said subdivision, and such certificate shall not be issued until the City Engineer has certified in writing the completion of said improvements or the portion thereof serving said building or structures approved by the City; provided, however, that the improvement security shall not be required to cover the provisions of this paragraph. 5. It is expressly understood and agreed to by Subdivider that, in the perfonnance of said hnprovement Work, Subdivider will confonn to and abide by all of the provisions of the ordinances of the City of Chula Vista, and the laws of the State of California applicable to said work. 6. Subdivider further agrees to furnish and deliver to the City of Chula Vista, simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of ONE MILLION, ONE HUNDRED TEN THOUSANDS, FIVE HUNDREDS NINETY ONE DOLLARS, AND FIFTY CENTS ($1,110,591.50), which security shall guarantee the faithful perfonnance of this contract by Subdivider and is attached hereto, marked Exhibit "A" and made a part hereof. 7. Subdivider further agrees to furnish and deliver to the City of Chula Vista, simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of ONE MILLION, ONE HUNDRED TEN THOUSANDS, FIVE HUNDREDS NINETY ONE DOLLARS, AND FIFTY CENTS ($1,110,591.50), to secure the payment of material and labor in connection with the installation of said improvements, which security is attached hereto, marked Exhibit "B" and made a part hereof and the bond amounts as contained in Exhibit "B", and made a part hereof. 8. Subdivider further agrees to furnish and deliver to the City of Chula Vista, simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of TWELVE THOUSANDS, FIVE FUNDRED AND NO CENTS ($12,500.00) to secure the installation of monuments, which security is attached hereto, marked Exhibit "c" and made a part hereof. 9. It is further agreed that if the hnprovement Work is not completed within the time agreed herein, the sums provided by said improvement securities may be used by City for the completion of the hnprovement Work within said subdivision in accordance with such specifications herein contained or referred, or at the option of the City, as are approved by the City Council at the time of engaging the work to be perfonned. Upon certification of completion by the City Engineer and acceptance of said work by City, and after certification by the Director of Finance that all costs hereof are fully paid, the whole amount, or any part thereof not required for payment thereof, may be released to Subdivider or its successors in interest, pursuant to the terms of the improvement security. Subdivider agrees to pay to the City any difference between the total costs incurred to perform the work, including design and administration of construction (including a reasonable allocation of overhead), and any proceeds from the improvement security. -3- 2-46 10. It is also expressly agreed and understood by the parties hereto that in no case will the City of Chula Vista, or any department, board or officer thereof, be liable for any portion of the costs and expenses of the work aforesaid, nor shall any officer, his sureties or bondamen, be liable for the payment of any sum or sums for said work or any materials furnished therefore, except to the limits established by the approved improvement security in accordance with the requirements of the State Subdivision Map Act and the provisions of Title 18 of the Chula Vista Municipal Code. 11. It is further understood and agreed by Subdivider that any engineering. costs (including plan checking, inspection, materials furnished and other incidental expenses) incurred by City in connection with the approval of the hnprovement Work plans and installation of hnprovement Work hereinabove provided for, and the cost of street signs and street trees as required by City and approved by the City Engineer shall be paid by Subdivider, and that Subdivider shall deposit, prior to recordation of the Final Map, with City a sum of money sufficient to cover said cost. . 12. It is understood and agreed that until such time as all hnprovement Wo)"k is fully completed and accepted by City, Subdivider will be responsible for the care, maintenance of, and any damage to, the streets, alleys, easements, water and sewer lines within the proposed subdivision. It is further understood and agreed that Subdivider shall guarantee all improvements for a period of one year from date of final acceptance and correct any and all defects or deficiencies arising during said period as a result of the acts or omission of Subdivider, its agents or employees in the perfo=ance of this agreement, and that upon acceptance of the work by City, Subdivider shall grant to City, by appropriate conveyance, the improvements constructed pursuant to this agreement; provided, however, that said acceptance shall not constitute a waiver of defects by City as set forth hereinabove. 13. It is understood and agreed that City, as indenmitee, or any offic;er or employee thereof, shall not be liable for any injury to person or property occasioned by reason of the acts or omissions of Subdivider, its agents or employees, or indemnitee, related to this agreement. Subdivider further agrees to protect and hold the City, its officers and employees, harmless from any and all claims, demands, causes of action, liability or loss of any sort, because of or arising out of acts or omissions of Subdivider, its agents or employees, or indenmitee, related to this agreement; provided, however, that the approved improvement security shall not be required to cover the provisions of this paragraph. Such indemnification and agreement to hold harmless shall extend to damages to adjacent or downstream properties or the taking of property from owners of such adj acent or downstream properties as a result of the construction of said subdivision and the improvements as provided herein. It shall also extend to damages resulting from diversion of waters, change in the volume of flow, modification of the velocity of the water, erosion or siltation, or the modification of the point of discharge as the result of the construction and maintenance of drainage systems. The approval of plans providing for any or all of these conditions shall not constitute the assumption by City of any responsibility for such damage or taking, nor shall City, by said approval, be an insurer or surety for the construction of the subdivision pursuant to said approved improvement plans. The provisions of this paragraph shall become effective upon the execution of this agreement and shall remain in full force and -4- 2-47 effect for ten (10) years following the acceptance by the City of the improv=ents. 14. Subdivider agrees to defend, indemnify, and hold harmless the City or its agents, officers, and =ployees from any claim, action, or proceeding against the City or its agents, officers, or employees to attack, set aside, void, or annul, an approval of the City, advisory agency, appeal board, or legislative body concerning a subdivision, which action is brought within the time period provided for in Section 66499.37 of the Government Code of the State of California. 15. Assignability. Upon request of the Subdivider, any or all on-site duties and obligations set forth herein may be assigned to Subdivider's successor in interest if the City Manager in his/her sole discretion determines that such an assignment will not adversely affect the City's interest. The City Manager in his/her sole discretion may, if such assignment is requested, permit a substitution of securities by the successor in interest in place and stead of the original securities described herein so long as such substituted securities meet the criteria for security as set forth elsewhere in this Agreement. Such assignment will be in a form approved by the City Attorney. -5- 2-48 SIGNATURE PAGE ONE OF TWO SUBDNISION IMPROVEMENT AGREEMENT San Miguel Ranch, Planning Area "L" (CVT 99-04) IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed the day and year first hereinabove set forth. THE CITY OF CHULA VISTA Stephen C. Padilla Mayor ATTEST: Susan Bigelow City Clerk Approved as to form by Ann Moore City Attorney -6- 2-49 SIGNATURE PAGE TWO OF TWO SUBDIVISION IMPROVEMENT AGREEMENT San Miguel Ranch, Planning Area "L" (CVT 99-04) DEVELOPERS/OWNERS: Proctor Valley West Partners, LLC a Delaware limited liability company By: Trimark Pacific - Montecito, LLC, a California limited liability company, Managing Member By: TPH, LLC, a California limited liability company, Member Manag~r By: Trimark Ventures, Inc., a California corporation, Member By: ~~~\~ Executive Vice President (Attach Notary Acknowledgment) 2-50 CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT State of Califomia Dale }ss. before me, J 'v{~::~"oD.~3,~,,","~,~ ~I{~ D .r-? - , N"'(~f Sign.r(e) ~ersonally known to me D proved to me on the basis of satisfactory evidence County of OVtly\..yV 1~11l{IDS . On personally appeared ..... -::'WIi---~ iI':' OM .J: .tI,..,2.u.S : _ cJ IIaIaIy NIle . CalIfornia ~ ~ '~; Mrc:-.~eo;~O.2007f J_____________ to be the personJaf whose namElW'" is/_ subscribed to the within instrument and acknowledged to me that he/sOe/!hey"executed the same in hisl'-l!ln!rr authorized capacity..(je1:), and that by his!l1erlt!mir signature~n the instrument the persof)!s). or the entity upon behaif of which the person(<<) acted, executed the instrument. WITNESS myhan!).:'~d officia~seal. Q i(j r fvc 0"- SlgnallJre 01 Nctary Public OPTIONAL Though rhe information below is not required by law; it may prove valuable to persons faiying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document lltle or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: . D individual D Corporate Officer -'l1tle(s): D Partner - D Limited 0 Generai D Attomey-in-Fact D Trustee D Guardian or Conservator D Other: Top ef thumb here Signer Is Representing: C 1999 National Notary Alrsccmtlon . 9350 De SotoAve., P.O. Sox. 2402 . Challlworlh, CA 91313-2402. _.nllllonalnalary.arg Proc:I.No.S907 RtlOfder:CdTall-F11Ht1-800-67e-6a27 2-51 LIST OF EXHIBITS Exbibit "A" Improv=ent Security - Faitbful Performance Form: Bond Amount: $1,110,591.50 Exhibit "B" Improv=ent Security - Material and Labor: Form: Bond Amount: $1,110,591.50 Exhibit "C" Improvement Security - Monuments: Form: Bond Amount: $12,500.00 Securities approved as to form and amount by City Attorney Improvement Completion Date: Two (2) years from date of City Council approval of the Subdivision Improvement Agreement. C:\Documents and Settings\rimat\My Documents\projects related\San Miguel Ranch Phase llI\SIA SMRdac -8- 2-52 THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON AFPROV AL BY THE CITY COUNCIL Ann Moore City Attorney Dated: JJj(JJOb . Supplemental Subdivision Improvement Agreement between the City of Chula Vista and Proctor V alley West Partners, LLC for San Miguel Ranch Planning Area "J-l" Final Map 2-53 RECORDING REQUEST BY: ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Above ..Space for Recorder's Use City Clerk WHEN RECORDED MAIL TO: CITY OF CHULA VISTA 276 Fourth Avenue Chula Vista, CA 91910 No transfer tax is due as this is a conveyance to a public agency of less than a fee interest for which no cash consideration has been paid or received. SM-016F SAN MIGUEL RANCH PLANNING AREA "J-1" FINAL MAP SUPPLEMENTAL SUBDMSION IMPROVEMENT AGREEMENT (Conditions 1,2,3,4,5,6,10,11,12,13,15,17,18,24,27,28,30,31,55, 54, 57, 67, 72,73, 74,86,90,92,93,94,95,99,100,103,104,107,110,119,122, 170, 171, 173, 174, 175, 176, 177,178,179,180,181,182,183,184,185,186,187,188, 189, 190, 191 and 193) This Supplemental Subdivision Improvement Agreement ("Agreement") is made this _day of_, 2004, by and between THE CITY OF CHULA VISTA, California ("City" or "Grantee" for recording purposes only) and PROCTOR V ALLEY WEST PARTNERS, LLC, a Delaware Limited Liability Company, ("Developer" or "Grantor"), with reference to the facts set forth below, which recitals constitute a part of this Agreement: RECITALS A. This Agreement concerns and affects certain real property located in Chu1a Vista, California, more particnlar1y described on Exhibit "A" attached hereto and incorporated herein ("Property"). The Property is within approved Tentative Subdivision Map Chula Vista Tract 99- 04, which project is co=only known as San Miguel Ranch. For purposes of this Agreement the te= "Project" shall also mean "Property". B. Developer and/or Developer's predecessor in interest has applied for and the City has approved Tentative Subdivision Map co=only referred to as Chula Vista Tract 99-04 2-54 ("Tentative Subdivision Map") for the subdivision of the Property. C. The City has adopted Resolution No. 2000-068 ("Resolution") pursuant to which it has approved the Tentative Subdivision Map subject to certain conditions as more particularly described in the Resolution and thereafter amended said conditions pursuant to City Council Resolution No. 2001-453 (collectively hereinafter refer to as "Resolution"). D. The Developer has applied for and the City Engineer and Planning Director have approved a substantial conformance request for San Miguel Ranch Planning Area "J-l" on November 17, 2005. E. City is willing, on the premises, security, terms and conditions herein contained to approve the final map for which Developer has applied as being in substantial conformance with the Tentative Subdivision Map described in this Agreement. Developer understands that subsequent final maps may be subject to the same security terms and conditions contained herein. F. The following defined terms shall have the meaning set forth herein, unless otherwise specifically indicated: "Owner or Developer" means the person, persons or entity having a legal or an equitable interest in the property or parts thereof and includes Owner's successors-in-interest and assignors of any property within the boundaries of the map. This includes PROCTOR VALLEY WEST PARTNERS, LLC, a Delaware Limited Liability Company, and any and all owners of real property within the boundaries of the Property, and all signatories to this Agreement. "Guest Builder" means those entities obtaining any interest in the Property or a portion of the Property, after the final map has been recorded. "PFFP" means the Public Facilities Financing Plan adopted by Resolution No. 19631 on October 19, 1999 and amended by Resolution No. 2001-453 ("Amendment") on December 17,2001 and as may be further amended from time to time. "SPA Plan" means the San Miguel Ranch Sectional Planning Area Plan as adopted by the City Council on October 19, 1999 pursuant to Resolution No. 19631, and as amended by the Zoning Administrator on June 19, 2002 (pCM-02-17). NOW, THEREFORE, in exchange for the mutual covenants, terms and conditions herein contained, the parties agree as set forth below. 1. Agreement Applicable to Subsequent Owners. a. Agreement Binding Upon Successors. This Agreement shall be binding upon and inure to the benefit of the successors, assigns and interests of the parties as to any or all of the Property as described on Exhibit "A" until released by the mutual consent of the parties. For the purposes of this Agreement the "Developer" shall also mean "Applicant" 2 2-55 b. Agreement Runs with the Land. The burden of the covenants contained in this Agreement ("Burden") is for the benefit of the Property and the City, its successors and assigns and any successor in interest thereto. City is de=ed the beneficiary of such covenants for and in its own right and for the purposes of protecting the interest of the community and other parties public or private, in whose favor and for whose benefit of such covenants running with the land have been provided without regard to whether City has been, remained or are owners of any particular land or interest therein. If such covenants are breached, the City shall have the right to exercise all rights and r=edies and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breach to which it or any other beneficiaries ofthis agre=ent and the covenants may be entitled. c. Developer Release on Guest Builder Assignments. If Developer assigns any portion of the Project to a Guest Builder, Developer may request to be released .from Developer's obligations under this Agreement, that are expressly assumed by the Guest Builder, provided Developer obtains the prior written consent of the City to such release. Such assignment to the Guest Builder shall, however, be subject to this Agre=ent and the Burden of this Agreement shall remain a covenant running with the land. The City shall not withhold its consent to any such request for a release so long as the assignee acknowledges that the Burden of the Agreement runs with the land, assumes the obligations of the Developer under this Agreement, and demonstrates, to the satisfaction of the City, its ability to perfo= its obligations under this Agreement as it relates to the portion of the Proj ect which is being acquired by the Assignee. d. Partial Release of Developer's Assignees. If Developer assigns any portion of the Project subject to the Burden of this Agreement, upon request by the Developer or its assignee, the City shall release the assignee of the Burden of this Agre=ent as to such assigned portion if such portion has complied with the requir=ents of this Agre=ent to the satisfaction of the City and such partial release will not, in the opinion of the City, jeopardize the likelihood that the remainder of the Burden will not be completed. e. Release of Individual Lots. Upon the occurrence of any of the following events, Developer shall, upon receipt of the prior written consent of the City Manager (or Manager's designee), have the right to release any lot(s) .from Developer's obligation under this Agre=ent: 1. The execution of a purchase agre=ent for the sale of a residential lot to a buyer of an individual housing unit; 11. The conveyance of a lot to a Homeowner's Association; iii. The conveyance of a school site as identified in the SPA Plan to a school district; The City shall not withhold its consent to such release so long as the City finds in good faith that 3 2-56 such release will not jeopardize the City's assurance that the obligations set forth in this Agreement will be perfonned. At the request of the Developer, the City Manager (or Manager's designee) shall execute an instrument drafted by Developer in a recordable fonn acceptable to the City Manager (or Manager's designee), which confirms the release of such lot or parcel from the encumbrance of this Agreement. Notwithstanding the foregoing, at the close of an individual homeowner's escrow on any lot or parcel encumbered by this Agreement, such lot or parcel shall be automatically released from the encumbrance hereof. 2. Condition No.1 - (General Preliminary). In partial satisfaction of Condition No.1 of the Resolution, the Developer hereby agrees to comply with all requirements and guidelines of the San Miguel Ranch SPA Plan, Planned Community (PC) District Regulations, Design Guidelines, Public Facilities Financing Plan, Affordable Housing Plan, Air Quality Improvement Plan, Water Conservation Plan, and City approved substantial Confonnance Exhibits, all as may be amended from time to time, unless specifically modified by the appropriate department head, with the approval of the City Manager. These plans may be subject to minor modifications by the appropriate department head, with the approval of the City Manager, however, any material modifications shall be subj ect to approval by the City Council. 3. Condition No.2 - (General Preliminary). In satisfaction of Condition No.2 of the Resolution, the Developer hereby agrees that the proj ect conditions of approval are based upon the project having multiple final maps. Unless otherwise specified, all conditions and code requirements listed herein shall be fully completed to the City's satisfaction prior to approval of the first final map. 4. Condition No.3 - (General Preliminary). In satisfaction of Condition No.3 of the Resolution, the Developer hereby agrees that in the event of a filing of a final map which requires over-sizing of the improvements necessary to serve other properties, said final map shall be required to install all necessary improvements to serve the project plus the necessary over- sizing of facilities required to serve such other properties (in accordance with the restrictions of State law and City ordinances). S. Condition No.4 - (General Preliminary). In partial satisfaction of Condition No.4 of the Resolution, the Developer agrees that prior to approval of a final Map creating a multiple family lot, which does not require the filing of a subsequent map, all applicable conditions of approval of the tentative map shall be met, as determined by the City Engineer. 6. Condition No.5 - (pFFP Phasing). In partial satisfaction of Condition No.5 of the Resolution, the Developer agrees not to seek any building permits for production homes until the Mt. Miguel Road Bridge across SR-125 has been constructed and is open to the public. Developer may seek building permits for model homes prior to completion of the Mt. Miguel Road bridge across SR-125. Developer further agrees: a. To prevent construction traffic from accessing to and from the County of 4 2-57 San Diego via San Miguel Road, and b. To allow construction access through the City of Chula Vista only, and c. To maintain a physical barrier to prevent vehicular access trom the project to Proctor Valley Road to the northwest until SRl25 is open to the public, all to the satisfaction of the City. 7. Condition No.6 - (General Preliminary). In partial satisfaction of Condition No. 6 of the Resolution, the Developer hereby agrees to dedicate for public use all the public streets shown on the tentative map within the subdivision boundary with the recordation of the applicable final map. Prior to the approval of the applicable final map, the Developer shall enter into an agreement to guarantee the construction of all street improvements as required by the PFFP for each particular phase. 8. Condition No. 10 - (General Preliminary) In satisfaction of Condition No. 10 of the Resolution, the Developer agrees that if any of the terms, covenants or conditions contained herein shall fail to occur or if they are, by their terms, to be implemented and maintained over time, if any of such conditions fail to be so implemented and maintained according to their terms, the City shall have the right to revoke or modify all approvals herein granted including issuance of building permits, deny, or further condition the subsequent approvals that are derived trom the approvals herein granted, institute and prosecute litigation to compel their compliance with said conditions or seek damages for their violation. The Developer shall be notified 10 days in advance prior to any of the above actions being taken by the City and shall be given the opportunity to remedy any deficiencies identified by the City within a reasonable and diligent time trame. 9. Condition No. 11 - (General Preliminary) In satisfaction of Condition No. 11 of the Resolution, the Developer agrees that all of the terms, covenants and conditions contained herein shall be binding upon and inure to the benefit of the heirs, successors, assigns and representatives of the Developer as to any or all of the property. For the purposes of this document the term "Developer" shall also mean "Applicant". 10. Condition No. 12 - (General Preliminary) In satisfaction of Condition No. 12 of the Resolution, the Developer agrees to indemnify, protect, defend and hold the City harmless trom and against any and all claims, liabilities and costs, including attorney's fees, arising trom challenges to the Final Subsequent Environmental Impact Report for the San Miguel Ranch Sectional Planning Area and Tentative Maps (FSEIR 97-02) and any or all entitlements and approvals issued by the City in connection with the Project. 11. Condition No. 13 - (General Preliminary) In satisfaction of Condition No. 13 of the Resolution, the Developer agrees to comply with all applicable SPA Plan conditions of approval. 12. Condition No. 15 - (Applicable Mitigation Measures) In satisfaction of 5 2-58 Condition No. 15 of the Resolution, the Developer agrees to implement to the satisfaction of the Director of Planning and Building and the Enviromnental Review Coordinator, all applicable mitigation measures identified in FSEIR 97-02, the CEQA Findings of Fact and the Mitigation Monitoring and Reporting Program for the San Miguel Ranch Project in accordance with the requirements, provisions and schedules contained therein, and as further specified in these Tentative Map conditions. Modification of the sequence of mitigation shall be at the discretion of the Director of Planning and Building should changes in circumstances warrant such a revision. 13. Condition No. 17 - (EnvironmentallPreservation) In satisfaction of Condition No. 17 of the Resolution, the Developer agrees to comply with all applicable requirements of the California Department ofFish and Game, the California State Water Resources Control Board, the U.S. Department of Fish and Wildlife, and the U.S. Army Corps of Engineers as to the Proj ect. 14. Condition No. 18 - (Brosh Management I Fire Protection Plan) In partial satisfaction of Condition NQ. 18 of the Resolution, the Developer agrees to remain in compliance with the Brush Management Program I Fire Protection Plan for the Project. Developer herein agrees that approval of additional Final Maps will require amendments and additions to the Brush Management Program I Fire Prevention Plan as set forth in the Landscape Master Plan for the Project and as required by the City's Fire Marshall. The Developer shall comply with the following: a. The areas indicated for brush management activities must be within the boundaries of the areas previously proposed for grading within FSEIR-97-02. To the extent that brush management areas extend beyond said grading boundaries, additional enviromnental review and mitigation may be required as determined by the Director of Planning and Building and the Enviromnental Review Coordinator. b. The Brush Management Program must be in compliance with the Multiple Species Conservation Program (MSCP) Subarea Plan, including but not limited to the requirement of up to a ISO-foot setback from structures to the Preserve boundary with aID-foot fire access, or as required by the Director of Planning and Building subject to the City's ordinances and policies. The Brush Management Program shall also address buffer areas, types of fencing, and all other pertinent matters in areas surrounding or abutting the proj ect's Otay Tarplant preserves. c. If developer so requests, pursuant to the MSCP Subarea Plan, site-specific waivers or project-level design methods to reduce fire setback requirements may be considered by the City Fire Marshal and approved at the City Fire Marshal's sole discretion. d. As necessary, and prior to the approval of the Brush Management Program, the Applicant shall obtain written consent from other property owners to conduct brush management activities on adjacent, off-site lands, which are within the required brush management zones as reflected in the Brush Management Program. 6 2-59 Developer shall incorporate plant species listed in the "Urban Wildlife Interface Guidelines" for planting within and adj acent to fuel modification zones to the satisfaction of the Director of Planning and Building. 15. Condition No. 24 - (Noise Walls and Sound Berms). In partial satisfaction of Condition No. 24 of the Resolution, the Developer agrees that prior to approval of any grading or improvement plans, the Developer shall include on those Plans, as appropriate, and Developer hereby agrees to construct all to the satisfaction of the Director of Planning and Building and the Environmental Review Coordinator, the noise walls or b=s required by the Project's Environmental Impact Report and the acoustical report "Final SR-125 Toll Road Noise Design Report" prepared by Bntech Consulting Group dated 2/23/05. 16. Condition No. 27 - (Landscape Manual). In partial satisfaction of Condition No. 27 of the Resolution, the Developer shall comply with all aspects of the City of Chula Vista Landscape Manual. 17. Condition No. 28 - (Street Trees). In partial satisfaction of Condition No. 28 of the Resolution, the Developer shall install all street trees in accordance with Section 18.28.10 of the Chula Vista Municipal Code and the City's Landscape Manual or as otherwise approved by the Director of Planoing and Building and the City Engineer. Upon request of the Director of Planning and Building, the applicant shall provide root control methods and a separate deep watering irrigation system for all trees. Street trees shall be shown on street improvement plans submitted for approval by the Director of Planoing and Building and the City Engineer prior to or concurrent with the second submittal of street improvement plans within the subdivision. Approval of the street tree improvement plans shall constitute final approval of the species selection of street trees 18. Condition No. 30 - (Compliance with approved plans) In partial satisfaction of Condition No. 30 of the Resolution, the Developer shall comply with, remain in compliance with, and implement, unless otherwise conditioned, the terms, conditions and provisions of the San Miguel Ranch General Development Plan, Sectional Planning Area Plan ("SPA''), and such Master Plan of Reclaimed Water, Urban Runoff Report, Habitat Enhancement Plan, Master Plan of Sewage, Water Conservation Plan, the Air Quality Improvement Plan Design Guidelines and the Public Facilities Financing Plan approved by the Council ("Plans") as are applicable to the property which is the subject matter of this Tentative Map, prior to approval of each final Map, or enter into an agreement with the City, providing the City with such security (including recordation of covenants running with the land) and implementation procedures as the City may require, assuring that, after approval of the final Map, the developer shall continue to comply with, remain in compliance with, and implement such Plans. . 19. Condition No. 31- (Security) In partial satisfaction of Condition No. 31 of the Resolution, the Developer shall provide security in accordance with Chapter 18.16 of the Municipal Code and dedicate, construct full street improvements for all public streets shown on the Tentative Map within the subdivision boundary or off-site, as required for each phase in 7 2-60 accordance with Chula Vista Design Standards, Chula Vista Street Standards, and the Chula Vista Subdivision Manual unless otherwise approved by the City Engineer. Said improvements shall include, but not be limited to, asphalt concrete pavement, base, concrete curb, driveways, gutter and sidewalk, sewer, reclaimed water and water utilities, drainage facilities, street lights, traffic signals, signs, fire hydrants and transitions to existing improvements. All streets shall conform to the City's Street Design Standards Policy adopted by City Council Resolution No. 15349 unless otherwise conditioned or approved by the City Engineer. Construct transitions to existing improvements in the manner required by the City Engineer. 20. Condition No. 54 - (Traffic Signal) In partial satisfaction of Condition No. 54 of the Resolution, the Developer agrees to install traffic signal on the intersection of San Miguel Ranch Road and Proctor Valley Road as shown on Chula Vista Drawing Numbers 04039-11 and 04039 -12. 21. Condition No. 55 - (SR-125 ROW) In partial satisfaction of Condition No. 55 of the Resolution, the Developer agrees to grant to the City of Chula Vista an Irrevocable Offer of Dedication for any additional right-of-way of SR-125 sufficient for the ultimate construction of SR 125, within the Project's boundaries. The right-of-way shall be sufficient for the ultimate construction of SR-125 to the satisfaction of CalTrans and the City Engineer. Any transfer of the right-of-way to a third party by the City will be subject to a three party agreement between the City of Chula Vista, the Applicant and Caltrans or its authorized agent. 22. Condition No. 57 - (Sewer & Water Laterals) In partial satisfaction of Condition No. 57 of the Resolution, the Developer agrees to guarantee prior to the release of bonds for street improvements that the "Engineer-of-Work" has clearly identified all sewer (S) and water (W) lateral locations prior to the construction of curbs so that the curb face can be stamped with an "s" and "W", for the sewer and water laterals, respectively, and the Developer shall propagate all curb face markings in order to assure that the locations of the said utilities are identifiable. 23. Condition No. 67 - (NPDES) In partial satisfaction of Condition No. 67 of the Resolution, the Developer agrees to comply with all the provisions of the National Pollutant Discharge Elimination System (NPDES) and the Clean Water Program during and after all phases of the development process, including but not limited to: mass grading, rough grading, construction of street and landscaping improvements, and construction of dwelling units. 24. Condition No. 72 - (Transition Lots) In partial satisfaction of Condition No. 72 of the Resolution, the Developer agrees to submit a list of proposed lots indicating whether the Structure will be located on fill, cut, or a transition between the two situations prior to approval of each building permit for the project. 25. Condition No. 73 - (liability) In partial satisfaction of Condition No. 73 of the Resolution, the Developer acknowledges and agrees to defend indenmify and hold harmless the city from any claims or liability from erosion, siltation or increase in flow of drainage resulting from this proj ect. 8 2-61 26. Condition No. 74 - (Grading) In partial satisfaction of Condition No. 74 of the Resolution, the Developer acknowledges and agrees that a storm drain systems that collects water from private property shall be designated private on grading and drainage and/or improvement plans to the point of connection with a public system or to the point at which the storm water that is collected from public street right-of-way, public park or open space areas is first introduced into the system. Downstream from that point, the storm drain system shall be public. An encroachment permit shall be processed for approval by the City for private storm drains within the public right-of-way or within C.F.D. maintained open space lots. 27. Condition No. 86 - (Water) In partial satisfaction of Condition No. 86 of the Resolution, the Developer agrees to construct any potable or recycled water system facilities outside of a particular phase area as identified in the PFFP, which are necessary to provide adequate water service to the particular phase area, or as otherwise agreed between the Applicant and Otay Water District. 28. Condition No. 90 - (Withhold Building Permits and Hold Harmless) In partial satisfaction of Condition No. 90 of the Resolution, the Developer understands and agrees that the performance of Developer's obligations hereunder is required for the health and safety of the residents of its Project. Therefore Developer agrees: a. That the City may withhold building permits for the subject subdivision if any one of the following occur: 1. Regional development threshold limits set by the East Chula Vista Transportation Phasing Plan, as amended from time to time, have been reached or, in order to have the Project comply with the Growth Management Program, as may be amended from time to time. ii. Traffic volumes, levels of service, public utilities and/or services exceed the adopted City threshold standards in the then effective Growth Management Ordinance. iii. The required public facilities, as identified in the PFFP or as amended or otherwise conditioned have not been completed or constructed to the satisfaction of the City. The developer may propose changes in the timing and sequencing of development and the construction of improvements affected. In such case, the PFFP may be amended as approved by the City's Director of Planning and Building and the City Engineer. b. To defend, indemnify and hold harmless the City and its agents, officers and employees, from any claim, action or proceeding against the City, or its agents, officers or employees, to attack, set aside, void or armul any approval by the City, including approval by its Planning Commission, City Councilor any approval by its agents, officers, or employees with regard to this subdivision pursuant to Section 66499.37 of the State Map Act provided the City 9 2-62 promptly notiiies the subdivider of any claim, action or proceeding and on the further condition that the City fully cooperates in the defense. . c. To ensure that all franchised cable television companies ("Cable Company") are permitted equal opportunity to place conduit and provide cable television service to each lot within the subdivision. Developer agrees that the City of ChuIa Vista may grant access to cable companies franchised by the City of Chula Vista to place conduit within the City's easement situated within the Project. Developer shall restrict access to the conduit to only those franchised cable television companies who are, and remain in compliance with, all other rules, regulations, ordinances and procedures regulating and affecting the operation of cable television companies as same may have been, or may from time to time be issued by the City of ChuIa Vista. d. That the City may withhold the issuance of building permits for the Project, should the Developer be determined by the City to be in breach of any of the terms of the Tentative Map Conditions or any Supplemental Agreement. The City shall provide the Developer of notice of such determination and allow the Developer reasonable time to cure said breach. e. To hold the City harmless from any liability for erosion, siltation or increase flow of drainage resulting from this project. 29. Condition No. 92 - (Congestion Management Program). In satisfaction of Condition No. 92 of the Resolution, the Developer agrees: a. To participate, on a fair share basis, in any deficiency plan or financial program adopted by SANDAG to comply with the Congestion Management Program (CMP) and b. To not protest formation of any future regional impact fee program or facilities benefit district to finance the construction of regional facilities. This agreement to not protest shall not be deemed a waiver of the right to challenge the amount of any assessment, which may be imposed due to these new improvements and shall not interfere with the right of . any person to vote in a secret ballot election. 30. Condition No. 93 - (previous Agreements). In satisfaction of Condition No. 93 of the Resolution, the Developer agrees to comply with all previous agreements as they pertain to this tentative map including the Agreement for Monitoring Building Permits, Resolution No. 2003-166, dated April 15,2003; Indemnification agreement between the City ofChuIa Vista and NNP-Trimark, Resolution No. 2000-483, dated December 19, 2000; and the Annexation Agreement, Resolution No.2000-481, dated December 19, 2000, Concerning the Conservation and Biological Mitigation Program for the hnplementation of the San Miguel Ranch Sectional Planning Area Plan and Tentative Tract Map by and between City, Agencies and NNP- Trimark. 31. Condition No. 94 - (Street Sweeping). In partial satisfaction of Condition No. 94 of the Resolution, the Developer agrees to contract with the City's current street sweeping 10 2-63 franchisee, or other server approved by the City Engineer to provide street sweeping for each phase of development on a frequency and level of service comparable to that provided for similar areas of the City. The developer shall cause street sweeping to co=ence immediately after the final residence, in each phase, is occupied and shall continue sweeping until such time that the City has accepted the street or 60 days after the completion of all punch list it=s, whichever is shorter. The developer further agrees to provide the City Special Op'erations Manager with a copy of the memo requesting street sweeping service which memo shall include a map of areas to be swept and the date the sweeping will begin. 32. Condition No. 95 - (Fiscal Impact). In partial satisfaction of Condition No. 95 of the Resolution, the Developer agrees to the following: a. To maintain at all times a minimum balance of $10,000 in the annual fiscal review fund. The first annual review shall be for the year 2001 and continue through year 2015. At any time, should the annual fiscal review fund balance be less than $10,000, and shoulq Applicant fail to replenish such balance within 30 days of City's demand for replenishment of the fund to the minimum required balance, City shall have the right to withhold building permits for the Proj ect; and b. To acknowledges and agree that Applicant shall be responsible through the year 2015 for paying for the fiscal deficit identified by the annual fiscal review to ensure that all City services provided to the Proj ect including direct and indirect costs, as well as capital and operating costs shall be covered by Project revenues and Project exactions. Applicant shall, prior to approval of the first Final Map within the Project, and subject to the approval of the City, establish a mechanism to satisfy Applicant's responsibility for payment of the Project's fiscal deficit, such as the establishment of a reserve fund, payment of a one time fee, a fee to be paid with each building permit for the Project, the establishment of a co=unity facilities district or other acceptable methods. 33. Condition No. 99 - (Maintenance District) In partial satisfaction of Condition No. 99 of the Resolution, the Developer agrees to not protest formation or inclusion in a maintenance district or zone for the maintenance of landscaped medians and parkways along streets, and scenic corridors within or adjacent to the Project. This agre=ent not to protest shall not be deemed a waiver of the right to challenge the amount of any assessment which may be imposed due to the addition of these new improvements and shall not interfere with the right of any person to vote in a secret ballot election. 34. Condition No. 100 - (L&I) In partial satisfaction of Condition No. 100 of the Resolution, the Developer agrees to ensure that the ROA will maintain all open space lots, medians, and parkways in perpetuity. 35. Condition No. 103 - (DG Walkways free from Obstacles) - In partial satisfaction of Condition No. 103 of the Resolution, the Developer hereby acknowledges and agrees that there shall be no vertical obstacles or any obstructions such as public utility vaults, boxes, etc. placed within the decomposed granite (D. G.) walkways within the project. In the 11 2-64 event of any such obstruction placed within the walkways, Developer agrees to immediately remove such obstructions, upon request of the City. 36. Condition No. 104 - (Special Tax and Assessment Disclosure form) - In satisfaction of Condition No. 104 of the Resolution, the Developer hereby acknowledges and agrees that prior to receiving first model home building permit, the developer shall submit all Special Tax and Assessment disclosure forms for each model size or EDU for the approval of the City Engineer. The Developer also agrees to provide disclosure form to purchaser of each unit. 37. Condition No. 107 - (formation of maintenance district) - In satisfaction of Condition No. 107 of the Resolution, the Developer hereby acknowledges and agrees to not protest formation of a district for the maintenance of City drainage facilities, or any portion thereof, within the Sunnyside Basin. This agreement not to protest shall not be deemed a waiver of the right to challenge the amount of any assessment which may be imposed due to the addition of these new improvements and shall not interfere with the right of any person to vote in a secret ballot election. 38. Condition No..lIO - (City Wide Park Master Plan) - In partial satisfaction of Condition No. 110 of the Resolution, the Developer hereby acknowledges and agrees to comply with the provisions of said Plan when adopted as it affects facility and other related requirements for the San Miguel Ranch community park. 39. Condition No. 119 - (Community Park site) - In partial satisfaction of Condition No. 119 of the Resolution, the Developer agrees to install below grade utilities and future points of connection to the boundaries of the Community Park site (Lots CP~A and B) to the satisfaction of the City Engineer and the Director of Planning and Building concurrently with the installation of below grade utilities for any portion of Planning Areas H or I, whichever occurs first. 40. Condition No. 122 (park Development and Acquisition Fee). In partial satisfaction of Condition No. 122 of the Resolution, the Developer hereby acknowledges and agrees that prior to the approval of each Final Map within the Project which allows construction of any dwelling unit, the Developer shall pay to the City the development portion of the Park Development Fee (pAD fee) due for the dwelling unit count of the respective Final Map. The principal funds shall accumulate to the total amount of the park development fee due for. the Project as established by the PFFP. 41. Condition No. 170 (Fire Management) In partial satisfaction of Condition No. 170 of the Resolution, the Developer agrees to provide the Initial Cycle of fire management! brush clearance and install structural fire prevention measures within lots adjacent to natural open space areas subject to approval by the Fire Marshal and Director of Planning and Building. 42. Condition No. 171 (Fire Hydrants and Fire Access). In partial satisfaction of Condition No. 171 of the Resolution, the Developer agrees to provide fire hydrants every 500 ft. for single family residential units and every 300 ft. for multi-family residential units. Developer 12 2-65 further agrees to comply with the City Of Chula Vista Fire Department Standard Operating Guidelines (OPS:2916, as amended from time to time) requiring that all fire hydrants be operable prior to delivery of combustible building materials, and a mi"imum 20' wide, all-weather fire access roads be provided. 43. Condition No. 173 (Sprinkler Systems on Flag Lots). In partial satisfaction of Condition No. 173 of the Resolution, the Developer agrees to provide sprinkler syst=s in all homes that are on flag lots where the setback distance is greater than 150' as measured from the nearest curb face to the furthers point of the dwelling. 44. Condition No. 174 (Grading Ordinance). In partial satisfaction of Condition No. 174 of the Resolution, the Developer agrees to comply with all applicable sections of the Chula Vista Municipal Code including Chapter 15.04 "Grading Ordinance" as amended. Preparation of the Final Map and all plans shall be in accordance with the provisions of the Subdivision Map Act and the City of Chula Vista Subdivision Ordinance and Subdivision Manual. 45. Condition No. 175 (Underground Utilities). In partial satisfaction of Condition No. 175 of the Resolution, the Developer agrees to underground all utilities within the subdivision in accordance with Municipal Code requirements, excepting those utilities owned and operated by SDG&E located within E-1 and E-2, which may be relocated per the requirements of SDG&E, to the satisfaction of SDG&E and the City Engineer. 46. Condition No. 176 (Fees). In partial satisfaction of Condition No. 176 of the Resolution, the Developer agrees to pay all applicable fees in accordance with the Municipal Code and Council Policy, including, but not limited to, the following: Prior to issuance of each building permit: a. The Transportation and Public Facilities Development Impact Fees. b. Signal Participation Fees. c. All applicable sewer fees, including but not limited to sewer connection fees. e. Proctor Valley Trunk Sewer Reimbursement District Fee. f. Frisbie Trunk Fee. g. Fiscal Operation Deficit as determined by the City Manager (see Condition No. 95) Prior to each Final Map approval: h. Park Acquisition and Development Fee. 1. Spring Valley Sanitation District Trunk Fee. The amount of said fees shall be those in effect at the time of approval of final maps or issuance of building permits as applicable. 47. Condition No. 177 (Federal, State and Local Regulations) In partial 13 2-66 satisfaction of Condition No. 177 of the Resolution, the Developer agrees to comply with all relevant Federal, State, and Local regulations, including the Clean Water Act. The developer shall be responsible for providing all required testing and documentation to demonstrate said compliance as required by the City Engineer. 48. Condition No. 178 (Noise Levels) In partial satisfaction of Condition No. 178 of the Resolution, the Developer agrees to design all dwelling units to preclude interior noise levels over 45 dBA and shield all exterior private open space to limit noise exposure to 65 dBA. 49. Condition No. 179 (NPDES) In partial satisfaction of Condition No. 179 of the Resolution, the Developer agrees to comply with all applicable regulations established by the United States Environmental Protection Agency (USEPA) as set forth in the National Pollutant Discharge Elimination Syst= (N.P.D.E.S.) permit requirements for urban runoff and storm water discharge and any regulations adopted by the City of Chula Vista pursuant to the N.P D.E.S. regulations or requir=ents. Further, the applicant shall file notice of intent with the State Water Resources Control Board to obtain coverage under the N.P.D.E.S. General Permit for Storm Water Discharges Associated with Construction Activity and shall implement a Storm Water Pollution Prevention Plan (SWPPP) concurrent with the co=encement of grading activities. The SWPPP shall include both construction and post construction pollution prevention and pollution control measures and shall identify funding mechanisms for post construction control measures. 50. Condition No. 180 (Notice of Special Tax Disclosure). In partial satisfaction of Condition No. 180 of the Resolution, the Developer agrees to ensure that prospective purchasers sign a "Notice of Special Taxes and Assessments" pursuant to Municipal Code Section 5.46.020 regarding projected taxes and assessments. Submit the disclosure form for approval by the City Engineer prior to Final "B" Map approval. 51. Condition No. 181 (Natural Channels in Open Space). In partial satisfaction of Condition No. 181 of the Resolution, the Developer shall comply with Council Policy No. 522- 02 regarding maintenance of natural channels within open spaces and to repair erosion down stream of the project at the request of the City Engineer. 52. Condition No. 182 (Growth Management). In partial satisfaction of Condition No. 182 of the Resolution, the Developer agrees to comply with Chapter 19.09 of the Chula Vista' Municipal Code (Growth Manag=ent) as may be amended from time to time by the City. Said chapter includes but is not limited to: threshold standards (19.09.04), public facilities finance plan impl=entation (19.09.090), and public facilities finance plan amendment procedures (19.09.100). 53. Condition No. 183 (public Facilities) In partial satisfaction of Condition No. 183 of the Resolution, the Developer agrees to install public facilities in accordance with the San Miguel Ranch Public Facilities Finance Plan as may be amended from time to time, or as required by the City Engineer to meet threshold standards adopted by the City of Chula Vista. The City Engineer and Director of Planning and Building may, at their discretion, modify the 14 2-67 sequence of improvement construction should conditions change to warrant such a revision. The Developer shall construct the public improvements and provide security satisfactory to the City Engineer. 54. Condition No. 184 (SPA & PFFP Phasing Plan) In satisfaction of Condition No. 184 of the Resolution, the Developer agrees to develop the Project in accordance with the approved SPA and PFFP phasing plan. If the applicant proposes to modifY this approved phasing plan, the applicant shall submit to the City a revised phasing plan for review and approval prior to approval of each Final Map. The PFFP and the map conditions shall be revised where necessary to reflect the revised phasing plan. 55. Condition No. 185 (phasing) In satisfaction of Condition No. 185 of the Resolution, the Developer agrees that if phasing is proposed within an individual map or through multiple final maps, the developer shall submit and obtain approval for a development phasing plan by the City Engineer and Director of Planning and Building prior to approval of any Final Map. Improvements, facilities and dedications to be provided with each phase or unit of development shall be as determined by the City Engineer and Director of Planning and Building. The City reserves the right to require said improvements, facilities and/or dedications as necessary to provide adequate circulation and to meet the requirements of police and fire departments. The City Engineer and Director of Planning and Building may, at their discretion, modifY the sequence of improvement construction should conditions change to warrant such a revision. The developer agrees that the City Engineer may change the timing of construction of the public facilities. 56. Condition No. 186 - (public Facility Financing Plan). In partial satisfaction of Condition No. 186 of the Resolution, the Developer agrees that the Public Facility Finance Plan or revisions thereto shall be adhered to for the SPA and tentative map with improvements installed in accordance with said plan or as required to meet threshold standards adopted by the City of Chula Vista. The PFFP identifies a facility phasing plan based upon a set of assumptions concerning the location and rate of development within and outside of the project area. Throughout the build-out of San Miguel Ranch, actual development may differ ftom the assumptions contained in the PFFP. Neither the PFFP nor any other document grant the Developer an entitlement to develop as assumed in the PFFP, or limit the facility improvement requirements to those identified in the PFFP. Compliance with the City ofChula Vista threshold standards, based on actual development patterns and updated forecasts in reliance on changing entitlements and market conditions, shall govern SPA development patterns and the facility improvement requirements to serve such development. In addition, the sequence in which improvements are constructed shall correspond to any future Eastern Chula Vista Transportation Phasing Plan or amendment to the Growth Management Program and Ordinance adopted by the City. The City Engineer may modifY the sequence of improvement construction should conditions change to warrant such a revision. The San Miguel Ranch PFFP, at the Developer's expense and subject to a Reimbursement Agreement, shall be updated, upon request of the City Engineer, to reflect said revisions including the nature, sizing, extent and timing for the construction of public facilities caused by San Miguel Ranch, and shall become a condition for all subsequent San Miguel Ranch entitlements, including tentative and final maps. 15 2-68 57. Condition No. 187 - (Withhold Building Permits). In partial satisfaction of Condition No. 187 of the Resolution, the Developer agrees and acknowledges that the City may withhold building permits for any of the phases of development identified in the Public Facilities Financing Plan (pFFP) if the required public facilities, as identified in the PFFP or as amended or otherwise conditioned, have not been completed or constructed to the satisfaction of the Director of Planning and Building. The property owner may propose changes in the timing and sequencing of the development and the construction of improvements affected in such cases, the PFFP may require amendment as approved by the Director of Planning and Building. 58. Condition No. 188 (Growth Management Ordinance). In partial satisfaction of Condition No. 188 of the Resolution, the Developer acknowledges and agrees that the City is presently in the process of amending its Growth Management Ordinance to establish provisions necessary to ensure compliance with adopted thresholds standards (particularly traffic) prior to the construction of State Route 125 and that the Developer hereby agrees to comply with adopted amendments to the Growth Management Ordinance. Said provisions will require the demonstration, to the satisfaction of the City Engineer, of sufficient street system capacity to accommodate a proposed development as a prerequisite to Final Map approval for that development. 59. Condition No. 189 (San Miguel Water Conservation Plan). In partial satisfaction of Condition No. 189 of the Resolution, the Developer agrees to revise, at its own cost and expense, the San Miguel Ranch Water Conservation Plan ("WCP") as necessary to incorporate new water conservation measures, and/or to participate in pilot projects to evaluate new measures, such as gray water systems, as adopted by the City Council, and comply and remain in compliance with the WCP. The Developer further agrees to modify the WCP to incorporate those new measures, which are in effect at the time, prior to or concurrent with each Final Map approval. The new measures shall apply to development within all future Final Map areas, but shall not be retroactive to those areas, which received Final Map approval prior to effect of the subject new measures. Developer hereby waives any claim that the adoption of a revised Water Conservation Plan or Air Quality Plan constitutes an improper subsequent imposition of the condition. 60. Condition No. 190 - (Declaration of Covenants, Codes and Restrictions). In partial satisfaction of Condition No. 190 of the Resolution, The Developer hereby agrees and acknowledges that the MHOA's maintenance of public open space, trails, etc. may expose the City to liability. Developer agrees to establish a MHOA that will defend, indemnify, and hold the City harmless from any negligence of the MHOA in the maintenance of such areas. 61. Condition No. 191 (Declaration of Covenants, Codes and Restrictions). In partial satisfaction of Condition No. 191 of the Resolution, the Developer agrees that the Declaration of Covenants, Conditions and Restrictions (CC & R's) shall include provisions establishing a Home Owners Association (HOA) to assure maintenance of all open space areas and slopes which are not maintained by other means, streets, driveways, drainage and sewage systems which are private, and landscape and irrigation, walls and public street improvements 16 2-69 which are not maintained by other means, all subj ect to approval of the City. The City of Chula Vista shall be named as party to said Declaration authorizing the City to enforce the terms and conditions of the Declaration in the same manner as any owner within the subdivision. 62. Condition No. 193 (Submittal of Declaration of Covenants, Codes and Restrictions). In partial satisfaction of Condition No. 193 of the Resolution, prior to the approval of each Final Map, the Developer agrees to submit and obtain the approval of the City Engineer, Director of Planning and Building the Declaration of Covenants, Conditions, and Restrictions (CC&R's). Developer further agrees that amended CC&R's addressing future phases to be annexed to the Master HOA shall be submitted and Developer shall obtain the approval of said CC &R's. The CC&R's shall include the following obligations of the Master Homeowners Association: a. Maintain all the facilities and improvements within the open space lots offered for dedication to the City until acceptance of the open space lots for maintenance by the open space/Community Facilities District. b. A requirement that the MHOA shall maintain comprehensive general liability insurance against liability incident to ownership or use of the following areas: 1 open space lots offered for dedication to the City until acceptance by the City, or until any such offer of dedication is extinguished by it own terms. 11 all open space lots that shall remain private, iii other Master Association property. c. Before any revisions to provisions of the CC&R's that may particularly affect the City can become effective, said revisions shall be approved by the City. The MHOA shall not seek approval from the City of said revisions without the prior consent of 100 percent of the holders of first mortgages or property owners within the MHOA. d. The MHOA shall defend, indemnify, and hold the City harmless from any claims, demands, causes of action liability or loss related to or arising from the maintenance activities of the MHOA. e. The MHOA shall not seek to be released by the City from the maintenance obligations described herein without the prior consent of the City and 100 percent of the holders of first mortgages or property owners within the MHOA. f. The MHOA is required to procure and maintain a policy of comprehensive general liability insurance written on a per occurrence basis in an amount not less than one million dollars combined single limit. The policy shall be acceptable to the City and name the City as additionally insured. 17 2-70 g. The CC&R's shall incorporate restrictions for each lot adjoining open space lots containing walls maintained by the open space district to ensure that the property owners know that the walls may not be modified or supplemented nor may they encroach on City property. h. The CC&R's shall include provisions assuring MHOA membership in an advance notice such as the USA Dig Alert Service in perpetuity. i. The CC&R's shall include provisions that provide City the right, but not the obligation, to enforce the CC&R provisions same as any owner in the Project. . j. The CC&R provisions setting forth restrictions in these Tentative map conditions may not be revised at any time without prior written permission of the City. k. The MHOA shall not dedicate or convey for public streets, land used for private streets without approval of 100% of all the BOA members or holder of first mortgages within the MHOA. (Engineering, Parks, Planning, Public Works) 1. Provide within the master CC&R's for the maintenance in perpetuity of all stabilized decomposed granite (D.G.) areas by a Home Owner's Association. m. Maintenance of all facilities and improvements within open space areas covered by homeowners associations. 63. Satisfaction of Conditions. City agrees that the execution of this Agreement constitutes satisfaction or partial satisfaction of Developer's obligation of Conditions 1, 2, 3, 4, 5, 6,10,11,12,13,15,17,18,24,27,28,30,31,54,55,57,67,72, 73, 74, 86, 90, 92, 93, 94, 95, 99,100,103,104,107,110, 119,122,170,171,173,174,175,176,177,178,179,180,181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191 and 193 of the Resolution. Developer further understands and agrees that the some of the provisions herein may be required to be performed or accomplished prior to the approval of other final maps for the Project, as may be appropriate. 64, Unfulfilled Conditions. Developer hereby agrees, unless otherwise conditioned, that Developer shall comply with all unfulfilled conditions of approval of the Tentative Map, established by Resolution No. 2000-068 and shall remain in compliance with and implement the terms, conditions and provisions therein. 65. Recording. This Agreement, or an abstract hereof shall be recorded simultaneously with the recordation of the Final Map. 66. Building Permits. Developer and Guest Builders acknowledge and agree that the City may withhold the issuance of building permits for the Project, should the Developer be det=ined by the City to be in breach of any of the terms of this Agreement. The City shall provide the Developer of notice of such determination and allow the Developer with reasonable 18 2-71 time to cure said breach. 67. Assignablity. Upon request of the developer, any or all on-site duties and obligations set forth herein may be assigned to developer's successor in interest if the City manager in his/her sole discretion determines that such an assigmnent will not adversely affect the City's interest. The City Manager in his/her sole discretion may, if such assignment is' requested, permit a substitution of securities by the successor in interest in place and stead of the original securities described herein so long as such substituted securities meet the criteria for security as set forth elsewhere in this agreement. Such assignment will be in a fonn approved by the City Attorney. 68. Delay in Performance. City agrees that should Developer be delayed in performing any obligations under this Agreement primarily as a result of a "Pemritted Excuse" (as hereunder defined). Developer shall be allowed a reasonable extension of time to perfonn said obligation, and such reasonable time shall be determined by the City, but in no circumstances shall be less than the length of the delay resulting from the Pemritted Excuse. As used herein, the term "Permitted Excuse" shall mean any of the following: (i) the City's actions, omissions or inaction which result in a delay of performance by Developer or (ii) labor disputes, acts of God, war, riots, insurrections, civil co=otions, moratorium (other that those imposed by the City pursuant to Growth Management Ordinance, as may be amended from time to time) litigation (other than any litigation brought by or on behalf of Developer or Developer's successors-in-interests, assignees or agents against the City) inability to obtain labor or materials or reasonable substitutes for either, fire, unusual delay in transportation, adverse weather, conditions not normally anticipated in a project of this type or casualties beyond the reasonable control of Developer, Permitted Excuse shall not include delays due to a party's own negligence or financial inability to perform. 69. Miscellaneous. a. Notices. Unless otherwise provided in this Agreement or by law, any and all notices required or pemritted by this Agreement or by law to be served on or delivered to either party shall be in writing and shall be deemed duly served, delivered, and received when personally delivered to the party to whom it is directed, or in lieu thereof, when three (3) business days have elapsed following deposit in the U.S. mail, certified or registered mail, return receipt requested, first-class postage prepaid, addressed to the address indicated in this Agre=ent. A party may change such address for the purpose of this paragraph by giving written notice of such change to the other party. CITY OF CHULA VISTA 276 Fourth Avenue Chula Vista, CA. 91910 Attn: City Engineer Developer: PROCTOR V ALLEY WEST PARTNERS, 19 2-72 85 Argonaut, Suite 205 Aliso Viejo, CA. 92656 Phone (949) 465-1655 Attn.: Stephen E. Hester, Executive Vice President A party may change such address for the purpose of this paragraph by giving written notice of such change to the other party in the manner provided in this paragraph. b. Captions. Captions in this Agreement are inserted for convenience of reference and do not define, describe or limit the scope or intent of this Agreement or any of its terms. c. Entire Agreement. This Agreement contains the entire agreement between the parties regarding the subject matter hereof. Any prior oral or written representations, agreements, understandings, and/or statements shall be of no force and effect. This Agreement is not intended to supersede or amend any other agreement between the parties unless expressly noted. d. Preparation of Agreement. No inference, assumption or presumption shall be drawn from the fact that a party or his attorney prepared and/or drafted this Agreement. It shall be conclusively presumed that both parties participated equally in the preparation and/or drafting this Agreement. e. Recitals; Attachments. Any recitals set forth above and exhibits attached hereto are incorporated by reference into this Agreement. f. Attorneys' Fees. If either party commences litigation for the judicial interpretation, reformation, enforcement or rescission hereof, the prevailing party will be entitled to a judgment against the other for an amount equal to reasonable attorney's fees and court costs incurred. The "prevailing party" shall be deemed to be the party who is awarded substantially the relief sought. [NEXT PAGE IS PAGE ONE OF TWO SIGNATURE PAGES] 20 2-73 [pAGE ONE OF TWO SIGNATURE PAGES TO SUPPLE:MENTAL SUBDIVISION IMPROVEMENT AGREE:MENT FOR SAN lVIIGUEL RANCH PLANNING AREA "J-l" FINAL MAP] IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first hereinabove set forth. CITYOFCHULA VISTA Stephen C. Padilla Mayor of the City of Chula Vista Attest: Susan Bigelow City Clerk Ann Moore City Attorney [NEXT PAGE IS PAGE TWO OF SIGNATURE PAGES] 21 2-74 [pAGE TWO OF TWO SIGNATURE PAGES TO SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR SAN MIGUEL RANCH PLANNING AREA "L" FINAL MAP] DEVELOPERS/OWNERS: PROCTOR VALLEY WEST PARTNERS, LLC, a Delaware Limited Liability Company By: Trimark Pacific - Montecito, LLC a California limited liability company, Managing Member By : TPH, LLC, a California limited liability company, Member Manager By: Trimark Ventures, Inc., a California corporation, ;ember J~- . ~~ester \ Executive Vice President (Attach Notary Acknowledgment) 22 2-75 CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT R State of California ban D1e3d 1/1/ /D(P } ss _m. /f:/%7~~r~Lg~(y !?4ilt County of On Name(s}cISigner(s) D.. personally appeared j:l(personally known to me o proved to me on the basis of satisfactory evidence - - - - - - - - - - - - ~ ANICIA SOARES J.-.. Commission # 1584605 ~ _. Notary Publk:: . Call1omla ~ !! San Dtega CounIy d i _ ~ _ ~:",:",,:.~~3: to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I' OPTIONAL Though the information below is not required by faw, it may prove valuable to persons relying on the document and could prevenf fraudulent removal and reattachment of this form to another document Description of Attached Document ~ " " Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: o Individual o Corporate Officer - Title(s): o Partner - 0 Limited 0 General o Attorney-in-Fact o Trustee o Guardian or Conservator o Other: Topafthumb here I ~~~ Signer Is Representing: , ~ Q 1999 Natlonaj NotatyAsscciatlon' 9350 De SotQ Ave., P.O. Box 2402' Cha,tsworth, CA 91313.24Q2' www.NatlonajNotary.crg Prod. No. 5907 ReQrdsr.CaftToll-Frea1.8CC-876-6627 2-76 I I @ I I I ~ @ " 'J I " . Exhibit "A" Legal Description of Property Being a subdivision of lots 2, 3, F, and G, and a portion of Avenida Loretta, of Chula Vista Tract No. 99-04, San Miguel Ranch Phase 3 "A" Map No.1 in the City Of Chula Vista, County of San Diego, state of California, according to Map thereof No. 14853, filed in the Office of the County Recorder of San Diego County on August 10, 2004. 23 2-77 EXHIBIT "B" SECURITY CHULA VISTA TRACT NO. 99-04 SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR SAN MIGUEL RANCH PLANNING AREA "J-I FINAL MAP] "J-l" $424,241.94 CWSZ0351 C:\Documents and SettingslrimatlMy Docwnentslprojects relatedlSan Miguel Ranch Phase IIl\fu1al draft SSlA of J- l.doc 24 2-78 THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIL cf}i" ;/YJt.L!:,_ Ann Moore City Attorney Dated: / h~/ 0 (p / Supplemental Subdivision Improvement Agreement between the City of Chula Vista and Proctor Valley West Partners, LLC for San Miguel Ranch Planning Area "J-2" Final Map 2-79 City Clerk ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Above Space for Recorder's Use RECORDING REQUEST BY: WHEN RECORDED MAIL TO: CITY OF CHULA VISTA 276 Fourth Avenue Chula Vista, CA 91910 No transfer tax is due as this is a conveyance to a public agency of less than a fee interest for which no cash consideration has been paid or received. SM-018F SAN MIGUEL RANCH PLANNING AREA "J-2" FINAL MAP SUPPLEMENTAL SUBDMSION IMPROVEMENT AGREEMENT (Conditions 1,2,3,4,5,6,10,11,12,13,15,17,18,24,27,28,30,31,54, 55, 57, 67, 72, 73, 74,86,90,92,93,94,95,99,100,103,104,107,110,119,122, 170, 171, 173, 174, 175, 176, 177,178,179,180,181,182,183,184,185,186,187,188, 189, 190, 191 and 193) This Supplemental Subdivision Improvement Agreement ("Agreement") is made this day of-, 2004, by and between THE CITY OF CHULA VISTA, California ("City" or "Grantee" for recording purposes only) and PROCTOR V ALLEY WEST PARTNERS, LLC, a Delaware Limited Liability Company, ("Developer" or "Grantor"), with reference to the facts set forth below, which recitals constitute a part of this Agreement: RECITALS A. This Agreement concerns and affects certain real property located in Chula Vista, California, more particularly described on Exhibit "A" attached hereto and incorporated herein ("Property"). The Property is within approved Tentative Subdivision Map Chula Vista Tract 99- 04, which project is commonly known as San Miguel Ranch. For purposes of this Agreement the te= "Project" shall also mean "Property". B. Developer andlor Developer's predecessor in interest has applied for and the City has approved Tentative Subdivision Map commonly referred to as Chula Vista Tract 99-04 2-80 ("Tentative Subdivision Map") for the subdivision of the Property. C. The City has adopted Resolution No. 2000-068 ("Resolution") pursuant to which it has approved the Tentative Subdivision Map subject to certain conditions as more particularly described in the Resolution and thereafter amended said conditions pursuant to City Council Resolution No. 2001-453 (collectively hereinafter refer to as "Resolution"). D. City is willing, on the premises, security, terms and conditions herein contained to approve the final map for which Developer has applied as being in substantial conformance with the Tentative Subdivision Map described in this Agreement. Developer understands that subsequent [mal maps may be subj ect to the same security terms and conditions contained herein. E. The following defined terms shall have the meaning set forth herein, unless otherwise specifically indicated: "Owner or Developer" means the person, persons or entity having a legal or an equitable interest in the property or parts thereof and includes Owner's successors-in-interest and assignors of any property within the boundaries of the map. This includes PROCTOR VALLEY WEST PARTNERS, LLC, a Delaware Limited Liability Company, and any and all owners of real property within the boundaries of the Property, and all signatories to this Agreement. "Guest Builder" means those entities obtaining any interest in the Property or a portion of the Property, after the final map has been recorded. "PFFP" means the Public Facilities Financing Plan adopted by Resolution No. 19631 on October 19, 1999 and amended by Resolution No. 2001-453 ("Amendment") on December 17, 2001 and as may be further amended ITom time to time. "SPA Plan" means the San Miguel Ranch Sectional Planning Area Plan as adopted by the City Council on October 19,1999 pursuant to Resolution No. 19631, and as amended by the Zoning Administrator on June 19,2002 (PCM-02-17). NOW, THEREFORE, in exchange for the mutual covenants, terms and conditions herein contained, the parties agree as set forth below. 1. Agreement Applicable to Subsequent Owners. a. Agreement Binding Upon Successors. This Agreement shall be binding upon and inure to the benefit of the successors, assigns and interests of the parties as to any or all of the Property as described on Exhibit "A" until released by the mutual consent of the parties. For the purposes of this Agreement the "Developer" shall also mean "Applicant" b. Agreement Runs with the Land. The burden of the covenants contained in this Agreement ("Burden") is for the benefit of the Property and the City, its successors and assigns and any successor in interest thereto. City is deemed the beneficiary of such covenants 2 2-81 for and in its own right and for the purposes of protecting the interest of the co=unity and other parties public or private, in whose favor and for whose benefit of such covenants running with the land have been provided without regard to whether City has been, remained or are owners of any particular land or interest therein. If such covenants are breached, the City shall have the right to exercise all rights and remedies and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breach to which it or any other beneficiaries of this agreement and the covenants maybe entitled. c. Developer Release on Guest Builder Assignments. If Developer assigns any portion of the Project to a Guest Builder, Developer may request to be released ftom Developer's obligations under this Agreement, that are expressly assumed by the Guest Builder, provided Developer obtains the prior written consent of the City to such release. Such assignment to the Guest Builder shall, however, be subject to this Agreement and the Burden of this Agreement shall remain a covenant running with the land. The City shall not withhold its consent to any such request for a release so long as the assignee acknowledges that the Burden of the Agreement runs with the land, assumes the obligations of the Developer under this Agreement, and demonstrates, to the satisfaction of the City, its ability to perform its obligations under this Agreement as it relates to the portion of the Proj ect which is being acquired by the Assignee. d. Partial Release of Developer's Assignees. If Developer assigns any portion of the Project subject to the Burden of this Agreement, upon request by the Developer or its assignee, the City shall release the assignee of the Burden of this Agreement as to such assigned portion if such portion has complied with the requirements of this Agreement to the satisfaction of the City and such partial release will not, in the opinion of the City, jeopardize the likelihood that the remainder of the Burden will not be completed. e. Release of Individual Lots. Upon the occurrence of any of the following events, Developer shall, upon receipt of the prior written consent of the City Manager (or Manager's designee), have the right to release any lot( s) from Developer's obligation under this Agreement: 1. The execution of a purchase agreement for the sale of a residential lot to a buyer of an individual housing unit; 11. The conveyance of a lot to a Homeowner's Association; iii. The conveyance of a school site as identified in the SPA Plan to a school district; The City shall not withhold its consent to such release so long as the City finds in good faith that such release will not jeopardize the City's assurance that the obligations set forth in this Agreement will be performed. At the request of the Developer, the City Manager (or Manager's designee) shall execute an instrument drafted by Developer in a recordable form acceptable to the City Manager (or Manager's designee), which confirms the release of such lot or parcel ftom the 3 2-82 encumbrance of this Agreement. Notwithstanding the foregoing, at the close of an individual homeowner's escrow on any lot or parcel encumbered by this Agreement, such lot or parcel shall be automatically released ITom the encumbrance hereof. 2. Condition No.1 - (General Preliminary). In partial satisfaction of Condition No.1 of the Resolution, the Developer hereby agrees to comply with all requirements and guidelines of the San Miguel Ranch SPA Plan, Planned Community (PC) District Regulations, Design Guidelines, Public Facilities Financing Plan, Affordable Housing Plan, Air Quality Improvement Plan, Water Conservation Plan, and City approved substantial Conformance Exhibits, all as may be amended ITom time to time, unless specifically modified by the appropriate department head, with the approval of the City Manager. These plans may be subject to minor modifications by the appropriate department head, with the approval of the City Manager, however, any material modifications shall be subject to approval by the City Council. 3. Condition No.2 - (General Preliminary). In satisfaction of Condition No.2 of the Resolution, the Developer hereby agrees that the project conditions of approval are based upon the project having multiple final maps. Unless otherwise specified, all conditions and code requirements listed herein shall be fully completed to the City's satisfaction prior to approval of the first final map. 4. Condition No.3 - (General Preliminary). In satisfaction of Condition No.3 of the Resolution, the Developer hereby agrees that in the event of a filing of a final map which requires over-sizing of the improvements necessary to serve other properties, said final map shall be required to install all necessary improvements to serve the project plus the necessary over- sizing of facilities required to serve such other properties (in accordance with the restrictions of State law and City ordinances). 5. Condition No.4 - (General Preliminary). In partial satisfaction of Condition No.4 of the Resolution, the Developer agrees that prior to approval of a final Map creating a multiple family lot, which does not require the filing of a subsequent map, all applicable conditions of approval of the tentative map shall be met, as determined by the City Engineer. 6. Condition No.5 - (PFFP Phasing). In partial satisfaction of Condition No.5 of the Resolution, the Developer agrees not to seek any building permits for production homes until the Mt. Miguel Road Bridge across SR-125 has been constructed and is open to the public. Developer may seek building permits for model homes prior to completion of the Mt. Miguel Road bridge across SR-125. Developer further agrees: a. To prevent construction traffic ITom accessing to and ITom the County of San Diego via San Miguel Road, and b. To allow construction access through the City of Chula Vista only, and 4 2-83 c. To maintain a physical barrier to prevent vehicular access from the project to Proctor Valley Road to the northwest until SRI25 is open to the public, all to the satisfaction of the City. 7. Condition No.6 - (General Preliminary). In partial satisfaction of Condition No. 6 of the Resolution, the Developer hereby agrees to dedicate for public use all the public streets shown on the tentative map within the subdivision boundary with the recordation of the applicable [mal map. Prior to the approval of the applicable final map, the Developer shall enter into an agreement to guarantee the construction of all street improvements as required by the PFFP for each particular phase. 8. Condition No. 10 - (General Preliminary) In satisfaction of Condition No. 10 of the Resolution, the Developer agrees that if any of the terms, covenants or conditions contained herein shall fail to occur or if they are, by their terms, to be implemented and maintained over time, if any of such conditions fail to be so implemented and maintained according to their terms, the City shall have the right to revoke or modify all approvals herein granted including issuance of building permits, deny, or further condition the subsequent approvals that are derived from the approvals herein granted, institute and prosecute litigation to compel their compliance with said conditions or seek damages for their violation. The Developer shall be notified 10 days in advance prior to any of the above actions being taken by the City and shall be given the opportunity to remedy any deficiencies identified by the City within a reasonable and diligent time frame. 9. Condition No. 11 - (General Preliminary) In satisfaction of Condition No. II of the Resolution, the Developer agrees that all of the terms, covenants and conditions contained herein shall be binding upon and inure to the benefit of the heirs, successors, assigns and representatives of the Developer as to any or all of the property. For the purposes of this document the term "Developer" shall also mean "Applicant". 10. Condition No. 12 - (General Preliminary) In satisfaction of Condition No. 12 of the Resolution, the Developer agrees to indemnify, protect, defend and hold the City harmless from and against any and all claims, liabilities and costs, including attorney's fees, arising from challenges to the Final Subsequent Environmental Impact Report for the San Miguel Ranch Sectional Planning Area and Tentative Maps (FSEIR 97-02) and any or all entitlements and approvals issued by the City in connection with the Project. 11. Condition No. 13 - (General Preliminary) In satisfaction of Condition No. 13 of the Resolution, the Developer agrees to comply with all applicable SPA Plan conditions of approval. 12. Condition No. 15 - (Applicable Mitigation Measures) In satisfaction of Condition No. 15 of the Resolution, the Developer agrees to implement to the satisfaction of the Director of Planning and Building and the Environmental Review Coordinator, all applicable mitigation measures identified in FSEIR 97-02, the CEQA Findings of Fact and the Mitigation Monitoring and Reporting Program for the San Miguel Ranch Project in accordance with the 5 2-84 requirements, provisions and schedules contained therein, and as further specified in these Tentative Map conditions. Modification of the sequence of mitigation shall be at the discretion of the Director of Planning and Building should changes in circumstances warrant such a reVISIon. 13. Condition No. 17 - (EnvironmentalJPreservation) In satisfaction of Condition No. 17 of the Resolution, the Developer agrees to comply with all applicable requirements of the California Department of Fish and Game, the California State Water Resources Control Board, the U.S. Department of Fish and Wildlife, and the U.S. Army Corps of Engineers as to the Project. 14. Condition No. 18 - (Brush Management / Fire Protection Plan) In partial satisfaction of Condition No. 18 of the Resolution, the Developer agrees to remain in compliance with the Brush Management Program / Fire Protection Plan for the Project. Developer herein agrees that approval of additional Final Maps will require amendments and additions to the Brush Management Program / Fire Prevention Plan as set forth in the Landscape Master Plan for the Project and as required by the City's Fire Marshall. The Developer shall comply with the following: a. The areas indicated for brush management activities must be within the boundaries of the areas previously proposed for grading within FSElR-97-02. To the extent that brush management areas extend beyond said grading boundaries, additional environmental review and mitigation may be required as determined by the Director of Planning and Building and the Environmental Review Coordinator. b. The Brush Management Program must be in compliance with the Multiple Species Conservation Program (MSCP) Subarea Plan, including but not limited to the requirement of up to a 150-foot setback from structures to the Preserve boundary with a 10-foot fire access, or as required by the Director of Planning and Building subj ect to the City's ordinances and policies. The Brush Management Program shall also address buffer areas, types of fencing, and all other pertinent matters in areas surrounding or abutting the project's Otay Tarp1ant preserves. c. If developer so requests, pursuant to the MSCP Subarea Plan, site-specific waivers or project-level design methods to reduce fire setback requirements may be considered by the City Fire Marshal and approved at the City Fire Marshal's sole discretion. d. As necessary, and prior to the approval of the Brush Management Program, the Applicant shall obtain written consent from other property owners to conduct brush management activities on adjacent, off-site lands, which are within the required brush management zones as reflected in the Brush Management Program. Developer shall incorporate plant species listed in the "Urban Wildlife Interface Guidelines" for planting within and adj acent to fuel modification zones to the satisfaction of the Director of Planning and Building. 6 2-85 15. Condition No. 24 - (Noise Walls and Sound Berms). In partial satisfaction of Condition No. 24 of the Resolution, the Developer agrees that prior to approval of any grading or improvement plans, the Developer shall include on those Plans, as appropriate, and Developer hereby agrees to construct all to the satisfaction of the Director of Planning and Building and the Environmental Review Coordinator, the noise walls or benus required by the Project's Environmental Impact Report and the acoustical report "Final SR-125 Toll Road Noise Design Report" prepared by Entech Consulting Group dated 2/23/05. 16. Condition No. 27 - (Landscape Manual). In partial satisfaction of Condition No. 27 of the Resolution, the Developer shall comply with all aspects of the City of Chula Vista Landscape Manual. 17. Condition No. 28 - (Street Trees). In partial satisfaction of Condition No. 28 of the Resolution, the Developer shall install all street trees in accordance with Section 18.28.1 0 of the Chula Vista Municipal Code and the City's Landscape Manual or as otherwise approved by the Director of Planning and Building and the City Engineer. Upon request of the Director of Planning and Building, the applicant shall provide root control methods and a separate deep watering irrigation system for all trees. Street trees shall be shown on street improvement plans submitted for approval by the Director of Planning and Building and the City Engineer prior to or concurrent with the second submittal of street improvement plans within the subdivision. Approval of the street tree improvement plans shall constitute [mal approval of the species selection of street trees 18. Condition No. 30 - (Compliance with approved plans) In partial satisfaction of Condition No. 30 of the Resolution, the Developer shall comply with, remain in compliance with, and implement, unless otherwise conditioned, the tenus, conditions and provisions of the San Miguel Ranch General Development Plan, Sectional Planning Area Plan ("SPA"), and such Master Plan of Reclaimed Water, Urban Runoff Report, Habitat Enhancement Plan, Master Plan of Sewage, Water Conservation Plan, the Air Quality Improvement Plan Design Guidelines and the Public Facilities Financing Plan approved by the Council ("Plans") as are applicable to the property which is the subject matter of this Tentative Map, prior to approval of each final Map, or enter into an agreement with the City, providing the City with such security (including recordation of covenants running with the land) and implementation procedures as the City may require, assuring that, after approval of the [mal Map, the developer shall continue to comply with, remain in compliance with, and implement such Plans. 19. Condition No. 31 - (Security) In partial satisfaction of Condition No. 31 of the Resolution, the Developer shall provide security in accordance with Chapter 18.16 of the Municipal Code and dedicate, construct full street improvements for all public streets shown on the Tentative Map within the subdivision boundary or off-site, as required for each phase in accordance with Chula Vista Design Standards, Chula Vista Street Standards, and the Chula Vista Subdivision Manual unless otherwise approved by the City Engineer. Said improvements shall include, but not be limited to, asphalt concrete pavement, base, concrete curb, driveways, gutter and sidewalk, sewer, reclaimed water and water utilities, drainage facilities, street lights, 7 2-86 . traffic signals, signs, fire hydrants and transitions to existing improvements. All streets shall confo= to the City's Street Design Standards Policy adopted by City Council Resolution No. 15349 unless otherwise conditioned or approved by the City Engineer. Construct transitions to existing improvements in the manner required by the City Engineer. 20. Condition No. 54 - (Traffic Signal) In partial satisfaction of Condition No. 54 of the Resolution, the Developer agrees to install traffic signal on the intersection of San Miguel Ranch Road and Proctor Valley Road as shown on Chula Vista Drawing Numbers 04039-11 and 04039 -12. 21. Condition No. 55 - (SR-125 ROW) In partial satisfaction of Condition No. 55 of the Resolution, the Developer agrees to grant to the City of Chula Vista an Irrevocable Offer of Dedication for any additional right-of-way of SR-125 sufficient for the ultimate construction of SR 125, within the Project's boundaries. The right-of-way shall be sufficient for the ultimate construction of SR-125 to the satisfaction of CalTrans and the City Engineer. Any transfer of the right-of-way to a third party by the City will be subject to a three party agreement between the City of Chula Vista, the Applicant and Caltrans or its authorized agent. 22. Condition No. 57 - (Sewer & Water Laterals) In partial satisfaction of Condition No. 57 of the Resolution, the Developer agrees to guarantee prior to the release of bonds for street improvements that the "Engineer-of-Work" has clearly identified all sewer (S) and water (W) lateral locations prior to the construction of curbs so that the curb face can be stamped with an "s" and "W", for the sewer and water laterals, respectively, and the Developer shall propagate all curb face markings in order to assure that the locations of the said utilities are identifiable. 23. Condition No. 67 - (NPDES) In partial satisfaction of Condition No. 67 of the Resolution, the Developer agrees to comply with all the provisions of the National Pollutant Discharge Elimination System (NPDES) and the Clean Water Program during and after all phases of the development process, including but not limited to: mass grading, rough grading, construction of street and landscaping improvements, and construction of dwelling units. . 24. Condition No. 72 - (Transition Lots) In partial satisfaction of Condition No. 72 of the Resolution, the Developer agrees to submit a list of proposed lots indicating whether the structure will be located on fill, cut, or a transition between the two situations prior to approval of each building p=it for the project. 25. Condition No. 73 - (liability) In partial satisfaction of Condition No. 73 of the Resolution, the Developer acknowledges and agrees to defend indemnify and hold harmless the city ITom any claims or liability ITom erosion, siltation or increase in flow of drainage resulting ITom this project. . 26. Condition No. 74 - (Grading) In partial satisfaction of Condition No. 74 of the Resolution, the Developer acknowledges and agrees that a sto=. drain systems that collects water 8 2-87 from private property shall be designated private on grading and drainage and/or improvement plans to the point of connection with a public system or to the point at which the storm water that is collected from public street right-of-way, public park or open space areas is first introduced into the system. Downstream from that point, the storm drain system shall be public. An encroachment permit shall be processed for approval by the City for private storm drains within the public right-of-way or within C.F.D. maintained open space lots. 27. Condition No. 86 - (Water) In partial satisfaction of Condition No. 86 of the Resolution, the Developer agrees to construct any potable or recycled water system facilities outside of a particular phase area as identified in the PFFP, which are necessary to provide adequate water service to the particular phase area, or as otherwise agreed between the Applicant and Otay Water District. 28. Condition No. 90 - (Withhold Building Permits and Hold Harmless) In partial satisfaction of Condition No. 90 of the Resolution, the Developer understands and agrees that the performance of Developer's obligations hereunder is required for the health and safety of the residents of its Project. Therefore Developer agrees: a. That the City may withhold building permits for the subject subdivision if any one of the following occur: 1. Regional development threshold limits set by the East Chula Vista Transportation Phasing Plan, as amended from time to time, have been reached or, in order to have the Project comply with the Growth Management Program, as may be amended from time to time. 11. Traffic volumes, levels of service, public utilities and/or services exceed the adopted City threshold standards in the then effective Growth Management Ordinance. iii. The required public facilities, as identified in the PFFP or as amended or otherwise conditioned have not been completed or constructed to the satisfaction of the City. The developer may propose changes in the timing and sequencing of development and the construction of improvements affected. In such case, the PFFP may be amended as approved by the City's Director of Planning and Building and the City Engineer. b. To defend, indemnify and hold harmless the City and its agents, officers and employees, from any claim, action or proceeding against the City, or its agents, officers or employees, to attack, set aside, void or annul any approval by the City, including approval by its Planning Commission, City Councilor any approval by its agents, officers, or employees with regard to this subdivision pursuant to Section 66499.37 of the State Map Act provided the City promptly notifies the subdivider of any claim, action or proceeding and on the further condition that the City fully cooperates in the defense. 9 2-88 c. To ensure that all fi:anchised cable television companies ("Cable Company") are permitted equal opportunity to place conduit and provide cable television service to each lot within the subdivision. Developer agrees that the City of Chula Vista may grant access to cable companies fi:anchised by the City of Chula Vista to place conduit within the City's easement situated within the Project. Developer shall restrict access to the conduit to only those fi:anchised cable television companies who are, and remain in compliance with, all other rules, regulations, ordinances and procedures regulating and affecting the operation of cable television companies as same may have been, or may fi:om time to time be issued by the City of Chula Vista. d. That the City may withhold the issuance of building permits for the Proj ect, should the Developer be determined by the City to be in breach of any of the terms of the Tentative Map Conditions or any Suppl=ental Agreement. The City shall provide the Developer of notice of such determination and allow the Developer reasonable time to cure said breach. e. To hold the City harmless fi:om any liability for erosion, siltation or increase flow of drainage resulting fi:om this project. 29. Condition No. 92 - (Congestion Management Program). In satisfaction of Condition No. 92 of the Resolution, the Developer agrees: . a. To participate, on a fair share basis, in any deficiency plan or financial program adopted by SANDAG to comply with the Congestion Management Program (CMP) and b. To not protest formation of any future regional impact fee program or facilities benefit district to finance the construction of regional facilities. This agreement to not protest shall not be deemed a waiver of the right to challenge the amount of any assessment, which may be imposed due to these new improvements and shall not interfere with the right of any person to vote in a secret ballot election. 30. Condition No. 93 - (previous Agreements). In satisfaction of Condition No. 93 of the Resolution, the Developer agrees to comply with all previous agreements as they pertain to this tentative map including the Agreement for Monitoring Building Permits, Resolution No. 2003-166, dated April 15, 2003; Indemnification agre=ent between the City ofChula Vista and NNP-Trirnark, Resolution No. 2000-483, dated Dec=ber 19, 2000; and the Annexation Agreement, Resolution No.2000-481, dated December 19, 2000, Concerning the Conservation and Biological Mitigation Program for the Implementation of the San Miguel Ranch Sectional Planning Area Plan and Tentative Tract Map by and between City, Agencies and NNP- Trirnark. 31. Condition No. 94 - (Street Sweeping). In partial satisfaction of Condition No. 94 of the Resolution, the Developer agrees to contract with the City's current street sweeping fi:anchisee, or other server approved by the City Engineer to provide street sweeping for each phase of development on a fi:equency and level of service comparable to that provided for similar areas of the City. The developer shall cause street sweeping to co=ence immediately after the 10 2-89 final residence, in each phase, is occupied and shall continue sweeping until such time that the City has accepted the street or 60 days after the completion of all punch list items, wbjchever is shorter. The developer further agrees to provide the City Special Operations Manager with a copy of the memo requesting street sweeping service which memo shall include a map of areas to be swept and the date the sweeping will begin. 32. Condition No. 95 - (Fiscal Impact). In partial satisfaction of Condition No. 95 of the Resolution, the Developer agrees to the following: a. To maintain at all times a minimum balance of $10,000 in the annual fiscal review fund. The first annual review shall be for the year 200 I and continue through year 2015. At any time, should the annual fiscal review fund balance be less than $10,000, and should Applicant fail to replenish such balance within 30 days of City's demand for replenishment of the fund to the minimum required balance, City shall have the right to withhold building permits for the Project; and b. To acknowledges and agree that Applicant shall be responsible through the year 20 IS for paying for the fiscal deficit identified by the annual fiscal review to ensure that all City services provided to the Proj ect including direct and indirect costs, as well as capital and operating costs shall be covered by Project revenues and Project exactions. Applicant shall, prior to approval of the first Final Map within the Project, and subject to the approval of the City, establish a mechanism to satisfy Applicant's responsibility for payment of the Project's fiscal deficit, such as the establishment of a reserve fund, payment of a one time fee, a fee to be paid with each building permit for the Project, the establishment of a community facilities district or other acceptable methods. 33. Condition No. 99 - (Maintenance District) In partial satisfaction of Condition No. 99 of the Resolution, the Developer agrees to not protest formation or inclusion in a maintenance district or zone for the maintenance of landscaped medians and parkways along streets, and scenic corridors within or adjacent to the Project. This agreement not to protest shall not be deemed a waiver of the right to challenge the amount of any assessment which may be imposed due to the addition of these new improvements and shall not interfere with the right of any person to vote in a secret ballot election. 34. Condition No. 100 - (L&I) In partial satisfaction of Condition No. 100 of the Resolution, the Developer agrees to ensure that the HOA will maintain all open space lots, medians, and parkways in perpetuity. 35. Condition No. 103 - (DG Walkways free from Obstacles) - In partial satisfaction of Condition No. 103 of the Resolution, the Developer hereby acknowledges and agrees that there shall be no vertical obstacles or any obstructions such as public utility vaults, boxes, etc. placed within the decomposed granite (D. G.) walkways within the project. In the event of any such obstruction placed within the walkways, Developer agrees to immediately remove such obstructions, upon request of the City. 11 2-90 36. Condition No. 104 - (Special Tax and Assessment Disclosure form) - In satisfaction of Condition No. 104 of the Resolution, the Developer hereby acknowledges and agrees that prior to receiving first model home building pennit, the develope~ shall submit all Special Tax and Assessment disclosure forms for each model size or EDU for the approval of the City Engineer. The Developer also agrees to provide disclosure form to purchaser of each unit. 37. Condition No. 107 - (formation of maintenance district) - In satisfaction of Condition No. 107 of the Resolution, the Developer hereby acknowledges and agrees to not protest formation of a district for the maintenance of City drainage facilities, or any portion thereof, within the Sunnyside Basin. This agreement not to protest shall not be deemed a waiver of the right to challenge the amount of any assessment which may be imposed due to the addition of these new improvements and shall not interfere with the right of any person to vote in a secret ballot election. 38. Condition No. 110 - (City Wide Park Master Plan) - In partial satisfaction of Condition No. 110 of the Resolution, the Developer hereby acknowledges and agrees to comply with the provisions of said Plan when adopted as it affects facility and other related requirements for the San Miguel Ranch community park. 39. Condition No. 119 - (Community Park site) - In partial satisfaction of Condition No. 119 of the Resolution, the Developer agrees to install below grade utilities and future points of connection to the boundaries of the Community Park site (Lots CP-A and B) to the satisfaction of the City Engineer and the Director of Planning and Building concurrently with the installation of below grade utilities for any portion of Planning Areas H or I, whichever occurs fIrst. 40. Condition No. 122 (park Development and Acquisition Fee). In partial satisfaction of Condition No. 122 of the Resolution, the Developer hereby acknowledges and agrees that prior to the approval of each Final Map within the Proj ect which allows construction of any dwelling unit, the Developer shall pay to the City the development portion of the Park Development Fee (pAD fee) due for the dwelling unit count of the respective Final Map. The principal funds shall accumulate to the total amount of the park development fee due for the Proj ect as established by the PFFP. 41. Condition No. 170 (Fire Management) In partial satisfaction of Condition No. 170 of the Resolution, the Developer agrees to provide the Initial Cycle of fire management! brush clearance and install structural fire prevention measures within lots adj acent to natural open space areas subject to approval by the Fire Marshal and Director of Planning and Building. 42.. Condition No. 171 (Fire Hydrants and Fire Access). In partial satisfaction of Condition No. 171 of the Resolution, the Developer agrees to provide fire hydrants every 500 ft. for single family residential units and every 300 ft. for multi-family residential units. Developer further agrees to comply with the City Of Chula Vista Fire Department Standard Operating Guidelines (OPS:2916, as amended from time to time) requiring that all fIre hydrants be operable prior to delivery of combustible building materials, and a minimum 20' wide, all-weather fire 12 2-91 access roads be provided. 43. Condition No. 173 (Sprinkler Systems on Flag Lots). In partial satisfaction of Condition No. 173 of the Resolution, the Developer agrees to provide sprinkler systems in all homes that are on flag lots where the setback distance is greater than 150' as measured trom the nearest curb face to the furthers point of the dwelling. 44. Condition No. 174 (Grading Ordinance). In partial satisfaction of Condition No. 174 of the Resolution, the Developer agrees to comply with all applicable sections of the Chula Vista Municipal Code including Chapter 15.04 "Grading Ordinance" as amended. Preparation of the Final Map and all plans shall be in accordance with the provisions of the Subdivision Map Act and the City of Chula Vista Subdivision Ordinance and Subdivision Manual. 45. Condition No. 175 (Underground Utilities). In partial satisfaction of Condition No. 175 of the Resolution, the Developer agrees to underground all utilities within the subdivision in accordance with Municipal Code requirements, excepting those utilities owned and operated by SDG&E located within E-l and E-2, which may be relocated per the requirements of SDG&E, to the satisfaction of SDG&E and the City Engineer. 46. Condition No. 176 (Fees). In partial satisfaction of Condition No. 176 of the Resolution, the Developer agrees to pay all applicable fees in accordance with the Municipal Code and Council Policy, including, but not limited to, the following: Prior to issuance of each building permit: a. The Transportation and. Public Facilities Development hnpact Fees. b. Signal Participation Fees. c. All applicable sewer fees, including but not limited to sewer connection fees. e. Proctor Valley Trunk Sewer Reimbursement District Fee. f. Frisbie Trunk Fee. g. Fiscal Operation Deficit as determined by the City Manager (see Condition No. 95) Prior to each Final Map approval: h. Park Acquisition and Development Fee. 1. Spring Valley Sanitation District Trunk Fee. The amount of said fees shall be those in effect at the time of approval of final maps or issuance of building permits as applicable. 47. Condition No. 177 (Federal, State and Local Regulations) In partial satisfaction of Condition No. 177 of the Resolution, the Developer agrees to comply with all relevant Federal, State, and Local regulations, including the Clean Water Act. The developer shall be responsible for providing all required testing and documentation to demonstrate said 13 2-92 compliance as required by the City Engineer. 48. Condition No. 178 (Noise Levels) In partial satisfaction of Condition No. 178 of the Resolution, the Developer agrees to design all dwelling units to preclude interior noise levels over 45 dBA and shield all exterior private open space to limit noise exposure to 65 dBA. 49. Condition No. 179 (NPDES) In partial satisfaction of Condition No. 179 of the Resolution, the Developer agrees to comply with all applicable regulations established by the United States Environmental Protection Agency (USEPA) as set forth in the National Pollutant Discharge Elimination System (N.P.D.E.S.) pennit requirements for urban runoff and storm water discharge and any regulations adopted by the City of Chula Vista pursuant to the N.P.D.E.S. regulations or requirements. Further, the applicant shall file notice of intent with the State Water Resources Control Board to obtain coverage under the N.P.D.E.S. General Permit for Storm Water Discharges Associated with Construction Activity and shall implement a Storm Water Pollution Prevention Plan (SWPPP) concurrent with the commencement of grading activities. The SWPPP shall include both construction and post construction pollution prevention and pollution control measures and shall identify funding mechanisms for post construction control measures. 50. Condition No. 180 (Notice of Special Tax Disclosure). In partial satisfaction of Condition No. 180 of the Resolution, the Developer agrees to ensure that prospective purchasers sign a "Notice of Special Taxes and Assessments" pursuant to Municipal Code Section 5.46.020 regarding projected taxes and assessments. Submit the disclosure form for approval by the City Engineer prior to Final "B" Map approval. 51. Condition No. 181 (Natural Channels in Open Space). In partial satisfaction of Condition No. 181 of the Resolution, the Developer shall comply with Council Policy No. 522- 02 regarding maintenance of natural channels within open spaces and to repair erosion down stream of the project at the request of the City Engineer. 52. Condition No. 182 (Growth Management). In partial satisfaction of Condition No. 182 of the Resolution, the Developer agrees to comply with Chapter 19.09 of the Chula Vista Municipal Code (Growth Management) as may be amended from time to time by the City. Said chapter includes but is not limited to: threshold standards (19.09.04), public facilities fmance plan implementation (19.09.090), and public facilities finance plan amendment procedures (19.09.100). 53. Condition No. 183 (public Facilities) In partial satisfaction of Condition No. 183 of the Resolution, the Developer agrees to install public facilities in accordance with the San Miguel Ranch Public Facilities Finance Plan as may be amended from time to time, or as required by the City Engineer to meet threshold standards adopted by the City of Chula Vista. The City Engineer and Director of Planning and Building may, at their discretion, modify the sequence of improvement construction should conditions change to warrant such a revision. The Developer shall construct the public improvements and provide security satisfactory to the City Engineer. 14 2-93 54. Condition No. 184 (SPA & PFFP Phasing Plan) In satisfaction of Condition No. 184 of the Resolution, the Developer agrees to develop the Project in accordance with the approved SPA and PFFP phasing plan. If the applicant proposes to modify this approved phasing plan, the applicant shall submit to the City a revised phasing plan for review and approval prior to approval of each Final Map. The PFFP and the map conditions shall be revised where necessary to reflect the revised phasing plan. 55. Condition No. 185 (phasing) In satisfaction of Condition No. 185 of the Resolution, the Developer agrees that if phasing is proposed within an individual map or through multiple final maps, the developer shall submit and obtain approval for a development phasing plan by the City Engineer and Director of Planning and Building prior to approval of any Final Map. hnprovements, facilities and dedications to be provided with each phase or unit of development shall be as determined by the City Engineer and Director of Planning and Building. The City reserves the right to require said improvements, facilities and/or dedications as necessary to provide adequate circulation and to meet the requirements of police and fire departments. The City Engineer and Director of Planning and Building may, at their discretion, modify the sequence of improvement construction should conditions change to warrant such a revision. The developer agrees that the City Engineer may change the timing of construction of the public facilities. 56. Condition No. 186 - (public Facility Financing Plan). In partial satisfaction of Condition No. 186 of the Resolution, the Developer agrees that the Public Facility Finance Plan or revisions thereto shall be adhered to for the SPA and tentative map with improvements installed in accordance with said plan or as required to meet threshold standards adopted by the City of Chula Vista. The PFFP identifies a facility phasing plan based upon a set of assumptions concerning the location and rate of development within and outside of the proj ect area. Throughout the build-out of San Miguel Ranch, actual development may differ ITom the assumptions contained in the PFFP. Neither the PFFP nor any other document grant the Developer an entitlement to develop as assumed in the PFFP, or limit the facility improvement requirements to those identified in the PFFP. Compliance with the City ofChula Vista threshold standards, based on actual development patterns and updated forecasts in reliance on changing entitlements and market conditions, shall govern SPA development pattems and the facility improvement requirements to serve such development. In addition, the sequence in which improvements are constructed shall correspond to any future Eastern Chula Vista Transportation Phasing Plan or amendment to the Growth Management Program and Ordinance adopted by the City. The City Engineer may modify the sequence of improvement construction should conditions change to warrant such a revision. The San Miguel Ranch PFFP, at the Developer's expense and subject to a Reimbursement Agreement, shall be updated, upon request of the City Engineer, to reflect said revisions including the nature, sizing, extent and timing for the construction of public facilities caused by San Miguel Ranch, and shall become a condition for all subsequent San Miguel Ranch entitlements, including tentative and final maps. 57. Condition No. 187 - (Withhold Building Permits). In partial satisfaction of Condition No. 187 of the Resolution, the Developer agrees and acknowledges that the City may 15 2-94 withhold building pennits for any of the phases of development identified in the Public Facilities Financing Plan (pFFP) if the required public facilities, as identified in the PFFP or as amended or otherwise conditioned, have not been completed or constructed to the satisfaction of the Director of Planning and Building. The property owner may propose changes in the timing and sequencing of the development and the construction of improvements affected in such cases, the PFFP may require !llllendment as approved by the Director of Planning and Building. 58. Condition No. 188 (Growth Management Ordinance). In partial satisfaction of Condition No. 188 of the Resolution, the Developer acknowledges and agrees that the City is presently in the process of amending its Growth Management Ordinance to establish provisions necessary to ensure compliance with adopted thresholds standards (particularly traffic) prior to the construction of State Route 125 and that the Developer hereby agrees to comply with adopted amendments to the Growth Management Ordinance. Said provisions will require the demonstration, to the satisfaction of the City Engineer, of sufficient street system capacity to accommodate a proposed development as a prerequisite to Final Map approval for that development. 59. Condition No. 189 (San Miguel Water Conservation Plan). In partial satisfaction of Condition No. 189 of the Resolution, the Developer agrees to revise, at its own cost and expense, the San Miguel Ranch Water Conservation Plan ("WCP") as necessary to incorporate new water conservation measures, and/or to participate in pilot projects to evaluate new measures, such as gray water systems, as adopted by the City Council, and comply and remain in compliance with the WCP. The Developer further agrees to modify the WCP to incorporate those new measures, which are in effect at the time, prior to or concurrent with each Final Map approval. The new measures shall apply to development within all future Final Map areas, but shall not be retroactive to those areas, which received Final Map approval prior to effect of the subject new measures. Developer hereby waives any claim that the adoption of a revised Water Conservation Plan or Air Quality Plan constitutes an improper subsequent imposition of the condition. 60. Condition No. 190 - (Declaration of Covenants, Codes and Restrictions). In partial satisfaction of Condition No. 190 of the Resolution, The Developer hereby agrees and acknowledges that the MHOA's maintenance of public open space, trails, etc. may expose the City to liability. Developer agrees to establish a MHOA that will defend, indemnify, and hold the City harmless ITom any negligence of the MHOA in the maintenance of such areas. 61. Condition No. 191 (Declaration of Covenants, Codes and Restrictions). In partial satisfaction of Condition No. 191 of the Resolution, the Developer agrees that the Declaration of Covenants, Conditions and Restrictions (CC & R's) shall include provisions establishing a Home Owners Association (ROA) to assure maintenance of all open space areas and slopes which are not maintained by other means, streets, driveways, drainage and sewage systems which are private, and landscape and irrigation, walls and public street improvements which are not maintained by other means, all subj ect to approval of the City. The City of Chula Vista shall be named as party to said Declaration authorizing the City to enforce the terms and conditions of the Declaration in the same manner as any owner within the subdivision. 16 2-95 62. Condition No. 193 (Snbmittal of Declaration of Covenants, Codes and Restrictions). In partial satisfaction of Condition No. 193 of the Resolution, prior to the approval of each Final Map, the Developer agrees to submit and obtain the approval of the City Engineer, Director of Planning and Building the Declaration of Covenants, Conditions, and Restrictions (CC&R's). Developer further agrees that amended CC&R's addressing future phases to be annexed to the Master HOA shall be submitted and Developer shall obtain the approval of said CC &R's. The CC&R's shall include the following obligations of the Master Homeowners Association: a. Maintain all the facilities and improvements within the open space lots offered for dedication to the City until acceptance of the open space lots for maintenance by the open space/Community Facilities District. b. A requirement that the MHOA shall maintain comprehensive general liability insurance against liability incident to ownership or use of the following areas: 1 open space lots offered for dedication to the City until acceptance by the City, or until any such offer of dedication is extinguished by it own tenns. 11 all open space lots that shall remain private, 111 other Master Association property. c. Before any revisions to provisions of the CC&R's that may particularly affect the City can become effective, said revisions shall be approved by the City. The MHOA shall not seek approval from the City of said revisions without the prior consent of 100 percent of the holders of first mortgages or property owners within the MHOA. d. The MHOA shall defend, indemnify, and hold the City harmless from any claims, demands, causes of action liability or loss related to or arising from the maintenance activities ofthe MHOA. e. The MHOA shall not seek to be released by the City from the maintenance obligations described herein without the prior consent of the City and 100 percent of the holders of first mortgages or property owners within the MHOA. f. The MHOA is required to procure and maintain a policy of comprehensive general liability insurance written on a per occurrence basis in an amount not less than one million dollars combined single limit. The policy shall be acceptable to the City and name the City as additionally insured. g. The CC&R's shall incorporate restrictions for each lot adjoining open space lots containing walls maintained by the open space district to ensure that the property owners know that the walls may not be modified or supplemented nor may they encroach on City 17 2-96 property. h. The CC&R's shall include provisions assuring MHOA membership in an advance notice such as the USA Dig Alert Service in perpetuity. i. The CC&R's shall include provisions that provide City the right, but not the obligation, to enforce the CC&R provisions same as any owner in the Project. j. The CC&R provisions setting forth restrictions in these Tentative map conditions may not be revised at any time without prior written permission of the City. k. The MHOA shall not dedicate or convey for public streets, land used for private streets without approval of 100% of all the HOA members or holder of first mortgages within the MHOA. (Engineering, Parks, Planning, Public Works) I. Provide within the master CC&R's for the maintenance in perpetuity of all stabilized decomposed granite (D.G.) areas by a Home Owner's Association. m. Maintenance of all facilities and improvements within open space areas covered by homeowners associations. 63. Satisfaction of Conditions. City agrees that the execution of this Agreement constitutes satisfaction or partial satisfaction of Developer's obligation of Conditions 1,2,3,4,5, 6,10,11,12,13,15,17,18,24,27,28,30,31,54,55,57,67,72, 73, 74, 86, 90, 92, 93, 94, 95, 99,100,103,104,107,110,119,122,170,171,173,174,175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191 and 193 of the Resolution. Developer further understands and agrees that the some of the provisions herein may be required to be performed or accomplished prior to the approval of other final maps for the Project, as may be appropriate. 64. UnfulfIlled Conditions. Developer hereby agrees, unless otherwise conditioned, that Developer shall comply with all unfulfilled conditions of approval of the Tentative Map, established by Resolution No. 2000-068 and shall remain in compliance with and implement the terms, conditions and provisions therein. 65. Recording. This Agreement, or an abstract hereof shall be recorded simultaneously with the recordation of the Final Map. 66. Building Permits. Developer and Guest Builders acknowledge and agree that the City may withhold the issuance of building permits for the Project, should the Developer be determined by the City to be in breach of any of the terms of this Agreement. The City shall provide the Developer of notice of such determination and allow the Developer with reasonable time to cure said breach. 67. Assignablity. Upon request of the developer, any or all on-site duties and obligations set forth herein may be assigned to developer's successor in interest if the City 18 2-97 manager in hislher sole discretion determines that such an assignment will not adversely affect the City's interest. The City Manager in hislher sole discretion may, if such assignment is requested, permit a substitution of securities by the successor in interest in place and stead of the original securities described herein so long as such substituted securities meet the criteria for security as set forth elsewhere in this agreement. Such assignment will be in a form approved by the City Attorney. 68. Delay in Performance. City agrees that should Developer be delayed in performing any obligations under this Agreement primarily as a result of a "Permitted Excuse" (as hereunder defined). Developer shall be allowed a reasonable extension of time to perform said obligation, and such reasonable time shall be determined by the City, but in no circumstances shall be less than the length ofthe delay resulting from the Permitted Excuse. As used herein, the term "Permitted Excuse" shall mean any of the following: (i) the City's actions, omissions or inaction which result in a delay of performance by Developer or (ii) labor disputes, acts of God, war, riots, insurrections, civil commotions, moratorium (other that those imposed by the City pursuant to Growth Management Ordinance, as may be amended from time to time) litigation (other than any litigation brought by or on behalf of Developer or Developer's successors-in-interests, assignees or agents against the City) inability to obtain labor or materials or reasonable substitutes for either, fire, unusual delay in transportation, adverse weather, conditions not normally anticipated in a project of this type or casualties beyond the reasonable control of Developer, Permitted Excuse shall not include delays due to a party's own negligence or financial inability to perform. 69. Miscellaneous. a. Notices. Unless otherwise provided in this Agreement or by law, any and all notices required or permitted by this Agreement or by law to be served on or delivered to either party shall be in writing and shall be deemed duly served, delivered, and received when personally delivered to the party to whom it is directed, or in lieu thereof, when three (3) business days have elapsed following deposit in the U.S. mail, certified or registered mail, return receipt requested, first-class postage prepaid, addressed to the address indicated in this Agreement. A party may change such address for the purpose of this paragraph by giving written notice of such change to the other party. CITY OF CHULA VISTA 276 Fourth Avenue A party may change such address for the purpose of this paragraph by giving written notice of such change to the other party in the manner provided in this paragraph. b. Captions. Captions in this Agreement are inserted for convenience of reference and do not define, describe or limit the scope or intent of this Agreement or any of its terms. c. Entire Agreement. This Agreement contains the entire agreement between the parties regarding the subj ect matter hereof. Any prior oral or written representations, agreements, understandings, and/or statements shall be of no force and effect. This Agreement is not intended to supersede or amend any other agreement between the parties unless expressly noted. d. Preparation of Agreement. No inference, assumption or presumption shall be drawn from the fact that a party or his attorney prepared and/or drafted this Agre=ent. It shall be conclusively presumed that both parties participated equally in the preparation and/or drafting this Agreement. e. Recitals; Attachments. Any recitals set forth above and exhibits attached hereto are incorporated by reference into this Agreement. f. Attorneys' Fees. If either party commences litigation for the judicial interpretation, reformation, enforcement or rescission hereof, the prevailing party will be entitled to a judgment against the other for an amount equal to reasonable attorney's fees and court costs incurred. The "prevailing party" shall be deemed to be the party who is awarded substantially the relief sought. [NEXT PAGE IS PAGE ONE OF TWO SIGNATURE PAGES] . . 20 2-99 [PAGE ONE OF TWO SIGNATURE PAGES TO SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR SAN MIGUEL RANCH PLANNING AREA "J-2" FINAL MAP] IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year fIrst hereinabove set forth. CITY OF CHULA VISTA Stephen C. Padilla Mayor of the City of Chula Vista Attest: Susan Bigelow City Clerk Ann Moore City Attorney [NEXT PAGE IS PAGE TWO OF SIGNATURE PAGES] 21 2-100 [pAGE TWO OF TWO SIGNATURE PAGES TO SUPPLEMENTAL SUBDMSION IMPROVEMENT AGREEMENT FOR SAN MIGUEL RANCH PLANNING AREA "J-t" FINAL MAP] DEVELOPERS/OWNERS: PROCTOR V ALLEY WEST PARTNERS, LLC, a Delaware Limited Liability Company By: Trimark Pacific - Montecito, LLC a California limited liability company, Managing Member By : TPH, LLC, a California limited liability company, Member Manager By: Trimark Ventures, Inc., a California corporation, =~m~+\~~ ~Vice President (Attach Notary Acknowledgment) 22 2-101 CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT r~~ . .. 1 I ::,~~~n D'e90 }'" . . I I.' On I In (~,,(p S. beforeme~ Qju!l:';;:f~S~C~~/NtjP1~(i Pqblit I personally appeared ,ie~fL -€.S-teV . I N.;;~C:::~:~;y known to me i [] proved to me on the basis of satisfactory . evidence ] I' I' I ~ I" to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowiedged to me that he/she/they executed the same in his/her/their authorized capacity(ies). and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. J-- - ... - - -- - - ... ... - - "_" ANlCtA SOARES <@commisslon#I584605 1 2 -~ ~ro~~.~ f j ~ , . San Diego County - _ ~ _ ~~~:,,~~~3:..~ I I' I' I. . OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. DescriptiDn of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: j' o Individual o Corporate Officer - Title(s): o Partner - 0 limited 0 General o Attorney-in.Fact o Trustee o Guardian or Conservator o Other: . Top of thumb here Signer Is Representing: .~ ~ 1999 Nationaj Notary Assoclatlon. 9350 De SotoAve" P.O. Box 2402' Chatsworth, CA 91313-2402. www.NationaINotary.org Prt:ld. No. 5907 Reorder. CaJlTolI-Free 1-800-87&-6827 2-102 'I 1 ~ i ~ J ~ ~ ~ I @ ~ ~ ~ ,I Exhibit" A" Legal Description of Property Being a subdivision of lot 4, and Lot H of Chula Vista Tract No. 99-04, San Miguel Ranch Phase 3 "A" Map No. 1 in the City Of Chu1a Vista, County of San Diego, state of California, according to Map thereof No. 14853, filed in the Office of the County Recorder of San Diego County on August 10, 2004. . . 23 2-103 EXHIBIT "B" SECURITY CHULA VISTA TRACT NO. 99-04 SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR SAN MIGUEL RANCH PLANNING AREA "J-2 FINAL MAP] "J-211 $424,241.94 CWSZ0351 C:\DoeUments and Settings\rimatIMy Doeumentslprojeets relatedlSan Miguel Ranch Phase III\fina1 draft SSIA of J- 2.doe 24 2-104 THE ATTACHED AGREEtvIENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALL Y SIGNED UPON APPROVAL BY THE CITY COUNCIL Dh ~ f /l1JiL- Ann Moore City Attorney Dated: J Jrololp Supplemental Subdivision Improvement Agreement between the City of Chula Vista and Proctor Valley West Partners, LLC for San Miguel Ranch Planning Area "K" Final Map 2-105 RECORDING REQUEST BY: ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Above Space for Recorder's Use City Clerk WHEN RECORDED MAIL TO: CITY OF CHULA VISTA 276 Fourth Avenue Chula Vista, CA 91910 No transfer tax is due as this is a conveyance to a public agency of less than a fee interest for which no cash consideration has been paid or received. SM-OI5F SAN MIGUEL RANCH PLANNING AREA "K" FINAL MAP SUPPLEJYffiNTAL SUBDMSION IMPROVEJYffiNT AGREEJYffiNT (Conditions 1,2,3,4,5,6, 10, 11, 12, 13, 15, 17, 18,24,27,28,30,31,48,54,55,57,67,72, 73,74,86,90,92,93,94,95,99,100,103,104,107,110,119, 122, 150, 170, 171, 173, 174, 175,176,177,178,179,180,181,182,183,184,185,186, 187, 188, 189, 190, 191 and 193) This Supplemental Subdivision Improvement Agreement ("Agreement") is made this _day of-> 2004, by and between THE CITY OF CHULA VISTA, California ("City" or "Grantee" for recording purposes only) and PROCTOR VALLEY WEST PARTNERS, LLC, a Delaware Lirnited Liability Company, ("Developer" or "Grantor"), with reference to the facts set forth below, which recitals constitute a part of this Agreement: RECITALS A. This Agreement concerns and affects certain real property located in Chu1a Vista, California, more particularly described on Exhibit "A" attached hereto and incorporated herein ("Property"). The Property is within approved Tentative Subdivision Map Chula Vista Tract 99- 04, which project is commonly known as San Miguel Ranch. For purposes of this Agreement the term "Proj ect" shall also mean "Property". B. Developer and/or Developer's predecessor in interest has applied for and the City has approved Tentative Subdivision Map commonly referred to as ChuJa Vista Tract 99-04 2-106 ("Tentative Subdivision Map") for the subdivision of the Property. C. The City has adopted Resolution No. 2000-068 ("Resolution") pursuant to which it has approved the Tentative Subdivision Map subject to certain conditions as more particularly described in the Resolution and thereafter amended said conditions pursuant to City Council Resolution No. 2001-453 (collectively hereinafter refer to as "Resolution''). D. City is willing, on the premises, security, terms and conditions herein contained to approve the final map for which Developer has applied as being in substantial conformance with the Tentative Subdivision Map described in this Agreement. Developer understands that subsequent final maps may be subject to the same security terms and conditions contained herein. E. The following defined terms shall have the meaning set forth herein, unless otherwise specifically indicated: "Owner or Developer" means the person, persons or entity having a legal or an equitable interest in the property or parts thereof and includes Owner's successors-in-interest and assignors of any property within the boundaries of the map. This includes PROCTOR V ALLEY WEST PARTNERS, LLC, a Delaware Limited Liability Company, and any and all owners of real property within .the boundaries of the Property, and all signatories to this Agreement. "Guest Builder" means those entities obtaining any interest in the Property or a portion of the Property, after the final map has been recorded. "PFFP" means the Public Facilities Financing Plan adopted by Resolution No. 19631 on October 19,1999 and amended by Resolution No. 2001-453 ("Amendment") on December 17, 2001 and as may be further amended from time to time. "SPA Plan" means the San Miguel Ranch Sectional Planning Area Plan as adopted by the City Council on October 19, 1999 pursuant to Resolution No. 19631, and as amended by the Zoning Administrator on June 19,2002 (pCM-02-17). NOW, THEREFORE, in exchange for the mutual covenants, terms and conditions herein contained, the parties agree as set forth below. 1. Agreement Applicable to Subsequent Owners. . a. Agreement Binding Upon Successors. This Agreement shall be binding upon and inure to the benefit of the successors, assigns and interests of the parties as to any or all of the Property as described .on Exhibit "A" until released by the mutual consent of the parties. For the purposes of this Agreement the "Developer" shall also mean "Applicant" b. Agreement Runs with the Land. The burden of the covenants contained in this Agreement ("Burden") is for the benefit of the Property and the City, its successors and assigns and any successor in interest thereto. City is deemed the beneficiary of such covenants 2 2-107 for and in its own right and for the purposes of protecting the interest of the co=unity and other parties public or private, in whose favor and for whose benefit of such covenants rumring with the land have been provided without regard to whether City has been, remained or are owners of any particular land or interest therein. If such covenants are breached, the City shall have the right to exercise all rights and remedies and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breach to which it or any other beneficiaries of this agreement and the covenants may be entitled. c. Developer Release on Guest Builder Assignments. If Developer assigns any portion of the Project to a Guest Builder, Developer may request to be released from Developer's obligations unaer this Agreement, that are expressly assumed by the Guest Builder, provided Developer obtains the prior written consent of the City to such release. Such assignment to the Guest Builder shall, however, be subject to this Agreement and the Burden of this Agreement shall remain a covenant running with the land. The City shall not withhold its consent to any such request for a release so long as the assignee acknowledges that the Burden of the Agre=ent runs with the land, assumes the obligations of the Developer under this Agreement, and demonstrates, to the satisfaction of the City, its ability to perform its obligations under this Agreement as it relates to the portion of the Project which is being acquired by the Assignee. d. Partial Release of Developer's Assignees. If Developer assigns any portion of the Project subject to the Burden of this Agreement, upon request by the Developer or its assignee, the City shall release the assignee of the Burden of this Agreement as to such assigned portion if such portion has complied with the requirements of this Agreement to the satisfaction of the City and such partial release will not, in the opinion of the City, jeopardize the likelihood that the remainder of the Burden will not be completed. e. Release of Individual Lots. Upon the occurrence of any of the following events, Developer shall, upon receipt of the prior written consent of the City Manager (or Manager's designee), have the right to release any lot(s) from Developer's obligation under this Agre=ent: !. The execution of a purchase agreement for the sale of a residential lot to a buyer of an individual housing unit; 11. The conveyance of a lot to a Homeowner's Association; iii. The conveyance of a school site as identified in the SPA Plan to a school district; The City shall not withhold its consent to such release so long as the City finds in good faith that such release will not jeopardize the City's assurance that the obligations set forth in this Agreement will be performed. At the request of the Developer, the City Manager (or Manager's designee) shall execute an instrument drafted by Developer in a recordable form acceptable to the City Manager (or Manager's designee), which confirms the release of such lot or parcel from the 3 2-108 encumbrance of this Agreement. Notwithstanding the foregoing, at the close of an individual homeowner's escrow on any lot or parcel encumbered by this Agre=ent, such lot or parcel shall be automatically released iTom the encumbrance hereof. 2. Condition No.1 - (General Preliminary). In partial satisfaction of Condition No.1 of the Resolution, the Developer hereby agrees to comply with all requirements and guidelines of the San Miguel Ranch SPA Plan, Planned Co=unity (PC) District Regulations, Design Guidelines, Public Facilities Financing Plan, Affordable Housing Plan, Air Quality Improv=ent Plan, Water Conservation Plan, and City approved substantial Conformance Exhibits, all as may be amended iTom time to time, unless specifically modified by the appropriate department head, with the approval of the City Manager. These plans may be subject to minor modifications by the appropriate department head, with the approval of the City Manager, however, any material modifications shall be subject to approval by the City Council. 3. Condition No.2 - (General Preliminary). In satisfaction of Condition No.2 of the Resolution, the Developer hereby agrees that the project conditions of approval are based upon the project having multiple [mal maps. Unless otherwise specified, all conditions and code requirements listed herein shall be fully completed to the City's satisfaction prior to approval of . the first final map. 4. Condition No.3 - (General Preliminary). In satisfaction of Condition No.3 of the Resolution, the Developer hereby agrees that in the event of a filing of a final map which requires over-sizing of the improvements necessary to serve other properties, said final map shall be required to install all necessary improvements to serve the project plus the necessary over- sizing of facilities required to serve such other properties (in accordance with the restrictions of State law and City ordinances). 5. Condition No.4 - (General Preliminary). In partial satisfaction of Condition No. 4 of the Resolution, the Developer agrees that prior to approval of a final Map creating a multiple family lot, which does not require the filing of a subsequent map, all applicable conditions of approval of the tentative map shall be met, as determined by the City Engineer. 6. Condition No.5 - (PFFP Phasing). In partial satisfaction of Condition No.5 of the Resolution, the Developer agrees not to seek any building permits for production homes until the Mt. Miguel Road Bridge across SR-125 has been constructed and is open to the public. Developer may seek building permits for model homes prior to completion of the Mt. Miguel Road bridge across SR-125. Developer further agrees: a. To prevent construction traffic iTom accessing to and ITom the County of San Diego via San Miguel Road, and b. To allow construction access through the City of Chula Vista only, and 4 2-109 c. To maintain a physical barrier to prevent vehicular access fi:om the project to Proctor Valley Road to the northwest until SR125 is open to the public, all to the satisfaction of the City. 7. Condition No.6 - (General Preliminary). In partial satisfaction of Condition No. 6 of the Resolution, the Developer hereby agrees to dedicate for public use all the public streets shown on the tentative map within the subdivision boundary with the recordation of the applicable final map. Prior to the approval of the applicable final map, the Developer shall enter into an agreement to guarantee the construction of all street improvements as required by the PFFP for each particular phase. 8. Condition No. 10 - (General Preliminary) In satisfaction of Condition No. 10 of the Resolution, the Developer agrees that if any of the terms, covenants or conditions contained herein shall fail to occur or if they are, by their terms, to be implemented and maintained over time, if any of such conditions fail to be so implemented and maintained according to their terms, the City shall have the right to revoke or modifY all approvals herein granted including issuance of building permits, deny, or further condition the subsequent approvals that are derived fi:om the approvals herein granted, institute and prosecute litigation to compel their compliance with said conditions or seek damages for their violation. The Developer shall be notified 10 days in advance prior to any of the above actions being taken by the City and shall be given the opportunity to remedy any deficiencies identified by the City within a reasonable and diligent time fi:ame. 9. Condition No. 11 - (General Preliminary) In satisfaction of Condition No, II of the Resolution, the Developer agrees that all of the terms, covenants and conditions contained herein shall be binding upon and inure to the benefit of the heirs, successors, assigns and representatives of the Developer as to any or all of the property. For the purposes of this document the term "Developer" shall also mean "Applicant". 10. Condition No. 12 - (General Preliminary) In satisfaction of Condition No. 12 of the Resolution, the Developer agrees to indemnifY, protect, defend and hold the City harmless fi:om and against any and all claims, liabilities and costs, including attorney's fees, arising fi:om challenges to the Final Subsequent Environmental Impact Report for the San Miguel Ranch Sectional Planning Area and Tentative Maps (FSElR 97-02) and any or all entitlements and approvals issued by the City in connection with the Project. 11. Condition No. 13 - (General Preliminary) In satisfaction of Condition No. 13 of the Resolution, the Developer agrees to comply with all applicable SPA Plan conditions of approval. 12. Condition No. 15 - (Applicable Mitigation Measures) In satisfaction of Condition No. 15 of the Resolution, the Developer agrees to implement to the satisfaction of the Director of Planning and Building and the Environmental Review Coordinator, all applicable mitigation measures identified in FSElR 97-02, the CEQA Findings of Fact and the Mitigation 5 2-110 Monitoring and Reporting Program for the San Miguel Ranch Project in accordance with the requirements, provisions and schedules contained therein, and as further specified in these Tentative Map conditions. Modification of the sequence of mitigation shall be at the discretion of the Director of Planning and Building should changes in circumstances warrant such a reVlslon. . 13. Condition No. 17 - (EnvironmentaI!Preservation) In satisfaction of Condition No. 17 of the Resolution, the Developer agrees to comply with all applicable requirements of the California Department of Fish and Game, the California State Water Resources Control Board, the U.S. Department of Fish and Wildlife, and .the U.S. Army Corps of Engineers as to the Project. 14. Condition No. 18 - (Brush Management I Fire Protection Plan) In partial satisfaction of Condition No. 18 of the Resolution, the Developer agrees to remain in compliance with the Brush Management Program I Fire Protection Plan for the Project. Developer herein agrees that approval of additional Final Maps will require amendments and additions to the Brush Management Program / Fire Prevention Plan as set forth in the Landscape Master Plan for the Proj ect and as required by the City's Fire Marshall. The Developer shall comply with the following: a. The areas indicated for brush management activities must be within the boundaries of the areas previously proposed for grading within FSEIR-97-02. To the extent that brush management areas extend beyond said grading boundaries, additional environmental review and mitigation may be required as determined by the Director of Planning and Building and the Environmental Review Coordinator. . b. The Brush Management Program must be in compliance with the Multiple Species Conservation Program (MSCP) Subarea Plan, including but not limited to the requirement of up to a 150-foot setback from structures to the Preserve boundary with a IO-foot fire access, or as required by the Director of Planning and Building subject to the City's ordinances and policies. The Brush Management Program shall also address buffer areas, types of fencing, and all other pertinent matters in areas surrounding or abutting the project's Otay Tarplant preserves. c. If developer so requests, pursuant to the MSCP Subarea Plan, site-specific waivers or project-level design methods to reduce fire setback requirements may be considered by the City Fire Marshal and approved at the City Fire Marshal's sole discretion. d. As necessary, and prior to the approval of the Brush Management Program, the Applicant shall obtain written consent from other property owners to conduct brush management activities on adjacent, off-site lands, which are within the required brush management zones as reflected in the Brush Management Program. Developer shall incorporate plant species listed in the "Urban Wildlife Interface Guidelines" for planting within and adj acent to fuel modification zones to the satisfaction of the Director of 6 2-111 Pla.m1ing and Building. 15. Condition No. 24 - (Noise Walls and Sound Berms). In partial satisfaction of Condition No. 24 of the Resolution, the Developer agrees that prior to approval of any grading or $provement plans, the Developer shall include on those Plans, as appropriate, and Developer hereby agrees to construct all to the satisfaction of the Director of Planning and Building and the Environmental Review Coordinator, the noise. walls or be=s required by the Project's Environmentallmpact Report and the acoustical report "Final SR-125 Toll Road Noise Design Report" prepared by Entech Consulting Group dated 2/23/05. 16. Condition No. 27 - (Landscape Manual). In partial satisfaction of Condition No. 27 of the Resolution, the Developer shall comply with all aspects of the City of Chula Vista Landscape Manual. 17. Condition No. 28 - (Street Trees). In partial satisfaction of Condition No. 28 of the Resolution, the Developer shall install all street trees in accordance with Section 18.28.10 of the Chula Vista Municipal Code and the City's Landscape Manual or as otherwise approved by the Director of Planning and Building and the City Engineer. Upon request of the Director of Pla.m1ing and Building, the applicant shall provide root control methods and a separate deep watering irrigation system for all trees. Street trees shall be shown on street improvement plans submitted for approval by the Director of Pla.m1ing and Building and the City Engineer prior to or concurrent with the second submittal of street improvement plans within the subdivision. Approval of the street tree improvement plans shall constitute final approval of the species selection of street trees 18. Condition No. 30 - (Compliance with approved plans) In partial satisfaction of Condition No. 30 of the Resolution, the Developer shall comply with, remain in compliance with, and implement, unless otherwise conditioned, the te=s, conditions and provisions of the San Miguel Ranch General Development Plan, Sectional Planning Area Plan ("SPA"), and such Master Plan of Reclaimed Water, Urban Runoff Report, Habitat Enhancement Plan, Master Plan of Sewage, Water Conservation Plan, the Air Quality lmprovement Plan Design Guidelines and the Public Facilities Financing Plan approved by the Council ("Plans") as are applicable to the property which is the subject matter of this Tentative Map, prior to approval of each final Map, or enter into an agreement with the City, providing the City with such security (including recordation of covenants running with the land) and implementation procedures as the City may require, assuring that, after approval of the final Map, the developer shall continue to comply with, remain in compliance with, and implement such Plans. 19. Condition No. 31 - (Security) In partial satisfaction of Condition No. 31 of the Resolution, the Developer shall provide security in accordance with Chapter 18.16 of the Municipal Code and dedicate, construct full street improvements for all public streets shown on the Tentative Map within the subdivision boundary or off-site, as required for each phase in accordance with Chula Vista Design Standards, Chula Vista Street Standards, and the Chula Vista Subdivision Manual unless otherwise approved by the City Engineer. Said improvements shall include, but not be limited to, asphalt concrete pavement, base, concrete curb, driveways, 7 2-112 gutter and sidewalk, sewer, reclab:ned water and water utilities, drainage facilities, street lights, traffic signals, signs, fire hydrants and transitions to existing improvements. All streets shall conform to the City's Street Design Standards Policy adopted by City Council Resolution No. 15349 unless otherwise conditioned or approved by the City Engineer. Construct transitions to existing improvements in the manner required by the City Engineer. 20. Condition No. 48 - (Streets, Public Improvements) In partial satisfaction of Condition No. 48 of the Resolution, the Developer has bonded for and agrees to construct Corte Bahama and Plaza Arbolitos as referenced on exhibits "A & B" of the Subdivision Improvement Agreement. 21. Condition No. 54 - (Traffic Signal) In partial satisfaction of Condition No. 54 of the Resolution, the Developer agrees to install traffic signal on the intersection of San Miguel Ranch Road and Proctor Valley Road as shown on Chula Vista Drawing Numbers 04039-11 and 04039 -12. . 22. Condition No. 55 - (SR-125 ROW) In partial satisfaction of Condition No. 55 of the Resolution, the Developer agrees to grant to the City of Chula Vista an Irrevocable Offer of Dedication for any additional right-of-way of SR-125 sufficient for the ultimate construction of SR 125, within the Project's boundaries. The right-of-way shall be sufficient for the ultimate construction of SR-125 to the satisfaction of CalTrans and the City Engineer. Any transfer of the right-of-way to a third party by the City will be subject to a three party agre=ent between the City of Chula Vista, the Applicant and Caltrans or its authorized agent. 23. Condition No. 57 - (Sewer & Water Laterals) In partial satisfaction of Condition No. 57 of the Resolution, the Developer agrees to guarantee prior to the release of bonds for street improvements that the "Engineer-of- Work" has clearly identified all sewer (S) and water (W) lateral locations prior to the construction of curbs so that the curb face can be stamped with an "S" and "W", for the sewer and water laterals, respectively, and the Developer shall propagate all curb face markings in order to assure that the locations of the said utilities are identifiable. 24. Condition No. 67 - (NPDES) In partial satisfaction of Condition No. 67 of the Resolution, the Developer agrees to comply with all the provisions of the National Pollutant Discharge Elimination System (NPDES) and the Clean Water Program during and after all phases of the development process, including but not limited to: mass grading, rough grading, construction of street and landscaping improvements, and construction of dwelling units. 25. Condition No. 72 - (Transition Lots) In partial satisfaction of Condition No. 72 of the Resolution, the Developer agrees to submit a list of proposed lots indicating whether the structure will be located on fill, cut, or a transition between the two situations prior to approval of each building permit for the project. 26. Condition No. 73 - (liability) In partial satisfaction of Condition No. 73 of the 8 2-113 Resolution, the Developer acknowledges aIld agrees to defend indenmify aIld hold hannless the city from aIlY claims or liability from erosion, siltation or increase in flow of drainage resulting from this proj ect. 27. Condition No. 74 - (Grading) In partial satisfaction of Condition No. 74 of the Resolution, the Developer acknowledges aIld agrees that a sto= drain systems that collects water from private property shall be designated private on grading aIld drainage aIldJor improvement plaIls to the point of connection with a public system or to the point at which the sto= water that is collected from public street right-of-way, public park or open space areas is first introduced into the system. Downstream from that point, the sto= drain system shall be public. An encroachment permit shall be processed for approval by the City for private stonn drains within the public right-of-way or within C.F.D. maintained open space lots. 28. Condition No. 86 - (Water) In partial satisfaction of Condition No. 86 of the Resolution, the Developer agrees to construct aIlY potable or recycled water syst= facilities outside of a particular phase area as identified in the PFFP, which are necessary to provide adequate water service to the particular phase area, or as otherwise agreed between the ApplicaIlt aIld Otay Water District. 29. Condition No. 90 - (Withhold Building Permits and Hold Harmless) In partial satisfaction of Condition No. 90 of the Resolution, the Developer understands aIld agrees that the perfo=aIlce of Developer's obligations hereunder is required for the health aIld safety of the residents of its Project. Therefore Developer agrees: a. That the City may withhold building permits for the subject subdivision if aIlY one of the following occur: 1. Regional development .threshold limits set by the East Chula Vista TraIlsportation Phasing PlaIl, as amended from time to time, have been reached or, in order to have the Project comply with the Growth MaIlagement Program, as may be amended from time to time. 11. Traffic volumes, levels of service, public utilities aIld/or services exceed the adopted City threshold standards in the then effective Growth MaIlagement OrdinaIlce. iii. The required public facilities, as identified in the PFFP or as amended or otherwise conditioned have not been completed or constructed to the satisfaction of the City. The developer may propose chaIlges in the timing aIld sequencing of development aIld the construction of improvements affected. In such case, the PFFP may be amended as approved by the City's Director of Planning and Building and the City Engineer. b. To defend, indemnify aIld hold harmless the City and its agents, officers aIld =ployees, from any claim, action or proceeding against the City, or its agents, officers or 9 2-114 employees, to attack, set aside, void or annul any approval by the City, including approval by its Planning Commission, City Councilor any approval by its agents, officers, or employees with regard to this subdivision pursuant to Section 66499.37 of the State Map Act provided the City promptly notifies the subdivider of any claim, action or proceeding and on the further condition that the City fully cooperates in the defense. c. To ensure that all franchised cable television companies ("Cable Company") are permitted equal opportunity to place conduit and provide cable television service to each lot within the subdivision. Developer agrees that the City of Chula Vista may grant access to cable companies franchised by the City of Chula Vista to place conduit within the City's easement situated within the Project. Developer shall restrict access to the conduit to only those franchised cable television companies who are, and remain in compliance with, all other rules, regulations, ordinances and procedures regulating and affecting the operation of cable television companies as same may have been, or may from time to time be issued by the City of Chula Vista. d. That the City may withhold the issuance of building permits for the Proj ect, should the Developer be determined by the City to be in breach of any of the terms of the Tentative Map Conditions or any Supplemental Agreement. The City shall provide the Developer of notice of such determination and allow the Developer reasonable time to cure said breach. e. To hold the City harmless from any liability for erosion, siltation or increase flow of drainage resulting from this proj ect. 30. Condition No. 92 - (Congestion Management Program). In satisfaction of Condition No. 92 of the Resolution, the Developer agrees: a. To participate, on a fair share basis, in any deficiency plan or financial program adopted by SANDAG to comply with the Congestion Management Program (CMP) and b. To not protest formation of any future regional impact fee program or facilities benefit district to finance the construction of regional facilities. This agreement to not protest shall not be deemed a waiver of the right to challenge the amount of any assessment, which may be imposed due to these new improvements and shall not interfere with the right of any person to vote in a secret ballot election. 31. Condition No. 93 - (previous Agreements). In satisfaction of Condition No. 93 of the Resolution, the Developer agrees to comply with all previous agreements as they pertain to this tentative map including the Agreement for Monitoring Building Permits, Resolution No. 2003-166, dated April IS, 2003; Indemnification agreement between the City ofChu1a Vista and NNP-Trimark, Resolution No. 2000-483, dated December 19, 2000; and the Annexation Agreement, Resolution No.2000-48l, dated December 19, 2000, Concerning the Conservation and Biological Mitigation Program for the Implementation of the San Miguel Ranch Sectional Planning Area Plan and Tentative Tract Map by and between City, Agencies and NNP- Trimark. 10 2-115 . 32. Condition No. 94 - (Street Sweeping). In partial satisfaction of Condition No. 94 of the Resolution, the Developer agrees to contract with the City's current street sweeping :6:anchisee, or other server approved by the City Engineer to provide street sweeping for each phase of development on a frequency and level of service comparable to that provided for similar areas of the City. The developer shall cause street sweeping to co=ence immediately after the final residence, in each phase, is occupied and shall continue sweeping until such time that the City has accepted the street or 60 days after the completion of all punch list items, whichever is shorter. The developer further agrees to provide the City Special Operations Manager with a copy of the memo requesting street sweeping service which memo shall include a map of areas to be swept and the date the sweeping will begin. 33. Condition No. 95 - (Fiscal Impact). In partial satisfaction of Condition No. 95 of the Resolution, the Developer agrees to the following: a. To maintain at all times a minimum balance of $10,000 in the annual fiscal review fund. The first annual review shall be for the year 2001 and continue through year 2015. At anytime, should the annual fiscal review fund balance be less than $10,000, and should Applicant fail to replenish such balance within 30 days of City's demand for replenishment ofthe fund to the minimum required balance, City shall have the right to withhold building permits for the Project; and b. To acknowledges and agree that Applicant shall be responsible through the year 2015 for paying for the fiscal deficit identified by the annual fiscal review to ensure that all City services provided to the Project including direct and indirect costs, as well as capital and. operating costs shall be covered by Project revenues and Project exactions. Applicant shall, prior to approval of the first Final Map within the Proj ect, and subject to the approval of the City, establish a mechanism to satisfy Applicant's responsibility for payment of the Project's fiscal deficit, such as the establishment of a reserve fund, payment of a one time fee, a fee to be paid with each building permit for the Project, the establishment of a co=unity facilities district or other acceptable methods. 34. Condition No. 99 - (Maintenance District) In partial satisfaction of Condition No. 99 of the Resolution, the Developer agrees to not protest formation or inclusion in a maintenance district or zone for the maintenance of landscaped medians and parkways along streets, and scenic corridors within or adjacent to the Project. This agreement not to protest shall not be deemed a waiver of the right to challenge the amount of any assessment which may be imposed due to the addition of these new improvements and shall not interfere with the right of any person to vote in a secret ballot election. 35. Condition No. 100 - (L&I) In partial satisfaction of Condition No. 100 of the Resolution, the Developer agrees to ensure that the HOA will maintain all open space lots, medians, and parkways in perpetuity. 36. Condition No. 103 - (DG Walkways free from Obstacles) - In partial 11 2-116 satisfaction of Condition No. 103 of the Resolution, the Developer hereby acknowledges and agrees that there shall be no vertical obstacles or any obstructions such as public utility vaults, boxes, etc; placed within the decomposed granite (D. G.) walkways within the project. In the event of any such obstruction placed within the walkways, Developer agrees to immediately remove such obstructions, upon request of the City. 37. Condition No. 104 - (Special Tax and Assessment Disclosure form) - In satisfaction of Condition No. 104 of the Resolution, the Developer hereby acknowledges and agrees that prior to receiving first model home building permit, the developer shall submit all Special Tax and Assessment disclosure fonns for each model size or EDU for the approval of the City Engineer. The Developer also agrees to provide disclosure form to purchaser of each unit. 38. Condition No. 107 - (formation of maintenance district) - In satisfaction of Condition No. 107 of the Resolution, the Developer hereby acknowledges and agrees to not protest formation of a district for the maintenance of City drainage facilities, or any portion thereof, within the Sunnyside Basin. This agreement not to protest shall not be deemed a waiver of the right to challenge the amount of any assessment which may be imposed due to the addition of these new improvements and shall not interfere with the right of any person to vote in a secret ballot election. 39. Condition No. 110 - (City Wide Park Master Plan) - In partial satisfaction of Condition No. 110 of the Resolution, the Developer hereby acknowledges and agrees to comply with the provisions of said Plan when adopted as it affects facility and other related requirements for the San Miguel Ranch community park. 40. Condition No. 119 - (Community Park site) - In partial satisfaction of Condition No. 119 of the Resolution, the Developer agrees to install below grade utilities and future points of connection to the boundaries of the Community Park site (Lots CP-A and B) to the satisfaction of the City Engineer and the Director of Planning and Building concurrently with the installation of below grade utilities for any portion of Planning Areas H or I, whichever occurs first. 41. Condition No. 122 (park Development and Acquisition Fee). In partial satisfaction of Condition No. 122 of the Resolution, the Developer hereby acknowledges and agrees that prior to the approval of each Final Map within the Proj ect which allows construction of any dwelling unit, the Developer shall pay to the City the development portion of the Park Development Fee (pAD fee) due for the dwelling unit count of the respective Final Map. The principal funds shall accumulate to the total amount of the park development fee due for the Project as established by the PFFP. 42. Condition No. 150 (Landscape plans) In partial satisfaction of Condition No. 150 of the Resolution, the Developer has bonded for and agrees to install landscape planting and irrigation improvements for lots (K.-A, K-B, K-C, and K-D) as referenced on Exhibit "B". 43. Condition No. 170 (Fire Management) In partial satisfaction of Condition No. 12 2-117 170 of the Resolution, the Developer agrees to provide the Initial Cycle of fire management! brush clearance and install structural fire prevention measures within lots adjacent to natural open space areas subj ect to approval by the Fire Marshal and Director of Planning and Building. 44. Condition No. 171 (Fire Hydrants and Fire Access). In partial satisfaction of Condition No. 171 of the Resolution, the Developer agrees to provide fire hydrants every 500 ft. for single family residential units and every 300 ft. for multi-family residential units. Developer further agrees to comply with the City Of Chula Vista Fire Department Standard Operating Guidelines (OPS:2916, as amended from time to time) requiring that all fire hydrants be operable prior to delivery of combustible building materials, and a minimum 20' wide, all-weather fire access roads be provided. 45. Condition No. 173 (Sprinkler Systems on Flag Lots). In partial satisfaction of Condition No. 173 of the Resolution, the Developer agrees to provide sprinkler systems in all homes that are on flag lots where the setback distance is greater than 150' as measured from the nearest curb face to the furthers point of the dwelling. 46. Condition No. 174 (Grading Ordinance). In partial satisfaction of Condition No. 174 of the Resolution, the Developer agrees to comply with all applicable sections of the Chula Vista Municipal Code including Chapter 15.04 "Gtading Ordinance" as amended. Preparation of the Final Map and all plans shall be in accordance with the provisions of the Subdivision Map Act and the City of Chula Vista Subdivision Ordinance and Subdivision Manual. 47. Condition No. 175 (Underground Utilities). In partial satisfaction of Condition No. 175 of the Resolution, the Developer agrees to underground all utilities within the subdivision in accordance with Municipal Code requir=ents, excepting those utilities owned and operated by SDG&E located within E-l and E-2, which may be relocated per the requirements of SDG&E, to the satisfaction of SDG&E and the City Engineer. 48. Condition No. 176 (Fees). In partial satisfaction of Condition No. 176 of the Resolution, the Developer agrees to pay all. applicable fees in accordance with the Municipal Code and Council Policy, including, but not limited to, the following: Prior to issuance of each building permit: a. The Transportation and Public Facilities Development Impact Fees. b. Signal Participation Fees. c. All applicable sewer fees, including but not limited to sewer connection fees. e. Proctor Valley Trunk Sewer Reimburs=ent District Fee. f. Frisbie Trunk Fee. g. Fiscal Operation Deficit as determined by the City Manager (see Condition No. 95) Prior to each Final Map approval: 13 2-118 . h. Park Acquisition and Development Fee. 1. Spring Valley Sanitation District Trunk Fee. The amount of said fees shall be those in effect at the time of approval of:final maps or issuance of building permits as applicable. 49. Condition No. 177 (Federal, State and Local Regulations) In partial satisfaction of Condition No. 177 of the Resolution, the Developer agrees to comply with all relevant Federal, State, and Local regulations, including the Clean Water Act. The developer shall be responsible for providing all required testing and documentation to demonstrate said compliance as required by the City Engineer. 50. Condition No. 178 (Noise Levels) In partial satisfaction of Condition No. 178 of the Resolution, the Developer agrees to design all dwelling units to preclude interior noise levels over 45 dBA and shield all exterior private open space to limit noise exposure to 65 dBA. 51. Condition No. 179 (NPDES) In partial satisfaction of Condition No. 179 of the Resolution, the Developer agrees to comply with all applicable. regulations established by the United States Environmental Protection Agency (USEPA) as set forth in the National Pollutant Discharge Elimination System (N.P.D.E.S.) permit requirements for urban runoff and storm water discharge and any regulations adopted by the City of Chula Vista pursuant to the N.P .D.E.S. regulations or requirements. Further, the applicant shall file notice of intent with the State Water Resources Control Board to obtain coverage under the N.P.D.E.S. General Permit for Storm Water Discharges Associated with Construction Activity and shall implement a Storm Water Pollution Prevention Plan (SWPPP) concurrent with the commencement of grading activities. The SWPPP shall include both construction and post construction pollution prevention and pollution control measures and shall identifY funding mechanisms for post construction control measures. 52. Condition No. 180 (Notice of Special Tax Disclosure). In partial satisfaction of Condition No. 180 of the Resolution, the Developer agrees to ensure that prospective purchasers sign a "Notice of Special Taxes and Assessments" pursuant to Municipal Code Section 5.46.020 regarding proj ected taxes and assessments. Submit the disclosure form for approval by the City Engineer prior to Final "B" Map approval. 53. Condition No. 181 (Natural Channels in Open Space). In partial satisfaction of Condition No. 181 of the Resolution, the Developer shall comply with Council Policy No. 522- 02 regarding maintenance of natural channels within open spaces and to repair erosion down stream of the project at the request of the City Engineer. 54. Condition No. 182 (Growth Management). In partial satisfaction of Condition No. 182 of the Resolution, the Developer agrees to comply with Chapter 19.09 of the Chula Vista Municipal Code (Growth Management) as may be amended from time to time by the City. Said chapter includes but is not limited to: threshold standards (19.09.04), public facilities finance plan implementation (19.09.090), and public facilities finance plan amendment procedures 14 2-119 (19.09.100). 55. Condition No. 183 (public Facilities) In partial satisfaction of Condition No. 183 of the Resolution, the Developer agrees to install public facilities in accordance with the San Miguel Ranch Public Facilities Finance Plan as may be amended ITom time to time, or as required by the City Engineer to meet threshold standards adopted by the City of Chula Vista. The City Engineer and Director of Planning and Building may, at their discretion, modify the sequence of improvement construction should conditions change to warrant such a revision. The Developer shall construct the public improvements and provide security satisfactory to the City Engineer. 56. Condition No. 184 (SPA & PFFP Phasing Plan) In satisfaction of Condition No. 184 of the Resolution, the Developer agrees to develop the Project in accordance with the approved SPA and PFFP pha,<>ing plan. If the applicant proposes to modify this approved phasing plan, the applicant shall submit to the City a revised phasing plan for review and approval prior to approval of each Final Map. The PFFP and the map conditions shall be revised where necessary to reflect the revised phasing plan. 57. Condition No. 185 (Phasing) In satisfaction of Condition No. 185 of the Resolution, the Developer agrees that if phasing is proposed within an individual map or through multiple final maps, the developer shall submit and obtain approval for a development phasing plan by the City Engineer and Director of Planning and Building prior to approval of any Final Map. Improvements, facilities and dedications to be provided with each phase or unit of development shall be as detennined by the City Engineer and Director of Planning and Building. The City reserves the right to require said improvements, facilities andlor dedications as necessary to provide adequate circulation and to meet the requirements of police and fIre departments. The City Engineer and Director of Planning and Building may, at their discretion, modify the sequence of improvement construction should conditions change to warrant such a revision. The developer agrees that the City Engineer may change the timing of construction of the public facilities. 58. Condition No. 186 - (public Facility Financing Plan). In partial satisfaction of Condition No. 186 of the Resolution, the Developer agrees that the Public Facility Finance Plan or revisions thereto shall be adhered to for the SPA and tentative map with improvements installed in accordance with said plan or as required to meet threshold standards adopted by the City of Chula Vista. The PFFP identifIes a facility phasing plan based upon a set of assumptions concerning the location and rate of development within and outside of the proj ect area. Throughout the build-out of San Miguel Ranch, actual development may differ ITom the assumptions contained in the PFFP. Neither the PFFP nor any other document grant the Developer an entitlement to develop as assumed in the PFFP, or limit the facility improvement requirements to those identifIed in the PFFP. Compliance with the City of Chula Vista threshold standards, based on actual development patterns and updated forecasts in reliance on changing entitlements and market conditions, shall govern SPA development patterns and the facility improvement requirements to serve such development. In addition, the sequence in which improvements are constructed shall correspond to any future Eastern Chula Vista Transportation 15 2-120 Phasing Plan or amendment to the Growth Management Program and Ordinance adopted by the City. The City Engineer may modify the sequence of improvement construction should conditions change to warrant such a revision. The San Miguel Ranch PFFP, at the Developer's expense and subject to a Reimbursement Agreement, shall be updated, upon request of the City Engineer, to reflect said revisions including the nature, sizing, extent and timing for the construction of public facilities caused by San Miguel Ranch, and shall become a condition for all subsequent San Miguel Ranch entitlements, including tentative and final maps. 59. Condition No. 187 - (Withhold Building Permits). In partial satisfaction of Condition No. 187 of the Resolution, the Developer agrees and acknowledges that the City may withhold building permits for any of the phases of development identified in the Public Facilities Financing Plan (PFFP) if the required public facilities, as identified in the PFFP or as amended or otherwise conditioned, have not been completed or constructed to the satisfaction of the Director of Planning and Building. The property owner may propose changes in the timing and sequencing of the development and the construction of improvements affected in such cases, the PFFP may require amendment as approved by the Director of Planning and Building. 60. Condition No. 188 (Growth Management Ordinance). In partial satisfaction of Condition No. 188 of the Resolution, the Developer acknowledges and agrees that the City is ~ presently in the process of amending its Growth Management Ordinance to establish provisions necessary to ensure compliance with adopted thresholds standards (particularly traffic) prior to the construction of State Route 125 and that the Developer hereby agrees to comply with adopted amendments to the Growth Management Ordinance. Said provisions will require the demonstration, to the satisfaction of the City Engineer, of sufficient street system capacity to accommodate a proposed development as a prerequisite to Final Map approval for that development. 61. Condition No. 189 (San Miguel Water Conservation Plan). In partial satisfaction of Condition No. 189 of the Resolution, the Developer agrees to revise, at its own cost and expense, the San Miguel Ranch Water Conservation Plan ("WCP") as necessary to incOIporate new water conservation measures, and/or to participate in pilot projects to evaluate new measures, such as gray water systems, as adopted by the City Council, and comply and remain in compliance with the WCP. The Developer further agrees to modify the WCP to incorporate those new measures, which are in effect at the time, prior to or concurrent with each Final Map approval. The new measures shall apply to development within all future Final Map areas, but shall not be retroactive to those areas, which received Final Map approval prior to effect of the subject new measures. Developer hereby waives any claim that the adoption of a revised Water Conservation Plan or Air Quality Plan constitutes an improper subsequent imposition of the condition. 62. Condition No. 190 - (Declaration of Covenants, Codes and Restrictions). In partial satisfaction of Condition No. 190 of the Resolution, The Developer hereby agrees and acknowledges that the MHOA's maintenance of public open space, trails, etc. may expose the City to liability. Developer agrees to establish a MHOA that will defend, indemnify, and hold the City harmless from any negligence of the MHOA in the maintenance of such areas. 16 2-121 63. Condition No. 191 (Declaration of Covenants, Codes and Restrictions). In partial satisfaction of Condition No. 191 of the Resolution, the Developer agrees that the Declaration of Covenants, Conditions and Restrictions (CC & R's) shall include provisions establishing a Home Owners Association (ROA) to assure maintenance of all open space areas and slopes which are not maintained by other means, streets, driveways, drainage and sewage systems which are private, and landscape and irrigation, walls and public street improvements which are not maintained by other means, all subject to approval of the City. The City of Chula Vista shall be named as party to said Declaration authorizing the City to enforce the terms and conditions of the Declaration in the same manner as any owner within the subdivision. 64. Condition No. 193 (Submittal of Declaration of Covenants, Codes and Restrictions). In partial satisfaction of Condition No. 193 of the Resolution, prior to the approval of each Final Map, the Developer agrees to submit and obtain the approval of the City Engineer, Director of Planning and Building the Declaration of Covenants, Conditions, and Restrictions (CC&:R's). Developer further agrees that amended CC&R's addressing future phases to be annexed to the Master HOA shall be submitted and Developer shall obtain the approval of said CC &R's. The CC&R's shall include the following obligations of the Master Homeowners Association: a. Maintain all the facilities and improvements Within the open space lots offered for dedication to the City until acceptance of the open space lots for maintenance by the open space/Community Facilities District. b. A requirement that the MHOA shall maintain comprehensive general liability insurance against liability incident to ownership or use of the following areas: 1 open space lots offered for dedication to the City until acceptance by the City, or until any such offer of dedication is extinguished by it own terms. 11 all open space lots that shall remain private, 111 other Master Association property. c. Before any revisions to provisions of the CC&R's that may particularly affect the City can become effective, said revisions shall be approved by the City. The MHOA shall not seek approval from the City of said revisions without the prior consent of 100 percent of the holders of first mortgages or property owners within the MHOA. d. The MHOA shall defend, indemnify, and hold the City harmless from any claims, demands, causes of action liability or loss related to or arising from the maintenance activities of the MHOA. e. The MHOA shall not seek to be released by the City from the maintenance 17 2-122 obligations described herein without the prior consent of the City and 100 percent of the holders of first mortgages or property owners within the MHOA. f. The MHOA is required to procure and maintain a policy of comprehensive general liability insurance written on a per occurrence basis in an amount not less than one million dollars combined single limit. The policy shall be acceptable to the City and name the City as additionally insured. g. The CC&R's shall incorporate restrictions for each lot adjoining open space lots containing walls maintained by the open space district to ensure that the property owners know that the walls may not be modified or supplemented nor may they encroach on City property. h. The CC&R's shall include provisions assuring MHOA membership in an advance notice such as the USA Dig Alert Service in perpetuity. i. The CC&R's shall include provisions that provide City the right, but not the obligation, to enforce the CC&R provisions same as any owner in the Project. j. The CC&R provisions setting forth restrictions in these Tentative map conditions may not be revised at any time without prior written permission of the City. k. The MHOA shall not dedicate or convey for public streets, land used for private streets without approval of 100% of all the HOA members or holder of first mortgages within the MHOA. (Engineering, Parks, Planning, Public Works) 1. Provide within the master CC&R's for the maintenance in perpetuity of all stabilized decomposed granite (D.G.) areas by a Home Owner's Association. m. Maintenance of all facilities and improvements within open space areas covered by homeowners associations. 65. Satisfaction of Conditions. City agrees that the execution of this Agreement constitutes satisfaction or partial satisfaction of Developer's obligation of Conditions 1,2,3,4,5, 6,10, 11, 12, 13, 15, 17, 18,24,27,28,30,31,48,54,55,57,67,72,73,74,86,90,92, 93, 94, 95,99,100,103,104,107,110,119,122,150,170,171,173, 174, 175,176,177,178,179,180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191 and 193 of the Resolution. Developer further understands and agrees that the some of the provisions herein may be required to be performed or accomplished prior to the approval of other final maps for the Project, as may be appropriate. 66. Unfulfilled Conditions. Developer hereby agrees, unless otherwise conditioned, that Developer shall comply with all unfulfilled conditions of approval of the Tentative Map, established by Resolution No. 2000-068 and shall remain in compliance with and implement the t=s, conditions and provisions therein. 18 2-123 67. Recording. This Agreement, or an abstract hereof shall be recorded simultaneously with the recordation of the Final Map. 68. Building Permits. Developer and Guest Builders acknowledge and agree that the City may withhold the issuance of building pemrits for the Project, should the Developer be determined by the City to be in breach of any of the terms of this Agreement. The City shall provide the Developer of notice of such determination and allow the Developer with reasonable time to cure said breach. 69. Assignablity. Upon request of the developer, any or all on-site duties and obligations set forth herein may be assigned to developer's successor in interest if the City manager in his/her sole discretion determines that such an assignment will not adversely affect the City's interest. The City Manager in his/her sole discretion may, if such assignment is requested, permit a substitution of securities by the successor in interest in place and stead of the original securities described herein so long as such substituted securities meet the criteria for security as set forth elsewhere in this agreement. Such assignment will be in a form approved by the City Attorney. 70. Delay in Performance. City agrees that should Developer be delayed in performing any obligations under this Agreement primarily as a result of a "Permitted Excuse" (as hereunder defmed). Developer shall be allowed a reasonable extension of time to perform said obligation, and such reasonable time shall be determined by the City, but in no circumstances shall be less than the length of the delay resulting from the Permitted Excuse. As used herein, the term "Permitted Excuse" shall mean any of the following: (i) the City's actions, omissions or inaction which result in a delay of performance by Developer or (ii) labor disputes, acts of God, war, riots, insurrections, civil commotions, moratorium (other that those imposed by the City pursuant to Growth Management Ordinance, as may be amended from time to time) litigation (other than any litigation brought by or on behalf of Developer or Developer's successors-in-interests, assignees or agents against the City) inability to obtain labor or materials or reasonable substitutes for either, fire, unusual delay in transportation, adverse weather, conditions not normally anticipated in a project of this type or casualties beyond the reasonable control of Developer, Permitted Excuse shall not include delays due to a party's own negligence or financial inability to perform. 71. Miscellaneous. a. Notices. Unless otherwise provided in this Agreement or by law, any and all notices required or permitted by this Agreement or by law to be served on or delivered to either party shall be in writing and shall be deemed duly served, delivered, and received when personally delivered to the party to whom it is directed, or in lieu thereof, when three (3) business days have elapsed following deposit in the U.S. mail, certified or registered mail, return receipt requested, first-class postage prepaid, addressed to the address indicated in this Agreement. A party may change such address for the purpose of this paragraph by giving written notice of such change to the other party. 19 2-124 CITY OF CHULA VISTA 276 Fourth Avenue Chula Vista, CA. 91910 Attn: City Engineer Developer: PROCTOR VALLEY WEST P AR1NERS, 85 Argonaut, Suite 205 Aliso Viejo, CA. 92656 Phone (949) 465-1655 Attn.: Stephen E. Hester, Executive Vice President A party may change such address for the purpose of this paragraph by giving written notice of such change to the other party in the manner provided in this paragraph. b. Captions. Captions in this Agreement are inserted for convenience of reference and do not defme, describe or limit the scope or intent of this Agreement or any of its t=s. c. Entire Agreement. This Agreement contains the entire agreement between the parties regarding the subject matter hereof. Any prior oral or written representations, agreements, understandings, and/or statements sha11 be of no force and effect. This Agreement is not intended to supersede or amend any other agreement between the parties unless expressly noted. d. Preparation of Agreement. No inference, assumption or presumption shall be drawn from the fact that a party or his attorney prepared and/or drafted this Agreement. It shall be conclusively presumed that both parties participated equally in the preparation and/or drafting this Agreement. e. Recitals; Attachments. Any recitals set forth above and exhibits attached hereto are incorporated by reference into this Agreement. f. Attorneys I Fees. If either party commences litigation for the judicial interpretation, reformation, enforcement or rescission hereof, the prevailing party will be entitled to a judgment against the other for an amount equal to reasonable attorney's fees and court costs incurred. The "prevailing party" shall be deemed to be the party who is awarded substantially the relief sought. [NEXT PAGE IS PAGE ONE OF TWO SIGNATURE PAGES] 20 2-125 [pAGE ONE OF TWO SIGNATURE PAGES TO SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR SAN MIGUEL RANCH PLANNING AREA "K" FINAL MAP] IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first hereinabove set forth. CITY OF CHULA VISTA Stephen C. Padilla Mayor of the City of Chula Vista Attest Susan Bigelow City Clerk Ann Moore City Attorney [NEXT PAGE IS PAGE TWO OF SIGNATURE PAGES] 21 2-126 [pAGE TWO OF TWO SIGNATURE PAGES TO SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR SAN MIGUEL RANCH PLANNING AREA "K" FINAL MAP] DEVELOPERS/OWNERS: PROCTOR VALLEY WEST PARTNERS, LLC, a Delaware Limited Liability Company By: Trimark Pacific - Montecito, LLC a California limited liability company, Managing Member By : TPH, LLC, a California limited liability company, Member Manager By: Trimark Ventures, Inc., a California corporation, Me7 By: ~~!~ Executive Vice President (Attach Notary Acknowledgment) 23 2-127 CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT ~ I.. '" !-/J- 0:; s~~.;;-;~;f1;:ilcifL~~'~~:3:j P<Jbllc I personally appeared _ HC<:::> W (i personally known to me o proved to me on the basis of satisfactory evidence '. ,.....- - .- - - - - _1 to be the person(s) whose name(s) is/are ~ ,.' ',0' Q-' AN~C; ~AR;S subscribed to the within instrument and ~ I :< - ' ' , Commission # 1584601; acknowledged to me that he/she/they executed ~ I' 2 ,.,,' · Notary Public - California ~ the same in his/her/their authorized ~,II ~_ ' San Diego County - capacity(ies), and that by his/her/their ~ ~ My Comm, Expires Jun 3, 2009 signature(s) on the instrument the person(s), or ~ ~ the entity upon behalf of which the person(s) ~ ~ acted, executed the instrument. ~,:,: ~ WIT ITS ~y hansJ and offici~eaL " ! ~L/)J!l. ~ ~ ~ / Li vu.--:' V @ I' -- I , OPTIONAL I ( Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent ~ I,:. fraudulent removal and reattachment of this form to another document. ~I"".""I:' Description of Attached Document Title or Type of Document: ~ ~ Document Date: Number of Pages: I I I @ Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: . Top of thumb here I o Individual o Corporate Officer - Title(s): o Partner - 0 Limited 0 General o Attorney-in-Fact o Trustee o Guardian or Conservator o Other: Signer Is Representing: ( ~~~~.'~~~~" ~ , 999 Na.tlonal Notary Associatic.n .9350 De Solo Ave., P.O. Box 2402. Chalsworth, CA 91313-2402 . www.NationaINotary.org Prcd.No.59Q7 AlIDrder;CalITolI-F~e1-a1J1J.878-6827 2-128 Exhibit "A" Legal Description of Property Being a subdivision oflot 5, of Chula Vista Tract No. 99-04, San Miguel Ranch Phase 3 "A" Map No. 1 in the City of Chula Vista, County of San Diego, state of California, according to Map thereof No. 14853, filed in the Office of the County Recorder of San Diego County on August 10,2004. 23 2-129 EXHIBIT "B" SECURITY CHULA VISTA TRACT NO. 99-04 SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR SAN MIGUEL RANCH PLANNING AREA "K" FINAL MAP] "K" $493,296.18 2171306 C:\Do9uments and SettingslrimatlMy Documents\projects related\San Miguel Ranch Phase Iffifinal draft SSIA of K.doc 24 2-130 THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIL Ann Moore City Attorney Dated: / )'iJ ()h Supplemental Subdivision Improvement Agreement between the City of Chula Vista and Proctor Valley West Partners, LLC for San Miguel Ranch Planning Area "L" Final Map " 2-131 City Clerk ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Above Space for Recorder's Use RECORDING REQUEST BY: WHEN RECORDED MAIL TO: CITY OF CHULA VISTA 276 Fourth Avenue Chula Vista, CA 91910 No transfer tax is due as this is a conveyance to a public agency of less than a fee interest for which no cash consideration has been paid or received. SM-022F SAN MIGUEL RANCH PLANNING AREA "L" FINAL MAP SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT (Conditions 1,2,3,4,5,6,10,11,12,13,15,17,18,24,27,28,30,31,54, 55, 57, 67, 72, 73, 74,86,90,92,93,94,95,99,100,103,104,107,110,119,122, 152, 170, 171, 172, 173, 174, 175,176,177,178,179,180,181,182,183,184,185,186, 187, 188, 189, 190, 191 and 193) This Supplemental Subdivision Improvement Agreement ("Agreement") is made this _day of_, 2004, by and between THE CITY OF CHULA VISTA, California ("City" or "Grantee" for recording purposes only) and PROCTOR VALLEY WEST PARTNERS, LLC, a Delaware Limited Liability Company, ("Developer" or "Grantor"), with reference to the facts set forth below, which recitals constitute a part of this Agreement: RECITALS A. This Agreement concerns and affects certain real property located in Chula Vista, California, more particularly described on Exhibit "A" attached hereto and incorporated herein ("Property"). The Property is within approved Tentative Subdivision Map Chula Vista Tract 99- 04, which project is commonly known as San Miguel Ranch. For purposes of this Agreement the term "Project" shall also mean "Property". B. Developer and/or Developer's predecessor in interest has applied for and the City has approved Tentative Subdivision Map commonly referred to as Chula Vista Tract 99-04 2-132 ("Tentative Subdivision Map") for the subdivision of the Property. C. The City has adopted Resolution No. 2000-068 ("Resolution") pursuant to which it has approved the Tentative Subdivision Map subject to certain conditions as more particularly described in the Resolution and thereafter amended said conditions pursuant to City Council Resolution No. 2001-453 (collectively hereinafter refer to as "Resolution"). D. City is willing, on the premises, security, terms and conditions herein contained to approve the final map for which Developer has applied as being in substantial conformance with the Tentative Subdivision Map described in this Agreement. Developer understands that subsequent [mal maps may be subject to the same security terms and conditions contained herein. E. The following defined terms shall have the meaning set forth herein, unless otherwise specifically indicated: "Owner or Developer" means the person, persons or entity having a legal or an equitable interest in the property or parts thereof and includes Owner's successors-in-interest and assignors of any property within the boundaries of the map. This includes PROCTOR VALLEY WEST PARTNERS, LLC, a Delaware Limited Liability Company, and any and all owners of real property within the boundaries of the Property, and all signatories to this Agreement. "Guest Builder" means those entities obtaining any interest in the Property or a portion of the Property, after the final map has been recorded. "PFFP" means the Public Facilities Financing Plan adopted by Resolution No. 19631 on October 19, 1999 and amended by Resolution No. 2001-453 ("Amendment") on December 17, 2001 and as may be further amended from time to time. "SPA Plan" means the San Miguel Ranch Sectional Planning Area Plan as adopted by the City Council on October 19,1999 pursuant to Resolution No. 19631, and as amended by the Zoning Administrator on June 19, 2002 (pCM-02-17). NOW, THEREFORE, in exchange for the mutual covenants, terms and conditions herein contained, the parties agree as set forth below. 1. Agreement Applicable to Subsequent Owners. a. Agreement Binding Upon Successors. This Agreement shall be binding upon and inure to the benefit of the successors, assigns and interests of the parties as to any or all of the Property as described on Exhibit "A" until released by the mutual consent of the parties. For the purposes of this Agreement the "Developer" shall also mean "Applicant" b. Agreement Runs with the Land. The burden of the covenants contained in this Agreement ("Burden") is for the benefit of the Property and the City, its successors and 2 2-133 assigns and any successor in interest thereto. City is deemed the beneficiary of such covenants for and in its own right and for the purposes of protecting the interest of the community and other parties public or private, in whose favor and for whose benefit of such covenants running with the land have been provided without regard to whether City has been, remained or are owners of any particular land or interest therein. If such covenants are breached, the City shall have the right to exercise all rights and remedies and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breach to which it or any other beneficiaries of this agreement and the covenants may be entitled. c. Developer Release on Guest Builder Assignments. If Developer assigns any portion of the Project to a Guest Builder, Developer may request to be released from Developer's obligations under this Agreement, that are expressly assumed by the Guest Builder, provided Developer obtains the prior written consent of the City to such release. Such assignment to the Guest Builder shall, however, be subject to this Agreement and the Burden of this Agreement shall remain a covenant running with the land. The City shall not withhold its consent to any such request for a release so long as the assignee acknowledges that the Burden of the Agreement runs with the land, assumes the obligations of the Developer under this Agreement, and demonstrates, to the satisfaction of the City, its ability to perform its obligations under this Agreement as it relates to the portion of the Project which is being acquired by the Assignee. d. Partial Release of Developer's Assignees. If Developer assigns any portion of the Project subject to the Burden of this Agreement, upon request by the Developer or its assignee, the City shall release the assignee of the Burden of this Agreement as to such assigned portion if such portion has complied with the requirements of this Agreement to the satisfaction of the City and such partial release will not, in the opinion of the City, jeopardize the likelihood that the remainder of the Burden will not be completed. e. Release oflndividual Lots. Upon the occurrence of any of the following events, Developer shall, upon receipt of the prior written consent of the City Manager (or Manager's designee), have the right to release any lot(s) from Developer's obligation under this Agreement: I. The execution of a purchase agreement for the sale of a residential lot to a buyer of an individual housing unit; 11. The conveyance of a lot to a Homeowner's Association; iii. The conveyance of a school site as identified in the SPA Plan to a school district; The City shall not withhold its consent to such release so long as the City finds in good faith that such release will not jeopardize the City's assurance that the obligations set forth in this Agreement will be performed. At the request of the Developer, the City Manager (or Manager's designee) shall execute an instrument drafted by Developer in a recordable form acceptable to the 3 2-134 City Manager (or Manager's designee), which confums the release of such lot or parcel from the encumbrance of this Agreement. Notwithstanding the foregoing, at the close of an individual homeowner's escrow on any lot or parcel encumbered by this Agreement, such lot or parcel shall be automatically released from the encumbrance hereof. 2. Condition No. I - (General Preliminary). In partial satisfaction of Condition No.1 of the Resolution, the Developer hereby agrees to comply with all requirements and guidelines of the San Miguel Ranch SPA Plan, Planned Community (PC) District Regulations, Design Guidelines, Pubiic Facilities Financing Plan, Affordable Housing Plan, Air Quality Improvement Plan, Water Conservation Plan, and City approved substantial Conformance Exhibits, all as may be amended from time to time, unless specifically modified by the appropriate department head, with the approval of the City Manager. These plans may be subject to minor modifications by the appropriate department head, with the approval of the City Manager, however, any material modifications shall be subject to approval by the City Council. 3. Condition No.2 - (General Preliminary). In satisfaction of Condition No.2 of the Resolution, the Developer hereby agrees that the project conditions of approval are based upon the project having multiple fmal maps. Unless otherwise specified, all conditions and code requirements listed herein shall be fully completed to the City's satisfaction prior to approval of the first final map. . 4. Condition No.3 - (General Preliminary). In satisfaction of Condition No.3 of the Resolution, the Developer hereby agrees that in the event of a filing of a final map which requires over-sizing of the improvements necessary to serve other properties, said final map shall be required to install all necessary improvements to serve the project plus the necessary over- sizing of facilities required to serve such other properties (in accordance with the restrictions of State law and City ordinances). 5. Condition No.4 - (General Preliminary). In partial satisfaction of Condition No.4 of the Resolution, the Developer agrees that prior to approval of a final Map creating a multiple family lot, which does not require the filing of a subsequent map, all applicable conditions of approval of the tentative map shall be met, as determined by the City Engineer. 6. Condition No.5 - (pFFP Phasing). In partial satisfaction of Condition No.5 of the Resolution, the Developer agrees not to seek any building permits for production homes until the Mt. Miguel Road Bridge across SR-125 has been constructed and is open to the public. Developer may seek building permits for model homes prior to completion of the Mt. Miguel Road bridge across SR-125. Developer further agrees: a. To prevent construction traffic from accessing to and from the County of San Diego via San Miguel Road, and b. To allow construction access through the City of Chula Vista only, and 4 2-135 c. To maintain a physical barrier to prevent vehicular access from the project to Proctor Valley Road to the northwest until SRI25 is open to the public, all to the satisfaction of the City. 7. Condition No.6 - (General Preliminary). In partial satisfaction of Condition No. 6 of the Resolution, the Developer hereby agrees to dedicate for public use all the public streets shown on the tentative map within the subdivision boundary with the recordation of the applicable final map. Prior to the approval of the applicable [mal map, the Developer shall enter into an agreement to guarantee the construction of all street improvements as required by the PFFP for each particular phase. 8. Condition No. 10 - (General Preliminary) In satisfaction of Condition No. 10 of the Resolution, the Developer agrees that if any of the terms, covenants or conditions contained herein shall fail to occur or if they are, by their terms, to be implemented and maintained over time, if any of such conditions fail to be so implemented and maintained according to their terms, the City shall have the right to revoke or modify all approvals herein granted including issuance of building permits, deny, or further condition the subsequent approvals that are derived from the approvals herein granted, institute and prosecute litigation to compel their compliance with said conditions or seek damages for their violation. The Developer shall be notified 10 days in advance prior to any of the above actions being taken by the City and shall be given the opportunity to remedy any deficiencies identified by the City within a reasonable and diligent time frame. 9. Condition No. 11 - (General Preliminary) In satisfaction of Condition No. II of the Resolution, the Developer agrees that all of the terms, covenants and conditions contained herein shall be binding upon and inure to the benefit of the heirs, successors, assigns and representatives of the Developer as to any or all of the property. For the purposes of this document the term "Developer" shall also mean "Applicant". 10. Condition No. 12 - (General Preliminary) In satisfaction of Condition No. 12 of the Resolution, the Developer agrees to indemnify, protect, defend and hold the City harmless from and against any and all claims, liabilities and costs, including attorney's fees, arising from challenges to the Final Subsequent Environmental Impact Report for the San Miguel Ranch Sectional Planning Area and Tentative Maps (FSEIR 97-02) and any or all entitlements and approvals issued by the City in connection with the Proj ect. 11. Condition No. 13 - (General Preliminary) In satisfaction of Condition No. 13 of the Resolution, the Developer agrees to comply with all applicable SPA Plan conditions of approval. 12. Condition No. 15 - (Applicable Mitigation Measures) In satisfaction of Condition No. 15 of the Resolution, the Developer agrees to implement to the satisfaction of the Director of Planning and Building and the Environmental Review Coordinator, all applicable mitigation measures identified in FSEIR 97-02, the CEQA Findings of Fact and the Mitigation 5 2-136 Monitoring and Reporting Program for the San Miguel Ranch Project in accordance with the requirements, provisions and schedules contained therein, and as further specified in these Tentative Map conditions. Modification of the sequence of mitigation shall be at the discretion of the Director of Planning and Building should changes in circumstances warrant such a revision. 13. Condition No. 17 - (Environmental/Preservation) In satisfaction of Condition No. 17 of the Resolution, the Developer agrees to comply with all applicable requirements of the California Department of Fish and Game, the California State Water Resources Control Board, the U.S. Department of Fish and Wildlife, and the U.S. Army Corps of Engineers as to the Project. 14. Condition No. 18 - (Brush Management / Fire Protection Plan) In partial satisfaction of Condition No. 18 of the Resolution, the Developer agrees to remain in compliance with the Brush Management Program / Fire Protection Plan for the Project. Developer herein agrees that approval of additional Final Maps will require amendments and additions to the Brush Management Program / Fire Prevention Plan as set forth in the Landscape Master Plan for the Project and as required by the City's Fire Marshall. The Developer shall comply with the following: a. The areas indicated for brush'management activities must be within the boundaries of the areas previously proposed for grading within FSElR-97-02. To the extent that brush management areas extend beyond said grading boundaries, additional environmental review and mitigation may be required as determined by the Director of Planning and Building and the Environmental Review Coordinator. b. The Brush Management Program must be in compliance with the Multiple Species Conservation Program (MSCP) Subarea Plan, including but not limited to the requirement of up to a l50-foot setback from structures to the Preserve boundary with a 10-foot fire access, or as required by the Director of Planning and Building subject to the City's ordinances and policies. The Brush Management Program shall also address buffer areas, types of fencing, and all other pertinent matters in areas surrounding or abutting the project's Otay Tarplant preserves. c. If developer so requests, pursuant to the MSCP Subarea Plan, site-specific waivers or project-level design methods to reduce fire setback requirements may be considered by the City Fire Marshal and approved at the City Fire Marshal's sole discretion. d. As necessary, and prior to the approval of the Brush Management Program, the Applicant shall obtain written consent from other property owners to conduct brush management activities on adj acent, off-site lands, which are within the required brush management zones as reflected in the Brush Management Program. Developer shall incorporate plant species listed in the "Urban Wildlife Interface Guidelines" for planting within and adjacent to fuel modification zones to the satisfaction of the Director of 6 2-137 Planning and Building. 15. Condition No. 24 - (Noise Walls and Sound Berms). In partial satisfaction of Condition No. 24 of the Resolution, the Developer agrees that prior to approval of any grading or improvement plans, the Developer shall include on those Plans, as appropriate, and Developer hereby agrees to construct all to the satisfaction of the Director of Planning and Building and the Environmental Review Coordinator, the noise walls or berms required by the Project's Environmental Impact Report and the acoustical report "Final SR-125 Toll Road Noise Design Report" prepared by Entech Consulting Group dated 2/23/05. 16. Condition No. 27 - (Landscape Manual). In partial satisfaction of Condition No. 27 of the Resolution, the Developer shall comply with all aspects of the City of Chula Vista Landscape Manual. 17. Condition No. 28 - (Street Trees). In partial satisfaction of Condition No. 28 of the Resolution, the Developer shall install all street trees in accordance with Section 18.28.10 of the Chula Vista Municipal Code and the City's Landscape Manual or as otherwise approved by the Director of Planning and Building and the City Engineer. Upon request of the Director of Planning and Building, the applicant shall provide root control methods and a separate deep watering irrigation system for all trees. Street trees shall be shown on street improvement plans submitted for approval by the Director of Planning and Building and the City Engineer prior to or concurrent with the second submittal of street improvement plans within the subdivision. Approval of the street tree improvement plans shall constitute final approval of the species selection of street trees 18. Condition No. 30 - (Compliance with approved plans) In partial satisfaction of Condition No. 30 of the Resolution, the Developer shall comply with, remain in compliance with, and implement, unless otherwise conditioned, the terms, conditions and provisions of the San Miguel Ranch General Development Plan, Sectional Planning Area Plan ("SPA"), and such Master Plan ofReclairned Water, Urban Runoff Report, Habitat Enhancement Plan, Master Plan of Sewage, Water Conservation Plan, the Air Quality Improvement Plan Design Guidelines and the Public Facilities Financing Plan approved by the Council ("Plans") as are applicable to the property which is the subject matter of this Tentative Map, prior to approval of each [mal Map, or enter into an agreement with the City, providing the City with such security (including recordation of covenants running with the land) and implementation procedures as the City may require, assuring that, after approval of the [mal Map, the developer shall continue to comply with, remain in compliance with, and implement such Plans. 19. Condition No. 31 - (Security) In partial satisfaction of Condition No. 31 of the Resolution, the Developer shall provide security in accordance with Chapter 18.16 of the Municipal Code and dedicate, construct full street improvements for all public streets shown on the Tentative Map within the subdivision boundary or off-site, as required for each phase in accordance with Chula Vista Design Standards, Chula Vista Street Standards, and the Chula Vista Subdivision Manual unless otherwise approved by the City Engineer. Said improvements shall include, but not be limited to, asphalt concrete pavement, base, concrete curb, driveways, 7 2-138 gutter and sidewalk, sewer, reclaimed water and water utilities, drainage facilities, street lights, traffic signals, signs, fire hydrants and transitions to existing improvements. All streets shall conform to the City's Street Design Standards Policy adopted by City Council Resolution No. 15349 unless otherwise conditioned or approved by the City Engineer. Construct transitions to existing improvements in the manner required by the City Engineer. . 20. Condition No. 54 - (Traffic Signal) In partial satisfaction of Condition No. 54 of the Resolution, the Developer agrees to install traffic signal on the intersection of San Miguel Ranch Road and Proctor Valley Road as shown on Chula Vista Drawing Numbers 04039-11 and 04039 -12. 21. Condition No. 55 - (SR-125 ROW) In partial satisfaction of Condition No. 55 of the Resolution, the Developer agrees to grant to the City of Chula Vista an Irrevocable Offer of Dedication for any additional right-of-way of SR-125 sufficient for the ultimate construction of SR 125, within the Project's boundaries. The right-of-way shall be sufficient for the ultimate construction of SR-125 to the satisfaction of CalTrans and the City Engineer. Any transfer of the right-of-way to a third party by the City will be subject to a three party agreement between the City of Chula Vista, the Applicant and Caltrans or its authorized agent. 22. Condition No. 57 - (Sewer & Water Laterals) In partial satisfaction of Condition No. 57 of the Resolution, the Developer agrees to guarantee prior to the release of bonds for street improvements that the "Engineer-of-Work" has clearly identified all sewer (S) and water (W) lateral locations prior to the construction of curbs so that the curb face can be stamped with an "S" and "W", for the sewer and water laterals, respectively, and the Developer shall propagate all curb face markings in order to assure that the locations of the said utilities are identifiable. 23. Condition No. 67 - (NPDES) In partial satisfaction of Condition No. 67 of the Resolution, the Developer agrees to comply with all the provisions of the National Pollutant Discharge Elimination System (NPDES) and the Clean Water Program during and after all phases of the development process, including but not limited to: mass grading, rough grading, construction of street and landscaping improvements, and construction of dwelling units. 24. Condition No. 72 - (Transition Lots) In partial satisfaction of Condition No. 72 of the Resolution, the Developer agrees to submit a list of proposed lots indicating whether the structure will be located on fill, cut, or a transition between the two situations prior to approval of each building permit for the proj ect. 25. Condition No. 73 - (liability) In partial satisfaction of Condition No. 73 of the Resolution, the Developer acknowledges and agrees to defend indemnify and hold harmless the city from any claims or liability from erosion, siltation or increase in flow of drainage resulting from this proj ect. 26. Condition No. 74 - (Grading) In partial satisfaction of Condition No. 74 of the Resolution, the Developer acknowledges and agrees that a storm drain systems that collects water from private property shall be designated private on grading and drainage and/or improvement 8 2-139 plans to the point of connection with a public system or to the point at which the storm water that is collected from public street right-of-way, public park or open space areas is first introduced into the system. Downstream from that point, the 5tO= drain system shall be public. An encroachment permit shall be processed for approval by the City for private storm drains within the public right-of-way or within C.F.D. maintained open space lots. 27. Condition No. 86 - (Water) In partial satisfaction of Condition No. 86 of the Resolution, the Developer agrees to construct any potable or recycled water system facilities outside of a particular phase area as identified in the PFFP, which are necessary to provide adequate water service to the particular phase area, or as otherwise agreed between the Applicant and Otay Water District. 28. Condition No. 90 - (Withhold Building Permits and Hold Harmless) In partial satisfaction of Condition No. 90 of the Resolution, the Developer understands and agrees that the performance of Developer's obligations hereunder is required for the health and safety of the residents of its Project. Therefore Developer agrees: a. That the City may withhold building permits for the subject subdivision if any one of the following occur: 1. Regional development threshold limits set by the East Chula Vista Transportation Phasing Plan, as amended from time to time, have been reached or, in order to have the Proj ect comply with the Growth Management Program, as may be amended from time to time. 11. Traffic volumes, levels of service, public utilities and/or services exceed the adopted Cit)' threshold standards in the then effective Growth Management Ordinance. iii. The required public facilities, as identified in the PFFP or as amended or otherwise conditioned have not been completed or constructed to the satisfaction of the City. The developer may propose changes in the timing and sequencing of development and the construction of improvements affected. In such case, the PFFP may be amended as approved by the City's Director of Planning and Building and the City Engineer. b. To defend, indemnify and hold harmless the City and its agents, officers and employees, from any claim, action or proceeding against "the City, or its agents, officers or employees, to attack, set aside, void or annul any approval by the City, including approval by its Planning Commission, City Councilor any approval by its agents, officers, or employees with regard to this subdivision pursuant to Section 66499.37 of the State Map Act provided the City promptly notifies the subdivider of any claim, action or proceeding and on the further condition that the City fully cooperates in the defense. 9 2-140 c. To ensure that all franchised cable television companies ("Cable Company") are pennitted equal opportunity to place conduit and provide cable television service to each lot within the subdivision. Developer agrees that the City of ChuIa Vista may grant access to cable companies franchised by the City of Chula Vista to place conduit within the City's easement situated within the Project. Developer shall restrict access to the conduit to only those franchised cable television companies who are, and remain in compliance with, all other rules, regulations, ordinances and procedures regulating and affecting the operation of cable television companies as same may have been, or may from time to time be issued by the City of Chula Vista. d. That the City may withhold the issuance of building pennits for the Project, should the Developer be determined by the City to be in breach of any of the t=s of the Tentative Map Conditions or any Supplemental Agreement. The City shall provide the Developer of notice of such detenniriation and allow the Developer reasonable time to cure said breach. e. To hold the City harmless from any liability for erosion, siltation or increase flow of drainage resulting from this project. 29. Condition No. 92 - (Congestion Management Program). In satisfaction of Condition No. 92 of the Resolution, the Developer agrees: a. To participate, on a fair share basis, in any deficiency plan or financial program adopted by SANDAG to comply with the Congestion Management Program (CMP) and b. To not protest formation of any future regional impact fee program or facilities benefit district to finance the construction of regional facilities. This agreement to not protest shall not be deemed a waiver of the right to challenge the amount of any assessment, which may be imposed due to these new improvements and shall not interfere with the right of any person to vote in a secret ballot election. 30. Condition No. 93 - (Previous Agreements). In satisfaction of Condition No. 93 of the Resolution, the Developer agrees to comply with all previous agreements as they pertain to this tentative map including the Agreement for Monitoring Building Pennits, Resolution No. 2003-166, dated April 15, 2003; Indemnification agreement between the City ofChula Vista and NNP-Trimark, Resolution No. 2000-483, dated December 19, 2000; and the Annexation Agreement, Resolution No.2000-481, dated December 19, 2000, Concerning the Conservation and Biological Mitigation Program for the Implementation of the San Miguel Ranch Sectional Planning Area Plan and Tentative Tract Map by and between City, Agencies and NNP- Trimark. 31. Condition No. 94 - (Street Sweeping). In partial satisfaction of Condition No. 94 of the Resolution, the Developer agrees to contract with the City's current street sweeping franchisee, or other server approved by the City Engineer to provide street sweeping for each phase of development on a frequency and level of service comparable to that provided for similar areas of the City. The developer shall cause street sweeping to commence immediately after the 10 2-141 final residence, in each phase, is occupied and shall continue sweeping until such time that the City has accepted the street or 60 days after the completion of all punch list items, whichever is shorter. The developer further agrees to provide the City Special Operations Manager with a copy of the memo requesting street sweeping service which memo shall include a map of areas to be swept and the date the sweeping will begin. 32. Condition No. 95 - (Fiscal Impact). In partial satisfaction of Condition No. 95 of the Resolution, the Developer agrees to the following: a. To maintain at all times a minimum balance of $10,000 in the annual fiscal review fund. The first annual review shall be for the year 2001 and continue through year 2015. At any time, should the annual fiscal review fund balance be less than $10,000, and should Applicant fail to replenish such balance within 30 days of City's demand for replenishment of the fund to the minimum required balance, City shall have the right to withhold building permits for the Proj ect; and b. To acknowledges and agree that Applicant shall be responsible through the year 2015 for paying for the fiscal deficit identified by the annual fiscal review to ensure that all City services provided to the Project including direct and indirect costs, as well as capital and operating costs shall be covered by Proj ect revenues and Proj ect exactions. Applicant shall, prior to approval of the first Final Map within the Project, and subject to the approval of the City, establish a mechanism to satisfy Applicant's responsibility for payment of the Project's fiscal deficit, such as the establishment of a reserve fund, payment of a one time fee, a fee to be paid with each building permit for the Project, the establishment of a community facilities district or other acceptable methods. 33. Condition No. 99 - (Maintenance District) In partial satisfaction of Condition No. 99 of the Resolution, the Developer agrees to not protest formation or inclusion in a maintenance district or zone for the maintenance of landscaped medians and parkways along streets, and scenic corridors within or adjacent to the Project. This agreement not to protest shall not be deemed a waiver of the right to challenge the amount of any assessment which may be imposed due to the addition of these new improvements and shall not interfere with the right of any person to vote in a secret ballot election. 34. Condition No. 100 - (L&I) In partial satisfaction of Condition No. 100 of the Resolution, the Developer agrees to ensure that the HOA will maintain all open space lots, medians, and parkways in perpetuity. 35. Condition No. 103 - (DG Walkways free from Obstacles) - In partial satisfaction of Condition No. 103 of the Resolution, the Developer hereby acknowledges and agrees that there shall be no vertical obstacles or any obstructions such as public utility vaults, boxes, etc. placed within the decomposed granite (D. G.) walkways within the project. In the event of any such obstruction placed within the walkways, Developer agrees to immediately remove such obstructions, upon request of the City. 11 2-142 36. Condition No. 104 - (Special Tax and Assessment Disclosure form) - In satisfaction of Condition No. 104 of the Resolution, the Developer hereby acknowledges and agrees that prior to receiving first model home building permit, the developer shall subruit all Special Tax and Assessment disclosure forms for each model size or EDU for the approval of the City Engineer. The Developer also agrees to provide disclosure form to purchaser of each unit. 37. Condition No. 107 - (formation of maintenance district) - In satisfaction of Condition No. 107 of the Resolution, the Developer hereby acknowledges and agrees to not protest formation of a district for the maintenance of City drainage facilities, or any portion thereof, within the Sunnyside Basin. This agreement not to protest shall not be deemed a waiver of the right to challenge the amount of any assessment which may be imposed due to the addition of these new improvements and shall not interfere with the right of any person to vote in a secret ballot election. 38. Condition No. 110 - (City Wide Park Master Plan) - In partial satisfaction of Condition No. 110 of the Resolution, the Developer hereby acknowledges and agrees to comply with the provisions of said Plan when adopted as it affects facility and other related requirements for the San Miguel Ranch community park. . 39. Condition No. 119 - (Community Park site) - In partial satisfaction of Condition No. 119 of the Resolution, the Developer agrees to install below grade utilities and future points of connection to the boundaries of the Community Park site (Lots CP-A and B) to the satisfaction of the City Engineer and the Director of Planning and Building concurrently with the installation of below grade utilities for any portion of Planning Areas H or I, whichever occurs first. 40. Condition No. 122 (park Development and Acquisition Fee). In partial satisfaction of Condition No. 122 of the Resolution, the Developer hereby acknowledges and agrees that prior to the approval of each Final Map within the Project which allows construction of any dwelling unit, the Developer shall pay to the City the development portion of the Park Development Fee (PAD fee) due for the dwelling unit count of the respective Final Map. The principal funds shall accumulate to the total amount of the park development fee due for the Project as established by the PFFP. 41. Condition No. 152 (Landscape plans) In partial satisfaction of Condition No. 152 of the Resolution, the Developer has bonded for and agrees to install.1andscape planting and irrigation improvements for lots (L-A, L-B, L-C, Lot L-E and L-F) as referenced on Exhibit "B". 42. Condition No. 170 (Fire Management) In partial satisfaction of Condition No. 170 of the Resolution, the Developer agrees to provide the Initial Cycle of fire management! brush clearance and install structural fire prevention measures within lots adjacent to natural open space areas subject to approval by the Fire Marshal and Director of Planning and Building. 43. Condition No. 171 (Fire Hydrants and Fire Access). In partial satisfaction of Condition No. 171 of the Resolution, the Developer agrees to provide fire hydrants every 500 ft. 12 2-143 for single family residential units and every 300 ft. for multi-family residential units. Developer further agrees to comply with the City Of Chula Vista Fire Department Standard Operating Guidelines (OPS:2916, as amended from time to time) requiring that all fire hydrants be operable prior to delivery of combustible building materials, and a minimum 20' wide, all-weather fire access roads be provided. 44. Condition No. 172 (Sprinkler Systems). In partial satisfaction of Condition No. 172 of the Resolution, the Developer agrees to provide sprinkler systems in all homes in Planning Area "L" that are easterly of the 1000' centerline distance of Street Camino Mojave, as measured from the cross-street of Avenida Benviana (lots 33 through 55 & lots 57 through 69). 45. Condition No. 173 -<Sprinkler Systems on Flag Lots). In partial satisfaction of Condition No. 173 of the Resolution, the Developer agrees to provide sprinkler systems in all homes that are on flag lots where the setback distance is greater than 150' as measured from the nearest curb face to the furthers point of the dwelling. 46. Condition No. 174 (Grading Ordinance). In partial satisfaction of Condition No. 174 of the Resolution, the Developer agrees to comply with all applicable sections of the Chula Vista Municipal Code including Chapter 15.04 "Grading Ordinance" as amended. Preparation of the Final Map and all plans shall be in accordance with the provisions of the Subdivision Map Act and the City of Chula Vista Subdivision Ordinance and Subdivision Manual. 47. Condition No. 175 (Underground Utilities). In partial satisfaction of Condition No. 175 of the Resolution, the Developer agrees to underground all utilities within the subdivision in accordance with Municipal Code requirements, excepting those utilities owned and operated by SDG&E located within E-l and B-2, which may be relocated per the requirements of SDG&E, to the satisfaction of SDG&E and the City Engineer. 48. Condition No. 176 (Fees). In partial satisfaction of Condition No. 176 of the Resolution, the Developer agrees to pay all applicable fees in accordance with the Municipal Code and Council Policy, including, but not limited to, the following: Prior to issuance of each building permit: a. The Transportation and Public Facilities Development Impact Fees. b. Signal Participation Fees. c. All applicable sewer fees, including but not limited to sewer connection fees. e. Proctor Valley Trunk Sewer Reimbursement District Fee. f. Frisbie Trunk Fee. g. Fiscal Operation Deficit as detenmned by the City Manager (see Condition No. 95) Prior to each Final Map approval: h. Park Acquisition and Development Fee. 13 2-144 1. Spring Valley Sanitation District Trunk Fee. The amount of said fees shall be those in effect at the time of approval of final maps or issuance of building permits as applicable. 49. Condition No. 177 (Federal, State and Local Regulations) In partial satisfaction of Condition No. 177 of the Resolution, the Developer agrees to comply with all relevant Federal, State, and Local regulations, including the Clean Water Act. The developer shall be responsible for providing all required testing and documentation to demonstrate said compliance as required by the City Engineer. . SO. Condition No. 178 (Noise Levels) In partial satisfaction of Condition No. 178 of the Resolution, the Developer agrees to design all dwelling units to preclude interior noise levels over 45 dBA and shield all exterior private open space to limit noise exposure to 65 dBA. 51. Condition No. 179 (NPDES) In partial satisfaction of Condition No. 179 of the Resolution, the Developer agrees to comply with all applicable regulations established by the United States Environmental Protection Agency (USEPA) as set forth in the National Pollutant Discharge Elimination System (N.P.D.E.S.) permit requirements for urban runoff and storm water discharge and any regulations adopted by the City of Chula Vista pursuant to the N.P.D.E.S. regulations or requirements. Further, the applicant shall file notice of intent with the State Water Resources Control Board to obtain coverage under the N.P.D.E.S. General Permit for Storm Water Discharges Associated with Construction Activity and shall implement a Storm Water Pollution Prevention Plan (SWPPP) concurrent with the commencement of grading activities. The SWPPP shall include both construction and post construction pollution prevention and pollution control measures and shall identifY funding mechanisms for post construction control measures. 52. Condition No. 180 (Notice of Special Tax Disclosure). In partial satisfaction of Condition No. 180 of the Resolution, the Developer agrees to ensure that prospective purchasers sign a "Notice of Special Taxes and Assessments" pursuant to Municipal Code Section 5.46.020 regarding projected taxes and assessments. Submit the disclosure form for approval by the City Engineer prior to Final "B" Map approval. 53. Condition No. 181 (Natural Channels in Open Space). In partial satisfaction of Condition No. 181 of the Resolution, the Developer shall comply with Council Policy No. 522- 02 regarding maintenance of natural channels within open spaces and to repair erosion down stream of the project at the request of the City Engineer. 54. Condition No. 182 (Growth Management). In partial satisfaction of Condition No. 182 of the Resolution, the Developer agrees to comply with Chapter 19.09 of the Chula Vista Municipal Code (Growth Management) as may be amended from time to time by the City. Said chapter includes but is not limited to: threshold standards (19.09.04), public facilities finance plan implementation (19.09.090), and public facilities finance plan amendment procedures (19.09.100). 14 2-145 55. Condition No. 183 (Public Facilities) In partial satisfaction of Condition No. 183 of the Resolution, the Developer agrees to install public facilities in accordance with the San Miguel Ranch Public Facilities Finance Plan as may be amended ITom time to time, or as required by the City Engineer to meet threshold standards adopted by the City of Chula Vista. The City Engineer and Director of Planning and Building may, at their discretion, modify the sequence of improvement construction should conditions change to warrant such a revision. The Developer shall construct the public improvements and provide security satisfactory to the City Engineer. . 56. Condition No. 184 (SPA & PFFP Phasing Plan) In satisfaction of Condition No. 184 of the Resolution, the Developer agrees to develop the Project in accordance with the approved SPA and PFFP phasing plan. If the applicant proposes to modify this approved phasing plan, the applicant shall submit to the City a revised phasing plan for review and approval prior to approval of each Final Map. The PFFP and the map conditions shall be revised where necessary to reflect the revised phasing plan. 57. Condition No. 185 (Phasing) In satisfaction of Condition No. 185 of the Resolution, the Developer agrees that if phasing is proposed within an individual map or through multiple final maps, the developer shall submit and obtain approval for a development phasing plan by the City Engineer and Director of Planning and Building prior to approval of any Final Map. Improvements, facilities and dedications to be provided with each phase or unit of development shall be as determined by the City Engineer and Director of Planning and Building. The City reserves the right to' require said improvements, facilities and/or dedications as necessary to provide adequate circulation and to meet the requirements of police and fire departments. The City Engineer and Director of Planning and Building may, at their discretion, modify the sequence of improvement construction should conditions change to warrant such a revision. The developer agrees that the City Engineer may change the timing of construction of the public facilities. 58. Condition No. 186 - (Public Facility Financing Plan). In partial satisfaction of Condition No. 186 of the Resolution, the Developer agrees that the Public Facility Finance Plan or revisions thereto shall be adhered to for the SPA and tentative map with improvements installed in accordance with said plan or as required to meet threshold standards adopted by the City of Chula Vista. The PFFP identifies a facility phasing plan based upon a set of assumptions concerning the location and rate of development within and outside of the project area. Throughout the build-out of San Miguel Ranch, actual development may differ ITom the assumptions contained in the PFFP. Neither the PFFP nor any other document grant the Developer an entitlement to develop as assumed in the PFFP, or limit the facility improvement requirements to those identified in the PFFP. Compliance with the City of Chula Vista threshold standards, based on actual development patterns and updated forecasts in reliance on changing entitlements and market conditions, shall govern SPA development patterns and the facility improvement requirements to serve such development. In addition, the sequence in which improvements are constructed shall correspond to any future Eastern Chula Vista Transportation Phasing Plan or amendment to the Growth Management Program and Ordinance adopted by the 15 2-146 City. The City Engineer may modify the sequence of improvement construction should conditions change to warrant such a revision. The San Miguel Ranch PFFP, at the Developer's expense and subject to a Reimbursement Agreement, shall be updated, upon request of the City Engineer, to reflect said revisions including the nature, sizing, extent and timing for the construction of public facilities caused by San Miguel Ranch, and shall become a condition for all subsequent San Miguel Ranch entitlements, including tentative and final maps. 59. Condition No. 187 - (Withhold Building Permits). In partial satisfaction of Condition No. 187 of the Resolution, the Developer agrees and acknowledges that the City may withhold building permits for any of the phases of development identified in the Public Facilities Financing Plan (PFFP) if the required public facilities, as identified in the PFPP or as amended or otherwise conditioned, have not been completed or constructed to the satisfaction of the Director of Planning and Building. The property owner may propose changes in the timing and sequencing of the development and the construction of improvements affected in such cases, the PFFP may require amendment as approved by the Director of Planning and Building. 60. Condition No. 188 (Growth Management Ordinance). In partial satisfaction of Condition No. 188 of the Resolution, the Developer acknowledges and agrees that the City is presently in the process of amending its Growth Management Ordinance to establish provisions necessary to ensure compliance with adopted thresholds standards (particularly traffic) prior to the construction of State Route 125 and that the Developer hereby agrees to comply with adopted amendments to the Growth Management Ordinance. Said provisions will require the demonstration, to the satisfaction of the City Engineer, of sufficient street system capacity to accommodate a proposed development as a prerequisite to Final Map approval for that development. 61. Condition No. 189 (San Miguel Water Conservation Plan). In partial satisfaction of Condition No. 189 of the Resolution, the Developer agrees to revise, at its own cost and expense, the San Miguel Ranch Water Conservation Plan ("WCP") as necessary to incorporate new water conservation measures, and/or to participate in pilot projects to evaluate new measures, such as gray water systems, as adopted by the City Council, and comply and remain in compliance with the WCP. The Developer further agrees to modify the WCP to incorporate those new measures, which are in effect at the time, prior to or concurrent with each Final Map approval. The new measures shall apply to development within all future Final Map areas, but shall not be retroactive to those areas, which received Final Map approval prior to effect of the subject new measures. Developer hereby waives any claim that the adoption of a revised Water Conservation Plan or Air Quality Plan constitutes an improper subsequent imposition of the condition. 62. Condition No. 190 - (Declaration of Covenants, Codes and Restrictions). In partial satisfaction of Condition No. 190 of the Resolution, The Developer hereby agrees and acknowledges that the MHOA's maintenance of public open space, trails, etc. may expose the City to liability. Developer agrees to establish a MHOA that will defend, indemnify, and hold the City harmless from any negligence of the MHOA in the maintenance of such areas. 16 2-147 63. Condition No. 191 (Declaration of Covenants, Codes and Restrictions). In partial satisfaction of Condition No. 191 of the Resolution, the Developer agrees that the Declaration of Covenants, Conditions and Restrictions (CC & R's) shall include provisions establishing a Home Owners Association (HOA) to assure maintenance of all open space areas and slopes which are not maintained by other means, streets, driveways, drainage and sewage systems which are private, and landscape and irrigation, walls and public street improvements which are not maintained by other means, all subject to approval of the City. The City of Chula Vista shall be named as party to said Declaration authorizing the City to enforce the terms and conditions ofthe Declaration in the same manner as any owner within the subdivision. 64. Condition No. 193 (Submittal of Declaration of Covenants, Codes and Restrictions). In partial satisfaction of Condition No. 193 of the Resolution, prior to the approval of each Final Map, the Developer agrees to submit and obtain the approval of the City Engineer, Director of Planning and Building the Declaration of Covenants, Conditions, and Restrictions (CC&R's). Developer further agrees that amended CC&R's addressing future phases to be annexed to the Master HOA shall be submitted and Developer shall obtain the approval of said CC &R's. The CC&R's shall include the following obligations of the Master Homeowners Association: a. Maintain all the facilities and improvements within the open space lots offered for dedication to the City until acceptance of the open space lots for maintenance by the open space/Community Facilities District. b. A requirement that the MHOA shall maintain comprehensive general liability insurance against liability incident to ownership or use of the following areas: 1 open space lots offered for dedication to the City until acceptance by the City, or until any such offer of dedication is extinguished by it own terms. 11 all open space lots that shall remain private, III other Master Association property. c. Before any revisions to provisions of the CC&R's that may particularly affect the City can become effective, said revisions shall be approved by the City. The MHOA shall not seek approval uom the City of said revisions without the prior consent of 100 percent of the holders of first mortgages or property owners within the MHOA. d. The MHOA shall defend, indemnify, and hold the City harmless uom any claims, demands, causes of action liability or loss related to or arising uom the maintenance activities of the MHOA. e. The MHOA shall not seek to be released by the City uom the maintenance obligations described herein without the prior consent of the City and 100 percent of the holders 17 2-148 of first mortgages or property owners within the MHOA. f. The MHOA is required to procure and maintain a policy of comprehensive general liability insurance written on a per occurrence basis in an amount not less than one million dollars combined single limit. The policy shall be acceptable to the City and name the City as additionally insured. g. The CC&R's shall incorporate restrictions for each lot adjoining open space lots containing walls maintained by the open space district to ensure that the property owners know that the walls may not be modified or supplemented nor may they encroach on City property. h. The CC&R's shall include provisions assuring MHOA membership in an advance notice such as the USA Dig Alert Service in perpetuity. i. The CC&R's shan include provisions that provide City the right, but not the obligation, to enforce the CC&R provisions same as any owner in the Project. j. The CC&R provisions setting forth restrictions in these Tentative map conditions may not be revised at any time without prior written permission of the City. k. The MHOA shan not dedicate or convey for public streets, land used for private streets without approval of 100% of all the HOA members or holder of first mortgages within the MHOA. (Engineering, Parks, Planning, Public Works) 1. Provide within the master CC&R's for the maintenance in perpetuity of all stabilized decomposed granite (D.G.) areas by a Home Owner's Association. m. Maintenance of all facilities and improvements within open space areas covered by . homeowners associations. 65. Satisfaction of Conditions. City agrees that the execution of this Agreement constitutes satisfaction or partial satisfaction of Developer's obligation of Conditions 1,2,3,4,5, 6,10,11,12,13,15,17,18,24,27,28,30,31,54,55,57,67,72, 73, 74, 86, 90, 92, 93,94,95, 99,100,103,104,107,110,119,122,152,170,171,172,173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191 and 193 of the Resolution. Developer further understands and agrees that the some of the provisions herein may be required to be performed or accomplished prior to the approval of other final maps for the Project, as may be appropriate. 66. Unfulfilled Conditions. Developer hereby agrees, unless otherwise conditioned, that Developer shall comply with all unfulfilled conditions of approval of the Tentative Map, established by Resolution No. 2000-068 and shall remain in compliance with and implement the terms, conditions and provisions therein. 18 2-149 67. Recording. Tbis Agreement, or an abstract hereof shall be recorded simultaneously with the recordation of the Final Map. 68. Building Permits. Developer and Guest Builders acknowledge and agree that the City may withhold the issuance of building permits for the Project, should the Developer be determined by the City to be in breach of any of the terms of tills Agreement. The City shall provide the Developer of notice of such determination and allow the Developer with reasonable time to cure said breach. 69. Assignablity. Upon request of the developer, any or all on-site duties and obligations set forth herein may be assigned to developer's successor in interest if the City manager in bis/her sole discretion determines that such an assignment will not adversely affect the City's interest. The City Manager in his/her sole discretion may, if such assignment is requested, permit a substitution of securities by the successor in interest in place and stead of the original securities described herein so long as such substituted securities meet the criteria for security as set forth elsewhere in tbis agreement. Such assignment will be in a form approved by the City Attorney. 70. Delay in Performance. City agrees that should Developer be delayed in performing any obligations under this Agreement primarily as a result of a "Permitted Excuse" (as hereunder defined). Developer shall be allowed a reasonable extension of time to perform said obligation, and such reasonable time shall be determined by the City, but in no circumstances shall be less than the length of the delay resulting from the Permitted Excuse. As used herein, the term "Permitted Excuse" shall mean any of the following: (i) the City's actions, omissions or inaction which result in a delay of performaI1ce by Developer or (ii) labor disputes, acts of God, war, riots, insurrections, civil commotions, moratorium (other that those imposed by the City pursuant to Growth Management Ordinance, as may be amended from time to time) litigation (other than any litigation brought by or on behalf of Developer or Developer's successors-in-interests, assignees or agents against the City) inability to obtain labor or materials or reasonable substitutes for either, fire, unusual delay in transportation, adverse weather, conditions not normally anticipated in a project of tills type or casualties beyond the reasonable control of Developer, Permitted Excuse shall not include delays due to a party's own negligence or financial inability to perform. 71. Miscellaneous. a. Notices. Unless otherwise provided in tills Agreement or by law, any and all notices required or permitted by tills Agreement or by law to be served on or delivered to either party shall be in writing and shall be deemed duly served, delivered, and received when personally delivered to the party to whom it is directed, or in lieu thereof, when three (3) business days have elapsed following deposit in the U.S. mail, certified or registered mail, return receipt requested, first-class postage prepaid, addressed to the address indicated in tills Agreement. A party may change such address for the purpose of tills paragraph by giving written notice of such change to the other party. 19 2-150 CITY OF CHULA VISTA 276 Fourth Avenue Chula Vista, CA. 91910 Attn: City Engineer Developer: PROCTOR VALLEY WEST PARTNERS, 85 Argonaut, Suite 205 Aliso Viejo, CA. 92656 Phone (949) 465-1655 Attn.: Stephen E. Hester, Executive Vice President A party may change such address for the purpose of this paragraph by giving written notice of such change to the other party in the manner provided in this paragraph. b. Captions. Captions in this Agreement are inserted for convenience of reference and do not define, describe or limit the scope or intent of this Agreement or any of its t=s. c. Entire Agreement. This Agreement contains the entire agreement between the parties regarding the subj ect matter hereof. Any prior oral or written representations, agreements, understandings, and/or statements shall be of no force and effect. This Agreement is not intended to supersede or amend any other agreement between the parties unless expressly noted. d. Preparation of Agreement. No inference, assumption or presumption shall be drawn ITom the fact that a party or his attorney prepared and/or drafted this Agreement. It shall be conclusively presumed that both parties participated equally in the preparation and/or drafting this Agreement. e. Recitals; Attachments. Any recitals set forth above and exhibits attached hereto are incorporated by reference into this Agreement. f. Attorneys' Fees. If either party commences litigation for the judicial interpretation, reformation, enforcement or rescission hereof, the prevailing party will be entitled to a judgment against the other for an amount equal to reaSonable attorney's fees and conrt costs incurred. The "prevailing party" shall be deemed to be the party who is awarded substantially the relief sought. [NEXTPAGE IS PAGE ONE OF TWO SIGNATURE PAGES] 20 2-151 [PAGE ONE OF TWO SIGNATURE PAGES TO SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR SAN MIGUEL RANCH PLANNING AREA "L" FINAL MAP] IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first hereinabove set forth. CITY OF CHULA VISTA Stephen C. Padilla Mayor of the City of Chula Vista Att~st: Susan Bigelow City Clerk Ann Moore City Attorney [NEXT PAGE IS PAGE TWO OF SIGNATURE PAGES] 21 2-152 [pAGE TWO OF TWO SIGNATURE PAGES TO SUPPLEMENTAL SUBDMSION IMPROVEMENT AGREEMENT FOR SAN MIGUEL RANCH PLANNING AREA "J-2" FINAL MAP] DEVELOPERS/OWNERS: PROCTOR V ALLEY WEST PARTNERS, LLC, a Delaware Limited Liability Company By: Trimark Pacific - Montecito, LLC a California limited liability company, Managing Member By : TPH, LLC, a California limited liability company, Member Manager By: Trimark Ventures, Inc., a California corporation, Mem% By: S~~ dJe0~ Executive Vice President . (Attach Notary Acknowledgment) 22 2-153 CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT , ==r-, ~ I I I State of California } SSe Countyof San Die9D before me. S2JMES NMar ~b(10 fJtsw Name andlltle cl Officer (8. "' "Jane DOI,NolaryPu ., Name{s)olSlgner(s) ~ personally known to me D proved to me on the basis of satisfactory evidence I' On I - II - 0 (p D.. S personally appeared ~1tile.fL_ ~----------.-._-- ANICIA SOARES _ ~-. Commission # 1584606 ~. ~ -. Notary Public. COIJfomla ~ ~. SOn DIego County - _ _ _ ~:,,:",~~~3:~ to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person!s) acted, executed the instrument. OPTIONAL Though the information below is nor required by law; it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document litle or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: D Individuai D Corporate Officer -litle(s): D Partner - D Limited D General D Attorney-in-Fact D Trustee D Guardian or Conservator D Other: . Top of thumb here Signer is Representing: ~ CI 1999 Natiomu Notary Assccia.tlCIn . 93SC DI SotoAve., P.O. Box 2402' CnalSwortt1, CA 91313-2402' www.Na"cnaINotary.org Prod. Nc.S907 Reorder: Call Tc~-Free '-800-878-6827 2-154 ~ i ~ I ~ ~ ~ ~ ~ I I I Exhibit "A" Legal Description of Property Being a subdivision oflot 1, and a portion of Lot "N" of Chula Vista Tract No. 99-04, San Miguel Ranch Phase 3 "A" Map No. 1 in the City of Chula Vista, County of San Diego, state of California, according to Map thereof No. 14853, filed in the Office of the County Recorder of San Diego County on August 10, 2004. 23 2-155 EXHIBIT "B" SECURITY CHULA VISTA TRACT NO. 99-04 SUPPLEMENTAL SUBDMSION IMPROVEMENT AGREEMENT FOR SAN MIGUEL RANCH PLANNING AREA "L" FINAL MAP) \\L" $856,645.78 SU5018652 C:\Docmnents and Settings\rimat"-Vly Docmnentslprojects related\San Miguel Ranch Phase III\final draft SSlA of L.doc 24 2-156 RESOLUTION NO.2006- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE GRANT OF EASEMENTS AND MAINTENANCE AGREEMENTS FOR CHULA VISTA TRACT NO. 99-04, SAN MIGUEL RANCH, PHASE III, PLANNING AREAS "J-l, J-2, K, AND L", BETWEEN PROCTOR VALLEY WEST PARTNERS, LLC, AND CITY, REGARDING MAINTENANCE OF PRlV A TE OPEN SPACE AND FACILITIES AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENTS. WHEREAS, the Grant of Easements and Maintenance Agreements for San Miguel Ranch Phase 3 Planning area "J-l, J-2, K, and L", sets forth the developer's obligation to maintain landscaping in the public right of way; and WHEREAS, the agreements will be assigned to the homeowner's association (HOA) after the landscaping has been established and turned over to the HOA to maintain; and NOW, THEREFORE, BE IT RESOLVED the City Council of the City ofChula Vista does hereby approve the Grant of Easements and Maintenance Agreements for the grant of easements and maintenance for Chula Vista Tract No. 99-04 San Miguel Ranch Phase 3 Planning areas "J-l, J-2, K, and L", copies of which shall be kept on file in the office of the City Clerk. BE IT FURTHER RESOLVED that the Mayor of the City ofChula Vista is hereby authorized to execute said Agreements on behalf of the City of Chula Vista. Presented by Approved as to form by /) / -:J /1/ .' . :--;t tint //IZ.// ./Anri'Moore --.... City Attorney Sohaib Al-Agha City Engineer , v'. H:/ Attorney/Final Resos/2006/1 24 06/Grants of easements for San Miguel Ranch B Maps Phase III 2-157 THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIL Ann Moore City Attorney Dated: /In!Ub Grant of Easements, License and Maintenance Agreement between the City ofChula Vista and Proctor Valley West Partners, LLC for Chula Vista Tract No. 99-04 San Miguel Ranch Planning Area "J-1" - Montecito 2-158 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City Clerk City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 No transfer tax is due as this is a conveyance to a public agency for less than a fee interest for which no cash consideration has been paid or received. (ABOVE SPACE FOR RECORDER'S USE) GRANT OF EASEMENTS, LICENSE AND MAINTENANCE AGREEMENT CHULA VISTA TRACT NO. 99-04 SAN MIGUEL RANCH PLANNING AREA "J-l" - MONTECITO (DEDICATED EASEMENTS) This GRANT OF EASEMENTS, LICENSE AND MAINTENANCE AGREEMENT ("Agreement") is made as ofthis _ day of ,200_, by and between the CITY OF CHULA VISTA, a municipal corporation ("City"), and PROCTOR V ALLEY WEST PARTNERS, LLC, a Delaware limited liability company ("PVWP"). RECITALS A. This Agreement concerns and affects certain improvements with portions of the real property located in Chula Vista, California, more particularly described in Exhibit" A" attached hereto and incorporated herein ("Property"). The Property is part of a planned residential development proj ect / commonly known as "San Miguel Ranch" , Chula Vista Tract No. 99-04, being the subject of the City Council Resolution No. 2001-261 (the "City Resolution"). Forpurposes of this Agreement, the term "Project" shall refer to the overall SanMiguel Ranch project, including, butnotlirnited to the "Property." B. PVWP is the owner of the Property and the Declarant by assignment under that certain Master Declaration of Restrictions For San Miguel Ranch Master Association filed for record in the Official Records of SanDie go. County, California (the "Master Declaration"). The Master Declaration provides for SAN MIGUEL RANCH MASTER ASSOCIATION, a CaliforniaNonprofit Mutual Benefit Corporation ("MHOA") to maintain certain areas in the Project. Furthermore, one or more sub- associations maybe formed ("SHOA") for a particularproject(s) within San Miguel Ranch Planned 7/22/05 -1- 065550-0011284542.1 2-159 Development, the purposes of which would include the maintenance of certain amenities within the project over which the SHOA has jurisdiction. C. The Property is or will become covered by that the certain final map(s) (the "Final Maps") described on Exhibit "A" attached hereto and referenced in the title to this Agreement. D. In order for PVWP to obtain the Final Maps and for the City to have assurance that the maintenance of certain areas within the Project would be provided for, the City and PVWP entered into a Supplemental Subdivision Improvement Agreement pursuant to the City Resolution, in which PVWP agreed that maintenance of such areas shall be accomplished by the creation of a home owners association. The Parcels shown on Exhibit "B" attached hereto describe those particular areas which were dedicated to the public on one or more of the Final Maps but which include landscaping and drainage improvements to be maintained by the MHOA. The public areas to be maintained by the MHOA are collectively referred to as the "MHOA Maintained Public Areas." E. The City desires to grant to PVWP easements for landscape maintenance purposes upon, over and across the MHOA Maintained Public Areas as shown on Exhibit "B," in order to facilitate the obligations ofPVWP as setforthin Supplemental Subdivision Improvement Agreements, adopted pursuant to the City Resolution. NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties agree as set forth below. 1. Grant of Easements . The City hereby grants to PVWP and its agents, successors and assigns, non-exclusive easements and rights-of-way over and across the MHOA Maintained Public Areas for the purpose of maintaining, repairing and replacing landscaping improvements located thereon. These grants are made without any warranties of any kind, express or implied, other than the warranty stated in Paragraph 14(1) below. 2. Maintenance ObIieations (a) PVWP to Initially Maintain. PVWP hereby covenants and agrees, at its sole cost and expense, to maintain, repair and replace, or cause to be maintained, repaired or / replaced, those improvements within the MHOAMaintained Public Areas which are described on Exhibit" C" attached hereto, at a level equal to or better than the level of maintenance which is acceptable to the Director of Public Works Operations, at his/her discretion and equivalent to City or Community Facilities District maintained right-of-way facilities. For purposes of this Agreement, the term "Maintenance" or "Maintain" shall mean the maintenance, repair, the provision of water and replacement obligations described herein and on Exhibit "C" hereto and shall also include repair and replacement at no cost to the City of any City owned property that is damaged during performance of the maintenance responsibilities pursuant to this Agreement. Exhibit "C" also refers to the maintenance responsibilities of the City. 7n.V05 -2- 065550-0011284542.1 2-160 (b) Transfer to MHOA. UponPVWP transfer of maintenance obligations to the :MHOA, (i) the :MHOA shall become obligated to perform the obligations so transferred, and (ii) subject to the City determining that the requirements of Paragraph 3 below have been satisfied, PVWP shall be released from such obligation. Transfer of maintenance obligations to the :MHOA may be phased (that is, there may be multiple transfers). PVWP represents to City that it intends to, and has the authority to, unilaterally transfer said maintenance obligations either (i) to the :MHOA and that such transfer has been provided for in the Master Declaration, and that such document(s) include the provisions described in Paragraph 3(a)(ii) below, or alternatively (ii) to a new homeowners association (the "New Association") established for maintenance of the open space and thoroughfare median areas in the Property, and that such transfer shall be provided for in the declaration of restrictions (the "New Declaration") for the New Association, and that such document(s) shall include the provisions described in Paragraph 3(a)(ii) below. References below in this Agreement to the "Association" shall include the New Association and "Declaration" shall include the New Declaration ifPVWP elects to form a new homeowners association for the Property. (c) Transfer By MHOA. The:MHOA shall have the right to transfer Maintenance obligations to a sub-association ("SHOA") or to the owner of an apartment project ("Transferee"). Upon the :MHOA's transfer of Maintenance obligations to a Transferee, (i) the Transferee shall become obligated to perform the obligations so transferred, (ii) the MHOA shall retain the right to perform the Maintenance should the Transferee fail to do so, and (iii) the :MHOA shall be released from the obligations so transferred subject to the City determining that the requirements of Paragraph 4 below have been satisfied. Although it is possible that Maintenance obligations might be transferred to an apartment owner, PVWP does not believe it is likely that Maintenance obligations will be transferred to an apartment owner. 3. Assi!!:nment bv PVWP. LLC and Release ofPVWP (a) Assignment. Upon PVWP's transfer of the Maintenance obligations to the MHOA, it is intended by the parties that the MHOA shall perform the Maintenance obligations either itself or by contractors. Such transfer will release PVWP from its obligations only if / all of the following occur: (i) MHOAAccepts Obligation. The MHOAhas unconditionally accepted and assumed all of PVWP's obligations under this Agreement in writing, such assignment provides that the burden of this Agreement remains a covenant running with the land, and the assignee expressly assumes the obligations of PVWP under this Agreement. The assignment shall also have been approved by the appropriate governing bodyofthe MHGA by resolution or similar procedural method and approved as to form and content by the City Attorney. The City shall not unreasonably withhold its consent to such assignment. 7/22/05 -3. 065550-0011284542.1 2-1 61 (ii) MHOA's Master Declaration. The City has confirmed that there have been no modifications to the recorded Master Declaration previously approved by City, to any of the following provisions: the MHOA shall be responsible for the maintenance of the MHOA Maintained Public Areas, the MHOA shall indemnify City for all claims, demands, causes of action, liability or loss related to or arising from the maintenance activities, and the MHOA shall not seek to be released by City from the maintenance obligations of this Agreement, without the prior consent of City and one hundred percent (100%) of the holders of first mortgages or owners of the Property. . (iii) MHOA Insurance. The MHOA procures and formally resolves to maintain at its sole cost and expense, commencing no later than the City's release of all ofPVWP's landscape maintenance bonds, a policy of public liability insurance which at least meets the requirements of Section 5.1 (a) of the Master Declaration which reads as follows: (a) 7fl2/0S General Liability Insurance. The Master Association shall obtain a comprehensive general liability and property damage insurance policy insuring the Master Association and the Owners against liability incident to ownership oruse of the Master Association Property. The limits of such insurance shall not be less than $3 Million covering all claims for death, personal injury and property damage arising out of a single occurrence. The insurer issuing such insurance shall have rating by A.M. Best of "A, Class V" or better with no modified occurrences and as admitted by Best's Insurance Guide. Such insurance shall include the following additional provisions provided they are available on a commercially reasonable basis: v' (i) The City of Chula Vista shall be named as an additionally insured party to such insurance pursuant to the City's requirements the Master Association do so; (ii) The policy shall not contain a cross-suit exclusion clause which would abrogate coverage should litigation ensue between insureds; (iii) The policy shall contain the following severability clause (or language which is substantially the same): "The coverage shall apply separately to each insured except with respect to the limits of liability." -4- 065550-0011 284542.1 2-162 7122/05 This Section 5.1 (a) may not be amended without the written consent of the City Planning Director or City Attorney. The MHOA shall provide the City with a Certificate of Insurance upon procurement of the policy as set forth above. (b) Release. When all conditions precedent in Paragraph 3(a) are fulfilled, PVWP shall be released from its obligations under this Agreement, including its security and insurance requirements. PVWP acknowledges that it has a contractual obligation to perform the terms and conditions of this Agreement until and unless released by the City from this Agreement. At least sixty (60) days prior to such transfer, PVWP shall give a notice to the City of PVWP's intent to transfer its Maintenance obligations herein and provide the City with the appropriate documents listed in Paragraph 3(a). 4. Assi!!nment bv MHOA and Release ofMHOA. (a) Assignment. Upon MHOA's transfer of the Maintenance obligations to a Transferee, it is intended by the parties that the Transferee shall perform the Maintenance obligations either itself or by contractors. Such transfer will release the MHOA from its obligations only if all of the following occur: (i) Transferee Accepts Obli!!ation. The Transferee has unconditionally accepted and assumed all of the MHOA's obligations under this Agreement in writing, such assignment provides that the burden of this Agreement remains a covenant running with the land, and the assignee expressly assumes the obligations of the MHO A under this Agreement. lfthe Transferee is an SHOA, the assignment shall also have been approved by the appropriate governing body of the SHOA by resolution or similar procedural method and approved as to form and content by the City Attorney. The / City shall not unreasonably withhold its consent to such assignment. (ii) SHOA's Declaration ofRestrictions. If the Transferee is an SHOA, the City has reviewed and approved the SHOA's recorded Declaration of Restrictions to confirm that said document contains appropriate maintenance and insurance provisions. (iii) SHOA Insurance. The Transferee procures and formally resolves to Maintain at its sole cost and expense, a policy of public liability insurance which meets the requirements set forth in Paragraph 3 (a) (iii) above. The SHOA shall provide the City with a Certificate of Insurance upon acceptance of the transfer of the Maintenance obligations herein. (b) Release. When all conditions precedent in Paragraph 4(a) are fulfilled, the MHOA shall be released from its obligations under this Agreement, including its security and insurance requirements. At least sixty (60) days prior to such transfer, MHOA shall give notice -5- 065550-0011 284542.1 2-163 to the City of MHO A's intent to transfer its Maintenance obligations herein and provide the City with the appropriate documents listed in Paragraph 4(a). 5. PVWP's Insurance. Until such time as the MHOA has obtained the general liability insurance required by Section 5.1 (a) of the Master Declaration, PVWP agrees to procure and formally resolves to maintain at its sole cost and expense, commencing no later than the date that the landscape architect of record has submitted a letter of substantial conformance pertaining to work being completed to the General Services Department and the General Services Department Director or his designee has deemed the work complete and satisfactory, a policy of public liability insurance that w~uld include, but is not limited to the following: General Liability Insurance. PVWP shall obtain a comprehensive general liability and property damage insurance policy insuring PVWP against liability incident to ownership or use of the Property. The limits of such insurance shall not be less than $3 Million covering all claims for death, personal injury and property damage arising out of a single occurrence. The insurer issuing such insurance shall have rating by A.M. Best "A, Class V" or better with modified occurrences and as admitted by Best's Insurance Guide. Such insurance shall include the following additional provisions provided they are available on a commercially reasonable basis: (i) The CityofChula Vista shall be named as an additionally insured party to such insurance pursuant to the City's requirements PVWP do so; (ii) The policy shall not contain a cross-suit exclusion clause which would abrogate coverage should litigation ensue between insureds and; (iii) The policy shall contain the following severability clause (or language which is substantially the same): "The coverage shall apply separately to each insured except with respect to the limits of liability." / PVWP shall provide the City with a Certificate of Insurance upon procurement of the policy as set forth above. 6. Indemnitv. PVWP shall defend, indemnify and hold harmless the City, its officers, agents and employees, rrom any and all actions, suits, claims, damages to persons or property, costs including attorney's fees, penalties, obligations, errors, omissions, demands, liability, or loss of any sort (herein" claims or liabilities"), that may be asserted or claimed by any person, firm, or entity because of or arising out of or in connection with the use, maintenance, or repair of the MHOA Maintained Public Areas. PVWP shall not have any liability under this section by reason of the Transferee's failure to maintain. 7. Indemnitv If Transferee. The document whereby PVWP transfers a Maintenance obligation to a Transferee shall be signed by both PVWP and the Transferee and shall set forth an express assumption of Maintenance and other obligations hereunder and shall include the following indemnification provision: 7/22/05 -6- 065550-0011284542.1 2-164 Indemnitv. The Transferee shall defend, indemnify, and hold harmless the City, its officers, agents and employees, from any and all actions, suits, claims, damages to persons or property, costs including attorney's fees, penalties, obligations, errors, omissions, demands, liability, or loss of any sort (herein "claims or liabilities"),which result from the Transferee's failure to comply with the requirements of the obligations transferred hereby to Transferee. Transferee shall not have any liability under this Indemnity by reason of another party's failure to maintain. It is specifically intended that the City shall have the right to enforce this Indemnity. This Indemnity may not be amended without the written consent of the City Director ofPlanning and Building or City Attorney. 8. Agreement Binding Upon Any Successive Parties. This Agreement shall be binding upon PVWP and any successive Declarant under the Master Declaration. This Agreement shall be binding upon MHOA and any Transferees upon transfer of maintenance obligations to the MHOA or Transferee, respectively. This Agreement shall inure to the benefit of the successors, assigns and interests of the parties as to any or all of the Property. 9. Agreement Runs With the Land. The burden of the covenants contained in this Agreement ("Burden") is for the benefit of the Property and the City, its successors and assigns, and any successor-in-interest thereto. The City is deemed the beneficiary of such covenants for and in its own right and for the purposes of protecting the interest of the community and other parties, public or private, in whose favor and for whose benefit such covenants running with the land have been provided, without regard to whether the City has been, remained or are owners of any particular land or interest therein. If such covenants are breached, the City shall have the right to exercise all rights and remedies and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breach to which it or any other beneficiaries of this Agreement and the covenants may be entitled. / 10. Governinl! Law. This Agreement shall be governed and construed in accordance with the laws of the State of California. II. Effective Date. The terms and conditions of this Agreement shall be effective as of the date this Agreement is recorded in the Official Records ofthe San Diego County Recorder's Office. 12. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be original and all of which shall constitute one and the same document. 13. Recordine:. The parties shall cause this Agreement to be recorded in the Official Records of the San Diego County Recorder's Office within thirty (30) days after this Agreement has been approved by the City Council. 7/2'1)05 -7- 065550-0011284542.1 2-165 14. Miscellaneous Provisions. (a) Notices. Unless otherwise provided in this Agreement or by law, any and all notices required or permitted by this Agreement or by law to be served on or delivered to either party shall be in writing and shall be deemed duly served, delivered and received when personally delivered to the party to whom it is directed or, in lieu thereof, when three (3) business days have elapsed following deposit in the United States mail, certified orregistered mail, return receipt requested, first-class postage prepaid, addressed to the address indicated in this Agreement. A party may change such address for the purpose of this Paragraph by giving written notice of such change to the other party. If To City: CITY OF OlliLA VISTA Department of Public WorkslEngineering Division 276 Fourth Avenue Chula Vista, CA 91910 Attn: City Engineer If To NNP, LLC: PROCTOR VALLEY WEST PARTNERS, LLC The San Miguel Ranch Company 85 Argonaut, Suite 205 Aliso Viejo, CA 92656 Attn: Mr. Stephen E. Hester (b) Captions. Captions in this Agreement are inserted for convenience of reference and do not define, describe or limit the scope or intent of this Agreement or any of its terms. / (c) Entire Agreement. This Agreement, together with any other written document referred to herein, embody the entire agreement and understanding between the parties regarding the subj ect matter hereof, and any and all prior or contemporaneous oral or written representations, agreements, understandings and/or statements shall be of no force and effect. This Agreement is not intended to supersede or amend any other agreement between the parties unless expressly noted. (d) Recitals; Exhibits. Any recitals set forth above and any attached exhibits are incorporated by reference into this Agreement. (e) Compliance With Laws. In the performance of its obligations under this Agreement, PVWP, its agents and employees, shall comply with any and all applicable federal, state and local rules, regulations, ordinances, policies, permits and approvals. 712V05 -8- 065550-0011284542.1 2-166 (f) Authority of Signatories. Each signatory and party hereto hereby warrants and represents to the other party that it has legal authority and capacity and direction from its principal to enter into this Agreement, and that all resolutions and/or other actions have been taken so as to enable said signatory to enter into this Agreement. (g) Modification. This Agreement may not be modified, terminated or rescinded, in whole or in part, except by written instrument duly executed and acknowledged by the parties hereto, their successors or assigns, and duly recorded in the Official Records of the SanDiego County Recorder's Office. (h) Severability. If any term, covenant or condition of this Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such term, covenant or condition to person or circumstance, shall not be affected thereby and each term, covenant or condition shall be valid and be enforced to the fullest extent permitted by law. (i) Preparation of Agreement. No inference, assumption or presumption shall / be drawn from the fact that a party or its attorney prepared and/or drafted this Agreement. It shall be conclusively presumed that both parties participated equally in the preparation and/or drafting of this Agreement. [REMAINDER OF P AGE INTENTIONALLY LEFT BLANK] 7/22/05 -9- 065550-0011 284542.1 2-167 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first set forth above. "City": CITY OF CHULA VISTA, a municipal corporation By: Stephen C. Padilla, Mayor Attest: Susan Bigelow, City Clerk APPROVED AS TO FORM: By: Ann Moore, City Attorney "PVWP": PROCTOR VALLEY WEST PARTNERS, LLC, a Delaware limited liability company By: Trimark Pacific-Montecito, LLC, a California limited liability company .4 By: TPH LLC, a California limited liability company, Member Manager By: Trimark Ventures, Inc., a California corporation, Its: Mem~~111- By S~~~ Its: 'Tiee Pr86idIJLi!--- Stepbe,n E. Hester Executive Vice President 7/22/05 -10- 065550..0011284542.1 2-168 STATE OF CALIFORNIA ) O { I .} ) ss. COUNTY OF Vo...Y'-y- ) On <C1Z-1lo~ ,2~eforeme,J, WCLnA. V1~~rvj Put bll~ Notary Public in and for said State, personally appeared Me f \..{>L}" , ~ ~ personally known to me (or rrnv~c! tn m" nn tn~ h",i, nfootj~fa6tgr:,' @'. id<Ol1ce) to be the perso!1{s}- whose nam~istare subscribed to the within instrument and acknowledged to me that he/slWiky executed the same in his/herfttIetr authorized capacity..(ies'), and that by hislh~ir signature(.aron the instrument, the person~or the entity upon behalf of which the person(s}acted, executed the instrument. WITNESS my hand and official seal. Signature St- 1Y CvLf----/ '..-. .. --~~~ J. W~RD @ Commllslon # 1412465 Notary Publk: . California Orange County My Comm. E.plres i'fX 30. @ J.WNIO Camr/III-' # 141~466 \ ~~ .AD . ...CMIII........~ .,;' -- - - - -- - - - - -- - (Seal) STATE OF CALIFORNIA ) ) ss. COUNTY OF ) On , 200_, before me, Notary Public in and for said State, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person( s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in hislher/their authorized capacity(ies), and that by hislher/their signature( s) on the instrument, the person( s), or the entity upon behalf of which the person( s) acted, executed the instrument. WITNESS my hand and official seal. Signature (Seal) 7/22/05 -11- 065550-0011284542.1 2-169 EXHIBIT "A" LEGAL DESCRIPTION ALL THAT LAND INCLUSIVE OF CHULA VISTA TRACT NO. 99-04, SAN MIGUEL RANCH PLANNING AREA "J-1", ACCORDING TO MAP THEREOF NO. FILED IN THE OFFICE OF THE SAN DIEGO COUNTY RECORDER ON IN THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA. ffauc/# tZa /;~~~OC5 DAVID w. AMBLER L.S.7322 HUNSAKER & ASSOCIATES SAN DIEGO, INC. PAGE 1 OF 1 :DV M:\2D91 ID57\Legal Descriptions\AD1 Esmts & Maint J-1 c'~">'1 7 0 WQ 2091-0057 11/10105 iUI. ~ iff. :~~~ ~ I p' ; cntn "i",;, ~~~ :1 ;~~\ t"' 5" C) ~ ..., ~ .... ~- <::> - '" ~ "" ~ '" :5 - I '" " :>>- i ~ ~ : ~ ~ ~ ('"H) f!! ~~ ~ ~ l'<j 1. ;a ;;:: (') ... 00 ~ ~~ ~ 0"" ""' ~l'<j PJ ~ ~ to C") > r- '" 5 ". -,. ..., ~~ q 2-171 t"' o ..., 0; '"On ::r::::r:: >-e IZJr tr:1>- VJ<~ IZJ '"0 ...... r;; ::r::rlZJ~ tr:1>-;;~ tr:1Z....,bd ....,~:::O~ -z>-~ o c:;J n , ~>-....,~ :::0 Z , tr:1 0 ' >-" _ \0 -\0 '-<, ~o = .j::.. ~ EXHIBIT "C" Maintenance ResDonsibiIities City of Chula Vista Area HOA Maintenance Maintenance Median and parkways withiD Landscaping in the medians Maintenance of curb, gutter, those portions of those public and parkways including sidewalks and pavement. road shown on Exhibit "B" irrigation, trimming and pruning of trees, and maintenance and irrigation of turf areas. ./' 7/22105 065550-0011284542.1 2-172 THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIL :)4" P I2uL Ann Moore City Attorney Dated: / It 7/ 0 to Grant of Easements, License and Maintenance Agreement between the City of Chula Vista and Proctor Valley West Partners, LLC for Chula Vista Tract No. 99-04 San Miguel Ranch Planning Area "J-2" - Estrella 2-173 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City Clerk City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 No transfer tax is due as this is a conveyance to a public agency for less than a fee interest for which no cash consideration has been paid or received. (ABOVE SPACE FOR RECORDER'S USE) GRANT OF EASEMENTS, LICENSE AND MAINTENANCE AGREEMENT CHULA VISTA TRACT NO. 99-04 SAN MIGUEL RANCH PLANNING AREA "J-2" - ESTRELLA (DEDICATED EASEMENTS) This GRANT OF EASEMENTS, LICENSE AND MAINTENANCE AGREEMENT ("Agreement") is made as of this _ day of ,200_, by and between the CITY OF CHULA VISTA, a municipal corporation ("City"), and PROCTOR V ALLEY WEST PARTNERS, LLC, a Delaware limited liability company ("PVWP"). RECITALS A. This Agreement concerns and affects certain improvements with portions of the real property located in Chula Vista, California, more particularly described in Exhibit "A" attached hereto and incorporated herein ("Property"). The Property is part of a planned residential development project commonly known as "SanMiguel Ranch", Chula Vista Tract No. 99-04, being the subjectofthe City Council ResolutionNo. 2001-261 (the "City Resolution"). For purposes of this Agreement, the term "Proj ect" shall refer to the overall San Miguel Ranch proj ect, including, but not limited to the "Property." B. PVWP is the owner of the Property and the Declarant by assignment under that certain Master Declaration of Restrictions For San Miguel Ranch Master Association filed for record in the Official Records of San Diego County, California (the "Master Declaration"). The Master Declaration provides for SAN MIGUEL RANCH MASTER ASSOCIATION, a California Nonprofit Mutual Benefit Corporation ("MHOAn) to maintain certain areas in the Project. Furthermore, one or more sub- associations may be fonned ("SHOA") for a particular project(s) within San Miguel Ranch Planned 9128105 -1- 065550-0011291752.1 2-174 Development, the purposes of which would include the maintenance of certain amenities within the project over which the SHOA has jurisdiction. C. The Property is or will become covered by that the certain final map(s) (the "Final Maps") described on Exhibit" A" attached hereto and referenced in the title to this Agreement. D. In order for PVWP to obtain the Final Maps and for the City to have assurance that the maintenance of certain areas within the Proj ect would be provided for, the City and PVWP entered into a Supplemental Subdivision hnprovement Agreement pursuant to the City Resolution, in which PVWP agreed that maintenance of such areas shall be accomplished by the creation of a home owners association. The Parcels shown on Exhibit "B" attached hereto describe those particular areas which were dedicated to the public on one or more of the Final Maps but which include landscaping improvements to be maintained by the MHOA. The public areas to be maintained by the MHOA are collectively referred to as the "MHOA Maintained Public Areas." E. The City desires to grant to PVWP easements for landscape maintenance purposes upon, over and across the MHOA Maintained Public Areas as shown on Exhibit "B," in order to facilitate the obligations ofPVWP as set forth in Supplemental Subdivision hnprovement Agreements, adopted pursuant to the City Resolution. NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties agree as set forth below. I. Grant of Easements. The City hereby grants to PVWP and its agents, successors and assigns, non-exclusive easements and rights-of-way over and across the MHOA Maintained Public Areas for the purpose of maintaining, repairing and replacing landscaping improvements located thereon. These grants are made without anywarranties of any kind, express or implied, other than the warranty stated in Paragraph 14(f) below. 2. Maintenance Obli~ations (a) PVWP to Initially Maintain. PVWP hereby covenants and agrees; at its sole cost and expense, to maintain, repair and replace, or cause to be maintained, repaired or replaced, those improvements within the MHOAMaintained Public Areas which are described on Exhibit" C" attached hereto, at a level equal to or better than the level of maintenance which is acceptable to the Director of Public Works Qperations, at his/her discretion and equivalent to City or Community Facilities District maintained right-of-way facilities. For purposes of this Agreement, the term "Maintenance" or "Maintain" shall mean the maintenance, repair, the provision of water and replacement obligations described herein and on Exhibit "C" hereto and shall also include repair and replacement at no cost to the City of any City owned property that is damaged during performance of the maintenance responsibilities pursuant to this Agreement. Exhibit "C" also refers to the maintenance responsibilities of the City. 9/28/05 -2- 065550-0011 291752.1 2-175 (b) Transfer to MHOA. Upon PVWP transfer of maintenance obligations to the MHOA, (i) the MHOA shall become obligated to perfo= the obligations so transferred, and (ii) subject to the City dete=ining that the requirements of Paragraph 3 below have been satisfied, PVWP shall be released from such obligation. Transfer of maintenance obligations to the MHOA may be phased (that is, there may be multiple transfers). PVWP represents to City that it intends to, and has the authority to, unilaterally transfer said maintenance obligations either (i) to the MHOA and that such transfer has been provided for in the Master Declaration, and that such document( s) include the provisions described in Paragraph 3(a)(ii) below, or alternatively (ii) to a new homeowners association (the "New Association") established for maintenance ofthe open space and thoroughfare median areas in the Property, and that such transfer shall be provided for in the declaration of restrictions (the "New Declaration") for the New Association, and that such document(s) shall include the provisions described in Paragraph 3(a)(ii) below. References below in this Agreement to the "Association" shall include the New Association and "Declaration" shall include the New Declaration ifPVWP elects to fo= a new homeowners association for the Property. (c) Transfer By MHOA. TheMHOA shall have the rightto transfer Maintenance obligations to a sub-association ("SHOA") or to the owner of an apartment project ("Transferee"). Upon the MHOA's 'transfer of Maintenance obligations to a Transferee, (i) the Transferee shall become obligated to perfo= the obligations so transferred, (ii) theMHOA shall retain the right to perfo= the Maintenance should the Transferee fail to do so, and (iii) the MHOA shall be released ITom the obligations so transferred subjectto the City dete=ining that the requirements of Paragraph 4 below have been satisfied. Although it is possible that Maintenance obligations might be transferred to an apartment owner, PVWP does not believe it is likely that Maintenance obligations will be transferred to an apartment owner. 3. Assi1i!nment bv PVWP. LLC and Release of PVWP (a) Assignment. Upon PVWP's transfer of the Maintenance obligations to the MHOA, it is intended by the parties that the MHOA shall perfo= the Maintenance obligations either itself or by contractors. Such transfer will release PVWP from its obligations only if all of the following occur: (i) MHOA Acce;pts Obligation. The MHOA has unconditionally accepted and assumed all of PVWP's obligations under this Agreement in writing, such assignment provides that the burden of this Agreement remains a covenant running with the land, and the assignee expressly assumes the obligations of PVWP under this Agreement. The assignment shall also have been approved by the appropriate' governing body of the MHOA by resolution or similar procedural method and approved as to fo= and content by the City Attorney. The City shall not unreasonably withhold its consent to such assignment. 9/28/05 -3- 06555Q..0011291752.1 2-176 (ii) MHONs Master Declaration. The City has confirmed that there have been no modifications to the recorded Master Declaration previously approved by City, to any of the following provisions: theMHOA shall be responsible for the maintenance of the MHOA Maintained Public Areas, the MHOA shall indemnify City for all claims, demands, causes of action, liability or loss related to or arising from the maintenance activities, and the MHOA shall not seek to be released by City from the maintenance obligations of this Agreement, without the prior consent of City and one hundred percent (100%) of the holders of first mortgages or owners of the Property. (iii) MHOA Insurance. The MHOA procures and formally resolves to maintain at its sole cost and expense, commencing no later than the City's release of all ofPVWP's landscape maintenance bonds, a policy of public liability insurance which at least meets the requirements of Sect ion 5.1 (a) of the Master Declaration which reads as follows: (a) General Liability Insurance. The Master Association shall obtain a comprehensive general liability and property damage insurance policy insuring the Master Association and the Owners against liability incident to ownership or use of the Master Association Property. The limits of such insurance shall not be less than $3 Million covering all claims for death, personal injury and property damage arising out of a single occurrence. The insurer issuing such insurance shall have rating by A.M. Best of "A, Class V" or better with no modified occurrences and as admitted by Best's Insurance Guide. Such insurance shall include the following additional provisions provided they are available on a commercially reasonable basis: (i) The City of Chula Vista shall be named as an additionally insured party to such insurance pursuant to the City's requirements the Master Association do so; (ii) The policy shall not contain a cross-suit exclusion clause which would abrogate coverage should litigation ensue between insureds; (iii) The policy shall contain the following severability clause (or language which is substantially the same): "The coverage shall apply separately to each insured except with respect to the limits of liability." . 9/28105 4- 065550...0011 291752.1 2-177 9/28/05 This Section 5.1(a) may not be amended without the written consent of the City Planning Director or City Attorney. The MHOA shall provide the City with a Certificate of Insurance upon procurement of the policy as set forth above. (b) Release. When all conditions precedent in Paragraph 3(a) are fulfilled, PVWP shall be released from its obligations under this Agreement, including its security and insurance requirements. PVWP acknowledges that it has a contractual obligation to perform the terms and conditions of this Agreement until and unless released by the City from this Agreement. At least sixty (60) days prior to such transfer, PVWP shall give a notice to the City of PVWP's intent to transfer its Maintenance obligations herein and provide the City with the appropriate documents listed in Paragraph 3(a). 4. Assignment bv MHOA and Release of MHOA. (a) Assignment. Upon MHOA's transfer of the Maintenance obligations to a Transferee, it is intended by the parties that the Transferee shall perform the Maintenance obligations either itself or by contractors. Such transfer will release the MHOA from its obligations only if all of the following occur: (i) Transferee Accepts Oblil?ation. The Transferee has unconditionally accepted and assumed all of the MHO A's obligations under this Agreement in writing, such assignment provides that the burden of this Agreement remains a covenant running with the land, and the assignee expressly assumes the obligations ofthe MHOA under this Agreement. If the Transferee is an SHOA, the assignment shall also have been approved by the appropriate governing body of the SHOA by resolution or similar procedural method and approved as to form and content by the City Attorney. The City shall not unreasonably withhold its consent to such assignment. (ii) SHOA's Declaration ofRestrictions. If the Transferee is an SHOA, the City has reviewed and approved the SHOA's recorded Declaration of Restrictions to confinn that said document contains appropriate maintenance and insurance provisions. (iii) SHOA Insurance. The Transferee procures and formally resolves to Maintain at its sole cost and expense, a policy of public liability insurance which meets the requirements set forth in Paragraph 3 (a) (iii) above. The SHOA shall provide the City with a Certificate of Insurance upon acceptance of the transfer of the Maintenance obligations herein. (b) Release. When all conditions precedent in Paragraph 4(a) are fulfilled, the MHOA shall be released from its obligations under this Agreement, including its security and insurance requirements. At least sixty (60) days prior to such transfer, MHOA shall give notice -5- 065550-0011 291752.1 2-178 to the City ofMHOA's intent to transfer its Maintenance obligations herein and provide the City with the appropriate documents listed in Paragraph 4(a). 5. PVWP's Insurance. Until such time as theMHOAhas obtained the general liability insurance required by Section 5.1 (a) of the Master Declaration, PVWP agrees to procure and formally resolves to maintain at its sole cost and expense, commencing no later than the date that the landscape architect of record has submitted a letter of substantial conformance pertaining to work being completed to the General Services Department and the General Services Department Director or his designee has deemed the work complete and satisfactory, a policy of public liability insurance that would include, but is not limited to the following: General Liability Insurance. PVWP shall obtain a comprehensive general liability and property damage insurance policy insuring PVWP against liability incident to ownership oruse of the Property. The limits of such insurance shall not be less than $3 Million covering all claims for death, personal injury and property damage arising out of a single occurrence. The insurer issuing such insurance shall have rating by A.M. Best "A, Class V" or better with modified occurrences and as admitted by Best's Insurance Guide. Such insurance shall include the following additional provisions provided they are available on a commercially reasonable basis: (i) The City ofChula Vista shall be named as an additionally insured party to such insurance pursuant to the City's requirements PVWP do so; (ii) The policy shall not contain a cross-suit exclusion clause which would abrogate coverage should litigation ensue between insureds and; (iii) The policy shall contain the following severability clause (or language wmch is substantially the same): "The coverage shall apply separately to each insured except with respect to the limits of liability." PVWP shall provide the City with a Certificate of Insurance upon procurement of the policy as set forth above. 6. Indemnity. PVWP shall defend, indemnify and hold harmless the City, its officers, agents and employees, from any and all actions, suits, claims, damages to persons or property, costs including attorney's fees, penalties, obligations, errors, omissions, demands, liability, or loss of any sort (herein "claims or liabilities "), that may be asserted or claimed by any person, firm, or entity because of or arising out of or in connection with the use, maintenance, or repair of the MHOA Maintained Public Areas. PVWP shall not have any liability under this section by reason of the Transferee's failure to maintain. 7. Indemnity If Transferee. The document whereby PVWP transfers a Mainten_ance obligation to a Transferee shall be signed by both PVWP and the Transferee and shall set forth an express assumption of Maintenance and other obligations hereunder and shall include the following indemnification provision: 9/28/05 -6- 065550-0011 291752.1 2-179 Indemnitv. The Transferee shall defend, indemnify, and hold h=1ess the City, its officers, agents and employees, from any and all actions, suits, claims, damages to persons or property, costs including attorney's fees, penalties, obligations, errors, omissions, demands, liability, or loss of any sort (herein "claims or liabilities"),which result from the Transferee's failure to comply with the requirements of the obligations transferred hereby to Transferee. Transferee shall not have any liability under this Indemnity by reason of another party's failure to maintain. It is specifically intended that the City shall have the right to enforce this Indemnity. This Indemnity may not be amended without the written consent of the City Director of Planning and Building or City Attorney. 8. Agreement Binding Upon Any Successive Parties. This Agreement shall be binding upon PVWP and any successive Declarant under the Master Declaration. This Agreement shall be binding upon MHOA and any Transferees upon transfer of maintenance obligations to the MHOA or Transferee, respectively. This Agreement shall inure to the benefit of the successors, assigns and interests of the parties as to any or all of the Property. 9. Agreement Runs With the Land. The burden of the covenants contained in this Agreement ("Burden") is for the benefit ofthe Property and the City, its successors and assigns, and any successor-in-interest thereto. The City is deemed the beneficiary of such covenants for and in its own right and for the purposes of protecting the interest of the community and other parties, public or private, in whose favor and for whose benefit such covenants running with the land have been provided, without regard to whether the City has been, remained or are owners of any particular land or interest therein. If such covenants are breached, the City shall have the right to exercise all rights and remedies and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breach to which it or any other beneficiaries of this Agreement and the covenants maybe entitled. 10. Governine Law. This Agreement shall be governed and construed in accordance with the laws of the State of California. 11. Effective Date. The terms and conditions of this Agreement shall be effective as of the date this Agreement is recorded in the Official Records of the San Diego County Recorder's Office. 12. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be original and all of which shall constitute one and the same document. 13. Recordinl!:. The parties shall cause this Agreementto be recorded in the Official Records of the San Diego County Recorder's Office within thirty (30) days after this Agreement has been approved by the City Council. 9128/05 -7- 065550-0011 291752.1 2-180 14. Miscellaneous Provisions. (a) Notices. Unless otherwise provided in this Agreement or by law, any and all notices required orpennitted by this Agreement or by law to be served on or delivered to either party shall be in writing and shall be deemed duly served, delivered and received when personally delivered to the party to whom it is directed or, in lieu thereof, when three (3) business days have elapsed following deposit in the United States mail, certified orregistered mail, return receipt requested, first-class postage prepaid, addressed to the address indicated in this Agreement. A party may change such address for the purpose of this Paragraph by giving written notice of such change to the other party. If To City: CITY OF CHULA VISTA Department of Public WorkslEngineering Division 276 Fourth Avenue Chula Vista, CA 91910 Attn: City Engineer If To PWVP LLC: PROCTOR VALLEY WEST PARTNERS, LLC The San Miguel Ranch Company 85 Argonaut, Suite 205 Aliso Viejo, CA 92656 Attn: Mr. Stephen E. Hester (b) Captions. Captions in this Agreement are inserted for convenience of reference and do not defme, describe or limit the scope or intent of this Agreement or any of its terms. (c) Entire Agreement. This Agreement, together with any other written document referred to herein, embody the entire agreement and understanding between the parties regarding the subject matter hereof, and any and all prior or contemporaneous oral or written representations, agreements, understandings and/or statements shall be of no force and effect. This Agreement is not intended to supersede or amend any other agreement between the parties unless expressly noted. (d) Recitals; Exhibits. Any recitals set forth above and any attached exhibits are incorporated by reference into this Agreement. . (e) Compliance With Laws. In the performance of its obligations under this Agreement, PVWP, its agents and employees, shall comply with any and all applicable federal, state and local rules, regulations, ordinances, policies, pennits and approvals. 9128/05 -8- 065550-0011291752.1 2-181 (f) Authority of Signatories. Each signatory and party hereto hereby warrants and represents to the other party that it has legal authority and capacity and direction from its principal to enter into this Agreement, and that all resolutions and/or other actions have been taken so as to enable said signatory to enter into this Agreement. (g) Modification. This Agreement may not be modified, terminated or rescinded, in whole orin part, except by written instrument duly executed and acknowledged by the parties hereto, their successors or assigns, and duly recorded in the Official Records of the San Diego County Recorder's Office. (h) Severability. If any term, covenant or condition of this Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such term, covenant or condition to person or circumstance, shall not be affected thereby and each term, covenant or condition shall be valid and be enforced to the fullest extent permitted by law. (i) Preparation of Agreement. No inference, assumption or presumption shall be drawn from the fact that a party or its attorney prepared and/or drafted this Agreement. It shall be conclusively presumed that both parties participated equally in the preparation and/or drafting of this Agreement. [REMAJNDER OF P AGE INTENTIONALLY LEFT BLANK] 9/28105 -9- 065550-0011 291752.1 2-182 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first set forth above. "City": CITY OF CHULA VISTA, a municipal corporation By: Stephen C. Padilla, Mayor Attest: Susan Bigelow, City Clerk APPROVED AS TO FORM: By: Ann Moore, City Attorney "PVWP": PROCTOR V ALLEY WEST PARTNERS, LLC, a Delaware limited liability company By: TrimarkPacific-Montecito, LLC, a California limited liability company By: TPH LLC, a California limited liability company, Member Manager By: Trimark Ventures, Inc., a California corporation, It.s: Member ~ By ~;:~JE~ter Its:~ice President 'CSc~~ "''e- 9128105 -10- 065550-0011 291752.1 2-183 ) ) ss. ) . On i 0 I \ \ , 200~, before me, J. vitA- i,--t~ Notary Public in and for said State, personally appeared ,-qt. p~ f'-- f. t-f' J+r-- STATE OF CALIFORNIA COUNTY OF , D v1l r- 0--'" personally known to me (or proved to me on the h.o;~ sf 3Misflt.:.tarj" cvia8ace) to be the person.(sY whose name(:>11S/..a;pcrsubscribed to the within instrument and acknowledged to me that he/.she/ihcy executed the same in his~authorized capacity.Q.eSJ, and that by his~ signature~n the instrument, the perso~r the entity upon behalf of which the persol}(s}acted, executed the instrument. WITNESS ~d and .~fficial seal. ~ fI V 1 0^ I/'-- J. WMD Signature . c......I. R.141~~ MaIIIIY P\MC . c r fi aangeColdY "",c:amm. &pIIM'P- (Seal) ., STATE OF CALIFORNIA ) ) ss. COUNTY OF ) On , 200_, before me, Notary Public in and for said State, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument, the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature (Seal) 9/28/05 -11- 065550-0011 291752.1 2-184 EXHIBIT "A" LEGAL DESCRIPTION ALL THAT LAND INCLUSIVE OF CHULA VISTA TRACT NO. 99-04, SAN MIGUEL RANCH PLANNING AREA "J-2", ACCORDING TO MAP THEREOF NO. FILED IN THE OFFICE OF THE SAN DIEGO COUNTY RECORDER ON IN THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA. ll-l' 4( ad ~r"''- DAVID w. AMBLER L.S.7322 HUNSAKER & ASSOCIATES SAN DIEGO, INC. PAGE 1 OF 1 :DV M:I0061\41 81Legal Descriptions'A04 Esmts & Maint J-2 c.00's1 8 5 WO 0061-0418 11/10/05 L' ~~ -i1'- I "" ~ fE .Cf: -...... -;s:. \ '\P- u,.., _ ~.&. - "'"' ~\$>, c:;,. ...:\~ ~ 'b<:) ....~ "" ~~\ ~ tf)~ fE Cf: d' pf C1) " !>,.C'6'C' ,~~ &lJ;-";j~~ ~:~. ~,,~ . "-,(5.'1",,. L>- f'.,,"~ ~ ..." ~~ ":>~ c} ~t,J~~ 'Y ~ ~'~~ G II") I '<C ~ ~ Cf: Lw -.J "< <.J to "<t :: 0("-1 I I 0\:-> 0\- .-<t; :: ~ ~ ~~-<t;;:-' - U 0 a ~;;Zg;.-< ~~~~ ~~j~ ?<:~P-<CI) ~>M -<t;>ij ~CI) ~-<t; ::r::::r:: UP-< ~ Eo. Iiq '5 ~ ~ .... ~ ~ V'IVd "=l- I "" ~ ~ Cf: - "p:' _ ,NCl-l .. 01: ~L ]:W";'j_1 1.J ~lG1J t$~p.. :~l!~G '" 'f <;; .... <;; '" fE "! ;,; ~ i:i tI'J =-::5 ~" ," :!i! c::<" ""'- ~8; I~. ~ ~~~ hi~ ::J<" -I! 9.- :I:<<S: iJ :!i! IIlut 2-186 EXHIBIT "c" Maintenance Res{lonsibilities City of Chula Vista Area HOA Maintenance Maintenance Parkways within those Landscaping in the parkways Maintenance of curb, gutter, portions of those public road including irrigation, trimming sidewalks and pavement. shown on Exhibit "B" and pruning of trees, and maintenance and irrigation of turf areas, and maintenance of any project signage or similar proj ect monumentation. 9/28/05 065550-0011291752.1 2-187 TIIE ATTACHED AGREEJ\1ENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIL . /::J/J h hi .7 !'L Ann Moore City Attorney Dated: 1/17 / 0 b Grant of Easements, License and Maintenance Agreement between the City ofChula Vista and Proctor Valley West Partners, LLC for Chula Vista Tract No. 99-04 San Miguel Ranch Planning Area "K" - Bonterra 2-188 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City Clerk City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 No transfer tax is due as this is a conveyance to a public agency for less than a fee interest for which no cash consideration has been paid-or received. (ABOVE SPACE FOR RECORDER'S USE) GRANT OF EASEMENTS, LICENSE AND MAINTENANCE AGREEMENT CHULA VISTA TRACT NO. 99-04 SAN MIGUEL RANCH PLANNING AREA "K" - BON TERRA (DEDICATED EASEMENTS) This GRANT OF EASEMENTS, LICENSE AND MAINTENANCE AGREEMENT ("Agreement") is made as ofthis day of , 200-, by and between the CITY OF CHULA VISTA, a municipal corporation ("City"), and PROCTOR V ALLEY WEST PARTNERS, LLC, a Delaware limited liability company ("PVWP"). RECITALS A. This Agreement concerns and affects certain improvements within portions of the real property located in Chula Vista, California, more particularly described in Exhibit" A" attached hereto and incorporated herein ("Property"). The Property is part of a planned residential development proj ect commonly known as "San Miguel Ranch", Chula Vista Tract No. 99-04, being the subject ofthe City Council Resolution No. 2001-261 (the "City Resolution"). For purposes of this Agreement, the term "Project" shall refer to the overall San Miguel Ranch project, including, but not limited to, the "Property. " B. PVWP is the owner of the Property and the Declarant by assignment under that certain Master Declaration of Restrictions For San Miguel Ranch Master Association filed forrecord in the Official Records of San Diego County, California (the "Master Declaration"). The Master Declaration provides for SAN MIGUEL RANCH MASTER ASSOCIATION, a CaliforniaNonprofitMutua1 Benefit Corporation ("MHOA"), to maintain certain areas in the Project. Furthermore, one or more sub- associations ("SHOA") may be formed for a particular project(s) within San Miguel Ranch Planned 9128/05 -1- 065550.0011 291732.1 2-189 Development, the purposes of which would include the maintenance of certain amenities within the project over which the SHOA has jurisdiction. C. The Propertyis orwill become covered by the final map(s) (the "Final Maps") described on Exhibit" A" attached hereto and referenced in the title of this Agreement. D. In order for PVWP to obtain the Final Maps and for the City to have assurance that the maintenance of certain areas within the Project would be provided for, the City and PVWP entered into a Supplemental Subdivision hnprovement Agreement pursuant to the City Resolution, in which PVWP agreed that maintenance of such areas shall be accomplished by the creation of a home owners association. The Parcels shown on Exhibit "B" attached hereto describe those particular areas which were dedicated to the public on one or more of the Final Maps but which include landscaping improvements to be maintained by the MHOA. The public areas to be maintained by the MHOA are collectively referred to as the "MHOA Maintained Public Areas." E. The City desires to grant to PVWP easements for landscape maintenance purposes' upon, over and across the MHOA Maintained Public Areas as shown on Exhibit "B," in order to facilitate the obligations ofPVWP as set forth in Supplemental Subdivision hnprovement Agreements, adopted pursuant to the City Resolution. NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties agree as set forth below. 1. Grant of Easements. The City hereby grants to PVWP and its agents, successors and assigns, non-exclusive easements and rights-of-way over and across the MHOA Maintained Public Areas for the purpose of maintaining, repairing and replacing landscaping improvements located thereon. These grants are made without any warranties of any kind, express or implied, other than the warranty stated in Paragraph 14(1) below. 2. Maintenance Oblie-ations (a) PVWP to Initially Maintain. PVWP hereby covenants and agrees, at its sole cost and expense, to maintain, repair and replace, or cause to be maintained, repaired or replaced, those improvements within the MHOA Maintained Public Areas which are described on Exhibit "C" attached hereto, at a level equal to or better than the level of maintenance which is acceptable to the Director of Public Works Operations, at his/her discretion and equivalent to City or Community Facilities District maintained right-of-way facilities. For purposes of this Agreement, the term "Maintenance" or "Maintain" shall mean the maintenance, repair, the provision of water and replacement obligations described herein and on Exhibit "C" hereto and shall also include repair and replacement at no cost to the City of any City owned property that is damaged during performance of the maintenance responsibilities pursuant to this Agreement. Exhibit "C" also refers to the maintenance responsibilities of the City. 9/28/05 -2- 065550-0011291732.1 2-190 (b) Transfer to l\fiIOA. Upon PVWP's transfer of maintenance obligations to the :MHOA, (i) the :MHOA shall become obligated to perfo= the obligations so transferred, and (ii) subject to the City determining that the requirements of Paragraph 3 below have been satisfied, PVWP shall be released from such obligation. Transfer of maintenance obligations to the MHOA maybe phased (that is, there maybe multiple transfers). PVWP represents to City that it intends to, and has the authority to, unilaterally transfer said maintenance obligations either (i) to the :MHOA and that such transfer has been provided for in the Master Declaration, and that such document(s) include the provisions described in Paragraph 3(a)(ii) below, or alternatively (ii) to a new homeowners association (the "New Association") established for maintenance of the open space and/or thoroughfare median areas in the Property, and that such transfer shall be provided for in the declaration of restrictions (the "New Declaration") for the New Association, and that such document(s) shall include the provisions described in Paragraph 3(a)(ii) below. References below in this Agreement to the "Association" shall include the New Association and "Declaration" shall include the New Declaration if PVWP elects to form a new homeowners association for the Property. (c) Transfer By l\fiIOA. The MHOA shall have the right to transfer Maintenance obligations to an SHOA or to the owner of an apartment project ("Transferee"). Upon the :MHOA's transfer of Maintenance obligations to a Transferee, (i) the Transferee shall become obligated to perfo= the obligations so transferred, (ii) the :MHOA shall retain the right to perform the Maintenance should the Transferee fail to do so, and (iii) the MHOA shall be released fiom the obligations so transferred subj ect to the City determining that the requirements of Paragraph 4 below have been satisfied. Although it is possible that Maintenance obligations might be transferred to an apartment owner, PVWP does not believe it is likely that Maintenance obligations will be transferred to an apartment owner. 3. Assi!!nment bv PVWP and Release of PVWP (a) Assignment. Upon PVWP's transfer of the Maintenance obligations to the :MHOA, it is intended by the parties that theMHOA shall perform the Maintenance obligations either itself or by contractors. Such transfer will release PVWP fiom its obligations only if all of the following occur: (i) MHOA Acce.pts Obli!!ation. The MHOA has unconditionally accepted and assumed all of PVWP's obligations under this Agreement in writing, such assignment provides that the burden of this Agreement remains a covenant running with the land, and the assignee expressly assumes the obligations of PVWP under this Agreement. The assignment shall also have been approved by the appropriate governing body of the MHOA by resolution or sirnilarprocedural method and approved as to fo= and content by the City Attorney. The City shall not unreasonably withhold its consent to such assignment. 9/28/05 -3- 065550-0011 291732.1 2-191 (ii) :MEOA's Master Declaration. The City has confirmed that there have been no modifications to the recorded Master Declaration previously approved by City, to any of the following provisions: the :MEOA shall be responsible for the maintenance of the :MEOA Maintained Public Areas, the :MEOA shall indemnify City for all claims, demands, causes of action, liability or loss related to or arising fi:om the maintenance activities, and the :MEOA shall not seek to be released by City fi:om the maintenance obligations of this Agreement, without the prior consent of City and one hundred percent (100%) of the holders of first mortgages or owners of the Property. . (iii) :MEOA Insurance. The :MEOA procures and fo=ally resolves to maintain at its sole cost and expense, commencing no later than the City's release of all ofPVWP's landscape maintenance bonds, a policy of public liability insurance which at least meets the requirements of Section 5.1 (a) of the Master Declaration, which reads as follows: (a) General Liability Insurance. The Master Association shall obtain a comprehensive general liability and property damage insurance policy insuring the Master Association and the Owners against liability incident to ownership or use of the Master Association Property. The limits of such insurance shall not be less than $3 Million covering all claims for death, personal injury and property damage arising out of a single occurrence. The insurer issuing such insurance shall have rating by A.M. Best of "A, Class V" or better with no modified occurrences and as admitted by Best's Insurance Guide. Such insurance shall include the following additional provisions provided they are available on a commercially reasonable basis: (i) The City of Chula Vista shall be named as an additionally insured party to such insurance pursuant to the City's requirements the Master Association do so; (ii) The policy shall not contain a cross-suit exclusion clause which would abrogate coverage should litigation ensue between insureds; (iii) The policy shall contain the following severability clause (or language which is substantially the same): "The coverage shall apply separately to each insured except with respect to the limits of liability." This Section 5.1 (a) may not be amended without the written consent of the City Planning Director or City Attorney. 9/28105 -4- 065550-0011291732.1 2-192 9/28/05 The MHOA shall provide the City with a Certificate of Insurance upon procurement of the policy as set forth above. (b) Release. When all conditions precedent in Paragraph 3( a) are fulfilled, PVWP shall be released from its obligations under this Agreement, including its security and insurance requirements. PVWP acknowledges that it has a contractual obligation to perform the terms and conditions ofthis Agreement until and unless released by the City from this Agreement. At least sixty (60) days prior to such transfer, PVWP shall give a notice to the City of PVWP's intent to transfer its Maintenance obligations herein and provide the City with the appropriate documents listed in Paragraph 3(a). 4. Assh:nment bv MHOA and Release of MHOA. (a) Assignment. Upon MHOA's transfer of the Maintenance obligations to a Transferee, it is intended by the parties that the Transferee shall perform the Maintenance obligations either itself or by contractors. Such transfer will release the MHOA from its obligations only if all of the following occur: (i) Transferee Accepts Obligation. The Transferee has unconditionally accepted and assumed all of the MHOA's obligations under this Agreement in writing, such assignment provides that the burden of this Agreement remains a covenant rurming with the land;and the assignee expressly assumes the obligations of the MHO A under this Agreement. lithe Transferee is an SHOA, the assignment shall also have been approved by the appropriate governing body of the SHOA by resolution or similar procedural method and approved as to form and content by the City Attorney. The City shall not unreasonably withhold its consent to such assignment. (ii) SHOA's Declaration of Restrictions. Ifthe Transferee is an SHOA, the City has reviewed and approved the SHOA's recorded Declaration of Restrictions to confirm that said document contains appropriate maintenance and insurance provisions. (iii) SHOA Insurance. The Transferee procures and formally resolves to Maintain at its sole cost and expense, a policy of public liability insurance which meets the requirements set forth in Paragraph 3 (a) (iii) above. The SHOA shall provide the City with a Certificate of Insurance upon acceptance of the transfer of the Maintenance obligations herein. (b) Release. When all conditions precedent in Paragraph 4(a) are fulfilled, the MHOA shall be released from its obligations under this Agreement, including its security and insurance requirements. At least sixty (60) days prior to such transfer, MHOA shall give notice to the City of MHO A's intent to transfer its Maintenance obligations herein and provide the City with the appropriate documents listed in Paragraph 4(a). -5- 065550-0011 291732.1 2-193 5. PVWP's Insurance. Until such time as the MHOA has obtained the general liability insurance required by Section 5.1 (a) of the Master Declaration, PVWP agrees to procure and fonnally resolves to maintain at its sole cost and expense, commencing no later than the date that the landscape architect of record has submitted a letter of substantial confonnance pertaining to work being completed to the General Services Department and the General Services Department Director or his designee has deemed the work complete and satisfactory, a policy of public liability insurance that would include, but is not limited to the following: General Liability Insurance. PVWP shall obtain a comprehensive general liability and property damage insurance policy insuring PVWP against liability incident to ownership or use of the Property. The limits of such insurance shall not be less than $3 Million covering all claims for death, personal injury and property damage arising out of a single occurrence. The insurer issuing such insurance shall have rating by A.M. Best "A, Class V" or better with modified occurrences and as admitted by Best's Insurance Guide. Such insurance shall include the following additional provisions provided they are available on a commercially reasonable basis: (i) The City ofChula Vista shall be named as an additionally insured party to such insurance pursuant to the City's requirements PVWP do so; (ii) The policy shall not contain a cross-suit exclusion clause which would abrogate coverage should litigation ensue between insureds and; (iii) The policy shall contain the following severability clause (or language which is substantially the same): "The coverage shall apply separately to each insured except with respect to the limits ofliability." PVWP shall provide the City with a Certificate of Insurance upon procurement of the policy as set forth above. 6. Indemnitv. PVWP shall defend, indemuify and hold harmless the City, its officers, agents and employees, from any and all actions, suits, claims, damages to persons or property, costs including attorney's fees, penalties, obligations, errors, omissions, demands, liability, or loss of any sort (herein" claims or liabilities "), that may be asserted or claimed by any person, finn, or entity because of or arising out of or in connection with the use, maintenance, or repair of the MHOA Maintained Public Areas. PVWP shall not have any liability under this section by reason of the Transferee's failure to maintain. 7. Indemnitv If Transferee. The document whereby PVWP transfers a Maintenance obligation to a Transferee shall be signed by both PVWP and the Transferee and shall set forth an express assumption of Maintenance and other obligations hereunder and shall include the following indemuification provision: Indemnity. The Transferee shall defend, indemnify, and hold harmless the City, its officers, agents and employees, from any and all actions, suits, claims, 9128/05 -6- 065550-0011291732.1 2-194 damages to persons or property, costs including attorney's fees, penalties, obligations, errors, omissions, demands, liability, or loss of any sort (herein "claims or liabilities"),which result from the Transferee's failure to comply with the requirements of the obligations transferred hereby to Transferee. Transferee shall not have any liability under this Indemnity by reason of another party's failure to maintain. It is specifically intended that the City shall have therightto enforce this Indemnity. This Indemnity may not be amended without the written consent of the City Director of Planning and Building or City Attorney. 8. A!!reement Binding Upon Anv Successive Parties. This Agreement shallbe binding upon PVWP and any successive Declarant under the Master Declaration. This Agreement shall be binding upon MHOA and any Transferees upon transfer of maintenance obligations to the MHOA or Transferee, respectively. This Agreement shall inure to the benefit of the successors, assigns and interests of the parties as to any or all of the Property. 9. A!!reement Runs With the Land. The burden of the covenants contained in this Agreement ("Burden") is for the benefit of the Property and the City, its successors and assigns, and any successor-in-interest thereto. The City is deemed the beneficiary of such covenants for and in its own right and for the purposes of protecting the interest of the community and other parties, public or private, in whose favor and for whose benefit such covenants running with the land have been provided, without regard to whether the City has been, remained or are owners of any particular land or interest therein. If such covenants are breached, the City shall have the right to exercise all rights and remedies and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breach to which it or any other beneficiaries of this Agreement and the covenants may be entitled. 10. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of California. 11. Effective Date. The terms and conditions of this Agreement shall be effective as of the date this Agreement is recorded in the Official Records ofthe San Diego County Recorder's Office. 12. Counterparts. This Agreement maybe executed in anynurnber of counterparts, each of which shall be original and all of which shall constitute one and the same document. 13. Recordin!!. The parties shall cause this Agreement to be recorded in the Official Records of the San Diego County Recorder's Office within thirty (30) days after this Agreement has been approved by the City CounciL 14. Miscellaneous Provisions. (a) Notices. Unless otherwise provided in this Agreement or by law, any and all notices required or permitted by this Agreement or by law to be served on or delivered to either 9/28/05 -7- 065550-0011291732.1 2-195 party shall be in writing and shall be deemed duly served, delivered and received when personally delivered to the party to whom it is directed or, in lieu thereof, when three (3) business days have elapsed following deposit in the United States mail, certified orregistered mail, return receipt requested, first-class postage prepaid, addressed to the address indicated in this Agreement. A party may change such address for the purpose of this Paragraph by giving written notice of such change to the other party. If To City: CITY OF CHULA VISTA Department of Public WorkslEngineering Division 276 Fourth Avenue Chula Vista, CA 91910 Attn: City Engineer If To PVWP: PROCTOR VALLEY WEST PARTNERS, LLC The San Miguel Ranch Company 85 Argonaut, Suite 205 Aliso Viejo, CA 92656 Attn: Mr. Stephen E. Hester (b) Captions. Captions in this Agreement are inserted for convenience of reference and do not define, describe or limit the scope or intent of this Agreement or any of its terms. (c) Entire Agreement. This Agreement, together with any other written document referred to herein, embody the entire agreement and understanding between the parties regarding the subj ect matter hereof, and any and all prior or contemporaneous oral or written representations, agreements, understandings and/or statements shall be of no force and effect. This Agreement i's not intended to supersede or amend any other agreement between the parties unless expressly noted. (d) Recitals; Exhibits. Any recitals set forth above and any attached exhibits are incorporated by reference into this Agreement. (e) Compliance With Laws. In the performance of its obligations under this Agreement, PVWP, its agents and employees, shall comply with any and all applicable federal, state and local rules, regulations, ordinances, policies, permits and approvals. (f) Authority of Signatories. Each signatory and party hereto hereby warrants and represents to the other party that it has legal authority and capacity and direction from its principal to enter into this Agreement, and that all resolutions and/or other actions have been taken so as to enable said signatory to enter into this Agreement. 9/28/0:5 -8- 065550~00l1 291732.1 2-196 (g) Modification. This Agreement may not be modified, tenninated orrescinded, in whole orin part, except by written instrument duly executed and acknowledged by the parties hereto, their successors or assigns, and duly recorded in the Official Records of the San Diego County Recorder's Office. (h) Severability. If any te=, covenant or condition of this Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such te=, covenant or condition to person or circumstance, shall not be affected thereby and each te=, covenant or condition shall be valid and be enforced to the fullest extent pe=itted by law. (i) Preparation of Agreement. No inference, assumption or presumption shall be drawn from the fact that a party or its attorney prepared and/or drafted this Agreement. It shall be concIusivelypresumed that both parties participated equally in the preparation and/or drafting of this Agreement. [REMAINDER OF P AGE INTENTIONALLY LEFT BLANK] 9128105 -9- 065550..0011 291732.1 2-197 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be ex ecuted the day and year first set forth above. "City": CITY OF CHULA VISTA, a municipal corporation By: Stephen C. Padilla, Mayor Attest: Susan Bigelow, City Clerk APPROVED AS TO FORM: By: Ann Moore, City Attorney "PVWP": PROCTOR VALLEY WEST PARTNERS, LLC, a Delaware limited liability company By: Trimark Pacific-Montecito, LLC, a California limited liability company By: TPH LLC, a California limited liability company, Member Manager By: Trimark Ventures, Inc., a California corporation, Its: :ember ~ ~ter Its:k'ice President :E)<.~~ 9128105 -10- 065550-0011 291132.1 2-198 STATE OF CALIFORNIA ) D ,) ) ss. COUNTY OF t1l \"- ~ ) On \ D II' 10'5' , 200L, before me, Notary Public in and for said State, personally appeared , personally known to me (orl'fflye8. to me 8R the 1;>00;0 nf satisfactory evidence) to be the person(sY whose name~~subscribed to the within instrument and acknowledged to me that he/sheftlreY executed the same in his/herfflleir authorized capacity~and that by his/her/tfieirsignature(s}oh the instrument, the person~r the entity upon behalf of which the person.(s1-acted, executed the instrument. WITNESS my hand an~ official seal. .QJfY' r----- Signature ' , Vt/l --'-------J ~ J. *II) . i .. Commllllan" If12..wi ")~'o; NoIaryNllc.C~. ... I (Seal) .~ --- ~ '.~. MyComm.......1II, - -J~ ec..lr~~4~2:a- J ~.. '**-YNIIc.~ 1"01110 I ~ _ _ _ ~~~~~7t STATE OF CALIFORNIA ) ) ss. COUNTY OF ) On , 200_, before me, Notary Public in and for said State, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument, the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature (Seal) 9/28105 -11- 065550-0011291732.1 2-199 EXHIBIT "A" LEGAL DESCRIPTION ALL THAT LAND INCLUSIVE OF CHULA VISTA TRACT NO. 99-04, SAN MIGUEL RANCH PLANNING AREA "K", ACCORDING TO MAP THEREOF NO. FILED IN THE OFFICE OF THE SAN DIEGO COUNTY RECORDER ON IN THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA !I~~a~9*r@$ , DAVID W. AMBLER LS.7322 HUNSAKER & ASSOCIATES SAN DIEGO, INC. PAGE 1 OF 1 :DV M:\0270\081\Legal DescriptionslA04 Esmts & Malnt K c.d2'_ 2 0 0 WO 0270-0081 11110105 IUt. ~ If! ;~E ~ If ;~6i - "t ..en> ~ ~ - ; 8"" ,., i I ;>~ :::.: ..i....j "< m ~ < on o ?: ~ '" \:, ~ " IE ~ ~ l' 0. ~ ~ "' '" ... '" ~ I ~ V) C) ),. .... '" '. -~ i ~ - CORTE :... 1:-0 ~ ~ ~ ~ PJ :t. I - ~ ~ SEE SHEa 2 2-201 1:-0 a '-3 >-og ~p IZJ;> ~< ~~ IZJ>-o>-< P::t"""'1ZJ gJ;>~~~ ~ ~...-. >-' ~ ~ 0,-., n _ '":rj '-<-' ~ ..:: N;> w :::0 Z _ trJO - ;>~ =\0 ~b = .\:>. 1:-0 a '-3 c;5 , ~ ~ cii t;;: ~~ f;.::55~~ ~t.>ES~ ~:.:2;;j ~ 't;j:.;: t"ic") ~~~'-3 O;)"O~~ 1;j~n~ ~::ii <0 <0 .... I ~ iu!!. - :c ~tr;;S1'c:: -@ Ii .~z - "f :UJ~ ~ 'if ;8:><: Q ;>~ -;;. "51 Q I ~ ... '" b ~ "" ~ ~ ~ , i ,. !'> "'" " <:I , '" OJ (") :>. r- i'1 -,. ~~ ~ ~ SEE SHEET, PJ ).. I - 2-202 t-< a ..., :z:: , >-t:Jn ~e Cf.Jt"" tI:I;J>~ \.oJ -< ~~.q C/.J>-t:J...... ::qt""C/.J tI:I;J>....:j ::j~~~ NZ~~ OQC1 , ~~i~ Gj 0 ' >~ :\0 ?:::' _ 0 - -Po. ~ '" ~ ~~ ~~~~ "'I:i:iES~ ~~:~:;j . ~t"'~ :;:::>>: ..., CI>"'~!<: ~~~~ ~ ~\"<) '- \"<) I a '" EXHIBIT "C" Maintenance ResDonsibiIities City of Chula Vista Area MHOA Maintenance Maintenance Parkways within those Landscaping in the parkways, Maintenance of curb, gutter, portions of those public roads including irrigation, trimming sidewalks and pavement. shown on Exhibit "B" and pruning of trees, and maintenance and irrigation of turf areas; and maintenance of any proj ect signage or similar project monumenta- tion 9/28/05 065550-0011 291732.1 2-203 THE ATTACHED AGREEtv1ENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALL Y SIGNED UPON APPROVAL BY THE CITY COUNCIL ~~rftd~ Ann Moore City Attorney Dated: 1/17(0 b Grant of Easements, License and Maintenance Agreement between the City ofChula Vista and Proctor Valley West Partners, LLC for Chula Vista Tract No. 99-04 San Miguel Ranch Planning Area "L" - Maravilla 2-204 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City Clerk City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 No transfer tax is due as this is a conveyance to a public agency for less than a fee interest for which no cash consideration has been paid or received. (ABOVE SPACE FOR RECORDER'S USE) GRANT OF EASEMENTS, LICENSE AND MAINTENANCE AGREEMENT CHULA VISTA TRACT NO. 99-04 SAN MIGUEL RANCH PLANNING AREA "L" - MARAVILLA (DEDICATED EASEMENTS) This GRANT OF EASE11ENTS, LICENSE AND MAINTENANCE AGREEMENT ("Agreement") is made as of this _ day of ,200_, by and between the CITY OF CHULA VISTA, a municipal corporation ("City"), and PROCTOR V ALLEY WEST PARTNERS, LLC, a Delaware limited liability company ("PVWP"). RECITALS A. This Agreement concerns and affects certain improvements with portions of the real property located in Chula Vista, California, more particularly described in Exhibit" A" attached hereto and incorporated herein ("Property"). The Property is part of a planned residential development project commonly known as "San Miguel Ranch", Chula Vista Tract No. 99-04, being the subject ofthe City Council Resolution No. 2001-261 (the "City Resolution"). For purposes of this Agreement, the term "Project" shall refer to the overall SanMiguel Ranch proj ect, including, but not limited to the "Property." B. PVWP is the owner of the Property and the Declarant by assignment under that certain Master Declaration of Restrictions For San Miguel Ranch Master Association filed forrecord in the Official Records of San Diego County, California (the "Master Declaration"). The Master Declaration provides for SANMIGUEL RANCH MASTER ASSOCIATION, a Ca1iforniaNonprofit Mutual Benefit Corporation ("MHOA") to maintain certain areas in the Project. Furthermore, one or more sub- associations may be formed ("SHOA") for a particular project(s) within San Miguel Ranch Planned 9/28/05 -1- 065550-0011291757.1 2-205 Development, the purposes of which would include the maintenance of certain amenities within the project over which the SHOA has jurisdiction. C. The Property is or will become covered by that the certain:final map(s) (the "Final Maps") described on Exhibit "A" attached hereto and referenced in the title to this Agreement. D. In order for PVWP to obtain the Final Maps and for the City to have assurance that the maintenance of certain areas within the Project would be provided for, the City and PVWP entered into a Supplemental Subdivision Improvement Agreement pursuant to the City Resolution, in which PVWP agreed that maintenance of such areas shall be accomplished by the creation of a home owners association. The Parcels shown on Exhibit "B" attached hereto describe those particular areas which were dedicated to the public on one or more of the Final Maps but which include landscaping improvements to be maintained by the MHOA. The public areas to be maintained by the MHOA are collectively referred to as the "MHOA Maintained Public Areas." E. The City desires to grant to PVWP easements for landscape maintenance purposes upon, over and across the MHOA Maintained Public Areas as shown on Exhibit "B," in order to facilitate the obligations ofPVWP as set forth in Supplemental Subdivision Improvement Agreements, adopted pursuant to the City Resolution. NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties agree as set forth below. 1. Grant of Easements. The City hereby grants to PVWP and its agents, successors and assigns, non-exclusive easements and rights-of-way over and across the MHOA Maintained Public Areas for the purpose of maintaining, repairing and replacing landscaping improvements located thereon. These grants are made without any warranties of any kind, express or implied, other than the warranty stated in Paragraph 14(f) below. 2. Maintenance Oblie:ations (a) PVWP to Initially Maintain. PVWP hereby covenants and agrees, at its sole cost and expense, to maintain, repair and replace, or cause to be maintained, repaired or replaced, those improvements within the MHOA Maintained Public Areas which are described on Exhibit "C" attached hereto, at a level equal to or better than the level of maintenance which is acceptable to the Director of Public Works Operations, at hislher discretion and equivalent to City or Community Facilities District maintained right-of-way facilities. For purposes of this Agreement, the t= "Maintenance" or "Maintain" shall mean the maintenance, repair, the provision of water and replacement obligations described herein and on Exhibit "C" hereto and shall also include repair and replacement at no cost to the City of any City owned property that is damaged duringperfo=ance of the maintenance responsibilities pursuant to this Agreement. Exhibit "C" also refers to the maintenance responsibilities of the City. 9/28105 -2- 06555Q.OOII 291757.! 2-206 9/28/05 (b) Transfer to MHOA. Upon PVWP transfer of maintenance obligations to the :MHOA, (i) the :MHOA shall become obligated to perfo= the obligations so transferred, and (ii) subject to the City dete=ining that the requirements of Paragraph 3 below have been satisfied, PVWP shall be released from such obligation. Transfer of maintenance obligations to the :MHOA maybe phased (that is, there maybe multiple transfers). PVWP represents to City that it intends to, and has the authority to, unilaterally transfer said maintenance obligations either (i) to the :MHOA and that such transfer has been provided for in the Master Declaration, and that such document( s) include the provisions described in Paragraph 3(a)(ii) below, or alternatively (ii) to a new homeowners association (the "New Association") established for maintenance of the open space and thoroughfare median areas in the Property, and that such transfer shall be provided for in the declaration of restrictions (the "New Declaration") for the New Association, and that such docurnent(s) shall include the provisions described in Paragraph 3 (a)(ii) below. References below in this Agreement to the "Association" shall include the New Association and "Declaration" shall include the New Declaration ifPVWP elects to fo= a new homeowners association for the Property. (c) Transfer By MHOA. The :MHOA shall have the right to transfer Maintenance obligations to a sub-association ("SHOA") or to the owner of an apartment project ("Transferee"). Upon the :MHOA's transfer of Maintenance obligations to a Transferee, (i) the Transferee shall become obligated to perfo= the obligations so transferred, (ii) the:MHOA shall retain the right to perfo= the Maintenance should the Transferee fail to do so, and (iii) the :MHOA shall be released from the obligations so transferred subject to the City determining that the requirements of Paragraph 4 below have been satisfied. Although it is possible that Maintenance obligations might be transferred to an apartment owner, PVWP does not believe it is likely that Maintenance obligations will be transferred to an apartment owner. 3. Assi!mment bv PVWP. LLC and Release ofPVWP (a) Assignment. Upon PVWP's transfer of the Maintenance obligations to the :MHOA, it is intended by the parties that the :MHOA shall perfo= the Maintenance obligations either itself or by contractors. Such transfer will release PVWP from its obligations only if all of the following occur: (i) :MHOA Accepts Obligation. The :MHOA has unconditionally accepted and assumed all of PVWP's obligations under this Agreement in writing, such assignment provides that the burden of this Agreement remains a covenant running with the land, and the assignee expressly assumes the obligations of PVWP under this Agreement. The assignment shall also have b'een approved by the appropriate governing body of the :MHOA by resolution or similar procedural method and approved as to fo= and content by the City Attorney. The City shall not unreasonably withhold its consent to such assignment. -3- 065550-0011291757.1 2-207 (ii) MHOA's Master Declaration. The City has confirmed that there have been no modifications to the recorded Master Declaration previously approved by City, to any of the following provisions: the MHOA shall be responsible for the maintenance of the MHOA Maintained Public Areas, the MHOA shall indemnify City for all claims, demands, causes of action, liability or loss related to or arising from the maintenance activities, and the MHOA shall not seek to be released by City from the maintenance obligations of this Agreement, without the prior consent of City and one hundred percent (100%) of the holders of first mortgages or owners of the Property. (iii) MHOA Insurance. The MHOA procures and formally resolves to maintain at its sole cost and expense, commencing no later than the City's release of all ofPVWP's landscape maintenance bonds, a policy of public liability insurance which at least meets the requirements of Sect ion 5.1 (a) of the Master Declaration which reads as follows: (a) General Liability Insurance. The Master Association shall obtain a comprehensive general liability and property damage insurance policy insuring the Master Association and the Owners against liability incident to ownership or use of the Master Association Property. The limits of such insurance shall not be less than $3 Million covering all claims for death, personal injury and property damage arising out of a single occurrence. The insurer issuing such insurance shall have rating by A.M. Best of "A, Class V" or better with no modified occurrences and as admitted by Best's Insurance Guide. Such insurance shall include the following additional provisions provided they are available on a commercially reasonable basis: (i) The City of Chula Vista shall be named as an additionally insured party to such insurance pursuant to the City's requirements the Master Association do so; (ii) The policy shall not contain a cross-suit exclusion clause which would abrogate coverage should litigation ensue between insureds; (iii) The policy shall contain the following severability clause (or language which is substantially the same): "The coverage shall apply separately to each insured except with respect to the limits of liability." 9128/05 -4- 065550-QOI1291757.1 2-208 This Section 5.1(a) may not be amended without the written consent of the City Planning Director or City Attorney. The MHOA shall provide the City with a Certificate of Insurance upon procurement of the policy as set forth above. (b) Release. When all conditions precedent in Paragraph 3(a) are fulfilled, PVWP shall be released ITom its obligations under this Agreement, including its security and insurance requirements. PVWP acknowledges that it has a contractual obligation to perform the terms and conditions ofthis Agreement until and unless released by the City ITom this Agreement. At least sixty (60) days prior to such transfer, PVWP shall give a notice to the City of PVWP's intentto transfer its Maintenance obligations herein and provide the City with the appropriate documents listed in Paragraph 3(a). 4. Assi!!nment bv MHOA and Release of MHOA. (a) Assignment. Upon MHOA's transfer of the Maintenance obligations to a Transferee, it is intended by the parties that the Transferee shall perform the Maintenance obligations either itself or by contractors. Such transfer will release the MHOA ITom its obligations only if all of the following occur: (i) Transferee Acceuts Obligation. The Transferee has unconditionally accepted and assumed all of the MHO A's obligations under this Agreement in writing, such assignment provides that the burden of this Agreement remains a covenant running with the land, and the assignee expressly assumes the obligations of the MHOA under this Agreement. lithe Transferee is an SHOA, the assignment shall also have been approved by the appropriate governing body of the SHOA by resolution or similar procedural method and approved as to form and content by the City Attorney. The City shall not unreasonably withhold its consent to such assignment. (ii) SHOA's Declaration of Restrictions. lithe Transferee is an SHOA, the City has reviewed and approved the SHOA's recorded Declaration of Restrictions to confirm that said document contains appropriate maintenance and insurance provisions. (iii) SHOA Insurance. The Transferee procures and formally resolves to Maintain at its sole cost and expense, a policy of public liability insurance which meets the requirements set forth in Paragraph 3 (a) (Hi) above. The SHOA shall provide the City with a Certificate of Insurance upon acceptance of the transfer of the Maintenance obligations herein. (b) Release. When all conditions precedent in Paragraph 4(a) are fulfilled, the MHOA shall be released ITom its obligations under this Agreement, including its security and insurance requirements. At least sixty (60) days prior to such transfer, MHOA shall give notice 9/28/05 .5- 065550-0011 291757.1 2-209 to the City ofMHOA's intent to transfer its Maintenance obligations herein and provide the City with the appropriate documents listed in Paragraph 4(a). 5. PVWP's Insurance. Until such time as the MHOA has obtained the general liability insurance required by Section 5.1 (a) of the Master Declaration, PVWP agrees to procure and fonnally resolves to maintain at its sole cost and expense, co=encing no later than the date that the landscape architect of record has submitted a letter of substantial confonnance pertaining to work being completed to the General Services Department and the General Services Department Director or his designee has deemed the work complete and satisfactory, a policy of public liability insurance that would include, but is not limited to the following: General Liability Insurance. PVWP shall obtain a comprehensive general liability and property damage insurance policy insuring PVWP against liability incident to ownership or use of the Property. The limits of such insurance shall'not be less than $3 Million covering all claims for death, personal injury and property damage arising out of a single occurrence. The insurer issuing such insurance shall have rating by A.M. Best "A, Class V" or better with modified occurrences and as admitted by Best's Insurance Guide. Such insurance shall include the following additional provisions provided they are available on a co=ercially reasonable basis: (i) The CityofChula Vista shall be named as an additionally insured party to such insurance pursuant to the City's requirements PVWP do so; (ii) The policy shall not contain across-suit exclusion clause which would abrogate coverage should litigation ensue between insureds and; (iii) The policy shall contain the following severability clause (or language which is substantially the same): ''The coverage shall apply separately to each insured except with respect to the limits of liability." PVWP shall provide the City with a Certificate of Insurance upon procurement of the policy as set forth above. 6. Indemnity. PVWP shall defend, indemnify and hold harmless the City, its officers, agents and employees, from any and all actions, suits, claims, damages to persons or property, costs including attorney's fees, penalties, obligations, errors, omissions, demands, liability, or loss of any sort (herein "claims or liabilities"), that may be asserted or claimed by any person, finn, or entity because of or arising out of or in connection with the use, maintenance, or repair of the MHOA Maintained Public Areas. PVWP shall not have any liability under this section by reason of the Transferee's failure to maintain. 7. Indemnity If Transferee. The document whereby PVWP transfers a Maintenance obligation to a Transferee shall be signed by both PVWP and the Transferee and shall set forth an express assumption of Maintenance and other obligations hereunder and shall include the following indemnification provision: 9/28/05 -6- 065550-0011291757.1 2-210 Indemnity. The Transferee shall defend, indemnify, and hold harmless the City, its officers, agents and employees, from any and ail actions, suits, claims, damages to persons or property, costs including attorney's fees, penalties, obligations, errors, omissions, demands, liability, or loss of any sort (herein "claims or liabilities"),which result from the Transferee's failure to comply with the requirements of the obligations transferred hereby to Transferee. Transferee shall not have any liability under this Indemnity by reason of another party's failure to maintain. It is specifically intended that the City shall have the right to enforce this Indemnity. This Indemnity may not be amended without the written consent of the City Director of Planning and Building or City Attorney. 8. Agreement Binding Upon Any Successive Parties. This Agreement shall be binding upon PVWP and any successive Declarant under the Master Declaration. This Agreement shall be binding upon MHOA and any Transferees upon transfer of maintenance obligations to the MHOA or Transferee, respectively. This Agreement shall inure to the benefit of the successors, assigns and interests of the parties as to any or all of the Property. 9. Agreement Runs With the Land. The burden of the covenants contained in this Agreement ("Burden") is for the benefit of the Property and the City, its successors and assigns, and any successor-in-interest thereto. The City is deemed the beneficiary of such covenants for and in its own right and for the purposes of protecting the interest of the community and other parties, public or private, in whose favor and for whose benefit such covenants running with the land have been provided, without regard to whether the City has been, remained or are owners of any particular land or interest therein. If such covenants are breached, the City shall have the right to exercise all rights and remedies and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breach to which it or any other beneficiaries of this Agreement and the covenants may be entitled. 10. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Califomia. 11. Effective Date. The terms and conditions of this Agreement shall be effective as of the date this Agreement is recorded in the Official Records of the San Diego County Recorder's Office. 12. CounterDarts. This Agreement maybe executed in any number of counterparts, each of which shall be original and all of which shall constitute one and the same document. 13. Recordinl!. The parties shall cause this Agreement to be recorded in the Official Records of the San Diego County Recorder's Office within thirty (30) days after this Agreement has been approved by the City Council. 9128105 -7- 065550-0011291757.1 2-211 14. Miscellaneous Provisions. (a) Notices. Unless otherwise provided in this Agreement or by law, any and all notices required or permitted by this Agreement or by law to be served on or delivered to either party shall be in writing and shall be deemed duly served, delivered and received when personally delivered to the party to whom it is directed or, in lieu thereof, when three (3) business days have elapsed following deposit in the United States mail, certified orregistered mail, return receipt requested, first-class postage prepaid, addressed to the address indicated in this Agreement. A party may change such address for the purpose of this Paragraph by giving written notice of such change to the other party. If To City: CITY OF CHULA VISTA Department of Public WorkslEngineering Division 276 Fourth Avenue Chula Vista, CA 91910 Attn: City Engineer If To PWVP LLC: . PROCTOR V ALLEY WEST PARTNERS, LLC The San Miguel Ranch Company 85 Argonaut, Suite 205 Aliso Viejo, CA 92656 Attn: Mr. Stephen E. Hester (b) Captions. Captions in this Agreement are inserted for convenience of reference and do not defme, describe or limit the scope or intent of this Agreement or any of its terms. . (c) Entire Agreement. This Agreement, together with any other written document referred to herein, embody the entire agreement and understanding between the parties regarding the subj ect matter hereof, and any and all prior or contemporaneous oral or written representations, agreements, understandings and/or statements shall be of no force and effect. This Agreement is not intended to supersede or amend any other agreement between theparties unless expressly noted. (d) Recitals; Exhibits. Any recitals set forth above and any attached exhibits are incorporated by reference into this Agreement. (e) Compliance With Laws. In the performance of its obligations under this Agreement, PVWP, its agents and employees, shall comply with any and all applicable federal, state and local rules, regulations, ordinances, policies, permits and approvals. 912B10S -8- 0655~O-0011 291757.1 2-212 (f) Authority of Signatories. Each signatory and party hereto hereby warrants and represents to the other party that it has legal authority and capacity and direction from its principal to enter into this Agreement, and that all resolutions and/or other actions have been taken so as to enable said signatory to enter into this Agreement. (g) Modification. This Agreement may not be modified, tenninated orrescinded, in whole or in part, except by written instrument duly executed and acknowledged by the parties hereto, their successors or assigns, and duly recorded in the Official Records of the San Diego County Recorder's Office. (h): Severability. If any term, covenant or condition of this Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such term, covenant or condition to person or circumstance, shall not be affected thereby and each term, covenant or condition shall be valid and be enforced to the fullest extent permitted by law. (i) Preparation of Agreement. No inference, assumption or presumption shall be drawn from the fact that a party or its attorney prepared and/or drafted this Agreement. It shall be conclusively presumed that both parties participated equally in the preparation and/or drafting of this Agreement. [REMAINDER OF P AGE INTENTIONALLY LEFT BLANK] 9/28105 -9- 065550..Q01l 291757.1 2-213 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first set forth above. "City": CITY OF CHULA VISTA, a municipal corporation By: Stephen C. Padilla, Mayor Attest: Susan Bigelow, City Clerk APPROVED AS TO FORM: By: Ann Moore, City Attorney "PVWP": PROCTOR V ALLEY WEST PARTNERS, LLC, a Delaware limited liability company By: Trimark Pacific-Montecito, LLC, a California limited liability company By: TJ:'H LLC, a California limited liability company, Member Manager By: Trimark Ventures, Inc., a California corporation, Its: MZ ~jJ) B St~. Hester "- Its: Vice President ^ E~~4'-'e.... 9128/05 -10- 065550-0011291757.1 2-214 STATE OF CALJFORNIA ) o .,) ) ss. COUNTY OF nlr-~) J. I ^ I. . !U On t \) /11 , 200~, before me, . V V~ l (I Notary Public in and for said State, personally appeared ~ h.t1fl.- ~ . .~t't- , personally known to me fa, pwv"J tv lll" uu the basis gf ~~tisfo~tQry ","ideu<:0) to be the perso~ whose name.Y>Jls~subscribed to the within instrument and acknowledged to me that he/s~y executed the same in his~r authorized capacity~d that by hisih8f,!th~;,-signature(s1-tm ~e instrument, the person~r the entity upon behalf of which the perso~cted, executed the mstrument. WITNESS my nand offital seal. I . · Signature ~ - ()/I.. () r---::}:----t _& ~~41246S :S NaIary PubIc _ ~ ! 0Iange CoIroIy - '.. t _ _ _ ~~_~_~~~ (Seal) STATE OF CALIFORNIA ) ) ss. COUNTY OF ) On ,200_, before me, Notary Public in and for said State, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person( s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in hisiher/their authorized capacity(ies), and that by hisiher/their signature( s) on the instrument, the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seaL Signature (Seal) 9128105 -11- 065550-0011 291757.1 2-215 EXHIBIT "A" LEGAL DESCRIPTION ALL THAT LAND INCLUSIVE OF CHULA VISTA TRACT NO. 99-04, SAN MIGUEL RANCH PLANNING AREA "L", ACCORDING TO MAP THEREOF NO. FILED IN THE OFFICE OF THE SAN DIEGO COUNTY RECORDER ON IN THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA. Jl,~~c:2/L ~~C05" - DAVID w. AMBLER L .7322 HUNSAKER & ASSOCIATES SAN DIEGO, INC. PAGE 1 OF 1 :ov M:\0061\419\Legal Oescriptions'AD4 Esmts & Maint L c.~_ 21 6 WQ 0061-0419 11/10/05 ;g = ,...:I 0\ = O\~ ~ g~c<) ~f-<d~ ... U 7. 0 ~~H..... ~f-<~G1 ~~j~ ~~P-<CI) ~>~ j[/J ::>~ ;r:;r: uP-< - I "" i;ij fE ~ gJ U : 37 .,,:is 001: =" ! , _C , =-- ::J:O. , "v.. .L07 2-217 "" i;ij fE ~ t"I I "" i;ij fE Q;: ~ ~ U ~ I .... <J:> <J:>!J::c:i c:i~~~ ~"';!;l. co e-,O::: :;1::: ~~, c:i ~t5;<:~ ~~C':>!;l. e-; ~ ~~~~ tr,j~ ~ !;l. :::; t3 '" ~ ~ ~ <n a a ~ .n a a N I ~ , 0- ~ " :n " ~ t;; :> '" ..; a >- :I: " +' C d ~ I:&: ffi~: ! I g ~~= ~~I!i! ~"'; h ~ =><. .! d ::I::~: Ii J ~ III ~ <= '" """ - 0- I~ 0\= o;~ ~ 0 ~ ~ Z ~E-< M ~ U d ~ ~;2~~ ~ ~~~ ~E-<~~ tZI '" ::r: ~"""tZI t~, > C'f") ~-<~ ~~ uP-< 73:JWd "V" .L07 ..... :f; '< ..... ~ ,DOG = "I :J7KJS ~~, , ~ ~ c.:; ~ e.., o ...:j '<j< c I ... 0> O>~O Oc.:;~~t'J ~ ~~ e.., '<j< t.:i..:l ... ~><i' . E...~;>:~ ,... e:;;:;jt'J':1 [3~~~ ~rt.j~ :::; IJ., t3 '" o a; o on o o OJ I '" OJ I C- o. '" in " ~ t3 ,. " oj o I- := '" ... 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I~ '"':!:: J iJ ~1:5: JUl' '" ~~: - i ~ :r:olS: &J ~ .1111 '" EXHIBIT "C" Maintenance ResDonsibilities City of Chula Vista Area HOA Maintenance Maintenance Parkways within those Landscaping in the parkways Maintenance of curb, gutter, portions of those public road including irrigation, trimming sidewalks and pavement. shown on Exhibit "B" and pruning of trees, and maintenance and irrigation of turf areas, and maintenance of any project signage or similar proj ect monumentation. 9/28105 065550-0011291757.1 2-220 COUNCIL AGENDA STATEMENT .< Item 0-/ Meeting Date: 01/24/06 ITEM TITLE: Resolution authorizing the reallocation of Community Development Block Grant (CDBG) funds and Residential Construction Tax (RCT) funds among various existing capital improvement projects. SUBMITTED BY: Director of General Services A J} . /"1 R'J' City Manager J I .it'--]1 (4/Sths Vote: YesXNo--> REVIEWED BY: Reallocation of Community Development Block Grant (CDBG) funds and Residential Construction Tax (RCT) funds has become necessary in an effort to expend funds in a timely manner to various CDBG eligible existing capital improvement projects as well as reallocate funds in older projects to current year proj ects and recover staff time as necessary. RECOMMENDATION: That Council authorize the reallocation of Community Development Block Grant (CDBG) funds and Residential Construction Tax (RCT) funds among various existing capital improvement projects. BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. DISCUSSION: The City's budget transfer policy calls for City Council's approval for transfers more than $15,000 between project budgets. Through close communications with Community Development staff and as a result of the recent audit activities with respect to the City's CDBG program, it has been determined that various reallocations among existing CIP projects are necessary to expend CDBG funds in a timely manner. Some of these expenditures need to occur by April 30, 2006 in order for the City to demonstrate its ability to utilize its CDBG funding in an appropriate and timely manner. In addition, some of the transfers will reallocate funds in older projects to current year programs for expenditure and recovery of City staff time. Regarding capital improvement projects PSI45 (Fire Station #5, Program/Site Analysis and STM354 (North Broadway Reconstruction), the transfer "out" of CDBG funds trom PSI45 will be replaced by the transfer "in" ofRCT funds trom STM354 and vice versa. The various inter-project transfers are detailed in Attachment A. The reallocation of funds only relates to the budgets of the specific projects and it is not a reallocation of any expenses within those projects. The reallocations as detailed in Attachment A will result in a timely expenditure of CDBG funds, enable recovery of prior years staff time trom completed projects and reallocate previous year projects to current projects. FISCAL IMPACT: There is no impact to the General Fund as all the transfers are trom existing CDBG funds and RCT funds. Attachment A: List of inter -proj ect transfers M:\General Services\GS Administration\Councij Agenda\CDBG Project Reallocations\FY06 CDBG Reallocations.doc 3-1 <( ... Z W :;; I o <( ~ -;;; t; Ol .0' " ct "0 Ol "0 C " w- el CD o 8 '" c .9 rn u .Q rn Ol 0: t; Ol "i5' ii:. a.. (j '0 ;;; :::; 2 '" c ro ;:: 1; u.. e o '" '" Ol 0: '" '" Ol Ol B'Cl ro ro r: .c.c:w I.Ow~ U U 0 0 l1> l1> 0 ---0 z E EN;: C\I ~ ~.,~o.ca :t::t=: 0 Qi 0 .... roroC'>.cMI- rnti)=E! 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I "' I CD CD 0 .s t-_ '" ~ ..,. <t5 ~ I 0 '" '" ~ "'- e: .. .... ~ I!! .... f- "' CD CD 0 :; t- '" 0 ..,.- <t5 ~ 0 :' ~~ ~ ~ '" .... ~ e: .... "' ~ I I '" I~ I "' I I e: e: " ..: .Q E I "13 I Ii :'.::: :::I 00 ~ I. E~ 1 ~ I. "' 0 ,g ~ U 0>" g . ea:: a.>> . = "' "' 1 "' .. ~ " e:"O a:: o "' .f- :.0:; e () ..!!i'" . a:: OO.c: - "t "' .: 0 :-::.,~ u.2 ~ " .c E " 2 13 ..,. I.!]! "'"' e ..,.'" a. ~:;;: OOf- a. 00 RESOLUTION NO. 2006- RESOLUTION AUTHORIZING THE REALLOCATION OF COMMUNITY DEVELOPMENT BLOCK GRANT (CDBG) FUNDS AND RESIDENTIAL CONSTRUCTION TAX (RCT) FUNDS AMONG VARIOUS EXISTING CAPITAL IMPROVEMENT PROJECTS. WHEREAS, reallocation of Community Development Block Grant (CDBG) funds and Residential Construction Tax (RCT) funds has become necessary in an effort to expend funds in a timely manner to various CDBG eligible existing capital improvement projects as well as reallocate funds in older projects to current year projects and recover staff time as necessary; and WHEREAS, the City's budget transfer policy calls for City Council's approval for transfers more than $15,000 between project budgets; and WHEREAS, through close communications with Community Development staff, it has been determined that various inter-project transfers are necessary to expend CDBG funds in a timely manner thus necessitating the reallocation of CDBG funds between existing CDBG eligible capital improvement projects; and WHEREAS, in addition, some of the transfers will reallocate funds in older projects to current year programs for expenditure and recover staff time as necessary; and WHEREAS, the various inter-project transfers are detailed in Attachment A; and WHEREAS, regarding capital improvement projects PSI45 and STM354, the transfer "out" of CDBG funds from PS145 will be replaced by the transfer "in" of RCT funds from STM354 and vice versa; and WHEREAS, there is no impact to the General Fund as all the transfers are from existing CDBG funds. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby authorize the reallocation of Community Development Block Grant (CDBG) funds and Residential Construction Tax (RCT) funds among various existing capital improvement projects as depicted on Exhibit A attached hereto. 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"- '" ex> ex> 0 E .... m ~ '" cD ~ 0 M '" ;;; m_ e: ~ co <I> jC: '" ex> '5 ex> 0 ....- m 0 ... cD ~ 0 M ~ ~ m_ '" <I> ~ e: <I> co jC: '" I~ co e: e: Q) <{ .2 E 2 13 co ::> Z U5 ~ 13 E 1;; '" e: e: Q) co a .2 a I~ u ro a: Q) e 0:: u "- >. .Q '" co c;; .. ;0 Q) e: -0 0:: .2 co f- a ]j cD U 0:: CI) .c: c;; ~ t a 0 iI: z f- a; .0 E ::> Z 13 ... 1.'!1 '" '" a ... M a: ~ :;; CI) f- "- CI) 13 Q) .e- "- "- U '0 1;; :.:J COUNCIL AGENDA STATEMENT Item: '-I Meeting Date: 01/24/06 ITEM TITLE: Resolution Approving an agreement between the City of Chula Vista and the Sweetwater Union High School District for the provision of middle school after-school ograms and authorizing the Mayor to execute said agreement. (4/Sths Vote: Yes _ No X ) SUBMITTED BY: Director ofRecreati REVIEWED BY: City Manager i P The Sweetwater Union High School District (SUHSD) has awarded the City, through its Recreation Department, a $100,542 contract for the provision of after-school programming at six Chula Vista Middle Schools. The adopted FY06 Recreation Department budget includes funding for this middle school program contract. RECOMMENDATION: That Council adopt the resolution approving the agreement between the City and SUHSD for the provision of middle school after-school services at six Chula Vista middle schools, in the amount of$100,542 and authorizing the Mayor to execute said agreement. BOARDS/COMMISSIONS RECOMMENDATION: N/A DISCUSSION: The Recreation Department and the Sweetwater Union High School District (District) jointly fund the Middle School after-school program (Club Teen Connection or Club TC). The program is additionally funded from Critical Hours Grants and Safe Neighborhood, Safe Schools Grants received by the individual schools. Collaborative partners in the program include the YMCA and South Bay Community Services, as well as the individual schools. Activities include sports, crafts, homework help, games, special events, field trips, specialized classes and much more. The program is free to all participants. The City of Chula Vista provides recreational programming during non-school hours at the six middle schools designated below. Programming under the agreement will be provided as follows: Chula Vista Middle School: two (2) hours/day, five (5) days/week, for thirty-eight (38) weeks when school is in session; Castle Park Middle School: two (2) hours/day, five (5) days/week, for thirty-eight (38) weeks when school is in session; Hilltop Middle School: two (2) hours/day, five (5) days/week, for thirty-eight (38) weeks when school is in session; Rancho Del Rey Middle School: two (2) hours/day, five (5) days/week, for thirty-eight (38) weeks when school is in session; 4-1 Page 2, Item: Meeting Date: 01/24/06 Bonita Vista Middle School: two (2) hours/day, five (5) days/week, for thirty-eight (38) weeks when school is in session (staff is working with the school to increase the program to five days per week); Eastlake Middle School: two (2) hours/day, five (5) days/week, for thirty-eight (38) weeks when school is in session; Thee (3) hours/day, (5) days/week for eight (8) weeks for summer sessions at two designated schools. As part of the agreement the City also contracts with the South Bay Family YMCA to provide additional and supplemental programming at Castle Park, Hilltop, Rancho Del Rey and Chula Vista Middle Schools. Attendance has grown from 1,500 annually to a projected 100,000 thru the 2005-06 school year. The success of the program has been brought about by various factors including expansion of days ofprograrnrning, increased staff, on-site coordinators from each school, and maturation of the cooperation between the participating agencies. FISCAL IMPACT: SUHSD funds one-half of the cost of the middle school program, or $100,542. Expenditures and revenues for this program are currently included in the FY06 Recreation Department budget, and do not need to be appropriated. SUHSD will reimburse the City quarterly for expenses following the submittal of invoices for services rendered. Attachment: "A" - Agreement between the Sweetwater Union High School District and the City ofChula Vista 4-2 RESOLUTION NO. 2006-_ RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AN AGREEMENT BETWEEN THE CITY AND THE SWEETWATER UNION HIGH SCHOOL DISTRICT TO PROVIDE MIDDLE SCHOOL AFTER-SCHOOL PROGRAMS AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT WHEREAS, the Sweetwater Union High School District (SUHSD) has awarded to the City, through its Recreation Department, a $100,542 contract for the provision of after-school programs at six Chula Vista Middle Schools; and WHEREAS, the Recreation Department and the Sweetwater Union High School District jointly fund the Middle School after-school program (Club Teen Connection of Club TC); and WHEREAS, the program receives additional funding from Critical Hours Grants and Safe Neighborhoods, Safe Schools Grants. These grants are awarded to individual schools; and WHEREAS, collaborative partners in the program include the YMCA, South Bay Community Services, and the individual schools; and WHEREAS, activities include sports, crafts, homework help, games, special events, field trips, specialized classes and much more; and WHEREAS, as part of the agreement the City also contracts with the South Bay Family YMCA to provide additional and supplemental programming at Castle Park, Hilltop, Rancho Del Rey and Chula Vista Middle Schools. NOW, THEREFORE, BE IT RESOLVED the City Council of the City ofChula Vista does hereby approve the agreement between the City of Chula Vista and the Sweetwater Union High School District for the provision of middle school after-school programs at Chula Vista, Castle Park, Hilltop, Rancho Del Rey, Bonita Vista, and Eastlake, and authorizing the Mayor to execute said agreement. Presented by Approved as to form by Buck Martin Recreation Director ~~~,S(~,,~\\ Ann Moore City Attorney H:AttomeylFinaJ Resos/2006/ 1 24 06/Sweetwater Union High Agreement 2006 4-3 THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIL "'i~<:N>\\S'\t\ ...~\" , Ann Moore City Attorney Dated: \ - \1) - <:J\Q Middle School Recreation Programs Memorandum of Understanding between the City of Chula Vista and Sweetwater Union High School 4-4 MIDDLE SCHOOL RECREATION PROGRAMS Memorandum of Underst.anding Between City of Chula Vista And Sweetwater Union High School District THIS AGREEMENT by and between the City of Chula Vista, (hereinafter referred to as "City") and the Sweetwater Union High Schaal District (hereinafter referred to as "District"), WHEREAS, the City and District provide after school programs at the middle schools in the City of Chuia Vista, and WHEREAS the parties wish to continue that programming for the benefit of the community, NOW, THEREFORE, it is agreed by and betv.!&en District and City as follows: 1. IEB.M - The term of this agreement shall be for a period of 12 months, commencing on July 1, 2005, and ending June 30, 2006. This agreement may be extended for one-year terms in writing by the parties. This agreement may be terminated by either party upon thirty (30) days written notice. 2. PROGRAM - City shall provide recreational programming during non-school hours at designated middle scho!=,ls. Programming will be provided as follows; Chula Vista Middle School: two (2)hours/day, five (5) days/week, for thirty-eight (38) weeks when school is In session; Castle Park Middle School: two (2)hours/day, five (5) days/week, for thirty-eight (38) weeks when school is in session; Hilltop Middle School: two (2)hours/day, five (5) days/week, for thirty-eight (38) weeks when school is in session; Rancho Del Rey Middle School: two (2)hours/day, five (5) days/week, for thirty-eight (38) weeks when school is in session; Bonita Middle School: two (2)hours/day, five (5) days/week, for thirty-eight (38) weeks when school is in session; Eastlake Middle School: two (2)hours/day, five (5) days/week, for thlrty-eight (38) weeks when school is in session; and three (3)hours/day, (5) dayslweek for eight (8) weeks for summer sessions at two . designated schools" SUHSD.MOU d"rt 2005-06 4-5 In addition, City shall contract with the YMCA of San Diego County to provide additional and supplemental programming at the middle schools named above. The majority of programs will be conducted and provided on middle school sites. Special Events may occur and take piace in other areas of City during the time-period of the Agreement. 3. FlJNnlNG - it is agreed that the District will provide $100,542 ("Funds") to partially offset the cost of staffing, supplies, and supervision of the programs during the period of this Agreement. Funds shall be disbursed to City following receipt of City invoice for payment. Funding shall be utilized as follows: On-Site Programmatic Staff Supervisory Oversight - A Supervisory Oversight - B Supplies and Services Contract Costs with YMCA TOTAL $38.227 $ 7,313 $39,315 $ 8,182 $ 7,505 $100,542 . 4. CONSlnFRA TION - It is agreed that the City will match District funding, and will absorb other necessary additional expenses for required services in connection with the provision of programs outlined in this agreement. 5. NOTICF - Any notice required or permitted pursuant to this Agreement, shall be given by personal service or by deposit of the same in the U.S. Mail, postage prepaid and addressed to the parties as follows: City: Buck Martin, Director Recreation Department City of Chula Vista P.O. Box 1087 ChuJa Vista, CA 91912 District: Superintendent Sweetwater Union High School District 1130 Fifth Avenue Chula Vista, CA 91911 6. INnFMNIFIr.ATION ANn INSIIRANCF - The Terms and provisions of the existing Cooperative Facilities Use Agreement between the City and the District shall be in full force and effect throughout the term of this Agreement. A copy of this agreement is attached hereto as Exhibit "N, and is incorporated by reference. SUHSO.MOU dran 2005.06 ? 4-6 7. PERMITS - City shall complete and submit District's Application and Pemnit for Use of School Facilities and Grounds as required by each school site administrator. 8. FINGERPRINT C':I FARANC':F Each party is responsible for fingerprinting its empioyees who will be working with students. If the City or District discover that an individual in their respective employment is placed at the school site who has a serious or violent felony conviction as defined by the Education Code, Section 44830.1, or a sex offense conviction or controlled substance convi9tion as defined by the Education Code, Section 44011, that individual's employment status and/or duties will be altered to comply with all local, state, and federal laws/regulations. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day indicated in the terms of the Agreement. Dated: ,2005 - Sweetwater Union High School District ~4~~ Superintendent THE CITY OF CHULA VISTA Stephen C. Padilla, Mayor Approved as to form by: Ann Moore City Attorney Attest: Susan Bigelow, City Clerk SUHSD.MOU draft 2005-06 1 4-7 COUNCJL AGENDA STATEMENT r Item v Meeting Date 1/24/2006 ITEM TITLE: COUNCIL RESOLUTION Approving the Second Amendment to existing contract between the City ofChula Vista and Five other Agencies and Digital Mapping, Inc. (DMI), the Consultant, for Orthophotography Services. SUBMITTED BY: Director of Management & Information service# REVIEWED BY: City Manager (4/5thsVote: Yes_No.]LJ The City has completed the first part of a two-phased project to create new high resolution orthophotography and 2 foot contours as part of the City's Geographic Information System. The orthophotography phase was successfully completed in phase one, and the second phase calls for the generation of2 foot contours. The new contours are important to multiple departments and are greatly in need of updating. Significant landform changes have occurred since the last citywide contour project in 1994. RECOMMENDATION: That Council approve awarding the Second Amendment to the Orthophotography/Topography Contract to DMI. BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. DISCUSSION: The orthophotography/topography project was designed to have two phases. The first phase was the generation of the orthophotos themselves. Aerial photography was flown in September 2004 and the processing (orthorectification, color balancing, tiling, etc.) was completed in May 2005. The quality of the imagery is uniformly excellent. The images are being used by City staff daily - in Police and Fire vehicles, at our Planning and Engineering Front Counters, in Public Works when a call for service is made and by the GIS Staff. The imagery is also available for viewing by the public on the internet. This was a partnership project with a total of originally six agencies involved (the cities of Chula Vista, National City, and Escondido, plus the Port of San Diego, the Otay Water District, and the Sweetwater Authority.) Amendment #1 to the original contract brought in three additional agencies - the cities of Coronado and Imperial Beach plus the U.S. Navy. This has been a win-win project for everyone involved, with the partners sharing equitably in the costs of the project. The cost of the first phase of the project was $153,750 plus $8,000 for a consultant to assist in the preparation of the RFP. The City of 5-1 Page 2, Item 6 Meeting Date 1/24/2006 Chula Vista's portion of this was $26,750. Phase one of the project has successfully been completed. The Orthophotography Project was designed ftom the beginning for this second phase of the project - the generation of2' contours. The City has not had a complete update of its contours since 1994. Many parts of the City have seen substantial grading since that time and the new contours are greatly needed by many departments, but especially by Engineering, Planning and Public Works. A formal RFP process_was followed to select the consultant, Digital Mapping Incorporated (DMI) of Orange County, for the first phase of the project. This firm has been very cooperative in all respects and has been willing and able to respond to all of the partners' requests. We are recommending that we continue to work with this consultant for the second phase of the contract (Amendment #2). Phase two of the project is dependent on the data generated by the first phase. DMI has all of the data, is quite familiar with it, and is able to make the transition to phase two without any significant start-up costs. If a different vendor were selected for phase 2, substantial data transfer and possible software translation costs may be required. The contract cost for Phase 2 is $160,000, and this is solely for the South County portion of the original project. Because there has not been substantial mass grading since its last update, the City ofEscondido declined to participate in the second phase of this contract. The City of Coronado has also declined to participate in this phase since it recently acquired 2' contours on another project, and the City of National City has also opted not to participate in this phase. Therefore, the total costs of this project must be borne by fewer members. The City's portion of this phase is $54,800. . FISCAL IMPACT. The funding for the requested amendment is already budgeted for in the CIP Budget under 00-183, with a unencumbered balance of approximately $62,000. 5-2 RESOLUTION NO. 2006- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE SECOND AMENDMENT TO AN EXISTING CONTRACT BETWEEN THE CITY OF CHULA VISTA AND FIVE OTHER AGENCIES AND DIGITAL MAPPING, INC. (DMI), THE CONSULTANT, FOR ORTHOPHOTOGRAPHY SERVICES WHEREAS, the City has completed the first part of a two-phased project to create new high resolution orthophotography and 2 foot contours; and WHEREAS, the orthophotography phase was successfully completed in phase one, and the second phase calls for the generation of 2 foot contours; and WHEREAS, the new contours are important to multiple departments and are greatly in need of updating; and WHEREAS, aerial photography was flown in September 2004 and the processmg (orthorectification, color balancing, tiling, etc.) was completed in May 2005; and WHEREAS, the images are being used by City staff daily - in Police and Fire vehicles, at our PI arming and Engineering Front Counters, in Public Works when a call for service is made and by the GIS Staff; and WHEREAS, this is a partnership project that originally included six agencies: the cities of Chula Vista, National City, and Escondido, the Port of San Diego, the Otay Water District, and the Sweetwater Authority;) and WHEREAS, Amendment #1 to the original contract added three additional agencies: the cities of Coronado and Imperial Beach, and the U.S. Navy; and WHEREAS, this has been a win-win project for all participating agencies, with each party sharing equitably in the costs of the project; and WHEREAS, phase one of the project has successfully been completed, and WHEREAS, the City has not had a complete update of its contours since 1994; and WHEREAS, a formal RFP process was followed to select the consultant, Digital Mapping Incorporated (DMI) of Orange County, for the first phase of the project; and WHEREAS, Microcomputer Information Systems (MIS) is recommending that the City continue to work with DMI for the second phase of the contract (Amendment #2); and H:\Attorney\Final Resos\2006\1 24 06\DMl Orthophotography 2nd Amendment.doc 5-3 WHEREAS, DMI has all the necessary data, and is quite familiar with the data, and is able to make the transition to phase two without any significant start-up costs; and WHEREAS, if a different vendor were selected for phase 2, substantial data transfer and possible software translation costs may be required; and WHEREAS, the City's portion of this phase of the project is $54,800. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City ofChula Vista does hereby approve the Second Amendment to the existing contract between the City of Chula Vista and Five other Agencies and Digital Mapping, Inc. (DMI) for Orthophotography Services. Presented by Approved as to fo= by ~CN\\\~f~~ Ann Moore City Attorney Louie Vignapiano Director of Management & Information Services H:lAttomeylFinal Resos\2006\ 1 24 06\DMl Orthophotography 2nd Amendment.doc 5-4 THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIL ~~~~~~ Ann Moore City Attorney Dated: If(8jol, Amendment #2 to Agreement between Chula Vista, Imperial Beach, Otay Water District, Sweetwater Authority, the San Diego Unified Port District, and U.S. Navy Region Southwest Facilities and Digital Mapping, Inc. for Orthophotography 5-5 Amendment #2 to Agreement between City of Chula Vista, City of Imperial Beach, Otay Water District, Sweetwater Authority, the San Diego Unified Port District, and the URS Corporation And Digital Mapping, Inc. For Orthophotography Services: 2' Contour Generation The parties to this Amendment #2 to Agreement No.47403 are the City of Chula Vista, the City of Imperial Beach, the Otay Water District, the Sweetwater Authority, t~e Sa,n Diego Unified Port District, the URS Corporation, and Digital Mapping, INC. The URS Corporation replaces the US Navy Region Southwest Facilities as a participating agency on this amendment. Recitals: The City of Chula Vista, the City of Imperial Beach, the Otay Water District, the Sweetwater Authority, the San Diego Unified Port District, and the US Navy Region Southwest Facilities, and Digital Mapping, Inc are parties to an agreement for Orthophotography Services. The agreement is on file in the office of the District Clerk as Document No. 47403, dated June 3, 2004. An Amendment #1 was issued on August 27,2004. The agreement is further amended to add the following language to section 1.B, 2.B and Exhibit "Au: 1. ~ 1.B. Scope of Work and Schedule In addition to the services described in Exhibit "Au of the Agreement, Consultant shall produce digital 2 ft contours for areas as specified in the attached map, Amendment #2, Exhibit "A.U The accuracy requirements will be based on ASPRS Accuracy Standards for large-scale maps. Ninety percent of the elevations determined from the 2' solid line contours of the planimetric maps will have an accuracy with respect to true elevation of one-half the 2' contour interval or better. The remaining 10 percent of such elevations will not be in error by more than 2 feet. Ninety percent of the spot elevations placed on the maps will have an accuracy of 6 inches (one-fourth the contour interval) and the remaining 10 percent will not be in error by more than 1 foot (one-half the contour interval). The file format shall be shape file or Arc/Info .eOO format. The elevation value of each contour shall be an attribute (field) in the database. A separate attribute (field) shall indicate if the contour is an index contour (every 10 feet). A Metadata file shall be provided as well in a format consistent with GFDC standards (in XML or ASCII format). 5-6 Amendment # 1 To Agreement For Orthophotograhpy Services Signature Page 2. S 2.B. Compensation In addition to the amounts specified in Exhibit "A," Section 11 (D) of the Agreement, the participating agencies agree to pay the Consultant, through the City of Chula Vista, the amounts listed below. These agencies agree to deposit these amounts in full with the City of Chula Vista within 30 days after all parties have agreed to and signed this amendment. Said amounts will be placed in a deposit account to be used solely for the payment of Consultant's orthophotography products and services, pursuant to the terms of this Agreement and any Amendments thereto. City of Chula Vista: Otay Water District: Sweetwater Authority: Port of San Diego: The URS Corporation: City of Imperial Beach: $14,400 $54,800 $54,800 $16,800 $16,000 $ 3,200 3. Exhibit "A", S 11 (D) Exhibit "A", Compensation Schedule (Section 11 B) payment chart in the Agreement is hereby supplemented with the following: Phase Fee for Said Phase 7. Delivery of 2' contours in digital format within 120 days $160,000 of the signing of this amendment by all parties. Total $160,000 4. All other terms and conditions of the Agreement remain unchanged. IN WITNESS WHEREOF, cities, agencies and Consultant have executed this Amendment thereby indicating that they have read and understood same, and indicate their full and complete consent to its terms: Dated: ,2006 . 5-7 Amendment # 1 To Agreement For Orthophotograhpy Services Signature Page CITY OF CHULA VISTA by: Steve Padilla, Mayor CITY OF IMPERIAL BEACH by: by: Print NamelTitle Print NamelTitle SAN DIEGO UNIFIED PORT DISTRICT by: by: Print NamelTitle Print NamelTitle OTA Y WA TER DISTRICT by: Print NameJTitle SWEETWA TER AUTHORITY by: Print NamelTitle 5-8 Amendment # 1 To Agreement For Orthophotograhpy Services Signature Page CITY OF CHULA VISTA by: John Coggins, Purchasing Agent by:~9 / CITY OF IMPERIAL BEACH by: c7~ry (3rbwN. 0+ ~^,"K- PriAt NamelTitle Print NamelTitle ~. _ _/ SAN DIEGO UN/FlED PORT DISTRICT bY~ by: Mvl.-~ M~~ Print NamelTitle Print NamelTitle by: l ~ ?5kU<4Ui G?v~ S+0-'(~S Ie l () Print NamelTitle OTA Y WA TER DISTRICT byCJGt'< ~s:i1t.!:;:' - I.C;-.D',~ Print amelTitle SWEETWA TER AUTHORITY 5-9 Amendment # 1 To Agreement For Orthophotograhpy Services Signature Page URS Corporation E'e.lL:\. ~rkSE'/SANT:JItb.O Print Name/Title 'Pl.-A'JNlr.X.1 MNJ/Jqefl. ~ . D/~/TAL MAPPING, INC. by: ?fA.. ~ft~ by: f /-/8_06 Print Name/Title Print Name/Title G 6tUCJ4 (j,J4 ,4 LI'j/42lC (oC.i.A/t. ceo 5-10 Amendment # 1 To Agreement For Orthophotograhpy Services Signature Page . EXHIBIT A . Exhibit A: Amendment #2 ~ ,.} i ~ J ...... ... D \ :'~ " - !'. '''~I" , *. , .<,,;,;. ~;""",, s," ... . .'.~ 02' Contour THe. '" ;;\:t .. EEm Water and ather HIes ',,~ (no contours) ~ ft'~ '" .;;,~ ,.-~ 5-11 COUNCIL AGENDA STATEMENT I Item it? Meeting Date 01/24/2006 ITEM TITLE: Ordinance Consideration of adopting an Ordinance of the City Council of the City of Chula Vista, Adding Chapter 9.80 to the City of Chula Vista Municipal Code to regulate the proximity of sex offenders to schools and parks. Chief of pOlice~ City Manager f! ~ p f SUBMITTED BY: REVIEWED BY: Convicted sex offenders who have committed a sexual offense against children pose a threat to the children residing or visiting in our community, and therefore the City Council of the City of Chula Vista desires to impose additional safety precautions to further the goal of protecting children throughout the City of Chula Vista. RECOMMENDATION: That Council adopts the Ordinance adding Chapter 9.80 to the City of Chula Vista Municipal Code to regulate the proximity of sex offenders to children's facilities. BOARD/COMMISSION RECOMMENDATION: N/A DISCUSSION: In response to direction from the City Council, the proposed ordinance has been prepared in order to reduce the potential risk of harm to children of the community from convicted sex offenders who have committed a sexual offense against children. Sex offenders pose a clear threat to the children residing, or visiting in our community. The City Council of the City of Chula Vista desires to impose safety precautions in furtherance of the goal of protecting our children. The purpose of this regulation is to reduce the potential risk of harm to children of our community by impacting the ability for sex offenders to reside near schools and parks, areas commonly occupied by children. The proposed ordinance would add Chapter 9.80 to the Municipal Code. This enhancement to the Municipal Code would prohibit registered sex offenders whose crime was against a minor from residing within five hundred (500) feet of the real property of a school, grades kindergarten through eight or within five hundred (500) feet of the real property of a park. Following notification by the Chula Vista Police Department of the requirements of this ordinance, any violation of this section is a misdemeanor punishable by a fine of up to and including $1000 and/or six months in the county jail. This new ordinance would not apply to any person who has established a residence prior to July 1, 2006. 6-1 Page 2, Item ~ Meeting Date 01/24/06 FISCAL IMPACT: Adoption of the proposed ordinance will not require any additional appropriations. Attachments: A. Map of restricted residency 6-2 ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ADDING CHAPTER 9.80 TO THE CITY OF CHULA VISTA MUNICIPAL CODE TO REGULATE THE PROXIMITY OF SEX OFFENDERS TO SCHOOLS AND PARKS. WHEREAS, convicted sex offenders who committed a sexual offense against children pose a clear threat to the children residing, or visiting in our community; and WHEREAS, The City of Chula Vista currently places a high priority on maintaining public safety through a highly skilled and trained police department as well as laws that deter and punish criminal behavior; and WHEREAS, it is the intent of the City of Chula Vista in enacting this measure to help its citizens and their children have additional precautions. It is not the intent of the city to embarrass or harass persons convicted of sex offenses. NOW, THEREFORE, the City Council of the City ofChula Vista does hereby ordain: FINDINGS AND DECLARATIONS The City of Chula Vista finds and declares each of the following: (a) The City of Chula Vista currently places a high priority on maintaining public safety through a highly skilled and trained police department as well as laws that deter and punish criminal behavior. (b) It is the intent of the City of Chula Vista in enacting this measure to help its citizens and their children have additional precautions. It is not the intent of the city to embarrass or harass persons convicted of sex offenses. (c) Chula Vista must take additional steps to monitor sex offenders and protect children. DEFINITIONS "Park" or "city park" means the land and easements owned or leased by the city of Chula Vista which, by ordinance, resolution, regulation or agreement, is dedicated to or operated by the city for purposes of sports and public recreation. "Person" means a person who has committed a sexual offense against or involving a minor for which the person must register as a sex offender pursuant to Penal Code 9 290. 6-3 Ordinance No. Page 2 of2 RESIDENCY RESTRICTIONS - SCHOOLS AND PARKS I. A person shall not reside within five hundred (500) feet of the real property of a school, grades kindergarten through eight. 2. A person shall not reside within five hundred (500) feet of the real property of a park. 3. Following notification by the Chula Vista Police Department ofthe requirements of this ordinance, any violation of this section is a misdemeanor punishable by a fine of up to and including $1000 and/or six months in the county jail. 4. This section shall not apply to any person who has established a residence (at which this person lists as his or her address for Penal Code ~ 290 registration) prior to July 1,2006. SEVERABILITY If any provisions or clause of this Division or the application thereof to any person or circumstance is held to be unconstitutional or otherwise invalid by any court of competent jurisdiction, such invalidity shall not affect other provisions of this Division or clauses or applications thereof which can be implemented without the invalid provision, clause or application, and to this end, the provisions and clauses ofthis Division are declared to be severable. SECTION 3. Effective Date. This Ordinance shall take effect and be in full force on adoption of this ordinance. Presented by: Approved as to form by: Richard P. Emerson Chief of Police 1f2t~ ~ Ann Moore City Attorney H:/ Attorney/Final Resos/2006/1 24 06/Proximity of Sex Offenders 6-4 a> '" '" '" '" a> '" '" '" ~ ~.z ~ N '" '" '" -n (1) ~ tI:! . . 0111 ." ." '{I m 'CD . . " >- >- ~ 3 0 . . 0 . CO '" ;;; " =. '" " ~ '!: " '" '" " 0- ~ ~ " Q ~ Q ~ ~ 0 " 0 ~ r; ~ 0 0 ;;; ,,'a,, IN.awR8VllV 6-5 (J) (') ':s' o o - en 0) =' 0. "'0 0) .., '" en ~ -. r+ ':s' 0"1 o o -n o o r+ 0] C ~ CD .., ~V?- -.- ~-- ---- ~~=-~ Mayor and City Council City Of Chula Vista 276 Fourth Avenue Chuta Vista, Ca 91910 619.691.5044 - 619.476.5379 Fax MEMO OlY OF CHUlA VISTA 1"'"..' "~....~;j;t'~~,''''' \ ~_~~1""~ ;:;;""'''t n "...~> . -,:'it~.''1~QJ'''\. ,.i"',,-'"";t-.... ..f>1.lirif~.""+,,~'. "...._~_"":)> ':;;':-:';" ~ '" \ ~ '.}..'t:!;f' ;'",^-'.< ....':ft.li -l\-.... ~. .~(...' '" 0 '. , """'li....., 'r-:." '" ""p< ~ Thursday, January 12, 2006 TO: Lorraine Bennett, City Clerk FROM: Zaneta Salde Encarnacion, Constituent Services Manager RE: Childcare Commission ~:. ..~~...<<t~i~.''',~~ -",,~,<,~~~-,,-;.'&~' ,,~~~..~~, ~oI 'Adifjl. "~~.~M,: ~'~-1it:;~. ,.. "",':- ~','" Mayor Padilla would like to recommend Ms. Mary Alim to fill one vacancy on the Childcare Commission. Please call if any questions. /r;v ///7/C'6 ~,//?/YI c./cer /??J/- ,cu//,""n,L7 ePil cA,uI':CC/ ;0S/9 ,h/c;/C'r-_ ' "se.e U<3- or] I - / ;l - OG, OJ: Bur/- ('")0 g =t=i -<-< ::0, ('")0 ~ fTI' r-" ~, f'T1o () ::O::I: - !TI "'ic: N u>r- < oJ> .-...,<: . " fTI ==:U; VI 0 .':)---/ 0 ;......-::t:... .j>,. )!fI-1 ~l~ ~ ~~~~ Mayor and City Council City Of Chula Vista 276 Fourth Avenue Chula Vista, Ca 91910 619.691.5044 - 619.476.5379 Fax MEMO CllY OF CHUlA VISfA """'0" ",""",,"'C 'A': '.'-"W' -....,. ,."""" .~-.""....,._-_. """""-""..,...,,,,._",~-< ~~-~~ ~"..1l(~ljJ..-1" ~r";~j~ ..,:lJ.:i>.'l~.-,~~: ~:~.,;.,~l:." -~~.;.1w../Ji.,J:~~-'J;JJ!...~ ".,..~~* ':"...i;V~:~:"'_',,~'t' Thursday, January 12, 2006 TO: Lorraine Bennett, City Clerk FROM: Zaneta Salde Encarnacion, Constituent ,Services Manager RE: Cultural Arts Commission ~"t~,*';_".1~'t:~..~~~~:':,~~~:;,:4.~'-" -,:f:..,-. ~Q .~~ ,..~~.:::-:~~..~~~,.:..,.:-~~~~-....-~ -~~~~~ Mayor Padilla would like to recommend Ms. Susana Liston for appointment to the Cultural Arts Commission. fYL----' /-/7-06 /l:k ~:s,bF? c6n eM! vAa/q h's~q /)OJ. C'-It'ro/lf 7- ,t1/c/C '.f . s-GJ/L..i~ 0"7 /. jg - ()I.o Ok. &yj-. 0<,"> -- s: -.-. -<-< C")o .~ ;0 r-.... 1"11 /"no ::o~ 0 ~c:: - 1"11 '-'>r- N 01>- - or:;: ~:s -0 m U1 {?S~ 0 t:J oii::>.., A. (jfr/ ( v--