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Home My WebLink About2006/08/01 RDA Agenda Packet I declare under penalty of perjury that I am employed by the City of Chula Vista In the Office of the City Clerk and that I posted this ~ ~,~ d ument on the bulletin board according ~~ Act requirements. - . ~~~~ -~-ai2Signedt7Jw.u ~ CIlY OF --cmJlA VISfA Stephen C. Padilla, Chair Patricia E. Chavez, Agency Member Jim TI1omson, Interim Executive Director John McCann, Agency Member Ann Moore, Agency COllnsel jerry R. Rindone, Agency Member Susan Bigelow, City Clerk Steve Castaneda, Agency Member August 1, 2006 4:00 P.M. (Immediately following the City Council Meeting) Council Chambers City Hall 276 Fourth Avenue CALL TO ORDER ROLL CALL: Agency Members Castaneda, Chavez, McCann, Rindone, and Chair Padilla PUBLIC COMMENTS Persons speaking during Public Comments may address the Agency on any subject matter within the Agency'sjurisdiction that is not listed as an item on the agenda. State law generally prohibits the Agency from taking action on any issue not included on the agenda, but, if appropriate, the Agency may schedule the topic for future discussion or refer the matter to stafJ. Comments are limited to three minutes. PUBLIC HEARING The following item has been advertised as a public hearing, as required by law 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. 1. CONSIDERATION OF A DESIGN REVIEW APPLICATION FOR TENANT IMPROVEMENTS TO MODIFY AN EXISTING STRUCTURE LOCATED AT 320 THIRD AVENUE FOR THE OPERATION OF A NEW FITNESS HEALTH CLUB (FANCHER DEVELOPMENT SERVICES, INC.) The applicant, Fancher Development Services, Inc., filed an application to perform exterior and interior tenant modifications to the existing structure, located at 320 Third Avenue, to open a fitness health club. (Acting Community Development Director) Staff recommendation: Agency conduct the public hearing and adopt the following resolution: RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA 1) APPROVING DESIGN REVIEW PERMIT (DRC-OS-SO); AND 2) ADOPTING AN OWNER PARTICIPATION AGREEMENT FOR EXTERIOR AND INTERIOR TENANT IMPROVEMENTS TO MODIFY AN EXISTING 2S,742 SQUARE-FOOT STRUCTURE LOCATED AT 320 THIRD AVENUE FOR THE OPERATION OF A NEW ATHLETIC FITNESS HEALTH CLUB (FANCHER DEVELOPMENT SERVICES) OTHER BUSINESS 2. DIRECTOR'S REPORTS 3. CHAIR'S REPORTS 4. AGENCY MEMBER'S COMMENTS ADJOURNMENT to the Regular Meeting of August IS, 2006, at 6:00 p.m. in the Council Chambers. 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 2 - RDA Agenda hnp:llwww.chulavistaca.gov August 1,2006 PAGE 1, ITEM NO.: I MEETING DATE: 08/01/06 REDEVELOPMENT AGENCY AGENDA STATEMENT ITEM TITLE: PUBLIC HEARING OF THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA TO CONSIDER DESIGN REVIEW APPLICATION (DRC-05-50) RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA APPROVING DESIGN REVIEW APPLICATION (DRC- 05-50) AND ADOPTING AN OWNER PARTICIPATION AGREEMENT FOR EXTERIOR AND INTERIOR TENANT IMPROVEMENTS TO MODIFY AN EXISTING STRUCTURE LOCATED AT 320 THIRD AVENUE FOR THE OPERATION OF A NEW FITNESS HEALTH CLUB (FANCHER DEVELOPMENT SERVICES INCORPORATED) SUBMITTED BY: ACTING DIRECTOR OF COM NITY DEVELOPMENT REVIEWED BY: EXECUTIVE DIRECTOR 11 4/STHS VOTE: YES D NO IT] BACKGROUND The applicant, Fancher Development Services, has filed a Design Review application to perform exterior and interior tenant modifications to the existing structure located at 320 Third Avenue for the purpose of opening a fitness health club; specifically, a 24 Hour Fitness center. The project site is located within the Towne Centre I Redevelopment Project Area. An Owner Participation Agreement (OPA) is required from the property owner, AVG Partners, due to construction costs in excess of $10,000. On May 25, 2006, the Chula Vista Redevelopment Corporation (CVRC) reviewed the Design Review application. Based on public input, the applicant was directed to consider design input from the Third Avenue Village Association (TAVA), Town Centre Project Area Committee and community groups. On July 13, 2006, the CVRC conducted a second public hearing to review the revised design and associated OPA and forwarded a recommendation to the Redevelopment Agency. The Environmental Review Coordinator has reviewed the proposed project for compliance with the California Environmental Quality Act and has determined that the project qualifies for a Class 1 (existing facilities) categorical exemption pursuant to Section 15301 of the State CEQA Guidelines. 1-1 PAGE 2, ITEM NO.: / MEETING DATE: 08/01/06 RECOMMENDATION Staff recommends that the Agency conduct a public hearing and adopt a resolution approving: . Design Review Permit (DRC-05-50) based on findings of fact and subject to conditions of approval; and · Owner Participation Agreement BOARDS/COMMISSIONS RECOMMENDATION On July 13, 2006, the CYRC voted 7-0 to recommend to the Agency approval of a resolution approving Design Review Permit (DRC-05-50) and the attached Owner Participation Agreement. DISCUSSION PROPOSAL The applicant proposes the construction of exterior and interior tenant improvements of a currently vacant structure for operation of a new 24 Hour Fitness health club. The proposed fitness center will encompass approximately 25,742 square feet. The existing vacant retail uses along Third Avenue are not included in the square footage of the proposed fitness club. The proposed fitness center will consist of a main gym, free weights area, aerobic room, kid's club and other various uses. The use will be open and accessible to the public twenty-four hours a day, seven days a week. PROJECT SETTING The project site is located at 320 Third Avenue within the Towne Centre I Redevelopment Project Area (see Attachment A). The proposed fitness health club is to be located in the vacant CinemaStar theater building that was built in 1983 and has been vacant for over five years. The property is bounded on the north by existing commercial uses; to the east by Third Avenue with existing commercial uses across the street; to the south by Fuddrucker's Restaurant; and to the west by a parking structure. LAND USE The proposed use of the site for fitness center uses is consistent with the Chula Vista Municipal Code land use classification of the Central Business Zone and the Town Centre I Land Use Policy, both of which allow fitness and health club uses at the proposed project location. 1-2 PAGE 3, ITEM NO.: MEETING DATE: 08/01/06 DEVELOPMENT STANDARDS The project, as proposed, is consistent with the development standards of the Chula Vista Municipal Code for the Central Business Zone, the guidelines of the Town Centre Design Manual and the Landscape Manual, and the goals and objectives for the Town Centre I Redevelopment Project Area. The project proposes to retain the building height of 28- feet. The development standards do not regulate building height within the Central Business Zone; however, the height and bulk of the existing structure is compatible with the adjacent buildings in the Chula Vista Town Centre I Redevelopment Area. The project also proposes to retain the existing front, side or rear yard building setbacks. BUILDING The design, which was reviewed and approved by the Third Avenue Village Association (TAVA) Board on July 5,2006 and recommended for approval by the CVRC on July 13, 2006, incorporates input provided by the TAVA Board and Design Sub-Committee, Crossroads II and the Northwest Civic Association (NWCA). Some of the more significant design element changes based on that input include: . Glass roof removed to reduce the amount of storefront glazing . Building bulk reduced by creating individual storefronts through structured elements, enhanced color contrasts, and various colored awnings . Existing exposed cylindrical gray concrete columns concealed within the exterior plaster finish walls . Addition of canvas awnings and lighting to create a retail-oriented scale . Main entry further enhanced through the use of textured plaster portal . Varied roofline parapet heights incorporating Art Deco design elements and providing each storefront with an individual identity . Colors and material (e.g. tile accent, lighting) to better reflect surrounding buildings . Plaza area to include enhanced paving and retain existing trees. The proposed facade design colors and materials, such as the exterior plaster finish walls, will soften the front entry and streetscape and diminish the appearance of the exposed cylindrical columns. The building bulk will be reduced by creating the appearance of individual storefronts through structured elements, enhanced color contrasts, and various colored awnings. The existing cylindrical gray concrete columns will be enclosed within the exterior plaster finish walls. The entry to the building has been redesigned with a textured plaster portal with the company's sign located above it. The existing glass roof will be removed, which will reduce the overall amount of storefront glazing. The addition of these architectural elements will give the building a "sense of entry." 1-3 PAGE 4, ITEM NO.: MEETING DATE: 08/01/06 The colors ond materials samples submitted for review indicate that the building facade will consist of light beige and tan colors. The proposed colors and materials are consistent with the contemporary architecture of the building, which in turn is compatible with the surrounding commercial development. The most common colors along Third Avenue commercial uses consist of light cream, dark brown, and dark tan colors, as well as lighter warm colors such as pale and dark yellow. A varied roofline parapet with design elements such as streamlined horizontal lines and simplification of form is reflective of the Art Deco era and adds to the appearance of each storefront having an individual identity. Colored awnings will be installed above the individual storefronts. In addition to providing a modest amount of overhead protection from the elements, the awnings will provide decorative enhancement and further delineate the building fac;ade. These design elements will add to the pedestrian experience. The enhanced courtyard space will continue to provide a connection from the project site to the existing northern commercial development, Park Plaza at the Village. PARKING AND CIRCULATION The proposed project is located within the Downtown Parking District of the Town Centre I Redevelopment Project Area. The district was created to increase density in the downtown area. Uses that are allowed by right, such as the proposed athletic use, and that locate within existing commercial buildings along Third Avenue within this district are considered to have met the parking standard. Therefore, no additional parking spaces are required by the proposed project. Parking will be available in the adjacent public parking structure located to the west of the proposed fitness center. Sidewalks from the public parking structure are located along the northern and southern edges of the structure. Patrons can also park on the surrounding streets. The site is accessible from the north by way of Garrett and F Streets, from the east by Third Avenue and from the west by Center Street. The site is also easily accessible by pedestrians. The main entrance into the structure will be relocated to the front of the structure facing Third Avenue. Access into the proposed fitness center will be through these relocated front doors. This new entry location will encourage and enhance pedestrian activity along the street. LANDSCAPING The plaza area in the northeastern corner of the project site will include enhanced paving. The existing trees in the plaza will be retained and the tile planters will be 1-4 PAGE 5, ITEM NO.: MEETING DATE: 08/01/06 repaired. Final landscape and irrigation plans will be required to be reviewed and approved by the City Landscape Planner for compliance with the City Landscape Manual prior to issuance of building permits. Additional plaza element details, such as additional landscape plants and street furniture elements, will be determined pending completion of the Third Avenue Streetscape Master Plan as noted in the Terms of Grant of Permit and in the OPA. Initially, the project incorporated a fountain element in the plaza area. However, in response to community input, the fountain has been eliminated and the applicant is to provide and maintain a fine art element in the plaza area. Provision of the art element is in lieu of the contribution by the applicant to the public art fund for the procurement and installation of works of fine art. The art element selected must have a value equivalent 1 % of the total cost of the project and must receive approval from the Chula Vista Redevelopment Corporation or designee such as the City's Cultural Arts Commission. The parameters associated with the art element requirements are based on the Town Centre Design Guidelines. Per the Terms of Grant of Permit, the art element is to be in place prior to the issuance of a certificate of occupancy. CONFORMANCE WITH DESIGN MANUAL The proposed project is consistent with the Town Centre Design Manual in terms of Compatibility, Building Fa<;ade and Roof Articulation, Overheads and Awnings, Materials and Colors, Landscape and Screening. OWNER PARTICIPATION AGREEMENT The project also includes an Owner Participation Agreement (OPA) as required for all projects within the Town Center I Redevelopment Project Area having construction costs in excess of $10,000 in order to ensure project compliance with the Town Centre I Redevelopment Plan. The OPA includes a provision (Release of Easement) that, should the City ever want to redevelop the public parking garage, the Owner agrees to release their interest in the garage provided the Agency can provide in-kind parking as allowed by the current agreement. In addition, the OPA requires the Developer to obtain City approval for, and install, additional landscape plants and street furniture elements within the plaza area consistent with the Third Avenue Streetscape Master Plan. Fulfillment of this requirement is to occur subsequent to the issuance of a building permit and within six months of the adoption of the Plan (Deferment of Plaza Area Improvement). CONCLUSION The proposed project is consistent with the development standards of the Municipal Code for the Central Business Zone, the guidelines of the Town Centre Design Manual, City 1-5 PAGE 6, ITEM NO.: MEETING DATE: / 08/01/06 Design Manual and the Landscape Manual, and the goals and objectives for the Town Centre I Redevelopment Plan. The proposed design review application is recommended for approval subject to the conditions in the draft resolution. The OPA is also recommended for approval. FISCAL IMPACT The total value of the proposed tenant improvements is estimated to be approximately $2.5 million dollars. The total valuation of the proposed improvements is expected to increase the total assessed valuation of the property, which will result in an increase in tax increment to the City. ATTACHMENTS Attachment A - Locator Map Attachment B - Application Attachment C - Disclosure Statement Attachment D - Front Elevation Attachment E - Plans Prepared by: Frank Alvarez, Community Development Specialist, Community Development Department J:\COMMDEV\STAFF.REP\2006\08-01_06\24 Hour Faness\24 Hour Fitness Staff Report (RDA).doc 1-6 ATTACHMENT A C HULA VISTA PLANNING AND BUILDING DEPARTMENT LOCATOR PROJECT Fancher Development Services PROJECT OESCRIPTION: C) APPLICANT: DESIGN REVIEW PROJECT 320 Third Avenue Request: Proposing 24 Hours Rlness in T1 Redevelopment Area. Tenant ADDRESS: improvement off closed theater for new construction and operation SCALE: FILE NUMBER: of new health club. NORTH No Scale DRC-05-50 1 hi.ated cases: 15-05-020 J:\nl;'lnninn\r-:::trrnc:\ln~tn",,\nr....n"'~ ,....... nt:: ,,)A nt:: ATTACHMENT B 'i ""\ p I ann n g & B u I d ng Department Planning Division CIIY OF CHUlA VISTA APPLICATION · DEVELOPMENT PROCESSING . TYPE A Part 1 RECEIVED CITY OF CHULA VISTA T e of Review Re uested o Conditional Use Permit []I Design Review D Variance [J ..5peciai Use Permit (redevelopment area only) PLANNING AND I:::ILJI BUILDING 01 o Misc. A lication Information Applicant Name Fancher Development Services ApplicantAddress 1342 Bell Avenue. ,Ste 3K. Tustin,CA 92780 Contact Name Ni";; R;;",y Phone (714) 258-,1 808 Applicant's Interest in Property (If applicant is not the owner, the owner's authorization signature at the end of this form is required to process this request.) 0 Own 0 Rent IXJ Other: Authorized Aqent Architect/Agent: STDR Architects Address: 3190 K Airport Loop Dr. Costa Mesi ContaetName: nel Shotwell Phone: (714)444-1960 Primary contact is: fi] Applicant 0 Architect/Agent Emaii of primary co_ntaet: fandev(adirecpc _ com ~ General Project Description (all types) Project Name: 24 Hour Fitness ProoosedUse:Health & Fitness Club General Description of Proposed Project: '1'",";;,..11" i1provemen t of closed theater for constrUction and operation of new health club. 'Has this project received pre-application review comments? jgj Yes (EJat~:) 0 No Subject Property Information (all types) . , Location/StreetAddress: 320 Third- Avenue, Chula Vista Assessor'sParcel#: '168-270-22 Total Acreage: .73 Redev"lopmentArea (i'applicable): Yes General Plan Designation: ~ a Zone Designation: CB Planned Community (Jf'-~plicabie): Redevelopment Area Current Land Use: C'R Within Montgomery Specific Plan? 0 Ves Ga No Proposed Project (all types) Type of use proposed: 0 Residential IZ! Commercial Landscape Coverage(% of lot): Ex; sting o Industri,,1 0 Other: Buiidin ~ Coverage (% of lot): 80 . S % 276 Fourth Avenue 1-8 Chula Vista j Californi:- 91910 (619) 691-5101 APPLICATION · DEVELOPMENT PROCESSING . TYPE A Part 2 Residential Project Summary Type of dwelling unit(s): DweDing uni,..: N/A Number of lots: PROPOSED E.XISTING 1 Bedroom 2 Bedroom J.+ Bedroom TOTAL Density (DU/acre): Maximum building height: Minimum Ipt size: Average iot size: Parking Spaces: Required by code: Provided: Type of parking (i.e. size; whether covered, etc.): .Op,en space description (acres each of private, common, and randscapi~g): Non-Residential Project Summary Grossftoorarea: 2S.742SF Proposed: 25,742SF Existing: 25,742SFBuiidingHeight: 28' Hours of operation (days & hours): 24 hour s /7 da YS a week Anticipateq number of employees: 1 00 Maximum number of employees at anyone time: Number and ages of students/chiidren (if appiicable): N/ A Seating capacity: N I A Parking Spaces: Required by code: Provided: Existing Typ~ of parking (i,e. size; whether covered. etc.): 25 Rx-ist:incr I ParkiIlg Parkinq structure structure and street Parking, Autborization . "~"~:~ 1<( Dale: Print applicant name: Applicant Signature: Print owner name"': Owner Signature" Dole: Letter of consent may be providgd in lieu of signature. 276 Fourth Avenue 1-9 Chula Vista California 91g10 (~, 01 .c.01 1::1 n, P I ann n g & Building Planning Division I Department Development Processing cm OF CHUIA VISfA APPLICATION APPENDIX A Project Description & Justification Project Name: 24 Hour Fitness Applicant Name: Fancher Development Services/Nina Raey Please fully describe the proposed project, any and all construction that may be accomplished as a result of approval of this project, and the project's benefits to yourself, the property, the neighborhood, and the City of Chula Vista. Include any details necessary to adequately explain the scope and/or operation of the proposed project. You may inciude any background information and supporting statements regarding the reasons for, or appropriateness of, the application. Use an addendum sheet If necessary. For all Conditional Use' Permits or Variances, please address the required "findings" as listed In the Application Procedurai Guide. The proposal ~ for tenant improvement of vacant building previously used by a movie theater for ~onstruction and operation of a 24 hour fitness health club. The scope also includes removina of existina store fronts and exist doors and replacinq with either new walls or new doors. Removal of existina roof eauipment and placement of new roof eauipment; clean. repair and paint buildina to match existinq colors and materials. The health club is proposed to operate 24 hours a day. seven days a week. The health club will Mnefit the community hy rr~~ri~in~ h~~l~h ~w~rpncc~ ~n~ f~~n~~~ ~n~ jnh~ tn ln~~l residents. 276. Fourth Avenue 1-10 Chul~ Vista J Calif"rnia 91910 (619) 6.91-51 01 ATTACHMENT-C ~"?- ~fI- p I ann n g & Building Planning Division Department Development Processing CIlY OF CHUlA VISTA APPLICATION APPENDIX B Disclosure Statement Pursuant to Council Policy 101-01, prior to any action upon matters that will require discretionary action by the Council, Planning Commission and all other official bodies of the City, a statement of disclosure of cartain ownership or financial interests, payments, or campaign contributions for a City of Chula Vista election must be filed. The following information must be disclosed: 1 . List the names of all persons having a financial i~terest in the property that is the subject of the application or the contract, e.g., owner, applicant, contractor, subcontractor, materiai supplier. ;24 lioll<<.. f.To<<esS" --re.N~T" AVG rALT"H4!ItS CA......ottN'" a.1!W~L. PA<&T~~"'P Ptope~TY OI4lN(!L'- 2. If any person' identified pursuant to (1) above is a corporation or partnership, list the names of all individuals with a $2000 investment in the business (corporation/partnership) entity. AJ,N.II..o ~d..l€.,t<c.~ ~~O~ ~c..o." U.). C. cJc.#-lal 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. Gre.c.o~y 6c..o"ll" . ,..vI:. }/fIIl4 RA<<o/. F......-c.I'u.. DEVe'f "i"<lIWT je-nz.tL C.I~.IL"". "lit, 13.1.L- OIlG#'-o/Ot ~'f !-lo""L.. ---K,ot!oelt.T" VAc.U4I. ,,",U"7"2., /IJ4<'rJAOe. ""~ ' 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~ if Yes, briefiy describe the nature of the 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 D( Yes _If yes, which Council member? 276 Fourth Avenue Chula Vista T~i{~rnia 91910 (6191691-5101 P I ann n g & Building Planning Division I Department Development Processing CnY OF CHUlA VISTA Disclosure Statement - Page 2 APPLICATION APPENDIX B 7. Have you provided more than $340 (or an item of equivalent value) to an official"" of the City of Chula Vista In the pas~elve (12) months? (This includes being a source of income, money to retire a legal debt, gift, loan, etc.) Ye~ No -X- RV If Yes, which official"" and what was the nature of item provided? 7 In lOb i1/ ,( t:;/ ~~r FD~ Signaturr! of Contractor/Applicant f<..fjQ..;- A. V""c.:.,., , type name of Contractor/Applicant "v~ r"L"''''~ Date: Print or " . Person is defined as: any individual, firm, co-partnership, joint venture, association, social club, fraternal organization, corporation, estate, trust, receiver, syndicate, any other county, city, municipality, district, or other political subdivision, -or any other group or combination acting as a unit. "" Official includes, but is not limited to: Mayor, Council member, Planning Commissioner, Member of a board, commission, or committee of the City, employee, or staff members. 276 Fourth Avenue Chula Vista California 1-12 91910 (619) 691.5101 1-13 ATTACHMENnj - ~ ~ ;= """," '; ~ ~ ; ,"" 0''1'- ~~~ 'II... ""' ~~~ .: III". I. .. 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U-I I RESOLUTION NO. 2006- RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA (1) APPROVING DESIGN REVIEW PERMIT (DRC-05-50); AND (2) ADOPTING AN OWNER PARTICIPATION AGREEMENT FOR EXTERIOR AND INTERIOR TENANT IMPROVEMENTS TO MODIFY AN EXISTING 25,742 SQUARE-FOOT STRUCTURE LOCATED AT 320 THIRD AVENUE FOR THE OPERATION OF A NEW ATHLETIC FITNESS HEALTH CLUB (FANCHER DEVELOPMENT SERVICES) A. RECITALS 1. Project Site WHEREAS, the parcel, which is the subject matter of this resolution, is represented in Exhibit A attached hereto and incorporated herein by this reference, and for the purpose of general description is located at 320 Third Avenue, Chula Vista; and 2. Project Application WHEREAS, on May 9, 2005 a duly verified application for a Design Review Permit (DRC-05-50) was filed with the City of Chula Vista on behalf of Fancher Development Services (Applicant); and 3. Project Description; Application for Design Review Permit WHEREAS, Applicant requests Design Review Permit approval for exterior and interior improvements to modify a 25,742 square-foot building for fitness uses (Project) as depicted on plans on file with the Community Development Department; and 4. Chula Vista Redevelopment Corporation Record on Application WHEREAS, on May 25, 2006, the Chula Vista Redevelopment Corporation (CVRC) held a duly noticed public hearing to consider said application and after considering all evidence and testimony presented, continued the item and requested that the applicant present the proposed tenant improvement design to the Third A venue Village Association (T A V A) Board and Design Sub-Committee and to the Town Centre Project Area Committee (TCP AC). WHEREAS, the Northwest Civic Association and Crossroads II requested that the applicant present the design to their respective organizations; and WHEREAS, these presentations occurred in June and July 2006; and 1-18 RA Resolution No. 2006- Page 2 WHEREAS, the applicant has incorporated significant design element changes III response to the input received; and WHEREAS, the CVRC held a second duly noticed public hearing to consider said application on July 13, 2006, and after considering all evidence and testimony presented, recommended by a vote of 7-0 that the Redevelopment Agency adopt a resolution approving Design Review Permit (DRC-05-50) and Owner Participation Agreement. NOW, THEREFORE, BE IT RESOLVED that the Redevelopment Agency does hereby find, determine, and resolve as follows: B. CHULA VISTA REDEVELOPMENT CORPORATION RECORD The proceedings and all evidence on the Project introduced before the Chula Vista Redevelopment Corporation at their public hearings on this Project held on May 25, 2006 and on July 13, 2006, and the minutes resulting therefrom, are hereby incorporated into the record of this proceeding. C. ENVIRONMENTAL DETERMINATION The Environmental Review Coordinator has reviewed the proposed project for compliance with the California Environmental Quality Act and has determined that the project qualifies for a Class I (existing facilities) categorical exemption pursuant to Section 15301 of the State CEQA Guidelines. Thus, no further environmental review is necessary. D. CONFORMANCE WITH DESIGN MANUAL The Redevelopment Agency does hereby find that the Project is in conformance with the Town Centre Design Manual, as herein below set forth, and sets forth, thereunder, the evidentiary basis that permits the stated finding to be made. 1. The arrangement of structures, parking and circulation areas, and open space should recognize the particular characteristics of the site and should relate to the surrounding built environment in pattern, jUnction, scale, character and materials. In developed areas, new projects should meet or exceed the standards of quality, which have been set by surrounding development. The proposed facade design colors and materials, such as the exterior plaster finish walls that will hide the existing exposed cylindrical columns, will help soften the front entry and streetscape. The plaza area in the northeastern corner of the project site will include enhanced paving. The existing trees in the plaza will be retained and the tile planters will be repaired. Plaza elements details, such as landscape plants and street furniture elements, will be determined pending completion of the Third Avenue Streetscape Master Plan. The enhanced courtyard space provides a connection from the project site to the existing northern commercial development, Park Plaza at the Village. 1-19 RA Resolution No. 2006- Page 3 2. Building entries should be readily identifiable. Use recesses, projections, columns and other distinctive architectural elements, as well as materials and colors, to articulate entries. The building bulk will be reduced by creating the appearance of individual storefronts through structured elements, enhanced color contrasts, and various colored awnings. The existing cylindrical gray concrete columns will be hidden within the exterior plaster finish walls. The entry to the building has been redesigned with a textured plaster portal with the company's sign located above it. The glass roof will be removed, which will reduce the overall amount of storefront glazing. The addition of these architecture elements will give the building a "sense of entry". 3. Arcades, canopies, trellises and awnings are recommended for functional as well as aesthetic reasons. Colored awnings will be installed above the individual storefronts. In addition to providing a modest amount of overhead protection from the elements, these awnings provide decorative enhancement and further delineate the building fayade. These design elements will further enhance the pedestrian experience. 4. Colors and materials should be consistent with the chosen architectural style and compatible with the character of surrounding development. The colors and materials samples submitted for review indicate that the building facade will consist of light beige and tan colors. The proposed colors and materials are consistent with the contemporary architecture of the building, which in turn is compatible with the surrounding commercial development. The most common colors along Third A venue commercial uses consist of light cream, dark brown, and dark tan colors, as well as lighter warm colors such as pale and dark yellow. A varied roofline parapet with design elements such as streamlined horizontal lines and simplification of form is reflective of the Art Deco era. This also gives each storefront an individual identity. 5. All mechanical equipment shall be screened from view. All screening devices should be compatible with the architecture, material and color of the adjacent structures. All utilities and equipment shall be architecturally screened and/or located out of public view as required. E. TERMS OF GRANT OF PERMIT The Chula Vista Redevelopment Agency does hereby approve Design Review Permit (DRC-OS-SO) subject to the following conditions: 1-20 RA Resolution No. 2006- Page 4 1. The subject property shall be developed and maintained in substantial conformance with the approved application, plans, and color and material board, except as modified herein. 2. All exterior lighting plans, landscape and irrigation plans, solid waste and recycling plans shall be submitted for review and approval prior to the issuance of building permits. 3. In lieu of the contribution to the public art fund for the procurement and installation of works of fine art, the applicant/owner shall provide and maintain a work of fine art that is approved by the Chula Vista Redevelopment Corporation, or designee such as the City's Cultural Arts Commission, and which has a total value of I % of the total cost of the project. The approved art element shall be installed within the plaza area prior to the issuance of a certificate of occupancy. 4. All utilities and equipment shall be architecturally screened and/or located out of public view. 5. All cracked or broken tiles on planter boxes in front and, on the north side, of the building shall be repaired or replaced. 6. All damaged walkways surrounding the building shall be repaired. 7. The applicant/owner shall enhance paving and retain the existing trees in the plaza area subject to the approval of the City's landscape architect and prior to the issuance of certificate of occupancy. 8. Subsequent to the issuance of a building permit and within six months of the adoption of the Third Avenue Streetscape Master Plan, the applicant/owner shall obtain City approval for, and install, additional landscape plants and street furniture elements within the plaza area consistent with the Third Avenue Streetscape Master Plan. 9. A graffiti resistant treatment shall be specified for all wall and building surfaces and shall be noted on all building and wall plans prior to issuance of building permits. 10. The project shall comply with applicable codes and requirements including but not limited to CBC, CFC, CMC, CPC, CEC, ADA requirements, Title 24, and other codes in effect at the time of issuance of any permit. I I. The applicant/owner shall comply with all applicable federal, state, and local requirements, and in any case where it does not comply, this permit is subject to modification or revocation. 12. This permit shall become void and ineffective if not used or extended within one year from the effective date thereof, in accordance with Section 19.14.600 of the Municipal Code. 13. This permit shall be subject to any and all new, modified, or deleted conditions imposed after approval of this permit to protect the public from a specific condition dangerous to its health or safety or both due to the project, which condition(s) the 1-21 --.~:" RA Resolution No. 2006- Page 5 City shall impose after advance written notice to the permittee and after the City has given the permittee the right to be heard with regard thereto. However, the City in exercising this reserved right/condition, may not impose a substantial expense or deprive permittee of a substantial revenue source which the permittee cannot, in the normal operation of the use permitted, be expected to economically recover. 14. The applicant shall and does hereby agree to indemnify, protect, defend, and hold harmless the City, its Council members, officers, employees, agents, and representatives from and against all liabilities, losses, damages, demands, claims, and costs, including court costs and attorney's fees (collectively, liabilities) incurred by the City arising directly or indirectly from a) City's approval and issuance of this permit, b) City's approval or issuance of any other permit or action, whether discretionary or non discretionary, in connection with the use contemplated herein, and without limitation, any and all liabilities arising from the operation of the facility. Applicant shall acknowledge their agreement to this provision by executing a copy of this permit where indicated below. The applicant's compliance with this provision is an express condition of this permit and this provision shall be binding on any and all of the applicant's successors and assigns. F. EXECUTION AND RECORDATION OF RESOLUTION OF APPROVAL Prior to the issuance of any permits required by the City of Chula Vista for the use of the subject property in reliance on this approval, the Property Owner, and the ApplicantlRepresentative shall execute this document by making a true copy of this letter of conditional approval, signing both the original and true copy on the lines provided below, said execution indicating that the Property Owner and Applicant/ Representative have each read, understood and agreed to the conditions contained herein, and will implement same. Upon execution, the true copy with original signatures shall be returned to the Project Planner in the Community Development Department. Failure to return a signed copy and stamped copy of this document to the Community Development Department within thirty days of receipt of the notification of action shall indicate the applicant's desire that the Project be held in abeyance without approval. Signature of Property Owner/Applicant Date Signature of Property Owner/Applicant Date G. CONSEQUENCES OF FAILURE OF CONDITIONS 1-22 RA Resolution No. 2006- Page 6 If any of the forgoing conditions fail to occur, or if they are, by their tenns, to be implemented and maintained over time, and any of such conditions fail to be so implemented and maintained according to their tenns, the Redevelopment Agency shall have the right to revoke or modify all approvals herein granted; deny or further condition issuance of future building permits; deny, revoke, or further condition all certificates of occupancy issued under the authority of approvals herein granted; institute and prosecute, litigate, or compel their compliance; or seek damages for their violations. Applicant or successor in interest gains no vested rights by the Redevelopment Agency approval of this Resolution. H. INVALIDITY; AUTOMATIC REVOCATION It is the intention of the Redevelopment Agency that its adoption of this Resolution is dependent upon the enforceability of each and every tenn, provision, and condition herein stated; and that in the event that anyone or more tenns, provisions, or conditions are determined by a Court of competent jurisdiction to be invalid, illegal, or unenforceable, this resolution and the pennit shall be deemed to be automatically revoked and of no further force and effect ab initio. 1. NOTICE OF EXEMPTION The Environmental Review Coordinator has reviewed the proposed project for compliance with the California Environmental Quality Act and has determined that the project qualifies for a Class I (existing facilities) categorical exemption pursuant to Section 15301 of the State CEQA Guidelines. BE IT FURTHER RESOLVED that the Chula Vista Redevelopment Agency of the City of Chula Vista does hereby (I) approve Design Review Pennit (DRC-05-50); and (2) adopt an Owner Participation Agreement for exterior and interior tenant improvements to modify an existing 25,742 square-foot structure located at 320 Third Avenue for the operation of a new athletic fitness health club (Fancher Development Services). Presented by: Approved as to fonn by Ann Hix Acting Director of Community Development ~~4~ 1-23 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 q..48 a ~..., (f.-<< Ann Moo City Attorney Dated: Agreement between he City of Chula Vista Redevelopment Agency and A VG Partners 1-24 OWNER PARTICIPATION AGREEMENT This Agreement is entered into by and between the City of Chula Vista Redevelopment Agency ("Agency") and A VG Partners, a California General Partnership ("Developer"). The Agency and Developer agree as follows: I. AGREEMENT PURPOSE AND TERMS A. Purpose of the Al!I'eement. The purpose of this Agreement is to (i) effectuate the Redevelopment Plan ("Redevelopment Plan") for the Chula Vista Town Centre Redevelopment Project Area approved and adopted by the City Council of the CityofChula Vista by Ordinance No. 1691 on July 6, 1976, ("Project"), by providing for the redevelopment of certain real property (the "Site") which is included within the boundaries of the Project area. The redevelopment of the Site pursuant to this Agreement and the fulfillment generally of this Agreement are in the vital and best interests of the City of Chula Vista ("City") and the health, safety and welfare of its residents, and in accord with the public purposes and provisions of applicable Federal, State and local laws and requirements. B. The Redevelopment Plan. This Agreement is subject to the provisions of the City's Redevelopment Plan as defined herein. C. Terms and Definitions. In addition to those terms defined above, the following terms and definitions shall apply to this Agreement: (1) "Compl"mentary retail use" shall mean and include only businesses that will be compatible with the primary use of the Subject Property as a Fitness Center and encourage pedestrian traffic. Said use shall be one that is allowed in the Commercial Business (CB) zoning district. (2) "Minor changes" or "Minor Field Changes" means those minor changes that make no substantial change in appearance and have no adverse effect on the improvements and are made so as to expedite the construction work in response to field conditions. Changes in exterior design, treatment, building materials, site improvements, landscaping or colors shall under no circumstances be deemed minor changes. Changes that conflict with the terms and conditions of this Agreement shall not be deemed minor changes. (3) The "Subject Property" or "Site" shall mean and include that parcel located at 320 Third Avenue, Chula Vista, California (APN 568-270-22), as further 24 Hour Fitness OPA 5-23-06 1-25 shown on the attached "Site Map", and as more fully described by attached Exhibit "A". The Site currently contains a Cinema Star Theatre to be redeveloped and improved by Developer for the operation of a fitness center, with related retail uses, pursuant to the terms of this Agreement. II. THE PARTIES A. The Ae:encv. The Agency is a public body, corporate and politic, exercising govermnental functions and powers and organized and existing under the Community Redevelopment Law of the State of California (Health and Safety Code section 33000 et seq.) As used in this Agreement, "Agency" includes the City of Chuia Vista and any assignee of or successor to its rights, powers and responsibilities. B. The Developer. The Developer is the owner in fee of the Site and a nationwide retail developer owning over 20 sports fitness facilities occupied by a sports fitness facility. "Developer" as used in this Agreement shall include A VG Partners, a California General Partnership, and any assignee or successor-in-interest. The qualifications and identity of the Developer are of particular concern to the City and Agency, and it is because of such qualifications and identity that the Agency has entered into this Agreement with Developer. The Developer shall not assign all or any part of this Agreement without the prior written approval of the Agency. III. DEVELOPMENT OF THE SITE A. Scope of Development. The Site shall be redeveloped, at Developer's sole expense, to convert the existing movie theatre into a sports fitness facility, with complementary retail uses. The Scope of Development shall be that described in attached Exhibit "B" identifying the scope, amount, and quality of the redevelopment of the improvements to be constructed by Developer on the Site pursuant to the terms and conditions of this Agreement. ("Developer Improvement") Developer shall develop or cause to be developed the Tenant Improvements in accordance with the Scope of Development, subject to any and all applicable laws, codes, regulations and policies, including all applicable Federal and State labor standards. Within thirty (30) days of obtaining all necessary govermnental permits and approvals, Developer shall commence development and construction of the Site in a manner that allows the operation of the fitness facility. Developer and its consultants shall have discretion to determine the manner and methods in which the Site is developed and improved within the terms and conditions of 2 24 Hour Fitness OP A 5-23-06 1-26 this Agreement and all applicable laws and regulations in effect as of the date of this Agreement. Developer shall have no obligation to develop and improve the Site until it has obtained legal possession and ownership of it. B. Land Use Approvals. The parties recognize that the Subject Property is located in the Towne Centre Redevelopment Project Area. It has a General Plan Land Use designation of Mixed-Use Residential (MUR) and is zoned Commercial Business (CB). Applicable land use controls permit the development of the Site as proposed in accordance with the provisions of this Agreement. Developer acknowledges that execution of this Agreement by the Agency and approvals of plans hereunder do not constitute approval by the City or any of its boards or commissions of the land use approvals required for the proposed redevelopment of the Site. In no way is the City's discretion limited in the permit and approval process except as expressed herein. Before commencement of the construction of the Developer Improvements, the Developer shall, at its own expense, secure or cause to be secured any and all permits which may be required by any other governmental agency with jurisdiction over such construction, including, without limitation, building permits. The staff of the Agency will, without obligation to incur liability or expense therefor, use its best efforts to expedite the City's issuance of building permits for construction and certificates of occupancy that meet the requirements of the City Municipal Code, and all other applicable laws and regulations. Developer recognizes that the restrictions in this Agreement requiring the retail space to be limited to uses that are complimentary to the Fitness Center is a condition of this Agreement. Retail uses that are not complimentary to the Fitness Center including any office uses shall not be allowed on the Subject Property for the duration of the Agreement even if those uses are allowed within the CB Zone. Developer acknowledges Agency's desire to create an active Towne Center emphasizing pedestrian traffic and associated retail uses. Therefore, uses without walk-in customer traffic shall not be allowed on the Subject Property for the duration of the Agreement. All proposed complementary retail uses must be pre-approved by the Agency. C. Cost of Construction and Development. The entire cost of developing and improving the Site and of constructing all improvements thereon shall be borne solely by Developer except for work expressly set forth in this Agreement to be performed or paid for by the Agency or others. D. Use of the Site. Developer covenants and agrees for itself, its successors, its assigns, and every successor in interest that for a period of at least Ten (10) years, Developer shall devote the Site (or any part thereot) to the use of a fitness facility, and such other uses as expressly allowed by Agency. Agency shall take no action to prevent or interfere with Developer's ownership and operation of the fitness facility at the Site. The foregoing covenant shall run with the land 3 24 Hour Fitness OP A 5-23-06 1-27 E. Insurance and Indemnitv. I. Bodily Injury and Property Damage Insurance. Prior to the commencement of construction of the Developer Improvements on the Property and throughout the term of Construction, the Developer shaH obtain and maintain, or shaH cause its contractor or contractors to obtain and maintain a policy of general commercial liability insurance which shall include blanket contractual coverage, and shall have limits of not less than Two Million DoHars ($2,000,000.00) per occurrence, and if a policy form with a general aggregate limit is used or provided, the aggregate limit shall be not less than twice the per occurrence limit. The Agency, the City and their respective officers, employees, agents, and consultants shall be named as additional insureds under the policy. Said insurance shall cover comprehensive general liability, including, without limitation, automobile liability covering owned, nonowned and hired vehicles; contractor liability; subcontractor liability; premises-operations; explosion and collapse; and broad form property damage and personal injury. Any and all insurance policies required hereunder shall be obtained from companies rated at least "A:VI" or better in Best's Insurance Guide. All of said insurance policies shall provide that they may not be cancelled, non-renewed, reduced in coverage or amount or otherwise altered unless the Agency and the City receive written notice thereof at least thirty (30) calendar days prior to the effective date of such cancellation, reduction or alteration. Any and all insurance obtained by the Developer hereunder shall be and shall state in an endorsement that it is primary to any and all insurance which the Agency and/or City may otherwise carry, including self insurance, which Agency and City insurance for all purposes of this Agreement shall be separate and apart from the insurance provided under this Agreement. Any and all insurance required hereunder shall be maintained and kept in force until the City has issued the Certificate of Occupancy with respect to the Developer Improvements. The Developer shall furnish an endorsement(s) of insurance countersigned by an authorized agent of the insurance carrier on a form of the insurance carrier evidencing and/or effecting the requirements herein and/or the changes to the Developer's policy to effect such conformity and setting forth the general provisions of the insurance coverage, and an endorsement that shall name the City and the Agency and their respective officers, boards, agents, employees, and consultants as additional insureds under the policy with respect to this Agreement. The endorsement by the insurance carrier shall contain a statement of obligation on the part of the issuing agent or carrier to notifY the City and the Agency of any material reduction, cancellation, or non-renewal of the coverage at least thirty (30) days in advance of the effective date of any such material change, or non-renewal. Not less than fifteen (15) days prior to the expiration date of any policy of insurance required by this Section, Developer shall cause to be delivered to Agency a binder or certificate of insurance with respect to each renewal or new policy, bearing a notation evidencing payment of the premium therefor, or other proof of payment reasonably satisfactory to the Agency. In each instance of the provision of insurance, certified duplicate copies of the policy(s) or renewal policy(s), as applicable, shall be delivered to the Agency's Executive Director within thirty (30) days of the date of such policy(s). The Developer shall also furnish or cause to be furnished to the Agency evidence satisfactory to the Agency that Developer and any contractor with whom it has contracted for the 4 24 Hour Fitness OP A 5-23-06 1-28 performance of work on the Property or otherwise pursuant to this Agreement carries workers' compensation insurance as required by law. 2. Indemnification. The Developer shall defend, indemnify, assume all responsibility for, and hold the Agency and the City, and their representatives, volunteers, officers, employees, agents, and consultants harmless from any and , all claims, demands, damages, defense costs or liability of any kind or nature relating to any damages to property or injuries to persons, including accidental death (including reasonable attorneys fees and costs), which are in full or in part caused by or arise directly or indirectly out of any acts or omissions of the Developer's activities in connection with the Property under this Agreement, whether such activities or performance thereof be by the Developer or by anyone directly or indirectly employed or contracted with by the Developer and whether such damage shall accrue or be discovered before or after termination of this Agreement. Developer shall indemnify, defend and hold harmless Agency from and against any and all claims, liabilities, obligations, costs, with regard to hazardous materials on the Site from and after the date of acquisition of the Site by Developer, regardless of the date of release, spill, or contamination, of or by, hazardous materials. As to any claim or challenge falling under the purview of this Section for which Developer shall indemnify and hold harmless: Developer shall, at City's or Agency's option, either defend the City and/or Agency, or provide the City and/or Agency the cost of reasonable attorneys' fees for an attorney of the City and/or Agency's choosing. IV. EFFECT AND DURATION OF COVENANTS Except as otherwise expressly provided herein, the covenants contained in this Agreement shall remain in effect until July 6, 2016(the termination date of the Redevelopment Plan). The Agency and City are deemed the beneficiaries of the terms and provisions of this Agreement and of the covenants running with the land for and in their own right and for the purposes of protecting the interests of the community and other parties, public or private, in whose favor and for whose benefit this Agreement and the covenants running with the land have been provided. This Agreement and the covenants shall run in favor of the Agency and City without regard to whether the Agency or City has been, remains, or is an owner of any land or interest in the Site of the Project area. The Agency and City shall have the right, if this Agreement or the covenants herein are breached, 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 terms of this Agreement and/or the covenants to which it or any other beneficiaries of this Agreement and the covenants may be entitled. 5 24 Hour Fitness OP A 5-23-06 1-29 V. DEFAULTS, REMEDIES AND TERMINATION A. Defaults - General. Subject to any extensions of time agreed upon in writing, failure or delay by either party to perfonn any tenn or provision of this Agreement constitutes a default under this Agreement. The party who so fails or delays must immediately commence to cure, correct, or remedy such failure or delay and shall complete such cure, correction or remedy with reasonable diligence and during any period of curing shall not be in default. The injured party shall give written notice of default to the party in default, specifying the default complained of by the injured party. The injured party may not constitute a proceeding in default until fifteen (15) days after giving such notice. Any failure or delay in giving such notice shall not constitute a waiver of any default or remedy nor shall it change the time of default. B. Le1!al Actions. 1. Institution of Legal Actions. In addition to any other rights or remedies, except for rights or remedies expressly declared in this Agreement to be exclusive, the rights and remedies of the parties are crnnulative, and either party may institute legal action to cure, correct, or remedy any default, to recover damages for any default, or to obtain specific perfonnance or any other remedy consistent with the purpose of this Agreement. Such legal actions must be instituted in the Superior Court of the County of San Diego, State of California, and in no other place. 2. Applicable Law. The laws of the State of California shall govern the interpretation and enforcement of this Agreement. C. Remedies and Ri1!hts of Termination. 1. Termination bv Developer. Developer, at its option, may tenninate this Agreement if any of the following occur: (a) The conditions precedent set forth in this Agreement are not satisfied, after good faith diligent efforts on the Developer's part, within the time set forth herein; or (b) Agency fails to timely perfonn any material obligation of this Agreement and any such failure is not commenced to be cured and cured within the times provided in this Agreement; Then this Agreement may, at the Developer's option, be tenninated by written notice thereof to the Agency. Upon such tennination, neither the Agency nor the Developer shall have any 6 24 Hour Fitness OP A 5-23-06 1-30 further rights against or liability to the other under this Agreement. 2. Termination bv Agencv. The Agency, at its option, may terminate this Agreement if Developer or any other successor in interest to this Agreement or any portion of the Site: (a) does not submit permit applications, construction drawings and related documents as required by this Agreement, and such breach is not cured within fifteen (15) days after the date of written demand therefore by the Agency; or (b) has not performed the work required by this Agreement within the time frame specified in the Schedule of Performance and has failed to cure the same within fifteen(15) days after the written demand therefore by the Agency; (c) fails to timely perform any other material obligation of this Agreement, and any such failure is not commenced to be cured and cured within the times provided in this Agreement; (d) transfers or assigns or attempts to transfer or assign this Agreement or any rights herein or in the Site in violation of this Agreement; (e) is in breach or default with respect to any other obligation on the Developer under this Agreement; then this Agreement, and any rights of the Developer or its successor in interest may, at the Agency's option, be terminated by the Agency by written notice thereof to Developer. If Developer defaults by failing to undertake any matterreferred to above, the Agency shall have no right to seek specific performance to require Developer to undertake any of the tasks described therein, or damages, or any other remedy at law or equity, for failure to undertake any such tasks, but Agency's exclusive remedy in the event of such default by Developer shall be termination of this Agreement. VI. SPECIAL PROVISIONS A. Amendments to this A!!:reement. The parties shall mutually consider reasonable requests for amendments to this Agreement, provided the requests are consistent with this Agreement and do not substantially alter the basic terms and conditions included herein. All amendments shall be in writing and approved by the Agency Board. 7 24 Hour Fitness OP A 5-23-06 1-31 VIT. GENERAL PROVISIONS A. Notices. Demands and Communications Between the Parties. Fonnal notice, demands and communications between the Agency and Developer shall be in writing and shall be effected: (I) on personal delivery; (2) on the second business day after mailing by certified or registered U.S. Mail return receipt requested; or (3) on the next business day after mailing by Express Mail or after deposit with a private delivery service of general use (e.g., Federal Express) postage or fee paid as appropriate, addressed to the party as shown below: Ifto Developer, to: Attention: with a copy to: and if to Agency, to: Chula Vista Redevelopment Agency 276 Fourth Avenue Chula Vista, CA 91910 with a copy to: City Attorney City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 B. Attornev Fees. In the event of any legal action between Developer and Agency arising out of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys fees and costs trom the non-prevailing party, including those incurred for the purpose of enforcing any judgment. 8 24 Hour Fitness OP A 5-23-06 1-32 C. Enforced Delav: Extension of Time of Performance. In addition to specific provisions of this Agreement, performance by either party hereunder shall not be deemed to be in default where delays or defaults are due to war; insurrection; strikes; lock-outs; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions or priority; litigation including litigation challenging the validity of this transaction or any element thereof; unusually severe weather; inability to secure necessary labor, materials or tools; delays of any contractor, subcontractor, or suppliers; acts of the other party; or any other causes beyond the control or without the fault of the party claiming an extension of time to perform. An extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause, if notice by the party claiming such extensions is sent to the other party within fifteen (15) days of the commencement of the cause. Times and performances under this Agreement may also be extended by written agreement between the Agency and Developer. D. Compliance with Laws. 1. Nondiscrimination in Employment. The Developer certifies and agrees that (i) all persons employed or applying for employment by it, its affiliates, subsidiaries, or holding companies, and (ii) all subcontractors, bidders and vendors, are and will be treated equally by it without regard to, or because of race, color, religion, ancestry, national origin, sex, age, pregnancy, childbirth or related medical condition, medical condition (cancer related) or physical or mental disability, and in compliance with all applicable Governmental Requirements, including Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sections 2000, et seq., the Federal Equal Pay Act of 1963,29 U.S.C. Section 206( d), the Age Discrimination in Employment Act of 1967, 29 U.S.C. Sections 621, et seq., the Immigration Reform and Control Act of 1986, 8 U.S.C. Sections 1324b, et seq., 42 U.S.C. Section 1981, the California Fair Employment and Housing Act, California Government Code Sections 12900, et seq., the California Equal Pay Law, California Labor Code Sections 1197.5, California Government Code Section 11135, the Americans with Disabilities Act, 42 U.S.C. Sections 12101, et seq., and all other anti-discrimination laws and regulations ofthe United States and the State of California as they now exist or may hereafter be amended. The Developer shall allow representatives of the Agency access to its employment records related to this Agreement during regular business hours to verify compliance with these provisions when so requested by the Agency, unless access to such employment records is otherwise prohibited by law. 2. Standards. Developer shall carry out the design and construction of the improvements to the Site in a timely manner and in conformity with all applicable laws, including but not limited to all applicable state labor and work safety laws and regulations, including the provisions of Labor Code Sections 1770, et seq. relating to prevailing wages, the City zoning and development standards, building, plumbing, mechanical and electrical codes, and all other provisions of the City Code, and all applicable disabled and handicapped access requirements, including without limitation the Americans With Disabilities Act, 42 U.S.C. Sections 12101, et seq., California Government Code Section 4450, et seq., California Government Code Sections 11135, et seq., and the Unruh Civil Rights Act, California Civil Code Sections 51, et seq. to the extent applicable to the improvements to the Site as to which the City makes no representations. Developer agrees to hold the City and the Agency harmless and to indemnify and defend 9 24 Hour Fitness OP A 5-23-06 1-33 the City and the Agency from any claims arising under the provisions of Labor Code gg 1720, et seq., including, but not limited to, the provisions of Labor Code Section 1726 and 1781. Developer expressly waives any rights it may have under Labor Code Sections 1726 or 1782. It shall be the sole responsibility of the Developer to determine the applicability of such laws to the Developer Improvements. 3. Taxes and Assessments. The Developer shall pay prior to delinquency all ad valorem real estate taxes and assessments on the Property. The Developer shall remove or have removed any levy or attachment made on any of the Property, or any part thereof, or assure the satisfaction thereof within a reasonable time. Notwithstanding anything herein to the contrary, pursuant to the provisions of Health and Safety Code Section 33673 the Property shall be assessed and taxed in the same manner as other privately owned property and Lessee shall pay taxes upon the assessed value of the entire Property and not, merely the assessed value of Lessee's leasehold interest. E. Entire Ae:reement. Written Modifications. Counterparts. This Agreement integrates all of the terms and conditions agreed upon between the parties, and supersedes all other negotiations or previous agreements between the parties with respect to all or any part of the subject matter of this Agreement. All waivers and amendments of the provisions of this Agreement must be in writing and signed by the appropriate authorities of the Agency and Developer. This Agreement and subsequent amendments may be executed in counter parts. F. Maintenance of the Property. The Developer shall maintain or cause to be maintained the interiors and exteriors of the Property in a decent, safe and sanitary manner, in accordance with the standard of maintenance of similar commercial buildings within the City. If at any time Developer fails to maintain the Property in accordance with this Agreement and Developer does not correct or commence to correct such condition within ten (10) days after written notice from the Agency with respect to graffiti, debris, waste material, and general maintenance, or thirty days after written notice from the Agency with respect to landscaping and building improvements, then the Agency, in addition to whatever remedy it may have at law or at equity, shall have the right to enter upon the applicable portion of the Property and perform all acts and work reasonably necessary to protect, maintain, and preserve the Developer Improvements and landscaped areas on the Property, including a ten percent (10%) administrative charge, which amount shall be promptly paid by Developer to the Agency upon demand. G. Release of Easement. The Parties recognize the applicability of the recorded document described as the "Reciprocal Grant of Easements and Declaration Establishing Restrictions and Covenants" ("Easement"), entered into on December 15, 1983 by the City, Agency and Developer's predecessor in interest. A copy of said agreement is attached hereto and incorporated herein by reference as Exhibit "C." Provided that the Agency supply the Developer with reasonably equivalent parking rights as set forth in Exhibit "C", Agency and Developer shall enter into a release of developers 10 24 Hour Fitness OP A 5-23-06 1-34 ., rights under said Easement (Release of Easement) prior to the redevelopment of the Lot 7 Parking Structure. Said Release of Easement shall be in a form acceptable to the City Attorney and Agency Counsel. Said Release of Easement shall survive the termination of this Agreement. H. Deferment of Plaza Area Improvement Subsequent to the issuance of a building permit and within six months of the adoption of the Third Avenue Streetscape Master Plan, the Developer shall obtain City approval for, and install, additional landscape plants and street furniture elements within the plaza area consistent with the Third Avenue Streetscape Master Plan. CHULA VISTA REDEVELOPMENT AGENCY Dated: By: Approved As To Form: Redevelopment Agency General Counsel Dated: Approved As To Content: Redevelopment Manager DEVELOPER Dated: - By: Approved: Attorney for Developer 11 24 Hour Fitness OPA 5-23-06 1-35