HomeMy WebLinkAboutRDA Packet 2003/07/22TUESDAY, JULY 22, 2003 CHULA VISTA COUNCIL CHAMBERS
6:00 P.M. PUBLIC SERVICES BUILDING
(immediately following the City Council meeting)
JOINT MEETING OF THE
REDEVELOPMENT AGENCY / CITY COUNCIL
OF THE CITY OF CHULA VISTA
CALL TO ORDER
ROLL CALL
Agency/Council Members Davis, McCann, Rindone, Salas; Chair/Mayor Padilla
CONSENT CALENDAR
The staff recommendations regarding the following item(s) listed under the Consent Calendar will be enacted by the
Agency/Council by one motion without discussion unless an Agency/Council member, a member of the public or City
staff requests that the item be pulled for discussion. If you wish to speak on one of these items, please fill out a
"Request to Speak Form" available in the lobby and submit it to the Secretary of the Redevelopment Agency or the City
Clerk prior to the meeting. Items pulled from the Consent Calendar will be discussed after Action items. Items pulled
by the public will be the first items of business,
1. RESOLUTION OF THE REDEVELOPMENT AGENCY/CITY COUNCIL OF THE CITY
OF CHULA VISTA APPROVING THE FIRST AMENDMENT BETWEEN THE CITY OF
CHULA VISTA AND P&D ENVIRONMENTAL, CONSULTANT AND BORST FAMILY
TRUST, APPLICANT FOR THE CHULA VISTA AUTO PARK EAST EXPANSION
INVOLVING ENVIRONMENTAL CONSULTING SERVICES RELATED TO THE
PREPARATION OF MITIGATED NEGATIVE DECLARATION FOR THE AUTO PARK
EAST EXPANSION PROJECT AND AUTHORIZING THE MAYOR TO EXECUTE
AMENDMENT TO SAID AGREEMENT - The item before the Agency/Council is a
request for the Agency to approve an amendment to the existing contract with
P&D Environmental, for an amount not to exceed $9,715.00 for consulting
services to include preparation and completion of a Mitigated Negative Declaration.
The contract amendment requires approval by the Redevelopment Agency/City
Council since the total contract amount would now exceed $50,000. (Professional
services value limit established by CVMC 2.56.1 IOA for contract approvals by the
City Council). [Community Development Director]
STAFF RECOMMENDATION: Agency/Council adopt the resolution.
ACTION ITEMS
The items listed in this section of the agenda are expected to elicit substantial discussions and deliberations by the
Agency/Council, staff, or members of the general public. The items will be considered individually by the
Agency/Council and staff recommendation may in certain cases be presented in the alternative, Those who wish to
speak, please fill out a Request to Speak form available in the lobby and submit it to the Secretary to the
Redevelopment Agency or City Clerk prior to the meeting.
2. a. ORDINANCE 2918 OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
ADOPTING A MITIGATED NEGATIVE DECLARATION AND MITIGATION
MONITORING AND REPORTING PROGRAM (IS-02-006) AND A SPECIFIC PLAN
(PCM-02-04) FOR THE AUTO PARK NORTH EXPANSION (KNOWLTON REALTY
ADVISERS, L.L.C. & OTAY MESA VENTURES II, EEC.) - On 6/3/03, the City
Council approved on first reading the ordinance adopting the Mitigated Negative
Declaration (IS-02-006) and Specific Plan (PCM-02-04) to allow the development
of the Auto Park North Expansion project on the former Omar Rendering plant site
on Main Street in the Otay Valley Road Redevelopment Project Area. This report
presents the Owner Participation Agreement (CPA) with KnowIton Realty Advisers
(KRA) for the project. [Director of Community Development]
2. b. RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA
APPROVING AN OWNER PARTICIPATION AGREEMENT FOR THE DEVELOPMENT
OF A THREE DEALERSHIP AUTO PARK EXPANSION (WITH ANCILLARY USES) ON
39 ACRES LOCATED AT MAIN STREET AND DELNISO COURT (APN #644-041-
1100-1400 AND APN # 644-041-1700-1900) IN THE OTAY VALLEY ROAD
REDEVELOPMENT PROJECT AREA (KNOWLTON REALTY ADVISERS, L.L.C.)
STAFF RECOMMENDATION: a) Council place the ordinance on second reading for
adoption; and b) Agency adopt the resolution.
ORAL COMMUNICATIONS
This is an opportunity for the general public to address the Redevelopment Agency on any subject matter within the
Agency's jurisdiction that is no~t an item on this agenda. (State law, however, generally prohibits the Redevelopment
Agency from taking action on any issues not included on the posted agenda.) If you wish to address the Agency on
such a subject, please complete the "Request to Speak Under Oral Communications Form" available in the lobby and
submit it to the City Clerk prior to the meeting. Those who wish to speak, please give your name and address for
record purposes and follow up action.
3. DIRECTOR'S REPORT(S)
4, CHAIR/MAYOR REPORT(S)
5. AGENCY/COUNCIL COMMENTS
ADJOURNMENT
The meeting will adjourn to a special meeting of the Redevelopment Agency on July 29,
2003, at 1:00 p.m. in the Council Chambers, and thence to the regular meeting of the
Redevelopment Agency on August 19, 2003, at 6:00 p.m., immediately following the
City Council meeting in the City Council Chambers.
AMERICANS WITH DISABILITIES ACT
The City of Chula Vista, in complying with the Americans with Disabilities Act (ADA), request individuals who require
special accommodates to access, attend, and/or participate in a City meeting, activity, or service request such
accommodation at least 48 hours in advance for meetings and five days for scheduled services and activities. Please
contact the Secretary to the Redevelopment Agency for specific information at (619) 691-5047 or Telecommunications
Devices for the Deaf (TDD) at (619) 585-5647. California Relay Service is also available for the hearing impaired.
Redevelopment Agency, July 22, 2003 Page 2
PAGE 1, ITEM NO.:
MEETING DATE: 07/22/03
JOINT REDEVELOPMENT AGENCY / CITY COUNCIL
AGENDA STATEMENT
ITEM TITLE: RESOLUTION OF THE REDEVELOPMENT AGENCY/CITY COUNCIL OF
THE CITY OF CHULA VISTA APPROVING AN AMENDMENT TO A
THREE-PARTY AGREEMENT BETWEEN THE CITY OF CHULA VISTA,
P&D ENVIRONMENTAL (CONSULTANT) AND BORST FAMILY TRUST
(APPLICANT) INVOLVING ENVIRONMENTAL CONSULTING
SERVICES RELATED TO THE PREPARATION OF MITIGATED
NEGATIVE DECLARATION FOR THE AUTO PARK EAST EXPANSION
PROJECT, AND AUTHORIZING THE MAYOR TO EXECUTE
AMENDMENT TO SAID AGREEMENT
SUBMITTED BY: COMMUNITY DEVELOPMENT DIRECTOR ~'~ ~
REVIEWED BY: EXECUTIVE DIRECTOR ~f~'
4/5THS VOTE: YES [] NO ~
BACKGROUND
The City has been working together with the applicant and the consultant on the preparation of
an environmental document for the proposed Auto Park East Expansion and associated Specific
Plan and Tentative Parcel Map. The proposed project would permit an additional 200,000
square feet of auto dealership agencies and ancillary uses. Based on an Initial Study conducted
for the project, it was determined that a Mitigated Negative Declaration should be prepared for
compliance with the California Environmental Quality Act (CEQA). A three-party agreement in the
amount of $39,880 was approved pursuant to Chula Vista Municipal Code Section 2.56.110(D)
in November 2001. Subsequently, the applicant has proposed changes to the project description
that require further evaluation of project impacts and subsequent revisions to the previously
drafted environmental document.
The item before the Council/Agency is a request to approve an amendment to the existing
contract with P&D Environmental, for an amount not to exceed $9,715 for consulting services to
include preparation and completion of a Mitigated Negative Declaration. The contract
amendment requires approval by the City Council/Redevelopment Agency since the total contract
amount would now exceed $50,000 (Professional services value limit established by CVMC
2.56.110A for contract approvals by the City Council).
RECOMMENDATION
It is recommended that the City Council/Redevelopment Agency of the City of Chula Vista adopt
the resolution approving an amendment to the agreement between the City of Chula Vista, and
/-/
PAGE 2, ITEM NO.:
MEETING DATE: 07/22/03
P&D Consultants, Inc. (Consultants) and Borst Family Trust (Applicant), for consulting services for
preparation and completion of a Mitigated Negative Declaratlon, and authorizing the Mayor to
execute amendment to said agreement.
BOARDS/COMMISSIONS RECOMMENDATION
Not applicable.
The applicant, Borst Family Trust, has flied a Specific Plan, Tentative Parcel Map and grading
plan application to facilitate expansion of the Chula Vista Auto Park in the Otay Valley
Redevelopment Project Area. The project, encompassing 32.1 acres, is planned to include auto
dealers and ancillary uses.
The continuing services of P&D Environmental are needed to complete the Mitigated Negative
Declaration, incorporating the changes described below, for public review and consideration by
the City Council. The Mitigated Negative Declaration will be completed and distributed for a 30-
day public review period following approval of this amendment to the original agreement.
Consultant Services
P&D Consultants, Inc.
The original contract (Attachment 1) was for $39,880 with an additional 25% contingency of
$9,970, for a total not to exceed contract amount of $49,850. Developer deposits have funded
the contract and will fund the proposed amendment. Two previous change orders have been
processed by City staff in order to keep the project moving forward as expeditiously as possible
by covering consultant costs resulting from additional work required in order to address
unanticipated traffic impact issues related to the original project. The change orders, which
totaled $13,820, were approved through the 25% contingency included in the original contract.
The total authorized contract amount approved to date is $53,700, but only $45,286 has been
paid. Approximately $8,414 is left to be expended for work tasks anticipated under the original
contract. This contract amendment represents the first amendment before the Council/Agency
and would increase the total contract amount to $63,415 as follows:
AMOUNT
Original Contract $39,880
Change Orders 13,820
Sub Total $53,700
Amendment Total 9,715
New Contract Total $63,415
This amendment pertains to project description changes recently proposed by the Developer. The
City of Chula Vista has determined that the scope of work for completing the Mitigated Negative
PAGE 3, ITEM NO.:
MEETING DATE: 07/22/03
Declaration for Auto Park East has expanded and additional tasks have been identified to
complete the final Mitigated Negative Declaration (At¢achment 2). Specifically, the amended
scope includes the following tasks:
· Revise Traffic Report addressing project access
· Revise Noise and Air Quality Analysis
· Prepare revised draft Mitigated Negative Declaration based on project changes
The City of Chula Vista desires the continued assistance of P&D Consultants to complete and
process the draft and final Mitigated Negative Declaration. In addition, the Final Mitigated
Negative Declaration would facilitate the process through which the federal and state regulatory
agencies would issue their required permits.
The total fees paid to P&D Consultants during the last fiscal year for environmental consulting
services, are approximately $61,096, including this contract.
The revisions to the original contract are set forth in Attachment 2.
FISCAL IMPACT
There is no fiscal impact to the City/Agency as a result of this action. The applicant will be
responsible for all contract costs.
ATTACHMENTS
1. Original Three-Party Agreement between the City of Chula Vista and P&D Environmental
Related to Environmental Services for preparation of a Mitigated Negative Declaration for
Auto Park East.
2. First Amendment to the Agreement between the City of Chula Vista, P&D Environmental
Consultant, and Borst, Applicant.
J:\COMMDEV~STAFF.REP\O7-22-03\Borst Contract Award~Agenda Statement - Borst.doc
ATTACHMENT 1
Three Party Agreement
Between
City of Chula Vista,
P&D Environmental, Consultant, and
Borst Family Trust/Fask Land, Inc., Applicant
For Consulting Work to be Rendered
With regard to Applicant's Project
1. Parties.
This Agreement is made effective as of October("[, 2001, between the City of Chula Vista
("City") herein, a municipal corporation of the State of Califomia, the person designated on the
attached Exhibit A as "Consultant" [P&D Environmental] whose business form and address is
indicated on the attached Exhibit A, and the person designated on the attached Exhibit A as
"Applicant" [Borst Family Trust and Fask Land, Inc., a California corporation] whose business
form and address is indicated on the attached Exhibit A, and is made with reference to the
following facts:
Borst Family Trust
c/o Fred Borst
P.O. Box 2008
E1 Cajon, CA 92021
2. Recitals, Warranties and Representations.
2.1 Warranty o f Ownership.
Applicant warrants that Applicant is the owner of land ("Property") commonly known as,
or generally located as, described on Exhibit A, Paragraph 1, or has an option or other
entitlement to develop said Property.
2.2 Applicant desires to develop the Property with the Project described on Exhibit A,
Paragraph 2, and in that regard, has made application ("Application") with the City for approval of
the plan, map, zone, or other permits ("Entitlements") described on Exhibit A, Paragraph 3.
2.3 In order for the City to process the Application of Applicant, Work of the general
nature and type described in Exhibit A, Paragraph 4, ("Wo~'k") will need to be completed.
2.4 City does not presently have the "in-house" staff or resources to process the
application within the time frame requested for review by the Applicant.
2.5 This agreement proposes an arrangement by which Applicant shall retain, and be
liable for the reasonable costs of retaining, Consultant, who shall perform the services required of
Consultant by this Agreement solely to, and under the direction of, the City.
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2.6 Additional facts and circumstances regarding the background for this agreement are
set forth on Exhibit B;
3. Agreement.
NOW, THEREFORE, IT IS MUTUALLY AGREED TO AND BETWEEN THE CITY,
coNSULTANT, AND APPLICANT AS FOLLOWS:
3.1 Employment of Consultant by Applicant.
Consultant is hereby engaged by the City, at Applicant's sole cost and expense, to
perform to, and for the primary benefit of, City, and solely at City's direction, the services
described on the attached Exhibit A, Paragraph 4, entitled "General Nature of Consulting
Services", ("General Services"), and in the process of performing and delivering said General
Services, Consultant shall also perform to and for the benefit of City all of the services described
in Exhibit A, Paragraph 5, entitled "Detailed Scope of Work", ("Detailed Services"), and all
services reasonable necessary to accomplish said General Services and Detailed Scope of Work,
and shall deliver such documents required ("Deliverables") herein, all within the time times
herein set forth, and in particular as set forth in Exhibit A, Paragraph 6. Time is of the essence of
this covenant.
The Consultant does hereby agree to perform said General and Detailed Services to and
for the primary benefit of the City for the compensation herein fixed to be paid by Applicant.
In delivering the General and Detailed Services hereunder, the Consultant shall do so in a
good, professional manner consistent with that level of care and skill ordinarily exercised by
members of the profession currently practicing under similar conditions and in similar locations,
at its own cost and expense except for the compensation and/or reimbursement, if any, herein
promised, and shall furnish all of the labor, technical, administrative, professional and other
personnel, all supplies and materials, machinery, equipment, printing, vehicles, transportation,
office space and facilities, calculations, and all other means whatsoever, except as herein
otherwise expressly specified to be furnished by the City or Applicant, necessary or proper to
perform and complete the work and provide the Services required of the Consultant.
3.2 Compensation of Consultant.
Applicant shall compensate Consultant for all services rendered by Consultant without
regard to the conclusions reached by the Consultant, and according to the terms and conditions
set forth in Exhibit C adjacent to the governing compensation relationship indicated by a
"checkmark" next to the appropriate arrangement, by paying said amount to the City, within 30
days of Consultant's billing, or in accordance with the security deposit provisions of Paragraph
3.3 and Exhibit C, if checked, and upon receipt of such payment by the City, City shall promptly,
not later than 15 days, or in accordance with the Bill Processing procedure in Exhibit C, if
checked, pay said amount to the Consultant. City is merely acting in the capacity as a conduit
for payment, and shall not be liable for the compensation unless it receives same from Applicant.
109363.000001/306180,02
City shall confirm adequacy of any deliverables provided by Consultant prior to forwarding any
bill for such deliverable to Applicant for payment. Applicant shall not make any payments of
compensation or otherwise directly to the Consultant.
3.2.1 AdditionalWork. IftheApplicant, withtheconcurrenceofCity, detennines
that additional services ("Additional Services") are needed from Consultant of the type Consultant is
qualified to render or reasonably related to the Services Consultant is otherwise required to provide
by this Agreement, the Consultant agrees to provide such additional services on a t/me and materials
basis paid for by Applicant at the rates set forth in Exhibit C, unless a separate fixed fee is otherwise
agreed upon in writing for said Additional Work between the parties.
3.2.1.1 In the event that the City shall determine that additional work directly
related to the CEQA requirements for the Project is required to be performed above and beyond the
scope of work herein provided, City will consult with Applicant regarding the additional work If the
Applicant fails or refuses to arrange and pay for said Additional Services, the City may, at its option,
suspend any further processing of Applicant's Application until the Applicant shall deposit the City's
estimate of the costs of the additional work which the City determines is required. Applicant shall
pay any and all additional costs for the additional work.
3.2.2 Reductions in Scope of Work.
City may independently, or upon request from Consultant, from time to time
reduce the Services to be performed by the Consultant under this Agreement. Upon doing so,
City and Consultant agree to meet in good faith and confer for the purpose of negotiating a
corresponding reduction in the compensation associated with said reduction. Upon failure to
agree, the Fixed Fee may be unilaterally reduced by the City by the amount of time and materials
budgeted by Consultant for the Services deleted.
3.3 Security for Payment of Compensation by Applicant.
3.3.1 Deposit. As security for the payment of Consultant by Applicant, Applicant
shall, upon execution of this Agreement, deposit the amount indicated on Exhibit C as "Deposit
Amount" with the City, as trustee for Consultant, the conditions of such trust being as indicated on
Exhibit C and as herein below set forth:
3.3.1.1 Other Terms of Deposit Trust.
3.3.1.1.1 City shall also be entitled to retain from said Deposit all
costs incurred by City for which it is entitled to compensation by law or under the terms of this
agreement.
3.3.1.1.2 All interest eamed on the Deposit Amount, if any, shall
accrue to the benefit of, and be used for, Trust purposes. City may, in lieu of deposit into a separate
bank account, separately account for said deposit in one or more of its various bank accounts, and
upon doing so, shall proportionately distribute to the Deposit Trust, the average interest earned
during the period on its general fund.
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3.3.1.1.3 Any unused balance of Deposit Trust, including any
unused interest earned, shall be returned to Applicant not later than 30 days after the termination of
this Agreement.
3.3.1.1.4 Applicant shall be notified by City within 15 days after
of the use of the Deposit in any manner. Such notice shall include confirmation of City's
determination that the milestone has been adequately completed by Consultant or City. Nothing
herein shall invalidate use of the Deposit in the manner herein authorized.
3.3.1.1.5 At such time as City shall reasonably determine that
inadequate funds remain on Deposit to secure future compensation likely due Consultant, City may
make demand of Applicant to supplement said Deposit Amount in such amount as City shall
reasonably specify, and upon doing so, Applicant shall, within 30 days pay said amount
(" Supplemental Deposit Amount") to Deposit Trust. Said Supplement Deposit Amount or Amounts
shall be governed by the same terms of trust governing the original Deposit.
3.3.2 Withholding of Processing.
In addition to use of the Deposit as security, in order to secure the duty of
Applicant to pay Consultant for Services rendered under this agreement, City shall be entitled to
withhold processing of Applicant's Application upon a breach of Applicant's duty to compensate
Consultant under the terms bf this Agreement; however such processing shall resume upon
Applicant's cure of any breach so long as this Agreement has not other~vise been terminated by
City under the terms hereof.
4. Non-Service Related Duties of Consultant.
4.1 Insurance.
Consultant represents that it and its agents, staff and sub consultants employed by it in
connection with the Services required to be rendered, are protected against the risk of loss by the
following insurance coverages, in the following categories, and to the limits specified, policies of
which are issued by Insurance Companies that have a Best's Rating of "A, Class V" or better, or
shall meet with the approval of the City:
4.1.1 Statutory Worker's Compensation Insurance and Employer's Liability
Insurance coverage in the amount set forth in the attached Exhibit A, Paragraph 10.
4.1.2 Commercial General Liability Insurance including Business Automobile
Insurance coverage in the amount set forth in Exhibit A, Paragraph 10, combined single limit applied
separately to each project away from premises owned or rented by Consultant, which names City and
Applicant as an Additional Insured, and which is primary to any policy which the City may
otherwise carry ("Primary Coverage"), and which also treats the employees of the City and Applicant
in the same manner as members of the general public ("Cross-liability Coverage").
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4.1.3 Errors and Omissions insurance, in the amount set forth in Exhibit A,
Paragraph 10, unless Errors and Omissions coverage is included in the General Liability policy.
4.2 Proof of Insurance Coverage.
4.2.1 Certificates of Insurance. Consultant shall demonstrate proof of coverage
herein required, prior to the commencement of services required under this Agreement, by delivery
of Certificates of Insurance demonstrating same, and further indicating that the policies may not be
canceled without at least thirty (30) days written notice to the Additional Insured.
4.2.2 Policy Endorsements Required. In order to demonstrate the Additional
Insured Coverage, Primary Coverage and Cross-liability Coverage required under Consultant's
Conuuercial General Liability Insurance Policy, Consultant shall deliver a pohcy endorsement to the
City and Applicant demonstrating same.
4.3 Public Statements.
4.3.1 All public statements and releases to the news media shall be the
responsibility of the City and the Applicant. The Consultant shall not publish or release news items,
facts regarding the Project or subject property, articles or present lectures on the Project, either
during the course of the study or after its completion, except on written concurrence of the City and
the Applicant.
4.3.2 The environmental document and all documents completed or partially
completed pursuant to this Agreement shall be the sole property of the City, and the Consultant shall
not distribute, disseminate, publish, or use any portion of the document, or submit it for awards or
recognition without prior written authorization from the City and the Applicant.
4.4 Communication to Applicant.
Consultant shall not communicate direetly to the Applicant except in the presence of the
City, or by writing an exact copy of which is simultaneously provided to City, except with the
express consent of City. The Consultant may request such meetings with the Applicant to ensure
the adequacy of services performed by Consultant.
5. Non-Compensation Duties of the Applicant.
5.1 Documents Access.
The Applicant shall provide to the Consultant, through the City, for the use by the
Consultant and City, such documents, or copies of such documents requested by Consultant,
within the possession of Applicant reasonably useful to the Consultant in performing the services
herein required of Consultant, including but not limited to those described in Exhibit A,
Paragraph 7.
5.2 Property Access.
109363.000001/306180.02
The Applicant hereby grants permission to the City and Consultant to enter and access
the Property, to take any borings, make any tests, conduct any surveys or reconnaissance
necessary to deliver the Services of Consultant, subject to the approval of the Applicant.
Consultant shall promptly repair any damage to the subject property occasioned by such entry
and shall indemnify, defend, and hold Applicant harmless fi:om all loss, cost, damage, expenses,
claims, and liabilities in connection with or arising from any such entry and access.
5.3 Communication to Consultant.
Applicant shall not commtmicate directly to the Consultant except in the presence of the
City, or by writing an exact copy of which is simultaneously provided to City, except with the
express consent of City. The Applicant may request such meetings as they desire with the
Consultant to ensure the adequacy of services performed by Consultant.
6. Administrative Representatives.
Each party designates the individuals ("Administrators") indicated in Exhibit A,
Paragraph 8, as said party's contract administrator who is authorized by said party to represent
them i'n the routine administration of this agreement.
7. Conflicts of Interest
7.1 Consultant is Designated as an FPPC Filer.
If Consultant is designated on Exhibit A, Paragraph 9, as an "FPPC filer", Consultant is
deemed to be a "Consultant" for the purposes of the Political Reform Act conflict of interest and
disclosure provisions, and shall report his economic interests to the City Clerk on the required
Statement of Economic Interests in such reporting categories as are specified in Paragraph 9 of
Exhibit A, or if none are specified, then as determined by the City Attorney.
7.2 Decline to Participate.
Regardless of whether Consultant is designated as an FPPC Filer, Consultant shall not
make, or participate in making or in any way attempt to use Consultant's position to influence a
governmental decision in which Consultant knows or has reason to know Consultant has a
financial interest other than the compensation promised by this Agreement.
7.3 Search to Determine Economic Interests.
Regardless of whether Consultant is designated as an FPPC Filer, Consultant warrants
and represents that Consultant has diligently conducted a search and inventory of Consultant's
economic interests, as the term is used in the regulations promulgated by the Fair Political
Practices Commission, and has determined that Consultant does not, to the best of Consultant's
knowledge, have an economic interest which would conflict with Consultant's duties under this
agreement.
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7.4 Promise Not to Acquire Conflicting Interests.
Regardless of whether Consultant is designated as an FPPC Filer, Consultant further
warrants and represents that Consultant will not acquire, obtain, or assume an economic interest
during the term of this Agreement which would constitute a conflict of interest as prohibited by
the Fair Political Practices Act.
7.5 Duty to Advise of Conflicting Interests.
Regardless of whether Consultant is designated as an FPPC Filer, Consultant further
warrants and represents that Consultant will immediately advise the City Attorney of City if
Consultant learns of an economic interest of Consultant's, which may result in a conflict of
interest for the purpose of the Fair Political Practices Act, and regulations promulgated there
under.
7.6 Specific Warranties Against Economic Interests.
Consultant warrants and represents that neither Consultant, nor Consultant's immediate
family members, nor Consultant's employees or agents ("Consultant Associates") presently have
any interest, directly or indirectly, whatsoever in the property which is the subject matter of the
Project, or in any property within 10 radial miles from the exterior boundaries of the property
which is the subject matter of the Project ("Prohibited Interest").
Consultant further warrants and represents that no promise of future employment,
remuneration, consideration, gratuity or other reward or gain has been made to Consultant or
Consultant Associates by Applicant or by any other party as a result of Consultant's performance
of this Agreement. Consultant promises to advise City of any such promise that may be made
during the Term of this Agreement, or for 12 months thereafter.
Consultant agrees that Consultant Associates shall not acquire any such Prohibited
Interest within the Term of this Agreement, or for 12 months after the expiration of this
Agreement.
Consultant may not conduct or solicit any business for any party to this Agreement, or for
any third party, which may be in conflict with Consultant's responsibilities under this Agreement.
8. Default of the Consultant for Breach.
This agreement may be terminated by the City for default if the Consultant breaches this
agreement or if the Consultant refuses or fails to pursue the work under this agreement or any
phase of the work with such diligence which would assure its completion within the stated
timeline. Termination of this agreement because ora default of the Consultant shall not relieve
the Consultant from liability of such default.
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9. City's Right to Terminate Agreement for Convenience, Documents.
9.1 Notwithstanding any other section or provision of this agreement, the City shall have
the absolute right at any time to terminate this agreement or any work to be performed pursuant to
this agreement.
9.2 In the event of termination o£this agreement by the City in the absence of default of
the Consultant, the City shall pay the Consultant for the reasonable value of the services actually
performed by the Consultant up to the date of such termination, less the aggregate of all sums
previously paid to the Consultant for services performed after execution of this agreement and prior
to its termination.
9.3 The Consultant hereby expressly waives any and all claims for damage or
compensation arising under this agreement, except as set forth herein, in the event of such
termination.
9.4 In the event of termination of this agreement, and/or upon demand of the City, the
Consultant shall deliver to the City, all field notes, surveys, studies, reports, plans, drawings and all
other materials and documents prepared by the Consultant in performance of this agreement, and all
such documents and materials shall be the property of the City; provided however, that the
Consultant may retain copies for their own use and the City shall provide a copy, at Applicant's cost,
of all such documents to the Applicant.
9.5 Applicant shall have no fight to terminate Consultant, and shall not exercise any
control or direction over Consultant's work.
9.6 In the event of termination of this agreement by the City, the City shall act
immediately to retain a replacement Consultant in accordance with City's purchasing requirements
and shall exemise its best efforts to do so in order to have the Scope of Work completed within the
stated timeframe herein. Any additional consultant selection process costs shall be City's sole
responsibility.
10. Administrative Claims Requirement and Procedures
No suit shall be brought arising out of this agreement, against the City, unless a claim has,
first been presented in writing and filed with the City of Chula Vista and acted upon by the City
of Chula Vista in accordance with the procedures set forth in Chapter 1.34 of the Chula Vista
Municipal Code, the provisions of which are incorporated by this reference as if set fully set
forth herein.
11. Hold Harmless and Indemnification
11.1 Consultant to Indemnify City and Applicant re Iniuries.
Consultant shall defend, indemnify, protect and hold harmless the City, its elected and
appointed officers and employees and Applicant from and against all claims for damages,
8 I-I(
109363.000001/306180,02
liability, cost and expense (including without limitation attomeys' fees) arising out of the conduct
of the Consultant, or any agent or employees, subcontractors, or others of City or Applicant in
connection with the execution of the work covered by this Agreement, except only for those
claims arising from the sole negligence or sole willful misconduct of the City, its officers, or
employees, or Applicant, Consultant's indemnification shall include any and all costs, expenses,
attorneys' fees and liability incurred by the City, its officers, agents, or employees or Applicant in
defending against such claims, whether the same proceed to judgment or not. Further,
Consultant at its own expense shall, upon written request by the City or Applicant, defend any
such suit or ac. tion brought against the City, its officers, agents, or employees or Applicant.
Consultants' indemnification of City and Applicant shall not be limited by any prior or
subsequent declaration by the Consultant.
11.2 Applicant to Indemni .fy City re Compensation of Consultant.
Applicant agrees to defend, indemnify and hold the City harmless against and from any
and all claims, losses, damages, expenses or expenditures of City, including its elected officials,
officers, employees, agents, or representatives of the City ("City Indemnities"), in any way
resulting from or arising out of the Applicant's refusal to pay compensation as demanded by
Consultant for the City accepted performance of services required by this Agreement.
12. Business Licenses
Applicant agrees to obtain a business license from the City and to otherwise comply with
Chula Vista Municipal Code, Title 5. City agrees to require Consultant to obtain such business
license and to comply with Chula Vista Municipal Code, Title 5.
13. Miscellaneous.
13.1 Consultant not authorized to Represent City.
Unless specifically authorized in writing by City, neither Consultant nor Applicant shall
have authority to act as City's agent to bind City to any contractual agreements whatsoever.
13.2 Notices.
All notices, demands or requests provided for or permitted to be given pursuant to this
Agreement must be in writing. All notices, demands and requests to be sent to any party shall be
deemed to have been properly given or served if personally served or deposited in the United
States mail, addressed to such party, postage prepaid, registered or certified, with return receipt
requested, at the addresses identified for the parties in Exhibit A.
13.3 Entitlement to Subsequent Notices.
No notice to or demand on the parties for notice of an event not herein legally required to
be given shall in itself create the right in the parties to any other or further notice or demand in
the same, similar or other circumstances.
109363.0000Ol/306180.02
13.4 Entire Agreement.
This Agreement, together with any other written document referred to or contemplated
herein, embody the entire Agreement and understanding between the parties relating to the
subject matter hereof. Neither this Agreement nor any provision hereof may be amended,
modified, waived or discharged except by an instrument in writing executed by the party against
which enfomement of such amendment, waiver or discharge is sought.
13.5 Capacity of Parties.
Each signatory and party hereto hereby warrants and represents to the other party that it
has legal authohty and capacity and direction from its principal to enter into this Agreement; that
all resolutions or other actions have been taken so as to enable it to enter into this Agreement.
13.6 Governing Law/Venue.
This Agreement shall be govemed by and construed in accordance with the laws of the
State of California. Any action ar/sing under or relating to this Agreement shall be brought only
in the federal or state courts located in San Diego County, State of California, and if applicable,
the City of Chula Vista, or as close thereto as possible. Venue for this Agreement, and
performance hereunder, shall be the City of Chula Vista.
13.7 Modification.
No modification or waiver of any provision of this Agreement shall be effective unless
the same shall be in writing and signed by the parties hereto, and then shall be valid only in the
specific instance and for the purpose for which given.
13.8 Counterparts.
This Agreement may be executed in more than one counterpart, each of which shall be
deemed to be an original but all of which, when taken together shall constitute but one
instrument.
13.9 Severability.
In the event that any provision of this Agreement shall for any reason, be determined to
be invalid, illegal, or unenforceable in any respect, the parties hereto shall negotiate in good faith
and agree to such amendments, modifications, or supplements to this Agreement or such other
appropriate action as shall, to the maximum extent practicable in light of such determination,
implement and give effect to the intentions of the parties as reflected herein.
13.10 Headings.
The captions and headings in this Agreement are for convenience only and shall not
109363.000001/306180.02
define or limit the provisions hereofi
13.11 Waiver.
No course of dealing or failure or delay, nor the single failure or delay, or the partial
exercise of any right, power or privilege, on the part of the parties shall operate as a waiver of
any rights herein contained. The making or the acceptance of a payment by either party with
knowledge of the existence ora breach shall not operate or be construed to opiate as a waiver of
any such breach.
13.12 Remedies.
The rights of the parties under this Agreement are cumulative and not exclusive of any
rights or remedies, which the parties might otherwise have unless, this Agreement provides to the
contrary.
13.13 No Additional Beneficiaries.
Despite the fact that the required performance under this agreement may have an affect
upon persons not parties hereto, the parties specifically intend no benefit there from, and agree
that no performance hereunder may be enforced by any person not a party to this agreement.
Notwithstanding the foregoing, this is a three party agreement and the City is an express third
party beneficiary of the promises of Consultant to provide services paid for by Applicant.
(End of Page. Next Page is Signature Page.)
109363,000001/306180.02
[SIGNATURE PAGE TO THREE PARTY AGREEMENT]
Now therefore, the parties hereto, having read and understood the terms and conditions of
this agreement, do hereby express their consent to the terms hereof by setting their hand hereto
on the date set forth adjacent thereto.
Dated: [[ I~-[01 City of Chula Vista
By:
'~/~ JOHN P. COGGINS, C,.P.M.
[Print Name and Tide]
Attest:
Susan Bigelow
City Clerk
Approved as to Form:
J.o.~ ~~e~y ~
Consultant:
P&D Enviromental
[Print Name and Title]
Applicant: Borst Family Trust and
Fask Land, Inc.
[Print Name and Title]
/-/5-
109363.000001/306180.02
Exhibit B
Additional Recitals
WHEREAS, the Applicant has deposited an initial sum for the consulting services
necessary for the preparation of the environmental documents as outlined in Exhibit "A"
including a mitigation monitoring program, and
WHEREAS, it was determined by the Director of Community Development that staff
does not have the available time and would need additional expertise support to perform the
subject work, and
WHEREAS, a Request for Proposal was distributed to various persons or firms included
in the City's list of qualified Environmental Consultants, and three proposals were received by
the City; and
WHEREAS, the City Manager appointed a selection committee which has in accordance
with Section 2.56.110 of the Chula Vista Municipal Code, recommended the above noted
Consultant to perform the required services for the City, and
WHEREAS, the Planning and Environmental Manager has negotiated the details of this
agreement in accordance with procedures set forth in Sections 2.56.110 of the Chula Vista
Municipal Code and Sections 6.5.2 and 6.6 of the Environmental Review Procedures.
/-/6,
109363.000001/306180.02
Exhibit A
Effective Date of Agreement: October Iq, 2001
City of Chula Vista, 276 Fourth Avenue, Chula Vista, CA 91910
Consultant: P&D Environmental,(619) 232-4466
Business Form of Consultant:
(X) Corporation
Address: 401 West A Street, Suite 2500, San Diego, CA. 92101
Applicant: Fred Borst, Borst Family Trust and Fask Land, Inc.
Business Form of Applicant: a trust and corporation acting as tenants-in-common
Address: P.O. Box 2008, E1 Cajon, CA. 92021
1. Property (Commonly known address or General Description):
The area lies within the Otay Valley Redevelopment Project Area in the City of Chula
Vista. The Auto Park Expansion project is located on 32.1 acres on the south side of
Main Street (formerly Otay Valley Road), including 690 Main Street (existing animal
shelter).
2. Project Description ("Project"):
The proposed development consists of an auto retail center expansion, with attendant
driveways, parking lots, and utilities. Presently the Chula Vista Auto Park is a destination
regional commercial automobile sales and service center located within the Otay Valley
Redevelopment Area. The Otay Valley Redevelopment Area was created in 1983 and
covers 771 acres of primarily commercial property. Phase I of the Auto Park was
constructed in 1991.
The project consists of a proposed subdivision and development of an Auto Center
containing five (5) dealerships over 32.1 acres. Accessory uses will include dealership
service facilities and body shops, fast food facility, a co~)venience store, a gas station, an
auto parts store, a car wash, and a restaurant.
The Chula Vista Auto Park Expansion will increase the Chula Vista Auto Park by 128%.
The project is located on approximately 32 acres immediately east of the existing auto
park along Main Street (also known as Auto Park Drive). The Expansion contemplates
the construction of five new car dealerships retailing approximately 8 brands of
automobiles. Each New Car Dealership will require approximately 17,500 sq ft of
,09363000®,, 06,80.02 14 f-I '7
building space, including a showroom (2,000 sq fi), an office (2,800 sq ft), service
stations (16 stalls (8,400 sq fi), and a parts department (4,300 sq ft). The remainder of the
dealership lots will be used for vehicle display and storage and landscaping. The project
will also include, one fast food facility (5,000 sq fl), one convenience store (8,000 sq ft),
one gas station (4,000 sq ft) one auto parts store (10,000 sq ft), one car wash (4,000 sq ft),
and one restaurant (12,000 sq ft).
The total project building square footage is approximately 130,500 sq ft, or about 3 acres.
In all, the building area will be 17.5% of the parcel area, excluding roadway easements
(Auto Park and slopes). The combined building and paving area is 95% of the parcel
area, excluding road easements and slopes. The sloped areas adjacent to the Otay River
flood plain will be landscaped with native upland plants, and the remaining 5% of the pad
areas will include landscaping.
The existing single-parcel project site will be divided to create four parcels, numbered 1-
4, west to east (Figure A).~ Parcels 1-3 will each include a single dealer operation (5.7
acres, 4.8 acres and 5.4 acres, respectively). The remainder of the facilities will occur on
parcel 4 (16.2 acres). Each of the parcels will be developed independently, in accordance
with development standards and regulations to be set forth in a Specific Plan.
Each of the facilities will gain access from Auto Park Drive, a frontage road south of
Main Street, which will be extended from Phase One of the Auto Park. The extended
Auto Park Drive will include improved intersections at Roma Court and Maxwell Road
and will terminate at the Maxwell Road intersection.
Future development of the site will be required to conform to a Specific Plan and adhere
to the land use regulations, development standards, and design guidelines to follow.
However, it is reasonable to anticipate that the need for deviations may become evident
as the design, market needs, and construction progress. In that case the Substantial
Conformance Regulations included in the Implementation Section of the Specific Plan
may be used.
The project will include the import of 472,830 cubic yards of soil to create a level
ddvelopment area. All of the imported soil will be placed above the 100-year floodplain
as depicted in the most recent Federal Emergency Management Act (FEMA) maps. The
project pad will include the construction of eight (8) private storm drains, which, after
passing through onsite cleaners and flow regulators, will flow into the Otay River
floodplain. One municipal storm drain located at the western portion of the property will
be extended approximately 120 feet. An unpaved access road will be provided to this
outlet to allow maintenance to the municipal storm drain.
The project will include the area currently occupied by the animal shelter facility at 690
Main Street. The animal shelter facility will be demolished once the individual
dealerships are prepared tO be built out. Initial site preparation will not require
demolition of the facility.
[ 09363.000001/306180.02 15 /--- /~;~'
3. Entitlements applied for:
Proposed discretionary actions include: Tentative Parcel Map, grading plan and a Specific
Plan.
Additional approvals needed
The project may impact a small amount of jurisdictional wetland area adjacent to thc
Otay Pdvcr. This impact will necessitate a section 404 (Nationwide) Clean Water Act
permit from the U.S. Army Corps of Engineers and a 401-water quality certification for
the California Regional Water Quality Control Board (RWQCB). A Strcambed
Alteration Agreement may be required pursuant to 11500 et seq. of the California Fish &
Game Code (decision pending from Department offish & Game). Additionally, the
grading plan for the project area contemplates that storm water from the project will be
conveyed through cleansers before flowing into the Otay River floodway. This
conveyance system must comply with RWQCB storm water conveyance requirements at
the time the dealership are constructed. Prior to construction of the dealerships, the
project must submit to the RWQCB a Notice if Intent to Comply with the Statewide
Construction storm water permit. Biological surveys have confirmed that no state or
federally listed endangered or threatened species are present on the Project site, negating
the need for permits trader the state or federal endangered species acts. Applicant shall be
responsible for obtaining any and all necessary permits.
4. General Nature of Consulting Services ("Services--General"):
Consultant shall prepare the appropriate environmental document for the Project
5. Detailed Scope of Work ("Detailed Services"):
Consultant shall work closely with the City of Chula Vista staff and shall ensure that the
environmental document produced shall meet the City's needs. The environmental
document must comply with the current California Environmental Quality Act (CEQA)
of 1970 (Public Resources Code Section 21000 et seq.); the current State CEQA
guidelines (California Administration Code section 15000 et seq.); the Environmental
Review Procedures of the City Of Chula Vista; and the regulations, requirements, and
procedures of any responsible public agency or any agency with jurisdiction by law.
Consultant shall perform all Detailed Services described herein to the satisfaction of the
Planning and Environmental Manager.
Consultant shall consult with all trustees and responsible agencies, agencies having
jurisdiction by law and any other person or organization having control over or interest in
the Project.
The Draft and Final environmental document shall be prepared in such a manner that they
109363.000001/306180.02
will be meaningful and useful to decision-makers and to the public. Technical data
should be summarized in the body of the report and placed in an appendix. All public
documents shall be prepared in accordance with the standards of the California
Association of Environmental Professionals.
The environmental document shall be prepared to include the sections of an
Environmental document, as set forth in State CEQA Guidelines. The document shall be
formatted as directed by the City. Consultant shall compile supporting documents into
separate volume(s) to be referred to as the Appendices to the main environmental
document. The Appendices shall include the responses to the draft environmental
document and any technical reports generated for the environmental document including
the biological, air quality, noise, drainage and traffic along with relevant technical
information provided by the project apPlicant.
TASK DESCRIPTION:
In providing environmental services for the auto park expansion environmental document,
Consultant shall perform the following tasks:
Taskl- ProjectInitiation/KickoffMeeting
The Consultant's Project Manager shall meet, upon request of the City, with City staff and the
applicant to review the proposed project and obtain project information. For that meeting the
Consultant shall prepare an environmental team contact list and distribute to all team members.
This list will provide names, phone numbers, addresses, and areas of responsibility and will
include Project Applicant representatives and City staff as well as the Consultant's team
members.
Immediately thereafter, the Consultant shall prepare the project description based on materials
provided by the City and the Applicant. The Consultant shall also develop the project
alternatives to be included in the environmental document. The project description shall be
distributed by the Consultant to all subconsultants as necessary, and shall serve as a common
basis for analysis. In addition, the Consultant shall augment, format, illustrate, and incorporate
these descriptions into the environmental document.
Consultant shall prepare the Initial Study and graphics (regional, vicinity and site map) to the
satisfaction of the Planning and Envirommental Manager.
As a result of the project initiation meeting, the time frames for deliverables set forth herein may
be evaluated at the City's option and may be adjusted to meet the needs of the City and the
Applicant.
Deliverable No. 1: Initial Study Checklist. Master Copy of final approved Checklist in
Microsoft Word 2000.
Task 2 - Prepare Screencheck Draft Environmental Document
17 / - 2_o
109363.000001/306180.02
Consultant shall assemble all available data, prepare technical studies, and provide an assessment
of probable short- and long-term cumulative impacts of the project. Potential impacts shall be
addressed on a "plan to plan" and "plan to ground" basis. Consultant is responsible for
disclosing environmental impacts and determining which impacts are significant. Consultant
will prepare mitigation measures that could be carried out to reduce or eliminate adverse impacts
of the proposed project. Consultant shall prepare a Mitigation Monitoring and Reporting
Program (MMRP), CEQA findings of Fact, and a Statement of Overriding Considerations (if it is
determined that an EIR will be required and this becomes necessary per the Planning &
Environmental Manager). If an EIR is required, and City elects to hire Consultant to provide the
additional services required, a supplemental scope of work will be prepared.
The Screencheck Draft environmental document shall specify which mitigation measures have
been incorporated into the project and which feasible mitigation measures have not, but which
could be incorporated as part of the project. The Draft and Final Environmental document shall
also identify feasible alternatives that could reduce the adverse impacts but are ,not proposed by
the proponent.
Technical studies in the areas of transportation, air quality and noise shall be prepared by
subconsultants (described below) regardless of whether a Mitigated Negative Declaration or an
EIR is required
The document shall include, but not be limited to the sections and an analysis set forth below:
(Analysis/sections that are required only if an EIR is required and marked "EIR Only".
Table of Contents (EIR Only)
The Table of Contents shall include a list of the environmental document contents, tables, and
figures, and exhibits.
Executive Summary (EIR Only)
Consultant shall provide an overview of the Project, including a list of required discretionary
approvals. The summary shall also include a summary of impacts and mitigation measures as
well as a summary of alternatives to the proposed project (if an E1R is required).
Introduction (EIR Only)
Consultant shall define the purpose, scope and legislative authority of the environmental
document, requirements of the California Environmental Quality Act (CEQA) and other
pertinent environmental rules and regulations. Describe the Environmental review process.
Describe the environmental document structure and required contents and its relationship to other
potential responsible or trustee agencies.
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109363.000001/306180.02
Environmental Setting
Consultant shall provide a description of the existing site conditions, inclucting a description of
the natural resources contained on the project site. Provide an overview of the local and regional
environmental setting of the project (Ref. CEQA Guidelines Section 15125).
Project Description
Consultant shall provide the project location within the regional context, a legal description of
project and proposed Specific Plan including proposed land uses and circulation, a list of
required discretionary actions and approvals and its relationship to the Chula Vista Auto Center
FEIR-91-04. Provide an overview of the project background and history, the project objectives
and a list of required discretionary permits and approvals.
Environmental Analysis
The environmental document shall contain a section discussing existing conditions, potential
environmental impacts, recommended mitigation measures to significantly reduce or avoid the
impact(s), and an analysis of significance (Ref. CEQA Guideline 15126). The following
environmental issues shall be addressed in the environmental document.
Landform/Visual Quality
The environmental document shall analyze the impact of proposed site development on the
existing landform and community character. In addition, this section shall address the visual
impact of the proposed project from public vantage points.
Biology
Consultant shall review the results of the following relevant biological studies, and any
additional biological resource information available, for accuracy and adequacy and if
determined complete incorporate them into the environmental document:
1) Draft Biological Technical Report, The Borst Property, San Diego County, California,
prepared by Helix Environmental Planning, Inc. August 31, 2001;
2) Jurisdictional Delineation, prepared by Helix Environmental, Planning, Inc. August 31,
2001;
3) Biological Resources Section, Final Environmental Impact Report, EIR-91-04, Chula
Vista Auto Center, P&D Technologies, November 1991;
If determined not to be complete by Consultant, Consultant shall identify additions necessary to
deem the technical studies complete and determine if additional analysis is required.
19 /-&a.
109363.000001/306180.02
Consultant shall quantify biological impacts and propose mitigation measures in accordance with
the City Multiple Species Conservation Program (MSCP) draft Subarea Plan. Consultant shall
also review the biological information to determine the amount of jurisdictional wetland area
impact by the project, as it is adjacent to the Otay River. A streambed alteration agreement may
be required with the California Fish & Game as well as a 404 Clean Water Act permit from the
U.S. Army Corps of Engineers.
Drainage
Consultant shall review the previous drainage information found in the Chula Vista Auto Center
Final Impact Report and any additional drainage studies provided by the Applicant, to determine
if there are any new project related drainage and storm-water runoff impacts and to assure that
the Chula Vista Auto Park Expansion is in substantial conformance with the findings of the
previous EIR.
Transportation
Consultant, through their subconsultant Linscott, Law & Greenspan (LLG), shall be responsible
for preparation of the traffic analysis. In this capacity, LLG will review the previous traffic
studies completed in the nearby area which include the following:
1) Traffic Impact Analysis Main Street Commerce Center, Chula Vista, CA., Linscott, Law
& Greenspan May 2, 2001 and updated in September 2001;
2) MCA Amphitheater Final Environmental Impact Report, Traffic Study, BRW, 1995.
They (Consultant through LLG) will ensure that the project has been included in previous traffic
models. Utilizing existing conditions traffic data from other traffic studies, they shall determine
the project traffic generation. They shall distribute and assign project traffic to the street system.
Using the SANDAG Series 9 Traffic Model, they shall state the built-out intersection and street
segment Level of Service (LOS) within the project. They shall determine the intersection and
street segment LOS without the project. They shall prepare a letter report outlining the findings
of the analysis. Consultant shall incorporate the findings in the environmental document and
prepare a section documenting the existing conditions (based upon recent traffic reports) and
impact analysis and any required mitigation measures.
Air Quality
Consultant, through their subconsultant (Hans Giroux), shall update the air quality technical
analysis, verify prior findings, and provide project specific mitigation measures. Consultant shall
incorporate the findings into the environmental document.
Noise
Consultant, through their subconsultant (Hans Giroux), shall prepare a noise study to assess
20 ! -
109363.000001/306180.02
potential impacts associated with short-term construction and vehicular impacts (utilizing the
projected traffic counts). Noise impacts shall be related to the established City performance
standards and appropriate mitigation measures shall be provided. Consultant shall incorporate
the findings into the environmental document.
Archeology/History
Consultant shall verify the adequacy of existing cultural resources. If found appropriate by the
Planning & Environmental Manager, Consultant will have a cultural resources record search and
reconnaissance prepared for incorporation into the environmental document.
Public Services and Utilities
Consultant shall prepare an analysis of the following issues (sewer, water, police and fire) in the
issues section of the document. Existing services, generation demand and future capacity for each
of the services/utilities will be identified. The applicant will provide technical studies for water
and sewer as required by the City. The analysis will be prepared in compliance with CEQA.
Gas and Electricity, Telephone and Cable: Consultant shall review the previous EIR with respect
to public utilities and determine if additional analysis is needed. As necessary, the document will
evaluate the availability of such utilities to the site and potential impact on the demand for such
services.
Compliance with City Thresholds and Standards Policy
Consultant shall review the project's compliance with the City ofChula Vista's Growth
Management Standards that pertain to the following public services and utilities, and fiscal
issues:
Drainage
Water
Traffic
Air Quality
Fiscal
Sewage
Police
Fire/Emergency Medical Services
Schools
Parks, Recreation and Open Space
Consultant shall prepare an analysis of all of the threshold standards as related to this
project.
Issues Addressed in the Previous EIR/Issues not Found to Be Significant. Per CEQA Guidelines
Section 15128, the document shall indicate the reasons for determining any issue areas as non-
109363.000001/3061 gO.02
significant and, therefore, not described in detail in the final env/ronmental documem.
Cumulative Impacts (EIR Only)
The document shall: Evaluate whether individual project impacts are cumulatively significant
when viewed in combination with other projects; Discuss the potential of the proposed project to
compound or increase adverse environmental impacts when added to other closely related past,
present and reasonably foreseeable future projects and project impacts; Focus on the potential for
any newly identified cumulative impacts that are associated with the ~pecific Plan/TM and that
were not addressed in the previous EIR; Discuss any indirect, cumulative impacts and evaluate
compliance with adopted city threshold standards and applicable policies and programs.
Growth Inducement (EIR Only)
The document shall: Assess the potential of Chula Vista Auto Park expansion to induce
economic or population growth, either directly or indirectly, in the surrounding enviromment;
Evaluate the Specific Plan and relative to the phasing of community services and facilities to
serve new development; Discuss the potential for the use of large amounts of fuel or energy;
Evaluate compliance with regional and local growth management policies; Detem~ine
compliance with the City of Chula Vista threshold standards.
Mitigation Monitoring and Reporting Program The Mitigation Monitoring and Reporting
Program (MMRP) shall be developed at the Draft environmental document stage and shall
include monitoring team qualifications, specific monitoring activities, a reporting system and
criteria for evaluating the success of the mitigation measures. The MMRP will be submitted to
the City Council/Agency for adoption concurrently with the decision-making and public heating
processes. Mitigation measures shall be written in sufficient detail to address impacts at the
precise plan and tentative map level, referencing the appropriate implementing permits such as
grading permits, final maps and landscape plans.
References, Persons and Agencies Contracted and Environmental Document Preparation. The
document shall include lists of all references and persons and agencies contacted used in
preparation of the document. The document shall list all persons involved in the preparation of
the document and their title and role.
Deliverable No. 2: First Screencheck Draft Environmental Document. Fifteen (15) total
copies of the first Screencheck Draft Document, Mitigation
Monitoring Reporting Program (MMRP), and Technical Appendices
Task 3 - Revisions to Screencheck Draft Document/Second Screencheck Draft Document
Based on the comments received fi:om City staff on the First Scrcencheck Document, Consultant
will make the necessary revisions to the document and produce a Second Screencheck Draft
Document for review and approval by the Planning & Environmental Manager. Comments on
the Screencheck draft document from the Project Applicant may also be considered by the City.
22 / -- ,,~..,~--
109363.000001/3061 gO.02
Documents shall be prepared by the Consultant in such a manner that they will be meaningful
and useful to decision-makers and the public. Technical reports will be summarized in the
appropriate section of the document and included as an appendix to the final environmental
document. A summary table of the project's impacts and mitigation measures will be included in
the document.
Each Screencheck version to be copied on different colored paper.
Deliverable No. 3: Fifteen (15) total copies of the Second Screencheck Draft document,
MMRP and Technical Appendices, including two (2) copies of the
documents provided in white three-ring binders.
Task 4 - Public Review Draft Environmental Document
Consultant shall produce a public review Draft Document for circulation and public notice.
Deliverable No. 4: Fifteen (15) total copies of the public review Draft Document,
MMRP and Appendices, including two (2) copies of the documents
provided in white three-ting binders and the remainder bound.
Task 5 - Responses to Comments/Final Environmental Document
Following public review, Consultant shall meet upon the City's request with City staff and
review all comments received. The Planning & Environmental Manager and Consultant shall
negotiate which comments Consultant shall address. Consultant will prepare a set of draft
responses for City staff review, and then revise the responses based on staff comments.
Revisions to the Draft Document will be made, if determined necessary by the Planning &
Environmental Manager, based on public comments received and collaboration with City staff.
The changes will be identified in a strikeout and underline format.
Deliverable No 5: A set of draft responses to public and agency conunents of an
environmental nature for City staff review. Revised responses based
on staff comments. Revisions to the Draft Document, if determined
necessary by the Planning & Environmental Manager, based on
public comments received and collaboration with City staff. The
changes shall be identified in strikeout and underline format.
Twenty (20) total copies of the Final Document, MMRP and
Appendices including two (2) copies of the document provided in a
white three-ring binder and the remainder bound. One (1)
reproducible master copy of the document suitable for reproduction
on City equipment and not three-hole punched. One computer disk
109363.000001/306180.02
copy of the Final Document and related documents without
strikeoutYundeflines that can Be read by Microsoft Word 2000.
Appendices. The Appendices shall include Response to Comments on the Draft document and
Conunent Letters and any technical studies prepared for the project that are not a part of the
environmental document.
Task 6 - CEQA Findings
Candidate CEQA Findings shall be prepared for submittal to the City of Chula Vista City
Council/Redevelopment Agency. The CEQA findings shall specify which mitigation measures
have been incorporated into the project, as well as those feasible mitigation measures that have
not been incorporated and explain why they have been found to be infeasible. If an EIR is
required, the Findings will also identify feasible alternatives that could reduce adverse project
impacts but that are not being adopted. If applicable (and in the event an EIR is required), a
Statement of Overriding Considerations shall be prepared. The findings shall follow the format
and style as directed by the City of Chula Vista.
Deliverable No. 6: Five (5) Screencheck Findings
One (1) Master Findings (1 SOC ifreqnired)
Task 7 - Meetings and Hearings
Senior and Project Manager level staff and necessary subconsultants are required to attend
meetings and hearings throughout the environmental document preparation process. Consultant
shall allocate three hoars for each meeting, which includes preparation, travel, and attendance.
Four hours will be allocated for public meetings and hearings. Any additional time (beyond 20
hours for the project manager and 8 hours for the traffic engineer) required to attend staff
meetings, public meetings, public hearings for Planning Commission or City Council, or other
meetings not listed below shall be reimbursed on a time and material basis only with prior
authorization by the Planning & Environmental Manager.
Deliverable No. 7: At a minimum attendance at the following is required:
Scoping kickoffmeeting (Project Manager)
Project Meeting/Workshop (Project Manager)
· "Weekly" meetings (Project Manager all, Traffic Engineer 1)
· Resource Conservation Commission (I) (Project Manager)
· Planning Commission (2) (Project Manager)
· City Council (1) (Project Manager, Traffic Engineer)
6. Schedule, Milestone, Time-Limitations within which to Perform Services.
109363.000001/306180,02
Date for Commencement of Consultant Services:
(X) Same as Effective Date of Agreement
Dates or Time Limits for Delivery of Deliverables:
Deliverable No. 1 :Initial Study Checklist, November 16, 2001
Deliverable No. 2:lst Screencheck Draft Document November 16, 2001
Deliverable No. 3:2nd Screencheck Draft Doc. November 26, 2001
Deliverable No. 4:Public Review Draft Doc. November 29, 2001
Deliverable No. 5:Draft responses to comments January 4, 2002
Deliverable No. 6:Final Document/and Findings January 9, 2002
Deliverable No. 7:Meetings & Hearings per Task 7
Dates for completion of all Consultant services: February 9, 2002
7. Documents to be provided by Applicant to Consultant:
(X) site plans (X) grading plans ( ) architectural elevations ( ) project description.
(X) other: Water and Sewer analysis
8. Contract Administrators.
City: Brian Hunter
Planning & Environmental Manager
276 Fourth Avenue
Chula Vista, CA 91910
Ph. # (619) 691-5016
Applicant: Fred Borst
P.O. Box 2008
E1Cajon, CA. 92021
Consultant: Betty Dehoney
P&D Environmental
401 West A Street, Suite 2500
San Diego, CA. 92101
Ph. # 232-4466
25 /
109363.000001/306180,02
9. Statement of Economic Interests, Consultant Reporting Categories, per Conflict of
Interest Code:
(X) Not Applicable. Not an FPPC Filer.
Category No. 1. Investments and sources of income.
Category No. 2. Interests in real property.
Category No. 3. Investments, interest in real property and sources of income
subject to the regulatory, permit or licensing authority of
the department.
Category No. 4. Investments in business entities and sources of income,
which engage in land development, construction or the
acquisition or sate of real property.
Category No. 5. Investments in business entities and sources of income of
the type which, within the past two years, have contracted
with the City of Chula Vista (Redevelopment Agency) to
provide services, supplies, materials, machinery or
equipment.
) Category No. 6. Investments in business entities and sources of income of
the type which, within the past two years, have contracted
with the designated employee's department to provide
services, supplies, materials, machinery or equipment.
) Category No. 7. Business positions.
10. Insurance Requirements:
(X) Statutory Worker's Compensation Insurance
( ) Employer's Liability Insurance coverage: $1,000,000.
(X) Commercial General Liability Insurance: $1,000,000.
( ) Errors and Omissions insurance: None Required (included in Commercial
General Liability coverage).
(X) Errors and Omissions insurance: $250,000 (not included in Commercial General
Liability coverage).
109363.000001/306180.02
Exhibit C
Compensation Schedule and Deposit: Terms and Conditions.
(X) Single Fixed Fee Arrangement.
For performance of all of the General and Detailed Services of Consultant as herein
required, Applicant shall pay a single fixed fee in the amounts and at the times or milestones set
forth below:
(X) Single Fixed Fee Amount: $ 39,880.00
Milestone or Event Amount or Percent
of Fixed Fee
1. Signing of this agreement by all parties $1,990.00 (05%)
2. Submittal of First draft Environmental Document * $9,950.00 (50%)
3. Public Review starts $3,998.00 (20%)
4. Completion of Responses to Comments $3,998.00 (5%)
5. RCC Recommendation of Approval $3,998.00 (5%)
6. Redevelopment Agency Approval of Project including
Environmental Document $15,952.00 (15%)
Subtotal $39,880.00
7. 25% Contingency Fee** $ 9,970.00
If work is suspended for 60 days, for reason other than Consultant default, Consultant shall be
entitled to compensation for time and materials expended up to the date of suspension at the
Rates set forth below.
· For purposes of payment the first draft environmental document shall completely address and
analyze all issues identified in the detailed scope-of-work (described in Exhibit A) to the
satisfaction of the Planning & Environmental Manager. Payment shall be withheld until the
Planning & Environmental Manager determines that a complete draft environmental document
has been submitted.
· *The Planning & Environmental Manager in his discretion independently or upon request from
the Consultant, subject to approval of the Applicant, fzom time to time, may negotiate additional
services to be performed by the Consultant under this Agreement in order to cover unforeseen
109363.000001/306180.02
issues that may be identified during the preparation of the Environmental Document ("Additional
Services"). The cost of Additional Services in connection with the environmental document may
exceed the 25% of the total contract amount if the additional services involve the preparation of
environmental impact report. City, Consultant, and Applicant agree to meet in good faith and
confer for the purpose of determining a corresponding increase in the compensation associated
with said additional services and shall use as guide the preliminary cost estimate submitted by
the Consultant for said services and product.
28 / '-',..~ t
109363.000001/306180.02
Rate Schedule
Category of Employee Hourly
of Consultant Name Rate
Project Managers
Senior Project Manager Betty Dehoney $145.00
Environmental
Senior Environmental Analyst Alex H. Jewel $ 60.00
Environmental Analyst Josephine Gabriel $ 50.00
Environmental Analyst Sophia Habl $ 50.00
Mapping $ 55.00
Other Staff
Word Processing $ 55.00
Administrative Support $ 55.00
Task 1 Kick-off
Meeting $600.00
Task 2 - Screencheck
Executive Summary $410.00
Introduction $410.00
Envelope Setting $100.00
Proj. Description $920.00
Landform $960.00
Biology $2,300.00
Transportation $14,600.00
Air $3,600.00
Noise $3,100.00
Public Services $800.00
City Thresholds $800.00
Issues Not Found Significant $720.00
Cumulative $480.00
Growth Inducing $240.00
MMRP $890.00
QA/QC $925.00
Document Production $1,410.00
Task 3 Second Screencheck
Revised Document $940.00
Task 4 Draft MiND
Revise and Produce $545.00
109363.000001/306180.02
Task 5 Response to Comments/MND
Prepare Final Contingency $1,140.00
Task 6 Findings
Prepare $890.00
Task 7 Meetings/Hearings
Attendance $3,100.00
TOTAL $39,880.00
Materials Separately Paid For by Applicant
Cost or Rate
( X ) Materials (Reports & Copies) [Third Party Vendor] Actual
( X ) Printing/binding [Third Party Vendor] Actual
( X ) Travel 34.5C/mile
( X ) Special Delivery [Third Party Vendor] Actual
30 /-33
109363.000001/306180.02
Deposit
(X) Deposit Amount: $ 39,880.00 - Applicant agrees to deposit within 10 days of City
request do so, an additional sum to be determined if a determination is made by the City that an
Environmental Impact Report will be required for the project.
(X) Usc of Deposit to Pay Consultant.
Notwithstanding the sole duty and liability of Applicant to pay Consultant, if this
paragraph is "checked", upon City's receipt of billing by Consultant, and determination by City
in good faith that Consultant's billing is proper, a judgment for which Applicant agrees to hold
City harmless and waive any claim against City, City shall pay Consultant's billing flora the
amount of thc Deposit. If Applicant shall protest the propriety ora billing to City in advance of
payment, City shall consider Applicant's protest and any evidence submitted prior to the due date
for the payment of said bill by Applicant in making its good faith determination of propriety.
( ) Usc of Deposit as Security Only; Applicant to Make Billing Payments.
Upon determination by City made in good faith that Consultant is entitled to
compensation which shall remain unpaid by Applicant 30 days after billing, City may, at its
option, use thc Deposit to pay said billing.
( X ) Bill Processing:
A. Consultant's Billing to be submitted for the following period of time:
( ) Monthly
( ) Quarterly
(X) Other: Bill submitted with deliverables
B. Bill Due and Payable:
Any bill submitted will be due and payable within 15 days after (1) City receipt and
approval thereof, and (2) City receipt and approval of the corresponding deliverable.
City's Account Number:
109363.000001/306180.02
ATTACHMENT 2
FIRST AMENDMENT TO
the Agreement between City of Chula Vista
and
P&D Consultants, Inc., Consultants and Borst, Applicant
For Consulting Services Related to the Auto Park Expansion Project
This First Amendment is entered into effective as of July 22, 2003 by and between the City of
Chula Vista ("City") and P&D Environmental ("Consultant") and Borst, ('~Applicant"), with reference
to the following facts:
Recitals
WHEREAS, the applicant has deposited an initial sum for the consulting services necessary for
the preparation of the environmental documents as outlined in Exhibit "A" including mitigation
monitoring program, and
WHEREAS, it was determined by the Director of Community Development that staff does not
have the available time and would need additional expertise support to perform the subject work, and
WHEREAS, A Request for Proposal was distributed to various persons or firms included in the
City's list of qualified Environmental Consultants, and three proposals were received by the City; and
WHEREAS, a selection committee was appointed in accordance ~vith Section 2.56.110 of the
Chula Vista Municipal Code, recommended the above noted Consultant to perform the required
services for the City, and
WHEREAS, the City of Chula Vista Planning and Environmental Services Manager has
negotiated the details of this agreement in accordance with procedures set forth in Sections 2.56.110 of
the Chula Vista Municipal Code and Sections 6.5.2 and 6.6 of the Environmental Review Procedures,
and
WHEREAS, the Applicant has proposed changes to the project which have resulted in the need
for further evaluation of environmental impacts.
NOW, THEREFORE, in consideration of the recital and the mutual obligation of the parties set
forth herein, City and Consultant agree as follows:
1. Exhibit A, Section 5 of the original Agreement, entitled Detailed Scope of Work, is hereby
amended to add the following:
The following detailed Scope of Work shall be performed by the Consultant to the satisfaction
of the Director of Community Development:
A. Revise Traffic Report addressing project access.
B. Revise Noise and Air Quality Analysis.
C. Prepare revised draft Mitigated Negative Declaration based on project changes.
Page 2
2. Exhibit A, Section 6 of the Original Agreement entitled Dates or Time Limits for Delivery of
Deliverables, is hereby amended to the following:
Deliverable No. 4: Revised Draft Document, August I, 2003
Deliverable No. 5: Public Review Draft Document: August 22, 2003
Deliverable No. 6: Draft Responses to Comments, September 30, 2003
Deliverable No. 7: Final Document, October 15, 2003
Deliverable No. 8: Meetings & Hearings as required per Task 7
Date for Completion of all Consultant services: November 30, 2003 or upon completion of
tasks whichever occurs earlier, to the satisfaction of the Director of Community Development.
3. Exhibit C, of the Original Agreement entitled Compensation Schedule and Deposit: Terms and
Conditions is hereby amended to add the following:
(X) Not-to-Exceed Limitation on Time and Materials Arrangement
Notwithstanding the expenditure by Consultant of time and materials in excess of said
Maximum Compensation amount, Consultant agrees that Consultant will perform all of the
Defined Services herein required of Consultant in this First Amendment for no more than
$9,715.00 including all Materials, and other "reimbursables" ("Maximum Compensation")
4. All other terms and conditions of the Original Agreement thereto not modified by this First
Amendment shall remain in full force and effect.
BE IT FURTHER RESOLVED that the City Council/Redevelopment Agency hereby
approve.
Presented by Approved as to form by
Laurie Madigan Ann Moore
Director of Community Development City Attorney
Page 3
SIGNATURE PAGE TO FIRST AMENDMENT TO THE
AGREEMENT BETWEEN THE CITY OF CHULA VISTA
P&D ENVIRONMENTAL, CONSULTANT AND BORST
FAMILY TRUST, APPLICANT,
City of Chula Vista Borst Family Trust
By:_ By:
Stephen C. Padilla, Mayor Fred Borst, President
Date: Date:
P&D Consultants
By:
Chuck Moore, Vice-president
ATTEST:
Susan Bigelow, City Clerk
Approved as to form by:
Ann Moore, City Attorney
/
RESOLUTION OF THE CITY COUNCIL AND THE REDEVELOPMENT
AGENCY OF THE CITY OF CHULA VISTA, APPROViNG THE FIRST
AMENDMENT BETWEEN THE CITY OF CHULA VISTA AND P&D
ENVIRONMENTAL, CONSULTANT AND BORST FAMILY TRUST,
APPLICANT FOR THE CHULA VISTA AUTO PARK EAST
EXPANSION iNVOLVING ENVIRONMENTAL CONSULTING
SERVICES RELATED TO THE PREPARATION OF MITIGATED
NEGATIVE DECLARATION FOR THE AUTO PARK EAST
EXPANSION PROJECT AND AUTHORIZiNG THE MAYOR TO
EXECUTE AMENDMENT TO SAID AGREEMENT
WHEREAS, Borst Family Trust, "Applicant" has deposited an initial sum for the consulting
services necessary for the preparation of the environmental documents as outlined in Exhibit "A"
including mitigation monitoring program, and
WHEREAS, it was determined by the Director of Community Development that staff does not
have the available time and would need additional expertise support to perform the subject work, and
WHEREAS, A Request for Proposal was distributed to various persons or firms included in the
City's list of qualified Environmental Consultants, and three proposals were received by the City; and
WHEREAS, a selection committee was appointed in accordance with Section 2.56.110 of the
Chula Vista Municipal Code, recommended the above noted "Consultant" to perform the required
services for the City, and
WHEREAS, the City of Chula Vista Planning and Environmental Services Manager has negotiated
the details of this agreement in accordance with procedures set forth in Sections 2.56.110 of the Chula Vista
Municipal Code and Sections 6.5.2 and 6.6 of the Environmental Review Procedures, and
WHEREAS, the Applicant has proposed changes to the project which have resulted in the need for
further evaluation of environmental impacts.
NOW, THEREFORE, in consideration of the recital and the mutual obligation of the parties set
forth herein, City and Consultant agree as follows:
NOW, THEREFORE, BE IT RESOLVED that the City Council and the Redevelopment Agency
of the of the City of Chula Vista do hereby approve the First Amendment to the Agreement with P&D
Environmental and the Borst Family Trust related to the final Mitigation Negative Declaration for the
Auto Park east expansion project, a copy of which shall be kept on file in the office of the City Clerk.
BE IT FURTHER RESOLVED that the City Council and Redevelopment Agency of the City of
Chula Vista do hereby authorize the Mayor to execute the First Amendment to the Agreement between
the City and "Consultant" and "Applicant".
Presented by Approved as to fo~by
Laurie Madigan ~'m~' x)-f~--~-~
Director of Community Development
J:\COMMDEVXSTAFF.REP\07-22-03~Borst Contract Award~Reso - Borst .doc / ..... ~ g
PAGE 1, ITEM NO.: o~'
MEETING DATE: 07/22/03
JOINT REDEVELOPMENT AGENCY / CITY COUNCIL
AGENDA STATEMENT
ITEM TITLE: ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
ADOPTING A MITIGATED NEGATIVE DECLARATION AND
MITIGATION MONITORING AND REPORTING PROGRAM (IS-02-
006) AND A SPECIFIC PLAN (PCM-02-04) FOR THE AUTO PARK
NORTH EXPANSION (KNOWLTON REALTY ADVISERS, L.L.C. &
OTAY MESA VENTURES II, L.L.C) - SECOND READING AND
ADOPTION
RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF
CHULA VISTA APPROVING AN OWNER PARTICIPATION
AGREEMENT FOR THE DEVELOPMENT OF A THREE DEALERSHIP
AUTO PARK EXPANSION (WITH ANCILLARY USES) ON 39 ACRES
LOCATED AT MAIN STREET AND DELNISO COURT (APN #644-041-
1100-1400 AND APN # 644-041-1700-1900) IN THE OTAY VALLEY
ROAD REDEVELOPMENT PROJECT AREA (KNOWLTON REALTY
ADVISERS, L.L.C.)
SUBMITTED BY: COMMUNITY DEVELOPMENT DIRECTOR/~-~ ~
REVIEWED BY: EXECUTIVE DIRECTOR~'~ ~j
4/5THS VOTE: YES ~ NO ~
BACKGROUND
On June 3, 2003, the Cily Council approved on first reading the ordinance adopting the Mitigated
Negative Declaration (IS-02-006) and Specific Plan (PCM-02-04) to allow the development of the
Auto Park North Expansion project on the former Omar Rendering plant site on Main Street in the
Otay Valley Road Redevelopment Project Area. This report presents the Owner Participation
Agreement (OPA) with Knowlton Really Advisers (KRA) for the project.
At this meeting the Redevelopment Agency will be asked to approve the OPA and the City Council
will be asked to adopt, on second reading, the Mitigated Negative Declaration (MND), Mitigation
Monitoring and Reporting Program (MMRP), and Specific Plan.
RECOMMENDATION
It is recommended that the City Council adopt on second reading the Ordinance adopting a
Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program (IS-02-006)
and a Specific Plan (PCM-02-04) for the Auto Park North Expansion project.
It is also recommended that the Redevelopment Agency approve the Owner Participation
Agreement (OPA) with Knowlton Realty Advisers, L.L.C. (KP, A) to allow the development of the 39-
acre Auto Park North Expansion project on the former Omar Rendering Plant site (APN # 644-
PAGE 2, ITEM NO.:
MEETING DATE: 07/22/03
041-1100-1400 and APN # 644-041-1700-1900) in the Otay Valley Redevelopment Project
Area.
BOARDS/COMMISSIONS RECOMMENDATION
On April 21, 2003, the Resource Conservation Commission (P, CC) considered the Mitigated
Negative Declaration and Mitigation Monitoring and Reporting Program for the Project and
recommended that the Planning Commission and the City Council find the document adequate
pursuant to the California Environmental Quality Act (CEQA) and adopt the MND and MMRP (IS-
02-006}.
The RCC further recommended that the landscaping for the site conform with sustainable
environmental principles and they include the type of plants that will contribute to aesthetics,
water availability and also contribute to enhanced air quality and water quality on the project site
and adjacent roadways; and that canopy trees should be placed on the slope, the area adjacent
to Main Street and large parking areas.
On May 28, 2003, the Planning Commission recommended that the City Council adopt a
Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program (IS-02-006),
based on the findings and conditions contained therein for the Auto Park North Specific Plan, and
introduce an ordinance approving Specific Plan (PCM-02-04) for the Auto Park North Expansion
(see Attachment D). The Planning Commission further recommended that the freeway signage
program for the Auto Park include public participation prior to review and approval. In addition,
the Planning Commission recommended that Section VII. F. be added to the Specific Plan to read
as follows:
F. A master Owner Participation Agreement (OPA) shall be required for the
implementation of the Auto Park North Specific Plan.
On June 3, 2003 the City Council held a public hearing and heard a staff presentation for the
first reading of the MND, MMRP and Specific Plan, including an amendment requiring an OPA
for the project.
SUMMARY PROJECT DESCRIPTION:
The proposed project consists of a 39-acre auto dealer development including three auto
dealerships fronting on Main Street with inventory parking areas and supporting uses on the
interior of the site (Delniso Court). Main Street right of way improvements and landscaping will
be consistent throughout the Auto Park on the south and north sides of Main Street. Design
guidelines will be consistent with the existing Auto Park and will also be incorporated into future
Auto Park expansion projects.
PAGE 3, ITEM NO.:
MEETING DATE: 07/22/03
Owner Participation Agreement (OPA)~
The Owner Participation Agreement (OPA) addresses development considerations and performance
requirements for the project. Many of these provisions are standard to Owner Participation
Agreements of the Redevelopment Agency. Provided below, however, are the significant provisions
to the OPA.
Master Developer: Knowlton Really Advisers (KRA) is named as the "Master Develope?' to complete
all site and infrastructure improvements (including the relocation of Roma Court) to the Dealership
and Auxiliary parcels as set forth in the Specific Plan. Individual lot development (individual
buildings, on-site landscaping, etc.) may be under KRA or a subsequent developer, including without
limitation, development by the individual Dealerships.
Development deliverables: (development is expected to occur earlier; these dates represent the final
deadline for deliverables under this agreement)
· September 1, 2005: Initial master development obligations, including all grading,
infrastructure, on and off site improvements are to be completed
· September 1, 2007: Properly sales closed with at least three new Auto Dealerships
· September 1, 2008: All dealerships to have building permits
· September 1, 2009: All dealerships to be open for business
· September 1, 2009: All auxiliary uses developed
Enforceabilily: In addition to standard enforceabilily remedies, including termination rights, the
Agency has negotiated purchase option rights in case of default as follows:
· In the event KRA or successor Master Developer does not perform in accordance with the
OPA, the Agency retains an option to purchase back the project at the original purchase
price of the land plus cost of improvements, less Agency costs incurred. Payment terms
require the Agency to allow the developer up to 90 days to remedy non-performance,
followed by an Agency period of 90 days to determine whether to exercise the option.
Thereafter the Agency would be require to close on a purchase within 120 days of
exercising the option.
· In the event a subsequent dealership parcel owner purchases a dealership parcel but
does not develop and open a dealership in compliance with the OPA, the Agency retains
the option to purchase the dealership site back at the original purchase plus cost of
improvements constructed less Agency costs. Payment terms for dealership parcels are
identical to that for the Master Developer whereby the dealership has 90 days to remedy
non-performance, followed by an Agency period of 90 days to exercise the option and
another 120 days to close on the purchase.
· The Agency, through liens and other means, can enforce maintenance and physical
condition performance standards on the project.
Financial Incentives to Master Developer: No financial consideration is contemplated for the Master
Developer in this OPA. The Cily has provided benefit to KRA in the form of the negotiation and
processing of the previously approved Polanco ACt Agreement as well as the preparation of the
Specific Plan.
PAGE 4, ITEM NO.:
MEETING DATE: 07/22/03
However, in consideration of market competition and the Developer providing the Agency with
purchase options in the OPA, the OPA does contain an affirmative obligation of the Agency to give
due consideration to any request for financial assistance from prospective dealership owners in
order to help facilitate transactions be~een KRA and subsequent dealership owners (Section 3.2).
Dealership Parcels: In further consideration of the KRA's need to market the properties, the OPA
allows for a significant number of automobile manufacturers to be "pre-approved" for inclusion in
the Auto Park without the need for prior Agency approval. The "pre-approved" manufacturers are as
follows:
Acura General Motors Lexus Toyota
Audi Honda Mazda Volkswagen
BMW Hyundai Mercedes Benz Volvo
Chrysler Infiniti Mitsubishi
Ford Jaguar Nissan
There are smaller manufacturers that must receive prior approval before being allowed to be "stand-
alone" dealers. However, no prior approvals are necessary if they are combined with a "pre-
approved" manufacturer. These smaller manufacturers typically do not go into an Auto Park without
being combined with other dealership brands and therefore this most likely will not be an issue.
Those that are not "pre-approved" as a stand-alone manufacturers are:
American General Land Rover Saab
Isuzu Mini-Cooper Subaru
Kia Porsche Suzuki
If a "stand alone*' dealership is proposed that is not on the pre-approved list, the Agency reserves the
right to evaluate the merit of including it in the project. The provision is included to guard against
too many smaller manufadurers dominating the Auto Park.
Dealership/Auxiliary use processinfl: Unless plans require special circumstances not anticipated by
the OPA or the Specific Plan, site development can be administratively approved by the CommuniS,
Development Director after receiving Design Review Commiflee approval that the Plans are
consistent with the Council/Agency approved Specific Plan.
Auto Dealers Association · Requires common maintenance of landscape in right of ways and public areas, storm
drainage, stormwater and run-off management, and other infrastructure matters
· Required to develop a common signage program for dealers in the Chula Vista Auto
Park
· Requires marketing to be for the 'Chula Vista Auto Park"
· Requires the Official Name of the project to be the 'Chula Vista Auto Park"
PAGE 5, ITEM NO.:
MEETING DATE: 07/22/03
Roma Court relocation: The City will allow KRA to relocate Roma Court approximately 120 feet west
of its current location. To do so, KRA must complete concurrently all on and offsite improvements
required, at its sole expense, to accommodate the move, including the reconfiguration or relocation
of a SDGE vault on the Borst/Greenwald project site.
Dealership Covenants: These clauses include non-compete, point of sale and new franchise, and
use/operating conditions to ensure compliance with California State Laws and to ensure retention of
all sales tax revenues by the City of Chula Vista.
Consistency: Both the master developer and subsequent individual parcel developers will comply
with all guidelines, land uses, mitigations and requirements stated in the Specific Plan, MND, MMRP,
Tentative Parcel Map Conditions, Parcel Map Agreement, Supplemental Parcel Map Agreement and
Polanco Act Agreement between the Agency and RWQCB.
Assignment: The OPA is assignable with Agency approval and the covenants in the OPA will run
with the land.
Entitlements: The Specific Plan on the property will remain in effect until an alternate Specific Plan or
the repeal of its enabling Ordinance is approved.
FISCAL IMPACT
If the project is approved and fully developed, the ultimate tax increment revenue to the
Redevelopment Agency is expected to be $267,750 annually and the anticipated annual sales tax
receipts to the general fund from this portion of the Chula Vista Auto Park expansion are
estimated at $1,000,000.
Costs to the Agency to enable the project to go forward are as follows:
· Outside counsel for Polanco Act Agreement - $25,000
· Outside counsel for OPA negotiation - $10,000
· Preparation of Specific Plan - $50,000 (staff time)
· Outside counsel for Landbank fee deferral settlement - $7500
ATTACHMENTS
1 - Owner Participation Agreement
J:\COMMDEV~STAFF.REP\O7-22-03\HK auto park OPA.doc
ATTACHMENT 1
Recording Requested By and
When Recorded Mail To:
CHULA VISTA REDEVELOPMENT AGENCY
276 Fourth Avenue
Chula Vista, CA 91910
Attn: Linda Welch
(Space Above This Line For Recorder)
This document is exempt from the payment of a
recording tee pursuant to Government Code
Section 6103.
APN: 644-041-0100 - 1400 and 644-041-1700 - 1900
OWNER PARTICIPATION AGREEMENT
This OWNER PARTICIPATION AGREEMENT ("Agreement") is entered into between
the REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA, a public body
corporate and politic ("Agency"), and KNOWLTON REALTY ADVISORS, LLC, a Utah
limited liability company ("Master Developer"), dated and effective as of July 22, 2003
("Effective Date").
RECITALS:
WHEREAS, Master Developer is the owner of or will be the owner of the Property as
more particularly described below and has presented the Specific Plan (defined below) to obtain
the Initial Entitlement (as defined below) for development of the Project; and
WHEREAS, in consideration for the Initial Entitlement and other consideration set forth
herein, Master Developer agrees by this Agreement (for itself and each and all of its successors
in interest to the Property or any part thereof) to develop the Property in accordance with the
Specific Plan and the Initial Entitlement; and
WHEREAS, the Specific Plan for the Project has been approved or is being approved
concurrently herewith by the Agency and the City Council of the City (defined below); and
WHEREAS, Agency has determined it is of benefit to Agency and the City (defined
below) and its citizens for the Property to be developed in accordance with the Specific Plan as
provided herein, and that the imposition of certain operating covenants and restrictive covenants
upon the Property for the uses set forth in the Specific Plan constitutes a valid public purpose and
objective of Agency's Redevelopment Plan for the Project Area (defined below), and therefore
the Agency desires to obtain such operating covenants and restrictive covenants on the Property
and, subject to the terms hereof, Master Developer (for itself and its successors and assigns of the
UT_DOCS_A#1133789V5 C~- ~
Property or any part thereof) is willing to enter into and be bound by such operating covenants
and restrictive covenants; and
WHEREAS, Agency and Master Developer desire said Project be undertaken and
completed as soon as it is practicable in accordance with and subject to the terms of this
Agreement.
NOW, THEREFORE, the above Recitals being a substantive part of this Agreement and
for good and valuable consideration Agency and Master Developer do hereby agree as follows:
ARTICLE 1
DEFINED TERMS
1.1 Definitions. As used in this Agreement, the following terms shall have the
meanings respectively indicated:
1. I. 1 "Auxiliary Owner" shall mean the ultimate owner of an Auxiliary Parcel.
1.1.2 "Auxiliary Parcels" shall mean all parcels located on the Project not
identified as Dealership Parcels as more particularly identified as Parcels 2, 3, 4, 5, 6, 7,
8, and 9 shown on the Preliminary Mapping Diagram attached hereto as Exhibit A-1.
The Auxiliary Parcels shall be sold to Auxiliary Owners for auxiliary and ancillary
automotive uses commonly associated with auto parks, including, but not limited to, the
servicing and repair of vehicles, and parts sales affiliated with Dealership Parcels and
other light industrial, commercial, and retail uses as permitted by and more particularly
described in the Specific Plan.
1.1.3 "City" shall mean the City of Chula Vista.
1.1.4 "Community Development Director" shall mean the Community
Development Director of the Community Development Department of the City of Chula
Vista, California.
1.1.5 "Dealership Owner" shall mean the ultimate owner of a Dealership Parcel.
1.1.6 "Dealership Parcels" shall mean not less than three (3) parcels (currently
identified as Parcels, 1, 10, and 11 on the Preliminary Mapping Diagram attached hereto
as Exhibit A-1) which shall be sold to Dealership Owners for operation of first class, first
quality automobile dealership franchises as more particularly described herein.
1.1.7 "Initial Entitlement" shall have the meaning set forth in Section 2.1.1 of
this Agreement.
1.1.8 "Master Developer" shall mean Knowlton Realty Advisors, LLC, a Utah
limited liability company, and any and all successors in interest of such entity, and any
and all Agency-approved assignees under this Agreement.
UT_DOCS_A#1133789V5 2 ~- "7
1.1.9 "Master Developer Initial Improvements" shall have the meaning set forth
in Section 2.2.1 of this Agreement.
1.1.10 "Preliminary Mapping Diagram" shall mean the Preliminary Mapping
Diagram attached hereto as Exhibit A-1.
1.1.11 "Project Area" shall mean the Otay Valley Redevelopment Project Area.
1.1.12 "Property" shall mean that certain real property situated within the Project
Area located at Delniso Court and Roma Court and Main Street, in the City of
Chula Vista, San Diego County, California (Assessors Pamel Numbers
[APN] 644-041-0100 through 1400 and 644-041-1700 through 1900), more particularly
described in Exhibit "A" attached hereto and fully incorporated herein by this reference.
1.1.13 "Parcel Map" shall mean the map attached hereto as Exhibit A and fully
incorporated by this reference.
1.1.14 "Project" shall mean the Chula Vista Auto Park North as more fully
identified in the Specific Plan.
1.1.15 "Specific Plan" shall mean the Specific Plan No. PCM# 02-04 adopted by
ordinance of the City Council of the City of Chula Vista on July 22, 2003 as Ordinance
No. 2918 for development of the Project on the Property.
ARTICLE 2
MASTER DEVELOPER INITIAL ENTITLEMENT AND IMPROVEMENT OBLIGATIONS
2.1 Securing Initial Entitlement. The obligation to initiate and process all
applications to obtain the Initial Entitlement and all other permits or approvals in implementation
thereof shall be and remain Master Developer's (or its Agency-approved successor(s) and
assignee(s)) in accordance with this Section 2.1.
2.1.1 Definition of Initial Entitlement. The Initial Entitlement for the Project is
hereby defined to include each application and discretionary action of the City, its
Planning Commission, the Agency, and as applicable, the City's Resource Conservation
Committee ("RCC"), including without limitation, each discretionary action described
below and any and all conditions of approval related thereto, and any amendments,
supplements and modifications related thereto:
(a) Execution and recording of this Agreement by Master Developer
and Agency;
(b) Final approval of the Specific Plan for the Project in the Project
Area;
(c) City Council consideration, action, making of findings, and
certification of the applicable environmental impact documentation, required
UT_DOCS_A#1133789v5 3 ~ ._. ~'
under the California Environmental Quality Act (CEQA), including without
limitation the Mitigated Negative Declaration (MND) that was prepared and
circulated for this Project and Initial Entitlement, which was approved by
ordinance of the City Council on July 22, 2003, Ordinance No. 2918;
(d) Approval of Parcel Map(s), including without limitation
subdivision of the Property into the Dealership Parcels and the Auxiliary Parcels
and, as applicable, lot line adjustment(s), lot consolidation, consolidation plat(s),
and/or parcel map(s), pursuant to all City and state law requirements, including
without limitation the California Government Code, Subdivision Map Act,
Government Code §66410, et seq.; and
(e) One or more Parcel Map Improvement Agreement(s) and/or
Supplemental Parcel Map Improvement Agreement(s) between the City and
Master Developer.
(f) The Initial Entitlement shall not include required building permits
or Design Review Committee approvals.
2.1.2 No Pre-Judgment of Discretion.
(a) Master Developer expressly acknowledges and agrees that Agency
cannot grant any such Initial Entitlement or cause any other governmental agency,
including the City, to grant any such Initial Entitlement, and that each action must
be applied for and processed by Master Developer with the applicable
government entities, boards, commissions, and committees. The foregoing
provisions relating to Master Developer obtaining the Initial Entitlement is an
express condition subsequent in this Agreement. Agency and Master Developer
understand and acknowledge that the City (and Agency) expressly and
intentionally reserve the right to exercise their discretion as to all matters which
they are, by law, entitled or required to exercise their discretion relating in any
respect to the Initial Entitlement. It is not the intent (nor shall it be deemed or
construed in any respect), by Agency's approval and execution of this Agreement
that City is granting approval of the Project or any aspect or item which comprises
the Initial Entitlement or that Agency or City have any future obligation to
approve the Project, the Initial Entitlement, or any permit or approval required in
connection therewith. Notwithstanding the foregoing, Agency acknowledges that
it has reviewed and approved the Specific Plan and will cooperate with the Master
Developer and use good faith efforts to help the Master Developer process to
completion the Initial Entitlement from the City and any other applicable
governmental agencies.
(b) Except for intentional misconduct and a gross abuse of discretion
by an individual officer, employee, or agent, Master Developer hereby knowingly
and voluntarily releases City, Agency, and their officers, employees, and agents
from any liability based upon the Master Developer's failure to obtain the Initial
Entitlement or any additional permits or approvals required, or any part thereof.
UT_DOCS_A#1133?S9v~ 4 C~- ~
2.2 Implementation of Initial Entitlement. Master Developer covenants and agrees,
by and for itself, its heirs, executors, administrators and approved assignees, and all persons
lawfully claiming under or through them, to develop the Project in accordance with the Initial
Entitlement and to implement the Specific Plan as hereinafter more fully described and within
the timeframes hereinafter described.
2.2.1 Master Developer Initial Project Improvements. Master Developer shall
complete, at its sole cost, the initial on-site and off-site improvements that are a part of
the Project, including all master grading and infrastructure improvements to the
Dealership Parcels and the Auxiliary Parcels, (but exclusive of construction of the
ultimate building and landscaping improvements to be constructed on the Dealership
Parcels and/or Auxiliary Parcels) ("Master Developer Initial Project Improvements"), on
or before the earlier to occur of: (i) September 1, 2005, or (ii) two (2) years after the date
the City issues a grading permit for grading the Property. In connection with the
completion of the Master Developer Initial Project Improvements, Master Developer
agrees to diligently present the following actions in a timely manner in order to allow for
the timely completion of the Master Developer Initial Project Improvements.
(a) Permits and Approvals. Master Developer shall obtain all
necessary federal, state, and local governmental permits and approvals, abide by
all applicable federal, state and local laws, regulations, policies and approvals in
connection with the Master Developer Initial Project Improvements, and pay any
and all fees in connection therewith and in connection with the overall
development of the Project. Agency agrees to provide Master Developer a
complete list of said fees, permits, and plan check review fees prior to the
execution of this Agreement. Agency agrees that it will, without obligation to
incur liability or expense therefor, use its reasonable and good faith efforts to
expedite the City's issuance of any applicable permits to the Master Developer in
connection with obtaining the Initial Entitlement.
(b) Polanco Agreement. Master Developer shall abide by the terms
and provisions of that certain Polanco Redevelopment Act Remediation and
Conditional hmnunity Agreement to be entered into between Agency and the San
Diego Regional Water Quality Control Board, a public entity, which are
applicable to Master Developer, as authorized by Resolution No. R9-2003-0139
dated April 9, 2003 by the Califomia Regional Water Quality Control Board (San
Diego Region) ("Polanco Agreement").
(c) Parcel Map. Master Developer shall obtain approval of the final
Parcel Map for the Property and Project, including subdivision of the Property
into the Dealership Parcels and the Auxiliary Parcels, from the City in conformity
with the Subdivision Map Act, Government Code §66410, et seq. and applicable
local laws and regulations.
(d) Grading of Property for Project. Master Developer shall submit
for review and approval, the preliminary and final grading plans for the Project.
The grading plans shall be prepared by a registered civil engineer. The grading
UT_DOCS_A#1133789v5 5 ~,~ "' / O
plans for the Project shall be consistent with the Initial Entitlement and the
Polanco Agreement.
(e) Performance Bond. In coimection with the Master Developer
Initial Project Improvements, Master Developer shall post a performance bond
with the City in an amount equal to one hundred and ten percent (110%) of the
City Engineer's good faith estimated cost of the final grading and site
improvement work for the Project (inclusive ora 10% contingency amount.) The
performance bond shall be issued by a surety company admitted to do business in
California, with a Best's rating of A-V or better, and shall otherwise be in a form
approved by the City Attorney.
(f) Landscaping. Master Developer shall submit to City for review
and approval, the preliminary and final landscaping plans for the Master
Developer Initial Project Improvements within the public right-of-way in the
Project and within the Dealership and Auxiliary Parcels (for both hardscape and
softscape) with such plans depicting and evidencing the first class, first quality
improvements hereunder. The Master Developer shall be responsible for the
installation of public right-of-way landscaping within the Project. The Master
Developer shall not be responsible for the installation of landscaping within the
Dealership Parcels and Auxiliary Parcels.
(i) The landscaping plans shall be prepared by a licensed
landscape architect.
(ii) Particular attention and detail shall be evidenced in the
landscaping plans relating to adjacent rights-of-way, other public
improvements, access ways, and such submittal(s) shall identify materials
to be used for hardscape and identification of all plant materials.
(g) Roma Court Relocation. Master Developer shall complete the
Roma Court Relocation and Reconstruction of Improvements as more particularly
described in Article 5 of this Agreement.
2.2.2 Letter of Commencement; Certificate of Completion.
(a) Upon Master Developer's submittal of a certificate of completion
to the City Engineer and City Engineer's approval thereof, in his or her sole
discretion, Agency agrees to cause the City Engineer to issue a letter to the San
Diego Regional Water Quality Board and the San Diego County Department of
Environmental Health stating that the completion of the grading on the Project, as
certified by the Master Developer's engineer, is in compliance with and conforms
to the final grading plans and specifications for the Specific Plan and Initial
Entitlement, subject to the terms of the Polanco Agreement. Notwithstanding the
foregoing, under no circumstances whatsoever shall the letter issued by the City
Engineer required in this Section 2.2.2(a) be interpreted or de6med to be an
UT_DOCS_A#1133789V5 6 ~, __ ! /
approval by the City or Agency of the Master Developer's soils management plan
required under the Polanco Agreement.
(b) Upon completion of the Master Developer Initial Project
Improvements set forth in Section 2.2.1, Agency shall issue a certificate of
completion stating that: (i) the Master Developer Initial Project Improvements
have been completed in accordance with the requirements of this Agreement; (ii)
the Master Developer Initial Project Improvements are acceptable to Agency and
(iii) the Master Developer is in full compliance with this Agreement ("Certificate
of Completion").
2.2.3 Payment of Fees in Connection with Issuance of Each Permit. Master
Developer shall pay all applicable development impact fees, processing fees, and all other
fees associated with and/or imposed by governmental agencies in connection with
planning, construction and completion of the Master Developer Initial Project
Improvements and/or imposed or due under the Initial Entitlement and in connection with
issuance of each permit for the Master Developer Initial Project Improvements.
2.2.4 Failure to Meet Disposition and Development Obligation of the Master
Developer Initial Project Improvements. Unless the times for performance are extended
by the Agency in its sole, reasonable discretion, in the event Master Developer fails to
meet the foregoing performance obligations and deadlines set forth in this Article 2 for
the Master Developer Initial Improvements, the Agency may provide Master Developer
written notice of such default. Upon Master Developer's receipt of Agency's written
notice of default, Master Developer shall have ninety (90) days to cum such default to the
reasonable satisfaction of Agency ("Cure Period"). In the event Master Developer fails
to cure the default within the Cure Period, Agency shall provide Master Developer with
notice that Master Developer has failed to cure the applicable default to the reasonable
satisfaction of Agency within the Cure Period and Agency shall have the right to (1)
declare the Initial Entitlement expired as to the Master Developer, and to terminate this
Agreement (as to Master Developer) in which event this Agreement shall be
automatically terminated and/or no longer in force or effect, except to enforce legal and
equitable remedies available hereunder, (2) to exercise the Master Developer Option
(defined below) or (3) to exercise any and all other remedies available at law or in equity
(see Section 8.1, below).
(a) In the event Master Developer fails to meet the foregoing
performance obligations and deadlines for the Master Developer Initial Project
Improvements set forth in this Article 2, Master Developer grants to Agency
under this Agreement an option to purchase the Property ("Master Developer
Option") as set forth herein:
(i) In the event Master Developer fails to meet the foregoing
performance obligations and deadlines for the Master Developer Initial
Improvements set forth in this Article 2 and fails to cure such default
within the Cure Period as provided for herein, Agency may elect to
exercise the Master Developer Option granted hereunder by giving written
notice to Developer within ninety (90) days after the expiration of the
Cure Period. Thereafter, the Agency and Master Developer shall negotiate
in good faith and enter into a purchase and sale agreement for the
Agency's acquisition of the Property, inclusive of acquisition of all rights
under the Initial Entitlement and any and all design and development plans
(together, "Project Rights"), in order for the Agency to acquire the
Property and Project, with the Project Rights. The amount of the purchase
price for exercise of the Master Developer Option ("Master Option
Purchase Price") shall be the purchase price paid by Master Developer for
the Property, plus all third party costs, both hard costs and soft costs, for
any and all improvements constructed on the Property for the Project, less
any and all costs incurred by Agency and/or City in public improvements,
other off-site improvements, and Project preparation costs incurred by
Agency and/or City for the Project, which costs shall be actual, incurred,
out-of-pocket costs of Agency and/or City, whether incurred in-house or
through outside contractors or consultants.
(ii) In the event Agency exercises the Master Developer
Option, then Agency shall nominate for vesting of title of the Property an
experienced and qualified successor master developer and shall endeavor
to negotiate the reasonable terms of and enter into a purchase and sale
agreement with such successor master developer within ninety (90) days
after Agency exercises the Master Developer Option who shall contract to
acquire the Property and develop the Project or cause the construction and
development of the Project as required hereunder and in the Specific Plan.
(iii) No Master Option Purchase Price funds shall be due until
the close of escrow for disposition of the Property to Agency or to a
successor master developer, as selected by Agency; provided however,
such escrow shall close and/or payment of the Master Option Purchase
Price shall be paid not later than one hundred twenty (120) days after
Agency exercises the Master Developer Option.
(iv) The Master Developer Option may be exercised only in the
event Master Developer fails to perform under this Article 2 on or before
September 1, 2005 or for an uncured material event of default under this
Agreement prior to September 1, 2005, which default will result in the
Project not proceeding forward as agreed hereunder.
(v) Notwithstanding the foregoing, in the event that Master
Developer timely completes all of the Master Developer Initial Project
Improvements and the Agency has issued a Certification of Completion,
the Master Developer Option shall automatically terminate and expire and
shall be of no further force or effect. Upon such termination, Agency
agrees to execute and deliver to Master Developer a termination of option
to purchase agreement in the form attached hereto as Exhibit "B."
UT_DOCS_A #1133789 v5 8 {~ ~ ~
ARTICLE 3
ADDITIONAL MASTER DEVELOPER OBLIGATIONS;
DEALERSHIP PARCELS, SALES AGREEMENTS
3.1 Purchase and Sale Agreements for Disposition of Dealership Parcels. Agency
acknowledges that Master Developer intends to sell off the Dealership Parcels to one or more
owners who will operate automobile dealerships, with shch sales to be made pursuant to
purchase and sale agreements to be negotiated and entered into between Master Developer and
each owner of a Dealership Parcel ("Purchase Agreement").
3.2 Timing of Closing for Purchase Agreements. Master Developer agrees to enter
into Purchase Agreements with one or more entities for disposition and development of each
Dealership Parcel and to close escrow pursuant to such Purchase Agreements not later than
September 1, 2007. In order to facilitate such transactions, in the event that a prospective
Dealership Owner under contract with Developer for the purchase of a Dealership Parcel
requests financial assistance from the Agency, Agency agrees to give due consideration to such
request.
3.3 Required Terms in Purchase Agreements. Master Developer agrees that each
Purchase Agreement entered into subsequent to this Agreement shall include terms and
provisions which obligate the ultimate owner of the Dealership Parcels to effect the following to
ensure the Dealership Parcels are constructed, developed, open for business and operating, and
that the Project is undertaken in conformity with this Agreement:
3.3.1 Participation in Association. Each Purchase Agreement shall contain a
provision requiring the ultimate owner of the Dealership Parcel to be a member of and
participate in the Association (defined below).
3.3.2 Development Time Frames. Each Purchase Agreement shall include the
specific development obligations set forth in Section 4.1 of this Agreement relating to
completion of improvements.
3.3.3 OPA. Each Purchase Agreement shall have attached to it a copy of this
Agreement and the Auto Park Declaration (defined below) as an exhibit.
3.3.4 Dealership Option to Purchase. Each Purchase Agreement shall include
the provisions set forth in Section 4.3 of this Agreement relating to the Dealership Option
granted to Agency.
3.4 Auto Park Declaration and Automobile Association for the Proiect. Master
Developer agrees to enter into and record prior to any transfer of a Dealership Parcel a
declaration of conditions, covenants, and restrictions (the "Auto Park Declaration") for
maintenance of the Dealership Parcel as a single integrated auto park on the Project. The Auto
Park Declaration shall first be submitted to and approved by the Community Development
Director to ensure the terms and provisions thereof meet the requirements and objectives of the
Initial Entitlement and this Agreement. In connection with the Auto Park Declaration, Master
Developer shall form a mutual benefit corporation by and among the Master Developer and the
UT_DOCS_A #1133789 v5 9 C~ '- / I.~
ultimate owners of all Dealership Parcels at the Project (the "Association"). The Association
shall be duly established prior to the closing of escrow for the first Dealership Parcel at the
Project as evidenced by a certificate issued from the Secretary of State of California showing
such corporation having been duly formed and in good standing. The Auto Park Declaration
shall, without limitation, include standards comparable to existing first class, first quality auto
parks in Chula Vista, California and include provisions for:
(a) maintenance standards for first class, first quality auto parks, for
landscaping, ingress/egress and other access ways, and lighting, including without
limitation:
(i) maintenance of landscaping within public right-of-ways on
Main Street and Delniso and Roma Courts;
(ii) maintenance of all landscaping irrigation throughout the
Project;
(iii) maintenance of permanent best management practices for
onsite private drainage systems and public drainage systems located in
adjacent public rights-of-way, if applicable, including without limitation
storm water and other runoff;
(iv) development and maintenance of common signage for the
Project;
(v) equitable allocation of costs for maintenance among the
members of the Association; and
(vi) a program for joint marketing of the three (3) Dealership
Parcels as part of the Chula Vista Auto Park.
Agency agrees to cause the City to grant Master Developer whatever easements may be
reasonably required to perform the obligations set forth in this Section 3.4
ARTICLE 4
DEALERSHIP OWNER AND AUXILIARY OWNER OBLIGATIONS
4.1 Dealership Owner Development Obligations.
4.1.1 Permits. After the close of escrow of each Dealership Parcel by Master
Developer to a Dealership Owner, each Dealership Owner shall have one (1) year to
obtain all permits necessary to cause construction of an automobile dealership on the
Dealership Parcel in accordance with the Specific Plan and this Agreement, but in no
event shall such permits be obtained any later than September 1, 2008. The City
Engineer reserves the right to require additional grading permits in connection with the
Dealership Owner improvements.
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4.1.2 Completion of Improvements. Each Dealership Owner shall have one (1)
year from the issuance of a building permit and such other permits required in Section
4.1.1 above, to (a) complete construction of all improvements to its Dealership Parcel, (b)
obtain all necessary approvals, (including Department of Motor Vehicle approvals and
manufacturer's approvals), (c) to Open for Business and operate a Dealership Parcel, but
in no event shall any Dealership Owner Open for Business later than September 1, 2009.
For purposes of this Agreement "Open for Business" shall mean that the respective
Dealership Owner shall have received a certificate of occupancy by the City's building
official and shall be offering new and used cars for sale at the respective site.
4.2 Building Permit Approval Process for Dealership Parcels and Auxiliary Parcels.
Agency acknowledges and agrees that once Master Developer obtains the Initial Entitlement and
approval of the Specific Plan, the Project will be entitled for Dealership Parcels and Auxiliary
Parcels and, as of the date of the Agreement, no additional entitlements are necessary for the
Dealership Parcels or Auxiliary Parcels, provided, however, that Dealership Owners and
Auxiliary Owners shall be obligated to obtain approval from the City's Design Review
Committee for the site plan, building elevations and site landscape plan prior to submitting
working drawings to the City's Building Department for review and approval for the issuance of
a building permit.
4.2.1 Building Permit. In connection with obtaining a building permit for the
Dealership Parcels and Auxiliary Parcels, each Dealership Owner and Auxiliary Owner
shall submit to the City a detailed set of construction drawings and related documents
consistent with the Specific Plan and the approval by the Design Review Committee.
The construction drawings and related documents submittal shall include identification
and detail sufficient to review and verify that the proposed improvements on the
Dealership Parcels and Auxiliary Parcels are consistent with the Specific Plan, the Initial
Entitlement, Design Review Committee approval and this Agreement. Final drawings,
plans, and specifications are hereby defined as those that are in sufficient detail to obtain
a building permit, and shall be consistent with and conform to the Specific Plan and the
Initial Entitlement. Agency agrees that the process for review shall be limited to the
approval by the Design Review Committee of the City and the submittal and review of
the construction drawings and related documents for the issuance of a building permit by
the City's Building Department consistent with the Specific Plan and the Agency shall
have no right to review such building plans and construction drawings.
4.2.2 Timing for Review. The City's and Agency's, if applicable, review and
approval of submittals of building plans, specifications, construction drawings and related
documents shall be performed on a timely basis. Once construction drawings and related
documents are submitted, the City's Building Department, shall endeavor to complete its
review and provide comments to the Dealership Owner or his designated representative
within thirty (30) days. Upon resubmittal of corrected construction drawings and related
documents, the City's Building Department shall endeavor to complete its review and
provide comments on the resubmitted construction drawings and related documents
within seven (7) days. Any disapproval of submittal(s) shall state in writing the specific
reason(s) for disapproval. Upon receipt of a disapproval by Agency, if applicable, or the
City, Dealership Owner and/or Auxiliary Owner shall revise such portions of the plans,
UT_DOCS_A #1133789 v5 1 1 t~ -- / ~
drawings or related documents in a manner that satisfies the reasons for disapproval and,
shall resubmit such revised portions to the Agency, if applicable and the City as soon as
possible after receipt of the notice of disapproval. Agency, if applicable and City shall
approve or disapprove such revised portions in the same manner and within the same
times for approval or disapproval of plans, drawings, and related documents initially
submitted to the Agency and City. The City Engineer shall endeavor to ensure that no
matter once approved shall be subsequently disapproved; provided however, in no event
shall any submittal or portion thereof be deemed approved. Failure of Agency to act shall
in no event be deemed approval of any submittal or portion thereof.
4.3 Agency Exercise of Dealership Option for Dealership Owner Non-Performance.
Unless the times for performance are extended by the Agency in its sole discretion, in the event a
Dealership Owner (excluding Auxiliary Owners) fails to meet the foregoing performance
obligations and deadlines for construction of the improvements on the Dealership Parcels set
forth in this Article 4, Agency may provide Dealership Owner written notice of such default.
Upon Dealership Owner's receipt of Agency's written notice of default, Dealership Owner shall
have ninety (90) days to cure such default ("Dealership Cure Period"). In addition to any and all
rights available to Agency at law or in equity, Agency shall have an option to purchase the
Dealership Parcel ("Dealership Option") as set forth below.
4.3.1 In the event Dealership Owner fails to meet the performance obligations
under this Article 4, and fails to cure such default within the Dealership Cure Period as
provided herein, Dealership Owner hereby grants to Agency the Dealership Option,
which may be exercised by Agency by giving written notice to Dealership Owner within
ninety (90) days after the expiration of the Dealership Cure Period.
4.3.2 The amount of the purchase price for exercise of the Dealership Option
("Dealership Option Purchase Price") shall be the purchase price paid pursuant to the
Purchase Agreement, plus all third party costs, both hard costs and soft costs, for any and
all improvements constructed on the applicable Dealership Parcel, which improvement
costs shall be actual, incurred, out-of-pocket costs and which costs shall be fully
substantiated with paid invoices, and lien releases.
4.3.3 In the event Agency exercises the Dealership Option granted hereunder,
then Agency and the applicable Dealership Owner, who has defaulted under the
performance obligations of this Agreement (and the applicable Purchase Agreement)
shall negotiate in good faith and enter into a purchase and sale agreement and enter into
escrow for the Agency's acquisition of such Dealership Parcel and all rights ancillary
thereto.
(a) In the event Agency exercises the Dealership Option, then Agency
shall endeavor to negotiate the reasonable terms of and enter into a purchase and
sale agreement with an experienced, qualified automobile dealership within one
hundred twenty (120) days after Agency exercises the Dealership Option, who
shall contract to acquire the subject Dealership Parcel and cause the construction
and development on such Dealership Parcel as required hereunder and shall open
UT_DOCS_A#1133789v5 12 I:~ '- /
a Dealership Parcel within twelve (12) months from the close of escrow for
acquisition of such Dealership Parcel by the successor Dealership Owner.
(b) No Dealership Option Purchase Price funds shall be due until the
closing for the successor Dealership Owner described in subsection 4.3.3 (a)
above; provided however, such escrow shall close and/or payment of the
Dealership Option Purchase Price shall be paid not later than one hundred twenty
(120) days after Agency exercises the Dealership Option.
(c) The Dealership Option may be exercised only in the event a
Dealership Owner has failed to obtain permits for its improvements on the
Dealership Parcel as required in this Article 4, but in no event later September 1,
2008 or if the Dealership Parcel is not constructed and Open for Business for
taxable new and used auto sales as required in this Article 4, but in no event later
than September 1, 2009.
4.3.4 Notwithstanding the foregoing, in the event that a Dealership Owner
timely obtains all permits for it improvements on the respective Dealership Parcel as
required in this Article 4 or if the Dealership Owner has constructed all improvements on
the respective Dealership Parcel and Open for Business for taxable and new and used
auto sales as required in this Article 4, the Dealership Option shall automatically
terminate and expire and shall be of no further force or effect with respect to the
applicable Dealership Owner that has complied with the terms of this Article 4. Upon
such termination, Agency agrees to execute and deliver to the respective Dealership
Owner a termination of option to purchase agreement in the form attached hereto as
Exhibit "B.'
4.4 Auxiliary Parcel Owner Obligations. Each Auxiliary Owner shall cause the
development of its Auxiliary Parcel to be completed by no later than September 1, 2009.
ARTICLE 5
ROMA COURT RELOCATION
5.1 Roma Court Relocation and Reconstruction of Improvements. Master Developer
has requested City to vacate the current right of way for Roma Court and to permit re-
construction of such street approximately 120 feet to the west of its current location (the "Roma
Court Relocation"). The specific conditions and scope of the Roma Court Relocation are more
fully set forth in and subject to the Parcel Map and the conditions therein currently on file with
the City.
5.1.1 Scope of Roma Court Relocation. The actual Roma Court Relocation
includes any and all construction work to relocate the street itself, including, without
limitation, construction, utilities, new curbs, sidewalks, etc., but also the Additional
Roma Court Improvements, as hereinafter defined and described, and includes all
conditions set forth in the Parcel Map described above. The reconfigured Roma Court is
intended by Master Developer to be the primary entrance to the Project.
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5.1.2 Additional Roma Court Improvements. In consideration for Agency
causing City to authorize and permit the Roma Court Relocation, Master Developer
agrees to undertake and complete at its sole cost and expense and legal responsibility
certain ancillary, consequential, and additional off-site improvements necessitated by the
Roma Court Relocation, as solely determined in the discretion of and as directed by City
as described in Section 5.1.3 below ("Additional Roma Court Improvements").
5.1.3 Description of Additional Roma Court Improvements. Master Developer
shall, at its sole expense and concurrent with the Roma Court Relocation, cause
construction and completion of the Additional Roma Court Improvements, which
include, but are not limited to, the following:
(a) reconfiguration of the existing Main Street median and turn
pockets/lanes and any physical adjustments to the right of way/property on the
south side of Main Street in the adjacent project commonly referred to as the
Borst/Greenwald project;
(b) reconstruction of sidewalks, curbs, gutters on Main Street;
(c) reconstruction of storm drains on Main Street,
(d) reconfiguration and reconstruction of the Main Street utilities for
traffic signals; and
(e) reconfiguration or relocation of an SDG&E vault on the south side
of Main Street directly opposite the new Roma Court Relocation.
5.1.4 Performance Bond. Master Developer shall obtain and secure a
performance bond in an amount equal to one hundred ten percent (110%) of the City
Engineer's good faith estimate of the cost of the Additional Roma Court Improvements
(inclusive of a 10% contingency). Master Developer acknowledges and agrees that the
City Engineer has and shall retain sole and absolute discretion to release the performance
bond at such time as all Additional Roma Court Improvements are completed.
5.1.5 Cooperation in Effecting Roma Court Relocation. Agency desires to
facilitate the Roma Court Relocation, inclusive of the Additional Roma Court
Improvements, and agrees to use its reasonable efforts to cause the City and its City
Engineer to approve such request; provided however, Master Developer acknowledges
and agrees it must complete the Roma Court Relocation and the Additional Roma Court
Improvements at its sole cost, expense, and legal responsibility in accordance with
Article 5 of this Agreement.
ARTICLE 6
COVENANTS RUNNING WITH PROPERTY
6.1 Development and Use Covenant. Master Developer hereby covenants and agrees
(for itself and any and all successors in interest of the Master Developer entity, any and all
UT_DOCS_A#1133789 ¥5 14 ~ ,--/~
Agency-approved assignees under this Agreement or any part thereof) to develop the Project in
accordance with the Initial Entitlement, this Agreement and any and all applicable federal, state,
and local laws and regulations.
6.1.1 Agency Approval of Initial Dealerships. The three (3) initial new car
franchises for each Dealership Parcel are subject to the written approval of the Agency,
which approval shall not be unreasonably withheld, conditioned or delayed. In
considering such approval, the Agency shall take into account the reputation as to quality
and sales tax production of the proposed new franchise, the quality of any proposed
combination of franchises, the extent to which sales taxes may need to be shared with
other jurisdictions, and other relevant factors. Notwithstanding the foregoing, no such
prior approval shall be required for the Dealership Parcels with respect to any new car
franchise(s) that are offered by the following automobile manufacturers:
(a) Ford Motor Company;
(b) General Motors Corporation;
(c) Toyota Motor Company;
(d) Chrysler Corporation;
(e) Honda;
(f) Nissan;
(g) Mazda;
(h) Acura;
(i) Mercedes Benz;
(j) BMW;
(k) Jaguar;
(1) Audi;
(m) Infiniti;
(n) Mitsubishi;
(o) Volkswagen;
(p) Lexus;
(q) Volvo
(r) Hyundai;
UT_DOCS_A #1133789 V5 15 C~ -- ~ O
6.1.2 Agency Approval of Additional or Subsequent Franchises. Subsequent to
Opening for Business, the Dealership Owner may request the written approval of Agency
for additional or substitute franchise(s) and Agency shall reasonably evaluate such
request; provided, however, no written approval from Agency will be required if the
following franchises are offered in combination with the approved manufactures listed
above: (1) Porsche; (2) AM General (Hummer); (3) Saab; (4) Subaru; (5) Suzuki; (6)
Land Rover; (7) Isuzu; (8) Kia; and (9) Mini.
6.2 Restrictive Covenants. Master Developer hereby covenants and agrees (for itself
and any and all successors in interest of the Master Developer entity, any and all Agency-
approved assignees under this Agreement or any part thereof) to the following covenants:
6.2.1 Governmental Compliance. Throughout the term of this Agreement, the
Project shall be maintained in accordance with all applicable laws, permits, licenses and
other governmental authorizations, rules, ordinances, orders, decrees and regulations now
or hereafter enacted, issued or promulgated by federal, state, county, municipal, and other
governmental agencies, bodies and courts having or claiming jurisdiction and all their
respective departments, bureaus, and officials ("Governmental Requirements").
6.2.2 Competing Dealerships. Master Developer and the Dealership Owners
covenant and agree that for a period of five (5) years from the date of this Agreement,
Master Developer and Dealership Owners will not own and/or operate through Master
Developer or Dealership Owner, or any entity in which Master Developer or Dealership
Owner has at least a twenty five percent (25%) interest in profits and losses and/or
management control, any other new vehicle dealership selling any of the same makes as
then being sold by the Dealership Owners within a of the Property ("Competing
Dealership(s)"). In the event Master Developer or any Dealership Owner acquires any
Competing Dealership, Master Developer or Dealership Owner shall terminate the sale of
such same make new vehicles as soon as commercially feasible after acquisition of the
Competing Dealership but in no event later than two (2) years after the acquisition.
6.2.3 Maintenance, Restoration and Repair. Dealership Owners and Auxiliary
Owners covenant to develop and maintain their respective Dealership Parcels and
Auxiliary Parcels in First Quality First Class Condition and Repair consistent with
development, maintenance and operation standards customary for first quality, first class
auto parks and first class quality automobile dealerships of comparable size within the
San Diego California market region and in conformity with the Initial Entitlement, and
the covenants, conditions, maintenance obligations and other restrictions therein during
the term this Agreement. Additionally, each Dealership Owner and Auxiliary Owner
shall promptly and diligently repair, restore, alter, add to, remove, and replace, as
required, all improvements to maintain or comply as above, or to remedy all damage to or
destruction of all or any part of the improvements except improvements dedicated to and
accepted by the City. "First Quality, First Class Condition and Repair," means an
efficient and attractive condition, at least substantially equal in quality to the condition
which exists when the improvements on the respective Dealership Parcels and Auxiliary
Parcels were completed ordinary wear and tear excepted, in accordance with all
applicable laws and conditions.
UT_DOCS_A#1133789v5 16 ~'- o~ I
6.2.4 Delegation of Repair Authority. In order to enforce all above maintenance
provisions, the parties agree the Community Development Director of the City of Chula
Vista is empowered to make reasonable determinations as to whether the Dealership
Parcel(s) and/or Auxiliary Parcel(s) is/are in a first class condition and repair.
(a) If the Community Development Director determines Dealership
Parcel(s) and/or Auxiliary Parcel(s) is/are not in conformity with the requirements
of this Agreement regarding maintenance and upkeep of the Project, the
respective Dealership Owner and/or Auxiliary Owner shall be notified in writing
and provided a reasonable time to cure and/or to commence to cure and diligently
and continuously complete such cure.
(b) If a cure or substantial and ongoing progress to cure has not been
made, the Community Development Director is authorized to effectuate the cure
by City forces or otherwise, the cost of which will promptly be due from and
reimbursed by the respective defaulting Dealership Owner and/or Auxiliary
Owner.
(c) The Community Development Director or the City shall have the
right to enforce this lien by forwarding the amount to be collected to the San
Diego Tax Assessor who shall make it part of the tax bill for the Dealership
Parcel or Auxiliary Parcel.
6.2.5 Used Car Sales. At all times, used automobile and light truck sales or
leasing on each Dealership Parcel or Auxiliary Parcel shall be secondary to new car sales.
At no time shall the number of used automobile or light trucks available for sale or lease
on a Dealership Parcel or any combination of Dealership Parcels and Auxiliary Parcels
operated together, exceed 50% of the total number of automobiles and light trucks
available for sale or lease on such parcel(s).
6.2.6 Designation as "Point of Sale". Dealership Owners shall at all times
designate their respective Dealership Parcel(s) as the point of sale for sales tax purposes
in all retail sales and lease contracts for vehicles whose sales and leases originate from
the Property.
6.2.7 Term of Covenants. The covenants contained in this Section 6.2 shall
continue in effect from the effective date of this Agreement until 2023.
6.3 Rights of Access. Agency, for itself and for the City, at their sole risk and
expense, reserves the right to enter the public right-of-way in the Project at all reasonable times
for the purpose of construction, reconstruction, maintenance, repair or service of any public
improvements or public facilities located thereon, if any. Agency or such other public agency
exercising such right of entry shall take all reasonable measures to minimize interference with
the operation of the Dealership Parcels and Auxiliary Parcels and shall promptly repair and
restore any damage caused by such entity to the Dealership Parcel(s), Auxiliary Parcel(s)or
portion thereof, or any of the improvements thereon. Any such entry shall be made only after
reasonable notice to and consent of the Dealership Owner(s) or Auxiliary Owner(s), and Agency
shall indemnify, defend, and hold Master Developer, Dealership Owner(s) and Auxiliary
Owner(s) harmless from any costs, claims, damages or liabilities pertaining to any entry.
Dealership Owners and Auxiliary Owners agree to cooperate with Agency in providing its
consent and such access, and acknowledge that Agency may obtain an administrative inspection
warrant or other appropriate legal or equitable remedies to enforce its rights hereunder. The
foregoing shall not be deemed to diminish any rights Agency, City, or any other public agencies
may have without reference to this section. The rights of access set forth herein shall remain in
effect until the expiration of the Redevelopment Plan for the Project Area.
6.4 Non-Discrimination. Master Developer, Dealership Owners and Auxiliary
Owners covenant by and for themselves and any successors in interest, that there shall be no
discrimination against or segregation of any person or group of persons on account of race, color,
creed, religion, sex, marital status, physical or mental disability or medical condition, national
origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of
the Property, nor shall Master Developer, itself or any person claiming under or through it
establish or permit any such practice or practices of discrimination or segregation with reference
to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or
vendees of the Property. The foregoing covenants shall run with the land.
6.4.1 Deed, Lease and Contract Restrictions. All deeds, leases or contracts with
respect to the Dealership Parcels and Auxiliary Parcels shall contain or be subject to
substantially the following nondiscrimination or nonsegregation clauses:
(a) In deeds: "The grantee herein covenants by and for himself or
herself, his or her heirs, executors, administrators and assigns, and all persons
claiming under or through them, that there shall be no discrimination against or
segregation of, any person or group of persons on account of race, color, creed,
religion, sex, marital status, physical or mental disability or medical condition,
national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy,
tenure or enjoyment of the land herein conveyed, nor shall the grantee himself or
herself or any person claiming under or through him or her, establish or permit
any such practice or practices of discrimination or segregation with reference to
the selection, location, number, use or occupancy of tenants, lessees, subtenants,
sublessees or vendees in the land herein conveyed. The foregoing covenants shall
run with the land."
(b) In leases: "The lessee herein covenants by and for himself or
herself, his or her heirs, executors, administrators and assigns, and all persons
claiming under or through him or her, and this lease is made and accepted upon
and subject to the following conditions:
There shall be no discrimination against or segregation of any person or
group of persons on account of race, color, creed, religion, sex, marital status,
physical or mental disability or medical condition, ancestry or national origin in
the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the
premises herein leased nor shall the lessee himself or herself, or any person
claiming under or through him or her, establish or permit any such practice or
UT_DOCS_~ #4 ~ 33789 v5 1 8 ~ "O~ ,,~
practices of discrimination or segregation with reference to the selection, location,
number, use or occupancy of tenants, lessees, sublessees, subtenants or vendees in
the premises herein leased."
(c) In contracts: "There shall be no discrimination against or
segregation of, any person, or group of persons on account of race, color, creed,
religion, sex, marital status, physical or mental disability or medical condition,
handicap, ancestry or national origin, in the sale, lease, sublease, transfer, use,
occupancy, tenure or enjoyment of the premises, nor shall the transferee himself
or herself or any person claiming under or through him or her, establish or permit
any such practice or practices of discrimination or segregation with reference to
the selection, location, number, use or occupancy of tenants, lessees, subtenants,
sublessees or vendees of the premises."
6.5 Covenants Run with the Land. The terms, covenants, and obligations of Master
Developer, Dealership Owners and Auxiliary Owners pursuant to this Agreement shall nm with
and be binding upon all lessees, successors and assigns to the Property. All such covenants shall
be prior, superior and non-subordinate to financing for the acquisition, construction, or
permanent financing secured or to be secured by Master Developer and each Dealership Owner.
ARTICLE 7
ASSIGNMENT AND ASSUMPTION
7.1 Permitted Assignment. The person or entities comprising Master Developer (and
each successor entity) hereunder may each transfer or assign its interests in the Property,
including its rights and obligations under this Agreement, without the approval or consent from
the Agency, to any of the following persons or entities ("Permitted Assignee"): (i) Hooper
Knowlton, III and/or one or more of his family members (i.e., spouse, children, grandchildren,
brother), or any entity, including any entity for estate planning purposes, in which any of the
foregoing (individually or collectively) have a majority interest in profits and losses and
managerial and operational control; and/or (ii) Knowlton Realty Advisors, LLC, a Utah limited
liability company or any entity in which Hooper Knowlton, III or his spouse has a majority
interest in profits and losses and managerial and operational control; provided that such
Permitted Assignee expressly assumes, in writing, Master Developer's obligations hereunder.
7.2 Agency Consent Required for All other Assignments of Agreement or Transfer of
Any Interest in Property by Master Developer. If Master Developer desires to transfer and/or
assign its interests in the Property or this Agreement to any person or entity other than a
Permitted Assignee, the consent of Agency (which shall not be unreasonably withheld,
conditioned or delayed) shall be required for each such assignment or transfer.
7.2.1 Conditions to Consent. Agency consent will be granted if.'
(a) the proposed assignee/transferee expressly assumes, in writing,
Master Developer's obligations hereunder as to times following the effective date
of the assignment or transfer;
UT_DOCS_A #1133789 v5 19 e~. -- ~ ~'~
(b) the proposed assignee/transferee has demonstrated to the
reasonable satisfaction of Agency that such person or entity has adequate
financial capacity and operating experience to own the Property, or part thereof
transferred; and
(c) the proposed assignee/transferee has demonstrated to the
reasonable satisfaction of Agency that such person or entity has adequate
financial capacity to fulfill all obligations of this Agreement.
7.2.2 Term of Consent. Agency's consent rights to assignment of this
Agreement and/or transfer of the Property or any part, portion, or parcel thereof by
Master Developer, under this Agreement shall expire, terminate and be of no further
force on September 1, 2007.
7.3 No Consent Requirements for Dealership Parcels or Auxiliary Parcels. Subject to
Agency's continuing approval rights set forth in Section 6.1 above, the person or entities
comprising Dealership Owners or Auxiliary Owners (and each successor entity) hereunder may
each transfer or assign their interests in the Property, including their rights and obligations under
this Agreement, without the approval or consent from the Agency.
7.4 Contracting for Performance Not Prohibited. Nothing herein shall prohibit
Master Developer from contracting with or causing any third party or parties to perform any of
Master Developer's obligations hereunder, provided that in such event Master Developer shall
remain fully responsible to Agency for the performance and compliance under this Agreement.
7.5 Effect of Permitted Assignment or Transfer. Effective upon the date of any
assignment by Master Developer to a third party in which Master Developer holds no interest
where such assignment was, permitted hereunder or consented to in writing by Agency, Master
Developer shall have no further liability for obligations under this Agreement that arise from and
after the date of such assignment or that have been expressly assumed by the assignee.
ARTICLE 8
AGENCY RIGHT OF TERMINATION
8.1 Agency Right of Termination for Default. If Master Developer fails to fulfill its
obligations hereunder after due written notice and reasonable opportunity to cure, Master
Developer shall be in default hereunder, and in addition to any and all other rights and remedies
Agency may have, at law or in equity, Agency shall have the right to terminate this Agreement,
to terminate its approval of the Project, and/or to terminate the Initial Entitlement as to the then
undeveloped portions of the Project. In the event of such Agency termination, Master Developer
acknowledges and agrees neither party shall have any further obligation to the other under this
Agreement, excepting those legal rights for performance that have accrued prior to such
termination. Nothing in the foregoing right of termination shall affect or modify Agency's right
to exercise either the Master Developer Option or the Dealership Option granted to Agency
hereunder.
UT_DOCS_A#1133789v5 20 t~ -- e~ ~
ARTICLE 9
AGENCY INDEMNIFICATION
9.1 Master Developer Indemnification. Master Developer shall protect, defend,
indemnify, assume all responsibility for, pay all costs, hold harmless, and provide a defense for
the Agency and the City and their elective and appointive boards, officers, boards, agents and
employees, from any and all claims, suits, liabilities, expenses or damages of any nature, and
judgments for damages to property and injuries to persons, including death (including attorneys'
fees and litigation costs), which may be caused by any of the Master Developer's (or any of
Master Developer's officers, employees, agents, contractors, subcontractors, invitees, patrons)
activities under this Agreement or related in any respect whatsoever to the preparation, design,
and construction of the Master Developer Initial Project Improvements, or Master Developer's
ownership or possession of the Property, regardless of whether such actions or inactions or
performance thereof be by the Master Developer or anyone directly or indirectly employed or
contracted with by the Master Developer. Master Developer further agrees to protect, defend,
indemnify, hold harmless, pay all costs, and provide a defense for Agency and City and their
officers, employees and boards in any action by a third party for personal injury, including death,
property damage or other damages arising out of or related to the preparation, design, and
construction through completion of the Master Developer Initial Project Improvements. The
Master Developer's indemnity obligations set forth in this Section 9.1 shall terminate and expire
three (3) years following Master Developer's completion of the Master Developer Initial Project
Improvements and its receipt of the Certificate of Completion.
9.2 Dealership Owner and Auxiliary Owner Indemnification. Each Dealership Owner
and Auxiliary Owner shall protect, defend, indemnify, assume all responsibility for, pay all costs,
hold harmless, and provide a defense for the Agency and the City and their elective and
appointive boards, officers, boards, agents and employees, from any and all claims, suits,
liabilities, expenses or damages of any nature, and judgments for damages to property and
injuries to persons, including death (including attorneys' fees and litigation costs) and any other
damages, including consequential damages, which may be caused by any of the Dealership
Owner's or Auxiliary Owner's (or any of their officers, employees, agents, contractors,
subcontractors, invitees, patrons) activities under this Agreement or related in any respect
whatsoever to the preparation, design, and construction of the ultimate improvements to be
constructed on the Property by them (but expressly excluding the Master Developer Initial
Project Improvements), regardless of whether such actions or inactions or performance thereof
be by such Dealership Owner or Auxiliary Owner or anyone directly or indirectly employed or
contracted with by them and regardless of whether such damage shall accrue or be discovered
before or after termination of this Agreement. Each Dealership Owner and Auxiliary Owner
further agrees to protect, defend, indemnify, hold harmless, pay all costs, and provide a defense
for Agency and City and their officers, employees and boards in any action by a third party for
personal injury, including death, property damage or other damages arising out of or related to
the preparation, design, and construction through completion of such improvements.
9.3 Further Indemnities. Any successor Master Developer, Dealership Owner,
Auxiliary Owner or future Dealership Owner or future Auxiliary Owner agrees to indemnify the
Agency and the City from all claims, liabilities, damages, losses, fines, penalties, judgments,
UT_DOCS_A #1133789 v5 21 c~ '- o~.
awards, costs, and expenses incurred or otherwise suffered which arise out of the existence or
release of hazardous materials brought to the Property after such party's acquisition of all or a
portion thereof. The indemnity obligations set forth in this Section 9.3 shall terminate and expire
three (3) years following the respective owner's conveyance of title to the respective pamel of
Property to a third party purchaser.
ARTICLE 10
MISCELLANEOUS
10.1 Recording. Agency and Master Developer agree this Agreement may be recorded
against the Property by Agency in the Office of the County Recorder of San Diego County,
California.
10.2 Attorneys Fees. In the event of any dispute between the parties with respect to the
obligations under this Agreement that results in litigation, the prevailing party shall be entitled to
recover its reasonable attorney's fees, court costs, expert fees, and litigation expenses, including
all such fees, costs and expenses incurred in any appellate proceedings from the non-prevailing
party.
10.3 Time Of Essence. Time is of the essence for each and every obligation hereunder.
10.4 Notices. All notices under this Agreement shall be given in writing by personal
delivery, or by certified mail or registered United States Mail, return receipt requested, postage
prepaid, or by recognized commercial overnight courier and shall be deemed communicated
when received if given by personal delivery or upon receipt or rejection if mailed as provided
above on a business day during business hours in the location where received, and if not then on
the next business day, as the case may be. Mailed notices shall be addressed as set forth below,
but either party may change its address by giving written notice thereof to the other in
accordance with the provisions of this article:
AGENCY: Chula Vista Redevelopment Agency
476 Fourth Avenue
Chula Vista, California 91910
Attn: Executive Director
cc: City Attorney/Agency General Counsel
DEVELOPER: Knowlton Realty Advisors, LLC
1445 Canterbury Drive
Salt Lake City, UT 84108
Attn: Hooper Knowlton III
With a Copy to Ballard Spahr Andrews & Ingersoll, LLP
201 South Main Street, Suite 600
Salt Lake City, Utah 84111
Attn: Michael L. Allen
UT_DOCS_A#1133789v5 22 02 - ~
10.5 Integration. This Agreement constitutes the entire agreement between the parties
concerning the subject matter hereof and supersedes all prior agreements and understandings
written and oral. This Agreement may not be modified or amended except in a writing signed by
all parties hereto.
10.6 Force Majeure. Time for performance hereunder shall be extended by any period
of delay caused by circumstances beyond the reasonable control of the party claiming the delay
despite the party's diligent efforts, other than financial ability, provided the party claiming the
delay, provides written notice to the other party within a reasonable period following
commencement of any such circumstances which circumstances shall include, without limitation,
fire/casualty losses; dealer protests; strikes; litigation; local, regional or national economic
conditions; unusually severe weather; inability to secure necessary labor, materials, or tools;
environmental remediation, including governmental review and processing of environmental
remediation; delays of any contractor, subcontractor, or supplier; delay caused by the other party,
and acts of God (collectively, "force majeure").
10.7 Interpretation. In this Agreement the neuter gender includes the feminine and
masculine, and singular number includes the plural, and the words "person" and "party" include
corporation, partnership, firm, trust, or association where the context so requires.
10.8 Authority to Execute. The person or persons executing this Agreement on behalf
of Master Developer warrant and represent that they have the authority to execute this
Agreement on behalf of their corporation, partnership or business entity and warrant and
represent that they have the authority to bind the Master Developer to the performance of its
obligations hereunder.
10.9 Warranty Against Payment of Consideration for Agreement. Master Developer
warrants that it has not paid or given, and will not pay or give, to any third person, any money or
other consideration for obtaining this Agreement, other than normal costs of conducting business
and costs of professional services such as architects, engineers and attomeys.
10.10 Agency and City Intended Beneficiaries. Agency and City are deemed intended
beneficiaries of the terms and provisions of this Agreement and of the covenants running with
the land, for and in its own rights 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. The Agreement and the
covenants herein shall run in favor of Agency and City, without regard to whether the Agency or
City has been or is an owner of any land or interest in the Property, the Dealership Parcels or the
Auxiliary Parcels. Agency and City shall have the right, if the Agreement or the covenants,
terms, and obligations 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 curing of such
breaches to which it or any other beneficiaries of this Agreement and covenants may be entitled.
10.11 Amendments to this Agreement. Master Developer and Agency agree to mutually
consider reasonable requests for amendments to this Agreement which may be made by lending
institutions, a Dealership Owner's or Auxiliary Owner's counsel, provided such requests are
consistent with this Agreement and would not substantially alter the basic business terms
UT_DOCS_A #11 $3789 v5 23
included herein. The Executive Director of Agency shall have the authority to issue
interpretations, waive provisions and enter into amendments of this Agreement on behalf of
Agency so long as such actions do not substantially change the uses permitted for the Project or
the terms and provisions specified herein and as agreed to by Agency. All other waivers or
amendments shall require the consideration and written consent of the Agency Board.
10.11.1 Extensions of Time for Performance; Schedule.
(a) It is understood the schedule and outside dates for performance
under this Agreement are subject to all of the terms and conditions set forth in the
text of this Agreement. Agency vests in the Executive Director the sole and
complete discretion to authorize extensions to the outside dates set forth in
Section 2.2.1 herein for (i) completion of the Master Developer Initial
Improvements, (ii) issuance of all permits for construction and development of the
Dealerships Parcels, and (iii) completion of construction of the improvements for
the Dealership Parcels; provided however, that in no event shall any extension of
any outside date referenced in (i) to (iii) of this subsection, or all extensions taken
together, exceed twelve (12) months. Additionally, each and every extension is
also subject to the following provisions.
(i) Each extension shall be mutually agreed upon in writing
between Master Developer (or a successor) (or a Dealership Owner, if
applicable) and the Executive Director based on extensions necessary due
to changes in circumstances, market conditions relating to operation of
first class, first quality automobile dealerships and franchises in Chula
Vista, California, or other factors not known by the parties as of the date
of Agreement. Each request for an extension from Master Developer (or a
successor) or Dealership Owner of an outside date shall be in writing
stating the requested extension period, the reasons for such extension, the
facts and circumstances related to the need for such extension, and other
information reasonably necessary for the Executive Director to understand
the basis for such request and the circumstances that did not exist as of the
date of Agreement that necessitate such requested extension. The
Executive Director is authorized to agree to make such revisions as he/she
deems reasonably necessary based on changes in circumstances or other
factors not known as of the date of Agreement. In the event an extension
is granted by the Executive Director, then the performance tasks hereunder
shall be extended by such period and any corresponding extension
necessary to correlate the times for performance hereunder are also
reasonably extended to correlate with the approved extension, as
determined by the Executive Director in his/her sole and absolute
discretion.
10.12 Counterparts. This Agreement may be executed in counterparts and may be
delivered by facsimile or otherwise.
UI_DOCS_A #1133789 V5 24 C~ ~' ~ '~
10.13 Waivers. The waiver by the Agency or Master Developer (or any successor) of
any breach by the other party of any term, covenant, or condition in this Agreement contained
shall not be deemed to be a waiver of such term, covenant, or condition or any subsequent breach
of the same or any other term, covenant, or condition herein contained. Any party's acceptance
of any performance by the other party after the due date of such performance shall not be
deemed to be a waiver by any party of any preceding breach by the other party of any term,
covenant, or condition of this Agreement, regardless of such party's knowledge of such
preceding breach at the time of acceptance of such performance.
10.14 Reasonableness of Actions. In any circumstance where under this Agreement any
party is required to approve or disapprove any matter, approval shall not be unreasonably
withheld, conditioned, or delayed.
10.15 Affirmative Covenants of Agency and Master Developer to Use Good Faith in
Performance under the Agreement. Each party affirmatively covenants to and for the benefit of
the other party to exercise good faith and to use commercially reasonable effbrts to perform and
carry out all obligations and satisfy all conditions under this Agreement for the benefit of the
party entitled to performance of each obligation and action required hereunder.
10.16 Headings. The headings to the paragraphs of this Agreement have been inserted
for convenience reference only and shall not to any extent have the effect of modifying,
amending or changing the expressed terms and provisions of this Agreement.
10.17 Venue. In the event of any litigation under this Agreement, all such actions shall
be instituted in the Superior Court of the County of San Diego, State Of California, or in an
appropriate municipal court in the County of San Diego, State of California, or in the U.S.
District Court for the Southern District of California.
10.18 Applicable Law. The laws of the State of California shall govern the
interpretation and enforcement of this Agreement.
10.19 No Joint Venture. Nothing contained in this Agreement shall be construed to
render Agency in any way or for any purpose a partner, joint venture, or associated in any
relationship with Master Developer (or a successor), nor shall this Agreement be construed to
authorize any party to act as agent for the other.
10.20 Mortgage Protection. Whenever Agency delivers any notice or demand to Master
Developer (or a successor) with respect to any breach or default by Master Developer (or a
successor), Agency shall at the same time deliver to each holder of record of any mortgage, deed
of trust or other security interest ("Mortgagee") a copy of such notice or demand, provided that
the Mortgagee has given prior written notice of its name and address to Agency, or such address
is set forth in a recorded instrument. Each Mortgagee shall have the right, at its option, within
thirty (30) days after the receipt of the notice, to cure or remedy (or commence to cure or
remedy) any such default. If such default cannot be cured within such thirty (30) day period, the
Mortgagee shall have such additional period as may be reasonably required within which to cure
the same, provided that the Mortgagee shall deliver written notice to Agency of its intention to
cure and shall have commenced to cure such default within fifteen (15) days, and shall thereafter
UT_DOCS_A#1133789v5 25 C~ -- ~ 0
diligently prosecute such cure to completion. Agency shall not terminate this Agreement or any
of Master Developer's (or successor's) rights hereunder by reason of the Master Developer's (or
successor's) default without first serving the Mortgagee with notice of default and allowing the
Mortgagee the cure period described above and such further period to foreclose or otherwise
acquire the property so long as the Mortgagee notifies Agency that it will commence foreclosure
or other proceedings to acquire the Property, and thereafter diligently prosecute the same to
completion. If a default by Master Developer (or a successor) shall be cured by the Mortgagee,
the Mortgagee shall not be obligated to continue any foreclosure, possession or other
proceedings which it may have instituted. Should the Mortgagee or any party claiming through
the Mortgagee succeed to the interest of the Master Developer (or a successor) in the Property, or
any portion thereof inclusive of Dealership Parcels and Auxiliary Parcels, such Mortgagee or
other party shall expressly assume, in writing, Master Developer's (or successor's) obligations
hereunder and Agency shall recognize such a party as Master Developer and shall not disturb its
use and enjoyment of the Property, or any part thereof, pursuant to this Agreement, provided that
such party cures any default by Master Developer (or a successor) which may be satisfied by the
payment of money and performs all of the obligations of Master Developer (or a successor) set
forth in this Agreement, which accrue thereafter. A breach of any covenants or restrictions
contained in this Agreement shall not defeat or render invalid the lien of any mortgage or deed of
trust made in good faith and for value as to the Property or any part thereof or any interest
therein, whether or not said mortgage or deed of trust is subordinated to this Agreement; but
unless otherwise provided herein, the terms, conditions, covenants, restrictions and reservations
of this Agreement shall be binding and effective against the holder of any such mortgage or deed
of trust and any owner of the Property or any part thereof, whose title thereto is acquired by
foreclosure, trustee sale or otherwise.
10.21 Relationship to Specific Plan. Nothing in this Agreement is intended to, or shall
have the effect of altering the terms and conditions of the Specific Plan. To the extent of any
conflict between this Agreement and the terms of this Agreement, the terms of the Specific Plan
shall govern, and this Agreement is hereby modified to the extent necessary to be consistent
therewith.
10.22 Release of Agency/City Officials. No member, official, agent, employee, or
attorney of the Agency or City shall be personally liable to Master Developer, or any successor
in interest of the Master Developer, in the event of any default or breach by Agency or on any
obligations under the terms of this Agreement. Master Developer hereby waives and releases
any claim it may have personally against the members, officials, agents, employees consultants,
or attomeys of Agency with respect to any default or breach hereunder by Agency. Master
Developer makes such release with full knowledge of Civil Code Section 1542, and hereby
waives any and all rights thereunder to the extent of this release, if such Section 1542 is
applicable California Civil Code Section 1542 provides as follows:
"A general release does not extend to claims which the creditor does not
know or suspect to exist in his favor at the time of executing the release, which if
known by him must have materially affected his settlement with the debtor."
UT_DOCS_A#1133789v5 26 ~ _,,-~ /
[Signature Page Follows]
UT_DOCS_A #1133789 V5 27 ¢~ -- ~ ~'~
JUL-I?-O3 1B:04 From:Ballard Spahr 8015313001 T-OTB P.OZ/OZ Job-gZ5
IN WITNESS WRI!KIiOF Agency and Master Developer have entered into this Agreement
effective as of the date first written above.
"AGENCY"
REDEVELOPMENT AGENCY OF THE CITY OF
CHULA VISTA, a public body corporate and
politic
DATED: By:
Stephen C, Padilla, Chairman
APPROVED AS TO FORM BY:
Ann Moore
Agency Attorney
"DEVELOPER"
KNOWLTON REALTY ADVISORS, LLC,
Exhibit A
to
Owner Participation Agreement
Parcel Map
[to be inserted]
UT_DOCS_A #1133789 v5 29 ~
Exhibit A-1
to
Owner Participation Agreement
Preliminary Mapvin~ Diaeram Of Property
[to be inserted]
Exhibit B
to
Owner Participation Agreement
Termination of Option to Purchase
[to be inserted]
UT_DOCS_A#1133789V5 31 o~, - '~
ORDINANCE NO. 8ECONo REI~DIN~ ,~NO ,l~OlO~ON
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
ADOPTING A MITIGATED NEGATIVE DECLARATION AND MITIGATION
MONITORING AND REPORTING PROGRAM (IS-02-006) AND ADOPTING A
SPECIFIC PLAN (PCM-02-04) FOR THE AUTO PARK NORTH EXPANSION
(KNOWLTON REALTY ADVISORS, LLC & OTAY MESA VENTURES II, LLC).
I. RECITALS
A. Project Site
WHEREAS, the areas of land, which are the subject of this Ordinance, are represented in
Exhibit "A" and for the purpose of general description herein consist of 38.81 acres located on the
north side of Main Street between Brandywine Avenue and Maxwell Road ("Project Site"); and
B. Project; Application
WHEREAS, on January 14, 2003, Knowlton Realty Advisors, LLC and Otay Mesa
Ventures II, LLC ("Developer") filed an application requesting the adoption of a Specific Plan
(PCM-02-04) for the development of auto dealership lots and supporting use lots on the Project
Site ("Project"); and
C. Planning Commission Record on Applications
WHEREAS, the Planning Commission held an advertised public hearing on this Project
on May 28, 2003, and voted to recommend that the City Council adopt the Specific Plan (PCM-
02-04); and
WHEREAS, the proceedings and all evidence introduced before the Planning
Commission at their public hearing on this Project held on May 28, 2003, and the minutes and
resolutions resulting therefrom, are hereby incorporated into the record of this proceeding; and
D. City Council Record on Applications
WHEREAS, a duly called and notice?l public hearing was held before the City Council on
June 3, 2003 on the application and to receive the recommendations of the Planning Commission
and to hear public testimony with regard to the same.
II. The City Council does hereby ordain as follows:
A. Certification of Compliance with CEQA
The City Council does hereby find that the Mitigated Negative Declaration and Mitigation
Monitoring and Reporting Program (IS-02-006) have been prepared in accordance with
requirements of the California Environmental Quality Act (CEQA), the State CEQA Guidelines,
and the Environmental Review. Procedures of the City of Chula Vista, and hereby adopts the
Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program (IS-02-006).
B. Independent Judgment of City Council
The City Council does hereby find that in the exercise of their independent review and
judgment, the Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program
(IS-02-006) in the form presented has been prepared in accordance with the requirements of the
Ordinance
Page 2
California Environmental Quality Act and the Environmental Review Procedures of the City of
Chula Vista.
C. Adoption of Specific Plan
The City Council does hereby adopt Specific Plan (PCM~02-04), attached hereto and
incorporated herein as though set forth in full, finding that it is consistent with the General Plan
and would implement the Redevelopment Plan for the Otay Valley Road Redevelopment Project
Area, and that the public necessity, conveniences, general welfare, and good zoning practice
supports its approval and implementation.
III. INVALIDITY; AUTOMATIC REVOCATION
It is the intention of the City Council that its adoption of this Ordinance is dependent upon
the enforceability of each and every term, provision, and condition herein stated; and that in the
event that any one or more terms, provisions, or conditions are determined by a Court of
competent jurisdiction to be invalid, illegal, or unenforceable, this Ordinance shall be deemed to
be automatically revoked and of no further force and effect ab initio.
IV. EFFECTIVE DATE
This ordinance shall take effect and be in full force on the thirtieth day from and after its
adoption.
Presented by Approved as to form by
LaurJe Madigan
~ ~ N'),~ore
-3 8
RESOLUTION NO.
RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF
CHULA VISTA APPROVING AN OWNER PARTICIPATION AGREEMENT FOR
THE DEVELOPMENT OF A THREE DEALERSHIP AUTO PARK EXPANSION
(WITH ANCILLARY USES) ON 39 ACRES LOCATED AT MAIN STREET AND
DEL NISO COURT (APN #644-041-1100-1400 AND APN # 644-041-1700-
1900) IN THE OTAY VALLEY ROAD REDEVELOPMENT PROJECT AREA
(KNOWLTON REALTY ADVISERS, L.L.C.)
WHEREAS, Knowlton Realty Advisors L.L.C. is proposing to acquire the property known as the former
Omar Rendering Plant site (APN # 644-041-0100 - 1400 and APN # 644-041-1700 - 1900) for purposes of
developing a northern expansion for the Chula Vista Auto Park; and
WHERAS, an application for a Specific Plan (PCM-0204) has been presented for adoption which would
allow the development of the 39 acre Project as three auto dealerships, inventory parking and auxiliary uses; and
WHEREAS, the site is located in the Otay Valley Road Redevelopment Project Area; and
WHEREAS, the Environmental Review Coordinator has reviewed the proposed Project for compliance
with the California Environmental Quality Act, has conducted an initial study (IS-02-006) and has prepared a
Mitigated Negative Declaration in accordance with the California Environmental Quality Act (CEQA); and
WHEREAS the Chula Vista Planning Commission held a duly noticed public hearing to consider the
Specific Plan application on May 28, 2003 and after considering all evidence and testimony presented
recommended that the City Council/Redevelopment Agency approve the Specific Plan; and
WHEREAS the City Council and Redevelopment Agency of the City of Chula Vista have been presented
an Owner Participation Agreement, said agreement being on file with the Secretary of the Redevelopment Agency
and known as document RACO-03-05, approving the redevelopment of the former Omar Rendering Plant site
(APN# 644-041-0100 - 1400 and APN# 644-041-1700 - 1900) for purposes of developing an expansion site for
the Chula Vista Auto Park;
NOW, THEREFORE, THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA does hereby
find, order, determine, and resolve as follows:
1. Revisions to the proposed project made by or agreed upon by the applicant would avoid or mitigate
environmental impacts to a point where clearly no significant effects would occur; therefore the
Environmental Review Coordinator has prepared a Mitigated Negative Declaration, IS-02-006
2. The Project is consistent with the Otay Valley Road Redevelopment Plan and shall implement the
purpose thereof; the Project shall assist in the elimination of blight in the Project Area.
3. The Redevelopment Agency of the City of Chula Vista hereby approves the Owner Participation
Agreement with Knowlton Realty Advisers L.L.C to allow the development of a 39-acre Chula Vista Auto
Park expansion on the former Omar Rendering Plant site (APN #644-041-1100 - 1400 and APN #644-
041-1700 - 1900) in the Otay Valley Road Redevelopment Project Area, in the form presented in
accordance with the Specific Plan (PCM-0204) and subject to conditions listed in the Owner Participation
Agreement (RACO-0305) and attached for reference.
PRESENTED BY APPROVED AS TO FORM BY
Laurie Madigan An~ Moo~
Director of Community Development Age's-A~(~rney ~" /
J :\COMMDEV~RESOS\OPA-H K.doc