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HomeMy WebLinkAboutRDA Packet 2004/03/16 ~{f? =-=- .. -: ~ CITY OF CHUIA VISTA TUESDAY, MARCH 16, 2004 COUNCIL CHAMBERS 6:00 P.M. PUBLIC SERVICES BUILDING (immediately following the City Council meeting) JOINT MEETING OF THE REDEVELOPMENT AGENCY I 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 Is) 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. APPROVAL OF MINUTES - February 17,2004; February 24,2004, March 2, 2004 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 not 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 Secretary to the Redevelopment Agency or City Clerk prior to the meeting. Those who wish to speak, please give your name and address for record purposes and follow up action. PUBLIC HEARING The following item(s) have been advertised and/or posted as public hearings as required by law. If you wish to speak to any item, please fill out the" Request to Speak Form" available in the lobby and submit it to the Redevelopment Agency or the City Clerk prior to the meeting. 2. CONSIDERATION OF THE PUBLIC NECESSITY TO ACQUIRE CERTAIN REAL PROPERTY LOCATED AT 293 NAPLES STREET (APN 619-121-02-00) AND 1101 THIRD AVENUE (APN 619-121-01), FOR THE DEVELOPMENT OF A 14,360 SQUARE FOOT WALGREEN'S RETAIL STORE WITH DRIVE THRU PHARMACY AND ASSOCIATED PARKING WITHIN THE SOUTHWEST REDEVELOPMENT AREA The Agency offered the property owner the opportunity to participate within the redevelopment project area on January 31, 2003. The property owner did not submit a statement of interest to participate within the redevelopment project area. On October 31, 2003, the Agency presented an initial offer to purchase the property. The initial offer was rejected. The Agency then prepared an update to the appraisal and presented another offer to the property owner on February 12, 2004. To date, no counter offer has been received. As a result, staff is presenting the Agency with the Resolution of Necessity to authorize the commencement of condemnation proceedings for the necessary parcels to move forward with the redevelopment project. [Director of Community Development] STAFF RECOMMENDATION: Agency conduct the public hearing and adopt the following resolution: RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA APPROVING MITIGATED NEGATIVE DECLARATION IS-04-010 FOR THE DEVELOPMENT OF A 14,360 SQUARE FOOT WALGREEN'S RETAIL STORE WITH DRIVE THRU PHARMACY AND ASSOCIATED PARKING WITHIN THE SOUTHWEST REDEVELOPMENT PROJECT AREA; AND DETERMINING AND DECLARING THE PUBLIC INTEREST AND NECESSITY FOR ACQUIRING AND AUTHORIZING CONDEMNATION AND IMMEDIATE POSSESSION OF ASSESSOR PARCEL NUMBERS 619-121-01 AND 619-121-02, COMMONLY KNOWN AS 1101 THIRD AVENUE AND 293 NAPLES FOR THE CONSTRUCTION OF A REDEVELOPMENT PROJECT (DZ-001) AND AUTHORIZING THE COMMENCEMENT OF CONDEMNA nON PROCEEDINGS BY OUTSIDE COUNSEL TO ACQUIRE SAID PROPERTIES IN THE MANNER PROVIDED BY LAW 3. CONSIDERATION OF, PURSUANT TO CALIFORNIA HEALTH AND SAFETY CODE SECTIONS 33431 AND 33433, A DISPOSITION AND DEVELOPMENT AGREEMENT WITH 3RD AND NAPLES, LLC, FOR THE ACQUISITION AND DISPOSITION OF PROPERTY, AND DEVELOPMENT OF A 14,360 SQUARE FOOT WALGREEN'S RETAIL STORE WITH DRIVE THRU PHARMACY AT THE SOUTHEAST CORNER OF THIRD AVENUE AND NAPLES STREET WITHIN THE SOUTHWEST REDEVELOPMENT PROJECT AREA The development firm of 3rd and Naples, LLC proposes to develop a 14,360 square foot Walgreen's retail store with drive thru pharmacy and associated parking at the southeast corner of Third Avenue and Naples Street. The developer has prepared the formal concept plans and has processed them through the City's review process. The site is within the Southwest Redevelopment Project Area, which is under the jurisdiction of the Redevelopment Agency and subject to the requirements of California Health Redevelopment Agency, March 16, 2004 Page 2 and Safety Code Sections 33431 and 33433. [Director of Community Development] STAFF RECOMMENDATION: Agency adopt the following resolution: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AND THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA MAKING THE REQUIRED REDEVELOPMENT ACT FINDINGS AND APPROVING A DISPOSITION AND DEVELOPMENT AGREEMENT AND JOINT ESCROW INSTRUCTIONS WITH 3RD AND NAPLES, LLC, FOR THE ACQUISITION AND DISPOSITION OF PROPERTY, AND DEVELOPMENT OF A 14,360 SQUARE FOOT WALGREEN'S RETAIL STORE WITH DRIVE THRU PHARMACY AND ASSOCIATED PARKING AT THE SOUTHEAST CORNER OF THIRD AVENUE AND NAPLES STREET WITHIN THE SOUTHWEST REDEVELOPMENT PROJECT AREA OTHER BUSINESS 4. DIRECTOR'S REPORT 5. CHAIR REPORT 6. AGENCY COMMENTS CLOSED SESSION Unless Agency Counsel, the Executive Director, or the Redevelopment Agency/City Council states otherwise at this time, the Agency/Council will discuss and deliberate on the following itemlsl of business which are permitted by law to be the subject of a closed session discussion, and which the Agency/Council is advised should be discussed in closed session to best protect the interests of the City. The Agency/Council is required by law to return to open session, issue any reports of final action taken in closed session, and the votes taken. However, due to the typical length of time taken up by closed sessions, the videotaping will be terminated at this point in order to save costs so that the Agency/Council's return from closed session, reports of final action taken, and adjournment will not be videotaped. Nevertheless, announcements of actions taken in Closed Session shall be made by Noon on Wednesday following the meeting at the City Attorney's office in accordance with the Ralph Brown Act (Govt. Code § 54957.71 7. CONFERENCE WITH LEGAL COUNSEL REGARDING EXISTING LITIGATION -- Pursuant to Government Code Section 54956.9(a) City/Agency vs. IT Group, Inc., et. al. [USBC # 02 10118] ADJOURNMENT The meeting will adjourn to an adjourned meeting of the Redevelopment Agency on March 23, 2004, at 6:00 p.m., immediately following the City Council meeting in the City Council Chambers. Redevelopment Agency, March 16, 2004 Page 3 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 1619) 691-5047 or Telecommunications Devices for the Deaf ITDD) at (619) 585-5647. California Relay Service is also available for the hearing impaired. Redevelopment Agency, March 16, 2004 Page 4 MINUTES OF AN ADJOURNED REGULAR MEETING OF THE CITY COUNCIL AND A REGULAR MEETING OF THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA February 17,2004 6:00 p.m. An Adjourned Regular Meeting of the City Council and a Regular Meeting of the Redevelopment Agency of the City of Chula Vista were called to order at 6:29 p.m. in the Council Chambers, located in the Public Services Building, 276 Fourth Avenue, Chula Vista, California. ROLL CALL: PRESENT: Agency/Councilmembers: Davis, McCann, Rindone, Salas and Chair/Mayor Padilla ABSENT: Agency/Councilmembers: None ALSO PRESENT: Executive Director/City Manager Rowlands, Agency/City Attorney Moore, and City Clerk Bigelow CONSENT CALENDAR 1. APPROVAL OF MINUTES: January 27,2004 Staffrecommendation: Council/Agency approve the minutes. 2. AGENCY RESOLUTION NO. 1859, RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA APPROVING THE SIXTH AMENDMENT TO THE GATEWAY CHULA VISTA PROJECT DISPOSITION AND DEVELOPMENT AGREEMENT (DDA) The sixth amendment to the Gateway Chula Vista Project DDA provides for several changes in the schedule of performance in order to better reflect the revised development schedule and to more effectively assist the project during Phases II and III. The action amends the schedule of performance by shifting the completion date of Phase II from October 10, 2004 to October 10, 2005, and changes other dates in the schedule of performance to conform with this amendment. (Director of Community Development). Staff recommendation: Agency adopt the resolution. 3. AGENCY RESOLUTION NO. 1860, RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA APPROPRIATING $300,000 FOR THE RDA COMMUNITY HOUSING IMPROVEMENT PROGRAM (CHIP) The CHIP offers qualified residents assistance in making health and safety repairs to their homes. Low-interest loans and grants are offered to owners of mobilehomes and single family residences. The CHIP program has been in existence for many years and continues to offer assistance to those in need. (Director of Community Development) Staff recommendation: Agency adopt the resolution. 1- I CONSENT CALENDAR (Continued) 4. AGENCY RESOLUTON NO. 1861, RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA APPROPRIATING $30,000 FROM THE AVAILABLE BALANCE OF THE MERGED PROJECT AREA TO FUND A CONSULTING AGREEMENT WITH KEYSER-MARSTON ASSOCIATES FOR FINANCIAL ANALYSIS AND ASSISTANCE WITH NEGOTIATIONS WITH AUTO PARK DEVELOPERS This resolution provides funds to compensate a qualified consultant for analysis of statements and requests made by auto dealers requesting financial incentives and other considerations in return for opening new dealerships in the Auto Park North project. (Director of Community Development) Staff recommendation: Agency adopt the resolution. ACTION: Chair/Mayor Padilla moved to approve staffs recommendations and offered the Consent Calendar, headings read, texts waived. The motion carried 5-0. ORAL COMMUNICATIONS There were none. OTHER BUSINESS 5. DIRECTOR/CITY MANAGER'S REPORTS There were none. 6. CHAIR/MAYOR'S REPORTS There were none. 7. AGENCY/COUNCILMEMBER COMMENTS There were none. CLOSED SESSION 8. CONFERENCE WITH REAL PROPERTY NEGOTIATOR PURSUANT TO GOVERNMENT CODE SECTION 54956.8 Property: Assessor Parcel No. 624-060-2700, 624-060-4500, 624- 060-6600, and 644-042-0300 (approximately .1 acres) street frontage located on southern side of Main Street east ofI-805 Negotiating Parties: Laurie Madigan (Redevelopment Agency) Leonard Tessier, Vince Davies, Claude Yacoel, and Doug Fuller (Property Owners) Under Negotiations: Instructions to negotiators No reportable action was taken on this item. / - J.... Page 2 CounciVRDA Minutes 02/17/04 CLOSED SESSION (Continued) 9. CONFERENCE WITH LEGAL COUNSEL REGARDING INITIATION OF LITIGATION PURSUANT TO GOVERNMENT CODE SECTION 54956.9(c) One case No reportable action was taken on this item. ADJOURNMENT At 10:00 p.m., Chair/Mayor Padilla adjourned the meeting to an adjourned regular meeting of the Redevelopment Agency on February 24, 2004, at 6:00 p.m., immediately following the City Council Meeting in the Council Chambers. ~ lLC.r::-~ '&: ~'-- Susan Bigelow, CMC, lty Clerk 1-..3 Page 3 CounciVRDA Minutes 02/17/04 MINUTES OF ADJOURNED REGULAR MEETINGS OF THE CITY COUNCIL AND THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA February 24,2004 6:00 p.m. Adjourned Regular Meetings of the City Council and the Redevelopment Agency of the City of Chula Vista were called to order at 6:36 p.m. in the Council Chambers, located in the Public Services Building, 276 Fourth Avenue, Chula Vista, California. ROLL CALL: PRESENT: Agency/Councilmembers: Davis, McCann, Rindone, Salas ABSENT: Agency/Councilmembers: Chair/Mayor Padilla (excused) ALSO PRESENT: Executive Director/City Manager Rowlands, City Attorney Moore, and City Clerk Bigelow ACTION: Agency/Councilmember Rindone moved to excuse Chair/Mayor Padilla's absence. Agency/Councilmember Davis seconded the motion, and it carried 4-0). ORAL COMMUNICATIONS There were none. ACTION ITEMS 1.A RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA AUTHORIZING TRANSMITTAL TO AFFECTED TAXING AGENCIES, AS REQUIRED BY LAW, OF THE PRELIMINARY REPORT FOR THE 2004 AMENDMENT, IN THE FORM OF AN AMENDED AND RESTATED REDEVELOPMENT PLAN FOR THE MERGED CHULA VISTA REDEVELOPMENT PROJECT B. RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA ADOPTING FINAL AMENDED AND RESTATED RULES GOVERNING PARTICIPATION AND RE-ENTRY PREFERENCES FOR PROPERTY OWNERS AND BUSINESS OCCUPANTS FOR THE MERGED CHULA VISTA REDEVELOPMENT PROJECT AREA This action is part of the proposed Redevelopment Plan Amendment process begun earlier this year to consolidate the Redevelopment Plan documents for the Otay Valley, Town Centre II and Southwest Redevelopment Project Areas and add approximately 494 acres of land into redevelopment. Approval of these resolutions would allow staff to transmit to taxing entities the Preliminary Report, which explains the reasons for the proposed Amendment and adopts the Owner Participation Rules for the consolidated redevelopment areas. (Director of Community Development) Staffrecommendation: Agency adopt the resolutions. No action was taken on this item due to a conflict of interest by two Agency/Councilmembers, resulting in a lack of a quorum for voting purposes. The item was continued to March 2, 2004. 1-4 OTHER BUSINESS 2. DIRECTOR/CITY MANAGER'S REPORTS There were none. 3. CHAIR/MA YOR'S REPORTS There were none. 4. AGENCY /COUNCILMEMBER COMMENTS There were none. CLOSED SESSION 5. CONFERENCE WITH LEGAL COUNSEL REGARDING EXISTING LITIGATION PURSUANT TO GOVERNMENT CODE SECTION 54956.9(a) City/Agency vs. IT Group, Inc., et. al. [USBC # 0210119] This item was not discussed, and no action was taken. ADJOURNMENT At 6:40 p.m., Agency/Councilmember Salas adjourned the meeting to the Regular Meeting of the Redevelopment Agency on March 2, 2004, at 4:00 p.m., immediately following the City Council Meeting in the Council Chambers. ~ cL.::¡ ~~ J-&-,-> Susan Bigelow, CMC, lty Clerk Page 2 CouncilJRDA Minules I-S" 02/24/04 MINUTES OF AN ADJOURNED REGULAR MEETING OF THE CITY COUNCIL AND A REGULAR MEETING OF THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA March 2, 2004 4:00 p.m. An Adjourned Regular Meeting of the City Council and a Regular Meeting of the Redevelopment Agency of the City of Chula Vista were called to order at 4:59 p.m. in the Council Chambers, located in the Public Services Building, 276 Fourth Avenue, Chula Vista, California. ROLL CALL: PRESENT: Agency /Councilmembers: Davis, McCann, Rindone, Salas and Chair/Mayor Padilla ABSENT: Agency/Councilmembers: None ALSO PRESENT: Executive Director/City Manager Rowlands, Agency/City Attorney Moore, and City Clerk Bigelow CONSENT CALENDAR 1. APPROVAL OF MINUTES - February 3, 2004 2. COUNCIL RESOLUTION NO. 2004-071, AND AGENCY RESOLUTION NO. 1862, RESOLUTION OF THE CITY COUNCIL AND THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA WAIVING THE CONFLICT OF INTEREST IN CONNECTION WITH STRADLING,YOCCA, CARLSON AND RAUTH'S REPRESENTATION OF Y ACOEL PROPERTIES I, LLC Stradling, Yocca, Carlson and Rauth has represented the City and Redevelopment Agency in counection with various public law, public finance, and redevelopment matters since 1997. Recently, Yacoel Properties I, LLC, a private developer, asked Stradling to represent it in counection with the preparation and review of an environmental impact report, and any off-site acquisition proceedings that may arise, in counection with the proposed Chura Vista Crossings project. Because of its previous and ongoing representation of the City and Agency, in order to represent Yacoel Properties, Stradling must first obtain a waiver of conflicts of interest from the City and Agency. (City Attorney) Staff recommendation: Council/Agency adopt the resolutions. ACTION: Chair/Mayor Padilla moved to approve staffs recommendations and offered the Consent Calendar, headings read, texts waived. The motion carried 5-0. ORAL COMMUNICATIONS There were none. I-fr:, ACTION ITEMS 3.A. AGENCY RESOLUTION NO. 1863, RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA AUTHORIZING TRANSMITTAL TO AFFECTED TAXING AGENCIES, AS REQUIRED BY LAW, OF THE PRELIMINARY REPORT FOR THE 2004 AMENDED AND RESTATED REDEVELOPMENT PLAN FOR THE MERGED CHULA VISTA REDEVELOPMENT PROJECT (Continued ftom the meeting of 2/24/04) B. AGENCY RESOLUTION NO. 1864, RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA ADOPTING AMENDED AND RESTATED RULES GOVERNING PARTICIPATION AND REENTRY PREFERENCES FOR PROPERTY OWNERS AND BUSINESS OCCUPANTS FOR THE MERGED CHULA VISTA REDEVELOPMENT PROJECT AREA This action is part of the proposed Redevelopment Plan amendment process begun earlier this year to consolidate the Redevelopment Plan documents for the Otay Valley Town Centre II and Southwest Redevelopment Project Areas and add approximately 494 acres of land into redevelopment. Approval of these resolutions allows staff to transmit to taxing entities the preliminary report, which explains the reasons for the proposed amendment, and adopts the owner participation rules for the consolidated redevelopment areas. (Director of Community Development) Agency/Councilmembers Rindone and McCann announced that they would abstain ftom discussion and voting on this item due to the proximity of their properties to the project area. Principal Community Development Specialist Tapia explained the proposed resolutions and actions. ACTION: Agency/Councilmember Davis offered Agency Resolutions 1863 and 1864, headings read, texts waived. The motion carried 3-0-2, with Agency/Councilmembers Rindone and McCann abstaining. 4. A. COUNCIL RESOLUTION NO. 2004-072, AND AGENCY RESOLUTION NO. 1865, RESOLUTION OF THE CITY COUNCIL AND THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA APPROVING THE TERMINATION OF THE EXCLUSIVE NEGOTIATING AGREEMENT AND BA YFRONT MASTER PLANNING AGREEMENT WITH NORTH CHULA VISTA WATERFRONT LP. B. RESOLUTION NO. 2004-073, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ADOPTING THE FIRST AMENDMENT TO THE JOINT PLANNING AGREEMENT WITH THE SAN DIEGO UNIFIED PORT DISTRICT AND THE CITY OF CHULA VISTA. Port and City staff were directed to investigate the opportunity to joint plan the bayftont. Joint planning would include Port properties located in the Chula Vista Bayfront, as well as City-jurisdictional properties located in the area known as MidBayftont. (Director of Community Development) 1- 7 Page 2 CouncilJRDA Minutes 03/02/04 ACTION ITEMS (Continued) Principal Community Development Specialist Lukes presented the Chula Vista Bayfront Master Plan, including the study area, the bayfront joint planning concept, the termination of the exclusive negotiating agreement, the bayfront planning agreement, the Port/City joint planning agreement amendment, and the next steps. She added that the project is anticipated to be completed in Fall 2005. Agency/Councilmember Rindone asked whether the City would retain full discretion over lands swapped with the Port and if the local Coastal Commission regulations would be sustained. Ms. Lukes responded affirmatively. Laura Hunter, representing the Environmental Health Coalition, favored staffs recommendations and requested that comments by the public be evidenced in the agreements. She then thanked the Council and the Redevelopment Agency staff for their work and leadership in the process. Susan Fuller, Chairperson of the Citizens Advisory Committee, spoke in support of the proposed resolutions. She expressed excitement that the plan can now move forward, and she urged the Council to support staffs recommendations. Richard Campbell, representing Pacifica, the developer, spoke III support of staffs recommendations and commended the Redevelopment Agency and Port staff for their work in the process. He also recognized Laura Hunter for her participation in the agreement process. Patricia Aguilar, representing Crossroads II, thanked Pacifica for listening to public concerns. Additionally, she thanked the Council for working collaboratively with the Port District. Alison Rolfe, representing San Diego Baykeeper, was grateful for the increase of options to the organization. She spoke in support of the proposed resolutions, including the request by the Environmental Health Coalition to add additional language in the agreement regarding public input. She thanked the Council and the Port for the planning process. Agency/Councilmember Salas commended all the groups for their participation and for changing the policy direction of the City. Agency/Councilmember McCaun thanked the various groups for their collaborative efforts in the process. He expressed the need to showcase the City as having a world-class bayfront that will feature destination hotels and convention centers. Agency/Councilmember Rindone stated that this is a momentous day in the City and that the plan would provide many opportunities to the citizens for waterfront accessibility. Chair/Mayor Padilla recognized the great collaboration between the City and Port staff in the planning process. He stated that the City is working diligently towards a successful bayfront for the community, and he congratulated all those who contributed to the plan. 1-« Page 3 Council/RDA Minutes 03/02/04 ACTION ITEMS (Continued) ACTION: Chair/Mayor Padilla moved to adopt Council Resolution No. 2004-072, Agency Resolution No. 1865, and Council Resolution No. 2004-073 as amended to include language that the process shall be open and inclusive of all public views and opinions as required by law, with the intent to encourage maximized public involvement in the joint master planning process. Agency/Councilmember McCann seconded the motion, and it carried 5-0. OTHER BUSINESS 5. DIRECTOR/CITY MANAGER'S REPORTS Executive Director/City Manager Rowlands announced a joint Port Commission/City Council workshop scheduled for March 30, 2004, at 4:00 p.m. in Council Chambers regarding the Bayfront Master Plan. 6. CHAIR/MA YOR'S REPORTS There were none. 7. AGENCY/COUNCILMEMBER COMMENTS There were none. CLOSED SESSION 8. CONFERENCE WITH REAL PROPERTY NEGOTIATOR PURSUANT TO GOVERNMENT CODE SECTION 54956.8 Property: Assessor Parcel No. 567-031-2700 (5.98 acres at 707 F Street) Negotiating Parties: City Council/Redevelopment Agency (Laurie Madigan), Barone Galasso (Michael B. Galasso), and The Olson Company (Tony Pauker) Under negotiations: Price and terms for disposition/acquisition No reportable action was taken on this item. ADJOURNMENT At 6:45 p.m., Chair/Mayor Padilla adjourned the meeting to the Regular Meeting of the Redevelopment Agency on March 16, 2004, at 6:00 p.m., immediately following the City Council Meeting in the Council Chambers. ~~~~~ Susan Bigelow, CMC, y Clerk Page 4 CouncillRDA Minutes (- Cj 03/02/04 --- PAGE 1, ITEM NO.: r!À MEETING DATE: 03/16/04 REDEVELOPMENT AGENCY AGENDA STATEMENT ITEM TITLE: PUBLIC HEARING TO CONSIDER THE PUBLIC NECESSITY TO ACQUIRE CERTAIN REAL PROPERTY LOCATED AT 293 NAPLES STREET (APN 619-121-02-00) AND 1101 THIRD AVENUE (APN 619-121-01), FOR THE DEVELOPMENT OF A 14,360 SQUARE FOOT WALGREEN'S RETAIL STORE WITH DRIVE THRU PHARMACY AND ASSOCIATED PARKING WITHIN THE SOUTHWEST REDEVELOPMENT PROJECT AREA 0) RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA APPROVING MITIGATED NEGATIVE DECLARATION IS-04-010 FOR THE DEVELOPMENT OF A 14,360 SQUARE FOOT WALGREEN'S RETAIL STORE WITH DRIVE THRU PHARMACY AND ASSOCIATED PARKING WITHIN THE SOUTHWEST REDEVELOPMENT PROJECT AREA; AND DETERMINING AND DECLARING THE PUBLIC INTEREST AND NECESSITY FOR ACQUIRING AND AUTHORIZING CONDEMNATION AND IMMEDIATE POSSESSION OF ASSESSOR PARCEL NUMBERS 619-121-01 AND 619-121-02, COMMONLY KNOWN AS 1101 THIRD AVENUE AND 293 NAPLES FOR THE CONSTRUCTION OF A REDEVELOPMENT PROJECT (DZ-001) AND AUTHORIZING THE COMMENCEMENT OF CONDEMNATION PROCEEDINGS BY OUTSIDE COUNSEL TO ACQUIRE SAID PROPERTIES IN THE MANNER PROVIDED BY LAW SUBMITTED BY: COMMUNITY DEVELOPMENT DIRECTOR /"", REVIEWED BY: EXECUTIVE DIRECTOR ~ 4/5THS YOTE: YES 0 NoD BACKGROUND The development firm of 3"' and Naples, LLC, ("Developer") proposes to develop a 14,360 squore foot Walgreen's retail store with drive thru pharmacy and associated parking at the southeast corner of Third Avenue ond Naples Street. . The 1.20-acre project site consists of six parcels, and is located at 1101 Third Avenue, 293 Naples Street, 1105 Third Avenue, 1109 Third Avenue, 1121 Third Avenue, and 1123 Third Avenue, within the Southwest Redevelopment Project Areo. Although the Developer hos secured ownership to two parcels, and has entered into a contract to acquire on odditional two parcels, the Developer has been unsuccessful in negotiotions with property c:2-1 PAGE 2, ITEM NO.: .;l MEETING DATE: 03/16/04 owners to acquire fee title to the properties locoted at 293 Naples Street and 1101 Third Avenue. As a result, Agency staff has attempted to acquire fee title to the properties through negotiation. On January 31, 2003, staff contacted the impacted property owners and offered them the opportunify to participate within the redevelopment project area. The property owners did not submit a statement of interest to participate within the project areo. On October 31, 2003, Agency presented an initial offer to purchase the property. The initiol offer was rejected. The Agency then prepared an update to the appraisal and presented another offer to the property owners on Februory 12, 2004. To dote, no counter offer has been received. As a result, staff is presenting Agency with the Resolution of Necessify (RON) to outhorize the commencement of condemnation proceedings for the necessary parcels to move forward with the redevelopment project. The Environmentol Review Coordinator has reviewed the proposed project for compliance with the California Environmental Qualify Act and has conducted an Initial Study, IS-04-010, in occordance with the California Environmental Qualify Act. Bosed upon the results of the Initial Study, the Environmental Review Coordinotor has determined that the project could result in significant effects on the environment. However, revisions to the project made by or agreed to by the applicant would avoid the effects or mitigote the effects to a point where clearly no significant effects would occur; therefore, the Environmental Review Coordinator has prepared a Mitigated Negotive Declaration, IS- 04-010. RECOMMENDATION Staff recommends that Agency 1) hold the required Public Hearing and take testimony, if ony; and 2) adopt the resolution approving Mitigated Negotive Declaration IS-04-01O, ond determining and declaring the public interest and necessify for acquiring and authorizing condemnation and possession of the properties, and the commencement of the proceedings. BOARDS/COMMISSIONS RECOMMENDATION Not applicoble. DISCUSSION On February 27, 2004, the Agency issued 0 "notice of intent" to consider adoption of 0 resolution of necessify to acquire certain property by eminent domain to the property owners with 0 scheduled heoring to take ploce on March 16, 2004. Pursuont to California Government Code Section 7267.2, Agency made on offer to acquire the property at the appraised Fair Market Value, including real estate and tenant improvements. In order to implement ond carry out the Southwest Redevelopment Project Areo Plan in 0 timely manner, staff is requesting that Agency consider the merits of a Resolution of Necessify (RON) to commence eminent domain proceedings for acquisition of privately owned commercial property site located at 293 Naples Street (APN 619-121-02-00) ond 1101 Third Avenue (APN 619-121- 01). Said property is being acquired to consolidate vorious parcels into a developable size in dJ.-;t. -- PAGE 3, ITEM NO.: ~ MEETING DATE: 03/16/04 order to meet the gools of the Southwest Redevelopment Project Area Plan, and facilitate the Project proposed by 3"' and Naples, LLc. The Agency notified the properly owners by first class mail on February 27, 2004 of the scheduled public hearing to consider the RON (copy of notice attached). A. CONDITIONS FOR ADOPTION OF RESOLUTION OF NECESSITY FOR ACQUISITION OF THE PROPERTY LOCATED AT 293 NAPLES STREET (APN 619- 121-02-00) AND 1101 THIRD AVENUE (APN 619-121-01) Agency has the right to consider acquiring the properly through eminent domain, if the following is established: 1. The public interest and necessity require the proposed project. 2. The proposed project is plonned or locoted in the manner that will be most compotible with the greatest public good and less private injury. 3. The property described in the resolution is necessary for the proposed project. 4. That the offer required by Section 7267.2 of the Government Code has been made to the owner or owner(s) of record, or was not made because the owner(s) could not be located. B. WHETHER THE PUBLIC INTEREST AND NECESSITY REQUIRE THE PROPOSED PROJECT The public interest, convenience and necessity of the City and its residents require the acquisition of the properly for the stated purpose for reasons including but not limited to: 1. Provide for the construction of a new Walgreens Pharmacy of approximately 14,360 square feet located on 52,337 square feet of land; 2. Provide a location that is identifiable and convenient for the public to access from the interstate ond tronsit; 3. Provide an economic development benefit to the City ond its residents in providing job opportunities locolly; 4. Providing a catalyst and redevelopment benefit to the Southwest Redevelopment Project Area by removing severo! blighted properties and replacing those properties with a new development valued in excess of Four Million Dollars ($4,000,000); 5. Provide a deterrent against crime and vagrancy in the Southwest Redevelopment Project Area; 6. Provide a positive environmental and aesthetic impact that will be a catalyst for the future redevelopment of the Southwest Redevelopment Project Area; 7. Meet the gools and objectives of the Southwest Redevelopment Project Area Pion ond Implementation Plan, such as facilitating the enhancement and renovation of businesses; o?3 .--. PAGE 4, ITEM NO.: .).. MEETING DATE: 03/16/04 stimuloting investment of the private sector in the full development of the Project Area; the re-parcelization of land into reasonably sized and shaped parcels served by an improved street system and improved public focilities; and the promotion of public improvement facilities which are sensitive to the unique environmentol qualities of the Project Area. C. WHETHER THE PROJECT IS PLANNED OR LOCATED IN THE MANNER THAT WILL BE THE MOST COMPATIBLE WITH THE GREATEST PUBLIC GOOD AND THE LEAST PRIVATE INJURY The Project has been planned and located to be the most compatible with the greotest public good ond least private injury for reasons including but not limited to: 1. Supports the gools of the Southwest Redevelopment Project Area Plan; 2. The location is eosily identifiable to the public and close to public services; 3. The property acquisition allows for parcel consolidotion with an adjoining owned 3rd and Naples, LLC owned property; 4. The Project is being designed to promote high quality orchitecture ond design; 5. The Project is being designed to accommodate all parking on-site. Please note that back in July 8, 2003, staff was set to present to Agency a report and resolution for an earlier proposal from Developer to consolidate and develop a 7 -parcel site with a Walgreen's retail store. The report and resolution also presented an alternate owner participant proposal from Mr. Amin Kakayi for the construction of a 3,000-square foot building to continue the operation of his produce morket at 287 Naples Street. At the time, staff recommended that Agency acknowledge receipt of the two proposals, reject the Kakoyi proposal, and direct staff to further explore the development proposal submitted by 3rd ond Naples, LLc. However, at the request of the Developer, the item wos pulled from the agenda just a few hours before the Agency's meeting. The Developer determined the project could be redesigned to avoid acquisition of the Kakayi property. As a result, the Developer redesigned the project to exclude 287 Naples Street, thereby making the Project feasible, and planned and located in a manner that will be the most compatible with the greotest public good and the least private injury. D. WHETHER THE PROPERTY BEING SOUGHT TO BE ACQUIRED IS NECESSARY FOR THE PROJECT It was determined that the property sought to be acquired is the only contiguous parcel which is not owner occupied thot would ollow for the construction of a new approximately 14,360 square foot Walgreens Pharmacy. All statutory requirements necessary to exercise the power of eminent domain ("the right to take") to acquire property described herein have been complied by the Redevelopment Agency of the City of Chula Vista. Based upon the above discussion and the ~-4 PAGE 5, ITEM NO.: ~ MEETING DATE: 03/16/04 attached Resolution of Necessity (RON), and the related item, staff recommends adoption of the RON. FISCAL IMPACT All costs are covered by the Developer, including condemnotion costs. Approval of the resolution will allow commencement of condemnation proceedings. ATTACHMENTS Attachment 1 : Resolution of Necessity Exhibit A legal Description Exhibit B Site Map Attachment 2: legal Notice of Public Hearing ¿;.-S --- - ATTACHMENT 1 AGENCY RESOLUTION NO. RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA APPROVING A MITIGATED NEGATIVE DECLARATION IS-04-010 FOR THE DEVELOPMENT OF A 14,360 SQUARE FOOT WALGREEN'S RETAIL STORE WITH DRIVE THRU PHARMACY AND ASSOCIATED PARKING WITHIN THE SOUTHWEST REDEVELOPMENT PROJECT AREA; AND DETERMINING AND DECLARING THE PUBLIC INTEREST AND NECESSITY FOR ACQUIRING AND AUTHORIZING CONDEMNATION AND IMMEDIATE POSSESSION OF ASSESSOR PARCEL NUMBERS 619-121-01 AND 619-121-02, COMMONLY KNOWN AS 1101 THIRD AVENUE AND 293 NAPLES FORTHE CONSTRUCTION OF A REDEVELOPMENT PROJECT (DZ-O01) AND AUTHORIZING THE COMMENCEMENT OF CONDEMNATION PROCEEDINGS BY OUTSIDE COUNSEL TO ACQUIRE SAID PROPERTIES IN THE MANNER PROVIDED BY LAW. WHEREAS, 3rd and Naples, LLC, ("Developer") proposes to develop a 14,360 square foot Walgreen's retail store with drive thru pharmacy and associated parking at the southeast corner of Third Avenue and Naples Street; and WHEREAS, the 1.20-acre project site consists of six parcels, and is located at 1101 Third Avenue, 293 Naples Street, 1105 Third Avenue, 1109 Third Avenue, 1121 Third Avenue, and 1123 Third Avenue, within the Southwest Redevelopment Project Area; and WHEREAS, the Developer has secured ownership to two parcels, and has entered into a contract to acquire an additional two parcels, however, has been unsuccessful in negotiations with the property owners to acquire fee title to the properties located at 293 Naples Street and 1101 Third Avenue; and WHEREAS, the Developer has requested that Agency acquire fee title to the properties; and WHEREAS, on January 31, 2003, Agency contacted the property owners of the subject properties, and offered them the opportunity to participate within the redevelopment project area, and they did not submit a statement of interest to participate within the project area; and WHEREAS, on October 31,2003, Agency presented an initial offer to purchase the property, but the initial offer was rejected; and WHEREAS, Agency prepared an update to the appraisal and presented another offer to the property owners on February 12, 2004, and to date, no counter offer has been received; and WHEREAS, in connection with municipal purposes, the Redevelopment Agency of the City of Chula Vista must acquire Assessor Parcel Numbers 619-121-01 And 619-121-02, commonly known as 1101 Third Avenue and 293 Naples for construction of a Redevelopment Project (DZ- 001) and appurtenances thereto ("Project"); and WHEREAS, public interest, convenience and necessity require the acquisition in fee simple of said real properties more particularly described in the attached Legal Description designated as Exhibit "A"; and depicted in a plat designated as Exhibit "8"; and ~-c. WHEREAS, the Environmental Review Coordinator has reviewed the proposed Project for compliance with the California Environmental Quality Act and has conducted an Initial Study, IS-04-010, in accordance with the California Environmental Quality Act; and WHEREAS, based upon the results of Initial Study IS-O4-010, the Environmental Review Coordinator has determined that the Project could result in significant effects on the environment; and WHEREAS, revisions to the Project made by or agreed to by the applicant would avoid the effects or mitigate the effects to a point where clearly no significant effects would occur; therefore, the Environmental Review Coordinator has prepared a Mitigated Negative Declaration, IS-04-01 0; and WHEREAS, the Redevelopment Agency of the City of Chula Vista has exercised its independent judgment and concurs with the Environmental Review Coordinator's determination that the proposed Project is adequately covered in Mitigated Negative Declaration IS-04-010, and that said document was prepared in accordance with the requirements of the California Environmental Quality Act (CEQA), the State CEQA Guidelines and the Environmental Review Procedures of the City of Chula Vista; and WHEREAS, the Redevelopment Agency of the City of Chula Vista hereby adopts Mitigated Negative Declaration I S-04-0 1 0; and WHEREAS, said Project is planned and located in a manner that wili be most compatible with the greatest public good and the least private injury; and WHEREAS, said real properties, and the fee simple interest therein, are necessary for the Project; and WHEREAS, said real properties, and the fee simple interest therein, are located entirely within the territorial limits of the City of Chula Vista; and WHEREAS, Agency is authorized to acquire said real properties, for such public use by eminent domain pursuant, inter alia, to California Constitution Article 1, Section 19; California Government Code Section 37350.5, California Health and Safety Code Section's 33000, et. seq., and California Code of Civil Procedure Sections 1240.010, 1240.110, 1240.120, and 1255.410; and WHEREAS, an offer to purchase the herein described real properties necessary for the Project has been made to the owners of record, pursuant to Section 7267.2 of the California Government Code, which offer has not been accepted; and WHEREAS, Agency has provided notice to the persons designated in Section 1245.235 of the Code of Civil Procedure, and has provided all such persons a reasonable opportunity to appear and be heard on the matters referred to in Section 1240.030 of the Code of Civil Procedure. NOW, THEREFORE, BE IT RESOLVED that the Redevelopment Agency of the City of Chula Vista finds and determines and hereby declares, by a vote of not less than two-thirds of its members, as follows: 1. That the above recitations are true and correct. ;2-7 2. The Redevelopment Agency of the City of Chula Vista has exercised its independent judgment and concurs with the Environmental Review Coordinator's determination that the proposed Project is adequately covered in Mitigated Negative Declaration IS-04-01 0, and that said document was prepared in accordance with the requirements of the California Environmental Quality Act (CEQA), the State CEQA Guidelines and the Environmental Review Procedures of the City of Chula Vista. 3. The Redevelopment Agency of the City of Chula Vista hereby adopts Mitigated Negative Declaration 18-04-010. 4. That the staff report and all evidence presented at the public hearing on this matter have been reviewed and considered. 5. That the public interest, convenience and necessity of the City of Chula Vista, and the inhabitants thereof, require the Project and improvements and appurtenances thereto. 6. That the Project described herein has been planned and located in a manner, which will be most compatible with the greatest public good and the least private injury. 7. That the real properties described herein, and the fee simple interest therein, are necessary for the proposed Project. 8. That the offer, as required by Section 7267.2 of the California Government Code, has been made to the owners of record of the property to be acquired, and the notice and opportunity to appear before the Redevelopment Agency as required by Section 1245.235 of the California Code of Civil Procedure have been given. 9. That the Redevelopment Agency of the City of Chula Vista, and all appropriate officers, representatives and attorneys are hereby authorized and directed to acquire the real property described and depicted in the attached Legal Description Exhibit "A" in the name of and on behalf of the Redevelopment Agency of the City of Chula Vista, and to that end are hereby authorized and directed to commence and prosecute action(s) in eminent domain for the purpose of acquiring said real property and to obtain court order(s) for immediate possession of said properties in the manner provided by law. Presented by: Approved, as to form by: @~W(~rû'L ~. Laurie Madigan An Moore Community Development Director City Attorney ~-~ EXHIBIT A . Site Legal Description All that certain real property situated In the County of San Diego, State of California, described as fo!lows: Parcell: The Westerly 57.35 feet of Lot 1 in Block 1 of Castle Park, il1 the City of Chula Vista, County of San Diego, State of California, according to Map thereof No. 1752, filed In the Office of the County Recorder of San Diego County, April 2, 1923. Parcel 2: That portion of Lot 1, Block 1 of Castle Park, in the City of Chula Vista, County of San Diego, State of california, according to Map thereof No. 1752, filed In the Office of the County Recorder of San Diego County, Aprll.2, 1923, described as follows: Commencing at the most Westerly corner of said Lot 1; thence North 71.29' East along the Northwesterly line of said Lot 1, a distance of 57.36 feet to the True Point of BegInning; thence Southeasterly 52.13 feet to a point on the Southeasterly line of said Lot 1, distant thereon Northeasterly 57,36 feet from the most Southerly corner of said Lot 1; thence Northeasterly along the said Southeasterly line 59.40 feet to a point; thence Northeasterly along said Southeasterly line 59.40 feet to a point; thence Northwesterly 52,00 feet to a point on the said Northwesterly line of said Lot 1, distant thereon 59.40 feet from the True Point of Beginning; thence South 71.29' West along the said Northwesterly line 59.40 feet to the True Point of Beginning. Assessor's Parcel Number: 619-121-01-00619-121-02-00 ö2-Cj EXHIBIT B KMART VILLA SEAWIND APARTMENTS MALIBU j SOUTH APARTMENTS C HULA VISTA PLANNING AND BUILDING DEPARTMENT ê!)R PROJECT WALGREENSI Resolution of Necessity (RON) to acquire real APPIJCAN1'.MIKE ORD PROJECT property at 293 Naples Street and 1101 Third ADDRESS: 1101 THIRD AVENUE Avenue. Parcels are part of a larger project to SCALE: I FILE NUMBER: develop a 14,359s.ft. Walgreens retail store NORTH No ScaJe DRc-04-26 with drive-thru pharmacy. j:\cherylc\locators\locators04\drc0426_cd.cdr 03.05.04 ~ - f 0 .-- ATTACHMENT 2 ~'ft.. ~m- ~~~~ CI1Y OF (HUlA VISTA COMMUNITY DEVELOPMENT DEPARTMENT February 27, 2004 File: DZ-OOI Elisa Reulas De Flores Raquel Flores Reulas Elisa Ruelas De Flores, Trustee 3101 Sylvia Street Bonita, CA 91902-2143 SUBJECT: NOTICE OF PUBLIC HEARING Third AvenuelNaples Street Acquisition San Diego County Assessors Parcel No. 619-121-01 and 619-121-02 Dear Property Owners: As you are aware, in a letter dated February 12,2004, the Redevelopment Agency of the City of Chula Vista presented you with an offer to acquire in fee the above referenced properties owned by you and necessary for the construction of a proposed redevelopment project on the corner of Third Avenue and Naples Street. This offer was based on an appraisal and was made in accordance with the requirements of Government Code Section 7267.2. Due to the time constraints imposed on the schedule for this project, we must proceed with the acquisition of these properties prior to reaching an agreement on just compensation. Therefore, you are hereby served notice that the Redevelopment Agency of the City of Chula Vista will hold a Public Hearing on Tuesday, March 16,2004 at 6:00 pm, or as soon thereafter as possible, in the City Council Chambers, 276 Fourth Avenue, Chula Vista, California, with the intention of considering the adoption of a Resolution of Necessity to acquire the necessary property through eminent domain. : California Code of Civil Procedure, Sections 1240.030 and 1245.230, provides that the power of eminent domain may be exercised to acquire property for a proposed project if the following conditions are established: A. The public interest and necessity require the project. B. The project is planned or located in the manner that will be the most compatible with the greatest public good and the least private injury. C. The property sought to be acquired in fee is necessary for the project. cJ-f ( 276 FOURTH AVENUE' CHULA VISTA' CALIFORNIA 91910' (619) 691.5047 . FAX (619) 476-5310 Elisa Reulas De Flores Raquel Flores Reulas Elisa Ruelds De Flores, Trustee Notice of Pþblic Hearing February 27, 2004 Page 2 : D. The offer required by Government Code Section 7267.2 has been made to the owner of record or that an offer has not been made because the owner cannot be located. During the public hearing on March 16,2004, the Agency Board wilI be asked to detennine if the above conditions have been met concerning your property. If these conditions have been met, the Board will be requested to adopt a Resolution of Necessity. The adopted resolution will authorize the Redevelopment Agency to acquire the necessary property by eminent domain. A legal description of the required property is attached to this Notice, designated as Exhibit "An. The amount of compensation to be paid is not a part of this proceeding and wilI not be considered by the Agency Board in determining whether a Resolution of Necessity should be adopted. You are entitled to appear and be heard regarding the adoption of the Resolution of Necessity if you file a written request to do so within fifteen (15) days after the date of this letter. Objections to the intended actions are limited as set forth below: 1. Your written request to be heard must be filed with: Redeve1opmentAgency of the City ofChula Vista C/O City Clerk 276 Fourth Avenue Chura Vista, CA 91910 Attn: Third and Naples Acquisition 2. The written request must actually be on file within the above referenced fifteen (15) day period. Failure to file a written request results in a waiver of your right to appear and be heard. 3. The Agency strongly encourages the written request to contain a statement of the issues relating to the above condition(s) which you feel are pertinent to your property. The four conditions which may affect your property are Set forth above (designated as A, B, C and D) 02 -I L. CITY OF CHULA VISTA Elisa Reulas De Flores Raquel Flores Reulas Elisa Ruelas De Flores, Trustee Notice of Public Hearing February 27,2004 Page 3 By designating which condition(s) form the basis of your concerns and why, you will enable the Agency Board to have a full and expeditious review of your opinion of the project's affect on your property. We wish to reassure you that we will continue to diligently negotiate throughout this process in an effort to reach a mutually satisfactory settlement. Should you have any questions regarding this Notice, your rights as set forth herein, or the project, please do not hesitate to contact Rick Ryals, Real Property Manager at (619) 691-5118. Sincerely, ~~ Community Development Director RAR:rar Enclosures CC: City Clerk, City of Chula Vista j Rick Ryals, City of Chula Vista Frank Rivera, City of Chula Vista Linda Bartz, Esq., Linda Bartz and Associates Steven Haskins Esq., Haskins & Associates ~ -(3 CITY OF CHULA VISTA --~ - ~ ~ ft... i'M -- ..,.,-. CI1Y OF CHUIA VISTA DEPARTMENT OF ENGINEERING March 3, 2004 File No. DZ-OOI Mr. Miguel Rodriguez 293 Naples Street Chula Vista, CA 91911 SUBJECT: NOTICE OF ACQUISITION: GENERAL INFORMATION NOTICE 293 Naples Street, SD APN 619-121-02 Third and Naples Acquisition Dear Mr. Rodriguez: This notice is to confirm that the City of Chula Vista is in the process of acquiring the above rderenced property that you currently occupy, commonly known as 293 Naples Street, Chula Vista. This property is needed for the a redevelopment project. A physical inspection of the property by the City indicates that you may be eligible for relocatitn benefits as a result of the acquisition of the subject project. I am enclosing a "General Information Notice" which briefly describes the City's Relocation Program, eligibility requirements and relocation benefits available together with a booklet that describes business relocation in more detail. After you have had a chance to review this Notice please contact me at your earliest convenience so that we can discuss the relocation process and answer any questions that you may have. It is impo~t that you not move before contacting me so that your rights granted under the Unifo Relocation Assistance Act of 1970, as amended April 2, 1987 may be protected. I can be reached at (619) 691-5118. I may be reached by mail at the following address: Richard A. Ryals Real Property Manager City ofChula Vista 276 Fourth Avenue, MS E-100 Chula Vista, CA 91910 For written replies, respond to: ~-/~ 0276 FOURTH AVENUE I CHULA VISTA, CALIFORNIA 91910-2631/ (619) 691-5021 01800 MAXWELL ROAD I CHULA VISTA, CALIFORNIA 91911-6158/ (619) 691-5021 ~ ',.-Consumer Rocyo'ed""", ---- Third and Naples Project Notice of Acquisition/General Information Notice March 3, 2004 Page 2 If! don't hear :fi:om you before hand, I will be contacting you within the next two weeks to determine which benefits you are entitled to. I look forward to assisting you through the upcoming relocation process and hope to hear :fi:om you shortly. 26~ Richard A. Ryals Real Property Mana er CC: Linda Bartz, Esquire 1010 Second Avenue, Suite 1010, San Diego, CA 92101-4904 Eric Crockett, Redevelopment Project Manager ""&r ~ ~. gll>.,.J;Qmmunity Development Specialist ~" 01. -I S- CITY OF CHULA VISTA ._._. - PAGE 1, ITEM NO.: .:3 MEETING DATE: 03/16/04 JOINT CITY COUNCIL/REDEVELOPMENT AGENCY AGENDA STATEMENT ITEM TITLE: PUBLIC HEARING: TO CONSIDER, PURSUANT TO CALIFORNIA HEALTH AND SAFETY CODE SECTIONS 33431 AND 33433, A DISPOSITION AND DEVELOPMENT AGREEMENT WITH 3"D AND NAPLES, LLC, FOR THE ACQUISITION AND DISPOSITION OF PROPERTY, AND DEVELOPMENT OF A 14,360 SQUARE FOOT WALGREEN'S RETAIL STORE WITH DRIVE THRU PHARMACY AT THE SOUTHEAST CORNER OF THIRD AVENUE AND NAPLES STREET WITHIN THE SOUTHWEST REDEVELOPMENT PROJECT AREA a. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AND THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA MAKING THE REQUIRED REDEVELOPMENT ACT FINDINGS AND APPROVING A DISPOSITION AND DEVELOPMENT AGREEMENT AND JOINT ESCROW INSTRUCTIONS WITH 3"D AND NAPLES, LLC, FOR THE ACQUISITION AND DISPOSITION OF PROPERTY, AND DEVELOPMENT OF A 14,360 SQUARE FOOT WALGREEN'S RETAIL STORE WITH DRIVE THRU PHARMACY AND ASSOCIATED PARKING AT THE SOUTHEAST CORNER OF THIRD AVENUE AND NAPLES STREET WITHIN THE SOUTHWEST REDEVELOPMENT PROJECT AREA SUBMITTED BY: COMMUNITY DEVELOPM~T DIRECTOR REVIEWED BY: EXECUTIVE DIRECTO~ 4/5THS VOTE: YES D NO 0 BACKGROUND The development firm of 3rd and Naples, LLC, ("Developer") proposes to develop 0 14,360 square foot Walgreen's retail store with drive thru pharmacy and associated parking at the southeast corner of Third Avenue and Naples Street. The Developer has prepared the formal concept plans and hos processed them through the City's review process. The site is within the Southwest Redevelopment Project Area, which is under the jurisdiction of the Redevelopment Agency ond subject to the requirements of California Heolth and Safety Code Sections 33431 and 33433. Although the Developer has secured ownership to two parcels, ond has entered into a contract to ocquire an additional two parcels, the Developer has been unsuccessful in corrying out negotiations with property owners to acquire fee title to another two porcels that are necessary to ossemble the site. As a result, the Agency has attempted to acquire fee title to the properties through negotiation. .3 - ( PAGE 2, ITEM NO.: .!J MEETING DATE: 03/16/04 The Agency hos presented an offer based on a recent appraisal to ocquire the affected properties. To dote, Agency has not received a counter offer or response from the affected property owners. However, Agency staff will continue to negotiate in good faith with the property owners for 0 mutually agreed upon ocquisition price for the subject parcels necessary to develop the project. Tonight, staff is presenting a DDA and the proposed concept plans to Agency for consideration and approval. The DDA establishes the terms and conditions for the sole and development of the site with the proposed project. Approval of the DDA allows Agency to proceed with disposition of property, and the development of the proposed project. Once the DDA is approved and the necessary parcels to develop the site are acquired, the property will be placed in escrow and the Developer will proceed to prepore the project's construction drawings for plan check and building permits. After obtaining building permits, the Developer and Agency will close escrow, and the property will be transferred to Developer under the terms and conditions of the DDA. The Environmental Review Coordinator hos reviewed the proposed project for compliance with the California Environmental Quality Act, and has determined that the project wos adequately covered in previously adopted Mitigated Negative Declaration IS-04-010. Thus, no further environmental review or documentation is necessary. RECOMMENDATION Staff recommends thot Agency: 1) Hold the required Public Hearing and take public testimony, if any; and 2) Adopt resolution making certain findings and approving a Disposition and Development Agreement with 3rd And Naples, LLC, for the acquisition and disposition of property, and development of a 14,360 squore foot Walgreen's retail store with drive thru pharmacy and associated porking ot the southeast corner of Third Avenue ond Naples Street within the Southwest Redevelopment Project Area. BOARDS/COMMISSIONS RECOMMENDATION On January 5, 2004, the City's Resource Conservation Commission reviewed Mitigated Negotive Declaration IS-04-01 0, and recommended odoption to the Agency. On February 16, 2004, the City's Design Review Committee (DRC) was presented with the proposed Project for design and architectural consideration. DRC unanimously recommended approval to Agency, subject to the conditions set forth in the Notice of Decision (DRC 04-26) for the project. Since the proposed project does not require any discretionary land use review, no Planning Commission hearing was required. 3-d-. PAGE 3, ITEM NO.: ~ MEETING DATE: 03/16/04 DISCUSSION Site Description The 1.20-acre project site consists of six parcels, and is located at 1101 Third Avenue, 293 Naples Street, 1105 Third Avenue, 1109 Third Avenue, 1121 Third Avenue, and 1123 Third Avenue, within the Southwest Redevelopment Area (see Locator Map attached to the DDA). The project site is flat, and contains non-native vegetotion, unpoved and paved porking areas, wood and wood/masonry fences along the eastern and southern site boundaries, ond 0 deterioroting sidewalk and underutilized drivewoy approaches olong Third Avenue. Five of the six parcels contain outdated commerciol buildings, including a used furniture store, a vacuum repair shop, a TV/VCR repair shop, a hearing center, a bar/night club, and a storage building. All of the buildings will be demolished to make woy for the proposed Walgreen's retail store. The table below summarizes the zoning and land use designations for the proiect site, os well as surrounding land uses: Current Land Use Generol Plan Zonina Site: Retail stores, repair Retail Commercial CCP shops, bar/night club North: Retoil store Retail Commercial CT South: Retail store & residence Retail Commercial CCP Eost: Singly family residence Low Medium Residentiol RV-15 West: Fast food restaurant Retail Commercial CCP Proiect Description The Developer proposes to construct a 33-foot single story, 14,360 square foot Walgreen's retail store with drive thru pharmacy, ond associated parking at the southeost corner of Third Avenue and Naples Street. The retail store will be centrally located on the assembled lot, with the drive- thru pharmacy located on the building's south side. The primary entryway into the building will be on the northwest corner, and a loading/receiving area will be located on the east side of the building. A satellite dish will be mounted on the roof to communicate with Walgreen's Company headquorters, and to transmit and receive drug prescription information. The Developer will be required to apply for a special use permit for the satellite dish, which will be processed administratively. On-site improvements include landscaping, 0 6-foot high masonry wall along the eostern and southern site boundaries, and on a-foot high masonry screen wall around trash bins and trash compactors olong the east side of the building. Public improvements along Naples Street will consist of under grounding utility lines, traffic signol modification, street widening, installation of new sidewalk, curb and gutter, and installation of one street light. Public improvements along Third Avenue will consist of the removol and replacement of broken sections of existing driveway, curb, gutter and sidewolk, and installation of a raised concrete median. .3-.3 _- PAGE 4, ITEM NO.: J MEETING DATE: 03/16/04 The proposed project will necessitote the demolition of the five existing on-site structures. Three businesses currently locoted in these buildings, may require relocation assistance pursuant to State Relocation Law. The proposed DDA addresses developer responsibility for relocation expenses related to the project, ond indemnifies the Agency from ony relocation claims. Disposition and Development Aareement The DDA is the document that establishes the terms and condition for the sole ond development of the site with the proposed project. Approvol of the DDA will allow Agency to proceed with the acquisition ond disposition of property, and the development of fhe proposed project. Among fhe salient provisions of the DDA are the following: . Purpose of Agreement, Site and Project Description, and Project Entitlements; . Proposed sale/purchase of the site that includes the price to be paid by the Developer; . Conditions of escrow closure that include the required fund deposits, escrow cost-sharing, and other conditions for closure; . Development of the site, including scope, schedule, and standards of development; and limitations on transfer of the site by the Developer; . Use of the site which mokes reference to the project and includes non-discriminatory provisions ond covenants for the duration of the agreement; . Defaults, Remedies and Termination provisions; . Other provisions deoling with encumbrances, conveyances and leases; ond . General provisions. Sale of the Property and Redevelopment Law Reauirements Disposition of property acquired by the Agency is regulated by the California Redevelopment Law. Section 33431 provides that Agency may sell and convey property, but that the Agency must hold a public hearing and take public testimony, if any. Section 33433 requires that the local legislative body, the City Council, approve the sale or conveyance of property after duly noticed public hearing. This section of the Redevelopment Low also requires that certain findings be made prior to the sole of the property. The required findings are included in the Agency resolution, which include the following: . That it is in the best interest of the public and Agency for the elimination of blight that certain property at the southeast corner of Third Avenue and Naples Street within the Southwest Redevelopment Project Area be sold to the Developer¡ . That the sale of the property will assist in the elimination of blight¡ . That the property's sale price is not less than the fair market value or fair reuse value¡ and ...3-'-1 PAGE 5, ITEM NO.: ..E MEETING DATE: 03/16/04 . That the sale and redevelopment of the properly is in accordance with the Southwest Redevelopment Plan. Redevelopment Law olso requires that a copy of the report outlining the terms, the costs, and purpose of the sale be made available to the public prior to the publicotion of the public hearing notice. Pursuant to this requirement, a draft of this report wos available for public review by March 1, 2004; the first and second publications of the public hearing notice were March 1, 2004, and Morch 8, 2004. Property Sale Neqotiations As mentioned earlier in the report, the Developer has secured ownership to two parcels, and has entered into a contract to acquire an additional two parcels. However, the Developer has been unsuccessful in carrying out negotiations with property owners to acquire fee title to the properties located at 293 Naples Street (APN No. 619-121-02-00) and 1101 Third Avenue (APN No. 619- 121-01-00). The subject parcels necessary for acquisition total 6,086 squore feet, and include a used furniture store located in a 630 square foot retail building, and a underutilized vacant lot that is partially covered with a concrete slab. In a letter dated October 31,2003, the Agency formally presented an offer to purchase the property to the owners. The offer was based on on oppraisal performed by Jones, Roach, & Caringello, Inc., which determined that the "highest and best use" was near to mid term commercial redevelopment, and possibly in conjunction with adjacent property. The "highest and best use" concept is importont in real estote valuation os it represents the premise upon which volue is based. As defined, the "highest and best use" is the reasonably probable and legol use of vocont land or an improved property that is physically possible, appropriately supported, and financially feasible and that results in the highest value. Soon after, the Community Development Director received a letter (dated December 9, 2003) from Haskins & Associates stating thot their clients were in the process of obtaining their own appraisal for the subject properties. Haskins & Associates also pointed out that the appraisal performed by Jones, Roach, & Coringella, Inc., was completed on December 27, 2002. As 0 result, they expressed their desire to review a more recent appraisal due to their ossertion that property values in the area moy have risen by os much as 35%. Since then, the Agency received on updoted appraisal, and in a letter dated Februory 12, 2004, prepared an updated offer for the subject properties. To date, there has been no response or counter offer by the property owners, or their legal representative. In the event Agency negotiations are unsuccessful, Agency may consider adoption of a Resolution of Necessity to acquire the necessary property through eminent domain. However, Agency staff will continue to negotiate in good faith with the property owners for a mutually agreed upon acquisition price for the subject parcels that are necessary to develop the project. Proiect Development Standards The proposed commercial project hos been evaluated using the Retail Commercial General Pion land use designation, ond the development stondards that fall under the Central Commercial ..3 -5' PAGE 6, ITEM NO.: .3 MEETING DATE: 03/16/04 (CC) zone. The following table shows the development standards of the CC zone, and the standards of the proposed project. General Plan Desiqnation: Retail Commercial Current Zoninq: Central Commercial (CCP) Lot Area: 1.20 acres (52,337 sq. ft.) REQUIRED: PROPOSED: Building setbacks: Front: 25 ft. 54 ft. Side: None, except when abutting a 0 ft. residential district, then not less than 25 ft. Rear: 25 ft. 25 ft. Buildina Heiaht: 45 feet/ 3.5 stories 45 feet/ 1 story Parkina standards Proposed porkina 1 spoce per 200 sq. ft. of retail = 57 spoces Standard spaces = 51 1 space per 1,000 sq. ft. of storage = 3 spaces Handicapped spoces = 2 Sub-total = 60 spaces Compact spaces = 5 Credit for Drive-thru spoces = -4 spaces Total required 56 spaces Total Proposed = 58 Required Landscaping Proposed Landscapina 15 ft. front yord landscape buffer 14 ft. front yard landscaping buffer (per Montgomery Specific Plan) Reauired Parkina Space Dimensions Proposed Parkina Space Dimensions Off-street space 9'x 19' 9' x 17'6" (Adjacent walk or planter Compact Space 7'6"x15' expanded by 1.5 ft. for vehicle Handicapped 13'x 19' overhang) 13'x 19' Parkinq & Accessibility The proposed project will provide 58 parking spaces. Although the initial off-street parking requirement was 60 parking spaces for the retail use, staff credited the Developer with four parking spaces due to Walgreen's prototype as a convenience-based business store where customers typicolly pay short visits, and where mony customers utilize the convenience of the drive-thru pharmacy to pick up prescriptions, thereby parking less often in the store lot. It is anticipated that the proposed 58 porking spaces is sufficient to meet the parking demand of the proposed project. The proiect site will be accessible via two driveways, including one driveway along Third Avenue on the south side of the site, and the other driveway along Naples Street on the north side of the ..3-to - PAGE 7, ITEM NO.: .3 MEETING DATE: 03/16/04 site. Due to the potential impact to traffic signal operations at the signalized intersection from vehicular movements in ond out of the proposed drivewoy along Naples Street, vehicular movements from the Noples Street driveway will be limited to right turn in ond right turn out only. Driveway access for the drive thru pharmacy will be located on the south side of the building, where there will be room for four vehicles to wait for prescriptions. Exiting vehicles will maneuver around the eastern side of the building, via 0 15-foot driveway, post the loading area ond through the Naples Street driveway. Architecture The architectural style of the building is the prototypical Walgreen's corporate design, similor to the existing Chulo Vista Wolgreen's at Broadway and I street. It is a single-story retail building that is 22.4 feet high, and feotures a 31-foot tower element at the northwest corner by the building's entrance. The tower element contoins arched soffits and windows, including a neon graphic image of 0 mortar and pestle inside a large boy window. Flat wall surfaces, where proposed, are broken up by split-face tan woinscot ond ceramic tile accents. The proposed color scheme is cotton (off-white) stucco over tan split-face block woinscot. The roofline is flat, however, it vories in appearance as a result of incorporating 0 parapet, cornice, and single story roof elements, which are supported by column elements which frame windows, and odd variety and ornamentation to the facades. The roof material will consist of concrete mission tile. Prior to issuance of building permits, the Developer will be required to submit a revised site plan ond elevations showing the oddition of on arcade with a covered pedestrion walkway on the Third Street facade to match the arcade on the Naples Street facade; and to wrap parapet walls on north and west elevotions into the center of the building on the east and south elevations. The above mentioned requirements were incorporoted os conditions of approval in the Notice of Decision (DRC 04-26) that was approved by the City's Design Review Committee. Sianaae A monument sign along Third Avenue will be 8 feet high by 10 feet wide, consist of materiols including a tan, split-face block wainscot, ond cotton-colored plaster, with internally illuminated, individual channel letters. The monument sign will be placed so that it does not obstruct vehicle sight visibility. Woll-mounted business identification signage (Walgreen's) ond advertising signage (l-Hour Photo and Pharmacy) will be located on the north and west elevations. The internally lit identification signage will be 2 feet high by 26.8 feet wide, and the advertising signage will be 14 inches high by 10 feet wide. The proposed signage complies with the Zoning Code requirements. Landscapina The project site is just large enough to accommodate the proposed building, required porking ond landscaping. The conceptual landscape plan shows thot 15% of the gross site and 10% of the parking lot will be landscaped. The Developer is proposing a 14-foot front yard landscope buffer, instead of the 15-foot requirement per the Montgomery Specific Pion. Staff considers the proposed buffer acceptable, because it will keep in compliance the parking and driveway ~-7 PAGE 8, ITEM NO.: .J MEETING DATE: 03/16/04 standards for the project, and will not affect Walgreen's minimum building square foot requirements. Prior to issuance of building permits, the Developer will be required to provide a detailed landscape plan that oddresses the siting of additional tree planting pockets, tree gates, canopy trees ond decorative paving. The above mentioned requirements were incorporoted as conditions of approval in the Notice of Decision (DRC 04-26) that was approved by the City's Design Review Committee. CONCLUSION The Southwest Redevelopment Area was adopted in 1990 as a unique area in Chula Visto that requires special attention and consideration in order to eliminate and reverse physicol and economic deteriorating conditions, and provide the necessary public and private services to revitalize the orea. It is staff's opinion that the proposed Disposition and Development Agreement between the Agency and Developer is in compliance with the requirements of California Redevelopment Law. The proposed project is consistent City's Generol Pion, Zoning Code, and with the Southwest Redevelopment Plan. The redevelopment of the property with the proposed project will assist in preventing the spreod of blighting ond deteriorating conditions by removing outdated commerciol buildings, and establishing a necessory neighborhood serving commercial use to this area of the City. Therefore, it is staff's recommendation that Agency make the necessary findings and approving a Disposition and Development Agreement with 3"' and Noples, LLC, for the ocquisition and disposition of property, and the development of the Walgreen's retail store and pharmacy. FISCAL IMPACT The proposed project will create on estimated $4,233,587 of property tax value, which will generate opproximately $42,335 in annual gross tax-increment revenue. This amount would be divided as follows: Twenty percent (20%) $8,467 for the Housing Set-Aside fund; of the remaining $33,868, fifty three percent (53%) $17,950 will be allocated to other taxing entities as part of the tax sharing pass thru agreements; the remoinder $15,918 will accrue to the Southwest Redevelopment Project Area fund. The project will also generate a respectable amount of sales tax revenues, which will accrue to the City's Generol Fund. ATTACHMENTS Attachment 1: Locotor Map Attachment 2: Mitigated Negotive Declaration IS-04-010 Attochment 3: Notice of Public Hearing Attachment 4: DRC Draft Notice of Decision Attachment 5: DRC Minutes Attachment 6: Redevelopment Low Section 33433 Summary Report Attachment 7: Disposition ond Development Agreement with the following exhibits: Exhibit A: Locotor/Site Map Exhibit B: Scope of Development (Project Design Plans) Exhibit C: Project's Schedule of Performance J:\COMMDEV\STAFF.REP\O3-16.04\Agency Report_Th;rd ond Nople, for DDA.doc ...ð - t¡ .--. RESOLUTION NO. RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA MAKING THE REQUIRED REDEVELOPMENT ACT FINDINGS AND APPROVING A DISPOSITION AND DEVELOPMENT AGREEMENT AND JOINT ESCROW INSTRUCTIONS WITH 3rd AND NAPLES, LLC FOR THE ACQUISITION AND DISPOSITION OF PROPERTY, AND THE DEVELOPMENT OF A 14,360 SQUARE FOOT WALGREEN'S RETAIL STORE WITH DRIVE THRU PHARMACY, AND ASSOCIATED PARKING AT THE SOUTHEAST CORNER OF THIRD AVENUE AND NAPLES STREET WITHIN THE SOUTHWEST REDEVELOPMENT PROJECT AREA WHEREAS, 3rd and Naples, LLC, proposes to develop a 14,360 square foot Walgreen's retail store with drive thru pharmacy and associated parking at the southeast corner of Third Avenue and Naples Street; and WHEREAS, the 1.20-acre project site consists of six parcels, and is located at 1101 Third Avenue, 293 Naples Street, 1105 Third Avenue, 1109 Third Avenue, 1121 Third Avenue, and 1123 Third Avenue, within the Southwest Redevelopment Project Area; and WHEREAS, a Disposition and Development Agreement between the Redevelopment Agency and 3rd and Naples, LLC, has been prepared; and WHEREAS, the Community Redevelopment Act requires that a public hearing be held by the Agency for the acquisition and disposition of property, and development of Agency property, and requires that notice of said public hearing be given by publication in a local newspaper for not less than once a week for two weeks prior to the hearing; and WHEREAS, notice of the public hearing was published in the San Diego Daily Transcript on March 1, 2004 and March 8, 2004 and the City Council and Redevelopment Agency held a joint public hearing on March 16, 2004 and considered all testimony presented; and WHEREAS, Community Redevelopment Law requires that the sale of Agency property assist in the elimination of economic and physical blighting conditions; and WHEREAS, Community Redevelopment Law requires that the sale of Agency property be consistent with the Implementation Plan adopted for the Southwest Redevelopment Project Area pursuant to Health and Safety Code Section 33490; and WHEREAS, Community Redevelopment Law requires that the sale of Agency property be based on a price that is not less than (1) the fair market value of the property at its highest and best use in accordance with the plan, or (2) the fair reuse value at the use and with the covenants and conditions and development costs authorized by the sale; and WHEREAS, those properties to be transferred pursuant to the Disposition and Development will be done so at not less than the fair market value of the property at its highest and best use in accordance with the plan, or (2) the fair reuse value at the use and with the covenants and conditions and development costs authorized by the sale; and ..3-q WHEREAS, 3m and Naples, LLC has secured ownership to two parcels, and has entered into a contract to acquire an additional two parcels; however, has been unsuccessful in carrying out negotiations with property owners to acquire fee title to properties located at 293 Naples Street and 1101 Third Avenue, which are necessary to assemble the project site; and WHEREAS, 3rd and Naples, LLC has requested that Agency acquire fee title to the properties either by negotiation or by consideration of eminent domain; and WHEREAS, Agency has presented an offer based on a recent appraisal to acquire the subject properties, but has not received a counter offer or response from the affected property owners; and WHEREAS, Agency continues to negotiate in good faith with the property owners for a mutually agreed upon acquisition price for the subject parcels necessary to develop the project; and I WHEREAS, a joint public hearing of the Agency and City Council on the proposed Disposition and Development Agreement was duly noticed in accordance with the requirements of California Redevelopment Law Section 33433; and WHEREAS, the proposed Disposition and Development Agreement, and a summary report meeting the requirements of the California Redevelopment Law Section 33433, were available for public inspection consistent with the requirements of California Redevelopment Law Section 33433; and WHEREAS, the Agency and City Council held a joint public hearing on the proposed Disposition and Development Agreement for the purpose of receiving public input and comment on the proposed Project and related implement agreement and evaluated all of the information, testimony and evidence presented during the joint public hearing; and WHEREAS, the Agency and City Council have reviewed the summary report required pursuant to Community Redevelopment Law Section 33433 and evaluated all other information provided to it pertaining to the findings required by Section 33433; and WHEREAS, all actions required by all applicable laws with respect to the proposed Disposition and Development Agreement have been taken in an appropriate and timely manner; and I WHEREAS, the City Council and Agency have duly considered all the terms, conditions and provisions of the Disposition and Development Agreement and Summary Report and believe the redevelopment of the Site pursuant thereto furthers the goals and objectives of the Redevelopment Plan and is in the best interest of the City of Chula Vista and the health, safety, and general welfare of its residents, and in accordance with the public purposes and provisions of the applicable state and local laws; and WHEREAS, the Disposition and Development Agreement allows Agency to proceed with the acquisition and disposition of property, and the development of the project; and ..3 -10 WHEREAS, once all the parcels to develop the site are acquired, the property will be placed in escrow and 3rd and Naples, LLC will proceed to prepare the project's construction drawings for plan check and building permits; and WHEREAS, after obtaining building permits, 3rd and Naples, LLC and Agency will close escrow, and the property will be transferred to 3rd and Naples, LLC under the terms and conditions of the Disposition and Development Agreement; and WHEREAS, the redevelopment of the Site and the installation and construction of the public improvements will assist in the elimination of blight by facilitating the development and operation of a First Class, First Quality Project, which will be properly designed, constructed and maintained, and will be of benefit to the community by increasing economic activity, reversing and correcting the continued economic decline of the Site, and eliminating blight consistent with original objectives of the Redevelopment Plan to cause redevelopment of the commercial properties in the Project Area, to cause redevelopment of underutilized property, and to assist in the provision of public infrastructure to facilitate redevelopment of commercial property in the Project Area; and WHEREAS, the Environmental Review Coordinator has reviewed the project for compliance with the California Environmental Quality Act, and has determined that the proposed project was adequately covered in previously adopted Mitigated Negative Declaration IS-04-01; thus, no further environmental review of documentation is necessary. NOW THEREFORE, THE CITY COUNCIL AND REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA do hereby find as follows: 1. The City and Agency do hereby find and determine the foregoing Recitals are true and correct and are a substantive part of this Resolution. 2. The acquisition and disposition of property, and development of property with the project at the southeast corner of Third Avenue and Naples Street will eliminate and prevent the spread of blighting conditions in the Southwest Redevelopment Project Area by removing outdated commercial buildings, providing infrastructure improvements, and establishing a necessary neighborhood serving commercial use to this area of the City. 3. The Disposition and Development Agreement is consistent with the Southwest Redevelopment Project Area Plan and Implementation Plan, because the project will eliminate and prevent the spread of blight; facilitate the enhancement and renovation of businesses; stimulate investment of the private sector in the full development of the Project Area; and achieve an environment reflecting a high level of concern for architectural, landscape, and urban design principles appropriate to the objectives of the Redevelopment Plan. 4. The Redevelopment Agency of the City of Chula Vista does hereby approve a Disposition and Development Agreement with 3rd and Naples, LLC, for the acquisition and disposition of property, and development of a 14,360 square foot Walgreen's retail store with drive thru pharmacy and associated parking at the southeast corner of Third Avenue and Naples Street within the Southwest Redevelopment Project Area. ..3-I( BE IT FURTHER RESOLVED that the Chairman of the Agency is hereby authorized and directed to execute the Disposition and Development Agreement with 3rd & Naples, LLC and all other related documents and agreements (collectively, the "Agreements") for the acquisition and disposition of property, and the development of the project; and BE IT FURTHER RESOLVED that staff is hereby authorized and directed to take any and all necessary and appropriate actions to implement the Agreements. Presented by Approved as to form by ~~ ¡k..~ Laurie A. Madigan Ann ore ~ Director of Community Development City Attorney and Agency Counsel ..s - I 2- .-- ATTACHMENT 1 ~~ ~B ~ VilLA SEAWIND APARTMENTS C HULA VISTA PLANNING AND BUILDING DEPARTMENT LOCATOR PROJECT WALGREENSI PROJECT DESCRIPTION: Œ) APPLICANT: MIKE ORD DESIGN REVIEW PROJECT ADDRESS: 1101 THIRD AVENUE Request: Proposing 14,359sq.ft Walgreens pharmacy with SCALE. I FILE NUMBER: drive through. Involves redevelopment of 6 different parcels. NORTH No Scale DRC-D4-26 Related Case(s): PCC-04-026, IS-04-010 ¡:\cherylc\locators\locators04/drc0426.cdr 11.25.03 ...J -/~ --- ATTACHMENT 2 Mitigated Negative Declaration PROJECT NAME: Walgreens Pharmacy PROJECT LOCATION: Southeast comer of Third Avenue & Naples Street ASSESSOR'S PARCEL NO.: 619-121-0100,619-121-0200, 619-121-3100, 619-121-0600,619-121-0700,619-121-0800 PROJECT APPLICANT: Evergreen Devco, Inc. CASE NO.: IS-04-010 DATE OF DRAFT DOCUMENT: December 23, 2003 DATE OF RESOURCE CONSERVATION COMMISSION MEETING: Januarv 5. 2004 DATE OF FINAL DOCUMENT: Januarv 26,2004 A. Project Setting The 1.20-acre project site, comprised of six parcels, is located at the southeast corner of Third Avenue and Naples Street, within the urbanized central western portion of the City of Chula Vista (see Exhibit A - Location Map). The project site is relatively flat with vehicular access from Third Avenue and Naples Street. The site contains non-native vegetation, unpaved and paved parking areas, wood and wood/masonry fences along the eastern and southern site boundaries and damaged sidewalk and unused driveway approaches along Third Avenue. Five of the six parcels are developed, including a used furniture store, a vacuum repair shop, a TVNCR repair shop, a hearing center, a bar/night club and a storage building. The land uses surrounding the project site are as follows: North: Fruit Stand and Mattress Shop Northwest: Commercial Center/Restaurant South: Retail Shops and Single Family Residence Southwest: Mobile Home Park East: Single-Family Residential West: Fast-Food Restaurant B. Project Description The proposed project consists of the demolition of the five existing on-site structures and the construction of a one-story, 14,360 square-foot Walgreens Pharmacy with a drive-thru pharmacy along the south side of the building. The project includes a request to install a satellite dish that will be mounted on the roof of the Walgreens building to communicate with Walgreens Company headquarters and to transmit and receive drug prescription information. Pursuant to the Chula Vista Municipal Code (CYMe) Section 19.36.030M, roof-mounted satellite dishes require the approval of a Conditional Use Permit in the Central I J-f4- Commercial (CC) Zone pursuant to standards set forth in CVMC Section 19.30.040. On-site improvements include a 58-space paved parking lot, landscaping, 6-foot high masonry wall along the eastern and southern site boundaries, 8-foot high masonry screen wall around trash compactors along the east side of the building, parapet walls around the perimeter of the roof and roof-mounted satellite dish (7.5 feet in height). Access to the site is proposed ftom one driveway on Third Avenue and one on Naples Street. Off-site improvements along Naples Street consist of undergrounding utility lines, traffic signal modification, street widening to 26' from center line, installation of new sidewalk, curb and gutter, and installation of one street light. Off-site improvements along Third Avenue consist of the removal and replacement of broken sections of existing driveVlay, curb, gutter and sidewalk, and installation of a raised concrete median to the satisfaction of the City Engineer. In accordance with City standards, a 2-foot dedication along Third Avenue is required, thus bringing the right-of-way for Third Avenue into conformance with its Class I Collector street classification. The proposed project requires Design Review by the Design Review Committee, approval of a Conditional Use Permit by the Zoning Administrator, and approval of a Precise Plan and all necessary redevelopment actions by the City Council/Chula Vista Redevelopment Agency. C. Compliance with Zoning and Plans The project site is within the CCP (Central CommerciallPrecise Plan) Zone, CR (Commercial/Retail) General Plan designation and is within the Montgomery Specific Plan and Southwest Redevelopment Plan Area. The CCP Zone, CR designation and Montgomery Specific Plan allow for the proposed retail land use. D. Public Comments On November 25, 2003, a Notice of Initial Study was circulated to property owners within a 500-foot radius of the proposed project site. The public review period ended December 5, 2003. No verbal or written comments were received. On December 24, 2003. the Notice of Availabilitv of the Proposed Mitigated Negative Declaration for the project was posted in the Countv Clerk's Office and circulated to property owners within a 500-foot radius of the project site. The 30-dav public comment period closed on January 22.2004. No written or verbal comments were received from the public. E. Identification of Environmental Effects An Initial Study conducted by the City of Chula Vista (including the attached Environmental Checklist form) determined that although the proposed project could have a significant environmental effect, there would not be a signifièant effect in this case because mitigation measures described in Section F below have been added to the project. Therefore, the preparation of an Environmental Impact Report will not be required. This Mitigated Negative Declaration has been prepared in accordance with Section 15070 of the State CEQA Guidelines. 2 ..3-15'" Air Oualitv The project site is located within the San Diego Air Basin (SDAB). The proposed project will result in an increase in air pollutants during both the construction and operational phases of the project. Fugitive dust would be created during demolition, grading and construction activities. Although air quality impacts resulting from construction-related operations are potentially significant, they are considered short-term in duration since construction-related activities are a relatively short-term activity. Dust control measures indicated as grading notes on the grading plans and implemented during grading operations would be regulated in accordance with the rules and regulations of the County of San Diego Air Pollution Control District (APCD) and the California Air Resources Board. The mitigation measures contained in Section F below would mitigate short-term construction-related air quality impacts to below a level of significance. The proposed project is consistent with the Commercial designation of the project site under the adopted Chula Vista General Plan and Montgomery Specific Plan. Therefore, the proposed commercial land use has been included in regional air quality projections and plans and will not conflict with or violate any applicable air quality plans or standards. For these reasons, the proposed project would not result in any significant long-term local or regional air quality impacts and no mitigation measures are required. Geologv and Soils Proposed grading to accommodate the project consists of 3,000 cubic yards of excavation and 4,000 cubic yards of fill, requiring the impO¡j:ation of 1,000 cubic yards of earth. The maximum depth of cut is anticipated to be 3 feet and the maximurn depth of fill is anticipated to be 2 feet. According to the Engineering Department, the submittal of a geological study will be required prior to issuance of a grading permit. Due to the previous development of the site and minimal grading required for the proposed project, no significant geological impacts are anticipated. In addition, the submittal of a soils report will be required prior to the issuance of grading and building permits to determine existing soil conditions and to provide foundation and pavement recommendations. The potential discharge of silt during construction activities could result in siltation impacts downstream. Appropriate erosion control measures would be identified in conjunction with the preparation of final grading plans and would be implemented during construction. The implementation of appropriate water quality best management practices (BMPs) during construction would be required in accordance with the Chula Vista Standard Urban Storm Water Mitigation Plan (SUSMP) and the City's Storm Water Management Standards Manual. All portions of the development area disturbed during construction would either be developed or would be appropriately landsc.aped in compliance with the Chula Vista Municipal Code, Sections 19.36.090 and 19.36. i í O. Compliance with the above requirements would be ensured by the City Engineer prior to the issuance of grading permits for the proposed project and during construction. Therefore, the potential for the discharge of silt into the drainage system would be less than significant. 3 ...3-({"" Hazards and Hazardous Materials Phase I Environmental Site Assessment To assess the potential hazards and hazardous materials impacts of the project, a Phase I Environmental Site Assessment was prepared by Kahl Environmental Services, dated January 31, 2003. The Phase I Environmental Site Assessment is available for review at the City Planning and Building Department and is summarized below. No significant evidence of adverse impacts to the subject site from on-site hazardous material sources were identified; no signs of major staining, major spills or releases of hazardous materials were observed and no leaking or damaged containers were observed. Previous land uses included office, retail and an auto repair shop. Based on the historical usage of the site and the lack of any evidence indicating significant hazardous material releases at the site, there is no evidence that significant hazardous conditions exist on-site. No evidence of any history of Underground Storage Tanks (UST) on-site exists. Lead and Asbestos Removal Existing buildings on-site that are proposed to be demolished potentially contain asbestos and lead-based paint, which could be released if not properly abated. To mitigate this potentially significant impact, prior to any demolition activities the presence of asbestos and lead-based paint will be determined and if present, abatement shall be performed by a licensed and registered asbestos and lead abatement contractor in accordance to all applicable local, state and federal laws and regulations, including San Diego County Air Pollution Control District Rule 361.145 - Standard for Demolition and Renovation. The mitigation measure contained in Section F below would mitigate potential impacts associated with the release of asbestos and lead to below a level of significance. Hvdrologv and Water Oualitv Hydrology According to the FEMA Floodway Frequency Mapping, the project site is located in Zone X (outside of the 500-year floodplain). On-site drainage consists of paved areas that sheet-flow towards Third Avenue and Naples Street and a sump pump located at the southeast corner of the site that handles drainage within the southerly portion of the site. The flow from this pump discharges through a grated outlet at a driveway along Third Avenue. The discharged water flows southerly into a street gutter consisting of a combination inlet/catch basin at the northeast comer of Third Avenue and Emerson Street. The remainder of the site runoff reaches Naples Street and Third Avenue and flows northerly into the street gutter to an inlet located in the middle of the next block. The pròposed project would not increase runoff from the site. All drainage facilities constructed in conjunctiori. with the project will be designed in accordance with City Engineering standards and requirements. 4 .3-/7 Water Quality In order to prevent pollutant contamination into the regional storm water conveyance systems, the applicant will be required to file a Notice of Intent with the State Water Resources Control Board for coverage under a National Pollutant Discharge Elimination System (NPDES) Stormwater Permit (General Construction Permit) for projects larger than one acre. Based on the City of Chula Vista Standard Urban Storm Water Mitigation Plan (SUSMP), post-construction pollutaIÌ.ts of concern associated with the proposed project include trash, debris, oil and grease. Per the requirements set forth in the SUSMP and the City's Storm Water Management Standards Manual, best management practices (BMPs) shall be designed to treat runoff generated by the Water Quality Design Storm having a rainfall intensity of 0.2 inches per hour. The City Engineer will ensure that the requirements of the SUSMP and the Storm Water Management Standards Manual will be met prior to the issuance of grading/improvement or construction permits for the proposed project. Based upon the requirements of the SUSMP and the Storm Water Management Standards Manual, construction and post-construction project-related water quality impacts would be less than significant; therefore, no mitigation measures beyond established requirements are required. A discussion of the proposed construction and post-construction BMPs for the proposed project are discussed below. Construction BMPs According to the Engineering Department, due to the size and existing condition of the project site, the preparation and implementation of a Storm Water Pollution Prevention Plan (SWPPP) and the filing of a Notice of Intent with the Regional Water Quality Control Board will be required. The applicant shall be required to complete Form 5504 "Construction Storm Water Management Plan" (CSWMP) prior to issuance of grading, improvement and construction permits. During construction, BMPs from the California Best Management Practices Handbook will be used, which have been frequently used on job sites and have been proven effective. Examples of construction BMPs include silt fences, sandbags, and hay bales, which are strategically placed around curb inlets, catch basins, and driveways in order to prevent silt and sediment from entering the storm drain system. . Post-Construction BMPs Proposed site design BMPs include reducing imperviousness and utilizing landscaping throughout the site to provide for detention and infiltration. All trash container areas shall be designed not to allow run-on from adjoining areas and be screened or walled to prevent off- site transport of trash in accordance with the City's Solid Waste and Recycling standards. Required post-construction BMPs will be subject to 'tli¡f approval of a project-specific water quality study by the City Engineer and may, therefore, vary to some degree from the proposed BMPs described above. However, the overall result must be the same regardless of the specific BMPs approved. The City Engineer will take all necessary steps to ensure that the approved BMPs will be implemented and will be sufficient to treat site runoff prior to exiting the site and entering the public storm drain system in accordance with the applicable established water quality standards. 5 ~ -/8' Noise To assess the potential noise impacts of the project, an acoustical impact analysis was prepared by Urban Crossroads, Inc., dated December 22, 2003 (revised). The noise study is available for review at the City Planning and Building Department and is summarized below. The analysis considers noise from five sources in detail: 1) delivery trucks, 2) a trash compactor, 3) speakerphones, 4) vehicular activities, and 5) mechanical ventilation systems. Noise Standards The acoustical impact analysis assessed the project with respect to the regulations contained in Chapter 19.68, Performance Standards and Noise Control, of the Chula Vista Municipal Code (noise control ordinance). Pursuant to the noise control ordinance, no person shall operate, or cause to be operated, any source of sound at any location within the city or allow the creation of any noise on property owned, leased, occupied, or otherwise controlled by such person which exceeds the established noise level limits (C.V.M.C. § 19.68.030(A)(4). The noise-sensitive uses adjacent to the project site potentially affected by project-generated noise consist of single-family residences to the east and south. The noise level limits of the noise control ordinance vary by receiving land use category and time of day (daytime versus nighttime); the daytime and nighttime noise level limits for single-family residential development are shown below. All Residential (Except Multiple Dwelling) Weekdays: 10:00 p.m. to 7:00 a.m. Weekdays: 7:00 a.m. to 10:00 p.m. Weekends: 10:00 p.m. to 8:00 a.m. Weekends: 8:00 a.m. to 10:00 p.m. 45 dB(A) Leq (one-hour) 55 dB(A) Leq (one-hour) Per Section 19.68.030(B)(4) of the noise control ordinance, if the ambient noise level exceeds the established noise level limit, then the allowable noise exposure standard shall be the ambient noise level. According to the noise study, the existing ambient noise levels at the three noise measurement locations, each of which was measured during daytime and nighttime, currently exceed the nighttime exterior noise level limits for residential land use. Therefore, project generated noise levels would not be permitted to exceed ambient noise levels. Potential Operational Noise Impacts Potential noise impacts associated with the operation of the proposed Walgreens, consisting of truck deliveries, drive-thru speakerphone,. trash compactors, and vehicular traffic were analyzed based upon the incorporation of the propOsed mitigation measures outlined below. The noise impacts associated with the rooftop mechanical ventilation systems will be addressed in a subsequent noise study when detailed building plans that provide the quantity, type and locations of the mechanical ventilation system are available. The City will require the submittal of this noise study prior to building permit issuance. Therefore, this current analysis did not analyze noise levels associated with mechanical ventilation systems. 6 -3-1'1 The proposed exterior noise mitigation measures are summarized as follows: 1) construction of a 6-foot high masonry wall, solid face from top to bottom with no unnecessary openings or decorative cutouts, along the eastern and southern project boundaries separating Walgreens ÍÌ"om the neighboring residential homes, 2) construction of parapet wall blocking the 1ine-of- sight ofrooftop mechanical ventilation systems from the nearby residential backyards, 3) and construction of an 8-foot high masonry wall to block line of sight from the residences from the trash compactors located on the eastern building façade, and 4) ensure that all masonry walls are solid ÍÌ"om top to bottom and no unnecessary openings or decorative cutouts exist. Operational noises include deliveries at the site that typically occur from 8 a.m. to 5 p.m. and staging activities consisting of delivery personnel transferring goods ÍÌ"om the receiving door at the rear. Typical Walgreens stores receive 12 weekly deliveries ranging from large Walgreens general merchandise delivery trucks to the smaller secondary vendor truck deliveries. The Wa1greens delivery trucks require an unloading time of approximately 2 hours with the smaller secondary vendors requiring approximately 20 minutes. Potential noise impacts to the adjacent residential dwellings from the operational and business activities may occur. In order to mitigate any potential significant noise impacts, the following operational mitigation measures are proposed; 1) limitation of the delivery of goods to the daytime hours between 7 a.m. and 10 p.m., 2) limitation of use of the outdoor trash compactors to the daytime hours between 7 a.m. and 10 p.m., and 3) reduction of delivery truck noise by minimizing engine idling during deliveries. The proposed Walgreens is projected to produce exterior noise levels below the 55-dBA daytime exterior noise limits of the noise control ordinance. The projected noise levels generated during nighttime are lower than the existing ambient noise conditions. The results of this analysis indicate that the proposed Walgreens will meet with the daytime and nighttime noise control ordinance standards with the recommended noise mitigation measures outlined in Section F below. Short-Term Construction Noise Pursuant to Section 17.24.050(J) of the Chula Vista Municipal Code, construction work in residential zones that generates noise disturbing to persons residing or working in the vicinity is not permitted between 10:00 p.m. and 7:00 a.m. Monday through Friday and between 10:00 p.m. and 8:00 a.m. Saturday and Sunday, except when necessary for emergency repairs required for the health and safety of any member of the community. Due to the presence of residential development immediately east and south of the project site, this provision of the Municipal Code applies to the project, which would ensure that residents would not be disturbed by construction noise during the most noise sensitive periods of the day. The proposal would be required to comply with this regulation ofthe Chula Vista Municipal Code; thus, the project related construction impacts would be at a level of less than significance. ..' Transpo rtation/Traffic To assess the potential traffic/circulation impacts of the project, a focused traffic study was prepared by RCE Traffic and Transportation Engineering Inc., dated December II, 2003. The focused traffic study is available for review at the City Planning and Building 7 .3 . 2-D Department and is summarized below. The study area included the Third Avenue and Naples Street signalized intersection and the street segments of Third Avenue and Naples Street adjacent to the project site. The study included evaluation of the existing conditions and existing plus project conditions. The results of this analysis are summarized below. The proposed project is estimated to generate a total ofl,292 one-way average daily trips (ADT), with 52 and 129 vehicles per hour generated at the driveways during the AM and PM peak hours, respectively. Access to the project site is proposed ITom one driveway on the southwest comer on Third Avenue and one driveway on the northern comer on Naples Street. Sùmi(¡cance Criteria The criteria utilized to determine if a traffic impact at an intersection or street segment is considered significant is based on City of Chula Vista standards. Both project specific and cumulative impacts can be significant impacts. The applicable significance criteria utilized in the project traffic impact analysis are as follows: Signalized/Unsignalized Intersections A project specific impact to a signalized or unsignalized intersection would result if both of the following criteria are met: 1. Level of service is LOS E or LOS F. 2. Project trips comprise 5% or more of entering volume. Cumulative impact if only condition #1 is met. Street Segments A project specific impact to a street segment would result if the following criteria are met: 1. Level of service is LOS D for more than 2 hours or LOS ElF for 1 hour. 2. Project trips comprise 5% or more of segment volume. 3. Project adds greater than 800 ADT to the segment. Cumulative impact if only condition #1 is met. I Existinf! Conditions Street Segments The existing conditions of the adjacent, Third Avenue and NapJes Street street segments were evaluated. Third Avenue is classified as a Class I Collector street and Naples Street is classified as a Class II Collector street; both segments currently operate at Level of Service (LOS) C. 8 ...3 - ,;¿. ( Signalized Intersection The existing peak hour conditions were evaluated for the signalized intersection of Third Avenue and Naples Street. Based upon actual LOS calculations, the analysis indicated that the intersection currently operates at LOS C during the AM and PM peak hours. Existine Plus Proiect Conditions Street Segments The analysis revealed that Third A venue and Naples Street in the immediate project vicinity will continue to operate at a LOS C. Therefore, the project would not exceed the City's significance criteria. Signalized Intersection The traffic study indicated that the signalized intersection of Third Avenue and Naples Street would continue to operate at LOS C during the AM and PM peak hours under existing plus project conditions. Therefore, the project would not exceed the City's significance criteria. Traffic Signal Operations Due to the potential impact to traffic signal operations at the signalized intersection of Third Avenue and Naples Street from vehicular movements in and out of the proposed driveway along Naples Street, vehicular movements from this driveway on will be limited to right turn in and right turn out only. With the restriction of vehicular movements, as outlined in Section F below, potential impacts to traffic signal operations would be reduced to below a level of significance. Parkin>! Based upon the proposed project as a retail use, the required off-street parking is 65 spaces pursuant to the Chula Vista Municipal Code; the proposed parking is 58 parking spaces. The proposed parking deviation may be granted through the adoption of findings that no significant impacts to the public health, safety and welfare of the public would occur. A parking analysis prepared by RCE Traffic and Transportation Engineering, dated December 8, 2003, outlined the parking demands at the Walgreens located at Broadway and "I" Street. This store is one of the busiest in California, Texas, and New Mexico. Walgreens does not anticipate that the location at Third Avenue and Naples Street will duplicate the customer volumes of their Broadway and "I" Street I?cat!on. The study covered a four-day period from November 26-30 within IS-minute intervals between 5 p.m. and 7 p.m. as Walgreens considers this their peak period both for traffic circulation and sales volume. Walgreens stores are typically not known as having high parking demands due to the short amount of shopping time by the average customer. The results of the study indicated that during this peak period, the number of parking stalls occupied ranged from 18 to 50 parking spaces; 75 percent of the fifteen-minute increments 9 .3-.2-.2.... during the study period showed a usage of less than 40 parking staBs and only 3 of the 36 fifteen-minute increments showed usage above 45 parking staBs. According to the applicant's prototype scenario for a typical Walgreens Pharmacy store, there are two elements particular to a Walgreens pharmacy use that reduce the parking demand: 1) as a convenience-based business store typically the customers pay short visits, and 2) many customers now use the convenience of the drive-thru pharmacy thus never parking on the lot. Based upon the parking analysis, project design and short-term customer traffic, it is anticipated that the proposed 58 parking spaces would be sufficient to meet the parking demand of the proposed Walgreens. Planoing staff does not anticipate any parking impacts within the surrounding neighborhood to result and, therefore, supports the proposed deviation from the Municipal Code requirements. F. Mitigation Necessary to Avoid Significant Impacts Hazards and Hazardous Waste The foUowing hazards mitigation requirement shan be shown on aU demolition plans as a note. 1. Asbestos and lead-based paint abatement shan be performed by a licensed and registered asbestos and lead abatement contractor in accordance to aU applicable local, state and federal laws and regulations, including San Diego County Air PoUution Control District Rule 361.145 - Standards for Demolition and Renovation. T ransportati on/T raffi c 2. The applicant shan provide signing and striping as required to the satisfaction of the City Engineer, to restrict the vehicular movements at the Naples Street driveway to "right-in and right-out" movements. Noise 3. The applicant shan submit a subsequent noise study to the satisfaction of the Environmental Review Coordinator prior to the issuance ofthe building permit for the Walgreens Pharmacy building demonstrating that the final rooftop mechanical ventilation systems proposal complies with the City's noise control ordinance at the east and south property boundaries of 45 dBA Leq (one hour) during nighttime hours and 55 dBA Leq (one hour) during daytime hours or ambient noise levels, whichever is greater. 4. The applicant shall construct a 6.0-foot higt solid masonry wan on the eastern and southern project boundaries that separates the proposed building from the neighboring residential properties. 5. The applicant shall construct a solid parapet wan that blocks the line-of-sight view from the backyards of the nearby residential properties to the exposed roof and mechanical ventilation systems. 10 ..3 -.¿,,3 6. The applicant shall construct an 8.0-foot high solid masonry wall to fully énclose the trash compactors located on the eastern building façade. 7. All masonry walls shall be solid from top to bottom and no unnecessary openings or decorative cutouts shall be allowed. All gaps (with the exception of weep holes) shall be filled with grout or caulking. 8. Truck delivery of goods to the facility shall be limited to the weekday hours between 7 a.m. and 10 p.m. and weekend hours between 8 a.m. and 10 p.m. 9. Operation of the outdoor trash compactors shall be limited to weekday hours between 7 a.m. and 10 p.m. and weekend hours between 8 a.m. and 10 p.m. 10. The applicant shall reduce delivery truck noise by minimizing engine idling time during deliveries to the maximum extent possible. G. Consultation 1. Individuals and Organizations City ofChula Vista: Luis Hernaodez, Planning and Building Department Paul Hellman, Planning and Building Department Jolm Schmitz, Planning and Building Department Richard Zumwalt, Planning and Building Department Maria Muett, Planning and Building Department Frank Herrera-A, Planning and Building Department Carolyn Dakan, Planning and Building Department Garry Williams, Planning and Building Department Miguel Tapia, Community Development Department Frank Rivera, Engineering Department Alex AI-Agha, Engineering Department JeffMoneda, Engineering Department Muna Cuthbert, Engineering Department Silvester Evetovich, Engineering Department Ben Herrera, Engineering Department Majed AI-Ghafry, Engineering Department David Kaplan, Engineering Department Jessica Madson, Fire Department Lynn France, Conservation and Environmental Services Department Others: Dee Peralta, Chula Vista Elementary School District Hector Martinez, Sweetwater Authority 11 ..3~.2..V- 2. Documents City ofChula Vista General Plan, 1989. Final Environmental Impact Report, City ofChula Vista General Plan Update, EIR No. 88-2, May 1989. City ofChula Vista MSCP Subarea Plan, February 2003. Phase I Environmental Site Assessment, Third Avenue & Naples Street, Chula Vista, CA 92173, Kahl Environmental Services, January 31,2003. Focused Traffic Study, Walgreen's Third Avenue & Naples Street, RCE Traffic and Transportation Engineering, December 11, 2003. Walgreen's Parking Analysis - SEC Third Avenue & Naples Street, RCE Traffic and Transportation Engineering, December 8, 2003. Walgreens Noise Impact Assessment, Chula Vista, CA 92173, Urban Crossroads, Inc., December 22, 2003 (Revised). 3. Initial Study This environmental determination is based on the attached Initial Study, any comments received on the Initial Study and any comments received during the public review period for this Mitigated Negative Declaration. The report reflects the independent judgment of the City ofChula Vista. Further information regarding the enviIonmental review of this project is available ITom the Chula Vista Planning and Building Department, 276 Fourth Avenue, Chula Vista, CA 91910. h;~./tP~rt\. Date: / /.2újtJ':I Marilyn R. F. Ponseggi ' Environmental Review Coordinator J:\PlonninglMARJAIlnitial StudyIIS.O4-o10FinaIMND.doc 12 ..3 -:L~ KMART VilLA SEAWINO APARTMENTS CHULA VISTA PLANNING AND BUILDING DEPARTMENT LOCATOR PROJECT WALGREENSI PROJECT DESCRIPTION: C) APPLICANT: MIKE ORD INITIAL STUDY PROJECT ADDRESS: 1101 THIRD AVENUE Request: Proposing 14,359sq.ft Walgreens pharmacy with SCALE: I FILE NUMBER: drive through. Involves redevelopment of 6 different parcels. NORTH No Scale 15-04-010 Related Case(s): DRC-O4-26, PCC-O4-026 j:\cherylc\locators\loC3tors04\ls04010.cdr 12.22.03 ..J..2.lÞ Exhibit A. ~ .~~~~ ~ .~ -r- - .:.."~. .~ I ~ ~¡¡~:"::" =" iê"h~ .~ , g i!!!,,~. 3 i!~. I ~ i!~~¡'~" '!~ ~ .~§... ¡¡ .~. § ~.~~~ ~ ~~! I ~l ~~~~ . ..- I ~ ' - 1 ' :ê I 'I . I .~ I~I I~: '" , Hl~OH I I : , 1 :~ : ~ ~ ~ , - a ~ . 0 ;¡:;¡¡!}{¡: .~ i~;j~ I ¡ ~ alii" ~ I L h~ ~ ~ ! II~~~ I . . . 00 I i z, I <[ , I ......1 ' ç:¡ W, L' ç:¡1 w, (/)' ~I æ: ôl ,-~'-.,-,. 13 : I is L. 1- ~ ~ it i L.._.._..:::.__._.._.._.._.._.._..~, ""0"" . = I -_.- - ._~ I;~~'~' , ----~~- .H - -2/- -\ - I - --=-- Æ 7- -¿r- "'> I --- " = ." I I :~ = I í-- ~ , ------------1 I ---"--------------- ..3..<.7 ATTACHMENT "A" MITIGATION MONITORING AND REPORTING PROGRAM (MMRP) Walzreens Pharmacv- 15-04-010 This Mitigation Monitoring and Reporting Program has been prepared by the City of Chula Vista in conjunction with the proposed Walgreens Pharmacy project. The proposed project has been evaluated in an Initial Study/Mitigated Negative Declaration prepared in accordance with the California Environmental Quality Act (CEQA) and City/State CEQA Guidelines (IS-04-010). The legislation requires public agencies to ensure that adequate mitigation measures are implemented and monitored for Mitigated Negative Declarations. AB 3180 requires monitoring of potentially significant and/or significant environmental impacts. The Mitigation Monitoring and Reporting Program for this project ensures adequate implementation of mitigation for the following potential impacts(s): I. Hazards and Hazardous Materials 2. Transportation/Traffic 3. Noise MONITORING PROGRAM Due to the nature of the environmental issues identified, the Mitigation Compliance Coordinators shall be the Environmental Review Coordinator and City Engineer of the City of Chula Vista. The applicant shall be responsible to ensure that the conditions of the Mitigation Monitoring and Reporting Program are met to the satisfaction of the Environmental Review Coordinator and City Engineer. Evidence in written form confirming compliance with the mitigation measures specified in Mitigated Negative Declaration IS-04-010 shall be provided by the applicant to the Environmental Review Coordinator and City Engineer. The Environmental Review Coordinator and City Engineer will thus provide the ultimate verification that the mitigation measures 4ave been accomplished. Table I, Mitigation Monitoring and Reporting Program Checklist, lists the mitigation measures contained in Section F, Mitigation Necessary to Avoid Significant Effects, of Mitigated Negative Declaration IS-O4-010, which will be implemented as part of the project. In order to determine if the applicant has implemented the measure, the method and timing of verification are identified, along with the City department or agency responsible for monitoring/verifying that the applicant has completed each mitigation measure. Space for the signature of the verifying person and the date of inspection is provided in the last column. '.- ¡o\PlanningIMARIAllnitial StudyIJS-O4-o10MMRPtext.doo ~ -,,¿ g -_.- ~ ... ~ C> C> C> C> C> " " " " " '6 '§ '§ '6 '6 " "3 "3 " " CD CD CD CD CD Z-'C Z-'C Z-'C Z-'C Z-'C ~~ ~~ ~~ ~~ ~~ :3.5 :3.5 :3.5 :3.E :3.E ~~g~~g~~g~~g~~g «>-0«>-0«>-0«>-0«>-0 x x x x x x x X ..... Q)x X X X X N :ë ~ 1\1 00 ~ ~ ~ 2 2 2 2 <f) iñ iñ iñ iñ :¡", :¡", :¡", :¡", :¡", ~g ~g ~g ~g ~g ';ìt ';ìt ';ìt ';ìt ';ìt ii~ ii~ H ii~ H ~ go ~ .. :¡~~]~ ~~ ~ ;g£j H~:§~ ~~E.ð'B ~!i :gi~~~.~ËQ.~~ ~~ ~~g¡F~§ci;~! gf,i.g.CJ;¡::¡¡"_~~g';;:¡H ;g§g";"'§E~qE;g> c ~~a~l!gci~8~cil~ - 0 ~~~~~2~';;~~~~~~ ~ ~ È~~~!~~æ~g~æ8§ci ~ '1' :gg.c.c=~-;;Z:¡¡5L:Z"c>:¡; c ~ 8~EI!:¡;¡!Ja~Ji§1 0 !t! 1~*f,i;~g,i!!"g3q¡~~g 0; .c-ro$,,~-".c ~OL:"- ~ > ...CJ:j.CJl~ii!!!I.c..~:¡¡ ~ ~ gI5~8õl~5~!~~¡¡¡1j-g ~ i~§§I§w~~§~I~IE ~ ~ g- §] ~ '§ r, ~ æ ~ ~:; I g-êê .~ f !~:3!la~:æ!t~!~~ ~ w ~E.CJ<'C~~5~O=ro~EE ~ Z <: w ¿ ~ ...' ó ~ ::7.')(. ~ a ~ ~ C> - ~ ~ ~I ~ ~ ~ ~ ~!f? -. EI'<ry¡RONMENTAL CHECKLIST FORM CHólÀ ~lsrA I. Name of Proponent: Evergreen Devco, Inc. 2. Lead Agency Name and Address: City ofChula Vista Planning and Building Department 276 Fourth Avenue Chula Vista, CA 91910 3. Address and Phone Number of Proponent: 2920 E. Camelback Road, Suite 100 Phoenix, AZ 85016 (602) 808-8600 4. Name of Proposal: Walgreens Pharmacy 5. Date of Checklist: December 22, 2003 6. Case No. : IS-04-010 ENVIRONMENTAL ANALYSIS QUESTIONS: Less Than Significant Potentially With Less Than Issues: Significant Mitigation Significant No Impact Impact Incorporated Impact I. AESTHETICS. Would the project: a) Have a substantial adverse effect on a scenic vista? 0 0 0 . b) Substantially damage scenic resources, including, 0 0 0 . but not limited to, tress, rock outcroppings, and historic buildings within a state scenic highway? c) Substantially degrade the existing visual character or 0 0 0 . quality of the site and its surroundings? . " --, d) Create a new source of substantial light or glare, 0 0 . 0 which would adversely affect day or nighttime views in the area? ,3..30 1 Less Than Potentially Significant Less Than With Issues: Significant Mitigarion Significant No Impact Impact Incorporated Impact Comments: a-b) As designated in the City's General Plan, the project site is within the Montgomery Specific Plan Area and Southwest Redevelopment Area. Landscape treatments along Third Avenue and Naples Street are proposed in accordance with the City of Chula Vista Municipal Code and Montgomery Specific Plan landscape and site architectural requirements and design review guidelines. These landscape improvements would ensure that aesthetic impacts to the Third A venue corridor create a positive image. The project site contains no scenic vistas or views open to the public, and is not in proximity to a state scenic highway. c) The project site is located within an established urbanized area of Southwestern Chula Vista. Surrounding land uses consist of commerciaVretail uses to the north, south and west, and sing1e- family residential uses to the east. The proposed projects consist of the redevelopment of the site by the construction of a retail pharmacy with a drive-thru. This development includes the demolition of all existing structures, dilapidated fencing and pavement. The commercial project would not result in a change in the retail commercial character of the project site nor would it have a demonstrable negative aesthetic impact to the adjacent residential neighborhood. Proposed improvements are anticipated to have a positive aesthetic effect on the corner of Third Avenue and Naples Street. The project would not substantially degrade the existing visual character or quality of the surrounding area and would enhance the current condition of the area. d) Compliance with the glare regulations (Section 19.66.100) of the Chula Vista Municipal Code (CYMe) that is ensured through the building permit process, no substantial glare, direct or sky- reflected glare or light, would effect daytime or nighttime views in the surrounding area nor shall be visible at the lot line of an establishment or use. Mitil!ation: No mitigation measures are required. II. AGRICULTURAL RESOURCES. Would the project: a) Convert Prime Farmland, Unique Farmland, or 0 0 0 . FannJand of Statewide Importance (Farmland), as shown on the maps prepared pursuant to the Farmland Mapping and Monitoring Program of the California Resources Agency, to non-agricultural use? b) Conflict with existing zoning for agricultural use, or 0 0 D . a Williamson Act contract? c) Involve other changes in the existing environment, 0 D D . which, due to their location or nature, could result in .,3-.31 :'. Less Than Potentially Significant Less Than With Issues: Significant Mitigation Significant No Impact Impact Incorporated Impact conversion of Farmland, to non-agricultural use? Comments: a-c) The project site is neither in current agricultural production nor adjacent to property in agricultural production and contains no agricu!tural resources or designated farmland. Mitil!ation: No mitigation measures are required. ID. AIR QUALITY.oWould the project: a) Conflict with or obstruct imp!ementation of the 0 0 0 . applicable air quality plan? b) Violate any air quality standard or contribute 0 0 . 0 substantially to an existing or projected air quality violation? c) Result in a cumulative!y considerable net 0 0 0 . increase of any criteria pollutant for which the project region is non-attainment under an applicable federal or state ambient air quality standard (including releasing emissions, which exceed quantitative thresholds for ozone precursors)? d) Expose sensitive receptors to substantial pollutant 0 0 0 . concentrations? e) Create objectionable odors affecting a substantia! 0 0 0 . number of people? 3 J -..,3 2. Less Thon Significont Potentiolly With Less Thon Issues: Significant Mitigation Significant No Impact Impact Incorporated Impact Comments: See Mitigated Negative Declaration, Section E. Miti!!ation: No mitigation measures are required. IV.BIOLOGICAL RESOURCES. Would the project: a) Have a substantial adverse effect, either directly or 0 0 0 . through habitat modifications, on any species identified as a candidate, sensitive, or special status . species in local or regional plans, policies, or regulations, or by the California Department ofFish and Game or u.S. Fish and Wildlife Service? b) Have a substantial adverse effect on any riparian 0 0 0 . habitat or other sensitive natural community identified in local or regional plans, policies, regulations or by the California Department of Fish and Game or u.S. Fish and Wildlife Service? c) Have a substantial adverse effect on federally 0 0 0 . protected wetlands as defined by Section 404 of the Clean Water Act (including, but not limited to, marsh, vernal pool, coastal, etc.) through direct removal, filling, hydrological interruption, or other means? d) Interfere substantially with the movement of any 0 . 0 0 . native resident or migratory fish or wildlife species or with established native resident or migratory wildlife corridors, or impede the use of native wildlife nursery sites? .. . e) Conflict with any local policies or ordinances 0 0 0 . protecting biological resources. such as a tree preservation policy or ordinance? .,3-.33 4 Less Than Significant Potentially With Less Than Issues: Significant Mitigation Significant No Impact Impact Incorporated Impact f) Conflict with the provisions of an adopted Habitat 0 0 0 . Conservation Plan, Natural Community Conservation Plan, or other approved local, regional, or state habitat conservation plan? Comments: a) The project site was previously developed. Based upon the Chula Vista MSCP Subarea Plan, the project site is designated as a development area; based upon a field inspection by City staff, no candidate, sensitive, or special status species are present within or immediately adjacent to the proposed development area. Non-native weeds . exist on the unpaved portions of the project site. b) Based upon the Chula Vista MSCP Subarea Plan and field inspection by City staff, no sensitive natural communities are present within or immediately adjacent to the proposed development area. c) Based upon the Chula Vista MSCP Subarea Plan and field inspection by City staff, no wetlands are present within or immediately adjacent to the proposed development area. d) Based upon the ChuIa Vista MSCP Subarea Plan and field inspection by City staff, no native resident or migratory wildlife corridors or native wildlife nursery sites exist within or immediately adjacent to the proposed development area. e) No biological resources would be affected by the proposal and no conflicts with local policies or ordinances protecting biological resources would result. f) No impacts to local, regional or state habitat conservation plans would result since the project site is a designated development area pursuant to the adopted Chula Vista MSCP Subarea Plan. Miti!!ation: No mitigation measures are required. V. CULTURAL RESOURCES. Would the project: a) Cause a substantial adverse change in the 0 0 0 . significance of a historical resource as defined in State CEQA Guidelines § 15064.5? '. . b) Cause a substantial adverse change in the 0 0 0 . significance of an archaeological resource pursuant to State CEQA Guidelines § 15064.5? ~-~t/ 5 Less Than Potenrially Significant Less Than With Issues: Significant Mitigation Significant No Impact Impact Incorporated Impact C) Directly or indirectly destroy a unique 0 0 0 . paleontological resource or site or unique geologic feature? d) Disturb any human remains, including those interred 0 0 0 . outside offormal cemeteries? Comments: a) No historic resources are known or are expected to be present within the project impact area. Therefore, no substantial adverse change in the significance of a historical resource as defined in Section 15064.5 is anticipated. b) Based on the level of previous disturbance to the site, and the relatively minor amount of additional grading that would be necessary to construct the proposed project, the potential for impacts to archaeological resources is considered to be less than significant. c) The project site is identified as an area of low potential for paleontological resources in the City's General Plan EIR. Based on the level of previous disturbance to the site and the relatively minor amount of additional grading for the proposed project, the potential for impacts to paleontological resource or is considered to be less than significant. No unique geologic features are present on the site. d) No human remains are anticipated to be present within the impact area of the project. l\fitigation: No mitigation measures are required. VI. GEOLOGY AND SOILS -- Would the project: a) Expose people or structures to potential substantial adverse effects, including the risk of loss, injury or death involving: i. Rupture of a known earthquake fault, as' 0 ,. 0 0 0 . delineated on the most recent Alquist-Priolo Earthquake Fault Zoning Map issued by the State Geologist for the area or based on other substantial e\idence ofa kno\vn fault? 6 ..3 -..3.r . - Less Than Potentially Significant Less Than With Issues: Significant Mitigation Significant No Impact Impact Incorporated Impact ii. Strong seismic ground shaking? 0 0 . 0 iii. Seismic-related ground failure, including 0 0 0 . liquefaction? iv. Landslides? 0 0 0 . b) Result in substantial soil erosion or the loss of 0 0 . 0 topsoil? c) Be located on a geologic unit or soil that is 0 0 . 0 unstable, or that would become unstable as a result of the project, and potentially result in on- or off-site landslide, lateral spreading, subsidence, liquefaction or collapse? d) Be located on expansive soil, creating substantial 0 0 . 0 risks to life or property? e) Have soils incapable of adequately supporting the 0 0 0 . use of septic tanks or alternative wastewater disposal systems where sewers are not available for the disposal of wastewater? Comments: See Mitigated Negative Declaration, Section E. Mitil!ation: No mitigation measures are required. VII. HAZARDS AND HAZARDOUS MATERIALS. Would the project: a) Create a significant h=d to the public or the 0 0 0 . environment through the routine transport, use, or disposal ofh=dous materials? 7 ..3-.3'" Lm Than Potentially Significant Less Than With Issues: Significant Mitigation Significant No Impact Impact Incorporated Impact b) Create a significant hazard to the public or the 0 . 0 0 environment through reasonably foreseeable upset and accident conditions involving the release of hazardous materials into the environment? c) Emit hazardous emissions or handle hazardous or 0 0 0 . acutely hazardous materials, substances, or waste within one-quarter mile of an existing or proposed school? d) Be located on a site which is included on a list of 0 0 . 0 hazardous materials sites compiled pursuant to Government Code section 65962.5 and, as a result, would it create a significant hazard to the public or the environment? e) For a project located within an airport land use 0 0 0 . plan or, where such a plan has not been adopted, within two miles of a public airport or public use airport, would the project result in a safety hazard for people residing or working in the project area? f) For a project within the vicinity of a private 0 0 0 . airstrip, would the project result in a safety hazard for people residing or working in the project area? g) Impair implementation of or physically interfere 0 0 0 . with an adopted emergency response plan or emergency evacuation plan? h) Expose people or structures to a significant risk òf " - P 0 0 . loss, injury or death involving wildland fires, including where wildlands are adjacent to urbanized areas or where residences are intermixed with wildlands? ,.3-..37 8 .--- Less Than Potentially Significant Less Than With Issues: Signifieant Mitigation Significant No Impact Impact Incorpora"d Impact Comments: See Mitigated Negative Declaration, Section E. Mitigation: See Mitigated Negative Declaration, Section F. VIII. HYDROLOGY AND WATER QUALITY. Would the project: a) Result in an increase in pollutant discharges to 0 0 . 0 receiving waters (including impaired water bodies pursuant to the Clean Water Act Section 303(d) list), result in significant alteration of receiving water quality during or following construction, or violate any water quality standards or waste discharge requirements? b) Substantially deplete groundwater supplies or 0 0 . 0 interfere substantially with groundwater recharge such that there would be a net deficit in aquifer volume or a lowering of the local groundwater table level (e.g., the production rate of pre-existing nearby wells would drop to a level which would not support existing land uses or planned uses for which permits have been granted)? Result in a potentially significant adverse impact on groundwater quality? c) Substantially alter the existing drainage pattem of the 0 0 . 0 site or area, including through the alteration of the course of a stream or river, in a manner, which would result in substantial erosion or siltation on- or off-site? d) Substantially alter the existing drainage pattem of the. 0 0 . 0 site or area, including through the alteration of the' , course of a stream or river, substantially increase the rate or amount of surface runoff in a manner which would result in flooding on- or off-site, or place structures within a lOa-year flood hazard area which would impede or redirect flood flows? 9 ..3-.3-i Less Than Potentially Significant Less Than With Issues: Significant Mitigation Significant No Impact Impact Incorporated Impact e) Expose people or structures to a significant risk of 0 0 0 . loss, injury or death involving flooding, including flooding as a result of the failure of a levee or dam? f) Create or contribute runoff water, which would 0 0 0 . exceed the capacity of existing or planned stormwater drainage systems or provide substantial additional sources of polluted runoff? Comments: See Mitigated Negative Declaration, Section E. Miti!!atiou: No mitigation measures are required. IX. LAND USE AND PLANNING. Would the project: a) Physically divide an established community? 0 0 0 . b) Conflict with any applicable land use plan, policy, or 0 0 0 . regulation of an agency with jurisdiction over the project (including, but not limited to the general plan, specific plan, local coastal program, or zoning ordinance) adopted for the purpose of avoiding or mitigating an environmental effect? c) Conflict with any applicable habitat conservation 0 0 0 . plan or natural community conservation plan? 10 ..3-39 Less Than Significant Potentially With Less Than Issues: Significant Mitigation Significant No Impact Impact Incorporated Impact Comments: a) The proposed commercial project would be consistent with the character of the surrounding area am!, therefore, would not disrupt or divide an established community. b) The project site is within the CCP (Central Commercia1JPrecise Plan) Zone and CR (Commercial Retail) General Plan designations, within the Montgomery Specific Plan and Southwest Redevelopment Area. The project has been found to be consistent with the applicable zoning regulations, General Plan and Montgomery Specific Plan. c) The project would not conflict with any applicable adopted environmental plans or policies. Fwihennore, the project would not encroach into or indirectly affect the Habitat Preserve area of the adopted Chula Vista MSCP Subarea Plan. Mitioation: No mitigation measures are required. X. MINERAL RESOURCES. Would the project a) Result in the loss of availability of a known mineral 0 0 0 . resource that would be of value to the region and the residents of the state? b) Result in the loss of availability of a locally 0 0 0 . important mineral resource recovery site delineated on a local general plan, specific plan or other land use plan? Comments: a) The proposed project would not result in the loss of availability of a known mineral resource of value to the region or the residents of the State ofCalifomia. b) Pursuant to the Environmental Impact Report for the City of Chula\/ïsta General Plan, the State of Cali fomi a Department of Conservation has not designated the project site for mineral resource protection. Miti!!ation: No mitigation measures are required. 11 ...3-40 Less Than Potentially Significant Less Than With Issues: S;gnificant Mitigation S;gnificant No Impact Impact Incorporated Impact XI. NOISE. Would the project result in: a) Exposure of persons to or generation of noise levels 0 . 0 0 in excess of standards established in the local general plan or noise ordinance, or applicable standards of other agencies? b) Exposure of persons to or generation of excessive 0 0 0 . groundbome vibration or groundborne noise levels? c) A substantial permanent increase in ambient noise 0 . 0 0 levels in the project vicinity above levels existing without the project? d) A substantial temporary or periodic increase in 0 0 . 0 ambient noise levels in the project vicinity above levels existing without the project? e) For a project located within an airport land use plan 0 0 0 . or, where such a plan has not been adopted, within two miles of a public airport or public use airport, would the project expose people residing or working in the project area to excessive noise levels? f) For a project within the vicinity of a private airstrip, 0 0 0 . would the project expose people residing or working in the project area to excessive noise levels? 12 J-4( Less Tban Potentially Significant Less Tban With Issues: Significant Mitigation Significant No Impact Impact Incorporated Impact Comments: a, c and d) See Mitigated Negative Declaration, Section E. b) It is not anticipated that persons will be exposed to excessive groundbome vibration or noise levels, as there will not be any heavy industrial equipment or machinery operated on-site beyond short-term construction activities. e) The project is not located within an airport land use plan nor within two miles of a public airport or public use airport; therefore, the project would not expose people workiog on-site to excessive noise levels. 1) The project is not located within the vicinity of a private airstrip; therefore, the project development would not expose people workiog on-site to excessive noise levels. Mitigation: See Mitigated Negative Declaration, Section F. XII. POPULATION AND HOUSING. Would the project: a) Induce substantial population growth in an area, 0 0 0 . either directly (for example, by proposing new homes and businesses) or indirectly (for example, through extension of road or other infrastructure)? b) Displace substantial numbers of existing housing, 0 0 0 . necessitating the construction of replacement housing elsewhere? c) Displace substantial numbers of people, 0 0 0 . necessitating the construction of replacement housing elsewhere? 13 ..3 - c¡ 2.. Less Than Potentially Significant Less Than With Issues: Significant Mitigation Significant No Impact Impact Ineorporated Impact Comments: a~)No residential development is proposed that would induce substantial population growth in the area or require substantial infrastructure improvements. No permanent housing exists on the project site and no displacement of housing or person would occur as a result of the proposed project. Based upon the size and nature of the proposal, no population growth inducement is anticipated. The project is an allowable retail use per the Zoning Ordinance and is in compliance with the General Plan and the Montgomery Specific Plan. Mitil!ation: No mitigation measures are required. XIII. PUBLIC SERVICES. Would the project: Result in substantial adverse physical impacts associated with the provision of new or physically altered governmental facilities, need for new or physically altered governmental facilities, the construction of which could cause significant environmental impacts, in order to maintain acceptable service ratios, response times or other performance objectives for any public services: a. Fire protection? 0 0 0 . b. Police protection? 0 0 0 . c. Schools? 0 0 0 . d. Parks? 0 0 0 . e. Other public facilities? 0 0 0 . 1-+ ~- c/3 Less Than Potentially Significant Less Than With Issues: Significant Mitigation Significant No Impact Impact Incorporated Impact Comments: a) According to the Fire Department, adequate [¡re protection services can continue to be provided to the site without an increase of equipment or personnel. The Fire Department's estimated time of arrival is within 5 minutes. The applicant is required to submit plans for a [¡re sprinkJer system prior to building construction and is required to comply with the Fire Department policies for new building construction. As of July 2003, the remodeling of Fire Station 4 and as of September 2003, the opening of new Fire Station 7 on the eastern side of the City have improved fITe services and response times throughout the City. The proposed project would not have a significant effect upon or result in a need for new or altered fire protection services. The proposed project would not have a significant effect upon or result in a need for new or altered fITe protection services. The City performance objectives and thresholds will continue to be met. b) . According to the Police Department, adequate police protection services can continue to be provided upon completion of the proposed project. The proposed project would not have a signi[¡cant effect upon or result in a need for substantial new or a1tered police protection services. The City perfonnance objectives and thresholds will continue to be met. c) The proposed project would not induce population growth; therefore, no signi[¡cant adverse impacts to public schools would result. Furthermore, the applicant would be required to pay the statutory building permit school fees for the proposed new commercial building. d) Because the proposed project would not induce population growth, it would not induce signi[¡cant population growth and thus not create a demand for neighborhood or regional parks or facilities or impact existing park facilities. e) The proposed project would not have a signi[¡cant effect upon or result in a need for new or expanded governmental services and would continue to be served by existing public infrastructure. XIV. RECREATION. Would the project: a) Increase the use of existing neighborhood and 0 0 0 . regional parks or other recreational facilities such that substantial physical deterioration of the facility wou1d occur or be accelerated? b) Does the project include recreational facilities or 0 0 0 . require the construction or expansion of recreational facilities, which have an adverse physical effect on the environmentO 15 ~ - t./'-I .-- - .-. Less Than Potentially Significant Less Than With Issues: Significant Mitigation Significant No Impact Impact Incorporated Impact Comments: a) Because the proposed project would not induce population growth, it would not create a demand for neighborhood or regional parks or facilities nor impact existing neighborhood parks or recreational facilities. b) The project does not include the construction or expansion of recreational facilities. According to the Parks and Recreation Element of the General Plan, the project site is not planned for any future parks and recreation facilities or programs. Miti2ation: No mitigation measures are required. XV. TRANSPORTATION / TRAFFIc. Would the project: a) Cause an increase in traffic, which is substantial in 0 0 . 0 relation to the existing traffic load and capacity of the street system (i.e., result in a substantial increase in either the number of vehicle trips, the volume to capacity ratio on roads, or congestion at intersections)? b) Exceed, either individually or cumulatively, a level 0 0 0 . of service standard established by the county congestion management agency for designated roads or highways? c) Result in a change in air traffic patterns, including 0 0 0 . either an increase in traffic levels or a change in location that results in substantial safety risks? d) Substantially increase hazards due to a design 0 . 0 0 feature (e.g., sharp curves or dangerous intersections) or incompatible uses (e.g., farm equipmentt J- cis- 16 Less Than Potentially Significant Less Than With Issues: Significant Mitigation Significant No Impact Impact Incorporated Impact e) Result in inadequate emergency access? 0 0 0 . f) Result in inadequate parking capacity? 0 0 0 . g) Conflict with adopted policies, plans, or programs 0 0 0 . supporting alternative transportation (e.g., bus tumouts, bicycle racks)? Comments: See Mitigated Negative Declaration, Section E. Mitigation: See Mitigated Negative Declaration, Section F. XVI. U~ITIES AND SERVICE SYSTEMS. Would the project: a) Exceed wastewater treatment requirements of the 0 0 0 . applicable Regional Water Quality Control Board? b) Require or result in the construction of new water or 0 0 0 . wastewater treatment facilities or expansion of existing facilities, the construction of which could cause significant environmental effects? c) Require or result in the construction of new storm 0 0 0 . water drainage facilities or expansion of existing facilities, the construction of which could cause significant environmental effects? d) Have sufficient water supplies available to serve the 0 0 0 . project from existing entitlements and resources, or are new or expanded entitlements needed? 17 ..3-~Cø Less Than Potentially Significant Less Than With Issues: Significant Mitigation Significant No Impact Impact Incorporated Impact e) Result in a detennination by the wastewater 1reatment 0 0 0 . provider, which serves or may serve the project that it has adequate capacity to serve the project's projected demand in addition to the provider's existing conmritments? f) Be served by a landfill with sufficient permitted 0 0 . 0 capacity to accommodate the project's solid waste disposal needs? g) Comply with federal, state, and local statutes and 0 0 . 0 regulations related to solid waste? 18 ..3- ~7 Less Tban Potentially Significant Less Than With Issues: Significant Mitigation Significant No Impact Impact Incorporated Impact Comments: a) The project site is located within an urban area that is served by all necessary utilities and service systems. No exceedance of wastewater requirements ofthe Regional Water Quality Control Board would result from the proposed project. b) See XVLa. No construction of new water or wastewater treatment facilities or the expansion of existing facilities would be necessary. c) No construction of new stonn drainage facilities or expansion of existing facilities would be necessary. d) The project site is within the potable water service area of the Sweetwater Authority. Pursuant to correspondence from the Sweetwater Authority, the project may be serviced from existing potable water . mains. No new or expanded entitlements are anticipated for the proposed project. e) See XVLa. and b. f) The City of Chula Vista is served by regional landfills with adequate capacity to meet the solid waste needs of the region in accordance with State law. g) The proposal would comply with federal, state and local regulations related to solid waste. Miti!!ation: No mitigation measures are required. XVII. THRESHOLDS Will the proposal adversely impact the City's Threshold Standards? A) Librarv 0 0 0 . The City shall construct 60,000 gross square feet (GSF) of additional library space, over the June 30, 2000 GSF total, in the area east of Interstate 805 by bui1dout. The construction of said facilities shall be phased such that the City will not fall below the city- wide ratio of 500 GSF per 1,000 popu1ation. Library facilities are to be adequately equipped and staffed. ...3-t./r¡ 19 Less Than Potentially Signifieant Less Than With Issues: Significant Mitigation Significant No Impact Impact Incorpo'"ted Impact B) Police 0 0 . 0 a) Emergency Response: Properly equipped and staffed police units shall respond to 81 percent of "Priority One" emergency calls within seven (7) minutes and maintain an average response time to all "Priority One" emergency calls of 5.5 minutes or less. b) Respond to 57 percent of "Priority Two" urgent calls within seven (7) minutes and maintain an average response time to all "Priority Two" calls of 7.5 minutes or less. C) Fire and Emergencv Medical 0 0 . 0 Emergency response: Properly equipped and staffed fire and medical units shall respond to calls throughout the City within 7 minutes in 80% of the cases (measured annually). D) Traffic 0 0 . 0 The Threshold Standards require that all intersections must operate at a Level of Service (LOS) "C" or better, with the exception that Level of Service (LOS) "D" may occur during the peak two hours of the day at signalized intersections. Signalized intersections west on-805 are not to operate at a LOS below their 1991 LOS. No intersection may reach LOS "E" or "F" during the average weekday peak hour. Intersections of arterials with freeway ramps are exempted ITom this Standard. E) Parks and Recreation Areas 0 0 0 . The Threshold Standard for Parks and Recreation is 3 acres .. of neighborhood and community parkland with appropriate facilities/l ,000 population east on-805. F) Drainage 0 0 . 0 The Threshold Standards require that storm water flows and volumes not exceed City Engineering Standards. Individual projects will provide necessary improvements consistent with the Drainage Master Planes) and City Engineering Standards. 20 ...3 - c/ 'f Less Than Potentially Significant Less Than With Issues: Significon! Mitigation Significant No Impact Impact Incorporated Impact G) Sewer 0 0 . 0 The Threshold Standards require that sewage flows and volumes not exceed City Engineering Standards. Individual projects will provide necessary improvements consistent with Sewer Master Planes) and City Engineering Standards. H) Water 0 0 . 0 The Threshold Standards require that adequate storage, trea\I11ent, and transmission facilities are cons1ructed concurrently with planned growth and that water quality standards are not jeopardized during growth and cons1ruction. Applicants may also be required to participate in whatever water conservation or fee offset program the City of Chu1a Vista has in effect at the time of building permit issuance. 21 oJ - ~-Z¡ Less Than Potentially Significant Less Than With Issues: Significant Mitigation Significant No Impact Impact Incorporated Impact Comments: a) The project is not a housing development; therefore, no impacts to library facilities would result. No adverse impact to the City's Library Threshold standards would occur as a result of the proposed project. b) According to the Police Department, adequate police protection services can continue to be provided upon completion of the proposed project. The proposed commercial retail project would not have a significant effect upon or result in a need for substantial new or altered police protection services. No adverse impact to the City's Police Threshold standards would occur as a result of the proposed project. c) According to the Fire Department, adequate fife protection and emergency medical services can continue to be provided to the site. As of July 2003, the remodeling of Fire Station 4 and as of September 2003, the opening of new Fire Station 7 on the eastem side of the City have improved fife services and response times throughout , the City. The proposed project would not have a significant effect upon or result in a need for new or altered fife protection services. No adverse impact to the City's Fire and Emergency Medical Threshold standards would occur as a result of the proposed project. d) According to the Traffic Engineering Section, with the addition of projected generated traffic, all roadway segments and intersections within the study area are estimated to continue to operate at level of service "C" or better in compliance with the City's Traffic Threshold Standards. e) Because the project site is located west of Interstate 805, this Threshold Standard is not applicable. f) A drainage study will be prepared in conjunction with the fmal grading and improvement plans and drainage facilities designed in accordance with the Drainage Master Plan(s) and City Engineering standards will be installed at the time of site development. The applicant proposes new and improved drainage facilities incorporated within the project site. No adverse impacts to the City's storm drainage system or City's Drainage Threshold standards will occur as result of the proposed project. g) The sewer facilities serving the project site consist of a l2-inch sewer line running westerly along Naples Street and an l2-inch sewer line running southerly along Third Avenue on the west side of the project site. The Engineering Department has determined that these facilities are adequate to serve the proposed project. No new sewer facilities are anticipated to be required and no adverse impacts to the City's Sewer Threshold standards will occur as a result of the proposed project. h) Pursuant to correspondence received ITom the Sweetwater Authority, dated December 3, 2003, there is a 18- inch water main located on the east side of Third Avenue, and there are currently five existing %-inch domestic water services currently serving the project site. Project impacts to the Authority's storage, treatment, and transmission facilities would be less than significant. J-~I 22 ._-- Less Than Potentially Significant Less Than With Issues: Significant Mitigation Significant No Impact Impact Incorporated Impact XVIII. MAJ'IDATORY FINDINGS OF SIGNIFICANCE a) Does the project have the potential to degrade the 0 0 0 . quality of the environment, substantially reduce the habitat of a fish or wildlife species, cause a fish or wildlife population to drop below self-sustaining levels, threaten to eliminate a plant or animal community, reduce the number or restrict the range of a rare or endangered plant or animal or eliminate important examples of the major periods of California history or prehistory? b) Does the project have impacts that are individually 0 0 0 . limited, but cumulatively considerable? ("Cumulatively considerable" means that the incremental effects of a projecÎ are considerable when viewed in connection with the effects of past projects, the effects of other current project, and the effects of probable future projects.) c) Does the project have environmental effects, which 0 0 0 . will cause. substantial adverse effects on human beings, either directly or indirectly? Comments: a) The project site is currently developed, is located within an established urbanized area, and is within the designated development area of the adopted Chula Vista MSCP Subarea Plan. There are no known sensitive plant or animal species or cultural resources on the site. b) As described in the Mitigated Negative Declaration, significant direct project impacts would be mitigated to below a level of significance through the required mitigation measures. Nocumw~velycoosiderable impacts associated with the project when viewed in connection with the effects of past projects, other current projects and probable future projects have been identified and none are contemplated. c) See the "Hazards and Hazardous Materials" discussion in 'Section E of the Mitigated Negative Declaration; potential impacts associated with the demolition of existing buildings and improvements. potentially containing lead-based paint and asbestos-containing materials would be mitigated to below a level of significance. 23 ..3 - oS õ1.. 12/23/200"3 TUE10:10 FAX 4!}002 XIX. PROJECT REVISIONS OR MITIGATION MEASURES: Project mitigation mcasures are contained in Section F, Mitigation Necessary to Avoid Significant Impacts, and Table 1, Mitigation Monitoring and Reporting Program, of Mitigated Negative Declaration IS-O4-01 O. XX. AGREEMENT TO IMPLEMENT MITIGATION MEASURES By signing the linc(s) provided below, the Applicant and/or Operator stipulate that thcy have each read, understood and have their respective company's authority to and do agree to the mitigation measures contained herein, and will implement same to the satisfaction ófthe Environmental Review Coordinator. Failure to sign below prior to posting ofthis Mitigated Negative Declaration with the County Clerk shall indicate the Applicant and/or Operator's desire that the Project be held in abeyance without approval and that the Applicant and/or Operator shan apply for an Environmental Impact Report 15 r~ ~_.-o '" - ~(L-¡;' r(2.«,,\P~~"\ Printed Name and Title of Applicant (or authori7.cd reprc entativc) )'}-d---S-D~ Date Printed Name and Title of Operator (if different from Applicant) Signature of Operator Datc (if different from Applicant) 24 .,J-$..3 XXI. ENVIRONMENTAL FACTORS POTENTIALLY AFFECTED: The environmental factors checked below would be potentially affected by this project, involving at least one impact that is a "Potentially Significant Impact" or "Potentially Significant Unless Mitigated," as indicated by the checklist on the previous pages. 0 Land Use and Planning . T ransporta ti 0 nIT raffi c 0 Public Services 0 Population and Housing 0 Biological Resources 0 Utilities and Service Systems 0 Geophysical 0 Energy and Mineral 0 Aesthetics Resources 0 Agricultural Resources 0 Hydrology/Water . Hazards and Hazardous 0 Cultural Resources Materials 0 Air Quality . Noise 0 Recreation 0 Paleontological 0 Mandatory Findings of Significance Resources 25 ..J - ~-Z¡ .-- - XXII. DETERMINATION: On the basis of this initial evaluation: I find that the proposed project could not have a significant effect on the 0 environment, and a Negative Declaration will be prepared. I find that although the proposed project could have a significant effect on the . environment, there will not be a significant effect in this case because the mitigation measures described on an attached sheet have been added to the project. A Mitigated Negative Declaration will be prepared. I find that the proposed project may have a significant effect on the environment, 0 and an Environmental Impact Report is required. I find that the proposed project may have a significant effect(s) on the environment, but 0 at least one effect: 1) has been adequately analyzed in an earlier document pursuant to applicable legal standards, and 2) has been addressed by mitigation measures based on the earlier analysis as described on attached sheets, if the effect is a "potentially significant impacts" or "potentially significant unless mitigated." An Environmental Impact Report is required, but it must analyze only the effects that remain to be addressed. 0 I find that although the proposed project could have a significant effect on the environment, there will not be a significant effect in this case because all potentially significant effects (a) have been analyzed adequately in an earlier EIR pursuant to applicable standards and (b) have been avoided or mitigated pursuant to that earlier ErR, including revisions or mitigation measures that are imposed upon the proposed project. An addendum has been prepared to provide a record of this detennination. ~~~2' Il~¥f arilyn .F. Ponseggi 'Date Environmental Review Coordinator City of Chula Vista 0 J:lPlanningIMARlA\Initial Study\lS-O4-10Checklistdoc J-SS' 26 ATTACHMENT 3 NOTICE OF PUBLIC HEARING BY THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA NOTICE IS HEREBY GIVEN that, pursuant to California Redevelopment Law Health and Safety Code Sections 33431 and 33433, the Redevelopment Agency of the City of Chula Vista will hold a public hearing to consider a Mitigated Negative Declaration (IS- 04-010), and a Disposition and Development Agreement (DDA) with 3rd and Naples, LLC, for the acquisition, disposition, and development of a 14,360 square foot Walgreen's retail store with drive thru pharmacy and associated parking at the southeast corner of Third Avenue and Naples Street. The 1 .20-acre project site is located at 1101 Third Avenue, 293 Naples Street, 1105 Third Avenue, 1109 Third Avenue, 1121 Third Avenue, and 1123 Third Avenue within the Southwest Redevelopment Project Area, which is under the jurisdiction of the Redevelopment Agency of the City of Chula Vista. SAID PUBLIC HEARING WILL BE HELD BY THE REDEVELOPMENT AGENCY ON TUESDAY, MARCH 16, 2004 AT 6:00 P.M., FOLLOWING THE CITY COUNCIL MEETING IN THE COUNCIL CHAMBERS, WHICH IS LOCATED IN THE PUBLIC SERVICES BUILDING, CIVIC CENTER, 276 FOURTH AVENUE, CHULA VISTA, AT WHICH TIME ANY INTERESTED INDIVIDUAL MAY APPEAR. Copies of the related documents and a summary of the proposed transaction as required by Health and Safety Code Section 33433 are on file in the City's Community Development Department. You may present any information on this matter at the public hearing or in written correspondence delivered to the Community Development Department, 276 Fourth Avenue, Chula Vista 91910, at or prior to the public hearing. Any petitions to be submitted to Agency must be received by the Community Development Department no later than 5:00 p.m. one (1) day prior to the hearing date. If you wish to challenge Agency's action on this matter, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to Agency at or prior to the public hearing. If you have any questions or need additional information, please call Project Manager Miguel Z. Tapia at 691-5291. COMPLIANCE WITH THE AMERICANS WITH DISABILITIES ACT (ADA) The Redevelopment Agency of the City of Chula Vista, in complying with the Americans with Disabilities Act (ADA), requests individuals who require special accommodations to access, attend and/or participate in an Agency meeting, activity or service, request such accommodations at least 48 hours in advance for meetings, and five days for scheduled services and activities. Please contact Linda Welch for specific information at (619) 691-5047. ...3 - t)-G.. --. ATTACHMENT 4 ~\f? Design Review Committee :--..- ~- NOTICE OF DECISION OlY OF CHULA VISTA DRC 04-26, Walgreen's Notice is hereby given that the City of Chula Vista Design Review Committee has considered DRC 04-26, a request by Evergreen Devco for Design Review approval for a Walgreen's store at the southeast corned of Third Ave. and Naples Street in Chula Vista, Ca.. The Environmental Review Coordinator has reviewed the proposed project for compliance with the California Environmental Quality Act (CEQA), and has conducted an Initial Study, IS-04- 010, in accordance with CEQA. Based on the results of the Initial Study, the Environmental Review Coordinator has determined that the project could result in significant effects on the environment. However, revisions to the project made by or agreed to by the applicant would avoid the effects or mitigate the effects to a point where clearly no significant effects would occur; therefore, the Environmental Review Coordinator has prepared a Mitigated Negative Declaration, IS-04-010. The Committee approved said request based upon the following findings of facts: 1. That the proposed development is consistent with the development regulations of the Central Commercial (CC-P) Zone. 2. The design features of the proposed development are consistent with, and are a cost effective method of satisfying, the City of Chula Vista Design Manual and Landscape Manual. Conditions of Approval The following conditions of approval shall be satisfied prior to issuance of the first building permit for the project, or as specified in the condition: 1. The applicant shall implement to the satisfaction of the Planning and Building Department, City Engineer, and the Environmental Review Coordinator all pertinent mitigation measures, identified in the Walgreen's Pharmacy Mitigated Negative Declaration (IS-04-01O) and Mitigation Monitoring and Reporting Program. 2. Prior to the delivery of combustible materials to the site, comply with the requirements of the Chula Vista Fire Department Standard Operating Guidelines for new construction, to the satisfaction of the City Fire Marshall. A separate submittal for fire sprinklers and alarms will be required. Contact the Fire Department (409-5843) for fire hydrant and PIV/FDC locations. ...3-~, Notice of Decision 2 February 16, 2004 DRC 04-26 3. Obtain approval of grading plans, a grading permit, and improvement plans to the satisfaction of the City Engineer. Permanent storm water runoff treatment devices shall be installed to comply with current NPDES rules and regulations. 4. A street dedication of2 ft., as depicted on the DRC site plan, is required along the Third Ave. project ftontage. 5. A lot line consolidation plat shall be required to eliminate multiple lot lines within the site. 6. Obtain a construction permit ftom the Engineering Division to perform any work performed in the City's Right-of-way. 7. Vehicular movements in and out of the proposed driveway along Naples Street shall be limited to right turn in and right turn out only. 8. Obtain approval of Conditional Use Permit PCC-04-26 prior to installation of any roof-mounted satellite dishes. 9. Obtain approval of a solid waste and recycling program, solid waste and recycling bins, and design of trash enclosures, to the satisfaction of the City Conservation Coordinator. In the event that the Conservation Coordinator determines that additional trash enclosures are required, the applicant shall prepare a revised site plan showing these enclosures in relation to the landscaping, parking, building, walkways, etc. The trash enclosure construction details and a revised site plan shall be resubmitted to the Planning & Building Department for review and approval. 10. Obtain approval of sign permit(s) for the proposed monument and walls signs. Any substantial revision of the signage requires submittal and approval of a revised site plan and elevations by the Zoning Administrator. 11. Provide one vehicle loading parking space per C.V.M.C. standards. The loading space shall be lOft. wide by 25 ft. long with 14 feet of vertical clearance. The loading space shall be located on the east side of the building, north of the receiving door, and shall not obstruct the 15 ft. wide driveway designated for vehicle access for the drive-thru pharmacy. 12. Provide a detailed landscape plan for review and approval with the building permit submittal per code requirements. The detailed landscape plans shall include the following changes ftom the landscape concept plan: a.) Add tree grates and trees between the parking lot and walkway adjacent to the north elevation of the building. b.) Add screen planting on the perimeter of the site between the parking lot and the existing grocery/produce market on Naples Street. Planting shall be .3 - $"~ Notice of Decision 3 February 16, 2004 DRC 04-26 designed to limit height to 42 inches within 15 feet of the sidewalk so as not to obstruct sight visibility for vehicles entering Naples Street. c.) Relocate the street trees to the triangular tree cutouts shown within the parking areas along Third Avenue and Naples Street. The exact tree location shall be determined during plan review during the building permit submittal process. d.) Provide canopy tree forms in all parking lot planter islands. e.) Add enhanced paving pedestrian connection from Naples Street and Third Ave. to the building entry. Pedestrian connections must also comply with ADA and Handicapped accessibility requirements. 13. Prior to, or in conjunction with the issuance of each building permit, pay all applicable fees, including permit processing and development impact fees. 14. A composite lighting plan shall be submitted and approved to the satisfaction of the Planning & Building Department and Chula Vista Police Department (CVPD) prior to issuance of the first building permit. Lighting shall be shielded to minimize spillover onto adjacent properties. 15. Submit revised site plan and elevations showing the following: a. Add an arcade with a covered pedestrian walkway on the Third Street facade to match the arcade on the Naples Street facade. b. Wrap parapet walls on north and west elevations into the center of the building on the east and south elevations. c. Addition of the trash/recycling enclosure as specified in condition #9. The following conditions of approval will remain in effect after use or occupancy of the project has commenced: 16. Prior to, or in conjunction with the issuance of each building permit, pay all applicable fees, including permit processing and development impact fees. 17. Hours of operation of outdoor trash compactor, if approved by the Conservation Coordinator, shall be limited to Monday 8 am to 8 pm, seven days a week. 18. The monument sign at the intersection of Third Ave. and Naples street shall maintain sight visibility requirement as determined by the City Engineer. 19. This Design Review Permit shall become void and ineffective if not utilized within one year from the effective date thereof, in accordance with Section 19.14.260 ofthe Municipal Code. 20. The property owner and Applicant shall execute this docurnent by signing the lines provided below, said execution indicating that the property owner and Applicant have each read, understood and agreed to the conditions contained herein. Upon execution, this document shall be recorded with the County Clerk .3-.s-e¡ ---- Notice of Decision 4 February 16, 2004 DRC 04-26 of the County of San Diego, at the sole expense of the Applicant, and a signed stamped copy returned to the Planning and Building Department. Failure to return a signed copy and stamped copy of this recorded document within thirty days of recordation to the Planning and Building Department shall indicate the applicant's desire that the Project be held in abeyance without approval. Said document shall also be on file in the City Clerk's office and as Document No._. Signature of Representative of Property Owner Date Signature of Representative of Applicant Date H:\Planning\Richard Z\DRC-04-26 notice of dec.doc ...3-'0 -.- ATTACHMENT 5 Design Review Committee -2 Minutes February 16, 2004 E. PUBLIC HEARING: 1. DRC-04-26 Evergreen Devco. Inc. Walgreens Retail Store and Pharmacy 1101 Third Ave, 1105-A&B, 1109 Third Ave. - A &B 1121 Third Ave, 1123 Third Ave, and 293 Naples St. Approval of a site plan and architectural review for a 14,360 SQ. ft" 1-story, 33-ft. hiQh Walqreens Retail Store, which includes a drive-thru pharmacv, 58 parkinq spaces, and an 8-ft. hiqh monument siqn. Staff Presentation: Mr. Richard Zumwalt, Associate Planner stated that the project is located at 1101 Third Avenue and is on the southeast corner of Naples Street and Third Ave. The applicant is proposing demolition of five existing on-site structures and the construction of a one-story 33-ft. high Walgreens Retail Store. A drive-thru pharmacy will be located along the south side of the building, and an 8-ft. high monument sign. On-site improvements also include landscaping; a 6-foot high masonry wall along the eastern and southern site boundaries, and an 8-foot high masonry screen wall around trash bins and trash compactors along the east side of the building. Mr. Zumwalt noted that months earlier the Design Review Committee reviewed a preliminary design, which would have placed the building close to the northwest corner of the lot. Difficulties in acquiring all the land necessary to make that design work forced the applicant to design the project as proposed. Although staff is disappointed that a more urban design is not feasible, they believe that this design is acceptable. Staff mentioned that there were a couple of minor changes to the conditions of approval as follows: . Condition 9 would be amended to strike the word trash compactor and/or . A new condition 17 would be added to state: Prior to or in conjunction with the issuance of each building permit pay all applicable fees including permit processing and development impact fees. STAFF RECOMMENDATION: That the Design Review Committee approve of DRC-04-26 subject to the conditions noted in the draft Notice of Decision, and adopt the Mitigated Negative Declaration IS-04-010. Applicant Presentation: Mr. Kim Petersen, with Kim Petersen Properties stated that the project was really a joint venture between his company and Evergreen Dev Co, which is a Walgreens, preferred developer. Mr. Petersen gave a brief history of the project, which actually started in February 2002. He discussed the issues with respect to site design, acquisition of parcels and the condemnation efforts of the corner parcel that was approximately 6,000 sq. ft. of the 52,000 sq. ft. land being assembled. J :\HOME\PLANNING\ROSEMARI E\DRC\MIN-2-16-04 ...3-Cø( Design Review Committee -3 Minutes Februarv 16. 2004 They would be going before the City Council, sometime in March 2004, with respect to the Resolution of Necessity and the DDA Agreement that his company is signing with the city in order to condemn and the develop the site. Mr. Petersen talked about the economic impact of the project noting that it will generate $500,000 in sales tax revenue and employ 25 to 30 employees. In addition, it will also generate $45,000 a year in incremental tax revenue for the city. Mr. Petersen noted that with regard to the location of the building on the site plan, this design was the best solution because of the components that made up this site. Mr. Mike Ord with Evergreen Devco (2920 E. Camelback Road, Ste. 100, Phoenix, AZ 85016) commented that he would like to thank Rich Zumwalt and the Planning Staff for their input because he felt their input has made this a better development. He remarked that they were excited to be a part of this development because it was in a redevelopment area and they felt like they would be improving the immediate project area. COMMITTEE DISCUSSION: Member Mestler commented that she did not see where the applicant had addressed any lighting issues with the adjacent neighbors. Mr. Zumwalt responded that lighting standards were indicated on the site plan. He believed that adjacent to the residential there was wall mounted lighting. Mr. Ord remarked that the site plan does show lighting but they are shielded wall mounted lights on the back of the store that cast light downward and not into the adjacent residences. Vice Chair Aguilar noted staffs remarks concerning the design of the project and how the difficulty in acquiring all the land necessary to make the design work forced the applicant to design the proposed project. Originally when the DRC had reviewed the project, at a preliminary review, they had looked at a design with the building oriented more to the corner. She asked how staff had made the determination that in their view this design was acceptable. Mr. John Schmitz, Principal Planner responded that once it became apparent that the northeast portion could not be included on the site, staff did sit down with tracing paper and the applicant and went over other designs still trying to retain the building on the corner. However, that concept did not work out because either delivery areas became a problem, or access to and from the site became a problem. This was the only feasible way to make all the features of the site come together. Vice Chair Aguilar noted that in the staff report it mentioned that the required landscape front yard buffer is 15-ft. but the proposed project only has a 14-ft. front yard landscape buffer she asked that staff explain why. Mr. Zumwalt explained that in order to meet the minimum depth for parking and driveways a 14-ft. landscape buffer was as wide as they could get. J :\HOME\PLANNI NG\ROSEMARIE\ORC\MI N-2-16-04 J-G>;1." Design Review Committee -4 Minutes Februarv 16. 2004 Chair Araiza asked the applicant if they were in agreement with the conditions placed by staff with respect to the landscaping and pedestrian access. Mr. Ord responded that they were and would be willing to work with staff to find a solution to those issues. Chair Araiza asked why the walkway depicted along side the building facing Naples Street was not repeated on the Third Avenue side. He felt that Third Avenue was the prominent street and the arcade or walkway was currently oriented towards Naples Street. Mr. Tim O'Neill with Evergreen Devco stated that there wasn't enough room on the property to accommodate the full walkway with ADA access underneath the canopy. What they did in order to compensate was to pick up all of the vertical elements to match the other side of the buildings so visually they felt it was balanced and has a similar affect. Vice Chair Aguilar commented that staff has indicated that the recyciing area will be relocated to the southeast corner. She thought by taking the larger recycling enclosure and moving it over to the corner it would allow some extra width in the drive aisle and would permit the applicant to shift the building. Mr. O'Neill remarked that there wasn't enough room to move the building back. In terms The building had limited square footage to begin with, so to cut any additional square footage from the building would have not made the project possible. Mr. Zumwalt also noted that in that area that Vice Chair Aguilar was referring to staff required a 1 a-ft. by 25-ft. long loading space, so there really wasn't any room to sacrifice the loading space. Public Hearing Opened: 5:05 p.m. Public Testimony: Mr. Amin Kakayi (287 Naples Street, Chula Vista, CA) owner of the adjacent property commented that the wall between the two businesses and his driveway was too high 'and would impact the visibility of people entering and exiting from his business. Chair Araiza thought that it would be better if the wall were lowered adjacent to Mr. Kakayi's driveway in order to maintain the visibility. He suggested that the issue could be worked out between staff and the applicant. Mr. Ord stated that initially there was no wall proposed there, however, staff made it one of the conditions of approval that there be a 6-ft. screen wall. They understood Mr. Kakayi's concern and would be willing to accommodate his request by lowering the wall. Mr. Zumwalt commented that per the Municipal Code, in the front yard setback, the maximum wall height that the applicant is allowed is 42 inches for visibility purposes. In the area that the applicant is referring to staff only asked that they add some kind of screen planting on the perimeter of the site between the parking lot and the existing grocery/produce market on Naples Street. J :IHOMEIPLANNI NGIROSEMARIEIORCIMI N-2-16-Q4 ..3 -G:.ð Design Review Committee -5 Minutes Februarv 16, 2004 Chair Araiza asked that staff keep Mr. Kakayi informed on what staff and the applicant resolve with respect to this issue. Mr. Zumwalt stated that once they have resolved the screening/wall issue with Walgreen's they would be happy contact Mr. Kakayi and inform him of the design that they come up with. Public Hearing Closed: 5:25 p.m. Chair Araiza felt that it was important to turn the arcade around the corner and have it along Third Avenue as well. In his opinion, the area needed was so small that staff should work with the applicant in order to find a way to do it. He felt it would enhance that corner and make the project more attractive. Chair Araiza also remarked that he had concerns with the ends of the parapet walls on the west and north side of the buildings. He thought it would look better if they die into the center of the building in order to visually create more mass and make the design more complete. Vice Chair Aguilar commented that her views were similar to Members Araiza. The reason that they were concerned about making the project look more urban is because Third Avenue is considered a downtown street. It was very important that buildings along Third Avenue address Third Avenue. She felt that the proposed design was a more suburban design. She appreciated the applicant's efforts in developing a project in a redevelopment area and understood how difficult the process could be. With respect to repeating the arcade on the west side, so that it appears that the building addresses Third Avenue, Vice Chair Aguilar also felt that it could be accomplished. The applicant was only about 4-ft. away from having enough space to add the arcade. She asked staff what the regulation was for drive aisles. Mr. Zumwalt stated that the drive aisle requirement was 24-ft. and a parking space depth is 17 -ft. 6-inches. Vice Chair Aguilar suggested if the parking spaces that are perpendicular to Third Avenue could be compact spaces this would give them additional room. It would also help if the foundation planting shown next to the building along Third Avenue were eliminated. Mr. Zumwalt commented that from looking at the site plan the landscape strip that she was referring to is 3-feet 4-inches which is pretty close to the 4-feet that they would need in order to accommodate the arcade along Third Avenue. Vice Chair Aguilar thought that it could be done even if staff has to make an exception to the landscape setback, although she would rather see it done in the drive aisles or in the parking spaces. Vice Chair Aguilar commented about the handicapped access path on Third Avenue. She thought that there was a better way to treat that instead of the standard blue-stripped paint on asphalt. In her opinion, if it were made wider with perhaps a covered walkway and J :IHOMEIPLANNINGIROSEMARI EIDRCIMIN-2-16-04 .:3-fø'-/ Design Review Committee -6 Minutes February 16. 2004 enhanced paving it would create more interest and draw people from the street into the project. Vice Chair Aguilar remarked that the intersection of Third and Naples was an important corner and with Walgreens there it's going to be much nicer than it was before. She congratulated the applicants for helping the community to clean up this area of the city. MSC (AraizalAguilar) (3-0-0-1) to adopt Mitigated Negative Declaration IS-04-010. MSC (Araiza\Mestler) (3-0-0-1) to approve DRC-04-26 project subject to the conditions in the draft Notice of Decision with the following amendments: Condition 13. Prior to the issuance of building permits a revised site plan and building elevation shall be submitted to show: A) Extension of the arcade feature along Third Avenue on the west side of the building; B) The relocation of the trash facilities to the southeast corner of the site; C) The ends of the parapet walls on the west and north side of the building shall be wrapped into the center of the building to visually create more mass and finish to that design feature. Condition 14. Prior to the issuance of building permits the applicant shall pay all applicable fees associated with this application. Condition 15. Prior to the issuance of building permits a lighting plan be submitted to confirm that all lighting (especially on the east side of the building) is adequately screened from the adjacent residential properties. Vice Chair Aguilar wanted the record to reflect that there was a second person that spoke outside of the official public hearing indicating approval of the wall along the southern boundary of the property. That resident owns a property directly to the south on Third Avenue. J ;\HOME\PLANNING\ROSEMARIE\ORC\MIN-2-16-04 ..!J - (Ø S" --..- ATTACHMENT 6 SUMMARY REPORT PURSUANT TO SECTION 33433 OF THE CALIFORNIA COMMUNITY REDEVELOPMENT LAW ON A DISPOSITION AND DEVELOPMENT AGREEMENT BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA AND 3RD AND NAPLES, LLC INTRODUCTION The following Summary Report has been prepared pursuant to Section 33433 of the California Health and Safety Code. The report sets forth certain details of the proposed Disposition and Development Agreement (Agreement) between the Redevelopment Agency of the City of Chula Vista ("Agency") and 3rd and Naples, LLC ("Developer"). The Agreement provides for the Agency's sale of the site to the Developer, and for the Developer to develop the site with the proposed Project. The Project site, which is the subject matter of this Agreement, is approximately 1.20 acres of land and consists of six (6) separate parcels. The Developer has secured ownership to two parcels, and has a contract to acquire fee title to another two parcels. However, the Developer has been unsuccessful in carrying out negotiations with property owners to acquire fee title to parcels located at 293 Naples Street and 1101 Third Avenue, which are necessary to assemble the Project site. As a result, the Developer requested Agency to acquire fee title to the subject properties either by negotiation or by consideration of eminent domain. Since then, Agency has presented an offer at fair market value to acquire the affected properties. To date, Agency has not received a counter offer or response from the affected property owners. Agency continues to negotiate in good faith with the property owners for a mutually agreed upon acquisition price for the subject parcels necessary to develop the Project. The Project site is located at 1101 Third Avenue, 293 Naples Street, 1105 Third Avenue, 1109 Third Avenue, 1121 Third Avenue, and 1123 Third Avenue, within the Southwest Redevelopment Project Area. The Agreement requires the Developer to construct a 33-foot single story, 14,360 square foot Walgreen's retail store with drive thru pharmacy, and associated parking at the southeast corner of Third Avenue and Naples Street. This Summary Report is based upon information contained within the Agreement, and is organized into the following seven sections: Salient Points of the AQreement: This section includes a description of the Project, and the major responsibilities imposed on the Developer and the Agency by the Agreement. ..,,3 - Go Go. ._-- Cost of the Aareement to the Aaencv: This section details the total net cost to the Agency associated with implementing the Agreement. Estimated Value of the Interests to be Conveyed Determined at the Hiahest Use Permitted Under the Redevelopment Plan: This section estimates the value of the interests to be conveyed determined at the highest use permitted under the existing zoning, and the requirements imposed by the Southwest Redevelopment Plan ("Redevelopment Plan"). Estimated Reuse Value of the Interests to be Conveved: This section summarizes the valuation estimate for the Site based on the required use, and with the conditions and covenants required by the Agreement. Consideration Received and Comparison with Established Fair Reuse Value: This section describes the compensation to be received by the Agency, and explains any difference between the compensation to be received and the established fair reuse value of the Site. Bliaht Elimination: This section describes the existing blighting conditions on the Development Site, and explains how the Agreement will assist in alleviating the blighting influence. Conformance with the AB1290 Implementation Plan: This section describes how the Agreement achieves goals identified in the Agency's adopted AB1290 Implementation Plan. This report and the Agreement are to be made available for public inspection prior to the approval of the Agreement. I. SALIENT POINTS OF THE AGREEMENT The Agreement is for sale of the Property and the construction of the Project. A. Project Description The Developer intends to build 14,360 square foot Walgreen's retail store with drive thru pharmacy, and associated parking at the southeast corner of Third Avenue and Naples Street. The Project also includes the construction of associated improvements, such as entrances, driveways, under grounding utility lines, traffic signal modification, street widening, installation of a street light, and the installation of new sidewalks, curbs and gutters. B. Developer Responsibilities The Agreement requires the Developer to be responsible for the following: . Pav "Fair Market Price" for Aaencv aCQuired parcels that are necessary to develoD the ~ . Build the Proiect based on the concept plans approved by the Aaencv and pursuant to the scope of work. schedule. and standards of develoDment: . Obtain all the necessary entitlements from the City prior to construction of the Proiect: 2 "J-f&.1 . Complv with conditions of escrow closure that include the reQuired fund deposits. escrow cost-sharina and other conditions for closure: . Make use of the Site pursuant to State Law's non-discriminatory provisions and other covenants for the duration of the aareement: . Be resDonsible for Defaults. Remedies and Termination provisions: . Other provisions dealina with encumbrances. convevances and leases: and . Other General Drovisions. C. Agency Responsibilities Under the Agreement, the Agency must complete or cause the following activities: . Agency shall use good faith efforts to allocate closing costs, such as title insurance, escrow fees, documentary transfer tax and recording costs, in the manner customary between buyers and sellers of real property; . In the event that Agency's negotiations have been unsuccessful in acquiring the properties located at 293 Naples Street and 1101 Third Avenue, Agency shall make the necessary findings as required by law to acquire the properties by eminent domain; . The Agency shall convey to the Developer Fee Simple Title to the Agency acquired Property in exchange for "Fair Market Price"; . The Agency shall convey the Property in an "as is" condition; and . Agency shall process Project construction drawings and related documents in a timely manner. II. COST OF THE AGREEMENT TO THE AGENCY The Agency is not providing financial assistance or subsidy to the Developer as part of the conveyance and redevelopment of the Property. Although the Developer has secured ownership to two parcels, and has entered into a contract to acquire an additional two parcels, the Developer has been unsuccessful in carrying out negotiations with property owners to acquire fee title to the properties located at 293 Naples Street (APN No. 619-121-02-00) and 1101 Third Avenue (APN No. 619-121-01-00). As a result, the Developer has requested that Agency acquire fee title to the subject properties either by negotiation or by consideration of eminent domain. Since then, the Agency has presented an offer in the sum of $225,200 for the subject properties. To date, there has been no response or counter offer by the property owners, or their legal 3 ..3-cÞi representative. In the event Agency negotiations are unsuccessful, Agency will consider adoption of a Resolution of Necessity to acquir~ the necessary property through eminent domain. However, Agency staff will continue to negotiate in good faith with the property owners for a mutually agreed upon acquisition price for the subject parcels that are necessary to develop the project. In either case, once the necessary parcels to develop the site are acquired, the property will be placed in escrow, and only after obtaining building permits, shall the Developer and Agency close escrow, and the property be transferred to Developer under the terms and conditions set forth in the Disposition and Development Agreement. III. ESTIMATED VALUE OF THE INTERESTS TO BE CONVEYED DETERMINED AT THE HIGHEST USE PERMITTED UNDER THE REDEVELOPMENT PLAN Pursuant to Section 33433 of the California Health and Safety Code, this section presents an analysis of the fair market value of the Property at the highest and best use. As mentioned in the previous section, the Developer has been unsuccessful in carrying out negotiations with property owners to acquire fee title to the properties located at 293 Naples Street and 1101 Third Avenue. As a result, the Developer has requested Agency assistance in assembling the Project site by acquiring fee title to the subject properties either by negotiation or by consideration of eminent domain. In February 2004, Jones, Roach, & Caringella, Inc., prepared an updated appraisal of the subject properties, and determined that their fair market value was $225,200. The estimated value was based on the "highest and best use" of the subject properties, which was determined to be near to mid term commercial redevelopment, and possibly in conjunction with adjacent property. The "highest and best use" concept is important in real estate valuation as it represents the premise upon which value is based. As defined, the "highest and best use" is the reasonably probable and legal use of vacant land or an improved property that is physically possible, appropriately supported, and financially feasible and that results in the highest value. It is staff's opinion that the Project will provide a viable commercial use at the southeast corner of Third Avenue and Naples Street. The Project will assist in preventing the spread of blighting and deteriorating conditions by removing outdated commercial buildings and providing much needed public and private infrastructure improvements to this area of the City. The Project is consistent with the City's General Plan, Zoning Code, and the Southwest Redevelopment Project Area Plan, and Implementation Plan. IV. CONSIDERATION RECEIVED AND COMPARISON WITH THE FAIR MARKET VALUE AND FAIR REUSE VALUE As previously indicated, Agency is assisting Developer in assembling the Project site by acquiring fee title to properties located at 293 Naples Street and 1101 Third Avenue. In a letter dated October 31,2003, the Agency formally presented an initial offer in the sum of $198,000 to purchase the property from the owners. The offer was based on an appraisal performed by Jones, Roach, & Caringella, Inc., which determined that the "highest and best use" was near to mid term commercial redevelopment, and possibly in conjunction with adjacent property. Soon after, Agency received a letter dated December 9, 2003 from Haskins & Associates stating that their clients were in the process of obtaining their own appraisal for the subject properties, 4 ..3 -(p' and also pointed out that the appraisal performed by Jones, Roach, & Caringella, Inc., was completed on December 27, 2002. As a result, Haskins & Associates expressed their desire to review a more recent appraisal due to their assertion that property values in the area may have risen by as much as 35%. Since then, the Agency received an updated appraisal, and in a letter dated February 12, 2004, prepared an updated offer in the sum of $225,200 for the subject properties. To date, there has been no response or counter offer by the property owners, or their legal representative. In the event Agency negotiations are unsuccessful, Agency will consider adoption of a Resolution of Necessity to acquire the necessary property through eminent domain. However, Agency staff will continue to negotiate in good faith with the property owners for a mutually agreed upon acquisition price for the subject parcels that are necessary to develop the Project. Once the necessary parcels to develop the site are acquired, the property will be placed in escrow and the Developer will proceed to prepare the Project's construction drawings for plan check and building permits. After obtaining building permits, the Developer and Agency will close escrow, and the property will be transferred to Developer under the terms and conditions of the Disposition and Development Agreement. V. BLIGHT ELIMINATION The Southwest Redevelopment Area was adopted in 1990 as a unique area in Chula Vista that requires special attention and consideration in order to eliminate and reverse physical and economic deteriorating conditions, and provide the necessary public and private infrastructure to revitalize the area. The Southwest Redevelopment Plan identifies the following blighting conditions in the project area: . Inadequate public improvements, public facilities, open space, storm water drainage facilities, and utilities. . Subdivision and sale of lots of irregular form and shape. Many of the lots are of an inadequate size and lack sufficient access thereto or lack of off-street parking to permit proper usefulness and marketability. . Lack of adequate community facilities. . Deteriorated or dilapidated commercial, industrial, and residential buildings. . Mixed commercial and residential land uses, which are defective in design and/or physical character. . Visual blight characterized by, among other things, an abundance of outdoor storage and open yard/compound uses, junkyards and other marginal type businesses. . Insufficient or incomplete local planning characterized by several "Special Study" areas that have not been converted from County to City land use and zoning designations. Since the adoption of the Southwest Redevelopment Project Area, the Agency has worked to reverse and eliminate economic and physical blighting conditions by working with developers and property owners to promote investment, and facilitate sound development within the Project 5 ..3-70 Area. The redevelopment of the property with the Project will assist in preventing the spread of deteriorating conditions by removing outdated commercial buildings, by providing infrastructure improvements, and by establishing a necessary neighborhood serving commercial use to this area of the City. VI. CONFORMANCE WITH THE AB1290 IMPLEMENTATION PLAN The Agency has an adopted the Five-year Implementation Plan for the Southwest Redevelopment Project Area that identifies the goals and objectives that are necessary to alleviate the remaining blighting conditions within the Project Area. The proposed Project specifically addresses the goal of the Implementation Plan, which is to "revitalize the Southwest commercial, residential, and industrial areas of the City." As indicated in the Implementation Plan, the blight to be alleviated by the Project includes facilitating the enhancement and renovation of businesses; stimulating investment of the private sector in the full development of the Project Area; the re-parcelization of land into reasonably sized and shaped parcels served by an improved street system and improved public facilities; and the promotion of public improvement facilities which are sensitive to the unique environmental qualities of the Project Area. 6 ..!J- 7 ( ATTACHMENT 7 DISPOSITION AND DEVELOPMENT AGREEMENT by and between REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA, AGENCY and 3RD & NAPLES, LLC a California limited liability corporation, DEVELOPER ¡,\COMMDEVITAPIAIPROJECTS\TIIIRD & NAPLES\FJNAL DDA 3RD NAPLES MAR 03 04.DOC ..3-7;)... ---- - DISPOSITION AND DEVELOPMENT AGREEMENT : THIS DISPOSITION AND DEVELOPMENT AGREEMENT ("Agreement") is entered into effective on , 2004 ("Date of Agreement") by arid between the REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA ("Agency") and 3RD & NAPLES, LLC ("Developer"), with reference to the following facts: ; RECITALS l A. The City Council of the City ofChula Vista ("City") has established e Agency and has approved and adopted a redevelopment plan for a redevelopment project kno:þ as Southwest Redevelopment Project by its adoption of Ordinance No. 2420 on November 27, 1990, and as amended by its adoption of Ordinance No. 2467 on July 8,1991, Ordinance 2612 qn November 8, 1994, and by its adoption of Ordinance 2819 on August 22, 2000 (collectively "Redevelopment Plan"), pursuant to the provisions of Sections 33000 et seq. of the California Health ånd Safety Code ("Redevelopment Law"). ! B. Agency is undertaking a program in the interest of health, safety, andlgeneral welfare of the people of the City pursuant to its authority under Redevelopment Law, for the redevelopment, replanning and redesign of blighted areas within the Southwest Redevelopment Project area which are characterized by stagnant, improperly utilized and unproductive land y,'hich requires redevelopment. The Agency is authorized and empowered under the Community Redevelopment Law ("CRL") to enter into agreements to assist in the redevelopment of real property !within a project area in conformity with a redevelopment plan adopted for such area; to receive consideration for the provision by the Agency of redevelopment assistance and to make and execute contracts and other instruments necessary or convenient to the exercise of its powers. In participatiod the Agency is expressly authorized to permit and facilitate participation in the redevelopment ofprbpertypursuant to the CRL and Redevelopment Plan. ¡ C. The Developer has secured rights to acquire certain parcels of real property, which are part of the proposed development site in the Redevelopment Project Area. 'The proposed development site includes the properties located at 293 Naples Street (ANP No. 619-121-02-00), 1101 3rd Avenue (APN Nos. 619-121-01-00 and, 1105 Third Avenue (APN No. 619-121-31-00), 1109 Third Avenue (APNNo. 619-121-06-00) 1121 Third Avenue (APNNo. 619-121-07-00), and 1123 Third Avenue (APN No. 619-121-08-00) Chula Vista, California. Thus, ~e Site herein comprises the entire proposed development property, which is the subject of this ~greement, and together with the Improvements required hereunder, is referred to herein as the Project. D. The Agency has determined that the provisions of this Agreement will make feasible the redevelopment of the Site by the Developer and that such development 'will stimulate development of the remainder of the Southwest Redevelopment Project area, and is in the best interests of the taxpayers and residents of the City, and will otherwise promote the public health, safety and general welfare of City residents and is in accordance with federal, state ,and local laws J:\COMMDEVlrAPIAIPROJECTS\TIßRD & NAPLESIFINAL DDA 3RD NAPLES MAR 03 04.DOC -2 ..3-73 and regulations. E. In furtherance of the CRL and the Redevelopment Plan the Agency desires to enter into this Agreement for the Redevelopment of Site and concurrent with its approval of this Agreement, Agency/City found and determined that (1) the implementation of this Agreement will assist in the elimination of blight, (2) is consistent with the implementation of the Redevelopment Plan, (3) the consideration paid by Developer to Agency for the Site constitutes the "fair market price" for the Site as that term is referenced under Section I 720(b) of the California Labor Code; and (4) such consideration is not less than the fair market value of the Site at its highest and best use in accordance with the Redevelopment Plan. 1. SUBJECT OF AGREEMENT 1.1 Purpose ofthe Agreement The purpose of this Agreement is to assist with the effectuation of the Redevelopment Plan for the Southwest Redevelopment Project area in the City of Chula Vista by providing for the disposition and development of the Site. The development of the Site pursuant to this Agreement, and the fulfillment generally of this Agreement, are in the vital and best interests of the City ofChula Vista and the health, safety, morals, and welfare of its residents, and in accord with the public purpose and provisions of applicable federal, state and local laws and requirements. 1.2 The Site The "Site" is comprised of approximately 1.20 acres of improved land located at 110 I Third Avenue (APN No. 619-121-01-00, 1105 Third Avenue (APN No. 619-121-31-00), 1109 Third Avenue (APN No. 619-121-06-00) 1121 Third Avenue (APN No. 619-121-07-00), 1123 Third Avenue (APNNo. 619-121-08-00) and 293 Naples Street (APN No. 619-121-02-00) Chula Vista, California. The Site is geographically depicted on the "Site Map" attached hereto as Exhibit A-I, and is more precisely described in "Legal Description" attached hereto as Exhibit A-2. (a) Prior to execution of this Agreement, Developer has unsuccessfully carried out negotiations with the 3rd party fee owners (the "Site Owners") for the acquisition of fee title to the properties located at, 293 Naples Street (APN No. 619-121-02-00) and 1101 Third Avenue (APN No. 619-121-01-00). It is Developer's desire that, to the extent such negotiations remain unsuccessful as of Agency's execution of the Agreement, Agency acquire fee title to the properties located at, 293 Naples Street (APNNo. 619-121-02-00) and 1101 Third Avenue (APNNo. 619-121- 01-00), either by negotiation or by consideration of eminent domain, and thereafter, transfer the same to Developer in accordance with the terms of this Agreement. In connection with Agency will determine in good faith and within its sole, independent and absolute discretion whether or not to adopt a resolution of necessity and proceed with eminent domain. The parties acknowledge that this Agreement does not bind Agency to exercise its powers of eminent domain and, as provided below, Agency's failure to exercise said powers shall not constitute a default by Agency hereunder. The Agency undertakes no obligation to the Developer hereunder to adopt any resolutions of necessity, ßCOMMDEV\TAPIAIPROJECTS\TInRD & NAPLES\FINAL DDA 3RD NAPLES MAR 03 O4.DOC -3 ..3-7'-1 and does not prejudge or commit in any respect whatsoever, to the Developer or any other person or entity regarding the findings and determinations to be made by the Agency with respect thereto. 1.3 The Project I I The Project to be developed shall be comprised of a Walgreens Drug Store building of approximately 14,360 square feet fronting the corner of Third Avenue and Naples Street, im52,337 square feet of land. A detailed Project description, evaluations and site plan are attached hereto as ""bib¡< B. P~king. Im'- "'" """" Proj", req- ""'" "" ,- iliro""f Ci<y', land use entitlement process. Upon Close of Escrow, Developer shall be obligated to d velop the Project on the Site in accordance with an agreed upon schedule as more particularly s t forth in Section 3.1 hereof. 1.4 Parties to the Agreement (a) Agencv. Agency is a public body, corporate and politic, exercising gov~mmental functions and powers, and organized and existing under Chapter 2 of the Community Redevelopment Law of the State ofCalifomia. The principal office of the Agency is located at 276 Fourth Avenue, Chula Vista, California 91910. I "Agency" as used in this Agreement includes any assignee of or successor to its rights, powers and responsibilities. (b) Developer. The Developer is 3rd & Naples LLC, a Limited Liability Corporation. The Developer represents to the Agency that the Developer and/or principals of the members of the Developer entity have the experience and qualifications necessary to perform as Developer pursuant to this Agreement. The qualifications and identity of Developer are of particular concern to the City and Agency, and it is because of such qualifications and identity that Agency has entered into this Agreement with Developer. Except as otherwise expressly set forth herein, Developer shall not assign all or any part of this Agreement without prior written approval of Agency which approval is reserved to the sole discretion of the Agency. Wherever the term Developer is used herein, such term shall include any permitted nominee, assignee, or successor in interest as herein provided. BCOMMDEV\rAPIAIPROJECTSITIßRD & NAPLESIFINAL DDA 3RD NAPLES MAR 03 04.DOC -4 ..3-7~ 1.5 Entitlements and CEOA as Conditions to Sale (a) Reservation of Discretion. Agency and Developer acknowledge and agree that the ultimate development of the Site will be governed by and/or subject to certain governmental approvals ("Entitlements"), including Entitlements which must be obtained from the City. The parties hereto expressly acknowledge and agree that the Agency carmot grant any such Entitlements or cause any other governmental agency, including the City, to grant any such Entitlements. City and Agency reserve the right to exercise their discretion as to all matters which they are, by law, entitled or required to exercise their discretion. It is not the intent (nor shall it be deemed) that, by the Agency's execution or City's approval of this Agreement, the City or the Agency are granting approval of the Project contemplated in this Agreement or any of the Entitlements. Further, in no event shall the Agency or the City be under any obligation to approve such development or any of the Entitlements by virtue of having entered into or approved this Agreement, it being understood that such development and each of the Entitlements as to which the Agency or the City has any approving authority shall be taken up and considered as matters to be separately deliberated upon at such time in the future as they may be so taken up and considered. Accordingly, Developer hereby releases the City and the Agency from any liability based upon Developer not obtaining any such Entitlements, and expressly agrees that in no event shall any lawful exercise of the City's or Agency's discretion to approve, condition or disapprove any Entitlements or other discretionary item which is a condition to the obligations of the parties of this Agreement, be deemed to be a default or an act of bad faith under this Agreement by the City or the Agency. (b) Required Entitlements (I) If required, completion of a project environmental impact analysis in accordance with the California Environmental Quality Act. (2) approval of concept plans, including site plan, building elevations, building floor plan, and landscape plan, for the construction of the proposed improvements; and (3) If required, approval of a Parcel/Tract Map for the Site. In the event that all of the Entitlements are not approved within 90 days after the effective date of this Agreement, or in the event that City or Agency or any other entity shall deny any of the requested discretionary approvals or disapprove any required Entitlement or other agreements necessary for development of the Project, unless extended by the parties under the express terms hereof, this Agreement shall be of no force and effect, and none of the parties shall have any further obligations to any of the other parties pursuant to this Agreement. (c) Agencv Staff to Cooperate. Subject to the foregoing conditions and reservations of authority, staff agrees to cooperate with Developer by seeking lawful ways to expedite the Entitlement process for the Project. HCOMMDEV\TAPIAIPROJECTSITHIRD & NAPLES\FINAL DDA 3RD NAPLES MAR 03 04.DOC -5 ...3 - 7 G:. 1.6 Condition Precedent to Agencv Acceptance and Execution. As described in Section 8 below, by executing this Agreement and submitting it to Agency, Developer is making an irrevocable offer (the "Offer") to Agency to enter into this Agreement with Developer, which Offer shall continue for sixty (60) days after the execution date. Developer understands that Agency may be exposing itself to certain claims, obligations, actions, demands, liabilities, damages, costs, and expenses in reliance upon the Offer, and in the event Developer fails to fully perform its obligations under said Agreement, Developer agrees to indemnify, defend, and hold Agency and City harmless ITom and against any and all such claims, obligations, actions, demands, liabilities, damages, costs, losses and expenses. 1.7 Consideration of Alternative Proposals. Agency shall have, in connection with its consideration of the redevelopment of the Site proposed under the terms of this Agreement, considered (in accordance with all applicable rules and regulations) any alternative proposals for redevelopment of the Site which have heretofore been validly and timely submitted by the Site Owners and site tenants and, as a result of such process of consideration, eliminated such alternative proposals ITom further consideration and selected the Project as the manner in which the Site shall be redeveloped 1.8 Occupants of the Site. (a) All relocation of occupants, including provisions of relocation assistance and benefits pursuant to the Relocation Laws shall be completed or cause to be completed by the Developer at its sole cost and expense using a qualified relocation consultant selected by the Developer, and approved by the Agency. Under applicable Relocation Laws, each occupant of the Site may be entitled to receive certain financial and advisory assistance in connection with the relinquishment of possession of the applicable parcel and the relocation of the occupant(s). (b) All the costs and expenses incurred or to be incurred by the Developer (and/or Agency, including any and all third party expenses) to cause the relocation of all occupants, businesses and residents ITom the Site (including but not limited to relocation payments made to displaced persons and businesses, pre- or post-relocation rental payments, fees and actual expenses of attorneys, relocation consultants and other experts employed to effect the relocation of occupants, and preparation of relocation plans, etc.) as reasonably determined by the Agency unless deferred to its designated representative or the Developer, shall be the sole fmancial responsibility of the Developer. Each occupant shall be fully advised of all rights, if any, for relocation benefits or assistance under applicable Relocation Laws, or of any other eligible compensation in connection with the relinquishment by any business, resident, or occupant of its possession and rights to possession of any part of the Site, any interests in personal and real property in connection with the Site, and its vacation of any portion of the Site. (c) For each business, resident or occupant of the Site caused to be rel¡>cated by the Developer, or its representatives, or the Agency, the Developer will use his best efforts to obtain, with the technical assistance of the relocation consultant, a written acknowledgment and/or ßCOMMDEVlTAPIAIPROJECTSITInRD & NAPLES\FINAL DDA JRD NAPLES MAR OJ O4.DOC -6 ..3- 7 Î ---- agreement ("Settlement Agreement") nom each such occupant that he/she/it understands and agrees that any payment provided in a settlement or relocation package represents an all inclusive settlement and is full payment and just compensation for the acquisition of all property interests, both real and personal property, involved, if any, and satisfied any and all other legal obligations, assistance and payments that may be required by Relocation Laws or other applicable laws arising out of or related in any manner to the termination of any leasehold interest, displacement, and/or relocation. The Settlement Agreement shall include appropriate release, waiver, and indemnity provisions protecting the Developer, Agency, and City and their officers, employees, agents and consultants. (d) Developer hereby covenants and agrees to indemnify, save, protect, hold harmless, and defend Agency, the City and their respective representatives, volunteers, officers, employees, agents, and consultants (collectively "Indemnitees") from and against any and all liabilities, suits, actions, claims, demands, penalties, damages (including without limitation penalties, fines, and monetary sanctions), losses, costs, or expenses, including without limitation consultants' and attorneys' fees, or relocation benefits claimed or payable under the Relocation Laws (collectively "Liabilities") which may now or in the future be incurred or suffered by Indemnitees by reason of, or resulting nom, in full or in part, or in any respect whatsoever from the relocation of businesses, residents, or other occupants of the Site pursuant to this Agreement. (e) Except for the obligations of the Agency and city under this Agreement, Developer, on behalf of itself and its affiliates, and any and all successors and assigns, hereby fully and finally releases Agency, the City and their respective past and present elective and appointive boards, commissions, officials and employees, representatives and agency from any and all manner of actions, causes of action, suits, obligations, liabilities, judgments, execution, debts, claims and demands of every kind and nature whatsoever, known and unknown, which Developer any of its affiliates, successors or assigns may now have or hereafter obtain against the Agency or the City or their respective past and present elective and appointive boards, commissions, officials and employees, representatives and agents by reason of, arising out of, relating to, or resulting from in full or in part, the election of Developer to proceed with the assembly of the Site and the Project pursuant this Agreement (collectively "Claims"), which release shall include but not be limited to any Claims for relocation benefits under federal, state, or local laws. The parties agree that, with respect to the release of Claims as set forth above, all rights under Section 1542 of the California Civil Code and any similar law of any state or territory òfthe United States are expressly waived. 2. ACQUISITION AND DISPOSITION OF THE SITE 2.1 Method of Acquisition (a) Acquisition Documentation. As a condition precedent to Agency's acceptance of the offer and execution of this Agreement, Developer shall provide the Agency with the following: 1. A copy of the latest appraisal(s) of the Site and other reports concerning the acquisition cost of the Site; ¡,ICOMMDEVlTAPIAIPROJECTSlrnIRD & NAPLESIFINAL DDA 3RD NAPLES MAR 03 04.DOC -7 .,3- 7i' 2. A copy of the most recent title reports obtained by Developer and pertaining to the Site, together with a list of those matters affecting title to the Site that Developer agrees to take title subject to (collectively, the "Permitted Exceptions"); 3. Any and all other reports, data or other information, regarding the, Site, including, but not limited to environmental, ownership, hazardous substance studies, soils studies, rental or other cash flow information and any other data or information relating to the Site. [Additionally (and not by way oflimiting the generality of condition of Site below) by its execution and delivery hereof to Agency that (x) it has investigated the soil and geologic condition~ of the Site (including the presence of hazardous wastes), (y) it approves of such conditions and finds such conditions to be in all respects entirely suitable for the use or uses to which the Site is tò be put and (z) that if such conditions are not in fact so entirely suitable, it shall be the sole respori:>ibility and obligation of Developer to take such action as may be necessary to place the soil and geologic conditions of the Site in a condition suitable for such sue or uses]; and 4. A letter of credit (the "Site LOC") in an amount mutually acceptable to the Agency's Executive Director and Developer, as determined in their good faith and reasonable discretion to be sufficient to secure Developer's obligations to advance to Agency any and all "Acquisitions Costs" (as such term is derIDed below); provided, however, that in no event shall the Site Security be in an amount less than 150% of the total estimated acquisition cost of the Site, as determined by appraisals and other reports, in form satisfactory to the Agency (or designee), which are conducted at Developer's sole cost and expense by an appraiser reasonably acceptable to the Executive Director (or designee) using such appraisal parameters as may be reasonably acceptable to the Executive Director (or designee). The terms under which Agency may draw down upon the Site LOC shall be as more particularly set forth in Section 2.1 (d)below. b. Acc uisition bv Negotiation: Defmitions of Associated Costs and Relocation Costs. In connection with its negotiations with the Site Owners, Agency shall use good faith efforts to allocate closing costs, such as title insurance, escrow fees, documentary transfer tax and recording costs, in the manner customary between buyers and sellers of real property in San Diego county and to cause taxes, assessments and other charges applicable to the Site under law or by contract to be prorated as of the date of closing. Additionally, in connection with its offers to the Site Owners, subject to the minimum requirements prescribed by Government Code Section 7267.2, in no event shall Agency's aggregate offer to the Site Owners exceed the total estimated acquisition cost of the Site (as determined by appraisals and other reports conducted at Developer expense as described in Section 2.1A above) by more than ten percent (10%) without the written agreement of Developer, which agreement shall be deemed given unless Developer delivers to the Executive I?irector its reasonable written disapproval of any such offer within ten (10) days of the Executive Director's (or designee's) written notification to Developer of the same. Developer shall, upon written demand by Agency (as described in Section 2.1;(c) below) advance (or reimburse, as applicable) to Agency all funds necessary to undertake and complete its negotiations with the Site Owners (including, without limitation, any and all costs associated with nCOMMDEV\TAPIAIPROJECTs\TIßRD & NAPLES\FINALDDA 3RD NAPLES MAR 03 04.DOC - 8 .B-7~ making any offers and documenting any agreement with the Site Owners and Site Tenants) and, in the event such negotiations have been successful, all funds necessary to complete the acquisition including, but not limited to, the acquisition price, together with (collectively, the "Associated Costs"): (i) any and all escrow costs, legal and consulting fees (including acquisition agents or consultants) (ii) costs and expenses (including those of relocation consultants) incurred by Agency (collectively, the "Relocation Costs") in connection with the relocation of the occupants of the Site pursuant to California Government Code Section 7260, etc., and applicable administrative regulations and/or any applicable federal laws and regulations, other than those Relocation Costs which are expressly agreed, pursuant to the provisions of this Agreement, to be the responsibility of Agency, (iii) title insurance and (iv) any other fees or costs incurred by Agency incident to the acquisition or as necessary to the further conveyance of the Site to DeveJoper pursuant to the provisions of2.2 below. (c) AcQuisition bv Eminent Domain In the event that Agency's negotiations have been unsuccessful (i.e. Agency is unable to enter into the binding agreement contemplated above) and the Agency makes the necessary finding as required by law and determines to acquire the Site by eminent domain proceedings, from and after Agency's execution of this Agreement, Agency shall diligently pursue such acquisition ofthe Site free and clear of all leases and encumbrances except the Permitted Exceptions. Developer shall thereafter, upon written demand of Agency, advance to Agency all sums necessary to complete such proceedings, including but not limited to, the acquisition prices, court costs, deposits necessary to obtain orders of pre-judgni.ent possession, payments for loss of goodwill or precondemnation damages, and all Associated costs. In connection with any such acquisition by condemnation, it is anticipated (and Agency shall use good faith efforts to provide) that taxes, assessments and other charges applicable to the Site under law or contract shall be prorated as of the date of the Agency's acquisition. In the event any such action in eminent domain must be abandoned by Agency (except in the event Developer terminates the excutory provisions of this Agreement pursuant to the provisions of Article 5 below as a result of an "Agency Default" (as such term is defined in Section _5.1- below), Developer shall be responsible for all "Acquisition Costs" (as such term is defined in Section 2. I (d)below) paid or incurred, including without limitation, all costs associated with such abandonment and any fees, penalties or damages which may be awarded in favor of a condemnee against Agency. (d) Definition of AcQuisition Costs For the purposes of this Agreement, with respect to the acquisition of the Site and further conveyance thereof to Developer, the term "Acquisition Costs" shall refer to any and all costs contemplated as being the responsibility of Developer under this Agreement. Acquisition Costs shall also include any and all costs and expenses of Agency in enforcing its right to draw down on the site LOC or other Site Security as may be necessary. In the event of termination of this Agreement at any time for any reason other than an Agency Default, Developer's obligation to pay Acquisition Costs shall survive the termination of this Agreement with respect to all Acquisition Costs (collectively, ¡,ICOMMDEVITAPIAIPROJECTSIIHIRD & NAPLESIFINAL DDA 3RD NAPLES MAR 03 04.DOC ....5 -go -9 the "Post-Termination Costs") either: (i) paid or incurred but not yet billed or paid as of such termination, or (ii) arising from a) the subsequent abandonment of the eminent domain action, b) claims, actions, etc., arising out of or related to actions taken by Agency prior to such termination. Developer shall deliver to Agency the amounts described in clauses (i), (ii) (a) and (ii) (b) above within thirty (30) days after a written request from Agency. In carrying out its obligations pursuant to this Agreement, Agency is authorized to select and hire those consultants, legal counsel and other professionals as Agency deems necessary to complete its obligations. Costs incurred by Agency to such consultants, legal counsel and other professionals shall be considered part of the Acquisition Costs. 2.2 Terms of Site LOC The Site LOC shall be issued by a federally insured financial institution acceptable to Agency. The Site LOC shall be renewed or a new letter of credit identical to the Site LOC delivered to the Executive Director at least fifteen (15) days prior to its expiration. The failure of Developer to so timely renew or replace the Site LaC shall be deemed to constitute a failure of Developer to advance the requested funds to Agency whereupon Agency shall have the right to draw the entire balance of the Site LOC and hold and use the funds for the purposed specified herein. In lieu of the Site LOC, Developer may deposit cash ("Cash Deposit") in the same amount as required for the Site LOC for the account of Agency in a bank or trust company mutually acceptable to Developer and Agency. Agency is authorized to make written demand upon Developer to advance funds to Agency for Acquisition Costs, such written demand to specify the amount requested and the application of such funds and to be accompanied with such supporting documentation as Developer may reasonably request in order to verify the nature of such costs. If Developer, within five (5) days after receipt of such demand and supporting documentation does not advance such funds to Agency, the Executive Director is authorized to make calls upon the Site LOC (or Cash Deposit) to provide Agency with the funds required by Agency for Acquisition Costs. The issuer of the Site LOC (or depository of the Cash Deposit) shall honor all calls upon the Site LOC (or Cash Deposit) within two (2) business days of presentment by the Executive Director. Interest, if any, earned on funds deposited into court by Agency shall be used to the extent necessary, to pay Acquisition Costs, and upon payment of all Acquisition Costs, all remaining funds shall be repaid to Developer. 2.3 Sale and Purchase (a) In accordance with, and subject to, all the terms, covenants, and conditions of this Agreement, Agency agrees to sell the Site to Developer, and Developer agrees to purchase the Site from Agency. (b) Developer shall pay to Agency as the purchase price f?r the Site the amount paid by ßCOMMDEV\TAPIAIPROJECTSITIßRD & NAPLESIFINAL DDA 3RD NAPLES MAR 03 O'DOC -10 ...3-'8 ( the Agency ("Purchase Price"). Pursuant to the California Health and Safety Code Section 33433, the Agency has determined that, given the goals and objectives of the Redevelopment Plan, the consideration paid for the Site is not less than the fair market value of the Site at its highest and best use in accordance with the Plan. (c) The Purchase Price shall be paid to Agency in cash, or other immediately available funds, upon the Close of Escrow (defmed below). (d) "Close of Escrow" shall mean the date upon which title to the Site passes from Agency to Developer. Close of Escrow shall occur within 30 days after satisfaction of all conditions to close of Escrow for Agency's and Developer's benefit set forth in Section 2.6 hereof. In the event that Close of Escrow has not occurred 60 days from the date Agency takes title to the Site or as soon as practical thereafter, Agency or Developer may terminate this Agreement as provided in Section 2.7.7 hereof, below. 2.4 Purchase Price as "Fair Market Price"; Potential Ad¡ustments The parties acknowledge and agree that the Purchase Price constitutes the "fair market price" for the Site as that term is referenced in California Labor Code Section 1720(b) ("Fair Market Price"). In the event that (a) a third party alleges that the Purchase Price is less than the Fair Market Price, or Agency and Developer mutually agree upon a higher Fair Market Price, then the Purchase Price shall be increased to equal such court determined or agreed upon higher Fair Market Price, as the case may be (the "Adjusted Purchase Price"). Developer agrees to pay the Adjusted Purchase Price to Agency. 2.5 Good Faith Deposit: LiQuidated Damages (a) Deposit. Developer shall deliver to Agency concurrently with delivery of this Agreement, a deposit ("Deposit") of $25,000 in the form of a cashier's or certified check drawn on a California bank account payable to Escrow Agent. Escrow Agent shall invest the Deposit in a federally insured, interest- bearing account approved by both parties. All interest earned thereon shall be Agency's. (b) Credit. Release. Return of Deposit. The entire $25,000 Deposit shall be credited to Buyer and applied against the Purchase Price at Close of Escrow. The Deposit shall be returned to Developer if this Agreement and the Escrow are terminated for nonsatisfaction of a condition pursuant to Section 2.6.2. (c) LiQuidated Damages in the Event of Developer's Failure to Close Escrow. In the event that Developer fails to Close Escrow despite the satisfaction of conditions for Developer's benefit set forth in Section 2.6.2, below, the following provision for liquidated damages shall apply: nCOMMDEV\TAPIAIPROJECTSITHIRD & NAPLESIFINAL DDA 3RD NAPLES MAR 03 o'.DOC -11 ..ð - ~ 2... THE PARTIES ACKNOWLEDGE AND AGREE THAT AGENCY WILL SUFFER SUBSTANTIAL DAMAGES IF DEVELOPER FAILS TO COMPLETE THE PURCHASE OF THE PROPERTY BY THE CLOSING DATE IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT FOR ANY REASON, OTHER THAN NONSATISF ACTION OF THE CONDITIONS SET FORTH IN SECTION 2.6.2 (TIMELY RAISED) OR A DEFAULT BY SELLER. GIVEN FLUCTUATIONS IN LAND VALUES, THE UNPREDICTABLE STATE OF THE ECONOMY AND OF GOVERNMENTAL REGULATIONS, THE FLUCTUATING MONEY MARKET FOR REAL ESTATE LOANS AND OTHER FACTORS WHICH DIRECTLY AFFECT THE VALUE AND MARKETABILITY OF THE PROPERTY, THE PARTIES REALIZE THAT IT ~ILL BE EXTREMELY DIFFICULT AND IMPRACTICAL, IF NOT IMPOSSIBLE, TO ASCERTAIN WITH ANY DEGREE OF CERTAINTY THE ACTUAL AMOUNT OF AGENCY'S DAMAGES IN THE EVENT OF SUCH FAILURE TO PERFORM BY DEVELOPER. THEREFORE, THE PARTIES HEREBY AGREE THAT THE $25,000 DEPOSIT [PLUS INTEREST EARNED THEREON] REPRESENTS A REASONABLE ESTIMATE OF SUCH DAMAGES, CONSIDERING ALL THE CIRCUMSTANCES EXISTING ON THE DATE OF EXECUTION OF THIS AGREEMENT, AND THAT AGENCY SHALL HAVE THE RIGHT TO RETAIN THE FULL AMOUNT OF THE DEPOSIT [PLUS INTEREST EARNED THEREON] AS LIQUIDATED DAMAGES PURSUANT TO CALIFORNIA CIVIL CODE SECTION 1671, AS AGENCY'S SOLE RIGHT TO DAMAGES AS A RESULT OF DEVELOPER'S DEFAULT. AGENCY WAIVES ALL RIGHTS AGENCY OTHERWISE MAY HAVE PURSUANT TO CALIFORNIA CIVIL CODE SECTION 3389 TO SPECIFICALLY ENFORCE THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING, THIS SECTION SHALL NOT LIMIT OR LIQUIDATE ANY OBLIGATIONS OR LIABILITIES OF DEVELOPER PURSUANT TO SECTION 2.16 AND 3.1.7 (a) BY SIGNING THEIR INITIALS BELOW, EACH PARTY CONFIRMS ITS CONSENT TO AND AGREEMENT WITH THE PROVISIONS OF THIS PARAGRAP~ J1 f) Agency's Initials Develóper's Initials 2.6 Conditions to Developer's Right/Obligation to Acquire Site 2.6.1 Conditions for Agencv Benefit Developer's right to acquire the Site shall be subject to the satisfaction of the following conditions precedent for the benefit of the Agency: (a) Approved Financing. Developer must presentto the Agency staff evidence of acceptable financing for construction of the Project on the Site. ßCOMMDEY\TAPlAlPROJECTSlfHIRD & NAPLES\FINAL DDA JRD NAPLES MAR OJ 04.DOC -12 ..3 -~..3 (b) Required Entitlements. Developer shall have received approval of all Entitlements necessary for the development of the Site with the Project, including Entitlements that must be obtained from the Agency/City. (c) Pavrnent of Purchase Price: Pavrnent of Closing Costs. Developer shall pay the Purchase Price for the Site, and shall pay Developer's share of closing costs. (d) No Default. Developer shall not be in default under this Agreement. (e) Insurance. The Developer shall provide the insurance certificates conforming to Section 3.1.7(b) of this Agreement in a form reasonably satisfactory to the Agency Executive Director or his designee. (t) Other Agreements. Developer shall have duly executed and delivered all implementing agreements to this Agreement, including all documents which are necessary to ensure that this Agreement is a lien against the Site prior, superior, and non-subordinate to the other monetary encumbrances (excluding non-delinquent taxes and assessments), and all non-monetary encumbrances (except Approved Title Exceptions), and any other documents required by Agency hereunder for the transfer and development of this Project. 2.6.2 Conditions for Developer's Benefit Developer's obligation to acquire the Site shall be subject to the satisfaction of the following conditions precedent for the benefit of Developer: (a) Financing. Developer shall have obtained Project financing consistent with the requirements of this Agreement on terms and conditions reasonably approved by Developer. (b) Entitlements. Developer shall have obtained all discretionary Entitlements necessary for the development of the Project on the Site and all applicable challenge periods to such approvals shall have expired. (c) Title Insurance. Developer shall be satisfied that the Title Company is ready to, upon payment of Title Company's regularly scheduled premium( s), issue to the Developer the Title Insurance (excepting only the Permitted Title Exceptions, the bargained for state of title) in accordance with Section 2.11 herein. (d) Grant Deed. Agency shall have duly executed the Grant Deed and any other documents required to be signed by the Agency under this Agreement. ¡,ICOMMDEVITAPIAIPROJECTSITIßRD & NAPLESIFINAL DDA 3RD NAPLES MAR 03 O4.DOC -13 .3 -~ c¡. (e) No Default. Agency shall not be in default in any of its obligations under the terms of this Agreement. 2.6.3 Obligation to Work Towards Satisfaction of Conditions. Each party hereto agrees to take all reasonable steps necessary and appropriate to satisfy the conditions to Close of Escrow within their control and to work in good faith to cause the Close of Escrow within 60 days from the date Agency takes title to the Site or as soon thereafter as practical. 2.7 Escrow 2.7.1 Opening. Upon Agency approval of this Agreement, the parties agree to open an escrow for conveyance of the Site with Lawyers Title Insurance Company ("Escrow Agent") as escrow agent. The applicable provisions of this Agreement constitute the joint escrow instructions of the Agency and the Developer, and a duplicate original of this Agreement shall be delivered to the Escrow Agent upon the opening of the escrow. The Agency and the Developer shall provide such additional escrow instructions consistent with this Agreement as shall be necessary. The Escrow Agent hereby is empowered to act under such instructions, and upon indicating its acceptance thereof in writing, delivered to the Agency and to the Developer within five (5) days after opening of the escrow, the Escrow Agent shall carry out its duties as Escrow Agent hereunder. 2.7.2 Escrow Agent Authoritv The Escrow Agent is authorized to: (a) Pay, and charge the Agency and the Developer, respectfully, for any fees, charges and costs payable under this Agreement. Before such payments are made, the Escrow Agent shall notify the Agency and the Developer of the fees, charges and costs necessary to clear title and close of escrow. (b) Invest and disburse funds and deliver the Deed and other documents to the parties entitled thereto when the conditions of this escrow have been fulfilled by the Agency and the Developer. The Purchase Price shall not be delivered by the Escrow Agent unless and until it has recorded the Deed to the Site and has delivered to the Developer a title insurance policy insuring title and conforming to the requirements ofthis Agreement. (c) Record any instruments delivered through this escrow if necessary or proper to vest title in the Developer in accordance with the terms and provisions of the escrow instructions portions of this Agreement. 2.7.3 Deposit of Funds J:\COMMDEV\TAPIAIPROIECTS\THIRD & NAPLES\FINAL DDA 3RD NAPLES MAR 03 O4.DOC - 14 ..:1-~ ~ The Deposit provided in Section 2.5 above, and all other funds received in this escrow shall be deposited by the Escrow Agent in a general escrow account with any state or national bank doing business in the State of California and reasonably approved by the Developer and the Agency, and may be combined in such with other escrow funds of the Escrow Agent. 2.7.4 Allocation of Escrow Costs Developer shall pay in escrow to the Escrow Agent all fees, charges and costs of conveyance promptly after the Escrow Agent has notified Developer of the amount of such fees, charges and costs, but not earlier than ten (10) days prior to the schedule date for the conveyance of the applicable Parcel: 2.7.5 Amendments Any amendment to the escrow instructions shall be in writing and signed by both the Agency and the Developer. At the time of any amendment the Escrow Agent shall agree to carry out its duties as Escrow Agent under such amendment. 2.7.6. Communications All communications from the Escrow Agent to the Agency or the Developer shall be directed to the addresses and in the manner established in Section 7.1 of this Agreement for notices, demands and communications between the Agency and the Developer. 2.7.7. Termination of Escrow If this escrow is not in condition to close on or before the time of conveyance established in Section 2.8 of this Agreement, either party who then shall have fully performed the acts to be performed before the conveyance of title may, in writing, demand the return of this money, papers or documents from the Escrow Agent. No demand for return shall be recognized until ten (10) days after the Escrow Agent (or the party making such demand) shall have mailed copies of such demand to the other party or parties at the address of its principal place of business. Objections, if any, shall be raised by written notice to the Escrow Agent and to the other party within the ten (10) days period, in which event the Escrow Agent is authorized to hold all money, papers and documents with respect to the applicable Parcel until instructed by a mutual agreement of the parties or, upon failure thereof, by a court of competent jurisdiction. If no such demands are made, the escrow shall be closed as soon as possible. If objections are raised as above provided for, the Escrow Agent shall not be obligated to return any such money, papers or documents except upon the written instructions of both the Agency and the Developer, or until the party entitled thereto has been determined by a final decision of a court of competent jurisdiction. If no such objections are made to the demand within said ten (10) day period, the Escrow Agent shall immediately return the demanded money, papers or documents. )oICOMMDEVlTAPIAIPROJECTSI1RIRD & NAPLES\FINALDDA3RD NAPLES MAR 03 D<.DOC - 15 ..3 -~~ ----- 2.8 Conveyance oftitle and Deliverv of Possession (a) Agency shall convey to the Developer title to the Site in the condition provided in Section 2.9 ofthis Agreement by Grant Deed in a form to be mutually agreed upon by the Agency and the Developer consistent with this Agreement and otherwise utilizing Escrow Agent's standard form. The Grant Deed to each parcel shall contain covenants necessary or desirable to carry out this Agreement and implement the requirements of applicable Redevelopment Law and the Redevelopment Plan. (b) Upon delivery of the Grant Deed for the Site to the Escrow Agent by the Agency pursuant to Section 2.8 of this Agreement, the Escrow Agent shall record such Deed in accordance with these escrow instructions, provided that the title to the Site can be vested in the Developer in accordance with the terms and provisions of this Agreement. The Escrow Agent shall buy, affix and cancel any transfer stamps required by law. (c) Except as otherwise provided herein, possession of the Site shall be delivered to the Developer concurrent with the conveyance of title. The Developer shall accept title and possession to the Site on or before the dates set forth below. (d) Subject to any mutually agreed-upon extension of time, conveyance to the Developer oftitle to the Site shall be completed on close of escrow. 2.9 Condition of Title Fee title to the Site shall be conveyed by the Agency to Developer subject to non-delinquent property taxes and assessments and any and all property taxes and assessments and other charges applicable to the Site under law or by contract for any period during which Agency holds title to the Site, (ii) the Permitted Exceptions, and (iii) such conditions and restrictions contemplated to be imposed by Agency pursuant to this Agreement.. 2.10 Payment of the Purchase Price and Recordation of the Deed The Escrow Agent shall deliver the Purchase Price to the Agency immediately following the delivery to the Developer of a title insurance policy insuring title in conformity with Section 2.11 of this Agreement and the filing of the deed for recordation among the land records in the Office of the County Recorder for San Diego County. 2.11 Title Insurance Concurrent with recordation of the Grant Deed, Escrow Agent shall issue and deliver to the Developer a CLTA or an AL TA extended coverage policy of title insurance, as Developer may specify, insuring that the title is vested in the Developer in the condition required by Section 2.9 of this Agreement. The title insurance policy shall be in the amount of the Purchase Pric~ of the Site or, as Developer may specify at Developer's cost, an endorsement to insure the amount of the BCOMMDEV\TAPIAIPROJECTSITIßRD & NAPLESIFINAL DDA 3RD NAPLES MAR 03 O4.DOC - 16 J-t¡7 Developer's estimated construction costs of the improvements to be constructed thereon. 2.12 Taxes and Assessments There shall be no proration of any taxes or assessments with respect to the Site. Agency shall have no liability or responsibility for any taxes, assessments or other charges applicable to the Site under law or by contract for any period during which it holds title to the Site, and Developer agrees to indemnify, defend and hold Agency and the City harmless from and against all such assessments, taxes, and charges. In the event of termination of this Agreement at any time for any reason other than an Agency Default, Developers obligation to indemnify, defend and hold Agency and the City harmless from and against any and all such assessments, taxes and charges shall survive the termination of this Agreement. 2.13 Condition of the Site The Site, and any and all improvements thereon, shall be conveyed in an "as is" condition, with no warranty, express or implied by the Agency as to the physical condition (including the existence of hazardous materials), value, development, use, marketability, feasibility and suitability of the Site, or any parcel thereof, for Developer's intended use. Developer is a sophisticated purchaser who is familiar with this type of property. Developer will make its own independent investigation, to the extent Developer deems necessary, ofthe condition or suitability of the Site and each Parcel and will acquire all or any portion of the Site solely in reliance on such independent investigation. Developer acknowledges that any and all studies, reports, surveys, maps and other information that Developer may receive from Agency or its agents in connection with the Site are provided without any warranty (whether oral or written, express or implied) by Agency as to their accuracy, and on the express condition that Developer shalL make its own independent evaluation of such information. Developer unconditionally releases Agency from and against any and all liability to Developer, both known and unknown, present and future, for any and all damages, losses, claims and costs (including attorneys fees), including, without limitation, the existence of hazardous materials, or the Site's non-suitability for Developer's intended use excepting, however, any liability arising from Agency's intentional failure to disclose a material known fact with respect to the Site. Developer waives the provisions of California Civil Code Section 1542 which provides: "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." The Agency agrees that it will not cause, or permit its contractors or agents to cause, without remediating the same, during the time the Site is in the possession of the Agency following the Date of Agreement, and prior to conveyance of title to the Site to the Developer, the placement of any hazardous or toxic substances on the Site which contaminates the soil and/or water on the applicable Parcel. ¡,ICOMMDEV\TAPIAIPROJECTSI11ßRD & NAPLESIFINALDDA 3RD NAPLES MAR 03 04.DOC - 17 ...ß -~<t --. Subject to the limitation set forth in this Section 2; 13, above, Agency agrees to provide, or cause to be provided to Developer, upon Developer's written request, all written reports pertaining to the physical condition of the Site reasonably discovered by Agency to be in its possession. 2.14 Developer Access to Site Pre-Closing; Indemnity Prior to the conveyance of title to the Site, representatives of Developer shall at all reasonable times have the right of access to and entry upon those real properties comprising the Site which are owned by Agency, or of which Agency has possession, for the purpose of obtaining data relevant to its development process and making surveys and tests necessary to carry out this Agreement, site demolition, grading and construction of the Project. Developer agrees to defend, protect, indemnifY and hold Agency, City, and their respective officers, employees; contractors and agents, hannless from and against any and all claims, liability, loss, damage, costs or expenses (including reasonable attorneys' fees and court costs) arising out of any work or activity of Developer, its officers, employees, contractors and agents permitted pursuant to this Section 2.14. This provision shall survive the termination of this Agreement. 2.15 Submission of Evidence of Financing Prior to Close of Escrow, Developer shall submit to Agency evidence satisfactory to Agency that Developer has obtained the financing necessary for the development of the Site in accordance with this Agreement. Such evidence of financing shall include the following: (a) A copy of the term sheet describing the details of the terms and conditions of the mortgage loan or loans obtained by the Developer to assist in financing the construction of the improvements on the Site (as defined in the scope of Development attached hereto as Exhibit B, certified by the Developer to be a true and correct copy or copies thereof; and (b) Evidence reasonably satisfactory to the Agency of sources of equity capital sufficient to demonstrate that the Developer has adequate funds to cover the difference, if any, between construction cost minus financing authorized by mortgage loans. Agency shall approve or disapprove such evidence of financing in a timely manner, which approval shall not be unreasonably withheld. If Agency shall disapprove any such evidence of financing, Agency shall do so by written notice to Developer stating the reasons for such disapproval. 2.16 Developer Indemnitv Upon Close. Upon Close of Escrow, Developer agrees to indemnifY, protect, defend and indemnifY City, Agency and their respective officers and employees from and against any and all claims, suits, liabilities, expenses, losses or damages of any kind arising as a result of Developer's acts or JlCOMMDEV\TAPIAIPROJECTS\THIRD & NAPLES\FINAL DDA 3RD NAPLES MAR OJ 04.DOC - 18 ..3-99 omissions on the Site except for losses caused directly by the sole negligence or sole willful misconduct of City/ Agency. This obligation shall survive the Close of Escrow and the termination of this Agreement. 3. DEVELOPMENT OF THE SITE 3.1 In General Upon satisfaction of Developer's conditions to Close of Escrow set forth in Section 2.6.2, Developer shall be obligated to take all remaining necessary and appropriate steps to Close Escrow and to develop the Site with the Project as provided herein. 3.1.1 Scope of Development (a) Developer shall, at Developer's sole cost and expense, develop the Site with the Project in strict accordance with the Project description attached hereto as Exhibit B. The Project description is comprised of a Project narrative, site plan, building elevations, building floor plans, and landscape plans (collectively, the "Scope of Development"). (b) The Project shall be construed as a "First Class and First Quality" project. First Class and First Quality shall mean that the Project construction, design and materials are of high quality with the quality of variegated exteriors, colors and rooflines represented in the Scope of Development, as further refined and conditioned by the City's design review and Entitlement process. (c) The Scope of Development may be modified through the City/Agency Entitlement process. The Agency Executive Director shall also have the authority to approve minor modifications in the Scope of Development in his/her reasonable discretion upon written request by Developer. Any proposed substantive modifications to the Scope of Development shall be subject to the approval of the Agency Board in its sole discretion. 3.1.2 Schedule of Performance (a) Developer shall acquire the Site and develop the Project in accordance with the agreed upon "Schedule of Performance" attached hereto as Exhibit C. (b) The Schedule of Performance is subject to revision ITom time to time as mutually agreed upon in writing between Developer and Agency's Executive Director based on extension( s) necessary due to changes in circumstances or other factors not known by the parties as of the date of Agency approval of the Agreement ("Date of Agreement"). Each request for an extension of an item or items in the Schedule of Performance 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 Agency staff, and Agency Board, as and if required, (or the Developer, if the requested extension is for an Agency performance item) to ßCOMMDEV\TAPIAIPROÆCTSITIIIRD & NAPLESIFINAL DDA 3RD NAPLES MAR 03 04.DOC - 19 ~-9D understand the basis for such request and the circumstances that did not exist as of the Date of Agreement that necessitate such requested extension. Agency's Executive Director is authorized on behalf of Agency to agree to make such revisions as he or she deems reasonably necessary based on changes in circurnstances or other factors not known as of the Date of Agreement; provided, however, in the event any proposed extension(s) to the Schedule of Performance being considered between the Agency Executive Director and Developer may cause the completion of construction date of any component of the Project to be extended beyond sixty (60) days after the qriginal date agreed between the parties for date of completion set forth in the Schedule of Performance, such extension(s) to the Schedule of Performance shall require the consideration and approval by the Agency Board of an amendment to this Agreement. It is understood that the Schedule of Performance is subject to all of the terms and conditions set forth in the text of this Agreement. The summary of the terms of performance in the Schedule of Performance is not intended to supersede or modify the more complete description in the text; in the event of any inconsistency between the Schedule of Performance and the text of this Agreement, the text shall govern. 3.1.3 Landscaping and Grading Plans Developer shall prepare and submit to the Agency for its approval preliminary and final landscaping plans, and preliminary and finish grading plans for the Site. Those plans shall be prepared and submitted within the time established by the parties as described in the Schedule of Performance. The landscaping plans shall be prepared by a professional landscape architect and the grading plans shall be prepared by a licensed civil engineer. Such landscape architect and/or civil engineer may be the same firm as the Developer's architect. 3.1.4 Construction Drawings and Related Documents for the Site (a) Developer shall prepare and submit construction drawings and related documents (collectively called the "Drawings") for the development pertaining to each component of the Project to the Agency for review (including but not limited to architectural review), and written approval in the times established by the parties as described in the Schedule of Performance. Such Drawings shall be submitted in two stages: Design Development Drawings and Final Construction Drawings. "Final Construction Drawings" are hereby defined as drawings in sufficient detail to obtain a building permit. (b) The Agency shall approve or disapprove the Drawings in a timely manner. Any disapproval shall state in writing the reasons for disapproval and the changes which the Agency requests to be made. Such reasons and such changes must be consistent with the Scope of Development (Exhibit B) and any items previously approved or deemed approved hereunder. The Developer, upon receipt of a disapproval based upon powers reserved by the Agency hereunder, shall revise the Drawings, and shall resubmit to the Agency as soon as possible after receipt of the notice of disapproval. Approval of progressively more detailed drawings and specifications will be promptly granted by the Agency if developed as a logical evolution of drawings or specifications theretofore approved. Any items so submitted and approved by the Agency shall not be subject to subsequent disapproval. ßCOMMDEVlTAPlAIPROJECTS\THIRD & NAPLES\FINAL DDA 3RD NAPLES MAR 03 04.00C - 20 ..,3-9( (c) During the preparation of all Drawings, Agency and Developer shall communicate and consult informally as frequently as is necessary to insure that the formal submittal of any documents to Agency can receive prompt and speedy consideration. (d) If any revisions or corrections of Drawings approved by the Agency shall be required by any non-Agency government official, agency, department, or bureau having jurisdiction over the development of the Site, Developer and Agency shall cooperate in efforts to obtain waiver of such requirements or to develop a mutually acceptable alternative. 3.1.5 Cost of Construction; Project Fees The Purchase Price and any and all costs incurred in connection with developing the Site with the Project shall be borne solely by the Developer, except as expressly provided in this Agreement. Accordingly, Developer shall be solely responsible for payment of all applicable Project processing and impact fees. 3.1.6 Construction Progress Reports During periods of construction, the Developer shall communicate and consult with Agency as frequently as is necessary to update the Agency as to the progress of Project construction and compliance with the approved Project schedule. 3.1.7 Indemnification During Construction; Bodilv Iniurv and Propertv Damage Insurance (a) Indemnity. Commencing with the Close of Escrow to the maximum extend allowed by law, the Developer agrees to and shall protect, defend, indemnify and hold harmless the Agency, and City and their respective officers, employees, contractors and agents ITom and against all claims, liability, loss, damage, costs or expenses (including reasonable attorneys' fees and court costs) (collectively, "Losses") arising from or as a result of the death of any person or any accident, injury, loss or damage whatsoever caused to any person or to the property of any person arising out of the activities of the Developer under this Agreement, or otherwise in connection with the development of the Site with the Project and which shall be directly or indirectly caused by any acts done or any errors or omissions of the Developer or its officers, employees, contractors or agents; provided, however, such obligation shall not extend to any Losses caused directly by the sole negligence or sole intentional misconduct of the Agency, the City, or their respective officers, employees, contractors or agents. Without limiting the preceding sentence, except for activities undertaken by the Developer with respect to the Site before the conveyance of title thereto to the Developer, the Agency hereby acknowledges that (as between the Agency and the Developer) the Agency is responsible for maintaining the Site in the condition it was in as of the Date of Agreement until conveyance of title to the Site to the Developer. This provision shall survive the termination of the Agreement. "'COMMDEV\TAPIAIPROJECTS\THIRD & NAPLES\FINAL DDA 3RD NAPLES MAR 03 04.DOC - 21 J-92. --.- (b) Insurance. During the period commencing with any preliminary work on the Site by the Developer under Section 2.14, or if none, then commencing with conveyance of title of the Site to the Developer, and ending on the date when a Certificate ofco~etion has been issued with respect to the entire Site, Developer shall furnish or cause to be ished to Agency, duplicate originals or appropriate certificates of insurance policies as fOlliws: (i) Commercial General Liability Insurance with per occurrence based "".mg' with , oovmg' ",,";m= of 12 ".moo p~ -, and general aggregate, containing no cross- liability xclusion, and primary to any City insurance or self-insurance prog , and naming City as an additional insured through an end rsement; (ii) Statutory Worker's Compensation Insurance and Employer's liability insurance with minimum coverage of $1 million per accident or disease. ' All coverage shall allow waiver of subrogation with respect to Agency/City; which Developer hereby waives. 1 All coverage shall be issued by companies admitted to do business in Califdrnia and with "Best's" ratings of A-V or better. Any "self-insured retention" must be declared and approved by Agency. The form of insurance and the certificates of insurance evidencing same shall be subject to Agency's prior reasonable approval. ! (c) Contractor's Indemnitv/Insurance Obligations. Developer shall require the general contractor responsible for construction ofthe Project to indemnify and insure the City/Agency as provided in Subsections (a) and (b), above. 3.1.8 Local. State and Federal Laws The Developer shall carry out the construction of the improvements on the Site in conformity with all applicable laws, including all applicable federal and state labor standards and all environmental land use and other conditions imposed on the Project. 3.1.9. Citv and Other Governmental Agencv Permits I Before commencement of construction or development of any buildi gs, structures or other work of improvement upon the Site, the Developer shall, at its 0 expense, secure or cause to be secured, any and all permits which may be required by the Ci or any other governmental agency affected by such construction, development or work. Agency taff shall reasonably cooperate with the Developer in securing these permits. ßCOMMDEV\TAPlAIPROJECTSITIllRD & NAPLESIFINALDDA 3RD NAPLES MAR 03 04.DOC - 22 ...3 - t:¡ 3 I 3.1.10 Assignability of Architecture. Engineering and Construction Contracts Developer shall include in any and all Architecture, Engineering and Construction contracts entered into for the development of the Project ("Project Contracts") provisions that make the Project Contracts assignable to Agency, or its designee, in the event that Developer defaults hereunder and Agency requires possession of the Site and elects to complete the Project. 3.2 Taxes; Assessments; Encumbrances; and Liens The Developer shall pay when due all real estate taxes and assessments assessed and levied on or against the Site subsequent to the conveyance of the title thereto. The Developer shall not place, or allow to be placed, on the Site or any Parcel thereof, any mortgage, trust deed, encumbrance or lien not authorized by this Agreement. The Developer shall remove, or shall have removed, any levy or attachment made on the Site (or any Parcel thereof), except those created by work of the Agency, or otherwise expressly allowed hereunder, and shall assure the satisfaction thereof within a reasonable time but in any event prior to a sale thereunder. Nothing herein contained shall be deemed to prohibit the Developer ITom contesting the validity or amount of any tax assessment, encumbrance or lien, nor to limit the remedies available to the Developer in respect thereto. The covenants of the Developer set forth in this Section 3.2 relating to the placement of any unauthorized mortgage, trust deed, encumbrance or lien, shall remain in effect only until a Certificate of Completion of construction has been recorded with respect to the parcel upon which any unauthorized mortgage, trust deed, encurnbrance or lien might be placed. 3.3 Prohibition against Transfer (a) The qualifications and identities of the individuals comprising the Developer entities are of particular concern to the Agency. It is because of those qualifications and identities that the Agency has entered into this Agreement with the Developer. No voluntary or involuntary successor in interest of the Developer shall acquire any rights or powers under this Agreement except as expressly set forth herein. The provisions and restrictions of this Section shall remain in full force and effect until a Certificate of Completion has been issued for the Project. (b) Prior to the recordation by the Agency of a Certificate of Completion for the Project, Developer shall not, except as permitted by this Agreement, assign or attempt to assign this Agreement or any right herein with respect to the Site or the Project, nor make any total or partial sale, transfer, conveyance or assignment of the whole or any part of the Site or the improvements thereon, without prior written approval of the Agency in its sole discretion. Any attempted transfer that has not been so approved by Agency shall be void. This prohibition shall not apply to the Site (or any portion thereof) subsequent to the recordation of the Certificate of Completion with respect thereto. This prohibition shall not be deemed to prevent the granting of easements or permits necessary for the development of the Site with the Project, ,nor shall it prohibit granting any security interests expressly described in this Agreement with respect to BCOMMDEV\TAPlAIPROJECTS\TIIIRD & NAPLESIFINAL DDA 3RD NAPLES MAR 03 04.DOC - 23 ..3- q Ý Agency approved financing of the acquisition and development of the Site. Except as permitted below, transfers of any interest in the Developer entity shall constitute a prohibited transfer hereunder. (c) Notwithstanding any other provisions of this Agreement to the contrary, Agency approval of an assignment of this Agreement or any interest herein shall not be required in connection with any of the following: (i) Any transfers among the principals of the Developer entities so long as the existing principals thereof shall be and remain in management control of the Developer entity with at least a fifty-one percent (51 %) ownership or beneficial interest in the Developer entity. (ii) Transfers resulting from the death or mental or physical incapacity of an individual. (iii) Transfer or assignments in trust for the benefit of a spouse, children, grandchildren, or other family members. I (iv) Transfers of security interest(s) in the Site through deed(s) of trust for which an approved lender or lenders is/are the beneficiary(ies) in connection with financing (and refinancing thereof) of the acquisition of the Site, the construction through completion of the improvements, and/or the operation of each or any component of the Project. subject to such financing having been approved pursuant to the terms of this Agreement. I (v) A sale of the Site at foreclosure (or a conveyance thereof in lieu of a foreclosure) pursuant to a foreclosure thereof by a lender approved by the Agency in accordance with the is Agreement. (vi) A transfer of stock in a publicly held corporation or the transfer of the beneficial interest in any publicly held partnership or real estate investment trust. (vii) The granting of temporary or permanent easements or permits to governmental or quasi-governmental agencies to facilitate the development of the Site, or any component thereof; or (viii) A transfer of Developer's rights under this Agreement to a single purpose entity formed by Developer for purposes of developing and/or owing the Project that is comprised of the Developer entities; Agency approved equity investors shall also be permitted provided that the Developer entities remain in management control and hold at least a 30% ownership interest in such entity. 3.4 Certification of Completion (a) Promptly after completion of all construction and development to be completed by l\COMMDEVlTAPIAIPROJECTS\TIßRD & NAPLES\FINAL DDA 3RD NAPLES MAR 03 04.DOC - 24 ..3-f:l)" the Developer upon the Site, and assuming Developer is not otherwise in default under this Agreement or in non-compliance with applicable local laws, permits and conditions, the Agency shall furnish the Developer with a Certificate of Completion upon written request therefor by the Developer. The Agency shall not unreasonably withhold any such Certificate of Completion. Such Certificate of Completion shall be, and shall so state, conclusive determination of satisfactory completion of the construction required by this Agreement upon the Site, and of full compliance with the terms hereof with respect to the Site. The Agency may also furnish the Developer with a Certificate of Completion for portions of the improvements upon the Site, including for specific uses, as are properly completed and ready to use if the Developer is not in default under this Agreement. (b) The Certificate of Completion shall be in such form as to permit it to be recorded in the Office of the Recorder of San Diego County. (c) Such Certificate of Completion shall not constitute evidence of compliance with or satisfaction of any obligation of the Developer to any holder of a mortgage, or any insurer of a mortgage securing money loaned to finance the improvements, nor any part thereof. Such Certificate of Completion is not notice of completion as referred to in Section 3093 of the California Civil Code. (d) In no event shall the issuance of such Certificate of Completion constitute a representation by Agency for any other purpose as to the adequacy or completeness of the applicable improvements, or otherwise relieve Developer of any liability for improper design or construction (or other performance) of the applicable improvements or of any liability for any indemnity or other obligation undertaken by Developer with respect to the applicable improvements. 4. USE OF THE SITE 4.1 Uses The Developer covenants and agrees for itself, its successors, its assigns, and every successor in interest to the Site or any part thereof, that during construction and thereafter the Developer, its successors and assigns shall devote the Site, and each parcel thereof, to the uses specified in the Redevelopment Plan as may be amended from time to time. The City retains the right to make changes to the design standards or to require compliance with City design standards if there is a change in use or tenancy 4.2 Obligation to Refrain from Discrimination The Developer covenants and agrees for itself, its successors, its assigns and every successor in interest to the Site or any part thereof, there shall be no discrimination against or segregation of any person, or group of persons, on account of sex, marital status, race, color, creed, religion, national origin or ancestry in the contracting for Site development sale, lease, ßCOMMDEVITAPIA\PROJECTSITIIIRD & NAPLESIFINAL DDA JRD NAPLES MAR 03 04.DOC - 25 ,,3-9' sublease, transfer, use, occupancy, tenure or enjoyment of the Site nor shall the 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 Site. 4.3 Nondiscrimination and Nonsegregation The Developer shaH refrain from restricting the rental, sale or lease of the Site on the basis of sex, marital status, race, color, creed, religion, ancestry or national origin of any person. All deeds, leases or contracts shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses: (a) In deeds: "The grantee herein covenants by and for itself, its successors 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 sex, marital status, race, color, creed, religion, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee itself or any person claiming under or through it, establish or permit any 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 itself, its successors and assigns, and all persons claiming under or through them, 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 sex, marital status, race, color, creed, religion, national origin or ancestry in the leasing, subleasing, renting, transferring, use, occupancy, tenure or enjoyment of the land herein leased, nor shall lessee itself, or any person claiming under or through it, establish or permit such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants or vendees in the land herein leased." (c) In contracts: "There shall be no discrimination against or segregation of any person or group of persons on account of sex, marital status, race, color, religion, creed, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land, nor shall the transferee 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 land." ßCOMMDEVlTAPIAIPROJECrS\TInRD & NAPLES\FINALDDA 3RD NAPLES MAR 03 04.DOC - 26 ~-C;Î 4.4 Effect and Duration of Covenants The covenants established in this Agreement shall, without regard to technical classification and designation, be binding on the Developer and any successor in interest to the Site and each Parcel (or any part thereof) for the benefit and in favor of the Agency, its successors and assigns, and the City and the public they represent, without regard to whether Agency or City remains, or is, an owner of any land in the vicinity of the Site. Such covenants as are to survive the issuance of the Certificate of Completion by the Agency shall be contained in the Grant Deed and shall remain in effect for the period specified therein. 5. DEFAULTS, REMEDIES AND TERMINATION 5.1 Defaults - In General Subject to the extensions of time set forth in Section 7.4, failure or delay by either party to perform any term or provision of this Agreement constitutes a default under this Agreement. The party who fails or delays must immediately commence to cure, correct or remedy such failure or delay and shall complete such cure, correction or remedy using its best efforts and all due diligence, and during any period of curing shall not be in default. The injured party shall give written notice of default to the party in default, specifying the default complained of by the injured party. Failure or delay in giving such notice shall not constitute a waiver of any default, nor shall it change the time of default. Except as otherwise expressly provided in this Agreement, any failures or delays by either party in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies. Delays by either party in asserting any of its rights and remedies shall not deprive either party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. 5.2 Legal Actions 5.2.1 Institution of Legal Actions In addition to any other rights or remedies, either party may institute legal action to cure, correct or remedy any default, to recover damages for any default, or to obtain any other remedy consistent with the purpose of this Agreement. Such legal actions must be instituted in the Superior Court of the County of San Diego, State of California, in any other appropriate court of that county, or in the Federal District Court in the Southern District ofCaliforniaS.2.2 Applicable Law The Laws of the State ofCalifomia shall govern the interpretation and enforcement ofthis Agreement. 5.2.3 Acceptance of Service of Process J:ICOMMDEVlrAPIAIPROJECrSITInRD & NAPLESIFINAL DDA 3RD NAPLES MAR 03 04.DOC - 27 .,3-Cfi -_. - (a) In the event that any legal action is commenced by the Developer against the Agency, service of process on the Agency shall be made by personal service up n the Executive Director or Chairman of the Agency, or in such other manner as may be rovided by law. (b) In the event that any legal action is commenced by the Agenc against the Developer, service of process on the Developer shall be made by personal service u on the Developer (or upon a general partner or officer of the Developer if any entity) and s all be valid whether made within or without the State of California, or in such manner as may b provided by law. 5.3 Rights and Remedies are Commutative I Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative, and the exerci~e by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other ¡faUlt by the other party. 5.4 Damages: Limitations Thereon 5.4.1 In General. If either party defaults with regard to any of thJ provisions of this Agreement, the non-defaulting party shall serve written notice of such default upon the defaulting party. If the default is not commenced to be cured within thirty (30) days after service of the notice of default and is not cured promptly in a continuous and diligent manner within a reasonable period of time after commencement, the defaulting party shall be liable to the non- defaulting party for any damages caused by such default, and the non-defaulting party may thereafter (but not before) commence an action for damages against the defaulting party with respect to such default. 5.4.2 Limitations. Agency's damages in the event of a Developer default prior to transfer of the site shall be limited as provided in Section 2.5 (c) hereof. Developer's damages in the event of an Agency default prior to transfer of the Site shall be limited to out-df-pocket costs not to exceed $50,000. In no event shall Developer be entitled to damages bas6d on a claim for lost profits or opportunities. 5.5 S"","o 'mo_œ ~ If either party defaults with regard to any of the provisions of this Ag ement, the non-defaulting party shall serve written notice of such default upon the defaulting p . If the default is not commenced to be cured within thirty (30) days after service of the noti ,e of default and is not cured promptly in a continuous and diligent manner within a reasonable pèriod of time after commencement the non-defaulting party, at its option, may thereafter (but not before) ßCOMMDEV\rAPIAIPROJECTS\TIßRD & NAPLES\FINAL DDA JRD NAPLES MAR OJ O<.DOC - 28 J-91 ! commence an action for specific performance of the terms of this Agreement pertaining to such default. 5.6 Remedies and Right of Termination 5.6.1 Termination bv the Developer In the event that prior to the conveyance oftitle to the Site to the Developer: (a) Agency, despite being in a position to do so, does not tender either conveyance of title to the Site or possession thereof, to the Developer in the manner and condition, and by the date provided this Agreement; or (b) The conditions to close for Developer's benefit in Section 2.6.2 have not been satisfied despite Developer's diligent and good faith efforts; (c) Agency is in default under this Agreement and has not cured such default, or reasonably commenced to cure within thirty (30) days after the date of written demand by the Developer; then this Agreement, at the option of the Developer, shall be terminated with respect to the Site, by written notice thereof to the Agency, and except to the extent provided in Section 2.14 of this Agreement, neither Agency nor Developer shall have any further rights against or liability to the other under this Agreement with respect to any unconveyed Parcels, or with respect to the entire Site if no Parcel has been conveyed. 5.6.2 Termination bv Agencv In the event that prior to the conveyance of title to the Site to the Developer: (a) The Developer shall fail to submit to the Agency the evidence of financing commitments referred to in Section 2.15 of this Agreement; or (b) The Developer (or any successor in interest) assigns or attempts to assign the Agreement or any right herein, or in the Site in violation of the terms of this Agreement (or portion thereof); or (c) The Developer does not submit any plans, drawings and related documents as required by this Agreement by the date provided in this Agreement therefor; or (d) The Developer does not pay the Purchase Price and take title to the applicable Parcel under a tender of conveyance by the Agency pursuant to this Agreement; or JXOMMDEVITAPIA\PROJECTS\THIRD & NAPLES\FINAL DDA 3RD NAPLES MAR 03 04.DOC - 29 ...3-100 (e) The conditions to close for Agency's benefit set forth in Section 2.6.1 have not been satisfied despite Agency's good faith efforts; or i I (f) If any default or failure referred to in subdivisions (a), (b), (c),~r (d) of this Section shaH not be cured within thirty (30) days after the. ate of written demand by the Agency; : "en <hi, Ag=men' """ en, righ. of'" _1o"". m en, ~"... °, """r=. thi, Agreement, or arising therefrom with respect to the Agency, shall at the option of the Agency, be terminated with respect to any unconveyed Parcels, by written notice to the Develop, and except to the extent provided in Section 2.14, neither the Agency nor the Developer s all have any further rights against or liability to the other under this Agreement with respect to any unconveyed, Parcels, or with respect to the entire Site if no Parcel has been conveyed, 5.7 Right of Reentrv The Agency shall have the right, at its option, to reenter and take possession of any Parcel (or portion thereof) with all improvements thereon, and to terminate and revest in the'Agency the estate theretofore conveyed to the Developer if, after conveyance of title to the site and prior to the recordation of the Certificate of Completion pertaining to the Site (or portion thereof), the Developer (or its successors-in-interest) shall: (a) Fail to commence or complete construction of the improvements on the Site (or portion thereof) as required by this Agreement for a period of three (3) months after written notice to proceed from the Agency, provided that the Developer shaH not have obtained an extension or postponement to which the Developer may be entitled pursuant to Section 7.4 hereof; or (b) Abandon or substantially suspend construction of the improvements on the Site (or portion thereof) for a period of three (3) months after written notice of such abandonment or suspension has been given by the Agency to the Developer, provided the Developer has not obtained an extension or postponement to which the Developer may be entitled to pursuant to Section 7.4 hereof; or (c) Assign or attempt to assign this Agreement, or any rights herein, or transfer, or suffer any involuntary transfer of the Site, or any part thereof, in violation of this Agreement, and such violation shall not be cured within thirty (30) daýs after the date of receipt of written notice thereof by the Agency to the Developer. Such right to reenter, repossess, terminate and revest shall be subject to and bè limited by and shall not defeat, render invalid or limit: : (a) Any mortgage, deed of trust or other security interests permitted by this J:lCOMMDEVlTAPIAIPROJECTSITIllRD & NAPLES\FINAL DDA 3RD NAPLES MAR 03 04.DOC - 30 J-IO I _..- Agreement with respect to the applicable parcel; (b) Any rights or interest provided in this Agreement for the protection of the holders of such mortgages, deeds of trust or other security interests. The rights established in this Section 5.7 shall not apply to any parcel (or portion thereof) on which the improvements to be Constructed thereon have been completed in accordance with the Agreement and for which a Certificate of Completion has been recorded therefor as provided in Section 3.4. The Grant Deed to the Site shall contain appropriate reference and provision to give effect to the Agency's right, as set forth in this Section 5.7 under specified circumstances prior to the recordation of the Certificate of Completion, to reenter and take possession of the Site, or any part thereof, with all improvements thereon, and to terminate and revest in the Agency the estate conveyed to the Developer. Upon the revesting in the Agency of title to the Site, or any part thereof, as provided in this Section 5.7 the Agency shall, pursuant to its responsibilities under state law, use its best efforts to resell the Site, or any part thereof, as soon and in such manner as the Agency shall find feasible and consistent with the objectives of Redevelopment Law and the Redevelopment Plan to a qualified and responsible party or parties (as determined by the Agency), who will assume the obligation of making or completing the improvements, or such other improvements in their stead, as shall be satisfactory to the Agency and in accordance with the uses specified for the Site, or any part thereof, in the Redevelopment Plan. Upon such resale of the Site, or any part thereof, the proceeds thereof shall be applied: (a) First, to payoff all liens and encumbrances and offsets for any Developer defaults; (b) Second, to reimburse the Agency on its own behalf or on behalf of the City of all costs and expenses incurred by the Agency, including but no limited to salaries to personnel engaged in such action, in connection with the recapture, management and resale of the Parcel, or any part thereof (but less any income derived by the Agency from the sale of the Parcel, or any part thereof, in connection with such management); all taxes, assessments and water and sewer charges with respect to the Parcel or any part thereof (or, in the event the Parcel, or any part thereof, is exempt from taxation or assessment or such charges during the period of ownership, then such taxes, assessments or charges, as would have been payable if the Parcel, or part thereof, were not so exempt); any payments made or necessary to be made to discharge or prevent from attaching or being made any subsequent encumbrances or liens due to obligations, defaults or acts of the Developer, its successors or transferees; any expenditures made or obligations incurred with respect to the making or completion of the agreed improvements or any part thereof on the Parcel, or any part thereof; and any amounts otherwise owing to Agency by the Developer and its successor or transferee. ßCOMMDEVlrAPIAIPROJECTSITIßRD & NAPLESIFINAL DDA 3RD NAPLES MAR 03 O4DOC - 31 ~ -( () 2- (c) Third, to return to Developer, without interest, any Developer equity Developer can demonstrate to Agency's reasonable satisfaction to have been invested in the Property or the Project. I (d) M:Y balance remaining after such reimbursements shall be retained 9Y the Agency as Its property.: TIre righ" ,,"'bli""" m ,¡,¡, """on 5.7 = '" b, mœq.re"" m ligh' of "'tct ""', "'" Agency will convey the Site to the Developer for development and not for speculati n in undeveloped land. 6. SECURITY FINANCING; RIGHT OF HOLDERS 6.1 No Encumbrances Except Mortgages. Deeds of Trust. Convevances and Leases- Back or Other Convevance for Financing for Development After conveyance oftitle to the Site to the Developer, mortgages, de¡¡ds of trust, or any other form of conveyance required for any reasonable method of financing real estate acquisition, land development or construction, are permitted with respect to the Site before the recordation of the Certificate of Completion, but only for the purpose of securing loans of funds to be used for land acquisition and the construction of improvements on the Site, and any other expenditures necessary and appropriate to develop the Site under this Agreement. The Developer shall notify the Agency in advance of any mortgage, deed of trust, or other form of conveyance for financing, if the Developer proposes to enter into the same before the recordation of the Certificate of Completion, the Developer shall not enter into any such conveyance for financing without the reasonable prior written approval of the Agency Executive Director applying the standards set forth in Sections 2.6.1 (a) and 2.15 hereof. Such lender approved by the Agency pursuant to this Section 6.1 shall not be bound by any amendment, implementation or modification to this Agreement subsequent to its approval without such lender giving its prior written consent. 6.2 Holder Not Obligated to Construct Improvements The holder of any mortgage, deed of trust or other security interest authorized by this Agreement shall not be obligated by the provisions of this Agreement to construct or complete the Project or to guarantee such construction or completion; nor shall any qovenants or any other provision in the grant deed be so construed as to so obligate such holder. i Notwithstanding the foregoing, nothing in this Agreement shall be deemed or constrUed to permit such holder to devote the Site to any uses, or to construct any improvements on the Site, other than those uses or improvements provided for or authorized by this Agreement. 6.3 Notice of Default to Mortgage. Deed of Trust or Other Securitv Interest Holders; Right to Cure ],ICOMMDEVlTAPIAIPROÆCTSI11llRD & NAPLES\FINAL DDA 3RD NAPLES MAR 03 04.DOC - 32 J-(03 Whenever the Agency shall deliver any notice or demand to the Developer with respect to any breach or default by the Developer in completion of construction of the Project improvements, the Agency shall at the same time deliver to each holder of record any mortgage, deed of trust or other security interest authorized by this Agreement, a copy of such notice or demand. Each such holder shall (insofar as the rights of the Agency are concerned) have the right at its option within sixty (60) days after the receipt of the notice, to cure or remedy, or commence to cure or remedy, any such default and to add the cost thereof to the security interest debt and the lien of its security interest. If such default shall be a default which can only be remedied or cured by such holder upon obtaining possession within sixty (60) days of notice, and proceeds with diligence and continuity, through a receiver or otherwise, to obtain possession and diligently completes such cure or remedy. In the case of a default which cannot with diligence be remedied or cured, or the remedy or cure of which cannot be commenced within such sixty (60) day period, such holder shall have such additional time as reasonably necessary to remedy or cure such default with diligence and continuity; and provided further that such holder shall not be required to remedy or cure any non-curable default of the Developer. Nothing contained in this Agreement shall be deemed to permit or authorize such holder to undertake or continue the construction or completion of the improvements (beyond the extent necessary to conserve or protect the improvements or construction already made) without rust having expressly assumed the Developer's obligations to the Agency by written agreement satisfactory to the Agency. The holder, in that event, must agree to complete, in the manner provided in this Agreement, the improvements to which the lien or title of such holder related, and submit evidence satisfactory to the Agency that it has the qualifications and/or financial responsibility necessary to perform such obligations. Any such holder properly completing such improvements shall be entitled, upon written request made to the Agency, to a Certificate of Completion ftom the Agency. 6.4 Failure of Holder to Complete Improvements In any case where, ninety (90) days after default by the Developer in completion of construction of improvements on any parcel under this Agreement, the holder of any mortgage, deed of trust or other security interest creating a lien or encumbrance upon such Parcel (or portion thereof) has not exercised the option to construct, or if it has exercised the option but has not proceeded diligently with construction, the Agency may purchase the mortgage, deed of trust or other security interest by payment to the holder of the amount of the unpaid debt, plus any accrued and unpaid interest. If the ownership of the Parcel (or portion thereof) has vested in the holder, the Agency, if it so desires, shall be entitled to a conveyance ftom the holder to the Agency upon payment to the holder of an amount equal to the sum of the following: (a) The unpaid mortgage, deed of trust or other security interest debt at the time title became vested in the holder (less all appropriate credits, including those resulting ftom collection and application of rentals and other income received during foreclosure proceedings). (b) All out-of-pocket expenses actually incurred with respect to foreclosure, IICOMMDEV\rAPlAIPROJECTSITHIRD & NAPLESIFINAL DDA 3RD NAPLES MAR 03 04.DOC - 33 ..; -10 t./ including reasonable attorneys' fees. (c) The net expense, if any (exclusive of general overhead), incurred by the holder as a direct result of the subsequent ownership or management of the Parcel (or portion thereof), such as insurance premiums and real estate taxes. ! (d) The actual out-of-pocket cost of any improvements made by such holder. (e) An amount equivalent to the interest that would have accJed on the aggregate of such amounts had all such amounts become pkt of the I mortgage or deed of trust debt and such debt had continued in existence to the date of payment by the Agency. 6.5 Right of the Agencv to Cure Mortgage, Deed of trust, or Other Security Interest Default In the event of a default or breach by Developer under any mortgage, deed of trust or other security instrument with respect to the Site, or any portion thereof, prior to the issuance of a Certificate of Completion by the Agency with respect to the Site: (a) The holder of such security instrument shall give the Agency the same notice and cure rights to which Developer is entitled under the application loan documents; and (b) The Agency may cure the default prior to completion of any foreclosure. In such event, the Agency shall be immediately entitled to reimbursement from the Developer of all costs and expenses incurred by the Agency in curing the default. The Agency shall also be entitled to a lien upon the Site (or portion thereof) to the extent of such costs and disbursements. Any such lien shall be subordinate and subject to mortgages, deeds òf trust, or other security instruments executed for the sole purpose of obtaining funds to purchase and develop the Site (or portion thereof) as authorized herein. 6.6 Right of the Agency to Satisfy Other Liens on the Property After title Passes Prior to the recordation of the Certificate of Completion, and after the Developer has had a reasonable time to challenge, cure or satisfy any liens or encumbrances on the applicable Parcel (or any portion thereof), the Agency shall have the right to satisfy any such liens or encumbrances; provided, however, that nothing in this Agreement shall require the Developer to payor make provisions for the payment of any tax, assessment, lien or charge so long as the Developer in good faith shall contest the validity or amount thereof, and so long as such delay in payment shall not subject the Site (or any portion thereof) to forfeiture or sale. J:\COMMDEVlTAPIAIPROJECrS\THIRD & NAPLES\FINAL DDA 3RD NAPLES MAR 03 04.DOC - 34 J-IOS- 7. GENERAL PROVISIONS 7.1 Notices. Demands and Communications Between the Parties Formal notices, demands and communications between the Agency and the Developer shall be sufficiently given if dispatched by registered or certified mail, postage prepaid, return receipt requested, to the principal offices of the Agency and the Developer, as designated below. Such written notices, demands and communications may be sent in the same manner to such other addresses as either party may ITom time to time designate in writing: Developer's address for notice: 3rd & Naples, LLC P.O. Box 676237 Rancho Santa Fe, CA 92067 Attention: Kim Peterson Telephone: (858) 481-3539 Facsimile: (858) 481-3943 Copy to: Sullivan Wertz McDade & Wallace 945 Fourth Avenue San Diego, CA 92101 Attention: Sandra J. Brower Telephone: (619) 233-1888 Facsimile: (619) 696-9476 F. Sigmund Luther 401 West A Street, Suite 1625 San Diego, Ca 9210 1 Telephone: (619) 239-0755 Facsimile: (619) 239-0541 Agency's address to notice: Redevelopment Agency of the City of Chula Vista Community Development Department 276 Fourth Avenue Chula Vista, CA 91910 Attention: Community Development Director Telephone: (619) 691-5047 Facsimile: (619) 476-5310 Copy to: City Attorney ),ICOMMDEVlTAPlAIPROJECTSITIllRD & NAPLES\FINAL DDA 3RD NAPLES MAR 03 04.DOC - 35 ~-(O(p 7_2 Conflicts of Interest (a) No member, official or employee of the Agency shall have any personal interest, direct or indirect, in this Agreement nor shall any such member, official or employee participate in any decision relating to the Agreement which affects his personal interests or the interest of any corporation, partnership or association in which he is directly or indi~ectly, interested. i (b) TIre Thw,lop~ _æ" ""'," ¡", =, """ 0< ~VO" ""' WTO' I"ym give, any third party any money or other consideration for obtaining this Agreement This paragraph shaH not be construed to apply to the payment of attorneys' fees and othe consultant costs. , 7.3 Nonliabilitv of the Agency Officials and Emplovees No member, official, employee or consultant of the Agency shall be personally liable to the Developer, or any successor-in-interest, in the event of any default or breach by the Agency or for any amount which may become due to the Developer or to its successfr, or on any obligations under the terms of this Agreement. I ! 7.4 Time is of the Essence: Enforced Delav: Extension of Time of Performance Time is of the essence with respect to each and every obligation hereÙllder. Notwithstanding the foregoing, in addition to specific provisions of this Agreement, performance by either party hereunder shall not be deemed to be in default where delays or defaults are due to war, insurrection, strikes, lock-outs, riots, floods, earthquakes, fires, casualties, acts of God, acts of the public enemy, epidemics, quarantine restrictions, freight embargoes, lack of transportation, governmental restrictions, litigation, unusually severe weather, inability to secure necessary labor, materials or tools, delays of any contractor, subcontractor or supplies, acts of the other party, acts or failure to act of the City or any other public or governmental agency or entity (other than that act or failure to act of the Agency). An extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause, if notice by the party claiming such extension is sent to the other party within thirty (30) days of knowledge of the commencement of the cause. Times of performance l!Ilder this Agreement may also be extended in writing by mutual agreement of the Agency and the Developer. 7.5 Inspection of Books and Records i The Agency shaH have the right after reasonable notice at aH reasonaJ?le times during normal business hours to inspect the books and records of the Developer pertÅining to the site and each Parcel as pertinent to the purposes of this Agreement. The developer shall also have the right after reasonable notice and at all reasonable times during normal business hours to inspect the books and records of the Agency pertaining to the Site and each Parcel as pertinent to J:\COMMDEV\TAPIA\PROIECTS\1lIIRD & NAPLES\FINAL DDA 3RD NAPLES MAR 03 04.DOC - 36 ..ß-IO1 the purposes of this Agreement. 7.6 Approvals Approvals required of the Agency or the Developer shall not be unreasonably withheld except as otherwise provided herein, or otherwise required by law. 7.7 Real Estate Commissions The Agency shall not be liable for any real estate commissions, brokerage fees or finders fees which may arise from the sale of the Site or any Parcel to the Developer. The Agency and the Developer each represent to the other that it has employed no broker, agent, or finder in connection with this transaction and each agrees to indemnity and hold the other harmless from and against any and all claims by such a party through Agency or Developer against the other. 7.8 No Third Partv Beneficiary The terms and provisions herein contained shall be only for the benefit of the parties hereto and such terms and conditions shall not inure to the benefit of any other party whosoever, it being the intention of the parties hereto that no one shall be deemed to be a third party beneficiary of this Agreement. 7.9 Developer's Representation Developer represents and warrants that Peterson Family Trust dated 4-14-92 and Retail Holdings, LLC are the sole members of the 3rd & Naples, LLC, a California limited liability corporation, and that such will remain the case throughout the development of the Project. Any transfer of any interest in Developer or an affiliate entity that changes this ownership shall be treated as an assignment of this Agreement subject to Agency approval as provided in Section 3.3 hereof. 7.10 Covenants to Run with Land All covenants contained in this Agreement pertaining to the use of the Site or any Parcel thereof shall run with the Jand and shall be binding for the benefit and in favor of the Agency, the City, and their respective successors and assigns. The City and the Agency, in the event of any breach of any such covenants, shall have the right to exercise any and all remedies provided hereunder or otherwise available at law or in equity in order to enforce compliance with such covenants. 7.11 Recordation ofDDA or Memorandum ofDDA Agency reserves the right, at its election, to cause the recordation of this ßCOMMDEV\TAPIAIPROJECTS\11llRD & NAPLES\FINAL DDA 3RD NAPLES MAR 03 04.DOC - 37 ~ - 10 g Agreement or a Memorandum thereof which Developer agrees to execute and acknowledge. The recordation of a Certificate of Completion shall operate to remove the effect of this Agreement or any Memorandum thereof upon the real property described in that Certificate of Co letion. 7.12 Third party Legal Challenge to Agreement or Entitlements (a) In the event that any court action or other legal proceeding is b ought by any person not a party to this Agreement to challenge this Agreement, the granting 0 any Entitlements or the fulfillment of any condition to the obligations of the parties heret , and without regard to whether or not the Developer or the Agency is a party to said actio or proceeding, provided that Developer is not otherwise in default hereunder, Develope shall have the right to terminate this Agreement and obtain the return of its Deposit upon thirty 30) day's notice in writing to Agency and Escrow Agent given at any time during the pendency' of such action or proceeding prior to the conveyance of the Site to Developer. (b) In the event of such a challenge, if this Agreement is not terminated, Developer and Agency shall meet and confer to discuss how to respond to such challenge. If the parties agree to defend against such challenge, or defense costs are otherwise reasonaply incurred by Agency or City prior to such determination, Developer shall indemnifY the Agency and the City for all expenses, including attorneys' fees, to defend the City or the Agency front any claim, action or proceeding against the City, the Agency or their agents officers, or employees to attack, set aside, void or annul the approval of this Agreement or the approval of any EntitieITlents or condition to the obligations of the parties hereto. The City and the Agency shall proniptly notifY Developer of any such claim, action or proceeding. For purposes of this Section, the Developer acknowledges that the term "attorneys' fees" includes the reasonable costs incurred by the City or Agency in the defense of any claim, action or proceeding by the City Attorney or his staff. (c) In the event of a successful challenge of the legality of this Agreement or any implementing documents, this Agreement and all implementing documents shall terminate and no party shall have any further obligation thereunder. 7.13 Prohibition Against Real Estate Speculation The purpose of the Agency in entering into this Agreement is to facilitate the redevelopment of the Site and it is not to assist in land assembly for purposes of resale or speculation. Section 33437 of Redevelopment Law prohibits real estate speculation, % particular as to Agency parcels conveyed hereunder. Any speculation by Developer is strictly p ohibited and is a basis for legal action hereunder. A memorandum ofDDA is required hereunder to be recorded and remain an exception to tile prior, superior, and non-subordinate to other ~xcePtions to title, in part, in order to carry out the objectives of Section 33347 and other applicable provisions of Redevelopment Law. ! 7.14 Entire Agreement ],ICOMMDEVlTAPlAIPROJECTSIT\llRD & NAPLES\FINAL DDA 3RD NAPLES MAR 03 04.DOC - 38 .,J-(Olf 1 This Agreement shall be executed in three duplicate originals each of which is deemed to be an original. This Agreement includes 35 pages and 4 Exhibits which constitute the entire understanding and agreement of the parties. This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements between the parties with respect to all or any part of the Site. 7.15 No Merger None of the terms, covenants, agreements or conditions set forth in this Agreement shall be deemed to be merged with the Grant Deed conveying title to the Site and this Agreement shall continue in full force and effect with respect to the Site before and after conveyance until after a Certificate of Completion for the applicable Parcel as provided in Section 3.4 is recorded. 7.16 Waivers/ Amendment in Writing All waivers of the provisions of this Agreement must be in writing and signed by the appropriate authorities of the Agency or the Developer, and all amendments hereto must be in writing and signed by the appropriate authorities of the Agency and the Developer. ßCOMMDEVITAPIAIPROJECTS\TIIIRD & NAPLES\FINALDDA JRD NAPLES MAR OJ O<.DOC - 39 ...)-110 8. TIME FOR ACCEPTANCE OF AGREEMENT BY THE AGENCY; DATE OF AGREEMENT i This Agreement, when executed by the Developer and delivered to the Agency, must be authorized, executed and delivered by the Agency within sixty (60) days after this Agreement is signed by the Developer, or this Agreement may be terminated by the Developer on written notice to the Agency. i IN WITNESS WHEREOF, tlre ""'"', "",by ""~ hu" ilii, A_' 'ffOCril æ of the date first written above. The effective date of this Agreement shall be ,2004. REDEVELOPMENT AGENCY OF THE 3RD & NAPLES, LLC CITY OF CHULA VISTA By: By: l1ì7d~ Stephen C. Padilla, Chair ~ ATTEST Its: Secretary APPROVED AS TO FORM: Ann Moore, Agency Attorney ßCOMMDEVITAPIAIPROJECTSITHIRD & NAPLESIFINAL DDA 3RD NAPLES MAR 03 04.DOC - 40 .,,3-(11 KMART RALPHS SUPERMARKET //---\ 1 /~/\ \ \~ ./.~ PROJECT \ ~ ~io~'~::.5)\ lOCATION:; / . .~\ \.../ \./~. /~/\\ ç---/ / ~/ ./ ~~ \ --- ---\. \ / MALIBU SOUTH OXFORD APARTMENTS CENTER .,.E-II'L EXHIBIT A - 2 Site Legal Description (1 of 3) All that certain real property situated in the County of San Diego, State of California, described as fo!lows: Parcell: The Westerly 57.35 feet of Lot 1 in Block 1 of Castle Park, in the City of Chula Vista, County of San Diego, State of California, according to Map thereof No. 1752, filed in the Office of the County Recorder of San Diego County, April 2, 1923. Parcel 2: That portion of Lot 1, Block 1 of Castle Park, in the City of Chula Vista, County of San Diego, State of california, according to Map thereof No, 1752, filed In the Office of the County Recorder of San Diego County, April 2, 1923, described as follows: Commencing at the most Westerly corner of said Lot 1; thence North 71°29' East along the Northwesterly line of said Lot 1, a distance of 57.36 feet to the True Point of Beginning; thence Southeasterly 52.13 feet to a point on the Southeasterly line of said Lot 1, distant thereon Northeasterly 57,36 feet from the most Southerly corner of said Lot 1; thence Northeasterly along the said Southeasterly line 59.40 feet to a point; thence Northeasterly along said Southeasterly line 59.40 feet to a point; thence Northwesterly 52.00 feet to a point on the said Northwesterly line of said Lot 1, distant thereon 59.40 feet from the True Point of Beginning; thence South 71°29' West along the said Northwesterly line 59.40 feet to the True Point of Beginning. Assessor's Parcel Number: 619-121-01-00 619-121-02-00 ..g-IIJ EXHIBIT A - 2 Site Legal Description (2 of 3) All that certain real property situated in the County of San Diego, State of California, described as follows: Lots 4 and 5 Block 1, Castle Park, In the City of of Chula Vista, County of San Diego, State of California, according to Map thereof No. 1752, filed in the Office of the County Recorder of San Diego County, April 2, 1923. Lot 6, Block 1 of Castle Park, in the City of of Chula Vista, County of San Diego, State of California, according to Map thereof No. 1752, filed in the Office of the County Recorder of San Diego County, April 2, 1923. Assessor's Parcel Number: 619-121-07-00619-121-08-00 ...3-IIC¡ _.- EXHIBIT A - 2 Site Legal Description (3 of 3) All that certain real property situated in the County of San Diego, State of California, described a~ follows: Lots 2 and 3, Block 1 of Castle Park in the City of Chula Vista, County of San Diego, State of California, according to Map thereof No, 1752, filed in the Office of the County Recorder of San Diego County, on April 2, 1923. Assessor's Parcel Number: 619-121-06-00 and 619-121-31-00 J-nç ---- II I Imlml HÐ "'- .~ ~ ! c:i ~ ' i ~~. ¡ « , 3~ p¡¡ .,1 ¡ ¡¡ ~ .. z ~"'; ! ~ .." II¡~ ~ I! I ~~ :Iil¡ ¡ií ~§ .'" .11 ~ luIl M ;~~;ih~ ; i~ .;~ ~ ] '" 0 """" = m~ ~, ..; , . ::i e ,§::i~ .' ... ! !IIIII!I! ~~i i~~. "¿ c: ¡ill ¡ I\) ;; ;i Iii " E I . c. ..5! I.~ ~ I\) ~t e.. t I > I\) 7; coC , ... I !:: 0 CO I\) - c. I ::t: 0 >< I.) W(/ . I I~ ~ i (II ' ¡ I ","ON I , .,-.. Þ." ~." . " ~ ':; ~ ,~~ ~ -;¡ ~... I ~ 11;;1 . 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'.1 'i! i _Ii. , , < ¡ ¡¡¡Iii!!!, ...... ¡g 1---- ¡; Ir! ,I. ~«~ ~! ¡iilili ~ ¡!lilln II L______-------- ~II ..-.... Ii: I, l33!ilS S31dVN "" ' ~-~------~---~ !, ," '" i =Co Q I , , i I ¡, ~! ¡'I', , ! ¡I" ~ ¡ !!li, ! ¡ all ~ < ~ ~ ~ . ~ " ~ II' ¡ " il<' ,- tj! Iii ¡g! ¡Ii 1£'. < ¡ II ~ ¡ ¡ ¡ ~ I ih Ii b1.. ¡ ¡ i .,,$-11'1 ~ ~ 1 ~ ~ 10 b EXHIBIT C Schedule of Performance (1 of 3) 1. The Redevelopment Agency ("Agency") shall consider this Agreement, and if approved, shall deliver one executed copy thereof to the Developer. Within fifteen (15) days after Agency's approval and execution of three (3) copies of this Agreement, but no later than April 1, 2004. 2. The Agency shall approve or disapprove the environmental condition of the site. No later than March 10, 2004. 3. The Agency shall open an Escrow with Continental Lawyers Title Escrow. No later than April I 0, 2004. 4. Developer and Agency shall satisfy or waive all of their respective conditions precedent to the Closing, prior to the Close of Escrow, but no later than July I, 2005. 5. Agency shall grant right-of-entry of the property to the Developer. Within ten (10) days of the Order of Possession granted by the Court. 6. Close of Escrow for conveyance. Agency shall convey the property to the Developer. No later than 10 days after the Court Order Final Order of Condemnation determining the value of the property. 7. Agency/City Council review of the conceptual plans and approval or disapproval thereof. No later than March 16, 2004. J -I , ~ EXHIBIT C Schedule of Performance (2 of 3) 8. Developer shall prepare and submit to the Agency and City complete Site improvement and construction drawings. Within sixty (60) days after approval of the conceptual plans by the Redevelopment Agency. 9. The Agency shall approve (or disapprove) and exercise reasonable efforts to cause City to approve initial submittal of construction drawings. Within ninety (90) days of submission. 10. Developer shall prepare revised Construction Drawings as necessary, and resubmit them to the City for review. Within twenty (20) days after receipt of the City's comments. 11. The Agency shall approve or disapprove and exercise good faith reasonable efforts to cause City to approve (or disapprove) the revisions submitted by the Developer, provided that the revisions necessary to accommodate the Agencies' or the City's comments have been made. Within ten (10) days after submission. 12. Developer shall prepare revised Construction Drawings as necessary, and resubmit them to the Agency and City for review. Within twenty (20) days after receipt of City's comments. 13. The Agency or City shall approve or disapprove the revisions submitted by the Developer, provided that the revisions necessary to accommodate the Agencies and City's comments have been made. Within ten (10) days of submission. 14. Developer shall submit the Final Construction Drawings for approval and Developer shall be ready to obtain building permits, provided that all revisions necessary to accommodate the Agency's and City's comments have been made. Within ten (10) days of receiving the Department's final comments. ..,.J - / 2-0 EXHIBIT C Schedule of Performance (3 of 3) 15. Developer shall commence construction of the project on the Site. Within thirty (30) days of obtaining a building permit. 16. Developer shaH complete construction of the project on the Site. Within seven (7) months of the commencement of construction, subject to strikes and forces of nature. ...]-/:L(