HomeMy WebLinkAboutRDA Packet 2000/08/01
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CllY OF
CHULA VISTA
TUISDAY, AUGUST I, 2000 COUNCIL CNAMaID
4:00 P.M. PU8L1C 5ERYlCD BUILDING
(I_EDIATILY FOUOMNG THE CITY COUNCIL MinING)
JOINT MEETING OF THE
REDEVELOPMENT AGENCY / CITY COUNCIL
CALL TO ORDER
ROLL CALL
Agency/Council Members Davis, Moot, Padilla, Salas, and Chair/Mayor Horton
CONSENT ITEMS (Items 1 and 2)
The staff recommendations regarding the fallowing item!s) listed under the Consent Calendar will be
enacted by the Agency/City 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 an 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. AGENCY APPROVING A REIMBURSEMENT AGREEMENT WITH THE HOUSE OF BLUES
RESOLUTION FOR LANDSCAPE MEDIAN IMPROVEMENTS ON MAIN STREET-On 3/28/00,
COUNCIL the Agency/Council approved the reimbursement of up to $150,000 to the House of
RESOLUTION Blues for landscape median improvements on Main Street. The first phase of the
improvements have been completed. The improvements consisted of palm trees with
uplighting and ground cover at both ends of the median. The second phase is
planned for late 2000 and will consist of additional trees, shrubbery and ground
plantings. This two phase approach allowed the median to be partially improved for
the 2000 amphitheater and water park season. The actual costs for the Phase I
improvements exceeded the estimates due to unforeseen expenses. [Community
Development Director)
STAFF RECOMMENDATION: Agency/Council adopt the resolution.
2. AGENCY APPROVING LOAN ASSUMPTION, FORBEARANCE AND DEBT REPAYMENT
RESOLUTION AGREEMENTS WITH THE TRUST FOR PUBLIC LANDS PROVIDING FOR
REPAYMENT OF OUTSTANDING $2.7 MILLION LOAN ORIGINALLY MADE
TO THE SHINOHARA TRUST IN CONNECTION WITH AUTO PARK
DEVELOPMENT-Staff has been negotiating with the Shinohara Estate and the Trust
for Public Lands (TPL) regarding the sale by Shinohora to TPL of approximately 130
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AGENDA -2- AUGUST 1,2000
acres of land near the Sweetwater Reservoir. The Agency holds a first lien on 90 of
the 130 acres of such land which secures repayment of a $1.5 million loan made by
the Agency to Shinohara in 1993. As of July 1, 2000, the amount owed under the
loan was $2.7 million. The loan was made by the Agency in order to facilitate
development of the Chula Vista Auto Park. Approval of the agreements would permit
acquisition by TPL of the San Miguel Properly subject to the Agency lien provided that
TPL repays the Agency loan on the terms described in the Agreement. [Agency
Attorney and Community Development Director)
STAFF RECOMMENDATION: Agency adopt the resolution.
ORAL COMMUNICATIONS
This is an opportunity for the general public to address the Redevelopment Agency/City Council on any
subject matter within the Agency/City's jurisdiction that is not an item on this agenda. (State law,
however, generally prohibits the Redevelopment Agency/City Council from taking action an any issues
not included on the pasted agenda.) If you wish to address the Agency/City an such a subject, please
complete the "Request to Speak Under Oral Communications Farm" 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 HEARINGS AND RELATED RESOLUTIONS AND ORDINANCES
The fallowing items have been advertised and/or posted as public hearings as required by law. If you
wish to speak to any item, please fill aut the "Request to Speak Form" available in the lobby and submit
it to the Redevelopment Agency or the City Clerk prior to the meeting.
3. PUBLIC TO CONSIDER A REQUEST TO AMEND THE OTAY VALLEY ROAD
HEARING REDEVELOPMENT PROJECT AREA IMPLEMENTATION PLAN AND DESIGN
MANUAL ADDENDUM TO LIST A CONCRETE BATCH PLANT AS A USE
ALLOWED BY SPECIAL USE PERMIT
AGENCY DENYING THE REQUEST FOR AN AMENDMENT TO THE OTAY VALLEY
RESOLUTION ROAD REDEVELOPMENT PROJECT AREA IMPLEMENTATION PLAN AND
DESIGN MANUAL ADDENDUM TO LIST A CONCRETE BATCH PLANT AS A
USE ALLOWED BY SPECIAL USE PERMIT-Superior Ready Mix Concrete requested
an application for a special use permit for a concrete batch plant on properly located
at 1855 Maxwell Road within the Otay Valley Road Redevelopment Project Area. The
Otay Valley Road Redevelopment Project Area Implementation Plan and Design
Manual Addendum, which govern the land use in the Otay Valley Road Project Area,
does not allow concrete batch plants conditionally or by right. [Community
Development Director] {CONTINUED FROM THE MEETING OF 7/25/001
STAFF RECOMMENDATION: Agency adopt the resolution.
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AGENDA -3- AUGUST 1,2000
4. PUBLIC TO CONSIDER A REQUEST TO ESTABLISH A SPORTS BAR AND GRILL AT
HEARING 217 THIRD AVENUE WITHIN THE TOWN CENTRE I REDEVELOPMENT
PROJECT AREA
AGENCY APPROVING THE SPECIAL LAND USE PERMIT TO ALLOW THE
RESOLUTION ESTABLISHMENT OF A SPORTS BAR AND GRILL AT 217 THIRD AVENUE
WITHIN THE TOWN CENTRE I REDEVELOPMENT PROJECT AREA-The land
use is not permitted by right within the commercial area of the Town Centre
Redevelopment Project. In accordance with the Town Centre Redevelopment Plan, the
proposal requires consideration by the Redevelopment Agency. The proposal qualifies
for a Class 1 categorical exemption per Section 15301 of the Guidelines for
Implementation of the California Environmental Quality act as the leasing of an
existing facility. [Community Development Director]
STAFF RECOMMENDATION: Agency adopt the resolution.
5. PUBLIC TO CONSIDER THE SALE OF SPACE 48 AT ORANGE TREE MOBILEHOME
HEARING PARK
AGENCY AUTHORIZING THE COMMUNITY DEVELOPMENT DIRECTOR TO EXECUTE
RESOLUTION A PURCHASE CONTRACT AND RELATED DOCUMENTS FOR SPACE 48 AT
ORANGE TREE MOBILEHOME PARK-In November 1987, Orange Tree
Mobilehome Park converted to resident ownership. The Agency assisted the residents
in purchasing their park. At that time, 29 residents did not wish to purchase their
space, and the Agency agreed to purchase these spaces. The residents who did not
purchase their space remained as renters. The Agency's desire is to sell these spaces
as new homebuyers move into the park. The Agency currently owns 11 spaces,
having sold 18 spaces. The Agency has received an offer to purchase Space 48 from
the current occupant. (Director of Community Development)
STAFF RECOMMENDATION: Agency adopt the resolution.
OTHER BUSINESS
6. DIRECTOR'S REPORT(S)
7. CHAIR'S REPORT(S)
8. AGENCY COMMENTS
ADJOURNMENT
The meeting will adjourn to a closed session and thence to a regular meeting of Redevelopment Agency on
August 15, 2000 at 6:00 p.m., immediately following the City Council meeting, in the City Council
Chambers.
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AGENDA -4- AUGUST 1, 2000
CLOSED SESSION
Unless Agency Counsel, the Executive Director, or the Redevelopment Agency states otherwise
at this time, the Agency will discuss and deliberate on the following item(s) of business which
are permitted by law to be the subject of a closed session discussion, and which the Agency is
advised should be discussed in closed session to best protect the interests of the City. The
Agency 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's return from closed session, reports of final action token, and adjournment will
not be videotaped. Nevertheless, the report of final action taken will be recorded in the
minutes which will be available in the Office of the Secretary to the Redevelopment Agency
and the City Clerk's Office.
9. CONFERENCE WITH LEGAL COUNSEL REGARDING EXISTING LITIGATION -- Pursuant to
Government Code Section S49S6.9(a)
a. Agency vs. Shinohara [Case No. GISO02460]
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JOINT REDEVELOPMENT AGENCY / CITY COUNCIL
AGENDA STATEMENT
ITEM NO.: (
MEETING DATE: 08/01/00
ITEM TITLE: RESOLUTION APPROVING A REIMBURSEMENT AGREEMENT WITH
THE HOUSE OF BLUES FOR PHASE 1 LANDSCAPE MEDIAN
IMPROVEMENTS ON MAIN STREET
SUBMITTED BY: COMMUNITY DEVELOPMENT DIRECTOR L.\t-.fo1 G,S,.
REVIEWED BY: CITY MANAGER ,¡
4/5THS VOTE: YES D NO D
BACKGROUND
On March 28, 2000, the City Council and Redevelopment Agency approved the reimbursement
of up to $150,000 to the House of Blues for landscape median improvements on Main Street.
The first phase of the improvements have been completed. The improvements consisted of palm
trees with uplighting and ground cover at both ends of the median. The second phase is planned
for late 2000 and will consist of additional trees, shrubbery and ground plantings.
This two-phase approach allowed the median to be partially improved for the 2000 amphitheatre
and water park season. The Phase 1 improvements were estimated to be $150,000; however, the
actual costs exceeded this due to unforseen costs. The attached reimbursement agreement is for a
total of $191,896 and is being presented for Council consideration.
RECOMMENDATION
That the City Council and Redevelopment Agency approve the reimbursement agreement with
House of Blues for landscape median improvements on Main Street.
BOARDS/COMMISSIONS RECOMMENDATION
Not applicable.
DISCUSSION
As discussed above, the Council/Agency had approved the reimbursement of up to $150,000 to
House of Blues for Phase 1 median improvements. The actual costs ($191,896) exceeded the
estimate primarily due to the following:
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PAGE 2, ITEM NO.: (
MEETING DATE: 08/01/00
1) removal of pavement and concrete under the median;
2) temporary power for lighting during concerts; and
3) landscape architecture fees.
The total cost ($191,896) for Phase 1 is detailed in the attached reimbursement agreement. The
second phase improvements are estimated to cost up to an additional $250,000. Funding for
both Phase 1 and 2 have been allocated in the City's Copitallmprovement Program (CIP).
The second phase will include additional trees, ground cover and shrubs, in addition to city
streetlights and hardscape. Plans for Phase 2 are expected to be submitted for staff review in the
next few months with improvements planned to commence at the end of the concert season in
November 2000. Staff will keep the Council/Agency apprised.
Staff had planned to amend Open Space District 23 to include the londscape median
improvements, but are now currently investigating other options for the ongoing maintenance. In
the interim, House of Blues ond Knott's Soak City will be paying for the maintenance. They have
also agreed to waive challenges to the amendment of the existing open space district and/or the
formation of new district that would finance Phase 1 maintenance costs on an ongoing basis. The
reimbursement agreement accounts for the payment to the Redevelopment Agency of one half of
the maintenance costs of the median maintenance for fiscal year 2000/2001. A letter agreement
will be executed between the Redevelopment Agency and Knott's Soak City for the remainder of
the costs. The estimate for the maintenance of the Phase 1 improvements is $10,883. This cost
will be adjusted when the Phase 2 improvements are completed.
FISCAL IMPACT
House of Blues will be reimbursed $191,896 for the Phase I improvements from CIP fund LD1 07.
H ,\HOME\COMMDEY\ST AFF. REP\OB-O 1 .OO\land,capemedian.dac
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AGENCY RESOLUTION NO.
AND
COUNCIL RESOLUTION NO.
JOINT RESOLUTION OF THE CITY COUNCIL AND THE
REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA
APPROVING A REIMBURSEMENT AGREEMENT WITH THE HOUSE
OF BLUES FOR PHASE 1 LANDSCAPE MEDIAN IMPROVEMENTS
ON MAIN STREET
WHEREAS, on March 28, 2000, the City Council and Redevelopment Agency approved the
reimbursement of up to $150,000 to the House of Blues for Phase 1 landscape median
improvements on Main Street; and
WHEREAS, the Phase 1 improvements consisted of uplit palm trees, groundcover and
irrigation; and have been completed to the City's satisfaction; and
WHEREAS, the actual cost of the Phase 1 improvements exceeded the $150,000 due to
unanticipated expenses; and
WHEREAS, the reimbursement agreement is for a total of $191,896; and
WHEREAS, the funds have been set aside in the Capital Improvement Program; and
WHERAS, the House of Blues and Knott's Soak City have agreed to pay for the interim
maintenance of the Phase 1 improvements, and have agreed not to challenge the amendment of the
existing open space district, and/or the formation of a new district
NOW, THEREFORE, BE IT RESOLVED the Redevelopment Agency of the City of Chula
Vista and City Council do hereby approve the reimbursement agreement between the City and the
House of Blues for Phase 1 landscape median improvements on Main Street in the form presented
with such minor modifications as may be required or authorized by the City Attorney; and
BE IT FURTHER RESOLVED that the Mayor is authorized and directed to execute same.
Presented by Approved as to form by
Chris Salomone
Director of Community Development
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lIr BITTERLIN DEVELOPMENT CORP.
1'.0. 11°' hi.!h ~,'" LJìq;o. C¡\ 'J2lhh 1'1"'l1c' 71 S.h~'1J FAX hl".71,'."'~'
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MEMO I
To: Debra Depratti
From: Chris Bitterlin
Date: July 10, 2000
Re: Otay Valley Rd. Median Landscape
Attached are copies ofa final invoice from Valley Crest ($175,396. which includes
Environs construction design work), a previous agreement with Environs for his
concept design ($4000) and a previous change order from Project Design
Consultants ($12,500) for original design work in 1998. Please process payment to
House of Blues Concerts, Inc. in the amount of$191,896. and send it to:
Bitterlin Development
P.O. Box 6746
San Diego, CA 92166
Thank you for your good and efficient work on this project.
cc: John Van Zeebroeck
Tony Collura
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.. VALLEY CREST INVOICE
8J 627354
A subsidiary of environmental Industnes. inc. LA ND5CAPElENGI N EERING/CONTRACTOR5 An equal opportunity employ", by choice.
8484 Miramar Place, San Diego, CA 92121 . (619) 458.9900
2351963
THE HOUSE OF BLUES
C/O BITTERLIN DEVELOPMENT
2245 SAN DIEGO AVE., STE 121
SAN DIEGO, CA 92166
Invoice Date 1 Job No. I Job Name
06/30/00 103200 OTAY VALLEY ROAD LANDSCAPE
DESCRIPTION
BASE CONTRACT
LANDSCAPE 6e.858.00
IRRIGATION 43,566.00
LI GHTI NG 33,472.00
SUBTOTAL 145,896.00
BREAK AND REMOVE APPROX. 2,000 SF OF EXISTING ASPHALT CONCRETE 18,000.00
TEMPORARY POWER FOR LIGHTING DURING CONCERTS 10,000.00
ADD'L LABOR & MATERIALS TO CONNECT SDG&E POWER LOCATION 1 ,500.00
/ ~ fo TOTAL 175,396.00
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CONDITIONAL WANER AND RELEASE
UPON PROGRESS PAYMENT
(CN1L CODE 3262(d) (I))
Upon receipt of the undetsigned of a check from
The Honse of Blues c/o BitterIin Development
(M,J<., ofCh«k)
in rhe sum of$ 175,396.00
(AmounrofCh«k)
payable to V alley Crest
(P,Y" °' P'Y'" ofCh«k)
and when the check Ius been properly endorsed and has been paid by rhe bank upon which it is drawn, rhis
document shall become effective to release any mechanic's lien, stop notice, or boad right rhe under. sigoed
has on rhe job of City ofChula Vista
(Own,,)
located at Otay Valley Road Median, Comer of Otay Valley and Nirvana, Chula Vista, CA
(Job O""il',;on)
to rhe following extent.
This release eavers a progress paymeat for labor, services, equipment or material furnished to
The House of Blues c/o Bitterlin Development
(You, C""om,,)
through 6/30/00
(0",)
only, and does not cover any retentions retained before or after rhe release date; exttas furnished before rhe
release date for which payment has not been received; extras or items furnished after rhe release date. Rights
based upon work performed or items furnished under a written change order which has been fully executed by
rhe parties prior to the release date are covered by rhis release unless specifically reserved by the claimant in rhis
release. This release of any mecluaic's liea, stop notice, oc bond right slull aot orherwise affect the contract
rights, iacluding rights between parties to rhe contract based upon a cescission, abandonment, or breach of rhe
contract, or the right of the undersigned to recover earn. pensation for furnished labor, services, equipment, or
material covered by this release if tlut furnished labor, services, equipment or material was not compensated by
the progress payment. Before any recipient of rhis document relies on it, said party should verify evidence of
payment to rhe undmigned.
Dated: 10.Jul.00 V ALLEY CREST
By: lddrltJctL dì ~w~n(Â~
Marild, L. Lavenant. OFF! M GER
NOTE: This form complies wirh rhe requirements of Civil Code Sectioa 3262 (dXI). It is to be used
by a party who applies for a progress payment when rhe progress payment check Ius not yet cleared
the bank.
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I' I .\ " , IN" F N ,. I N I' F " IN'. "'" \ F \ IN"
22 Years a/Excellence. 1976.1998 CC'.-4 /~
File: 1079.IOC
F98-322
June IS, 1998
Mr. Chris Bitterlin
c/o UNIVERSAL CONCERTS, INC. -# /-<; bOO. -
100 Universal City Plaza, SC/24
Uo'"",,¡ 0;". CA 9I~
SUBJECT: Change r:e:~o. 6- tay Valley Road Landscape Improvement Plans
Dear Mr. Bitterlin,
Pursuant to your request, we are submitting this change order to provide landscape
architectural services for median improvements in Otay Valley Road. This change order is
based on our understanding of the project as follows:
1. The City of Chula Vista desires that a complete landscape improvement plan package
be prepared for the median of Otay Valley Road between (approximately) Stations
68+00 and 98+00.
2. The plans will continue the median treatment of Otay Valley Road as currently
implemented east of Interstate 805.
3. The City of Chula Vista and Universal Concerts, Inc. intend to enter into an agreement
that provides for construction of a portion of the landscape improvements by Universal
Concerts, Inc. These interim or Phase I improvements will be illustrated on the plans
contemplated by this change order.
4. Project Design Consultants will set up the landscape improvement plan package such
that the complete median design is illustrated and then designate those items to be
constructed by Universal Concerts, Inc. as part of the to.be-agreed.upon interim
construction.
5. Project Design Consultants will prepare the plans for first City review within a two.
week time frame from written notification to proceed, if the requested current base
information is available from the City.
CON\1O7191C6L.OOC (~~
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Mr. Chris Bitterlin
June 15, 1998
Page 2
6. Project Design nsultants ill provide the services ~inê~the attached Scope of
Work for a fee 0 $11,250 d a reimbursables budget f$~
If this Scope of Work, fee, and schedule are acceptable, please acknowledge by signing
below and returning a copy for our files.
Thank you for the opportunity to continue to be a part of the Coors Amphitheatre process.
Sincerely,
6-~~ ~~
Thomas W. Blessent, ASLA William R. Dick, PE
Vice President Vice President
Enclosure
BUDGET CHANGE ORDER NO.6 ~ 6!rq I 'f~
ACKNOWLEDGED AND ACCEPTED BY:
r 'Date
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REIMBURSEMENT AGREEMENT FOR PUBLIC IMPROVEMENTS
(Main Street Phase I Improved - Nirvana to Heritage)
This REIMBURSEMENT AGREEMENT FOR PUBLIC IMPROVEMENTS (Main
Street Phase I Improved - Nirvana to Heritage) ("Reimbursement Agreement") is is entered
into effective as of March 28, 2000, by and between the CITY OF CHULA VISTA (the "City")
and House of Blues Concerts, Inc. (the "Developer").
RECITALS
The following recitals are a substantive part of this Agreement:
A. The Agreement relates to landscape improvements to the Main Street median
consisting of palm trees, uplighting, ground cover and irrigation as more particularly described
on Exhibit A attached hereto ("Public Improvements").
B. City has determined that it would be expeditious for Developer and its
contractor(s) to actually construct and complete the Public Improvements, subject to
reimbursement of the cost thereof by the City in the maximum amount of$191,896.
C. Developer desires by this Reimbursement Agreement to cause the construction
and completion of the Public Improvements, subject to the City reimbursement to Developer of
the cost thereof pursuant to this Agreement.
D. Developer has agreed to bear the costs of maintaining the Public Improvements in
conjunction with Knott's Soak City.
NOW, THEREFORE, the City and Developer agree as follows:
Section 1. Construction of Public Improvements. Developer shall construct or cause its
contractor to construct the Public Improvements. The identity of the Developer's contractor
responsible for the construction of the Public Improvements (the "Contractor") is subject to the
approval of the Community Development Director and City Engineer, which approval shall not
unreasonably be withheld. Developer fully assumes all obligations, requirements and conditions
under the Agreement with respect to the completion of the Public Improvements and Developer
agrees to construct the Public Improvements in accordance with the Plans and Specifications (as
defined in Section 5 below) and applicable City standards, regulations, and state and federal
laws.
Section 2. Reimbursement. Developer shall cause the undertaking and completion of and shall
pay for the costs of engineering, design, administrative management and the construction and
completion of the Public Improvements, including without limitation bond costs, as more
particularly provided below. City shall reimburse Developer for up to $191,896 ("Maximum
Reimbursement Amount") in such costs, as and when the work of improvement and all the
Public Improvements are completed, the Final Accounting Procedure as described herein has
been accomplished, and Developer has committed to pay the costs to maintain the Public
Improvements as provided herein. Qualified expenses include plant materials, lighting, electrical
R\HOME\COMMDEV\ANDERSONlMai" Sl Reimbu<semenIAgmt.doc
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and irrigation materials and the labor to install all the above. In addition, landscape architecture
fees, demolition and hauling expenses and temporary lighting are deemed qualified. Unqualified
expenses include work outside the scope of the Phase 1 improvements not approved by the City,
including developer fees, additional plant and lighting materials, etc.
Section 3. Cost of Other Improvements. Developer shall bear all costs of any and all the
Public Improvements in excess of the Maximum Reimbursement Amount.
Section 4. Bidding and Award. Developer shall solicit not fewer than three (3) bids for each
portion of the Public Improvements. The Developer shall use reasonable efforts to solicit and
obtain bids from local businesses by making available all plans for the Public Improvements to
local contractors by submission to local trade publications. The Developer shall enter into
construction contract(s) with the selected bidder(s), the Contractor(s), for the performance of the
work set forth in the selected bide s). The Developer shall submit to the City a summary of all bid
solicitations, bids, and construction contracts within fifteen (IS) after each construction contract
is executed. To the extent feasible, contracts for work to be performed in connection with the
construction of the Public Improvements shall be awarded to business concerns which are
located in, or owned in substantial part by persons residing within, the City.
Section 5. Stop Notices. Developer shall include in each construction contract a provision
authorizing Developer to withhold payments otherwise due to such Contractor for work on the
Public Improvements in the event that stop notices are filed with City. In the event that a
stop notice, which is valid on its face, is timely filed with City, City will promptly notify
Developer. In the event that any apparently valid stop notices are on file with City when
Developer renders its final accounting to City in accordance with Section 15 herein, City shall
withhold from the amount owed to Developer under this Reimbursement Agreement a sum equal
to 125% of the amount claimed in each stop notice until Developer provides the Community
Development Director proof of payment and unconditional release, conditional release and
payment, expiration by operation of law, or disposition pursuant to court order of such stop
notice.
Section 6. Bonds. Developer shall obtain and maintain, or require each Contractor or
subcontractor constructing the Public Improvements to obtain and maintain, faithful performance
and labor and material bonds in a form approved by the City Attorney, each with a responsible
corporate surety business within the State of California and subject to the qualification
requirements for surety bonds for other City public works contracts, in amounts equal to 100% of
the estimated cost to construct the Contractor's or subcontractor's portion of the Public
Improvements for the faithful performance bond and 100% of the estimated cost to construct the
Contractor's or subcontractor's portion of the Public Improvements for the labor and material
bond. The faithful performance bond shall be released ninety (90) days after the Developer or
Contractor records a notice of completion. All surety bonds shall be issued by a surety company
admitted in California and such company(ies) shall have an "AS' or better rating. The labor and
material bond shall be released ninety (90) days after the Developer or Contractor records in the
Official Records, County of San Diego, a notice of completion pursuant to Civil Code Section
3093.
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Section 7. Compliance With Laws. The Developer shall carry out the design, construction and
operation of the Project in conformity with all applicable laws, including all applicable state labor
standards, the City zoning and development standards, building, plumbing, mechanical and electrical
codes, and all other provisions of the City Municipal Code, and all applicable disabled and
handicapped access requirements, including without limitation (to the extent applicable) the
Americans With Disabilities Act, 42 V.S.C. Section 12101, et seq., Government Code Section 4450,
et seq., Government Code Section IIB5, et seq., and the Unruh Civil Rights Act, Civil Code
Section 51, et seq.
Section 8. Insurance. Developer shall not pennit Contractor(s) to commence work until
Contractor(s) has obtained the insurance required herein and such insurance has been approved
by City as to fonD and amount.
(a) Developer shall require each Contractor to obtain and maintain, during the tenD of
this Reimbursement Agreement, workers compensation insurance; and, if any work is
subcontracted, Developer shall require all subcontractors to provide workers compensation
insurance. The Contractor's workers compensation insurance shall provide that the insurance
may not be cancelled until thirty (30) days after written notice of such cancellation is provided to
City.
(b) Developer shall obtain and maintain, or require each Contractor to obtain and
maintain, during the life of this Agreement the following insurance coverage:
(i) Comprehensive general liability and automobile liability with limits not
less than five million dollars ($5,000,000) combined single limit and per occurrence.
(ii) An endorsement shall be obtained for the policies providing the above
insurance naming the City as additional named insureds and providing for thirty (30) days
advance notice of cancellation.
(iii) Developer shall provide to Community Development Director proof
satisfactory to Community Development Director showing the above insurance coverage prior to
pennitting such Contractor to begin work under this Agreement on a Construction Contract.
Any certificate of insurance must be in a fonD and content approved by the City Attorney.
Section 9. Hold Harmless. Developer agrees to protect, defend, indemnify and hold hanDless
the City and its elective and appointive boards, officers, agents and employees from any and all
claims, liabilities, expenses or damages of any nature, including attorney fees, for injury to or
death of any person, and for injury to any property, including consequential damages of any
nature resulting therefrom, arising out of or in any way connected to the construction of the
Public Improvements by or on behalf of Developer, including damages resulting, or allegedly
resulting from violation of any statute, regulation or other legal requirement concerning a safe
place for employment of workers, except to the extent of damages resulting from the negligence
or City. Nothing contained in this Section, however, shall be deemed to be a warranty against
construction defects, the only such warranty being contained below.
Developer shall comply with and shall require Contractor(s) to comply with all of the
provisions of the Workers' Compensation Insurance and Safety in Employment Laws of the
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State of California, including the. applicable provisions of Divisions 4 and 5 of the California
Labor Code and all similar state, federal or local laws applicable; and shall indemnify and hold
harmless City from and against all claims, liabilities, expenses, damages, suits, actions,
proceedings and judgments of every nature and description, including reasonable attorney's fees,
presented, brought or recovered against City or their officers, employees, and agents, for or on
account of any liability under any of said laws which may be incurred by reason of any work
performed under this Agreement by Developer or on behalf of Developer.
City does not, and shall not, waive any rights against Developer which it may have by
reason of the aforesaid hold harmless agreements because of the acceptance by City or the
deposit with City by Developer of any insurance policies or certificates of insurance purporting
to indemnify for the aforesaid losses. The aforesaid hold harmless agreements shall apply to all
liabilities, claims, expenses, and damages of every kind including but not limited to attorney
fees, suffered or alleged to have been suffered, by reason of the aforesaid operations of
Developer or any contractor or others performing on behalf of Developer, regardless of whether
or not such insurance policies are applicable.
Section 10. Contract(s) Warranty. Developer shall include in its agreement with
Contractor(s) the following provision:
Contractor(s) WARRANTS to Developer and to the City of Chula Vista that all materials
used in the work and all labor performed shall be in conformity with the plans and specifications.
Contractor(s) shall, at his own expense, make any and all repairs and replacements that shall
become necessary as the result of any failure of the work to conform to the aforementioned
plans, specifications; provided, however, that Contractor shall be obligated under this provision
only to the extent of those failures or defects of which it is given notice within a period of twelve
(12) months ITom the date that the Notice of Completion is recorded.
Section 11. Administration of Contract and Schedule of Performance. Developer shall be
due no fee to administer, manage, and/or supervise the performance of the Contract(s). The
Developer shall use reasonable efforts to complete the Public Improvements in conformity with
the Schedule of Performance under the Agreement. Any material changes in the scope of the
work to be performed by Contractor(s) or other change orders under the Construction Contract(s)
relating to the Public Improvements shall be reviewed and approved by the City in writing prior
to Contractor's commencement of such work.
Section 12. Inspection. Construction inspection of the Public Improvements shall be
performed by City Public Works Inspectors. Plan check and inspection fees shall be
reimbursable expenses.
Section 13. Final Accounting. Following completion of construction of the Public
Improvements and following full payment of all third party invoices for materials, supplies and
contractors for the completion of the Public Improvements, Developer shall submit to City a
final accounting to determine the total cost of design, engineering, constructing and related work
thereto to complete the Public Improvements. Developer shall also submit all supporting
information reasonably necessary to document Developer's expenditures on the Public
Improvements, including specific details on the costs and work attributable to the Public
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Improvements, including invoices, third-party invoices, billings, and receipts for construction
surveying, soil testing, blueprinting, actual construction costs and similar expenses. The final
reimbursement payment by City of up to the Maximum Reimbursement Amount will be made
only after Developer has submitted all documentation reasonably necessary to substantiate the
cost of constructing and completing the Public Improvements in accordance with the Approved
Plans. Final inspection and sign.off by the City's Public Works Inspectors shall be sufficient
evidence of the completion of the Public Improvements.
Section 14. Maintenance of Public Improvements. Developer agrees to pay its pro rata
share of the ongoing maintenance costs of the Public Improvements in perpetuity. For fiscal year
2000/2001, Developer's share of maintenance costs shall be $5,441. 76. Developer shall pay such
costs in advance as directed by the City's Finance Director. Developer's payment of its fiscal
year 2000/2001 share of maintenance costs, and Knott's Soak City's payment of its pro rata share,
shall be a condition precedent to City's Public Improvements reimbursement obligation
hereunder. City is contemplating an amendment to existing Open Space District No. 23, or the
formation of a new assessment district as a mechanism to collect the ongoing maintenance costs
of the Public Improvements and/or other related improvement costs. Developer agrees, on its
own behalf, and on behalf of its successors and assigns, to waive any and all challenges to such
formation, and to support such formation.
Section 15. Default. Failure or delay by either party hereto to perform any term or provision
of this Reimbursement Agreement shall constitute a default under this Agreement. The party
who so fails or delays must immediately commence to cure, correct, or remedy such failure or
delay, and shall complete such cure, correction or remedy with diligence. In the event of a
default, the injured party shall give written notice of default to the party in default, specifying the
default complained of by the injured party. Except as required to protect against further
damages, the injured party may not institute proceedings against the party in default until thirty
(30) days after giving such notice, provided however, that no proceedings shall be instituted if
the defaulting party shall commence and proceed to cure such default in a diligent manner and
the nature of the default is such that it cannot be cured within thirty (30) days. Failure or delay
in giving such notice shall not constitute a waiver of any default, nor shall it change the time of
default.
Section 16. Notices. Any notice, request, demand, consent, approval or other communication
required to be given shall be addressed as set forth in the Agreement.
Section 17. Non-Discrimination. Developer agrees to comply with the non-discrimination
requirements of the Agreement in the performance of its obligations hereunder.
Section 18. Governing Law. This Reimbursement Agreement shall be governed by the laws
of the State of California. Any legal action brought under this Agreement must be instituted in
the Superior Court of the County of San Diego, State of California, in an appropriate municipal
court in that county, or in the Federal District Court in the Southern District of California.
Section 19. Amendment of Agreement. No modification, rescission, waiver, release or
amendment of any provisions of this Agreement shall be made except by a written agreement
executed by Developer and City.
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H:IHOMEICOMMDEV\ANDERSON\Main St ReimbursementAgmtdoc / -/7
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Section 20. Independent Contractor. Developer and its Contractor(s) shall be acting as
independent contractors under this Agreement, and not as an agent, partner or employee of the
City.
Section 21. Developer Assignment Prohibited. In no event shall Developer assign or
transfer any part of this Reimbursement Agreement without the prior express written consent of
City, which consent may be given or withheld in City's sole discretion.
Section 22. Entire Agreement. This Reimbursement Agreement together with all
attachments hereto constitute the entire understanding and agreement of the parties with respect
to the subject matter of this transaction. This Reimbursement Agreement integrates all of the
terms and conditions mentioned herein or incidental thereto, and supersedes all prior
negotiations, discussions and previous agreements between the parties concerning all or any part
ofthe subject matter of this Reimbursement Agreement.
Section 23. Attorneys' Fees and Costs. In the event that any action is instituted under this
Reimbursement Agreement, the parties hereto agree that the non.prevailing party shall be
responsible for and shall pay all costs and attorneys' fees incurred by the prevailing party in
enforcing this Reimbursement Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Reimbursement
Agreement as of the date set forth above.
[SIGNATURE PAGE ON NEXT PAGE]
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K\HOME\COMMDEVlANDERSON\Main St Reimbu<sementAgmt.doc 1-
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APPROVED AS TO FORM CITY OF CHULA VISTA, a chartered
municipal corporation
City Attorney
By:
Shirley Horton, Mayor
"CITY"
ATTEST
House of Blues Concerts, Inc.
City Clerk By:
(Print Name and Title)
House of Blues Concerts, Inc.
By:
(Print Name and Title)
"DEVELOPER"
H:\HOME\COMMDEVIANDERSON\Main St ReimbursementAgmtdoc ) 9
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EXHIBIT A
PUBLIC IMPROVEMENTS DESCRIPTION
(TO BE ATTACHED)
Attachment No. I
Page t of t
K\HOME\COMMDEV\ANDER50N\Main 5t Reimbu"ementAgmt.doc
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REDEVELOPMENT AGENCY AGENDA STATEMENT
ITEM NO.: d-
MEETING DATE: 08/01 /00
ITEM TITLE: RESOLUTION APPROVING LOAN ASSUMPTION, FORBEARANCE
AND DEBT REPAYMENT AGREEMENTS WITH THE TRUST FOR
PUBLIC LANDS PROVIDING FOR REPAYMENT OF OUTSTANDING
$2.7 MILLION LOAN ORIGINALLY MADE TO THE SHINOHARA
TRUST IN CONNECTION WITH AUTO PARK DEVELOPMENT
SUBMITTED BY: AGENCY ATTORNEY ~~.fII(,~
COMMUNITY DEVELOPMENT DIRECTOR
REVIEWED BY: EXECUTIVE DIRECTOR &X' ~"./
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4/5THS VOTE: YES D NO 0
BACKGROUND
Staff has been negotiating with the Shinohara Estate and the Trust for Public Lands regarding the
sale by Shinohara to TPL of approximately 130 acres of land near the Sweetwater Reservoir. The
Agency holds a first lien on 90 of the 130 acres of such land which secures repayment of a $1.5
million loan made by the Agency to Shinohara back in 1993. As of July 1, 2000, the amount owed
under the loon was $2.7 million. Staff recommends approval of the agreements which would permit
acquisition by TPL of the San Miguel Properly subject to the Agency lien provided that TPL repays the
Agency Loan on the terms described below.
RECOMMENDATION
Adopt the Resolution approving and authorizing the Chairman, to execute the agreements and
directing staff to take all necessary and appropriate measures to implement some.
BOARDS/COMMISSIONS RECOMMENDATION
Not applicable.
DISCUSSION
In January, 2000, the Redevelopment Agency filed suit against the Shinohara Estate for
repayment of a $1.5 million loan. The loan was made by the Agency in 1993 to facilitate
development of the Chula Vista Auto Park. Loan proceeds were used to fund the unanticipated
costs of removing contaminated soils and construction debris at the site. The loan was secured
by approximately 90 acres of land located near the Sweetwater Reservoir. As of July 1, 2000,
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PAGE 2, ITEM NO.:
MEETING DATE: 08/01/00
the Agency was owed approximately $2.7 million in principal, accrued interest, and attorney's
fees under the loan.
In April, an entity called the Trust for Public Lands expressed interest in buying the Sweetwater
Properly on behalf of the U.S. Department of Fish and Wildlife. Agency staff has been very
supportive of TPL's purchase as a better alternative to Agency foreclosure proceedings. TPL has
valued the properly (including an adjacent 40 acre parcel currently not subject to the Agency's
lien) at approximately $3.5 million. TPL's purchase at that price should generate sufficient
proceeds to payoff close to the entire Agency debt.
Repayment Terms
TPL has proposed to purchase the Shinohara Estate equity in the properly for a purchase price
equal to a previously negotiated purchase price (believed to be approximately $3.5 million), less
(1) amounts owed to the County for back taxes (approximately $300,000), and (2) amounts
owed to the Agency under the loan at the closing of the purchase. TPL would then take title to the
properly subject to the Agency lien and assume responsibility for repayment of the Agency debt.
The terms for TPL's repayment of the Agency debt are as follows:
1. TPL will pay the Agency $100,000 against principal owed at close of escrow for its acquisition
of the properly.
2. Exceptions to title to the properly will be cleared at close of escrow to Agency's satisfaction; TPL
will indemnify City against defects in its first lien position. (Agency may also obtain, at its cost,
title insurance for its first lien position.)
3. Agency will be granted a first priority deed of trust on the adjacent 40.acre parcel (thereby
increasing its security from 90 to 130 acres).
4. TPL would stipulate to the amount due and waive all defenses.
5. TPL shall keep current on assessed properly taxes and pay all back taxes due (currently
$300,000) upon demand by the County. This is expected to occur on or before February 23,
2001 unless the County grants further extensions.
6. The balance of the Agency loan will be retired by no later than May 31, 2001; provided,
however, TPL may extend the final payment date until May 1, 2002 if it poys the Agency
$1,000,000 towards retirement of principal by May 31, 2001. Interest will be recaptured
(back to July 1, 2000) on the remaining balance, and will accrue interest thereafter at the rate
of the greater of 10% per annum or the then existing Prime Rate plus 2%. (The Prime Rate is
currently 9.5%.) Equal quarterly payments of principal and interest will also be due.
7. The Agency shall waive interest accruing under the loan from July 1, 2000 until May 31, 2001
(this waiver equals approximately $240,000).
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PAGE 3, ITEM NO.:
MEETING DATE: 08/01/00
8. The Agency will release the property from the lien securing the Shinohara Estate's indemnity
obligation to clean up the Shinohara stockpile at the Auto Park. (Current clean.up costs are
estimated at $550,000; the Agency will retain its rights to require a clean.up under its
regulatory authority and/or to clean.up the stockpile itself and seek reimbursement out of
other Shinohara Estate assets.)
9. Prior to closing, TPL shall demonstrate its financial capacity to fulfill its debt buyout obligation
to Agency's satisfaction.
Staff is recommending approval of this agreement. This approach offers the potential for almost
complete repayment of the Agency debt with reduced risks of litigation. TPL is motivated to
complete the transaction and will be a lower risk debtor than the Shinohara Estate. Even if TPL
fails to complete the sale voluntarily, the Agency's security value will be enhanced by TPL's
payment of property taxes and the addition of 40 acres of real property security. If a lawsuit
becomes necessary, TPL will have waived its defenses.
A copy of the agreement and drafts of the implementing agreements are attached.
FISCAL IMPACT
Under the Agreements the Agency will receive repayment of $100,000 by October 1, 2000 and
at least $1,000,000 by May 31, 2001 The remaining loan balance of $1.6 million in principal
and approximately $320,000 in additional interest would be repaid by May 31, 2002.
AnACHMENTS
1. Agreement Regarding Assumption of Note and Deed of Trust [Final)
2. Forbearance Agreement [Draft]
H:\HOME\COMMDEV\ST AFF .REP\OB-O l-OO\shinohora .doc
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RESOLUTION NO.
RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE
CITY OF CHULA VISTA APPROVING LOAN ASSUMPTION,
FORBEARANCE AND DEBT REPAYMENT AGREEMENTS WITH
THE TRUST FOR PUBLIC LANDS PROVIDING FOR
REPAYMENT OF OUTSTANDING $2.7 MILLION LOAN
ORIGINALLY MADE TO THE SHINOHARA TRUST IN
CONNECTION WITH AUTO PARK DEVELOPMENT
WHEREAS, staff has been negotiating with the Shinohara
Estate and the Trust for Public Lands ("TPLU) regarding the sale by
Shinohara to TPL of approximately 130 acres of land near the
Sweetwater Reservoir; and
WHEREAS, the Agency holds a first lien on 90 of the 130
acres of such land which secures repayment of a $1.5 million loan
made by the Agency to Shinohara back in 1993; and
WHEREAS, as of July 1, 2000, the amount owed under the
loan was $2.7 million; and
WHEREAS, staff recommends approval of the agreements
which would permit acquisition by TPL of the San Miguel Property
subject to the Agency lien provided that TPL repays the Agency Loan
on the terms and conditions set forth therein.
NOW, THEREFORE, BE IT RESOLVED the Redevelopment Agency
of the City of Chula Vista does hereby approve the Loan Assumption,
Forbearance and Debt Repayment Agreements with the Trust for Public
Lands Providing for Repayment of Outstanding $2.7 million Loan
originally made to the Shinohara Trust in connection with Auto Park
Development, in substantially the form presented with such minor
modifications as may be required or approved by the Agency
Attorney.
BE IT FURTHER RESOLVED that the Chairman of the
Redevelopment Agency is hereby authorized and directed to execute
said Agreements for and on behalf of the city of Chula Vista an
Agency staff is authorized and directed to take all necessary and
appropriate actions to implement same.
Presented by Approved as to form by
Chris Salomone
Community Development Director
[HIHOMEIATTORNEYIRESOI TPL Ag",moot (Jcly 28. 2000 (217pm)] V
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ATTACHMENT 1
AGREEMENT RE ASSUMPTION OF NOTE AND DEED OF TRUST
This Agreement (this "Agreement") is entered into as of July 11,2000 between the
REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA, a political subdivision of
the State of California ("Chula Vista") and THE TRUST FOR PUBLIC LAND, a California
nonprofit public benefit corporation ("TPL"). Chula Vista and TPL together may hereinafter be
refelTed to as the "Parties," and individually as "Party."
RECITALS
A. On or about March 23, 1993, Jimmie Shinohara and Judi Shinohara, individually,
and as Trustees, U.D.T dated October 21,1987, Trust No.2 ("Shinohara") executed and
delivered to Chula Vista a loan agreement (the "Loan Agreement"). As part of the Loan
Agreement, Shinohara executed and delivered to Chula Vista a promissory note dated March 23,
1993 payable to Chula Vista in the amount of$I,500,000 (the "Note"). A copy of the Note is
attached hereto and incorporated herein as Exhibit A. As security for payment of the Note,
Shinohara executed and delivered a deed of trust and assignment of rents dated March 23,1993
(the "Note Deed of Trust") on property commonly known as the "San Miguel Property" (the
"Property") which is more particularly described in the Note Deed of Trust, a copy of which is
attached hereto and incorporated herein as Exhibit B. The Note Deed of Trust was recorded on
March 24,1993 as Instrument No. 1993.01810243 of the Official Records of San Diego County.
Also as part of the Loan Agreement, Shinohara executed and delivered a secured and unsecured
indemnity agreement (the "Indemnity Agreement") for the perfonnance of certain remediation
work of contaminated materials. A copy of the Indemnity Agreement is attached hereto and
incorporated herein as Exhibit C. The obligations of Shinohara under the Indemnity Agreement
are also secured by a deed of trust and assignment of rents dated March 23, 1993 (the "Indemnity
Deed of Trust") on the Property, a copy of which is attached hereto and incorporated herein as
Exhibit D. The Indemnity Deed of Trust was recorded March 24,1993, as Instrument No. 1993-
0181024 in the Official Records of San Diego County.
B. The obligations of Shinohara under the Loan Agreement, Note and Indemnity
Agreement have not been satisfied and on or about January 7, 2000, Chula Vista filed a
complaint for foreclosure of the Note Deed of Trust and the Indemnity Deed of Trust in the
Superior Court of the County of San Diego, South County Division, Action No.1S002460 (the
"Complaint"). Chula Vista also seeks the payment of $2,600,000, and judgment against
Shinohara for any deficiency owing after sale of the Property, plus attorneys' fees, court costs
and such other amounts as the court may award. A trial is culTently set to commence on October
13,2000.
D. Jimmie Shinohara is deceased and the defendant named in the Complaint as liable
for the obligations alleged therein is Judi Shinohara, individually and as trustee of the Shinohara
Family Trust ("Judi Shinohara").
E. On June 1,2000 Judi Shinohara entered into an agreement with TPL under which
she granted to TPL an option to purchase the Property (the "Option Agreement"). On June 30,
2000 the Option Agreement was amended to allow TPL to purchase the Property subject to the
Note and the Note Deed of Trust (the "Option Amendment"). Under the Option Amendment,
TPL has until July 31, 2000 to exercise the option granted under the Option Agreement. If the
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option is exercised, TPL will have 60 days thereafter to close escrow on the Property (the "Close
of Escrow").
Chula Vista is willing to enter into certain agreements with TPL to accommodate TPL's goals
with respect to the Property and to provide for repayment of amounts owed under the Note as set
forth herein.
NOW, THEREFORE, the Parties agree as follows:
1. Forbearance. TPL and Chula Vista agree to enter into a Forebearance
Agreement which shall be effective as of Close of Escrow. ("Forebearance
Agreement") The Forebearance Agreement shall provide that Chula Vista shall
forebear collection of the Note from Close of Escrow until May 31, 2001, subject
to extension as provided in Section 6, below. The Forebearance Agreement shall
contain additional customary tenDS and conditions consistent with tenDS of this
Agreement, and such other provisions as may be agreed upon by the parties.
2. Assumption Agreement. Chula Vista agrees to allow assumption of the Note and
Note Deed of Trust by TPL. TPL and Chula Vista shall execute an assumption
agreement with respect to the Note and the Note Deed of Trust (the "Assumption
Agreement") effective upon Close of Escrow and to be recorded concurrently with
the transfer of the Property to TPL by Shinohara. The amount to be assumed by
TPL, as will be reflected in the Assumption Agreement, is Two Million Six
Hundred Ninety Thousand Sixty.Seven Dollars and Fifty Cents ($2,690,067.50).
("Assumed Debt"). The Assumption Agreement shall contain additional
customary tenDS and conditions consistent with the tenDS of this Agreement and
such other provisions as may be agreed upon by the parties.
3. Release of Non-Assumed Obligations. Chula Vista agrees that TPL will not
assume any obligations owing to Chula Vista by Shinohara other than Shinohara's
obligations under the Note and Note Deed of Trust. The Parties agree to include
appropriate language to this effect in the Assumption Agreement.
4. Reconvevance ofIndemnitv Deed of Trust. Chula Vista shall execute and record a
deed ofreconveyance with respect to the Indemnity Deed of Trust, at Close of
Escrow, concurrently with the recordation of the Grant Deed from Shinohara to
TPL and the recordation of the Assumption Agreement.
5. Dismissal. Chula Vista shall dismiss without prejudice its causes of action in the
Complaint relating to the Note and the foreclosure of the Note Deed of Trust and
Indemnity Deed of Trust, effective upon Close of Escrow; Chula Vista reserves the
right to pursue legal action against Shinohara with respect to any amounts owing
under the Indemnity Agreement..
6. Subject to the tenDS and conditions set forth below, Chula Vista agrees to waive
interest on the Note from July 1,2000 to May 31, 2001. The Assumed Debt shall
be all due and payable on May 31, 2001. Notwithstanding the foregoing, in the
event that TPL has not obtained funding for the acquisition of the Property from
the United States Department ofFish and Wildlife in sufficient time and amount to
allow for a May 31, 2001 retirement of the Assumed Debt, TPL shall have the
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right, by written notice to Chula Vista prior to May 31, 2001 to extend the due date
for payment of the Assumed Debt to a date no later than May 31,2002 (the
"Extension Period"). In order to qualify for such extension TPL must pay Chula
Vista the sum of$I,OOO,OOO by or before May 31, 2001, such amount to be applied
against the Assumed Debt Amount due. The remaining balance of Assumed Debt
shall be increased by an amount equal to the amount of interest that had been
waived with respect to such remaining balance during the Forebearance Period so
as to recapture such interest as an amount now due and payable. This increased
balance (the "Extension Balance") shall accrue interest at the rate of the greater of
(a) 10% or (b) the Prime Rate as of May 31, 2001 plus 2% percent, per annum,
until paid. Minimum installments of principal and interest shall be due on August
31,2001, November 30,2001, February 28,2002 with a final installment due May
31, 2002. Extension Balance installments shall be in equal amounts calculated to
result in the complete retirement of all principal and interest due on the Extension
Balance on May 31, 2002. All payments made with respect to the Assumed Debt
shall be paid in immediately available fund by wire transfer or cashier's check as
directed by the Chula Vista Finance Director. Any amounts due but unpaid shall
accrue interest at the default rate under the Note.
7. TPL will pay One Hundred Thousand Dollars ($100,000.00) to Chula Vista to be
credited to the outstanding balance of the Assumed Debt at Close of Escrow.
8. TPL shall pay when due current property taxes on the Property and back taxes on
the Property prior to the expiration of the current stay of foreclosure proceedings
(February 23, 2001) agreed to by the San Diego County Assessor, or any extension
thereof.
9. TPL agrees to waive defenses with respect to enforcement of the Note and Note
Deed of Trust.
10. TPL will give Chula Vista a first priority Deed of Trust on certain real property
located adjacent to the Property identified as Assessor's Parcel No. 585-170-08 as
more particularly described on Exhibit E attached hereto and incorporated herein
by this reference ("ParcelS"). ParcelS shall be additional security for TPL's
obligation to repay the Assumed Debt. TPL warrants and represents that Chula
Vista will have a first priority Deed of Trust on the Property and ParcelS. TPL
agrees to indemnify, defend and hold Chula Vista harmless from any claim, loss,
damage, liability, cause of action or judgment arising out of any breach of the
foregoing warranty and representation. This indemnification agreement sha1l
survive Close of Escrow and the consummation of the transactions contemplated
herein.
11. TPL shall clear from title monetary liens and other encumbrances which might
impair Chula Vista's first lien position upon receipt of objection from Chula Vista.
12. The Parties agree that satisfaction or settlement of the obligations owing by
Shinohara to Chula Vista other than the obligations assumed by TPL shall not be a
condition precedent to the effectiveness of this Agreement.
13. Conditions precedent to the effectiveness of this Agreement shall be TPL's Close
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of Escrow for the acquisition of the Property and Parcel 5, TPL's execution of the
Forebearance Agreement and the Assumption Agreement, and TPL's
demonstration of its financial capacity to perfonn its obligations hereunder to
Chula Vista's reasonable satisfaction.
14. Entire Agreement; Modification; Waiver. This Agreement constitutes the entire
agreement between Chula Vista and TPL pertaining to the subject matter contained
herein and supersedes all prior and contemporaneous agreements, representations,
and understandings. This Agreement shall be construed without regard to any
presumption or other rule requiring construction against the party causing this
Agreement to be drafted. No supplement, modification, or amendment of this
Agreement shall be binding unless executed in writing by all the Parties. No
waiver of any of the provisions of this Agreement shall be deemed or shall
constitute a waiver of any other provision, whether or not similar, nor shall any
waiver constitute a continuing waiver. No waiver shall be binding unless executed
in writing by the Party making the waiver.
15. Assignment. This Agreement may not be assigned.
16. CounteroartslExecution Via Facsimile. This Agreement may be executed in
counterparts, each of which shall be deemed an original and which together shall
constitute one and the same agreement. This Agreement may be executed and
delivered via facsimile and a facsimile signature shall have the same legal effect as
an original signature.
17. Severabilitv. Each provision of this Agreement is severable from any and all other
provisions of this Agreement. Should any provision(s) of this Agreement be for
any reason unenforceable, the balance shall nonetheless be of full force and effect.
18. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
19. Confidentialitv. The Parties hereto agree that the tenns of this Agreement,
including but not limited to the Note discount, shall remain confidential, and that,
unless compelled by law, copies of this Agreement shall not be provided to anyone
other than the Parties or their respective attorneys, employees or representatives
without the consent of the Parties hereto, except to the extent required for approval
by Chula Vista.
20. Notices. Notices shall be addressed to the Parties as follows: If to TPL:
The Trust for Public Land
116 New Montgomery, 3'd Floor
San Francisco, California 94105
Attention: Debra Geiler
With copies to:
Barbara Kreig
(same address)
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If to Chula Vista:
Redevelopment Agency ofthe City ofChula Vista
276 Fourth Avenue
Chula Vista, Ca. 91910
Attn: Glen Googins, City Attorney's Office
With copies to:
Kenneth T. Calgary
Barker Thomas & Walters
1455 Frazee Road, Suite 800
San Diego, Ca. 92108
Any and all notices pertaining to this Agreement shall be in writing delivered to
the Parties hereto by facsimile transmission, personally by hand, courier service or
Express Mail, or by certified mail, postage prepaid, at the addresses set forth above. All
notices shall be deemed given: (a) if sent by certified mail, three (3) days after deposited
in the mail, certified and postage prepaid; (b) if delivered by hand, courier service or
Express Mail, when delivered; or (c) if transmitted by facsimile, when transmission has
been confirmed. The Parties may, by notice as provided above, designate a difference
address to which notice shall be give.
21. Further Assurances. The parties agree to perform such further acts and to execute
and deliver such additional documents as may be reasonably required in order to
carry out the provisions of this Agreement.
22. Authority. Each party represents and warrant that it has full power and authority to
enter into this Agreement and to perform its respective obligations hereunder
without any further action required by its board or any other party.
IN WITNESS of the foregoing provisions the Parties have signed this Agreement below:
THE CITY OF CHULA VISTA THE TRUST FOR PUBLIC LAND
Mayor of the City of Chula Vista
ATTEST:
City Clerk
Approved as to form by
City Attorney
H,lhomel"ttomeylagceeITPL ageecment
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EXHIBIT A
[To be inserted]
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EXHIBIT A
[To be inserted]
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EXHIBIT B
[To be inserted]
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EXHIBIT C
[To be inserted]
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EXHIBIT D
[To be inserted]
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EXHIBIT E
[To be inserted]
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RECORDING REQUESTED BY AND,
WHEN RECORDED, RETURN TO: DRAFT
City ofChula Vista
276 Fourth Avenue
Chula Vista, CA 91910
Attn: City Attorney
(Above Space for Recorder's Use Only)
FORBEARANCE AGREEMENT
BORROWER:
THE TRUST FOR PUBLIC LAND (TPL)
LENDER:
REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA
DATE
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FORBEARANCE AGREEMENT
THIS FORBEARANCE AGREEMENT ("Agreement"), dated for reference purposes
August I, 2000 ("Reference Date"), is entered into by and between THE TRUST FOR PUBLIC
LAND, a California non'profit public benefit corporation ("TPL"), and the REDEVELOPMENT
AGENCY OF THE CITY OF CHULA VISTA, a political subdivision of the State of California
("Agency"), with reference to the following facts:
RECITALS
A. On or about March 23, 1993, Jimmie Shinohara and Judi Shinohara, individually,
and as Trustees, U.D.T. dated October 21, 1987, Trust No.2 ("Shinohara") executed and
delivered to Agency a loan agreement (the "Loan Agreement"). As part of the Loan Agreement,
Shinohara executed and delivered to The Agency a promissory note dated March 23, 1993
payable to The Agency in the amount of$I,500,000 (the "Note"). A copy of the Note is attached
hereto and incorporated herein as Exhibit A. As security for payment of the Note, Shinohara
executed and delivered a deed of trust and assignment ofrents dated March 23, 1993 (the "Note
Deed of Trust") on property commonly known as the "San Miguel Property" (the "Property")
which is more particularly described in the Note Deed of Trust, a copy of which is attached
hereto and incorporated herein as Exhibit B. The Note Deed of Trust was recorded on March 24,
1993 as Instrument No. 1993.01810243 of the Official Records of San Diego County. Also as
part of the Loan Agreement, Shinohara executed and delivered a secured and unsecured
indemnity agreement (the "Indemnity Agreement") for the performance of certain remediation
work of contaminated materials. The obligations of Shinohara under the Indemnity Agreement
are also secured by a deed of trust and assignment of rents dated March 23, 1993 (the "Indemnity
Deed of Trust") on the Property. The Indemnity Deed of Trust was recorded March 24,1993, as
Instrument No. 1993.0181024 in the Official Records of San Diego County.
B. The obligations of Shinohara under the Loan Agreement, Note and Indemnity
Agreement have not been satisfied and on or about January 7, 2000, Agency filed a complaint for
foreclosure of the Note Deed of Trust and the Indemnity Deed of Trust in the Superior Court oft
the County of San Diego, South County Division, Action No. ISO02460 (the "Complaint").
Agency also seeks the payment of $2,600,000, and judgment against Shinohara for any
deficiency owing after sale of the Property, plus attorneys' fees, court costs and such other
amounts as the court may award. A trial is currently set to commence on October 13, 2000.
C. Jimmie Shinohara is deceased and the defendant named in the Complaint as liable
for the obligations alleged therein is Judi Shinohara, individually and as trustee of the Shinohara
Family Trust ("Judi Shinohara").
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D. On June 1,2000, Judi Shinohara entered into an agreement with TPL under which
she granted to TPL an option to purchase the Property (the "Option Agreement"). On June 30,
2000, the Option Agreement was amended to allow TPL to purchase the Property subject to the
Note and the Note Deed of Trust (the "Option Amendment"). Under the Option Amendment,
TPL has until August 4,2000 to exercise the option granted under the Option Agreement. If the
option is exercised, TPL will have 60 days thereafter to close escrow on the Property (the "Close
of Escrow").
E. TPL has requested in connection with its acquisition of the Property and
assumption of the Note, among other things, that Agency agree: (1) to forbear from foreclosing
under the Deed of Trust for the "Forbearance Period" described herein; (2) to enable TPL to
restructure payment of the Note; and (3) to provide TPL with an incentive for performance in the
form of a waiver of interest if TPL retires the Note by May 31, 2001, as set forth herein.
Although Agency has no obligation or duty of any kind to agree to TPL's requests, and without
directly or indirectly incurring any other liabilities or obligations to TPL, or any other person,
Agency is willing to agree to TPL's requests, subject to and on the terms and conditions more
particularly described herein.
F. This Agreement is being entered into for purposes of implementing certain terms
and conditions of that certain Agreement regarding Assumption of Note and Deed of Trust
between TPL and Agency dated concurrently herewith ("Master Agreement"). To the extent of
and inconsistency between this Agreement and the Master Agreement, the terms of this
Agreement shall govern.
G. The Loan Agreement, the Note and the Deed of Trust, as amended by this
Agreement, are collectively referred to herein as the "Loan Documents." References to the Loan
Documents made hereinafter refer to the Loan Documents as modified by this Agreement.
NOW, THEREFORE, in consideration for the above recitals and the mutual covenants
set forth herein, and for other fair and valuable consideration, the receipt and sufficiency of
which are hereby mutually acknowledged, the parties hereto agree as follows:
ARTICLE 1
ACKNOWLEDGEMENTS REGARDING INDEBTEDNESS
1.1 Reaffirmation and Incorporation of Recitals. TPL and Agency acknowledge and
agree that the Recitals set forth above (a) are true and correct in all respects; and (b) are hereby
incorporated herein by this reference, and made a part of this Agreement as if said Recitals were
set forth in full as representations, warranties and covenants ofTPL in favor of Agency.
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1.2 Acknowledgement of Loan Documents. The parties acknowledge and agree that:
(a) Shinohara has assigned to TPL and TPL has assumed all rights and obligations under the
Loan Documents pursuant to the terms and conditions of that certain Assignment and
Assumption Agreement between Shinohara and TPL dated ,2000 ("Assignment
and Assumption Agreement"). (b) the Loan Documents, together with the Assignment and
Assumption Agreement and the Master Agreement, constitute the only documents evidencing the
obligations owing to Agency related to the Loan; (c) the copy of the Note attached hereto as
Exhibit A and made a part hereof is a true, correct and accurate copy of the actual Note; and (d)
the copy of the Deed of Trust attached hereto as Exhibit and made a part hereof is a true,
correct and accurate copy of the actual Deed of Trust. Pursuant to the terms and conditions of
the Master Agreement, TPL has also agreed to enter into a Deed of Trust with respect to Parcel 5
in favor of Agency, providing additional security for TPL's obligations with respect to the
Assured Debt (the "Parcel 5 Deed of Trust"). A copy of the Parcel 5 Deed of Trust attached
hereto as Exhibit C and made a part hereof; the parties agree that this is a true and accurate copy
of the Actual Parcel 5 Deed of Trust.
1.3 Ratification of Obligations. TPL hereby acknowledges and agrees that (a) it is
liable for the obligations set forth in the Loan Documents; and (b) it waives to the fullest extent
allowable by law any and all defenses that may otherwise be available related to the invalidity of
the Loan Documents and the Parcel 5 Deed of Trust as binding obligations of TPL in favor of
Agency.
1.4 Acknowledgement of Amounts Owing Under the Loan. TPL acknowledges and
agrees that, as of July 1, 2000, a total of $2,690,067.50 was owed under the Note, which amount
can be segregated into the following elements:
(a) Principal in the amount of $1,500,000 ("Principal");
(b) Interest in the amount of $ ("Interest");
(c) Attorney's fees and collection costs in the amount of $
("Fees and Costs"); and
These amounts, in the aggregate, comprise the "Assured Debt" hereunder and
shall be treated as the initial principal balance upon which interest shall accrue on the terms and
conditions set forth below.
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1.5 Acknowledgement of Loan Default and Agency's Rights. TPL acknowledges and
agrees that:
(a) As of the Reference Date and Effective Date (defined in Section 2.2
below), all sums owing under the note and the other Loan Documents were due and payable and
Agency was entitled to pursue a foreclosure under the Deed of Trust;
(b) TPL's obligations under the Loan Documents are personal to TPL, and
Agency's remedies are not limited to the value of the Property.
(c) As of the Reference Date and as of the Effective Date (defined in Section
2.2, below), Agency has not waived, directly or indirectly, any of the rights or remedies of
Agency, nor has it made an election of remedies.
1.6 Acknowledgement of Security Interest. TPL acknowledges and agrees that the
Deed of Trust and the Parcel 5 Deed of Trust constitute valid, enforceable and duly perfected
security interests in and lien upon all of the Property and Parcel 5 and that such security interests
and liens are first.in.priority deeds of trust liens and security interests upon the Property.
ARTICLE 2
FORBEARANCE FROM FORECLOSURE
2.1 Forbearance Agreement. Subject to satisfaction of the conditions precedent set
forth in Article 4. Agency agrees to forbear from proceeding to foreclosure on the Property
under the Deed of Trust and from exercising any other available legal remedies with respect to
the recovery of the Assumed Debt under Loan Documents during the "Forbearance Period"
defined in Section 2.2 below.
2.2 Forbearance Period. The "Forbearance Period" shall commence on the date when
all conditions precedent set forth in Article 4 have been satisfied ("Effective Date") and, subject
only to the notice and cure provisions set forth in Section 5.2, shall automatically terminate,
without demand, notice, presentment, or opportunity for cure, upon the first to occur of the
following:
(a) TPL breaches its obligations under the Loan Documents (without giving
effect to any notice and cure period provided in the Loan Documents, and exclusive of provision
governing due dates for payments of principal and interest to Agency, provided that payments
are made in accordance with the Payment Schedule described in Section 3.2, and the foregoing
breach has not been cured pursuant to the notice and cure period provision set forth in Section
5.2 of this Agreement.
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(b) TPL becomes the subject of a case commenced under Title II of the
United States Code ("Bankruptcy Code"), or transfers substantially all or its assets whether
voluntarily or involuntarily, or makes an assignment for the benefit of creditors, or becomes the
subject of any other state or federal insolvency proceeding whatsoever;
(c) TPL repudiates or breaches any of the covenants, terms or agreements
contained in this Agreement, the Assignment and Assumption Agreement, or the Master
Agreement and the foregoing repudiation or breach has not been cured after giving effect to the
notice and cure period provisions set forth in Section 5.2 of this Agreement; or
(d) May 31, 2001 ("Due Date") unless such date is extended in accordance
with the terms of Section 2.3 below.
2.3 Forbearance Period Extension. Subject to the terms and conditions set forth
below, Agency agrees to waive interest on the Note from July 1,2000 to May 31, 2001. The
Assumed Debt shall be all due and payable on May 31, 2001. Notwithstanding the foregoing, in
the event that TPL has not obtained funding for the acquisition of the Property from the United
States Department of Fish and wildlife in sufficient time and amount to allow for a May 31, 200 I
retirement of the Assumed Debt, TPL shall have the right, by written notice to the Agency prior
to May 31, 2000, to extend the due date for payment of the Assumed Debt to a date no later than
May 31, 2002 (the "Extension Period"). In order to qualify for such extension, TPL must pay the
Agency the sum of $1 ,000,000 by or before May 31, 2000, such amount to be applied against the
Assumed Debt Amount due. The remaining balance of Assumed Debt shall be increased by an
amount equal to the amount of interest that had been waived with respect to such remaining
balance during the Forbearance Period so as to recapture such interest as an amount now due and
payable. This increased balance (the "Extension Balance") shall accrue interest at the rate of the
greater of (a) ten percent (10%); or (b) the Prime Rate as of May 31, 2001, plus two percent
(2%), per annum, until paid. Minimum installments of principal and interest shall be due on
August 31, 2001, November 30, 2001, February 28, 2002, with a final installment due May 31,
2002. Extension Balance installments shall be in equal amounts calculated to result in the
complete retirement of all principal and interest due on the Extension Balance on May 31, 2002.
All payments made with respect to the Assumed Debt shall be paid in immediately available
fund by wire transfer or cashier's check as directed the Agency Finance Director. Any amounts
due but unpaid shall accrue interest at the default rate under the Note. For purposes of this
Agreement, "Prime Rate" shall mean
2.4 Limited Forbearance. Except as specifically provided in this Agreement, Agency
shall have no obligation to forbear from exercising any of its rights and remedies under
applicable law.
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ARTICLE 3
FORBEARANCE FROM FORECLOSURE
Subject to the satisfaction of the conditions precedent set forth in Article 4, Agency
agrees to provide TPL with an opportunity to pay the sums owed to Agency, prior to Agency's
proceeding with a foreclosure under the Deed of Trust, on certain terms and conditions set forth
as follows:
3.1 Forbearance Period Interest Waiver; Payment by May 31, 2001. As of the July 1,
2000, each of Principal, Interest, and Additional Fees and Costs comprising the Assumed Debt
constitutes a part of the principal balance under the Loan; from and after July 2, 1000, each such
element of principal shall accrue interest at the rate of ten (10%) percent per annum, which is
referred to herein as the "Interest Rate," notwithstanding the foregoing, provided that TPL pays
Agency the entire amount owed under the Note by May 31, 2001, all interest accruing from and
after July 1,2000, hereunder shall be waived. Upon termination of the Forbearance Period, all
amounts owing to Agency pursuant to Loan Documents shall be immediately due and payable.
3.2 Extension Period Payments. In the event that TPL validly exercises its right to
extend the Forbearance Period in accordance with Section 2.3, above, interest on the principal
balance remaining after deducting the Extension Payment shall be recaptured and added to the
principal balance under the Loan. For example, . From and after
May 31, 2001, this principal balance shall accrue interest at the greater often percent (10%) per
annum, or the Prime Rate then in effect plus two percent (2%) per annum. From and after the
Effective Date and throughout the Forbearance Period, TPL shall make the following additional
payments with respect to {to be inserted/. The entire remaining Principal and all accrued but
unpaid interest thereon shall be due and payable in full as of May 31, 2002.
3.2.2. Crediting of Payments. IfTPL (a) makes one or more payments pursuant
to the Extension Period Payment Schedule and (b) subsequently fail to timely complete all
payments to Agency under the Incentive Payment Schedule, then the payments made by TPL
shall be credited first to the principal portion of the debt and thereafter to interest.
3.3 Payment of Property Taxes. TPL shall pay, when due, current property taxes on
the Property and back taxes on the Property prior to the expiration of the current stay of
foreclosure proceedings (February 23, 2001) agreed to by the San Diego County Assessor, or any
extension thereof.
3.4 Place and Form of Payments. All payments by TPL hereunder shall be make to
Agency in immediately available funds either in the form of a cashier's check delivered to 276
Fourth Avenue, Chula Vista, California 91910, Attn.: Finance Director, or in the form of a wire
transfer as directed by the Agency Finance Director.
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3.5 Final Payment. Upon the payment by TPL to Agency of all amounts owing to
Agency in accordance with this Agreement, Agency shall deliver to TPL fully executed and
acknowledged Request for Full Reconveyance of the Deed of Trust upon request of TPL after
the ninety. first (91 st) day after the last payment clears Agency's accounts, provided that neither
TPL nor a general partner of TPL has become the subject of a case under the Bankruptcy Code
within such 91.day period and there is no pending or threatened litigation challenging Agency's
entitlement to any of the payments received on account of the debtors to Agency.
ARTICLE 4
CONDITIONS PRECEDENT
4.1 Conditions Precedent. The date upon which each of the conditions set forth
below is satisfied is referred to herein as the "Effective Date," and such date shall occur no later
than 5:00 p.m., October 4, 2000. The parties' obligations under this Agreement are contingent
upon satisfaction of each of the following conditions on or before the Effective Date deadline:
(a) Title Insurance. At TPL's sole expense, TPL shall have obtained from a
qualified title company a commitment to issue to Agency, as of the Effective Date, an AL T A
title insurance policy, for an amount and subject only to terms and conditions reasonably
satisfactory to Agency to constitute a first-in-priority Deed of Trust lien, subordinate only to
those exceptions as are acceptable to Agency, in its reasonable discretion. TPL shall provide, at
its expense, any indemnification agreements required by Title Company as a condition to
issuance of the title policy.
(b) Close of Escrow. Escrow shall have closed for TPL's purchase of the
Property and Parcel 5.
(c) Financial Capacity. TPL shall have demonstrated to Agency's reasonable
satisfaction that it has the financial capabilities to perform its obligations hereunder.
(d) Initial Payment. TPL shall have paid to the Agency the amount of
$100,000 to be immediately credited by Agency against the Assumed Debt amount.
(e) Related Documents. TPL shall have executed, in forms reasonably
approved by the Agency, the Assignment and Assumption Agreement, and the Parcel 5 Deed of
Trust.
If one or more of the conditions described above in this Section 4.1 are not satisfied on or before
5:00 p.m., July 15, 1997, and if such unsatisfied conditions are not waived in writing by Agency,
in its sole discretion, then this Agreement shall have no force and effect whatsoever.
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ARTICLE 5
EFFECT ON AGENCY'S REMEDIES
5.1 Effect of Forbearance Period. During the Forbearance Period defined in Section
2.2, Agency shall forbear from pursuing its right to (a) foreclose under the Deed of Trust,
judicially and/or non-judicially, (b) appoint a receiver, and (c) exercise its other legal remedies
with respect to the Loan Documents.
5.2 Effect of Default. In the event that TPL fails to perform any covenant, term or
agreement ofTPL contained in this Agreement, including, without limitation, the failure to make
any payment pursuant to the Incentive Payment Schedule as and when due, and if such default is
not cured within ten (10) days after Agency's delivery of written notice of such default to TPL,
the Forbearance Period shall automatically terminate, the entire amount of the Loan as set forth
in Section 1.4, together with all accrued but unpaid interest, shall immediately be due and
payable, and Agency may thereafter enforce or seek enforcement of any and all of its legal rights
and remedies. TPL expressly agrees that Agency shall have the ability to apply for a deficiency
judgment, as allowed by applicable law, within three (3) months after any such judicial
foreclosure sale.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF TPL
As an inducement to Agency to execute this Agreement, TPL represents and warrants to
Agency the truth and accuracy of the matters set forth in this Article 6.
6.1 Status. TPL is duly formed and validly existing and is fully qualified to do
business in the State of California, with fully power and authority to consummate the
transactions contemplated hereby. Each individual executing this Agreement on behalf of TPL
represents and warrants to Agency that he is authorized to do so.
6.2 Authority of TPL. TPL has full power and authority to execute, deliver and
perform all of its respective obligations under this Agreement and all other applicable Loan
Documents. This Agreement has been duly and validly authorized, executed and delivered by
TPL and constitutes a legally valid, binding and enforceable obligation of TPL which does not
and will not constitute a breach or default under any agreement, court order, judgment or law by
or under which TPL or any portion of the Property is bound or affected.
6.3 No Untrue Statement. To TPL's best knowledge, no information furnished by
TPL to Agency in connection with this Agreement includes any untrue statement of a material
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fact or omits to state a material fact necessary in order to make the statements made, in the light
of the circumstances in which they were made, not misleading.
6.4 No Litigation. There is no litigation, action, suit or proceeding pending or
threatened against TPL which may in any manner whatsoever substantially adversely affect the
validity, priority or enforceability of any of the Loan Documents.
6.5 First Priority Lien. TPL warrants and represents that Chula Vista will have a first
priority Deed of Trust on the Property and Parcel 5. TPL agrees to indemnity, defend and hold
Chula Vista harmless from any claim, loss, damage, liability, cause of action or judgment arising
out of any breach of the foregoing warranty and representation. This indemnification agreement
shall survive Close of Escrow and the consummation of the transactions contemplated herein.
ARTICLE 7
AGENCY'S REPRESENTATIONS AND WARRANTIES
As an inducement to TPL to execute this Agreement, Agency represents and warrants to
TPL that, as of the date of this Agreement:
7.1 Status. Agency is duly formed and validly existing and has full power and
authority to consummate the transactions contemplated hereby.
7.2 Authority of Agency. Agency has full power and authority to execute, deliver
and perform all of its respective obligations under this Agreement. This Agreement has been
duly and validly authorized, executed and delivered by Agency and constitutes a legally valid,
binding and enforceable obligations of Agency which do not and will not constitute a breach or
default under any agreement, court order, judgment or law by or under which Agency is bound
or may be affected.
ARTICLE 8
BANKRUPTCY
8.1 Bankruptcy. To induce Agency to execute this Agreement, TPL represents and
warrants that: (a) TPL currently has not intention of filing or acquiescing in any bankruptcy or
insolvency proceeding at any time hereafter; (b) the forbearance allowed by this Agreement is
sufficient for TPL to reorganize their finance affairs successfully if such reorganization is
reasonably possible, and in the event that TPL is unable to repay the sums owing in accordance
with this Agreement prior to termination of the Forbearance Period pursuant to this Agreement,
TPL acknowledges that it will not have any equity in the Property or any further realistic
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opportunity to successfully reorganize TPL's financial affairs in bankruptcy; and (c) any
bankruptcy filing or acquiescence therein by TPL after the tennination of the Forbearance Period
would be (as to Agency) solely for the purpose of delaying Agency in the enforcement of its
rights.
8.2 Carryover of this Agreement in the Event of Bankruptcy. The following
provisions are of particular applicability in the event TPL files for relief under the Bankruptcy
Code, or an order of relief is granted as to TPL under the Bankruptcy Code. TPL enters into
these provisions in consideration of the procedures provided in this Agreement and other good
and valuable consideration, receipt of which TPL acknowledges.
8.2.1 No Renewal of Exclusive Period, Relief from Automatic Stay. TPL
agrees that if TPL is a debtor in a Chapter II proceeding under the Bankruptcy Code, and the
bankruptcy court enters a cash collateral order, then that order shall provide that if TPL does not
file a Plan within the 120.day exclusive period provided by Section 1121(b) of the Bankruptcy
Code, Agency shall, without the necessity of any additional notice to the debtor or to other
creditors, any hearing or any further order of the Court, have immediate relief from stay under
Bankruptcy Code Section 362 to commence and complete foreclosure of the Property, conduct
and complete sale thereunder, and either purchase itself or sell to a third party according to
applicable non.bankruptcy law, and to take any other action pennitted under applicable non.
bankruptcy law.
8.2.2 Further Relief from Automatic Stav. TPL specifically agrees that, subject
to court approval, Agency shall be deemed to have the relief from the automatic stay under
Section 362 of the Bankruptcy Code provided in this Section. As an alternative, if Agency
requests such relief, TPL shall not object to or oppose Agency's having immediate relieffrom the
automatic stay under Section 362 of the bankruptcy code, such relief being limited to
modification of the stay (a) to implement the provisions of this Agreement pennitting the use of
cash collateral, (b) to pennit the filing of financing statements or other instruments and
documents evidencing Agency's interests in the rents and other income of the Property and in
any leases, letting or use after the filing of the petition or order for relief, whichever is later, (c)
to pennit Agency's application of rents and income as provided herein, and (d) to pennit the
relief provided for in Section 8.3.1 above.
8.2.3 Perfection. During the pendency of the case, if it is detennined that any of
the rights granted hereunder are security interests or liens, they shall be deemed perfected
without the necessity of the filing of any documents or commencement of proceedings otherwise
required under nonbankruptcy law for the perfection of security interests, with such perfection
being binding upon subsequently appointed trustee, either in Chapter 11 or under any other
Chapter of the Bankruptcy Code, and upon other creditors of TPL subject to the case who have
or whom may hereafter extend secured or unsecured credit to TPL.
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ARTICLE 9
ADDITIONAL PROVISIONS
9.1 Applicable Usury Laws. All agreements between TPL and Agency, whether now
existing or hereafter arising, are hereby expressly limited so that no contingency or event
whatsoever shall the amount paid or agreed to be paid to Agency for the use, forbearance or
detention of the money owed to Agency or otherwise, or for the performance or payment of any
covenant or obligation described herein, exceed the highest lawful rate permissible under the
applicable usury law. If, as a result of any circumstance whatsoever, fulfillment of any provision
hereof shall involve transcending the limit of validity prescribed by law which a court of
competent jurisdiction may deem applicable hereto, then the obligation to be fulfilled shall be
reduced to the limit of such validity; and if, as a result of any circumstance whatsoever, Agency
shall ever receive as interest an amount which would exceed the highest lawful rate, such amount
which would be excessive interest shall be applied to the reduction of the unpaid principal
balance of the debt as of the date such amount is received or deemed to be received by Agency
and not to the payment of interest, or if such amount exceeds the unpaid balance of principal,
such excess shall be refunded to TPL. This provision is material to both TPL and Agency and
shall control every other provision of all agreements between TPL and Agency.
9.2 Limitation on Liens. TPL shall not, and shall not permit any affiliate, subsidiary,
partner or other entity related to TPL, to create, incur, assume or suffer to exist any Lien (as
defined below) upon the Property or revenues derived therefrom, whether now owned or
hereafter acquired, except for the following: (a) mechanics' or materialmen's liens arising in the
ordinary course of business which are not overdue for a period of more than thirty (30) days or
which are being contested diligently and in good faith and by appropriate proceedings, (b)
deposits to secure the performance of bids, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature incurred in the ordinary course of
business, (c) Liens created in accordance with the provisions of the Loan Documents, (d) the lien
of any taxes not yet due and payable, and (e) any extension, renewal or replacement of the
foregoing; provided, however, that the Liens permitted under the foregoing provisions shall not
include any additional indebtedness, other than the Loan on the Property. "Lien" shall mean any
mortgage, pledge, security agreement, conditional sale or other title retention agreement, lien,
charge or other encumbrance, whether or not perfected.
9.3 Due on Transfer. If TPL, directly or indirectly, and whether voluntarily,
involuntarily, or by operation of law, sells, conveys, alienates, assigns, encumbers or otherwise
transfers the Property or any portion thereof, or any interest therein, or becomes divested of title
or any interest therein in any manner or way, or if a majority interest of TPL is transferred (in the
aggregate, in one or more transfers) not including transfer by a partner of TPL of all or a portion
of such partner's partnership interest in TPL to a corporation, partnership, limited liability entity,
trust or other such entity (provided the transferring partner at all times retains voting and
administrative control of the transferee entity, and receives no payment or other consideration
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with respect to such transfer other than receipt of such partner's interest in the transferee entity),
Agency shall have the right to declare the entire amount of principal and accrued but unpaid
interest of the Loan hereby to be immediately due and payable, without further notice or demand.
No waiver of this right shall be effective unless in writing and signed by Agency.
9.4 Late Charge. TPL hereby acknowledges that failure to timely repay the Loan in
full as provided herein will cause Agency to incur costs not contemplated by the Loan
Documents, the exact amount of which will be extremely difficult to ascertain. Such costs
include, but are not limited to, processing and accounting charges and administrative expenses.
Accordingly, if any sum due from TPL is not received by Agency or Agency's designee within
five (5) business days after the Due Date, then, without any requirement for notice to TPL, TPL
shall pay to Agency a late charge equal to five percent (5%) of such overdue amount. The
parties hereby agree that such late charge represents a fair and reasonable estimate of the costs
Lesser will incur by reason of late payment by Lessee. Acceptance of such late charge by Lesser
shall in no event constitute a waiver of Lessee's default with respect to such overdue amount, nor
prevent Lesser from exercising any of the other rights and remedies hereunder or under the Loan
Documents.
9.5 Default Rate. Any amount not paid by the Due Date shall thereafter bear interest
at the lower of twelve percent (12%) per annum or the maximum rate than allowable by law or
judgments. Payment of such interest shall not excuse or cure any default by TPL under this
lease; provided, however, that interest shall not be payable on late charges incurred by TPL.
9.6 Notices. Notices shall be addressed to the Parties as follows:
If to TPL: The Trust for Public Land
116 New Montgomery, 3rd Floor
San Francisco, California 94105
With copies to: Barbara Crag
(Same address)
If to Chula Vista: Redevelopment Agency of the City ofChula Vista
276 Fourth Avenue
Chula Vista, CA 91910
Attention: Glen Googins, City Attorney's Office
With copies to: Kenneth T. Calgary
Barker Thomas & Walters
1455 Frazee Road, Suite 800
San Diego, CA 92108
Any and all notices pertaining to this Agreement shall be in writing delivered to
the Parties hereto by facsimile transmission, personally by hand, courier service or Express Mail,
or by certified mail, postage prepaid, at the addresses set forth above. All notices shall be
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deemed given: (a) if sent by certified mail, three (3) days after deposited in the mail, certified
and postage prepaid; (b) if delivered by hand, courier service or Express Mail, when delivered;
or (c) if transmitted by facsimile, when transmission has been confirmed. The Parties may, by
notice as provided above, designate a different address to which notice shall be given.
9.7 Computation of Time Period. If the date or last date to make any payment or to
perfonn any other act or obligation pursuant to this Article 3 falls on a day which is not a
business day, such act or notice shall be deemed to have been timely perfonned or given off the
next business day. As used herein, the tenn "business day" means a day other than a Saturday,
Sunday or state or national holiday.
9.8 Governing Documents. In the event of and to the extent of any conflict or
inconsistency between the provisions of this Agreement and the provisions of the other Loan
Documents, the provisions of this Agreement shall govern and control
ARTICLE 10
MISCELLANEOUS
10.1 Assignment. TPL shall not assign this Agreement, or any of its rights or remedies
hereunder, in whole or in part, without the prior written consent of Agency in each instance,
which may be withheld in Agency's sole discretion.
10.2 Attorney's Fees. If any action at law or in equity, including any action for
declaratory relief or any bankruptcy proceeding, is brought to enforce, defend or interpret any
provision of this Agreement, the prevailing party shall be entitled to recover all reasonable costs
and expenses relating thereto, including, without limitation, reasonable attorneys' fees, in
addition to any other relief to which that party may be entitled.
10.3 Binding Effect. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, representatives, successors, and assigns.
10.4 Cooperation. TPL agrees to cooperate fully with Agency, promptly after any
request by Agency, in the completion, execution and delivery of any document or the taking of
such action as may be deemed necessary or helpful by Agency to assure its security interest in
the Property.
10.5 Counterparts. This Agreement may be executed in several counterparts, each of
which shall be deemed an original, but all of which counterparts collectively shall constitute but
one and the same instrument representing the agreement between the parties hereto.
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10.6 Enforceability. If any provision of this Agreement is contrary to, prohibited by or
held invalid under any applicable law or regulation of any jurisdiction, pursuant to a final
judgment of a court of competent jurisdiction (sustained on appeal, if any), that provision shall
be considered in applicable and omitted, but shall not invalidate the remaining provisions hereof,
which provisions shall be enforced to the maximum extent pennissible under applicable law. If
any provision of this Agreement or any of the other documents required under this Agreement
shall be unenforceable by reason of a final judgment of a court of competent jurisdiction based
upon such court's ruling (sustained on appeal, if any) that said provision is unenforceable
because of the unenforceable degree or magnitude of the obligation imposed hereby or thereby
on TPL, said unenforceable obligation shall be reduced in magnitude or degree by the minimum
degree or magnitude necessary in order to make the same enforceable by Agency, and this
Agreement and each of the other documents required under this Agreement shall be
automatically and retroactively amended accordingly to contain said maximum degree or
magnitude of said obligation which is enforceable by Agency, rather than the more burdensome
but unenforceable original obligation of TPL.
10.7 Entire Agreement; Amendments; Interpretation; Etc. The Loan Documents
together with this Agreement, including all Exhibits attached hereto, embody and constitute the
entire understanding between the parties hereto with respect to the matters discussed herein, and
all other prior or contemporaneous agreements, understandings, representations, and statements,
whether oral or written, are superseded by or merged into this Agreement. Neither this
Agreement nor any provision hereof may be waived, modified, amended, discharged, or
tenninated except by an instrument in writing, signed by the party against which the enforcement
of such waiver, modification, amendment, discharge or tennination is sought, and then only to
the extent set forth in such instrument.
10.8 Further Assurances. The parties agree to perfonn such further acts and to execute
and deliver such additional documents and instruments as may be reasonable required in order to
carry out the provisions of this Agreement and the intentions of the parties.
10.9 Governing Law. This Agreement and all rights and duties of the parties
hereunder shall be governed by and construed in accordance with the laws of the State of
California as applied to agreements among California residents to be entered into and perfonned
in California, except to the extent that Agency has greater rights or remedies under federal law,
in which case such choice of California law shall not be deemed to deprive Agency of such
rights and remedies as may be available to Agency under federal law.
10.10 Headings. The headings of the Sections hereof are for convenience only and shall
not control or affect the meaning or construction of any provision of this Agreement.
10.11 Indulgence Not Waiver. A failure by the Agency to strictly enforce its rights
hereunder in any instance shall not be deemed to be a waiver of any rights hereunder. No delay
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in exercising any right, power or privilege hereunder or under any applicable law or contract
shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or
privilege hereunder or under any applicable law or contract preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. No waiver shall affect any default
other than the default specified in the waiver, and said waiver shall be operative only for the time
and to the extent therein stated. Waivers of any covenant, term or condition contained herein or
under any of the other documents required under this Agreement shall be effective only if they
are contained in a written notice, and no waiver shall be construed as a waiver of any subsequent
breach of the same covenant, term or condition.
10.12 No Joint Venture. Nothing contained herein or inferable herefrom shall be
deemed or construed to create any partnership, joint venture, or other association between
Agency and TPL. Neither Agency nor any agent of Agency at any time has agreed or consented
to direct or participate in any of the investments, business dealings or planning, grading,
construction or other development operations of TPL (or any related entity) in any capacity other
than that of a secured creditor of TPL.
10.13 No Offset. TPL shall not, under any circumstances, fail or delay to perform (or
resist the enforcement of) any of its obligations to Agency in connection with this Agreement
because of any alleged offsetting claim or cause of action it may have against Agency (or any
indebtedness or obligation of Agency) which has not been confirmed in a final judgment of a
court of competent jurisdiction (sustained on appeal, if any) against Agency, and TPL hereby
waives any such rights of setoff (or offset) which he or it might otherwise have with respect to
any such claims or causes of action against Agency (or any such obligations or indebtedness of
Agency), unless and until such right of setoff (or offset) is confirmed and liquidated by such a
final judgment.
10.14 Successors; Assignment. Except as otherwise provided herein, this Agreement
shall be binding on, and inure to the benefit of, the heirs, executors, administrators, successors
and assigns of the respective parties; provided, however, the TPL may not assign any of its rights
hereunder without the prior written consent of Agency which may be withheld to the maximum
extent permitted by law. Any permitted assignee shall assume in writing all obligations of TPL
hereunder. Agency reserves the right to sell, assign, transfer, negotiate or grant participations in
all or any part of, or any interest in, its rights and benefits under this Agreement or the Loan.
Any purported assignment in violation of this Section 10.17 shall be null and void. TPL agrees
that Agency may disclose all documents and information they now have or may hereafter obtain
in connection with the transactions contemplated by this Agreement.
10.15 Third.Party Beneficiaries. None of the provisions of this Agreement, are intended
to be, nor shall they be construed to be, for the benefit of any third party. Except as expressly
provided herein, no person not a party to this Agreement shall have or acquire any rights by
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reason of this Agreement, nor shall any party hereto have any obligations or liabilities to such
other person by reason of this Agreement.
10.16 Legal Advice. Each party acknowledges that it has had ample and sufficient
opportunity to obtain competent legal advice regarding the meaning, effect and legal
implications of this Agreement.
10.17 Time of Essence. Time is of the essence of this Agreement and of each covenant
or condition that is to be perfonned at a particular time or within a particular period of time.
IN WITNESS WHEREOF, the parties hereto have executed this Forbearance Agreement,
to be effective as of the date finn above written.
[SIGNATURE PAGE FOLLOWS]
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THE REDEVELOPMENT AGENCY OF THE TRUST FOR PUBLIC LAND
THE CITY OF CHULA VISTA
By:
(Print Name and Title)
Shirley Horton, Chair
By:
ATTEST:
(Print Name and Title)
Agency Secretary
APPROVED AS TO FORM BY:
Agency Attorney
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REDEVELOPMENT AGENCY AGENDA STATEMENT
ITEM NO.: 4
MEETING DATE: 08/01 /2000
ITEM TITLE: PUBLIC HEARING: CONSIDERATION OF A REQUEST TO ESTABLISH
A SPORTS BAR AND GRILL AT 217 THIRD AVENUE WITHIN THE
TOWN CENTRE I REDEVELOPMENT PROJECT AREA
RESOLUTION APPROVING THE SPECIAL LAND USE PERMIT TO
ALLOW THE ESTABLISHMENT OF A SPORTS BAR AND GRILL AT 217
THIRD AVENUE WITHIN THE TOWN CENTRE I REDEVELOPMENT
PROJECT AREA
SUBMITTED BY: COMMUNITY DEVELOPMENT DIRECTOR ~ U
REVIEWED BY: EXECUTIVE DIRECTOR&;\~"'"
4/5THS VOTE: YES D NO 0
BACKGROUND
The project applicant has requested a special land use permit to allow the establishment of a sports
bar and grill ("Lo Villa Loco") ot 217 Third Avenue within the Town Centre I Redevelopment Proiect
Area (see Locator Map). The land use is not permitted by right within the commercial area of the
Town Centre Redevelopment Project, therefore, in occordance with the Town Centre Redevelopment
Plan, the proposal requires consideration by the Redevelopment Agency. The proposal qualifies for
a Class 1 categorical exemption per Section 15301 of The Guidelines for Implementation of the
California Environmental Quality Act as the leasing of an existing facility.
RECOMMENDATION
That the Redevelopment Agency:
1. Hold a public hearing and take public testimony; and,
2. Adopt a Resolution Approving the applicant's request based on the findings and conditions
contained therein.
BOARDS/COMMISSIONS RECOMMENDATION
On July 12, 2000 the Town Centre Project Area Committee voted 5-0 (Member Ruch absent) to
recommend that the Redevelopment Agency approve the application for a Special Land Use
Permit to allow the sports bar and grill land use. The Project Area Committee recommended that
the Agency and Police Department delete three conditions related to the operation and
incorporated as Condition Nos. 6, 7 and 9. Both the Police Department and Agency staff have
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PAGE 2, ITEM NO.: 4
MEETING DATE: 08/01/2000
reviewed this recommendation and concur with the deletion of the three conditions. The
Downtown Business Association is also supportive of this application.
DISCUSSION
The applicant's request entails the establishment of a sports bar and grill in an existing
commercial building located at 217 Third Avenue. The location is immediately adjacent to the
vacant Leader Building. The facility will serve alcohol and food and is consistent with the
Downtown's adopted Vision statement to develop additional entertainment and restaurant
establishments to the Third Avenue commercial district. The applicant indicates that the facility
will be professionally managed, with quality food service and community outreach events.
LAND USE DESIGNATION
The Town Centre Redevelopment designation for the site is central commercial. This land use
designation allows a mixture of commercial uses, including but not limited to retail, office, hotel,
service, entertainment, educational, and auxiliary uses. Establishments serving alcohol are
allowed with the issuance of a Special Land Use Permit. The discretionary review requirement for
establishments serving alcoholic beverages allows for analysis of the facility's conformance with
the goals of the Redevelopment Plan and conditioning of the permit by the Police Department.
ANALYSIS
The goal of the Chula Vista Town Centre Redevelopment Plan is to revitalize the Town Centre
area as the commercial civic focus of the City. This includes: 1) the strengthening of the
mercantile posture of Town Centre and the improvement of retail trade therein; 2) the retention
and expansion of viable land uses, commercial enterprises, and public facilities within the area,
3) the attraction of capital and new business enterprises to the core area, and, finally, 4) the
reorientation of the people of Chula Vista to their core area.
In addition, the adopted Vision statement for Downtown calls for renewed emphasis on
entertainment and restaurant venues to bring life and traffic into the central core. The La Villa
Loca facility and management plan appears to be solid and well developed. Given the fit of this
proposed land use with the adopted Vision statement, staff and the Town Centre Project Area
Committee recommend that the Redevelopment Agency adopt the attached Resolution with the
following findings and conditions and approve the applicants' request.
FISCAL IMPACT
There are no identifiable fiscal impacts associated with this action.
ATTACHMENTS
1 - Location Map
H:IHOMEICOMMDEVIST AFF.REPIO8-01-00ILa Villa Loca.doc
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RESOLUTION NO.
RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY
OF CHULA VISTA APPROVING A SPECIAL LAND USE PERMIT
FOR LA VILLA LOCA SPORTS BAR AND GRILL LOCATED AT 217
THIRD AVENUE WITHIN THE TOWN CENTRE I
REDEVELOPMENT PROJECT AREA
WHEREAS, the Land Use Policy of the Town Centre I Redevelopment Project Area requires
that a Special Land Use Permit application be filed for the development of new establishments with
alcohol sales; and
WHEREAS, Irma Muniz has applied for a Special Land Use Permit for La Villa Loca Sports
Bar and Grill to be located at 217 Third Avenue in the Town Centre I Redevelopment Project Area;
and
WHEREAS, the proposed use conforms with and furthers the goals of the adopted
Downtown Vision Statement which encourages the development of new entertainment and
restaurant uses within the Downtown core; and
WHEREAS, the subject application has been reviewed for compliance with the underlying
zoning and General Plan allowable land uses and all applicable land use requirements and findings
necessary thereof; and
WHEREAS, the application has been deemed exempt from the California Environmental
Quality Act pursuant to Section 15301 (existing facilities.)
WHEREAS, the Town Centre Project Area Committee held a duly noticed public hearing and
considered all testimony presented, reviewed said application and required findings, and voted
unanimously on July 12, 2000 to recommend approval of the application; and
WHEREAS, the application has been conditioned as required by the Police Department in
conformance with State Division of Alcohol Beverage Control requirements;
NOW, THEREFORE, BE IT RESOLVED that the Redevelopment Agency of the City of
Chula Vista does hereby make the following findings:
1) That the proposed use at this location is necessary or desirable to provide a service
or facility which will contribute to the general well being of the neighborhood or community. At the
proposed location, a sports bar and grill would allow commercial development on a commercially
viable property within the Redevelopment Project Area, thereby meeting the objectives of the
Redevelopment Plan that aim for the attraction of capital and new business enterprises, the
establishment of Town Centre as the South Bay's principal center for specialty goods and services,
and the strengthening of the mercantile posture of Town Centre;
2) That the proposed use, under the circumstances of the particular case, will not be
detrimental to the health, safety, or general welfare of persons residing or working in the vicinity and
will not be injurious to property or improvements in the vicinity. The proposed sale of beer and wine
has been conditioned by both the Department of Beverage Control of the State of California as well
as the Chula Vista Police Department and those conditions have been included as part of the permit.
3) That the proposed use will comply with the regulations and conditions specified in the
Municipal Code for such use. The proposed use complies with the intent of the Town Centre
Redevelopment Plan and the adopted Downtown Vision Statement to revitalize the Town Centre
area as the commercial-civic focus of the City and as a center for entertainment, and will include
commercial development on a commercially viable parcel; and
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4) That granting of the requested Special land Use Permit will not adversely affect the
General Plan of the City or the adopted plan of any government agency. The proposed use is
consistent with the goals of the Town Centre I Redevelopment Plan, the Downtown Vision
Statement, and the Town Centre Project Area Committee land use policy, which calls for the
revitalization of Town Centre and Downtown as a commercial and entertainment district. Granting of
a special land use permit for the proposed use will reaffirm the effectiveness of the land use
provisions of those documents.
BE IT FURTHER RESOLVED that the Redevelopment Agency of the City of Chula Vista
does hereby approve, subject to conditions attached hereto (see Exhibit A), a Special land Use
Permit for la Villa Loca Sports Bar and Grill.
PRESENTED BY APPROVED AS TO FORM BY
Chris Salomone
Director of Community Development
Exhibit A: Conditions of Approval
H:IHOMEICOMMOEVIRESOSIRESO - AGENCY {or La Villa Loca.dac
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EXHIBIT A
CONDITIONS OF APPROVAL
1. Sales, service, and consumption of alcoholic beverages shall be permitted only between
the hours of g a.m. and 12 midnight, Sunday through Thursday, and 9 a.m. and 1 a.m. on
Friday and Saturday.
2. The use of any amplifying system or device is prohibited on the patio, and the use of any
such system or device inside the premises shall not be audible outside the premises.
3. Entertainment provided shall not be audible beyond the area under the control of the
licensee(s) as defined on the ABC.257, dated May 24, 2000 and ABC.253 dated May 24,
2000.
4. The rear door shall be kept closed at all times during the operation of the premises except
for the ingress and egress of patrons and to permit deliveries. Said door(s) not to consist
solely of a screen or ventilated security door.
5. At all times when the premises are open for business the sale of alcoholic beverages shall
be made in conjunction with the sale of food.
6. Petitioners shall regularly police the area under their control in an effort to prevent loitering
of persons about the premises.
7. Petitioner shall not require the purchase of a minimum number of drinks.
8. The applicant shall comply with all recommendations of the City of Chula Vista Crime
Prevention Unit.
9. Prior to the issuance of building permits, the Fire Department shall review and approve
plans for the use.
10. Prior to the issuance of building permits, the applicant shall obtain a sign permit for all
proposed signage.
11. This permit shall be subject to any and all new, modified or deleted conditions imposed
after approval of this permit to advance a legitimate governmental interest related to
health, safety or welfare which the City shall impose after advance written notice to the
Permittee and after the City has given the Permittee the right to be heard with regard
thereto. However, the City, in exercising this reserved righUcondition, may not impose a
substantial expense or deprive Permittee of a substantial revenue source which the
Permittee cannot, in the normal operation of the use permitted, be expected to
economically recover.
12. ApplicanUoperator shall and does hereby agree to indemnify, protect, defend and hold
harmless City and Redevelopment Agency, its Council members, officers, employees, agents
and representatives, from and against any and all liabilities, losses, damages, demands,
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claims and costs, including court costs and attorney's fees (collectively, liabilities) incurred by
the City arising, directly or indirectly, from (a) City's approval and issuance of this Special Use
Permit, (b) City's approval or issuance of any other permit or action, whether discretionary or
non.discretionary, in connection with the use contemplated herein, and c) Applicant's
installation and operation of the facility permitted hereby. ApplicanUoperator shall acknowledge
their agreement to this provision by executing a copy of this Special Use Permit where
indicated, below. Applicant's/operator's compliance with this provision is an express condition
of this Special Use Permit and this provision shall be binding on any and all of
Applicant's/operator's successors and assigns.
13. It is the intention of the City Council that its adoption of this Resolution is dependent upon the
enforceability of each and every term, provision and condition herein stated; and that in the
event that anyone or more terms, provisions or conditions are determined by a Court of
competent jurisdiction to be invalid, illegal or unenforceable, this resolution and the permit shall
be deemed to be automatically revoked and of no further force and effect ab initio.
The property owner and the applicant shall execute this document 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 Recorder's Office of the County of San Diego, and a signed, stamped copy returned
to the Community Development Department. Failure to return a signed and stamped copy of this
recorded document within ten days of recordation to the Community Development Department shall
indicate the property owner/applicant's desire that the project, and the corresponding application for
building permits and/or a business license, be held in abeyance without approval. Said document
will also be on file in the Community Development Department's files and known as Document No.
Resolution No. 1681.
Signature of Representative of Date
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REDEVELOPMENT AGENCY AGENDA STATEMENT
ITEM NO.: ~
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MEETING DATE: 08/01/2000
ITEM TITLE: PUBLIC HEARING: TO CONSIDER THE SALE OF SPACE 48 AT
ORANGE TREE MOBILE HOME PARK
RESOLUTION AUTHORIZING THE COMMUNITY DEVELOPMENT
DIRECTOR TO EXECUTE A PURCHASE CONTRACT AND RELATED
DOCUMENTS FOR SPACE 48 AT ORANGE TREE MOBILEHOME PARK
SUBMlnED BY: COMMUNITY DEVELOPMENT DIRECTOR uj-1\ì Qs::
REVIEWED BY: EXECUTIVE DIRECTORlqfo¥
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4/5THS VOTE: YES D NO 0
BACKGROUND
In November 1987, Orange Tree Mobilehome Park converted to resident ownership. The
Agency assisted the residents in purchasing their park with a $600,000 acquisition loan which
was converted to loans for lower income residents to help them purchase their spaces. At that
time, 29 residents did not wish to purchase their space, and the Agency agreed to purchase these
spaces after the newly.formed homeowner's association was unable to secure financing to
purchase them. The residents who did not purchase their space remained as renters. The
Agency's desire is to sell these spaces as new home buyers move into the park or to sell the space
to the current resident. The Agency currently owns 11 spaces, having sold 18. The Agency
recently received a purchase offer from the occupant of Space 48 which is being presented for
consideration.
RECOMMENDATION
That the Redevelopment Agency conduct a public hearing, consider testimony, and adopt a
resolution authorizing the Community Development Director to execute a purchase contract and
related documents for Space 48 at Orange Tree Mobilehome Park.
BOARDS/COMMISSIONS RECOMMENDATION
Not Applicable.
DISCUSSION
On June 28, the current resident of Space 48 at Orange Tree Mobilehome Pork submitted an offer
to the Community Development Department to purchase this space. The value of the property has
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PAGE 2, ITEM NO.: !:)
MEETING DATE: 08/01/2000
been appraised at $29,000 and the buyer has offered to purchase the lot for $26,500. Although
the buyer's offer is $2,500 less than the appraised value, staff recommends accepting the offer
since the Agency desires to sell the spaces, the buyer is the current occupant of the space, and the
offer is not significantly less than the appraised value.
This is a request to authorize the Community Development Director to execute a purchase contract
and related documents as approved by the City Attorney's office for the sale of Space 48 at Orange
Tree Mobilehome Park. Attached as Exhibit 2 is the signed Purchase Contract.
Health and Safety Code 33431 requires a public hearing to consider a sale of agency owned
properly without public bids. Staff believes that the proposed sale is appropriate even without
public bids becouse the sale is to the current resident for a price slightly less than the fair market
value of the properly.
FISCAL IMPACT
Proceeds of the sale, less the estimated dosing costs of $800, will be deposited into the Agency's
Low and Moderate Income Housing Set.aside Fund for further use in providing affordable
housing programs.
EXHIBITS
1. Locator Map
2. Real Estate Purchase Contract and Receipt for Deposit
3. Public Hearing Notice
Ho\HOME\COMMDEV\STAFF.REP\O8.01-00\Orangelree 48.doc
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RESOLUTION NO.
RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY
OF CHULA VISTA AUTHORIZING THE COMMUNITY
DEVELOPMENT DIRECTOR TO EXECUTE A PURCHASE
CONTRACT AND RELATED DOCUMENTS FOR SPACE 48 AT
ORANGE TREE MOBILEHOME PARK
WHEREAS, the Redevelopment Agency currently owns mobilehome spaces at Orange Tree
Mobilehome Park located at 521 Orange Avenue, Chula Vista; and
WHEREAS, an offer to purchase space 48 at Orange Tree Mobilehome Park has been
received by the Community Development Department from the existing resident for $26,500.00,
$2,500 less than the appraised value of $29,000 for such property; and
WHEREAS, Article 11, Section 33431 of the California Community Redevelopment Law
requires a public hearing be held for any sale of lease of Agency.owned property without public bids;
and
WHEREAS, said public hearing has been conducted pursuant to Section 33431 for the sale
of space 48 at Orange Tree Mobilehome Park; and
WHEREAS, the Redevelopment Agency has found and determined that the sale of space 48
at Orange Tree Mobilehome Park to the existing resident, on the terms proposed is for fair value
under the circumstances, is in the best interest of the Redevelopment Agency, and is consistent with
its housing goals.
NOW, THEREFORE, BE IT RESOLVED by the Redevelopment Agency of the City of Chula
Vista as follows:
1. That based on the facts and findings set forth above, the Redevelopment Agency of
the City of Chula Vista does hereby approve the sale of space 48 at Orange Tree Mobilehome Park
to Cottrell Ross for the purchase price of $26,500; and
2. That the Redevelopment Agency of the City of Chula Vista does hereby authorize the
Community Development Director to execute a purchase contract on the terms presented, in
substantially the same form on file In the Office of the Secretary to the Redevelopment Agency, and
escrow instructions, each in a final form approved by the Agency Attorney, and with such additional
provisions as may be deemed necessary or appropriate thereby; and
3. That the Redevelopment Agency of the City of Chula Vista does hereby authorize the
Community Development Director to take such other action as deemed necessary to consummate
said sale of space 48 at Orange Tree Mobilehome Park.
PRESENTED BY APPROVED AS TO FORM BY
Chris Salomone
Director of Community Development
H:\HOME\COMMDEVlRESOS\orange tree 48.doc ..5--3
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EXHIBIT 2
REAL ESTATE PURCHASE CONTRACT AND RECEIPT FOR DEPOSIT
This is more than a receipt for money. It is intended to be a legally binding contract.
Read it carefully.
REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA
COMMUNITY DEVELOPMENT DEPARTMENT
Chula Vista, California June 28, 2000
Cotrell Ross, herein called Buyer hereby offers to purchase Space 48 at Orange Tree Mobilehome
Park, 521 Orange Avenue, Chula Vista ("Property'l) from the Redevelopment Agency of the City of
Chula Vista ("Agency") for the purchase price of $26,500. Agency hereby acknowledges receipt from
Buyer, the sum of three hundred dollars ($300.00) evidenced by:
[ ]Cash [ ] Casher's Check [X ] Personal Check [ ] Other
Payable to the Agency as deposit on account of purchase of the Property. Upon acceptance of this offer
by Agency, Buyer will deposit into escrow the remaining balance of the purchase price. The Property is
situated in the City of Chula Vista, County of San Diego, California, and is more particularly described as
follows:
SEE EXHIBIT A - LEGAL DESCRIPTION
521 Oran!!e Avenue. Space 48. Oran!!etree Mobilehome Park. Chula Vista
1. Buyer will deposit in escrow with Spring Mountain Escrow the balance of $26,200 towards the
purchase price of $26,500 and any other costs required to be paid by Buyer hereunder prior to close of
escrow.
2. Redevelopment Agency of the City of Chula Vista, herein called Agency, will credit the $300
received as a deposit towards the purchase price of $26,500.
3. Buyer represents and warrants that he does intend to occupy the Property as his residence and is not
acquiring the Property for purposes of speculation and resale.
4. Buyer and Agency shall deliver signed instruction to the escrow holder within seven (7) days from
Agency's acceptance of Buyer's offer. The escrow instruction shall provide for closing within 30 days
after Agency's acceptance. Escrow and other fees to be paid as follows:
By Agency:
. Owner's Title Insurance Policy
. One-half of Escrow Fee
. Documentary Transfer Tax
. Document Preparation Fee
. IRS Tax Report
. One-half of Transfer Fee of Homeowners Association
. Proration of Property Taxes and Homeowners Association Fee
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By Buyer:
. One-half of Escrow Fee
. One-half of Transfer Fee of Homeowner's Association
. Proration of Property Taxes
. Proration of Homeowner's Association Fees
5. If the sale is not completed due to fault of the Buyer, Buyer shall be responsible for any escrow and
related fees.
6. Agency's acceptance of Buyer's offer to purchase the Property on the telms set forth herein shall
occur upon Agency Board approval of this agreement after a public hearing and Agency's execution
hereof.
7. Buyer acknowledges having received copy of the Declarations, Covenants, Conditions and
Restrictions and all amendments hereto, if any, governing the described property, together with a
copy of the By-Laws ofthe Orange Tree Homeowners Association.
8. This agreement constitutes the entire agreement between the parties. Any other agreements between
the parties related to the subject matter hereof, either oral or written, are hereby superseded.
9. Buyer agrees and acknowledges that it is his sole responsibility to make an independent
investigation to the extent Buyer deems appropriate, concerning the physical condition (including
the existence of hazardous materials), value, development, use, marketability, feasibility and
suitability of the subject property, including, but not limited to, land use, zoning and other
governmental restrictions and requirements. Buyer is acquiring the subject property "as is", in its
present state and condition solely in reliance upon Buyer's own investigation, and no representations
or warranties of any kind, express or implied, have been made by the Agency or its representatives,
except as expressly set forth in this Agreement. Buyer unconditionally releases Agency from and
against any and all liability, both known and unknown, present and future, for any and all damages,
losses, claims and costs (including without limitation, the existence of hazardous materials), or the
subject property's non-suitability for intended use. With respect to this Section, Buyer waives the
provisions of California Civil Code Section 352 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."
Buyer's Initials: I {I J?
9.1 Buyer will accept the Property, and the matters relating to the subject property listed below, in
the present "as is" condition. The matters are:
a. Soils. ToDograDhv. Etc. Soils and geological condition; topography, area and
configuration; archeological, prehistoric and historic artifacts, remains and relics;
endangered species.
b. Utilities. Schools. Etc. Availability of utilities, schools, public access, and fire
and police protection.
c. Assessment Districts. The status and assessments of any and all assessment
districts.
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d. Planning and Zoning. Applicable planning, zoning, and subdivision statutes,
ordinances, and regulations.
e. Easements and Encroachments. Any easement, license, or encroachment which
is not a matter of public record, whether or not visible upon inspection of the
Property.
f. Other Matters. Any other matter relating to the Property or to the development
of the Property, including, but not limited to, value, feasibility, cost,
governmental pennissions, marketing and investment return.
10. Real Estate Commissions. Each party warrants to the other that no brokers or finders have been
employed or are entitled to a commission or compensation in connection with this transaction.
Each party agrees to indemnifY, protect, hOld hannless and defend the other party fÌ'om and
against any obligation or liability to pay any such commission or compensation arising from the
act or agreement of the indemnifYing party.
Dmoo 7f2 ~ 0 Dated:
REDEVELOPMENT AGENCY OF THE CITY
)~Q OF CHULA VISTA
(Buyer) Chris Salomone
Community Development Director
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EXHIBIT "A"
DESCRIPTION
A Condominium Comprised Of:
PARCEL 1:
An undivided 1/154th interest in and. to Lots 1 and 2 of CHULA VISTA TRACT NO.
87-5 (ORANGE TREE MOBILE HOME PARK), in the City of Chura Viata, County of San
Diego, State of California, according to Map thereof No. 11835 filed in the
office of the County Recorder of San Diego County, June 9, 198~.
EXCEPTING THEREFROM the following:
(a) All Units as shown upon the Condominium Plan of ORANGE TREE MOBILE HOME
PARK, recorded July 27, 1987 as File No. 87-420716 of Official Records of San
Diego County.
(b) The exclusive right to possession of those portions designated as
Exclusive Use Areas on the above referenced Condominium Plan.
PARCEL 2:
Un
Unit S-~ as shown and defined on the Condominium Plan referred to above.
PARCEL 3:
The exclusive right to possession of those portions of Lots 1 and 2 described
in Parcell above, designated as Exclusive Use Areas on the Condominium Plan
referred to above as appurtenant to Parcels 1 and 2 above described.
EXCEPTING THEREFROM any personal property, if any, located within Parcel 2
above described.
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CllY OF
CHUlA VISTA
COMMUNITY DEVELOPMENT DEPARTMENT
HOUSING DIVISION
NOTICE OF PUBLIC HEARING BY THE
REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA
NOTICE IS HEREBY GIVEN THAT A PUBLIC HEARING WILL BE HELD BY THE
REDEVELOPMENT AGENCY of the City ofChula Vista, California, in the City Council Chambers
located in the Public Services Building. Chula Vista Civic Center: 276 Fourth Avenue to consider the
following:
HEARING DATE and TIME: August I, 2000,4:00 p.m.
APPLICANT: Cottrell Ross
PROJECT DESCRIPTION: 521 Orange Avenue Space #48
PURPOSE OF HEARING: Request to purchase Orange Tree Mobilehome space #48 from
the City ofChula Vista for $26,500.00
Any written comments or petitions to be submitted to the Redevelopment Agency must be received in the
Community Development Department no later than noon on the date of the public hearing. Please direct
any questions or comments to Vikki Opeodu in the Community Development Department located, 276
Fourth Avenue, Chula Vista, CA 91910, or by calling 585.5731. Please reference project in all
correspondence.
If you wish to challenge the City's action on this application in court, you may be limited to raising only
those issues you or someone else raised at the public hearings, or in written correspondence delivered to
the Community Development Department's Housing Division at or prior to the public hearing described
in this notice. A copy of the application and accompanying documentation and/or plans are on file and
available for inspection and review in the Community Development Department's Housing Division.
COMPLIANCE WITH AMERICANS WITH DISABIL TIES ACT (ADA)
The City ofChula Vista, in complying with American with Disabilities Act, requests individuals who require special
accommodation 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 5-day's in advance for scheduled services and activities. Please contact Alicia Hernandez at
(619) 585-5722 for specific information. Service for the hearing impaired by calling 585-5647 (TOO).
5-9
276 FOURTH AVENUE. CHULA VISTA. CALIFORNIA 91910 . (619) 585-5722 . FAX (6t9) 585-5698
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