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Home My WebLink AboutRDA Packet 1997/07/22 "I d~"'-"" "~-'cr "~n"ltv of nerlufv thett am em I b , C '-;it" of ~".,\:".~.~thc Com,nun to i:.C'O ' en ni "0 " ., '1' "ne! t"ot , posted this A';en~"! ';0 ;0:2 "n " the Pu:J!lc SerV.ces'uy;,n; '.n '0 ,:,,11 on DATE:J..js.illSIGNED ~A( l~L, " Notice is hereby given that the Mayor/Chair of the City Council, Redevelopment Agency, Chula Vista Housing Authority, Industrial Development Authority, and Public Financing Authority has called and will convene a special meeting of the City Council, Redevelopment Agency, Housing Authority, Industrial Development Authority, and Public Financing Authority Tuesday, July 22, 1997 at 6:00 p.m., immediately following the regular City Council meeting, in Council Chambers, located in the Public Services Building, 276 Fourth Avenue, Chula Vista, California to consider, deliberate and act upon the following: ~illr Tuesday, July 22, 1997 Council Chambers 6:00 p.m. Public Services Building (immediately following the City Conncil meeting) Special Joint Meeting of the Redevelopment Agencv/CouncillHousing Authoritv/ Industrial Development Authoritv/Public Financing Authoritv of the Citv of Chula Vista CALL TO ORDER 1. ROLL CALL: Agency/Council/Authority Members Moot -' Padilla -' Rindone -' Salas -' and Chillr/Mayor Horton - CONSENT CALENDAR ( Items 2 through 6 ) (Will be voted on immediately following the Council Consent Calendar during the City Council meeting) The staff recommendations regarding the following item listed under the Consent Calendar will be enacted by the Agency/Council by one motion without discussion unless an Agency/Council member, a member of the public or City staff requests that the item be pulled for discussion. If you wish to speak on one of these items, please fill out a "Request to Speak Form" available in the lobby and submit it to the Secretary of the Redevelopment Agency or the City Clerk prior to the meeting. Items pulled from the Consent Calendar will be discussed after Action Items. Items pulled by the public will be the first items of business. 2. APPROVAL OF MINUTES, 5/23/95 (Joint Public Financing Authority/Council meeting); 09/17/96 (Housing Authority); 7/9/96, 01/28/97 (Industrial Development Authority); 06/03/97, 06/10/97, 06/17/97 (Joint Agency/Council meetings); 06/24/97 (Special Agency) 3. AGENCY APPROVING COST SHARING AGREEMENT BY AND BETWEEN RESOLUTION 1546 WAIVING THE CONSULTANT SELECTION PROCESS; APPROVING A COST SHARING AGREEMENT BY AND BETWEEN THE REDEVELOPMENT AGENCY, ROHR, INC. AND THE SAN DIEGO UNIFIED PORT DISTRICT, AND BFGW GROUP, LLC FOR SERVICES RELATED TO GROUNDWATER BASIN REDESIGNATION; AND AUTHORIZING THE EXECUTIVE DIRECTOR TO EXECUTE SAME--On 2/11/97, the Agency conceptually approved participation in a petition to the Regional Water Quality Control Board to remove the beneficial use designation from the groundwater basin in the area of the Chula Vista Bayfront, contingent upon a cost sharing agreement among the participating parties and an appropriation of funds for the intended purpose. Staff recommends approval of the resolution. (Community Development Director) - - Agenda -2- July 22, 1997 4. AGENCY APPROVING THE FORBEARANCE AGREEMENT BETWEEN RESOLUTION 1547 ONE PARK LIMITED AND THE CHULA VISTA REDEVELOPMENT AGENCY RESTRUCTURING THE 1985 ORIGINAL AGENCY LOAN IN THE AMOUNT OF $850,000 FOR THE ONE PARK APARTMENTS AT 350 TIllRD A VENUE- -On 10/17/85, the Agency approved an $850,000 ten year deferred loan for the development of a 94-unit residential rental project and parking structure located at 350 Third Avenue to benefit moderate income households. The borrower requested Agency financial assistance to offset the costs of a grade level parking structure. As the 5/96 due date approached, the borrower requested the Agency to renegotiate the loan. On 9/24/96, the Agency instructed staff to implement the recommended agreement terms as outlined in the Forbearance Agreement. Staff recommends approval of the resolution. (Community Development Director) 5. JOINT APPROVING AN AGREEMENT WITH THE LAW FIRM OF COUNCIL STRADLING, YOCCA, CARLSON & RAUTII TO PROVIDE RESOLUTION 18734 BOND COUNSEL SERVICES AND AUTIIOR1ZING THE MAYOR AGENCY TO EXECUTE SAID AGREEMENT--Since 1985, the City and Agency RESOLUTION 1548 have contracted with the law firm of Jones, Hall, Hill & White to HOUSING AUTHORITY provide bond counsel services on all debt issues with the exception of RESOLUTION HA-5 certain assessment district issues. In order to make a determination if INDUSTRIAL DEVELOPMENT a change was desirable, staff conducted a formal selection process for AUTIIORITY these services. A Request for Proposals was sent to 15 municipal law RESOLUTION IDA-34 firms. Eleven (II) proposals were received and evaluated by a selection PUBLIC FINANCING committee appointed by the City Manager. The committee interviewed AUTHORITY three firms deemed the best and unanimously selected the firm of RESOLUTION PFA-2 Stradling, Yocca, Carlson & Rauth. Staffrecommends approval of the resolution. (Director of Finance) 6. HOUSING AUTIIORITY APPROVING FISCAL YEAR 1997-98 BUDGET AND RESOLUTION HA-6 APPROPRIATING ANTICIPATED REVENUES OF $1,500--The City Council adopted bylaws for the Chula Vista Housing Authority on June 27, 1995. Being a separate entity from the City of Chula Vista, the Chula Vista Housing Authority must approve and adopt a budget in order to appropriate funds. Staff recommends approval of the resolution. (Director of Community Development) , * * END OF CONSENT CALENDAR * * * ADJOURNMENT TO CITY COUNCIL MEETING ****....,.... Agenda -3- July 22, 1997 ORAL COMMUNICATIONS This is an opportunity for the general public to address the various agencies on any subject matter within the Agency/Authorities' jurisdiction that is not an item on this agenda. (State law, however, generally prohibits the Agency/Authority from taking action on any issues not included on the posted agenda.) If you wish to address the Agency/Authorities on such a subject, please complete the "Request to Speak Under Oral Communications Form" available in the lobby and submit it to the Secretary to the Redevelopment Agency or City Clerk prior to the meeting. Those who wish to speak, please give your name and address for record purposes and follow up action. ITEMS PULLED FROM THE CONSENT CALENDAR This is the time the various agencies will discuss items which have been removed from the Consent Calendar. Agenda items pulled at the request of the public will be considered prior to those pulled by various agency members. OTHER BUSINESS 7. DIRECTOR'S REPORT(S) 8. CHAIR'S REPORT(S) 9. AGENCY MEMBER COMMENTS ADJOURNMENT The meeting will adjourn to the Regular Redevelopment Agency Meeting on August 5, 1997 at 4:00 p.m. immediately following the City Council meeting, in the City Council Chambers, and to a Special Meeting when called by the Housing Authority, Industrial Development Authority and/or Public Financing Authority. 1M; IH OMEICOMMD EVIA GEND ASIO7 - 22-97. RD A] - - MINUTES OF A SPECIAL JOINT MEETING OF THE PUBLIC FINANCING AUTHORITY/ CITY COUNCIL OF THE CITY OF CHULA VISTA Tuesday, May 23, 1995 Council Chambers 10;01 p.m. Public Services Building CALL TO ORDER 1. ROLL CALL, PRESENT: Authority/Council Members Alevy, Moot. Padilla. Rindone, and Chair/Mayor Horton ALSO PRESENT: John D. Goss, Director/City Manager; Bruce M. Boogaard, Authority/City Attorney; and Vicki C. Soderquist, Deputy City Clerk 2. APPROVAL OF MINUTES: None BUSINESS 3. WRITTEN COMMUNICATIONS: None 4.A. RESOLUTION 17911 ADOPTING THE REASSESSMENT REPORT, CONFIRMING AND ORDERING THE REASSESSMENT PURSUANT TO SUMMARY PROCEEDINGS AND DIRECTING ACTIONS WITH RESPECT THERETO--To accomplish refinancing, a reassessment of properties is required pursuant to a reassessment report. Council is being asked to adopt the reassessment report, order the reassessment, authorize the sale of refunding bonds to the Authority, and approve other related documents and actions. (Director of Finance) B. RESOLUTION 17912 AUTHORIZING THE ISSUANCE OF REFUNDING BONDS, APPROVING AND DIRECTING THE EXECUTION OF A FISCAL AGENT AGREEMENT AND AN ESCROW DEPOSIT AND TRUST AGREEMENT, AUTHORIZING SALE OF BONDS, AND OTHER RELATED DOCUMENTS AND ACTIONS WITH RESPECT THERETO C. RESOLUTION 1 AUTHORIZING ISSUANCE AND SALE OF TWO SERIES OF REVENUE BONDS IN THE AGGREGATE PRINCIPAL AMOUNT OF NOT TO EXCEED $20,150,000 FOR THE PURPOSE OF FINANCING ACQUISITION OF REFUNDING ASSESSMENT BONDS TO BE ISSUED BY THE CITY OF CHULA VISTA AND APPROVING RELATED AGREEMENTS AND ACTIONS Authority/Council Member Rindone questioned what the Public Financing Authority was. Robert Powell, Director of Finance, replied that on 4/4195, the Council/Agency approved ajoint power authority agreement to form the Chula Vista Joint Powers Financing Authority for the purpose of pooled financing to maximize savings to the property owners. Authority/Council Member Rindone stated he was not present at that meeting and, therefore, it was new to him. He questioned why it was not under the presently established entities. Mr. Powell responded thai State law required that it be dnne under a joinl powers authority. Authority/Council Member Rindone questioned if the Council and Agency was ajoint powers authority and ifthere were any other options available. 02-1 - - Minutes May 23, 1995 Page 2 Mr. Powell stated that was not his understanding. Mr. Boogaard stated the City was taking advantage of the law that was designed to allow agencies, not just all controlled by the same council but in the same region and/or area, to join together for the purpose of pooling their resources to refinance or finance obligations. . Chick Adams, Bond Counsel, Jones Hall Hill & White, stated the legislation was only available to joint powers authorities and it authorized joint powers authorities to specifically bond hank assessment bonds into a single issue of joint powers authority bonds. Staff would have preferred to use an existing public agency had the joint powers been broad enough to do so, but the Public Financing Authority was the only choice. Authority/Council Member Rindone stated there were no assets, liabilities, rules or regulalions, board of governors, or procedures. Mr. Adams stated as a result of the 1986 Bond Pooling Act that was correct. The asset was the authorities ability to use those statutes. Authority/Council Member Alevy summarized that it enabled the City to minimize the risk by making it insurable and reduce assessments to the homeowners without extending the life of the bond. Mr. Adams stated that was correct. Mr. Boogaard stated the entity Member Rindone was concerned about was conlrolled by the joint powers agreement that the parties approved and could have been molded in any way. It was contained in the information presented to the Authority/Council. The powers could be limited with regulations in the agreement. Mr. Adams stated that many cities would use a non-profit organization for their financing, but a joint powers authority did not have the same extensive filing requirements. Once the financing was done there was no ongoing business. Mr. Boogaard questioned if the agreement was limited to the financing by its terms. Mr. Adams replied that it was not. Because the 1986 Act was such a useful bond act the agreement was designed to be used as broadly as the 1986 Act permitted. If there was another financing in the future lhal would lend itself to the joint powers authority it would be available. COUNCIL RESOLUTIONS 17911, 179121 AND AUTHORITY RESOLUTION I OFFERED BY AUTHORITY/COUNCIL MEMBER ALEVY, reading of the text was waived. Mr. Boogaard questioned if it had been determined whether any of the Members had interest in any of the refinance districts and needed to abstain from voting. Mr. Powell responded that Member Padilla lived in one of the assessment districts. Authority/Council Member Padilla stated based on that information he would abstain from voting on the item. VOTE ON MOTION: approved 4-0-0-1 with Padilla ahsulining. ORAL COMMUNICATiONS None OJ -cJ .- - Minutes May 23, 1995 Page 3 OTHER BUSINESS 5. DIRECTOR'S/CITY MANAGER'S REPORTCS) - None 6. CHAIR'S/MA YOR'S REPORTCS) - None 7. AUTHORITY/COUNCIL MEMBER COMMENTS - None ADJOURNMENT ADJOURNMENT AT 10:15 P.M. to a Special Meeting when called by the Puhlic Financing Authority, the City Council, or Redevelopment Agency. Respectfully suhmitted, BEVERLY A. AUTHELET. CMC/AAE. City Clerk \\ by; I Vicki C. dl.-.3 1 -- - - _. MINUTES OF A SPECIAL MEETING OF THE HOUSING AUTIIORITY OF THE CITY OF CHULA VISTA Tuesday, September 17, 1996 Council Chambers 6:00 p.m. Public Services Building CALL TO ORDER 1. ROLL CALL: PRESENT: Members Alevy, Moot, Rindone, and Chair Horton. ABSENT: Member Padilla. ALSO PRESENT: John D. Goss, City Manager; Ann Moore, Acting City Attorney; and Beverly A. Authelet, City Clerk. MSC (Rindone/Alevy) to excuse Member Padilla's absence, approved 4-0-1 with Padilla absent. 2. APPROVAL OF MINUTES: Special Meeting of February 20, 1996. MSC (Rindone/Alevy) to approve the February 20, 1996 minutes as presented, approved 4-0-1 with Padilla absent. CONSENT CALENDAR (Items Pulled: None.) CONSENT CALENDAR OFFERED BY MAYOR HORTON, reading of the text was waived, heading read, and approved 4-0-1 with Padilla absent. 3. WRITTEN COMMUNICATIONS: None 4. RESOLUTION HA-4 APPROVING FISCAL YEAR 1996-1997 BUDGET AND APPROPRIATING ANTICIPATED REVENUES OF ONE THOUSAND FIVE HUNDRED DOLLARS ($1,500)--The City Council adopted bylaws for the Chula Vista Housing Authority on June 27, 1995, Being a separate entity from the City of Chula Vista, the Chula Vista Housing Authority must approve and adopt a budget in order to appropriate funds. Staff recommends approval of the resolution. (Director of Community Development) * * END OF CONSENT CALENDAR * * ORAL COMMUNICATIONS - None. OTHER BUSINESS 4. DIRECTOR'S REPORTIS) .. None. ~-" , -- - .. Minutes September 17, 1996 Page 2 5. CHAIRMAN'S REPORT/S) .. None. 6. COMMISSIONERS' COMMENTS - None. ADJOURNMENT The meeting adjourned at 9:01 p.m. Respectfully submitted, BEVERLY A. AUTHELET, CMC/AAE, City Clerk by: Ø/-S- -.. .. .. MINUTES OF A REGULAR MEETING OF THE INDUSTRIAL DEVELOPMENT AUTHORITY OF THE CITY OF CHULA VISTA Tuesday, July 9, 1996 Conncil Chambers 8:24 p.m. Public Services Building CALL TO ORDER 1. ROLL CALL: PRESENT: Boardmembers Alevy, Moot, Padilla, Rindone, and Chair Horton. ALSO PRESENT: John D. Goss, City Manager; Ann Y. Moore, Acting City Attorney; and Beverly A. Authelet, City Clerk 2. APPROVAL OF MINUTES: November 7, 1995. MSUC (Alevy/Horton) to approve the minutes of November 7, 1995. BUSINESS 3.a. RESOLUTION IDA-30 DECLARING INTENTION TO REIMBURSE EXPENDITURES RELATING TO SOLID WASTE TRANSFER STATION PROJECT FROM THE PROCEEDS OF TAX EXEMPT OBLIGATIONS FROM THE CITY AND AUTHOR1ZING THE ENGAGEMENT OF NECESSARY PROFESSIONAL SERVICES - John Sexton Sand and Gravel Corporation desires to obtain an Industrial Development Bond financing to establish a trash transfer station at 855 Maxwell Road. Staff is requesting the authority to authorize this bond financing in an amount not to exceed $14 million. Staff recommends approval of the resolution. B. RESOLUTION IDA-31 SETTING THE CITY PARTICIPATION FEE FOR INDUSTRIAL DEVELOPMENT BOND ISSUE AT .25 PERCENT OF THE PRINCIPAL AMOUNT PAYABLE AT THE TIME OF ISSUE Fred Kassman stated that the Industrial Authority meets on an "as needed" basis when requests are receive for industrial development bonds. We have recently received one from John Sexton Sand and Gravel for the issuance of a industrial development bonds up to a total of $14 million. The company has selected Grigsby Branford as their nnderwriters for the issuance and Jones Hall Hill and White as the bond connsels. He indicated that while the Industrial Development Authority and the City act as a conduit for the issuance of bonds, the City incurrs no financial obligation for the repayment of the bond. Also, this is a preliminary action which makes certain expenses on the part of the developer eligible for reimbursement through the bonds. This action does not obligate the City to issue the bonds. The issuance of the bonds will require further action by the Authority, City Conncil, and the State of California. Ms. Sandra Boland, Chief Financial Officer for John Sexton Sand and Gravel, 1815 South Field Road, Hillside, Illinois. She explffined the process in selecting professionals for the project. They started the process almost two years ago. They contacted several nnderwriters and solicited proposals from them. They evaluated those proposals based on qualifications, experience, cost, and a variety of other factors. After they concluded that process, they decided to speak further with Bank of America, Westhauff Cone and Homestead, and Grigsby Branford. As a result of this, they chose Grigsby Branford because they were looking for someone who had a national presence and could market the bonds well for them. They felt their office in San Diego was a plus, and they were a minority-owned firm. ~-~ - . IDA Minutes July 9, 1996 Page 2 RESOLUTION IDA-30 AND IDA-31 OFFERED BY MEMBER MOOT, heading read, text waived, passed, and approved SoD. ORAL COMMUNICATIONS There were none. DIRECTORS REPORTlS): There were none. CHAIR REPORTiS): There were none. MEMBERS' REPORTiS): There were none. ADJOURNMENT The meeting adjourned at 8:47 p.m. R~~- Beverly A. Authelet, CMC/AAE City Clerk óJ-7 MINUTES OF A SPECIAL MEETING OF THE INDUSTRIAL DEVELOPMENT AUTIIORITY OF THE CITY OF CHULA VISTA Tuesday, January 28, 1997 Council Chambers 6:00 p.m. Public Services Building CALL TO ORDER 1. ROLL CALL: PRESENT: Members John S. Moot, Stephen C. Padilla, Jerry R. Rindone, Mary Salas, and Chair Shirley A. Horton. ALSO PRESENT: John Goss, Director; John M. Kaheny, Legal Counsel; Beverly A. Authelet, City Clerk; and Patricia Schwenke, Deputy City Clerk. 2. APPROVAL OF MINUTES: September 17, 1996 MSC (Rindone/Horton) to approve the minutes, approved 3-0-0-2 with Padilla and Salas abstaining. ACTION ITEMS 3. RESOLUTION IDA-33 DECLARING INTENTION TO REIMBURSE EXPENDITURES RELATING TO MANUFACTURING PROJECT OF CONTRACT SERVICES INTERNATIONAL (CSI) FROM THE PROCEEDS OF TAX EXEMPT OBLIGATIONS OF THE INDUSTRIAL DEVELOPMENT AUTHORITY-- Community Development staff has been working to assist Contract Services International (CSI) to establish a jewelry manufacturing and repair facility in the recently vacated Nellcor building located in the EastLake Business Park. Staff recommends approval of the resolution. (Community Development Department) Fred Kassman, Redevelopment Coordinator, reported this is the first step in the process. The application and bond documents will return to the Authority for review and approval and will subsequently be forwarded to the State. The action requested tonight by the Authority will make eligible all of the costs the applicant will have from this moment forward. This project is considered eligible based on preliminary discussions with our bond counsel, and staffs opinion is it can and will be approved by the State. Member Rindone understood this item will return to the Authority for approval, but there bas been criticism in the past when bond underwriters were selected without a bidding process. He asked if there is assurance a bid opening process will be available for these bonds. 8 Peter Richardson, 2220 Otay Lakes Road, Chula Vista, CA, representing Contract Services International, explained they conduct a competitive bidding process and other institutions were contacted. Among the local financial institutions, CSI favors organized charter institutions such as Union Bank. RESOLUTION IDA-33 OFFERED BY CHAIR HORTON, reading of the text was waived, title read, passed, and approved unanimously 5-0. ORAL COMMUNICATIONS None. ól-8' Minutes January 28, 1997 Page 2 OTHER BUSINESS 4. DIRECTOR'S REPORTIS): None. 5. CHAIRMAN'S REPORTCS): None. 6. MEMBER COMMENTS, None. ADJOURNMENT The meeting adjourned at 8:01 p.m. Respectfully submitted, BEVERLY A. AUTHELET, CMC/AAE by: Patricia Schwenke, Deputy City Clerk 0"2-9 MINUTES OF A JOINT A REDEVELOPMENT AGENCY/CITY COUNCIL MEETING OF THE CITY OF CHULA VISTA Tuesday, June 3, 1997 Council Chambers 6:28 p.m. Public Services Building CALL TO ORDER 1. ROLL CALL: PRESENT: Agency/Councilmembers: Moot, Padilla, Rindone, Salas, and Chair/Mayor Horton ABSENT: AgencylCouncilmembers: None ALSO PRESENT: Executive Director/City Manager. John D, Goss; Legal Counsel/City Attorney, John M. Kaheny; and City Clerk, Beverly A. Aulhekl 2. APPROVAL OF MINUTES: None submitted. ORAL COMMUNICATIONS There were none. PUBLIC HEARINGS AND RELATED RESOLUTIONS AND ORDINANCES 3. PUBLIC HEARING: 1) TO CONSIDER GRANTING A SPECIAL LAND USE PERMIT FOR THE DEVELOPMENT OF A MORTUARY AT 753 BROADWAY LOCATED WITHIN THE SOUTHWEST REDEVELOPMENT PROJECT AREA; AND 2) PURSUANT TO CALIFORNIA HEALTH AND SAFETY CODE SECTIONS 33431 AND 33433 TO CONSIDER A PROPOSED PURCHASE/SALE AND DEVELOPMENT AGREEMENT FOR THE SALE AND REDEVELOPMENT OF AGENCY PROPERTY AT 753 BROADWAY TO UNIVERSAL MEMORIAL CENTERS V, INc. DBA HUMPHREY MORTUARY- In March of 1996, the Agency received an offer from the Loewen Group, owner of Universal Memorial Centers V, Inc. dba Humphrey Mortuary. to purchase the property If" construcliou of a new mortuary. At Agency's direction staff negotiated a price for lhe property consislenl with the market value. Since the property is being sold without a formal public bidding process, California Redevelopment Law requires lhal the Agency make certain findings related to lhe sale of the property. Slaff recommends the Agency/Council approve the Purchase/Sale and Development Agreement and adopt the special land use permit (Communily Development Director) a) AGENCY RESOLUTION 1540 ADOPTING NEGATIVE DECLARATION IS-97-IO, APPROVING THE DESIGN OF AND GRANTING A SPECIAL LAND USE PERMIT FOR THE DEVELOPMENT OF A MORTUARY AT 753 BROADWAY LOCATED WITHIN THE SOUTHWEST REDEVELOPMENT PROJECT AREA b) AGENCY RESOLUTION 154] AND COUNCIL RESOLUTION 18687 ~lAKlNG REQUIRED REDEVELOPMENT ACT FINDINGS AND APPROVING A PURCHASE/SALE AND DEVELOPMENT AGREEMENT AND JOINT ESCROW INSTRUCTIONS WITH UNIVERSAL MEMORIAL CENTERS V, INC. WITH RESPECT TO PROPERTY LOCATED AT 753 BROADWAY, CHULA VISTA, AND AUTHORIZING THE CHAIRMAN TO EXECUTE SAME MSUC (Horton/Rindone) to continue item to June 17, 1997, óJ. -I 0 - - Minutes June 3, 1997 Page 2 4. PUBLIC HEARING: PURSUANT TO CALIFORNIA HEALTH AND SAFETY CODE SECTIONS 33431 AND 33433 CONSIDERING SALE OF AGENCY PROPERTY TO AND APPROVING AN AGREEMENT WITH THE SAN DIEGO UNIFIED PORT DISTRICT FOR PURCHASE AND SALE AND ESCROW INSTRUCTIONS FOR 980 LAGOON DRIVE - Staff requests that this item he continued to a Special Joint Meeting of the Redevelopment Agency on June 10, 1997. (Community Development Director) MSUC (Rindone/Horton) to continue to June 10, 1997. OTHER BUSINESS 5. DTRECTOR'S/CITY MANAGER'S REPORT(S) - none. 6. CHATR'S/MA YOR'S REPORT(S) a) AGENCY RESOLUTION 1542 SUPPORTING ASSEMBLY BILL 1342, EXTENSION OF TIME LIMITS FOR REDEVELOPMENT PLANS - AB 1342 ex lends the lime limitation on new and existing Redevelopment Plans. This item is not covered by the City's Legislative Program, however, the Legislative Committee recommends a "SUPPORT" position. AB 1153 protects the solvency of such Joint Powers Authorities as the San Diego Pooled Insurance Program Authorily. of which Chula Vista is a member. It is recommended that the resolutions be approved. (Legislative Committee) b) COUNCIL RESOLUTION 18688 SUPPORTING SENATE BILL 1153, INSURANCE RESOLUTIONS 1542 AND 18688 OFFERED BY MAYOR HORTON, heading read, text waived, passed and approved 5-0. 7. AGENCY/COUNCIL MEMBER COMMENTS - none. ADJOURNMENT The meeting adjourned at 6:35 p.m. Respectfully submitted, Beverly A. Autheld. CMC/AAE City Clerk ól -II MINUTES OF A JOINT MEETING OF THE REDEVELOPMENT AGENCY AND CITY COUNCIL OF THE CITY OF CHULA VISTA Tuesday, June 10, 1997 Council Chambers 6:30 p.m. Public Services Building CALL TO ORDER 1. ROLL CALL; PRESENT: Agency/Councilmembers: Moot, Padilla, Riodone, Salas, and Chair/Mayor Horton ABSENT: Agency/Councilmembers: None ALSO PRESENT: Executive Director/City Manager, John D. Goss; Legal Counsel/City Attorney, John M. Kabeny; and City Clerk/Acting Secretary, Beverly A. Authelet 2. APPROV AL OF MINUTES: May 20, 1997 (joinl meeting) MSUC (Moot/Padilla) to approve the May 20, 1997 minutes. ORAL COMMUNICATIONS There were none. PUBLIC HEARINGS AND RELATED RESOLUTIONS AND ORDINANCES 3. PUBLIC HEARING PURSUANT TO CALIFORNIA HEALTH AND SAFETY CODE SECTIONS 33431 AND 33433 CONSIDERING SALE OF AGENCY PROPERTY TO AND APPROVING AN AGREEMENT WITH THE SAN DIEGO UNIFIED PORT DISTRICT FOR PURCHASE AND SALE AND ESCROW INSTRUCTIONS FOR 980 LAGOON DRIVE. A Purchase and Sale Agreement I"r 980 Lagooo Drive (Shangri-La property), including a meet aod confer provision, is presented for consideralion. Staff recommends approval of the resolution. (Director of Community Development) Continued from the meeting of 6/3/97. JOINT AGENCY RESOLUTION 1543 AND COUNCIL RESOLUTION ]8690 MAKING REQUIRED REDEVELOPMENT ACT FINDINGS AND APPROVING A PURCHASE AND SALE AND ESCROW INSTRUCTIONS WITH THE SAN DIEGO UNIFIED PORT DISTRICT WITH RESPECT TO PROPERTY LOCATED AT 980 LAGOON DRIVE, CHULA VISTA, AND AUTHORIZING THE CHAIRMAN TO EXECUTE SAME Community Development Director, Chris Salomone, slated lhis item involves lhe sale of Agency owned properly to the San Diego Unified Port District. In some ways, this is unique because il otters us an opportuoity to clean a site that has some known soil contamination on it. To accomplish lhis. tbe Port is allowing $500,000 to be deposited into an escrow account in order to allow tbe Agency to conduct lhe clean up of tbe site and deliver a clean parcel to the Port and be paid the remaining balance of lhe total, $981,000 lhat tbe site was appraised at. In addition we had some agreements to negotiate and some duties to perform under the proposed sale documents. We feel confident that we will be able to accomplish the intenl of the agreement, and we are happy 10 have been able to accomplish a very ditticult negotiation. Deputy City Attorney. Glen Googins. stated that whenever property is acquired with lax increment monies and disposed of for redevelopmenl or whenever Agency property is sold wilhout competllive bidding, a public hearing o'1-/~ - - - . Minutes June 10, 1997 Page 2 must be held and certain findings must be made in support of that land transaclion. The findings which are required are: sale of the property will eliminate and help prevent the spread of hlighl delerioralion in lhe project area, the sale of the property must be consistent with the redevelopment plan and implementation plan I()f the project, and the sale of the property must be not less than its fair market value or its tair reuse vatue. The factual basis and support of these lïndings are contained in the Resolulion. This being the time and place as advertised. the public hearing was opened. There being no one wishing to address the item, the public hearing was closed. Agency/Councilmember Moot stated that it was important when the City linds out that prOperty within its jurisdiction is contaminated that it make its best efforts to clean up that property, especially when that property is located at such an important site on the Bayfront. He also tell il was good that the Pori District has agreed to cooperate with us in a manner in which lhis property can be cleaned up. RESOLUTIONS 18690 AND 1543 OFFERED BY AGENCY/COUNCILMEMBER MOOT, headings read, texts waived, passed and approved 5-0. 4. PUBLIC HEARING CONSIDERATION OFTHE ADOPTION OF FINAL OPERATING BUDGET, CAPITAL BUDGETS, AND REDEVELOPMENT AGENCY BUDGET FOR THE FISCAL YEAR BEGINNING JULY I, 1997 AND ENDING JUNE 30, I 998--Staff requests that this item be continued to a Joinl Meeting of the Redevelopment Agency/City Council on June 17, 1997 at a TIME CERTAIN OF 6:00 P.M. (Administration) MSUC (Horton /Padilla) to continue the item to a joint Agency/City Council meeting on Jnne 17, 1997. OTHER BUSINESS 5. DIRECTOR'S/CITY MANAGER'S REPORTCS) - none. 6. CHAIR'S/MA YOR'S REPORTCS) - none. 7. AGENCY/COUNCIL MEMBER COMMENTS Agency/Councilmember Rindone stated he had made a relerral 10 staff some lime ago regarding Redevelopment Agency properties that had been purchased fnr lhe live redevelopment projecls, what the purchase price was paid by the City and what the sale price was when lhe City sold those properties. He wanled to add to lhal referral to include any redevelopment agency property lhat is anticipated to be sold within lhe next two years and the price tbat was originally paid for that. He asked staff when they anlicipated such an update would be available. Mr. Salomone replied that staff could do that in a fairly expedilious tashion prohably within three weeks. ADIOURNMENT The meeting adjourned at 6:40 p.m. Respectfully submitted. Beverly A. Aulhelel, CMCIAAE Cily Clerk óJ -13 - . MINUTES OF A JOINT REDEVELOPMENT AGENCY/CITY COUNCIL MEETING OF THE CITY OF CHULA VISTA Tuesday, June 17, 1997 Council Chambers 9:18 p.m. Public Services Building CALL TO ORDER 1. ROLL CALL: PRESENT, Agency/Councilmembers: Moot, Padilla, Rindone, Salas, and Chair/Mayor Horton ABSENT, Agency /Councilmembers: None ALSO PRESENT: Executive Director/City Manager, John D. Goss; Legal Counsel/City Attorney, John M. Kaheny; and City Clerk, Beverly A. Authelet ORAL COMl\fUNICATIONS There were none. PUBLIC HEARINGS AND RELATED RESOLUTIONS AND ORDINANCES 2. PUBLIC HEARING CONSIDERATION OF THE ADOPTION aFFINAL OPERATING BUDGET, CAPITAL BUDGETS, AND REDEVELOPMENT AGENCY BUDGET FOR THE FISCAL YEAR BEGINNING JULY 1, 1997 AND ENDING JUNE 30, 1998 - Council has held five special work sessions to consider and discuss the proposed fiscal year 1997/98 budgets. Council has received citizen input and discussed in detail with staff the impact of these budgets on all City operations and the Redevelopment Agency. The City Manager's proposed budget has been amended based on tentative decisions by Council at the budget work sessions and it is this amended budget which is recommended to he adopted. Staff recommends Council and Agency accept public testimony and adopt the proposed budgets as amended during the review sessions and as may be further amended as a result of the public testimony. Staff recouunends approval of the resolutions. (Administration) Continued from the meeting of 6/10/97. COUNCIL RESOLUTION 18696 APPROVING ADOPTION OF THE FINAL OPERATING AND CAPITAL BUDGETS OF THE CITY OF CHULA VISTA FOR THE FISCAL YEAR BEGINNING JULY 1, 1997 AND ENDING JUNE 30, 1998 AGENCY RESOLUTION 1544 ADOPTING THE REDEVELOPMENT AGENCY BUDGET FOR FISCAL YEAR 1997-98 AND APPROPRIATING FUNDS THEREFOR Mr. Goss stated that after five workshops, we have addressed a lot of the issues and have addressed a lot of the "Wish List." There were a couple of itelTIS left over from the "Wish List" including the After School Recreation Program for the three additional Middle Schools that were not covered by the pilot program. The Superintendent of the Sweetwater District has indicated that he thought if a letter was written to the Board, he felt they would be willing to split those costs with us. So instead of a $50,000 to $55,000 issue, it will be more like a $25,000 issue. However, he recommended that Council proceed with the hudget as proposed and not include it at this point because the next Board meeting where such a letter could be considered hy the Sweetwater Board would he in July. Staff will come back with this infonnation. 02 -I c¡ - .. Minutes June 17, 1997 Page 2 Agency/Councilmember Rindone asked I()f a cIaritication that Council had discussed under the tentative approval of expanding the South Council EDC lor another $2,500 for a lolal of $10,000 and the remaining $6,500 to be determined. He didn't know that Council had designaled it lor anylhing else; he thoughl there would be a discussion on this. Mr. Goss stated that he believed there was a general direction of the Council 10 put the $6.500 generally to the accounts in Economic Development of the Community Development Departmen!. He was not sure that it was specified that $5,000 go to travel and $1,500 to promotions; but for tbe purposes of a budget. staff had to put it somewhere. Agency/Councilmember Rindone was nol queslioning the $6,500 to the Economic Developmenl program; wbat he was questioning was lhal we were earmarking $5.000 lor trawl. He did not h,eI lhal was a decision lhat Council had made. Dawn Herring, Budget Manager. staled thai tbe direction 01 Council was to apply tbe $6.500 at tbe discretion of the Community Development Director, and the Direclor's recommendalion was lhal if we were going to divide the funds that would be his recommendation of putting $5,000 into travel and the $1,500 inlo promolions. Chris Salomone, Conununity Development Director, stated that we have the discrelion to mow those funds back and forth throughout the year; we have no predetermined use of lhal money at this poin!. MSUC (Horton/Rindone) to adopt the proposed budget including Resolution 18696 and Resolution 1544 as amended during the review sessions. 3. PUBLIC HEARING: 1) TO CONSIDER GRANTING A SPECIAL LAND USE PERMIT FOR THE DEVELOPMENT OF A MORTUARY AT 753 BROADWAY LOCATED WITHIN THE SOUTHWEST REDEVELOPMENT PROJECT AREA; AND 2) PURSUANT TO CALIFORNIA HEALTH AND SAFETY CODE SECTIONS 33431 AND 33433 TO CONSIDER A PROPOSED PURCHASE/SALE AND DEVELOPMENT AGREEMENT FOR THE SALE AND REDEVELOPMENT OF AGENCY PROPERTY AT 753 BROADWAY TO UNIVERSAL MEMORIAL CENTERS V, INe. DBA HUMPHREY MORTUARY- In March of 1996, the Agency received an offer from the Loewen Group, owner of Uoiversal Memorial Centers V. Inc. dba Humphrey Mortuary, 10 purchase the property lor conslrucltOn of a new mortuary. At Agency's direction staff negotiated a price tor the property consisteot wilh the markel value. Since the property is being sold without a formal public bidding process, Calil()rnia Redevelopment Law requires that the Agency make cerlaio tindings related to the sale of the properly. Staff recommends lhe Agency/Couocil approve the Purchase/Sale and Development Agreement and adopl the spectalland use permi!. (Commullity Development D¡reclor) Continued from the meeting of 6/3/97. AGENCY RESOLUTION 1540 ADOPTING NEGATIVE DECLARATION IS-97-10, APPROVING THE DESIGN OF AND GRANTING A SPECIAL LAND USE PERMIT FOR THE DEVELOPMENT OF A MORTUARY AT 753 BROADWAY LOCATED WITHIN THE SOUTHWEST REDEVELOPMENT PROJECT AREA AGENCY RESOLUTION 1541 AND COUNCIL RESOLUTION 18687 MAKING REQUIRED REDEVELOPMENT ACT FINDINGS AND APPROVING A PURCHASE/SALE AND DEVELOPMENT AGREEMENT AND JOINT ESCROW INSTRUCTIONS WITH UNIVERSAL MEMORIAL CENTERS V, INe. WITH RESPECT TO PROPERTY LOCATED AT 753 BROADWAY. CHULA VISTA, AND AUTHORIZING THE CHAIRMAN TO EXECUTE SAME Miguel Tapia, Community Development Specialist 11, slated lhal the firsl resolution adopls the Negalive Declaration. and approves a special use permit and design plans I()r the Morluary. Theioint agency/council resolutton approves the sale of the property. and staff is recommending approval of lhis resolution tÒr the following reasons; tbe o)-I'S"" Minutes June 17, 1997 Page 3 property will be put to a higher and beller use, the project will serve as a catalysl ¡Ör further redevelopment of the neighborhood, and the project is consistent with and implements a Soulhwest Redevelopment Plan hy preventing the spread of blight. The findings required by State Redevelopment Law and containing the Agency/Council resolution are the following; the sale of lhe properly will prevent the spread of blight and deterioration in the Southwest Redevelopment Project Area, the sale of the property is consistent with the Redevelopment Plan and implements Plan for the Project Area, the sale of the property is nol less lhan lhe htir market value hased on comparable sales in other relevant market data. This being the time and place as advertised, lhe puhlic hearing was opened. There being no public response. the public hearing was closed. RESOLUTION 1541 AND RESOLUTION 18687 OFFERED BY AGENCY/COUNCILMEMBER RINDONE, headings read, texts waived, passed and approved 5-0. OTHER BUSINESS 4. DIRECTOR'S/CITY MANAGER'S REPORT(S) - none. 5. CHAIR'S/MA YOR'S REPORT(S) - none. 6. AGENCY/COUNCIL MEMBER COMMENTS Agency/councilmemher Rindone staled that we have received an lnJ(Jt1national Memorandum from Mr. Salomone about the EDC's nomination of Chris Lewis and Ty Complon as members on the JTP A Policy Board/PEG Board. He felt these were outstanding choices. He requesled staff 10 do whalèver they could 10 support those recommendations. ADJOURNMENT The meeting adjourned at 9:35 p.m. Respeclfully submitted, Beverly A. Authelet, CMC/AAE City Clerk ~ -Ie- MINUTES OF A SPECIAL MEETING OF THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA Tuesday, June 24, 1997 Council Chambers 7:23 p.m. Public Services Building CALL TO ORDER 1. ROLL CALL: PRESENT: Agency members, Moot, Padilla, Rindone, Salas, and Chair Horton ABSENT: Agency members; None ALSO PRESENT, Executive Director, John D. Goss; Legal Counsel, Jobn M. Kaheny; and City Clerk, Beverly A. Authelet CONSENT CALENDAR (Items pulled: none) CONSENT CALENDAR OFFERED BY CHAIR HORTON, heading read, text waived, passed and approved 5-0. 2. REPORT: FEASIBILITY ANALYSIS FOR THE EXTENSION OF "H" STREET WEST OF BAY BOULEVARD - As part of its lO-year Capital Improvement Program for projects ia the City of Chula Vista, the San Diego Unified Port District commissioned a feasibility study fOr the extension of "H" Street west of Bay Boulevard through the Rohr campus to Sandpiper Way. This study, undertaken with full cooperation from Rohr, has been completed and is presented to the Redevelopment Agency for review and comment. Staff recommends that the Agency accept the report and direct staff to work with Port District staff and Rohr oftïcials to develop a timetable and funding plan for the extension of "H" Slreet. (Director of Community Development and Director of Public Works) , . . END OF CmíSENT CALENDAR' .. ORAL COMMUNICATIONS There were none. PUBLIC HEARINGS AND RELATED RESOLUTIONS AND ORDINANCES 3. PUBLIC HEARING: PURSUANT TO CALIFORNIA HEALTH AND SAFETY SECTION 33431 REGARDING THE SALE OF SPACE NUMBER 152 AT ORANGE TREE MOBILEHOME PARK - In November 1987, Orange Tree MobilehomePark 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 these unsold spaces. 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. The Agency currently owns 17 spaces, having sold 12 spaces. Staff recommends approval of lhe resolution. (Director of Col1ununity Development) RESOLUTION 1545 APPROVING THE SALE OF SPACE NUMBER 152 AT ORANGE TREE MOBILEHOME PARK AND AUTHORIZING THE COMMUNITY DEVELOPMENT DIRECTOR TO EXECUTE A PURCHASE AGREEMENT óJ -17 - - Minutes June 24, 1997 Page 2 Staff had no additional comments to make. This being the time and place as advertised, Chair Horton opened the public hearing. There being no public response, the public hearing was closed. RESOLUTION 1545 OFFERED BY CHAIR HORTON, heading read, text waived, passed and approved 5-0. ITEMS PULLED FROM THE CONSENT CALENDAR (No items were pulled) OTHER BUSINESS 4. DIRECTOR'S REPORHS) - none. 5. CHAIR'S REPORT(S) - none. 6. AGENCY MEMBER COMMENTS - none. AD JOURNMENT The meeting adjoumed at 7;25 p.m. Respectfully submitted, Beverly A, Aulheld, CMC/AAE City Clerk .;}-IV - - REDEVELOPMENT AGENCY AGENDA 8T A TEMENT Item ..3 Meeting Date 07122197 ITEM TITLE: Resolution /self. Waiving the Consultant Selection Process; Approving a Cost Sharing Agreement by and between the Redevelopment Agency, Rohr, Inc. and the San Diego Unified Port District, and BFGW Group, llC for services related to groundwater basin redesignation; and Authorizing the Executive Director to execute same SUBMITTED BY: Community Development Director ( ",), REVIEWED BY: ",,"Ii.. """"'..Ï\ '\) ~ (415ths Vote: Yes- NoLI BACKGROUND: At their February 11. 1997 meeting (minutes attached), the Agency conceptually approved participation in a petition to the Regional Water Quality Control (RWQCB) to remove the beneficial use designation from the groundwater basin in the area of the Chula Vista Bayfront. That action was contingent upon a cost sharing agreement among the participating parties and an appropriation of funds (if necessary) for the intended purpose. The Agreement is attached. RECOMMENDATION: That the Agency adopt a resolution waiving the consultant selection process; approving a Cost Sharing Agreement by and between the Redevelopment Agency, Rohr, Inc. and the San Diego Unified Port District, and BFGW Group, llC for services related to groundwater basin redesignation; and authorizing the Executive Director to execute same. BOARDSICOMMISSIONS RECOMMENDATION: Not applicable. DISCUSSION: The Agency, Rohr and the Port are mutual beneficiaries of the proposed redesignation action. The specific economic benefits accruing to each entity are not easily defined. Therefore, the cost sharing agreement proposes to split costs for consulting services related to the redesignation on an equal basis. Removal of the beneficial use designation would have potential benefits to development/redevelopment and assist in removal of blight in the Bayfront area in two ways: by allowing the future use of reclaimed water and by allowing more flexible cleanup options for potentially contaminated groundwater. Future use of reclaimed water in the area would be precluded by the beneficial use designation because of the typically high levels of Total Dissolved Solids (TDS), usually salts and other minerals, which cannot be cost effectively removed in the treatment process. J-I - . Page 2, Item .3 Meeting Date 07/22/97 Because of long term industrial uses in the bayfront area, there is reason to suspect that soil and/or groundwater contamination may exist in the area. While it is not the intention of the petition to circumvent cleanup of potential problems, the removal of the beneficial use designation may result in the establishment of cleanup levels that are more reasonable considering the future use of the area. For example, if contamination is discovered and cleanup were pursued with the beneficial use designation in place, cleanup levels would be very stringent to achieve drinking water standards. But since there is little likelihood of any future domestic use of the groundwater, cleanup to drinking water standards may not be reasonable. Removal of the beneficial use designation would not have any adverse consequences to the City or the general public because of the infeasibility of future domestic use of the groundwater. The redesignation could potentially facilitate future development of the bayfront, and for that reason, staff is recommending that the Agency approve funding for consultant services related to the basin plan amendment. The proposed cost sharing agreement and the extent of consultant services that it authorizes is fixed in terms of price and deliverables. Responsibilities of the consultant are clearly defined. The consultant has conducted similar services for Rohr in the past and has an existing contract with Rohr for the proposed services. In this particular instance, the City's normal consultant selection process is impractical since they are already under contract to perform the work for Rohr. The Consultant has demonstrated their experience and competence in performing the desired services, and are mutually acceptable to the parties who are subject to the agreement. Based on these factors, staff is recommending a waiver of the consultant selection process to allow for a sole source contract with BFGW Group, llC. FISCAL IMPACT: The action involves financial participation in the cost of professional services and administrative costs (RWQCB staff time) for processing of the application. The proposed costs for such services is $105,000, which is proposed to be split equally among the Agency, Rohr and the Port, resulting in the Agency's share of $35,000. The Agency's financial obligation of $35,000 is a not-to-exceed commitment. Details of such arrangement are included in the Agreement. The cost sharing agreement outlines the disbursement of funds to ensure that each of the three parties contributes equally on an ongoing basis. Funds for this expenditure are available in the Bayfront Supplies and Services budget. IJMI H:\HOM~COMMOEVISTAFF.REPlO7.15.97IROHR.PRT.AGR [July 15, 1997 14:13pmll .,?-,,;J. -. RESOLUTION NO.1§!! Iø RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA WAIVING THE CONSULTANT SELECTION PROCESS; APPROVING A COST SHARING AGREEMENT BY AND BETWEEN THE REDEVELOPMENT AGENCY, ROHR, INC. AND THE SAN DIEGO UNIFIED PORT DISTRICT, AND BFGW GROUP, LLC FOR SERVICES RELATED TO GROUNDWATER BASIN REDESIGNATION; AND AUTHORIZING THE EXECUTIVE DIRECTOR TO EXECUTE SAME WHEREAS, The groundwater subbasin underlying the Chula Vista Bayfront is designated by the San Diego Regional Water Quality Control Board (RWQCB) for beneficial water uses even though such uses do not exist or are precluded; and WHEREAS, The Agency, Rohr and the Port District could derive benefit from the removal of the beneficial use designation; and WHEREAS, The removal of the beneficial use designation would assist in the removal of blight by facilitating development within the Project Area; and WHEREAS, The three aforementioned entities agree to initiate an amendment to the RWQCB's Basin Plan to bring about the removal of beneficial water use designation and to share in the costs of processing such an amendment; and WHEREAS, the City's normal consultant selection process has been determined to be impractical because a consultant has already been retained by Rohr to perform the necessary services to effectuate the proposed basin plan amendment; and WHEREAS, an agreement has been drafted to outline the responsibilities of that consultant and of the Agency, Port and Rohr; and WHEREAS. the consultant selected to perform the services for which the cost sharing agreement has been drafted has conducted similar services for Rohr in the past and has an existing contract with Rohr for the proposed services; and WHEREAS, the consultant has demonstrated their experience and competence in performing the desired services, and are mutually acceptable to the parties who are subject to the agreement NOW, THEREFORE, BE IT RESOLVED the Redevelopment Agency of the City of Chula Vista does hereby waive the consultant selection process in light of the determinations set forth above, approve Cost Sharing Agreement by and between the Redevelopment Agency, Rohr, Inc. and the San Diego Unified Port District, and BFGW Group, LLC for services related to groundwater basin redesignation, and authorize the Executive Director to execute same. Presented by Approved as to form by ~ )~tA4V' Chris Salomone Director of Community Development IIJM) H,\HOMEICOMMOEV\RESOS\ROHR-PRT.AGR (J"'V ", 1997 (1 ,'9pmll ..3-3 - - MINUTES OF A SPECIAL MEETING OF THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA Tuesday, February II, 1997 Council Chamb"rs 6:27 p.m. Public Servic"s Building CALL TO ORDER 1. ROLL CALL: PRESENT: Agency/Councilmembers John S. Moot, Jerry R. Rindone, Mary Salas, and Chair/Mayor Shirley A. Horton ABSENT: Agency/Councilmember Stephen C. Padilla ALSO PRESENT: John Goss, Director/City Manager; John M. Kaheny, Legal Counsd/Clly Altom"y: Beverly A. Authelet. City Clerk; and Patricia Schw"nk", D"puty City Ci<rk. CONSENT CALENDAR (Item pulled, None) THE CONSENT CALENDAR WAS OFFERED BY AGENCY/COUNCILMEMBER RINDONE, reading of the text was waived, title read, passed, and approved 4-0-1 with Padilla absent. 2. RESOLUTION 1530 AUTHORIZING STAFF TO FILE A PETITION 'ñ>1TH THE SAN DIEGO REGIONAL WATER QUALITY CONTROL BOARD (RWQCB) FOR THE REMOV AL OF BENEF1CIAL WATER USE DESIGNATIONS WEST OF 1-5 Al"i!) AUTHORIZING PARnCIPA nON IN THE FUNDING OF A CONSULTANT FOR SUCH PURPOSES UP TO $35,000--Rohr is r"'Ju"sting assistanc" and participatIOn of the City and the Port District to have the beneficial use designation removed. City participation would involv" staff time, designation of the City as the primary petitioner and sharing of consultant costs. Staff recommends approval of the resolution. (Community Development Director) * * * END OF CONSENT CALENDAR' , . ORAL COí\fMUNICA nONS None. ITEMS PULLED FROM THE CONSENT CALENDER None. OTHER BUSINESS 3. DIRECTOR'S/CITY MANAGER'S REPORTfS); None. 4. CHAIR'S/MAYOR'S REPORTfS) , None. .3-c/ . - - - -- Jul-15-9710:21 MICHAEL 0 NAGLE ESQ 619 231-2308 P.02 COST SHARING AGREEMENT THIS AGREEMENT is made this day of July -' 1997, by and between Rohr, Inc., a Delaware corporation ("Rohr"), the City of Chula Vista ("Chula Vista") and the San Diego Unified Port District ("Port") and BFOW Group, LLC. a California lirnited liability company ("BFGW") with reference to the following facts:. BCIT ALS A. Rohr, Chula Vista and the Port, are owners, operators or interested parties regarding property located within the Hydrologic Subarea ("HSA") known and described by the California Regional Water Quality Control Board--San Diego Region ("Regional Board") designations as the Telegraph Basin HSA and La Nacion HSA area. B- Currently, the Telegraph HSA Basin and the La Nacion HSA, including the geographic areas located west of Interstate 5, bear water quality beneficial use designations including Municipal Use designations- C. Almost every other basin designation in Region 9 has had essentially all beneficial uses of ground water removed for those geographic portions of the Hydrologic Area and Hydrologic Subareas located west ofInterstatc 5. D. Rohr, Chula Vista and the Port believe that the proposed change to the present aquifer designation should encourage development in the vicinity of the Rohr site without causing adverse environmental consequences. i E. Rohr, with the cooper¡¡tion of Chula Vista and the Port, desires to retain BFGW to provide consultant/pl,'oject management services to confonn the beneficial use designations of the Telegraph HSA and the La N acion HSA west of Interstate 5 with those non beneficial use designations of the other HSA's west of Interstate 5. ,I, AGREEMENT NOW THEREFORE in consideration Dfthe premises and the perfonnance of the mutual covenants and conditions set forth below, the p¡u1ies agree as follows: IT IS AGREED: c: BFGWI 1 COS1S"R7.DOc .,ß-S' - - .. .. Jùl-15-97 10:21 MICHAEL 0 NAGLE ESQ 619 231-2308 P.03 - 1. BFGW shall be retained by Rohr to Wldertake and prosecute to completion an application on behalf of the parties to redesignate. at a núninwn, those portions of Basins numbers 9. I I and 9.12 west of Interstate 5 to non-beneficial uses for groWldwaters (the "WORK") pursuant to a contract dated April 30, 1997, a copy of which is attached hereto as Exhibit "An ("Rohr's Contract"). 2. If deemed beneficial, the current application of Rohr for such redesignation shall be amended to reflect that the Petitioner is Chula Vista and all subsequent applications or petitions to redesignate all or a portion of the Basins shall be prosecuted in the name of the ChuIa Vista. 3 Pursuant to Rohr's Contract with BFGW for the WORK, Rohr shall be responsible for directing and otherwise supervising the WORK of BFGW with the advice and consent of Chula Vista and the Port. The total contract price for the performance of the work shall not exceed $105,000.00. BFGW shall invoice each party for one-third (1/3) of any applicable invoices for work performed and each party shall make payments thereon within thirty (30) -- forty-five (45) days of invoice. 4. In no event shall the respective portion of any fees or costs required to be paid by Rohr, the Port or ChuJa Vista herçWlder exceed the sum of Thirty-five Thousand Dollars ($35,000.00) per party. 5, Rohr, the Port and ChuJa Vista shall'cooperate with BFGW to provide all necessary support, information and assistance in preparing, executing, filing, finalizing and presenting all necessary applications and petitions, including but not linúted to: a) Delivering necessary documents including scientific reports, tests and analyses perfonned with respect to the Basins or USA's in the possession of any party; b) Executing all necessary documents; c) Appearing at any necessary hearing or meeting to advance, review or approve the application or petition; and d) Cooperate in all other matters reasonably required to advance said application or petition. 6. By entering into this Cost-Sharing Agreement, no party is or shall be construed as the partner, joint-venturer or associate of the other. 7. Except as provided in Rohr's Conttact dated April 30, 1997, this Agreement constitutes the entire agreement between the parties regarding this matter and all previous discussions and representations are null and void to the extent inconsistent with the express written provisions of this agreement. In the event of any conflict between this Agreement and ":BFGW! 2 COSlSIIR7./)oc .:1-' - - Jul-1S-97 10:21 MICHAEL D NAGLE ESQ 619 231-2308 P.04 Rohr's Contract, the terms and provisions of this Agreement shall control. Notwithstanding any provisions to the contrary herein, the Port and City of Chula Vista shall be listed as additional insureds on Rom's Contract dated April 3O, 1997. 8. Should any party be required to initiate legal proceedings for the collection of any amounts due or which may be due hereunder, the prevailing party shall be entitled to their reasonably attorneys fees incurred. 9. The parties recognize that Richard S. Bayer, a principal ofBFGW, is licensed to practice law in the States of California and Colorado. Bayer is not being retained as a lawyer in this matter but as a consultant and principal ofBFGW. BFGW is being retained and hired as a consultant to prosecute the WORK hereunder and not as legal counsel to any of the parties, All parties represent and warrant that they have consulted with their own counsel with respect to this Agreement and have not and will not rely on BFGW for the provision of legal advice. 10. The parties agree to cooperate with one another in sharing non-confidential information regarding their various intents with respect to the undertaking or consideration of the undertaking of any action which may directly or indirectly have an impact upon the WORK. II. BFGW shall prepare and submit progress reports to all the parties with respect to its performance under Rohr's Contract at least one (I) time per month. 12. Subject to applicable disclosure laws, including without limitation, the California Public Records Act and the United States Freedom ofInformation Act, with respect to all documents, data sets, drafts, and all other work products produced by BFGW in connection with or as a result of the perfonnance of the WORK hereunder (the "Work Product"), the Parties agree that to the maximum extent consistent with the intent ofRohr's Contract and/or this Agreement, such Work Product shall be kept confidential, until the such final version of the Work Product has been filed with the Regional Board. The parties will exercise their best efforts to limit internal distribution of any confidential Work Product (other than the final versions) to those persons having a specific, identifiable need to know the contents thereof. 13. During the performance of this Agreement and for a period of one year following the date of final payment, the Port, the City of Chula Vista, andlor Rom, Inc. may audit any cost, payment, settlement or supporting documentation resulting fìmn any items set forth in this Agreement. Such audit shall be conducted at reasonable times. Consultant shall retain all necessary records and documentation for the entire length of this audit period and shall fully cooperate with any audit(s). ROHR, INC. Dated: By: c:,BFOWI 3 C""TS"R7.tJoc ..3-7 - - - - \ J...l-J.5-9710:22 MICHAEL D NAGLE ESQ 619 231-2308 P.05 SAN DIEGO UNIFIED PORT DISTRICT Dated: By: CITY OF CHULA VISTA, CALIFORNIA Dated: I By: BFGW GROUP, LLC Dated: By: Bennet B. Greenwald, Principal c: BFOW! 4 ConSHR7.Doc ~- ~ REDEVELOPMENT AGENCY AGENDA STATEMENT Item 4 Meeting Date 07122/97 ITEM TITLE: Resolution /S"i, Approving the Forbearance Agreement between One Park limited and the Chula Vista Redevelopment Agency restructuring the 1985 original Agency loan in the amount of $850,000 for the One Park Apartments at 350 Third Avenue SUBMITTED BY: C"~""i~ D~I"pm""t Di.'~ <). REVIEWED BY: "".¡. m..'u4 ~ - - VotE "'- No_XJ BACKGROUND: :..------z The proposed Forbearance Agreement implements Agency's directives given to staff on September 24, 1996. On October 17, 1985 the Agency approved a $850,000 ten year deferred loan for the development of a 94 unit residential rental project and parking structure located at 350 Third Avenue in the Town Centre I Focus Area. The borrower, One Park limited, comprised of Maizel Enterprises and Zogob Development Company, requested Agency financial assistance primarily to offset the costs of a grade level parking structure necessary to achieve a 94 housing unit count, a cost which would have made the project infeasible. The Agency's support for this development was based on the One Park project's housing benefit to moderate income households and its potential to enhance the downtown section of the City. As the loan due date approached on May 1996, the borrower requested the Agency to renegotiate the loan, which opened discussions on the terms. On September 24, 1996, the Agency instructed staff to implement the recommended Agreement terms as outlined in the Forbearance Agreement and below. Procopio, Cory, Hargreaves & Savitch, llP drafted the Forbearance Agreement, which was delayed due to a question of conflict of interest regarding their legal representation on this matter and borrower delays in reviewing the proposed agreement. The borrower has agreed to these terms (See Attachment 1 . Signed Forbearance Agreement and Attachment 2 .Informal Agreement signed October 15, 1996) and has made their installment payments on time, totalling $342,550 with interest. Recently, the borrower has notified the City that the subject property is in the process of being sold with escrow expected to close before the end of August, 1997. However, the Agency must prepare and record the Forbearance Agreement regardless of the pending sale. If the property is sold by the end of August 1997, the Agency is expected to receive $1.100,000 less any amount paid to date plus interest owed. RECOMMENDATION: That Agency adopt the resolution which approves the Forbearance Agreement. 4- I Page 2, Item -.!l Meeting Date 07122197 BOARDSICOMMISSIONS RECOMMENDATION: Not applicable. DISCUSSION: The following are the proposed terms of the Forbearance Agreement, which have been agreed upon by the borrower: 1) A principal pay down of $250,000 of the $850,000 present principal balance will be paid to the City of Chula Vista Redevelopment Agency upon signing an agreement. This has been paid as of November 1, 1996. 2) The borrower will execute an amendment to the note (or a replacement note) for the remaining principal balance of $600,000 secured against the property with the same lien priority as the Agency's original Oeed of Trust, with six percent (6%) interest per annum, payable quarterly, principal pay downs of $15,000 per quarter, all due in three (3) years (October 31, 1999) or upon sale or refinance of the property, whichever occurs first. 3) The borrower will execute an amendment to the note (or a replacement note) for accrued interest, in the amount of $500,000 secured against the property with the same lien priority as the Agency's original Deed of Trust, under the same terms and conditions, including principal pay down, as outlined in item #2 above. 4) The borrower will execute an amendment to the note (or replacement note) for the remaining accrued interest as of October 15, 1996, estimated to be $670,975, secured against the property, under the same terms and conditions, as outlined in item #2 above, except there shall be no principal pay down and the interest shall accrue until the due date, which is three (3) years (October 31, 1999) or upon sale or refinance of the property, whichever occurs first. On the due date, the property shall be appraised and the Agency shall receive a payment based upon the following formula: {(Ax95%) . $6,100,OOO} x 30% - B wherein A equals the appraised value on the due date (or in the event the due date is triggered by a sale of the property, then the actual sales price shall be used) B equals the payment to the Agency $6,100,000 equals the mutually agreed upon "Current Value" of the property as of October 1996 By way of example, if the property is appraised, on the due date (October 31. 1999), at $7,000,000, the payment to the Agency would be: 4-~ - - Page 3, Item ~ Meeting Date 07/22/97 {($7,000,000 x 95%) . $6,100,000} x 30% = $165,000 After payment of the percentage increase in value to the Agency, and provided there are no defaults in any of the loans, the balance of the remaining accrued $670,975 interest note will be forgiven. 5) The additional interest ($290,000 kicker) will be amended, secured against the property with the same lien priority as the Agency's original Deed of Trust, accruing interest per annum at six percent (6%), all due and payable in three (3) years (October 31, 1999). In the event there has been no default in the other loans, the kicker loan will be forgiven at the time the other agency loans are paid in full. 6) The borrower will not make any distributions of any kind whatsoever to themselves or related parties until the Agency loans are paid in full. 7) There will be cross.default between all four loans. 8) The borrower shall be responsible for payment of all reasonable Agency legal fees incurred in preparing and documenting the agreement. Agency shall use its best efforts to keep its legal fees at a minimum. 9) At borrower's sole expense, Borrower shall obtain from Chicago Title Company a commitment to issue to lender a ClTA extended coverage lender's title insurance policy for an amount and subject only to terms and conditions reasonably satisfactory to lender. 10) The borrower shall have paid all delinquent real estate taxes and assessments for the Property. FISCAL IMPACT: This Agreement will assure the City is repaid the principal of $1,100,000 plus interest by October 31, 1999. To date, the principal pay down of $250,000 has been paid plus two quarterly payments have been made totalling $60,000 in principal payments plus $32,550 in interest payments. All legal fees associated with this Agreement have been paid by the borrower. City staff time is the only expense not covered by the borrower, but is being reimbursed to the General Fund by the low and Moderate Income Housing Fund. Attachments 1 . Signed Forbearance Agreement 2. Informal Agreement Signed October 15, 1996 (,,[ H:IHOMEICOMMOEY\STAFF.RE~O7.22-9711",k'g'" [Ju[y 17, 1997 111:48'mll 4-,3 RESOLUTION NO. L.S!::l7 RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA APPROVING THE FORBEARANCE AGREEMENT BETWEEN ONE PARK LIMITED AND THE CHULA VISTA REDEVELOPMENT AGENCY RESTRUCTURING THE 1985 ORIGINAL AGENCY LOAN IN THE AMOUNT OF $850,000 FOR THE ONE PARK APARTMENTS AT 350 THIRD AVENUE WHEREAS, The Agency originally approved a loan with One Park limited for the development of the One Park Apartments at 350 Third Avenue through a Cooperative Agreement on October 17, 1985 by Resolution Number 638 then subsequently amended on April 17, 1986 by Resolution Number 678; and WHEREAS, The loan became due in May 1996 and the borrower, One Park limited, defaulted; and WHEREAS, The terms of the Amended Cooperative Agreement are being restructured to extend the term of the loan and to allow for a portion of the interest to be forgiven if the borrower pays the remaining balance in a timely manner as is reflected in the Forbearance Agreement; and WHEREAS, The Agency conceptually approved the terms of the Forbearance Agreement on September 24, 1996. NOW, THEREFORE, 8E IT RESOLVED the Redevelopment Agency of the City of Chula Vista does hereby find, order, determine and resolve to approve the Forbearance Agreement in the form presented, authorize the Chairman to execute same, and direct staff to take any and all measures necessary and appropriate to implement the same. Presented by Approved as to form by ~": ~~ ' Director of Community Development "'" H,IHOMElCOMMOEVIRESOS\1p""'"b IJ"'V 11,1997 ",'3pmll 4-4 - ATTACHMENT 1 RECORDING REQUESTED BY AND. WHEN RECORDED, RETURN TO: Procopio, Cory, Hargreaves & Savitch LLP 530 B Street. Suite 2100 San Diego, California 92101 Attention: Thomas W. Turner, Jr., Esq. FORBEARANCE AGREEMENT BORROWER: ONE PARK, LTD., a California limited pannership LENDER: REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA November 1, 1996 4-~ 107051 000001198696.4 - - TABLE OF CONTENTS Article Page 1 ACKNOWLEDGEMENTS REGARDING INDEBTEDNESS. . . . . . .. 2 1.1 Reaffirmation and Incorporation of Recitals ...........". 2 1.2 Acknowledgement of Loan Documents ................. 2 , 1.3 Ratification of Obligations... ........... ..,. ... .... 2 1.4 Acknowledgement of Amounts Owing Under the Loan. . . . . . .. 2 1.5 Acknowledgment of Prior Payments. . . . . . . . . . . . . . . . . .. 3 1.6 Acknowledgement of Loan Default and Lender's Rights. . . . . .. 3 1.7 Acknowledgement of Security Interest. . . . . . . . . . . . . . . . .. 3 2 FORBEARANCE FROM FORECLOSURE. . . . . . . . . . . . . . . . . .. 3 2.1 Forbearance Agreement .......................... 3 2.2 ForbearancePeriod ......,...................... 4 2.3 Limited Forbearance .......................,.... 4 3 PAYMENTTERMS................................. 4 3.1 Interest Rate; Payment ........................... 4 3.2 IncentivePaymentOption ..........,.............. 5 3.3 Payment of Delinquent Taxes ....................... 8 3.4 Place of Payments.............................. 8 3.5 FinalPayment .........,...................... 9 4 CONDITIONS PRECEDENT .............,............. 9 4.1 Conditions Precedent ....,..................."" 9 5 EFFECT ON LENDER'S REMEDIES ...................., 10 5.1 Effect of Forbearance Period ....................... 10 5.2 Effect of Default .............................. 10 5.3 Lender's Right to Seek Deficiency. . . . . . . . . . . . . . . . . . .. 10 6 REPRESENTATIONS AND WARRANTIES OF BORROWER ...... 10 6.1 Status ..................................... 10 6.2 Authority of Borrower and Guarantors ................. \ 10 6.3 No Untrue Statement .......................,.... 11 6.4 Compliance with Laws ........................... 11 6.5 No Litigation................................. 11 6.6 No Condemnation or Casualty .......,.............. 11 '07051 oaooo,I98696' - i - 4-(, 6.7 Hazardous Substances ........................... 11 6.8 Defects .................................... 11 7 LENDER'S REPRESENTATIONS AND WARRANTIES. . . . . . . . .. 11 7.1 Status ..................................... 11 7.2 AuthorityofLender............................. 12 8 BANKRUPTCY ................................... 12 , 8.1 Acknowledgments .............................. 12 8.2 Bankruptcy.................................. 12 8.3 Carryover of This Agreement in the Event of Bankruptcy ............................ 12 9 ADDITIONAL PROVISIONS ........................... 13 9.1 ApplicableUsuryLaws........................... 13 9.2 Limitation on Liens ............................. 13 9.3 No Distributions............................... 14 9.4 Property Requirements ........................... 14 9.5 AuditRight.................................. 14 9.6 DueonTransfer............................... 14 9.7 Late Charge ................................. 14 9.8 Default Rate ................................. 15 9.9 Notices .................................... 15 9.10 AdditionaIDisbursement.......................... 16 9.11 Computation of Time Periods. ..... ................. 16 9.12 Relevance of Other Loan Documents ................., 16 9.13 Subordination Agreement ......................... 16 9.14 Limitation on Force Majeure. ....................... 16 9.15 Governing Documents. ........................... 16 10 MISCELLANEOUS ................................. 16 10.1 Acknowledgment of No Obligation .........."....... 16 10.2 Assignment.................................. 16 10.3 Attorneys' Fees ............................... 16 10.4 BindingEffect ................................ 17 10.5 Cooperation ................................. 17 10.6 Counterparts ................................. 17 10.7 Enforceability ................................ 17 10.8 Entire Agreement; Amendments; Interpretation, Etc .........' 17 10.9 Further Assurances ............................. 18 10.10 Governing Law ............................... 18 10.11 Headings ................................... 18 10.12 IndulgenceNotWaiver........................... 18 10105' 00000'_96' (ii) 4-7 - Page 10.13 No Course of Conduct ........................... 18 1O.14NoCure.................................... 19 10.15 No Joint Venture .............................. 19 10.16 NoOffset................................... 19 10.17 Successors; Assigmnent .......................... 19 10.18 Third-PartyBeneficiaries.......................... 20 10.19 LegaIAdvice................................. 20 , 10.20 Time of Essence............................... 20 (iii) 4-V 107051000001\98696' FORBEARANCE AGREEMENT THIS FORBEARANCE AGREEMENT ("Agreement"), dated for reference purposes November 1, 1996 ("Reference Date"), is entered into by and between One Park, Ltd. (also known as "One Park Ltd." and/or "One Park Limited"), a California limited partnership ("Borrower"), and the Redevelopment Agency of the City of Chula Vista, a body corporate and politic ("Lender"), with reference to the following facts: A. Borrower and Lender have heretofore entered into the following documents, with respect to a loan ("Loan") made from Lender to Borrower, which documents may be referred to collectively herein as the "Loan Documents": 1. Cooperative Agreement between the Redevelopment Agency of the City of Chula Vista and One Park, Ltd., approved October 17, 1985 and recorded in the Official Records of San Diego County, California ("Official Records") on December 30, 1986 as Instrument No. 86-620989 ("Cooperative Agreement"); 2. Agreement Amending the Cooperative Agreement between the Redevelopment Agency of the City of Chula Vista and One Park, Ltd., approved March 31, 1986 and recorded in the Official Records on December 30, 1986, as Instrument No. 86-620990 ("First Amendment"); 3. Second Agreement Amending the Cooperative Agreement between the Redevelopment Agency of the City ofChula Vista and One Park, Ltd., approved April 17, 1986 and recorded in the Official Records on December 30, 1986, as Instrument No. 86-620991 ("Second Amendment"); (the Cooperative Agreement, as amended by the First Amendment and Second Amendment, may hereinafter be referred to collectively as the "Cooperative Agreement"); 4. Promissory Note secured by Deed of Trust dated May 1, 1986 ("Note") executed by Borrower in favor of the City of Chula Vista, a municipal corporation in the State of California ("City"), evidencing a Loan ("Loan") in the original principal sum ofEight Hundred Fifty Thousand Dollars ($850,000) from Lender to Borrower and recorded in the Official Records on January 23, 1987, as Instrument No. 87-037378; and 5. A Short Form Deed of Trust and Assignment of Rents (Partnership) ("Deed of Trust"), securing the Note, dated May 1, 1996 and recorded in the Official Records May 19, 1996 as I~trument No. 86-198320. The Deed of Trust secures all that certain real property described in Exhibit A hereto ("Property"). B. References to the Loan Documents made hereinafter refer to the Loan Documents as modified by this Agreement. C. As of the Reference Date, the Note has not been paid in full. D. Borrower has requested, among other things, that Lender agree: (1) to forbear from foreclosing under the Deed of Trust for the "Forbearance Period" described herein; (2) to enable the Borrower to restructure payment of the Note; and (3) to provide Borrower with an 107051 000001\986964 4-' incentive for performance in the form of a discounted payoff if Borrower strictly complies with a new payment schedule ("Incentive Payment Schedule"), as set forth herein. Although Lender had and has no obligation or duty of any kind to agree to Borrower's requests, and without directly or indirectly incurring any other liabilities or obligations to Borrower, or any other person, Lender is willing to agree to Borrower's requests, subject to and on the terms and conditions more particularly described herein. 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 Incorooration of Recitals. Borrower acknowledges and agrees 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 of Borrower in favor of Lender. 1.2 Acknowledgement of Loan Documents. The parties acknowledge and agree that: (a) the City has assigned or is in the process of assigning all of its beneficial right, title and interest in and to the Loan Documents to Lender; (b) the Loan Documents, together with any documents with respect to the assignment thereof from the City to Lender, constitute the only documents evidencing the obligations owing to Lender related to the Loan; (c) notwithstanding any reference in the Note to the City as the holder thereof, Lender is the true and correct holder thereof; (d) notwithstanding any reference in the Deed of Trust to the City as the Beneficiary thereunder, that Lender is the true and correct Beneficiary thereunder; (e) the copy of the Note attached hereto as Exhibit B and made a part hereof is a true, correct and accurate copy of the actual Note; such matters are further acknowledged by Borrower by causing to be placed on Exhibit B the original initials of each principal of Borrower; and (e) the copy of the Deed of Trust attached hereto as Exhibit C and made a part hereof is a true, correct and accurate copy of the actual Deed of Trust. The City acknowledges its agreement wi!h the provisions of this Section 1.2 by its execution of the acknowledgement on the signature page of this Agreement. 1.3 Ratification of Obligations. Borrower hereby acknowledges and agrees that (a) it is liable for the obligations set forth in the Low Documents; and (b) it waives to the fullest extent allowable by law any and all defenses that may otherwise be available relating to the invalidity of the Loan Documents as binding obligations of Borrower in favor of Lender. 1.4 Acknowledgement of Amounts Owing Under the Loan. Borrower acknowledges and agrees that, as of the Reference Date, a total of $2, 185,975 was owed under the Note, which amount can be segregated into the following elements: (a) Principal in the amount of $725,000 ("Principal"); 107051 0a0001198696.4 - 2 - ¿¡.to - (b) A portion of accrued Base Interest in the amount of $500,000 ("Base Interest"); (c) The remaining portion of the accrued Base Interest, in the amount of $670,975 ("Remaining Interest"); and (d) Additional interest in the amount of $290,000 ("Additional Interest"). 1.5 Acknowledgment of Prior Pavments. The parties acknowledge and agree that , Borrower has, after the Reference Date, heretofore made the following payments to Lender: (i) $125,000 payment of Principal made as of September 12, 1996; (ii) $125,000 payment of Principal made as of November 12, 1996; and (iii) $46,500 payment made as of February 7, 1997, of which $15,000 was applied to reduce Principal, $15,000 was applied to reduce Base Interest, $9,000 was applied to interest on the Principal and $7,500 was applied to interest on the Base Interest which accrued from and after the Reference Date. To the extent Borrower has made any additional payments after the preparation of this Agreement but prior to the Effective Date, they shall be applied in accordance with the provisions of this Agreement. 1.6 Acknowledgement of Loan Default and Lender's Rights. Borrower acknowledges and agrees that: (a) As of the Reference Date, all sums owing under the note and the other Loan Documents were due and payable and Lender was entitled to pursue a foreclosure under the Deed of Trust; (b) Borrower's obligations under the Loan Documents are personal to Borrower, and Lender'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) Lender has not waived, directly or indirectly, any of the rights or remedies of Lender, nor has it made an election of remedies. 1.7 Acknowledgement of SecuritY Interest. Borrower acknowledges and agrees that the Deed of Trust constitutes a valid, enforceable and duly perfected security interest in and lien upon all of the Property and that such security interest and the lien is a second-in-priority deed of trust lien and security interest upon on the Property. ARTICLE 2 FORBEARANCE FROM FORECLOSURE 2.1 Forbearance Agreement. Subject to satisfaction of the conditions precedenhset forth in Article 4, Lender agrees to forbear from proceeding to foreclose on the Property under the Deed of Trust and from exercising any other available legal remedies with respect to the Loan Documents during the "Forbearance Period" defined in Section 2.2 below. 4-11 107051 000001\98696' - 3 - 2.2 Forbearance Period. The "Forbearance Period" shaH commence on the date when aH 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, shaH automaticaHy terminate, without demand, notice, presentment, or opportunity for cure, upon the first to occur of the foHowing: (a) The Incentive Payment Option is terminated pursuant to Section 3.2.6; (b) Borrower 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 Lender, provided that payments are made in accordance with the Incentive Payment Schedule described in Section 3.2 as long as the Incentive Payment Option remains in effect), 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; (c) On or before the date that is ninety-one (91) days after Lender receives in coHected funds the final payment under the Incentive Payment Schedule, Borrower or a general partner of Borrower becomes the subject of a case commenced under Title 11 of the United States Code ("Bankruptcy Code"), or transfers substantiaHy 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; (d) Borrower repudiates or breaches any of the covenants, terms or agreements contained in this 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 (e) October 31, 1999 ("Due Date"). 2.3 Limited Forbearance. Except as specifically provided in this Agreement, Lender shaH have no obligation to forbear from exercising any of its rights and remedies under applicable law. ARTICLE 3 PAYMENT TERMS Subjèct to the satisfaction of the conditions precedent set forth in Article 4, Lender agrees to provide' Borrower with an opportunity to pay the sums owed to Lender, prior to Lender's proceeding with a foreclosure under the Deed of Trust, on certain terms and conditions set forth as follows: 3.1 Interest Rate: Payment. As of the Reference Date, each of Principal, Base Interest, Remaining Interest and Additional Interest constitutes a part of the principal balance under the Loan; from and after the Reference Date each such element of principal shall accrue interest at the rate of six (6%) percent per annum, which is referred to herein as the "Interest Rate." Payments on the amount due to Lender shall be due and payable in accordance with Section 3.2 '07051 00000'1986964 - 4 - 4-/1. -.. .. .. for so long as the Incentive Payment Option and the Forbearance Period remain in effect. Upon tennination of the Forbearance Period, all amounts owing to Lender pursuant to Loan Documents shall be immediately due and payable. 3.2 Incentive Pavment Option. During the Forbearance Period only, Borrower shall have an opportunity to satisfy the obligations owing to Lender through an "Incentive Payment' Option." Under that Incentive Payment Option, which shall not be in derogation of Borrower's obligation to pay the sums owing as set forth in Section 1.4 of this Agreement unless or until there is full and timely compliance with the provisions set forth below, Lender will accept Borrower's full and timely perfonnance of the payment schedule set forth in Sections 3.2.1 through 3.2.4 below ("Incentive Payment Schedule") in lieu of payment in full of the sums set forth in Section 1.4. Only full and timely perfonnance in accordance with the Incentive Payment Schedule (plus the satisfaction of all other provisions of this Section 3.2) while the Incentive Payment Option remains available shall constitUte effective substitUte perfonnance; otherwise, upon tennination of the Forbearance Period, Borrower shall be required to immediately pay all sums owing to Lender, including the obligations described in Section 1.4 and accrued and unpaid interest thereon. The parties acknowledge the payments heretofore made as specified in Section 1.5 above. The Incentive Payment Option shall tenninate as and when set forth in Section 3.2.6 below. The Incentive Payment Schedule is as follows: 3.2.1 Principal Pavments. From and after the Effective Date and throughout the Forbearance Period, Borrower shall make the following additional payments with respect to Principal on each February 1, May 1, August 1 and November 1: (a) $15,000 reduction of Principal; and (b) all interest on Principal, at the Interest Rate, accrued from and after the Reference Rate but unpaid. The entire remaining Principal and all accrued but unpaid interest thereon shall be due and payable in full as of the Due Date. 3.2.2 Base Interest Pavments. From and after the Effective Date, throughout the Forbearance Period, Borrower shall make the following additional payments with respect to Base Interest each February 1, May 1, August 1 and November 1: (a) $15,000 reduction of Base Interest; and (b) all interest on Base Interest, at the Interest Rate, accrued from and after the Reference Rate but unpaid. All remaining Base Interest, together with any and all accrued but unpaid interest thereon, shall be due and payable in full as of the Due Date. 3.2.3 Remaining Interest Pavments. . 3.2.3. 1 No interest or principal is due on the Remaining Interest until ten (10) business days after the detennination of the amount of the Remaining Interest Payment pursuant to this Section 3.2.3, at which time the Remaining Interest is all due and payable. 3.2.3.2 In full satisfaction of the Remaining Interest and all interest thereon accrued from and after the Reference Date but unpaid, Borrower shall pay Lender, an amount ("Remaining Interest Payment") equal to thirty percent (30%) of the difference between ninety-five percent (95%) of the appraised value of the Property as of the Due Date ("Appraised Value") and $6,100,000. The amount of the Remaining Interest Payment can be stated mathematically as follows: - 5 - 4../3 107051 000001\96696.4 {(Appraised Value x 95%) - $6,loo,000} x 30% = Remaining Interest Payment By way of example, if the Appraised Value as of the Due Date were $7,000,000, the Remaining Interest Payment would be $165,000, calculated as follows: {($7,000,000 x 95%) - $6,loo,000} x 30% = $165,000 Notwithstanding anything to the contrary in this Section 3.2.3.2, (i) if the calculation of the Remaining Interest Payment hereunder is less than zero, the amount of the Remaining Interest Payment shall be zero; and (ii) in no event shall the amount of the Remaining Interest Payment be greater than the sum of $670,975.00 plus interest thereon at the rate of six percent (6%) per annum from the Reference Date until the payment date for the Remaining Interest Payment hereunder. The Appraised Value shall be determined as set forth in this Section 3.2.3.2. The Appraised Value shall be equal to the gross amount of cash or its equivalent which the Property would bring if exposed for sale on the open market to conditions in which neither buyer nor seller could take advantage of the exigencies of the other and both with knowledge of all of the uses and purposes to which the Property is adapted and for which it is capable of being used and of the enforceable restrictions upon those uses and purposes. (a) Any and all appraisers retained hereunder shall be certified M.A.!. appraisers with at least five (5) years full-time commercial real estate appraisal experience. (b) Lender and Borrower shall attempt to agree upon a single appraiser within fifteen (15) days after the Due Date. If no such agreement is reached, then within thirty (30) days after the Due Date, Lender and Borrower shall each appoint one appraiser. (c) The two appraisers so appointed shall within fifteen (15) days of the date of the appointment of the last appointed appraiser agree upon and appoint a third appraiser. (d) Each of the three appraisers, within thirty (30) days after the appointment of the third appraiser, shall reach an independent decision as to the Appraised Value. (e) If a single appraiser is chosen, then such appraiser's determination of the Appr¡¡ised Value shall be binding on the parties. Otherwise, the Appraised Value shall be the arithÌnetic mean average of the two of the three appraisals which are closest in amount, and the third appraisal shall be disregarded. (f) The decision of the appraiser shall be binding upon the Lender and Borrower. (g) If either Lender of Borrower fails to appoint an appraiser within the time period specified above, the appraiser appointed by one of them shall reach a decision, notify the parties thereof, and such appraiser's decision shall be binding upon the parties. - 6 - 4-11.{ 107051 000001\986964 - - (h) If the two appraisers fail to agree upon and appoint a third appraiser as set forth above, both appraisers shaH be dismissed, and the detennination of the Apprised Value shall forthwith be submitted to arbitration under the provisions of the American Arbitration Association. (i) Each party shaH pay the cost of the appraiser it appoints. The parties shall share equally the cost of the third appointed appraiser. 3.2.4 Additional Interest Pavments. No interest or principal is due on the ,. Additional Interest until the Due Date. At such time, either (a) if Borrower has fully and timely made each of the Incentive Payment Option payments under Sections 3.2.1, 3.2.2 and 3.2.3 above, then the entire amount of Additional Interest, together with aH accrued but unpaid interest thereon, shall be forgiven in full; or (b) if Borrower has failed to fully and timely make each of the Incentive Payment Option payments under Sections 3.2.1, 3.2.2 or 3.2.3 above, then the entire amount of Additional Interest, together with all accrued but unpaid interest thereon from and after the Reference Date, shall be due and payable in their entirety. 3.2.5 Effect of Compliance with Incentive Pavment Schedule. During the Forbearance Period and so long as Borrower makes timely payments in accordance with the Incentive Payment Schedule, the Incentive Payment Option shall remain in effect. Borrower shall be deemed to have satisfied aH of its obligations to Lender with respect to the Loan Documents if: (a) Prior to tennination of the Incentive Payment Option, Borrower timely make all payments to Lender in accordance with the Incentive Payment Schedule; and (b) Ninety-one (91) days have elapsed after the date the Lender receives aH of the payments required under the Incentive Payment Schedule in collected funds without Borrower or a General Partner of Borrower becoming the subject of a case commenced under the Bankruptcy Code or any insolvency proceeding. 3.2.6 Tennination of Incentive Pavment Option. The Incentive Payment Option shaH tenninate upon the first to occur of the following: (a) Borrower fails to make any payment to Lender as and when due under the Incentive Payment Schedule set forth in Section 3.2, and such failure continues after giving effect to the notice and cure period provisions set forth in Section 5.2 of this Agreement; (b) My event occurs after the Effective Date which constitutes a breach under the Loan Documents (without giving effect to any notice and cure period provided in the Loan Documents), exclusive of provisions governing due dates for payments of principal and interest to Lender provided that payments are made in accordance with the Incentive Payment Schedule as long as the Incentive Payment Option remains in effect, unless the foregoing bre.ach has been cured pursuant to the notice and cure set forth in Section 5.2 of this Agreement; (c) On or before the date that is ninety-one (91) days after the date Lender received the final payment due under the Incentive Payment Schedule in collected funds, Borrower or a general partner of Borrower becomes the subject of a case commenced under the 107051 000001\986964 - 7 - 4-/S' - - - Bankruptcy Code, or transfers substantially all of its or his respective 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; (d) Borrower repudiates or breaches any of the covenants, tenus or agreements contained in this Agreement or the other documents executed pursuant hereto, 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 (e) Tennination of the Forbearance Period. 3.2.7 Effect of Tennination of Incentive Pavment Option. Upon tennination of the Incentive Payment Option pursuant to Section 3.2.6: (a) The Incentive Payment Schedule shall be automatically tenninated and the outstanding sums owing to Lender (as set forth in Section 1.4 together with accrued but unpaid interest thereon, less payments made by Borrower to Lender pursuant to the Incentive Payment Schedule, if any) shall be immediately due and payable (without regard to the Incentive Payment Schedule defined in this Agreement); (b) Borrower shall be deemed to have failed to satisfy the tenus and conditions of the Incentive Payment Option; (c) Lender's obligation to forbear from foreclosing under the Deed of Trust shall tenninate; and (d) The Forbearance Period shall tenninate and Lender shall have the right to exercise all of its rights and remedies under applicable law, including, without limitation, the right to obtain appoinnnent of a receiver for the Property, to pursue a foreclosure sale of the Property, and to collect any deficiency, to the extent allowed by applicable law. 3.2.8 Crediting of Pavments. If Borrower (a) makes one or more payments pursuant to the Incentive Payment Schedule and (b) subsequently fail to timely complete all payments to Lender under the Incentive Payment Schedule, then the payments made by Borrower shall be credited fITst to the principal portion of the debt and thereafter to interest. 3.3 Pavment of Delinauent Taxes. All real estate taxes and assessments for the Property wliich were delinquent as of the Effective Date shall be paid by Borrower on or before the Effective Date, as a condition to Lender's obligations hereunder. As used herein, "delinquent" means designated as delinquent by the applicable taxing authority. After the Effective Date, Borrower shall pay all real estate taxes and assessments for the Property prior to delinquency as was required by the Loan Documents. 3.4 Place of Pavments. All payments by Borrower hereunder shall be made to Lender at 276 Fourth Avenue, Chula Vista, California 91910, Ann: Finance Director, or such other address as may be provided in writing by Lender to Borrower from time to time. ~-If. '°705' 00000'196696.4 - 8 - 3.5 Final Pavment. Upon the payment by Borrower to Lender of all amounts owing to Lender in accordance with this Agreement, Lender shall deliver to Borrower fully executed and acknowledged Request for Full Reconveyance of the Deed of Trust upon request of Borrower after the ninety-first (91st) day after the last payment clears Lender's accounts, provided that neither Borrower nor a general partner of Borrower 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 Lender's entitlement to any of the payments received on account of the debtors owed to Lender. 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., July 15, 1997. The parties' obligations under this Agreement are contingent upon satisfaction of each of the following conditions on or before the Effective Date deadline: (a) At Borrower's sole expense, Borrower shall have obtained from Chicago Title Company a commitment to issue to Lender, as of the Effective Date, a CLTA extended coverage Lender's title insurance policy, for an amount and subject only to tenns and conditions reasonably satisfactory to Lender, and to those exceptions which are approved by Lender in writing, together with any other endorsements reasonably requested by Lender, and insuring Lender that the Deed of Trust, as it may be modified in accordance herewith, continues to constitute a second-in-priority Deed of Trust lien, subordinate only to those exceptions as are acceptable to Lender, in its sole discretion. Borrower shall provide, at its expense, any indemnification agreements required by Title Company as a condition to issuance of the title policy, including, without limitation, indemnification for any actual or potential mechanics' liens and/or endorsements reasonably required by Lender. (b) Borrower shall have paid all delinquent real estate taxes and assessments for the Property pursuant to Section 3.3. (c) Borrower shall have reimbursed Lender for all Lender's legal fees incurred in connection with this Agreement. (d) This Agreement shall have been approved by the City Council of the City of Chula Vfsta. 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 Lender, in its sole discretion, then this Agreement shall have no force and effect whatsoev¡:r. 107051 000001\98696.4 - 9 - 4-/7 ARTICLE 5 EFFECT ON LENDER'S REMEDIES 5.1 Effect of Forbearance Period. During the Forbearance Period defined in Section 2.2, Lender 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 Borrower fails to perform any covenant, term ,- or agreement of Borrower 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 Lender's delivery of written notice of such default to Borrower, 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 Lender may thereafter enforce or seek enforcement of the any and all of its legal rights and remedies. Borrower expressly agrees that Lender 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. 5.3 Lender's Rightto Seek Deficiencv. Borrower and Lender hereby agree that, unless Borrower fully and timely completes performance of the Incentive Payment Option (including the requirement that neither Borrower nor a general partner of Borrower shall become the subject of a case under the Bankruptcy Code for ninety-one (91) days after Lender's receipt of the final payment pursuant to the Incentive Payment Schedule in collected funds), nothing contained in this Agreement shall diminish or in any way affect Lender's right to a deficiency judgment for the entire balance due on the Loan. ARTICLE 6 REPRESENTATIONS AND WARRANTIES OF BORROWER As an inducement to Lender to execute this Agreement, Borrower represents and warrants to Lender the truth and accuracy of the matters set forth in this Article 6. 6.1 Status. Borrower is duly formed and validly existing and is fully qualified to do business in the State of California, with full power and authority to consummate the transactions contemplated hereby. Each individual executing this Agreement on behalf of Borrower represents and warranis to Lender that he is authorized to do so. 6.2 Authoritv of Borrower and Guarantors. Borrower 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, execu.ted and delivered by Borrower and constitutes a legally valid, binding and enforceable obligation of Borrower which does not and will not constitute a breach or default under any agreement, court order, judgment or law by or under which Borrower or any portion of the Property is bound or affected. - 10 - 4-1" 107051 000001\98696.4 6.3 No Untrue Statement. To Borrower's best knowledge, no information furnished by Borrower to Lender in connection with this Agreernent includes any untrue statement of a material 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 Compliance with Laws. To Borrower's current knowledge without duty of investigation, the Property currently conforms to and is in compliance with, and will continue to conform to and be in compliance with: (a) all recorded covenants, conditions, restrictions and reservations; and (b) all applicable governmental laws, ordinances, rules, regulations and requirements, including without limitation those affecting zoning, grading, hazardous substances and environmental conditions (collectively, "Laws"). The Property consists of one or more legal and separate lot(s) under the California Subdivision Map Act (California Government Code Sections 66410-66499.37, as amended from time to time) and for tax assessment purposes. 6.5 No Litigation. There is no litigation, action, suit or proceeding pending or threatened against Borrower or the Property which may in any manner whatsoever substantially adversely affect the validity, priority or enforceability of any of the Loan Documents. 6.6 No Condemnation or CasualtY. No condemnation or other like proceedings are pending or threatened against any portion-of the Property which would impair the full utilization of the Property in any manner whatsoever. No casualty has occurred to the Property. 6.7 Hazardous Substances. To Borrower's current knowledge without duty of investigation: (a) there are no hazardous or toxic substances in existence on the Property and no such hazardous or toxic substances have been released, deposited, stored, disposed, placed or located in, on or under the Property in violation of applicable laws; and (b) there are no underground storage tanks located on the Property. Borrower shall indemnify, protect, hold harmless and defend Lender and its partners, and their respective shareholders, officers, directors and employees, from and against all damages, liabilities, claims, liens, costs and expenses (including attorneys' fees, court costs and remediation expenses) arising from the release of any hazardous or toxic substances on the Property. 6.8 Defects. To Borrower's current knowledge without duty of investigation: (a) there are no defects, facts or conditions affecting the Property which would make it incapable of being sold. ARTICLE 7 LENDER'S REPRESENTATIONS AND WARRANTIES As an inducement to Borrower to execute this Agreement, Lender represents and warrants to Borrower that, as of the date of this Agreement: 7.1 Status. Lender is duly formed and validly existing and has full power and authority to consummate the transactions contemplated hereby. - 11 - 4",'9 107051 000001\98696.4 7.2 Authoritv of Lender. Lender 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 Lender and constitutes a legally valid, binding and enforceable obligations of Lender which do not and will not constitute a breach or default under any agreement, court order, judgment or law by or under which Lender is bound or may be affected. ARTICLE 8 BANKRUPTCY 8.1 Acknowledgments. Borrower acknowledges and agrees that: (a) The claims of Lender with respect to the obligations of Borrower set forth in the Loan Documents, constitute (and will constitute, in any bankruptcy or similar proceeding with respect to Borrower) continuing claims arising out of the obligations of Borrower based upon actual funds advanced to or for the benefit of Borrower; and (b) Such claims shall be for all amounts heretofore advanced to Borrower under the Loan Documents (together with all interest, expenses and other charges provided for thereunder). 8.2 Bankruptcv. To induce Lender to execute tlùs Agreement, Borrower represents and warrants that: (a) Borrower currently has no 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 Borrower to reorganize their financial affairs successfully if such reorganization is reasonably possible, and in the event that Borrower is unable to repay the sums owing in accordance with this Agreement prior to termination of the Forbearance Period pursuant to this Agreement, Borrower acknowledges that it will not have any equity in the Property or any further realistic opportunity to successfully reorganize Borrower's financial affairs in bankruptcy; and (c) any bankruptcy filing or acquiescence therein by Borrower after the termination of the Forbearance Period would be (as to Lender) solely for the purpose of delaying Lender in the enforcement of its rights. 8.3 Carryover of This Agreement in the Event of Bankruptcv. The following provisions are of particular applicability in the event Borrower files for relief under the Bankruptcy Code, or an order of relief is granted as to Borrower under the Bankruptcy Code. Borrower enters into these provisions in consideration of the procedures provided in this Agreemerit and other good and valuable consideration, receipt of which Borrower acknowledges. 8.3.1 No Renewal of Exclusive Period, Relief from Automatic Stav. Borrower agrees that if Borrower is a debtor in a Chapter 11 proceeding under the Bankruptcy Code, ¡¡nd the bankruptcy court enters a cash collateral order, then that order shall provide that if Borrower does not file a Plan within the 120-day exclusive period provided by Section 1121(b) of the Bankruptcy Code, Lender 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, \07051 000001\986964 - 12 - 4-:¡,o 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 permitted under applicable non- bankruptcy law. 8.3.2 Further Relief From Automatic Stav. Borrower specifically agrees that, subject to court approval, Lender 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 Lender requests such relief, Borrower shall not object to or oppose Lender's having immediate relief from 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 permitting the use of cash collateral, (b) to permit the filing of financing statements or other instruments and documents evidencing Lender'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 permit Lender's application of rents and income as provided herein, and (d) to permit the relief provided for in Section 9.3.1 above. 8.3.3 Perfection. During the pendency of the case, if it is determined 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 the Borrower subject to the case who have or whom may hereafter extend secured or unsecured credit to Borrower. ARTICLE 9 ADDITIONAL PROVISIONS 9.1 Applicable USUry Laws. All agreements between Borrower and Lender, 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 Lender for the use, forbearance or detention of the money owed to Lender 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 t)le limit of such validity; and if, as a result of any circumstance whatsoever, Lender 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 Lender and not to the payment of interest, or if such amount exceeds the unpaid balance of principal, such excess shall be refunded to Borrower. This provision is material to both Borrower and Lender ~d shall control every other provision of all agreements between Borrower and Lender. 9.2 Limitation on Liens. Borrower shall not, and shall not permit any affiliate, subsidiary, partner or other entity related to any Borrower, to create, incur, assume or suffer to exist any Lien (as defined below) upon the Property or revenues derived therefrom, whether 107051 000001\986964 - 13 - 4- 4.1 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 perfonnance of bids, statutory obligations, surety and appeal bonds, perfonnance 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 pennitted 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 No Distributions. Until the Loan is fully paid, Borrower shall not distribute any funds to any partner of Borrower or any person or entity affiliated with Borrower or with any partner of Borrower. 9.4 Property Requirements. During the tenn of this Agreement Borrower shall, within ten (10) days after the end of each calendar month, deliver to Lender a written report with respect to the operation of the Property during such calendar month, specifying in reasonable detail (a) all revenue received from the Property, (b) all expenses incurred with respect to the Property, and (c) such other infonnation as Lender may reasonably request from time to time. 9.5 Audit RÏI!ht. Lender and/or Lender's agent may, upon one (1) business day's notice, during nonnal business hours inspect, copy and/or audit all Borrower's books and records with respect to the Property and the proceeds therefrom. 9.6 Due on Transfer. If Borrower, 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 Borrower is transferred (in the aggregate, in one or more transfers) not including transfer by a partner of Borrower of all or a portion of such partner's partnership interest in Borrower 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 with respect to such transfer other than receipt of such partner's interest in the transferee entity) Lender 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 U1Ùess in writing and signed by Lender. 9.7 Late Charge. Borrower hereby acknowledges that failure to timely repay the Loan in full as provided herein will cause Lender to incur costs not contemplated by the Loan Documents, the exact amount of which will be extremely difficult to ascertain. Such cQsts include, but are not limited to, processing and accounting charges and administrative expenses. Accordingly, if any sum due from Borrower is not received by Lender or Lender's designee within five (5) business days after the Due Date (with the exception of the Remaining Interest Payment under Section 3.2.3.2, which shall incur a late charge hereunder if not received within five (5) business days of the date it is due), then, without any requirement for notice to Borrower, 107051 00000\\'06964 - 14 - -4-2.'- - - Borrower shall pay to Lender 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 Lessor will incur by reason of late payment by Lessee. Acceptance of such late charge by Lessor shall in no event constitute a waiver of Lessee's default with respect to such overdue amount, nor prevent Lessor from exercising any of the other rights and remedies hereunder or under the Loan Documents. 9.8 Default Rate. Any amount not paid by the Due Date shall thereafter bear interest at the lower of ten percent (10%) per annum or the maximum rate then allowable by law or judgments. Payment of such interest shall not excuse or cure any default by Borrower under this Lease; provided, however, that interest shall not be payable on late charges incurred by Borrower. 9.9 Notices. Any notice, demand or other communication required or pennitted under this Agreement shall be deemed delivered when in writing and (a) personally served upon the receiving party, or (b) upon the third 3rd) calendar day after mailing to the receiving party by registered or certified mail, return receipt requested, or (c) upon the following business day when sent by Federal Express or other comparable overnight delivery service, postage prepaid, and addressed as follows: To Borrower: One Park, Ltd. c/o Richard Zogob Zogob Enterprises 344 F Street, Suite 101 Chula Vista, CA 91910 To Lender: Redevelopment Agency of the City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 Attn: Community Development Director with a copy of any notice to: City Attorney's Office 276 Fourth Avenue Chula Vista, CA 91910 Attn: Glen R. Googins, Esq. and a copy of any notice to: Procopio, Cory, Hargreaves & Savitch LLP 530 B Street, Suite 2100 San Diego, CA 92101 Attn: Thomas W. Turner, Jr., Esq. - 15 - 4 - .2.3 107051 000001\986964 9.10 Additional Disbursement. Borrower hereby acknowledges and agrees that Lender is under no obligation whatsoever to make any further or additional advances of any kind whatsoever to Borrower hereunder or under the Loan Documents. 9.11 ComDutation of Time Periods. If the date or last date to make any payment or to perform 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 performed or given off the next business day. As used herein, the term "business day" means a day other than a Saturday, Sunday or state or national holiday. 9.12 Relevance of Other Loan Documents. Borrower agrees to abide by the terms set forth in the Loan Documents and acknowledges that the obligations set forth therein are secured by the lien of the Deed of Trust. Without limiting the foregoing, Borrower agrees to comply with the affordability obligations set forth in Section 17 of the Cooperative Agreement until the earlier of (i) the payment in full of all amounts owed under the Loan; and (ii) the fifteenth (I5th) anniversary of the issuance of the Certificate of Occupancy with respect to the apartment project located on the Property. 9.13 Subordination Agreement. The Subordination Agreement which is attached to and is a part of the Deed of Trust is hereby terminated in its entirety and of no further force or effect. 9.14 Limitation on Force Majeure. The parties acknowledge and agree that Section 19 of the Cooperative Agreement shall have no application to Borrower's obligation to timely make payments on the Loan as set forth in this Agreement. 9.15 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 Acknowledgment of No Obligation. Borrower acknowledges that Lender has no obligation to enter into this Agreement (or any of the documents executed pursuant hereto) and is OIùy choosing to do so in its discretion and is under no obligation to make any further modificatiops or concessions to Borrower except as expressly stated in this Agreement. 10.2 Assignment. Borrower shall not assign this Agreement, or any of its rights or remedies hereunder, in whole or in part, without the prior written consent of Lender in each instance, which may be withheld in Lender's sole discretion. 10.3 Attornevs' 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. - 16 - 4-2V 107051 000001198696.4 10.4 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. 10.5 Cooperation. Borrower agrees to cooperate fully with Lender, promptly after any request by Lender, in the completion, execution and delivery of any document or the taking of such action as may be deemed necessary or helpful by Lender to assure its security interest in the Property. 10.6 Counteroarts. 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. 10.7 Enforceabilitv. 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 inapplicable 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 Borrower, 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 Lender, 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 Lender, rather than the more burdensome but unenforceable original obligation of Borrower. 10.8 Entire Agreement: Amendments: Interoretation. 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. Borrower acknowledges and agrees that: (a) no agent of Lender shall have any actual or apparent authority to bind Lender to any amendment except as provided herein; (b) Borrower shall not be entitled to rely upon or assert any purported, implied or oral amendment or modification; and (c) Lender shall not be directly or indirectly liable for the truth, accuracy or enforcement of any representation, agreement or understanding which may now or hereafter be made among any persons other than Lender. In the event of ¡¡ny express conflict between any provisions of this Agreement and any of the Loan Documents, the provisions of this Agreement shall control and govern. This Agreement and each of the other documents required under this Agreement shall be construed in order to liberally effectuate the rights and remedies of Lender as expressed herein, and neither such principle of interpretation nor the express language of this Agreement or any of the other documents required under this 107051 000001198696 4 - 17 - 4 - :J..s-' - Agreement shall be impaired or adversely affected by any prior correspondence or by the language of any prior discussion, form or draft of this Agreement or any of the other documents required under this Agreement. The deletion of any provision from a prior draft of this Agreement or any of the other documents required under this Agreement shall not be deemed to constitute (and shall not be used as) evidence of any fact or interpretation, since the parties may disagree as to the meaning and effect of such a deletion, as well as to the reasons why they agreed to such a deletion, and no prior draft of this Agreement or any of the other documents required under this Agreement shall be admissible as evidence of the meaning of this Agreement or any of the other documents required under this Agreement. Neither this Agreement nor any of the other documents required under this Agreement shall be construed against the Lender merely because of the Lender's involvement in its preparation. 10.9 Further Assurances. The parties agree to perform such further acts and to execute and deliver such additional documents and instruments as may be reasonably required in order to carry out the provisions of this Agreement and the intentions of the parties. 10.10 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 performed in California, except to the extent that Lender has greater rights or remedies under federal law, in which case such choice of California law shall not be deemed to deprive Lender of such rights and remedies as may be available to Lender under federal law. 10.11 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. 10.12 Indulgence Not Waiver. A failure by the Lender to strictly enforce its rights hereunder in any instance shall not be deemed to be a waiver of any rights hereunder. No delay 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 tJ,1e same covenant, term or condition. 10.13 No Course of Conduct. At no time shall the prior or subsequent course of conduct by Lender directly or indirectly limit, impair or otherwise adversely affect any of Lender's rights or remedies in connection with this Agreement or any of the other documents required under this Agreement, or detract from or otherwise affect the literal interpretation and effect of ~s Agreement or any of such other documents, since the parties hereto agree that this Agreement and such other documents shall only be amended by written instruments executed by the parties, as provided herein. If at any time Borrower believes that Lender has excused (other than by means of a written waiver sent by Lender to Borrower) the performance by Borrower of its obligations or liabilities under this Agreement or any of the documents required under this 107051 000001\98696.4 - 18 - .-;¿(, Agreement, Borrower shall give written notice to Lender, prior to the time such obligations or liabilities are to be performed, specifying the obligations or liabilities excused. The failure to give such written notice shall constitute a waiver by Borrower of any right, defense or remedy Borrower may have to its nonperformance of any of its obligations or liabilities under this Agreement or any of the documents required under this Agreement based on the forgiveness by Lender of such performance. 10.14 No Cure. The parties hereto hereby acknowledge and agree that consent to this Agreement by Lender shall not in any way be considered to be a cure of Borrower's defaults under the Loan Documents or a discharge with respect to the debt owed to Lender. Nothing contained herein shall constitute a waiver by Lender of its right to foreclose upon the Property or to otherwise exercise any of the other rights and remedies of Lender at any time or from time to time from and after expiration of the Forbearance Period,nor shall any provision contained herein result in Lender being estopped from exercising any such right or remedy from and after the expiration of the Forbearance Period. Borrower's right to perform under this Agreement is granted by Lender solely as an incentive to Borrower to maximize the value of the Property, notwithstanding Borrower's continuing default. 10.15 No Joint Venture. Nothing contained herein or inferable herefrom shall be deemed or construed to create any partnership, joint venture, or other association between Lender and Borrower. Neither Lender nor any agent of Lender 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 Borrower (or any related entity) in any capacity other than that of a secured creditor of Borrower. 10.16 No Offset. Borrower shall not, under any circumstances, fail or delay to perform (or resist the enforcement of) any of its obligations to Lender in connection with this Agreement because of any alleged offsetting claim or cause of action it may have against Lender (or any indebtedness or obligation of Lender) which has not been confmned in a [mal judgment of a court of competent jurisdiction (sustained on appeal, if any) against Lender, and Borrower 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 Lender (or any such obligations or indebtedness of Lender), unless and until such right of setoff (or offset) is confmned and liquidated by such a final judgment. 10.17 Successors: Assil!nment. 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 panies; provided, however, that Borrower may not assign any of its rights hereunder without the prior written consent of Lender which may be withheld to the maximum extent permitted by law. Any permitted assignee shall assume in writing all obligations of Borrower hereunder. Lender reserves the right to sell, assign, transfer, negotiate or grant panicipations in all or any pan 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. Borrower agrees that Lender may disclose all documents and information they now have or may hereafter obtain in connection with the transactions contemplated by this Agreement. - 19 - .-~ï 107051 000001\98696.4 10.18 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 reason of this Agreement, nor shall any party hereto have any obligations or liabilities to such other person by reason of this Agreement. 10.19 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. , 10.20 Time of Essence. Time is of the essence of this Agreement and of each covenant or condition that is to be performed 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 first above written. BORROWER: CONSENT AND ACKNOWLEDGEMENT OF CITY: ONE PARK, LTD., a California limited partnership The City of Chula Vista does hereby consent to and approve the above Forbearance Agreement in its entirety, and expressly acknowledges and agrees to the provisions of Section 1.2 thereof. City of Chula Vista, a municipal c.--- - corporation By: David Maizel, Director By: By: Zogob Development Company, Inc., Shirley Horton, Mayor a California corporation, General P er APPROVED AS TO FORM: Name: LENDER: Title: City/Agency Attorney THE REDEVELOPMENT AGENCY OF ATTEST: THE CITY OF CHULA VISTA By: Shirley Horton, Chairman Name: Title: City Clerk 4-:Lf '07051 00000'\986964 - 20- ( \ -' U61 Exhibit 'A' OESCUPTION OF SITE All that ...01 p",perty situated in the City of Chula ~ista, County of San Diego, Stðte of California, described as follows: Lot 8 of .hula Vista Tract No. 81-1 Town Centre Townsite Tract No.2, In the CIty of Chula VIsta, County of $an DIego, Stote of Cal1fornla, according tð Map thereof No. 10505, filed in the OffIce of the County Recorder of San Diego County, Oct~ber 22, 1982. a en "', ~. Z C - !X>CU".ÆNT .. ...... RECORDED ¡;; :~NC:'~;~:~"',("';.,~~ G) IT "AS "'" ,: ., ,»:1IN£0 .",0 0 EXECur;.:>N ~. ,,'?ACT ON TITLL (") 0 c [,!¡ ¡~ ;;;: 1862P , 4 EXHIBIT A - 2., - . r~ì 0 EXHIBIT B I: ,"" ~ .REC(JRIIINGR~l)JESTEOBY: ',) UflO 87037378 . REJJEVELOPMEr~T AGEr¡CY OF TI1[ C ITV Of I ""COilcn::N-1 CIiULA VISTA lotmtó\tè¡"~t;',;~;~.'¿^1 AFTER RECORDED, RETURN TO: 1 "'91 JAM 23 1'1: I' OS REDEVELOPMENT AGEHCY OF THE C ¡TV OF I I .:VERA L LYLE J CIiULA VISTA I LE.OUN¡Y R£C"~OE~ Zl6 Fourth Avenue Chu1. Vi sta. CA 92010 NO fEE , PROMISSORY NOTE ~ECURED BY DEtO OF 7RUST BY; ONE PARK. UD. . Approv-d a< Exhi~a C of Redeve¡opment Agency Resolution ~o. 678. adopted 4/17/86 f{.i r-.: '.' mi ¡Ri (!) {'. 'O.t: . t: ;at '.CJ. t rn t~ .~~' jf ORIGINAL INITIALS OF EAC,: PRIN.,. mAL ~O~~ ~ -.". '-- - .' £ B " ."~.' .,..~HIBJT i : c~ 0 1251 DO XOT DESTRDV THIS NOTE: WHEN PAID, THIS NOTE Ah'D T;;E C:EO 'JF TRUS. SECURING IT MUST BE SURRENOERED TO TRUSTEE fOR CANCELLATlOI! BEFORE RECOI!VEYAHCE ~ILL BE MAùE, _n______-------___----_n_______-____n___----_-______n__-----_n______------ PR!)MlSSORY NOTE S[CURE~ oV Of ED Of TRUST \R50,OOO Chula Vista, [a1ffor"!a DATE Mayl,1986 ._----.-- FOR VALU, RECEIVED, the undersigned, OUE PARK LTD., A Californio Lim: ted Partnership I"Maker'). promi", to pav to CITY Of CHULA ViSTA, or ardor, at Chcla Vista, C.1 Ifornit, or such other p1a<e as tho holder may from ti..e to t1.... desi9nate by wrftton nut ice to Haker, the principal sum of EIGIIT IIUUDRED FIFTV T:IOUSA!m DOlL~RS ($B5D,OOOl, "fÖ tntorest frOt!\ this date until pafd. Pr_ot shall be made as follows: ~~!!_'ëUÆ.cnt Payment shali be ma~. in 0," ~aymont on Novemer 1, 1 !>!IS, nr trn. ~Jte upon whirh !Iaker conveys title to the p;-orerty encumbored hy the second deed of trust, whichever occurs f! rst. Amount of ~ Payment shall be made io tho following aMount: DOll.~;iï$~tg~~or~10cioal shall he the amount of Eight Hundred fifty Thoesand Interest: Int<rPOt on priedpa, s.ol1 be composed of two c""",onent" (1) fase Tntëi'ëit: and 11) Ad~itional Interest. Base Interest, B"se Interest shall aeer.e o.er the term of the loan os folloWS:--- 1. Upon funding of the coostruction lnan by the Old Stone Bank and concurrent fundina of subject 'oan. Base Interest 00 undisbursed loan fund' sh,l1 >ccrue at the rat. of ioterest Sëìï1g p.,d hŸDld Stone Bank to developer on the Borrower', Fund Account until suet, funds are r,ispersed in accordance w,th "Ruild:"g Loan Agre.""nt, Proceeds of Aoenoy Loan," a copy of which i, attached horeto and marxed £.,h1M t "E". The period of such jnterost shall not exceed six months from the cotrrnencemcnt of the torm of the loan. 7. frO<\ t~,e .1ote of dishurs"",,,-nt nf the proceeds for construction "c,-pos"" Base Into,..,t ,hall accrue oyer the term of tho loan at the "ree rate as tfi!'l'ro}eCT'".s- first mort1.~e and shall compound annually from the fi rst day of the <c""""neement of term to the date of payment, 3. Durlnq the peried of disbursement, monthl¡' a:counting of .nd1sbursed and disburser, funds will he made in order to determine the a;oplic¡¡tion of Bas. ~est 10 .cc"rdance .It~, Sections 14.2A.l and 14.2A.2. - EXHIBIT "C" r~ 19 {~7,'/ 4;- .a ( .Z'o' '~.f.. ~ .' 1252 Additlona' Interest 1. If the property 15 conveyed bet...., cor...nc....nt of te"" tnd three seo-s thereafter. Maker shall pay an amount equal to .010 tl...s ."0" sales ,rlce. 2. If the property is conveyed during the fourth year aft.. <_ence",.ot of te"", ~aker shal1 pay ar amount equa' to .015 . 'noes oro« sales price. , 3. If the prope-ty is cenveyed durin, tho fifth year after co_nce",ent of te"", :~aker sha" pay an amount equa' to .020 tl"",s gross sa'es price. 4. If t~e property is conveyed during the sixth )~ar after c-..,.ncemen+. of te"". Maker sh.l1 pay an amount equa' to .025 t111\Os qrnss sa',es price. 5. If the prop<rty 15 conveyed during the seventh ye.r af,er <o"..",cement of te"", Maker shall pay an amo'Jnt equ.' to .030 tl,",,-s Dross sales price. 6. If the property Is conveye~ dur1ng the eighth vear after c""...no""""t of te"", Mok.r she11 pay an amount equa' to .~35 tiMes grnss sales peice. 7. I: the property is conveyed dur1nq the n1nth year after comenceme"t of te"", Maker shal1 pay an omo..nt eq"al to .040 ti",es oross sales price. 8. If the p,'operty is conveyed during the tenth year after co.....encement of terM. Haker sroall pay'" amount eq".l to .045 tiMes Dross sales price. 9. If the .roperty is not convc"ed on or before the last day of the tenth yeor after co.....er«"",,"t of t",."" Maker shall p'v an a~ount equal to .0~5 t;...s the hlr market value of the property on the last dav of th" tenth year aft.. co_nce"",ot nf term. The fair ",arket value of the pro~erty shall be de'.ornined as foil"," The hold., ana t:>" ~\akcr "ay Jolnt'J appoint an MAl appro;s.r who <1,,11 detemine the toir m.r.et value of the property and whps< deteminotipn ,ho11 be binding upon the partie,. If the parties cannot agree pn an MAl appraiser to ~ake such determination, the Ma~,'r shal1 appoint an f1AI approlscr to make a determin,ticn, the helder shall appoint a' tlAl a¡opraiser to make a dctc",1ination and the two selected appraisers shall <ppolnt , thiro HAl appca:ser to determine the fair market value of th. property. In such evant, jJ,. fafr ".c~"t value of the property shall be the av..a~e value octe""nod ~y the tliree sei...ted apprai,.rs. If default occu" u"der th1, ncte, cr ln the performance of any M th" agreements contain,'d 10 the deeo of trust seeuring this note. the entire principal S~." ."~ a"rued ¡nleres' :ea>. Intere,t ~lus Add1tlo..l loterest <1etemlned under paragraph B.9 as of the dato of d.fault) shall at once bee""e -2- ;'f,>:; ,!.7F 4;~~"L .' -. .,(1i~.x I' " 1253 due ôn~ payable, witnout notice, at the optIon of ~he holder of this note. ranure to exercise such option sha11 not constitute a wafver of the right tc oxerelse It In the event of >ny subsequent default. T~ls no.. 15 secured ~y a deed of trust of this date. If " action Is c""nenced to collect this note or any portion of it, such su" as the court "",y deem t'easonable shali be added as attorney', fees. Principal, Interest and .11 vther sumS due hereunder ace paya"le In lawful money of the United Stotes. Tbe CooperatIve Açreet:>ent between the HaKer and the Renevolop..e", Agoncy of tno City of Chula Vista, the holder, dated October 17, 1985, for One Park Ltd. Is incorporated herein bv reference a' though fully set forth. The Maker shall be personally liable for any defidency on this not<. The Mlder will first attempt to re""oj any deficIency OJ foreclosure p,,",uant ~o law.. provided In the deed of trust ~urin9 this note. j ~J\XER: ONE PARK LTD., A Cll Hornla ¡ Limited Par~ncrship By: ~.:ZEL E~TERPRISES, INC., A ca'1f°r.~' Co."or_tion, bener_l Rf-tner 1 ....J/' -' , >f;;,;;;~ By: - . ' ;1, Luis l~alzel ,/p)eS1dnnt '\ By: (j:',':._;,(,) - -~avid ~\aize., DirectOr-- -' ~y; 1OG08 OEVELOP"t'IT ê~HPANV, INC.. A C_Iifnrnia ç.".-poraticn, G~21 P.,tn!',.- . r- By: ~l-°~~' ~ "lficbari¥L.~d~ - :- '"~ t- ~ WOC 13ó:JH m :. -3- "("; i O~ '=" :0 J'I"j~ ,Øj ¡ /':'/ (~ '¡'oF -- 4":.43,' -':".~ - § , " 1254 . SO,"""CA"'OR... ,~ ¡. COU'" 0< .'-,/4 f)/CúC. ¡¡. 0., H"y¡,:ð.(',' :>. /9/7 .",~,"",".."-,..."~.~,.."R""'.."""~ '> ~ u~....,....~-",...".,,:,1ìt"'f!RL'- Cì i't'6DB ."" , ! ,«"o""""'_",mo'.,"."."om.,"'~' , ~ ~ ""~--;?'~"""~,:'.:~~::""~""""~:"'::':"'"'"'::::;~ ¿,a,'r'.'- ,8 ./"'t.7-E2"/-.~6",r ('t'/{"/',ø1 Y . d'( . '! '-""""'~';"'M,,~-,,",,"'"~--.'om.'~'~~ :" "",-"",-".~, "'~""',"O,'",""'"m"'~'~"'O"'b' œ,," ,. '".",',""""',","',","',. " ~, ¡ 5 -"""""'-""~"""K"",~~"""""'_b"", "". Emf (rttC"AN 'I i! ";~~7;~.~t::';p~"" ~L~ ""'~;~:",~;~';;~~E::~"" ¡I, e' ""m""""""'O"""'K",.",",~"~..om~"."" " (, ,"" t." I r ;':::::7;~=;~::::-;~:::;;~":.::~ ". ~":~,:!:..,;,:.~ me ~ ~ ....,..... -/~/Y' fi¿jl":.,,.- ,'~......""",..~.."....,, 0' / ., ' ,.... ~ "'"orCA"'""...) ," <'S~' -, ¡ COUH","'S"""'"Yc.c,c, I', . ~ ~;~;;;;'~~.J¡r~"-'/'2 £ ('""""~',,::,:~::=.:~:~:~~~:,:~:::: , § ~¿ "" ...,,~"'~"""","""'~"~","."""""~"""""",'N"',""""',",,',',',"'O""" , , , ~,J,. II ~i..~§?-~~;f i~:T":"-7'" ~ ~ ~~ é'A'Z /:-7,('.<:' ¿ 7Þ, ~ b Ì i S;;:~:;:~~::;:::;;~,~:~;::::~':::::~£~:~:~~~,::: 1.. .. '-., - ..,' =,.) r- ~. . """"'m",""",.""",<"."..,~,,;. . "';;- ð """'.""', ¿,c/,.chi .,::'_, ./¿.Ø:M'?'~ """..""",.,...."....".." r- "',' >1 ' .//7-. .,..', ' ,~:r HHY ~- ::tH 1'1'1-: '(') ~- 0': ::0: . ~tj; MÞ' ;ltJË :: 4-3-4- ~ ¿OROI';"RIOU"TlO~V-., ~ 23&' 86-198320 _. EXHIBIT C Mr. poul G. Desrochers ç~'~'i.('t~g¿I~", ! 0 I or°[.{, "'l ',') CWH "/.:.' 1985 MAY 19 PM 3' 26 oNO NNCN -"O..CO NO" ,. ~7~ kÛ".:'.]~ r ì Mr. Poul G. Desrochers '.ECORDEO Community Development Pept '..::;~;-;;=~'STTm.E CO'" 276 Fourth Avenue ",,:,-~, '~A"'-O<'O~A;¡OHONLY. Chula Vista. CA 92010 ~'i;;..'r",;.w"X",UNEOI.STO - ...J t,Y.ECUIiON OR Wl'ACT ON mLL NO Ff!8'.. SPACI ASOvl THIS LtNI FOR RECOROIR'S USI - --'- SHORT FORM O££O OF TRUST AND ASSIGNMENT OF RENTS (PARTNERSHtP) A,o,N Thi,DccdotTrust,ma¿cthis 1st day of May, 1986 . betw'"n ONE PARK. LTD.. a California Limited Partnership A Limited p...tnm~~~derthetaWS1!.thesra¿:.e~L'~~ercin<falled TMto,. whoscaddrcuis 7:>/- '".m""""Ns:.><> I <::): ~.¿{,..,; "" '"~' J~:r' :70/0 . Ti«" Title In,o",n« Company of California. a c.lifornia c°'1"'rarion. h",cin called T,ost«. and . CITY OF CHULA VISTA . herein called Beneficiary. I Witnesseth, That Trusror 'R"V.,....'.Y CRANT>. TRANSRIRS AND ASSIGNS ,. TRUm:1 IN TRUST. won, roWE. OF SAU. th'i¡f~o~~~n pro~:~~; ~~:~:ib=~\~i~~~ibit "A" attach~U(~h~a1~fp~~ed~f;i~~ as. The indebtedness secured by this Deed of Trust is due on the first to occur of May 1. 1996 or the Trustor's conveyance of the Property. . See Exhibit "B" attached for a Subordination Agreement affectin" I : U this Deed of Trust. TOGETtiER WITti ,h'~nn, i,,~c cnd r'ulin Ih'~ur, su6JEn. tlOWEnR. IU Ih, ri,hl, puw" cnd c.,ho,i',. ,i~n ,. cnJ mnl,",d up.n Bmfi"",. b" p",<"ph 110) "r Ih, rw,ici",., in'"'pom,d h"con 10,. "rmn" '" 'ull«1 cnd c"l,. ,u,h ~"", i"un cnd profi". R", do, pu..- or s.,",rin" I. P"I",n"n".r ",h c,'«.oen, "I T,uuu' in..."pu"",J to,' ,elmm u< ",...i~J h,~in. 2. p".. ~;i~:i~:' '~:~'::','~'6.5nó': öo~':1:1h, o,n;,f~:~';;iì.',~t;~;;:~ ¡: I';'~~ ~:,,~~':;;~;':: ,~;~,:ï.".';'~.~;:;;,:.:';.d~:;~'r~~;h~~f;u¡:;'::: I ,h, ,hco ~'o,d own" ul pid pooP"'Y h,~cl", mc, bo"ow r,om ,k."i,..", .h,n ",d,n"d by cno,h"~,, en' no,n) ~",in. il ¡,... ""u~d, To ""'= do, S«uri')' of Thi, Dc'" or Too'C TN"., AI=" B,. Ih, "...u""n cnJ ,t"i~.,. d ,hi, D<cd ur TMI cnd Ih, no" \ ;';~:.~ 'O~~~:"ci,P;9~;i,u~:j';~'~ttC~;:~~.~~:~";,.~~~~~'i;t:",~~i~f,~;~~~~.:~~'t,~n,~n~~ ~c~;c~r~;ci~ï~,~:.i:i~":".; ulli« 01 Ih, ,ounly ~<o<J" of Ih, 'uun". whm pid p,openy "I~md. nn"d to""., .r,.."i" ,I" "'~ ul ,u,h ,o"."...i,. COUNTY BOOK FACE COUNTY .OOK 'AGE COUNTY 800K "CI COUNTY .OOK PACE A"""'. ..,.... K- 79%." "- .."., ..-. 2<1 '" A',,~ '2M C... 362,.. F~- "" .....~~ ... ,a, A- 'DC'" l-n ", '"~ '_0 - 023 ""'- nco la' B.", "" t C~A...'" T2<>5"" __0O 43.'11 a, Sono~. .",... Cotow<~ '" ", M-. a'. n. Son ....,. 271 38:1 S,,"Wk' ""... CO'UM ,...n ...... ,...:m Son"""'.... ..., .. ..,~ '" "" e~". e-. ,..,. ., -- ,,2<1, Son F._"" A""" T"'- COI'" ... N- ,""C _odM "., 13. Son"""""n "'. 3<, Tri""" 03 366 "o~... ...... -- ,.., 138 Son C., ""'- "" ,. Tu.... U8C m / ~-.:::;;' ":~ ::¡ =: ':;:'~ ~~. ~~:: ~ ~::::" ~~ ~ H_bo~' "" '" M~,.,., 21M 138 ....C.... 63311 ".. .at. .13 >t, ( \ :::-;"'" 'C::: ~~ :::... ~..: ::::"CN' ,:¡: ~ y,bc 33C cae K~ ....".. 0..... .... on Sono- ",""IIoM"".P...,."", ',' ~:;tj;"' P;~,ii~~;:,;i';;nr~í!~ ::,~:.:;h-;:'~C'~~h ~~::;:~Jc~ï,~~ih7;;;~h~":~tOu~:"~;{:~ ;;:r.,: :;i~ ;,~.?:¡::'::~:,:~:, ~h~ '. ~':,~~:~ f~inr::."'.:;';;'t~~~~:;ï~;::;,'nJ p",in in pid pl.~.iun' "'cll b, ,.n"oo~t '° ~I" '° th, p'up<n>'. obli"unn., cn,t Th, u~t,"i,n,J T,u"n< ~"...." ,h.. c 'upvurcn,. Nnli~o"Dc"utl cnd .fcny No,i<c.rSc"h,~und,,'" m.¡¡,J u, him ..hiccdd,=hminl"'n~~Ir",'h. ,;inlu T' STATE Of' CALtfORNtA , } 55, ONE P~RK,LTf>.:';' h~r;;¡a Limited pertne"'[iP COUNTY OF .. On b,lo~ m,. Corporation - t P er , th,und"",n"'.cNu"..,.t'ubt",.c.dlo,pMlS"".pmo",Uy . cpp""d .Lul ~BI~~I¿ ident . " penoncUy krwwn ,. m, '" p,u~J Ion" on Ib, b..i, of cc<i. David Mal.el, DIrector t Imo')' "MI,n« In t" ,Ioe r<'o"- who 'mulC~ Ihe wi,hi. Inmum,n' .. nl Ih, pcnnm of Ihc ponn". , ,hip Ihot ,,«uI'" It" wilhin in",um,n'. .nd c<knowk¡¡<d ,. ny, , m, "'" ,u,h p"""'hip "«u,,. Ih, ..,n" Richard G. og 'Ident I IvrrNESSmyhonJcn,tn""..t..,1. S"n..u~ "",..." ". ",n,;., """,.,t ..01 "", "..", Nn, --' ---- .""'W °' I.o~ Nn. ~~~;;;;.--- --::S~ EXHIBIT C i ...NONNOIon \ ~- I ! ""_MO"""....,_-"".,..........- J . STATE OF CALIFORNIA I ss 2360 t ,:': S COUNT' ~F San OteRo ¡ ~ g¡ o.-----1!=...! '.~,"'~'m,.",...,~,.....'No""'""",~'.""'~M",,",,"'; ;:¡ 8 ",s""."""."""""" tn'. Haizel .0.0_"_""""--' ~ "i """"'.'" _~i:c' ,"~n"_"""'-""""'oI'h'.i è ¡:: co<.."",.t".......t"""""""""_t'."""""""',ooo..tom'to<_to................".. > ~ : """"'O<Oto"t"""O.'.ho""""O"."h"~"""""""""ot.."c",...."....a..o.o....."'" -:: Ii! .....t"'-='-""""""O"."".""""""""'~"""'."L.o.'~'R"oI"_"",.""ot ¡ ~ :¡ O""""""'C~"""_......o..-.........o....."...""" One Park, Ltd. "I , g" "."""" .... ".""'" ..., "K"" ... _Om m"",...... ,... «0_....." .. ... ,.., '~h c~....".. , ' ~ ~ ,.."uo..t""""'~Ch"."""""'uCh..n..,. No""'" ¡ P .... ......... t" ....., B ~n:ë:tZvv '"". No"..,PubOk ,. ,.. to< Mod Co..o,...S...., , ::::::::;;':t:- ISS r: COUNT' OF San Diego ! .;, ~ Hay 1 . "~","..m""'u.a,,,,.....'NO....,P."~i...ato,..,aCo..o, -" o. Richard G. Zogob O".,"M""""'_- .~ 8 ,.as.......""....",...'" .o.o...._o~..o..__...".."o'o.. '£"' p""a..o".a, " o......m,,~,,~""m".o""",,"""- .' r: c~p""".""UKU"""~'h,.,.","_...,.a......', ""',........,a,......"o.,.a«o......... ~ :: "'Y~od,.......",..~...oo........",.,....,....um'. ,~~,R..olu"_o".._,a.. ~!ì ..m""","chC~""""""uO"::,:':~,::u;::::,:~;:~:':~~:.'Ó'ne Park, Ltd. ., I ~ :5 O"K"': ":=:::'P~~:~ ,':":u..a .., ...h,. ,."......,. ,.a ""~"'." .. m, "" ..ch ,......".. ~ 15 :::.~:' ~~~ ..m"Huth ".""'O ","uch po""" ..~,.... - .... ~ "",UKU..a",..... - ... WITN"Sm,".a..aol'~""'" ~..,., w.e"""" \ ~ """"""'1'" ~ i , .fJd/~A- - -:",/O~':;~~~~~:;~' ~ KY(OIft.EXP."".I2."'O ",.,. No".., 'u",k I. ,.a .., M'a Cou'" ..a s.... , ~-- ---. -, ¡, , - .3.(,. I , -- 2361 Exhlbft "A" OESCUPTION OF SITE All that real property situated in the City of Chula 11sta, County of San Diego, State of California. described as follows: lot 8 of tho" Vista Tract No. 81-1 Town Centre Townsite Tract No.2, fn the Cfty of Chuh Vista, County of ~.n Of ego , St.te of California, according to Map thereof No. 10505, ffled fn the Offfce of the County Recorder of San Diego County, Oct~ber 22, 1982. 0, ~ !t: 2 a - "",,"'-'<NT" BEING R£<X>IIÐED ¡;; ~~NC::~:'?:~""'~ . '~.,~ ~ G') tTe,s,"'¡c",'.>J""NEO>STO 0 EXEC"'"'" ~. ,nAcr ON TIT1.£. (") 0 c: [.~ 1~ .r:: 1862P ~ ì e. 236% r J SU8GRDINATlDN AGREEMENT By the del Ivery and a«eptonee of this Deed of Trust. TRUSTOR and BENEFICIARY agree for themselves and their successors In Interest as follows: ,{ SU8DRDINATlON: \ 1. TRUSTOR Intends to constnJCt 94 apartment units on the property l! pursuant to the City of Chula vIsta, County of San Diego, State of California subdivision requirements and pemlts Including the Cooperative Agreement between t~e TRUSTOR and the 8ENEFICIARY, :lated October 17, 1985, and the arnenanent thereto do ted MarCh 31, 1986, and the amenanent thereto dated April 3, 1986. TRUSTOR and BENEFICIARY intend that (a) TRUSTOR shall from ,-' time to time borrow funds with which to pay bona fide direct and Indirect costs of ',he construction of the unl ts en the property and to obtai n permanent financing of the completed units, (b) said borrowings shall be secured by deeds of trust (herein refe"red to as "Superior Trust Deeds") encumbering the property, and (c) each Superior Trust Deed be a deed of trust with Hen priority over this Deed of Trust, all subject to the following te,,"s and eo,,~ltlons: 1.1 8ENEFICIARY will, within five (5) days after delivery to hi.. of TRUSTOR's written notice to do so, execute, acknowledge and deHver to :RUS:OR any dü.:u~.cnt required by any title Insurance c"""any as a condition to the lS$uance of it< loan poHcy of title Insurance Insuring the priority, over this Deed of Trust, of any Superior Trust Deed; PROVIDEO, HOWEVER: 1.1.1 Each Superior Trust must encumber all of the property, Q except property dedicated for public use (the "Encumbered Property"), \ /!{g!iS!¡;¡ and be In favor of a state or national bank, state or federal savings I!"~;¡ and loan association, life insurance company or other lending !i1;;;~Qi InstHution or company; X;;¡¡!t; 1.1.2 All loans shall be evidenced by Promissory Notes which :!§g?;jI shall not in the aggregate have principal In .xeess of 75\ of the Ii '" Ii ,13. fai r market val ue of the Encumbered Property as detemlned by an Iff;:ii!1'i Independent Approiser who is a member of the American Appraisal 11:;>.;"'" Institute, bearing interest at not more than fifteen percent (15\) 1'1 fjr'i~ per year, payable at times and on terms that are required by l"nders. t:~~~& 1.2 TRUSTOR agrees th,t the loan proceeds of and from eac!, Superior Trust Deed will be disbursed fa" only one or "",re of the following purposes relating to the property. CONSTRUCTION LOANS: 1.2.1 Payment for the costs of Im~rovlng the Encumbered Land with grading, underground and other utilities, conduits, streets, curbs, gutters, stom drains, si dewal ks and other subdivision improvements, condominium units. garages, carports, recreational \ facilities, landscaping and appurtenances, required or pennitted by said City, County and State requlremo.nts or pennies, Including (a) j the fees nf eMineers, architects and other prefesslonal persons, (b) EXHIBIT 8 ,. -41' . .t 2363 pennft fees, utility deposits, plan check fees, subdivision map fees, :~~~~~: ~~0~i9~~n:e~~~i (:i ¡ o~ c ~h/~~~~~R ~~st~n~~~;~ be~V=~~:~' not 1.2.2 Payment of real estate taxes; , 1. 2. 3 Payment of the note secured hereby; I', 1.2.4 Payment of the loon fees required by the construction lenders; ¡ 1.2.5 Payment of any and all loan, escrow and title «penses. ¡ PERMANENT lOANS: '\ 1.2.6 Payment of all construction loans; 1.2.7 Refinancin9 any existin9 loan; 1.2.8 Payment of loan fees required by the pennanent lenders; 1.2.9 Payment of any and all loan, escrow and title expenses. ~ " TRUSTOR: cþ Dated: (J¡,;" -"'-I . 1986 ~. fa b& .,~ UIS t? ze , ¡ G) 8y .",fi.. -'S'O. /' ' :> Da.," Malze] , Dlrector (") 0 Dated: {~í.,.i "-'/ , 1986 lOGOB DEVELOPMENT COMPANY, INC. . C A ~F NIA CORPORATION, ,,'2 GE M~~ '~-t 8y !: -<' Richart.°o, ifCt ¡.',. BENEFICIARY: Date: if';' :1.'1 ,1986 'a~ \ , WPC 2187H ~ -2- E X H I BiT B 4-..t:t - - - .. .' , '- í \.. C .1. 2364 STATE OF CALIFORNIA) 1 ss. COUNTY OF SAN DtEGO ) On 19f'RI¿ .;¡ç': 1986, before me, the undersigned, a Notary Public 1n and for said state, personally appeared Luis ~aizel, personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument IS President of the partnership that executed the within tnstrument, and acknowledged to me that such partnership executed the same. WITNESS my hand and official seal. ,~: -~..~ O','~',At "At . <J..--/I /. ~.. ~. EFFIE E. FELDMAN "æ.r.' ---r~~ "a' "o""~'"""""'o,"" , Nowy a ure ~ j;.' ';;:~'t;:;:;"oo:~~~:~ t.l, """m""," """" M., 2 IV" STATE OF CALIFORNIA) ) ss. COUNTY OF SAIl DIEGO 1 On ,f/'Æ'N. ",,'i' 70' , 1986, before me, the undersigned, a Notary Public (h' i nand for sai d state, personally appeared Oavi d ~a1zel, personally kno..n to . ~.;~J?~~ ~it':inoni:::,::..r:t' ~: ~~;~~~~too7 ~;;~~~n~s~ip t~aie~~~~u~~ en t',e within instrument, and acknowledged to me that such partnership executed )II ,he same. Z WITNESS by hand and official seal. . C ~~ -J// m . .' .--;';?é~ G) Notj"Y , Ig ature .M,,2,1987 0 STATE OF CALIFORNIA) ! (')0 ) ss. COUNTY OF SAN OIEGO ) C I.~ .~ I On IJI'R/t.,.]' ,1986, before me, the undersi9ned. a Notary Public 1n 10, and for--š-ãTif"State, personally appeared Richard<Zogob, personally known to me '. < or proved to me on the basis of satisfactory evidence to be the person who : .' ~~:c~i~~i~h~n~~~;;n~~s;~~m~~n~~l:~;:~d~~t m~f t~:~ ~~~~o~~~~~ai~~~ :~:~~i:~ < the same. ' m WITNESS,my h,and, an,d official seal. '~~:,',..~,.~,,~ ,'r,,',":;;~""'" ~ : ~ " ..::r-// ¿ - "".,J":I~ l ell [ FELDMAN t- ..rP,/¿<~ ~.~-"""-J ","""""',I'-',"'Ok"', - lfotary;'; s¡¡¡nature '~J '~~~'~~'.io ",!~~~:~ I WPC 2187H ". C""'m",~ """" M., 2, 1987 , r- ",,"'IS""'~~:: -<' t _DOC,'O""",cO"'" TlOI'O"CV' -3- ~ .1 cr,c~... .cco..- "'0 .. 10 111 .."1'"",8«"""""'",,,,1\11. ,",' '~.~~~I"" oR "...C1 4-40 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT STATE OF CALIFORNIA ) m OPTIONAL SECTION -n ) CAPACITY CLAIMED BY SIGNER COUNTY OF SAN DIEGO I Though stotute does not ,equi'e the Nota,y to filt in the data below, doing so may p,ove invatuable onj/~ ? to p80Sons ,elying on the document. , 1997 before me,#A2í1lt1 t:. tJ~ Notary Public, personally 0 INDIVIDUAL appea d tIllS M 4rz.çz.. 0 CORPORATE OFFICERIS) !&-personally known to me - OR - 0 proved to me on the basis of TITLEIS) , satisfactory evidence to be the person(sl ':Is. PARTNERIS) tß1UMITED whose names(s) is/are subscribed to the DGENERAL within instrument and acknowledged to 0 ATTORNEY.IN-FACT ~ ~ - - - -~m:;C~:AL; - i me that he/she/they executed the same 0 TRUSTEEIS) in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on 0 GUARDIAN/CONSERV A TOR - ~ Commlssion#1072836 ¡.: Notary PUoIlc - Caßfomio j the instrument the person(s), or the 0 OTHER: Son Diego County - entity upon behalf of which the 1- - - ~ ::m:~es~: 24~ 1:W 1 person(s) acted, executed the instrument. SIGNER IS REPRESENTING: INAME OF PERSONIS) OR ENTITYIIESII WITNESS my haj and official seal. ,./ ---IJ? / /;1siGNATJ¡(E OF NOTARY) OPTIONAL SECTION THIS CERTIFICATE MUST BE ATTACHED TO TITLE OR TYPE OF DOCUMENT #a~cE Jltbk2.è'Z-7--fOlf J THE DOCUMENT DESCRIBED AT RIGHT; NUMBER OF PAGES- DATE OF DOCUMENT y/Ji/c7-/a£- (Pr/C¡C¡ç..- Though the deta 'equested he,o is not 'oqui,od by I taw, it could p,"vont f"udulont 'oanachment of this SIGNERIS) OTHER THAN NAMED ABOVE j)d.-./dt -""""", ^. L 2¿)(þ¡:"S fo'm, ...... 90000415'973.' 4-41 ADN CA ALL.pURPDSE ACKNOWLEDGMENT Ma, 3, 1994 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT STATE OF CALIFORNIA ) m OPTIONAL SECTION --- ) CAPACITY CLAIMED BY SIGNER COUNTY OF SAN DIEGO ) Though statute doe, not 'equ;,e the Notaoy to tm in the dota betow. do;ng '0 may p>ove invaluable On ,J¡/tf':; ,1997 before me,/lltdM £, ¿p~ Notary Public, personally ro pe"on, ,elying on the document, 0 INDIVIDUAL appeared 7)<J1Iln MIf/Z-a , 0 CORPORATE OFFICER(S) [ß--personally known to me - OR - 0 proved to me on the basis of TITLEIS) satisfactory evidence to be the person(s) fl PARTNER(SI &IMITED whose names(s) is/are subscribed to the OGENERAL within instrument and acknowledged to 0 ATTORNEY-IN.FACT me that he/she/they executed the same 0 TRUSTEE(SI 1- - - - - - - - - - - - ¡ in his/her/their authorized capacity(ies), 0 GUARDIAN/CONSERV A TOR MARlHAE.CORRALES and that by his/her/their signature(s) on 0 - CornmIsIIon#l072836 j the instrument the person(s), or the OTHER: t ~~ë~~ - entity upon behalf of which the 1 MyComm. E>cpireoS8P:M.l999 1 person(s) acted, executed the SIGNER IS REPRESENTING: - - - - - - - - - Instrument. INAME OF PERSONtSI OR ENTtTYIIESII WITNESS my hand and official seal. ~~F NOTARY) OPTIONAL SECTION THIS CERTIFICATE MUST BE ATTACHED TO TITLE OR TYPE OF DOCUMENT ¡::::c:K.~{E Atf:-..aEH"dr THE DOCUMENT DESCRIBED AT RIGHT; Nt!¡/?7--;I~¿ tø j9'9'? NUMBER OF PAGES - DATE OF DOCUMENT Though the data ,eque'ted he,e ;, not 'equ;,ed by , taw, It coutd p,event '..udulent ,eattachment of th;, SIGNER(S) OTHER THAN NAMED ABOVE ~¿... t5 'o,m. 999999 900004\51973,1 442 ADN CA All-PURPOSE ACKNOWlEDGMENT May 3, 1994 CALIFORNIA ALL-PURPOSE ACKOWLEDGEMENT State of California ) County of San Diego ) On ~ C! ~ personally appeared roved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(iesJ. and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT ~ Individual Corporate Officer r¡;;rh-Pr'\ì£ì1~e ~Y'f'P\l)1\,,* Title or Type of D cument Title!s) 0 Partners(s) 0 Limited (~¿ 0 General Number of Pages 0 Attorney-in-Fact 0 Trustee(sl //1; )9 '" 0 GuardianfConservator 0 Other: Dati of pocument SIGNER IS REPRESENTING: \ Name of Person!s) or Entitvlies) (b Signer(s) Other Than Named Above Z;;fjðb /)P¡JelooVlIf'hl, I This document is being notarized bV the City Clerk of the City of Chula Vista pu",uant to Civil Code I' la, ", 0 ~{~ r'c, ':~'~}¡J 0 =--~- ",;" ATTACHMENT 2 01Y OF CHUlA VISTA COMMUNITY DEVELOPMENT DEPARTMENT ~í!C ~'\I October 15, 1996 OCT 78 E::ö lObÚ/J . , 1996 C/lft Zogob Enterprises Ifr/(/~£S Mr. Richard Zogob 344 F Street, Suite 1O 1 Chula Vista, CA 91910 Mr. David Maizel 5560 La Jolla Blvd. Suite E La Jolla, CA 92037 Dear Richard and David: The following is an outline of the loan terms discussed on October 9, 1996, which represent your offer to settle negotiations: 1. A principal pay down of $250,000 of the $850,000 'present principal balance will be paid to the City of Chula Vista Redevelopment Agency upon signing a definitive agreement. 2. The owners will execute an ame_ndment to the note (or a replacement note) for the remaining principal balance of$600,00Ô)ecured against the property with the same lien priority as the Agency's original Deed of Trust, with six percent (6%) interest per annum. payable quarterly, principal pay downs of $15,000 per quarter, all due in three (3) years or upon sale or refinance of the property, whichever occurs first. 3. The owners will execute an amendment to the note (or a replacement note) for accrued interest, in the amount of $ 500,000 secured against the property with the sëme ¡iëõO põ;"r¡~y 3S ~hs /\geõ'c,/s ori";,,,,! Deed of Tr~:::t, ~"d"'r the s~m2 term::: ""d conditions, including principal pay down, as outlined in item #2 above. 4. The owners will execute an amendment to the note (or a replacement note) for the remaining accrued interest, estimated to be $670,975, secured against the property, under the same terms and conditions, as outlined in item #2 above, except there shall be no principal pay down and the interest shall accrue until the due date, which is three (3) years or upon sale or refinance of the property, whichever occurs first. On the due date, the property shall be appraised and the Agency shall receive a payment based upon the following formula: {(Ax95%) - $6,100,000} x 30% = B wherein A equals the appraised value on the due date (or in the event the due date is triggered by a sale of the property, then the actual sales price shall be used) ~-c/ý -u -",--" ,--, T f:~ ~, B t:-.;Jals the payment to the Agency $6,100,000 equals the mutually agreed upon .Current Value" of the property By way of example, if the property is appraised, on the due date, at $7,000,000, the payment to the Agency would be: {($7,000,000 x 95%)- $6,100,000} x 30% = $165,000 After payment of the percentage increase in value to the Agency, and provided there are no defaults in any of the loans, the balance of the accrued $670,975 interest note will be forgiven. 5. The additional interest ($290,000 kicker) will be amended, secured against the property with the same lien priority as the Agency's original Deed of Trust, accruing interest per annum at six percent (6%). all due and payable in three (3) years. In the event there has been no default in the other loans, the kicker loan .will be forgiven at the time the other agency loans are paid in full. 6. The owners will not make any distributions of any kind whatsoever to themselves or related parties until the Agency loans are paid in full. 7. There will be a cross-default between all four loans. 8. Borrower shall be responsible for payment of all reasonable Agency legal fees incurred in preparing and documenting the agreement. Agency shall use its best efforts to keep its legal fees at a minimum. 9. The proposal is subject to Agency's final approval of finalized loan modification documents in forms, and with such additional terms and conditions consistent with this agreement as may be approved or required by the Agency's legal counsel. If you concur with the above, please sign below and return to Community Development Department. Sincerely, ~ ç~~ Chris Salomone Community Development Director Ri~~ <~ «-;¡¿( ./) David Maizel = ~. Interest"-notes descr~Ed :in paragraphs #2 & #3 of this letter are to accrue sl111ple mterest @ 6% per annum beciínn:ing Nove:rùJer CS\JA'ah 1, 1996- Flrst quarterly pay¡ænt on the above notes to bea:in . February 1, 1997. - IAHIC,IWPWINIJUANILETTERSIZOG.MAI,L TAl 1-4S" AGENDA STATEMENT FOR THE CITY COUNCIL AND BOARDS OF DIRECTORS OF THE REDEVELOPMENT AGENCY. THE INDUSTRIAL DEVELOPMENT AUTHORITY. THE HOUSING AUTHORITY. AND THE PUBLIC FINANCING AUTHORITY Item S Meeting Date 7/22/97 ITEM TITLE: Resolution Approving an agreement with the law firm of Stradling. Yocca. Carlson & Rauth to provide Bond Counsel services and authorizing the Mayor to execute said agreement (Resolutions: coun~8734' Agency 1548, HA 5, IDA 34, PFA 2) SUBMITTED BY: 0;""", of Fi""," ¡ ~ REVIEWED BY: City Manager~ ~ /l (4/5ths Vote: Yes _No---2LI The City and the Agency have contracted with the same law firm to provide bond counsel services on all debt issues except certain assessment district issues since 1985. Staff felt that it would be beneficial to conduct a formal selection process for these services in order to make a determination whether or not a change was desirable. A Request for Proposals to provide bond counsel services for the City, Redevelopment Agency, Industrial Development Authority, Housing Authority, and Public Financing Authority was sent to fifteen municipal law firms. Eleven proposals were received and evaluated by a selection committee appointed by the City Manager comprised of the City Attorney, the Director of Community Development, and the Director of Finance. After interviewing the three firms deemed the best, the committee unanimously selected the firm of Stradling, Vocca, Carlson & Rauth (Stradling). RECOMMENDATION: That Council and the Boards of the Agency and various authorities adopt the resolution approving the agreement with the law firm of Stradling, Vocca, Carlson & Rauth, and authorizing the Mayor to execute the agreement. DISCUSSION: The City and the Agency have contracted with the law firm of Jones, Hall, Hill & White to provide bond counsel services on all debt issues except certain assessment district issues since 1985. Staff felt that it would be beneficial to conduct a formal selection process in order to determine if a change would be desirable. Fifteen municipal law firms were mailed a Request for Proposals to provide bond counsel services for the City, Redevelopment Agency, Industrial Development Authority, Housing Authority, and Public Financing Authority. 5-1 _.. .. .. Page 2, Item S' Meeting Date 7/15/97 Eleven proposals were received and evaluated by the Selection Committee based on the following criteria: A. The firm's experience and performance on comparable engagements with an emphasis on California. This criteria was applied by reviewing the number and type of issues in California during the last three years for which the firm acted as bond counsel. B. The quality of the firm's personnel to be assigned to the engagement and the quality of the personnel available for consultation. This criteria was applied by reviewing the resumes of the specific personnel proposed to work with the City and various authorities. C. The firm's demonstrated understanding of the work to be performed and comprehensiveness of the work plan proposed. This criteria was applied by reviewing that part of each proposal which described the philosophy of the firm as far as client service, the firm's perception of their role in the debt issuance process vis-a-vis the roles of the issuer and other financing team members, and the firm's commitment to ongoing consultation regarding financing issues whether or not a specific transaction is in process. D. Price. This criteria was evaluated by asking for a dollar cost as a proportion of issue size for three different debt types, General Fund Revenue Bonds or Certificates of Participation, Redevelopment Agency Tax Allocation Bonds, and Housing Bonds. The top three rated proposers, Stradling, Jones, Hall, Hill & White/Luce, Forward, Hamilton & Scripps, and Orrick, Herrington & Sutcliffe were then interviewed by the Selection Committee. Following this process, the Committee unanimously agreed to recommend the selection of Stradling. Although all three finalists are very capable of handling the technical issues involved in any contemplated debt transaction, the committee felt that Stradling was more focused on the type of debt that the City and related entities would be concerned with based on their involvement with other California governmental entities similar in size and complexity to Chula Vista. In addition, Stradling offered the lowest price of the three finalists, with an average cost of $31,833 as compared to $35,000 for Jones, Hall, Hill & White/Luce, Forward, Hamilton & Scripps, and $42,500 for Orrick, Herrington & Sutcliffe. ,ó- -do - - Page 3. Item S Meeting Date 7/15/97 Stradling, Vocca, Carlson & Rauth is made up of eighty-five attorneys, handling matters in substantially all aspects of the law except divorce and criminal work. Their primary focus is on public finance, public law, tax, general corporate law, corporate securities, real estate, litigation, labor, estate planning, pension and profit sharing. Twenty-two members of the firm are engaged in public finance and public law. During each of the last six years, Stradling, Vocca, Carlson & Rauth has ranked among the top five public finance law firms in the State based on both the number of issues and dollar volume of issues. Their experience in the areas of Redevelopment, Housing, and Industrial Development are especially impressive. The firm's main office is located in Newport Beach, with an additional office in San Francisco. Stradling has some familiarity with the City, having acted as underwriter's counsel on the issues for Assessment District 90-2 (Otay Valley Road) and Assessment District 92-2 (Autopark). The contract is presented as a long-term arrangement with no termination date, but terminating upon 30 days notice by either the City or the contractor. This is preferable since the City may go for periods of up to two or three years without the need for bond counsel services. The cost of the services will vary with the size and type of debt issue, but just for information purposes, bond counsel services for a $10 million General Fund, Housing, or Industrial Development issue would be $35,000 plus expenses, while a similar size Tax Allocation Bond issue would cost $30,500 plus expenses. FISCAL IMPACT: There is no direct fiscal impact as a result of the recommended action. The fiscal impact upon future debt issues will vary depending on the size and type of the issue. All costs to be incurred under the subject contract will be paid solely from the proceeds of each particular transaction and therefore become part of the long-term debt cost of issuance. $-..3 - . Schedule I PROPOSALS RECEIVED FOR BOND COUNSEL SERVICES 1) BEST, BEST & KRIEGER LLP 2) BROWN, DIVEN & HENTSCHKE 3) BROWN & WOOD LLP 4) FULBRIGHT & JAWORSKI LLP 5) HAWKINS, DELAFIELD & WOOD 6) JONES HALL HILL & WHITE AND LUCE, FORWARD, HAMILTON & SCRIPPS LLP * 7) MUSICK, PEELER & GARRETT LLP 8) O'MELVENY & MYERS LLP 9) ORRICK, HERRINGTON & SUTCLIFFE LLP * 10) PRESTON GATES & ELLIS LLP 11) STRADLING, YOCCA, CARLSON & RAUTH * * Indicates Finalist 4"...5' - . Agreement between City of Chula Vista, Redevelopment Agency of the City of Chula Vista, Housing Authority of the City of Chula Vista, Industrial Development Authority of the City of Chula Vista, the Public Financing Authority of the City of Chula Vista and Stradling, Yocca, Carlson & Rauth for Bond Counsel Services related to various financings and refinancings to take place over the term of the agreement. This agreement ("Agreement"), dated July 15, 1997 for the purposes of reference only, and effective as of the date last executed unless another date is otherwise specified in Exhibit A, Paragraph 1 is between the City-related entity as is indicated on Exhibit A, paragraph 2, as such ("city"), whose business form is set forth on Exhibit A, paragraph 3, and the entity indicated on the attached Exhibit A, paragraph 4, as Consultant, whose business form is set forth on Exhibit A, paragraph 5, and whose place of business and telephone numbers are set forth on Exhibit A, paragraph 6 ("Consultant"), and is made with reference to the following facts: Recitals Whereas, Stradling, Yocca, Carlson & Rauth possesses the requisite expertise and knowledge to assist the city/Agency in providing requisite bond counsel services; and, Whereas, City of Chula Vista, the Redevelopment Agency of the city of Chula Vista, the Housing Authority of the City åf Chula Vista, the Industrial Development Authority of the City of Chula Vista, and the Public Financing Authority of the City of Chula Vista, all hereafter referred to as "City" are desirous of taking advantage of said knowledge and expertise; and, Whereas, Consultant warrants and represents that they are experienced and staffed in a manner such that they are and can prepare and deliver the services required of Consultant to City/Agency within the time frames herein provided all in accordance with the terms and conditions of this Agreement; $-(, - - Obligatory Provisions Pages NOW, THEREFORE, BE IT RESOLVED that the City/Agency and Consultant do hereby mutually agree as follows: 1. Consultant's Duties A. General Duties Consultant shall perform all of the services described on the attached Exhibit A, Paragraph 7, entitled "General Duties". The General Duties shall be herein referred to as the "Defined Services". Failure to complete the Defined Services does not, except at the option of the City, operate to terminate this Agreement. B. Reductions in Scope of Work city may independently, or upon request from Consultant, from time to time reduce the Defined Services to be performed by the Consultant under this Agreement. Upon doing so, City and Consultant agree to meet in good faith and confer for the purpose of negotiating a corresponding reduction in the compensation associated with said reduction. C. Additional Services In addition to performing the Defined Services herein set forth, City may require Consultant to perform additional consulting services related to the Defined Services ("Additional Services"), and upon doing so in writing, city and Consultant agree to meet in good faith and confer for the purpose of negotiating a corresponding increase in the compensation associated with said additional services. D. Standard of Care Consultant, in performing any Services under this agreement, whether Defined Services or Additional Services, shall perform in a manner consistent with that level of care and skill ordinarily exercised by members of the profession currently practicing under similar conditions and in similar locations. E. Insurance Consultant represents that it and its agents, staff and subconsultants employed by it in connection with the Services required to be rendered, are protected against the risk of loss by the following insurance coverages, in the following categor- ies, and to the limits specified, policies of which are issued by Insurance Companies that have a Best's Rating of "A, Class V" or better, or shall meet with the approval of the city: 2 .5-7 -.. .. .. statutory Worker's Compensation Insurance and Employer's Liability Insurance coverage in the amount set forth in the attached Exhibit A, Paragraph 8. Commercial General Liability Insurance including Business Automobile Insurance coverage in the amount set forth in Exhibit A, Paragraph 8, combined single limit applied separately to each project away from premises owned or rented by Consultant, which names city as an Additional Insured, and which is primary to any policy which the City may otherwise carry ("Primary Coverage"), and which treats the employees of the City in the same manner as members of the general public ("Cross-liability Coverage"). Errors and omissions insurance, in the amount set forth in Exhibit A, Paragraph 8, unless Errors and omissions coverage is included in the General Liability policy. F. Proof of Insurance Coverage. (1) Certificates of Insurance. Consultant shall demonstrate proof of coverage herein required, prior to the commencement of services required under this Agreement, by delivery of certificates of Insurance demonstrating same, and further indicating that the policies may not be canceled without at least thirty (30) days written notice to the Additional Insured. (2) Policy Endorsements Required. In order to demonstrate the Additional Insured Coverage, Primary Coverage and Cross-liability Coverage required under Consultant's Commercial General Liability Insurance Policy, Consultant shall deliver a policy endorsement to the City demonstrating same, which shall be reviewed and approved by the Risk Manager. G. Business License Consultant agrees to obtain a business license from the city and to otherwise comply with Title 5 of the Chula Vista Municipal Code. 2. Duties of the City A. Consultation and Cooperation City shall regularly consult the Consultant for the purpose of reviewing the progress of the Defined Services and Schedule therein contained, and to provide direction and guidance to achieve the objectives of this agreement. The City shall permit 3 5'-~ - - access to its office facilities, files and records by Consultant throughout the term of the agreement. B. Compensation Consultant shall be compensated in accordance with Exhibit A, Paragraph 9. 3. Administration of Contract Each party designates the individuals ("Contract Administrators") indicated on Exhibit A, Paragraph 10, as said party's contract administrator who is authorized by said party to represent them in the routine administration of this agreement. 4. Term. This Agreement shall terminate upon 30 days written notice by either party. 5. Liquidated Damages The provisions of this section apply if a Liquidated Damages Rate is provided in Exhibit A, Paragraph 11. It is acknowledged by both parties that time is of the essence in the completion of this Agreement. It is difficult to estimate the amount of damages resulting from delay in per- formance. The parties have used their judgment to arrive at a reasonable amount to compensate for delay. Failure to complete the Defined Services within the allotted time period specified in this Agreement shall result in the following penalty: For each consecutive calendar day in excess of the time specified for the completion of the respective work assignment or Deliverable, the consultant shall pay to the City, or have withheld from monies due, the sum of Liquidated Damages Rate provided in Exhibit A, Paragraph 11 ("Liquidated Damages Rate"). Time extensions for delays beyond the consultant's control, other than delays caused by the City, shall be requested in writing to the City's Contract Administrator, or designee, prior to the expiration of the specified time. Extensions of time, when granted, will be based upon the effect of delays to the work and will not be granted for delays to minor portions of work unless it can be shown that such delays did or will delay the progress of the work. 6. Financial Interests of Consultant A. Consultant is Designated as an FPPC Filer. 4 S'-'1 -- . . If Consultant is designated on Exhibit A, Paragraph 15, as an "FPPC filer", Consultant is deemed to be a "Consultant" for the purposes of the Political Reform Act conflict of interest and disclosure provisions, and shall report economic interests to the City Clerk on the required statement of Economic Interests in such reporting categories as are specified in Paragraph 15 of Exhibit A, or if none are specified, then as determined by the City Attorney. B. Decline to Participate. Regardless of whether Consultant is designated as an FPPC Filer, Consultant shall not make, or participate in making or in any way attempt to use Consultant's position to influence a governmental decision in which Consultant knows or has reason to know Consultant has a financial interest other than the compensation promised by this Agreement. C. Search to Determine Economic Interests. Regardless of whether Consultant is designated as an FPPC Filer, Consultant warrants and represents that Consultant has diligently conducted a search and inventory of Consultant's economic interests, as the term is used in the regulations promulgated by the Fair Political Practices Commission, and has determined that Consultant does not, to the best of Consultant's knowledge, have an economic interest which would conflict with Consultant's duties under this agreement. D. Promise Not to Acquire Conflicting Interests. Regardless of whether Consultant is designated as an FPPC Filer, Consultant further warrants and represents that Consultant will not acquire, obtain, or assume an economic interest during the term of this Agreement which would constitute a conflict of interest as prohibited by the Fair Political Practices Act. E. Duty to Advise of Conflicting Interests. Regardless of whether Consultant is designated as an FPPC Filer, Consultant further warrants and represents that Consultant will immediately advise the City Attorney of City if Consultant learns of an economic interest of Consultant's which may result in a conflict of interest for the purpose of the Fair Political Practices Act, and regulations promulgated thereunder. F. Specific Warranties Against Economic Interests. Consultant warrants and represents that neither Consultant, nor Consultant's immediate family members, nor Consultant's employees or agents ("Consultant Associates") presently have any interest, directly or indirectly, whatsoever in any property 5 S-IO - - which may be the subject matter of the Defined Services, or in any property within 2 radial miles from the exterior boundaries of any property which may be the subject matter of the Defined Services, ("Prohibited Interest"), other than as listed in Exhibit A, Paragraph 12. Consultant further warrants and represents that no promise of future employment, remuneration, consideration, gratuity or other reward or gain has been made to Consultant or Consultant Associates in connection with Consultant's performance of this Agreement. Consultant promises to advise City of any such promise that may be made during the Term of this Agreement, or for 12 months thereafter. Consultant agrees that Consultant Associates shall not acquire any such Prohibited Interest within the Term of this Agreement, or for 12 months after the expiration of this Agreement, except with the written permission of city. Consultant may not conduct or solicit any business for any party to this Agreement, or for any third party which may be in conflict with Consultant's responsibilities under this Agreement, except with the written permission of city. 7. Hold Harmless Consultant shall indemnify and hold harmless the city, its elected and appointed officers and employees, from and against all claims for damages, liability, cost and expense (including without limitation attorneys' fees) arising out of the conduct of the Consultant, or any agent or employee, subcontractors, or others in connection with the execution of the work covered by this Agreement, except only for those claims arising from the sole negligence or sole willful misconduct of the City, its officers, or employees. Consultant's indemnification shall in- clude any and all costs, expenses, attorneys' fees and liability incurred by the City, its officers, agents, or employees in defending against such claims, whether the same proceed to judgment or not. Further, except with respect to claims based upon Consultant's professinal errors or omissions, Consultant at its own expense shall, upon written request by the City, defend any such suit or action brought against the City, its officers, agents, or employees. Consultants' indemnification of City shall not be limited by any prior or subsequent declaration by the Consultant. Consultant's contractual indemnity obligations hereunder shall in no event exceed $35,000,000. 8. Termination of Agreement for Cause If, through any cause, Consultant shall fail to fulfill in a timely and proper manner Consultant's obligations under this Agreement, or if Consultant shall violate any of the covenants, 6 .5"-11 - - - . agreements or stipulations of this Agreement, city shall have the right to terminate this Agreement by giving written notice to Consultant of such termination and specifying the effective date thereof at least five (5) days before the effective date of such termination. In that event, all finished or unfinished documents, data, studies, surveys, drawings, maps, reports and other materials prepared by Consultant shall, at the option of the City, become the property of the City, and Consultant shall be entitled to receive just and equitable compensation for any work satisfactorily completed on such documents and other materials up to the effective date of Notice of Termination, not to exceed the amounts payable hereunder, and less any damages caused City by Consultant's breach. 9. Errors and omissions In the event that the City Administrator determines that the Consultants' negligence, errors, or omissions in the performance of work under this Agreement has resulted in expense to City greater than would have resulted if there were no such negligence, errors, omissions, Consultant shall reimburse City for any additional expenses incurred by the City. Nothing herein is intended to limit City's rights under other provisions of this agreement. 10. Termination of Agreement for Convenience of City City may terminate this Agreement at any time and for any reason, by giving specific written notice to Consultant of such termination and specifying the effective date thereof, at least thirty (30) days before the effective date of such termination. In that event, all finished and unfinished documents and other materials described hereinabove shall, at the option of the city, become City's sole and exclusive property. If the Agreement is terminated by City as provided in this paragraph, Consultant shall be entitled to receive just and equitable compensation for any satisfactory work completed on such documents and other materials to the effective date of such termination. Consultant hereby expressly waives any and all claims for damages or compensation arising under this Agreement except as set forth herein. 11. Assignability The services of Consultant are personal to the City, and Consultant shall not assign any interest in this Agreement, and shall not transfer any interest in the same (whether by assignment or novation), without prior written consent of City. City hereby consents to the assignment of the portions of the Defined services identified in Exhibit A, Paragraph 17 to the subconsultants identified thereat as "Permitted Subconsultants". 7 .5'-/2.. - - 12. Ownership, Publication, Reproduction and Use of Material All reports, studies, information, data, statistics, forms, designs, plans, procedures, systems and any other materials or properties produced under this Agreement shall be the sole and exclusive property of city. No such materials or properties produced in whole or in part under this Agreement shall be subject to private use, copyrights or patent rights by Consultant in the united states or in any other country without the express written consent of City. city shall have unrestricted authority to publish, disclose (except as may be limited by the provisions of the Public Records Act), distribute, and otherwise use, copyright or patent, in whole or in part, any such reports, studies, data, statistics, forms or other materials or properties produced under this Agreement. 13. Independent Contractor city is interested only in the results obtained and Consultant shall perform as an independent contractor with sole control of the manner and means of performing the services required under this Agreement. city maintains the right only to reject or accept Consultant's work products. Consultant and any of the Consultant's agents, employees or representatives are, for all purposes under this Agreement, an independent contractor and shall not be deemed to be an employee of city, and none of them shall be entitled to any benefits to which City employees are entitled including but not limited to, overtime, retirement benefits, worker's compensation benefits, injury leave or other leave benefits. Therefore, City will not withhold state or federal income tax, social security tax or any other payroll tax, and Consultant shall be solely responsible for the payment of same and shall hold the City harmless with regard thereto. 14. Administrative Claims Requirements and Procedures No suit or arbitration shall be brought arising out of this agreement, against the City unless a claim has first been presented in writing and filed with the City and acted upon by the City in accordance with the procedures set forth in Chapter 1.34 of the Chula Vista Municipal Code, as same may from time to time be amended, the provisions of which are incorporated by this reference as if fully set forth herein, and such policies and procedures used by the City in the implementation of same. Upon request by City, Consultant shall meet and confer in good faith with City for the purpose of resolving any dispute over the terms of this Agreement. 8 .:r - 13 15. Attorney's Fees Should a dispute arising out of this Agreement result in litigation, it is agreed that the prevailing party shall be entitled to recover all reasonable costs incurred in the defense of the claim, including costs and attorney's fees. 16. Statement of Costs In the event that Consultant prepares a report or document, or participates in the preparation of a report or document in performing the Defined Services, Consultant shall include, or cause the inclusion of, in said report or document, a statement of the numbers and cost in dollar amounts of all contracts and subcontracts relating to the preparation of the report or document. 17. Miscellaneous A. Consultant not authorized to Represent City Unless specifically authorized in writing by City, Consult- ant shall have no authority to act as City's agent to bind city to any contractual agreements whatsoever. B. Consultant is Real Estate Broker and/or Salesman If the box on Exhibit A, Paragraph 13 is marked, the Consultant and/or their principals is/are licensed with the State of California or some other state as a licensed real estate broker or salesperson. Otherwise, Consultant represents that neither Consultant, nor their principals are licensed real estate brokers or salespersons. C. Notices All notices, demands or requests provided for or permitted to be given pursuant to this Agreement must be in writing. All notices, demands and requests to be sent to any party shall be deemed to have been properly given or served if personally served or deposited in the United States mail, addressed to such party, postage prepaid, registered or certified, with return receipt requested, at the addresses identified herein as the places of business for each of the designated parties. D. Entire Agreement This Agreement, together with any other written document referred to or contemplated herein, embody the entire Agreement and understanding between the parties relating to the subject matter hereof. Neither this Agreement nor any provision hereof 9 5-1'/ may be amended, modified, waived or discharged except by an instrument in writing executed by the party against which enforcement of such amendment, waiver or discharge is sought. E. Capacity of Parties Each signatory and party hereto hereby warrants and represents to the other party that it has legal authority and capacity and direction from its principal to enter into this Agreement, and that all resolutions or other actions have been taken so as to enable it to enter into this Agreement. F. Governing Law/Venue This Agreement shall be governed by and construed in accordance with the laws of the state of California. Any action arising under or relating to this Agreement shall be brought only in the federal or state courts located in San Diego County, State of California, and if applicable, the City of Chula Vista, or as close thereto as possible. Venue for this Agreement, and performance hereunder, shall be the City of Chula vista. 18. Arbitration In the event of a dispute regarding fees, costs or any other matter arising out of or related in any way whatsoever to this Agreement, including the quality of the services rendered by Consultant, the dispute shall be determined, settled and resolved by confidential arbitration in San Diego, California. Any award shall be final, binding and conclusive upon the parties, and a judgment rendered thereon may be entered in any court having jurisdiction thereof. Arbitration may be demanded by the sending of written notice to the other party. If arbitration is demanded, within 20 days of the demand you shall present a list of five qualified individuals who would be willing to serve that you would find acceptable to act as arbitrator. To serve as arbitrator, the individual must be a retired judge having served on any federal court or the California Superior Court or higher court i the State of California. within 20 days of receiving your list, we may at our sole discretion (i) select any individual from that list and that individual shall serve as the arbitrator, or (ii) propose our own list of five individuals for arbitrator. If we choose to present a separate list you may within 20 days select any individual from that list and that person shall serve as arbitrator. If no arbitrator can be agreed upon at the end of this process, each of us shall select one individual from our own respective list and those two persons shall jointly select the arbitrator. The arbitration shall be conducted pursuant to the procedures set forth in the California Code of civil Procedure sections 1280 et seq., and in that connection you and we agree 10 ~-IS- that section 1283.05 thereof is applicable to any such arbitration. Nothing herein shall limit the right of the parties to stipulate and agree to conduct the arbitration pursuant to the then-current rules of the American Arbitration Association, the Judicial Arbitration & Mediate Services, or any other agreed upon arbitration services provider. 11 oS-If. Signature Page to stradling, Yocca, Carlson & Rauth Agreement for Bond Counsel Services IN WITNESS WHEREOF, City and Consultant have executed this Agreement thereby indicating that they have read and understood same, and indicate their full and complete consent to its terms: Dated: , 19 - City of Chula vista Redevelopment Agency of the city of Chula vista Housing Authority of the City of Chula vista Industrial Development Authority of the City of Chula vista Public Finance Authority of the City of Chula vista by: Shirley Horton, Mayor/Chair Attest: Beverly Authelet, city Clerk Approved as to form: John Kaheny, City Attorney Dated: Stradling, Yocca, Carlson & Rauth By; Exhibit List to Agreement ( X) Exhibit A. ( ) Exhibit B: 12 5-11 - - Exhibit A to Agreement between City of Chula Vista, Redevelopment Agency of the City of Chula vista, Housing Authority of the City of Chula vista, Industrial Development Authority of the city of Chula Vista, and the Public Financing Authority of the City of Chula Vista, and Stradlinq. Yocca. Carlson & Rauth 1. Effective Date of Agreement: July 15, 1997 2. City-Related Entity: city of Chula Vista and Redevelopment Agency of the City of Chula vista, Housing Authority of the City of Chula vista, Industrial Development Authority of the City of Chula Vista, and the Public Financing Authority of the City of Chula Vista, political subdivisions of the State of california 3. Place of Business for City: City of Chula Vista, 276 Fourth Avenue, Chula Vista, CA 91910 4. Consultant: Stradling, Yocca, Carlson & Rauth 5. Business Form of Consultant: ( ) Sole Proprietorship ( ) Partnership ( X ) Corporation 6. Place of Business, Telephone and Fax Number of Consultant: Stradling, Yocca, Carlson & Rauth 660 Newport Center Drive, Suite 1600 Newport Beach, CA 92660 (714) 725-4166 Fax (714) 725-4100 7. General Duties: A. Consultant shall perform all of the following services as are necessary for the issuance of bonds or ongoing debt management: 1. Provide ongoing legal advice concerning the financing issues which arise during the term of the agreement. .:r -If 2. Consult with staff, underwriters, and financial advisors in providing legal advice 7oncerning the structure of contemplated debt J.ssues. 3. Preparation of all legal proceedings deemed necessary or advisable for the authorization, issuance, and delivery of Bonds; including preparation of (i) any documentation required for the loan of Bond proceeds, any Indenture of Trust, Trust Agreements, resolutions, or other documents authorizing the issuance of the Bonds, all agreements providing collateral security for the Bonds except as may be within the scope of responsibility of any attorneys representing other parties to the transaction, {H} all necessary resolutions, notices of hearings, California Debt Advisory Commission filings and other reports and documents, (Hi) all certificates, deeds, requisitions, receipts and other documents required in connection with the delivery of the Bonds to the original purchaser thereof, and {iv} all other proceedings of the Agency incidental to or in connection with the issuance, sale and delivery of the Bonds. 4. Application for any Internal Revenue Service or other rulings deemed necessary by Contractor and staff to insure the exemption of interest on the Bonds from federal or, if applicable, state personal income taxation. S. Provide a legal opinion (i) unqualifiedly approving in all respects the legality of all proceedings of the transaction for the authorization, issuance and delivery of the Bonds and related agreements to which the City/Agency is a party, and (H) stating that interest on the Bonds is exempt from federal and state personal income taxation, subject only to any qualifications as may be customary under and as required by applicable federal tax law. Such opinion, shall be addressed to the City/Agency, provided, however, that such opinion shall inure to the benefit of the owners of the Bonds and Contractors shall be entitled to execute letters to other interested parties entitling such parties to rely upon such opinion. In addition, subject to the completion of proceedings to the satisfaction of Contractor, Contractor shall 2 S" -19 - - provide such additional legal opinions to the City/Agency, the original purchaser of the Bonds, and other interested parties as shall be requested of and deemed appropriate by contractor. 6. Participation in the preparation of the Official Statement, including verification of the accuracy, completeness and legality of the description of the Bonds, legal documents prepared by Contractor, and all other matters relating to the validity of the securities. 7. Such other services as are customarily performed by bond counsel on similar financing transactions. B. Date for Commencement of Consultant Services: (X) Same as Effective Date of Agreement ( ) Other: C. Date for completion of all Consultant services: Termination of Agreement by written notice from either party. 8. Scope of Work and Schedule: See Section 7 above. 9. Insurance Requirements: (X) Statutory Worker's Compensation Insurance ( ) Employer's Liability Insurance coverage: $1,000,000. (X) Commercial General Liability Insurance: $1,000,000. ( ) Errors and omissions insurance: None Required (included in Commercial General Liability coverage). (X) Errors and Omissions Insurance: $10,000,000 (not included in Commercial General Liability coverage). 10. Materials Required from City: None 3 S-~ 11. Compensation: A. (X) Single Fixed Fee Arrangement. For performance of all of the Defined Services by Consultant as herein required, city shall pay a single fixed fee in the amounts and at the times or milestones or for the Deliverables set forth below: Single Fixed Fee Amount Payable at Closing of Bond Sale: Public Aqency Revenue Bonds and Certificates of Participation Total Principal Amount of Bonds Sold Fee $5,000,000 or less $15,000 plus .25 of 1 % of the excess over $1,000,000 $5,000,001 to $10,000,000 $25,000 plus .20 of 1 % of the excess over $5,000,000 $10,000,001 or more $35,000 plus .10 of 1 % of the excess over $10,000,000 Tax Allocation Bonds Total Principal Amount of Bonds Sold Fee $5,000,000 or less $15,000 plus .20 of 1 % of the excess over $1,000,000 $5,000,001 or more $23,000 plus .15 of 1 % of the excess over $5,000,000 Housinl!: Bonds. IDB's (Private Oblil!:ors) Total Principal Amount of Bonds Sold Fee $5,000,000 or less $30,000 $5,000,001 and above $30,000 plus .10 of 1 % of the excess over $5,000,000 4 oS' -.2../ 12. Materials Reimbursement Arrangement: In addition to the foregoing fees, Consultant will be reimbursed for out-of-pocket expenses incurred, including document production and reproduction, travel, telecommunications, messenger services, and other document delivery services. 13. Contract Administrators: City: Robert W. Powell, Finance Director Consultant: Robert J. Whalen, Esq. 14. Liquidated Damages Rate: ( ) Other: None 15. statement of Economic Interests, Consultant Reporting Categories, per Conflict of Interest Code: (X ) Not Applicable. Not an FPPC Filer. 16. ( ) Consultant is Real Estate Broker and/or Salesman 17. Permitted Subconsultants: None 18. Bill Processing: A. Compensation is payable upon submission of invoice at bond closing out of bond proceeds. B. City's Account Number: Bond Proceeds 19. Security for Performance: N/A 5 S'" -.;J.d.., - ' HOUSING AUTHORITY AGENDA STATEMENT Item " Meeting Date 07/22/97 ITEM TITLE: RESOLUTION (, APPROVING FISCAL YEAR 1997.9B CHULA VISTA HOUSING AUTHORITY BUDGET AND APPROPRIATING ANTICIPATED REVENUES ON ONE THOUSAND FIVE HUNDRED DOLLARS ($1,500) SUBMITTED BY: Community Development Director L- S. REVIEWED BY: CO, M...,.. ~ ~ (4/5ths Vote: YesÅ No-1 BACKGROUND: The City Council designated officers and adopted bylaws for the Chula Vista Housing Authority on June 27, 1995 as H.A. Resolution 1. Being a separate entity from the City of Chula Vista, the Chula Vista Housing Authority must approve and adopt a budget in order to appropriate funds. RECOMMENDATION: That the Chula Vista Housing Authority approve the resolution adopting the 1997. 9B budget and appropriating anticipated revenues of One Thousand Five Hundred Dollars ($1,500), which will come from the FY 1997.9B CDBG Administration and Planning Account. BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. DISCUSSION: According to the Bylaws adopted on June 27, 1995, Article II Section 7, "Commissioners shall receive Fifty Dollars ($50) per day for attending meetings of the Authority, but not for more than four meetings per month. Pursuant to City Resolution 17022, the Director, Assistant Director, Legal Counsel, Secretary and Finance Oirector shall serve the Authority without additional compensation but may be compensated for travel and other incidental expenses incurred while on Housing Authority business." Given the Chula Vista Housing Authority has five designated commissioners, one meeting will cost Two Hundred and Fifty Dollars ($250), without an allowance for travel and subsistence expenses. It is estimated that the Chula Vista Housing Authority will have one meeting per quarter, netting the per diem expense at One Thousand Dollars ($1,000). An allowance for travel and office supply expenses is recommended to be appropriated at Five Hundred Dollars ($500). This would allow for expenses that may possibly be incurred to attend special meetings held at the Housing and Urban Development Office in Los Angeles and for training materials that may be needed. The FY 1997.9B Housing Authority Budget is outlined below: (. -I - - - . Page 2, Item 1L Meeting Date 07122197 1997.98 HOUSING AUTHORITY BUDGET REVENUES Account # Source Amount 930.3692 CD86 Admin (652.6521.86218) $1,500 Total Revenues $1,500 EXPENDITURES Illi Account # 930.9300.5221 Travel $ 250 930.9300.5301 Office Supplies & Materials $ 250 930.9300.5444 Commissioners' Compensation $1,000 Total Expenditures $1.500 FISCAL IMPACT: The budget appropriated by this action will be funded by revenues from CDB6 Administration funds, which has adequate funds appropriated in account number 652.6521.86218. The fiscal impact of this appropriation will have insignificant consequences on CD8G Administrative financial needs. IJAI H:\HOME\COMMOEVISTAFF.REP\O7-22.97\HABUOGET IJuly 11, lS97 14:0Bpmll '-,). - RESOLUTION NO. ~ RESOLUTION OF THE HOUSING AUTHORITY OF THE CITY OF CHULA VISTA APPROVING FISCAL YEAR 1997-98 BUDGET AND APPROPRIATING ANTICIPATED REVENUES OF ONE THOUSAND FIVE HUNDRED DOLLARS ($1,500) WHEREAS, the City created a Housing Authority pursuant to the Housing Authorities Law of the State of California; and WHEREAS, the effective functioning of the Housing Authority will necessitate the approval and adoption of the Fiscal year 1997-98 Chula Vista Housing Authority budget. NOW, THEREFORE, BE IT RESOLVED the Housing Authority of the City of Chula Vista does hereby find, order, determine and resolve to approve and adopt the Fiscal Year 1997-98 budget as follows: 1997-98 HOUSING AUTHORITY BUDGET REVENUES Account # Source Amount 930-3692 CDBG Admin (652-6521-BG218) $1,500 Total Revenues $1,500 EXPENDITURES ~ Account # 930-9300-5221 Travel $ 250 930-9300-5301 Office Supplies & Materials $ 250 930-9300-5444 Commissioners' Compensation $1,000 Total Expenditures $1,500 Presented by Approved as to form by &-~ ~~. ¿ - - Chris Salomone Director of Community Development [(JAI H,\HOMEICOMMDEV\RESOS\HABUDGET IJ"IV 11,1997 14,13pm)} '-.3 - - - ..