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Home My WebLink AboutRDA Packet 1997/05/06 "1 declare un~er oon~lty of perjury th2t 'am emplov01[)'tc"'¡"'ç~ ",,'0 "':"0 Com"",," t, ,. oc "" ',',ct ' posted this ,"¡en ':,! ,: 1..0 Public ~ervce3.u.:': n. " .. ," ,,:!I 01 Tuesday, May 6, 1997 DATE,~SIGNEDYJqH '¡f ,(k~, I ( .Council Chambers 4:00 p.m. '1 Public Services Building (immediately following the City Council meeting) Joint Meeting of the Redevelopment Agencv/Council of the Citv of Chula Vista CALL TO ORDER L ROLL CALL: Agency/Council Members Moot -' Padilla -' Rindone -' Salas -' and Chair/Mayor Honon- CONSENT CALENDAR ( Items 2 through 4 ) (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: April 15, 1997 3. JOINT COUNCIL RESOLUTION 18646 AGENCY RESOLUTION 1537 AUTHORIZING STAFF TO NEGOTIATE THE ACQUISITION OF PROPERTY LOCATED AT 3554 MAIN STREET FOR THE PURPOSES OF SITING THE PROPOSED OTAY GYMNASIUM PROJECTuThe Otay Gynmasium Capital Improvement Program project was approved as pan of the Otay Park Master Plan in November 1994. Staff and the Chula Vista Elementary School district discussed a joint-use effon to locate the gynmasium on school district property. Due to a variety of issues and concerns, staff investigated the feasibility of constructing the gynmasium on non-school property, Staff recommends approval of the resolution. (Director of Community Development and Director of Parks. Recreation and Open Space) 4, COUNCIL RESOLUTION 18647 APPROVING AN AGREEMENT OF PURCHASE AND SALE AND ESCROW INSTRUCTIONS BETWEEN THE CITY OF CHULA VISTA AND SAN DIEGO UNIFIED PORT DISTRICT FOR MARINA VIEW PARK--ln November 1996, Council approved the terms and conditions for sale of the City's 2,7 acre portion of Marina View Park with the condition that the Port District agree to meet and confer with the City before considering any proposed land use change for the public park. The Purchase and Sale Agreement for Marina View Park, including the meet and confer provision, is presented for final approval, Staff recommends approval of the resolution, (Director of Community Development) . . . END OF CONSENT CALENDAR' . . ADJOURNMENT TO CITY COUNCIL MEETING At this time, the Redevelopment Agency will adjourn to the Council meeting. - - Agenda -2- May 6, 1997 ORAL COMMUNICATIONS This is an opportunity for the general public to address the Redevelopment Agency on any subject matter within the Agency's jurisdiction that is not an item on this agenda. (Stale law, however, generally prohibits the Redevelopment Agency from taking action on any issues not incladed on the posted agenda.) If you wish to address the Agency on such a subject, please complete the "Request to Speak Under Oral Communications Form" available in the lobby and submit it to the Secretary to the Redevelopment Agency or City Clerk prior to the meeting. Those who wish to speak, please give your name and address for record purposes and follow up action. PUBLIC HEARINGS AND RELATED RESOLUTIONS AND ORDINANCES The following items have been advertised and/or posted as public hearings as required by law. If you wish to speak to any item, please fill out the "Request to Speak Form" available in the lobby and submit it to the Redevelopment Agency or the City Clerk prior to the meeting. 5. PUBLIC HEARING: 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 be continued to the meeting of May 20, 1997. (Director of Community Development) ACTION ITEMS The items listed in this section of the agenda are expected to elicit substantial discussions and deliberations by the Agency/Council, staff, or members of the general public. The items will be considered individually by the Agency/Council and staffrecommendations may in certain cases be presented in the alternative. Those who wish to speak, please fill out a "Request to Speak" form available in the lobby and submit it to the Secretary to the Redevelopment Agency or the City Clerk prior to the meeting. 6, JOINT COUNCIL RESOLUTION 18648 AGENCY RESOLUTION 1538 APPROVING A SECOND AMENDMENT TO THE EXISTING AGREEMENT WITH PACIFIC BAY HOMES AND THE CITY OF CHULA VISTA TO PROVIDE LOW AND MODERATE INCOME HOUSING AND TRANSFER THE UNUSED PORTION OF THE PER UNIT SUBSIDY FOR USE IN SALT CREEK RANCH FOR DEVELOPMENT AND PROCESSING FEES FOR THE CONSTRUCTION OF AFFORDABLE HOUSING UNlTS--On 3/3/92, Pacific Bay Homes entered into an agreement with the City to provide low and moderate income housing units in Salt Creek I in confoffilance with the City's Housing Element, On 6/30/92, Council approved an assistance program to utilize the subsidy fund provided by Pacific Bay Homes. Pacific Bay Homes has advised staff that the units located in Cabo have been sold to low-income persons without using the subsidy. Staff has reviewed income documentation on the purchasers and has determined that Pacific Bay Homes has met their affordable housing obligation per the agreement. Staff recommends approval of the resolution, (Community Development Director) .. -. - - Agenda -3- May 6, 1997 ITEMS PULLED FROM THE CONSENT CALENDAR This is the time the Redevelopment Agency 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 Agency/Council Members. OTHER BUSINESS 7. DIRECTOR'S/CITY MANAGER'S REPORT(S) 8. CHAIR'SIMAYOR'S REPORT(S) 9. AGENCY/COUNCIL MEMBER COMMENTS ADJOURNMENT The meeting will adjourn to the Regular Redevelopment Agency Meeting on May 20, 1997 at 6:00 p.m" immediately following the City Council meeting, in the City Council Chambers, * * * * * CLOSED SESSION Unless Agency Counsel, the Executive Director, or the Redevelopment Agency stales otherwise al this time, the Agency will discuss and deliberate on the following item(s) of business which are permitted by law to be the subject of a closed session discussion, and which the Agency is advised should be discussed in closed session to best protect the interests of the City. The Agency is required by law to return to open session, issue any reports of.fi!!!J1 action taken in closed session, and the votes taken. However, due to the typical length of time taken up by closed sessions, the videotaping will be terminated at this point in order to save costs so that the Agency's return from closed session, reports of.fi!!!J1 action taken, and adjournment will not be videotaped. Nevertheless, the report of final action taken will be recorded in the minutes which will be available in the Office of the Secretary to the Redevelopment Agency and the City Clerk's Office. 10, CONFERENCE WITH REAL PROPERTY NEGOTIATOR - Pursuant to Government Code Section 54956.8 . Instructions to negotiators regarding purchase price and terms for disposition of Agency-owned property at 340-368 Bay Boulevard (Parcel Nos. 567-022-17, 28, 31, 33 35), and a separate parcel (Assessor Parcel No. 565-310-25), Redevelopment Agency (Chris Salomone) and Bay Boulevard Propenies [M: IH OMEICOMMD EVIA GENDASIO5 .06-97 . RD A I r" ! APR I 7 MINUTES OF A MEETING OF THE REDEVELOPMENT AG'NCY/COUNCIL OF THE CITY OF CHULA VISTA Tuesday, April 15, 1997 Council Chambers 8:28 p.m. Public Services Building CALL TO ORDER 1. ROLL CALL: PRESENT: Agency/Councilmembers John S. Moot, Stephen C. Padilla, Jerry R. Rindone, Mary Salas, and Chair/Mayor Shirley A. Horton. ALSO PRESENT: John Goss, Director/City Manager; John M, Kaheny, Legal Counsel/City Attorney; Beverly A. Authelet, City Clerk; and Patricia Schwenke, Deputy City Clerk. 2, APPROVAL OF MINUTES: April 8, 1997 (Special meeting). MSUC (Padilla/Hnrton) to approve the minutes, approved unanimously 5-0. ORAL COMMUNICATIONS None. ACTION ITEMS 3. JOINT COUNCIL RESOLUTION 18624 AND AGENCY RESOLUTION 1536 AUTHORIZING THE DISSOLUTION OF THE SOUTHWEST PROJECT AREA COMMITTEE AND ESTABLISHING THE PLANNING COMMISSION AS THE RECOMMENDING BODY TO THE REDEVELOPMENT AGENCY FOR PROJECTS LOCATED WITHIN THE SOUTHWEST REDEVELOPMENT PROJECT AREA--On 3/16/93, the Redevelopment Agency adopted a resolution approving revised "roles and functions" for the Town Centre, Otay Valley Road, and Southwest Project Area Committees. On 8/17/93, the Council/Agency dissolved the Montgomery Planning Committee and seated the remaining members on the Southwest Project Area Committee, It was the expectation that the consolidation of the two committees would bring the group into a more cohesive and effective review body for projects proposed in the southwestern portion of the City. However, there has been a lack of interest and meetings have been cancelled due to lack of quorums. During this period, the Commonity Development and Planning Departments have processed Southwest Project Area projects through the Planning Commission pursuant to authority granled in the Southwest Redevelopment Plan and the City's Zoning Ordinance. Staff recommends approval of the resolution. (Director of Community Development) Lyle Haynes, Assistant Director of Communily Development, stated the resolutions before the Agency/Council are to dissolve the Southwest Project Area Committee and formally establish the Planning Commission as the project review body for projects located within the Southwest redevelopment area. Staffs recommendation is consistent with State law and establishes a higher and more direct level of public review and input for residents that may be affected for projects and redevelopment aclions occurring in their neighborhood. It is staffs opinion that projects, issues, and concerns in this area can be better handled by the Planning Commission. Agency/Councilmember Padilla asked if the Planning Commission would legally suffice for those issues regarding housing displacement. Glen Googins, Deputy City Attorney, advised the Planning Commission would suffice for those issues. The requirement under Redevelopment Law and under the project area plan for the Southwest Redevelopment Project 01-( " -, Minutes April 15, 1997 Page 2 Area was for a three-year project area committee commencing with the adoption of the plan and expiring three years thereafter; it is the Agency's discretion to extend the exislence of that project area committee. JOINT COUNCIL RESOLUTION 18624 AND AGENCY RESOLUTION 1536 OFFERED BY AGENCY/COUNCILMEMBER MOOT, reading of the text was waived, titles read, passed, and approved unanimously 5-0. OTHER BUSINESS 4. DIRECTOR'S/CITY MANAGER'S REPORT: None. 5. CHAIR'S/MA YOR'S REPORT: None. 6. AGENCY/COUNCILMEMBER COMMENTS: None. ADJOURNMENT The meeting adjourned at 8:37 p.m, to a closed session. * * * * * CLOSED SESSION 7. CONFERENCE WITH REAL PROPERTY NEGOTIATOR - Pursuant to Government Code Section 54956.8 . Instructions to negotiators regarding purchase price and terms for disposition of Agency-owned property at 760 Broadway (Parcel Nos. 571-200-13, 14, 15, 16, 17), Redevelopment Agency (Chris Salomone) and Broadway Village Business Homes, LP, Respectfully submitted, BEVERLY A. AUTHELET, CMC/AAE, City Clerk by: Patricia Schwenke, Deputy City Clerk .;:J-,j.. ï -. - .. JOINT REDEVELOPMENT AGENCY/COUNCIL AGENDA STATEMENT Item .2 Meeting Date 05106/97 ITEM TITLE: Agency Resolution /537 Council Resolution /81>4(, Authorizing Staff to Negotiate the Acquisition of Property Located at 3554 Main Street for the Purposes of Siting the Proposed Otay Gymnasium Project SUBMITTED BY: Director of Parks, Recreation and Open Space ~ C'mm""". D~.,"..." ~. REVIEWED BY: Executive Director~ ~\ (415ths Vote: Yes- Nol) BACKGROUND: The Dtay Gymnasium Capital Improvement Program (CIP) project (PR.133) evolved from the Otay Park master planning process. The Otay Park Master Plan was approved by the Council in November of 1994. Staff approached the Chula Vista Elementary School District ("District") in early 1994 with the gymnasium construction proposal as a joint.use effort to site the gymnasium on school district property. After some conceptual discussions with District officials, staff was encouraged with the District's interest in possibly donating a portion of the Otay School grounds to accommodate the gym. However, in developing the details of the physical plan, as well as the logistics of joint. use by the City and District, and the current need of the school grounds for portable classrooms, development of the facility on the school site has become significantly more problematic. In light of the project's escalating costs, and numerous issues still yet to be worked out with the District, staff has been evaluating the feasibility of constructing the gymnasium on non.school property. This proposal was presented to the Council in a Budget Supplemental Report by the Parks, Recreation and Dpen Space Department in June 1996. Specifically, staff has investigated the parcel at 3554 Main Street immediately to the south of Dtay School and east of the SDG&E substation at the northeast corner of Main and Albany (see Attachment A, Locator Map). RECOMMENDATION: That the Council/Agency adopt the Resolution authorizing staff to negotiate acquisition of the property located at 3554 Main Street for the purposes of siting the proposed Otay Gymnasium project. BOARDSICOMMISSIONS RECOMMENDATION: The Parks and Recreation Commission reviewed and approved the Dtay Park Master Plan and supported the recommendation that the gymnasium be placed first in the phasing. On February 15, 1996, the Parks and Recreation Commission received an update on the status of the Dtay Gymnasium project and supported the change in the site of the gymnasium from school district property to the Main Street parcel (Attachment B, Minutes). ..ß-f .. -. - - Page 2, Item .3 Meeting Date 05/06197 DISCUSSION: History of School District Site Staff approached the District in early 1994 with the gymnasium construction proposal. As the project planning began to develop, site planning issues presented logistical problems for the project. The District wanted a modification to the placement of the building, resulting in the building pad being located to the eastern reach of their property. In addition, a MAAC sponsored child care service was approved for the Otay Center. State law requires a children's play area be installed as part of the service. This play area is planned to be placed on the east end of the Otay Center building, thereby necessitating modifications to the proposed gymnasium/plaza area. This plaza area was envisioned to serve as an important linkage between the Otay Center and the Gym (Attachment C, Original Site Plan). The site planning problems had notable adverse affects on the project. Specifically, moving the building pad to the far eastern reach of the campus would place the facility in a non- visible and remote location. This could lead to access problems, public safety concerns and hinder our ability to showcase the beauty of this facility. Furthermore, there would be an additional cost impact because of the length of utility connections necessary to service the building. Finally, when the State of California approved an increase in the teacher.student ratio for elementary schools, the Chula Vista Elementary School District began preparations for additional classroom buildings at the schools; including Otay Elementary School. This event basically eliminated the original site as a prospect for the gymnasium next to the Otay Center (MAAC). Conclusions on Otay School Site for Gymnasium During the course of site evaluation, four important issues surfaced: 1) State review and inspection services will be expensive ($200,000); 2) site development will be extraordinary due to the extensive nature of the site work and the length of utility connections to Albany Avenue ($225,000); 3) the School District's requirement to mitigate the loss of playground land by improving a portion of Otay Park created additional costs ($50,000); and 4) the need by the District to use the site for portable classrooms. In addition to cost considerations, the City's Design Review Board and Parks and Recreation Commission did not support the school location and recommended that the City seek another more visible location. Additionally, the Police Department is very concerned about the hidden nature of the facility and a potential inability to properly surveil the area. Finally, as mentioned above, the school site is no longer available for the placement of the gymnasium due to the additional classroom buildings placed there. Due to the aforementioned, staff recommends pursuing an alternative site. OPTION #1 . Staff Recommended Site. 3554 Main Street The alternate site under consideration is a 1.36 acre parcel located at 3554 Main Street in the Southwest Redevelopment Project Area (see Attachment D, Proposed Site Plan). Over the years, the majority of the property has been subjected to litter, overgrowth of weeds and presents a community blighting influence. Two .ð-Ct ., - - Page 3, Item Æ Meeting Date 05106/97 non.descript, empty, dilapidated structures and a truck cab repair shop business occupy the site. During the community meetings held for the park master plan, several residents complained that the empty structures are serving as a hangout for gangs and chronic drug use. A separate code enforcement action is underway with full cooperation from the property management company. The truck cab repair business appears to be a well.maintained, functional business. It utilizes a small portion of the parcel along the eastern property line. If the City is successful in negotiating the property purchase, the City would be responsible to pay for their relocation cost, including a lease differential payment if needed. Staff has listed the following general benefits of this site: 1. The Police Department believes this site could be better patrolled from the street versus being in the rear of the park site; 2. There would be convenient access to the building from the SDG&E future parking lot; 3. The gym would still be located near the Otay Center, thereby maintaining a programmatic "synergy;" 4. Better fire access; 5. The blighted appearance and nature of this parcel would be eliminated; 6, The City would be able to showcase the architectural beauty of this facility; 7. A slight additional park acreage (+ 1.73 acres) would be realized in western Chula Vista; and Appraisals Staff has had two appraisals completed (not concurrently) by reputable appraisal firms that revealed approximately the same value. Staff would prefer, for negotiation purposes, to be as non-specific as possible about the appraisals at this time. However, staff is confident that the City's offer will be made on the basis of the appraisals (or an updated one) which the property owner should find as fair and reasonable, and reflect the fair market value. A "ballpark" figure is currently around $400,OOO( :t). However, staff anticipates doing an updated appraisal to account for any changes in the market since the date of the last appraisal (January 1997). The estimated acquisition cost might also be adjusted if any new information is discovered regarding the marketability or physical condition of the site. Environmental Site Assessment In addition to the appraisals, staff has conducted Phase I and" Environmental Site Assessments on the property. The studies included investigations of the history of use on the property and sampling of the soil and groundwater in areas most likely to contain contamination. The results of the studies indicate that there is no reason to believe that the site contains any soil or groundwater contamination other than staining of the concrete slab surface in the vicinity of the truck repair shop. Subsurface soil samples taken from beneath the slab do not indicate the presence of contaminants. .3-3 'r - - Page 4, Item ~ Meeting Date 05/06/97 Business Relocation Under the Uniform Relocation Assistance Act, the City/Agency will be responsible for relocating the existing business on the site to a suitable replacement site, and in essence, making the business "whole" at their new location. Staff had its contracted business relocation consultant, Ryals and Associates, review the matter. They've provided an estimate of approximately $17,000, which includes approximately $5,000 in a lease differential payment, which is the maximum allowed under law. Given the "estimate" nature, staff would anticipate a maximum amount of $20,000 in relocation costs. CEnA At this point the City's actions constitute "planning activities" which do not require formal environmental impact analysis under CEnA [CEnA Guidelines §15061(b)(3)]. Any required environmental impact documentation shall be duly prepared and presented to the City Council for its consideration prior to a formal City commitment to the project. OPTION #2 - Otav Park Site The other remaining option for locating the facility would be on the existing Otay Park site (Site Plan is Attachment "E"). The benefit to constructing the facility on the park site is it would be less expensive to build on our own property (no land acquisition costs). However, the disadvantages outweigh the benefit, as follows: 1. The City would lose 2.9 acres in passive parkland; 2. There would be an increased cost (+ $250,000) to the gym site due to additional parking being provided that is not being provided at the Main Street site due to availability of the SDG&E property for parking; and 3. Active use of the park for softball and soccer leagues would be eliminated due to site placement of gym and parking lot; and 4. The passive use of the park by residents for picnics, playing, etc. would be eliminated; and 5. The area would lose visual relief of open park green landscaping in the urban setting. Staff believes that the loss of park land is a significant issue. As Council is well-aware, this area is currently the most deficient of park land in the entire City. There are 129.45 acres of parkland in western Chula Vista, of which Otay Park is 5.2 acres. In terms of park deficiency, western Chula Vista, when compared to the standard of 3.0 acres per 1.000 residents, is deficient by 198.05 acres of parkland (as of June 30, 1996). Building the gymnasium on Otay Park would remove 2,9 acres from the total acreage and increase the park deficiency in western Chula Vista. .3-4 ., -. - .. Page 5. Item J Meeting Date 05106197 Furthermore, if the gym was moved to the park, the community would lose the opportunity of linking the activities between the Otay Center and the gym. For financial reasons, siting the gym on the park site may make sense, but given the lack of parks, staff recommends to pursue the Main Street parcel. FISCAL IMPACT: The value of the 3554 Main Street parcel is roughly $400,000(:t); although staff plans to do an update appraisal. The estimated cost to relocate the business is $20,000, for a total anticipated cost of $420,000:t. For budgeting purposes, $430,000 is proposed to be included in the FY 97/98 CIP budget identifying FY 97/98 CDBG funding from the "Capital Projects" category. CDBG funds of $2,410,800 have already been appropriated in the Otay Gymnasium (PR.133) project for construction of the facility. The use of this fund to purchase property for the Otay Gym is consistent with that intended use. The cost for Option #1 would be a budgeted amount of $430,000 (an increase to the $2.4 million already appropriated in CDBG funds for the project, or a total of $2,840,000). The cost for Option #2 would be $2.660.000. ATTACHMENTS: A. Locator Map B. Parks and Recreation Commission Minutes of February 15, 1996 C - Original Site Plan. School Site D. Proposed Site Plan. Main Street Proposal E - Otay Park Site with Gymnasium Placement ItJMJ H,\HOME\COMMOEV\STAFF.REP\OS-O6.97\OTAY.GYMIApriI30, 199711 J -S'" ., - - AGENCY RESOLUTION NO. /4'37 and .1 COUNCIL RESOLUTION NO. ~., (., JOINT RESOLUTION OF THE CITY COUNCIL AND THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA AUTHORIZING STAFF TO NEGOTIATE THE ACQUISITION OF PROPERTY LOCATED AT 3554 MAIN STREET FOR THE PURPOSES OF SITING THE PROPOSED OTAY GYMNASIUM PROJECT WHEREAS, previous actions of the City Council have established the Otay Gymnasium CIP project (PR-185) and given staff direction to pursue project implementation; and WHEREAS, the original location of the proposed project was to be within the boundaries of the Otay School property; and WHEREAS, staff has been working with the Chula Vista Elementary School District to effectuate development of the project on the school grounds; and WHEREAS, location of the facility on the school property has presented numerous difficulties resulting in schedule delays and projected cost increases; and WHEREAS, a feasible alternative location adjacent to the school property, a 1.36 acre privately-owned parcel at 3554 Main Street, has been identified which would avoid the problems encountered on the school site; and WHEREAS, the parcel at 3554 Main Street is currently underutilized and exhibits indications of blight and deterioration; and WHEREAS, the value of the property at 3554 Main Street and associated relocation costs are within the current available fund balance of the Park Acquisition and Development (PR- 185) fund, and acquisition of said parcel would be consistent with the intended use of that fund. NOW, THEREFORE, BE IT RESOLVED the City Council and Redevelopment Agency of the City of Chula Vista do hereby authorize staff to negotiate with the owner of certain real property comprised of 1,36 acres located at 3554 Main Street for the purposes of siting the proposed Otay Gymnasium project Presented by Approved as to form by ~~j~ Jes ale ela Director of Parks and Recreation CL~¿ Chris Salomone Director of Community Development "JM} H,\HOMElCOMMDEV\RESOS\O"v.Gym IAp,;¡ 23. 1997 I""Cpm" J - (, ., - . - " ~~,-~ 81 ,OO9=.~ +-' c: Q.) E Q.. 0 Q.) > Q.) "0 Q.) c: ~ +-' Q.) '- ~« 3:+-' J::Q +-,!Q.) :J.,.O' 0.,,- èna. ATTACHMENT B CITY OF CHULA VISTA PARKS AND RECREATION COMMISSION PAGE 6 February 15, 1996 NEW BUSINESS A. Voyager Park - (Information only) Director Valenzuela gave a brief presentation on the School Master Plan for Rancho Del Rey SPA III. This park will be a joint use with the Sweetwater Union High School District. The park is comprised of 10 acres containing two soccer fields, play areas for preschooler and older children, picnic shelters and a comfort station. The Department will make use of the school's multipurpose facility, softball fields. basketball courts and the speed soccer facility. The park is being built by McMillin; since they have a 10 acre park dedication commitment in SPA III. Chair Sandoval inquired if the park was two levels. Director Valenzuela replied that is was a terraced park. The Commission thanked Director Valenzuela for the information provided on the Master Plan. B. Otay Gymnasium Status - (Informational) Director Valenzuela informed the Commission on the status of the Otay Gymnasium project. He provided background on the difficulties the City was experiencing with the Elementary School District. Director Valenzuela was directed by the City Manager to appraise a property on Main Street, and proceed with "First Phase Acquisition" to acquire the property. "First Phase Acquisition" will determine if there are any toxic or hazardous materials stored on the property on the soil of the land. Soil testing will be done. The next step is to negotiate with the property owner if test results return negative. If the property owner does not agree to sell the property, the City will go through "Condemnation Procedures", to acquire the land, and pay market value for the property. Director Valenzuela believes that the Main Street property would be an ideal location for the Otay Gymnasium. The project has been set back 6 months. He also stated that he envisions the Gymnasium to be open in the summer of 1997. Commissioner Helton stated that this site (Main Street) would make for a safer situation. Commissioner Dennison stated that this site (Main Street) would improve this whole area. Commissioner Palma stated that the Otay Committee favors building this facility on Main Street. 7. COMMUNICATIONS A. Written Correspondence - None J- 'i ., . - - " ATTACHMENT C "-'"', Mom HOME ESTATES ~ I ~¡ I! JI I! )1 Ji ,¡ J i i : '~O¡::::'~'.::~~' '---LJ L : L J c, J- '-L J"1. J 'cJ '"J L, II ¡ r-¡ --. -- c- - - L-..J L_-: I .. RESIDENTIAL ~ ."'~~,.- ,"_O~A"- =~._" =:::11:"".=-::::"" __"0- . ::"_~ . ~-::::':.--o- --,-- .......-. -. 1 """"""""'_0.- ...........eo... T .~~..... 01AY SCHOOL I I l I ~. ~; <: I .--.; L_- I '--4 ~' '~.' J< """_O~ ~ SD,G.&E, I I SUBSTAnDN I I I I 0 r- I I <;'ì ~r¡ 0 -1 I I I - 0 I I I IlL... £ 0 ¡--Ii-'" I ; I L_.-J - r--, I I --~1 I I I I I I I I I I [J I I I rl J,J-9 _.J L- - - ' MÞJN SII1'."-.--.--'-'- ., -.. - . ATTACHMENT D '" . " I .. .. :~..<\ J ¡ ~--------r-"':;~;y;-_._y--,.- ../J! I "¡ ...r... .' ,.. '" ! I I ;;, '.' . I . mj "I . . ,. r.. .. ..!-' ,. , it: .. . , I I I I. t I I I~ '-: I~ i "I I D'å~. ~ ..~ 1 -'.2 ~ --"- "--- - ~ '" ..~ -3-10 ATTACHMENT E -..- .., ... ... OTAY PAR'K RENOVATION - GYMNASIUM :...3-11 ~ ala'" '" 100' Noo~ _. - .. ., JOINT REDEVELOPMENT AGENCY/COUNCIL AGENDA STATEMENT Item 4 Meeting Date 05106/97 ITEM TITLE: Council Resolution IV,41 Approving an Agreement of Purchase and Sale and Escrow Instructions between the City of Chula Vista and San Diego Unified Port District for Marina View Park located at Marina Blvd. South. SUBMITTED BY: C~~;ty DMlopmoo' DI.". ~ REVIEWED BY: Executive Director JQ ~ ~ (4/5ths Vote: Yes- No_XJ BACKGROUND: The City Council reviewed the terms and conditions for sale of the City's 2.7 acre portion of Marina View Park in November 1996. The Council approved the terms as presented with the condition that the Port District agree to meet and confer with the City before considering any proposed land use change for the public park. The Purchase and Sale Agreement for Marina View Park, including the meet and confer provision, is presented to the Council this evening for final approval. RECOMMENDATION: That the City Council approve the Agreement with the Port District for Purchase and Sale and Escrow Instructions for Marina View Park. BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. DISCUSSION: The City Council reviewed the terms and conditions of sale for the Marina View Park property in November 1996. The Council approved the terms and conditions with one exception: because of concern that the park property remain in public use, the Council requested that the Port District agree to meet and confer with City officials concerning any contemplated land use change on the property before taking any action. Jess Van Deventer, Chairman of the Port District Board, appeared at the Council meeting of November 25, 1996 to advise the Council that the final Purchase and Sale Agreement would include the requested meet and confer provision, and that the Port District, historically, has not converted park properties within its jurisdiction. Section 13 of the Agreement (attached as Exhibit A), asserts that while the Port District shall maintain exclusive land use jurisdiction over the parcel (with the exception of the California Coastal Commission), the Port agrees to advise the City of any proposed development plans for the property and meet and confer with the City prior to the implementation of any change in the use of the property for other than park purposes. 4-1 ., . - - - Page 2. Item A Meeting Date 05/06/97 Other provisions of the Agreement include the following: . Purchase price shall be $ 762,000. Purchase price is based on an appraisal dated May 1995 prepared by Lipman, Stevens, Marshall and Thene, Inc. . Sale is contingent upon hazardous substances investigations on the site to be carried out by the City's consultants. Sale of property can be aborted if any consequential cleanup costs exceed $100,000 at discretion of either party. . City to pay normal sellers share of escrow fees and CLTA title policy. . City and Port shall enter into an amendment to the Park Maintenance Agreement between the two parties whereby the Port will pay the City for continued maintenance of both sections of Marina View Park (this amendment has already been effectuated), . If the Port changes the land use in the future, City has right to reclaim recreational equipment. Staff recommends approval of the Agreement as attached. Council action on this item is exempt from CEOA under the General Rule (CEOA Guidelines Section 15061(6)(3)) that CEOA applies only to those activities that have the possibility of causing an impact on the environment. Since the recommended action involves transfer of ownership with no change in use or other physical change, it can be seen with certainty that no environmental impacts would result. FISCAL IMPACT: The City will receive $762,000 less normal escrow and site investigation expenses from sale of the of Marina View Park. Assuming that there are no hazardous substances discovered on the site during the testing phase which will require cleanup, the Agency should net approximately $740,000 (50% City, 50% Agency) from the sale. I'KI HoIHOMEICOMMOEVISTAFF.REPIO5.06.97IPORTSALC.113\Ap," 30, 199712o12pm)1 4-~ ., . - , . RESOLUTION NO. /g,,'¡1 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AN AGREEMENT OF PURCHASE AND SALE AND ESCROW INSTRUCTIONS BETWEEN THE CITY OF CHULA VISTA AND SAN DIEGO UNIFIED PORT DISTRICT FOR MARINA VIEW PARK WHEREAS, the City Council of the City of Chula Vista ("Council" desires to sell certain property owned by the City of Chula Vista known as Marina View Park ("Property"), fully described on Exhibit A attached hereto, to the San Diego Unified Port District ("District"); and WHEREAS, terms and conditions for sale of the Property have been negotiated with the District and have been approved by the Council; and WHEREAS, an Agreement of Purchase and Sale and Escrow Instructions ("Agreement") has been prepared for submission to the Council and the District, said Agreement and Instructions including the terms and conditions of sale in substantially the same form as presented to the Council; and WHEREAS, in order to expedite the sale of the Property, the Council is requested to approve the Agreement. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does hereby resolve as follows: 1. The City Council hereby approves the Agreement of Purchase and Sale and Escrow Instructions between the City of Chula Vista and San Diego Unified Port District in substantially the form presented, with minor modifications as may be required or approved by the City Attorney. 2. The Mayor is hereby authorized to execute said Agreement on behalf of the City of Chula Vista a copy of which shall be kept on file with the City Clerk as Document No, -. Presented by Approved as to form by ~< ~~ Chris Salomone Director of Community Development IfFK) H,\HOME\COMMDEV\RESOS\MARINAPK.RES lAp," 30, 1997 ",08pmlf 4-3 ., -" - - EXHIBIT A TO COUNCIL RESOLUTION ~ MARINA VIEW PARK Sþ.~ \)\'t..GO ~ A 4-4 2m City of Chula Vista Bayfront Redevelopment 'j! õ. . z Redevelopment Areas Area 12/18/90 -, - - 'I t AGREEMENT OF PURCHASE AND SALE AND ESCROW INSTRUCTIONS BETWEEN THE CITY OF CHULA VISTA, a municipal corporation ("SELLER"), AND THE SAN DIEGO UNIFIED PORT DISTRICT, a public corporation ("PURCHASER ") DATED , 1997 4-~- 999999 901029\960410 3 SO Poo1 O""'d ApnI11, '991 Mori""VlowPari< .. - - AGREEMENT OF PURCHASE AND SALE AND ESCROW INSTRUCTIONS THIS AGREEMENT OF PURCHASE AND SALE AND ESCROW INSTRUCTIONS ("Agreement") is made as of the - day of , 1997, by and between THE CITY OF CHULA VISTA, a municipal corporation ("Seller"), and THE SAN DIEGO UNIFIED PORT DISTRICT, a public corporation ("Purchaser"). Seller and Purchaser hereby agree as follows: 1 Agreement of Purchase and Sale. SubjeCt to and upon the terms and conditions herein, Seller hereby agrees to sell to Purchaser and Purchaser hereby agrees to purchase from Seller: 1.1 That certain real property located in the City of Chula Vista, County of San Diego, State of California, consisting of approximately 2.71 acres (the "Land"), located in the City of Chula Vista, County of San Diego, California, as more particularly described in Exhibit A attached hereto and which shall be more particularly described in the preliminary title report to delivered to Purchaser as described in Section 4.1 below; 1.2 All rights, privileges, easements and rights of way appurtenant to the Land, induding, without limitation, all mineral, oil and gas and other subsurface rights, development rights, air rights and water rights (collectively the "Appurtenances"); 1.3 Subject to the rights of Seller as more particularly described below, all equipment, appliances, fIXtures and other personal property of every kind and character owned by Seller (collectively, the "Personal Property") and used or useful in the operation of the Real Property; and 1.4 Any and all contracts, rights, warranties, guaranties, agreements, utility contracts and deposits (only insofar as they pertain to the Land), approvals (governmental or otherwise), surveys, plans and specifications, trade names used in connection with the Land or Appurtenances, other rights relating to the construction, ownership, use and operation of all or any part of the Land and any agreements, covenants or indemnifications received by Seller from a prior owner or any other third party relating to the Land or Appurtenances (collectively, the "Intangible Property"), to the extent assignable and to the extent approved by Purchaser, all of which shall be assigned to Purchaser pursuant to an assignment described hereinbelow. The Land, the Appurtenances, the Personal Property and the Intangible Property are hereinafter collectively referred to as the "Property." -1- ...... OO'02WI8<703 4-t&. sa PM ai,m" Apri'".1997 M""",,VlowP"'" .. - - 2 Purchase Price. 2.1 Amount of Purchase Price. The total purchase price for the Property shall be SEVEN HUNDRED SIXTY TWO THOUSAND AND NO/tOO DOLLARS ($762,000.00) (the "Purchase Price"). 2.2 Pavment of Purchase Price. At least five (5) days prior to the Closing Date (as hereinafter defined), Purchaser shall deposit the Purchase Price into Escrow in cash, by certified or bank cashier's check made payable to Escrow Holder, or by a confinned wire transfer of funds. 3 Escrow Instructions. 3.1 ÜtJeninl! of Escrow. As soon as reasonably practicable following the mutual execution of this Agreement (but in no event later than five (5) days after the mutual execution of this Agreement), the parties shall open an escrow (the "Escrow") at Stewart Title Company located at 7676 Hazard Center Drive, Seventh Floor, San Diego, California 92108, Attention: Frank Green (Telephone: 619-692-1600; FAX: 619-298-4033) ("Escrow Holder"), in order to consummate the purchase in accordance with the tenns and provisions hereof. This Agreement shall be deposited in the Escrow and the provisions hereof shall constitute joint primary escrow instructions to the Escrow Holder; provided, however, that the parties shall execute such additional instructions as requested by the Escrow Holder not inconsistent with the provisions hereof. The date as of which the Escrow Holder shall receive executed counterparts of this Agreement from both Seller and Purchaser shall constitute the "Opening of Escrow." No later than three (3) days after the Opening of Escrow, Escrow Holder shall deliver written confinnation of the date of the Opening of Escrow to the parties in the manner set forth in Section 17 of this Agreement. 3.2 Documents and Funds Delivered to or bv Escrow. The following shall be delivered into the Escrow in connection with the transfer of the Property: 3.2.1 Deliveries bv Seller in Escrow. At least two (2) business days prior to the Closing Date, Seller shall deposit into Escrow: 3.2.1.1 a grant deed (the "Grant Deed ") to the Property in recordable fonn, duly executed by Seller and acknowledged and in substantially the same fonn as set forth in Exhibit B attached hereto, which Grant Deed shall set forth Seller's reversionary interest in certain improvements presently located on the Property as more panicularly set forth therein; 3.2.1.2 three (3) originals of an assignment of intangible property (the "Assignment of Intangible Property"), duly executed in counterpan by Seller, conveying to Purchaser all of Seller's interest in and the rights to the Intangible Property in substantially the same fonn as set forth in Exhibit C attached hereto; -2- 4- 7 ...... 9010291964703 SO Port D¡,!rid """'",1997 M,",.. View Pori< " - - - .. 3.2,1.3 three (3) originals of an affidavit from Seller which satisfies the requirements of Section 1445 of the Internal Revenue Code, as amended (the "Section 1445 Affidavit") in substantially the same fonn as set forth in Exhibit D attached hereto; 3.2.1.4 three (3) originals of a Withholding Exemption Certificate, Fonn 590 or in the event that the Seller is a non-California resident, a certificate issued by the California Franchise Tax Board, pursuant to the Revenue and Taxation Code Sections 18805 and 26131, stating either the amount of withholding required from Seller's proceeds or that Seller is exempt from such withholding requirement (the "Certificate"), in substantially the same fonn as set forth in Exhibit E attached hereto; 3.2.1.5 one (1) original bill of sale ("Bill of Sale"), duly executed by Seller, in the fonn attached hereto as Exhibit F conveying all of Seller's right, title and interest in and to the Personal Property, if any, to Purchaser, free and clear of all liens, encumbrances and adverse claims; and 3.2.1.6 such other instruments and documents as may be reasonably requested by Escrow Holder or otherwise required to transfer the Property to Purchaser, including but not limited to those documents referenced in this subparagraph (f); and 3.2.2 Deliveries bv Purchaser in Escrow. At least two (2) business days prior to the Closing Date, Purchaser shall deposit into Escrow: 3.2.2.1 three (3) originals of the Assignment ofIntangible Property, if required by Purchaser, duly executed in counterpart by Purchaser, assuming Seller's interest in and obligations with respect to the Intangible Property; 3.2.2.2 one (1) original Preliminary Change of Ownership Fonn, duly executed by Purchaser, in substantially the same fonn as Exhibit G attached hereto; 3.2.2.3 one (1) original Certificate of Acceptance of Grant Deed duly executed by an authorized representative of Purchaser; and 3.2.2.4 such other instruments and documents as may be reasonably requested by Escrow Holder or otherwise required to transfer the Property to Purchaser. 3.2.3 Further Deliverv by Purchaser in Escrow. At least five (5) days prior to the Closing Date, Purchaser shall deposit into Escrow by certified or cashier's check if acceptable to Escrow Holder (or a wire transfer of immediately available funds) the Purchase Price, plus such additional sums as shall be necessary to pay the expenses payable by Purchaser hereunder so long as the following conditions precedent have been satisfied: (a) Escrow Holder has previously notified Purchaser that Seller has delivered into Escrow (i) all of its documents required under Section 3.2.1 above, and (b) Escrow Holder has previously notified Purchaser that Escrow Holder is able to proceed to close the Escrow in accordance with the tenns of this Agreement. -3- 4-' ...... 901029\9601703 SO Port O"1n« ...' 11, '997 Morina View P... ., - - - " 3.2.4 Delivery bv Escrow Holder. No later than five (5) business days prior to the Close of Escrow, Escrow Holder shall deliver to Purchaser and Seller a pro forma closing statement which sets forth, in a manner satisfactory to Purchaser and Seller, the prorations and other credits and debits contemplated by this Agreement. 3,3 Conditions to Close. 3.3.1 Purchaser. Escrow shall not close unless and until the following conditions precedent and contingencies have been satisfied or waived in writing by Purchaser on or before expiration of the Contingency Period (as defined in Section 4 below) or such other date as may be prescribed in Section 4 below: 3 .3. 1. 1 All conditions and contingencies described in Section 4 below have either been satisfied or waived in writing by Purchaser; 3.3.1.2 All funds and instruments described in this Section 3 have been delivered to the Escrow Holder; 3.3.1.3 No later than the earlier of (i) the expiration of the Contingency Period; or (ii) one hundred and twenty (120) days after Purchaser has notified State Lands Commission of the transaction contemplated by this Agreement as required by Section 30.5 of Appendix 1 of the California Harbors and Navigation Code, the Board of Port Commissioners of Purchaser ("Port Board") shall have authorized and approved, in the sole and absolute discretion of such Port Board, this Agreement, the transactions contemplated by this Agreement, and the execution, delivery and performance of this Agreement by Purchaser and Purchaser shall have given notice of such authorization and approval by the Port Board to Seller; 3.3.1.4 On or before the expiration of the Contingency Period (as defined in Section 4 below), Purchaser shall have received written confIrmation from the State Lands Commission that Purchaser has the authority to purchase the Property as provided for in this Agreement pursuant to Section 30.5 of Appendix 1 of the California Harbors and Navigation Code; 3.3.1.5 On the Closing Date, Seller shall not be in default in the perfonnance of any covenant or agreement to be perfonned by Seller under this Agreement, including without limitation, the perfonnance of any covenant or agreement concerning environmental requirements; 3.3.1.6 On the Closing Date, all representations and warranties made by Seller in Section 9 hereof shall be true and correct as if made on and as of the Closing Date; and 3.3.1.7 The Title Company (as hereinafter derIDed) is in a position to issue to Purchaser a CL T A policy of title insurance for the Property with such -4- 4-9 ...... 901029196470.3 SD.M Di...'" """11, '997 _Vi_.'"" 'I - - .. .. - endorsements as may be requested by Purchaser, insuring that Purchaser or Purchaser's nominee shall be vested with good and marketable title to the Property and all easements, rights and appurtenances thereof in accordance with the tenns hereof. 3.3.2 Seller. Escrow shall not close unless and until the following conditions precedent and contingencies have been satisfied or waived in writing by Seller: 3.3.2,1 All funds and instruments described in this Section 3 have been delivered to the Escrow Holder; 3.3.2.2 On the Closing Date, Purchaser shall not be in default in the perfonnance of any covenant or agreement to be perfonned by Purchaser under this Agreement; and 3.3.2.3 On the Closing Date, all representations and warranties made by Purchaser in Section 10 hereof shall be true and correct as if made on and as of the Closing Date. 3.4 Recordation and Transfer. Upon satisfaction of the conditions to the Close of Escrow set forth in Section 3.3 above, Escrow Holder shall transfer the Property as follows: 3.4.1 Cause the Grant Deed to be recorded in the Official Records of San Diego County, California; 3.4.2 Deliver to Purchaser, one (1) fully executed original of the Assignment of Intangible Property, the Bill of Sale, the Section 1445 Affidavit, the Certificate and one (1) confonned copy of the recorded Grant Deed; 3.4.3 Deliver to Seller, at least one (1) fully executed original of the Assignment of Intangible Property, the Section 1445 Affidavit, the Certificate and one (1) confonned copy of the recorded Grant Deed: 3.4.4 Deliver to the parties entitled thereto any other closing documents; 3.4.5 Disburse all funds deposited with Escrow Holder by Purchaser in payment of the Purchase Price for the Property as follows: 3.4.5.1 to the extent that Seller is a foreign person pursuant to Section 1445 of the Internal Revenue Code of 1986, as amended, and is not otherwise exempt from such section's withholding requirements, withhold the cash equivalent of ten percent(1O%) of the Purchase Price (unless some lesser amount is authorized by the Internal Revenue Service); 3.4.5.2 to the extent that Seller is a non-California resident pursuant to Revenue and Taxation Code Sections 18805 and 26131, and is not otherwise exempted -5- 4-10 SD Port D¡,"'d 999999 901029\960070.3 April 11. 1997 M"""'v....P"", '[ -., - .. - from such sections withholding requirements, withhold the cash equivalent of three and one-third percent (3-1/3 %) of the Purchase Price (unless some lesser amount is authorized by the Franchise Tax Board); 3.4.5.3 deduct the amount of all items chargeable to the account of Seller pursuant hereto; 3.4.5.4 deliver to Seller the Purchase Price; 3.4.5.5 deduct the amounts of all items chargeable to Purchaser; and 3.4.5.6 disburse the remaining balance of the funds deposited by Purchaser, if any, to Purchaser promptly upon the Close of Escrow pursuant to instructions to be delivered by Purchaser to Escrow Holder; and 3.4.6 Ifappropriate, deliver the Certificate to the California Franchise Tax Board. 3.5 Close of Escrow. The Escrow shall close ("Close of Escrow" or "Closing Date") no later than sixty (60) days following the end of the Contingency Period (defined below), unless extended as provided in Section 4 below or extended in writing by mutual agreement between Purchaser and Seller. If the Closing Date does not fall on a Tuesday, Wednesday, Thursday or Friday, Escrow shall close on the Tuesday following such date. 3.6 LiQuidated Damages. PURCHASER AND SELLER AGREE THAT THE ACTUAL DAMAGES, INCLUDING ANY ATTORNEYS' FEES, LOST PROFITS AND OPPORTUNITY COSTS, FOR FAILURE OF THE ESCROW TO CLOSE DUE TO PURCHASER'S DEFAULT HEREUNDER WOULD BE EXTREMELY DIFFICULT TO MEASURE AND THAT THE SUM OF TEN THOUSAND AND 00/100 DOLLARS ($10,000.00) TOGETHER WITH ANY INTEREST ACCRUED THEREON AS PROVIDED BELOW IS A REASONABLE ESTIMATE OF SUCH DAMAGES. IN THE EVENT THAT SELLER IS NOT IN DEFAULT AND THE ESCROW FAILS TO CLOSE IN A TIMELY MANNER AFTER EXPIRATION OF PURCHASER'S CONTINGENCY PERIOD DUE SOLELY TO A DEFAULT BY PURCHASER, THIS AGREEMENT SHALL TERMINATE, ESCROW SHALL BE CANCELED AND SELLER SHALL BE ENTITLED TO THE SUM OF TEN THOUSAND AND 00/100 DOLLARS ($10,000.00) AS LIQUIDATED DAMAGES AND AS SELLER'S SOLE RIGHT TO DAMAGES OR OTHER RELIEF. IN THE EVENT PURCHASER IS NOT IN DEFAULT AND ESCROW FAILS TO CLOSE ON ACCOUNT OF A DEFAULT BY SELLER, PURCHASER SHALL HAVE NO FURTHER OBLIGATIONS TO SELLER UNDER THIS AGREEMENT AND SHALL BE ENTITLED TO EXERCISE ANY REMEDY AVAILABLE TO PURCHASER, INCLUDING AN ACTION FOR SPECIFIC PERFORMANCE AND/OR AN ACTION FOR DAMAGES. SELLER AND PURCHASER FURTHER ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTAND THE -6- 4-1( ...... 901029\964703 SO Port Di,trict """11, 1997 M8ri~ Vi- P"" ., - - - - PROVISIONS OF THE FOREGOING LIQUIDATED DAMAGES PROVISION AND BY THEIR SIGNATURES IMMEDIATELY BELOW AGREE TO BE BOUND BY ITS TERMS. PURCHASER: SELLER: THE SAN DIEGO UNIFIED PORT THE CITY OF CHULA VISTA, DISTRICT, a public corporation a municipal corporation By: By: Name: Name: Title: Title: 4 Contine:encies. In the event that any contingency set forth in this Section 4 has not been either satisfied or waived prior to the time set forth below for such satisfaction or waiver for any reason other than Purchaser's or Seller's default hereunder, this Agreement shall be terminated and the Escrow shall thereupon be cancelled, and neither party shall have any further obligation to the other, except for those obligations, if any, which by the terms of this Agreement survive such cancellation. Costs for cancellation of Escrow and all Title Company costs shall be paid as set forth below. The "Contingency Period" as used herein means the period commencing on the Opening of Escrow and continuing until ninety (90) days following the Opening of Escrow, or such longer period of time as the parties hereto may mutually agree; provided however, (a) such period may be extended by either Seller or Purchaser for two (2) additional periods not to exceed an additional thirty (30) days each, if, and only if, Seller provides written notice to Purchaser at least ten (10) days prior to the expiration of the original Contingency Period (or the first extension period, as applicable), that Seller is delayed in the satisfaction of the condition set forth in Section 4.4. below (Hazardous Substance Investigation and Remediation) and Seller is diligently proceeding to satisfy such condition. 4.1 Title. 4.1.1 Prior to the date of this Agreement Seller has provided with a preliminal)' title report ("PTR") covering the Land dated as of April 3, 1997 (Order No. 01-147708), issued by Stewart Title Company (the "Title Company"). Purchaser agrees to accept title to the Land subject only to those items listed in Schedule B of the PTR as exceptions 2, 3 (subject to issuance of CLTA Indorsement 103.5), 4, 6, 11 and 12 (hereinafter the "Permitted Exceptions"). If Escrow Holder has not done so prior to the date of this Agreement, then no later than three (3) business days after the Opening of Escrow, Escrow Holder shall order, at Seller's sole cost, an update to the PTR, together with legible copies of all documents referred to therein and a map plotting the location of all recorded easements (collectively the "PTR Update") from the Title Company. In connection with the PTR Update, immediately following the Opening of Escrow, Purchaser may order an ALTA survey of the Land (the "Survey") sufficient for the Title Company to issue an AL T A policy of title insurance if such a policy is required by Purchaser -7- 999999 9010291964703 4-/~ SD Port D"met Apnl 11. '997 _ViewP,"" 'I -, - - in lieu of the CL T A Policy provided for herein, The cost of the Survey, if any, shall be borne by Purchaser. 4.1.2 Except for the Pennitted Exceptions, all encumbrances, liens, covenants and other title exceptions appearing on the PTR Update are deemed disapproved and the provisions of Section 4.5 (Cure and Waiver Rights) shall be applicable. Any deeds of trust and all prepayment fees or expenses owed to the beneficiaries thereof, or other monetary encumbrances other than real property taxes and assessments not yet delinquent shall be paid in full by Seller prior to or concurrently with the Close of Escrow, In addition, Purchaser shall have until the later of (a) the date of the end of the Contingency Period, or (b) five (5) business days after receipt thereof, to disapprove any new matters described in any supplement to the PTR Update issued for any reason whatsoever, which Purchaser may do in Purchaser's sole and absolute discretion. 4.1.3 Purchaser shall have the right, until the Contingency Date, to complete the Survey and disapprove any matters on the Survey, which Purchaser may do in Purchaser's sole and absolute discretion- If Purchaser has timely objected to any item(s) shown on the Survey, the provisions of Section 4.5 (Cure and Waiver Rights) shall be applicable. 4.2 Documents and Records. Copies of the following shall be delivered to Purchaser no later than ten (10) days after the Opening of Escrow. Purchaser shall have the right to disapprove (which Purchaser may do in its reasonable discretion) any of the following within the Contingency Period: 4.2.1 to the extent in Seller's possession or readily available to Seller copies of all: 4.2.1.1 surveys; 4.2.1.2 grading plans and any and all plans, specifications and design documents relating to any improvements proposed or contemplated to be made on or to the Property at any time by Seller, if any; 4.2.1.3 drawings, specifications, engineering and architectural studies and similar documents, maps, topographical maps, soils reports, water reports and construction testing documents; 4.2.1.4 draft and final studies, reports, surveys and assessments relating to the environmental condition of the Property, including, without limitation, any soils, toxics and Hazardous Substance reports; 4.2.1.5 all documents relating to land use restrictions on the Property, including, without limitation, those documents relating to endangered and threatened species and/or habitats, if any; -8- 4-1.3 ...... 901029\960170.3 so Port o..tncI ""'11,1997 M..no View P"", .. 4.2.1.6 correspondence, applications, permits and other communications to or from any governmental or quasi-governmental agency (including, without limitation, departments or agencies affiliated with Seller) in connection with any Hazardous Substances (as hereinafter defined) or environmental condition of the Property; 4.2.1.7 notifications required by applicable law to be provided to any party as a result of the condition of the Property, including, without limitation, any notices required pursuant to California Health & Safety Code § 25359.7, if applicable; and 4.2.1.8 a complete list and copies of all conditional and unconditional use permits and approvals and any other governmental licenses, permits or approvals for the Property, including, without limitation, all environmental permits and approvals for the Property any pending applications or requests therefor, if any; 4.2.1.9 a list and complete copies of all contracts, agreements or other documents affecting the Property thereof which will survive the Close of Escrow, if any; 4.2.1.10 complete copies of the property tax bills and any other assessments for the Property for the most recent three (3) years or, if Seller has not owned the Property for three (3) years, then for the period of Seller's ownership; and 4.2.1.11 such other documents or information regarding the Property as Purchaser reasonably requests. Purchaser's failure to provide Seller and Escrow Holder with written notice of disapproval of any of the foregoing within the Contingency Period, which Purchaser may do in its reasonable discretion, shall constitute Purchaser's approval thereof. Throughout the Contingency Period, Seller shall promptly provide to Purchaser any supplement, addition or new information received or discovered by Seller relating to any of the items delivered in this Section 4.2 Purchaser shall have until the later of the expiration of the Contingency Period or thirty (30) days from receipt of such supplement, addition or new information in which to approve or disapprove any said supplement, addition or new information, which Purchaser may do in its reasonable discretion. Purchaser's failure to provide Seller and Escrow Holder with written notice of disapproval of any of the foregoing within the prescribed period, which Purchaser may do in its reasonable discretion, shall constitute Purchaser's approval thereof. If Escrow fails to close, Purchaser agrees to promptly return to Seller the documents and other materials delivered by Seller to Purchaser. Within five (5) business days after the Close of Escrow, Seller shall provide Purchaser with all originals of the documents in Seller's possession described above. 4.3 Inspections and Studies. In addition to the Hazardous Substances investigations described in Section 4.4 below, on or before the expiration of the Contingency Period, Purchaser -9- 4-1'-/ 999999 ""029\96470.3 SD Port D,."'d ...." 11. 1997 _V_P'" 'I -' - " shall have approved or disapproved, in Purchaser's reasonable discretion, the results of any and all inspections, investigations, tests and studies (collectively "Purchaser's Studies"), including, without limitation, investigations with regard to zoning and other governmental regulations, engineering tests, economic feasibility studies, and soils, seismic and geologic reports, as well as testing of the soil, groundwater, building components, tanks, containers, and equipment on the Property, as Purchaser or its agents or experts shall deem necessary to determine or confirm the condition of the Property, inspections of all or any portion of the Improvements (including, without limitation, structural, mechanical and electrical systems, roofs, pavement, landscaping/irrigation and public utilities), and any other physical inspections and/or investigations as Purchaser may elect to make or obtain. The cost of Purchaser's Studies shall be borne solely by Purchaser. Purchaser's exercise of its right to inspect the Property, or Purchaser's election not to inspect the Property shall in no way be interpreted as a waiver of any of Purchaser's rights or remedies contained in this Agreement, including, without limitation, Purchaser's right to rely on the representations and warranties made by Seller herein. 4,3.1 During the term of this Agreement and during reasonable business hours, Purchaser shall be afforded access by Seller to review Seller's books and records relating to the Property (not including any documents to which the attorney/client or other legal privileges apply), and Purchaser, its agents, consultants, contractors and subcontractors shall have the right to enter upon the Property to conduct or make Purchaser's Studies as described above. Despite the foregoing, Seller shall have the right to approve the scope of Purchaser's Studies and the parties performing the same, such approval not to be umeasonably withheld, conditioned or delayed. All of Purchaser's Studies shall be conducted in such a manner so as to reasonably minimize interruption to the use of the Property for park purposes. 4.3.2 Purchaser hereby agrees to indemnify, defend and hold Seller harmless from and against any loss, liability, or damage, including reasonable attorneys' fees and costs, resulting from the activities of Purchaser or Purchaser's representatives, agents and independent contractors or anyone acting pursuant to authorization from Purchaser in relation to Purchaser's Studies conducted on the Property, including restoration of the Property to its present condition and elimination of any mechanic's liens or claims of lien resulting from such activities. The indemnity obligations of Purchaser as set forth in this Section 4.3.2 shall survive the termination of this Agreement. Notwithstanding the foregoing, Purchaser shall not be liable to Seller, nor shall Purchaser have any obligation to hold harmless, defend or indemnify Seller from any liability, costs, damage or claims (including, without limitation, claims that the Property has declined in value) resulting from Purchaser's discovery of any information potentially having a negative impact on the Property, including, without limitation, (i) any discovery of information related to any environmental condition existing on the Property; (ii) the discovery of any Hazardous Substances on or about the Property; or (iii) liability, costs, damages or claims to the Seller of any nature arising out of the discovery of any information released to any public agency or person. 4.3.3 If Purchaser fails to deliver to Escrow Holder and Seller its written approval of Purchaser's Studies prior to the expiration of the Contingency Period, which Purchaser may do in its reasonable discretion, such matters shall be deemed disapproved by Purchaser. -10- 4-/~ ...... 9O102W)6470.3 SD pO<! Di,.." """",1997 Mon,," V"'" P,'" ., .. - - 4.4 Hazardous Substance Investigation and Remediation. On or before the expiration of the Contingency Period (subject to such extensions as provided in this Agreement), Purchaser shall have approved or disapproved, in Purchaser's reasonable discretion, the results of any and all Hazardous Substances investigations of the Property as described in this Section 4.4. Promptly following the date of the this Agreement and in no event later than twenty (20) days following the Opening of Escrow, Seller shall, at Seller's sole cost and expense, select and retain the services of a qualified envirorunental consultant to conducted a "Phase I" envirorunental investigation and analysis of the Property and any improvements located thereon. Seller specifically acknowledges that Purchaser shall have the right to review and approve the selection of the envirorunental consultant and the scope of the Hazardous Substance investigation work to be perfonned by such consultant in connection with the preparation of the Phase I, such approval not to be unreasonably withheld or delayed. In addition, Purchaser shall have the right, but not the obligation, to participate in the Hazardous Substance investigation described herein directly or through one or more designated agents, employees, consultants, or contractors. The complete Phase I shall be immediately provided to Purchaser upon completion of the same and shall be subject to Purchaser's approval or disapproval on or before the Contingency Date as hereinafter provided. 4.4.1 All Hazardous Substance investigation work and remediation work (if required) including, without limitation, the Phase I and any Phase II investigation which may be required, shall be undertaken and perfonned by the approved consultant in accordance with all applicable laws and regulations and in a manner consistent with the ordinary and customary practices and standards in the industry which are applicable to the perfonnance of such investigation work and to the satisfaction of Purchaser and all appropriate regulatory agencies. Without limitation, the parties agree that the general scope of the Phase I Hazardous Substances investigation shall include each of the following items: 4.4.1.1 The detennination, in relation to the activities of Seller and its prior lessees and/or sublessees, if any, of the existence of Hazardous Substances, on, in or under the Property, whether contained in barrels, tanks, equipment (moveable or fIXed), or other containers; deposited or located in Land, water, sumps, or in any other part of the Property; incorporated into any improvement on the Property, or otherwise existing thereon or thereunder; 4.4,1.2 The detennination of 'whether there were/are spills, discharges, releases, deposits, or emplacements of any Hazardous Substance that have occurred on and originated from the Property in violation of any Envirorunental Laws; 4.4.1.3 The detennination of whether any asbestos-containing materiais have been installed in or affIXed to the improvements on the Property and whether such materials have been stored or disposed of on the Property in violation of any Envirorunental Laws; 4.4.1.4 The detennination of whether any electrical transfonners, fluorescent light fIXtures, or other electrical equipment containing PCBs are or have been installed -11- ...... 901029\964703 4-1(, sO'ort D,..,jot """'".1997 Marino V,""."'" .. - .. in, affixed to, or were located on the Property, and whether there have been any releases therefrom in violation of any Envirornnental Laws; and 4A. 1.5 The determination of whether there were/are storage tanks for gasoline or any other substance located on the Property, whether aboveground, underground, or within a structure, and if such tanks have leaked in violation of any Envirornnental Laws. 4.4.2 Seller and Purchaser agree that if the Phase I indicates or recommends the need for additional "Phase II" investigation and testing, Seller and Purchaser shall, no later than ten (10) days following the issuance of the Phase I report, meet and confer to determine (a) whether or not to proceed with the Phase II investigation and testing, and if Seller and Purchaser agree to proceed, (b) the appropriate scope of work to be performed in connection with such Phase II investigation. The scope of work for the Phase II investigation and testing shall include an estimate of the cost to perform any necessary remediation work, if any and the and the time required for the completion thereof. Seller agrees to pay for all costs of Phase I and Phase II analysis and testing as provided for in this Agreement. 4.4.3 If the Phase II report indicates or recommends the need for remediation of Hazardous Substances in, on or under the Property, Seller and Purchaser shall, no later than ten (10) days following the issuance of the Phase II report, meet and confer to determine (a) whether or not to proceed with the transaction contemplated by this Agreement, and authorize the Hazardous Substances remediation work recommended in the Phase II report, and, if both parties reasonably agree authorize such remediation work, (b) the appropriate scope of the remediation work and cleanup standards to apply thereto. In addition to the termination right of the parties set forth in Section 4.4.4, if the envirornnental consultant retained by the Seller (and approved by Purchaser) determines and provides the parties with a written estimate stating that the cost of the Hazardous Substances remediation work recommended in the Phase II report will exceed One Hundred Thousand Dollars ($100,000), either party shall have the right to terminate this Agreement and the Escrow by written notice to the other party and Escrow Holder not later than thirty (30) days after the parties have received such written estimate. 4.4.4 Despite any provision in this Agreement to the contrary, if the envirornnental consultant retained by the Seller and approved by the Phase II testing is needed, either party may terminate this Agreement for a period of up to sixty (60) days after the receipt of the Phase II report, In the event of any such termination, Buyer and Seller shall each be relieved of their respective obligations under this Agreement, except for those obligations which by the terms of this Agreement, survive such termination. 4.4.5 As used in this Agreement, the following defmitions shall apply: "Environmental Laws" shall mean all federal, state and local laws, ordinances, rules and regulations now or hereafter in force, as amended from time to time, in any way relating to or regulating human health or safety, or industrial hygiene or environmental conditions, or protection of the environment, or pollution or contamination of the air, soil, surface water or groundwater, and includes, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 V.S.C. Sections 9601, et. ~ ("CERCLA"), the Resource -12- ...... 901029\96470.3 4-/7 SD Port D""'" Apnl ". 1997 M""na View P.. 'I o. Conservation and Recovery Act, 42 U.S.C. Sections 6901, et. ~ ("RCRA"), the Clean Water Act, 33 U.S.C. Sections 1251, et.~, the Hazardous Substance Account Act, California Health and Safety Code Sections 25300, et. ~, the Hazardous Waste Control Law, California Health and Safety Code Sections 25100, et.~, the Medical Waste Management Act, California Health and Safety Code Sections 25015, et. ~, and the Porter-Cologne Water Quality Control Act, California Water Code Sections 13000, et. ~ "Hazardous Substance(s)" shall mean any substance or material that is described as a toxic or hazardous substance, waste or material or a pollutant or contaminant or infectious waste, or words of similar import, in any of the Environmental Laws, and includes asbestos, petroleum or petroleum products (including crude oil or any fraction thereof, natural gas, natural gas liquids, liquefied natural gas, or synthetic gas usable for fuel, or any mixture thereof), polychlorinated biphenyls, urea fonnaldehyde, radon gas, radioactive maner, medical waste, and chemicals which may cause cancer or reproductive hanD. "Release" shall mean any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing into the environment, including continuing release and/or migration, of Hazardous Substances into or through soil, air, surface water or groundwater. 4.5 Cure and Waiver Rj¡¡hts. Unless either Seller or Purchaser has elected to tenninate this Agreement in accordance with the provisions set forth in Section 4.4, provided Seller, at its option, no later than twenty (20) days of receipt of Purchaser's disapproval of any of the matters Purchaser has the right to disapprove pursuant to the tenDS or this Agreement as specifically set forth in Sections 4.1. 4.2. 4.3. and 4.4 , advises Purchaser that Seller intends to cure said disapproved matter(s), Seller shall have until the Close of Escrow to cure such matter(s) , and, if timely cured, Escrow shall close as set forth herein. In the event such disapproved maner(s) is not cured by Seller by the scheduled Close of Escrow (as the same may be extended), Purchaser shall have the right, in Purchaser's reasonable discretion, to provide written notice (which written notice shall be given by Purchaser to Seller no later than the first business day following the second regularly scheduled meeting of the Port Board following the scheduled Close of Escrow) to either (i) waive Purchaser's objection to such disapproved matter(s) and proceed with the Close of Escrow; or (ii) tenninate the Escrow. Seller's failure. to deliver notice of its intent to cure a disapproved matter to Purchaser within said twenty (20) business days after Seller's receipt of Purchaser's notice of disapproval thereof shall constitute Seller's refusal to cure any such disapproved matter. Upon expiration of said twenty (20) day period, Purchaser shall have until no later than the flfSt business day following the second regularly scheduled meeting of the Port Board following Seller's refusal to cure any such disapproved matter in which to advise Seller and Escrow Holder in writing that Purchaser is willing to waive the previously disapproved matter(s). Delivery of such notice of waiver shall continue this Agreement and the Escrow. Failure to deliver such notice of waiver shall constitute Purchaser's election to tenninate this Agreement and the Escrow. Upon any tennination of this Agreement in accordance with the provisions of this Section 4.5 neither party shall have any further obligation to the other, except for those obligations, if any, which by the tenDS of this Agreement survive such tennination. All costs of Escrow and all title and escrow cancellation charges shall be shared equally by Purchaser and Seller. -13- 4-/f ...... 901029196470.3 SDP"" D..tncI ",,"111,1997 Manna V;- P"" ., -. 4.6 Deliverv of Studies and Reoorts. In the event that this Agreement is terminated without the Property having been conveyed to Purchaser, then (a) Purchaser shall promptly deliver to Seller a copy of all of Purchaser's Studies, including all preliminary, interim and final environmental reports, engineering reports and appraisals prepared by or for Purchaser with respect to the Property, and (b) all documents and other information, of whatever nature and in whatever form, with respect to the Property, heretofore or hereafter delivered by or on behalf of Seller to Purchaser its agents or other designees, shall be returned to Seller by Purchaser. 5 Title Insurance Policv. Upon the transfer of the Property, title to the Property shall be insured by a CL T A policy of title insurance issued by the Title Company (unless Purchaser has requested extended ALTA coverage prior to such date) with liability in the amount of the Purchase Price, with such endorsements as may be required by Purchaser in its reasonable discretion, insuring title to the Property to be vested in Purchaser or Purchaser's nominee, subject only to current real estate taxes not delinquent and the Permitted Exceptions. 6 Prorations. Seller's Cooperation Followinl! Close of Escrow. 6,1 Prorations. 6.1.1 All real and personal property taxes based on the most recent property tax bills available, shall be paid by Seller. 6.1.2 All bonds or special assessments against the Property due before the Close of Escrow shall be paid by Seller and all bonds or special assessments due after the Close of Escrow, which relate to any period prior to the Close of Escrow, shall be paid by Seller. 6.1.3 Any supplemental tax bills received by Purchaser following the Close of Escrow relating to a period prior to the Close of Escrow shall be prorated by the parties as if said tax bills had been available at the Close of Escrow. 6.1.4 All rents, issues and profits from the Property, utilities, and such other matters as the parties shall instruct Escrow Holder, if any, shall be prorated, and the Escrow Holder shall provide Seller and Purchaser with a summary of such prorations for approval by Purchaser and Seller at least five (5) business days prior to the Close of Escrow. 6.2 Seller's Cooperation With Purchaser. Seller agrees to cooperate with Purchaser in providing for an orderly transition in utility service for the Property, to the extent applicable. In this connection, Seller agrees, upon receipt of a request from Purchaser, to continue the utility service for the Property in Seller's name but at Purchaser's expense for a period not to exceed ten (10) business days following the Close of Escrow. 7 Costs. Seller and Purchaser shall each pay one half (1/2) of the Escrow fees. Seller shall pay for the cost of obtaining a CLTA policy of title insurance and all endorsements thereto, all documentary or other transfer taxes (if required), sales taxes, deed preparation and recordation charges. Each party shall pay its own attorneys' fees and other expenses incurred by it in -14- ...... 901029\96470.3 4-1' so P,," OI,IricI April 11, '997 Marino VI.. Pm "[ . - - . connection herewith. Each party shall pay for any and all other title or escrow charges necessary to close Escrow pursuant to the local customs of the county in which the Property is located. 8 Nominee/Assignment. Subject to Seller's prior written consent, which shall not be unreasonably withheld, conditioned or delayed, Purchaser shall have the right to designate a nominee to take title to the Property, or assign its rights hereunder, by delivering written notice thereof to Escrow Holder and Seller at least five (5) business days prior to the Close of Escrow; provided, however, such assignment or substitution shall in no event delay the Close of Escrow. 9 Seller's Warranties- Seller hereby covenants that the following representations and warranties of Seller are true as of the date of this Agreement and shall be true and correct as of the Close of Escrow. Purchaser's rights with respect to the following representations and warranties shall survive the Close of Escrow. 9.1 Power and Authoritv of Seller. Seller is a redevelopment agency duly organized and validly existing under the laws of the State of California. Seller is the owner of the Property and has the requisite right, power and authority to sell, convey and transfer the Property to Purchaser, as provided herein, and to enter into and carry out the terms of this Agreement and the execution and delivery hereof and of all other instruments referred to herein. The performance by Seller of Seller's obligations hereunder will not violate or constitute an event of default under the terms and provisions of any material agreement, document or instrument to which Seller is a party or by which Seller is bound. All proceedings required to be taken by or on behalf of Seller to authorize it to make, deliver and carry out the terms of this Agreement have been duly and properly taken. No further consent of any person or entity is required in connection with the execution and delivery of, or performance by Seller of its obligations under this Agreement. 9.2 Validitv of Agreement. This Agreement is a valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, subject to the effect of applicable bankruptcy, insolvency, reorganization, or other similar laws affecting the rights of creditors generally. 9.3 Litigation. To the best of Seller's actual knowledge, there are no pending actions, suits, arbitrations, claims or proceedings, at law or in equity, affecting all or any portion of the Property or in which Seller is or will be a party by reason of Seller's ownership of the Property , including, without limitation, judicial, municipal or administrative proceedings in eminent domain, alleged health and safety or zoning violations, personal injuries or property damages alleged to have occurred on the Property or by reason of the condition or use of the Property, and, to the best of Seller's actual knowledge, no events have occurred which might give rise to such actions, claims or proceedings. 9.4 Compliance with Laws. To the best of Seller's actual knowledge, the Property is currently in full compliance with all applicable federal, state and local building, zoning, planning, environmental, handicapped, parking, health and insurance laws and regulations. No notices of violation of or exemptions from governmental regulations relating to the Property or -15- ...... 901029\9601703 4-,,2.J) SO PO<t Ol.trict ""'",1997 M...n. V¡ow Pm ., _. - . Seller have been issued to, served upon, received by or entered against Seller and no such violations or exemptions exist. 9,5 Land Use Relrulations. Seller has not received any written notice of any condemnation, environmental, planning, zoning or other land use regulation adversely affecting the Property or any part thereof To the best of Seller's actual knowledge, the Property is in compliance with all federal, state and local zoning and general plan designations and there are no legal nonconfonning uses or structures of or on the Property; provided, however, Purchaser specifically acknowledges and agrees that the foregoing representations do not extend to any future use of the Property by Purchaser for a use other than its present use as a park. 9.5.1 Taxes. Other than the amounts disclosed by the tax bills delivered to Purchaser by Seller, to the best of Seller's actual knowledge, no other real property taxes, assessments, or other governmental charges or exactions ("Taxes") have been or will be assessed against the Property for the current tax year except for Taxes which may be assessed due to the change of ownership of the Property. 9.5.2 Personal Proœrtv. To the best of Seller's actual knowledge, the Personal Property, if any, to be conveyed to Purchaser is free and clear and clear of all liens and encumbrances. 9.5.3 Other Contracts. Seller has not entered into any other contracts for the sale of the Property, nor do there exist any leases, subleases or rights of first refusal or options to purchase the Property. 10 Purchaser's Warranties. Purchaser hereby covenants that the following representations and warranties of Purchaser are true and shall be true and correct as of the Close of Escrow. Seller's rights with respect to the following representations and warranties shall survive the Close of Escrow: 10.1 Power and Authoritv of Purchaser. Purchaser is a port district duly organized and existing under the laws of the State of California and duly qualified to conduct business activities in the State of California. Purchaser has the requisite power and authority to enter into and carry out the tenDS of this Agreement and the execution, performance and delivery hereof and of all other agreements and instruments referred to herein to be executed, perfonned or delivered by Purchaser and the perfonnance by Purchaser of Purchaser's obligations hereunder will not violate or constitute an event of default under the tenDS and provisions of any material agreement, document or instrument to which Purchaser is a party or by which Purchaser is bound, Except as otherwise specifically provided in this Agreement, all proceedings required to be taken by or on behalf of Purchaser to authorize it to make, deliver and carry out the tenDS of this Agreement have been duly and properly taken. Except as otherwise specifically provided in this Agreement, no further consent of any person or entity is required in connection with the execution and delivery of, or perfonnance by Purchaser of its obligations under this Agreement. -16- 4-.J-I 999999 ""0291964703 sop"" D;,trict April 11.'997 M...no View Pori< .. 10.2 Validity of Al!reement. This Agreement is a valid and binding obligation of Purchaser, enforceable against Purchaser in accordance with its terms, subject to the effect of applicable bankruptcy, insolvency, reorganization, or other similar laws affecting the rights of creditors generally. 11 Chanl!e in Condition of Prooertv. Seller covenants and agrees to promptly advise Purchaser of any change in the physical condition of the Property, or of any damage or destruction to the Property, or of any change in the legal status, zoning, or land use designation of the property, or upon receipt of any notice or obtaining any other knowledge regarding (i) any adverse change in the legal status or entitlements of the Property, or (ii) the condemnation of the Property or any portion thereof ("Change in Condition"). If Seller has received or, prior to the Close of Escrow, receives notice or otherwise obtains knowledge of any actual or pending Change in Condition, (a) Seller may elect to correct such Change in Condition at Seller's expense prior to the Close of Escrow, and shall notify Purchaser of such Change in Condition and Seller's intended action within ten (10) calendar days after receipt of such notice or of obtaining such knowledge; (b) if Seller desires to correct such Change in Condition but if such correction cannot be accomplished prior to the Close of Escrow, Seller shall notify Purchaser of such Change in Condition and its desire to correct the same and shall thereupon commence and diligently prosecute the same to completion, at Seller's sole cost and expense, as promptly as possible and the Close of Escrow shall be delayed until completion of such correction, but in no event longer than thirty (30) days, or (c) Seller shall submit such notice or knowledge to Purchaser and notify Purchaser in writing that Seller does not intend to correct such Change in Condition (or that such is not subject to correction). Within ten (10) calendar days of receipt of such notice not to cure, Purchaser may elect to acquire the Property subject to such Change in Condition (subject to such adjustment of the Purchase Price as may be mutually agreed upon by Seller and Purchaser following a re-appraisal of the Property which shall be required to consider the impact of such Change in Condition on the use and development of the Property) or Purchaser may elect to terminate this Agreement and neither party will have any further obligation to the other party (except for those obligations, if any, which by the terms of this Agreement, survive such termination) in which case the Deposit previously released to Seller, with all interest accrued thereon, shall be returned to Purchaser by Seller and escrow cancellation costs shall be shared equally by Purchaser and Seller. Any work required to be performed by Seller pursuant to the tenns of this Agreement shall be perfonned in accordance with all applicable laws in effect at the time such work is perfonned. In the event Purchaser does not elect to terminate this Agreement as provided above, Seller shall assign and turn over to Purchaser any and all insurance proceeds received (or to be received) as compensation for such Change In Condition and any and all awards for any taking by eminent domain which accrue to Seller pursuant to an assigrunent between Seller, as assignor, and Purchaser, as assignee, and containing tenns and conditions reasonably acceptable to Purchaser. 12 Covenants of Seller and Purchaser Prior to Closinl!. 12.1 Covenants of Seller. During the period from the Opening of Escrow until the earlier of (a) Close of Escrow or (b) the tennination of this Agreement, Seller shall, in addition to the covenants set forth elsewhere in this Agreement: (i) Maintain adequate insurance coverage -17- 999999901029\960470.3 -4 -~;).. so Pon D"m" ""'11.1997 M"'no VI- P"" .. - . for the Property; (ii) Not permit or suffer to exist any voluntary encumbrance, charge or lien to be placed or claimed upon the Property urness such encumbrance, charge or lien has been approved in writing by Purchaser (which approval shall not be unreasonably, withheld, conditioned or delayed) and urness such monetary encumbrance, charge or lien will be removed by Seller upon the Close of Escrow; (iii) Not enter into any lease, service or other contract relating to the Property which will survive the Close of Escrow without the prior written consent of Purchaser, which consent will not be unreasonably withheld, conditioned or delayed; (iv) Promptly notify Purchaser in writing if any of the representations and warranties set forth in this Agreement are no longer true and correct; (v) Not sell, convey, assign, transfer, encumber or otherwise dispose of the Property, or any part thereof or interest therein, and shall not, without the prior written consent of Purchaser, not to be unreasonably withheld, conditioned or delayed, make any modifications or alterations to the Property; (vi) Not take any other action which may have an adverse affect upon the Property or upon Purchaser if Purchaser acquires the Property; (vii) Other than the continued use, maintenance and regulation of the Property as a City park, not commence any action with respect to the Property, without fITst obtaining the prior written consent of Purchaser, which consent shall not to be unreasonably withheld, conditioned or delayed; (viii) Not use, produce, process, manufacture, generate, treat, handle, store, release, spill or dispose of any Hazardous Substances in, on or under the Property, or use the Property for any such purposes, or release any Hazardous Substances into any air, soil, surface water or groundwater comprising the Property, or permit any person using or occupying the Property or any part thereof to do any of the foregoing in violation of any Envirornnental Laws; and (ix) Comply, and shall cause all persons using or occupying the Property (if any) or any part thereof to comply, with all Envirornnental Laws applicable to the Property, or the use or occupancy thereof, or any operations or activities therein or thereon; and 12.2 Mutual Covenants Regarding Park Maintenance Agreement. Promptly following the Opening of Escrow, Seller and Purchaser shall reasonably cooperate and negotiate in good faith, an amendment ("Park Maintenance Amendment") to that certain agreement for tidelands maintenance services entered into between Seller and Purchaser dated February 11, 1997, ("Park Maintenance Agreement")- The Park Maintenance Amendment shall provide generally that Purchaser shall pay Seller, or its designee, the costs for the continued cleaning, landscaping and maintenance of the Property as a public park and except as otherwise specifically agreed to by the parties, the Park Maintenance Amendment shall be on terms and conditions substantially similar to those set forth in the Park Maintenance Agreement. 13 Post Closing Covenant Regarding Land Use Controls. The parties acknowledge that the current use of the Property is for a public park and such use is currently controlled by the California Coastal Commission ("CCC") and Seller. The Purchaser desires to have freedom to put the Property to its highest and best use consistent with Purchaser's public trust obligations as set forth in the Harbors and Navigation Code and uses which can be permitted by those public agencies or entities with land use authority over the Property. Seller further acknowledges that except for the jurisdiction of the CCC, Purchaser asserts that, upon its acquisition of the Property, it shall have exclusive land use jurisdiction over the use and development of the Property, including, without limitation, control over zoning and all approvals, permits and authorizations required to enable Purchaser to use and develop the Property. Despite the -18- 999999 90'029\9601703 4-.2.3 SD Port D.."", """ 11. '997 Morina VI- P"," - . foregoing, Purchaser agrees to advise Seller of any proposed development plans for the Property and meet and confer with Seller prior to the implementation of any change in the use of the Property to other than park purposes. The foregoing covenant and agreement of the parties shall survive the recordation of the Grant Deed and the Close of Escrow. 14 No Brokers. Seller hereby represents and warrants to Purchaser, and Purchaser hereby represents and warrants to Seller, that no other brokers or finders have been engaged by it, respectively, in connection with any of the transactions contemplated by this Agreement or to its knowledge is in any way connected with any such transactions. In the event of any claims for brokers' or finders' fees or commissions in connection with the negotiation, execution or consummation of this Agreement, then Seller shall indemnify, save harmless and defend Purchaser from and against such claims if they shall be based upon any statement, representation or agreement by Seller, and Purchaser shall indemnify, save harmless and defend Seller from and against such claims if they shall be based upon any statement, representation or agreement by Purchaser. 15 Waiver of Performance. Either party may waive the satisfaction or performance of any conditions or agreements in this Agreement which have been inserted for its own and exclusive benefit, so long as the waiver is signed (unless the Agreement provides for a non-written waiver) and specifies the waived condition or agreement and is delivered to the other party hereto and the Escrow Holder. 16 Section Headings. The section headings of this Agreement are for the purposes of reference only and shall not be used for limiting or interpreting the meaning of any section. 17 Notices. All notices under this Agreement shall be in writing and shall be effective upon receipt whether delivered by personal delivery or recognized overnight delivery service, telecopy, or sent by United States registered or certified mail, retUrn receipt requested, postage prepaid, addressed to the respective parties as follows: If to Seller: The City of Chula Vista 276 4th Avenue Chula Vista, California 91910 Attention: Fred Kassman, Redevelopment Coordinator If to Purchaser: The San Diego Unified Port District 3165 Pacific Coast Highway, 7th Floor San Diego, California 92101 Attention: Torn Morgan -19- 4 - 2. '-I 999999 90'029\960470.3 SDPcrt D"met ApnI".1997 M..... v~ P"", " .' - .. With a copy to: Procopio, Cory Hargreaves & Savitch LLP 530 B Street, Suite 2100 San Diego, California 92101 Attention: Eric B. Shwisberg, Esq. If to Escrow Holder: Stewart Title Company 7676 Hazard Center Drive, 7th Floor San Diego, California 92108 Attention: Frank Green Any party can notify the other party of their change of address by notifying the other party in writing of the new address. 18 Final Inspection. Purchaser shall have the right to make a final walk through inspection of the Property prior to the Close of Escrow to confinn that there has been no Change in Condition to the Property following its initial inspection during the Contingency Period. 19 Indemnification OblilZations. Seller shall indemnify, defend, and hold harmless Purchaser from and against any legal or administrative proceeding brought against Purchaser, insofar as they relate to environmental demands, claims, liabilities, fines, penalties, or costs occasioned by the negligent or intentional activities of Seller, its lessees, and/or sublessee on the Property, which arose during Seller's ownership of the Property, including, without limitation, any loss to Purchaser occasioned by the existence of Hazardous Substances on or in the Property caused as a result of Seller's use and/or occupancy of the Property, breaches of the warranties contained herein, and any inaccurate representations made by Seller; provided, however, any such damages caused by Purchaser's negligence or willful misconduct shall be excluded from Seller's indemnity obligations hereunder. The indemnities described above specifically include, but are not limited to, the direct obligation of Seller, the indemnitor, to perfonn promptly any remedial or other activities required or ordered by any administrative agency or governmental official, or otherwise necessary to avoid injury or liability to any person or property originating from the Property, to prevent the spread of pollution, or to pennit continued safe operation of the Property, to the extent such is required. This indemnification obligations herein contained shall survive in perpetuity the Close of Escrow and the recordation of the Grant Deed. 20 Time of Essence. TIME AND EACH OF THE TERMS, COVENANTS, CONDITIONS AND CONTINGENCIES OF THIS AGREEMENT ARE HEREBY EXPRESSLY MADE OF THE ESSENCE. 21 Counterparts. This Agreement may be executed in several counterparts and all such executed counterparts shall constitute one agreement, binding on all of the parties hereto, notwithstanding that all of the parties hereto are not signatories to the original or to the same -20- 4 - ;J..~ ...... 9010291964703 so Port a¡,- ...' 11, 1997 M"'08 Viow Pari< " - - counterpart. This Agreement shall not be binding unless and until all parties hereto have executed the Agreement. 22 Governing Law, The validity, construction and operational effect of this Agreement shall be governed by the laws of the State of California. 23 Attornevs' Fees and Costs. In any action or arbitration between the parties hereto seeking the interpretation or enforcement of any of the terms and provisions of this Agreement, or in connection with the Property or the Escrow, the prevailing party in such action shall be awarded, in addition to damages, injunctive or other relief, its reasonable costs and expenses, and reasonable attorneys' fees. 24 Prior Agreements. This Agreement supersedes any and all oral or written agreements , between the parties hereto regarding the Property which are prior in time to this Agreement. Neither Purchaser nor Seller shall be bound by any prior understanding, agreement, promise, representation or stipulation, express or implied, not specified herein. 25 Further Assurances. Purchaser and Seller agree to execute all documents and instruments reasonably required in order to consummate the purchase and sale herein contemplated. 26 Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of permitted successors and assigns of the parties hereto. 27 Possession, Seller shall deliver possession of the Property to Purchaser as of the Close of Escrow. 28 Severabilitv. If any portion of this Agreement is held to be unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall remain in full force and effect. 29 Performance Due on Non-Business Dav. If the time period for the performance of any act called for under this Agreement expires on a Saturday, Sunday, or any other day in which banking institutions in the State of California are authorized or obligated by law or executive order to close ("Holiday"), the act in question may be performed on the next succeeding day that is not a Saturday, Sunday or a Holiday. 30 Survival of Reoresentations. Warranties and Agreements. All representations, warranties and agreements contained herein shall survive the Close of Escrow for a period of twelve (12) months after the Close of Escrow, except for environmental, endangered or threatened species, critical habitat and natural resources claims which shall survive as long as Purchaser is permitted to assert such claims pursuant to applicable local, State and federal law. Purchaser and Seller hereby agree to indemnify, defend and hold harmless the other from any and all loss, liability, damage, cost or expense (including, without limitation, attorneys' fees) resulting from any inaccuracy in or breach of any representation, warranty or covenant by the indemnifying party . I -21- 999999 90'029\964703 4 - .t' SD Port Di,trid ApriI11,1997 M"'"" v;- P,,", .. 31 Amendments. This Agreement may be amended only by written agreement signed by both of the parties hereto. IN WITNESS WHEREOF, Seller and Purchaser have executed this Agreement as of the date first above written. PURCHASER: SELLER: THE SAN DIEGO UNIFIED PORT THE CITY OF CHULA VISTA, DISTRICT, a public corporation a municipal corporation By: By: Name: Name: Title: Title: By: ATTEST: Name: Title: City Clerk Agency Secretary APPROVED AS TO FORM: By: Name: Title: City/Agency Attorney -22- 4-:L7 ...... 901029\960170.3 SOPcrt Olotriot "'" 11, '997 M8riMVI_P"", - - EXHIBIT A LEGAL DESCRIPTION See Attached 4-;¿C¡ EXHIBIT A-I 999999 9010291964103 SD Port D""'" """'",1991 _VI_P... .. 01-147708 LEGAL DESCRIPTION THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF DIEGO COUNTY AND IS DESCRIBED AS FOLLOWS: PARCEL 1 OF PARCEL MAP NO. 4950, IN THE CITY OF CBULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JULY 28,1976, AS FILE NO. 76-239746 OF OFFICIAL RECORDS. RESERVING THEREFROM ALL OIL, GAS, AND OTHER HYDROCARBON AND MINERAL SUBSTANCES (EXCEPT WATER) LYING NOT LESS THAN ONE HUNDRED (100) FEET BELOW THE SURFACE OF SAID REAL PROPERTY, PROVIDED, THAT FIRST PARTY, ITS SUCCESSORS AND ASSIGNS, SHALL NOT HAVE THE RIGHT TO GO UPON THE SURFACE OF SAID REAL PROPERTY FOR THE PURPOSE OF EXTRACTING SAID OIL, GAS OR OTHER HYDROCARBON AND MINERAL SUBSTANCES, NOR FOR ANY PURPOSE IN CONNECTION THEREWITH, BUT SHALL HAVE THE RIGHT TO EXTRACT AND REMOVE SAID OIL, GAS AND OTHER HYDROCARBON AND MINERAL SUBSTANCES BY MEANS OF SLANT-DRILLED WELLS LOCATED ON ADJACENT OR NEARBY LAND, OR BY OTHER MEANS WHICH SHALL NOT REQUIRE ENTRY UPON THE SURFACE OF SAID REAL PROPERTY. 4.-2' .. -, - - EXHIBIT B FORM OF GRANT DEED RECORDING REQUESTED BY AND WHEN RECORDED MAlL TO: MAlL TAX STATEMENTS TO: The San Diego Unified Port District 3165 Pacific Coast Highway, 7th Floor San Diego, California 92101 Attention: GRANT DEED Assessor's Parcel Number: In accordance with Section 11932 of the California Revenue and Taxation Code, Grantor has declared the amount of the transfer tax which is due by a separate statement which is not being recorded with this Grant Deed. FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, the undersigned, THE CITY OF CHULA VISTA ("Grantor"), hereby grants to THE SAN DIEGO UNIFIED PORT DISTRICT, a public corporation ("Grantee"), that certain real property in the City of Chula Vista, County of San Diego, State of California described in Exhibit A attached hereto and incorporated herein (the "Property"), Balance of Page Intentionally Left Blank 4-30 EXHIBIT B-1 ...... 901029\964703 so.on O"lne! ",,"'", '997 M""""""'."" " - ., SUBJECT TO: (1) All non-delinquent tax liens; (2) All matters of record or actually known by Grantee; and (3) All matters that may be revealed by a physical inspection. The conveyance of the Property is further subject to the following rights reserved by Grantor: Subject to the limitations set forth herein, Grantor hereby reserves the right to enter onto the Property and remove the playground equipment located on the Property in the event the use of the Property is converted to a use other than as a public park. In such event Grantee shall provide Grantor with written notice of such conversion in use and Grantor shall have a period of (30) days following receipt of such notice to enter onto the Property to remove the playground equipment then located thereon. Such right of entry shall expire upon the first to occur of (i) the expiration of the thirty (30) day period prescribed in the preceding sentence; or (ii) July 31, 2001, at which time the rights of Grantor as reserved in this Grant Deed shall be void and of no further force or effect. Grantor acknowledges and agrees that the exercise of Grantor's reserved rights as set forth herein shall be subject to such reasonable requirements as may be imposed by Grantee regarding Grantor's the entry onto the Property. THE CITY OF CHULA VISTA By: Name: Title: Dated: , 1997 MAIL TAX STATEMENTS AS SET FORTH ABOVE 4-.3' EXHIBIT B-2 999999 90'029.96<70' sop"" Ol,tria ....' 11.1997 -noV~P'" ï - . - EXHffiIT A TO GRANT DEED See Legal Description Attached ...... 9010291964703 4-3~ SD pO<! Di'lnd April 11, 1997 Monna View Pao1< ., -" - - 01-147708 LEGAL DESCRIPTION THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF DIEGO COUNTY AND IS DESCRIBED AS FOLLOWS: PARCEL 1 OF PARCEL MAP NO. 4950, IN THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JULY 28,1976, AS FILE NO. 76-239746 OF OFFICIAL RECORDS. RESERVING THEREFROM ALL OIL, GAS, AND OTHER HYDROCARBON AND MINERAL SUBSTANCES (EXCEPT WATER) LYING NOT LESS THAN ONE HUNDRED (100) FEET BELOW THE SURFACE OF SAID REAL PROPERTY, PROVIDED, THAT FIRST PARTY, ITS SUCCESSORS AND ASSIGNS, SHALL NOT HAVE THE RIGHT TO GO UPON THE SURFACE OF SAID REAL PROPERTY FOR THE PURPOSE OF EXTRACTING SAID OIL, GAS OR OTHER HYDROCARBON AND MINERAL SUBSTANCES, NOR FOR ANY PURPOSE IN CONNECTION THEREWITH, BUT SHALL HAVE THE RIGHT TO EXTRACT AND REMOVE SAID OIL, GAS AND OTHER HYDROCARBON AND MINERAL SUBSTANCES BY MEANS OF SLANT-DRILLED WELLS LOCATED ON ADJACENT OR NEARBY LAND, OR BY OTHER MEANS WHICH SHALL NOT REQUIRE ENTRY UPON THE SURFACE OF SAID REAL PROPERTY. 4-33 "[ - . - " CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT STATE OF CALIFORNIA ) --- OPTIONAL SECTION --- ) CAPASelier CLAIMED BY SIGNER COUNTY OF SAN DIEGO ) Though ,,"tute does not "qul,e the No",y to hll In the dm be'ow, doing so mey pmve in"'",b'e to pe"ons '"'ying on the document. On , 1997 before me, , Notary Public, personally 0 INDIVIDUAL appeared 0 CORPORATE OFFICERIS) 0 personally known to me - OR - 0 proved to me on the basis of TITlEISI satisfactory evidence to be the person(s) 0 PARTNERIS) 0 LIMITED whose names Is) is/are subscribed to the DGENERAl within instrument and acknowledged to 0 ATTORNEY-IN-FACT 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 the instrument the person(s), or the 0 OTHER: entity upon behalf of which the person(s) acted, executed the instrument. SIGNER IS REPRESENTING: INAME OF PERSONISI OR ENTlTYIiESIl WITNESS my hand and official seal. tSIGNATURE OF NOTARYI OPTIONAL SECTION THIS CERTIFICATE MUST BE ATTACHED TO TITLE OR TYPE OF DOCUMENT THE DOCUMENT DESCRIBED AT RIGHT: NUMBER OF PAGES - OATE OF DOCUMENT Though the de" "quested h... is not "qui"d by law. it could p'event '"udulent ,"attachment of this SIGNERIS) OTHER THAN NAMED ABOVE fo,m. 4 -.34 999999 9Ot029l964703 SDP"" District April 11, 1997 M..... Yiew P"", .. - .. SEPARATE STATEMENT OF DOCUMENTARY TRANSFER TAX San Diego Recorder County Clerk 1600 Pacific Highway Room 260 San Diego, California 92101 Dear Sir or Madam: In accordance with Section 11932 of the California Revenue and Taxation Code, it is requested that this Statement not be recorded with the attached Grant Deed but be affixed to the Grant Deed after recordation and be returned as directed thereon. The Grant Deed names THE CITY OF CHULA VISTA, as Grantor and THE SAN DIEGO UNIFIED PORT DISTRICT, a public corporation, as Grantee. The property being transferred is located in the City of Chula Vista, County of San Diego, State of California. The amount of documentary transfer tax due on the attached Grant Deed is Dollars and _/100 Cents ($ ), computed on the full value of the property. THE CITY OF CHULA VISTA By: Name: Title: Dated: , 1997 ...... 90102"""03 4 - 35' SD pO<! D;,tnct ApriII1,I991 Morina v;... p"" " - ,. EXHIBIT C FORM OF ASSIGNMENT OF INTANGIBLES AND WARRANTIES ASSIGNMENT OF INTANGIBLES AND WARRANTIES THIS ASSIGNMENT OF INTANGIBLES AND WARRANTIES is made this - day of ,1997, by and between THE CITY OF CHULA VISTA ("Assignor"), and THE SAN DIEGO UNIFIED PORT DISTRICT, a public corporation ("Assignee"), with reference to the following facts: A. Assignor is selling to Assignee certain real property, and improvements located thereon (the "Property"), more particularly described in the Agreement of Purchase and Sale and Escrow Instructions by and between Assignor as Seller and Assignee as Purchaser (the "Purchase Agreement"). B. Assignor has used or acquired (or may have acquired) certain intangible rights in connection with the Property, including, but not limited to, any trade name used in connection with the Property, various easements, licenses, pennits, air rights, certificates of occupancy, rights of way, sewer agreements, water line agreements, utility agreements, water rights and oil, gas and mineral rights (collectively, the "Intangibles") and has also acquired, or may have acquired, certain express and implied warranties (the "Warranties"). C. Assignor hereby desires to assign to Assignee all of its right, title and interest in and to the Intangibles and the Warranties, to the extent such right, title and interest may exist and is assignable by Assignor. NOW, THEREFORE, in consideration of the mutual covenants and conditions hereinbelow set forth, the parties hereto agree as follows: 1. Effective as of the Close of Escrow, as that phrase is defined in the Purchase Agreement, Assignor hereby assigns and transfers to Assignee all of Assignor's right, title and interest in and to the Intangibles and the Warranties, to the extent such right, title and interest may exist and is assignable by Assignor. 2. Assignee hereby accepts the assignment of the Intangibles and the Warranties as of the Close of Escrow and shall be entitled to all rights and benefits accruing to the Assignor thereunder and hereby assumes all obligations thereunder from and after the Close of Escrow. 3. The provisions of this instrument shall be binding upon and inure to the benefit of Assignor and Assignee and their respective successors and assigns. 4. This Assignment may be executed in counterparts which taken together shall constitute one and the same instrument. EXHIBIT C - 1 4 -.a(, ...... 9O'02N04703 SD Port D".'" ..." 11. '997 M,.;na v~ P"", ., -, 5- Assignor hereby covenants that it will, at any time and from time to time, execute any documents or take such additional actions as Assignee or its successors or assigns shall reasonably require in order to more completely or perfectly carry out the transfers intended to be accomplished by this Assignment. IN WITNESS WHEREOF, the panies hereto have entered into this Assignment oflntangibles and Warranties as of the date first set fonh above. "ASSIGNOR" THE CITY OF CHULA VISTA By: Name: Title: "ASSIGNEE" THE SAN DIEGO UNIFIED PORT DISTRICT, a public corporation By: Name: Title: By: Name: Title: 4-~7 EXHIBIT C - 2 ...... 901029\96470.3 SD PO<1 Dlomd ,,<>"111,1997 Morina Vlow P"" " - , EXHIBIT D FORM OF NON-FOREIGN AFFIDAVIT CERTIFICATION BY ENTITY TRANSFEROR THAT IS NOT A FOREIGN CORPORATION. PARTNERSHIP, TRUST OR ESTATE Section 1445 of the Internal Revenue Code provides that a transferee of a U.S. real property interest must withhold tax if the transferor is a foreign corporation, partnership, trust or estate. To inform the transferee that withholding of tax is not required upon the disposition of a U.S. real property interest by THE CITY OF CHULA VISTA ("Transferor"), the undersigned hereby certifies the following, on behalf of Transferor: a. Transferor is not a foreign corporation, foreign partnership, foreign trust or foreign estate (as those terms are defined in the Internal Revenue Code and Income Tax Regulations); b. The U.S. employer identification number of Transferor is ; and c. Transferor's office address is: The City of Chula Vista Transferor understands that this certification may be disclosed to the Internal Revenue Service by the transferee and that any false statement contained herein could be punished by fine, imprisonment, or both. Under penalty of peIjury, 1 declare that 1 have examined this certificate and to the best of my knowledge and belief, it is true, correct and complete. Dated: ,1997. THE CITY OF CHULA VISTA By: Name: Title: 4-ß-i EXHIBIT D - 1 999999 9O1!J25196.470.3 SDP"" D.."", ""'11,1997 M..na View .'"' " - - EXHIBIT E WITHHOLDING EXEMPTION CERTIFICATE TO BE PROVIDED 4 -~ '1 EXHIBIT E - 1 ...... 901029\96470.3 SDP"" Di,lrict ApiII1. '997 MariM V"", P"" ., .., - " EXHIBIT F FORM OF BILL OF SALE TO BE PROVIDED 4-</.0 EXHIBIT F - 1 ...... 90'029\960470.3 SD Port DI,triot """'. '997 M..no VI- P"", l - . - EXHIBIT G FORM OF PRELIMINARY CHANGE OF OWNERSHIP TO BE PROVIDED 4-el( EXHIBIT G - 1 ...... 901029196470.3 SO PO<1 OiSm ""'".1997 ""~V;ewP"" ., - . REDEVELOPMENT AGENCY AGENDA STATEMENT Item ~ Meeting Date 05-06-97 ITEM TITLE: 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 Resolution Making required findings under the California Redevelopment Act and Approving an Agreement of Purchase and Sale and Escrow Instructions between the City of Chula Vista and San Diego Unified Port District for the Sale of 980 Lagoon Drive SUBMITTED BY: C~œ;', Oml...., DI.". ~ REVIEWED BY: Executive Director ~ ~ /7 \ (415ths Vote: Yes- NoJl) Staff requests that this item be continued to the Redevelopment Agency meeting of May 20, 1997. IFKI H,\HOME\COMMDEV\STAFF.REP\O5.06.97IPORTSAlA.113[ApriI30, 199714,02pmll ., .' JOINT REDEVELOPMENT AGENCY/COUNCIL AGENDA STATEMENT Item " Meeting Date 05106/97 ITEM TITLE: AGENCY RESOLUTION /S.!J f COUNCIL RESOLUTION /11' efr APPROVING A SECOND AMENDMENT TO THE EXISTING AGREEMENT WITH PACIFIC BAY HOMES AND THE CITY OF CHULA VISTA TO PROVIOE LOW AND MODERATE INCOME HOUSING ANO TRANSFER THE UNUSED PORTION OF THE PER UNIT SUBSIDY FOR USE IN SALT CREEK RANCH FOR DEVELOPMENT AND PROCESSING FEES FOR THE CONSTRUCTION OF AFFORDABLE HOUSING UNITS SUBMITTED BY: '~~;ty D~I._t DI.". ~ REVIEWED BY: Executive Director~ ,... --:? (4/5ths Vote: Yes- No..I..J BACKGROUND: On March 3, 1992 Pacific Bay Homes (formally FN Projects) entered into an agreement with the City to provide 52 low and moderate income housing units in Salt Creek I in conformance with the City's Housing Element. The applicant agreed to provide 13 low-income units and 39 moderate income units within the Cabo condominium complex. The purchase price for the Cabo low.income units started at $115,000 at that time. For affordability purposes Pacific Bay Homes agreed to subsidize the low-income units through an in.lieu payment to the City of $600 per market rate unit throughout the Salt Creek I subdivision consisting of 523 units (includes the communities of Cabo, Chapala, and EstansiaJ. The $600 per unit subsidy is based on 503 units so approximately $301,878 was to be paid to the City. On June 30, 1992 Council approved an assistance program to utilize the subsidy funds provided by Pacific Bay Homes in the form of a silent second loan for $23,200 per household. The silent second loan amount was based on the total of $301,878 that was to accrue in the subsidy account divided equally for each of the 13 units. Staff was prepared to implement the loan program, however, the subsidy payments did not accrue quickly enough for the funds to be utilized. Additionally, Pacific Bay Homes has now advised staff that the units located in Cabo are being sold to low.income persons without using the subsidy. Staff has reviewed income documentation on the 12 low-income purchasers and determined that Pacific Bay Homes has substantially met their affordable housing obligation per the agreement. Therefore, the purpose of this item is to approve a Second Amendment to the existing Agreement in order to reflect that Pacific Bay has substantially met their affordable housing obligations, and that the remaining subsidy funds are to be used by the City to develop a first time home buyer's program and for payment of fees for providing future affordable units. b-( ., - . Page 2. Item -'- Meeting Date 05106/97 RECOMMENDATION: That the City Council and Redevelopment Agency adopt the resolution approving the second amendment to the existing agreement with Pacific Bay Homes to provide the City with $25,000 to develop a first time home buyer's program and transfer the unused per unit subsidy to Salt Creek Ranch for development and processing fees for the construction of affordable housing units. BOARDS/COMMISSIONS RECOMMENDATION: The Housing Advisory Commission approved the terms of the second amendment to the existing agreement with Pacific Bay Homes. DISCUSSION: In 1992 when the units were originally marketed for sale, the purchase price started at $115,000 for a two- bedroom unit. At that time, the silent second was necessary for a low.income person to qualify for a unit. Currently, this same unit is selling for $99,900. The drop in purchase price enables a low-income person to purchase the unit without the subsidy assistance and Pacific Bay Homes indicated to staff that 12 of the 13 units have been sold to low-income households. With the decrease in sales price and the marketing incentives offered by Pacific Bay Homes, the units sold out before a thirteenth unit could be purchased by a low-income household. However, since the agreement specifies the sale of 13 units, staff negotiated $25,000 of the per unit subsidy for use by the City to develop and implement an assistance program for first.time home buyers. The $25,000 is approximately one-thirteenth of the $301,878 that was to accrue in the subsidy account. Pacific Bay Homes is also currently negotiating with the City regarding their Affordable Housing Agreement for the Salt Creek Ranch development. Staff and Pacific Bay Homes determined that the subsidy funds could assist in providing affordable housing units in Salt Creek Ranch by using the subsidy funds to pay for City-imposed developer fees in accordance with the Affordable Housing Agreement. To-date an estimated $255,000 has accrued in the subsidy account. Pacific Bay Homes will have approximately $230,000 (less the $25,000) for use in Salt Creek Ranch to pay for processing and development fees. The terms of the second amendment have been reviewed and approved by the City Attorney's office and are being amended as follows: New Section 3.1 which reads as follows shall be added to the Agreement: 3.1 Housino Credit. City acknowledges and agrees that Applicant has provided and shall be credited with providing 12 low. income units to qualified households in Salt Creek I. City agrees that providing the 12 units shall constitute satisfaction of Applicant's Outy to Provide Moderate and low Income Housing Units as required by paragraph 3 of the Agreement. City further agrees to execute, at no cost or expense to the City, such documentation as reasonable required acknowledging Applicant's satisfaction of its Duty to Provide Moderate and low Income Housing Units in Salt Creek I and relieving Applicant of its duty to pay the affordable housing subsidy of $ 600 per paragraph 4.1 of the Agreement. ~ -d- ., 0, Page 3. Item (, Meeting Date 05/06/97 4.1 Low Income Housino Subsidy. The sixth sentence of Section 4,1 which reads as follows, is hereby deleted in its entirety: "At the point at which 2.5% of the Total Salt Creek I units are sold as Low Income Housing Units in accordance with this Agreement, any unused funds in the escrow account shall be returned to Applicant within forty-five (45) days after the sale of the last unit compromising 2.5% of the total Salt Creek I Units." 4.1.1 Use of Per Unit Subsidy. New Section 4.1.1 which reads as follows shall be added to the Agreement: 4.1.1 Use of Per Unit Subsidv. The Per Unit Subsidy shall be applied as follows: [a] $25,000 of the Per Unit Subsidy shall be used by the City at its sole discretion to provide affordable housing opportunities within the City of Chula Vista; Ib] 50% of the balance remaining of the Per Unit Subsidy funds after payment to City of [a] above shall be used by Applicant for City.imposed processing and engineering fees such as sewer, traffic signal and development impact fees associated with the development and construction of low. income housing in the first phase of Applicant's project known as Salt Creek Ranch and pursuant to and in accordance with the Affordable Housing Agreement by and between City and Applicant as to Salt Creek Ranch; Ic] the remaining 50% balance plus accrued interest after [a] and Ib] above shall be used by Applicant for City-imposed processing and engineering fees such as sewer, traffic signal and development impact fees associated with development and construction of . low-income housing in the second phase of Applicant's project known as Salt Creek Ranch and pursuant to and in accordance with the Affordable Housing Agreement by and between City and Applicant as to Salt Creek Ranch; and Id] the funds referred to in subparts [b] and [c] of this paragraph shall be placed in a City planning or engineering account for the purposes specified. Estimates received by the Engineering department indicate that the processing and engineering fees associated with the construction of the affordable housing units will exceed $500,000 per phase. The approximate balance of $230,000 in subsidy funds will be applied toward these City.imposed fees. Therefore, the per unit subsidy funds will remain with the City in the form of fee payments and will also be used for the original intent to provide affordable housing opportunities within the City of Chula Vista. FISCAL IMPACT: The funds in the subsidy account will be used to provide affordable housing opportunities within the City of Chula Vista. A portion of the per unit subsidy in the amount of $25,000 will be used by the City at its sole discretion to provide a first-time home buyer assistance program, and approximately $230,000 remaining in the subsidy account will be maintained in a City account for use by Pacific Bay Homes for City. imposed processing and engineering fees associated with the production and construction of affordable housing units for both phase I and phase II in Salt Creek Ranch. IJR H,IHOMEICOMMOEv\STAFF.REPIO5.06.97ICABOIIMay 1, 19971B.5Bamll 6 -,,3 ., . " AGENCY RESOLUTION NO. ~r and COUNCIL RESOLUTION NO. ~, JOINT RESOLUTION OF THE CITY COUNCIL AND THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA APPROVING A SECOND AMENDMENT TO THE EXISTING AGREEMENT BETWEEN PACIFIC BAY HOMES AND THE CITY OF CHULA VISTA TO PROVIDE LOW AND MODERATE INCOME HOUSING AND TRANSFER THE UNUSED PORTION OF THE PER UNIT SUBSIDY FOR USE IN SALT CREEK RANCH FOR DEVELOPMENT AND PROCESSING FEES FOR CONSTRUCTION OF AFFORDABLE HOUSING UNITS WHEREAS, on September 12, 1989 the City Council approved Resolution 15299, detailin9 the tentative map requirements for the subdivision of Salt Creek I; and WHEREAS, Condition No. 11 of the tentative map required Applicant to reach an agreement with with the City to devote at least 10 percent of the project units to low and moderate income housing; and WHEREAS, on May 14, 1991, the City and Applicant entered into a Supplemental Subndivision Improvement Agreement known as Document No. CO91-081 which shifted the burden of Condition No. 11, as it applies to Chula Vista Tract 89-9, units 1, 2, and 3 to the remainder of Salt Creek I; and WHEREAS, City and Applicant entered into a First Amendment to the Supplemental Subdivision Improvement Agreement regarding Condition No. 11 on December 17, 1991 which further shifted the burden on Condition No, 11 as it applies to Chula Vista Tract 89-9, Unit 4, to the remainderof Salt Creek I ("Condominium Housing Area") and set forth that the applicants obligation is to provide 2,5 percent of the total project units as Low Income and 7,5 percent of the total project units as Moderate Income Housing units; and WHEREAS, the City and Applicant entered into an agreement to provide Low and Moderate Income Housing within Salt Creek I, know as Document No. CO92-026, a copy of which is on file in the office of the City Clerk which was previously amended on June 30, 1992; and WHEREAS. the parties desire to amend such agreement in order to reflect Applicant's satisfaction of its Salt Creek I affordable housing requirements and the transfer of remaining affordable housing funds to the Salt Creek Ranch project to assist in the development of affordable housing, NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does hereby find, order, determine, resolve, to approve the terms and conditions of a second amendment to the existing agreement between Pacific Bay Homes and the City of Chula Vista to provide Low and Moderate Income Housing in the Salt Creek I development as set forth in the second amendment, know as Document Number CO97 -' a copy of which is on file in the Office of the City Clerk, BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby authorized to execute said amendment to the agreement on behalf of the City of Chula Vista. ,,-4 '1 . - , " Presented by Approved as to form by {J~. ~/ Chris Salomone Director of Community Development IIJFI H,\HOMEICOMMDEV\RESOS\CABO1.RES IAp';129, 1997 ",36pmll 6-S- ., - - - - RECORDING REQUESTED BY: city Clerk WHEN RECORDED MAIL TO: City of Chula vista 276 Fourth Avenue Chula Vista, California 91910 Attention: Chris Salomone ABOVE SPACE FOR RECORDER'S USE ONLY SECOND AMENDMENT TO AGREEMENT TO PROVIDE LOW AND MODERATE INCOME HOUSING This SECOND AMENDMENT TO AGREEMENT TO PROVIDE LOW AND MODERATE INCOME HOUSING (" Second Amendment") is made as of , 1997 for the purpose of reference only by and between THE CITY OF CHULA VISTA, California, a municipal corporation ("City") and PACIFIC BAY HOMES (formerly known as FN PROJECTS,) a California corporation ("Applicant"), with reference to the facts set forth below. WHEREAS, City and Applicant entered into an agreement on March 3, 1992, to provide Low and Moderate Income Housing within Salt Creek I, known as document number C092-026, a copy of which is on file in the Office of the City Clerk ("the Agreement"); and WHEREAS, City and Applicant entered into a First Amendment to the Agreement to Provide Low and Moderate Income Housing, which First Amendment was approved by Resolution 16699 on June 30, 1992 ("First Amendment"); and WHEREAS, since 1992, Applicant has been paying the Per unit Subsidy as required by the Agreement and the money subsidy has accrued in a sum rendering it financially possible to assist potential low income housing purchasers; and WHEREAS, the parties to the Agreement and First Amendment wish to be able to provide financial assistance to potential low income households by means other than those provided for in the Agreement and First Amendment according to the terms and conditions set forth below; and WHEREAS, Applicant has provided 12 low income housing units to qualified households in Salt Creek I, which units were not subsidized by the City and were not deed-restricted; and WHEREAS, the parties to the Agreement and First Amendment wish to allow Applicant to use a portion of the Per Unit Subsidy for certain allowable development fees on Applicant's project known as Salt Creek Ranch. 1 ,-~ " -. - .. NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as set forth below: 1. Low Income Housinq units. New section 3.1 which reads as follows shall be added to the Agreement: 3.1 Housinq Credit. City acknowledges and agrees that Applicant has provided and shall be credited with providing 12 low income units to qualified households in Salt Creek 1. City agrees that providing the 12 units shall constitute satisfaction of Applicant's Duty to Provide Moderate and Low Income Housing units as required by paragraph 3 of the Agreement. City further agrees to execute, at no cost or expense to the City, such documentation as reasonably required acknowledging Applicant's satisfaction of its Duty to Provide Moderate and Low Income Housing units in Salt Creek I and relieving Applicant of its duty to pay the affordable housing subsidy of $600 per paragraph 4.1 of the Agreement. 2. Low Income Housinq Subsidy. The sixth sentence of Section 4,1, which reads as follows, is hereby deleted in its entirety: "At the point at which 2.5% of the Total Salt Creek I units are sold as Low Income Housing units in accordance with this Agreement, any unused funds in the escrow account shall be returned to Applicant within forty-five (45) days after the sale of the last unit comprising 2.5% of the total Salt Creek I units." 3. Use of Per unit Subsidy. New Section 4.1.1 which reads as follows shall be added to the Agreement: 4,1.1 Use of Per unit Subsidy. The Per Unit Subsidy shall be applied as follows: (a) $25,000 of the Per unit Subsidy shall be used by City in its sole discretion to provide affordable housing opportunities within the CITY OF CHULA VISTA; (b) 50% of the balance remaining of the Per unit Subsidy funds after payment to city of (a) above shall be used by Applicant for City-imposed processing and engineering fees such as sewer, traffic signal and development impact fees associated with development and construction of low-income housing in the first phase of Applicant's project known as Salt Creek Ranch and pursuant to and in accordance with the Affordable Housing Agreement by and between City and Applicant as to Salt Creek Ranch; (c) the remaining 50% balance plus accrued interest after (a) and (b) above shall be used by Applicant for City-imposed processing and engineering fees such as sewer, traffic signal and development impact fees associated with development and construction of low-income housing in the second phase of Applicant's project known as Salt Creek Ranch and pursuant to and in accordance with the Affordable Housing Agreement by and between city and Applicant as to Salt Creek Ranch; and (d) 2 6-7 .. - .. the funds referred to in subparts (b) and (c) of this paragraph shall be held by City in an interest-bearing account for the purposes specified. 4. General Provisions. New Section 13.16 which reads as follows shall be added to the Agreement: 13.16 No Third Party Beneficiaries. No claim as a third party beneficiary under the Agreement or any Amendment thereto by any person or entity shall be made or be valid against City or Applicant. 5. Defined Terms. Capitalized terms not otherwise defined in this Second Amendment shall have the meanings attributed to them in the Agreement and First Amendment. 6. Effect on Aqreement. Except as modified by the terms of this Amendment, the Agreement and First Amendment shall remain in full force and effect. 7. Counterparts. This Second Amendment may be executed in counterparts, of which, when taken together, shall constitute a fully executed original. WHEREUPON THE PARTIES HERETO DO HEREBY INDICATE THEIR CONSENT TO THE TERMS OF THIS SECOND AMENDMENT BY SETTING THEIR SIGNATURE HEREINBELOW, AND BY DOING SO, REPRESENT THAT THEY WERE AUTHORIZED BY THEIR PRINCIPAL TO EXECUTE THE AGREEMENT ON BEHALF OF THEIR PRINCIPAL. CITY: Dated: THE CITY OF CHULA VISTA, a municipal corporation By: Shirley Horton, Mayor Approved as to form by city Attorney APPLICANT: Dated: PACIFIC BAY HOMES, a California corporation By: Its c: \Agot\FNaoend 3 '-f? -. - - - .