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Home My WebLink AboutRDA Packet 1995/07/25 Tuesday, July 25, .1995 6:00 p.m. (immediately following the City Council meeting) Council Chambers Public Services Building Adiourned Special Joint Meeting of the Redevelopment Agencv ICilY Council of the Citv of Chula Vista 1. ROLL CALL: 2. APPROVAL OF MINUTES: CALL TO ORDER Agency/Council Members Alevy _' Moot _' Padilla_, Rindone _' and Chair/Mayor Horton _ June 3, 1995 and July 11, 1995 BUSINESS 3. Written Communications: None. 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 Secretary of the Redevelopment Agency or the City Clerk prior to the meeting. (Complete the green form to speak in favor of the staff recommendation; complete the pinkform to speak in opposition to the staff recommendation.) Comments are limited to five minutes per individual. 4. PUBLIC HEARING: 't> ~ ., 8. - E t~ Cb'rvE- ::SbtD"t: Cb.c:: c: '1:7 0 ;5'- CD...::: -.. .. ;:..g~&:z: .~.sEc:~ ct t:' ~;"'; Q.~C'CJcv- ::JQ.-.... ~8~;j: -b""'-cttC: cr; 0 ~:S tb c::.i::ISc::~ Cl ~(jg.ob !::! ... Q.l _ ctt.,,::, __ Q,I..c: ~.f:!:: " 'tj .... Q.l 0' Q) ii) S..'" Cl ~fl" l-J CD..Q ~ ~.~ "'... b:!': t:i ~ .... -.. CD e c:'" "'" ~ r- i::~' .~~ . 'C' 7" : t' (.1 .:- E . t'; .. tD \.. ,.:r i-_ .. ;] JOINT REDEVELOPMENT AGENCY/CITY COUNCIL HEARING PURSUANT TO THE CHULA VISTA MUNICIPAL CODE AND CALIFORNIA HEALTH AND SAFETY CODE SECTION 33431 AND 33433 REGARDING THE PROPOSED DISPOSITION BY THE AGENCY OF CERTAIN REAL PROPERTY LOCATED AT 760 BROADWAY COMPRISED OF APPROXIMATELY 2.53 ACRES TO BROADWAY VILLAGE BUSINESS HOMES, L.P. AND THE PROPOSED DEVELOPMENT OF SAID PROPERTY INTO A 36-UNIT MIXED-USE BUSINESS HOMES PROJECT, SUCH PUBLIC HEARING TO CONSIDER THE FOLLOWING SPECIFIC PROPOSED ACTIONS:-- The City Council and Redevelopment Agency are requested to hold the requisite public hearings and take the actions necessary to approve the Broadway Business Homes Project and authorize execution of a Disposition and Development Agreement with Joelen Enterprises (Josef and Lenore Citron) for the development of the project. Actions required include a zoning change for the project from Thoroughfare Commercial to Central Commercial-Precise Plan; a Special Use Permit with Shared Parking Agreement to establish the mixed-use project; and approval of a Precise Plan with Conditions for development of the Project and approval of the DDA, and sale of the property without public bidding. Staff recommends the Council and Agency approve Agenda A. JOINT COUNCIL RESOLUTION 17964 AND AGENCY RESOLUTION 1460 B. COUNCIL ORDINANCE 2636 C.AGENCY RESOLUTION 1461 D. JOINT AGENCY RESOLUTION 1462 AND COUNCIL RESOLUTION 17965 -2- July 25, 1995 the resolutions and place the Ordinance on first reading. Continued from the meetine of Julv 11. 1995. (Community Development Director) 1. Review and adoption of Mitigated Negative Declaration and Addendum IS-95-03 2. Approval of an amendment to the zoning map or maps established by Section 19.18.010 of the Chula Vista Municipal Code by rezoning the 2.532 acre parcel located at 760 Broadway within the Southwest Redevelopment Project Area from C- T (Commercial Thoroughfare) to C-C-P (Central Commercial with Precise Plan) 3. Issuance of a Special Use Permit to construct a 36-unit commercial/residential mixed-use project with Shared Parking Agreement 4. Approval of a Precise Plan to allow construction of a 36-unit mixed- use project including associated site improvements 5. Approval of a Disposition and Development Agreement between the Agency and Joelen Enterprises ADOPTING MITIGATED NEGATIVE DECLARATION AND ADDENDUM IS-95-03 FOR A 36-UNIT BUSINESS HOMES PROJECT AT 760 BROADWAY AMENDING THE ZONING MAP OR MAPS ESTABLISHED BY SECTION 19.18.010 OF THE CHULA VISTA MUNICIPAL CODE BY REZONING THE 2.53 ACRE PARCEL LOCATED AT 760 BROADWAY WITlllN THE SOUTHWEST REDEVELOPMENT PROJECT AREA FROM CoT (COMMERCIAL THOROUGHFARE) TOC-C-P, CENTRAL COMMERCIAL WITH PRECISE PLAN (First Reading) MAKING CERTAIN FINDINGS AND GRANTING A SPECIAL USE PERMIT FOR THE DEVELOPMENT OF A MIXED-USE PROJECT KNOWN AS THE BROADWAY BUSINESS HOMES PROJECT, LOCATED AT 760 BROADWAY WlTlllN THE SOUTHWEST REDEVELOPMENT PROJECT AREA TO BROADWAY VILLAGE BUSINESS HOMES, L.P. APPROVING A PRECISE PLAN FOR THE BROADWAY BUSINESS HOMES PROJECT AND A DISPOSITION AND DEVELOPMENT AGREEMENT WITH BROADWAY BUSINESS HOMES, L.P., AND AUTHORIZING THE CHAIR TO EXECUTE SAME Agenda -3- July 25, 1995 E. AGENCY RESOLUTION 1463 WAIVING THE CONSULTANT SELECTION PROCESS, AUTHORIZING EXECUTION OF A TWO-PARTY AGREEMENT BETWEEN THE REDEVELOPMENT AGENCY AND WOODW ARD- CLYDE CONSULTANTS FOR SOIL TESTING AND REMEDIATION CONSULTING SERVICES AT 760 BROADWAY, AND APPROPRIATING FUNDS THEREFOR--Demolilion of buildings allhe Fuller Ford site will necessitate removal of contaminated soils. It will be necessary to have a qualified hazardous materials consultant present during demolition. Staff recommends approval of the resolution. NOT A PART OF THE PUBLIC HEARING. BUT A RELATED ITEM. Continued from the meetin!! of Julv 11. 1995. (Community Development Director) ORAL COMMUNICATIONS This is an opportunity for the general public to address the Redevelopment Agency on any subject matter wi/hin the Agency's jurisdiction that is not an item on this agenda. (State law, however, generally prohibits the Redevelopment Agency from taking action on any issues not included on the posted agenda.) If you wish to address the Council on such a subject, please complete the yellow" Request to Speak Under Oral Communications Fonn" 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. Your time is limited to three minutes per speaker. OTHER BUSINESS 5. DIRECTOR'S/CITY MANAGER'S REPORT(S) 6. CHAIR'SIMAYOR'S REPORT<S) a. Discussion of Broadway Business Homes Project (Citron). The request is to discuss in Closed Session. 7. AGENCY/COUNCIL MEMBER COMMENTS ADJOURNMENT The meeting will adjourn to the Regular Redevelopment Agency Meeting on August I, 1995 at 4:00 p.m., immediately following the City Council meeting, in the City Council Chambers. * * * * * * COMPLIANCE WITH THE AMERICANS WITH DISABILITIES ACT The City of Chula Vista, in complying with the Americans With Disabilities Act (ADA), request individuals who require special accommodations to access, attend. and/or participate in a City meeting, activity. or service request such accommodation at least forty-eight hours in advance for meetings and five days for scheduled services and activities. Please contact the Secretary to the Redevelopment Agency for specific information at 619.691.5047 or Telecommunications Devices for the Deaf (TDD) at 619.585.5647. California Relay Service is also available for the hearing impaired. [C:I WP5 t IAGENCYIAGENDASI07 -25-95 .AGD] MINUTES OF AN ADJOURNED SPECIAL MEETING OF THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA Saturday, June 3, 1995 11:02 a.m. Council Conference Room City Hall Building CALL TO ORDER 1. ROLL CALL: PRESENT: Members Alevy, Moot, Padilla, Rindone, and Chair Horton ABSENT: None. ALSO PRESENT: John D. Goss, Executive Director; Chris Salomone, Community Development Director; Glen Googins, Deputy City Attorney; Fred Kassman, Redevelopment Coordinator; and Berlin D. Bosworth, Secretary to the Redevelopment Agency BUSINESS 2. RESOLUTION 1454 APPROPRIATING FUNDS. ACCEPTING BIDS, AND AWARDING CONTRACT FOR DEMOLITION AND SITE CLEARANCE OF EXISTING BUILDINGS AT THE FULLER FORD SITE AT 760 BROADWAY IN THE CITY OF CHULA VISTA, CALIFORNIA (RD-133)--The work includes removal of buildings and disposal of existing improvements, excavation, grading, and other miscellaneous work. The clearance of the site is being done to facilitate the construction of the Broadway Business Homes project. Continued from the meeting of May 30, 1995. (Community Development Director/Director of Public Works) Member Rindone noted how diligently Redevelopment staff worked but requested, as part of the back- up material, that the original staff report which came before the Agency twice before, be attached to the current staff report. Community Development Director Salomone presented a brief staff report. At the meeting of 6/30/95 discussion was held about determining the amount of hazardous material or contamination on the site in advance of demolishing what could be buildings of value. To expedite the matter, staff was asked to return to the Agency today with a position on beginning pre-testing of the site, under an agreement that the applicant would share part of those costs with the City. The cost sharing formula would have the applicant pay the first $10,000 and the City paying the second $10,000. Additional costs, up to $40,000 would be split 50/50. This agreement was based on the City going after the actual polluters should any contamination of any extent be discovered on the site that could not be readily remediated. Staff did not believe there was extensive or unusual contamination on the site other than petrochemical or hydraulic fluid which could be readily remediated in a cost-effective manner. Staff would like the Agency to accept that position. Staff would then proceed immediately. There was a demolition contract before the Agency on 5/30/95 that was being held in abeyance until the soils testing was completed. Demolition of the buildings would take away the value of the structures. Staff had been in negotiations with the applicant on developing a Disposition and Development Agreement. The Broadway Business Homes was a project the Agency deemed valuable enough to give the applicant an exclusive negotiation agreement. The project was a pioneering effort and a pure redevelopment project. It had the opportunity to enhance the Broadway corridor, even to the extent of a spinoff benefit, and change the character of that area. The decision on whether to have existing types of businesses continue or develop the Broadway Business Homes project had not been brought forward to the Agency because of the exclusive negotiation agreement. But because another offer had been made, and because the offer was to continue the use as is, the Agency was now faced with that ~ -/ Minutes June 3, 1995 Page 2 economic dilemma. Staff and the applicant agreed a Disposition and Development Agreement would be drafted. There were only several issues in contention and those could be resolved. However, should some issues not be resolved, staff would bring those forward to the Agency. In light of the fact the Agency had another offer and Agency Counsel was not present, staff hoped the demolition contract could be postponed for one week. Staff expected to receive, within 10 days, a verbal assessment of the contamination characterization of the site from the consultant. Executive Director Goss noted the normal process was for the issues and risks to be identified and resolved through the Disposition and Development Agreement. The question was whether it was appropriate to raze what may be value in advance of having all the issues and risks nailed down in the Disposition and Development Agreement. The issue was whether there were buildings on the site that would have some value which would be destroyed by demolition. Rod Davis, Executive Director, Chula Vista Chamber of Commerce, 233 Fourth Avenue, Chula Vista pointed out the Chamber was supportive of the Broadway Business Homes Project. Jim Courtney of Courtney Tire has been a mainstay in the retail business in the community and if Mr. Courtney said he can make a go of a big tire center, then he can make it go. The real issue before the Agency was what character did the Agency want on Broadway. What do we want the Redevelopment Agency to do in that neighborhood: the project that has been worked on for 13 months to change the nature or a project which would undoubtedly be successful but maintain the nature. Agency Member Moot stated he had never heard of anybody buying potentially contaminated property as is. Federal law and, under State law, the owner of the property was responsible for cleaning it up. What does as is mean? Mr. Salomone replied normal contingencies spoken to in the offer by the applicant would include some definition or characterization of the site. The applicant would want the project to be financeable and, should they desire to sell the property in the future, would not want the property to be in a condition of contamination that would prohibit the property from being resold. The as is would speak to the advanced characterization of the site as clean. Agency Member Moot suspected that to be the case. The applicant does not want it contaminated; Courtney Tire may be able to use the property as is, but it would depend on the levels of contamination. The contamination question must be answered before the Agency can knock down buildings. Deputy City Attorney Googins noted a dilemma with the demolition decision was that the Agency could not find out the extent of contamination until the buildings were demolished. Pre-testing would indicate what was there, but not how much. Remediation costs might be iess should a business be located there which was similar to what was there prior, than should the buildings be demolished. Chair Horton asked if Fuller Ford would ultimately be responsible for remediation. Attorney Googins replied staff was researching that question. Anything that Fuller Ford did, staff believed, they would be ultimately responsible for remediation. The issue was collectibility. Insurance policies which were written after 1974 do not have environmental coverage for most environmental problems. To the extent Fuller Ford has a post-1974 insurance policy protecting them, then there would be an insurance carrier to proceed against. Chair Horton asked if staff had looked into that. Attorney Googins answered staff was analyzing that and would get the insurance contracts from Fuller Ford should they exist. To the extent Fuller Ford was not insured, the Agency would have to pursue ,2-2- Minutes June 3, 1995 Page 3 him, personally, and then the question would be whether he had the money to pay. That information would not be available in time to keep the applicant on their time schedule. Chair Horton noted the applicant would be paying some of the up-front costs and inquired if they would be reimbursed. Mr. Salomone acknowledged that had been discussed with the applicant. Mr. Fuller was doing everything in his power to provide those insurance documents to staff. The weight of State law, through the Planco Act which serves redevelopment agencies, tended to get insurance companies to negotiate a settlement. Member Padilla asked if there was anything in the law, because of federal and state regulations, which would make any agreement unenforceable. Member Moot pointed out the law required the owner of the property to clean it up. Attorney Googins responded private parties could enter into agreement amongst themselves as to how they might share costs between themselves for any particular environmental problem. As an innocent transitory property owner, as the Agency could arguably be in this case, CERQA would not likely aggressively pursue a claim unless there was a huge environmental problem. Member Padilla stated if there was a large environmental problem, through arbitration it could be found that the holder of the title at the time could be 100 percent responsible for the clean up costs. Attorney Googins said that was potentially the case. More often than not, the perpetrator was identified and would be the one pursued, with priority, by any clean up agency. Member Moot pointed out petrochemical contamination usually fell under the County Hazardous Materials and they make the property owner clean it up. They have never, to his knowledge, gone after a prior owner. Chair Horton wanted to know the bottom line should the site be contaminated. Was Fuller Ford ultimately responsible? Attorney Googins replied the perpetrator would be pursued first by regulatory agencies. That did not mean the City would not be either concurrently, and/or in lieu of them not being able to honor a clean up operation deal, pursued. Chair Horton asked if the City could then go after Fuller Ford. Attorney Googins answered that was correct. Member Rindone asked if the offer for the parcel by Courtney Tires was to purchase the entire parcel. Mr. Salomone replied it was staff's understanding that the Courtney Tire offer was to purchase the entire site. Member Rindone asked if that offer were to proceed, would the offer for the South Bay Chevrolet site continue or terminate. Mr. Salomone responded the offer was to purchase both sites. c2~j Minutes June 3, 1995 Page 4 Member Rindone said it appeared to him that a major decision was made by a prior City Council in the interest of redevelopment and the responsibility should have been secured at that time by that Council and lor staff in determining the changeltransfer of the property in pursuing development of the Auto Park in the thrust of promoting redevelopment. The issue about contamination needed to be resolved, but it was not necessarily the responsibility of a new purchaser of that property, whether the applicant or Courtney Tire. It was an issue the City needed to deal with and was responsible along with the predecessor. The purpose of redevelopment agencies was to improve blighted areas, to progress and to grow, and to make a change and a difference. He noted he had seen very few projects which have been proposed that addressed the tenets of the purpose of redevelopment agencies as well as this project has for potential. You can always tweak and do things a little differently, but ultimately if the Agency wanted to fulfill what needed to be done and make a significant difference, then the Executive Manager's recommendation to proceed, as far as staff was concerned, was most appropriate. The issue of contamination needed to be resolved, but the Agency should not want to hold up the opportunity before the Agency. On page 5-3 of the original staff report of May 23, 1995 where it talked about soil testing, Current information indicates that the Fuller Ford site is free from soil contamination. However, since hydraulic lifts are located on the site, it is possible that some seepage at the base of the lifts has occurred. Agency staff is currently contracting for soils tests in these areas to determine if there is any subsurface contaminations. Unless the buildings are ultimately removed, there cannot be a final clarification of contamination. A determination cannot be made to demolish the buildings unless there is a determination to proceed with the project. A decision has to be made. If this Agency was really fostering to promote the tenets of what redevelopment agencies were established for, why it was encouraged, why it can use tax incentives for future years, then the Agency needed to move on. He was not hesitant to wait for this short period of timenseven to ten daysnfor the preliminary review to ensure there was no contamination. If the report did not come back showing major contamination, then the Agency needed to move forward, otherwise this project would be cancelled. Chair Horton noted staff's recommendation was to accept the report and reserve action on the demolition of the structures on the site until the results of the soil testing were complete. Was that still staff's recommendation? Mr. Salomone replied that was correct. Mr. Josef Citron thanked the Agency on behalf of Lenore Citron and he for giving of their time by coming in on a Saturday to hear the item. He stated the Citrons were willing to work along the lines that have been suggested. He had a caution: it was his understanding it would be eight weeks before there would be a final report from the tentative testing that was being done. The demolition of the buildings, if it were then ordered at that time, would be another 1-1/2 months to 2 months, which would mean it would be November or December before they could get into the ground on the projectn which would be the rainy season. That would mean the project would be a 1996 project and they would have to make a business decision with respect to whether that made any sense at all to them. They have tentative interest in purchases. The offer was made, in writing, 13 months ago and they were not changing that. He requested the Agency hear the item a week from June 6 and if staff was able to tell the Agency substantial progress had been made and it expected to come to closure on the Disposition and Development Agreement, then the Agency should consider ordering the demolition of the buildings to start at that time so they can get into the ground this year. If that happened, they would make a commitment to have construction drawings into the Building Department on July 21. MOTION: [Horton/Moot] to accept staff recommendation: that the Agency accept the Report and reserve action on the demolition of structures on the site until the results of the soil testing become available. Member Padilla stated he was prepared to support staff's recommendation but nothing beyond that. ;2..-1 Minutes June 3, 1995 Page 5 The Citrons know he was very supportive of seeing the project come to fruition. However, there were still a number of unresolved questions to be answered such as: the value of any ultimate City subsidy; what the pattern of regulatory enforcement would be, should greater contamination be found post- demolition; what the disposition of any potential remediation costs would be post-demolition. Chair Horton concurred with Member Padilla about his concerns as well as other concerns expressed. Member Rindone asked staff to summarize what they viewed they were attempting to do, and what they would bring back to the Agency. Mr. Salomone acknowledged staff was working on a number of fronts: the core testing would be initiated on the site; negotiations would continue on the Disposition and Development Agreement with the attorney and applicant; and staff would determine, to the extent that it could, the legal remedies and insurance capabilities to pay for any unknown hazardous contamination on the site. Staff would bring the item to the Agency on July 13. Staff will meet with the applicant prior to the July 13 meeting. Member Alevy sought clarification on the motion. Member Horton pointed out the motion would accept staff's report and reserve any action to demolish the structures until the results of the testing were completed and brought forward to the Agency. VOTE ON MOTION: Passed unanimously. ORAL COMMUNICATIONS None. OTHER BUSINESS 3. DIRECTOR'S REPORT(S) None. 4. CHAIR'S REPORT(S) None. 5. MEMBER COMMENTS None. ADJOURNMENT The meeting will adjourn to the Regular Redevelopment Agency Meeting on June 6, 1995 at 4:00 p.m., immediately following the City Council meeting, in the City Council Chambers. Respectfully submitted, yfl.uL A.\ ~ Berlin D. Bosworth Secretary to the Redevelopment Agency IC:I WP51 IAGENCYIAGENDASI06-03-95 .AGD] J-S This page blank. 02-0 MINUTES OF A JOINT MEETING OF THE REDEVELOPMENT AGENCY/CITY COUNCIL OF THE CITY OF CHULA VISTA Tuesday, July 11, 1995 8:59 p.m. Council Chambers Public Services Building CALL TO ORDER I. ROLL CALL: PRESENT: Agency/Council Members Alevy, Moot, Padilla, Rindone, and Chair/Mayor Horton ALSO PRESENT: John D. Goss, Director/City Manager; Bruce M. Boogaard, Agency/City Attorney; and Beverly A. Authelet, City Clerk 2. APPROVAL OF MINUTES: June 20, 1995 and June 27, 1995 MSUC (Alevy/Horton) to approve the minutes of' June 20, 1995 and June 27, 1995 as presented. BUSINESS 3. REPORT STATUS OF THE BAYFRONT DEVELOPMENT--The Agency receotly requested a status report on development of the Chula Vista Mid-Bayfront. Staff recently received and reviewed a Market and Feasibility Survey prepared for the Mid-Bayfront property owner/developer, Adnan Zakkout. Staff is providing a status update to the Agency. Staff recommends acceptance of the report and requests the Agency to name a subcommittee to work with staff in negotiating with the developer to expedite development of the Mid- Bayfront. (Conununity Development Director) Chris Salomone, Director of Community Development, stated the report was a feasibility presentation prepared by the owner in a very general form that took data previously pri;part':d for tht': projt':ct and analyzing it and coming not to a conclusion, but a number of conclusions. Staff was ri;cornmending that since very little actual negotiating had occurred on the project since the new ownt':r took over the property in September 1994, and because the report did not lead to a conclusion, that a deliberate process be set up and a subcommittee of the Council be appointed to assist in that negotiating process. He felt the applicant would be willing to participate in a process of weekly or regular meetings to move forward in what may be right-sizing or some adjustment to the project to meet both the City and developers needs. Staff recommended a subcornmittei; and direction to pursue ni;gotiations. Member Moot questioned what the subcommittee would do without a proposal. Mr. Salomone replied that the developers conclusion in the closing pages of the report was that there were a number of options and he wanted to pursue a low cost negotiating process with the City. He felt the City should engage him, at least for the foreseeable future, to discover whether agreement could be reached and to bring onto the developers side of the table qualified consultants and studies to move forv.rard. Member Moot stated until the Agency had a proposal there was nothing to analyze or to have a subcommittee meet about or discuss. Once a proposal was received and the Agency knew where the dt':veloper intended to go with the project they could then create a subcommittee. Mr. Salomone responded that it took almost nine months to get the study from the applicant, which had been promised from the beginning of the applicant's ownership. He suggested that the applicant be taken up on his willingness to negotiate or he felt the project would just languish. He did not feel the Agency could force the developer to give them a feasible proposal. The developer owned the land in fee and he felt sitting at the negotiating table was a way to generate the proposal. Member Padilla stated the entire issue had languished far too long. The Agency needed to keep itself open to options, but they needed to get something off the ground and moving. He had discussed the issue with staff and had met with Mr. Zakkout and heard his concerns. Negotiating mayor may not be fruitful but then the Agency ,,2-7 Minutes July 11, 1995 Page 2 and Mr. Zakkout could move on. He did not have a problem with the staff recommendation to sit down and start the process. MS (Alevy/Padilla) to appoint Chair Horton and Member Rindone to form a subcommittee to negotiate on tbe Mid-Bayfronl. Member Rindone stated he was disappointed and felt the Agency was going back to the drawing board. The current Agency and past Agency Members wanted a meaningful project that provided amenities to enhance the community, enhance the tax base, and serve as a tourist attraction. The last proposal on the Bayfront was exciting and provided a lot of amenities that would not have been otherwise feasible. He understood that it did not "pencil out", but the Bayfront was the jewel of the City. Anything that was significantly different than the present proposal would take years to achieve due to Coastal Commission approvals. etc. To throw out all the amenities in the proposal would put the City in a difficult fiscal condition because the Agency needed to advance the redevelopment pr,"iects. The debt service for the bonds was not going away and there was a need to get resolution within the next year or two. He declined to participate on the Bayfront Subcommittee due to substantial changes in his work requirement that would not allow him to participate. He would support the subconunittee as the project needed to move forward, but he hoped they would not start with a "blank check" but look at the present proposal and see how it could be modified. Chair Horton recommended that Member Moot serve on the Bayfront Subcommittee because he had previously served on the past Bayfront Subcommittee and the Planning Commission. FRIENDLY AMENDMENT: (Alevy) to appoint Member Moot to tbe Bayfront Subcommittee. Member Moot stated that would be acceptable, but before the Agency voted he wanted to echo what Member Rindone had stated. If the Agency went back to ground zero on the prqject he wanted to he counted out. He had spent a lot of time, every two weeks for 9-10 months, at ground zero to consider all options. Through a very deliberative process they came up with a conclusion that some type of commercial/resort destination project was needed. He did not feel that would fundamentally change. He was not going to go hack wards on the project and he did not intend to playa lot of games. If there were proposals to modify the project to make it economically more feasible then he was willing to meet. If there was some idea that it would be Disney World, etc. he did not want to participate. Member Alevy stated he had met with Me. Zakkout and had checked out some of his properties and had received rave reviews. He did not believe they were going to ground zero, but felt they were looking at some subtle changes that Mr. Zakkout wanted implemented. If the Agency dealt in good faith and quickly he felt there would be a project that everyone could be proud of. He felt the developer was capable of doing things quickly and did not have to worry about funding. He felt the Agency should be positive about the action taken. VOTE ON MOTION: approved unanimously. PUBLIC HEARINGS AND RELATED RESOLUTIONS AND ORDINANCES 4. PUBLIC HEARING JOINT REDEVELOPMENT AGENCY/CITY COUNCIL HEARING PURSUANT TO THE CHULA VISTA MUNICIPAL CODE AND CALIFORNIA HEALTH AND SAFETY CODE SECTION 33431 AND 33433 REGARDING THE PROPOSED DISPOSITION BY THE AGENCY OF CERTAIN REAL PROPERTY LOCATED AT 760 BROADWAY COMPRISED OF APPROXIMA TEL Y 2.53 ACRES TO BROADWAY VILLAGE BUSINESS HOMES, L.P. AND THE PROPOSED DEVELOPMENT OF SAID PROPERTY INTO A 36-UNIT MIXED-USE BUSINESS HOMES PROJECT, SUCH PUBLIC HEARING TO CONSIDER THE FOLLOWING SPECIFIC PROPOSED ACTlONS:--The City Council and Redevelopment Agency are requested to hold the requisite public hearings and take the actions necessary to approve the Broadway Business Homes Project and authorize execution of a Disposition and Development Agreement with Joelen Enterprises (Josef and Lenore Citron) for the development of the project. Actioos required include a zoniog change for the project from Thoroughfare Commercial to Central Commercial-Precise Plan; a Special Use Permit with Shared Parking Agreement to establish the mixed-use project; and approval of a Precise Plan with Conditions :< -! Minutes July 11, 1995 Page 3 for development of the Project and approval of the DDA, and sale of the property without puhlic bidding. Staff recommends the Council and Agency approve the resolutions and place the Ordinance on first reading. (Community Development Director) 1. Review and adoption of Mitigated Negative Declaration and Addendum IS-95-03 2. Approval of an amendment to the zoning map or maps established by Section 19.18.010 of the Chula Vista Municipal Code by rezoning the 2.532 acre parcel located at 760 Broadway within the Southwest Redevelopment Project Area from CoT (Commercial Thoroughfare) to C-C-P (Central Commercial with Precise Plan) 3. Issuance of a Special Use Penn it to construct a 36-unit commercial/residential mixed-use project with Shared Parking Agreement 4. Approval of a Precise Plan to allow construction of a 36-unit mixed-use project including associated site improvements 5. Approval of a Disposition and Development Agreement between the Agency and joelen Enterprises A. RESOLUTION 17964 RESOLUTION 1460 ADOPTING MITIGATED NEGATIVE DECLARATION AND ADDENDUM IS-95-03 FOR A 36-UNIT BUSINESS HOMES PROJECT AT 760 BROADWAY B. ORDINANCE 2636 AMENDING THE ZONING MAP OR MAPS ESTABLISHED BY SECTION 19.18.010 OF THE CHULA VISTA MUNICIPAL CODE BY REZONING THE 2.53 ACRE PARCEL LOCA TED AT 760 BROADW A Y WITHIN THE SOUTHWEST REDEVELOPMENT PROJECT AREA FROM CoT (COMMERCIAL THOROUGHFARE) TO C-C-P, CENTRAL COMMERCIAL WITH PRECISE PLAN (First Reading) C. RESOLUTION 1461 MAKING CERTAIN FINDINGS AND GRANTING A SPECIAL USE PERMIT FOR THE DEVELOPMENT OF A MIXED-USE PROJECT KNOWN AS THE BROADWAY BUSINESS HOMES PROJECT, LOCATED AT 760 BROADWAY WITHIN THE SOUTHWEST REDEVELOPMENT PROJECT AREA TO BROADWAY VILLAGE BUSINESS HOMES, L.P. D. RESOLUTION 1462 RESOLUTION 17965 APPROVING A PRECISE PLAN FOR THE BROADWAY BUSINESS HOMES PROJECT AND A DISPOSITION AND DEVELOPMENT AGREEMENT WITH BROADWAY BUSINESS HOMES, L.P., AND AUTHORIZING THE CHAIR TO EXECUTE SAME E. RESOLUTION 1463 WAIVING THE CONSULTANT SELECTION PROCESS, AUTHORIZING EXECUTION OF A TWO-PARTY AGREEMENT BETWEEN THE REDEVELOPMENT AGENCY AND WOODWARD-CLYDE CONSULTANTS FOR SOIL TESTING AND REMEDIATION CONSULTING SERVICES A T760 BROADWAY, AND APPROPRIATING FUNDS THEREFOR--Demolition of buildings at the Fuller Ford site will necessitate removal of contaminated soils. It will be necessary to have a qualified hazardous materials consultant present during demolition. Staff recommends approval of the resolution. Not a part of the Public Hearing, but a related item. (Community Development Director) Chris Salomone, Director of Community Development, stated the Agtmcy/Council was being asked to approve a number of actions to complete the process on the Broadway Business Homes. The Development Agreement had been negotiated over the last ten days and a copy of the tinal document was on the dais. Before taking the recommended actions he stated an outstanding issue came to light on Monday and was not part of the Development Agreement. The issue could be discussed in Open Session or Closed Session. It dealt with the purchase price and acquisition of the property. He did not characterize any of the negotiations as bad faith, it had been done in good faith on both sides of the table, and it was just a last minute issue. Pending the resolution of that issue options were before the Agency/Council for action. This being the time and place as advertised, the public hearing was declared open. ,J. - CJ Minutes July 11, 1995 Page 4 . Josef Citron, 761 Golden Park, San Diego, CA, stated he was a little taken back by the process at the meeting. He did not know that there was anything to address and felt it was appropriate for Council to meet in Closed Session in order to discuss the issue and then any response hrought back from the Agency/Council he would be happy to address. He felt that would be a better procedure. * * * Council met in Closed Session at 9:18 p.m. and reconvened at 10:06 p.m. * * * Mr. Boogaard recommended that unless the applicant wanted to address the Agency/Council, the Chair/Mayor open the hearings so the item would not have to be republished, and continue the items to a meeting on July IS, 1995 recognizing that staff had been given negotiating instructions to Meet & Confer with the applicant for the next two weeks. MSUC (Horton/Padilla) to continue the item to a meeting on July 25, 1995. Agency/Council Member Moot questioned whether the developer should be given SOlDe explanation. He stated that the Agency/Council was not prepared to approve the Development Agreement as submitted. Mr. Citron stated he needed direction because they were being told by SDG&E that they needed a check by 1:00 p.m. on Wednesday in order to bring the gas into the property. They had four other checks that had to be written before the end of the week. The architect was to submit to the Building Department, in ten days, the building plans for the project based on the understanding that there would be a resolution at the meeting. He wanted some direction. Chair/Mayor Horton recommended that Mr. Citron meet with Mr. Salomone and then return to the issue later in the agenda. Mr. Boogaard stated that unless the Agency/Council had some overriding need to say something he recommended that the Agency/Council not respond to whether or not the developer should incur costs on the project. Staff had been given instructions to meet with the applicant and staff would do that after the meeting or tirst thing in the morning. Chair/Mayor Horton requested the Mr. Salomone meet with Mr. Citron. Mr. Salomone stated Item E on the agenda waived the consultant process and authorized the execution of an agreement and that could be approved contingent upon successful negotiation of the issue. ORAL COMMUNICATIONS None OTHER BUSINESS 5. DIRECTOR'S/CITY MANAGER'S REPORTCS) - None 6. CHAIR'S/MA YOR'S REPORT(S) - None 7. AGENCY/COUNCIL MEMBER COMMENTS Member Rindone a. Status report on negotiations of the Broadway Business Homes Project. The request is to discuss in Closed Session. Member Rindone stated the item had been discussed at the last Redevelopment Agency Meeting and he did not have a need to discuss it again. ,J.-jO Minutes July 11, 1995 Page 5 ADJOURNMENT ADJOURNMENT AT 10:13 P.M. to the Regular Redevelopment Agency Meeting on August 1, 1995 at 4:00 p.m., immediately following the City Council meeting, in the City Council Chambers. CLOSED SESSION The Agency met in Closed Session at 10:15, reconvened at 11:15 p.m., and adjourned at 11:16 p.m. 8. CONFERENCE WITH LEGAL COUNSEL REGARDING: Anticipated litigation pursuant to Government Code Section 54956.9(h) Chula Vista Auto Park developers - South Bay Chevrolet and Fuller Ford/Honda/Kia v. City/Redevelopment Agency based on statements made in June 8th letter from Auto Park developers to staff Continued from the meeting of June 27, 1995 9. REPORT OF ACTIONS TAKEN IN CLOSED SESSION - No reportable actions were taken in Closed Session. Respectfully submitted, '-. BEVERLY A. AUTHELET, CMC/AAE, City Clerk ~" \'\ (' \ \ / ~ \ " - J ,-,--' '-- \ \c &J<...\( Vicki C. Soderquist, CMC, hy: Z -1/ This page blank. r1-/~ REDEVELOPMENT AGENCY/CITY COUNCIL AGENDA STATEMENT Item 4,Q" bJ C, &., Meeting Date 07:11/96 'i:<.s/'1s ITEM TITLE: A. JOINT COUNCIL/ AGENCY 8. COUNCIL C. AGENCY PUBLIC HEARING: JOINT REDEVELOPMENT AGENCY/CITY COUNCIL HEARING PURSUANT TO THE CHULA VISTA MUNICIPAL CODE AND CALIFORNIA HEALTH AND SAFETY CODE SECTION 33431 AND 33433 REGARDING THE PROPOSED DISPOSITION BY THE AGENCY OF CERTAIN REAL PROPERTY LOCATED AT 760 8ROADW A Y COMPRISED OF APPROXIMATELY 2.53 ACRES TO BROADWAY VILLAGE BUSINESS HOMES, L.P., AND THE PROPOSED DEVELOPMENT OF SAID PROPERTY INTO A 36-UNIT MIXED-USE BUSINESS HOMES PROJECT, SUCH PUBLIC HEARING TO CONSIDER THE FOLLOWING SPECIFIC PROPOSED ACTIONS: 1. Review and adoption of Mitigated Negative Declaration and Addendum IS-95-03 2. Approval of an amendment to the zoning map or maps established by Section 19.18.010 of the Chula Vista Municipal Code by rezoning the 2.532 acre parcel located at 760 Broadway within the Southwest Redevelopment Project Area from C-T (Commercial Thoroughfare) to C-C-P (Central Commercial with Precise Plan) 3. Issuance of a Special Use Permit to construct a 36-unit commercial/residential mixed-use project with Shared Parking Agreement 4. Approval of a Precise Plan to allow construction of a 36-unit mixed- use project including associated site improvements 5. Approval of a Disposition and Development Agreement between the Agency and Joelen Enterprises CITY COUNCIL f1~pOLUTION 11110 1 AND REDEVELOPMENT AGENCY RESOLUTION l""t'V>OADOPTING MITIGATED NEGATIVE DECLARATION AND ADDENDUM IS-95-03 FOR A 36-UNIT BUSINESS HOMES PROJECT AT 360 BROADWAY ORDINANCE .2.~ 30 AMENDING THE ZONING MAP OR MAPS ESTABLISHED BY SECTION 19.18.010 OF THE CHULA VISTA MUNICIPAL CODE BY REZONING THE 2.53 ACRE PARCEL LOCATED AT 760 8ROADWA Y WITHIN THE SOUTHWEST REDEVELOPMENT PROJECT AREA FROM C-T (COMMERCIAL THOROUGHFARE) TO C-C-P, CENTRAL COMMERCIAL WITH PRECISE PLAN RESOLUTION / ~ 0/ MAKING CERTAIN FINDINGS AND GRANTING A SPECIAL USE PERMIT FOR THE DEVELOPMENT OF A MIXED-USE PROJECT KNOWN AS THE BROADWAY BUSINESS HOMES PROJECT, LOCATED AT 760 BROADWAY WITHIN THE SOUTHWEST REDEVELOPMENT PROJECT AREA TO BROADWAY VILLAGE BUSINESS HOMES, L.P. tf -I D. JOINT AGENCY AND COUNCIL SUBMITTED BY: REVIEWED BY: Page 2. Item Jo,.. ~, c.., t Meeting Date ()7/11/3S ~ 7/:<5/1S cc. ~ 17'11., 5 o--NL ~y ~1r RESOLUTION I~/P'- APPROVING A PRECISE PL N FOR THE 8ROADWAY BUSINESS HOMES PROJECT AND A DISPOSITION AND DEVELOPMENT AGREEMENT WITH BROADWAY BUSINESS HOMES, L.P., AND AUTHORIZING THE CHAIR TO EXECUTE SAME Community DeveloprrfJf)Director 0~:..(d-' Director of Planning 't"} - ~ ~Jl1> lft" Executive Directo~ (4/5ths Vote: Yes Council Referral Number: NO.1U BACKGROUND: The City Council and Redevelopment Agency are requested to hold the requisite public hearings and take the actions necessary to approve the Broadway Business Homes Project and authorize execution of a Disposition and Development Agreement (DDA) with Broadway Business Homes, L.P.. (Josef and Lenore Citron) for the development of the project. Actions required include a zoning change for the project site from Thoroughfare Commercial (C-TI to Central Commercial-Precise Plan (C-C-PI; a Special Use Permit with Shared Parking Agreement to establish the mixed-use project: and approval of a Precise Plan with Conditions for development of the Project and approval of a DDA, and sale of the property without public bidding. All of these actions are further described in this report. RECOMMENDATION: That the City Council and Agency hold the requisite public hearings and take the actions necessary as outlined above to approve the Broadway Business Homes Project and authorize the sale of Agency property to develop the project. BOARDS/COMMISSIONS RECOMMENDATION: The following actions and recommendations have been forwarded to the Council/Agency pursuant to the Broadway Business Homes Project by the Planning Commission, Southwest Project Area Committee, Design Review Committee and Resource Conservation Commission: Plannina Commission At their meeting of June 14, 1995, the Planning Commission adopted the Mitigated Negative Declaration and Addendum 15-95-03 and adopted (with one abstention) 4-0-2-1 Resolutions PCZ- 95-A and PCC-95-23 recommending that the City Council approve the rezoning and Special Use Permit with Shared Parking Agreement required by the project subject to a Disposition and Development Agreement being approved (see Minutes, Exhibit A). The minutes of the Planning Commission will not be transcribed by the date of this meeting, but can be forwarded under separate cover upon request. Southwest Proiect Area Committee The Southwest Project Area Committee attempted to hold a meeting on the project on May 26, 1995 but did not have a quorum (only 3 members attended, 5 are required for a quorum). However, the members present discussed the project at length and determined the following: . The project has a number of risks, including the location, owner occupancy requirement, shortage of parking, and layout of commercial spaces. 1- 2 . The project was substantially deficient in useable open space. Page 3. Item 4f4,,~ ,t, J-, Meeting Date 87/11/95 1!,R5/'15 . The development of the project in stages is a benefit and allowed testing of the market before the project is built out. The nine-member Committee is presently short by three members with one of the six members not attending for some time. thereby effectively having four vacancies. As the Council may recall, action was taken to redefine the overall role and function of the Project Area Committees (PACs) as part of the "Permit Streamlining" efforts. In order to formalize this action, the City Attorney's Office. in conjunction with the Community Development Department, will be bringing forward a Municipal Code Amendment that will formally bring the three PACs into the City's "family. of Boards and Commissions. As part of the Ordinance, it is proposed that the Southwest PAC be reduced from nine members to seven members, thereby reducing the number of actual vacancies from three to two. Due to the pending Ordinance amendment (and the seating arrangements) staff felt it would avoid confusion by waiting until the Ordinance amendment is adopted before requesting the council fill the vacancies. The amendment to the Boards and Commissions Ordinance should be presented in August 1 995. DesiQn Review Committee /DRC) On May 22, 1995, the DRC reviewed the project design in preliminary form and expressed some concern about the lack of common useable open space traditionally found in multi-family projects. Based on the project's unique and urban qualities, however, the DRC endorsed the design as presented, but recommended additional outdoor amenities to compensate for the lack of common open space. A revised design was considered by the DRC on June 26, 1995. The DRC approved the project design with conditions. The minutes of both meetings and the recommended Conditions of Approval are attached as Exhibit B. Resource Conservation Commission {RCCI The Resource Conservation Commission considered and recommended approval of the Mitigated Negative Declaration and Addendum, IS-95-03 at their meeting of June 26, 1995. The minutes are attached as Exhibit C. DISCUSSION: The Broadway Business Homes Project includes the development of 36 town homes on the former Fuller Ford site located at 760 Broadway. Each unit includes approximately 500-600 square feet of commercial/office space on the ground floor with 1500 square feet of living area above. These units will be marketed to business owners who wish to live and work at the same location. The proposal requires a change in zoning on the project site from Thoroughfare Commercial (CT) to Central Commercial-Precise Plan (C-C-P) which allows a mixed-use (residential/commercial) project with a Conditional Use Permit (Special Permit in redevelopment areas). The project also requires approval of the project and a Disposition and Development Agreement (DDA) conditionally approving sale of the property. A public hearing is required pursuant to Section 33433 of the Community Redevelopment Law. Since the project site is being sold without competitive bidding, a public hearing pursuant to Section 33431 of the Community Development Law must also be conducted. 1-3 Page4,ltem ~a.'~1 t,J. Meeting Date O~111"':> . 1:!.5 '15 The following more fully describes the project and explains each action the Agency is quested to take. DESCRIPTION OF PROJECT Zone ChanQes and Special Permit The 2.53 acre site is located on the west side of 8roadway, between J and K Streets (see Locator Map, Exhibit D). It was previously occupied by the Fuller Ford automobile dealership and contains several vacant structures and asphalt paving. A masonry wall separates the site from the westerly adjacent residences. The property is bounded to the north by a tire store. to the south by a one-story motel. to the east by Broadway, and to the west by single family dwellings located approximately 4-10 feet lower than the project site. Adjoining General Plan designations and zoning districts are as follows: General Plan ZoninQ Site North South East West Retial Commercial Retail Commercial Retail Commercial Retail Commercial Low Density Residential C-T Thoroughfare Commercial C-T Thoroughfare Commercial C- T Thoroughfare Commercial C- T Thoroughfare Commercial Single Family Dwellings Proposal The proposal calls for 36 individually-owned three-story business home units featuring a 500,600 square foot commercial space at the lower level, with a 1,500 square foot two-story living space directly above. A loop road located along the perimeter of the property, as well as a single dead- end drive off Broadway, provide access to the residences, each of which is served by a single-car garage and either a tandem or open parking space (see Project Plans, Exhibit E). The commercial shops are situated around two separate parking areas oriented toward Broadway. The two parking lots provide a total of 80 parking spaces to serve the 18,000 + square feet of total commercial floor space proposed. Three landscaped passageways provide pedestrian access between the commercial and residential "sides" of the project, whereas vehicular access and parking is exclusive to each component. Open space consists of an 80-100 square foot private patio for each dwelling unit, plus lawn areas along the residential loop road, and visual focal points featuring trellis structures and seating at several locations. Landscaping is provided along the frontage ofthe shops, within the parking lots and pedestrian passageways, as well as at three locations along the rear property line. A 4-5 foot high masonry wall is proposed to be retained and supplemented where necessary to separate the project from the residences to the west. The Business Homes proposal includes several requested precise plan deviations from typical development standards. These include a reduction in usable open space by approximately 25%, a reduction in the setback along Broadway from 25 feet to 4 feet, a reduction in total parking by 10 spaces under a shared parking arrangement, the use of 28 compact-commercial and 28 tandem-residential parking spaces, and a modest reduction in vehicle back-up and maneuvering areas from 24 feet to 21 feet along the residential loop road. 4-Jf Page 5. Item .~ AI t b t (" J. Meeting Date 07:11 :9S 7P.S rS Some of these requested deviations are at least partially based on the constraints of the site in relation to the unique qualities of the project, but many are also based on the proposition that the Business Homes will be owned. occupied and operated by the same individual or family. The commercial and residential spaces of each unit are internally connected and are intended to function as a combined living and working space for the owner. Development Criteria Chula Vista Municipal Code Section 19.58.205 provides the following development criteria for mixed-use projects: 1. The Conditional Use Permit shall be subject to review and approval of the City Council following the recommendations of the Planning Commission; 2. The commercial and residential components shall be planned and implemented together; 3. The maximum allowable residential density will be governed by the provisions of the R-3 zone based on the total project area. less any area devoted exclusively to commercial use, including commercial parking and circulation areas. The approved density may be significantly less than the maximum allowable density depending on site specific factors, including the density and relationship of surrounding residential areas, if any; 4. Parking, access and circulation shall be largely independent for the commercial and residential components of the projects. Each use component shall provide off-street parking in accordance with City standards. 5. The residential component shall meet the private and common open space requirements of the R-3 zone: 6. The Conditional Use Permit may include a restriction on commercial uses and/or business hours in order to avoid conflicts with residential units. In redevelopment project areas, the Special Use Permit replaces the CUP. The Special Use Permit is reviewed by the Project Area Committee (PAC) which makes a recommendation to the Agency for final action. The PAC thus takes the role of the Planning Commission in approving CUP within project areas. Public Input On June 1, 1995, the Planning Department sponsored a public forum to familiarize surrounding residents and property owners with the request and the planning process. Those in attendance (approximately 10) generally appeared receptive to the proposal and welcomed the improvements to the site, but concerns were expressed with the following: 1 . Loss of privacy for the residents to the west and the desire for a higher wall along the westerly property line; 2. Increased traffic if the commercial and residential components of each unit were rented separately; 3. Adequate provisions for trash since both the residential and commercial components will be served by trash cans rather than trash dumpsters; and, 1- s Page 6, Item Me, L Meeting Date 07111/95 7/~'5/'tr; 4. The approval of tandem parking could set a precedent for other multiple family projects. In addition to the input received at the public forum. correspondence was received from an area resident expressing concerns about the additional traffic, noise. and pollution, and also questioning the need for additional retail commercial shops along Broadway. In other correspondence. the residents of the three most southerly adjacent lots hqve requested that the existing 20 foot high building wall located on the southwest property line be retained to reduce the noise and impacts associated with commercial operations. Analvsis and Recommendation The existing Retail Commercial General Plan designation for the site allows for typical retail and service commercial uses found in neighborhood and community shopping centers and on traditional downtown shopping streets. It also allows for limited thoroughfare commercial retail and automobile-oriented uses provided they constitute only a small portion of a planned commercial development. The C-C Central Commercial zone is the City's basic retail and shopping center zone, and thus the rezoning is considered consistent with the General Plan. A mixed-use project can only be implemented in the C-C-P Central Commercial zone. This is due to the fact that the uses allowed in the C-C zone are considered more compatible in conjunction with residential use than the "heavier" automobile-oriented uses allowed in the C-T Thoroughfare Commercial zone. The establishment of this C-C zone mixed-use development on what is otherwise a thoroughfare commercial frontage is also not inconsistent with the historical use of the C-C zone as a site specific shopping center or planned development district at other isolated locations on Broadway as well as E Street and Third Avenue. With regard to the mixed-use development criteria listed above, the Business Homes proposal meets all of the criteria with the exception of total parking and open space. In relation to parking, the proposed deficiency of 10 required spaces is more than compensated for by the reduction in parking demand by 36 spaces under the shared parking concept, whereby the residential occupant is also the commercial proprietor and thus does not require an additional parking space. A deed restriction or other mechanism will be required to ensure continued single operatorloccupancy. The open space provided is approximately 25 % less than what is typically required for a multiple family project (400 square feetlunit). However, the project includes enhanced pedestrian walks and attractive trellis structures with seating and decorative planting. Although the common space is not up to parity with more traditional multi-family developments, the open space and amenities provided are, in the opinion of the Design Review Committee, suitable for the intended urban character of the project. The development criteria also provide the ability to restrict commercial uses and/or business hours in order to avoid conflict with the residential component. The proposed hours of operation are from 8:00 a.m. to 10:00 p.m., Monday through Friday, and 8:00 a.m. to 6:00 p.m. on Saturday and Sunday. These hours have been incorporated into the conditions of approval as deed restrictions, as has a list of prohibited uses which are allowed in the C-C zone but which are believed to represent a potential conflict with directly adjoining residential. In addition to total parking and open space, a noted above the proposal includes requested precise plan deviations for the Broadway setback, the use of compact and tandem parking spaces, and a reduction in vehicle back-up and maneuvering area. With the exception of the Broadway setback reduction, which involves approximately 30% of the project frontage and which is not inconsistent with established setbacks along the entire length of Broadway, these deviations are somewhat tf-~ . .\ b Page 7. Item If ~ , I ~ I cl-- MeetingDate 07/11/95 1/~5~S exceptional. but in the DRC's opinion considered supportable in terms of providing the opportunity for a unique development concept which would otherwise likely not occur. Also, the single occupant/operator concept, coupled with the proposal for an exclusive single- loaded loop road will tend to ameliorate the potential for conflicts. For example, the tandem parking and reduced back-up/maneuvering issues only affect the residential units situated along the loop road. Since this road is intended for the owner-residents only, any inconvenience presented by utilizing tandem parking or by less generous maneuvering areas can be anticipated and adjusted to by these owners and will not conflict with public parking or general circulation. With respect to the issues raised by the public and not already discussed: 1. Traffic: The proposed project will generate approximately 1800 (ADT), or about 1.056 ADT over the previous land use. According to the City Traffic Engineer, the additional traffic is expected to be lessened by having the shop operators living and working within the site. Broadway is anticipated to continue to operate at level of service (LOS) "C", which is consistent with the City's threshold standard. 2. Noise: An acoustical study analyzed two on-site concerns: the noise generated by the commercial activities impacting the westerly adjacent neighborhood, and the exposure of the proposed residential units to the noise generated by traffic along Broadway. The study recommends the following items to reduce the noise impact and these have been incorporated into the Negative Declaration as required mitigation measures: · Maintain a minimum 5 foot high masonry wall along the west property line. · All windows facing east on the four frontage units shall incorporate dual pane windows rated a minimum of STC-25. · A mechanical ventilation system capable of 2 air exchanges per hour shall be incorporated into all of the living units. By incorporating this recommendation into the conditions of approval, the noise levels will be well within the City's standard. 3. Privacy: The Chula Vista Municipal Code requires a 6 foot high masonry zoning wall along the property line abutting residential districts. The intent of the wall is to screen and buffer residential uses from the noise and activities associated with commercial zones. Several of the residents at the public forum expressed a desire for a higher 9-10 foot wall to further ensure their protection ad privacy, even to the extent that three of the residents desired to retain the 20 foot high wall of a vacant building at the southwesterly corner of the site. Although the 20 foot high building wall cannot be retained, a higher wall up to 8-10 feet could provide more protection and a greater sense of privacy. A wall of that height, however, can be imposing, and may not be acceptable to all of adjoining residents. As a result, we have included a condition which requires that the applicant meet with the westerly adjacent residents to determine the desired wall height. 4. Trash: The proposal is to use trash cans rather than trash dumpsters to serve the entire project. Normally trash cans are only acceptable in the case of smaller residential projects of four units or less. This issue has been addressed by the ORC in an attempt to incorporate one or more dumpster enclosures into the project. ~-7 Page 8. Item ~4.1 ~, t., J... Meeting Date g7/11:9~ 1/~"5195 For the reasons outlined above. staff is recommending approval of the proposal based on the findings and subject to the conditions contained in the City Council Ordinance for the zone change and resolution of the Agency granting the Special Permit. APPROVAL OF SALE OF AGENCY PROPERTY: SECTION 33433 PUBLIC HEARING The sale of Agency property acquired with tax increment funds requires a noticed public hearing and approval by the legislative body and the preparation of a report describing the terms and costs of sale including. if appropriate, a description and justification of any subsidy given to the project. The report must be made available to the public at the time of publication of public notice of the meeting. A public hearing has been advertised for tonight's joint council/Agency meeting. The report has been prepared and is incorporated in the following section: SALE WITHOUT COMPETITIVE BIDDING: SECTION 33431 PUBLIC HEARING AND APPROVAL OF A PRECISE PLAN AND A DISPOSITION AND DEVelOPMENT AGREEMENT Under Community Redevelopment Law, lease or sale of Agency property may be made without public bidding, but only after a public hearing properly noticed and advertised. The project is proposed to be sold to the Developers without public bidding because of the unique nature of the project and its impact upon the removal of blight in the area. Therefore, the Agency is requested to hold a public hearing pursuant to Section 33431 of the Community Redevelopment law. The public hearing has been advertised in the Star News. The Developer's offer on the property was unsolicited. The Agency has received three additional unsolicited offers to purchase property. One from Jim Courtney preceding the Citron's offer for a portion of the site; a second offer from Courtney to purchase the entire site (buildings in place), for $700,000 after designation of the Citrons; and an offer from Mario Estalano 0" June 6, 1995 to purchase the entire site, buildings in place, for $800,000. Precise Plan Staff has been working with the developer and their architect to resolve problems and work out details of the plans for the project since late in 1994. The project has improved considerably from early designs to the plans which were submitted to the DRC on June 26, 1995. The plans, as recommended for approval by the DRC with Conditions, constitute the Precise Plan which, when approved by the Agency, will be a part of the DDA and govern the development of the project. The plans are attached (see Exhibit E) and the Conditions of Approval as recommended by the DRC appear under Exhibit B. Terms of Sale The Disposition and Development Agreement (DDA) attached as Exhibit G, contains all of the terms of sale of the property located at 760 Broadway. Adoption of Resolution "0" will also approve the DDA in substantially the form presented. The major terms of the DDA are described below. tj~t Page 9, Item 4 4./~ J t, cG Meeting Date -67ill/::l5 1/~"5[~S 1. Purchase Price The purchase price for the 2.5 acre site will be no less than $550,000 ($5/square foot). The Developer will also pay up to $20,000 in soil testing and remediation costs. The project will be developed incrementally and in phases. The purchase price will be paid proportionately to the amount of property purchased in each phase. There shall be no more than three phases. In addition, the Agency will be entitled to recoup demolition and soils testing costs up to $124,000 from a share of any excess profits from the project. Excess profits are described as funds accruing from the sales of the units in excess of funds necessary to retire debt, and return investors equity plus a maximum 20 percent return per annum. The Agency will be entitled to receive up to 30 percent of excess profits until the demolition costs up to $124,000 are received. 2. Right of Reverter If the developer fails to develop the project as contemplated under certain terms and conditions, the Agency has the right to take back any parcels transferred subject to any approved financing secured by the parcel. 3. The Project The Developer will be obligated to develop the site into 36 "business homes" which the Developer will offer for sale as separate legal parcels. The average selling price per business home is currently estimated at $231,000 but will ultimately be determined by market forces and is not governed by the DDA. 4. Joint Commercial/Residential Occupancy Requirements The properties will be transferred subject to deed restrictions which mandate that businesses in the commercial portions of the units can only be operated by the legal occupants of the residential portions of the units. Residences and businesses cannot be separately leased out. 5. Alley Dedication The Developer will dedicate the alley servicing the residential side of the business homes to the City as a public alley. 6. Dedication of public parking areas and open space The Developer will dedicate public parking areas for commercial units and open space including sidewalks, landscaping, benches, play equipment, etc. to the City as part of the Parcel Map process. An assessment district will be formed by the City for the purpose of assessing homeowners the full costs of maintaining these areas including the funding of public liability insurance. While the DDA cannot bind the City to form such a district, it does bind Agency staff to present such a district for City consideration and approval. 7. Proof of Financing The Developer must present satisfactory proof of financing for the construction and purchase of the Business Homes before transfer to the Developer of the site by the Agency. 1-- 9 Page 10, Item 440, ~/ (,/J..- Meeting Date Q7.'11.'9~ '7/:1.'51'15" 8. Marketing Study The Developer must submit evidence of marketability of the business homes to the Agency before transfer of the site by the Agency. 9. Payment of City Fees The Developer will pay full City fees for plan review and permits. Because of the unique nature of the mixed-use project, the City will, where necessary, develop specific formulas for the determination of fees so that the Developer will not be "double charged" for the residential and commercial components of the project. 10. Restrictive Covenants (CC&Rs) The Developer will prepare restrictions on the use and occupancy of the business homes in the form of CC&Rs and/or deed restrictions which will be recorded. The restrictions will indicate the types of businesses which will be allowed and disallowed, require joint ownership and/or occupancy of the residential and commercial portions of each unit and establish other use and maintenance standards. 11. Staging of Development The Developer plans to construct six contiguous business home units (one complete building) in the first stage of development. Depending upon market response, the Developer plan to construct the remainder of the project in one or two phases. The Project will not be developed in more than three phases. Cost of the AQreement to the AQencv/City The following are costs associated with the acquisition, maintenance and clearance of the property which is required to be disclosed under Community Redevelopment Law. 1. Acquisition Cost The Agency acquired the property located at 760 Broadway as part of the Auto Park Project. The cost of acquisition was $1,900,000. 2. Demolition The cost of demolition of the existing buildings on the site is estimated as follows: Contract Amount Staff (design and inspection) Contingency (Approx. 10%) Total $89,417 8,683 8,900 $107,000 3. Soils Testing/Remediation Because of the former use of the site as an auto dealership (auto sales and repair). it was considered prudent to test the soils to determine if any contamination has occurred. The cost of testing and remediation of contaminated soils is estimated to be up to $57,000. This cost is to be paid as follows: the Agency will pay for pre-demolition testing which will cost $17,000; the Developer will pay the next $10,000; the Agency will pay the next $10,000; the Agency and 4-/0 Page 11, Item 4d., ~I C) ct Meeting Date 97.'11/91'> '7/~Sr'l5 Developer will equally split the next $20,000 of costs (if any). If testing and remediation costs exceed $57,000, the parties will meet to determine if they are to proceed with the project and, if so, who will bear these additional costs. Therefore. it is possible that the Agency could bear some share of costs in excess of the $37,000 share already agreed and be forced to pursue legal action against previous property owners to recover these costs. 4. Property Maintenance Costs The costs of boarding up and maintaining the property since the vacation by the previous owner/occupant, Fuller Ford. is estimated at $3,000. 5. Escrow Costs The Agency will pay normal and customary costs associated with escrow and closing in excess of $3,000. 6. Total Cost of Sale (Total of items 1-6 above). The total cost of sale is estimated at $2,037,000 Dlus the seller's usual and customary escrow costs. Estimated Fair Market Value of Interest to be Conveved Estimated fair market value of the property is between $750,000 and $800,000. The highest and best use of the property permitted under the redevelopment plan is for commercial reuse. The property is currently zoned Thoroughfare Commercial (CT) which allows a wide range of general commercial uses including auto sales and repair. Staff's estimate of the value of the land being conveyed is based upon the two backup offers for the property which have been received with existing buildings in place. These offers are $700,000 and $800,000. The offerors each propose use of the site as an auto service after the rehabilitation and remodeling of the existing buildings. Estimated Reuse Value of Interest Conveved The estimated reuse value of the property is $570,000. The proposed Business Homes Project requires the clearance of buildings and rezoning the site to Central Commercial (CC). This zone allows mixed-use projects such as the one proposed, whereas the CT zone does not. The ce zone also allows a wide variety of commercial uses including minor auto maintenance and repair as a conditional use. The Developer has offered to pay $550,000, or $5/square foot, plus an additional $20,000 for soils testing for the property for the purpose of developing the Business Homes Project. Staff estimates that the site, cleared and rezoned ee, would be valued as high as $600,000 to $650,000 for commercial development. However, the business homes development is a mixed- use project with only a total of approximately 21,600 square feet of business use and approximately 66,000 square feet of residential use. Property values for residential uses are generally lower than those for commercial uses. Since the proposed project is unique and without precedence, there is no comparable market information on land values. Furthermore, there will be a number of restrictions on the project which impact the reuse value. These include use and occupancy restrictions, assessment district costs for maintenance of common areas, and an untested market demand. This project is, consequently, very risky. The reuse value of land for tf-/I Page 12", Item ~, J.. Meeting Date Q7/11/!l!t 1/.2.'5/'15 this project is thus estimated to be less than the fair market value of $600,000 - $650,000 for the vacant land for straight commercial use. Based upon the restrictions on this project; the high degree of risk and untested market demand, a fair reuse value for this project is estimated at $550,000-$600,000. The Developer has offered to pay $550,000 for the property and an additional $20,000 in site testing costs for a total consideration of $570,000. This figure is considered within the range of fair reuse value. The Developer's pro forma indicates a return on investment of 40% over a two year period. This return is not considered excessive in light of the risks associated with the project. However, the pro forma is based upon the Developer's cost estimates and contingency of $444,000. If costs are inflated, the contingency is unused and/or the Developer is able to increase sales prices for the units, profit margins may increase considerably. Consequently, under agreement with the Developer, the Agency will receive 30 % of the aggregate sales amount for all of the units above 40 percent return on investment equity over two years. In this manner, the Agency may recoup demolition and initial soils testing costs. Elimination of Bliaht The project will eliminate blight in the redevelopment area as described below. . The Business Homes project represents the total redevelopment of the site which will remove unattractive, economically obsolete structures which are poorly situated on the site and replace them with a modern, planned, attractive mixed-use development which will greatly enhance the appearance of the area. . The project represents a change in the historic land use along this section of Broadway which has largely been auto sales and service related. While many of these businesses have been successful in the past, their age, proliferation, lack of proper planning and under-utilization of property presents a visual and economic blight in the area. These land uses need to be replanned and/or redeveloped to provide a modern, attractive, and economically viable urban environment. . The proposed Business Homes Project will stimulate further redevelopment of economically obsolete land uses along this section of Broadway. . The Business Homes Project satisfies the needs of a growing niche housing market by providing a unique, new, mixed-use housing product not presently available in the marketplace. . The project will also add an estimated $50,000 in annual property tax increment and an additional $30,000 to $40,000 in sales tax revenue. ENVIRONMENTAL REVIEW The Environmental Review Coordinator has conducted an Initial Study, 15-95-03, with Addendum of possible environmental impacts associated with the project. Based on the attached Initial Study, Addendum and comments thereon, the Environmental Review Coordinator has concluded that there would be no significant environmental effects and, therefore, recommends adoption of the Mitigated Negative Declaration issued on 15-95-03, attached hereto as Exhibit F. FISCAL IMPACT: The Agency paid $1.9 million for this portion of the Fuller Ford site proposed for the business homes project. The Developers are proposing to pay the Agency approximately $500,000 ($5.00/square foot) for this 2.5 acre site. In addition, the Developers will pay up to ;}-r;--- Page 13, Item 4, "'-I~'c..)"- Meeting Date {)7 !11/95 '7/:2.'5/'15 $20,000 towards soil testing and remediation. Demolition of the Ford dealership structures is estimated at $107,000. The Agency will also be eligible to recoup demolition and soils testing costs up to $124,000 from excess profits accruing from the project. Total costs of sale, including demolition, property maintenance and soil testing, have been estimated earlier in this report as $2,037,000. Assuming the project is built out and 36 business homes are sold, the Agency will receive approximately $47,000 in tax increments from the project which will increase by approximately 2%/ year. In addition, some of the businesses will generate sales tax revenues, although the amount is difficult to estimate at this time. Based upon half of the units used for commercial sales, $30,000-40,000 in sales tax revenues to the City is estimated. . Attachments: Exhibit A: Exhibit B: Exhibit C: Exhibit D: Exhibit E: Exhibit F: Exhibit G: Resolutions: Item 4.A Item 4.B Item 4.C Item 4.D Item 4E: Planning Commission Minutes, June 14, 1995 DRC Minutes, May 22, 1995, June 26, 1995 and Conditions of Approval RCC Minutes, June 26, 1995 Locator Map Project Plans Mitigated Ne9ative Declaration and Addendum IS-95-03 Disposition and Development Agreement City Council Resolution 17964/Redevelopment Agency Resolution 1460 City Council Ordinance 2636 Redevelopment Agency Resolution 1461 City Council Resolution 17965/Redevelopment Agency Resolution 1462 Staff ReDort starts on PaQe 4-157 M:\HOME\COMMDEV\KASSMAN\BUSHOMES.113 4/ 1~ PaQe # 4-15 4-21 4-33 4-35 4-39 4-45 4-161 4-137 4-141 4-145 4-141 This page Blank 1-FI IlRAFT o c( I- ~ a::l ~ :I: >< UJ Excerot from Draft Planninl! Commission Minutes of 6/14/95 ITEM 3: PUBLIC HEARING: CONSIDERATION OF THE FOLLOWING APPLICATIONS FOR THE "BROADWAY BUSINESS HOMES" PROPOSAL, FILED BY JOSEF AND LENORE CITRON FOR 2.53 ACRES LOCATED AT 760 BROADWAY WITHIN THE SOUTHWEST REDEVELOPMENT PROJECT AREA A) PCZ-95-A; REZONE FROM C-T THOROUGHFARE COMMERCIAL TO C-C-P CENTRAL COMMERCIAL WITH PRECISE PLAN B) PCC-95-23; CONDITIONAL USE PERMIT TO ESTABLISH A 36 UNIT MIXED-USE COMMERCIAL/RESIDENTIAL PROJECT WITH SHARED PARKING Commissioner Tuchscher asked to be excused because of potential conflict of interest. Associate Planner Hernandez presented the staff report. He noted that the applicant was requesting to rezone the 2.53 acre site from C- T to C-C-P to allow the construction of a 36-unit commercial/residential mixed use project, and that mixed use projects are permitted only in the C-C zone with approval of a conditional use permit. He went on to explain that the development proposal called for 36 individually owned home/business units featuring a 500 sq. ft. retail floor space at the lower level with a 1,500 sq. ft. dwelling unit directly above. The 36 individual commercial shops amount to approximately 18,000 sq. ft. of retail space for which 80 parking spaces had been provided. Mr. Hernandez stated that the mixed-use project development criteria prescribed in the Zoning Ordinance requires that the project be in compliance with parking and common open space. It also requires that the access of the two components be independent from each other and allows the restriction of some land uses to ensure a high level of compatibility. The project was in compliance with the development criteria prescribed in the Municipal Code, except for parking and open space. With regard to parking, the 18,000 sq. ft. retail commercial floor space required 90 parking spaces (10 less than what was being provided). However, because the residential occupant would be the commercial component operator and parking for the residence provided separately, the parking demand would be reduced by the number of units. With regard to open space, Mr. Hernandez stated that typically multi-family residential projects included a central usable open space. This project did not provide a central recreation facility and, therefore, was deficient approximately 25% of the open space required. However, enhanced pedestrian paving and decorative trellis structures had been incorporated throughout the project to compensate for the open space deficiency. 1-/5 To ensure a high level of compatibility between the two components of the project, Mr. Hernandez suggested that some uses shown in an exhibit in the Planning Commission packet not be permitted. In addition to the total parking and open space deficiencies, Mr. Hernandez indicated that the other deviations such as front building setbacks, use of compact and tandem spaces, and a reduction in vehicle back-up and maneuvering area, which had been conceptually endorsed by the Design Review Committee, were necessary to achieve the unique live and work environment area. With regard to the rezoning, since Broadway is a heavy commercial area, and features traditional shopping centers and multi-family zones, staff was of the opinion that the proposed zone change was consistent with the General Plan and that the zone change would not change the character of Broadway, but would improve the existing conditions of the site and provide an alternative way to conduct business and live at the same location. He reported that at a public forum held on June 1, residents to the west were concerned about lack of privacy. The applicant and staff agreed that a higher fence would somewhat mitigate concerns regarding privacy. Approval of the Conditional Use Permit would allow the applicant to raise the wall from 6 to 10 feet, subject to approval by the Design Review Committee and with input from residents. The residents and staff were also concerned that the units would be rented separately, since they were not linked exclusively from the inside. Staff suggested that each title of the property have restriction on the CC&Rs indicating that only the resident could be the operator of the business. Commissioner Fuller asked about the loss of privacy to the residents of the west. She questioned the location of the wall in reference to the loop road, and if the wall would be immediately behind the residences. Mr. Hernandez indicated where the zoning wall would be located. Commissioner Fuller asked if the lO-foot wall would restrict the view. Mr. Hernandez answered negatively and stated there was a 6-foot easement between the wall and the fence of the property owner. Commissioner Fuller asked if there was a security problem in the easement of 6 feet between the wall and the fence. Mr. Hernandez replied that there was not. Commissioner Fuller noted that Sweetwater Authority had some concerns regarding the availability of water. Mr. Hernandez stated that water would be available. The water main would be upgraded as part of the Broadway improvement. Senior Civil Engineer Thomas reported that was a part of the upgrade. He did not have the timetable. Commissioner Salas stated there would not be enough water pressure in order to adequately provide sufficient fire protection. 1--/ - I (, Mr. Hernandez stated that the problem had been resolved. The requirement had been reduced to a lower GPM. This being the time and the place as advertised, the public hearing was opened. R. D. Frederick, 752 Riverlawn Ayenue, had submitted a speaker's slip, but had left the meeting. Russell Gillis, 741 Riverlawn Avenue, speaking for himself, Bill Bond of 745 RiverIawn, and William Hannai of 740 RiverIawn, said that this development was the best thing going on in this area of Chula Vista. Regarding the wall issue, the residents agreed that the IO-foot wall would insulate the noise, shield them from view, and also keep people out. No permanent structure could be placed on the easement. He was using the easement for a garden. The residents wanted the wall, and the Citrons had agreed to work with them. Gary Cooper, 767 Riverlawn Avenue, said it had not been good having an auto dealership in their back yard. He felt this project was a good step in the right direction and a good utilization of the land. He said he spoke for other members of his family and his tenant. The people in his block were in favor of the proposal. The Citrons had listened and responded to their concerns. No one else wishing to speak, the public hearing was closed. Commissioner Salas asked if the restroom facilities on the first floor addressed the requirements for handicapped. Mr. Hernandez replied that the business would be required to be handicapped accessible. Commissioner Willett suggested the Code needed to be looked at to come up with this new concept. He did not think anything in the Code should hold up the project. He asked if the City could enforce the conditions even though there were CC&Rs. Ms. Moore stated that the City could be considered a third party to the CC&R process and could enforce. Commissioner Willett stated that the easement concerned him. He asked if the easement could be used for planting trees. Mr. Hernandez stated that the utility easement was used for telephone lines and that trees could obstruct access to the telephone poles. Commissioner Willett asked if the utilities could be undergrounded and trees planted. Mr. Hernandez answered affirmatively, but stated that since the utilities do not serve the proposed project, there could not be a condition to require that they be undergrounded now.. Commissioner Salas said the CC&Rs stated that the resident of the building must be the operator of the business. An individual or company could buy a unit and rent that unit out but the operator of the business would have to be also the resident of the unit directly above. tf - /7 Mr. Hernandez replied that the whole concept was that the business operator and be the resident of the unit above but not necessarily the owner. Commissioner Ray asked if the business operator would be precluded from subleasing the units. Assistant City Attorney Moore stated that staff was working on a development agreement, and a number of those issues would be raised. She was comfortable with the conditions in the resolution and would be uncomfortable in expanding them. Commissioner Willett stated that he supported the concept. Assistant Planning Director Lee stated that the parking was based on 18,000 sq. ft. commercial space. Some of these units would not be used as retail, but could be an office, etc. He noted that the parking could overflow to the street. Commissioner Salas stated that she was in support of the project. The City had to get away from the idea of providing a certain amount of parking lots per unit. She was not concerned with less parking. Commissioner Ray asked if they were all four-bedroom units. Associate Planner Hernandez answered that there were 30 four-bedroom units and six one-bedroom. Commissioner Ray noted that they would need at least four parking spaces each for the four- bedroom units. Mr. Hernandez replied that the Zoning Ordinance requires only two spaces, based on the number of bedrooms. Commissioner Ray noted that the applicants would not use parking during business hours. Assistant Planning Director Lee stated that parking lots would be used by residents during off hours. He stated that it may have to be revisited later. If the parking worked and there was some excess parking, staff may want to revisit. If business fails, staff did not want to leave it vacant. Commissioner Ray asked what happened if a business failed and they still wanted to live in the unit. Are they prohibited in doing anything other than leaving the business vacant. Ms. Moore answered affirmatively. Commissioner Fuller questioned whether there could be some way to preclude that from happening. If a business failed, could they be penalized in some way. Could there be some way to protect the City, other than forcing the sale of the whole thing? Commissioner Ray asked if there could be an inter-project condition that other residents and business owners be required to report to the group as a whole. Assistant City Attorney Moore stated that it be possible to incorporate something in the CC&Rs. q-If MSC (Willett/Fuller) 4-0-2-1 (Commissioners Tarantino and Thomas excused) (Commissioner Tuchscher abstained) to adopt the amended resolution PCZ-95-A/PCC-95-23 recommending that the City Council approve the rezoning and conditional use permit in accordance with the draft City Council Ordinance and Resolution and the findings and conditions contained therein. 4-/9 This page Blank 1 ~c2D MINUTES OF A REGULAR MEETING OF THE DESIGN REVIEW COMMITrEE Monday. Mav 22 1995 4:30 p.m. Conference Rooms 2 and 3 A. ROLL CALL MEMBERS PRESENT: Chair Spethman, Vice Chair Rodriguez, Members Way, and Duncanson "" ...... ~ "" ~ :J:: >< LLJ MEMBERS ABSENT: Member Kelly, without notification STAFF PRESENT: Principal Planner Steve Griffin Associate Planner Luis Hernandez B. INTRODUCTORY REMARKS Chair Spethman made an opening statement explaining the design review process and the committee's responsibilities. He asked that all speakers sign in and identify themselves verbally for the tape when speaking. C. PRESENTATION OF PROJECTS 1. DRC-95-35 Palomar Trollev Center SWC Palomar & Broadway Commercial Center & Four Freestanding Buildin~s Staff Presentation Associate Planner Luis Hernandez presented the project, which consists of the second phase of construction for the Palomar Trolley Center located on the south side of Palomar Street between Broadway and Industrial Blvd. The proposal includes a 24,000 sq.ft. commercial center addition, associated parking, landscaping, and other on-site and off-site improvements, and the construction of four of the five freestanding buildings featured in the commercial center master plan. Mr. Hernandez stated that the project meets all applicable zoning requirements, and noted that staff recommended approval of the project subject to the conditions listed in the staff report. Project Architect Dave Reinker of SGP A asked for clarification of the landscaping requirement, questioning the necessity of parking screening solutions. He stated that the intent of the current landscaping plan was to maintain consistency with the existing landscaping program. Mr. Hernandez responded that the priority would be to blend the new landscaping with the existing. Mr. Reinker further questioned a memo from the Engineering Department regarding Broadway improvements; Principal Planner Steve Griffin pointed out that this memo was informational only, and that the comments questioned were not conditions of the Design Review Committee's approval. ,-/--,2/ DESIGN REVIEW COMMITTEE -2- MAY 22. 1995 Committee Comments Member Rodriguez asked if pedestrian access would be provided from the corner of Palomar and Broadway, pointing out that people might cross the landscaping at that location to gain direct access, and that any access points for pedestrians should be differentiated from the asphalt of the parking lot. Mr. Reinker stated that access was provided closer to the drive entrances, and would probably utilize concrete. Member Way questioned the proposed signage, noting that some of the existing signs appear to have letters that are quite large. Mr. Griffin stated that there is an existing sign program for the commercial center. He acknowledged that some of the signage does appear large, but added that all of the signage was previously approved by this committee. MSUC (Spethman/Way) (4-0) to approve DRC-95-35 subject to the conditions in the staff report, modifying condition "b" to add language indicating that the new landscaping shall tie in with Phase I landscaping design, utilizing like-size plants and materials. 2. DRC-94-38 Broadway Plaza SEC Broadwav and SR-54 New Freestanding Si2:n Staff Presentation Associate Planner Hernandez introduced the proposal, noting that the commercial center to be located at the southeast corner of Broadway and SR-54 had been previously approved by the committee in July 1994. At that time, the committee had also approved an associated planned sign program which included a freestanding sign along SR-54. Mr. Hernandez noted that the currently proposed freestanding sign is the same height (50') as that previously considered, and is architecturally compatible with the commercial center. Therefore, staff recommended approval of the freestanding sign, subject to the conditions that the bottom sign panel be modified to a single undivided panel and the sign shall be of a solid background with internally lit routed letters. Project Architect James Leary representing Gatlin Development requested that the bottom panel be divided either horizontally or vertically (but not both) to allow two tenants to be identified. He stated that although the identification of center, Broadway Plaza, did not constitute identification of a tenant, it could be deleted if necessary to allow the naming of tenants as reques ted. Committee Discussion Chair Spethman stated that he was concerned with the existing Walmart sign at 1-805 and Palm A venue, noting that the sign is very large and sits right on the freeway; he indicated that he would not wish to see something similar here. Member Way acknowledged the developer's desire to identify the center and tenants, but stated that he was concerned about the sign at its proposed location and the visual appearance of these types of signs could from the freeway. He 1- :2- ?-- DESIGN REVIEW COMMITTEE -3- MAY 22. 1995 noted that the view from the freeway is currently very clean and natural, and voiced concerns about setting a precedent for future similar sign. Mr. Hernandez pointed out that the Dixieline site, which is within National City's jurisdiction, will have such a sign and is beyond Chula Vista's control; Mr. Leary added that the sign will enable motorists on the freeway to see the site in time to move over and reach their freeway exits. Chair Spethman noted that the committee had indicated similar concerns at its previous review of the overall project, but did endorse the sign conceptually. Member Duncanson stated that according to the minutes from the previous project consideration, the applicant had stated that the identification of three major tenants on the freeway-oriented sign would be acceptable. Members discussed the height as well as the design of the sign. Mr. Hernandez informed them that the applicant had submitted flag test indicating that 80' was needed to clear the bridges, but had not pursued this. Member Rodriguez stated that he would prefer to see only the two anchor tenants identified; other members agreed. Mr. Leary responded that it would look strange architecturally to have only two horizontal panels, adding that such a limitation would be problematic, although a limitation to three tenants would probably not be. After further discussion, members agreed that the identification of three tenants was an acceptable compromise. MSUC (SpethmanJRodriguez) (4-0) to approve DRC-94-38 subject to the conditions in the staff memorandum. 3. DRC-95-l9 Broadwav Business Homes 760 Broadway Mixed Use Proiect (Preliminarv Presentation) Staff Presentation Associate Planner Luis Hernandez introduced the project, advising the committee that the presentation was intended to introduce the Broadway Business Homes project and obtain preliminary comments from DRC members. He stated that the project is within the Southwest Redevelopment Project Area, and will ultimately be considered by the Redevelopment Agency. Mr. Hernandez noted that the project is consists of twenty-six units, each of which will include retail commercial space below and a dwelling unit above. He added that the City does not have standards to address many unique aspects of this type of project, and that numerous functional and aesthetic details will have to be worked out during the review process. Mr. Hernandez then introduced project architects C.W. Kim and Alan Turner to present the proposal to the committee. 1-/-)..3 DESIGN REVIEW COMMITrEE -4- MAY 22. 1995 Applicant Presentation Mr. Alan Turner stated that the intent of this presentation was to familiarize the Design Review Committee with the project and obtain feedback prior to the formal project presentation. Mr. C.W. Kim reviewed the modifications that had been made since the first submittal, noting changes to the site plan and other aspects of the proposal that had been made in response to staff comments. He noted that this project was unique, and was targeted at a very specific market, namely those who wished to live and work within the single unit. Mr. Kim stated that the developers had conducted numerous focus group interviews to determine the specific space and accommodation needs of potential buyers. Additionally, he stated that there were no similar projects to be found within the United States. Mr. Hernandez advised the committee that the project site is being rezoned to Central Commercial with a Precise Plan which is the only zone district that allows mixed use projects. The Precise Plan modifier provides for deviations from certain code requirements. He stated that, as indicated by Mr. Kim, several code requirements are not being met by this project; these include parking, common open space, and building setbacks. Mr. Kim proceeded to review the landscape plan, noting the various trees and other materials to be used within the project. He then reviewed the building elevations, and further reviewed the site plan. Committee Comments Chair Spethman stated that he was excited about the project but was concerned about the lack of open space for residents, customers, and employees. He asked about outside seating areas, and stated that he felt that outside open spaces were needed, perhaps in the form of small, intimate spots or a central open space area or focal point. He stated that the landscaping shown was good but noted that he would like to see more detailed information, adding that the triple- trunk sycamores suggested are messy and have invasive root systems. Mr. Kim stated that he expected to provide sitting areas under tall trees. Mr. Turner noted that in order to provide more open space areas, the pedestrian walkway would have to be modified, adding that the site plan is already extremely tight with little room for deviation. Member Duncanson asked where the residents' trash enclosures would be located; Mr. Kim stated that individual trash pick-up would be provided, adding that the loop road around the perimeter of the project will be a public right -of-way and that parking areas will be kept up through a maintenance district. Member Rodriguez noted that mixed-use projects are different from typical commercial or residential projects. He stated that the parking lots along the street frontage detract from the urban feel of the project and make it appear more like a strip center; he noted that the inverting of the "E" shape of the units would provide a more urban frontage. In response to member Rodriguez's questions regarding colors and materials, a sample board was provided which displayed a number of color options along with material samples. Mr. Kim stated that he intended to mix stucco textures and colors in the building elevations. 1-.2 'f DESIGN REVIEW COMMITTEE -5- MAY 22. 1995 Member Way stated that he was concerned about Broadway, noting the high turnover. Additionally, he noted that the site lays out similar to a condominium project. Member Way then asked what would happen if the businesses failed, or what would prevent a buyer from sub- leasing the commercial space. Mr. Hernandez responded that a condition of approval would require that the units owners must live in the residential unit and operate the commercial business, and that this would be assured through deed restrictions as well. Mr. Kim added that these spaces would typically not be retail, but would more likely be operated by single practitioners such as accountants, travel agents, single hairdressers, and real estate professionals, for example. Mr. Kim further noted that the project would be built in two phases, with checks on the market conducted throughout. He stated that financing had been secured for the first phase which will include six units, with the balance to be constructed in the second phase. He indicated that any changes that should occur would not include a change in unit size, which is pre-determined. - Members Way and Duncanson left the meeting at 6:38 p.m. - Chair Spethman asked what will happen if phase I is not successful; Mr. Turner responded that the property will revert to the City. Mr. Hernandez then outlined possible scenarios that could take place if this happened. D. STAFF COMMENTS Mr. Hernandez stated that he would be mailing the Design Review Committee's proposed budget to members, and would contact each individually for any comments they might have. E. ADJOURNMENT The meeting was adjourned at 6:48 p.m. Patty Nevins, Recorder J/ -:J.. ~ This page Blank 1-2& EXCERPT FROM THE DRAFr MINUTES OF A REGULAR MEETING OF THE DESIGN REVIEW COMMITTEE Monday. June 26. 1995 4:30 p.m. A. ROLL CALL Conference Rooms 2 and 3 MEMBERS PRESENT: MEMBERS ABSENT: Chair Spethman, Vice Chair Rodriguez, Member Kelly Members Duncanson and Way, with notification STAFF PRESENT: Principal Planner Steve Griffin Associate Planner Luis Hernandez B. INTRODUCTORY REMARKS Chair Spethman made an opening statement explaining the design review process and the committee's responsibilities. He asked that all speakers sign in and identify themselves verbally for the tape when speaking. C. APPROVAL OF MINUTES Approval of the May 22, 1995 minutes was continued due to insufficient members of that meeting present. D. PRESENTATION OF PROJECTS 2. DRC-94-19 Broadwav Business/Homes 760 Broadway Construction of a 36-unit Commercial/Residential Mixed-Use Proiect Staff Presentation Associate Planner Luis Hernandez presented the project, which consists of the removal of all existing structures and the construction of a 36-unit commercial/residential mixed-use project. He noted that the project had been introduced to the committee at a preliminary presentation on May 22, 1995, and stated that a public forum had also been held on June 1, 1995 to familiarize surrounding residents and property owners with the project and planning process as well as to obtain input on the project. Mr. Hernandez next reviewed the proposed site and building plans, stating that each unit contains approximately 500 sq. ft. of commercial space with approximately 1,500 sq. ft. of living area above each space. He noted that the proposal includes several requested deviations from typical development standards. These include: a reduction in usable open space; a reduction in the front building setback from 25 ft. to 4 ft.; the use of 28 compact and 28 tandem-residential parking spaces; and a reduction in vehicle back-up areas from 24 ft. to 21 ft. Staff supported most aspects of the project, but was uncomfortable with signage depicted and was recommending that a sign program be returned separately for review. Mr. Hernandez advised that final approval authority )j--J7 DESIGN REVIEW COMMITTEE -2- JUNE 26. 1995 for the project rests with the Redevelopment Agency, and noted that staff recommended approval of the project subject to the conditions stated in the staff report. Committee Ouestions/Discussion Chair Spethman questioned cutting back the area of the site's corner landscape nodes in order to create parking spaces, citing concerns with eliminating any landscaping or open space areas. Member Kelly agreed, stating that it was preferable to maintain the residential parking as depicted rather than lose landscape areas to accommodate the parking. Member Kelly asked what types of businesses would be locating within the project. Applicant Mrs. Lenore Citron stated that retail businesses would be outlined in a list of acceptable land uses within the project. She stated that although office uses had been considered, focus group participants had indicated that they would prefer a completely retail center as office-type uses present a somewhat boring setting. She added that there were more than sufficient variety in the types of retail businesses that could locate here, adding that the intent was to limit the businesses to just one of any given product -type category. Mr. Josef Citron stated that the time is right for this type of project, as one of the fastest growing business segments is the home-based business. He stated that this building product will allow people to operate a business from their homes conveniently and legally. Mr. Citron added that this project cannot be accomplished according to established regulations; it is intended to be market-driven, and will therefore provide what potential buyers need, with a price range starting at under $200,000.00. Member Kelly asked if buyers are willing to buy this product at this particular location; Mr. Citron responded that they would not only because of the price, but also because this is the only product of this nature available. He added that this is intended to be a pilot project which will lead to other similar developments. Public Comments Mr. R.D. Frederick of 752 Riverlawn Avenue stated that he was concerned about parking and storage issues. He stated that the commercial spaces are too small to provide for storage; therefore, garages will become storage spaces and parking problems will develop. Mrs. Citron stated that the CC&R's will include a provision that garages must be utilized for vehicle parking. Project Architect C. W. Kim pointed out that additional storage areas are provided on the floor plan in areas designated for optional usage. He added that areas such as spaces under stairs also provide natural storage opportunities. Mr. Frederick stated that no one will enforce the CC&R's and resident parking will end up in the commercial parking area. Mr. Hernandez advised that this committee's purview included project design, but not land use issues within the project. He reviewed the approval process and the opportunities for public input at the Planning Commission and Redevelopment Agency hearings. Mr. Gary Cooper of 767 Riverlawn A venue stated that he represents eight families on his block who support the proposed project. He noted that the only initial item of concern had been that of noise and privacy, but added that the developers had been very cooperative and were providing a wall to buffer the project. He stated that the project would be an asset to the Broadway area, and reiterated his support of the project. 1- _ :2.? DESIGN REVIEW COMMITTEE -3- JUNE 26. 1995 Committee Discussion Member Rodriguez asked if the loop road would be asphalt; Mr. Citron stated that it would be concrete, per City standards. Member Rodriguez stated that there should be a connection from the landscaped site corners to the project itself. Mr. Kim stated that the concrete could be scored, but added that this would a public street and that public works generally discouraged textured paving for such areas. Member Rodriguez pointed out discrepancies between the colored renderings of the site plan and landscaping and the landscape plans submitted. He stated that the project was exceptional, but that the lack of landscaping in the central parking areas made them appear as any strip center and was inconsistent with the rest of the project. Chair Spethman asked what other members thought about the trellis elements depicted along the Broadway frontage of the site. Members Kelly and Rodriguez felt that they were desirable, and all members agreed that the encroachments into the setback area required for the structures were justified. It was also agreed that signage should not be incorporated into the trellis structures, and that a separate sign program should be presented for the project. Member Rodriguez stated that wall signage especially should be more unique than that depicted on the elevations. MSUC (Spethman/Rodriguez) (3-0) to adopt Negative Deciaration and Addendum IS-95-03. MSUC (Spethman/Rodriguez) (3-0) to approve DRC-95-19 subject to the conditions listed in the staff report with the following modifications: delete condition "f"; add condition "q" _ "Directory signage to be of a transparent material, located at center islands rather than on the trellis structures. "; add condition "r" - "Trellises to be retained as presented, with the Design Review Committee finding the proposed encroachments into setback areas to be justified. " E. ADJOURNMENT The meeting was adjourned at 7:20 p.m. Patty Nevins, Recorder 4-~1 This page Blank 1-,5 tJ DESIGN REVIEW COMMITTEE CONDITIONS OF APPROVAL A. Approval of this project shall be contingent upon approval of Conditional Use Permit PCC-95-23 and Rezone PCZ-95-A. B. All mitigation measures of Mitigated Negative Declaration 15-95-03 and Addendum shall be adhered to and shall become conditions of approval. C. Landscape and irrigation plans addressing a parking screening solution shall be submitted to the Planning Department for review and approval prior to or in conjunction with the building permit submittal package. D. The parallel tandem parking featured on all two story corner units shall be replaced with a standard size stall within each of the planters featured at the northwest and southwest corners of the parcel. E. A parking screening solution consisting of a screening wall, closely arranged groups of planting material or a combination of these two shall be provided along the street frontage wherever parking is exposed to the public right of way. F. Deleted. G. An 18" concrete curb/step out strip shall be installed on all planting strips adjacent to parking stalls. H. A 5 foot high masonry wall shall be maintained along the west property line. However, the wall height may be increased up to 10 feet subject to staff approval of final design and materials. I. All windows facing east on the four frontage units shall incorporate dual pane windows rated a minimum of 5TC-25. J. All units shall feature a mechanical ventilation system capable of 2 air exchanges per hour. K. All pedestrian walks within the commercial components and connections to the residential area shall be decorative type. Paving pattern, design and color shall be submitted to staff for review and approval. L. A comprehensive planned sign program shall be submitted to the Design Review Committee for consideration and approval. M. Trash enclosures for two 30 gallon cans shall be provided for each unit. N. All garage doors shall be equipped with automatic garage door openers. .Lj-3/ O. Additional trees shall be incorporated within the parking lots subject to staff review and approval. P. A detailed construction phasing plan showing adequate emergency vehicle access, sufficient parking to support the commercial retail operations, internal circulation landscaping and all the amenities for that portion of the project shall be submitted to the Planning Department prior to issuance of any building permit. a. Freestanding signs shall be of a transparent material and relocated to the landscape area between the two driveways of each of the commercial parking lots. R. Trellis structures shall be retained as shown in the conceptual design drawings. [M,IHOMEICOMMDEVIKASSMANlEXHmrr.AI Jj - 3 ")-- MINUTES OF A SCHEDULED REGULAR MEETING Res.ource C.onservati.on C.ommission Chula Vista, Calif.ornia 6:30 P.M. M.onday, June 26, 1995 C.onference Reem # 1 Public Services Building CALL MEETING TO ORDER/ROLL CALL: Meeting was called te .order at 6:30 P.M. by Chair Burrascan.o. City StaffEnvirenmental Review Ce.ordinater Deug Reid called roll. Present: C.ommissi.oners Hall, Marquez, Thernburg, Clark. It was MSUC (HallJMarquez) te excuse C.ommissi.oner Fisher, whe had te werk late; vete 5-0, metien carried. APPROVAL OF MINUTES: It was meved and seconded (Burrascan.o/HaII) t.o appreve the minutes .of the meeting .of June 12, 1995, with correctiens: On the first column .of the list en page I, the reference nete after Hemizonia conjugens sheuld be rem.oved; the NOm at the bett.om .of the first c.olumn sh.ould correctly read: "... the MSCP is attempting te solve will net be salved (streamlining develepment projects by n.ot requiring Sectien 7 censultatiens .of the Endangered Species Act)." Vete 4-0-1, Thernburg abstained because he was absent frem that meeting; metien carried. U f-- ..... co ..... :r >< LW ORAL COMMUNICATIONS: N.one. NEW BUSINESS: 1. Scavaging Grant Approval-Michael Meacham was net present te discuss this item. 2. Review .of Negative Declarati.on IS-95-03, Broadway Business Hames: After a brief discussi.on, it was MSUC (Burrascan.ofI'h.ornburg) t.o approve the negative declarati.on; vote 5-0, metien carried. A recommendatien was made te censider the unreasenable safety hazard t.o the residential units (i. e., p.otential fire hazard, electrical safety c.oncerns) due t.o the type .of business adj.oining the residential units. It is suggested the pr.ohibitive types .of businesses be listed in the CC&R. Cencern was alse expressed that a play area be set aside on the greund level far children living within the units. A metien was made (ThernburglHall) te accept these rec.ommendatiens; vete 5-0, m.oti.on carried. STAFF REPORT: D.oug Reid rep.orted .on the C.ouncil's rec.ommendatiens far the MSCP. The City .of Chula Vista is preparing a letter t.o the City .of San Diege fer further revisiens te the plan. CHAIRMAN'S COMMENTS: Burrascane neted there is still a vacancy en the RCC. COMMISSIONER'S COMMENTS: Marquez and Clark still have net been contacted by the City Clerk regarding their terms .of .office which expires June 30, 1995. The RCC sheuld be added te the list .of Cemmissi.ons in need .of members. ADJOURNMENT: The meeting was adj.ourned by Chair Burrascan.o at 7:20 P.M. Respectfully submitted, EXPRESS SECRETARIAL SERVICES '~~ ~-33 This page Blank -1-21 D lLSn _r- ~ ~t::; (5U -= z '--"--- c ;- . oof-- :I I-- ' f-- "--- - -.. = I PROJECT :::'~ /\) :~ -:::: : LOCATION ~ ~ . ")<.... .... . r -.. ~ --' I I I I I I I I . , . 1\1-- , .i I ....: t I l__ -- I I .- ~ - - - - .- .- ~ - 'f < - -l I- I--' .- a: - > f-- ;- 1= .--- >C ;:;: I ~ r..J I; r:1- i i w ;:) Z IiJ > < E z . c -' Q o o . , ........ > - un-t:J:::n::tjUI! Ii j- '.. ~ % r I .... ., -1 I . . . : . I I ' . ' t . ~--. ~-';-"~"-I'...,.. . . . , 1 I . : : ," I : . . : . J . I i I . . I . . , I --... --, , .1 · , I , ... l 'r,.~'~'. - -t. I .". : . 1" I- .., I I I . . t I.. , I ~ ....1 . . .. . _utoo - I ;:) Ei . --.... . "'J . l1J ;;. < - '- - ,.- - - -- - - : 1-- - "" -~ 1.':':1 f-iOj 1::1 I I . Cl I- ...... co ...... :r: >< u.J K . I ..... _.- ..~_....... ....... J...._ . . ~ ..., ~ ~ i. rOO", , . ....~ CHULA VISTA PLANNING DEPARTMENT LOCATOR ptOJECT Broo:Yl1 Business CONDmONAL USE PERMIT & ZONE CHANGE C) APPLICANT: Homes dloge ptOJECT 760 Broadway ~uufl Rezone 2.53 acres a1760 Broadway ADDRESS: to a low the cons1rudion of a 36 unit commerdal FILE NUMBea, pce. 95 . 23 residenlial mixed ~'use project. 4-35 $CAlf: NORTH 400' pez.95.A ~ This pa.ge Bla.nk t-/ - 3~ . J I I I I I I J \. I J l I I I L r I "J" STREET .J , , I I I I I I I I I I I . L __oJ I I ----- 1 1 I L__:' I I ~. I I L -r I -; I i: . I L I 1 I > 1 - I g I I I I 1 1 I I 8 . ------ I i z I ...___J I .- ::0 ....-- <: I - PI . I . ::0 ...-.---+-- :a- m r I en PI - .~ , % PI 1---- O' Z ---- -~ %. - ST. I b . - CCP ~ 10 --- - ~ ~ PI ---- . PI - . - 1 210'-0" , I - -- - ---- txI J I ;0 :a- ~ 1-. I ~ I < I PI . ~--- ~ I- r- I I 'I .I ~ l- I I : I . ... "K" STREET r I I rTTl r I I rEXHIBIT - A- CASE NUMBER: CHULA VISTA PLANNING DEPARTMENT PCZ - 95 - A ACRfA(;E: 2.53 I HEREBY CERTIFY lJiAT THIS ZONING MAP WAS APPROVED AS A PART OF ORDINANCE SCALE: 1" = 400' BY THE CITY COUNCIL ON [MTE: JUNE 5, 1995 OTY (URJ( DATE DRAWN BY: C) ~l~ C. J. FERNANDEZ ZONING MAP ~~ CHECKED BY: Cl1YOf 0lUA VISTA NORTli 1--37 This page Blank ~-3; - A ,. - - ., ;.: ~ i '0 ; t ~ ,: ~ Z , ! I, ~ i ~ :i i ... I' m i ; Q. :! r w . .... ,- 0 ~ C[ , ! ... ! (.) Ul ,. - 0 \; m i z - I :i X -' ~ C[ I~ ~ >< I ~ W . " I 0 (.) .... z 0 ! It (.) i4 i " , ~. I : , i ~ .... , . 0 . e ~ i..... .-.: S;'. -' I . ~ 0 ;..... . -_0" ! . ..... ..... , i ,.... .... W I- ~ '" ~ :I: >< W [. i I~ I , .... 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A I ,~ " ~," ~":.d ~) -f.lk/...t.- '7/ . r . ::;v -v...-.':/./L / ..L-'./L c;-I/./~. 7" ~_S/ j~ ~ -rr ../..:> / f.J () 'i,f.J :!~ _.-~ ( '/ ...;/ /;,'A{;;,:("" ~...L, ~--'~~""../~ r 1vJ:~~)"./ j-'>h'Y./, ~~ ~I'-;L/:/ ' f) 1-4 tAb-t'-:tL.- ~,--/i:;,~ /'P~J-1 .ad f.l.lJ./- o....J Ar./nP I~~ j.A>Vf r~~- /.JI.AJ.l a-t.-+-V$ ~~/ /~...J v;#..w ~~,< ~ c... V. ..-r..~.#'--u.J I'J~ 2 , ~4~'Z ~-..u) 7 .I t:) I LJ /: '7,)'1 II'-<- ctJlt-/ Y~,1 &..- ~A~~0"31 ~1/ cJ 2. :s - /.1 liS 'l~/ JZb 7-1 "- I- ~ co ~ :I: >< W ; JaauaT7 I), 1995 ca.eN 18 - 9S - OJ JANJ. . -. . 31.'19!-/ ., r,. !'" <..1; ". 1"1' , . '.. ~ \.;:' Dousrll!ls Reid EftT1roKmeftt81 ReT1ew Coord1..tor We, the followla! resldeats of the 700 block of BITe rIa.. ATe, reqaest that the oarreat appro:l:l_tely 20 toot hl~h _11 raaala! alaR! 763 aad 767 R1Ter1a.. ATe be retal~d, aad, If posslb1e,aloa~ the eatlre property llae to protect the ourreat R-l resldeats troa the adTerse aolse aad traffic CAused by the 3 1/2 stoT7 eoaaerola1 deTe10paeat purposfd b7 Cltroa Reality. IaTest.eat Corporatloa (tile I 18-95-0)). ! \- " ( II~ ;0 (?~ '6i"trf alta' Jllary Cooper 767 RITerla.. ATe 1hula ~: Sa \~1910 ~{i1 aJ7 J~~~s V 74S R1Terl... ATe Chatt Vista CA 91910 r(:;1f;;e~~ 724 R1Terla.. ATe Chbl' Vista, CA 91910 1~'I6 ~ Jj ,J,j7 ~ " ATrACHMENT 5 NOISE ANALYSIS This page Blank t1' tfg Giroux &. Associates Environmental Con :tants i. ;. .... ~ f. M.~,CC 1 7 1995 ~ :--i....r........ "._ .. \. c'. .~. ;"",;" March 14, 1995 Citron Realty , Development Corp. C/O Coronado Bay Hotel Venture Attn: Ms. Lenore s. citron; Gp/owner 4000 Coronado Bay Road Coronado, California 92118 Re: Businesshome Village Acoustical study Dear Ms. Citron: We have conducted an acoustical study for the former Fuller Ford site at 760 Broadway in the City of Chula vista. Ms. Susan Vandrew from the Planning Department staff had identified two noise concerns relative to development of the site as proposed. These concerns were: 1. EXposure of the rear yards of existing residents on Riverlawn to excessive site activity noise, or, 2. Excessive on-site residential exposure to vehicular noise from Broadway traffic. , Given the previous use of the site for automotive and truck repair and a body shop in close proximity to the Riverlawn hoaes, the question of site suitability for residential use is perhaps aore pertinent than limited "new" site access/egress noise. !rasks that were performed to evaluate changes in the noise environment due to project iaplementation included: 1. Site familiarization and obtaining plans and other input data 2. on-site noise aeasurements 3. Measurement of parking lot activity noise at a similar aixed use development in Orange County --==' ~ ~ 4-1q /7744 Sky I'Ml Orde. Suitt 2/0. IrtiDe. QJjfonu. 92114 . PboJJe (714) 1.1/.u09 . Fu (714) 'J/-M/2 -2- 4. Evaluation of noise impact potential and identification of any recommended mitigation The following discussion summarizes the results of the efforts in each task. Project Description The preliminary site plan for 36 units envisioned two .pads" of 18 live/work businesses and residences separated by a common parking area. In the revised site plan, the two clusters have been drawn together with only a small separation and two separate parking areas have been created. In the current site plan, the intervening 3-story structures between"Riverlawn residences and the parking areas will preclude any audibility of site visitor vehicular activity. Use of the perimeter roadway by site residents and by small delivery vehicles such as package delivery services will be the potential source of impact. Through the more contiguous building mass screening out Broadway traffic noise, any small impact from site-related vehicles may be offset by equal or greater attenuation of existing noise. Proposed uses for the site are a mixed use concept with owner- occupied businesses on part of the ground floor of each townhouse with parking in the rear of the ground floor and two floors of living space above. Business uses are expected to be small specialty retail, professional or service-oriented offices and special ty restaurants such as gourmet coffee, deli sandwiches, yogurt, etc. No audible noise generation from business use is expected at the rear of any unit in proximity to adjacent residences. on-Site lIoise lIeasureaents Noise measurements were IIllde at three locations on the project site. Two sites were along the rear separation wall between the former dealership and the adjacent residences (one near the former body shop on the southern one-half of the site; one near the taller truck repair building on the northern one-half). One monitor was located 90 feet from the Broadway centerl.ine in a former auto display area with an unobstructed view of 'Broadway. Results of these measurements made on February 23~ 1995 near 1 p.m. are summarized as follows: " . ~ J./-.5CJ -3- Noise Level (dB[A)) ~ 1.Iulx Wn Front Display Area 65.3 75 55 Body Shop Area Truck Repair Area 59.7 66 55 58.9 65 52~ These readings were 15-minute energy equivalent averages (LEQ) and 1-second maxima and minima (Lmax, Lmin). city of Chula Vista standards are expressed in terms of a weighted 24-hour standard called the community Noise Equivalent Level (CHEL). Our monitoring experience in a number of Chula Vista noise monitoring programs has been that mid-day LEQs and 24-hour CHELs are often very similar. For example, a comparison of CHEL and the mid-day noise level at three sites around Chula Vista are as follows: Site 1 LEQ (Noon-2 pm) 64.3 dB CNE!. 63.6 dB Site 2 Site 3 62.7 dB 64.9 dB 52.2 dB 51.9 dB "The difference between CHEL and mid-day LEQ is often near zero, and generally fairly small. The baseline readings above are therefore a reasonable representation of existing noise levels relative to the City's exterior standard of 65 dB(A) CHEL. The above comparison suggests that mid-day LEO noise levels are from 0-2 dB lower than daily CHELa. At the locations measured, the former front display area with a CHEL of 65-67 dB(A) thus currently slightly exceeds the city standard, while the former rear repair areas with CHELa of 59-62 dB(A) are well within the City's guidelines. Residences on Riverlawn backing up to the site protected by the existing wall clearly have a large margin of safety between the standard and their curre~~ noise exposure. -~ '-I-Sf -4- Parking Lot Activity Hoise Noise levels at the edge of a parking lot serving a IIi xed use development in Huntington Beach were lIonitored as a prototype for the off-site levels that could be expected for the former site plan that had a direct line of sight from the parking area to the rear yards of Riverlawn homes. The Huntington Beach facility has ground floor shops and offices with upstairs residences in an "Old World" atmosphere. Businesses include restaurants, a deli, retail shops (especially ethnic wares), travel agencies, CPAs, a tanning salon, etc. Tenant and/or owner parking is in a separate garage area, but otherwise the design concept is similar to the proposed facility in Chula Vista. One-hour measurements at the edge of the parking lot from 12:30 _ 1:30 p.lI. when there is an active lunch traffic were as follows: LEQ ., 59.7 dB LMAX., 81.0 dB Lmin.. 51.5 dB Because the traffic peaks during the day with little nocturnal activity, CNEL is likely several dB lower than lIid-day LEQ. If the property line CNEL were 57 dB(A), and this noise level were superimposed upon the 59-62 dB(A) CNEL currently experienced at the fenceline of the Riverlawn homes, the combined level would be 61-63 dB(A) CNEL. The former plot plan with the parking area exposed to view by the residences, even without any noise reduction credit for a rear property wall, would not cause City of Chula Vista standards to be exceeded. With the revised plot plan, the parking lot activity noise exposure to off-site residents is a moot point. Its only issue would be as to how much on-site vehicular activity will be audible to project site upper story residents. Access Road Hoise As a worst-case assumption, each unit was assumed to generate 10 daily trips (five outbound and five inbound) along the perimeter access. At 25 IIph, with lot of traffic at ni'ght, the traffic noise in the absence of any barrier is 50 dB(A) CNEL in the rear yards of the adjacent residences assuming that the proposed homes are perfect reflectors. A level of 50 dB is not perceptible within an ~ f~5"2- -5- ~ existing background of around 60 dB. By creating a more contiguous 3-story barrier to screen out existing traffic noise from Broadway, the noise reduction achieved by the project will far more than compensate any small noise increment created by resident and minor delivery vehicle traffic on the townhome perimeter road. The above calculations are for no separation wall between the project and existing Riverlawn residences. No wall is needed to meet noise standards. A wall may be desirable for privacy, security, aesthetics or other reasons, but it is not a necessary project component to meet noise standards. Because inclusion of a wall is not noise-driven, the height is somewhat immaterial. Any beight above 5 feet will reduce the perception at adjacent bomes of individual vehicles passing through the rear "alley", but only creates an additional margin of safety relative to meeting City of Chula Vista standards. On-Site Noise Exposure 5i ting of residential uses on a commercial corridor does bave possible noise implications. Existing measured noise levels (estimated from short-term, daytime readings) at 90 feet from the Broadway centerline are 65-67 dB(A) CNEL. Projected increases in traffic volumes on Broadway are small such that noise "growth" is forecast to be only an additional 0.5 dBCA) CNEL. With the facade of the closest project buildings somewhat closer than the 90-foot measurement distance, a maximum future exterior noise level of 69 dB(A) CNEL is forecast for the units closest to Broadway. The sides of the closest buildings to Broadway will exceed the City standard by 4 dB. The front and back of the closest unit will only be exposed to one-half of the traffic. Limits in the field of view to 50' of the traffic flow will create a 66 dB(A) CNEL exposure at the corner of the nearest unit. Within the width of one unit, noise levels decrease by 1+ dB to create a sub-65 dB(A) CNEL at the exterior of all units except the four closest to Broadway. The 65 dB(A) CNEL contour approximately bisects the closest unit. City standards for noise at any usable exterior recreational space is 65 dBCA) CNEL. state standards for interiors of multiple family units is 45 dBCA) CNEL. Exterior to interior noise attenuation wi th standard construction practice is 20 dB as long as windows are closed. All units except the four closest to Broadway will bave exteriors of less than 65 dB(A) CNEL. Their -decks and porches will meet City exterior standards without any supplementary noise protection. Their interior levels will be below 45 dB(A) CNEL as long as residents can close their windows to shut out the noise. ~ '~-Sj -6- The ability to close the window requires an auxiliary source of ventilation. Although this requirement is met in the UBC with only a whole-house fan (normally in the furnace in central heating), refrigerated air conditioning is the preferred option. While the need for air conditioning in Chula Vista is very limited, its inclusion provides an expanded range of options to the business and residential component of each unit to control comfort and noise. At the four end units abutting on Broadway, a somewhat enhanced level of noise control is required. Exterior exposure for the front balconies of these units is 65 dB(A) CNEL. The rear deck is shielded by the protrusion of the second floor family room such that the deck outside the kitchen door will also have a noise level within City of Chula Vista standards. No exterior noise mitigation is required. The front balcony at 65 dB(A) CNEL may not be conducive to relaxing conversation at these units, but does not require any supplementary noise control. The interior of the four units closest to Broadway is thus the only possible location where standard design practice may not be able to achieve a reduction from 69 dB(A) CNEL on the facade to a 45 dB(A) CNEL in the interior. With planned windows facing Broadway, the noise leakage for a standard window may be slightly inadequate. Based on preliminary room geometries, we have run the Interior Noise Analysis (INA) model. Use of slightly upgraded windows (dual-paned sliders or a thicker glass) with a Sound Transmission Class (STC) of 25 or higher will allow the interior standard of 45 dB(A) CNEL to be readily met. .. su..ary /Reco_endations OUr findings are as follows: 1. A rear property wall is not necessary for noise protection. It is anticipated, however, that the existing rear wall, with some cosmetic improvement, will be retained. Maintaining a minimum wall height of 5 feet above project grade is recommended. 2. Air conditioning is recommended as a standard feature on all units. 3. East facing windOWS in the four end units that face Broadway are reco_ended to be rated at STC - 25 or higher. This rating is typically achieved by use of a thicker glass or by a dual- paned sliding window. ~ 1--5f " ATIACHMENT 6 INITIAL STUDY AND MITIGATED NEGATIVE DECLARATION ~ 1---:55" This page Blank 4- - 5~ ADDENDUM TO MITIGATED NEGATIVE DECLARATION IS 95-03 PROJECT NAME: Broadway Business Homes Village PROJECT LOCATION: 760 Broadway PROJECT APPLICANT: Josef & Lenore Citron PROJECT AGENT: C. W. Clark CASE NUMBER: IS-95-03A DATE: May 30, 1995 r. rNTRODUCTrON The environmental review procedures of the City of Chula Vista allow the Environmental Review Coordinator (ERC) to prepare an addendum to a Negative Declaration or Environmental Impact Report (EIR) , if one of the following conditions is present: 1. The minor changes in the project design which have occurred since completion of the Final EIR or Negative Declaration have not created any new significant environmental impacts not previously addressed in the Final EIR or Negative Declaration; 2. Additional or refined information available since completion of the Final EIR or Negative Declaration regarding the potential environmental impact of the project, or regarding the measures or alternatives available to mitigate potential environmental effects of the project, does not show that the project will have one or more significant impacts which were not previously addressed in the Final EIR or Negative Declaration. IS-95-03 analyzed the potential environmental impacts associated with a proposal of a rezone from the CT to Central Commercial modified by a Precise Plan (CCP) zone, in order to allow for the construction of 36 mixed use units. Subsequent to the completion of the Mitigated Negative Declaration, minor changes have been incorporated in the project description.. Therefore, in accordance with Section 15164 of the CEQA Guidelines, the City has prepared the following addendum to the Mitigated Negative Declaration for the proposed rezone to ~ ~3- ~-S7 This addendum supersedes the. previous Mitigated Negative Declaration IS-9S-03. An Addendum need not be circulated for public review, but instead becomes an attachment to the previously issued Mitigated Negative Declaration IS-95-03. II. PROJECT LOCATION AND DESCRIPTION The project site, located at 760 Broadway, is a 2.52 acre site, which was previously used as a Fuller Ford auto dealership and is located in the Southwest Redevelopment Project area. The site is zoned Thoroughfare Commercial (CT) and designated as Commercial Retail in the General Plan. There are several existing structures and carports previously used in the auto dealership for customer service, parts storage and auto repairs. The City of Chula Vista currently owns the property and will issue a contract for the demolition of all structures and carports and the clean up of the site prior to the transfer of the property to the project applicant for construction of an approved project proposal. The properties to the north and south, as well as across Broadway to the east, are zoned Commercial Thoroughfare. To the west is zoned R1 and there are existing single-family residences. A tire sales and repair land use is located to the north and a hotel is located to the south. The average graded slope of the site is 2%. rrr. PROJECT BACKGROUND AND HrSTORY On May 2, 1995 the proposed project was reviewed by the Redevelopment Agency to provide direction as to how project issues are to be addressed by staff. The issues which are of major concern to staff include setting precedents which have City staffing and budgetary implications, public access and liability, and open space and parking proposals. Issues which were discussed and were not evaluated in the Mitigated Negative Declaration were the following: the creation of an .assessment district to establish ownership and maintenance for the common areas, the establishment of Conditions, Covenants, and Restrictions (CC&R's) and a Parcel Map proposal. rv. PROPOSED PROJECT The project entails a residential subdivision comprising 36 units. There will be common areas including access alleys, open space and public parking areas. The City with form a "one of a kind" Assessment District to establish ownership and maintenance for the common areas. Project area residents potential of having two have indicated concern about the separate areas. that could be rented ~~. /f-S? separately. The applicant has indicated that owners of the units are to occupy both the residential and commercial areas of the units. Prior to issuance of any building permits for said development, the applicant/owner (or their successors in interest) shall enter into an agreement with the City establishing Conditions, Covenants, and Restrictions (CC&R's) for the ownership of the "business homes." Any costs incurred by the administration of the CC&R's will be born by the applicant. The project entails a subdivision of 36 units, as described above and the map process may take from 12 to 18 months. The process is governed by State Law (the Subdivision Map Act) . State law does provide for exemptions from the process for public agencies, under certain circumstances. The City currently owns the property and may be able to process a Parcel Map, as opposed to a Subdivision Map, for the project. The applicant has requested that this be done and staff believes that a Parcel Map would be a cleaner process, and would provide monumented lot corners for a more precise legal lot definition. V. rDENTrFrCATrON OF ENVrRONMENTAL EFFECTS Assessment District The formation of an Assessment District does not in any way change or alter the conclusions regarding the environmental impacts described in the Mitigated Negative Declaration for the proposed project. CC&R's The City establishing of Conditions, Covenants, and Restrictions (CC&R's) for the ownership of the "business homes" will address residential concerns as to the ownership of the home/business units and will support conclusions as to project impacts as described in the Mitigated Negative Declaration, which assume that the owner and occupant of the business homes will be one in the same. Parcel MaD The processing of a parcel map will not exempt the development from CEQA or other land use approval processes and will not change the project impacts as described in the Mitigated Negative Declaration. / VI. CONCLusrON The Environmental Review Coordinator has determined that the project revision, as reflected in this Addendum (IS-95-03A), does not raise important new issues about the proj ect' s significant effects on the environment. No significant -~a-: ~-s9 impacts would result from these modifications to the project as previously proposed. This addendum supplements the previous Mitigated Negative Declaration prepared for the project and concludes that the project proposal is subject to mitigation measures. Coordinator En " --3 '- - ~-0{) Mitigated Negative Declaratio PROJECT NAME: Broadway Business Homes Village PROJECT LOCATION: 760 Broadway, Chula Vista CA 91910 ASSESSOR'S PARCEL NO.: 571-200-13 through 17 PROJECT APPUCANT: Citron Realty & Investment Corp., Josef & Lenore Citron CASE NO: IS-95-03 DATE: May 12, 1995 A. Proiect Setting The project site. located at 760 Broadway, is a 2.52 acre site, which was previously used as a Fuller Ford auto dealership and is located in the Southwest Redevelopment Project area. The site is zoned Thoroughfare Commercial (CT) and designated as Commercial Retail in the General Plan. There are several existing structures and carports located on the project site which were previously used in the auto dealerShip for customer service, parts storage and auto repairs. The City of Chula Vista currently'owns the property and will issue a contract for the demolition of all structures and carports and the clean up of the site prior to the transfer of the property to the project applicant for construction of the an approved project proposal. The properties to the north and south, as well as across Broadway to the east, are zoned CT. To the west is zoned RI and there are existing single-family resjdences. A tire sales and repair land use is located to the nonh and a hotel is located to the south. The average graded slope of the site is 2 %. B. Proiect Description The project proposes a rezone from the CT to Central Commercial subject to a Precise Plan modifier (CCP), in order to allow for the construction of 36 mixed use units; commercial use on the first floor level and residential use on the second and third floors and it is expected that the owner of the business and home are one in the same household. Nine two bedroom units, nineteen three bedroom and eight four bedroom units are proposed. The proposed lot coverage is 39,188 sq. ft. of the total 109,771 sq. ft. project site, or 36 %. There are 82 commercial and 72 residential parking spaces provided. There will be 36 single car garages, 8 open stalls and 28 10'x 12' tandem spaces. There will be 7,072 sq. ft. of open space provided for project residents.. The estimated project population is 123. The project .is expected to generate 26 light commercial and office jobs. · ~ 7--- city of chula vista planning department environmental review .ection q-0/ ~V?- -r- ..~-~...: - - CITY OF . CHUlA VISTA The applicant will be required to pay Park Acquisition and Development (PAD) fees and comply with State California Title 24 Disabled.Regulations. Discretionary actions include . Precise Plan approval and a Conditional Use Permit. The project will also require approval by the Redevelopment Agency. A soils study will be required prior to issuance of a building permit. C. Compatibility with Zoninl! and Plans The proposed mixed-use project is proposed on five parcels which are currently designated on the General Plan land use diagram as Commercial Retail and zoned CT. The project proposes a zone change to CCP, which would be compatible with Commercial Retail land use designation. Approval of a zone change will permit the proposed use, subject to approval of a Conditional Use Permit (per Chapter 19.36, Section .030, Zoning Ordinance) and approval of a Precise Plan. Nearby resident's have raised concern about parking overflow to the their streets. There are 82 commercial parking spaces and 72 residential spaces and 111 commercial and 72 residential spaces are required. The justification for the parking space deficiency is founded in the urban character and uniqueness of the proposed mixed-use project and will be addressed in the project precise plan or a variance. D. Identification of Environmental Effects An initial study conducted by the City of Chula Vista determined that the proposed project could have one or more significant environmental effects. Specific mitigation measures will be implemented to reduce these effects to a level below significant. With mitigation, no significant environmental effects will occur, and the preparation of an Environmentallmpact Report will not be required. This Mitigated Negative Declaration has been prepared in accordance with Section 15070 of the State CEQA Guidelines. The following impacts have been determined to be less than significant. Noise: A acoustical study prepared by Giroux & Associates analyzed two noise concerns on of the project proposal: exposure of noise from the proposed project to single-family residences to the west and excessive on-site residential exposure to vehicular noise from Broadway traffic. Tasks that were performed to evaluate changes in the noise environment due to project implementation included: 1. Site familiarization and obtaining plans and other input data, 2. On-site noise measurements,' 3. Measurement of parking lot activity noise at a similar mixed use development in Orange County, and 4. Evaluation of noise impact potential and identification of recommended mitigation. WPC F:\HOME\PLANNING\STORED\l020.9~Rcf. 1021.93,1022.93) .:;~3- tf-6~ ~t'''gP , The fmdings and recommendations of the study are as follows: I. A rear property wall is not necessary for noise protection. It is anticipated, however, that the existing rear wall, with some cosmetic improvement, will be retained. ~e maintaining of a minimum wall height of 5 feet above project grade is recommended. 2. A mechanical ventilation system which will comply with UBC Sect. 1205 (c) is required as a standard feature on all units. 3. East facing windows in the four end units that face Broadway are recommended to be rated at STC = 25 or higher. This rating is typically achieved by use of a thicker glass or by a dual paned sliding window. School Impacts The proposed project involves a rezone from CT to CCP. This rezone will allow for the development of 36 residential units with commercial space, subject to approval of a Conditional Use Permit and Precise Plan. The present CT zone does not permit residential uses. Therefore, it has been determined that the rezone to CCP could generate significant school impacts since it allows residential units by Use Permit. As a result, the City recognizes that school impacts generated by the approval of a rezone for the project site must be fully mitigated. The proposed 36 residential units will generate an impact of up to 22 new students in the enrollment area for Chula Vista Junior High School, Chula Vista High School and Mueller Elementary School. I Due to the uniqueness of the project's "business homes" concept, the commercial component of the project is not considered to be an additional impact, as it is expected that the owner of the business and home are one in the same household. The Chula Vista Elementary School District and the Sweetwater Union High School District (the Districts) have indicated that state mandated fees will not be sufficient to fully mitigate impacts. Therefore, they have requested that this project be conditioned to fully mitigate impacts through possible participation in a Mello-Roos Community Facilities District or other financing mechanism, mutually acceptable to the Districts and the project proponent, which will achieve full mitigation. In order to fully mitigate identified impacts, the applicant shall be required to enter into an agreement with the Districts in which measures to fully mitigate impacts are outlined and mutually agreed upon, and evidence of said agreement shall be provided to the satisfaction of the City prior to the time of building permit issuance. 1 The factors used to calculate student generation are .30x36cl0~8 or 11 for elementary schools and .29x36~10.44 or 11 for junior high/high schools (11+11~22). The factors were provided by the Chula Vista Elementary School District and the Sweetwater Union High School District. WPC F:\HOME\PLANNING\STORED\1020.9:{Ref. 1021.93.1022.93) ~ ~~ 03 -Jta!1 ? Fire Services Based on the fire flow requirements, the Fire Department will require the following: the project to be fully sprinklered; rife extinguishers; a rife a1arm system (centrally monitored), standpipes and a rife access with a minimum of 20'. Water Availability The Sweetwater Authority has indicated that if a rife sprinkler system is added to this development (note that required by the Fire Department), the required fire flow can be reduced from 7500 GPM to 3750 GPM. This flow can be met if the developer installs 600 Lineal feet of 12-inch main in Broadway, from "K" St. to the mid-point of the proposed development. This is in a section of Broadway that is currently being reconstructed by the City of Chula Vista. Any required water services will probably result in the excavation of the newly constructed street. The applicant will also be required to provide information regarding domestic, irrigation and fire sprinkler water demands that would expedite these instal1ations prior to the street reconstruction. , Land-Use The project proposes a zone change to Central Commercial subject to a Precise Plan modifier (CCP). Approval of a zone change will permit the proposed use with a Conditional Use permit (per Chapter 19.36, Section .030 of the Zoning Ordinance). The proposed project allows for a mixed-use project along Broadway, which is specifically called for along sections of the Broadway Commercia] strip. The proposed project lends credence to Ordinance 2295, which allows for mixed-use developments in the CCP zone. This project supports the intent of the Ordinance to facilitate the development/redevelopment of otherwise under utilized commercial sites and foster mutually supportive projects, such as the proposed project which allows residents to live and work at the same site. The project also supports the intention to provide an opportunity to ease the transition between commercial properties and abutting residential areas. TrafficlParking The proposed project will generate approximately 1816 ADT, approximately 1056 ADT over the previous land use. Potential additional traffic impacts are expected to be lessened by having a high percentage of employees living and working on the project site. The project is not anticipated to significantly impact traffic on Broadway and with the implementation of a scheduled Capital Improvement Project (Fall, 1995), this segment of Broadway is expected to operate at a Level-of-Service 'C' or better. There are 82 commercial and 72 residential parkin~ spaces proposed, however 111 commercial and 72 residential spaces are required. According to the applicant, the parking provided for the commercial shops is adequate because the shops, which are about 600 sq. ft. each and connected to the living space, are intended to be used by the resident living directly above, and because the resident/shop operator parking is provided along with the residence, the typical commercial parking demand is reduced by the number of ~- ~~"~ ~ ~~ (P If - E I ,; WPC F,\HOME\PLANNING\STORED\I020.9~Rer. 1021.93.1022.93) residentiallbusiness units (36). The justification for the parking space' deficiency is founded in the urban character and uniqueness of the proposed mixed-use project and will be addressed in the project precise plan or a variance process. Findings to justify the deviations from the Chula Vista Municipal Code will have to be made by the approving body. Conclusion The proposed project does not have any unmitigatable significant environmental effects as defmed by CEQA. The project has been found to have less than a significant impact on land use, fIre services, water availability and traffic. The project will generate impacts to noise, schools and parking which require mitigation to ensure that impacts are less than significant. E. Mitigation necessary to avoid sil!Ilificant effects Specific project mitigation measures are required to reduce potentially significant environmental impacts identified in lpe initial study for this project to a level below significant. Mitigation measures have been incorporated into the project. These measures must be incorporated into the project proposal prior to issuance of a building permit. I. Recommendations and fmdings of the noise study (please refer to Section E above). 2. Evidence of an agreement between the applicant and school districts which fully mitigate school impacts generated by the proposed project shall be provided to the City. 3. The applicant shall obtain approval of the proposed parking in the Precise Plan. F. Mandatorv Findings of Significance 1. Does the project have the potential to substantially degrade the quality of the environment, substantially reduce the habitat of a fISh or wildlife species, cause fISh or wildlife population to drop below self-sustaining levels, threaten levels, threaten to eliminate a plant or animal community, reduce the number or restrict the range of a rare or endangered plant or ..nimal, or ..limin"te important examples of the major periods of California history or prehistory? The project site is in an urban area and was previously used for a major automobile dealership and maintenance facility. There are no sensitive species or habitat in the area. 2. Does the project have the potential to achieve short-term environmental goals to the disadvantage of long-term environmental goals? The 2.52 acre project site was previously used for a major dealership and maintenance facility and is located in the Southwest Redevelopment Area. The proposed mixed-use project will implement project goals of the Southwest Redevelopment Plan; provision for the enhancement and renovation of businesses within the Project Area to promote their economic viability and encourage the Pttgl f WPC f;\HOME\PLANNING\STORED\l020.9l:Rcl. 1021.93. J022.93) . ~ --;:J -... " ~-6S establishment and maintenance of "balanced neighborhoods" and subareas, characterized by a planned diversity in building sites, density, housing and land use. The project will provide for a revitalization of the site and serve as an opportunity for Chula Vista residents to purchase housing, while also obtaining a small business opportunity. Therefore, the proposed project does not disadvantage long-term environmental goals. 3. Does the project have possihle effects which are individually limited but cumulatively considerable? As used in the subsection, "cumulatively considerable" means that the incremental effects of an individual project are considerable when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects? The proposed project will generate approximately 1816 ADT, approximately 1056 ADT over the previous land use. Potential additional traffic impacts are expected to be lessened by having a high percentage of employees living and working on the project site. The projectis not anticipated to significantly impact traffic on Broadway and with the implementation of a scheduled Capital Improvement Project (Fall, 1995), this segment of Broadway is expected to operate at a Level-of-Service 'c' or better. The proposed rezone to allow for residential units as a component of the mixed use project will generate school impacts which are considered to be significant and require full mitigation. In addition, noise levels are expected to impact future residents of the units. These impacts are to be mitigated as outlined in said document (please refer to Section E). The applicant's compliance with the mitigation measUres as outlined in this Mitigated Negative Declaration will ensure that project impacts are less than significant. Therefore, all impacts, both individual and cumulative have been found to be less than significant. 4. Will the enviroumental effects of a project will cause a substantial adverse effects on human beings, either directly or indirectly? The proposed project is in compliance with City Growth Management threshold standards for fire, police, and other City services. Therefore, the proposed mixed- use project will not create substantial adverse impacts to human beings, either directly or indirectly. G. Consultation 1. Individuals and Organizations / City of Chula Vista: Susan Vandrew, Planning Barbara Reid, Planning Roger Daoust, Engineering Cliff Swanson, Engineering Hal Rosenberg, Engineering - oJ t'1-=- /-f-(,b ~ WPC F:\HOME\PLANNINGISTORED\l020.9~Ref. 1021.93.1022.93) Bob Sennett, Planning Ken Larsen, Director of Building & Housing Carol Gove, Fire Marshal Crime Prevention, MaryJane Diosdada Marty Schmidt, Parks & Recreation Dept. Ann Moore, Assistant City Attorney Ed Batchelder, Planning Chula Vista City School District: Kate Shurson Sweetwater Union High School District: Tom Silva Applicant: Josef & Lenore Citron 2. Documents Chula Vista General Plan (1989) and EIR (1989) Title 19, Chula Vista Municipal Code Acoustical Study, Hans Giroux, 3/14/95 Southwest Redevelopment Plan, Dec. 1990 Ordinance 2295, 2/7/89 Uniform Building Code, 1991 3. Initial Studv This environmental determination is based on the attached Initial Study, any comments received on the Initial Study and any comments received during the public review period for this Negative Declaration. The repon reflects the independent judgement of the City of Chula Vista. Further information regarding the environmental review of this project is available from the Chula Vista Planning Department, 276 Fourth Avenue, Chula Vista, CA 91910. f2L~ ENVl~ENTAL REVIEW COORDINATOR q" 1 WPC F,IHOMEIPLANNING\S1ORED\I020.9XRef. 1021.93.1022.93). - 4/3 ~ 1'-07 Case No.IS-95-03 ENVIRONMENTAL CHECKLIST FORM 1. Name of Proponent: Citron Realty & Investment Corp., Josef & Lenore Citron 2. Lead Agency Name and Address: City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 3. Address and Pbone Number of Proponent: 5000 Coronado Bay Rd., Coronado 9211S, 424-4474 4. Name of Proposal: Broadway Business Homes Village S. Date of Cbecklist: May 12, 1995 Jr~ '~-0f L LAND USE AND PLANNING. Would the proposal: a) Conflict with general plan designation or zoning? b) Conflict with applicable environmental plans or policies adopted by agencies with jurisdiction over the project? c) Affect agricultural resources or operations (e.g., impacts to soils or farmlands, or impacts from incompatible land uses)? d) Disrupt or divide the physical arrangement of an established community (including a low- income or minority community)? Comments: The proposed mixed-use project is proposed on five parcels which are currently designated on the General Plan land use diagram as Commercial Retail and zoned CT. The project proposes a zone change to CCP, which would be compatible with Commercial Retail land use designation. Approval of a zone change will permit the proposed use, subject to approval of a Conditional Use Permit (per Chapter 19.36, Section .030, Zoning Ordinance) and approval of a Precise Plan. a) Cumulatively exceed official regional or local population projections? b) Induce substantial growth in an area either directly or indirectly (e.g., through projects in an undeveloped area or extension of major infrastructure)? c) Displace existing housing, especially affordable housing? Comments: The proposed mixed-use project will provide for commercial and residential use on a site currently vacant, which was previously a Fuller Ford car dealership. The intent of the proposed project is to enhance all adjacent business properties and the project will provide an opportunity for affordable housing and a small business within the same unit. The proposed project will not induce substantial growth, but rather will redevelop a vacant area located within the Southwest Redevelopment Project area. D. POPULATION AND HOUSING. m. GEOPHYSICAL Would the proposal result in or expose people to potential impacts involving: a) Unstable earth conditions or changes in geologic substructures? b) Disruptions, displacements, compaction or overcovering of the soil? - (, 6 PotflltiaU)' -..... "pod o o o o o o o o o - - Pote.ati"ly Spl.rl(.&llt v..... Midpled o o o o o o o o o ~-b9 Leu.~. Splnc:..t I-pod 181 o o o o I8l o o o N. "plel o I8l 181 I8l 181 o 181 181 181 Page 2 wPC F:IJiOMF.PLANNtNG\STORED\1111.94 PM_tlaUy PM_daD)' 5iplrlc..t ..-.... __, U.... &lpIr-.t N. 1.,.et Mldpted lapod I_- C) Change in topography or ground surface relief 0 0 0 18I features? d) The destruction, covering or modification of 0 0 0 181 any unique geologic or physical features? e) Any increase in wind or water erosion of seils, 0 0 0 18I either on or off the site? f) Changes in deposition or erosion of beach 0 0 0 18I sands, or changes in siltation, deposition or erosion which may modify the channel of a river or stream or the bed of the ocean or any bay inlet or lake? g) Exposure of people or property to geologic 0 0 0 181 hazards such as earthquakes, landslides, mud slides, ground failure, or similar hazards? Comments: The project will not require covering or modification of any unique or physical features. The applicant will be required to submit a soils study for building construction prior to issuance of a grading andlor building permit to ensure that impacts are at a level below significant. IV. WATER. Would the proposal result in: a) Changes in absorption rates, drainage patterns, 0 0 0 18I or the rate and amount of surface runoff? b) Exposure of people or property to water related 0 0 0 181 hazards such as flooding or tidal waves? c) Discharge into surface waters or other alteration 0 0 0 18I of surface water quality (e.g., temperature, dissolved oxygen or turbidity)? d) Changes in the amount of surface water in any 0 0 0 18I water body? e) Changes in currents, or the course of direction 0 0 0 18I of water movements, in either marine or fresh waters? f) Change in the quantity of ground waters, either 0 0 0 18I through direct additions or withdrawals, or through interception of an aquifer by cuts or excavations? g) Altered direction or rate of flow of 0 0 0 18I groundwater? h) Impacts to groundwater quality? 0 0 0 181 i) Alterations to the course or flow of flood 0 0 0 18I waters? j) Substantial reduction in the amount of water 0 0 18I 0 otherwise available for public water supplies? 7'--?2J - < .( Gr--~ . WPC F:\HOME\PLANNlNGISTORED\171U4 - ~ ~ ht_tially SpJrKPI "pod P.c_tWly &Ipll"'_l v..... M1""", ..... .... SplrKUI "pod No '-pod Comments: If fire sprinkler systems are provided to the units, the City of Chula Vista Fire Department has indicated that fire flow can be reduced to 3750 GPM. The Sweetwater Authority has indicated that this flow can be met if the developer installs 600 L.F. of 12-inch main in Broadway, from "K" 5t. to the mid-point of the proposed development. This is the section of Broadway that is currently being reconstructed by the City of Chula Vista. In addition, any required water services. will probably result in the excavation of the newly constructed street. The Authority request that information regarding domestic, irrigation and fire sprinkler water demands that would expedite these installations prior to the street reconstruction. Project compliance with the requirements of the Authority will ensure that impacts are less than significant. V. AIR QUALITY. Would the proposal: a) Violate any air quality standard or contribute to 0 0 1m 0 an existing or projected air quality violation? b) Expose sensitive receptors to pollutants? 0 0 ~ 0 c) Alter air movement, moisture, or temperature, 0 0 0 1m or cause any change in climate, either locally or regionally? d) Create objectionable odors? 0 0 0 1m e) Create a substantial increase in stationary or 0 0 0 1m non-stationary sources of air emissions or the deterioration of ambient air quality? Comments: The project does not require an APCD permit and projected increase in traffic volumes on Broadway are small such that air quality will not be significantly impacted by the proposed project. VI. TRANSPORTATION/CIRCULATION. Would the proposal result in: a) Increased vehicle trips or traffic congestion? o b) Hazards to safety from design features (e.g., sharp curves or dangerous intersections) or incompatible uses (e.g., farm equipment)? c) Inadequate emergency access or access to nearby uses? d) Insufficient parking capacity on-site or off-site? o o o e) Hazards or barriers for pedestrians or bicyclists? o f) Conflicts with adopted policies supporting alternative transportation (e.g. bus turnouts, bicycle racks)? g) Rail, waterborne or air traffic impacts? o o .'1~ . o ~ o o o 1m o 1m o o o 1m o 1m o o 1m o o 1m o ~-7/ r-c:> I WPC f:\HOMFIPlANNtNG\STORED\1711.94 h) A "large project" under the Congestion Management Program? (An equivalent of 2400 or more average daily vehicle trips or 200 or more peak-hour vehicle trips.) Comments: The project will generate 1816 ADT, which is 1056 over the existing use. The increase in traffic volwnes is small. The segment of Broadway which fronts the proposed project currently operates below Level-of-service (LOS) "CO, however C.I.P. project ST-130, "Street Reconstruction- Broadway, 1 to I., will improve the LOS to "CO or above. Completion of ST-130 is anticipated in the Fall of 1995. Potc.dalIy P""udall,. Sl.pl.r~c '-.... SplRa._ v.... IiiipIrac...' I.,.c:. Ml....... .,.ct 0 0 0 N. ....d 181 Nearby resident's have raised concern about parking overflow to the their streets. There are 82 commercial parking spaces and 72 residential spaces and 111 commercial and 72 residential spaces are required. The justification for the parking space deficiency is founded in the urban character and uniqueness of the proposed mixed-use project and will be addressed in the project precise plan or a variance. VII. BIOLOGICAL RESOURCES. Would the proposal result in impacts to: a) Endangered, sensitive species, species of 0 0 0 181 concern or species that are candidates for listing? b) Locally designated species (e.g., heritage trees)? 0 0 0 181 c) Locally designated natural communities (e.g, 0 0 0 181 oak forest, coastal habitat, etc.)? d) Wetland habitat (e.g., marsh, riparian and vernal 0 0 0 181 pool)? e) Wildlife dispersal or migration corridors? 0 0 0 181 f) Affect regional habitat preservation planning 0 0 0 181 efforts? Comments: The proposed project area is an older urbanized area of the City on a previously developed site. The proposed project will not impact sensitive species or habitat in the area. VIIL ENERGY AND MINERAL RESOURCES. Would the proposal: a) Conflict with adopted energy conservation 0 0 0 181 plans? b) Use non-renewable resources in a wasteful and 0 0 0 181 inefficient manner? c) If the site is designated for mineral resource 0 0 0 181 protection, will this project impact this protection? ~ ~-? J- Dil8' r WPC F:IJiOME\PLANNING'ST0RED\1718.94 P..:_tiaUy &p1rlUat "pod Poc_tl.aUy 5lplfic.ult v..... ........ No ..""" ......... -..... "pod Comments: The proposed mixed-use project is not designated for mineral resources protection and City standards. Current city recycling programs for the residential and commercial sectors of the City will provide the opportunity for the mixed-use project to use resources in a reusable fashions, thus preventing the use of resources in a wasteful manner. As the project is a mixed-use project, the commercial use will have the opportunity to be involved in commercial programs, while the residential component can utilize programs such as curb side recycling pick-up. d) Exposure of people to existing sources of potential health hazards? e) Increased fire hazard in areas with flammable brush, grass, or trees? Comments: The proposed mixed-use project is intended to provide the opportunity to purchase a home and a business in one. The types of tenants expected in the commercial use component of the site are travel agencies, CPA's, retail shops, etc. These types of tenants are not expected to expose . people to health hazards or create a risk of accidental explosion. The site is listed on the County of San Diego County Hazardous Materials Division Environmental Assessment listing as case closed. This indicates that no further action, by the County, will occur at this time. IX. HAZARDS. Would the proposal involve: a) A risk of accidental explosion or release of hazardous substances (including, but not limited to: petroleum products, pesticides, chemicals or radiation)? b) Possible interference with an emergency response plan or emergency evacuation plan? c) The creation of any health hazard or potential health hazard? X. NOISE. Would the proposal result in: a) Increases in existing noise levels? b) Exposure of people to severe noise levels? --~-.. WPC F:\HOME\PLANNINCi'STORED\17J8.94 o o o 181 o o o 181 o o o 181 o o o 181 o o o 181 o o o 181 o 181 o o if - 73 P 1 ~ PMaociaUy IiipirKUt "pod Pot".tWly liiplfica.t v..... Mldpled .......... &iplrKallt I_pod N. "pod Comments: A acoustical study from Giroux & Associates analyzed two noise concerns on site: exposure of noise from the proposed project to single-family residences to the west and excessive on- site residential exposure to vehicular noise from Broadway traffic. Tasks that were perfonned to evaluate changes in the noise environment due to project implementation included: 1. Site familiarization and obtaining plans and other input data 2. On-site noise measurements 3. Measurement of parking lot activity noise at a similar mixed use development in Orange COIDlty 4. Evaluation of noise impact potential and identification of and recommended mitigation. The findings and recommendations of the study were the following: 1. A rear property wall is not necessary for noise protection. It is anticipated, however, that the existing rear wall, with some cosmetic improvement, will be retained. Maintain a minimum wall height of 5 feet above project grade is recommend. 2. A mechanical ventilation system which will comply with UBC Sect 1205 (c) is required as a standard features on all units 3. East facing windows in the four end units that face Broadway are recommended to be rated at STC=25 or higher. This rating is typically achieved by use of a thicker glass or by a dual pained sliding window. XI. PUBLIC SERVICES. Would the proposal have an effect upon, or result in a need for new or altered government services in any of the following areas: a) Fire protection? 0 0 0 ~ b) Police protection? 0 0 0 ~ c) Schools? 0 ~ 0 0 d) Maintenance of public facilities, including 0 0 0 ~ roads? e) Other governmental services? 0 0 0 ~ Silo. .= ~-/f WPC F:'lHOME\PLANNJNG\STORED\1711.94 ... - hteoltiaUy Siplrtca.1 1.- J'.IflIdaJfy SpiRe..1 U..... Mldpled '- .... .....""'.. .....t No ..- Comments: The fire department will require fire protection measures as outlined in the threshold section of this checklist. The police department has indicated that the project could not significantly impact police services or calls for services. School mitigation will be required of the applicant prior to issuance of a building permit (please refer to Section E of the Mitigated Negative Declaration). Project impacts to drainage and roads are not an issue, as the City drainage and street improvements, scheduled for Fall of 1995, from 1 to L on Broadway, will mitigate any possible impacts. No other governmental services will be impacted by the proposed project. XII. Thresholds. Will the proposal adversely impact the City's Threshold Standards? o o o 181 As described below, the proposed project does not adversely impact any of the seen Threshold Standards. a) FirelEMS The Threshold Standards requires that fire and medical units must be able to resppnd to calls within 7 minutes or less in 85% of the cases and within 5 minutes or less in 75% of the cases. The City of Chula Vista has indicated that this threshold standard will be met, since the nearest fire station is 2 miles away and would be associated with a 4 minute response time. The proposed project will comply with this Threshold Standard. Comments: The fire department will require the following fire prevention measures: based on fire flow requirements, the project will be required to be fully sprinkJered; fire extinguishers required- 2A IOBC; a fire alann system is required (centrally monitored), standpipes required and a 20' wide minimwn fire access is required. b) Police The Threshold Standards require that police units must respond to 84% of Priority 1 calls within 7 minutes or less and maintain an average response time to all Priority I calls of 4.5 minutes or less. Police units must respond to 62.10% of Priority 2 calls within 7 minutes or less and maintain an average response time to all Priority 2 calls of 7 minutes or less. The proposed project will comply with this Threshold Standard. Comments: The proposed project will not significantly impact police services or calls for service. The police crime prevention unit has requested that the applicant obtain a crime prevention review from the police department. c) Traffic The Threshold Standards require that all intersections must operate at a Level of Service (LOS) "C" or better, with the exception that Level of Service (LOS) "D" may occur during the peak two hours of the day at signalized intersections. Intersections west of I-80S are not to operate at a LOS below their 1987 LOS. No intersection may reach LOS "E" or "F" during the average weekday peak hour. IntCrsections of arterials with freeway ramps are exempted from this Standard. The proposed project will comply with this Threshold Standard. Comments: The project segment of Broadway currently operates below Level-of-Service (LOS) "C." However, completion of City of Chula Vista C.1.P. project ST-130, "Street reconstruction-Broadway, I to L", will improve the LOS to "C" or above. Completion of C.1.P. project ST-130 is anticipated in the Fall of 1995. -r:! -: ~-?-5 wPC F:\HOME\PLANNINO\STORED\1118,~ ~ Potealially &pJ1iu.c l_pllCc r.....dally Sipif"_t . v..... Mldlatfll ~tb. Siplr-.t I_pact N. Ia_ d) ParkslRecreation The 1breshold Standard for Parks and Recreation is 3 acres/I,OOO population. The proposed project will not comply with this Threshold Standard. Comments: Park Acquisition and Development (PAD) Fees will be required to be paid as per the current park land dedication ordinance fee schedule. This will ensure that impacts to Park & Recreation are less than significant. e) Drainage The Threshold Standards require that storm water flows and volumes not exceed City Engineering Standards. Individual projects will provide necessary improvements consistent with the Drainage Master Plan(s) and City Engineering Standards. The proposed project will comply with this Threshold Standard. Comments: The project site is in a SOO flood plain, however, no special building measures with be required of the applicant. On-site drainage facilities consist of surface flow to Broadway, also a 30" RCP which conveys upstream runoff through the site to downstream drainage facilities. The 30" RCP flows from east to west. The site to downstream drainage facilities. The 30" RCP flows from east to west. The facilities are adequate to service the project, however, City of Chula Vista, CIP project ST-130, "Street Reconstruction-Broadway, "1 to L" will abandon the 30" RCP and will reroute upstream flows northward in Broadway in order to relieve flooding problems to the west of the project site and the 30" RCP. Off-site drainage facilities consist of a 33" RCP in Broadway which flows to the north. Also, a 30" RCP downstream and west of the 30" RCP described above. These facilities are adequate to serve the project, however the aforementioned C.I.P. project ST-130 will re-route flows from sources upstream of the project site that currently flow through the site via a 30" RCP to downstream drainage facilities located immediately west of the project site. This rerouting of flows will relieve flooding. problems further west of and downstream from the project site. f) Sewer The 1breshold Standards require that sewage flows and volumes not exceed City Engineering Standards. Individual projects will provide necessary improvements consistent with Sewer Master Plan(s) and City Engineering Standards. The proposed project will comply with this 1breshold Standard. Comments: The existing sewer lines consist of a 8" VCP in Broadway that begins at the northern end of the proposed project and flows northward. Also, an 8" VCP which starts near the westerly property line and which flows westward. --c -4 ~-7b WPC F:\HOME\PLANNING\STORED\1711.94 .~ r f'Meatbll)' SplrlCll.1 I.,.cc Potndall)' Slc-JRc"'l VoI_ Mldpled ......... IiIpIrlC...1 ...." N. ..- g) Water The Threshold Standards require that adequate storage, treatment, and transmission facilities are constructed concurrently with planned growth and that water quality standards are not jeopardized during growth and construction. The proposed project will comply with this Threshold Standard. Applicants may also. be required to participate in whatever water conservation or fee off- set program the City of Chula Vista has in effect at the time of building permit issuance. Comments: An NPDES permit is not required for the proposed project and water quality will not be jeopardized. The Sweetwater Authority has indicated that if a fire sprinkler system is added to this development (note that required by the Fire Department), the required fITe flow can be reduced from 7500 GPM to 3750 GPM. This flow can be met if the developer installs 600 L.F. of 12-inch main in Broadway, from "K" St to the mid-point of the proposed development This is in a section of Broadway that is currently being reconstructed by the City of Chula Vista. In addition, any required water services will probably result in the excavation of the newly constructed street. The applicant will also be required to provide information regarding domestic. irrigation and fITe sprinkler water demands that would expedite these installations prior to the street reconstruction. xm. UTILITIES AND SERVICE SYSTEMS. Would the proposal result in a need for new systems, or substantial alterations to the follOwing utilities: a) Power or natural gas? 0 0 0 181 b) Communications systems? 0 0 0 181 c) Local or regional water treatment or distribution 0 0 0 181 facilities? d) Sewer or septic tanks? 0 0 0 181 e) Storm water drainage? 0 0 0 181 1) Solid waste disposal? 0 0 0 181 Comments: The proposed project will not require new systems for gas, communication systems, water treatment, sewer tanks, storm water drainage or solid waste disposal. However. the project will be required to install 600 L.F. of 12-inch main in Broadway, from "K" SI. to the mid-point of the proposed development for water to be available to the site. XIV. AESTHETICS. Would the proposal: I a) Obstruct any scenic vista or view open to the public or will the proposal result in the creation of an aesthetically offensive site open to public view? o o o 181 b) Cause the destruction or modification of a scenic route? o o o 181 -.~-- -'1-// WPC F:\HOME\PLANNINGISTORED\17IB,94 r~ Pote.d.rJy r.w.dutr -_. '- .... SiplrKQI v..... --. N. I.pacl MiIIpled ...... ...... c) Have a demonstrable negative aesthetic effect? 0 0 0 181 d) Create added light or glare sources that could 0 0 0 181 increase the level of sky glow in an area or cause this project to fail to comply with Section 19.66.100 of the Chula Vista Municipal Code, Title 19? e) Produce an additional amount of spill light? 0 0 0 181 Comments: The project will provide for a revitalization of the site and project compliance with City design and landscape standards will ensure that the site is aesthetically pleasing from the roadway. XV. CULTURAL RESOURCES. Would the proposal: a) Will the proposal result in the alteration of or the destruction or a prehistoric or historic archaeological site? b) Will the proposal result in adverse physical or aesthetic effects to a prehistoric or historic building. structure or object? c) Does the proposal have the potential to cause a physical change which would affect unique ethnic cultural values? o o o o o I!lI o o 181 o o 181 d) Will the proposal restrict existing religious or 0 0 0 181 sacred uses within the potential impact area? e) Is the area identified on the City' s General Plan 0 0 0 181 EIR as an area of high potential for archeological resources? Comments: As the project site is located within the Southwest Redevelopment area, there are no impacts to cultural resources. XVL PALEONTOWGICAL RESOURCES. Will the 0 0 0 181 proposal result in the alteration of or the destrui:tion of poleontological resources? Comments: As the project site is located within the Southwest Redevelopment are, there are no impact to paleontological resources. xvn. RECREATION. Would the proposal: " a) Increase the demand for neighborhood or 0 regional parks or other recreational facilities? b) Affect existing recreational opportunities? 0 c) Interfere with recreation parks & recreation 0 plans or programs? 4. -- . 0 181 0 0 0 181 0 0 181 ~- 71' p ... .~._...- WPC F:\HOMFIPLANNJNG'STORED\1711.94 Poe_d.Uy Qpffiu.C "pod Poe_tlaUy Splroeaat U..... >II....... .... .... ""'lkd. "pod N. I.pod Comments: The project will not interfere with recreation parks and plans, however since the project proposes the addition of 36 unit with residential and commercial components, fees will be required to . be paid as per the current park land dedication ordinance fee schedule. This will ensure that impacts to Park & Recreation are less than significant. xvm. MANDATORY FINDINGS OF SIGNIFICANCE: See NegaJive Declaration for mandatory findings of significance. If an EIR is needed. this section should be completed. a) Does the project have the potential to degrade 0 0 0 181 the quality of the environment, substantially reduce the habitat of a fish or wildlife species, cause a fish or wildlife population to drop below self-sustaining levels, threaten to eliminate a plant or animal community, reduce the number or restrict the range of a me or endangered plant or animal or eliminate important examples of the major periods or California history or prehistory? Comments: Please refer to Section E of the Negative Declaration. b) Does the project have the potential to achieve 0 0 0 181 short-tenn, to the disadvantage of long-tenn, environmental goals? Comments: Please refer to Section E of the Negative Declaration. c) Does the project have impacts that are 0 0 0 181 individually limited, but cumulatively considerable? ("Cumulatively considerable" means that the incremental effects of a project are considerable when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects.) Comments: Please refer to Section E of the Negative Declaration. d) Does the project have environmental effect 0 0 0 181 which will cause substantial adverse effects on human beings, either directly or indirectly? Comments: Please refer to Section E of the Negative Declaration. . ~s - rj-?? WPC F:\HOME\PLANNIN(iISJ'l)RED\17J8.94 ENVIRONMENTAL FACTORS POTENTIALLY AFFECTED: The environmental factors checked below would be potentially affected by this project, involving at least one impact that is a "Potentially Significant Impact" or "Potentially Significant Unless Mitigated," as indicated by the checklist on the following pages. . Land Use and Planning o Population and Housing o Geophysical o Water o Air Quality DETERMINATION: On the basis of this initial evaluation: o Transportation/Circulation o Biological Resources o Energy and MineraI Resources o Hazards . Noise o Mandatory Findings of Significance . Public Services o Utilities and Service Systems o Aesthetics o CulturaJ Resources o Recreation I find that the proposed project COULD NOT have a significant effect on the environment, and 0 a NEGATIVE DECLARATION will be prepared. I find that although the proposed project could have a significant effect on the environment, . there will not be a significant effect in this case because the mitigation measures described on an anached sheet have been added to the project. A MITIGATED NEGATIVE DECLARATION will be prepared. I find that the proposed project MAY have a significant effect on the environment, and an 0 ENVIRONMENTAL IMPACT REPORT is required. I find that the proposed project MAY have a significant effect(s) on the environment, but at least 0 one effect: I) has been adequately analyzed in an earlier document pursuant to applicable legal standards, and 2) has been addressed by mitigation measures based on the earlier analysis as described on attached sheets, if the effect is a "potentially significant impacts' or 'potentially significant unless mitigated." An ENVIRONMENTAL IMPACT REPORT is required, but it must analyze only the effects that remain to be addressed. ~J1.;/75 Date ' 1"': -.... - - ~-j'z) WPC F:\HOME\PLANNlNG\STORED\1718.~ ~ 0 PLANNING DEPARTMENT APPENDIX m CITY DATA SHEET I. Current Zoninl! on site: CT North CT South CT East CT West RI Does the project conform to the current zoning? The aDDroval of a rezone to CCP will allow for Droiect conformance to the current zoning. n. General Plan land use designation on site: Commercial Retail North Commercial Retail South Commercial Retail East Commercial Retail West Low-Medium Residential Is the project compatible with the General Plan Land Use Diagram? Yes. Is the project area designated for conservation or open space or adjacent to lip area so designated? No. Is the project located adjacent to any scenic routes? No. (If yes, describe the design techniques being used to protect or enhance the scenic quality of the route). No. m. Schools If the proposed project is residential, please complete the following: Elementary School Mueller Students Units Generating Generated Caoacitv Enrollment ProDOsed Factors From Proiect 619 551. 36 .30 11 Junior High Chula Vista 1070 1430 36 .19 7 Jr. High Senior High chula Vista 1356 1836 36 .10 4 High School .-in session, 130 students are out (year round school) IV. Remarks: Proiect imDacts to schools are to be fullv mitigated as outlined in the Mitigated Negative Declaration. S //CJ /95 Date/ / -~ <::f ........ /-f-c?/ l..o~ ;'\...........,.\ "" n..J-,'-',-, P.02 ~ r\~ Environmmtal ConallltA"u May 15, 1995 citron Realty' Development COrp. c/o COronado Bay Hotel Venture Attn: Ms. Lenore S. Citron: GP /owner 4000 COronado Bay Road COronado, California ~2118 Ite: Businesshome Villaqe Acoustical study Dear Ks. Ci tram We have conducted an acoustical study for the former Puller Ford aite at 760 Broadway in the city of Chula Vista. Ms. Susan Vanc1rew trom the Planning Departa.nt .taff had identified two noi.. concerns relative to development of the site as proposed. Thes. concerns were: 1. Exposure of the rear yards of existing residents on Riverlawn to excessive sit. activity noise, or, 2. Excessive on-site resieSenUal exposure to vehicular noise from . Broadway traffic. Given the previouli use of the 8ite tor automotive' anc1 truck repair and a. body shop in cl08e proximity to ~ Riverlawn hoIles, the question of .ite suitability tor residential U8e is perhaps aore pertinent than limitec1 .ne~" sit. acces./e;re8s noise. TaSks that were pertoraed to evaluate chang.s 1n the noi.e environaent eSue to project lapl_entation incluc1ec1: 1. lite familiarhation and obtaining plans and other input data 2. on-si t:e noise .easureaent8 3. lIeasurellent of parking lot activity noise at a eiailar IIixed uae development in orange County --: S~-.. ~-cfv /1144 Sky /'ark Otok. SuItt 1/0. /nizJe. ~ 92714 . PboM (114) 1S1.u09 . Fa (1/4) ISIoMI2 MAY-15-1995 17:00 G J ROUX & ASSOC. p.e3 -2- 4. Evaluation ot noise i.pact potential and identification ot any recommended aitiqation Tbe following discus.ion summarizes the results of the efforts in each task. Project Description !l'he prelilll1nary .ite plan for 36 units envisioned two .pada- of 18 live/work businesses and residences separated by a ~n parking area. In the revised site plan, dated 05/08/95 and included in this report, only a 8JIIall .eparation between the northern and 80uthern building exists and two separate parkinq areas have been created that are shielded from Riverlawn residence view. In the current s1 te plan, the intervening 3-story atructure. between Riverlawn residence. anc1 the parking areas will precluc1e any auc11b1l1ty of site visitor. vehicular activity. Use of the perimeter roadway by site resic1enu and by small delivery vehicles .uch as packaqe delivery .ervioes will be the potential Bource of impact. Through the lIOre contiguous building aass Bcr_ning out Broadway traffic noise, any small impact from site-relatec1 vehioles may be offset by equal or qreater attenuation of existing noise. Proposed uses for the site are a mixed use conoept with owner- occupiec1 businesses on part of the qround floor of each townhouse with parking in the rear of the ground floor and ~wo floors of living space above. Business uses are expected to be Bmall specialty retail, prOfessional or service-oriented offices and specialty restaurants such as qourmet coftee, deli Bandwiohes, yoqurt, etc. Ko audible noi.e qeneration trOll business use is expected at the rear of any unit in proxi.ity to adjacent residence.. oa-si1:8 .oi_ ....~ Noia. m..sur_ents were _de at three locations on the project site. TWo Bites were alon9 the rear separation vall between the formar dealership and the adjacent residences (one near the foner body shop on the southern one-half of the .i1:8, one near the aller t:ruclt repair building on the northern one-half). one IlOnit:or vas located '0 feet froJl the Broac1way centerline in a former auto display area with an unobstructec1 view of Broadway. Results of these lIleasurements _de on February 23, 19'5 near 1 p... are summarized as follows: ~~~ -= ~-cP 3 . MAY-1S-1995 17:01 G I RClJX & ASSOC. P.04 -3- Kolae Level (dB[A]) Y.Wl Y WI.V' r--in Front Display Area 65.3 75 55 Body Shop Area 59.7 66 !IS Truck aepair Area 58.9 155 52 These readings were 115-Jdnute enerq)' equivalent averag_. (LZQ) and I-second maxbta and minima (L1IIax, L1IIin). City of Chula Vista standards are expressed in terms of a weiqhted 24-hour standard called the CcmtIIIunity Hoise Equivalent Level (CHEL). our monitorinq experience in a nWllber of Chula Vista noise monitoring programs has been that mid-day LEQs and 24-hour CHELs are often very similar. For example, a comparison of CNEL and the mid-day noise level at thre. sites around Cbula Vista are as follows: l.BQ (Kooo-2 pal CIIBL Site 1 64.3 dB 62.7 dB 52.2 dB 63.6 dB Site 2 64.9 dB site 3 51.9 dB The difference betw.en OlE!. and Ilid-day LEQ is often near Itero, and qenerally fairly s.all. The baseline readings above are therefore a reasonable repre.entation of existinq noise levels relative to the city's exterior .tandard of 65 dB(A) CNEL. The above comparison suggests that aid-day LEQ noi.e level. are trom.O-2 dB lower than daily CJIl!:LB. At the locations .easured, ti:l.e ~orller front display area with . CHEL of 65-67 dB(A) thus currently sliqhtly exceeds the City standard, wbile the foraer rear repair areas with CHELa of 59-62 dB(A) are _11 within the City'. quideline.. Residence. on Riverlawn bacJtlnq up to ti1e .ite protected by the existing waU clearly have a larve 1IIlr91n of safety between the .tandard and their curre~t noise exposure. ,J~ . rf - eft- . f1'j'1'-15-1995 17: III G I RDlJX & ASSOC. P.es -,- Parting Lot Activity .olse Koise J.evel.s at Ule .12g. of a parking lot serving a 1II1xec1 use development in Huntington Beach were lionitored as a prototype for the off-site levels that could be expectec1 for the f01'lller site plan that bad a direct line of .ight from the parking area to Ule rear yards of Riverlawn bOllles. i'he Huntington Beach facility has qround floor shops and offices with upstairs residences in an .0112 World" abaosphere. Buainesses inolude restaurants, a deli, retail shop. eespecially ethnic wares), 'travel agencies, CPAs, a tanning 8alon, etc. 7:enant and/or owner parking is in a separate garage area, but Otherwise the des19D concept is dmilar to the proposed facility in Chula Vista. A'sketch of the Huntington Beach site plan is attached. Hoiae aeasurements included a distant bUIll of fre.way traffic plus 80me arterial roadway contribution. .. ,-be.e 80urce. were sufficiently removed or shielded, however, such that parking lot ~urn-over tor shops and professional offi08s_s Ule primary noise contributor. one-bour lIIeasurements lit the edge of the parking lot trom 12:30 _ 1:30 p.m. when there is an active lunch traffic were alii follows: LEQ - 59.7 dB LMAX - 81.0 dB L1ain - 51.5 dB Becaus. the traffic peaks c1udnl1 the day with little nocturnal acti vi ty, CNEL is likely .everal dB lower than aid-day LEQ. If the property line CHEL .ere 57 c1B(A) , and thi. noise level vere superimposed upon the 59-62 dB(A) CHEL currently experienced at the fenceline of the Riverlawn boaes, the COIIIbined level would be 61-63 dB(A) CNEL. i'he f01'lller plot plan with the parking area expo..d to view by the relllidences, even without any noise reduction credit tor a rear property _11, would not cause City of Chula Vista .tandards to be exceeded. With 'the rev18ed plot plan, the parking lot activity noise exposure ~ off-8ite residents 18. .oot point. Ita only i..ue would be a. to how auch on-site vehicular actiVity will be audible to project 8ite upper .tory resi4ents. , ~ - - .r- ~-t5 'MAY-15-1995 17:02 GIROUX & ASSOC. P.06 . -5- Acc..s Road .oise As a worst-case assumption, each unit was assumed to qenerate10 daily trips (rive outbound and five inbound) alonq the perimeter access. At 25 IIph, with lOt of traffic at niqht~ the traffic noise in the absence of any barrier is 50 dB(A) CNEL in the rear yards of the adjacent residences assWlling that the proposed hOlies arQ perfect reflectors. A level of 50 dB 1s not perceptible within an existing' backqround of around 60 dB. By creating- a acre contiquous 3-story barrier to screen out existing traffic noise troll Broadway, the noi.. reduction achieved by the project will far aore than compensate any 8JIIall noise incr8lllent created by resident and 1dnor delivery vehicle traffic on the ~ perimeter road. The above calculations are for no .eparation wall betwQen the project and existing' Riverlawn residences. Ko wall is needed to meet noise .tandards. A wall aay be del!lirablQ for privacy, security, aesthetics or other ~easons, but it i. not a necessary project component to _et noise standards. Because inclusion of a wall is not noise-driven, the heiqht is sOllewhat i-.terial. Any heiqht above 5 teet will reduce the perception at -.djacent bo_s of individual VehiCle. passing throuqh the rear -alley", but only creates an additionsl lIarqin of .afety relative to already aeetinq City of Chula Vista standards. on-Site Roi.e bposure Siting of residential uses on a commercial corridor does have posdble noise implications. Existinq _asured noise levels (estiuted trom short-term, daytillle readinqs) at 90 feet frOll the Broadway centerline are 65-67 dB(A) CNEL. Projected increases in traffic volume. on Broadway are small such that noi.e -qrowth" i. torecast to be only an additional 0.5 dB(A) CNEL. With the facade ot the closest project buildinqs 80mewhat closer than the eo-toot aeasurement distance, a maxiaum tuture exterior noise level of 69 dB(A) CHE!. is forecast for the unita close.t to Broadway. 'lbe sides of the closest buildinqs to Broadway vill exceed the City standard by 4 dB. Tbe front and back of the closest un,it will only be exposed to ene-half of the traffic. Limite in the fielC1 of view to 50' of the traffic flow will create a 66 dB(A) CNEL exposure at the corner of the nearest unit. Within the.width cf ene unit, nobe levels decrease by 1+ dB to create a sub-65 dB(A) CNEL at the exterior of all unit. except the four closest to Broadway. 'l'he 65 dB(A) CHEL contcur approximately bi..cts the clo.est unit. City standards for noise at any usable exterior recreational space is 65 dB(A) CNEL. state standards for inter.iors of aultiple family , -- ..:: Ar ,;f- cf h . MAY-15-1995 17:03 GIROUX & ASSOC. P.07 -6- units is 45 dB(A) CNEL. Exterior to interior noiBe attenuation with standard construction practice Is 20 dB as long a& windows are closed. All units except the four clo.est to Broadway will have exteriors of less than 65 dB(A) CNEL. '.l'heir decks and porche. will aeet City exterior standa%'l1& without any supplementary noille protection. Their interior levels will be below 45 dB(A) CNEL as long all residents can clOlle their windows to shut out the noise. ~e ability to close the window require. an auxiliary source of ventilation. 'this requir..ent 1. stated 1n the tJBC in Section 1205(c) which require. sufficient aechanioal ventilation to create two air changes per hour (ACPR). one-fifth of this air supply has to be fresh outside .ake-up air. A whole-house ~an in a central heatinq unit generally far exceeds this requirement If the system has a "Fan only" option. At the four end units abutting on Broadway, a SOIl_hat enhanced level of noiae control is required. Exterior exposure for the front balconies of these units ill 65 dB(A) CNEL. The rear deck 1& shielded by the protrusion of the aecond floor family room lIuch that the deck outside the kitchen door wIll also hpe a noille level within City of Chula Vista standards. No exterior noille mitigation 1. required. The frcnt balcony at 65 dB(A) CNEL ..y not be conducive to relaxing conversation at these units, but d08S not require any supplementary noise control. The interior of the four units closest to Broadway is thus the only poedble location where standard design practice may not be able to achieve a reduction trom 69 dB(A) CNEL on the facade to a 45 dB(A) CNEL in the interior. With planned windows facing Broadway, the noise leakaqe ~or a standard window ..y be slightly inadequate. . Ba.ed on preliminary rooll geOlletrics, we have run the Interior 1I0ise Analysi. (INA) .ode1. U.e of slightly upqraded windows (dual-paned IIliders or a thicker Cl18ss) with 8 Sound Transmission Class (STC) of 25 or higher will allow the interior standard of 45 dB(A) CNEL to be readily aet. 8uaary /Rec ---.ndations our f1ndinCls an as tollows: 1. A rear property vall 111 not DeoeslIBry for noise protection. xt 1s anticipated, however, that the exilltin,g rear wall, with SOlIe cosmetic illprov_ent, will be retained. Maintaining a ainimum vall heiqht of IS feet above project qrade is recOlmllended. ~ I,;. ~ rf-t7 MRY-15-1995 17:03 GIROUX & ASSOC. P.OS . -7- 2. A Ilech4nical ventilation system Which will comply with ODe section 120!S(c) 18 required as a standard t'ea~ure on all units. 3. East t'acing windows in the t'our end units that face Broadway are recOIIlDIenlSelS to be rated at STC - 25 or higher. 1'his rating' i8 typically achieved by use of . thicker 9la.s or by . dual- paned slilSing window. SincerelY, ~'o'~:J Y- Hans D. Giroux Senior Scientist Giroux , Associates HOG: a1 ../ cc: Ms. Susan Vandrew, city'ot Chula Vista ~ ~-?t MAY-15-1995 17:04 . GIROJX 8. ASSOC. P.e9 APPENDXX A. Project Site Plan (05/08/95) B. .01_ *,nitoring locaUon 8ketch for .iIlilar l1ve/VOrk a!xed use development ~J~:-.~~t9 MHY-15-1995 1'1: 04 GIROUX 8. ASSOC. p.le . . -i I -I ~ 1 I .J 1 ~ I 1- f r.r ~. I A. I ,. . ... I .. I AI I ... I AI . , I I I I H: . k , , . I I I I I- . , , .1 ~ -tj Ii . . ~ , ; ~.. . .......- :"-' ..... - : . .. .. .. il T ...... . I , I S ,.. L_.~ t t , if",:"r!";! i " I .. . r i - I '. * T.......... t iI '. i R ..... 'T"- .:t.-;- i i , I . , I I ~_ . I . :.....J-t .'! . !. ! ! " t -- -.-.----t----.---+--+.-,-,- . . . . .... = ';::1 '~I I , I J .1, -~-- . I . . I i i i . .:1..._+_ . :J-!~ ;10": "-- ~ ----. Ii , t ..---. . . : 'i"iI: ~ . .. :,: . 1i I ~= r.: , .-i " ".... _::r: ..... ... .~. ~:-n lJ]~ , ';', , I .:::!t ,-- o CL Q) +J .- (./) z CS r'. .' MA','-lS-l99S 17:0S GIROUX 8. RSSOC. Qilol 0 (J I) l~ a ~ c> Cl c:> . 0 0 G 0 4) 0 0 0 Cl . 0 0 p 0 . " :: is \I II ~ I. It :l ,. 1 - - ~ J.~ l~ ~~ ~\Ii ~ ~ ~~ ~~ & Ii: V)ct D ~ ': ~ c! ~ "" ; J )- III ., f:l a _ 0 III i~ O')~ !\. co ~~ J? ~ -D 0 0 0 0" 0 00-.0 <l 0""'0 Q 0 (iJ c:> '0 0 ~ fi) o OOtO~OOO ~~Q ~~~ ~ ~ - -i-~ 9/ ~. i tJ P.ll . TnTCIII P_11 ~ ~ ..;;,-t>u-::> Case No.I5..qS -03 INTERDEPARTMENTAL COMMENT SHEETS ENGINEERING DIVISION L Drainage A. Is th.e project site within a flood plain? YE~. If so, state which FEMA Floodway FJequency Boundary. ~ fTuklF-';'~.poJ ~''''''' 6e''''TU~c:.,.,.,;. I<. W~flJ T'I-k;.. ~-W'~ r::t...nn'bYJ4Y ~IJJJ'D4",V. B. What is the location and desaiption of existing on-site drainage facilities? Sullr;'~" J:( "..j it> '8IZ.o4-t:lW'A"I. A~. A ~., 1ZL:P WJ+tGH- CoAJ~YS UPS'71IU!::AM ~1=1=' 7"J.M~ J(;.ff THE. ~~ 1b ~~",""'.u .,.....,~ J:;A.J':'L""~C -ruE. ~. D'.6I ~ JI:::lIo....d -~':I TZaohEsr: C. Are they adequate to serve the project?)1!S5. Ho"~_.c,rY~ CH~ ...,crz i!::.I 1>. _A~ 'If not, please explain brieflYoN/A. ~-"q"~-=''''-'-''''''''''-----,<:Z::TE>t.'' w/.... WIlL. A&i""OOIJ ~ ~ff r&cP ArJ..IbIa~aL;,uT1!!. u~ . F, I I "'~ D. What is the location and description ~g off-site '" g: ~tifs'?i\1i. P.GP ...r 1 ~ ~~ ~y WHIG'" ~""" n::>THEUDI:nI. A~. A ~"IZGP bo.....N'Cft.'t.r....a... .4ub w#!.c.~~GP. I!:>F-rJIE. 3o~lZ.GP ~~CA'.~~ IAl '~A.oIr.B. .Af5D~. . E. Are they adequate to serve the project? YEs. Ho_1I'lU2. C,.,.." 61= '.....WI v,~... Co. '.'P. . If not, please explain briefly. ~-r S-r-/2o WIt.L. teE.-~~ e,~, ~ c,...,J~Ew< UP&,~ ~A_~ ~-nH!!..~^""'~ ~,..,,-,e: ~~ . ,,,. C",,,,e.,.,.,y &:.I~~I'VY:U ~ ~rn:: VIA- A 30" . I ~ 7ll z:;t)W",~ 'DM'~ "....::'L./T7E~ c.."'T!!: lMIlAE!OrA7f'-Y WesrCF"THe ~SrTE. ..,..,."S flE-/&vrfIlt;; t>F R.owS WIUo ~Eve: R.M:>,tl& . RlD8L.EMS ~.,.. ~9T' OF NJ~ ::b~~ . What roads provide primaty access to the project? DlIlIIY' ReM -ruE A>^"!i::r f{;rr'E . ~IL ?lt11 Transoortation A. B. What is the estimated number of one-way auto trips to be genetated by the project (per day)? JA I e., At1T(iD~ A'1'7'r' ~ve~ EJ(/<;;;r,;.u: (J~E). C. What are the Average Daily Traffic (AD.T.) volumes on the.primazy access roads before and after project completion? Street Name 'S1i!oA bWA Y Before ..;2\.~..o After . .:lA~ , Do any of these volumes exceed the City's Leve1-of.Service (1..0.8.) '''C'' design. ADT volume? If yes, please specify. YP-S. 71f/!: ~,..~ lJ': ~~ yo c.uPP#'i-torLY .. .. rn:.L'~ <t&Ze1-1V L.C.S~ G . ~cn:~ f'JI"o.&IfPu;"T'1cN ~ ~,T"Ybt= CIluLA v,~ . 1/ C.I:PO' ~^~ ~-/~ "~lfP'r 12,:/'~~oAl-R'~.rMIA'I 'X -n\ L w,c..c.- , af I( , ~...~ ,I-lf"/lll>VffI. /..~-oF- SEtilvIc.E on> .:: CJ/l..,l.fJ0v6. ~.,..,.>l Dt= C., .P. r-v~r ""T""- ~o It!; A""""/~,p.A~ /-.1 '"T'II~ ~u- ~ /qqa;-. . ~~D%l.93 (U.101I.ll3)(a.t.10209J) ~ -' I -- rf - 9 y ~ .D. \ Y5-60-:; Case No.:]:"S-qc:;-(')::, . . If the A.D.T. or LO.s. "e" design volume is unknown or not applicable. explain briefly. 1>10.. I Are the prinwy access roads adequate to serve the project? If not, please ~Iain briefly. N IA . , YFc';;./ u~llhMPL'-!"nf'.J..' OF G.,.".. Pleo:."TJ=/.:'r ST-I~. E. Would the project CW1te unacceptable Levels of SClVice (LOS) at inter-Ml9"S adjacent to orin the vicinity of the project. site? No. If so, identify: Location ~t.. . Cumulative LO.s. ^)-"" . Is the proposed project a "large project" under the Congestion Management Program? (An equivalent of 2400 or more average daily vehicle trips or 200 or more peak-hour vehicle trips). If yes, a Traffic hnpact Analysis (TIA) will be required. In this case the TIA will have to demonstrate that the project will not create an unmitigatable adverse impact, or that all related traffic impacts are not mitigated to a level of non-signiilCance. Yes )( No F. The following questions apply if a TraffIC Impact Analysis is not "required. G. Is traffic mitigation required to reduce traffic impacts that will result from implementation of the proposed project? Yes ')( No If yes, please describe. folIA. . H. Is the project consistent with the c:riterla established in the City's Transportation Phasing Plan, o' General Plan Traffic E1emmt, Ind all other peninatt traffic fl'I,"ies? Pkasc Jd'ercnce lilY other traffic impact studies for roadway ICgmeDts that may be imp~ed by the proposed project. YE.:;' . L 1. Is a traffIC study required? Is there any dedication required? 1./0. If so, please specify. ~/,A, . x Yes No q~93 f _ T wpe.~022.93 ~.ICl2I.93) (ad. 1020.93) --.kr-- - lS-(pq3 Case No. Ts..qe:;-t:>3 K. Is there any ~t widening required? ND. IJ.I/S 5~EJr.!:p R~bWJ..v WI/..L Be. If so, please specify. ~/.A . WIt;>8Jr-b ....s J'M1tr.-=- C.r .P. ~'n!r.~ sr-I~ . I .'~T'1'l!E~ PCr_(1!""'r'& V':'"J""'701J_J!.e.....L.,...~~\/ .,.. T'Z) L It . L. Are there any other street improvements required? YE:~. If so, please specify the general nature of the necesslll}' improvements. Tl~ I .L..,-,IJJIJ ~~ -nb"JCI..~.AY'::' A-~ A~~~ R'Y'-rJ.11=::. C::~ c;. "'IAl~~. , M. Will the project and related public improvements provide satisfactOl)' traffic sezvice for existing conditions and future bui1dotlt General Plan conditions? (please provide I ~f explanation). ~'~nJJ':_ VE.<. F"'TV~F 21111 hAil I ~ VEf$. m Soils A. B. C. Are there any anticipated adverse gWtechnical conditions on the project site? VloJl4I,., ...,a.,J If yes, specify these conditions~ r..r/A 'Is a Soils RepOJ1 necessary? YE"Eo 'F'l2.1"'R. "Tb-rJ.fE. t~,.JGE bF ':;fI1A"l>'''''' ~~~ . BU/U>/IJ& ~/T'5. IV. ,Land Form A. What is the average~lope of the site? .:l% B. What is the maxiJ:nu~slope of the site? ..:2~h. V. Noise Are there any traffic-re1ated noise levels impacting the site that are significant enough to justify that . noise analysis be required of the applicant? YEt ~C..".., ~I """'.lJceo;, ~E.. CI="M~rr(VE. ~. Prl:Ie.51'tJo ~AY fi'6 ~'T1Vt=c.y Vl Waste Generation H",u "7TAf"F1C. VDL.UMe;;.. . How much solid and liquid (sewer) waste will be genCllted by the J'lujlUK'Cf project per clay? ::w ~~~~~~~ (.W>.~ ~n.k). . '. What is the location and size of existing sewer lines 011 or d~ from the site? ~ II VG.1C" 'Al 'RbA"bI4IAY T'hAr Bet:,'N~ AT- -ruE ~ ~,." 1'51:= -rJ..f~ ~Po~~h . .. t:t/.4/GH ~ . ~~,-.,- .t\A1~ e:; -~ A.I_~,,,""IJ~. At,s,...., A4J I:t v~. AJ5412 -n.t.-e lAlr-~iP L'f 'PttDPF..e:rY LIJ~ A:Nr> kJU/GU Ct-WC WF..g-wAD,..,. Are they adequate to serve the proposed project? (If no, please explain) YE?::;. 1IJIC:F:~GIn'ClREI>.I022.93 (RoC. 1021.93) (ad: 1020.113) Cl.......--:. -.~- - ~-9~ r. ~ )$:-fc3, Will the applicant be required to file a Notice of Intent with the State Water Resources Control Board for coverage under an NPDES Stonnwater Permit?.J:J" , . If yes, specify which NPDES permit(s) and explain why an NPDES permit is required. ,,!M. . Will a Stann Water Pollution Prevention Plan (SWPPP) be required for che proposed project? Yes X No Additional comments IJ '" . , .;. VD. . Remarks Please identify and discuss any remaining potentialldverse impacts, mitigation measures, or other issues. , -f:)~ ~~-- 1/2-/f/ Date r/- 95 City En . WI'C:F:~on!l3 (R4.ID2193)(Ilct IlW.!l3) "J.. ~ ( Case No..:rS-9.5-o3 FIRE DEPARTMENT A. What is the distance to the ilearest fire station? ~ what is the File Department', estimated J:eaCtion time? c::l".,,,.LE~ - 4-"...:c. . B. Will the File Dq....b....at be able to provide an ldequate level of file prOtection for the proposed facility without III increase in equipment or pclSOMel? ) / ~ S . c. Remarks ~, Ol..- c.A./l.lc.77<I..v ~~ r f/ , . I" ~ /a./(.,.91- Dale ~ -~,~ ~~90 ~022.fJCU.IIl2"'Jl(lllf.I02OSJ) r r"" J { CHULA VISTA FIRE DEPARTMENT BUREAU OF FIRE PREVENTION PLAN CORRECTION SHEET Address 7t-l) ~~~ Plan File No.~;3 CheCkerp?~f Date P-/t-94 Type Constr. J/-J.-I Occupancy6';,,2/,es No. Stories .5 Bldg. Area 77,4n d; The following list does not necessarily include all errors and omissions. PROVIDE AND SHOW ON PLAN: /- hAt ~4z.. R~~,c.f...~r~: . ""lCnn. kf'D O"v 1/-# ~S/...cvC.TA> . #v/7Y 77. ~ tIJ I~ 'Z S70 l/rl. ~.//- d-5; ~ .1// .8 /,;J./ 7n 4J C- - ~ ;&- .{J , '7" d1 02- / ~. -t- s-. t. ~ 4. ';-9 r"" 4RO V"" 4~ ,., ~d ~n lil "tAJ ,uz. /,AJ;U bE ~(i /;u/J fi".<F N-k.' ",;s4-t.s '/i~ /?t~ s~_ c:T-~~0s +/A:u?, hAt ~CESS - H/"v/";~.- . kr . Mol'.;) ~N/~O ~H., ?v/L>F FPB-29 ~~~s 7'-97 Case No. /5-15-tl3 PARKS AND RECREATION DEPARTMENT A. Is project subject 10 Parks and Reaeation Threshold requirements? "'r,z:.'S, If not, please explain. . B. How many acres of parkland are -..'Y to serve the proposed project? C. Are Wsting neighborhood and community parks near the projea Jldequate to lelVe the population increase resuhing from this project? Neighborhood fJo Community Parks J>-o D. If not, are parkland dedications or other mitigation proposed as part of the project Idequate to serve the population increase? Neighborhood )'~ Community Parks "1~ E. To meet City requirements, will. aPPlicant be required to: Provide land? Pay a fee? )'Ir.'S- F, Remarks: F~s T-b ~(i:' ~~ /:ils.. ~ ~ c;.v.~'t.Ji ~: Lf-1Y.' ~\G&i1o.J c:Jf-A~~ "~ ~ p i2-t?~. . . . - t-1=, '"'~~ t;.~~'U- Date Parts and Recrution Director or Representative ~-- /f - 9~ WI\:#;~022.fJ Ilo<l. 11I11S3) (10(. 1_") ~ ROUTING FORM DATE: . August 22,1994 2'0: Ken Larson, Building .. Housing John Lippitt, Engineering (EIR only) Cliff SWanson, Engineering (EIR only) Hal Rosenberg, Engineering (EIR only) Roger Daoust, Engineering (IS/3, EIR/2) Richard RUdolf, Aut city Attorney (Draft Neg Dec .. EIR). Carol Gove, Fire Department Harty Schmidt, Parks .. Recreation Crime Prevention, Police Department (H.J. Diosdado) Community Development, Redev. Economic Dev. only CUrrent Planning Duane Bazzel, Advance Planning Bob Sennett, city Landscape Architect Bob Leiter, Planning Director Chula Vista Elementary..School District, Kate Shurson SWeetwater Union H.S; District, 2'om Silva (IS" EIR) Maureen Roeber, Lib,rary (Final EIR) LAFCO (IS/Draft EIR - If annexation is inVOlved) Hatin Hiller, Project 2'racking Log (route fOr11J only) Other .' FROM: . Joe Monaco Environmental Section SUBJEC'1': Application for Initial study (IS- 95-03/FA- 657 100 111 J Checkprint Draft EIR (20 days) (EIR- _IFB- /00 J Review of a Draft EIR (EIR- /FB-_/DP J Review of Environmental Review Record (FC- ERR- J Review of Draft .Neg Dee (IS- /FA- /00- J 2'he Project consists of: 36 attached residential units with conmercial space on the 1st floor. Location: 760 Broadway (Fuller Ford Auto Dealership site) " Please review the document and forward to me any comments you have by September 1. 1994 . . -~r- ~-91 ~ ~ /l-Uh~ S/II/9S"" -r~ ~.v.~'. ~~~ ~~.~I '. ~d- ~ ~~ n. ~ fr1 ~1/u:..U. 7v Comments: CHULA VISTA POLICE DEi. .~TMENT CRIME PREVENTION UNIT PLAN REVIEW RECOMMENDATIONS .! ~., , DA1E: 10 - l.( - q 1../ ~ fh.rmIJ. u ( C'Y\ VI r071. \I\'li~ th~f)~O-s ck cLo , Sc.PS , (forOO.~ ~~I,.flUS 1knu.... V&.P..fV)L I. i' . TO: VIA: FROM: PROJECT: ,J:S qc;--O ~ n The Crime Prevention Unit does not have any comments regardine this project at this time. - Information on the project, or within the plans, does not provide enough detail to permit crime prevention analysis. # Please forward the following information to the Crime Prevention Unit when available. ~ Elevations /<J Floor Plans ~ Landscape and Lighting Plans --2:;:? Site Development Plans Comments: Cl,ncl d2 I'v~tj~-r V{,: rh')(),1.0tfA~~ u / . cc: Brookover, SeA -- ~- - ~-llTO CP'lED Routina Form PI>/cpu 06.'13 . ~ I Case No. /5-95-03 LANDSCAPE PLANNING A. Does the project affect native plant conununities? If so, please identify which communities. Will the project rcquire native planting? (please desaibe) B. Please identify any important or highly visible hilltitks on CII' adjacent 10 the project. What landscaping conditions '(if any) will be rcquired for these hillsides? C. Of the total area to be developed, how much, and which areas are expected to be replanted and require supplemental watering? (please desaibe). E. Are there any ~er landscape rcquirements O};mitipti9Jl for Ihe project?7e-~........e ~f:Z~~~-~ r~ '~~-ey~ .' . c-L~e-d City Landscape Architect or Representative J7~ ~--/tJi WI'C:F~=93 ~.lll2U3)(Id.IO:lD.93) ft _ . 1 CHULA- VISTA ELEMENTARY SCHOOL DISTRICT 84 EAST"J" STREET. CHULA VISTA, CALIFORNIA 91910 . 619425-9600 EACH CHILD IS AN INDMDUAL OF GREAT WORTH aOAIlO OF EOUCATlON .A?Sa'H D. CIMotI<<lS, 1'Il.Il. SHARON GlES PATAO< A..MlO PAMElA B. 6UITH lIKE A.liPEmEIl aUPERINUHDENT UlIA&. 01.. 1'Il.Il. January 6, 1995 Ms. Susan Vandrew City of Chula Vista Environmental Section 276 Fourth Avenue Chula Vista, CA 91910 RE: 36 Attached Residential Units with Commercial Space on the 1st Floor IS-95-3/ FA-657/ DQ-111 Dear Ms. Vandrew: Thank you for providing inforination on the above-referenced project for our review and comment. This project is located in the Mueller School attendance area. This school is a five track year-round school, operating substantially above capacity. In order to accommodate children resulting from this project, the District requests that this project annex to Community Facilities District (CFD) NO.5. Attached is a copy of a previous response to IS-9~3 on September 1, 1994. If you have any questions, please contact my office. Sincerely, M~ Kate Shurson Director of Planning KS:dp cc: Tom Silva Josef A. Citron L:78Obw8y ,~~ ~ /-j - /1)"}/ BOARD OF EDUCATION JOSEPH D. CUIoNlNGS. PILD. LARRY CUNNHGHAM 6HAAON GlES PATRlCK A..AJOO GREGR.SANDoVAl. 8UPERlNTENDEKT LIlIA So' Gl, PILD. CHULA VISTA ELEMENTARY Sf'TfOOL DISTRICT ( . i 84 EAST "J" STREET' CHULA VISTA, CALIFORNIA. 91910 . 619425.9600 ~1 . ,,,J I ~.... ~ :'. \tV 1" I . :\ 'f' ~ j , ~ (' q_1 ~ EACH CHILD IS AN INDIVIDUAL OF GREAT WORm September 1, 1994 Mr. Joe Monaco Environmental Review Coordinator City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 Re: 15-95-03/ FA-657/ OQ-111 Project: 36 Attached Residential Units With Commercial Space location: 760 Broadway Dear Mr. Monaco: . , , . t'. This is to advise you that'the above mentioned proposed project located at 760 Broadway, is within the Chula Vista Elementary School District which serves children from Kindergarten through Grade 6. District enrollment has been increasing at the rate of 2-1/2 - 3 percent over the past several years, and this is projected' to continue. Pennanent capacity has been exceeded at many schools and temporary relocatable classrooms are being utilized to accommodate increased enrollments. The District also buses students outside their attendance areas, both to accommodate growth and assist in achieving ethnic balance. State law currently provides for a developer fee of $1.72 per square foot of assessable area to assist in financing facilities needed to serve growth. The fee is split between the two school districts with our district receiving $.76/sq. ft. and Sweetwater Union High School District (SUHSD) receiving $.96/sq. ft. This fee is assessed for new construction and additions/remodels of over 500 square feet. The State law also provides for a developer fee of $.28 for non-residential (any new commercial space proposed for the first floor) to be charged. The fee split is $.13 for our district with SUHSD receiving the balance of $.15 per sq. ft. / . ~1'_ .~ Since developer fees currently allowed....' I1I1der State law provide approximately twenty-five percent of the facilities costs to house new students, the District encourages developer participation in alternative ~~,- rf- /2>3 7-'''' . . ~ .. Septerr"';lr 1,1994 I Mr. Jo\._~'/Onaco Page 2 . . financing mechanisms to help assure that facilities will be available to serve children generated by new construction. We are currently utilizing Community Facilities Districts (CFO's) as one method to help fund this shortfall. Participation In a CFD Is In lieu of developer fees, with school mitigation paid by the homeowner in the form of a special tax. The subject project is located in the Mueller School attendance area. This school is presently operating over capacity, and an alternative financing mechanism, such as participation In or annexation to a CFD Is recommended. If you have any questions, please contact this office. Sincerely, " _ f<fk ~'J. Kate Shurson T Director of Planning & Facilities KS:dp .....-~ c..c:: : -r"..".,.." b..v-.. . '!.'~... ~.~... ~ q -IZJf '. . Sweetwater Union High School Disbict i. ADMINISTRATION CENTER 1130 Rfth AVlnYI Chyll Villa. California 81811.2896 (818) 8ll1.5SOO -. . ../I-.Nur "- oJ ;S;.~'.~ DIvIsion of Planning and Facilities PL",\...... "1, I,' ",., f ~\,;' January 4, 1995 Ms. Susan Vandrew City of Chula Vista Planning Department 276 Fourth Avenue Chura Vista, CA 91911 Dear Ms. Vandrew: Re: IS-95-3/Broadway Business Homes Village Thank you for the opportunity to respond to the Initial Study prepared for the above subject project. It is loeated in the Chula Vista Junior and Chura Vista High School attendance areas. According to the CBEDS enrollment taken on October 12, 1994, Chula Vista High is operating at 112 percent capacity and Chula Vista Junior High School is at 99 percent. Any increase in enrollment at these schools will impact the facilities. The proposed mixed use project has the potential to add approximately twenty- one new students to the District (fourteen high school and seven junior high school students).' The District's student yield rates are 0.19 students per household for high school and 0.10 students per household for middle school. The project's impact can be shown as follows: USE UNITS/AREA CHULA VISTA JR. CHULA VISTA HIGH TOTAL Residential 36 Units 3.6 6.84 10.44 Commercial 34,620 SQ. ft. 3.6 6.84 10.44 Total 7.2 13.68 21 ~., ~-//)5 ( '- Ms. Susan Vandrew January 4, 1995 Page Two The commercial impact has been derived using a SourcePoint Study prepared in 1990 which specifically analyzes non-residential development's impact to schools. Enclosed for your reference is the worKsheet used to estimate the impact the commercial portion of the project may have on the District. The District has traditionally responded to such projects by urging the City not to approve them unless they're conditioned such that they are annexed into a Mello-Roos Community Facilities District. However, the District and the City has reached an understanding that the projects within the redevelopment areas would not be placed in a Mello-Roos District. Rather, mitigation will be consistent with the recommendations accepted by the District after the completion of the current Source PoInt Study of non-residential development's impact to schools. This project's impact should be fully mitigated. The District requests that its mitigation be consistent with the recommendations which arise from the new SourcePoint Study undertaken by the City of Chula Vista, Sweetwater Union High School District and the Chula Vista Elementary School District. If you have any questions, please feel free to call me at 691-5553. Sincerely, , / ./ / ' / <';/--Im/r~ ~ ,..c.., t: 1------ / / '- Thomas Silva Director of Planning TS/ml enclosure c: Kate Shurson -~ ~- /60 \, WORKSHEET Proposed Development Type: C1asa1flcation Name: location: SIze: Mixed Use Commerciel & Residential Commerciel Broadway Business Homes Village . 760 Broadway 34,620 sq. ft. 1. Estimate number of new Jobs created by development 34620 sq. ft. x 0.001807 empllsq.ft. '" 63 new jobs 2. Estimate new workers living In District by development type 63 new Jobs 0.651 ELF. 41 new raldent employees x 0= 3. Estimate new households (hh). 41 employees x 0.873 hh/empl. 36 hauleholds 0= 4. Estimate new student enrollment 36 hh 0.29 stu.lhh 10 new &tudentl enrolled 0= . The employment location factor (ELF) for the development type Commercial Shopping was calculated using the trip length cut-off of .647 minutes defined by the District Geographic location Factor (GlF). ~ b--. J-j --! () 7 SANDAG.XLS Sweetwater Union High School District ,. ADMINISTRATION CENTER 1130 Fifth Av.nu. Chul. VI.I., Callfornl. 81811-2896 ~19) 881-5500 r Dlvlalon of PIaMlng and Facllltlel ..-...... --. - ~ J,UG f'- .... 1.. lq~/. ..... "':: August 24, 1994 ". ." Mr. Joe Monaco CIty of Chura VIsta PlaMfng Deportment 276 Fourth Avenue Chula VIsta. CA 91910 . {. SlP . . It'';7 ~. Dear Mr. Monaco: Ie: Broadway BUIlness HotnfI VIII9ge/Mixed U.. ProJect J6 Un", wtth CommercloJ IJH The above subject proposed project wlll Impact the SWeetwater Union High School District. Payment of school fees does not adequately mitigate the anticipated costs to provide classroom space. The present maximum fee rate of . $1.72 per square foot of residential area and $0.28' per square foot of commercial area .account tor less lhon one-thfrd the cost. Because of this, whenever possible, the District requests that the appllcont fully mftfgate project Impacts. This project's participation In the DIstrict's Community facilities DIstrict No.5 would satisfactorily mitigate Its Impacts to schools. . I request that the City of Chula VIsta condition any approval such that 011 school facility Issues ore resolved to the District's satisfaction, ~-~ Thomas Silva Assfstant Director of Planning 15/ml 4 c: Kate Shurson, Chula VIsta Elementary School DIstrIct ~~ ~- IlJl ( SWEETWATER AUTHC'- 'TY 505 GARRETT AVENUE POST OFFICE BOX 2328 CHULA VISTA, CALIFORNIA 91912-2328 (619) 420-1413 FAX (819) 425-7489 '.' GOVERNING BOARD BUD POCKLtNGTON. CHAIRMAN GEORGE H. WATERS. VICE CH....'AMAN SUE JARRETT EDWIN J. STEElE MARGARET A. WELSH .lAMES S. WOLNIEWJCZ . CARY F. WRIGHT WANDA AYERY TREASURER OIAN J. REEVes SECRETAAY.AOU1NI$TRATIVE AIDE ...'1.,\:,1 ~ . u ..... ;0::':: ..,;....... January 3, 1995 f'" . i-: ., 01" ,.' ~\ "'olro-..;( Mr. Douqlas Reid city of Chula Vista Planning Department 276 Fourth Avenue Chula Vista, CA 91910 Subject: WATER AVAIIABILITY PROPOSED MIXED USE RESIDENTIAL/COMMERCIAL PROJECT 760 BROADWAY CASE NO: IS-95-03 SWA Gen. File: Water Availability, 1995 Dear Mr. Reid: This letter is in response to your Notice of Initial Study for the subject project within the Sweetwater Authority service area. There is a 8-inch water main located on the east side of Broadway adjacent to the proposed development. Our records Indicate that there are four water services to this property. Enclosed is a copy of 1/4 SEC. 164 map which shows the existing water facilities. At this time, we cannot comment on the adequacy of the existing system to provide fire protection for this. project. As plans develop for structures, the owner must submit a letter to the Authority from the appropriate fire agency stating fire flow requirements. Based on this requirement, this project may result iD the Deed for Dew water systems or substantial alteratioD to the existiDq water system. The Authority recommends that your Agency work with ours to determine if the existing water facilities are adequate to meet the added demands prior to issuing a building permit. Also, the Authority is concerned that the timing for this project will be such that the installation of new services and the abandonment of existing services will take place after this portion of Broadway has been reconstructed. The Authority'S main is located on the east side of the street which will require trenching across the entire newly';'constructed street. In addition, the installation of services will be very costly due to the thickness of the new pavement. -~--: ~-I!J 9 A Public Agency, . Serving National City, Chula Vista and Surrounding Areas t Mr. Douglas Reid City of Chula Vista Planning Department Re: WATER AVAILABILITY PROPOSED MIXED USE RESrDENTIAL/COMMERCIAL PROJECT 760 BROADWAY CASE NO: IS-95-03 January 3, 1995 page two If the Owner provides the required fire flow information and enters into an agreement for water facility improvements with the Authority, water service can be obtained at a pressure ranging from a maximum of 85 p.s.i. to a minimum of 75 p.s.i. If you have any questions, please contact Mr. Russell Collins at 420-1413, ext. 639. 't".. Very truly yours, ( i7:~~ J es L. ;mYt ief Engineer JLS:RC:ln enclosure: photocopy of 1/4 SEC. 164 map pc: Russ COllins, Sweetwater Authority Citron Realty & Investment Corp 5000 Coronado Bay Blvd. Coronado, CA 92118 t:\lorel.'\wp5'\7~.ltr / ~.. ~ - ! /0 ~, "".\....... ........" '7. - o """L'- . ~;-I~'-;;-::::::I~ I '. ~'~ " -.fJt <oj'8 ;:r - U:;.,;;1- N . 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'~n ,"'J ~'~i f- ~~ ~ -~'f!:.'~0:V J ~Q ~ ~ ., V~>?~;:;s~, ZI ..... .. '. y:;z '........... .,..~ I'... 0 ,~J .' iOI I ,_h__~ I""..... ...~.. "... : .. . .... Z l; I"'. !~ ,. ;;1' ~~-- . .-- :. ~." ~.. RE ET. ......It. .,f;:: l ~ "I'" . .....~N .4...... I M~ .-....!. .,.,s "0. ll"~ I ! .~'N .~ .wo.." ~ ~ ~ . " 1...._- .._... - ,...- .. ...... 'n W.O.AU PROJECT SITE _.'ltMt .....'"7'2 . ~ tz '_ 2J " " ~R'- --- -~- -, -- --- '" -------. '"'.. .....31 '!.. ~. Z."S3 10 1-; . . . 1..1.1" IEf~_ t"!'::: .., I ~ .....- ..- i1) C"l~."~ '-~:... ............. f1 .0""'. ...,.. " ~ . . R........ .....,." -~'--.., .....: 7 , ~_ ~" :: ,~~: ~ ;~~ ....,... 1- ...,... 10 H ", ~. 1 ........ I I ,...!" I.. ,,~~ 1- .:1 2~ f .."'.:.~, . ",,'A'N ,- : .! STREET!f I ,...... ------ t-f-/I/ ~ ~... "1 ,..- I .: :. , ',' ., '. ..,~.~ . i J "'j ~ .. ~ ~~ <.~ . . 11#0 t - I . 1'" ..: -'" i -, '" ~ ! 1- jg -v ~~ .. ,. MAR 29 '95 12:21PMSWEr':ATER AUTHORITY ._. ! . SWEETWATER AUTHORIi _ I. P.2/3 . ~ 605 GARFlETT AVENUE POST OFFICE BOX 2328 CHULA VISTA; CALIFORNIA 81812.2328 (618) 420-1413 FAX (81e) 425-7469 GOVCJtNIHQ 80"''''0 _ut1 ftOQ(uNOTOfoI. CHI.,AMA'" OIQlllQf t.I ....T."I. Vt(:1 CH4II1lMAJ.' IUI""..UT IOwtN J_ .TrlLI MMOA"IT A_ WlL.IM . .lAWS a. VfOI,HIlWlCZ ~YF.MUl),," WANDA AVI"" ""fAlU"IJlI D4AH J. IIlllvn 8ICAIT."Y-ADM'IIlIT"-"TI\II AIDI Karch 28, 1995 Joset an~ Lenore Citron Joe1en Enterprises 5000 Coronado Bay Blvd. Coron.~o, CA 92118 Subject: CHUIA VISTA FIRE FLOW AVAIIABrLITY' 760 BROADWAY SWA DEV. FILE: CITRON MIXED-USE DEVELOPMENT Dear Mr. and Mr.. Citron: The 7500 GPH fire tlow at 20 p.s.i. residual pressure for a 2-hour duration, as required by the city 01' Chula Vista Fire Department, is .n2t available to serve the above-reterenced project. The Authority doe. not teel that this requirement oan be met without millions of dollars ot upgrades to the existing water infrastructure. The maximum available tire flow with no upgrades to the system is approximately 2800 GPH. The fire department has indicated that it a fire sprinkler system is added to this development, the required fire flow oan be reduced to 3750 GPM. Thi. flow can be met it the developer installs 600 L.F. of 12-inch main in Broadway, from "R" St. to the mid-point of the proposed ~velopment. This is in a section of Broadway that is currently bei g reoonstructed by the City of Chula Vista. In addition, any required water servioe. will probably result in the excavation ot the newly Clon.truoted street. Also, we have no intormation regarding domestic, irriqation and tire sprinkler water d.man~s that would sxpedite th..fl installation. prior to the street reconstruction. ' Very truly yours, SWEE'l'WATER AUTHORITY ( c.J~ mes L. Smyth Chiet Engin.er JIB IRe: 1e / k,\I'U.'.\I.tt...\."ron,ro ~ ;f--//~ A Pttb/ic A.II<"">,, Sorvi", Natiot/ll/ Cit)', Chllk: Vista GIld Sllr'f'Oundi", Anas .- . . 11Hk ,,:'I ':'IS 12:21PM SWEFT\.JRTER RUTHORITY .. . Jo..f and Lenore Citron Joelen Enterprises Rs: CHULA VISTA FrRE FWW AVArLABILITY, 760 BROADWAY March 28, 11111S page 2 pc: Ms. Carol Gove City of Chula Vista Fire Department 447 "F" Street Chula Vista, CA 91910 Mr. Roberto Sauoedo Citi of Chula Vista Enq ne.rinq Department 276 Fourth Ave. Chula Vista, CA 91910 ~I~ '-'1- //3 P.3/3 Jaauarr 13. 1995 t.. .- L,__ ,.... Dou.crlfls Reid Eft.lroRmeatal ReTlew Coordlwator ca.eN IS - 9S - OJ We. the followla! resldeats of the 700 block of BITe rIa.. ATe.. request that the ourreat approxlaate17 20 root hl~h wall raaal.~ al~ 76) a.d 767 BITerla.. ATe be retal~d, ..d, 1t Poss1ble.aloa~ the eat1re property l1ae to protect' the Ourreat B-1 resldeats troa the .dTerse aolee .ad trafflo caused b.r the ) 1/2 storr ooaaero1al deTelopaeat purposld b7 C1troa Real1t7 6 IaTestaeat Corporat1oa (f11e I 18-95-03). - " JI, "- /Ii 1 :J 799~ /' P .... L/i;:'", . ./\ /1''''' , "'~ "I L r {h-r-.. 10 t?~- ~ . '.1' 6t-it': .ia' Mary Cooper . 767 BITerl... ATe . ~hula Y.M:: ea ~19~0 ~ih .J7 J~~s V 745 RlTerla.. ATe Chatl Vista CA 91910 ~;;1f;e~ 724 RITerla.. ATe Cha&1 Vista, CA 91910 ~ ~ - lief 4 I APPLlC:ATION CANN., B .CCEPTED UNLESS SITE PLAN IS FOLDED TO m WIO AN 8-1/2 X II FOLDER l For Office Use Only Clse No. IS- 41'j -03 DpSL AmnU7t!!!Ji Receipl No. . Date Rec' d. - Accepled by ~ Project No. FA ~7 DpSL No. 00- III CIP No. RIA Related case No. i!iti " 'Re.,,'15e.d si.\e.. '1'laf\ INITIAL STUDY City of Chula Vista Application Form A. BACKGROUND 1. Project Title BROADWAY BUSINESS HOMES VILLIAGE 2. Project Location (Su-cet addl'CSS or description) 760 Broadway Assessors Book. Page & Parcel No. 571-200- 13 thru 17 3. Brief Project Description 36 - Units cOMhting of Ru<;inp<;<;p<; print"ip~l'y nn the first level & r~~;d~nC':pc; nn thp unnpr , 1/' c:tnripc: 4. Name of Applicant Citron Real ty & Investment Corp. t Josef & Lenore Citron Address 5000 Coronado Bay Road Fax# 423-0884 Phone424-4474 City Coronado Stale CA Zip 92118 5. Name of Pl'Cparer/Agent Jose'f A. Citron, Lenore S. Citron Address Same as above Fax# Phone ~ ~ ~ Relation to Applicant 6. Indicate all permits or approvals and enclosul'Cs or documents required by the Environmental Review Coordinator. a. Permits or approvals required. General Plan Amendment _ Rezone/Prezone _ Grading Permit _ Tenwive Parcel Map _ Site Plan '" Arch. Review _ Special Use Pennit _ Design Review Application _ Tentative SuM Map _ Redevelopmenl Agency OPA _ Redevelopmenl Agency DDA _ Public Project Annexation _ Specific Plan ' Conditional Use Permit Variance _ Coastal Developmenl Other Pcnnit If project is a General Plan Amendment and/or rezone. please indicate the change in designation from CT to CCP b. , Enclosures or documents (as required by the Environmental Review Coordinator). l Arch. Elevations .fY.- HydrOlogical Study L Landscape Plans- per arch. pl a~ Biological Study _ Tentalive Subd. Map _ ArChaeological Study L Improvement Plans _ Noise Assessment ~ Soils Report _ OLher Agency Permit ~ Gcotcchlucal Report OLher _ Grading Plan _ Parcel Map Precise Plan = Specific Plan _ Traffic Impacl Report ~ Hazardous Wasle Asses.<IllC!ll .CV" = City of Chula Vi~ta Redevelopment Agency has. ~ ~-1/5 J ~.. \II......:.F'J.O.\U;'.'1.Ar'!'OI...(~ .',TflJ(lJ]\J:~':: .\'" ,1(,,: .":U" 'I t Woe! :'l~~ 'I; I 3. \ .~ '--'- I. 525' X 210' L:JIHJ A.re:J: sqU:JIC fool:Jge a. 2.52 or .)cre=q;~ If land are:! 10 be dedic:J.lcd. st:ae :Jcr.e:J.g~ and PUr::'0Sc. C. Docs the prOject involv~ the .:on~lrucr:or. 0; nC\lo- ~uilJings. or will existing \,ru~ture be uluile,r> New -:ons truc ti on ., Comple:e this section if project is residenriJI or mixed use. a. Type of development:-t, Single FJmily _ Two Family _ Mulli FJmily Townhouse Condominium b. Totalnumberofsuuctures 4 - consistinQ of 36 units total c. Maximum height of structures 3 1/2 Stori es d. Number of Units: I bedroom -0- 2 1/..2bedroom 20 3 bedroom _ 16- 4 bedroom -L Total Units 36 e. Gross density (Duttow acres). 2.52 f. Net density (DU/total acres minus an)' dedication) 2.52 "les . streets . . . ,. , , pedstn an promenade g. Esumated project populauon 123 . h. Estimated sale or rental price range $199,900 - S249, 900 1. Square footage of StructUre 1,892 - 2,183 (See Exhibit "C") , j. Percent of lot coverage by buildings or Structures 30'll: k. Number of on-site parking spaces to be provided 154 I. Percent of site in road and paved surface Road Paved Surface .dR~' landscape + Ped. Pavewav 20% Building Footprint 28% Complete this section if project is commercial Qr'illdustrial or mixed use. Pri V. landscape 13% a. Type(s) of land use Pl ease. see #2 'b. Floor area Height of strUc:ures(s) c. Type of construction used in the structure d. Describe major access points to the strucrures and the oriennwon to adjoining properties and streets e. f. Number of on-site parking spaces provided Estimated number of employus per.shift Number of shifts " Tutal g. Estim:lled number of customers (per day) and basis of estimate -~ ~-I!b '':''f'l:.F:''HC.\.tE'.PL\.'':-;r~:'7;7'.itf.V\I(l:; .\ oll.,,/;: :'::~"':I.K,: ;':~;nl I. h. Estim~Led nber of deliveries per duy Not )wr.t thi s time 1. Estimated range of service :ll"e:l:md basis of estim:ue Not known at thi s time J. Type/extent of operations not in enclosed buildings None know" k. Hours ofoper:llion Not available at.this time I. Type of exterior lighting Decorati ve Ma 11 L i Qhts 4. If project is other than residenri:Jl. commercial or industrial complete this section. a. Type of project b. Type of facilities provided c. Square feet of enclosed SU'UClUres d. Height of structure(s) - maximum e. Ultimate occupancy load of project f. Number of on-site parking spaces. to be provided g. Square feet of road and paved surfaces h. Additional project characteristics C. PROJEcr CHARAcrERISTICS , l. Will the project be required to obtain a pennit through the Air Pollution ContrOl District (APeD)? . No 2. Is any type of grading or excavlllion of the propeny anticipated? Offsite & Utilities .onlv If yes. complete the following: a. Excluding trenches to be backfilled. how many cubic yards of earth will be exc:Jv:ued? b. How m:my cubic yards of fill will be placed? c. How much are:! (sq. ft. or acres) will be graded? d. What will be the: Maximum depth of cut Average depth of cut Maximum depth of fill A verage depth of fill -~ ~-//7 WPC.F;\H,'I>.L('.flLAJ'-;SI:'\CS7'"...ktr1-H1::. .\,"",1 IKco!. ;1;::1 ""llkei. :0:1."", ~ 3. Describe all Lerlonsuming devices which are pan )& .roposed project and the tyPe of energy used (air conditioning, electrical appliance. hearing equipment. etc.) Standard residential 'lighting & office & store lighting, probably principally flourescent .4. Indicate the amount oi natural open space that is pan of the projecUsq. ft. or acres) None' 5. If the project will result in any employment opportunities describe the nature and type of these johs. 26 liQht commercial & office jobs 6. Will highly flammable or potentially explosive materials or substances be used or stored within the project site? No 7. How many estimated automobile trips. per day. will be generated by the project? Per SANDAG for commerical & residential 8. Describe (if any) off-site improvements necessary to implement the project, and their points of access or cOMection to the project site. hnprovements include but not limited to the following: new streets; street widening; extension of gas, electric. and sewer lines; cut and fill slopes; and pedestrian and bicycle f~ilities. See Plot Plan the Redevelopment District's Preliminary Site Assessment Report dated October 26, 1992. D. DESCRIPTION OF ENVIRONMENTAL SEITING. (NOTE: 1,2,5& 6 lire answered in Chula Vista City Assessment document) 1. Geolo!!v Has a geology study been conducted on the prOperty? See note (If yes: please attach) Has a soils report on the project site been made? (If yes. please attach) 2. Hvdrolo!!v " AIeany of the folIo wing features present on or adjacent to the site? See Note (If yes. explain in detail.) a. Is there any surface evidence of a shallow ground Water table? No ~ '.~-//J' ~ VW.PC.F:'HOMI'P*....\....:O':ISf;Si":.f(ELNO:l.",oJ\ IR~, 1(J~,. 'J.I. IKd IUl:.~JI { b. Are lk.e. . watercourses or dr:tinage imprOV(. 11 'n or adjacent to the site? No c. Does runoff from the project sile drain directly in to or toward a domestic w:![er supply. lake. reservoir or bay? No . . d. Could drainage from the site cause erosion or siltation to adjacent areaS? No e. Describe all drainage facilities to be provided and their location. 3. ~ a. Are there any noise sources in the project vicinity which may impact the project site? No b. Will noise from the project impact any sensitive receptors (hospitals. schools, single- family residences)? No 4. Biolo!!V a. Does the site,involve any Coastal Sage Scrub veget:uion? No b. Is the project site in :a naruralor partially natural swe? No c. If yes, has a biological survey been conducted on the propeny? Yes No (Please attach a copy.) d. Describe all trees and vegetation on, the site. Indicate location, height, diameter, and species of trees. and which (if any) will be removed by the projecL No .5. Past Use of the Land a. Are there any known historical or archeological resources located on or near the project site? See note b. Arc there any known paleontological resources? C. Have there been any hazardous materials disposed of or stored on or near 'the project site? d. What was the land previously used for? " - ~~ ~-//l WPC;f:"fOMP\l'1...MNI.V::'-:'I~E1,...:tl:(..\.j\ tt<~l :,,~,.ltIIKd IfI:: ,I, 6. ( Current L:l11o se I a. Describe all structures and land uses currently existing on the project sileo See note b. Describe all structures OII1d J:l11d uses currently existing on adjacent property. North South East West 7. ~ a. Are thcre any residcnts on site? No If so. how many? b. Are there any current cmployment opportUnities on sitc? If so, how many and what type? 8. PleaSe provide any othcr infonnation which may assist in the cvaluation of thc proposed project. , t... , : -<~. 1--/7D \\'PC'.F:'1IOMl~"""1~;r,SiOK~I01t.A.".' (NC'f. !nzn,~IIIKC'f. In~.llll . - d";:'..-:' ~-. .Y ....-. .,' to ~ /.... ~ - .~ .'~ ~.:-., . ....' - ::a I '::::: .... - - " .,.-.~ 1;" .~.. ~\-\.~\' .-"-' ~- ~ '-'-" E~'" - ....:'0 ..!'t':':.'!.o .... ~l_ ...\.',....,. ---';:~ . "'M" ~: ,:" ._ -1i--.l .r{ I ':,: . '1 --I MAIN ... jl! "...,.- It' ~F" '- J , HI D o 2~:lO ~~:: S::;,.J~:E: i~r ---:lIl..! !=f:I:', ....Jj:' '"r!f!- :"....~-...... ___=................. ._ __... _-...... _. :r:r. .._......~. 1"::,- ._-:.....:.... \I... ... -:.'''It/.:~~::... :~".c.'.-t: ::" --j".:.s: "'..=s .~~~ ~:.- "! ::.:t...:t:;--t:' ~... -_:"':': :=:! 5=i:S. M~=S: "'::::::R:r.:l.I':' -~ ~~,:.:'_ .. 1:':-:-', .' -..' . ::.:.,-~ -~ -F' , - Jf - /j.! AUC-1C-9" THU 11 ( B. ~ERTw:CA nON f4:>30994 1'>.02 'f I. 81 ownu/owncr in escrow. Josef A. Cf tron Lenore S. CItron Print lIame . , or I, COIIIukltlt or ~nl. Prinlname IWU!BY AffiRM, lbal to 1M best of my bellef.lhe Ilalt;menll and fntonnadon IIcn:ln CQI&a1ncd mill aU IapeCII crue and correa and thai allllnowlllntonnadm concemln& the projca and lei imine flu been , , JncIuded In lIIis application for an Inltlal SQldyvt possible CI1vlrcnmellll1lmpact and lilY cncIO$W'CS fOt altaclllncnts IhCteto. ~ " ~ , . or Consulcanl or Aient Sisltllurc i- #!~ -1S}Af'?;r 'U"'" ... ........... r........... ... -- ..... ~1I'_""""'~-"'1cu.1nu21 . r-/ - /J-J-- ~ lO'd llSSSBS61S 'ON XV.:! -~ VJ.Sl^ VlOHO !J JJIO OS:OI Ow. t6-BHlfW 3. 4. ~ THE cm' Of CHU.A VISTA DISCLOSURE STATE~1E:-''T . S!2temem oi di.cio.ure of ce:talr. o...::e:-sb.p ime:::.t.. _>yme::t.. or ~'IlF:!lf:: conuibutions. on all mane,.. wbich will require di.;:::::iona.-:' action on:be ;lan of lhe City Counc:!. Planning COt=-~..ion. and all other official bodie.. The following iniot:Dauon must be c:scJosed: l. List :h~ :urnes oi .uJ pe:s"ns h~vc ~ fizuncJJ.i tntc:eSl in me: ~Or:t:Xl. i.e.. conU"Xlor. subcontraclor. matena; .upplier. ~ C ~~~ ~~l~~~f=~O~NT CMP. 1 .. Jf any penOn ide:llified pursuant 10 (I) above is a corpomion or pannermip. list Ibe names of aU individual. owning more lIwl lOll; of Ibe share. in Ibe COrporation or owning any pumership inlerest in the panne:ship. . CI'-ARg~ R~ ~~ - ~~ ~ ~~~~ SV"h @ sJ: ::J'e~Lf-N. C ,-,;=. rl "(7" A;" ~ N .c:rtJfl a If any person identified pumwtl 10 (I) above is Don-profit orpttiz3tion or a trust. list the Dames of any person serving as director of the DOD'profil organizatiOD or as tntste: or beneficiary or tntstee of the trust. Have you had more than S'...sO wonh of business transacted with ~. member of the City staff. Boards. Commissions. Commine:$ and Council within the past rwelve mOntlls~ )/0 , 5. PIC3.Se idcotify each and every persOn. including any agent.. e:::ployees. consulWlll or independent contractors who you have as.igned to represCOt you before Ibe City in this maner'A/btJz, 6. Have you andlor your offlCt:rs or agenll. in the aggregate. contributed more dtan $1.000 to a Council member in the current or p=ding election period? Yes I J ~o ~ Jf yes. state which Council membens): Penon is dc{UlCd IS: -Any iDd.yidu&J. linn. co.pannership. joine VCDGJrr. associauon. IOCiaJ =ab. fmemaJ orp.n..iwioa. c::orponlioa. cscatc. InW.. ftetlvcr. lYJIdiwc.lbis &nd ~y olber :oumy.">, and coumy. en)'. munic-spaJiIy. disax: :r~:'poIicicaJ IUbdiYGlOD. or any odacrlroup or combiaauon &C:UI.C as I unit. . !Non: ""'ell acldlllOllIl par" as "'C<UI~., Date: 8,/I1../J9'1 . ::JOSEF A ,e i 11? ~N ~NO~c:... 'S, (A'llfON Pnnl or :ypc name oj .:omrac:c: 1;~j'calll ~ - /.2-3 - .~ - ....'C.F ~OME',P:","~":'.r: :':'~R!~ :'~~..'" "J~c: .;=~...jl.RC"~ ;11;= II;, ". l, . ~ ~c. ~ Y!STA : p - - .,:; ... - - A ~ ~ -I N o' I I , -J..v I '1 . '-" ;-", --. . -.- ........- .. ~:"~1'....o(..- .. ._~:-:-: .,......v.,...L~ ..p~~-=~~ . . :-::':........,,:'-- ."'t..:..: .. 'It' . .. .. .._..,;.:~.... . ."_ _ -...4,. . '-'~:j~e: ' . -. ....~ ....~if. .. . ~~~:- ; _.~o. ..", .... .r;~ . --.,,:~ .c" -. - :4.~: ...-"- ~ - - . ..~ .. . I .., _. .- .". -'- ,.:.;. .. - --. .-. .. .'-. ,.'" . .. - ...- -' or'';::'' .. . .' . . .. .- . t- . . . . '. . ~~ , Jf ~ /;J-:5 SITE PLAN INFORMATION 1. Project Location 760 Brpadway 2. Legal Description * 3. Assessor's Parcel Number * 4. Property Owner's Name and Address Chula Vista Redevelopment Agency 5. Name of Person or Firm who prepared the plans and date of preparation and revisions C.W. Kim, AlA AQency 6. Boundaries of subject property with dimensions 52~' on Broadway - 210' Deep 7. Existing and proposed building and structures with dimensions and heights * , 8. Existing adjacent structures ~ Motel & Tire Shop 9. Eiisting a~d proposed land use for each building activity area Flour clusters of 9 units each: Business on 1st floor Residential on floors 2 & 3 10. Squre footage of each building a'ctivity area 1093 11. Construction type per U.B.C.. i.e. Type I-FR, Type V-N, etc. 5N/3 Story 12. Type of occupancy per U.B.C. Mixed use - Residential & Business . . -=,,-4 . ;f ~/}-t SITE PLAN INFORMATION (continued) 13. Existing topography and proposed gra.ding showing all slopes and slope ratios N/A 14. Existing and proposed walls, fences, etc., indicating height 15. Parking layout, pedestrian walks, loading and trash areas . & .. 16. Location, height, diameter, and species of all existing trees which are to remain or to be removed. N/A 17. Public facilities and infr,astucture (i.e., roads, drainage, sewer, open space easement, etc.) N\A 18. Existing !3nd proposed electrical transmission line easements with estimated voltage Adequate service is provided on Broadway 19. Number of parking spaces required , 100 20. Numbel' of parking spaces provided 105 I 21. Scale no less than 1 n =30' Included in description 1 in. to 30 ft. 22. North arrow NOTE: . Please see Exhibit A. " .. Please see Exhibit 8. __ J-:4~ ,. - ~-/~7 BUS1NESSHOME VILLAGE -;":':=:. At,;":; :~. "C;<;;l .C '.A~S_ :.::\;c~c :::::;-::....J :':'X. (~iC;).:;;~~e.e..::: ;~C.\ll; C ...... <:M lOT Cf^,IE:'l/SiCN: 525'X210' FROr:cSE'J eUILDING HE,GHT:.'3 SiORY 10' Ti-iRU ':.5' CONSiRlJCnON j'yPE WE !iN! .'3 SiQRy PRCPOS~i) WALU Fi:NC~ HEIGJ-IT: 5'-Q" HIGH TRASH: HANDLED BY INDN/DUAL DWElliNG UNITS NUMBER OF PARKING: APPROX. TOTAL 10s lOi C9VERAGE~35.72% % OF ROAD PAVED SURFACE: 49% I I BUSINESSHOME VIllAGE : WID SCAP,.PEO. PA~AY (15.3S) ..' .~~~tf~;~~~. .- ". - ~;........_~~ ~;..~ . <:-:/t~~~~~{:if:~Lt? ~~ SUJU:2IIG l'COlFRJNr (3.S.~) .... \ I ~- ~ - / e1f , I ~""...u.. I .... \. old S'lk ~Iar'\ ~ "" .____.. r", "" \ - \:'" \. ~ N e Bldg. C >- < ~ c < c '" c: :_:p,i--. . ".~~'. -'. .:,.:,........ .:.._~t:;;.,~,::.,. ....,-'..-.._..... .,;'::>:0' . -:~-:'-., . '~.,":T' ,.. '.. .-., . .;- ::2:fij~ '-~::~;;. ~.: ...;~.i-~~1 ~,..:~,:.;.l:...~ .--v:..-:r.;: .:-'_- ~;~ ..~ :~!1;X '-., ~: ., ~ . :'>~1~ . . .....-~- ....:,.t :"T#: '. ':.!'E~ .'-'. ~.' .. c,.......-.:; . .. " ..~ ::~&~R . '::'~~.~~ ,_:,.",,-:,~; '-.../ u lO13 "iUJ.Gt 162500F1' I'AIJCINQ Iol... tAl Ai1IY) '-.../ '-.../ r-L.rI . .. . . "'. -~ ~-/)1 .!.lrill Building . A . Building .BR Building .CR Building RDR \ EXHIBIT RCR SQUARE FOOTAGES OF STRUCTURES <> .' 'TOTAL BUIDLlNG: _ J---- ' 2.150 S.F. 25.800 S.F. 12,900 S.F. 25.800 S.F. 12.900 S.F. 77.400 S.F. ~~ /3& (' / ATTACHMENT 7 DISCLOSURE STATEMENT -.~~ ~~!3/ nm CITY OF CHULA VISTA DISCLOSURE STATI:MENT You arc required to file a Stalemcnt of Di~c1osure of ceriain QWIIership or financial intercsts, payments, or campaign eontrihution.~, on all mailers which will require discretionary action on the part of the City Council, Planning Commission, and all other official bodics. The following information muSI be disclosed: J. U~tthe namcs of all pc...on~ having a financial intcrcst in the propcrty which is the suhject of the applicatlon or the contract, e.g., owner, applicant, contraclor, subcontractor, material supplier. Josef A. Citron Lenore S. Citron 2. If any person' identified pursuant to (I) above i.~ a corporation or partnership, list the IUImcs of all Individuals QWIIing more than 10% of lhe ~harc:; In the olrporalion or owning any partnership interc.~t in the partnership. Citron Realtv & Investment CorD. is 100% owned bv Josef & Lenore Citron :l. If any person' identified pur~uanl 10 (I) ahove i~ nnn.profit organil..alion nr a IruM, IiM the namcs of any pcrson serving as director of lhc non.profit organil..alion or as truslcc or benellciary or tru~tor of the trust. 4. Have you had more than S250 worth of hu.~incs~ transacted with any memhcr of the City starr, Board~, Commissions, Commillees, and Council within the past lwelve mORlhs? Ycs_ NoL If yes. please indicate person(s): S. Please identify each and every person, Including any agents, employees, consultants, or Independenl contractors who you have assigned to represent you before lhe City in lhis mailer. 6. Have you and/or your officers or agents. In the aggrcgale. contributed more than $1,000 to a Councllmember In the cunent or preceding election period? Ycs_ No-ll If yes, state which Councilmember(s): Date: 10-18-94 ~~/3Y f _ J_ ,~_ / re of contractor/applicant Josef A. Citron Print or cype name of contractor/applicant , , . (NOTE: Allacb additioll&l pages . fmatl is dcJit~d.... 'A,tl' individual. finn. cn.ponnmhip. joilll .......,.. """';""111. ""iaJ club. ,,""""', MgGIIiuuiOll, cOlpOl'tuiOll, _~ ..... rr<<i-. <yndiCdl<, Ihis GIld GN)' other cowuy. city Glut cowllr)~ cit)' tfumicipaJil)', district. or Ulher political Albdi,VibtI, or 1111}' oliKr ,-nup '" ct:JmbiniJliOtt octin& {If " &uIiL . MITIGATION MONITORING AND REPORTING PROGRAM 1S-95-03, AS AMENDED This Mitigation Monitoring and Reporting Program is prepared for the Broadway Business Homes project. CEQA requires lead agencies to ensure that adequate mitigation measures are implemented and monitored on Mitigated Negative Declarations, such as 1S-95-03, as amended. CEQA requires monitoring of potentialIy significant and/or significant environmental impacts. The mitigation monitoring program for this project ensures adequate implementation of mitigation for the folIowing potentialIy significant impacts: noise, school facilities, parking. Due to the nature of the environmental issues identified, the Mitigation Compliance Coordinator (MCC) shalI be the Environmental Review Coordinator (ERC) for the City of Chula Vista. It shalI be the responsibility of the applicant to ensure that the conditions of the Mitigation Monitoring and Reporting Program are met to the satisfaction of the ERC. Compliance with the mitigation measures specified in the Mitigation Negative Declaration IS-95-03, as amended shalI be provided to the ERC prior to issuance of any permits by the City of Chula Vista. The ERC will thus provide the ultimate verification that the mitigation measures have been accomplished. q- /33 This page Blank ;///31/ MITIGATION MONITORING AND REPORTING CHECKLIST PROJECT NAME: Broadway Business Homes IS NO.: 95-03 Issue Area Noise Mitigation Measures 1. Retain existing wall on western site boundary 2. Mechanical ventilation systems shall comply with UBC Sect. 1205 (c) 3. East facing windows in the four end units that face Broadway shall be rated at STC=25 or higher. Project Phase Building permit issuance Responsible Party City Engineer Issue Area School Facilities Mitigation Measure Full mitigation of school facility impacts via an agreement with the affected school districts Proiect Phase Occupancy Permit Issuance Responsible Party Director of Planning J-/ - /35 Issue Area Parking Mitigation Measure Establishment of Conditions, Covenants and Restrictions (CC&R's) related to simultaneous occupancy of residential and commercial portions of units as a condition of the Precise Plan. Proiect Phase Precise Plan Approval Responsible Partv Director of Planning ;f- /30 RESOLUTION /79 ti:, <f RES.oLUTl.oN OF THE CITY .oF CHULA VISTA AD.oPTING MITIGATED NEGATIVE DECLARATION AND ADDENDUM IS-95-03 FOR 36 UNIT BUSINESS HOMES PROJECT AT 760 BROADWAY WHEREAS, the Redevelopment Agency of the City of Chula Vista ("Agency") formed the Southwest Redevelopment Project Area for the purpose of eliminating blight; and WHEREAS. the property located at 760 Broadway, comprising approximately 2.5 acres is located within the Southwest Redevelopment Project Area (the "Site") is vacant and blighted; and WHEREAS, a redevelopment proposal has been received for the Site from Joelen Enterprises comprising the development of 36 Business Homes on the Site (the "Project"); and WHEREAS, the Agency has determined that the Project is desirable and will assist in the elimination of blight in the Project Area; and WHEREAS, the Project will require discretionary approvals from the City Council including a zoning change and the approval of the sale of Agency property to the developer for the construction of the mixed use project on the Site; and WHEREAS, on June 1, 1995 a public forum was held on the project providing the opportunity for public input thereon; and WHEREAS, the City's Environmental Review Coordinator has conducted an Initial Study, IS-95-03 with Addendum of possible environmental impacts associated with the Project. Based on the Initial Study, Addendum, and comments thereon, the Environmental Review Coordinator has determined that there would be no significant environmental effects and, therefore, recommends adoption of the Mitigated Negative Declaration, Mitigation Monitoring and Reporting Program and Addendum issued on IS.05.03 (collectively, the "Mitigated Negative Declaration Documents"). WHEREAS. on June 14, 1995 the Planning Commission voted to recommend adoption of the Mitigate Negative Declaration Documents; and WHEREAS, on June 26, 1995 the Resource Conservation Commission voted to recommend and approved the Mitigated Negative Declaration Documents; NOW THEREF.oRE, THE CITY COUNCIL OF THE CITY OF CHULA VISTA does hereby find. order, determine and resolve as follows: A. ADOPTION OF MITIGATED NEGATIVE DECLARATION DOCUMENTS The City Council of the City of Chula Vista, acting as a Responsible Agency, has reviewed, analyzed, and considered the Mitigated Negative Declaration Documents (known as Document No. on file in the Office of the City Clerk). the environmental impacts therein identified for this project prior to approving the Project. Based on the Initial Study and comments thereon, the City Council finds that there is no substantial evidence that the Project will have a significant effect on the environment and thereby approves and adopts the Mitigated Negative Declaration Documents. 1-/~7 Resolution xxxx Page 2 B. CERTIFICATION OF COMPLIANCE WITH CALIFORNIA ENVIRONMENTAL QUALITY ACT The City Council does hereby find that the Mitigated Negative Declaration Documents have been prepared in accordance with requirements of the California Environmental Quality Act. the State Environmental Impact Report Guidelines. and the Environmental Review Procedures of the City of Chula Vista. C. INDEPENDENT JUDGMENT OF REDEVELOPMENT AGENCY The City Council finds that their approval and adoption of the Mitigated Negative Declaration Documents and the related findings and adoptions in connection therewith were the product of their exercise of their independent judgment. PRESENTED BY: APPROVED AS TO FORM BY: &S~ ~~ih ruce . B . gaard City Attorney Chris Salomone Community Development Director IM:\SHARED\A TTORNEY\NEG DECl C.RES! J-f - ! 39 RESOLUTION /11.0 0 RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA ADOPTING MITIGATED NEGATIVE DECLARATION AND ADDENDUM IS-95-03 FOR 36 UNIT 8USINESS HOMES PROJECT AT 760 BROADWAY WHEREAS, the Redevelopment Agency of the City of Chula Vista ("Agency") formed the Southwest Redevelopment Project Area for the purpose of eliminating blight; and WHEREAS, the property located at 760 Broadway, comprising approximately 2.5 acres is located within the Southwest Redevelopment Project Area (the "Site") is vacant and blighted; and WHEREAS, a redevelopment proposal has been received for the Site from Joelen Enterprises comprising the development of 36 Business Homes on the Site (the "Project"); and WHEREAS, the Agency has determined that the Project is desirable and will assist in the elimination of blight in the Project Area; and WHEREAS, the Project will require discretionary approvals from the Redevelopment Agency including a Special Use Permit for the construction of the mixed use project on the Site, approval of a Precise Plan and approval of a Disposition and Development Agreement; and WHEREAS, on June 1, 1995 a public forum was held on the project providing the opportunity for public input thereon; and WHEREAS, the City's Environmental Review Coordinator has conducted an Initial Study, IS-95-03 with Addendum of possible environmental impacts associated with the Project. Based on the Initial Study, Addendum, and comments thereon, the Environmental Review Coordinator has determined that there would be no significant environmental effects and, therefore, recommends adoption of the Mitigated Negative Declaration, Mitigation Monitoring and Reporting Program and Addendum issued on IS-05-03 (coIJectively, the "Mitigated Negative Declaration Documents"). WHEREAS, on June 14, 1995 the Planning Commission voted to recommend adoption of the Mitigate Negative Declaration Documents; and WHEREAS, on June 26, 1995 the Resource Conservation Commission voted to recommend and approved the Mitigated Negative Declaration Documents; NOW THEREFORE, THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA does hereby find, order, determine and resolve as follows: A. ADOPTION OF MITIGATED NEGATIVE DECLARATION DOCUMENTS The Redevelopment Agency of the City of Chula Vista, acting as Lead Agency, has reviewed, analyzed, and considered the Mitigated Negative Declaration Documents (known as Document No. on file in the Office of the City Clerk), the environmental impacts therein identified for this project prior to approving the Project. Based on the Initial Study and comments thereon, the Agency finds that there is no substantial evidence that the Project will have a significant effect on the environment 1-/3~ Resolution xxxx Page 2 and thereby approves and adopts the Mitigated Negative Declaration Documents. B. CERTIFICATION OF COMPLIANCE WITH CALIFORNIA ENVIRONMENTAL QUALITY ACT The Redevelopment Agency does hereby find that the Mitigated Negative Declaration Documents have been prepared in accordance with requirements of the California Environmental Quality Act, the State Environmental Impact Report Guidelines, and the Environmental Review Procedures of the City of Chula Vista. C. INDEPENDENT JUDGMENT OF REDEVELOPMENT AGENCY The Redevelopment Agency finds that their approval and adoption of the Mitigated Negative Declaration Documents and the related findings and adoptions in connection therewith were the product of their exercise of their independent judgment. PRESENTED BY: APPROVED AS TO FORM BY: c~- S'~~_ ChriS Salomone Community Development Director IM:ISHAREOIA TTORNEYINEGDEC 1 A.RES] t-/ - /<(0 ORDINANCE NO. r:2~3to AN ORDINANCE OF CITY COUNCil OF THE CITY OF CHUlA VISTA AMENDING THE ZONING MAP OR MAPS ESTABLISHED BY SECTION 19.18.010 OF THE CHUlA VISTA MUNICIPAL CODE BY REZONING THE 2.53 ACRE PARCEL LOCATED AT 760 BROADWAY WITHIN THE SOUTHWEST REDEVELOPMENT PROJECT AREA FROM C-T (COMMERCIAL THOROUGHFARE) TO C-C-P, CENTRAL COMMERCIAL WITH PRECISE PLAN WHEREAS, a duly verified application for a rezoning was filed with the Planning Department of the City of Chula Vista on December 16, 1994 by Josef A. and Lenore S. Citron; and WHEREAS said application requested to change the zoning from C-T, Thoroughfare Commercial zone to C-C-P, Central Commercial with Precise Plan for 1.26 acres located at 760 Broadway within the Southwest Redevelopment Project Area and diagrammatically represented on the area map attached hereto as Exhibit A; and WHEREAS, the Environmental Review Coordinator conducted an Initial Study, IS-95- 03 and addendum of potential environmental impacts associated with the project and has concluded that there will be no significant environmental impacts which cannot be mitigated and recommends adoption of the Mitigated Negative Declaration issued on IS-95-03, and WHEREAS, on June 26, 1995, the Resource Conservation Commission voted to recommend approval of the Mitigated Negative Declaration and addendum issued on IS-95-03; and WHEREAS, on June 14, 1995 the City Planning Commission voted to recommend that the City Council approve the rezoning in accordance with Resolution PCZ-95-A/PCC-95-23; and WHEREAS, the City Clerk set the time and place for a hearing on said rezoning application and notice of said hearing, together with its purpose, was given by its publication in a newspaper of general circulation in the city and its mailing to property owners within 500 feet of the exterior boundaries of the property at least ten days prior to the hearing; and WHEREAS, the hearing was held at the time and place as advertised, namely 6:00 p.m. July 11, 1995 in the Council Chambers, 276 Fourth Avenue, before the City Council, the City Council considered public testimony, and said hearing was thereafter closed. WHEREAS, based on the findings and recommendations of the Environmental Review Coordinator, the City Council and the Redevelopment Agency adopted the Mitigated Negative Declaration and Addendum issued on IS-95-03 and all related findings and mitigation programs (the "Mitigated Negative Declaration"). WHEREAS, this Ordinance was introduced for first reading to the Council on July 11, 1995 and considered by the Council for second reading on , 1995. J/- /'1-/ Ordinance xxxx NOW, THEREFORE the City Council of the City of Chula Vista does hereby find, determine, and ordain as follows: Section 1: The City does hereby adopt and incorporate herein Resolution No. /7tJt'l of the City Council adopting the Mitigated Negative Declaration. Section 2: The City Council hereby finds that the rezoning is consistent with the City of Chula Vista General Plan and that public necessity, convenience and general welfare and good zoning practice support the rezoning to C-C-P, Central Commercial with Precise Plan. Section 3: The parcel located at 760 Broadway, as shown on attached Exhibit A (the "Rezoned Parcel") is hereby rezoned to C-C-P, Central Commercial with Precise Plan. Section 4: The "P" Precise Plan Modifier is appropriate for the Rezoned Parcel because all the circumstances set forth in Chula Vista Municipal Code Section 19.56.041 exist with respect thereto. Section 5: This Ordinance shall take effect and be in full force the thirtieth day from its adoption. Presented by Approved as to form by ~S-~ Chris Salomone Community Development Director (m:\home\commdev\kassman\bushomes.ordl t-J -I 'f /- J I I I I I I l I J l I I I L r I "J" STREET I . , I I I I I t I I I I I . L __.J I I ------ I I I L__:' I I .1. I I L -r I -; I ~ . I . L I I I > 1 - I Q I I I I ~ I I I I ------ . i ____.J I ,.. :zJ t--- <: I - . I 1TI --.---+-~ :zJ > CD ,... I (f) "" I- .~ . % 1TI l-__ n' z r-----'1 %' - ST. , b , - CCP ~ ~ --- - ~ "" . . 1TI ....--- I- 0 l- I 210'-0" I I I- -- - ---- Q:I 1 I ;0 > ~ l- I ~ I < 1TI . , . . - .i.r-~--- ~ I I '1 .I ~ - I .l. I , I . - "J(" STREET r I I rTTl r I , r .EXHIBIT - A- CASE NUMBER: CHULA VISTA PLANNING DEPARTMENT PCZ - 95 - A ACREAGE: 2.53 I HEREBY CERTIfY TJiAT THIS ZONING MAP WAS APPROVED AS A PART OF ORDINANCE SCALE: 1" = 400' BY THE CITY COUNCIL ON Oo*.TE: JUNE 5, 1995 01Y a.E1lK DATE DRAWN BY: C9 ~,~ c. J. FERNANDEZ ZONING MAP i'~ CHECKED BY: CI1\'Clf 0iUA VI5rA NORTH ~-/Y-3 7 This page Blank Lf~/i-Y- RESOLUTION NO. /1~' , A RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA MAKING CERTAIN FINDINGS AND GRANTING A SPECIAL USE PERMIT FOR THE DEVELOPMENT OF A MIXED USE PROJECT KNOWN AS THE BROADWAY BUSINESS HOMES PROJECT, LOCATED AT 760 BROADWAY WITHIN THE SOUTHWEST REDEVELOPMENT PROJECT AREA TO BROADWAY VILLAGE BUSINESS HOMES L.P. WHEREAS, a duly verified application for a Special Use Permit was filed with the Planning Department of the City of Chula Vista on December 16, 1994 by Josef A. and Lenore S. Citron, now doing business as Broadway Village Business Homes L.P. ("Developer"); and WHEREAS, said application requests permiSSion to establish a 36 unit commercial/residential mixed-use project with shared parking at 760 Broadway within the C- C-P zone; and WHEREAS, a mixed use project can be developed within a C-C-P zone with a Conditional Use Permit or a Special Use Permit if it is within a redevelopment area; and and WHEREAS, the project site lies within the Southwest Redevelopment Project Area; WHEREAS, on June 14, 1995, the Planning Commission voted to recommend that the City Council approve the Conditional Use Permit in accordance with Resolution PCZ-95. A/PCC-95-23, and WHEREAS, a public forum was noticed and held on June 1, 1995 to inform surrounding residents and property owners of the proposal and to receive their input prior to the public hearings; and WHEREAS, the Environmental Review Coordinator conducted an Initial Study, IS-95- 03 and Addendum of potential environmental impacts associated with the project and has concluded that there will be no significant environmental impacts which cannot be mitigated and recommended adoption of the Mitigated Negative Declaration, Addendum and related documents issued on IS-95-03; and ~ WHEREAS, the City Clerk set the time and place for a hearing on said application and notice of said hearing, together with its purpose, was given by its publication in a newspaper of general circulation in the city and its mailing to property owners within 500 feet of the exterior boundaries of the property at least ten days prior to the hearing; and WHEREAS, the hearing was held at the time and place as advertised, namely 6:00 p.m. July 11, 1995 in the Council Chambers, 276 Fourth Avenue, before the Redevelopment Agency/City Council and said hearing was thereafter closed. WHEREAS, based on the findings and recommendations of the Environmental Review Coordinator, the City Council and the Redevelopment Agency adopted the Mitigated Negative Declaration, Addendum and related documents issued on IS.95-03; t/--/tfS Resolution xxxx Page 2 NOW. THEREFORE. BE IT RESOLVED THATTHE REDEVELOPMENT AGENCY OFTHE CITY OF CHUlA VISTA does hereby find, determine, resolve, and order as follows: I. Incorooration of Adoption of Mitiaated Neaative Declaration and Addendum. The Redevelopment Agency does hereby adopt and incorporate herein Resolution No. / ~6C> of the Agency adopting the Mitigated Negative Declaration, Addendum and related documents for the project (15-95-03). II. Special Use Permit FindinQs. That the Redevelopment Agency makes the findings required by the City's rules and regulations for the issuance of the Special Use Permit, as hereinbelow set forth, and sets forth, thereunder, the evidentiary basis that permits the stated finding to be made. A. That the proposed use at the location is necessary or desirable to provide a service or facility which will contribute to the general well being of the neighborhood or the community. The establishment of a 36 unit commercial/residential mixed-use project will provide an innovative and unique development concept whereby residents may live and work at the same location, and the project and improvements will enhance what is an otherwise vacant and unused property, and will encourage the redevelopment as well as improvement of surrounding properties. B. That such use will not under the circumstances of the particular case. be detrimental the health, safety or general welfare of persons residing or working in the vicinity or injurious to property or improvements in the vicinity. The proposal as conditioned includes measures to avoid potential on and off site conflicts to ensure the highest level of compatibility between the commercial and residential components of the project, including the most integral and important component of the proposal which is that the operator of the commercial component of each unit shall also be the occupant of the residential component of that same unit. The site plan and building design will contribute significantly to the improvement of the site and surrounding areas. C. That the proposed use will comply with the regulations and conditions specified in the Municipal Code for such use. Compliance with all applicable conditions, codes and regulations shall be required prior to issuance of development permits and on a continuing basis thereafter. D. That the granting of this conditional use permit will not adversely affect the general plan of the City or the adopted plan of any government agency. The approval of this project as conditioned is consistent with City policies and the Chula Vista General Plan, the Southwest Redevelopment Plan and Implementation Plan. tj -14-~ Resolution xxxx Page 3 III. Conditional Grant of Permit: Conditions. The Redevelopment Agency hereby grants a Special Use Permit to Josef A. and Lenore S. Citron, doing business as Broadway Village Business Homes L.P. for the Broadway Business Home Project subject to the following conditions, whereby: 1. The operator of the commercial component of each unit shall also be the occupant of the residential component of that same unit, and this requirement shall be reflected in the deed restrictions and/or CC&R's for each of the lots/units. 2. Prior to the issuance of any zoning permit for the property, documentary evidence satisfactory to the City Zoning Administrator shall be submitted demonstrating that the operator of the commercial component is the occupant of the residential component of the same unit. 3. The commercial hours of operation shall be limited to the hours between 8:00 a.m. to 10:00 p.m. Monday through Friday and 8:00 a.m. to 6:00 p.m. Saturday and Sunday, and these shall be reflected in the deed restrictions and/or CC&R's for each of the lots/units. 4. The land uses listed in attached Exhibit A shall not be permitted, and these shall be reflected in the deed restrictions and/or CC&R's for each of the lots/units. 5. The project shall comply with all the requirements of the Chula Vista Uniform Fire and Building Codes to the satisfaction of the Fire Marshal and Director of Building and Housing respectively. 6. Commercial activities and operations, including storage of merchandise and pick- up and delivery of goods, shall be limited to the area designated for commercial use and shall not occur in the residential units. 7. Garages shall remain open and available for parking and shall not be not be utilized for commercial storage. 8. A minimum 6 ft. high masonry wall shall be established along the west property line. However, the wall height may be increased to a maximum of 10ft. providing the Design Review Committee, after receiving input from the westerly adjacent residents, determines that the additional height is necessary to preserve their privacy and buffer the residences from the activities associated with the proposed project. 9. All windows facing east on the four frontage units shall incorporate dual pane windows rated a minimum of STC.25. 10. A mechanical ventilation system capable of 2 air exchanges per hour shall be incorporated into all of the living units. 11. The operator/occupants of the units shall not park in the commercial parking lots. t-f -- / '-17 Resolution xxxx Page 4 12. If necessary, the project proponent shall provide the City with an easement over the project's parking, pedestrian walks and alley ways for traffic and parking enforcement purposes. 13. A copy of the deed restrictions and/or CC&R's shall be submitted for review and approval by the City Zoning Administrator prior to the recordation of the lots/units and prior to the issuance of building/construction permits. IV. Additional Terms and Provisions of Grant. A. This permit shall be subject to any and all new, modified, or deleted conditions imposed after adoption of this resolution to advance a legitimate governmental interest related to health, safety or welfare which City/Agency shall impose after advance written notice to the permittee and after the Cit/Agency has given to the permittee the right to be heard with regard thereto. However, the City/Agency, in exercising this reserved right/condition, may not impose a substantial expense or deprive the Permittee of a substantial revenue source which the Permittee cannot, in the normal operation of the use permitted, be expected to economically recover. B. This Special Use Permit shall be void and ineffective if the same is not utilized within one year from the date of this resolution in accordance with Section 19.14.260 of the Municipal Code. Failure to comply with any condition of approval and property deed restriction shall cause this permit to be reviewed by the City/Agency for additional conditions or revocation. V. Findings re Relation of Exaction to Impact of Project The Redevelopment Agency has individually and independently reviewed each of the exactions imposed on the applicant contained in this resolution, and hereby finds, in this case, that the exactions are imposed to mitigate an impact caused by the project and are reasonably related to the project and the extent and degree of exaction is in rough proportionality to the impact caused by said project. VI. A copy of this resolution shall be transmitted to the applicant. Presented by Approved as to form by ~~~ ~ -'~ - ~ uce- '. Boog ard ~ Agency Counsel ~ Chris Salomone Community Development Director (M:\sharedlattorney\BUSHOM-C.AESI Lf~ /4-f Broadway Home/Business Commercial/Residential Mixed Use Projea 760 Broadway PCC-95-23 lAND USES NOT PERMITTED Automobile repairs (major and Minor) Automobile stereo installation Animal hospitals Appliance repair (Major) Automobile rental Tire dealers Towing service Beer bars Drive-in restaurants Seating or take-out restaurants Night clubs Restaurantlbars Trailer rentals , 1- -/11 - . ~- ~~ This page Blank tf - ! 50 RESOLUTION JOINT RESOLUTION OF THE REDEVELOPMENT AGENCY AND THE CITY OF CHULA VISTA APPROVING A PRECISE PLAN FOR THE BROADWAY BUSINESS HOMES PROJECT AND A DISPOSITIONAND DEVELOPMENT AGREEMENT WITH BROADWAY VILLAGE BUSINESS HOMES loP. AND AUTHORIZING THE CHAIRMAN TO EXECUTE SAME WHEREAS. the Redevelopment Agency of the City of Chula Vista. a political subdivision of the State of California, "Agency" herein. is charged with the elimination of blighting influences in the City; and. WHEREAS. in conjunction with its responsibility to eliminate blight, the Agency has formed the Southwest Redevelopment Project Area. consisting of various non-contiguous project locations. one of which includes a certain designated area described as follows: A rectangular area of approximately 2.5 acres bounded on the north by the commercial land use known as Courtney Tires, on the east by Broadway. on the south by Moana Court Motel, and on the west by residential development, said parcel commonly known as 760 Broadway which is diagrammatically designated in Exhibit A ("Property"). attached hereto; and WHEREAS, on or about November 15, 1994. the Agency had become seriously concerned about the blighting influences located in and around said Property due to. the relocation of Fuller Ford from this site; and WHEREAS. Joelen Enterprises, now doing business as Broadway Village Business Homes L.P. ("Developer") has submitted a proposal for the redevelopment of the Property through the construction of a mixed use development known as the Broadway Business Homes Project ("Project"); and WHEREAS. the Agency approved an Exclusive Negotiation Agreement with Developer by Resolution 1412 on July 19, 1994 to negotiate a Disposition and Development Agreement embodying the terms of sale of the Property and development for the Project; and WHEREAS. a Precise Plan has been prepared for development of the Project which has been reviewed by the Design Review Committee and conditionally recommended for approval by the Agency; and WHEREAS, a Disposition and Development Agreement has been prepared which proposes the conditioned sale of the Property to the Developer; and WHEREAS. Health and Safety Code Section 33431 permits an Agency to lease or sell property without public bidding after a duly noticed public hearing; and WHEREAS, under the provisions of Health and Safety Code Section 33433, before any property of the Agency acquired in whole or in part, directly or indirectly, with tax increment monies is sold or leased for development pursuant to the redevelopment plan, the sale or lease ;/- ISl Resolution XXX X shall first be approved by the City Council after public hearing, duly called noticed and held in the manner required by law; and, WHEREAS. the Agency has caused to be prepared, and has made available to the public for public inspection and copy, the report containing the requirements of Section 33433, which report was entitled, "Health and Safety Code Section 33433 Report: Sale of Redevelopment Agency Property at 760 Broadway to Joelen Enterprises for development of the Broadway Business Homes Project", which by reference thereto is incorporated herein and maintained on file in the office of the City Clerk; and; WHEREAS, the 33431 and 33433 hearing was duly noticed in accordance with State law, and at said public hearing, pursuant to the requirements of Health and Safety Code Sections 33431 and 33433, the City and the Agency were called upon to approve the DDA involving the sale of property owned by the Agency; and, WHEREAS. the City Council and the Agency have considered all of the evidence submitted at the hearing including the staff report which is incorporated by reference. and the report on file in the Office of the Executive Director and the City Clerk prepared and filed pursuant to Health and Safety Code Section 33433; and WHEREAS, the Agency has made the determination that the Project will eliminate blight in and around the Property and is in the best interest of the public and conforms to the Southwest Redevelopment Project Implementation Plan approved pursuant to Health and Safety Section 33450; and, WHEREAS. the City Council has made the determination that the proposed consideration for the Property is not less than the fair reuse value at the use and with the covenants and conditions and development costs authorized under the sale; and, WHEREAS, the Environmental Review Coordinator has conducted an Initial Study, IS- 95-03, with Addendum of possible environmental impacts associated with the project. Based on the Initial Study, Addendum and comments thereon, the City Council and Agency concluded that there would be no significant environmental effects and, adopted the Mitigated Negative Declaration, Addendum and related documents issued on IS-95-03. NOW THEREFORE, THE REDEVELOPMENT AGENCY AND THE CITY OF THE CITY OF CHULA VISTA do hereby find, order, determine and resolve as follows: 1. City Council Resolution No.lJJ!i/and Redevelopment Agency Resolution No. /~~O adopting Mitigated Negative Declaration, Addendum and related documents issued on IS-95- 03 are hereby incorporated herein by this reference. 2. The Health and Safety Code Section 33433 Report was duly prepared and made available for public review in accordance with State law. 3. The 33431 and 33433 public hearings at or after which this resolution was adopted were duly noticed as to time and place in a newspaper of general circulation in the community for at least two successive weeks prior to the hearings, such public hearings were duly held, and any and all protests to the proposed sale and project were made and duly considered at J(-15?- Resolution XXXX such public hearings. 4. The Agency hereby determines that it is in the best interests of the community and the Agency and for the elimination of blight that the subject Property be sold to Developer without public bid. 5. The City Council hereby determines that the consideration for the Property is not less than fair reuse value at the use and with the covenants and conditions and development costs authorized by the sale; the sale for such consideration is necessary to effectuate the Redevelopment Plan; and the sale is therefore approved. 6. The Agency hereby determines that the proposed redevelopment of the site will assist in the elimination of blight within the Southwest Project Area. 7. The Precise Plan for the Broadway Business Homes Project is hereby approved in substantially the form presented subject to the conditions attached hereto as Attachment A. 8. The Disposition and Development Agreement between the Agency and Developer dated for the purposes of reference as of July 11, 1995 for the sale and development of the Property into the Project is hereby approved in substantially the form as presented. with such additions and clarifications as may be required by the City Attorney. in the City/Agency's interest. and the Chairman is hereby authorized to execute same. and the Executive Director is hereby authorized and directed to implement all of its terms and conditions. PRESENTED BY: APPROVED AS TO FORM BY: rJL~ ~ /" Chris Salomone Community Development Director M :\SHARED\A ITORNEY\BUSHOM-E.RES 4- f 53 EXHIBIT A DESIGN REVIEW COMMITTEE CONDITIONS OF APPROVAL A. Approval of this project shall be contingent upon approval of Conditional Use Permit PCC-95-23 and Rezone PCZ-95-A. B. All mitigation measures of Mitigated Negative Declaration 15-95-03 and Addendum shall be adhered to and shall become conditions of approval. C. Landscape and irrigation plans addressing a parking screening solution shall be submitted to the Planning Department for review and approval prior to or in conjunction with the building permit submittal package. D. The parallel tandem parking featured on all two story corner units shall be replaced with a standard size stall within each of the planters featured at the northwest and southwest corners of the parcel. E. A parking screening solution consisting of a screening wall, closely arranged groups of planting material or a combination of these two shall be provided along the street frontage wherever parking is exposed to the public right of way. F. Deleted. G. An 18" concrete curb/step out strip shall be installed On all planting strips adjacent to parking stalls. H. A 5 foot high masonry wall shall be maintained along the west property line. However, the wall height may be increased up to 10 feet subject to staff approval of final design and materials. I. All windows facing east on the four frontage units shall incorporate dual pane windows rated a minimum of 5TC-25. J. All units shall feature a mechanical ventilation system capable of 2 air exchanges per hour. K. All pedestrian walks within the commercial components and connections to the residential area shall be decorative type. Paving pattern, design and color shall be submitted to staff for review and approval. L. A comprehensive planned sign program shall be submitted to the Design Review Committee for consideration and approval. M. Trash enclosures for two 30 gallon cans shall be provided for each unit. N. All garage doors shall be equipped with automatic garage door openers. 1- /stf o. Additional trees shall be incorporated within the parking lots subject to staff review and approval. P. A detailed construction phasing plan showing adequate emergency vehicle access, sufficient parking to support the commercial retail operations, internal circulation landscaping and all the amenities for that portion of the project shall be submitted to the Planning Department prior to issuance of any building permit. Q. Freestanding signs shall be of a transparent material and relocated to the landscape area between the two driveways of each of the commercial parking lots. R. Trellis structures shall be retained as shown in the conceptual design drawings. [M:\HOMEICOMMDEVlKASSMANIEXHIDrr.A] +-)55 This page Blank t{ - 150 REDEVElOPMENT AGENCY AGENDA STATEMENT Item d..€ Meeting Date 7/11/95 ITEM TITLE: Resolution Waiving the consultant selection process and authorizing the Executive Director to execute a two-party agreement between the City of Chula Vista and Woodward-Clyde Consultants for Soil Testing and Remediation Consulting Services at 760 Broadway and appropriating funds therefor Community Development D1)~tor {< <; . Executive Directo~ bvJ~1 o -/ (4/5ths Vote: Yes No jLl Council Referral Number: SUBMITTED BY: REVIEWED BY: BACKGROUND: At its meeting of June 20, 1995, the Redevelopment Agency approved Resolution 1454 awarding a contract for demolition of the pavement and structures at the Agency-owned property located at 760 Broadway. This approval was based on information from a limited pre-demolition subsurface soils investigation conducted on the site. Demolition of the site will necessitate removal of contaminated soils. The demolition contractor is certified, and has agreed to excavate and stockpile the contaminated soils as a part of their original bid. However, it is necessary to have a qualified hazardous materials consultant present during demolition to identify the soils to be excavated and to test both the excavated soils and the soils remaining in place to ensure that all contaminated soils are removed prior to backfilling and grading of the site. A bid to perform the testing work in the most expeditious and cost efficient manner has been prepared and submitted to the City by Woodward-Clyde Consultants, the same firm that conducted the pre-demolition soil testing. Detail on the scope of work and ,costs for soil testing services is provided in this report. RECOMMENDATION: That the Agency approve the resolution waiving the consultant selection process and authorizing the Executive Director to execute two-party agreement between the City of Chula Vista and Woodward-Clyde Consultants, and appropriating funds therefor BOARDS/COMMISSIONS RECOMMENDATION: Not Applicable. DISCUSSION: Pre-demolition soil testing for the site revealed soil contamination beneath the pavement in 10 of the 30 locations tested. The materials encountered were non-hazardous petroleum hydrocarbons, and therefore are not regulated as hazardous wastes under the State Health and Safety Code and do not require cleanup oversight by regulatory agencies. However, proper removal and disposal of the materials is necessary to avoid a threat to public health q / /51 Page 2, Item Meeting Date 07/11/95 and safety, such as exposure of the material to surface or groundwater, which could trigger regulatory enforcement. To ensure proper removal and disposal, the City requires the services of a qualified consultant who is trained to identify and test potentially contaminated soils as demolition of the site occurs. This is especially important since it is possible that more significant contamination may exist on the site than was identified in the pre-demolition testing. Woodward-Clyde was selected to submit a bid based on their extensive knowledge of the site obtained through conducting the pre-demolition soil testing and through their previous research, site surveys and formulation of alternative strategies to' deal with potential contamination on the site. Based on their experience and on the extreme time constraints associated with the developer's needs making competitive bidding impractical, Woodward- Clyde has been selected without formal or competitive bidding. Woodward-Clyde has demonstrated their qualifications to the City through previous work on this and other projects. FISCAL IMPACT: The value of services to be provided by Woodward-Clyde is a fixed fee of $20,297 for the first phase of the contract which involves testing and assisting in removal of contaminated soils. Costs for subsequent disposal of contaminated soils (estimated to range between $14,000 and $21,000) have been included in the second phase of this scope of work but will not be commenced until the quantities of contaminated soils are known. It is currently proposed that all contaminated soils be stockpiled on the northwest corner of the site until a firm cost estimate can be made based on known quantities and that cost reported to the Agency prior to initiation of that second phase of work. Based on preliminary estimates of soil quantities, total costs to remove all contamination, assuming no significant new areas of contamination are encountered during demolition, are between $34,000 and $41,000 ($20,297 + $14,000 to $21,000). Previous expenditures by the agency for pre-demolition testing total $17,100. Execution of the subject agreement will result in a cumulative expenditure of $38,297 ($20,297 + $17,100) in consulting fees related to site contamination. Ultimate remediation will add between $14,000 and $21,000 to this total. The developer has agreed to pay up to $20,000 in costs to remediate soil contamination as follows: the first $10,000 of remediation costs would be paid by the developer on an ongoing basis as invoices are received from the consultant; the next $10,000 would be paid by the Agency from monies appropriated through the recommended action from the Southwest Project Area Professional Services Account. After that, any additional costs would be equally split between the developer and the Agency up to an additional $20,000. The Agency's share of that amount would also be paid from the professional services account which would be reimbursed for all expenditures related to this site from proceeds from the sale of the property. IBB\C:\WP51 \AGENCY\RA4S\FULLER-W.RA41 IJM\DI S K\FU LLER' 2. RA4 I q /' 15~ RESOLUTION RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA WAIVING THE CONSULTANT SELECTION PROCESS, AUTHORIZING THE EXECUTIVE DIRECTOR TO EXECUTE A TWO-PARTY AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND WOODWARD-CLYDE CONSULTANTS FOR SOIL TESTING AND REMEDIATION CONSULTING SERVICES A T760 BROADWAY, AND APPROPRIATING FUNDS THEREFOR WHEREAS, during the approximately forty years of operation of the Fuller Ford facility at 760 Broadway, hazardous and non-hazardous hydrocarbon compounds and were known to be used on the site; and, WHEREAS, the Redevelopment Agency of the City of Chula Vista, being the current owner of the site, approved Resolution 1454 authorizing demolition of existing buildings on the site to accommodate a currently proposed redevelopment project for the site; and, WHEREAS, Pre-demolition soil testing of the site has indicated the presence of contaminants in the soil that require remediation concurrent with demolition of the site; and, WHEREAS, Woodward-Clyde was selected as the Consultant for the demolition monitoring and remediation work without public bidding because of past experience with and special knowledge of the project and the need to complete the work expeditiously to meet the Developer's timeline; and, WHEREAS, the selected Consultant warrants and represents that they are experienced and staffed in a manner such that they are and can prepare and deliver the services required of Consultant to City within the time frames provided all in accordance with the terms and conditions of the Agreement on file in the Office of the Secretary to the Redevelopment Agency known as Document RACO-95-11. NOW THEREFORE, BE IT RESOLVED that the Redevelopment Agency of the City of Chula Vista does hereby find, determine, resolve and order as follows: 1. The consultant selection process for procurement of services identified in the subject Agreement is waived for the reasons set forth above which are incorporated herein by this reference 2. The Executive Director is authorized to execute the Two-Party Agreement between the City of Chula Vista and Woodward-Clyde Consultants for Soil Testing and Remediation Consulting Services at 760 Broadway. 3. Funds in the amount of $20,000 from the Southwest Project Area Professional Services Account #985-9850-5201 are hereby appropriated. PRESENTED BY: APPROVED AS TO FORM BY: CL~~- ~~, ce /1300 rd . Ageooy Atto,"ey Chris Salomone Community Development Director ISS\M;scd;sk #3\FUL-REM D .RES] ti--J59 This page Blank * __1100 / ~/6 Agreement between City of Chula Vista and Woodward-Clyde Consultants for Soil Testing and Remediation Consulting Services at 760 Broadway This agreement ("Agreement"), dated July 11; 1995 for the purposes of reference only, and effective as of the date last executed unless another date is otherwise specified in Exhibit A, Paragraph 1 is between the City-related entity as is indicated on Exhibit A, paragraph 2, as such ("City"), whose business form is set forth on Exhibit A, paragraph 3, and the entity indicated on the attached Exhibit A, paragraph 4, as Consultant, whose business form is set forth on Exhibit A, paragraph 5, and whose place of business and telephone numbers are set forth on Exhibit A, paragraph 6 ("Consultant"), and is made with reference to the following facts: Recitals Whereas, during the approximately forty years of operation of the Fuller Ford facility at 760 Broadway, hazardous and non- hazardous hydrocarbon compounds and were known to be used on the site; and, Whereas, the Redevelopment Agency of the City of Chula Vista, being the current owner of the site, approved Resolution 1454 authorizing demolition of existing buildings on the site to accommodate a currently proposed redevelopment project for the site; and, Whereas, Pre-demolition soil testing of the site has indicated the presence of contaminants in the soil that require remediation concurrent with demolition of the site; and, Whereas, a single bid to perform the testing has been solicited by the City in accordance with City purchasing procedures as the only practicable method of achieving completion of testing within the timeframe required by the developer; and, Whereas, the selected Consultant warrants and represents that they are experienced and staffed in a manner such that they are and can prepare and deliver the services required of Consultant to City within the time frames herein provided all in accordance with the terms and conditions of this Agreement; 2pty9 . wp November 2, Standard Form Two Party Agreement (Fourth Revision) 1993 Page 1 1../ - I~D A NOW, THEREFORE, BE IT RESOLVED that the City and Consultant do hereby mutually agree as follows: 1. Consultant's Duties A. General Duties Consultant shall perform all of the services described on the attached Exhibit A, Paragraph 7, entitled "General Duties"; and, B. Scope of Work and Schedule In the process of performing and delivering said "General Duties", Consultant shall also perform all of the services described in Exhibit A, Paragraph 8, entitled" Scope of Work and Schedule", not inconsistent with the General Duties, according to, and within the time frames set forth in Exhibit A, Paragraph 8, and deliver to City such Deliverables as are identified in Exhibit A, Paragraph 8, within the time frames set forth therein, time being of the essence of this agreement. The General Duties and the work and deliverables required in the Scope of Work and Schedule shall be herein referred to as the "Defined Services". Failure to complete the Defined Services by the times indicated does not, except at the option of the City, operate to terminate this Agreement. C. Reductions in Scope of Work City may independently, or upon request from Consultant, from time to time reduce the Defined Services to be performed by the Consultant under this Agreement. Upon doing so, City and Consultant agree to meet in good faith and confer for the purpose of negotiating a corresponding reduction in the compensation associated with said reduction. D. Additional Services In addition to performing the Defined Services herein set forth, City may require Consultant to perform additional consulting services related to the Defined Services ("Additional Services"), and upon doing so in writing, if they are within the scope of services offered by Consultant, Consultant shall perform same on a time and materials basis at the rates set forth in the "Rate Schedule" in Exhibit A, Paragraph 11 (C), unless a separate fixed fee is otherwise agreed upon. All compensation for Additional Services shall be paid monthly as billed. 2pty9.wp November 2, Standard Form Two Party Agreement (Fourth Revision) 1993 Page 2 t-f - 1~6 E. Standard of Care Consultant, in performing any services under this agreement, whether Defined Services or Additional Services, shall perform in a manner consistent with that level of care and skill ordinarily exercised by members of the profession currently practicing under similar conditions and in similar locations. F. Insurance Consultant represents that it and its agents, staff and subconsultants employed by it in connection with the Services required to be rendered, are protected against the risk of loss by the following insurance coverages, in the following categor- ies, and to the limits specified, policies of which are issued by Insurance Companies that have a Best's Rating of "A, Class V" or better, or shall meet with the approval of the City: Statutory Worker's Compensation Insurance and Employer's Liability Insurance coverage in the amount set forth in the attached Exhibit A, Paragraph 9. Commercial General Liability Insurance including Business Automobile Insurance coverage in the amount set forth in Exhibit A, Paragraph 9, combined single limit applied separately to each project away from premises owned or rented by Consultant, which names City as an Additional Insured, and which is primary to any policy which the City may otherwise carry ("Primary Coverage"), and which treats the employees of the City in the same manner as members of the general public (Severability of Interest). Errors and Omissions insurance, in the amount set forth in Exhibit A, Paragraph 9, unless Errors and Omissions coverage is included in the General Liability policy. G. Proof of Insurance Coverage. (1) Certificates of Insurance. Consultant shall demonstrate proof of coverage herein required, prior to the commencement of services required under this Agreement, by delivery of Certificates of Insurance demonstrating same, and further indicating that the policies may not be canceled without at least thirty (30) days written notice to the Additional Insured. 2pty9.wp November 2, Standard Form Two Party Agreement (Fourth Revision) 1993 Page 3 ;.j _ /(PO ~ (2) Policy Endorsements Required. In order to demonstrate the Additional Insured Coverage, Primary Coverage and Severability of Interest Coverage required under Consultant's Commercial General Liability Insurance Policy, Consultant shall deliver a certificate of insurance to the City demonstrating same, which shall be reviewed and approved by the Risk Manager. H. Security for Performance. (1) Performance Bond. In the event that Exhibit A, at Paragraph 19, indicates the need for Consultant to provide a Performance Bond (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Performance Bond"), then Consultant shall provide to the City a performance bond by a surety and in a form and amount satisfactory to the Risk Manager or City Attorney which amount is indicated in the space adjacent to the term, "Performance Bond", in said Paragraph 19, Exhibit A. (2) Letter of Credit. In the event that Exhibit A, at Paragraph 19, indicates the need for Consultant to provide a Letter of Credit (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Letter of Credit"), then Consultant shall provide to the City an irrevocable letter of credit callable by the City at their unfettered discretion by submitting to the bank a letter, signed by the City Manager, stating that the Consultant is in breach of the terms of this Agreement. The letter of credit shall be issued by a bank, and be in a form and amount satisfactory to the Risk Manager or City Attorney which amount is indicated in the space adjacent to the term, "Letter of Credit", in said Paragraph 19, Exhibit A. (3) Other Security In the event that Exhibit A, at Paragraph 19, indicates the need for Consultant to provide security other than a Performance Bond or a Letter of Credit (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Other Security"), then Consultant shall provide to the City such other security therein listed in a form and amount satisfactory to the Risk Manager or City Attorney. 2pty9.wp November 2, Standard Form Two Party Agreement 1993 (Fourth Revision) Page 4 1- I &,D b I. Business License consultant agrees to obtain a business license from the City and to otherwise comply with Title 5 of the Chula Vista Municipal Code. 2.. Duties of the City A. Consultation and Cooperation City shall regularly consult the Consultant for the purpose of reviewing the progress of the Defined Services and Schedule therein contained, and to provide direction and guidance to achieve the objectives of this agreement. The City shall permit access to its office facilities, files and records by Consultant throughout the term of the agreement. In addition thereto, City agrees to provide the information, data, items and materials set forth on Exhibit A, Paragraph 10, and with the further understanding that delay in the provision of these materials beyond 30 days after authorization to proceed, shall constitute a basis for the justifiable delay in the Consultant's performance of this agreement. B. Compensation Upon receipt of a properly prepared billing from Consultant submitted to the City periodically as indicated in Exhibit A, Paragraph 18, but in no event more frequently than monthly, on the day of the period indicated in Exhibit A, Paragraph 18, City shall compensate Consultant for all services rendered by Consult- ant according to the terms and conditions set forth in Exhibit A, Paragraph 11, adjacent to the governing compensation relationship indicated by a "checkmark" next to the appropriate arrangement, subject to the requirements for retention set forth in paragraph 19 of Exhibit A, and shall compensate Consultant for out of pocket expenses as provided in Exhibit A, Paragraph 12. All billings submitted by Consultant shall contain sufficient information as to the propriety of the billing to permit the City to evaluate that the amount due and payable thereunder is proper, and shall specifically contain the City's account number indicated on Exhibit A, Paragraph 18 (C) to be charged upon making such payment. 3. Administration of Contract Each party designates the individuals ("Contract Administrators") indicated on Exhibit A, Paragraph 13, as said party's contract administrator who is authorized by said party to represent them in the routine administration of this agreement. 2pty9.wp November 2, Standard Form Two Party Agreement 1993 (Fourth Revision) Page 5 t-f - JIoD E 4. Term. This Agreement shall terminate when the Parties have complied with all executory provisions hereof. 5. Liquidated Damages The provisions of this section apply if a Liquidated Damages Rate is provided in Exhibit A, Paragraph 14. It is acknowledged by both parties that time is of the essence in the completion of this Agreement. It is difficult to estimate the amount of damages 'resulting from delay in per- formance. The parties have used their judgment to arrive at a reasonable amount to compensate for delay. Failure to complete the Defined Services within the allotted time period specified in this Agreement shall result in the following penalty: For each consecutive calendar day in excess of the time specified for the completion of the respective work assignment or Deliverable, the consultant shall pay to the City, or have withheld from monies due, the sum of Liquidated Damages Rate provided in Exhibit A, Paragraph 14 ("Liquidated Damages Rate") . Time extensions for delays beyond the consultant's control, other than delays caused by the City, shall be requested in writing to the City's Contract Administrator, or designee, prior to the expiration of the specified time. Extensions of time, when granted, will be based upon the effect of delays to the work and will not be granted for delays to minor portions of work unless it can be shown that such delays did or will delay the progress of the work. 6. Financial Interests of Consultant A. Consultant is Designated as an FPPC Filer. If Consultant is designated on Exhibit A, Paragraph 15, as an "FPPC filer", Consultant is deemed to be a "Consultant" for the purposes of the Political Reform Act conflict of interest and disclosure provisions, and shall report economic interests to the City Clerk on the required Statement of Economic Interests in such reporting categories as are specified in Paragraph 15 of Exhibit A, or if none are specified, then as determined by the City Attorney. 2pty9.wp November 2, Standard Form Two Party Agreement (Fourth Revision) 1993 Page 6 q _ jloOF B. Decline to Participate. Regardless of whether Consultant is designated as an FPPC Filer, Consultant shall not make, or participate in making or in any way attempt to use Consultant's position to influence a governmental decision in which Consultant knows or has reason to know Consultant has a financial interest other than the compensation promised by this Agreement. C. Search to Determine Economic Interests. Regardless of whether Consultant is designated as an FPPC Filer, Consultant warrants and represents that Consultant has diligently conducted a search and inventory of Consultant's economic interests, as the term is used in the regulations promulgated by the Fair Political Practices Commission, and has determined that Consultant does not, to the best of Consultant's knowledge, have an economic interest which would conflict with Consultant's duties under this agreement. D. Promise Not to Acquire Conflicting Interests. Regardless of whether Consultant is designated as an FPPC Filer, Consultant further warrants and represents that Consultant will not acquire, obtain, or assume an economic interest during the term of this Agreement which would constitute a conflict of interest as prohibited by the Fair Political Practices Act. E. Duty to Advise of Conflicting Interests. Regardless of whether Consultant is designated as an FPPC Filer, Consultant further warrants and represents that Consultant will immediately advise the City Attorney of City if Consultant learns of an economic interest of Consultant's which may result in a conflict of interest for the purpose of the Fair Political Practices Act, and regulations promulgated thereunder. F. Specific Warranties Against Economic Interests. Consultant warrants and represents that neither Consultant, nor Consultant's immediate family members, nor Consultant's employees or agents ("Consultant Associates") presently have any interest, directly or indirectly, whatsoever in any property which may be the subject matter of the Defined Services, or in any property within 2 radial miles from the exterior boundaries of any property which may be the subject matter of the Defined Services, ("Prohibited Interest"), other than as listed in Exhibit A, Paragraph 15. 2pty9.wp November 2, Standard Form Two Party Agreement (Fourth Revision) 1993 Page 7 t-f - {1dJ &- Consultant further warrants and represents that no promise of future employment, remuneration, consideration, gratuity or other reward or gain has been made to Consultant or Consultant Associates in connection with Consultant's performance of this Agreement. Consultant promises to advise City of any such promise that may be made during the Term of this Agreement, or for 12 months thereafter. Consultant agrees that Consultant Associates shall not acquire any such Prohibited Interest within the Term of this Agreement, or for 12 months after the expiration of this Agreement, except with the written permission of City. Consultant may not conduct or solicit any business for any party to this Agreement, or for any third party which may be in conflict with Consultant's responsibilities under this Agreement, except with the written permission of City. 7. Hold Harmless Consultant shall defend, indemnify, protect and hold harmless the City, its elected and appointed officers and employees, from and against all claims for damages, liability, cost and expense (including without limitation attorneys' fees) to the extent arising out of the negligent errors, omissions, or willful misconduct of the Consultant, or any agent or employee, subcontractors, or others in connection with the execution of the work covered by this Agreement, except for those claims arising from the negligence or willful conduct of the City, its officers, or employees. Consultant's indemnification shall include any and all costs, expenses, attorneys' fees and liability incurred by . the City, its officers, agents, or employees in defending against such claims, whether the same proceed to judgment or not. Further, Consultant at its own expense shall, upon written request by the City, defend any such suit or action brought against the City, its officers, agents, or employees. Consult- ants' indemnification of City shall not be limited by any prior or subsequent declaration by the Consultant. 8. Termination of Agreement for Cause If, through any cause, Consultant shall fail to fulfill in a timely and proper manner Consultant's obligations under this Agreement, or if Consultant shall violate any of the covenants, agreements or stipulations of this Agreement, City shall have the right to terminate this Agreement by giving written notice to Consultant of such termination and specifying the effective date thereof at least five (5) days before the effective date of such termination. In that event, all finished or unfinished documents, data, studies, surveys, drawings, maps, reports and other 2pty9.wp November 2, Standard Form Two Party Agreement (Fourth Revision) 1993 Page 8 ~-ICo6H materials prepared by Consultant shall, at the option of the City, become the property of the City, and Consultant shall be entitled to receive just and equitable compensation for any work satisfactorily completed on such documents and other materials up to the effective date of Notice of Termination, not to exceed the amounts payable hereunder, and less any damages caused City by Consultant's breach. 9. Errors and Omissions In the event that the City Administrator determines that the Consultants' negligence, errors, or omissions in the performance of work under this Agreement has resulted in expense to City greater than would have resulted if there were no such negligence, errors, omissions, Consultant shall reimburse City for any reasonable expenses incurred by the City. Nothing herein is intended to limit City's rights under other provisions of this agreement. 10. Termination of Agreement for Convenience of City City may terminate this Agreement at any time and for any reason, by giving specific written notice to Consultant of such termination and specifying the effective date thereof, at least thirty (30) days before the effective date of such termination. In that event, all finished and unfinished documents and other materials described hereinabove shall, at the option of the City, become City's sole and exclusive property. If the Agreement is terminated by City as provided in this paragraph, Consultant shall be entitled to receive just and equitable compensation for any satisfactory work completed on such documents and other materials to the effective date of such termination. Consultant hereby expressly waives any and all claims for damages or compensation arising under this Agreement except as set forth herein. 11. Assignability The services of Consultant are personal to the City, and Consultant shall not assign any interest in this Agreement, and shall not transfer any interest in the same (whether by assignment or novation), without prior written consent of City. City hereby consents to the assignment of the portions of the Defined Services identified in Exhibit A, Paragraph 17 to the subconsultants identified thereat as "Permitted Subconsultants". 2pty9.wp November 2, Standard Form Two Party Agreement (Fourth Revision) 1993 Page 9 4-ltcDT l2. O~~ership, Publication, Reproduction and Use of Material All reports, studies, information, data, statistics, forms, designs, plans, procedures, systems and any other materials or properties produced under this Agreement shall be the sole and exclusive property of City. No such materials or properties produced in whole or in part under this Agreement shall be. subject to private use, copyrights or patent rights by Consultant in the United States or in any other country without the express written consent of City. City shall have unrestricted authority to publish,disclose (except as may be limited by the provisions of the Public Records Act), distribute, and otherwise use, copyright or patent, in whole or in part, any such reports, studies, data, statistics, forms or other materials or properties produced under this Agreement. 13. Independent Contractor City is interested only in the results obtained and Consultant shall perform as an independent contractor with sole control of the manner and means of performing the services required under this Agreement. City maintains the right only to reject or accept Consultant's work products. Consultant and any of the Consultant's agents, employees or representatives are, for all purposes under this Agreement, an independent contractor and shall not be deemed to be an employee of City, and none of them shall be entitled to any benefits to which City employees are entitled including but not limited to, overtime, retirement benefits, worker's compensation benefits, injury leave or other leave benefits. Therefore, City will not withhold state or federal income tax, social security tax or any other payroll tax, and Consultant shall be solely responsible for the payment of same and shall hold the City harmless with regard thereto. 14. Administrative Claims Requirements and Procedures No suit or arbitration shall be brought arising out of this agreement, against the City unless a claim has first been presented in writing and filed with the City and acted upon by the City in accordance with the procedures set forth in Chapter 1.34 of the Chula Vista Municipal Code, as same may from time to time be amended, the provisions of which are incorporated by this reference as if fully set forth herein, and such policies and procedures used by the City in the implementation of same. Upon request by City, Consultant shall meet and confer in good faith with City for the purpose of resolving any dispute over the terms of this Agreement. 2pty9.wp November 2, Standard Form Two Party Agreement (Fourth Revision) 1993 Page 10 1 -llooJ 15. Attorney's Fees Should a dispute arising out of this Agreement result in litigation, it is agreed that the prevailing party shall be entitled to recover all reasonable costs incurred in the defense of the claim, including costs and attorney's fees. 16. Statement of Costs In the event that Consultant prepares a report or document, or participates in the preparation of a report or document in performing the Defined Services, Consultant shall include, or cause the inclusion of, in said report or document, a statement of the numbers and cost in dollar amounts of all contracts and subcontracts relating to the preparation of the report or document. . 17. Miscellaneous A. Consultant not authorized to Represent City Unless specifically authorized in writing by City, Consult- ant shall have no authority to act as City's agent to bind City to any contractual agreements whatsoever. B. Consultant is Real Estate Broker and/or Salesman If the box on Exhibit A, Paragraph 16 is marked, the Consultant and/or their principals is/are licensed with the State of California or some other state as a licensed real estate broker or salesperson. Otherwise, Consultant represents that neither Consultant, nor their principals are licensed real estate brokers or salespersons. C. Notices All notices, demands or requests provided for or permitted to be given pursuant to this Agreement must be in writing. All notices, demands and requests to be sent to any party shall be deemed to have been properly given or served if personally served or deposited in the United States mail, addressed to such party, postage prepaid, registered or certified, with return receipt requested, at the addresses identified herein as the places of business for each of the designated parties. D. Entire Agreement This Agreement, together with any other written document referred to or contemplated herein, embody the entire Agreement and understanding between the parties relating to the subject 2pty9.wp November 2, Standard Form Two Party Agreement (Fourth Revision) 1993 Page 11 J-/- - /too K matter hereof. Neither this Agreement nor any provision hereof may be amended, modified, waived or.discharged except by an instrument in writing executed by the party against which enforcement of such amendment, waiver or discharge is sought. E. Capacity of Parties Each signatory and party hereto hereby warrants and represents to the other party that it has legal authority and capacity and direction from its principal to enter into this Agreement, and that all resolutions or other actions have been taken so as to enable it to enter into this Agreement. F. Governing Law/Venue This Agreement shall be governed by and construed in accordance with the laws of the State of California. Any action arising under or relating to this Agreement shall be brought only in the federal or state courts located in San Diego County, State of California, and if applicable, the City of Chula Vista, or as close thereto as possible. Venue for this Agreement, and performance hereunder, shall be the City of Chula Vista. 2pty9.wp Standard Form Two Party Agreement (Fourth Revision) November 2, 1993 Page 12 ~_I&{)L JUL-1LJ-t1~ j"ivi'l lU;:J:J C!TY OF CHULA V I STA FAX NU 6195855612 P,14 " ....' . , ':;',';, ".':> r~:~ ,;~~.: 9~~' ." i:'f::. ~..,. Signature Page to Agreement between City of Chula Vista and Woodward-Clyde Consultants for Soil Testing Services at 760 Broadway IN WITNESS WHEREOF, City and Agreement thereby indicating that . same, and indicate their full and 'I;l':;~;~'t~~,.. '. . ,:."..".""Dated: , 1995 ,', .;. Consultant have executed this they have read and understood complete consent to its terms: City of Chula Vista by: Shirley Horton, Mayor/Chair !. .. Approved as to form: j. ,:' -.j; Dated: 11,,/.,< By: f~~~f~' . tt.~.,',. Exhibit List to Agreement {?,...:,~:. ) Exhibit A. 2pty9 . wp November 2, Standard Form Two Party Agreement (Fourth Revision) 1993 Page 13 ;J ~ Ift,OM Exhibit A to Agreement between City of Chula Vista and Woodward-Clyde Consultants 1. Effective Date of Agreement: 2. City-Related Entity: () City of Chula Vista, a municipal chartered corporation of the State of California (X) Redevelopment Agency of the City of Chula Vista, a political subdivision of the State of California () Industrial Development Authority of the City of Chula Vista, a () Other: , a ("City") 3. Place of Business for City: Redevelopment Agency of the City of Chula Vista, 276 Fourth Avenue, Chula Vista, CA 91910 4. Consultant: Woodward-Clyde Consultants 5. Business Form of Consultant: ( ) Sole Proprietorship ( ) Partnership (X) Corporation 6. Place of Business, Telephone and Fax Number of Consultant: Sunroad Plaza 3, Suite 1000 1615 Murray Canyon Road San Diego, California 92108 Voice Phone (619) 294-9400 Fax Phone (619) 293-7920 2PTY9-A.wp November 2, 1993 Exhibit A to Standard Form Agreement Page 14 ;j_/(PDN 7. General Duties: Consultant shall perform soil testing and analysis services pursuant to ultimate disposition of all contaminated soils found on the site, as revealed through the demolition of structures and pavement on the site. If City so advises Consultant in writing, Consultant shall take all necessary actions, as prescribed in Item 8. A. to supervise removal and disposal of contaminated soils. 8. Scope of Work and Schedule: A. Detailed Scope of Work: Consultant shall perform the following tasks: Update site-specific health and safety plan in accordance with all OSHA requirements Coordinate and mobilize all personnel and subcontractors for performance of work within the timeframes of site demolition and coordinate with the site demolition contractor to integrate testing and excavation with site demolition activities Consultant shall maintain a field observer on site during removal of hydraulic hoists, floor drains and surface demolition in the vicinities of the above- ground storage tanks and compressor area. During this phase of work, Consultant shall identify all soils to be excavated by the demolition contractor (as identified by staining and odor) and shall collect soil samples after excavation to verify that all contaminated soils have been removed. Consultant shall monitor and report to City on an ongoing basis the likely cost of disposal of contaminated soils on the site. Consultant shall immediately notify the City in writing if at any time during performance of the scope of services, it determines that the cost for disposal of contaminated soils is likely to exceed $20,000. Testing of soil samples shall be performed by Consultant on site using a mobile lab unit. Testing shall occur over a five day period and shall employ EPA method 418.1 to analyze for Total Recoverable Petroleum Hydrocarbons (TRPH). For any samples that exceed laboratory detection limits (lOmg/kg), Consultant shall identify all additional excavation required in the area 2PTY9-A.wp November 2, 1993 Exhibit A to Standard Form Agreement Page 15 Jr. /0D 0 where the sample was taken. This scope of services covers laboratory analysis for TRPH of a total of one hundred forty (140) soil sampleS using the mobile lab, and for aromatic volatile organic compounds: (VOC) by EPA Methods 8010/8020 of up to ten (10) samples using an offsite lab. Consultant shall conduct additional off site laboratory analyses of three (3) soil samples to characterize stockpiled soils following excavation. These analyses shall include screening for Title 22 metals, total organic halogens (TOX) by EPA method 9020, TRPH and BTEX by EPA method 8020. Consultant shall provide a written report of findings at the conclusion of all testing work and shall include an estimate of the quantity of stockpiled contaminated soils and recommendations for ultimate disposal. Consultant shall provide in their report representations'as to the accuracy of the data presented and to the conclusion that, upon completion of the scope of work defined in this Agreement, the site will be free of known contamination, with the exception of stockpiled material, based on Consultant's best professional judgement. These representations shall also be made assignable to Broadway Village Business Homes, L.P., the potential purchaser of the property. Upon completion of all testing and stockpiling of contaminated soils, Consultant shall provide a written estimate of contaminated soil volume. If City advises Consultant to do so, upon receiving written direction from the City, Consultant shall dispose of stockpiled contaminated soils from the site to a City approved facility. Consultant acknowledges and agrees that City is under no obligation to engage Consultant for the disposal work and City reserves the right, in its sole discretion: (1) not to have such work completed at all, or (2) to hire an alternate contractor to perform such work at a lesser cost. City shall sign all manifests of contaminated soil. Consultant shall not be considered to be generator or owner of the material and City shall indemnify and hold harmless Consultant against all claims predicated upon such ownership. 2PTY9-A.wp November 2, 1993 Exhibit A to Standard Form Agreement Page 16 ;f - IIc1J f B. Date for Commencement of Consultant Services: (X) Same as Effective Date of Agreement ( ) Other: C. Dates or Time Limits for Delivery of Deliverables: Deliverable No.1: Testing and stockpiling of soils from 100% of the suspected areas of contamination and delivery of a written report of findings within 30 days after completion of all testing. Deliverable No.2: Removal of all stockpiled contaminated soils and transport to an acceptable disposal facility D. Date for completion of all Consultant services: 9. Insurance Requirements: (X) Statutory Worker's Compensation Insurance (X) Employer's Liability Insurance coverage: $1,000,000. (X) Commercial General Liability Insurance: $1,000,000. () Errors and Omissions insurance: None Required (included in Commercial General Liability coverage) . (X) Errors and Omissions Insurance: $250,000 (not included in Commercial General Liability coverage) . 10. Materials Required to be Supplied by City to Consultant: Phase I Site Assessment Site demolition bid specifications 11. Compensation: A. ( ) Single Fixed Fee Arrangement. For performance of all of the Defined Services by Consultant as herein required, City shall pay a single fixed fee in the amounts and at the times or milestones or for the Deliverables set forth below: Single Fixed Fee Amount: 2PTY9-A.wp November 2, 1993 Exhibit A to Standard Form Agreement Page 17 J--j-_llDQ B. (X) Phased Fixed Fee Arrangement. For the performance of each phase or portion of the Defined Services by Consultant as are separately identified below, City shall pay the fixed fee associated with each phase of Services, in the amounts and at the times or milestones or Deliverables set forth . Consultant shall not commence Services under any Phase, and shall not be entitled to the compensation for a Phase, unless City shall have issued a notice to proceed to Consultant as to said Phase. Each Phase is a distinct severable component of this Agreement Phase Fee for Said Phase 1. Completion of all testing and stockpiling of all contaminated soils on the site $20,297 2. Removal of all stockpiled contaminated soils $63/ton of California- defined non-hazardous contaminated material c. () Hourly Rate Arrangement For performance of the Defined Services by Consultant as herein required, City shall pay Consultant for the productive hours of time spent by Consultant in the performance of said Services, at the rates or amounts set forth in the Rate Schedule hereinbelow according to the following terms and conditions: (1) () Not-to-Exceed Limitation on Time and Materials Arrangement Notwithstanding the expenditure by Consultant of time and materials in excess of said Maximum Compensation amount, Consultant agrees that Consultant will perform all of the Defined Services herein required of Consultant for $ including all Materials, and other "reirnbursables" ("Maximum Compensation") . (2) ( ) Limitation without Further Authorization on Time and Materials Arrangement 2PTY9-A.wp November 2, 1993 Exhibit A to Standard Form Agreement Page 18 4 ~ IIoD R At such time as Consultant shall have incurred time and materials equal to ("Authorization Limit"), Consultant shall not be entitled to any additional compensation without further authorization issued in writing and approved by the City. Nothing herein shall preclude Consultant from providing additional Services at Consultant's own cost and expense. Rate Schedule Category of Employee of Consultant Name Hourly Rate Hourly rates may increase by 6% for services rendered after [month], 19 ,if delay in providing services is caused by City. 11. Materials Reimbursement Arrangement For the cost of out of pocket expenses incurred by Consultant in the performance of services herein required, City shall pay Consultant at the rates or amounts set forth below: () None, the compensation includes all costs. Cost or Rate ( Reports, not to exceed $ ( Copies, not to exceed $ ( Travel, not to exceed $ ( Printing, not to exceed $ ( Postage, not to exceed $ ( Delivery, not to exceed $ ( Long Distance Telephone Charges, not to exceed $ Other Actual Identifiable Direct Costs: , not to exceed $ , not to exceed $ 2PTY9-A.wp November 2, 1993 Exhibit A to Standard Form Agreement Page 19 t-} -f t,o S 12. Contract Administrators: City: Joe Monaco, Environmental Projects Manager Consultant: Mike Snyder, Vice President 13. Liquidated Damages Rate: ( ) $ per day. ( ) Other: 14. Statement of Economic Interests, Consultant Reporting Categories, per Conflict of Interest Code: (X) Not Applicable. Not an FPPC Filer. ( ) FPPC Filer Category No.1. Investments and sources of income. Category NO.2. Interests in real property. Category No. property and regulatory, department. 3. Investments, interest in real sources of income subject to the permit or licensing authority of the Category No.4. Investments in business entities and sources of income which engage in land development, construction or the acquisition or sale of real property. Category No.5. Investments in business entities and sources of income of the type which, within the past two years, have contracted with the City of Chula Vista (Redevelopment Agency) to provide services, supplies, materials, machinery or equipment. Category No.6. Investments in business entities and sources of income of the type which, within the past two years, have contracted with the designated employee's department to provide services, supplies, materials, machinery or equipment. Category No.7. Business positions. 2PTY9-A.wp November 2, 1993 Exhibit A to Standard Form Agreement Page 20 tf ~/(p()7 ( ) List "Consultant Associates" interests in real property within. 2 radial miles of Project property, if any: 15. ) Consultant is Real Estate Broker and/or Salesman 16. Permitted Subconsultants: Analytical Technologies, Inc. 17. Bill Processing: A. Consultant's Billing to be submitted for the following period of time: (X) Monthly ( ) Quarterly ( ) Other: B. Billing: Day of the Period for submission of Consultant's (X) First of the Month ( ) 15th Day of each Month ( ) End of the Month ( ) Other: C. City's Account Number: 18. Security for Performance Performance Bond, $ Letter of Credit, $ Other Security: Type: Amount: $ Retention. If this space is checked, then notwithstanding other provisions to the contrary requiring the payment of compensation to the Consultant sooner, the City shall be entitled to retain, at their option, either the following "Retention Percentage" or 2PTY9-A.wp November 2, 1993 Exhibit A to Standard Form Agreement Page 21 H - I toO II "Retention Amount" until the City determines that the Retention Release Event, listed below, has occurred: ( ) Retention Percentage: ~ ( ) Retention Amount: $ Retention Release Event: ( ) Completion of All Consultant Services ( ) Other: 2PTY9-A.wp November 2, 1993 Exhibit A to Standard Form Agreement Page 22 4 - I to6 J DISPOSITION AND DEVELOPMENT AGREEMENT by and between REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA and BROADWAY VILLAGE BUSINESS HOMES, L.P. THIS SECOND DRAFT VERSION OF THE DDA IS BEING DELIVERED SUBJECT TO FINAL REVIEW BY AGENCY COUNSEL. Ater negotiations this week, this document was received early Friday afternoon from the developer's attorney. It is currently contemplated that the final document, with Agency Counsel's summary/analysis, will be presented at the July 11 meeting, or sooner, if possible. ;/ -/10/ This page Blank q - /10 y DISPOSITION AND DEVELOPMENT AGREEMENT by and between REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA and AGENCY, BROADWAY VILLAGE BUSINESS HOMES, L.P., J-j - /~3 DEVELOPER July , ..' , 1995 This Page Blank if -/~f DISPOSITION AND DEVELOPMENT AGREEMENT THIS AGREEMENT is entered into effective as of , 1995, by and between the REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA (the "Aqencv") and BROADWAY VILLAGE BUSINESS HOMES, L.P., a California limited partnership (the "Developer"). The Agency and the Developer agree as follows: RECITALS A. The City Council of the City of Chula Vista ("Citv") has established the Agency and has approved and adopted a redevelopment plan for a redevelopment project known as the Southwest Redevelopment Project by its adoption of Ordinance No. 2720 on , November 27, 1990, pursuant to the provisions of Sections 33000 et seq. of the California Health and Safety Code ("California Communi tv Redevelopment Law"). B. The Agency is undertaking a program, in the interest of health, safety and general welfare of the people of the City pursuant to its authority under the California Community Redevelopment Law, for the redevelopment, replanning and redesign of blighted areas within the Southwest Redevelopment Project area which are characterized by stagnant, improperly utilized and unproductive land which requires redevelopment. C. The Agency is desirous of carrying out the redevelopment plan for the Southwest Redevelopment Project area by providing for the development of certain real property within the project area more particularly described in Section 1.4 of this Agreement ("Site"). The Site is comprised of approximately gross acres of land located within the Southwest Redevelopment Project area and within the City. The Site is currently owned by the Agency. D. In furtherance of the Agency's program to provide for the development of the Site, the Agency entered into a Exclusive Negotiation Agreement pertaining to the Site by and between the Agency and Developer. The Exclusive Negotiation Agreement became effective as of E. The Agency has determined that the provisions of this Agreement will make feasible the redevelopment of the Site by the Developer in accordance with the purposes set forth in the Exclusive Negotiation Agreement and that such development will stimulate development of the remainder of the Southwest Redevelopment Project area and is in the best interests of the taxpayers and residents of the City and will otherwise promote the public health, safety and general welfare of City residents and is in accordance with federal, state and local laws and regulations. p,\9\9484\46565\Trans\DispA9r2.060 x 4- - ltoS F. This Agreement is being processed concurrently with a Rezone, Special Use Permit, Precise Plan and Mitigated Negative Declaration to develop the project proposed by oeveloper. G. The Agency finds that the implementation of this Agreement will assist in the elimination of blight, is consistent with the implementation of the redevelopment plan, and the consideration is not less than the fair reuse value at the use and with the covenants and conditions and development costs authorized by the sale described in this Agreement. 1. SUBJECT OF AGREEMENT 1.1 Purpose of the Aqreement The purpose of this Agreement is to assist effectuation the Redevelopment Plan for the Southwest Redevelopment Project area in the City of Chula Vista by providing for the disposition and development of the hereinafter defined Site. The development of the Site pursuant to this Agreement, and the fulfillment generally of this Agreement, are in the vital and best interests of the City of Chula Vista and the health, safety, morals, and welfare of its residents, and in accord with the public purposes and provisions of applicable federal, state, and local laws and requirements. 1.2 The Redevelopment Plan This Agreement is subject to the prov~s~ons of the Redevelopment Plan for the Southwest Redevelopment Project area (which was approved and adopted on November 27, 1990 by the City Council of the City of Chula Vista by Ordinance No. 2720 (the "Redevelopment Plan"). The Redevelopment Plan is incorporated herein by reference and made a part hereof as though fully set forth herein. Any amendments hereafter to the Redevelopment Plan (as so approved and adopted) which change the uses or development permitted on the Site as proposed in this Agreement, or otherwise change the restrictions or controls that apply to the Site, and which materially and adversely affect Developer's ability to develop the Site as contemplated by this Agreement, shall require the written consent of the Developer. Amendments to the Redevelopment Plan which do not materially or adversely affect Developer's ability to develop the Site as contemplated by this Agreement and/or which apply to other property in the Southwest Redevelopment Project area shall not require the consent of the Developer. . 1.3 The Redevelopment proiect Area The Southwest Redevelopment Project area is located in the Ci ty of Chula Vista, California (the "Ci tv"). The exact boundaries p,\9\9484\46565\Trans\DispA9r2.D6D ~ 4- - { ~io of the Redevelopment Project area are specifically and legally described in the Redevelopment Plan for such Redevelopment Project. 1.4 The Site The "Site" includes that portion of the Southwest Redevelopment Project area located at 760 Broadway, illustrated and designated on the "Site Map" which is incorporated herein and attached to this Agreement as Attachment No. 1 and as more precisely described in the "Legal Description" which is incorporated herein and attached hereto as Attachment No. 1.A. 1.5 Parties to the Aqreement (a) The Aqency. The "Aqency" is a public body, corporate and politic, exercising governmental functions and powers, and organized and existing under Chapter 2 of the Community Redevelopment Law of the state of California. The principal office of the Agency is located at 276 Fourth Avenue, Chula Vista, California 91910. "Aaencv" Redevelopment Agency of any assignee of or responsibilities. as used the City successor in this Agreement includes of Chula Vista, California, to its rights, powers the and and (b) Developer. The "Developer" is Broadway Village Business Homes, L. P., a California limited partnership, whose general partner is Citron Realty Management Corporation, a California Corporation. Wherever the term "Developer" is used herein, such term shall include any permitted nominee, assignee or successor in interest as herein provided. 2. ACQUISITION AND DISPOSITION OF THE SITE 2.1 Sale and Purchase In accordance with and subject to all the terms, covenants, and conditions of this Agreement (including without limitation the Developer's right to terminate this Agreement pursuant to Section 6.6.1 of this Agreement), the Agency agrees to sell to the Developer and the Developer agrees to purchase each Parcel as shown on the Site Map (Attachment No.1) and more precisely described in the Legal Description (Attachment No. 1A). The Developer shall pay to the Agency as the purchase price for the Site Five Hundred Fifty Dollars ($550,000.00). Pursuant to California Health and Safety Code Section 33433, the Agency has determined that, given the nature of the proposed development of the Site and the terms and conditions imposed by this Agreement, p: \9\9484\4656S\Trans\DispAgr2. 060 -y:. J/--/~7 the purchase price is equal to or greater than the "reuse value" of the Site. If the Site is acquired in phases as provided in Section 2.3 of this Agreement, Developer shall pay a pro rata portion of the Purchase Price for each such phase upon close of escrow for each such phase based upon the pro rata share of square feet being acquired relative to the total square footage of the Site. 2.2 Adiustment of Purchase Price Agency desires to be reimbursed by Developer for Agency's actual costs of demolition and pre-demolition hazardous materials testing for the Site, not to exceed One Hundred Twenty-Four Thousand Dollars ($124,000.00) ["Reimbursement Amount"]. Developer is willing to agree to a plan of reimbursement of up to, but not to exceed, the Reimbursement Amount, provided Developer achieves the level of profitability described in this paragraph. Both Agency and Developer acknowledge and agree that depending upon the circumstances, which neither party can control or guarantee, there can be no assurance that all or a portion of the Reimbursement Amount will be payable to Agency. In complete payment of the Reimbursement Amount, and with the understanding that the Reimbursement Amount shall not be payable from any other sources whatsoever, Developer shall pay Agency thirty percent (30%) of the difference between the" Adjusted Cost" and the "Net Sales Proceeds" of Phase 2 and Phase 3, as calculated at the completion of sales in Phase 3. "Adiusted Cost" shall mean the any and all costs incurred incident to the acquisition, development, marketing and sale of Business Home upon the Site, including, without limitation, all costs associated with: (i) the acquisition of the Site; (ii) bank interest and fees, carrying costs, costs of raising all necessary funds, investors' twenty percent (20%) per annum return on capital (including all limited and general partners); (Hi) labor; (iv) materials; (v) all on-site costs of labor, including office staff, materials, including site office rental and supplies, services including telephone and utilities, rentals including machinery and equipment; (vi) all utility, fees; Ci ty processing fees, charges, deposi ts school, park impact fees, connection or and all capacity (vii) developer's fees (ten percent (10%) of construction costs) ; p:\9\9484\46565\Trans\DispAgrZ.060 ~ 1- ~ I~! (viii) consultants' fees, including appraisers, engineers, architects, system designers, testing and inspections; and (ix) any and all other miscellaneous costs including sales, advertising and promotion costs, models, legal and accounting costs. "Net Sales Proceeds" shall mean the gross sales price of Business Homes units sold in Phase 2 and Phase 3, less closing costs. Upon Developer's receipt of the Certificate of Completion for Phase 3, Agency and Developer shall jointly calculate any amounts owed by Developer to Agency pursuant to this Section 2.2. 2.3 Phasinq of the Acquisition Developer shall have the right but not the obligation to acquire the Site in Phases as set forth herein. Completion of the acquisition of any Phase(s) shall not obligate the Developer to acquire any subsequent phase(s). Upon satisfaction of the conditions to close set forth below, Developer may purchase the Site in a maximum of three (3) phases as follows: (a) The Phase 1 acquisition shall consist of that portion of the Site comprised of approximately 17,300 square feet and generally shown as "Parcel 1" on the "Convevance Map" attached hereto as Attachment 2 and incorporated herein by this reference. Parcel 1 shall be used for the construction of six (6) model Business Homes and other required Phase 1 improvements for purposes of test marketing and modification of the design of the buildings. The Phase 1 acquisition shall be completed within four (4) months after execution of this Agreement. (b) The Phase 2 acquisition shall consist of that portion of the Site generally shown on the Conveyance Map as "Parcel 2." Parcel 2 shall consist of approximately 1.26 acres less Parcel 1. Parcel 2 shall be used for the construction of twelve (12) Business Homes and other required Phase 2 improvements. In the event Developer elects to acquire Parcel 2, the Phase 2 acquisi tion shall be completed wi thin ten ( 1 0) months of the execution of this Agreement. (c) The Phase 3 acquisition shall consist of the remainder of the Site comprised of approximately 1.27 acres and shown on the Conveyance Map as "Parcel 3". Parcel 3 shall be used for construction of the remaining eighteen (18) Business Homes and other required Phase 3 improvements. In the event Developer elects to acquire Parcel 3, the Phase 3 acquisition shall be completed within twenty (20) months of the execution of this Agreement. p:\9\9484\46565\Trans\DispA9rZ.D6D ~ 4-110 9 (d) Before the conveyance of title to each Parcel, the Executive Director of Agency and Developer shall meet and develop a schedule for construction for the improvements on such Parcel. The Developer shall begin and complete all construction and development within the times specified in the schedule with such extensions of said dates as may be granted by the Executive Director of the Agency in their sole discretion. The schedule is subject to Section 7.4 of this Agreement and is subject to revision from time to time as mutually agreed upon in writing between the Developer and the Executive Director of Agency, each exercising their sole discretion. 2.4 Conditions to Developer's Riqht to Acquire Site. Developer's right to acquire any portion of the Site shall be contingent upon the fOllowing: (a) Approved Financinq. Developer must present to the Agency staff evidence of acceptable financing for the Phase to be acquired. Acceptable financing entails: ( 1) a lender of excellent reputation which is reasonably acceptable to the Agency; (ii) who validly commits in writing on specified objective terms and conditions reasonably approved by Agency to finance the construction of the Phase improvements pursuant to a disbursement schedule which is reasonably acceptable to the Agency; (iii) who agrees that loan proceeds will only be used for costs associated with the Project pursuant to this Agreement; (iv) whose documentation permits the acquisition, without discount or recourse, of the loan by the Agency (or its assignee) in the event this Agreement is terminated as a result of a Developer default and the Agency takes back the property (as described in Section 6.7 below); (v) who agrees to release any designated areas to the assessment district that will own and maintain such areas without consideration upon the conveyance of the first unit; and (vi) who agrees to enter into an agreement with the Agency concerning the Agency's right to reenter the property on the terms and conditions set forth in Section 6.7 of this Agreement; (b) Approved Marketinq Study. Developer shall present to Agency staff in writing a marketing study prepared by Developer demonstrating substantial demand for Business Homes units in the phase to be acquired, including, without limitation, a list, with names and addresses, of interested or pre-committed purchasers, which shall be subject to reasonable approval by Agency staff; (c) Payment of Purchase Price and Closinq Costs. Developer shall pay the purchase price for such phase and Developer's share of closing costs; and (d) Presale Requirement. Agency shall abide by any Phase by Phase or total Project presale requirement that may be imposed, if at all, by Developer's lender. p:\9\94B4\46565\Trans\OispAgr2.060 -~ 1- / 70 (e) Required Entitlements. Developer shall receive approval of all required governmental approvals governing development and/or use of the Site ("Entitlements"), including Entitlements which must be obtained from the City and other public agencies. The parties hereto expressly acknowledge and agree that the Agency cannot grant any such Entitlements or cause any other governmental agency, including the City, to grant any such Entitlements. Accordingly, the parties hereto expressly agree that, notwithstanding approval of this Agreement, the obligations of each party hereto shall be contingent upon the receipt of all Entitlements required for the development of the Site in the manner set forth in this Agreement and the obligations of each party hereto shall only arise upon the receipt of such Entitlements. The Developer hereby releases the City and the Agency from any liability based upon the Developer's failure to obtain any such Entitlement and expressly agree that in no event shall any exercise of the City's or Agency I s discretion to approve, condition or disapprove any Entitlement or other discretionary item which is a condition to the obligations of the parties of this Agreement be deemed to be a default or an act of bad faith by the City or the Agency. Developer and Agency shall cooperate to initiate and process the required Entitlements. The Entitlements include but may not be limited to the following: (1) Approval and recordation of a parcel map; (2) Formation and effective date of assessment district. In the event that all of the Entitlements are not approved within four (4) months of the effective date of this Agreement, or in the event that the City, the Agency, or any other entity shall deny any of the requested discretionary approvals or disapprove any required Entitlement or other agreement necessary for construction or use of the Site, then upon thirty (30) days written notice from either party to the other, this Agreement shall be of no force and effect and neither of the parties shall have any further obligations to any of the other parties pursuant to this Agreement. The parties understand and acknowledge that the City and Agency reserve the right to exercise their discretion as to all matters which they are, by law, entitled or required to exercise their discretion. (f) No Material Default. Developer shall not be in material default of this Agreement. p: \9\9484\46565\Trans\oispAgr2. 060 ~ Aj - /7 f 2.5 Escrow The Agency agrees to open an escrow for conveyance of each Parcel of the Site with Chicago Title Insurance Company or such other escrow agent as may be acceptable to both the Agency and the Developer (the "Escrow Aqent") as escrow agent in a timely manner. Sections 1.4-1.5 and 2.1-2.12 inclusive of this Agreement consti tute the joint escrow instructions of the Agency and the Developer, and a duplicate origina~ of this Agreement shall be delivered to the Escrow Agent upon the opening of the escrow. The Agency and the Developer sha~l provide such addi tional escrow instructions consistent with this Agreement as shall be necessary. The Escrow Agent hereby is empowered to act under such instructions, and upon indicating its acceptance thereof in writing, delivered to the Agency and to the Developer within five (5) days after opening of the escrow, the Escrow Agent shall carry out its duties as Escrow Agent hereunder. Upon delivery of the Grant Deed for the app~icab~e Parcel to the Escrow Agent by the Agency pursuant to Section 2.9 of this Agreement, the Escrow Agent sha~l record such Deed in accordance with these escrow instructions, provided that the title to the applicable Parcel can be vested in the Developer in accordance with the terms and provisions of this Agreement. The Escrow Agent shall buy, affix and cancel any transfer stamps required by law. Any insurance policies governing the applicable Parcel are not to be transferred. The Developer shall pay in escrow to the Escrow Agent ,the following fees, charges and costs not to exceed Three Thousand Dollars ($3,000.00) promptly after the Escrow Agent has notified the Developer of the amount of such fees, charges and costs, but not earlier than ten (10) days prior to the scheduled date for the conveyance of the applicable Parcel: 1. The entire escrow fee; 2. The premium for the title insurance policy as set forth in Section 2.11 of this Agreement; 3. Cost of drawing the Deed; 4. Recording fees; 5. Notary fees; 6. Any State, County or City documentary stamps or transfer taxes; 7. Fifty percent (50%) of the collective amount of the fees, charges and costs excluding Three Thousand Dollars ($3,000.00). p:\9\9484\46565\Trans\DispAgrZ.D6D ~ ~ ~ /7L.- To tl:le extent that said fees, changes and costs exceed $3,000.00, then Agency shall pay the same. The Developer shal1 also deposit the Purchase Price for the applicable Parcel with the Escrow Agent in accordance with the provisions of Section 2.10 of this Agreement. The Agency shall pay in escrow to the Escrow Agent the following fees, charges and costs promptly after the Escrow Agent has notified the Agency of the amount of such fees, charges and costs, but not earlier than ten (10) days prior to the scheduled date for the conveyance of the applicable Parcel: 1. Costs necessary to place the title to the applicable Parcel in the condition for conveyance required by the provisions of this Agreement; 2. Ad valorem taxes, if any, upon the applicable Parcel for any time prior to the conveyance of title. The Agency shall timely and properly execute, acknowledge and deliver a Grant Deed in substantially the form established in Section 2.7 of this Agreement, conveying to the Developer title to the applicable Parcel in accordance with the requirements of Section 2.8 of this Agreement, together with an estoppel certificate certifying that the Developer has completed all acts (except deposit of the Purchase Price), necessary to entitle the Developer to such conveyance, if such be the fact. The Escrow Agent is authorized to: 1 . Pay, and charge the Agency and the Developer, respectively, for any fees, charges and costs payable under this Section 2.5 of this Agreement. Before such payments are made, the Escrow Agent shall notify the Agency and the Developer of the fees, charges and costs necessary to clear title and close the escrow. 2. Disburse funds and deliver the Deed and other documents to the parties entitled thereto when the conditions of this escrow have been fulfilled by the Agency and the Developer. The Purchase Price shall not be delivered by the Escrow Agent unless and until it has recorded the Deed to the applicable Parcel and has, delivered to the Developer a title insurance policy insuring title and conforming to the requirements of Section 2.11 of this Agreement. 3. Record any instruments delivered through this escrow if necessary or proper to vest title in the Developer in accordance with the terms and p: \9\9484\46565\Trans\DispA9rZ. 060 ~ ~ -/73 provisions of the escrow instructions portion of this Agreement (Sections 1.4-1.5 and 2.1-2.12). AIl funds received in this escrow shal1 be deposited by the Escrow Agent in a general escrow account with any state or national bank doing business in the State of California and reasonably approved by the Developer and the Agency, and may be combined in such with other escrow funds of the Escrow Agent. If this escrow is not in condition to close on or before the time for conveyance established in Section 2.6 of this Agreement, either party who then shall have fully performed the acts to be performed before the conveyance of title may, in writing, demand the return of its money, papers or documents from the Escrow Agent. No demand for return shall be recognized until ten (10) days after the Escrow Agent (or the party making such demand) shall have mailed copies of such demand to the other party or parties at the address of its principal place of business. Objections, if any, shall be raised by written notice to the Escrow Agent and to the other party wi thin the ten (10) day period, in which event the Escrow Agent is authorized to hold all money, papers and documents with respect to the applicable Parcel until instructed by a mutual agreement of the parties or, upon failure thereof, by a court of competent jurisdiction. If no such demands are made, the escrow shall be closed as soon as possible. If objections are raised as above-provided for, the Escrow Agent shall not be obligated to return any such money, papers or documents except upon the written instructions of both the Agency and the Developer, or until the party entitled thereto has been determined by a final decision of a court of competent jurisdiction. If no such objections are made within said ten (10) day period, the Escrow Agent shall immediately return the demanded money, papers or documents. Any amendment to the escrow instructions shall be in writing and signed by both the Agency and the Developer. At the time of any amendment the Escrow Agent shall agree to carry out its duties as Escrow Agent under such amendment. All communications from the Escrow Agent to the Agency or the Developer shall be directed to the addresses and in the manner established in Section 7.1 of this Agreement for notices, demands and communications between the Agency and the Developer. 2.6 Convevance of Title and Deliverv of Possession Subject to any mutually agreed-upon extension of time, conveyance to the Developer of ti tIe to each Parcel shall be completed on or prior to the dates set forth in Section 2.3 hereof or such later date mutually agreed to in writing by the Executive Director of the Agency and the Developer and communicated in writing to the Escrow Agent. p: \9\9484\46565\Trans\DispAgr2. 060 -~ ~ -/7'(- Except as otherwise 'provided herein, possession of the applicable Parcel shall be delivered to the Developer concurrent with the conveyance of title. The Developer shall accept title and possession to the applicable Parcel on or before the dates set forth above. 2.7 Form of Deed The Agency shall convey to the Developer title to the each Parcel in the condition provided in Section 2.8 of this Agreement by Grant Deed in a form to be mutual1y agreed upon by the Agency and the Developer consistent with this Agreement and otherwise utilizing Escrow Agent's standard form. The Grant Deed to each Parcel shall contain covenants necessary or desirable to carry out this Agreement. 2.8 Condition of Title The Agency shall convey to the Developer fee simple title to each Parcel of the Site subject only to those matters of record set forth as items , , , ,and ,of Schedule B of that certain Preliminary Title Report issued by Escrow Agent, dated as of , 1995. 2.9 Time for and Place for Deliverv of Deed Subject to any mutually agreed-upon extension of time, the Agency shal1 deposit the Grant Deed for the applicable Parcel with the Escrow Agent on or before the date established for conveyance, as set forth above. 2.10 Payment of the Purchase Price and Recordation of the Deed The Developer shall promptly deposit the Purchase Price for the applicable Parcel with the Escrow Agent upon or prior to the date for conveyance thereof, provided that Escrow Agent shall have notified the Developer in writing that the Grant Deed conveying the applicable Parcel to the Developer, properly executed and acknowledged by the Agency, has been delivered to the Escrow Agent and that title is in condition to be conveyed in conformity with the provisions of Section 2.8 of this Agreement. The Escrow Agent shall deliver the Purchase Price to the Agency immediately following the delivery to the Developer of a title insurance policy insuring title in conformity with Section 2.11 of this Agreement and the filing of the deed for recordation among the land records in the Office of the County Recorder for San Diego County. 2.11 Title Insurance Concurrently with recordation of the Grant Deed, Escrow Agency ( "Ti tIe Co.") shall issue and deliver to the Developer an ALTA extended coverage policy of title insurance insuring that the title p: \9\9484\46565\Trans\DispAgr2. 060 ~ ~ - 115 is vested in the Developer in the condition required by Section 2.8 of this agreement. The title insurance policy shall be in the amount of the Purchase Price of the applicable Parcel or in such greater amount as the Developer may specify as hereinafter provided. Concurrent with the issuance of the title policy for the applicable Parcel, Escrow Agent shal1, if requested by the Developer, provide the Developer with an endorsement to insure the amount of the Developer I s estimated construction costs of the improvements to be constructed thereon. 2.12 Taxes and Assessments Ad valorem taxes and assessments, if any, on each Parcel shall be prorated in escrow as of the date of close of escrow based on a 30-day month and a 360-day year. 2.13 Condition of the Site Subject to completion of the work set forth in Section 3 of this Agreement, the Site, each Parcel, and all improvements thereon shall be conveyed in an "as is" condition, with no warranty, express or implied by the Agency as to the physical condition (including the existence of hazardous materials) , value, development, use, marketability, feasibility and suitability of the Site, or any Parcel thereof, for Developer's intended use. Developer is a sophisticated purchaser who is familiar with this type of property. Developer will make its own independent investigation, to the extent Developer deems necessary, of the condition or suitability of the Site and each Parcel and will acquire all or any portion of the Site solely in reliance on such independent investigation. Developer acknowledges that any and all studies, reports, surveys, maps and other information that Developer may receive from Agency or its agents in connection with the Site are provided without any warranty (whether oral or written, express or implied) by Agency as to their accuracy, and on the express condition that Developer shall make its own independent evaluation of such information. Developer unconditionally releases Agency from and against any and all liability to Developer, both known and unknown, present and future, for any and all damages, 10sses, claims and costs (including attorneys fees), without limitation, the existence of hazardous materials), or the Site's non-suitability for Developer's intended use. Developer waives the provisions of California Civil Code Section 1542 which provides: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release which if known by him must have materially affected his settlement with the debtor. The Agency agrees that it will not cause, or permit its contractors or agents to cause, without remediating the same, during the time the applicable Parcel is in the possession of the p: \9\94B4\46565\Trans\DispAgr2. 060 ~ 1-- /7t, Agency, and prior to conveyance of title to the applicable Parcel to the Developer, the placement of any hazardous or toxic substances on the applicable Parcel which contaminates the soil and/or water on the applicable Parcel. Notwithstanding the foregoing, any hazardous or toxic substances already existing on the Site may be moved and/or temporarily stockpiled on the Site in accordance with the scope of demolition and/or remediation work conducted at the Site by Watkins Contracting, Inc. and/or Woodward- Clyde under contracts with the Agency which have been approved by Developer. 2.14 Preliminary Work bv the Developer Prior to the conveyance of ti tIe to each Parcel, representatives of the Developer shall at all reasonable times have the right of access to and entry upon those real properties comprising the applicable Parcel which are owned by the Agency, or of which the Agency has possession, for the purpose of obtaining data relevant to its development process and making surveys and tests necessary to carry out this Agreement. The Developer agrees to defend, indemnify and hold the Agency, the City, and their officers, employees, contractors and agents, harmless from and against any and all claims, liabili ty, loss, damage, costs or expenses (including reasonable attorneys' fees and court costs) arising out of any work or activity of the Developer, its officers, employees, contractors and agents permitted pursuant to this Section 2.14. The Agency agrees to provide, or cause to be provided to the Developer all data and information pertaining to each Parcel that is available to the Agency when requested by ,the Developer. 2.15 Submission of Evidence of Financinq The Developer shall report regularly as requested by the Agency (but at least every three (3) months) on its progress in obtaining financing for the development on each Parcel. The reports may be oral, or shall be in writing if requested by the Agency. The reports shall explain in reasonable detail the sources and methods of financing sought, the status of obtaining the financing and the issues, if any, which must be resolved, and the preleasing or presales activity which is required or has been achieved. The information in the reports shall remain confidential to the extent permitted by law, recognizing without limitation that they are subject to review by responsible officials, employees and contractors of the Agency. Developer shall submit to the Agency evidence satisfactory to the Agency that the Developer has obtained the financing necessary for the acquisition and development of the applicable Parcel in accordance with this Agreement. Such evidence of financing shall include all information described in Section 2.4(a) of this Agreement and the following: p:\9\9484\46565\Trans\DispAgr2.060 -v 1-~/77 (a) A copy of the term sheet describing the details of the terms and condi tions of the mortgage loan or loans obtained by the Developer (both for interim construction financing and take out financing if a condition of funding the construction 10an) to assist in financing the construction of the improvements on the applicable parcel (as defined in the Scope of Development attached as Attachment 6), certified by the Developer to be a true and correct copy or copies thereof; and (b) Evidence reasonably satisfactory to the Agency of sources of equity capital sufficient to demonstrate that the Developer has adequate funds to cover the difference, if any, between construction cost minus financing authorized by mortgage loans. The Agency shall approve or disapprove such evidence of financing in a timely manner. If the Agency shall disapprove any such evidence of financing, the Agency shall do so by written notice to the Developer stating the reasons for such disapproval. 3. PREACQUISITION OBLIGATIONS. 3.1 Demolition of Existinq Buildinqs The Agency has contracted for demolition of the existing structures at the Agency's sole cost with Watkins Contracting, Inc. ("Demolition Contract"). Such demolition work shal1 be completed in accordance with the schedule set forth in the Demolition Contract. The demolition work shall include all work described in the Demolition Contract ("Demolition Work"). Except as,otherwise provided herein, Developer shall be responsible, at Developer's sole cost, for any and all other work on the Site necessary for the development of the Project. 3.2 Site Remediation Work. (a) Agency has contracted with Woodward-Clyde ("Environmental Consultant") for testing and the performance of a limited surface soils investigation for the Site. Agency shall be responsible for payment of all costs of the pre-demolition soils testing (approximately $17,000.00 (Seventeen Thousand Dollars)) ("Pre-demo Soils Testinq"). (b) Agency shall contract with the Environmental Consultant to conduct the additional testing, monitoring and remediation recommended by the Environmental Consultant as a result of the Pre-demo Soils Testing and which is of a type and scope agreed to by the parties to this Agreement ("Remediation Work"). p: \9\94B4\46565\Trans\DispA9r2. 060 -~ Lf -/7t! (c) Agency and Developer each commit to share in the costs of the Remediation Work, as follows: (i) Developer shall be responsible for payment of up to the first Ten Thousand Dol1ars ($10,000.00) due and payable for the Remediation Work; (ii) Agency shall be responsible for payment of up to the next Ten Thousand Dollars ($10,000.00) due and payable for the Remediation Work; and (iii) each party will be responsible for payment of fifty percent (50%) of up to the next Twenty Thousand Dollars ($20,000.00) due and payable for the Remediation Work. If during the course of performing the Remediation Work, Environmental Consultant indicates or the parties otherwise agree that the Remediation Work will cost in excess of Forty Thousand Dollars ($40,000.00), ("Additional Remediation Work") then, while neither party shall be obligated to advance sums in excess of this amount, the parties shall meet, discuss and negotiate the allocation of responsibility. (d) If the parties are unable to agree to the allocation of responsibility for Additional Remediation Work, Developer may terminate this Agreement pursuant to Section 6.6.1. Notwithstanding the termination of this Agreement, Developer shall remain liable for the first Ten Thousand Dollars ($10,000.00) due and payable for the Remediation Work and fifty percent (50%) of up to the next Twenty Thousand Dollars ($20,000.00) due and payable for the Remediation Work. Developer shall be responsible for such amounts only if Agency proceeds wi th the Remediation Work and incurs such costs. (e) If the parties reach agreement as to the allocation of responsibility for Additional Remediation Work or if the Remediation Work does not exceed Forty Thousand Dollars ($40,000.00), then, subject to the Agency's completion of the Demolition Work, the Site shall be acquired by Developer in an "as is" condition with no representations and warranties from Agency with respect to the physical condition thereof. (f) The Agency shall contract for and oversee the Remediation Work and any agreed upon Additional Remediation Work. Developer shall reimburse Agency for any amounts owed by Developer within seven (7) days of the receipt of the applicable invoice and supporting documentation from Agency. (g) The Remediation Work and any Additional Remediation Work shall be deemed complete when Environmental Consultant or another licensed hazardous materials professional has issued a letter or report certifying that no further environmental work needs to be conducted at the Site. (h) Developer shall have the right but not the obligation to monitor the Remediation Work and any Additional Remediation Work. This right shall include the ability to review all information generated by Environmental Consultant and to meet and discuss the progress with Environmental Consultant. p:\9\9484\46565\Trans\DispAgr2.06D -~ 1- -/71 (i) Developer and Agency shall meet and confer regarding pursuit of monetary claims relating to the Remediation Work. If the parties so agree, Agency shall use its best efforts to pursue any and all monetary claims the Agency may have including those against Fuller Ford and its principals and under the state Underground storage Tank Cleanup Fund for the cost of the Remediation Work. If Agency pursues such claims, Agency shall reimburse Developer for up to its monetary contribution to the Remediation Work out of the first available proceeds after deducting Agency's actual costs in pursuing such claims. 4. DEVELOPMENT OF THE SITE 4.1 Development of the Site Developer shall have no obligation to construct on any Parcel unless and until Developer elects to acquire that Parcel. Upon such election and the close of escrow conveying any Parcel to Developer, Developer's obligation to construct the improvements on that Parcel shall mature and Developer shall be subject to the remedies provided in this Agreement for failure to complete construction in the manner and the time set forth in this Agreement. All construction shall comply with all applicable federal, state and local laws, and all environmental, land use and other conditions imposed on the Project. 4.1.1 Scope of Development The Site, and each Parcel thereof, shall be developed with "Business Homes" in accordance with and within the limitations established in the "Scope of Development" incorporated herein and attached to this Agreement as Attachment No.4. 4.1. 2 Basic Concept and Schematic Drawinqs The Developer has prepared and submitted, and Agency has approved Basic Concept and Schematic Drawings and related documents for the development of the Site. The Site shall be developed as established in the Basic Concept and Schematic Drawings and related documents except as changes may be mutually agreed upon between the Developer and the Agency. Any such changes shall be within the limitations of the Scope of Development (Attachment No.3) and shall be processed in accordance with all applicable local land use processes and conditions. 4.1.3 Landscapinq and Gradinq Plans The Developer shall prepare and submit to the Agency for its approval preliminary and final landscaping and preliminary and finish grading plans for each Parcel. Those plans shall be prepared and submitted within the time established by the parties p: \9\9484\46565\Trans\DispAgr2. 060 - J:6<- Lj -lfCJ as described in Section 2.3. The landscaping plans shall include a lighting program which highlights the design of components of the development, including, but not limited to, building facades, architectural detail, building interiors, landscaping and sculpture. The landscaping plans shall be prepared by a professional landscape architect and the grading plans shall be prepared by a licensed civil engineer. Such landscape architect and/or civil engineer may be the same firm as the Developer's architect. 4.1.4 Construction Drawinqs and Related Documents for the Site The Developer shall prepare and submit construction drawings and related documents (collectively called the "Drawinqs") for the development pertaining to each Parcel to the Agency for review (including but not limited to architectural review), and written approval in the times established by the parties as described in Section 2.3. Such construction drawings and related documents shall be submitted in three stages: Design Development Drawings, 50% Complete Construction Drawings and Final Construction Drawings. Final Construction Drawings are hereby defined as those in sufficient detail to obtain a building permit. Approval of progressively more detailed drawings and specifications will be promptly granted by the Agency if developed as a logical evolution of drawings or specifications theretofore approved. Any items so submitted and approved by the Agency shall not be subject to subsequent disapproval. During the preparation of all drawings and plans, the Agency and the Developer shall hold regular progress meetings to coordinate the preparation of, submission to, and review of construction plans and-related documents by the Agency. The Agency and the Developer shall Communicate and consult informally as frequently as is necessary to insure that the formal submittal of any documents to the Agency can receive prompt and speedy consideration. If any revisions or corrections of plans approved by the Agency shall be required by any non-CitY/Agency government official, agency, department, or bureau having jurisdiction over the development of the Site, the Developer and the Agency shall cooperate in efforts to obtain waiver of such requirements or to develop a mutually acceptable alternative. 4.1.5 Aqencv Approval of Plans, Drawinqs and Related Documents Subject to the terms of this Agreement, the Agency shall have the right of review (including without limitation architectural review) of all plans and submissions, including any proposed p:\9\94B4\46565\Trans\DispA9r2.D6D ~ 1- /f / changes therein. The Agency shall approve or disapprove the plans, drawings and related 'documents referred to in Sections 4.1.3, and 4.1.4 of this Agreement in a timely manner. Any disapproval shal1 state in writing the reasons for disapproval and the changes which the Agency requests to be made. Such reasons and such changes must be consistent with the Scope of Development (Attachment No.3) and any items previously approved or deemed approved hereunder. The Developer, upon receipt of a disapproval based upon powers reserved by the Agency hereunder, shall revise the plans, drawings and related documents, and shall resubmit to the Agency as soon as possible after receipt of the notice of disapproval. If the Developer desires to make any substantial change in the Final Construction Drawings after their approval, such proposed change shall be submitted to the Agency for approval. If the Final Construction Drawings, as modified by the proposed change, conform to the requirements of Section 4.1.4 of this Agreement and the Scope of Development, the proposed change shal1 be approved and the Developer shall be notified in writing within fifteen (15) days after submission. Such change in the construction plans shall, in any event, be deemed approved unless rejected, in whole or in part, by written notice thereof setting forth in detail the reasons therefor, and such rejection shall be made within said fifteen (15) day period. 4.1.6 Cost of Construction The cost of developing the Site, and each Parcel thereof, and constructing all improvements thereon shall be borne by the Developer, except as provided in this Agreement. 4.1.7 Construction Proqress Reports During periods of construction, the Developer shall submit to the Agency a written report of the progress of the construction when and as reasonably requested by the Agency. The report shall be in such form and detail as may be reasonably required by the Agency and shall include a reasonable number of construction photographs (if requested) taken since the last report by the Developer. 4.1.8 Indemnification Durino Construction: Bodily Iniury and Property Damaqe Insurance During the period commencing with execution of this Agreement by the Agency, and continuing until such time as the Agency has issued a Certificate of Completion with respect to the construction of all improvements on the Site, the Developer agrees to and shall defend, indemnify and hold harmless the Agency, and City and their respective officers, employees, contractors and agents from and against all claims, liability, loss, damage, costs or expenses (including reasonable attorneys I fees and court costs) arising from or as a result of the death of any person or any accident, injury, p,\9\9484\46565\Trans\DispAgr2.060 -~ 1- - /t 2--- loss or damage whatsoever caused to any person or to the property of any person arising out of the activities of the Developer under this Agreement, and which shall be directly or indirectly caused by any acts done or any errors or omissions of the Developer or its officers, employees, contractors or agents. The Developer shall not be responsible for (and such indemnity shall not apply to) any acts, errors or omissions of misconduct by the Agency, the City, or their respective officers, employees, contractors or agents. Without limiting the preceding sentence, except for activities undertaken by the Developer with respect to a Parcel before the conveyance of title thereto to the Developer, the Agency hereby acknowledges that (as between the Agency and the Developer) the Agency is responsible for maintaining each Parcel and any improvements which may remain thereon in a safe condition prior to conveyance of title to the applicable Parcel to the Developer. During the period commencing with any preliminary work on the Si te by the Developer under Section 2.14, or if none, then commencing with conveyance of title to: the first Parcel to the Developer, and ending on the date when a Certificate of Completion has been issued with respect to the entire Site, the Developer shall furnish or cause to be furnished to the Agency, duplicate originals or appropriate certificates of bodily injury and property damage insurance policies in the amount of at least Two Million Dollars ($2,000,000.00) combined single limit naming the Agency and Ci ty, and their officers, employees, contractors and agents as additional insureds. 4.1.9 Antidiscrimination durinq Construction The Developer for itself and its successors and assigns agrees that in the construction of the improvements on the Site provided for in this Agreement, the Developer will not discriminate against any employee or applicant for employment because of sex, marital status, race, color, creed, religion, national origin or ancestry. 4.1.10 Local, state and Federal Laws The Developer shall carry out the construction of the improvements on the Site in conformity with all applicable laws, including all applicable federal and state labor standards. 4.1.11 City and other Governmental Aqencv Permits Before commencement of construction or development of any buildings, structures or other work of improvement upon each Parcel of the Site, the Developer shall, at its own expense, secure or cause to be secured, any and all permits which may be required by the City or any other governmental agency affected by such construction, development or work. Agency staff shall reasonably cooperate with the Developer in securing these permits. 4.1.12 License/Easement p:\9\9484\46565\Trans\DispAgr2.D6D -~ ~ ~ /13 Agency and/or City shall and do hereby grant Developer a license, revocable upon the termination of this Agreement, to use portions of the Site not yet acquired by Developer for construction staging and stockpiling relating to Developer I s development and construction activities upon the Site. Any such use of the Site by Developer shall be subject to Section 4.1.8 hereof. 4.2 Fees Developer shall be solely responsible for payment of all applicable Project processing and impact fees. Developer reserves the right to challenge the propriety of the imposition of or amount of any such fees. 4.3 Taxes: Assessments: Encumbrances: and Liens The Developer shall pay when due all real estate taxes and assessments assessed and levied on or against each Parcel subsequent to the conveyance of the title thereto. The Developer shall not place, or allow to be placed, on the Site or any Parcel thereof, any mortgage, trust deed, encumbrance or lien not authorized by this Agreement. The Developer shall remove, or shall have removed, any levy or attachment made on the Site (or any Parcel thereof ), except those created by work of the Agency, or shall assure the satisfaction thereof within a reasonable time but in any event prior to a sale thereunder. Nothing herein contained shall be deemed to prohibit the Developer from contesting the validity or amount of any tax assessment, encumbrance or Lien, nor to limit the remedies available to the Developer in respect thereto. The covenants of the Developer set forth in this Section 4.4 relating to the placement of any unauthorized mortgage, trust deed, encumbrance or lien, shall remain in effect only until a Certificate of Completion of construction has been recorded with respect to the Parcel upon which any unauthorized mortgage, trust deed, encumbrance or lien might be placed. 4.4 Prohibition aqainst Transfer Prior to the recordation by the Agency of a Certificate of Completion for a Parcel (referred to in Section 4.7 of this Agreement), the Developer shall not, except as permitted by this Agreement, assign or attempt to assign this Agreement or any right herein with respect to such Parcel, nor make any total or partial sale, transfer, conveyance or assignment of the whole or any part of such Parcel or the improvements thereon, without prior written approval of the Agency. This prohibition shall not apply to a Parcel (or any portion thereof) subsequent to the recordation of the Certificate of Completion with respect thereto. This prohibition shall not be deemed to prevent the granting of easements or permits necessary for the development of the Site, nor shall it prohibit entering into contracts to sell individual business homes conditional on the issuance of a Certificate of p,\9\9484\46565\Trans\DispAgr2.060 -~ ~ -/J''/ Completion therefor, nor shall it prohibit granting any security interests expressly described in this Agreement for financing the acquisition and development of the applicable Parcel. 4.5 Security Financinq; Riqht of Holders 4.5.1 No Encumbrances except Mortqaqes, Deeds of Trust. Conveyances and Leases-Back or Other Conveyance for Financinq for Development Notwithstanding Section 4.4, after conveyance of title to the applicable Parcel to the Developer, mortgages, and deeds of trust, or any other form of conveyance required for any reasonable method of financing are permitted with respect to the Parcel before the recordation of the Certificate of Completion (referred to in Section 4.7 of this Agreement), but only for the purpose of securing loans of funds to be used for financing the acquisition of such Parcel, the construction of improvements on such Parcel, and any other expenditures necessary and appropriate to develop such Parcel under this Agreement. The Developer shall notify the Agency in advance of any mortgage, deed of trust, or other form of conveyance for financing, if the Developer proposes to enter into the same before the recordation of the Certificate of Completion. The Developer shall not enter into any such conveyance for financing without the prior written approval of the Agency, which approval the Agency agrees to give if any such conveyance is given to a financial or lending institution approved by Agency under the standards set forth in Section 2.4(a) and 2.17 hereof. Such lender approved by the Agency pursuant to this Section 4.5.1, shall not be bound by any amendment, implementation or modification to this Agreement subsequent to its approval without such lender giving its prior written consent. In any event, the Developer shall promptly notify the Agency of any mortgage, deed of trust, conveyance and lease-back, or other financing, conveyance, encumbrance or lien that has been created or attached to the Site or any Parcel (or any portion thereof) prior to completion of the construction of the improvements thereon whether by voluntary act of the Developer or otherwise. The words "mortgage" and "deed of trust" as used herein include all other appropriate modes of financing real estate acquisition, construction and land development. 4.5.2 Holder Note Obliqated to Construct Improvements The holder of any mortgage, dead of trust or other security interest authorized by this Agreement shall in no way be obligated by the provisions of this Agreement to construct or complete the improvements or to guarantee such construction or completion; nor shall any covenants or any other provision in the grant deed for the applicable Parcel be so construed as to so obligate such holder. Nothing in this Agreement shall be deemed or construed to p,\9\9484\46565\Trans\DispAgr2.060 -~ .cj -/~ 5 permit su~h holder to devote the Site to any uses or to construct any improvements on the Site, other than those uses or improvements provided for or authorized by this Agreement. 4.5.3 Notice of Default to Mortqaqe, Deed of Trust or Other Security Interest Holders: Riqht to Cure Whenever the Agency shall deliver any notice or demand to the Developer with respect to any breach or default by the Developer in completion of construction of the improvements, the Agency shall at the same time deliver to each holder of record of any mortgage, deed of trust or other security interest authorized by this Agreement a copy of such notice or demand. Each such holder shall (insofar as the rights of the Agency are concerned) have the right at its option within ninety (90) days after the receipt of the notice, to cure or remedy, or commence to cure or remedy, any such default and to add the cost thereof to the security interest debt and the lien of its security interest. If such default shall be a default which can only be remedied or cured by such holder upon obtaining possession, such holder shall seek to obtain possession with diligence and continuity through a receiver or otherwise, and shall remedy or cure such default within ninety (90) days after obtaining possession; provided that in the case of a default which cannot with diligence be remedied or cured, or the remedy or cure of which cannot be commenced within such ninety (90) day period, such holder shall have such additional time as reasonably necessary to remedy or cure such default with diligence and continuity; and provided further that such holder shall not be required to remedy or cure any non-curable default of the Developer. Nothing contained in this Agreement shall be deemed to permit or authorize such holder to undertake or continue the construction or completion of the improvements (beyond the extent necessary to conserve or protect the improvements or construction already made) without first having expressly assumed the Developer's obligations to the Agency by written agreement satisfactory to the Agency. The holder in that event must agree to complete, in the manner provided in this Agreement, the improvements to which the lien or title of such holder related, and submit evidence satisfactory to the Agency that it has the qualifications and/or financial responsibility necessary to perform such obligations. Any such holder properly completing such improvements shall be entitled, upon written request made to the Agency, to a Certificate of Completion from the Agency. 4.5.4 Failure of Holder to Complete Improvements In any case where, six (6) months after default by the Developer in completion of construction of improvements on any Parcel under this Agreement, the holder of any mortgage, deed of trust or other security interest creating a lien or encumbrance upon such Parcel (or portion thereof) has not exercised the option to construct, or if it has exercised the option but has not proceeded diligently with construction, the Agency may purchase p: \9\9484\46565\Trans\DispA9r2. 060 -~ ~-/?0 the mortgage, deed of trust or other security interest by payment to the holder of the amount of the unpaid debt, plus any accrued and unpaid interest. If the ownership of the Parcel (or portion thereof) has vested in the holder, the Agency, if it so desires, shall be entitled to a conveyance from the holder to the Agency upon payment to the holder of an amount equal to the sum of the following: (a) The unpaid mortgage, deed of trust or other security interest debt at the time title became vested in the holder (less all appropriate credits, including those resulting from coLlection and application of rentals and other income received during foreclosure proceedings) . (b) All expenses with respect to foreclosure. (c) The net expense, if any (exclusive of general overhead), incurred by the holder as a direct result of the subsequent ownership or management of the Parcel (or portion thereof), such as insurance premiums and real estate taxes. (d) The cost of any improvements made by such holder. (e) An amount equivalent to the interest that would have accrued on the aggregate of such amounts had all such amounts become part of the mortgage or deed of trust debt and such debt had continued in existence to the date of payment by the Agency. 4.5.5 Riqht of the Aqencv to Cure Mortqaqe, Deed of Trust, or Other Security Interest Default In the event of a default or breach by Developer under any mortgage, deed of trust or other security instrument with respect to any Parcel prior to the issuance of a Certificate of Completion by the Agency wi th respect to such Parcel, the holder of such security instrument shall give the Agency the same notice and cure rights to which Developer is entitled under the applicable loan documents. In the event of a default or breach by the Developer of a mortgage, deed of trust or other security interest with respect to any Parcel (or any portion thereof) prior to the issuance of a Certificate of Completion by the Agency, and the holder has not exercised its option to complete the development, the Agency may cure the default prior to completion of any foreclosure. In such event, the Agency shall be immediately entitled to reimbursement p,\9\94B4\46565\Trans\DispA9r2.060 -~ ~ - I cf7 from the Developer of all costs and expenses incurred by the Agency in curing the default. The Agency shal1 also be entitled to a lien upon the applicable Parcel (or portion thereof) to the extent of such costs and disbursements. Any such lien shall be subordinate and subject to mortgages, deeds of trust, or other security instruments executed for the sole purpose of obtaining funds to purchase and develop such Parcel (or portion thereof) as authorized herein. 4.6 Riqht of the Aqencv to Satisfy other Liens on the Property After Title Passes Prior to the recordation of the Certificate of Completion (referred to in Section 4.7 of this Agreement), and after the Developer has had a reasonable time to challenge, cure or satisfy any liens or encumbrances on the applicable Parcel (or any portion thereof), the Agency shall have the right to satisfy any such liens or encumbrances; provided, however, that nothing in this Agreement shall require the Developer to payor make provisions for the payment of any tax, assessment, lien or charge so long as the Developer in good faith shall contest the validity or amount thereof, and so long as such delay in payment shall not subject the Parcel (or any portion thereof) to forfeiture or sale. 4.7 Certificate of Completion Promptly after completion of all construction and development to be completed by the Developer upon the applicable Parcel, and assuming Developer is not otherwise in default under this Agreement or in non-compliance with applicable local laws, permits and conditions, the Agency shall furnish the Developer with a Certificate of Completion upon written request therefor by the Developer. The Agency shall not unreasonably withhold any such Certificate of Completion. Such Certificate of Completion shall be, and shall so state, conclusive determination of satisfactory completion of the construction required by this Agreement upon the applicable Parcel, and of full compliance with the terms hereof wi th respect to the applicable Parcel. The Agency may also furnish the Developer with a Certificate of Completion for portions of the improvements upon the applicable Parcel, including for specific uses, as are properly completed and ready to use if the Developer is not in default under this Agreement. The Certificate of Completion shall be in such form as to permit it to be recorded in the Office of the Recorder of San Diego County. If the Agency refuses or fails to furnish a Certificate of Completion for the applicable Parcel after written request from the Developer, the Agency shall, within fifteen (15) days of receipt of the written request, provide the Developer with a written statement which details the reasons the Agency refused or failed to furnish a Certificate of Completion. The statement shall also p: \9\9484\46565\Trans\DispAgr2. 060 -~ -'I ~ /d'R contain the Agency's op1n10n of the action the Developer must take to obtain a Certificate of Completion. If the reason for such refusal is confined to the immediate unavailability of specific items or materials for landscaping, or incidental interior punchlist items, or incidental exterior punchlist items which do not adversely affect the appearance of the development, the Agency will issue its Certificate of Completion upon the posting of a bond by the Developer with the Agency in an amount representing one hundred and fifty percent (150%) of the cost of the work not yet completed. Such Certificate of Completion shall not constitute evidence of compliance with or satisfaction of any obligation of the Developer to any holder of a mortgage, or any insurer of a mortgage securing money loaned to finance the improvements, nor any part thereof. Such certificate of Completion is not notice of completion as referred to in Section 3093 of the California Civil Code. In no event shall the issuance of such Certificate of Completion constitute a representation by Agency for any other purpose as to the adequacy or completeness of the applicable improvements, or otherwise relieve Developer of any liability for improper design or construction (or other performance) of the applicable improvements or of any liability for any indemnity or other obligation undertaken by Developer with respect to the applicable improvements. 5. USE OF THE SITE 5.1 Uses The Developer covenants and agrees for itself, its successors, its assigns and every successor in interest to the Site or any part thereof, that during construction and thereafter the Developer, its successors and assignees shall devote the Site, and each Parcel, to the uses specified in the Redevelopment Plan, the Scope of Development and the Grant Deed. 5.2 Maintenance and Control of Common Areas Developer shall convey and Agency shall accept title to the "Common Areas" associated with that Phase as more particularly described on Attachment 4, as part of the parcel map process and otherwise prior to the conveyance of the first Business Home unit. Agency staff and Developer agree to meet and confer to formulate an assessment district to provide maintenance of the Common Areas. Agency staff and Developer shall present the application for the assessment district to the City for its consideration, with the goal of substantial implementation prior to the conveyance of Phase 1 . 5.3 Obliqation to Refrain from Discrimination p: \9\9484\46565\Trans\DispAgr2. 060 -~ 1-I-lfJ~ The Developer covenants and agrees for itself, its successors, its assigns and every successor in interest to the Site or any part thereof, there shall be no discrimination against or segregation of any person, or group of persons, on account of sex, marital status, race, color, creed, religion, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Site nor shall the Developer itself or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Site. 5.4 Form of Nondiscrimination and Nonseareaation Clauses The Developer shall refrain from restricting the rental, sale or lease of the Site on the basis of sex, marital status, race, color, creed religion, ancestry or national origin of any person. All deeds, leases or contracts shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses: (a) In deeds: liThe grantee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of sex, marital status, race, color, creed, religion, national origin, or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee itself or any person claiming under or through it, establish or permit, any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the land herein conveyed. The foregoing covenants shall run with the land." (b) In Leases: liThe lessee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, and this lease is made and accepted upon and subject to the following conditions: That there shall be no discrimination against or segregation of any person or group of persons, on account of sex, marital status, race, color, creed, religion, national origin or ancestry in the leasing, subleasing, renting, transferring, use, occupancy, tenure p: \9\9484\46565\Trans\oispAgr2. 060 -JE ~ -19CJ or enjoyment of the land herein leased, nor shall lessee itself, or any person claiming under or through it, establish or permit such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants or vendees in the land herein leased." (c) In contracts: "There shall be no discrimination against or segregation of any person or group of persons on account of sex, marital status, race, color, religion, creed, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land, nor shall the transferee itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the land." 5.5 Land Use Controls Developer and Agency shall work together to implement mechanisms to restrict the use of the Business Homes to residential/commercial joint owner occupancy, as follows: (a) In Deeds: Deeds shall contain substantially the following clause: "The grantee herein covenants by and for itself, its successors and assigns, and all persons claiming, under or through them, for the benefit of the City of Chula Vista, the Redevelopment Agency of the City of Chula Vista, and each and every other Business Home owner at the Site, that the commercial and residential portions of the property shall be jointly used by the same individual occupant." (b) In CC&R' s : The CC&R' s described in Section 5.8 shall include a provision requiring joint occupancy of the commercial and residential portions of each Parcel. (c) Business License Restrictions: Zoning permits and/or business licenses issued for businesses occupying any Parcel may include a provision requiring joint occupancy of the commercial and residential portions of each parcel. p:\9\9484\46565\Trans\DispAgr2.060 -~ 1-- /9 ( 5.6 Effect and Duration of Covenants The covenants established in this Agreement shall, without regard to technical classification and designation, be binding on the Developer and any successor in interest to the Site and each Parcel (or any part thereof) for the benefit and in favor of the Agency, its successors and assigns, and the City. Such covenants as are to survive the issuance of the Certificate of Completion by the Agency shall be contained in the Grant Deed and shall remain in effect for the period specified therein. 5.7 Covenants, Conditions and Restrictions Prior to Agency I s conveyance of Parcel 1 to Developer, Developer shall prepare Covenants, Conditions and Restrictions ("CC&R 's") for review and approval by Agency. The CC&R I s shall address occupancy restrictions, commercial area use, access, maintenance, alterations, maintenance of private improvements and other similar issues which Agency and Developer mutually agree should be included or which are otherwise required by Agency or Ci ty. Agency shall be a third party beneficiary of the CC&R I s with enforcement rights. 6. DEFAULTS, REMEDIES AND TERMINATION 6.1 Defaults - General Subject to the extensions of time set forth in Section 7.4, failure or delay by either party to perform any term or provision of this Agreement constitutes a default under this Agreement. The party who fails or delays must immediately commence to cure, correct or remedy such failure or delay and shall complete such cure, correction or remedy using its best efforts and all due diligence, and during any period of curing shall not be in default. The injured party shall give written notice of default to the party in default, specifying the default complained of by the injured party. Failure or delay in giving such notice shall not constitute a waiver of any default, nor shall it change the time of default. Except as otherwise expressly provided in this Agreement, any failures or delays by either party in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies. Delays by either party in asserting any of its rights and remedies shall not deprive either party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. p: \9\9484\46565\Trans\DispAgr2. 060 -~ ~-/92-- 6.2 Leqal Actions 6.2.1 Institution of Leqal Actions In addition to any other rights or remedies, either party may institute legal action to cure, correct or remedy any default, to recover damages for any default, or to obtain any other remedy consistent with the purpose of this Agreement. Such legal actions must be instituted in the Superior Court of the County of San Diego, State of California, in any other appropriate court of that county, or in the Federal District Court in the Southern District of California. 6.2.2 Applicable Law The Laws of the State of California shal1 govern the interpretation and enforcement of this Agreement. 6.2.3 Acceptance of Service of Process In the event that any legal action is commenced by the Developer against the Agency, service of process on the Agency shall be made by personal service upon the Executive Director or Chairman of the Agency, or in such other manner as may be provided by law. In the event that any legal action is commenced by the Agency against the Developer, service of process on the Developer shall be made by personal service upon the Developer (or upon a general partner or officer of the Developer if an entity) and shall be valid whether made within or without the State of California, or in such manner as may be provided by law. 6.3 Riqhts and Remedies Are Cumulative Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative, and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 6.4 Damaqes If either party defaults with regard to any of the provisions of this Agreement, the non-defaulting party shall serve written notice of such default upon the defaulting party. If the default is not commenced to be cured within thirty (30) days after service of the notice of default and is not cured promptly in a continuous and diligent manner within a reasonable period of time after commencement, the defaulting party shall be liable to the non- defaulting party for any damages caused by such default, and the non-defaulting party may thereafter (but not before) commence an p: \9\9484\46565\Trans\DispAgr2. 060 -~ 4 - 193 action for damages against the defaulting party with respect to such default. 6.5 Specific Performance If either party defaults with regard to any of the provisions of this Agreement, the non-defaulting party shall serve written notice of such default upon the defaulting party. If the default is not commenced to be cured within thirty (30) days after service of the notice of default and is not cured promptly in a continuous and diligent manner within a reasonable period of time after commencement the non-defaulting party, at its option, may thereafter (but not before) commence an action for specific performance of the terms of this Agreement pertaining to such default. 6.6 Remedies and Riqhts of Termination 6.6.1 Termination bv the Developer In the event that prior to the conveyance of title to the applicable Parcel to the Developer: (a) the Agency, despite being in a position to do so, does not tender either conveyance of title to the applicable Parcel or possession thereof, to the Developer in the manner and condition, and by the date provided in this Agreement; or (b) the parties are unable to agree to the allocation of responsibility for Additional Remediation Work; or (c) the Agency is unable, despite diligel).t and good faith efforts, to timely convey title to the applicable Parcel under circumstances which will freely permit the Parcel to be cleared and developed in accordance wi th the terms and conditions of this Agreement; or (d) the Developer is unable, despite diligent and good faith efforts, to obtain financing for the acquisition and development of the applicable Parcel and submit evidence thereof to the Agency as referred to in Section 2.15; and (e) if any default or failure referred to in subdivision (a) or (b) of this Section shall not be cured within thirty (30) days after the date of written demand by the Developer; p: \9\9484\46565\Trans\OispAgr2. 060 ~ L/ -/9{ then this Agreement, at the option of the Developer, shall be terminated with respect to any unconveyed Parcels, by written notice thereof to the Agency, and except to the extent provided in Section 3.2(d) of this Agreement, neither the Agency nor the Developer shall have any further rights against or liability to the other under this Agreement with respect to any unconveyed Parcels, or with respect to the entire Site if no Parcel has been conveyed. 6.6.2 Termination bv AqencV In the event that prior to the conveyance of title to the applicable Parcel to the Developer: (a) the Developer shall fail to timely make any report to the Agency on its progress in obtaining financing for the development on a Parcel as required by Section 2. 15 of this Agreement, or to submit to the Agency the evidence of financing commitments referred to in Section 2.15 of this Agreement; or (b) the Developer (or any successor in interest) assigns or attempts to assign the Agreement or any right herein, or in the Site or any Parcel (or portion thereof); or (c) the Developer does not submit any plans, drawings and related documents as required by this Agreement by the date provided in this Agreement therefor; or (d) the Developer does not pay the Purchase Price and take title to the applicable Parcel under a tender of conveyance by the Agency pursuant to this Agreement; or (e) the Agency is unable, despite diligent and good faith efforts, to timely convey title to the applicable Parcel under circumstances which will freely permit the Parcel to be cleared and developed in accordance wi th the terms and conditions of this Agreement; and (f) if any default or failure referred to in subdivisions (a), (b), (c), (d) or (e) of this Section shall not be cured within thirty (30) days after the date of written demand by the Agency; then this Agreement and any rights of the Developer, or any assignee or transferee, in this Agreement, or arising therefrom with respect to the Agency, shall at the option of the Agency, be terminated with respect to any unconveyed Parcels, by written p,\9\94B4\46565\Trans\DispAgr2.D60 ~ 1-/95 notice to the Developer, and except to the extent provided in Section 3.2(d), neither the Agency nor the Deve10per sha11 have any further rights against or liability to the other under this Agreement with respect to any unconveyed Parcels, or with respect to the entire Site if no Parce1 has been conveyed. 6.7 Riqht of Reentrv The Agency sha11 have the right, at its option, to reenter and take possession of any Parce1 (or portion thereof) with all improvements thereon, and to terminate and revest in the Agency the estate theretofore conveyed to the Developer, if after conveyance of title to such Parcel and prior to the recordation of the Certificate of Completion pertaining to such Parcel (or portion thereof), the Developer (or its successors in interest) sha11: (b) (c) Such right to be subject to and invalid or limit: (a) p: \9\9484\46565\Trans\DispAgr2. 060 (a) fail to commence or complete construction of the improvements on such parce1 (or portion thereof) as required by this Agreement for a period of three (3) months after written notice to proceed from the Agency, provided that the Developer shall not have obtained an extension or postponement to which the Developer may be entitled pursuant to Section 7.4 hereof; or abandon or substantially suspend construction of the improvements on such Parcel (or portion thereof) for a period of three (3) months after written notice of such abandonment or suspension has been given by the Agency to the Developer, provided the Developer has not obtained an extension or postponement to which the Developer may be entitled to pursuant to Section 7.4 hereof; or assign or attempt to assign this Agreement, or any rights herein, or transfer, or suffer any involuntary transfer of such Parcel, or any part thereof, in violation of this Agreement, and such violation shall not be cured within thirty (30) days after the date of receipt of written notice thereof by the Agency to the Developer. reenter, repossess, terminate and revest shall be limited by and shall not defeat, render any mortgage, deed of trust or other security interests permitted by this Agreement with respect to the applicable Parcel; - yf-- ~- / 9&, (b) any rights or interests provided in this Agreement for the protection of the holders of such mortgages, deeds of trust or other security interests. The rights established in this Section 6.7 shall not apply to any Parcel (or portion thereof) on which the improvements to be constructed thereon have been completed in accordance wi th the Agreement and for which a Certificate of Completion has been recorded therefor as provided in Section 4.7. The Grant Deed to each Parcel shall contain appropriate reference and provision to give effect to the Agency's right, as set forth in this Section 6.7 under specified circumstances prior to the recordation of the Certificate of Completion, to reenter and take possession of the Parcel, or any part thereof, with all improvements thereon, and to terminate and revest in the Agency the estate conveyed to the Developer. Upon the revesting in the Agency of title to the applicable Parcel, or any part thereof, as provided in this Section 6.7 the Agency shall, pursuant to its responsibilities under state law, use its best efforts to resell the Parcel, or any part thereof, as soon and in such manner as the Agency shall find feasible and consistent with the objectives of the Community Redevelopment Law and the Redevelopment Plan to a qualified and responsible party or parties (as determined by the Agency), who will assume the obligation of making or completing the improvements, or such other improvements in their stead, as shall be satisfactory to the Agency and in accordance with the uses specified for the Parcel, or any part thereof, in the Redevelopment Plan. Upon such resale of the Parcel, or any part thereof, the proceeds thereof shall be applied: (a) first, to payoff all liens and en9umbrances and offsets for any Developer defaults; and (b) second, to reimburse the Agency on its own behalf or on behalf of the City of all costs and expenses incurred by the Agency, including but not limited to salaries to personnel engaged in such action, in connection with the recapture, management and resale of the Parcel, or any part thereof (but less any income derived by the Agency from the sale of the Parcel, or any part thereof, in connection with such management); all taxes, assessments and water and sewer charges with respect to the Parcel or any part thereof (or, in the event the Parcel, or any part thereof, is exempt from taxation or assessment or such charges during the period of ownership, then such taxes, assessments or charges, as would have been payable if the Parcel, or part thereof, were p: \9\9484\46565\Trans\DispA9r2. 060 -~ ~ - /97 not SO exempt); any payments made or necessary to be made to discharge or prevent from attaching or being made any subsequent encumbrances or liens due to obligations, defaults or acts of the Developer, its successors or transferees; any expendi tures made or obligations incurred with respect to the making or completion of the agreed improvements or any part thereof on the Parcel, or any part thereof; and any amounts otherwise owing to the Agency by the Developer and its successor or transferee. Any balance remaining after such reimbursements shall be retained by the Agency as its property. To the extent that the right established in this Section 6.7 involves a forfeiture, it must be strictly interpreted against the Agency, the party for whose benefit it is created. The rights established in this Section 6.7 are to be interpreted in light of the fact that the Agency will convey each Parcel to the Developer for development and not for speculation in undeveloped land. 7. GENERAL PROVISIONS 7.1 Notices, Demands and Communications between the Parties Formal notices, demands and communications between the Agency and the Developer shall be sufficiently given if dispatched by registered or certified mail, postage prepaid, return receipt requested, to the principal offices of the Agency and the Developer, as designated in Section 1.5 hereof. Such written notices, demands and communications may be sent in the same manner to such other addresses as either party may from time to time designate by mail as provided in this Section 7.1. 7.2 Conflicts of Interest No member, official or employee of the Agency shall have any personal interest, direct or indirect, in this Agreement nor shall any such member, official or employee participate in any decision relating to the Agreement which affects his personal interests or the interests of any corporation, partnership or association in which he is, directly or indirectly, interested. The Developer warrants that it has not paid or given, and will not payor give, any third party any money or other consideration for obtaining this Agreement. This paragraph shall not be construed to apply to the payment of attorneys I fees and other consultant costs. 7.3 Nonliability of the Aqency Officials and Employees p,\9\9484\46565\Trans\DispAgr2.D6D -~ ~-/C;J> No member, official, employee or consultant of the Agency shall be personally liable to the Developer, or any successor in interest, in the event of any default or breach by the Agency or for any amount which may become due to the Developer or to its successor, or on any obligations under the terms of this Agreement. 7.4 Time is of the Essence: Enforced Delav: Time of Performance Extension of Time is of the essence with respect to each and every obligation hereunder. Notwithstanding the foregoing, in addition to specific provisions of this Agreement, performance by either party hereunder shall not be deemed to be in default where delays or defaults are due to war, insurrection, strikes, lock-outs, riots, floods, earthquakes, fires, casualties, Acts of God, acts of the public enemy, epidemics, quarantine restrictions, freight embargoes, adverse economic or market conditions, lack of transportation, governmental restrictions, litigation, unusually severe weather, inability to secure necessary labor, materials or tools, delays of any contractor, subcontractor or supplies, acts of the other party, acts or failure to act of the City or any other public or governmental agency or entity (other than that act or failure to act of the Agency). An extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause, if notice by the party claiming such extension is sent to the other party within thirty (30) days of knowledge of the commencement of the cause. Times of performance under this Agreement may also be extended in writing by mutual agreement of the Agency and the Developer. 7.5 Inspection of Books and Records The Agency shall have the right after reasonable notice and at all reasonable times during normal business hours to inspect the books and records of the Developer pertaining to the Site and each Parcel as pertinent to the purposes of this Agreement. The Developer shall also have the right after reasonable notice and at all reasonable times during normal business hours to inspect the books and records of the Agency pertaining to the Site and each Parcel as pertinent to the purposes of this Agreement. 7.6 Approvals Approvals required of the Agency or the Developer shall not be unreasonably withheld except as otherwise provided herein, or otherwise required by law. 7.7 Real Estate Commissions The Agency shall not commissions, brokerage fees the sale of the Site or any be liable for any real estate or finders fees which may arise from Parcel to the Developer. The Agency p: \9\9484\46565\Trans\DispAgr2. 060 -~ ~ - /99 . , and the Developer each represent to the other that it has employed no broker, agent, or finder in connection with this transaction. 7.8 No Third Party Beneficiarv The terms and provisions herein contained shall be only for the benefit of the parties hereto and such terms and conditions shall not enure to the benefit of any other party whosoever, it being the intention of the parties hereto that no one shall be deemed to be a third party beneficiary of this Agreement. 7.9 Developer's Representation Developer represents and warrants that Josef Citron and Lenore Citron are the sole shareholders of Citron Realty Management Corporation, a California corporation, and that Citron Realty Management Corporation and Josef and Lenore Citron personally, collectively own a majority interest of Broadway Village Business Homes, L.P., a California limited partnership. 7.10 Covenants to Run with Land All covenants contained in this Agreement pertaining to the use of the Site or any Parcel thereof shall run with the land and shall be binding for the benefit and in favor of the Agency, the City of Chula Vista, and their respective successors and assigns. The City and the Agency, in the event of any breach of any such covenants, shall have the right to exercise any and all remedies provided hereunder or otherwise available at law or in equity, in order to enforce compliance with such covenants. 7.11 Recordation Agency reserves the right, at its election, to ,cause the recordation of this Agreement or a Memorandum thereof which Developer agrees to execute and acknowledge. The recordation of a Certificate of Completion shall operate to remove the effect of this Agreement or any Memorandum thereof upon the real property described in that Certificate of Completion. 7.12 Compliance with Laws; Disclosure Developer shall comply with all laws relating to the marketing and sale of the Business Home units, including, as applicable, disclosure of the existence of the assessment district and any land use restrictions. 7.13 Leqal Challenqe In the event that any court action or other legal proceeding is brought by any person not a party to this Agreement to challenge this Agreement, the granting of any Entitlements or the fulfillment of any condition to the obligations of the parties hereto, and p:\9\9484\46565\Trans\DispAgr2.060 -~ J-/ - ~tT2J without regard to whether or not the Developer or the Agency is a party to said action or proceeding, the Developer shall have the right to terminate this Agreement upon thirty (30) days notice in writing to Agency given at any time during the pendency of such action or proceeding prior to the conveyance of the Site or any Parcel thereof to Developer. If this Agreement is not terminated, Developer shall indemnify the Agency and the City for all expenses including attorneys' fees, to defend the City or the Agency from any claim, action or proceeding against the City, the Agency or their agents officers, or employees to attack, set aside, void or annul the approval of this Agreement or the approval of any Entitlements or condition to the obligations of the parties hereto. The City and the Agency shall promptly notify Developer of any such claim, action or proceeding. For purposes of this Section, the Developer acknowledges that the term "attorney's fees" includes the reasonable costs incurred by the City or Agency in the defense of any claim, action or proceeding by the City Attorney or his staff. In the event of a successful challenge of the legality of this Agreement or any implementing documents, this Agreement and all implementing document shall terminated and no party shall have any further obligation thereunder. 8. ENTIRE AGREEMENT, WAIVERS AND AMENDMENTS This Agreement shall be executed originals each of which is deemed to Agreement includes pages and constitute the entire understanding and in duplicate be an original. This attachments which agreement of the parties. This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements between the parties with respect to all or any part of the Site. None of the terms, covenants, agreements or conditions set forth in this Agreement shall be deemed to be merged with the Grant Deed conveying title to any Parcel and this Agreement shall continue in full force and effect with respect to each Parcel before and after conveyance until after a Certificate of Completion for the applicable Parcel as provided in Section 4.8 is recorded. All waivers of the provisions of this Agreement must be in writing and signed by the appropriate authorities of the Agency or the Developer, and all amendments hereto must be in writing and signed by the appropriate authorities of the Agency and the Developer. p,\9\9484\46565\Trans\DispAgr2.060 -1ft-- ~ - ;2IJ/ 9. TIME FOR ACCEPTANCE OF AGREEMENT BY THE AGENCY; DATE OF AGREEMENT This Agreement, when executed by the Developer and delivered to the Agency, must be authorized, executed and delivered by the Agency within sixty (60) days after this Agreement is signed by the Developer, or this Agreement may be terminated by the Developer on wri tten notice to the Agency. The effective date of this Agreement shall be the date it is signed by the Agency. BROADWAY VILLAGE BUSINESS HOMES, L.P., a California limited partnership By: Citron Realty Management Corporation, a California corporation Dated: By: Its: Dated: By: Its: REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA (Agency) Dated: By: Its: APPROVED AS TO FORM AND LEGALITY ON THIS DAY OF 199 By: Agency General Counsel p:\9\9484\46565\Trans\DispAgr2.D6D -~ /f ->> 2-- 1. TABLE OF CONTENTS ~ SUBJECT OF AGREEMENT . . . . . . . . . . 1.1 Purpose of the Agreement. . . 1.2 The Redevelopment Plan. . . . 1.3 The Redevelopment Project Area 1.4 The Site. ..... 1.5 Parties to the Agreement. . . 2 2 2 2 3 3 2. ACQUISITION AND DISPOSITION OF THE SITE 3 2.1 Sale and Purchase . . . 3 2.2 Adjustment of Purchase Price . 4 2.3 Phasing of the Acquisition . . . . 5 2.4 Conditions to Developer's Right to Acquire Site. .. .. .. .. .. 2.5 2.6 2.7 2.8 2.9 2.10 2.11 2.12 2.13 2.14 2.15 3. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .... ........ 6 Escrow . . . . . . . . . . . " .... 8 Conveyance of Title and Delivery of Possession 10 Form of Deed . " ......... 11 Condition of Title. . . . . . . . . . . . . . 11 Time for and place for Delivery of Deed . .. 11 Payment of the Purchase Price and Recordation of the Deed. . . . . . . 11 Title Insurance 11 Taxes and Assessments 12 Condition of the Site 12 Preliminary Work by the Developer .. 13 Submission of Evidence of Financing 13 PREACQUISITION OBLIGATIONS. 3.1 Demolition of Existing 3.2 Site Remediation Work 4. .. .. .. .. .. 14 14 14 Buildings DEVELOPMENT OF THE SITE 4.1 Development of 4.1 .1 4.1.2 Construction 16 16 16 4.1.3 4.1. 4 the Site Scope of Development Basic Concept and Schematic Drawings . . . . . . . . . 16 Landscaping and Grading Plans 16 Construction Drawings and Related Documents for the Site ... 17 Agency Approval of Plans, Drawings and Related Documents 17 Cost of Construction 18 Construction Progress Reports. 18 Indemnification During Construction; Bodily Injury and Property Damage Insurance . Antidiscrimination during 4.1. 5 4.1.6 4.1.7 4.1.8 4.1.9 18 4.1.10 .. .. .. .. .. .. .. .. .. .. .. .. .. .. 19 19 Local, State and Federal Laws ?1<- ~ - ,).t13 p:\9\9484\46565\Trans\OispAgr2.060 4.1.11 City and Other Governmental Agency Permi ts . . . . . . . . . . . . . . 1 9 4.1.12 License/Easement..... 19 4.2 Fees. . .. .............. 20 4.3 Taxes; Assessments; Encumbrances; and Liens 20 4.4 Prohibition against Transfer. . . . . . " 20 4.5 Security Financing; Right of Holders. . .. 21 4.5.1 No Encumbrances except Mortgages, Deeds of Trust, Conveyances and Leases-Back or Other Conveyance for Financing for Development . . . 21 4.5.2 Holder Note Obligated to Construct Improvements . . . . . .. 21 4.5.3 Notice of Default to Mortgage, Deed of Trust or Other Security Interest Holders; Right to Cure . '. 22 4.5.4 Failure of Holder to Complete Improvements . . . . . 22 4.5.5 Right of the Agency to Cure Mortgage, Deed of Trust, or Other Security Interest Default . 23 4.6 Right of the Agency to Satisfy Other Liens on the Property After Title Passes 24 4.7 Certificate of Completion 24 REMEDIES AND TERMINATION 28 Defaults - General . . . 28 Legal Actions . . . . . 29 6.2.1 Institution of Legal Actions 29 6.2.2 Applicable Law . . . . . " 29 6.2.3 Acceptance of Service of Process 29 Rights and Remedies Are Cumulative 29 Damages ............ 29 Specific Performance . . . . . . . 30 Remedies and Rights of Termination 30 6.6.1 Termination by the Developer 30 6.6.2 Termination by Agency 31 Right of Reentry 32 5. USE OF THE SITE . . . . . . . . . . 5 . 1 Uses. . . . . . . . . . . 5.2 Maintenance and Control of Common Areas 5.3 Obligation to Refrain from Discrimination 5.4 Form of Nondiscrimination and Nonsegregation Clauses . . . . . . . . . . . . 5.5 Land Use Controls . . . . . 5.6 Effect and Duration of Covenants 5.7 Covenants, Conditions and Restrictions 6. DEFAULTS, 6.1 6.2 6.3 6.4 6.5 6.6 6.7 7. GENERAL PROVISIONS . . . . 7.1 Notices, Demands and Communications between the Parties 7.2 Conflicts of Interest . . . . . . . . p: \9\9484\46565\Trans\DispAgr2. 060 ~ -;L~ f - i)-C.. 25 25 25 25 26 27 28 28 34 34 34 7.3 7.4 7.5 7.6 7.7 7.8 7.9 7.10 8. Nonliability of ~he Agency Officials and Employees . . . . . . . . . . . . . . . Time is of the Essence; Enforced Delay: of Time of Performance . . . . . Inspection of Books and Records Approvals . . . . . . . . Real Estate Commissions No Third Party Beneficiary Developer's Representation Covenants to Run with Land . . . 34 Extension 35 35 35 35 36 36 36 37 ENTIRE AGREEMENT, WAIVERS AND AMENDMENTS 9. TIME FOR ACCEPTANCE OF AGREEMENT BY THE AGENCY; DATE OF AGREEMENT ..................... 38 p:\9\9484\46565\Trans\DispAgr2.060 .V'"^ - J..-n:-- ~-)J)5 This Page Blank "-1- Meo DISPOSITION AND DEVELOPMENT AGREEMENT by and between REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA AGENCY, and BROADWAY VILLAGE BUSINESS HOMES, L.P., DEVELOPER July _, 1995 DISPOSITION AND DEVELOPMENT AGREEMENT THIS AGREEMENT is entered into effective as of , 1995, by and between the REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA (the "Aaencv") and BROADWAY VILLAGE BUSINESS HOMES, L.P., a California limited partnership (the "Develooer"). The Agency and the Developer agree as follows: RECITALS A. The City Council of the City of Chula Vista ( "Ci tv") has established the Agency and has approved and adopted a redevelopment plan for a redevelopment project known as the Southwest Redevelopment Project by its adoption of Ordinance No. 2720 on November 27, 1990, pursuant to the provisions of Sections 33000 et seq. of the California Health and Safety Code ("California Communi tv Redevelopment Law"). B. The Agency is undertaking a program, in the interest of health, safety and general welfare of the people of the City pursuant to its authority under the California Community Redevelopment Law, for the redevelopment, replanning and redesign of blighted areas within the Southwest Redevelopment Project area which are characterized by stagnant, improperly utilized and unproductive land which requires redevelopment. C. The Agency is desirous of carrying out the redevelopment plan for the Southwest Redevelopment Project area by providing for the development of certain real property within the project area more particularly described in Section 1.4 of this Agreement ("Site"). The Site is comprised of approximately 2.5 gross acres of land located within the Southwest Redevelopment Project area and within the City. The Site is currently owned by the Agency. D. In furtherance of the Agency's program to provide for the development of the Site, _the Agency entered into a Exclusive Negotiation Agreement dated July 19, 1994 pertaining to the Site by and between the Agency and Developer. E. The Agency has determined that the provisions of this Agreement will make feasible the redevelopment of the Site by the Developer in accordance with the purposes set forth in the Exclusive Negotiation Agreement and that such development will stimulate development of the remainder of the Southwest Redevelopment Project area and is in the best interests of the taxpayers and residents of the City and will otherwise promote the public health, safety and general welfare of City residents and is in accordance with federal, state and local laws and regulations. p:\9\94B4\46565\Trans\DispAgr3.D6D -1- F. This Agreement is being processed concurrently with a Rezone, Special USe Permit, Precise Plan and Mitigated Negative Declaration to develop the project proposed by Developer. G. The Agency/City finds that the implementation of this Agreement will assist in the elimination of blight, is consistent with the implementation of the redevelopment plan, and the consideration is not less than the fair reuse value at the use and with the covenants and conditions and development costs authorized by the sale described in this Agreement. 1 . SUBJECT OF AGREEMENT 1.1 Purpose of the Aqreement The purpose of this Agreement is to assist effectuation the Redevelopment Plan for the Southwest Redevelopment Project area in the City of Chula Vista by providing for the disposition and development of the hereinafter defined Site. The development of the Site pursuant to this Agreement, and the fulfillment generally of this Agreement, are in the vital and best interests of the City of Chula Vista and the health, safety, morals, and welfare of its residents, and in accord with the public purposes and provisions of applicable federal, state, and local laws and requirements. 1.2 The Redevelopment Plan This Agreement is subject to the provisions of the Redevelopment Plan for the Southwest Redevelopment Project area (which was approved and adopted on November 27, 1990 by the City Council of the City of Chula Vista by Ordinance No. 2720 (the "Redevelopment Plan"). The Redevelopment Plan is incorporated herein by reference and made a part hereof as though fully set forth herein. Any amendments hereafter to the Redevelopment Plan (as so approved and adopted) which change the uses or development permitted on the Site as proposed in this Agreement, or otherwise change the restrictions or-controls that apply to the Site, and which materially and adversely affect Developer's ability to develop the Site as contemplated by this Agreement, shall require the written consent of the Developer. Amendments to the Redevelopment Plan which do not materially or adversely affect Developer's ability to develop the Site as contemplated by this Agreement and/or which apply to other property in the Southwest Redevelopment Project area shall not require the consent of the Developer. 1.3 The Redevelopment Pro;ect Area The Southwest Redevelopment Project area is located in the City of Chula Vista, California (the "City"). The exact boundaries p:\9\9484\46565\Trans\DispAgr3.D6D -2- of the Redevelopment Project area are specifically and legally described in the Redevelopment Plan for such Redevelopment Project. 1.4 The Site The "Site" includes that portion of the Southwest Redevelopment Project area located at 760 Broadway, illustrated and designated on the "Site Mao" which is incorporated herein and attached to this Agreement as Attachment No. 1 and as more precisely described in the "Legal Description" which is incorporated herein and attached hereto as Attachment No. 1.A. 1.5 Parties to the Aqreement (a) The Aqencv. The "Aqencv" is a public bOdy, corporate and politic, exercising governmental functions and powers, and organized and existing under Chapter 2 of the Community Redevelopment Law of the state of California. The principal office of the Agency is located at 276 Fourth Avenue, Chula Vista, California 91910. "Aaencv" Redevelopment Agency of any assignee of or responsibilities. as used the City successor in this Agreement includes of Chula Vista, California, to its rights, powers the and and (b) Develooer. The "Develooer" is Broadway Village Business Homes, L.P., a California limited partnership, whose general partner is Citron Realty Management Corporation, a California Corporation. Wherever the term "Developer" is used herein, such term shall include any permitted nominee, assignee or successor in interest as herein provided. 2. ACQUISITION AND DISPOSITION OF THE SITE 2.1 Sale and Purchase In accordance with and subject to all the terms, covenants, and conditions of this Agreement (including without limitation the Developer's right to terminate this Agreement pursuant to Section 6.6.1 of this Agreement), the Agency agrees to sell to the Developer and the Developer agrees to purchase each Parcel as shown on the Site Map (Attachment No.1) and more precisely described in the Legal Description (Attachment No. 1A). The Developer shall pay to the Agency as the purchase price for the Site Five Hundred Fifty Dollars ($550,000.00), payable over time in accordance with the provisions and conditions of one or more promissory notes ("Note ( s I " ) to be secured by one or more p: \9\9484\46565\Trans\DispAgr3. 060 -3- deeds of trust ("Deed(s) of Trust") encumbering Site (or portions thereof). If the Site is acquired in phases as provided in Section 2.3 of the Agreement, the Developer will execute and deliver to the Agency prior to the close of escrow for the purchase and sale of each such phase, a separate non-interest bearing Promissory Note and Deed of Trust encumbering the subject phase. Such Promissory Notes and Deed(s) of Trust for each phase shall be in a form to be agreed upon by the parties prior to the close of escrow for such phase, and shal1 specifical1y provide for partial releases and reconveyances of the lien of the Deed(s) of Trust upon the sale of units within such phase, based upon payment by the Developer of 110% of the per unit share of the remaining balance due under the subject Promissory Note. In addition, the Agency agrees to subordinate the lien of its Deed(s) of Trust to the lien of any construction financing previously approved by the Agency pursuant to Section 2.4(a) hereof. Pursuant to California Health and Safety Code Section 33433, the Agency has determined that, given the nature of the proposed development of the Site and the terms and conditions imposed by this Agreement, the purchase price is equal to or greater than the "reuse value" of the Site. If the Site is acquired in phases as provided in Section 2.3 of this Agreement, the Purchase Price for each such phase shall be based upon the pro rata share of square feet being acquired relative to the total square footage of the Site. For example, if a Parcel acquired is comprised of 17,300 square feet and the entire Site is comprised of 108,900 square feet, the purchase price for such Parcel would be Eighty Seven Thousand Three Hundred Seventy Three Dollars and Seventy Four Cents ($87,373.74), calculated as follows: 17,300 (the square footage of the Parcel) divided by 108,900 (the square footage of the Site) multiplied by $550,000 (the total purchase price for the Site) equals $87,373.74. 2.2 Adiustment of Purchase Price Agency desires to be reimbursed by Developer for Agency I 5 actual costs of demolition and pre-demolition hazardous materials testing for the Site, not to exceed One Hundred Twenty-Four Thousand Dollars ($124,000.00) ["Reimbursement Amount"]. Developer is willing to agree to a plan of reimbursement of up to, but not to exceed, the Reimbursement Amount, provided Developer achieves the level of profitability described in this paragraph. Both Agency and Developer acknowledge and agree that depending upon the circumstances, which neither party can control or guarantee, there can be no assurance that all or a portion of the Reimbursement Amount will be payable to Agency. Incomplete payment of the Reimbursement Amount, and with the understanding that the Reimbursement Amount shall not be payable from any other sources whatsoever, Developer shall pay Agency thirty percent (30%) of the difference between the" Adjusted Cost" and the "Net Sales Proceeds" of Phase 1, Phase 2 and Phase 3, as calculated at the completion of sales in Phase 3. "Adiusted Cost" shall mean any and all reasonable or necessary out-of-pocket costs incurred incident to the acquisition, development, marketing and sale of Business Homes p,\9\94B4\46565\Trans\DispAgr3.060 -4- upon the Site, including, without limitation, all costs associated with: (i) the acquisition of the Site; (ii) bank interest and fees, carrying costs, costs of raising all necessary funds, investors' twenty percent (20%) per annum return on capital (including all limited and general partners); (iii) labor; (iv) materials; (v) all on-site costs of labor, including office staff, materials, including site office rental and supplies, services including telephone and utilities, rentals including machinery and equipment; (vi) all utili ty, fees; City processing fees, charges, deposits and all school, park impact fees, connection or capacity (vii) developer I s fees ten percent (10%) of construction costs; (viii) third party consultants' fees, including appraisers, engineers, archi teets, system designers, testing and inspections; and (ix) any and all other miscellaneous costs including sales, advertising and promotion costs, models, legal and accounting costs. "Net Sales Proceeds" shall mean the gross sales price of Business Homes units sold in Phase 2 and Phase 3, less customary closing costs including sales commissions not to exceed six percent (6%) per unit. All calculations shall be made in accordance with generally accepted accounting principles. The amount of the Reimbursement Amount, or the fact that there is not a Reimbursement Amount, shall be determined by a certified accountant, reasonably approved by the Agency. Such determination (the "Proposed Reimbursement") shall be communicated to the Agency in writing, with a full accounting of all project costs and revenues, by no later than thirty (30) days after the close of escrow from the last Business Homes unit in Phase 3. The Agency will have thirty (30) days from the receipt of the Proposed Reimbursement to notify Developer in writing of its reasonable objection thereto, if any. If the Agency fails to notify Developer within this 30-day period of any such objections, the Proposed p: \9\9484\46565\Trans\DispAgr3. 060 -5- Reimbursement shall be deemed approved by the Agency and shall become the "Reimbursement Amount." If the Agency does properly' notify Developer of its objection(s) to the Proposed Reimbursement within this 30-day period, the parties will meet and confer in good faith and attempt to mutually agree upon a Reimbursement Amount. If the parties fail to agree upon a Reimbursement Amount after another 30 days, the matter wil1 be submitted to a mutually agreed upon arbitrator 10cated in San Diego County for binding arbitration pursuant to the rules of the American Arbitration Association. Based on all evidence presented, and in accordance with generally accepted accounting principles, the arbitrator shall make a final determination as to the Reimbursement Amount. The costs for arbitration shall be borne equally by the parties except that each party shall bear its own consultant and legal costs. arbitration shall be the sole remedy for a dispute under this Agreement with respect to the determination of the Reimbursement Amount. 2.3 Phasinq of the Acquisition Developer shall have the right but not the obligation to acquire the Site in Phases as set forth herein. Completion of the acquisition of any Phase(s) shall not obligate the Developer to acquire any subsequent phase(s). Upon satisfaction of the conditions to close set forth below, Developer may purchase the Site in a maximum of three (3) phases as follows: (a) The Phase 1 acquisition shall consist of that portion of the Site comprised of approximately square feet and generally shown as "Parcell" on the "Convevance Map" attached hereto as Attachment 2 and incorporated herein by this reference. Parcel 1 shall be used for the construction of six ( 6) model Business Homes and other required Phase 1 improvements for purposes of test marketing and modification of the design of the buildings. The Phase 1 acquisition shall be completed within four (4) months after execution of this Agreement. (b) The Phase 2 acquisition shall consist of that portion of the Site gener.ally shown on the Conveyance Map as "Parcel 2." Parcel 2 shall consist of approximately 1.26 acres less Parcell. Parcel 2 shall be used for the construction of twelve (12) Business Homes and other required Phase 2 improvements. In the event Developer elects to acquire Parcel 2, the Phase 2 acquisi tion shall be completed wi thin ten (10) months of the execution of this Agreement. (c) The Phase 3 acquisition shall consist of the remainder of the Site comprised of approximately 1.27 acres and shown on the Conveyance Map as "Parcel 3". Parcel 3 shall be used for construction of the remaining eighteen (18) Business Homes and other required Phase 3 improvements. In the event Developer elects to acquire Parcel 3, the Phase 3 acquisition shall be completed within twenty (20) months of the execution of this Agreement. p: \9\9484\46565\Trans\oispAgr3. 060 -6- (d) Before the conveyance of title to each Parcel, the Executive Director of Agency and Developer shall meet and develop a schedule for construction for the improvements on such parcel; provided, however, that the required improvements for Parcel 3 shall be completed no later than twelve (12) months after Developer's acquisition of Parcel 3. The Developer shall begin and complete all construction and development within the times specified in the schedule with such extensions of said dates as may be granted by the Agency in its sole discretion. The schedule is subject to Section 7.4 of this Agreement and is subject to revision from time to time as mutually agreed upon in writing between the Developer and the Executive Director of Agency, each exerCising their sole discretion. 2.4 Conditions to Developer's Riqht to ACQUire Site. Developer's right to acquire any portion of the Site shall be subject to the satisfaction of the following conditions precedent for the benefit of the Agency: (a) Approved Financinq. Developer must present to the Agency staff evidence of acceptable financing for construction of improvements on the Phase to be acquired. Acceptable financing entails: (1) a lender of excellent reputation which is reasonably acceptable to the Agency; (ii) who validly commits in writing on specified objective terms and conditions reasonably approved by Agency to finance the construction of the Phase improvements pursuant to a disbursement schedule which is reasonably acceptable to the Agency; (iii) who agrees that loan proceeds will only be used for costs associated with the Project pursuant to this Agreement; (iv) whose documentation permits the acquisition, without discount or recourse, of the loan by the Agency (or its assignee) in the event this Agreement is terminated as a result of a Developer default and the Agency takes back the property (as described in Section 6.7 below); (v) who agrees to release any designated areas to the assessment district that will own and maintain such areas without consideration upon the conveyance of the first unit; and (vi) whQ agrees to enter into an agreement with the Agency concerning the Agency's right to reenter the property on the terms and conditions set forth in Section 6.7 of this Agreement; (b) Approved Marketinq Study. Developer shall present to Agency staff in writing a marketing study prepared by Developer demonstrating substantial demand for Business Homes units in the phase to be acquired, including, without limitation, a list, with names and addresses, of interested or pre-committed purchasers, which shall be subject to reasonable approval by Agency staff; (c) Delivery of Promissory Note and Deed of Trust, and Payment of Closinq Costs. Developer shall deliver into escrow the original Promissory Note and Deed of Trust pursuant to which p:\9\9484\46565\Trans\DispAgr3.D60 -7- Developer shall pay the purchase price for such phase, and shall pay Developer's share of closing costs; and (d) Presale Recruirement. Agency shall abide by any Phase by Phase or total Project pres ale requirement that may be imposed, if at all, by Developer's construction lender. (e) Recruired Enti tlements. Developer shall receive approval of all required governmental approvals governing development and/or use of the Site ("Entitlements"), including Entitlements which must be obtained from the City and other public agencies. The parties hereto expressly acknowledge and agree that the Agency cannot grant any such Entitlements or cause any other governmental agency, including the City, to grant any such Entitlements. Accordingly, the parties hereto expressly agree that, notwithstanding approval of this Agreement, the obligations of each party hereto shall be contingent upon the receipt of all Entitlements required for the development of the Site in the manner set forth in this Agreement and the obligations of each party hereto shall only arise upon the receipt of such Entitlements. The Developer hereby releases the City and the Agency from any liability based upon the Developer's failure to obtain any such Entitlement and expressly agree that in no event shall any exercise of the City's or Agency's discretion to approve, condition or disapprove any Entitlement or other discretionary item which is a condition to the obligations of the parties of this Agreement be deemed to be a default or an act of bad faith by the City or the Agency. Developer and Agency shall cooperate to initiate and process the required Entitlements. The Entitlements include but may not be limited to the following: (1) Approval and recordation of a parcel map; (2) Formation and effectiveness of assessment district. In the event that all of the Entitlements are not approved within four (4) months of the effective date of this Agreement, or in the event that the City, the Agency, or any other entity shall deny any of the requested discretionary approvals or disapprove any required Entitlement or other agreement necessary for construction or use of the Site, then upon thirty (30) days written notice from either party to the other, this Agreement shall be of no force and effect and neither of the parties shall have any further obligations to any of the other parties pursuant to this Agreement. The parties understand and acknowledge that the City and Agency reserve the right to exercise their discretion as to all matters which they are, by law, entitled or required to exercise their discretion. p:\9\9484\46565\Trans\DispAgr3.D60 -8- ( f) CC&R 's. Agency approval of and recordation of the CC&R's as provided in Section 5.7 of this Agreement. (g) No Material Default. Developer shall not be in material default of this Agreement. 2.5 Escrow The Agency agrees to open an escrow for conveyance of each Parcel of the Site with Chicago Title Insurance Company or such other escrow agent as may be acceptable to both the Agency and the Developer (the "Escrow Aqent") as escrow agent in a timely manner. Sections 1.4-1.5 and 2.1-2.12 inclusive of this Agreement consti tute the joint escrow instructions of the Agency and the Developer, and a duplicate original of this Agreement shall be delivered to the Escrow Agent upon the opening of the escrow. The Agency and the Developer shall provide such addi tional escrow instructions consistent with this Agreement as shall be necessary. The Escrow Agent hereby is empowered to act under such instructions, and upon indicating its acceptance thereof in writing, delivered to the Agency and to the Developer within five (5) days after opening of the escrow, the Escrow Agent shall carry out its duties as Escrow Agent hereunder. Upon delivery of the Grant Deed for the applicable Parcel to the Escrow Agent by the Agency pursuant to Section 2.9 of this Agreement, the Escrow Agent shall record such Deed in accordance with these escrow instructions, provided that the title to the applicable Parcel can be vested in the Developer in accordance with the terms and provisions of this Agreement. The Escrow Agent shall buy, affix and cancel any transfer stamps required by law. Any insurance policies governing the applicable Parcel are not to be transferred. The Developer shall pay in escrow to the Escrow Agent the following fees, charges and costs not to exceed Three Thousand Dollars ($3,000.00) promptly after the Escrow Agent has notified the Developer of the amount of such fees, charges and costs, but not earlier than ten (10) days prior to the scheduled date for the conveyance of the applicable Parcel: 1. The entire escrow fee; 2. The premium for the title insurance policy as set forth in Section 2.11 of this Agreement; 3. Cost of drawing the Deed; 4. Recording fees; 5. Notary fees; p: \9\9484\46565\Trans\DispAgr3. 060 -9- 6. Any state, County or City documentary stamps or transfer taxes; 7. Fifty percent (50%) of the collective amount of the fees, charges and costs excluding Three Thousand Dollars ($3,000.00). To the extent that said fees, changes and costs exceed $3,000.00, then Developer and Agency shall share such costs equally. However, only that portion of the title insurance pOlicy premium with respect to C.L.T.A. standard title insurance shall be included in the Three Thousand Dollars ($3,000) limit. The Developer, if it desires any additional title insurance, shall be solely responsible for all additional premiums, including for A.L.T.A. coverage or special endorsements which it requests. The Developer shall also deposit the original Promissory Note and Deed of Trust for the applicable Parcel with the Escrow Agent in accordance with the provisions of Section 2.10 of this Agreement. The Agency shall pay in escrow to the Escrow Agent the following fees, charges and costs promptly after the Escrow Agent has notified the Agency of the amount of such fees, charges and costs, but not earlier than ten (10) days prior to the scheduled date for the conveyance of the applicable Parcel: 1. Costs necessary to place the title to the applicable Parcel in the condition for conveyance required by the provisions of this Agreement; 2. Ad valorem taxes, if any, upon the applicable Parcel for any time prior to the conveyance of title. The Agency shall timely and properly execute, acknowledge and deliver a Grant Deed in substantially the form established in Section 2.7 of this Agreement, conveying to the Developer title to the applicable Parcel in .accordance with the requirements of Section 2.8 of this Agreement, together with an estoppel certificate certifying that the Developer has completed all acts (except deposit of the Purchase Price), necessary to entitle the Developer to such conveyance, if such be the fact. The Escrow Agent is authorized to: 1 . Pay, and charge the Agency and the Developer, respectively, for any fees, charges and costs payable under this Section 2.5 of this Agreement. Before such payments are made, the Escrow Agent shall notify the Agency and the Developer of the fees, charges and costs necessary to clear title and close the escrow. p: \9\9484\46565\Trans\DispAgr3. 060 -10- 2. Disburse funds and deliver the Deed, the Promissory Note and Deed of Trust and other documents to the parties entitled thereto when the conditions of this escrow have been fulfilled by the Agency and the Developer. The original Promissory Note shall not be delivered by the Escrow Agent unless and until it has recorded the Deed to the applicable Parcel and has, delivered to the Developer a title insurance policy insuring title and conforming to the requirements of Section 2.11 of this Agreement. 3. Record any instruments delivered through this escrow if necessary or proper to vest title in the Developer in accordance wi th the terms and provisions of the escrow instructions portion of this Agreement (Sections 1.4-1.5 and 2.1-2.12). All funds received in this escrow shall be deposited by the Escrow Agent in a general escrow account with any state or national bank doing business in the State of California and reasonably approved by the Developer and the Agency, and may be combined in such with other escrow funds of the Escrow Agent. If this escrow is not in condition to close on or before the time for conveyance established in Section 2.6 of this Agreement, either party who then shall have fully performed the acts to be performed before the conveyance of title may, in writing, demand the return of its money, papers or documents from the Escrow Agent. No demand for return shall be recognized until ten (10) days after the Escrow Agent (or the party making such demand) shall have mailed copies of such demand to the other party or parties at the address of its principal place of business. Objections, if any, shall be raised by written notice to the Escrow Agent and to the other party wi thin the ten (10) day period, in which event the Escrow Agent is authorized to hold all money, papers and documents with respect to the applicable Parcel until instructed by a mutual agreement of the parties or, upon failure thereof, by a court of competent jurisdiction. It no such demands are made, the escrow shall be closed as soon as possible. If objections are raised as above-provided for, the Escrow Agent shall not be obligated to return any such money, papers or documents except upon the written instructions of both the Agency and the Developer, or until the party entitled thereto has been determined by a final decision of a court of competent jurisdiction. If no such objections are made within said ten (10) day period, the Escrow Agent shall immediately return the demanded money, papers or documents. Any amendment to the escrow instructions shall be in writing and signed by both the Agency and the Developer. At the time of any amendment the Escrow Agent shall agree to carry out its duties as Escrow Agent under such amendment. p: \9\9484\46565\Trans\DispAgr3. 060 -11- All communications from the Escrow Agent to the Agency or the Developer shall be directed to the addresses and in the manner established in Section 7.1 of this Agreement for notices, demands and communications between the Agency and the Developer. 2.6 Convevance of Title and Deliverv of Possession Subject to any mutually agreed-upon extension of time, conveyance to the Developer of title to each Parcel shall be completed on or prior to the dates set forth in Section 2.3 hereof or such later date mutually agreed to in writing by the Agency and the Developer and communicated in writing to the Escrow Agent. Except as otherwise provided herein, possession of the applicable Parcel shall be delivered to the Developer concurrent with the conveyance of title. The Developer shall accept title and possession to the applicable Parcel on or before the dates set forth above. 2.7 Form of Deed The Agency shall convey to the Developer title to the each Parcel in the condition provided in Section 2.8 of this Agreement by Grant Deed in a form to be mutually agreed upon by the Agency and the Developer consistent with this Agreement and otherwise utilizing Escrow Agent's standard form. The Grant Deed to each Parcel shall contain covenants necessary or desirable to carry out this Agreement. 2.8 Condition of Title The Agency shall convey to the Developer fee simple title to each Parcel of the Site. Developer will accept title to the Site subject to the Deed(s) of Trust in favor of the Agency for any of the phases and those items indicated on Schedule B of that certain CLTA title insurance policy, issued to the Agency by Chicago Title Company; provided, however, that Developer's acceptance of the items indicated in such title policy is condi tioned upon Developer's review and approval of a plot map showing all easements referenced therein and its determination that such easements do not adversely affect its proposed development of the Site for the purposes described herein. In addition, prior to the close of escrow for each phase, Developer shall obtain an updated preliminary title report covering the phase being purchased and may object to any additional items indicated on such report. In the event Developer objects to any items indicated on the updated report, the Agency shall have the option to remove any objectionable items from title to the subject phase prior to the close of escrow. If the Agency is unable or unwilling to remove any such objectionable items, Developer shall have the right to terminate the escrow and cancel its obligation to purchase such phase. p,\9\94S4\46565\Trans\OispAgr3.060 -12- 2.9 Time for and Place for Deliverv of Deed Subject to any mutually agreed-upon extension of time, the Agency shall deposit the Grant Deed for the applicable Parcel with the Escrow Agent on or before the date established for conveyance, as set forth above. 2.10 Payment of the Purchase Price and Recordation of the Deed The Developer shall promptly deposit the originally executed Promissory Note and Deed of Trust for the applicable Parcel with the Escrow Agent upon or prior to the date for conveyance thereof, provided that Escrow Agent shall have notified the Developer in writing that the Grant Deed conveying the applicable Parcel to the Developer, properly executed and acknowledged by the Agency, has been delivered to the Escrow Agent and that title is in condition to be conveyed in conformity with the provisions of Section 2.8 of this Agreement. The Escrow Agent shall deliver the original Promissory Note to the Agency immediately following the delivery to the Developer of a title insurance policy insuring title in conformity with Section 2.11 of this Agreement and the filing of the deed for recordation among the land records in the Office of the County Recorder for San Diego County. 2.11 Title Insurance Concurrently with recordation of the Grant Deed, Escrow Agent ( "Ti tIe Co. " ) shall issue and deliver to the Developer an ALTA extended coverage policy of title insurance insuring that the title is vested in the Developer in the condition required by Section 2.8 of this agreement. The title insurance pOlicy shall be in the amount of the Purchase Price of the applicable Parcel or in such greater amount as the Developer may specify as hereinafter provided. Concurrent with the issuance of the title policy for the applicable Parcel, Escrow. Agent shall, if requested by the Developer, provide the Developer with an endorsement to insure the amount of the Developer's estimated construction costs of the improvements to be constructed thereon. 2.12 Taxes and Assessments Ad valorem taxes and assessments, if any, on each Parcel shall be prorated in escrow as of the date of close of escrow based on a 30-day month and a 360-day year. 2.13 Condition of the Site Subject to completion of the work set forth in Section 3 of this Agreement, the Site, each Parcel, and all improvements thereon shall be conveyed in an "as is" condition, with no warranty, p: \9\9484\46565\Trans\D1spAgr3. 060 -13- express or implied by the Agency as to the physical condi tion (including the existence of' hazardous materials), value, development, use, marketability, feasibili ty and sui tabili ty of the Site, or any Parcel thereof, for Developer's intended use. Developer is a sophisticated purchaser who is familiar with this type of property. Developer will make its own independent investigation, to the extent Developer deems necessary, of the condition or suitability of the Site and each Parcel and will acquire all or any portion of the Site solely in reliance on such independent investigation. Developer acknowledges that any and all studies, reports, surveys, maps and other information that Developer may receive from Agency or its agents in connection with the Site are provided without any warranty (whether oral. or written, express or implied) by Agency as to their accuracy, and on the express condition that Developer shall make its own independent evaluation of such information. Developer uncondi tionally releases Agency from and against any and all liability to Developer, both known and unknown, present and future, for any and all damages, losses, claims and costs (including attorneys fees), without limitation, the existence of hazardous materials), or the Site's non-suitability for Developer's intended use. Developer waives the provisions of California Civil Code Section 1542 which provides: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release which if known by him must have materially affected his settlement with the debtor. The Agency agrees that it will not cause, or permit its contractors or agents to cause, without remediating the same, during the time the applicable Parcel is in the possession of the Agency, and prior to conveyance of title to the applicable Parcel to the Developer, the placement of any hazardous or toxic substances on the applicable Parcel which contaminates the soil and/or water on the applicable Parcel. Notwithstanding the foregoing, any hazardous or toxic substances already existing on the Site may be moved and/or temporarily stockpiled on the Site in accordance with the scope of demolition and/or remediation work conducted at the Site by Watkins Contracting, Inc. and/or Woodward- Clyde under contracts with the Agency which have been approved by Developer. 2.14 Preliminary Work by the Developer Prior . to the conveyance of title to each Parcel, representatives of the Developer shall at all reasonable times have the right of access to and entry upon those real properties comprising the applicable Parcel which are owned by the Agency, or of which the Agency has possession, for the purpose of obtaining data relevant to its development process and making surveys and tests necessary to carry out this Agreement. The Developer agrees to defend, indemnify and hold the Agency, the City, and their officers, employees, contractors and agents, harmless from and against any and all claims, liability, loss, damage, costs or p:\9\9484\46565\Trans\DispAgr3.06D -14- expenses (including reasonable attorneys I fees and court costs) arising out of any work or activity of the Developer, its officers, employees, contractors and agents permitted pursuant to this Section 2. 1 4 . The Agency agrees to provide, or cause to be provided to the Developer all data and information pertaining to each Parcel that is available to the Agency when requested by the Developer. 2.15 Submission of Evidence of Financinq The Developer shall report regularly as requested by the Agency (but at least every three (3) months) on its progress in obtaining financing for the development on each Parcel. The reports may be oral, or shall be in writing if requested by the Agency. The reports shall explain in reasonable detail the sources and methods of financing sought, the status of obtaining the financing and the issues, if any, which must be resolved, and the preleasing or presales activity which is required or has been achieved. The information in the reports shall remain confidential to the extent permitted by law, recognizing without limitation that they are subject to review by responsible officials, employees and contractors of the Agency. Developer shall submit to the Agency evidence satisfactory to the Agency that the Developer has obtained the financing necessary for the development of the applicable Parcel in accordance with this Agreement. Such evidence of financing shall include all information described in Section 2.4(a) of this Agreement and the following: (a) A copy of the term sheet describing the details of the terms and conditions of the mortgage loan or loans obtained by the Developer (both for interim construction financing and take out financing if a condition of funding the construction loan) to assist in financing the construction of the improvements on the applicable Parcel (as defined in the Scope of Development attached as Attachment 3), certified by the Developer to be a true and correct copy or copies thereof; and (b) Evidence reasonably satisfactory to the Agency of sources of equi ty capi tal sufficient to demonstrate that the Developer has adequate funds to cover the difference, if any, between construction cost minus financing authorized by mortgage loans. The Agency shall approve or disapprove such evidence of financing in a timely manner. If the Agency shall disapprove any such evidence of financing, the Agency shall do so by written notice to the Developer stating the reasons for such disapproval. p:\9\9484\46565\Trans\D'spAgr3.060 -15- 3. PREACQUISITION OBLIGATIONS. 3.1 Demolition of Existino Buildinos The Agency has contracted for demolition of the existing structures at the Agency's sole cost with Watkins Contracting, Inc. ("Demolition Contract"). Such demolition work shall be completed in accordance with the schedule set forth in the Demolition Contract. The demolition work shall include all work described in the Demolition Contract ("Demolition Work"). Except as otherwise provided herein, Developer shall be responsible, at Developer's sole cost, for any and all other work on the Site necessary for the development of the Project. 3.2 Site Remediation Work. (a) Agency has contracted with Woodward-Clyde ("Environmental Consultant") for testing and the performance of a limited surface soils investigation for the Site. Agency shall be responsible for payment of all costs of the pre-demolition soils testing (approximately $17,000.00 (Seventeen Thousand Dollars)) ("Pre-demo Soils Testino"). (b) Agency shall contract with the Environmental Consultant to conduct the additional testing, monitoring and remediation recommended by the Environmental Consultant as a result of the Pre-demo Soils Testing and which is of a type and scope agreed to by the parties to this Agreement ("Remediation Work"). (c) Agency and Developer each commit to share in the costs of the Remediation Work, as follows: (i) Developer shall be responsible for payment of up to the first Ten Thousand Dollars ($10,000.00) due and payable for the Remediation Work; (ii) Agency shall be responsible for payment of up to the next Ten Thousand Dollars ($10,000.00) due and payable for the Remediation Work; and (iii) each party will be responsible for payment of fifty percent (50%) of up to the next Twenty Thousand Dollars ($20,000.00) due and payable for the Remediation Work. If during the course of performing the Remediation Work, Environmental Consultant indicates or the parties otherwise agree that the Remediation Work will cost in excess of Forty Thousand Dollars ($40,000.00), ("Additional Remediation Work") then, while neither party shall be obligated to advance sums in excess of this amount, the parties shall meet, discuss and negotiate the allocation of responsibility. (d) If the parties are unable to agree to the allocation of responsibility for Additional Remediation Work, Developer or Agency may terminate this Agreement pursuant to Section 6.6.1 or 6.6.2, respectively. Notwithstanding the termination of this Agreement, Developer shall remain liable for the first Ten Thousand Dollars ($10,000.00) due and payable for the Remediation Work and fifty percent (50%) of up to the next Twenty p:\9\9484\46565\Trans\DispAgr3.D6D -16- Thousand Dollars ($20,000.00) due and payable for the Remediation Work. Developer shall be responsible for such amounts only if Agency proceeds with the Remediation Work and incurs such costs. (e) If the parties reach agreement as to the allocation of responsibility for Additional Remediation Work or if the Remediation Work does not exceed Forty Thousand Dollars ($40,000.00), then, subject to the Agency's completion of the Demolition Work, the Site shall be acquired by Developer in an "as is" condition with no representations and warranties from Agency with respect to the physical condition thereof. (f) The Agency shall contract for and oversee the Remediation Work and any agreed upon Additional Remediation Work. Developer shall reimburse Agency for any amounts owed by Developer within seven (7) days of the receipt of the applicable invoice and supporting documentation from Agency. (g) The Remediation Work and any Additional Remediation Work shall be deemed complete when Environmental Consultant or another licensed hazardous materials professional has issued a letter or report certifying that no further environmental work needs to be conducted at the Site. (h) Developer shall have the right but not the obligation to monitor the Remediation Work and any Additional Remediation Work. This right shall include the ability to review all information generated by Environmental Consultant and to meet and discuss the progress with Environmental Consultant. (i) Developer and Agency shall meet and confer regarding pursuit of monetary claims relating to the Remediation Work. If the parties so agree, Agency shall use its best efforts to pursue any and all monetary claims the Agency may have including those against Fuller Ford and its principals and, if applicable, under the State Underground Storage Tank Cleanup Fund for the cost of the Remediation Work. If Agency pursues such claims, Agency shall reimburse Developer tor up to its monetary contribution to the Remediation Work out of the first available proceeds after deducting Agency's actual costs in pursuing such claims. 4. DEVELOPMENT OF THE SITE 4.1 Development of the Site Developer shall have no obligation to construct on any Parcel unless and until Developer elects to acquire that Parcel. Upon such election and the close of escrow conveying any Parcel to Developer, Developer's obligation to construct the improvements on that Parcel shall mature and Developer shall be subject to the remedies provided in this Agreement for failure to complete construction in the manner and the time set forth in this Agreement. All construction shall comply with all applicable p: \9\9484\46565\Trans\DispAgr3. 060 -17- federal, state and local laws, and all environmental, land use and other conditions imposed on the Project. 4.1 .1 Scooe of Develooment The Site, and each Parcel thereof, shall be developed with "Business Homes" in accordance with and within the limitations established in the "Scooe of Develooment" incorporated herein and attached to this Agreement as Attachment No.3. 4.1.2 Basic Conceot and Schematic Drawinqs The Developer has prepared and submitted, and Agency has approved Basic Concept and Schematic Drawings and related documents for the development of the Site. The Site shall be developed as established in the Basic Concept and Schematic Drawings and related documents except as changes may be mutually agreed upon between the Developer and the Agency. Any such changes shall be within the limitations of the Scope of Development (Attachment No.3) and shall be processed in accordance with all applicable local land use processes and conditions. 4.1.3 Landscaoinq and Gradinq Plans The Developer shall prepare and submit to the Agency for its approval preliminary and final landscaping and preliminary and finish grading plans for each Parcel. Those plans shall be prepared and submitted within the time established by the parties as described in Section 2.3. The landscaping plans shall include a lighting program which highlights the design of components of the development, including, but not limited to, building facades, architectural detail, building interiors, landscaping and sculpture. The landscaping plans shall be prepared by a professional landscape architect and th~ grading plans shall be prepared by a licensed civil engineer. Such landscape architect and/or civil engineer may be the same firm as the Developer's architect. 4.1.4 Construction Drawinqs and Related Documents for the Site The Developer shall prepare and submit construction drawings and related documents (collectively called the "Drawinqs") for the development pertaining to each Parcel to the Agency for review (including but not limited to architectural review), and written approval in the times established by the parties as described in Section 2.3. Such construction drawings and related documents shall be submitted in three stages: Design Development Drawings, 50% Complete Construction Drawings and Final Construction Drawings. p:\9\94B4\46565\Trans\DispAgr3.D6D -18- Final Construction Drawings are hereby defined as those in sufficient detail to obtain a building permit. Approval of progressively more detailed drawings and specifications will be promptly granted by the Agency if developed as a logical evolution of drawings or specifications theretofore approved. Any items so submitted and approved by the Agency shall not be subject to subsequent disapproval. During the preparation of all drawings and plans, the Agency and the Developer shall hold regular progress meetings to coordinate the preparation of, submission to, and review of construction plans and-related documents by the Agency. The Agency and the Developer shall communicate and consult informally as frequently as is necessary to insure that the formal submittal of any documents to the Agency can receive prompt and speedy consideration. If any revisions or corrections of plans approved by the Agency shall be required by any non-City/Agency government official, agency, department, or bureau having jurisdiction over the development of the Site, the Developer and the Agency shall cooperate in efforts to obtain waiver of such requirements or to develop a mutually acceptable alternative. 4.1. 5 Aqencv Approval of Plans, Drawinqs and Related Documents Subject to the terms of this Agreement, the Agency shall have the right of review (including without limitation architectural review) of all plans and submissions, including any proposed changes therein. The Agency shall approve or disapprove the plans, drawings and related documents referred to in Sections 4.1.3, and 4.1.4 of this Agreement in a timely manner. Any disapproval shall state in writing the reasons for disapproval and the changes which the Agency requests to be made. Such reasons and such changes must be consistent with the Scope of Development (Attachment No.3) and any items previously approved or deemed approved hereunder. The Developer, upon receipt of a disapproval based upon powers reserved by the Agency hereunder, shall revise the plans, drawings and related documents, and shall resubmit to the Agency as soon as possible after receipt of the notice of disapproval. If the Developer desires to make any substantial change in the Final Construction Drawings after their approval, such proposed change shall be submitted to the Agency for approval. If the Final Construction Drawings, as modified by the proposed change, conform to the requirements of Section 4.1.4 of this Agreement and the Scope of Development, the proposed change shall be approved and the Developer shall be notified in writing within fifteen (15) days after submission. Such change in the construction plans shall, in any event, be deemed approved unless rejected, in whole or in part, by written notice thereof setting forth in detail the reasons p:\9\9484\46565\Trans\D1spAgr3.060 -19- therefor, and such rejection shall be made within said fifteen (15) day period. 4.1.6 Cost of Construction The cost of developing the Site, and each Parcel thereof, and constructing all improvements thereon shall be borne by the Developer, except as provided in this Agreement. 4.1.7 Construction Proqress Reports During periods of construction, the Developer shall submit to the Agency a written report of the progress of the construction when and as reasonably requested by the Agency. The report shall be in such form and detail as may be reasonably required by the Agency and shall include a reasonable number of construction photographs (if requested) taken since the last report by the Developer. 4.1.8 Indemnification Durinq Construction: Bodilv In;ury and Property Damaqe Insurance During the period commencing with execution of this Agreement by the Agency, and continuing until such time as the Agency has issued a Certificate of Completion with respect to the construction of all improvements on the Site, the Developer agrees to and shall defend, indemnify and hold harmless the Agency, and City and their respective officers, employees, contractors and agents from and against all claims, liability, loss, damage, costs or expenses (including reasonable attorneys' fees and court costs) arising from or as a result of the death of any person or any accident, injury, loss or damage whatsoever caused to any person or to the property of any person arising out of the activities of the Developer under this Agreement, and which shall be directly or indirectly caused by any acts done or any errors or omissions of the Developer or its officers, employees, contractors or agents. The Developer shall not be responsible for (and such indemnity shall not apply to) any negligent acts, errors or qmissions or intentional misconduct by the Agency, the City, or their respecti ye officers, employees, contractors or agents. Without limiting the preceding sentence, except for activities undertaken by the Developer with respect to a Parcel before the conveyance of title thereto to the Developer, the Agency hereby acknowledges that (as between the Agency and the Developer) the Agency is responsible for maintaining each Parcel and any improvements which may remain thereon in a safe condition prior to conveyance of title to the applicable Parcel to the Developer. During the period commencing with any preliminary work on the Site by the Developer under Section 2.14, or if none, then commencing with conveyance of title to: the first Parcel to the Developer, and ending on the date when a Certificate of Completion has been issued with respect to the entire Site, the Developer p,\9\94S4\46565\Trans\OispAgr3.060 -20- shall furnish or cause to be furnished to the Agency, duplicate originals or appropriate certificates of bodily injury and property damage insurance policies in the amount of at least Two Mil1ion Dol1ars ($2,000,000.00) combined single limit naming the Agency and Ci ty, and their officers, employees, contractors and agents as additional insureds. 4.1.9 Antidiscrimination durinq Construction The Developer for itself and its successors and assigns agrees that in the construction of the improvements on the Site provided for in this Agreement, the Developer wi 11 not discriminate against any employee or applicant for employment because of sex, marital status, race, color, creed, religion, national origin or ancestry. 4.1.10 Local, State and Federal Laws The Developer shall carry out the construction of the improvements on the Site in conformity with all applicable laws, including all applicable federal and state labor standards. 4.1.11 Citv and Other Governmental Aqencv Permits Before commencement of construction or development of any buildings, structures or other work of improvement upon each Parcel of the Site, the Developer shall, at its own expense, secure or cause to be secured, any and all permits which may be required by the City or any other governmental agency affected by such construction, development or work. Agency staff shall reasonably cooperate with the Developer in securing these permits. 4.1.12 License/Easement Agency and/or City shall and do hereby grant Developer a license, revocable upon the completion and sale of all Business Homes units termination of this Agreement, to use portions of the Site not yet acquired by Developer for construction staging and stockpiling relating to Developer's development and construction activities upon the Site. Any such use of the Site by Developer shall be subject to Section 4.1 .8 hereof. Developer shall take all necessary and appropriate measures to secure and maintain the Site in a safe condition during the term of its license and shall name the Agency as an additional insured under any liability insurance purchased by Developer with respect to its activities on the Site. 4.2 Fees Developer shall be solely responsible for payment of all applicable Project processing and impact fees. Developer reserves the right to challenge the propriety of the imposition of or amount of any such fees. 4.3 Taxes; Assessments; Encumbrances; and Liens p:\9\9484\46565\Trans\DispAgr3.060 -21- The Developer shall pay when due all real estate taxes and assessments assessed and levied on or against each Parcel subsequent to the conveyance of the title thereto. The Developer shall not place, or allow to be placed, on the Site or any Parcel thereof, any mortgage, trust deed, encumbrance or lien not authorized by this Agreement. The Developer shall remove, or shall have removed, any levy or attachment made on the Site (or any Parcel thereof ), except those created by work of the Agency, or shall assure the satisfaction thereof within a reasonable time but in any event prior to a sale thereunder. Nothing herein contained shall be deemed to prohibit the Developer from contesting the validity or amount of any tax assessment, encumbrance or Lien, nor to limit the remedies available to the Developer in respect thereto. The covenants of the Developer set forth in this Section 4.4 relating to the placement of any unauthorized mortgage, trust deed, encumbrance or lien, shall remain in effect only until a Certificate of Completion of construction has been recorded with respect to the Parcel upon which any unauthorized mortgage, trust deed, encumbrance or lien might be placed. 4.4 Prohibition aqainst Transfer Prior to the recordation by the Agency of a Certificate of Completion for a Parcel (referred to in Section 4.7 of this Agreement), the Developer shall not, except as permitted by this Agreement, assign or attempt to assign this Agreement or any right herein with respect to such Parcel, nor make any total or partial sale, transfer, conveyance or assignment of the whole or any part of such Parcel or the improvements thereon, without prior written approval of the Agency. This prohibition shall not apply to a Parcel (or any portion thereof) subsequent to the recordation of the Certificate of Completion with respect thereto. This prohibition shall not be deemed to prevent the granting of easements or permits necessary for the development of the Site, nor shall it prohibit entering into contracts to sell individual business homes conditional on the issuance of a Certificate of Completion therefor, nor shall it prohibit granting any security interests expressly described in this Agreement for financing the acquisition and development of the applicable Parcel. 4.5 Security Financinq; Riqht of Holders 4.5.1 No Encumbrances except Mortqaqes, Deeds of Trust. Conveyances and Leases-Back or Other Conveyance for Financinq for Development Notwithstanding Section 4.4, after conveyance of title to the applicable Parcel to the Developer, mortgages, and deeds of trust, or any other form of conveyance required for any reasonable method of financing are permitted with respect to the Parcel before the recordation of the Certificate of Completion (referred to in Section 4.7 of this Agreement), but only for the purpose of p:\9\94B4\46565\Trans\D1spAgr3.060 -22- securing loans of funds to be used for the construction of improvements on such Parcel, and any other expenditures necessary and appropriate to develop such Parcel under this Agreement. The Developer shall notify the Agency in advance of any mortgage, deed of trust, or other form of conveyance for financing, if the Developer proposes to enter into the same before the recordation of the Certificate of Completion. The Developer shall not enter into any such conveyance for financing without the prior written approval of the Agency, which approval the Agency agrees to give if any such conveyance is given to a financial or lending institution approved by Agency under the standards set forth in Section 2.4(a) and 2.17 hereof. Such lender approved by the Agency pursuant to this Section 4.5.1, shall not be bound by any amendment, implementation or modification to this Agreement subsequent to its approval without such lender giving its prior written consent. In any event, the Developer shall promptly notify the Agency of any mortgage, deed of trust, conveyance and lease-back, or other financing, conveyance, encumbrance or lien that has been created or attached to the Site or any Parcel (or any portion thereof) prior to completion of the construction of the improvements thereon whether by voluntary act of the Developer or otherwise. The words "mortgage" and "deed of trust" as used herein include all other appropriate modes of financing real estate acquisition, construction and land development. 4.5.2 Holder Note Obliqated to Construct Improvements The holder of any mortgage, dead of trust or other security interest authorized by this Agreement shall in no way be obligated by the provisions of this Agreement to construct or complete the improvements or to guarantee such construction or completion; nor shall any covenants or any other provision in the grant deed for the applicable Parcel be so construed as to so obligate such holder. Nothing in this Agreement shall be deemed or construed to permit such holder to devote the Site to any uses or to construct any improvements on the Site, other than those uses or improvements provided for or authorized by this Agreement. 4.5.3 Notice of Default to Mortqaqe, Deed of Trust or Other Security Interest Holders; Riqht to Cure Whenever the Agency shall deliver any notice or demand to the Developer with respect to any breach or default by the Developer in completion of construction of the improvements, the Agency shall at the same time deliver to each holder of record of any mortgage, deed of trust or other security interest authorized by this Agreement a copy of such notice or demand. Each such holder shall (insofar as the rights of the Agency are concerned) have the right at its option wi thin ninety (90) days after the receipt of the p:\9\9484\46565\Trans\DispAgr3.060 -23- notice, to cure or remedy, or commence to cure or remedy, any such default and to add the cost thereof to the security interest debt and the lien of its security interest. If such default shall be a default which can only be remedied or cured by such holder upon obtaining possession, such holder shall seek to obtain possession with diligence and continuity through a receiver or otherwise, and shall remedy or cure such default within ninety (90) days after obtaining possession; provided that in the case of a default which cannot with diligence be remedied or cured, or the remedy or cure of which cannot be commenced within such ninety (90) day period, such holder shall have such additional time as reasonably necessary to remedy or cure such default with diligence and continuity; and provided further that such holder shall not be required to remedy or cure any non-curable default of the Developer. Nothing contained in this Agreement shall be deemed to permit or authorize such holder to undertake or continue the construction or completion of the improvements (beyond the extent necessary to conserve or protect the improvements or construction already made) without first having expressly assumed the Developer's obligations to the Agency by written agreement satisfactory to the Agency. The holder in that event must agree to complete, in the manner provided in this Agreement, the improvements to which the lien or title of such holder related, and submit evidence satisfactory to the Agency that it has the qualifications and/or financial responsibility necessary to perform such obligations. Any such holder properly completing such improvements shall be entitled, upon written request made to the Agency, to a Certificate of Completion from the Agency. 4.5.4 Failure of Holder to Complete Improvements In any case where, six (6) months after default by the Developer in completion of construction of improvements on any Parcel under this Agreement, the holder of any mortgage, deed of trust or other security interest creating a lien or encumbrance upon such Parcel (or portion thereof) has not exercised the option to construct, or if it has exercised the option but has not proceeded diligently with construction, the Agency may purchase the mortgage, deed of trust or other security interest by payment to the holder of the amount of the unpaid debt, plus any accrued and unpaid interest. If the ownership of the Parcel (or portion thereof) has vested in the holder, the Agency, if it so desires, shall be entitled to a conveyance from the holder to the Agency upon payment to the holder of an amount equal to the sum of the following: (a) The unpaid mortgage, deed of trust or other security interest debt at the time title became vested in the holder (less all appropriate credits, including those resulting from coLlection and application of rentals and other income received during foreclosure proceedings). p:\9\94S4\46565\Trans\DispAgr3.D6D -24- (b) All expenses with respect to foreclosure. (c) The net expense, if any (exclusive of general overhead), incurred by the holder as a direct result of the subsequent ownership or management of the Parcel (or portion thereof), such as insurance premiums and real estate taxes. (d) The cost of any improvements made by such holder. (e) An amount equivalent to the interest that would have accrued on the aggregate of such amounts had all such amounts become part of the mortgage or deed of trust debt and such debt had continued in existence to the date of payment by the Agency. 4.5.5 Riqht of the Aqency to Cure Mortqaqe, Deed of Trust, or Other Security Interest Default In the event of a default or breach by Developer under any mortgage, deed of trust or other security instrument with respect to any Parcel prior to the issuance of a Certificate of Completion by the Agency wi th respect to such Parcel, the holder of such security instrument shall give the Agency the same notice and cure rights to which Developer is entitled under the applicable loan documents. In the event of a default or breach by the Developer of a mortgage, deed of trust or other security interest with respect to any Parcel (or any portion thereof) prior to the issuance of a Certificate of Completion by the Agency, and the holder has not exercised its option to complete the development, the Agency may cure the default prior to completion of any foreclosure. In such event, the Agency shall be immediately entitled to reimbursement from the Developer of all costs and expenses incurred by the Agency in curing the default. The Agency shall also be entitled to a lien upon the applicable Parcel (or portion thereof) to the extent of such costs and disbursements. Any such lien shall be subordinate and subject to mortgages, deeds of trust, or other security instruments executed for the sole purpose of obtaining funds to purchase and develop such Parcel (or portion thereof) as authorized herein. 4.6 Riqht of the Aqency to Satisfy Other Liens on the Property After Title Passes Prior to the recordation of the Certificate of Completion (referred to in Section 4.7 of this Agreement), and after the Developer has had a reasonable time to challenge, cure or satisfy any liens or encumbrances on the applicable Parcel (or any portion p: \9\94B4\46565\T,ans\oispAg,3. 060 -25- thereof), the Agency shall have the right to satisfy any such liens or encumbrances; provided, however, that nothing in this Agreement shall require the Developer to payor make provisions for the payment of any tax, assessment, lien or charge so long as the Developer in good faith shall contest the validity or amount thereof, and so long as such delay in payment shall not subject the Parcel (or any portion thereof) to forfeiture or sale. 4.7 Certificate of Completion Promptly after completion of all construction and development to be completed by the Developer upon the applicable Parcel, and assuming Developer is not otherwise in default under this Agreement or in non-compliance with applicable local laws, permits and conditions, the Agency shall furnish the Developer with a Certificate of Completion upon written request therefor by the Developer. The Agency shall not unreasonably withhold any such Certificate of Completion. Such Certificate of Completion shall be, and shall so state, conclusive determination of satisfactory completion of the construction required by this Agreement upon the applicable Parcel, and of full compliance with the terms hereof with respect to the applicable Parcel. The Agency may also furnish the Developer with a Certificate of Completion for portions of the improvements upon the applicable Parcel, including for specific uses, as are properly completed and ready to use if the Developer is not in default under this Agreement. The Certificate of Completion shall be in such form as to permit it to be recorded in the Office of the Recorder of San Diego County. If the Agency refuses or fails to furnish a Certificate of Completion for the applicable Parcel after written request from the Developer, the Agency shall, within fifteen (15) days of receipt of the written request, provide the Developer with a written statement which details the reasons the Agency refused or failed to furnish a Certificate of Completion. The statement shall also contain the Agency's opinion of the action the Developer must take to obtain a Certificate of Completion. If the reason for such refusal is confined to the immediate unavailability of specific items or materials for landscaping, or incidental interior punchlist items, or incidental exterior punchlist items which do not adversely affect the appearance of the development, the Agency will issue its Certificate of Completion upon the posting of a bond by the Developer wi th the Agency in an amount representing one hundred and fifty percent (150%) of the cost of the work not yet completed. Such Certificate of Completion shall not constitute evidence of compliance with or satisfaction of any obligation of the Developer to any holder of a mortgage, or any insurer of a mortgage securing money loaned to finance the improvements, nor any part thereof. Such certificate of Completion is not notice of p:\9\9484\46565\Trans\DispA9r3.D6D -26- completion as referred to in Section 3093 of the California Civil Code. In no event shall the issuance of .such Certificate of Completion constitute a representation by Agency for any other purpose as to the adequacy or completeness of the applicable improvements, or otherwise relieve Developer of any liability for improper design or construction (or other performance) of the applicable improvements or of any liability for any indemnity or other obligation undertaken by Developer with respect to the applicable improvements. 5. USE OF THE SITE 5.1 Uses The Developer covenants and agrees for itself, its successors, its assigns and every successor in interest to the Site or any part thereof, that during construction and thereafter the Developer, its successors and assignees shall devote the Site, and each Parcel, to the uses specified in the Redevelopment Plan, the Scope of Development and the Grant Deed. 5.2 Maintenance and Control of Common Areas Subject to City/Agency's prior approval of the necessary assessment district in their sole discretion, as provided in Section 2.4(e) hereof, Developer shall convey and City or Agency, as they shall determine, shall accept title to the "Common Areas" associated with that Phase as more particularly described on Attachment 4, as part of the parcel map process and otherwise prior to the conveyance of the first Business Home unit. Agency staff and Developer agree to meet and confer to formulate an assessment district to provide maintenance of the Common Areas. Agency staff and Developer shall present the application for the assessment district to the City for its consideration, with the goal of substantial implementation prior to the conveyance of Phase 1. 5.3 Obliqation to Refrain from Discrimination The Developer covenants and agrees for itself, its successors, its assigns and every successor in interest to the Site or any part thereof, there shall be no discrimination against or segregation of any person, or group of persons, on account of sex, marital status, race, color, creed, religion, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Site nor shall the Developer itself or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Site. 5.4 Form of Nondiscrimination and Nonseqreqation Clauses p: \9\9484\46565\Trans\DispAgr3. 060 -27- The Developer shall refrain 'from restricting the rental, sale or lease of the Site on the basis of sex, marital status, race, color, creed religion, ancestry or national origin of any person. All deeds, leases or contracts shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses: (a) In deeds: "The grantee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of sex, marital status, race, color, creed, religion, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the land herein conveyed. The foregoing covenants shall run with the land." (b) In Leases: "The lessee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, and this lease is made and accepted upon and subject to the following conditions: That there shall be no discrimination against or segregation of any person or group of persons, on account of sex, marital status, race, color, creed, religion, national origin or ancestry in the leasing, subleasing, renting, transferring, use, occupancy, tenure or enjoyment of the land herein leased, nor shall lessee itself, or any person claiming under or through it, establish or permit such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants or vendees in the land herein leased." (c) In contracts: "There shall be no discrimination against or segregation of any person or group of persons on account of sex, marital status, race, color, religion, creed, national origin or ancestry in the sale, p: \9\9484\46565\Trans\DispAgr3. 060 -28- lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land, nor shall the transferee itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the land." 5.5 Land Use Controls Developer and Agency shall work together to implement mechanisms to restrict the use of the Business Homes to residential/commercial joint owner occupancy, as follows: (a) In Deeds: Deeds shall contain substantially the following clause: "The grantee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, for the benefit of the City of Chula Vista, the Redevelopment Agency of the City of Chula Vista, and each and every other Business Home owner at the Site, that the commercial and residential portions of the property shall be jointly used by the same individual occupant." (b) In CC&R' s : The CC&R' s described in Section 5.7 shall include a provision requiring joint occupancy of the commercial and residential portions of each Parcel. (c) Business License Restrictions: Zoning permits and/or business licenses issued for businesses occupying any Parcel may include a provision requiring joint occupancy of the commercial and residential portions of each parcel. 5.6 Effect and Duration of Covenants The covenants established in this Agreement shall, without regard to technical classification and designation, be binding on the Developer and any successor in interest to the Site and each Parcel (or any part thereof) for the benefit and in favor of the Agency, its successors and assigns, and the City. Such covenants as are to survive the issuance of the Certificate of Completion by the Agency shall be contained in the Grant Deed and shall remain in effect for the period specified therein. 5.7 Covenants. Conditions and Restrictions p:\9\9484\46565\Trans\DispAgr3.060 -29- Prior to Agency's conveyance of Parcel 1 to Developer, Developer shall prepare Covenants, Conditions and Restrictions ("CC&R' s") for review and approval by Agency. The CC&R I s shall address occupancy restrictions, commercial area use, access, maintenance, alterations, maintenance of private improvements and other similar issues which Agency and Developer mutually agree should be included or which are otherwise required by Agency or Ci ty. Agency shall be a third party beneficiary of the CC&R' s with enforcement rights. 6. DEFAULTS, REMEDIES AND TERMINATION 6.1 Defaults - General Subject to the extensions of time set forth in Section 7.4, failure or delay by either party to perform any term or provision of this Agreement constitutes a default under this Agreement. The party who fails or delays must immediately commence to cure, correct or remedy such failure or delay and shall complete such cure, correction or remedy using its best efforts and all due diligence, and during any period of curing shall not be in default. The injured party shall give written notice of default to the party in default, specifying the default complained of by the injured party. Failure or delay in giving such notice shall not constitute a waiver of any default, nor shall it change the time of default. Except as otherwise expressly provided in this Agreement, any failures or delays by either party in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies. Delays by either party in asserting any of its rights and remedies shall not deprive either party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. 6.2 Leqal Actions 6.2.1 Institution of Leqal Actions In addition to any other rights or remedies, either party may institute legal action to cure, correct or remedy any default, to recover damages for any default, or to obtain any other remedy consistent with the purpose of this Agreement. Such legal actions must be instituted in the Superior Court of the County of San Diego, State of California, in any other appropriate court of that county, or in the Federal District Court in the Southern District of California. 6.2.2 Applicable Law The Laws of the State of California shall govern the interpretation and enforcement of this Agreement. p:\9\9484\46565\Trans\DispAgr3.D60 -30- 6.2.3 Acceptance of Service of Process In the event that any legal action is commenced by the Developer against the Agency, service of process on the Agency shall be made by personal service upon the Executive Director or Chairman of the Agency, or in such other manner as may be provided by law. In the event that any legal action is commenced by the Agency against the Developer, service of process on the Developer shall be made by personal service upon the Developer (or upon a general partner or officer of the Developer if an entity) and shall be valid whether made within or without the state of California, or in such manner as may be provided by law. 6.3 Riqhts and Remedies Are Cumulative Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative, and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 6.4 Damaqes If either party defaults with regard to any of the provisions of this Agreement, the non-defaulting party shall serve written notice of such default upon the defaulting party. If the default is not commenced to be cured within thirty (30) days after service of the notice of default and is not cured promptly in a continuous and diligent manner wi thin a reasonable period of time after commencement, the defaulting party shall be liable to the non- defaulting party for any damages caused by such default, and the non-defaulting party may thereafter (but not before) commence an action for damages against the defaulting party with respect to such default. 6.5 Specific Performance If either party defaults with regard to any of the provisions of this Agreement, the non-defaulting party shall serve written notice of such default upon the defaulting party. If the default is not commenced to be cured within thirty (30) days after service of the notice of default and is not cured promptly in a continuous and diligent manner wi thin a reasonable period of time after commencement the non-defaulting party, at its option, may thereafter (but not before) commence an action for specific performance of the terms of this Agreement pertaining to such default. 6.6 Remedies and Riqhts of Termination p: \9\9484\46565\Trans\DispAgr3. 060 -31- 6.6.1 Termination by the Developer In the event that prior to the conveyance of title to the applicable Parcel to the Developer: (a) the Agency, despite being in a position to do so, does not tender either conveyance of title to the applicable Parcel or possession thereof, to the Developer in the manner and condition, and by the date provided in this Agreement; or (b) the parties are unable to agree to the allocation of responsibility for Additional Remediation Work; or (c) the Agency is unable, despite diligent and good faith efforts, to timely convey title to the applicable Parcel under circumstances which will freely permi t the Parcel to be cleared and developed in accordance wi th the terms and conditions of this Agreement; or (d) the Developer is unable, despite diligent and good faith efforts, to obtain financing for the acquisition and development of the applicable Parcel and submit evidence thereof to the Agency as referred to in Section 2.15; and (e) if any default or failure referred to in subdivision (a) or (b) of this Section shall not be cured within thirty (30) days after the date of written demand by the Developer; then this Agreement, at the option of the Developer, shall be terminated with respect to any unconveyed Parcels, by written notice thereof to the Agency, and except to the extent provided in Section 3.2 (d) of this Agreement, neither the Agency nor the Developer shall have any further rights against or liability to the other under this Agreement with respect to any unconveyed Parcels, or with respect to the entire Site if no Parcel has been conveyed. 6.6.2 Termination by Aqency In the event that prior to the conveyance of title to the applicable Parcel to the Developer: (a) the Developer shall fail to timely make any report to the Agency on its progress in obtaining financing for the development on a Parcel as required by Section 2.15 of this Agreement, or to submit to the Agency the p: \9\9484\46565\Trans\DispAgr3. 060 -32- evidence of financing commitments referred to in Section 2.15 of this Agreement; or (b) the Developer (or any successor in interest) assigns or attempts to assign the Agreement or any right herein, or in the Site or any Parcel (or portion thereof); or (c) the Developer does not submit any plans, drawings and related documents as required by this Agreement by the date provided in this Agreement therefor; or (d) the Developer does not pay the Purchase Price and take title to the applicable Parcel under a tender of conveyance by the Agency pursuant to this Agreement; or (e) the Agency is unable, despite diligent and good faith efforts, to timely convey title to the applicable Parcel under circumstances which will freely permi t the Parcel to be cleared and developed in accordance wi th the terms and conditions of this Agreement; and (f) if any default or failure referred to in subdivisions (a), (b), (c), (d) or (e) of this Section shall not be cured within thirty (30) days after the date of written demand by the Agency; then this Agreement and any rights of the Developer, or any assignee or transferee, in this Agreement, or arising therefrom with respect to the Agency, shall at the option of the Agency, be terminated with respect to any unconveyed Parcels, by written notice to the Developer, and except to the extent provided in Section 3.2(d), neither the Agency nor the Developer shall have any further rights against or liabili ty to the other under this Agreement with respect to any unconveyed Parcels, or with respect to the entire Site if no Parcel has been conveyed. 6.7 Riqht of Reentry The Agency shall have the right, at its option, to reenter and take possession of any Parcel (or portion thereof) with all improvements thereon, and to terminate and revest in the Agency the estate theretofore conveyed to the Developer, if after conveyance of title to such Parcel and prior to the recordation of the Certificate of Completion pertaining to such Parcel (or portion thereof), the Developer (or its successors in interest) shall: (a) fail to commence or complete construction of the improvements on such Parcel (or portion p:\9\9484\46565\Trans\DispAgr3.06D -33- thereof) as required by this Agreement for a period of three (3) months after wri tten notice to proceed from the Agency, provided that the Developer shall not have obtained an extension or postponement to which the Developer may be entitled pursuant to Section 7.4 hereof; or (b) abandon or substantially suspend construction of the improvements on such Parcel (or portion thereof) for a period of three (3) months after written notice of such abandonment or suspension has been given by the Agency to the Developer, provided the Developer has not obtained an extension or postponement to which the Developer may be entitled to pursuant to Section 7.4 hereof; or (c) assign or attempt to assign this Agreement, or any rights herein, or transfer, or suffer any involuntary transfer of such Parcel, or any part thereof, in violation of this Agreement, and such violation shall not be cured within thirty (30) days after the date of receipt of wri tten notice thereof by the Agency to the Developer. Such right to reenter, repossess, terminate and revest shall be subject to and be limited by and shall not defeat, render invalid or limit: (a) any mortgage, deed of trust or other security interests permitted by this Agreement with respect to the applicable Parcel; (b) any rights or interests provided in this Agreement for the protection of the holders of such mortgages, deeds of trust or other security interests. The rights established in this Section 6.7 shall not apply to any Parcel (or portion thereof) on which the improvements to be constructed thereon have been completed in accordance wi th the Agreement and for which a Certificate of Completion has been recorded therefor as provided in Section 4.7. The Grant Deed to each Parcel shall contain appropriate reference and provision to give effect to the Agency's right, as set forth in this Section 6.7 under specified circumstances prior to the recordation of the Certificate of Completion, to reenter and take possession of the Parcel, or any part thereof, with all improvements thereon, and to terminate and revest in the Agency the estate conveyed to the Developer. p: \9\9484\46565\Trans\D;spAgr3. 060 -34- Upon the revesting in the Agency of title to the applicable Parcel, or any part thereof, as provided in this Section 6.7 the Agency shall, pursuant to its responsibilities under state law, use its best efforts to resell the Parcel, or any part thereof, as soon and in such manner as the Agency shall find feasible and consistent with the objectives of the Community Redevelopment Law and the Redevelopment Plan to a qualified and responsible party or parties (as determined by the Agency), who will assume the obligation of making or completing the improvements, or such other improvements in their stead, as shall be satisfactory to the Agency and in accordance with the uses specified for the Parcel, or any part thereof, in the Redevelopment Plan. Upon such resale of the Parcel, or any part thereof, the proceeds thereof shall be applied: (a) first, to payoff all liens and encumbrances and offsets for any Developer defaults; and (b) second, to reimburse the Agency on its own behalf or on behalf of the City of all costs and expenses incurred by the Agency, including but not limited to salaries to personnel engaged in such action, in connection with the recapture, management and resale of the Parcel, or any part thereof (but less any income derived by the Agency from the sale of the Parcel, or any part thereof, in connection with such management); all taxes, assessments and water and sewer charges with respect to the Parcel or any part thereof (or, in the event the Parcel, or any part thereof, is exempt from taxation or assessment or such charges during the period of ownership, then such taxes, assessments or charges, as would have been payable if the Parcel, or part thereof, were not so exempt); any payments made or necessary to be made to discharge or prevent from attaching or being made any subsequent encumbrances or liens due to obligations, defaults or acts of the Developer, its successors or transferees; any expenditures made or obligations incurred with respect to the making or completion of the agreed improvements or any part thereof on the Parcel, or any part thereof; and any amounts otherwise owing to the Agency by the Developer and its successor or transferee. Any balance remaining after such reimbursements shall be retained by the Agency as its property. The rights established in this Section 6.7 are to be interpreted in light of the fact that the Agency will convey each p: \9\9484\46565\Trans\DispAgr3. 060 -35- Parcel to the Developer for development and not for speculation in undeveloped land. 7. GENERAL PROVISIONS 7.1 Notices. Demands and Communications between the Parties Formal notices, demands and communications between the Agency and the Developer shall be sufficiently given if dispatched by registered or certified mail, postage prepaid, return receipt requested, to the principal offices of the Agency and the Developer, as designated in Section 1.5 hereof. Such written notices, demands and communications may be sent in the same manner to such other addresses as ei ther party may from time to time designate by mail as provided in this Section 7.1. 7.2 Conflicts of Interest No member, official or employee of the Agency shall have any personal interest, direct or indirect, in this Agreement nor shall any such member, official or employee participate in any decision relating to the Agreement which affects his personal interests or the interests of any corporation, partnership or association in which he is, directly or indirectly, interested. The Developer warrants that it has not paid or given, and will not payor give, any third party any money or other consideration for obtaining this Agreement. This paragraph shall not be construed to apply to the payment of attorneys' fees and other consultant costs. 7.3 Nonliability of the Aqency Officials and Employees No member, official, employee or consultant of the Agency shall be personally liable to the Developer, or any successor in interest, in the event of any default or breach by the Agency or for any amount which may become due to the Developer or to its successor, or on any obligations under the terms of this Agreement. 7.4 Time is of the Essence: Enforced Delay: Time of Performance Extension of Time is of the essence with respect to each and every obligation hereunder. Notwithstanding the foregoing, in addition to specific provisions of this Agreement, performance by either party hereunder shall not be deemed to be in default where delays or defaults are due to war, insurrection, strikes, lock-outs, riots, floods, earthquakes, fires, casualties, Acts of God, acts of the public enemy, epidemics, quarantine restrictions, freight embargoes, adverse economic or market conditions, lack of transportation, governmental restrictions, litigation, unusually severe weather, inability to secure necessary labor, materials or tools, delays of any contractor, subcontractor or supplies, acts p:\9\9484\46565\Trans\DispAgr3.060 -36- of the other party, acts or failure to act of the City or any other public or governmental agency or entity (other than that act or failure to act of the Agency). An extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause, if notice by the party claiming such extension is sent to the other party within thirty (30) days of knowledge of the commencement of the cause. Times of performance under this Agreement may also be extended in writing by mutual agreement of the Agency and the Developer. 7.5 Inspection of Books and Records The Agency shall have the right after reasonable notice and at all reasonable times during normal business hours to inspect the books and records of the Developer pertaining to the Site and each Parcel as pertinent to the purposes of this Agreement. The Developer shall also have the right after reasonable notice and at all reasonable times during normal business hours to inspect the books and records of the Agency pertaining to the Site and each Parcel as pertinent to the purposes of this Agreement. 7.6 Approvals Approvals required of the Agency or the Developer shall not be unreasonably withheld except as otherwise provided herein, or otherwise required by law. 7.7 Real Estate Commissions The Agency shall not be liable for any real estate commissions, brokerage fees or finders fees which may arise from the sale of the Site or any Parcel to the Developer. The Agency and the Developer each represent to the other that it has employed no broker, agent, or finder in connection with this transaction and each agrees to indemnify and hold the other harmless from and against any and all claims by such a party through Agency or Developer against the other. 7.8 No Third Party Beneficiary The terms and provisions herein contained shall be only for the benefit of the parties hereto and such terms and conditions shall not enure to the benefit of any other party whosoever, it being the intention of the parties hereto that no one shall be deemed to be a third party beneficiary of this Agreement. 7.9 Developer's Representation Developer represents and warrants that Josef Citron and Lenore Citron are the sole shareholders of Citron Realty Management Corporation, a California corporation, and that Citron Realty Management Corporation and Josef and Lenore Citron personally, p: \9\9484\46565\Trans\DispAgr3. 060 -37- collectively own a majority interest of Broadway Village Business Homes, L.P., a California limited partnership and that such will remain the case through the development of the Project. Any transfer of any interest in Developer or an affiliate entity which changes this ownership shall be treated as an assignment of this Agreement subject to Agency approval as provided in Section 4.4 hereof. Developer acknowledges and agrees that Agency is looking to the experience and expertise of the Citrons for Developer's performance of its obligations under this Agreement. 7.10 Covenants to Run with Land All covenants contained in this Agreement pertaining to the use of the Site or any Parcel thereof shall run with the land and shall be binding for the benefit and in favor of the Agency, the City of Chula Vista, and their respective successors and assigns. The City and the Agency, in the event of any breach of any such covenants, shall have the right to exercise any and all remedies provided hereunder or otherwise available at law or in equity, in order to enforce compliance with such covenants. 7.11 Recordation Agency reserves the right, at its election, to cause the recordation of this Agreement or a Memorandum thereof which Developer agrees to execute and acknowledge. The recordation of a Certificate of Completion shall operate to remove the effect of this Agreement or any Memorandum thereof upon the real property described in that Certificate of Completion. 7.12 Compliance with Laws: Disclosure Developer shall comply with all laws relating to the marketing and sale of the Business Home units, including, as applicable, disclosure of the existence of the assessment district and any land use restrictions. 7.13 Leqal Challenqe In the event that any court action or other legal proceeding is brought by any person not a party to this Agreement to challenge this Agreement, the granting of any Entitlements or the fulfillment of any condition to the obligations of the parties hereto, and without regard to whether or not the Developer or the Agency is a party to said action or proceeding, the Developer shall have the right to terminate this Agreement upon thirty (30) days notice in writing to Agency given at any time during the pendency of such action or proceeding prior to the conveyance of the Site or any Parcel thereof to Developer. If this Agreement is not terminated, Developer shall indemnify the Agency and the City for all expenses including attorneys' fees, to defend the City or the Agency from any claim, p:\9\9484\46565\Trans\DispAgr3.060 -38- action or proceeding against the City, the Agency or their agents officers, or employees to attack, set aside, void or annul the approval of this Agreement or the approval of any Entitlements or condition to the obligations of the parties hereto. The City and the Agency shall promptly notify Developer of any such claim, action or proceeding. For purposes of this Section, the Developer acknowledges that the term "attorney's fees" includes the reasonable costs incurred by the City or Agency in the defense of any claim, action or proceeding by the City Attorney or his staff. In the event of a successful challenge of the legality of this Agreement or any implementing documents, this Agreement and all implementing document shall terminated and no party shall have any further obligation thereunder. 8. ENTIRE AGREEMENT, WAIVERS AND AMENDMENTS This Agreement shall be executed in duplicate originals each of which is deemed to be an original. This Agreement includes pages and attachments which constitute the entire understanding and agreement of the parties. This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements between the parties with respect to all or any part of the Site. None of the terms, covenants, agreements or conditions set forth in this Agreement shall be deemed to be merged with the Grant Deed conveying title to any Parcel and this Agreement shall continue in full force and effect with respect to each Parcel before and after conveyance until after a Certificate of Completion for the applicable Parcel as provided in Section 4.8 is recorded. All waivers of the provisions of this Agreement must be in writing and signed by the appropriate authorities of the Agency or the Developer, and all amendments hereto must be in writing and signed by the appropriate authorities of the Agency and the Developer. 9. TIME FOR ACCEPTANCE OF AGREEMENT BY THE AGENCY; DATE OF AGREEMENT This Agreement, when executed by the Developer and delivered to the Agency, must be authorized, executed and delivered by the Agency within sixty (60) days after this Agreement is signed by the Developer, or this Agreement may be terminated by the Developer on written notice to the Agency. The effective date of this Agreement shall be the date it is signed by the Agency. BROADWAY VILLAGE BUSINESS HOMES, L.P., a California limited partnership p: \9\9484\46565\Trans\DispAgr3. 060 -39- By: Citron Realty Management Corporation, a California corporation Dated: By: Its: Dated: By: Its: REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA (Agency) Dated: By: Its: APPROVED AS TO FORM AND LEGALITY ON THIS DAY OF 199 By: Agency General Counsel p:\9\9484\46565\Trans\DispAgr3.060 -40- Attachment No. 1 Site Map Attachment No. 1(A) Legal Description Attachment No. 2 Conveyance Map Attachment No. 3 Scope of Development PHASE 1: Building AU, consisting of6 units, with approximately. 18,375 square feet of the land. Cumulative total: 6 units. PHASE 2: Building3 B and C, consisting of 8 and 4 units, respectively, (total of an additional 12 units), and approximately. an additional 36,750 square feet of the land. Cumulative total: 18 units, and 55,125 square feet of land. PHASE. 3: Buildings D, E and F, consisting of 4, 8 and 6 units, respectively, (total of an additional 18 units), and approximately an additional 55,125 square feet of land. Cumulative total: 36 units, and the whole approximately. 110,250 square feet ofland, · "Approximately" is used herein, as neither the City nor the Redevelopment Agency have ever given us a legal plat with exact dimensions, nor has a complete physical survey of the total property been done by us as yet. For purposes of this document, we are using the figures given us by the agency of525 feet on Broadway and 210 feet of depth. U See Attached computer schematic building/unit number layout. ^ ~ " i ~ i (j) ~ C11ICD :to I ~ ~ m g EJ ^ ^ ~ . I -.j . i!!: i!!: ~ 0 0 0 l:tI n D. D. co ii1 l!. l!. - '. III en Cl) g I:: .. :;, CD III Cl: III ... C ~ ~ S. ~ Cl ICl Z a ~ n ... W CD ... - 0 :a :::! ::J :'" 'tl Qo ... 0 i <:) ~ N CD ':I en C ;a.. ... ... ... ... ... =r .~ co .... CD C11 0 Co) ~ III - '~ ~ o' .... ::I .- !'Z: II ::J ~ ~ a:l C ! ,. ~ , - ...: :J: ... Z ..,.. 0- 0 =: ~ ::::: 'i G) ':. ~ 0 N ." .... ~ ~ Co) ;a = !. ::) ~ 0 1ii ~ ..... ~ N N N Z '" Cl) .... N t1 ~ iii '" Qo c: ()l ~ ~ N s: ,0 .... C11 9 ~ ~ N CD 0 CD m :'" ~ ~ ::r ~ N ::c ... -.j en '" N co "'<: N Cl) ~ I (j) I Q J rn . I I Co) ~ ~ Co) Co) Co) . CD Co) N .... " . . . . I I I , v E 'd t880EZt 6:9 ]6 IV~ .' 'H'S} Wd 0:.: :,S SS-L -101 lJ('-U'i'-.i.':j~~ id;\0i',-:ri i-t~,uIJ ;~.vj. 1",11'1 r-ii:;::'_Hi-it:::'_i.::> iLl I ." L :I: :>> Ul '" ~ '" W ... U1 ~ t" 0 .., Ul ._. -- >-' Cl:l I '" '" .--- .- ~ 0 ." ,- -- :I: :>> ~ Ul ~ '" mr ,- -- J N I:ll ~ ... '" t" 0 0 --.-- -- 0 III .., 0. 0 ~ Ul >: .... ~ ~ .... W OJ Cl:l ..... '" U1 ..... '< 0 J I >-' >-' rm ~' ... Cl:l ___ _ L__._._________________, i 1m '" 0 w ." >-' '" tv '" :I: '" 0 ~ '" .- .- :>> 0 '" Ul ... '" W 0 '" (j) ~ U1 t" 0 8 . '" Ul '" ." ~ :I: '" > '" I Ul ..... W H '" Z .--- -- '" '" Cl:l i , ." --r t'" '" > '" Z w 0 w w w w w W I< '" U1 ... W '" .... "@< ,,' I 1 ~L_ bO:">..,),Lu'<..J I.U"::::: Attachment No. 4 Common Area includes all areas outside of individual Lots d 0 / ' (") , '// '" />', N ~7> /~/ <Xl N l"- N \0 N trl N <l' N (") N y; <l' -' (") -' N -' -' -' 0 -' '" <Xl I I I 1 ,I ~J 1 /, i // ,_/j. ( , -,'.., , N (") '" tl'l \0 (") (") (") (") (") -' N o N '" -' ';V /// / // ' .. / .. / /- 77'7",,-'7';/, ',/ <L..!'//j::'~.('"i - -- ~ / /. / ' ./ >7'/7. /' .// //' . . .., /'1 " /~ >. ,I rtl CO.) ~ .-l , . '0 rtl o '"' a:l 1 \0 -' I"- -' :z ..; >-1 D- E-< o >-1 z C) ..; r<l p:: ..; :z o ~ ~ o () " ~ PROOF OF PUBLICA liON (2015.5 C.C.P.) STATE OF CALIFORNIA, County of San Diego: I am a citizen of the Unitod States and a resident of the County aforesaid; I am over the age of eighteen years, and not a party to or interested in the above-entitled matter. I am the principal clerk of the printer of the STAR-NEWS, CHULA VISTA, a newspaper of general circulation, published lWICE-WEEKL Y in the City of Chula Vista, and the South Bay Judicial District, County of San Diego, and which newspaper has been adjudged a newspaper of general circulation by the Superior Court of the County of San Diego, State of California, under the date of April 23, 1951, Case Number 164327; that the notice, of which the annexed is a printed copy ( set in type not smaller than nonpareil), has been published in each regular and entire issue of said newspaper and not in any supplement thereof on the follvwing dates, to-wit: 6/28 all in the year 1995 I certify ( or declare) under penalty of perjury that the foregoing is true and co rrect. Dated at CHULA VISTA California, this 28 day of June ,1995 (~ ~ c. Signatur~ Q -jOPCJ?! ~CZA-"J PRINCIPAL CLERK This space is for the County Clerk's Filing Stamp -~ ,- CV 06284 Proof of Publication of: PUBLI C HEAR I NG ------------------- ------------------- NOTICE OF PUBLIC HEARING BY THE CHULA VISTA CI1Y COUNCIL CHULA VISTA, CALIFORNIA NOTICE IS HEREBY GI- VEN THAT THE CHULA VISTA CITY COUNCIL will hold a public hearing to consider the following: The purpose of consider- ing a rezoning application submilted ~ Josef A & Lenore S. Ctron to rezone 2.53 acres on west side of Broadway between J & K Streets. " you wish " challenge . :he Citv's ac:tion on this mat- .oK in court. you may be lim. iled 10 raising only those is. sues you or l;OI1l&JnG else raised at the pub:ic hearing described in this ootice, or in wollen correspondence de- fivered " 'he Ci~ Clerk's Of- fICe at or prior 10 !he public h~~;8 PUBLIC HEARING WILL BE HELD BY THE CITY COUNCIL on Tues- day. Ju~ 11, 1995 al 6:00 p.m. in the Council Cham- bers, Public ServICeS BUild. ing, 276 Fourth Avenue, at which time any person desir- ing to be heard may appear. DATED: June 22, 1995 CV06284 6/28/95 ~. : "7 ' ,'() l ~y,c cA.. I (LlI') > , " "'1-: 25 pv-l- Kn-JL ( \ VLL- DISPOSITION AND DEVELOPMENT AGREEMENT by and between REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA AGENCY, and BROADWAY VILLAGE BUSINESS HOMES, L.P., ~,- DEVELOPER July , 1995 DISPOSITION AND DEVELOPMENT AGREEMENT THIS AGREEMENT is entered into effective as of , 1995, by and between the REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA (the "Aqency") and BROADWAY VILLAGE BUSINESS HOMES, L.P., a California limited partnership (the" Developer"). The Agency and the Developer agree as follows: RECITALS A. The City Council of the City of Chula Vista ( "Ci ty") has established the Agency and has approved and adopted a redevelopment plan for a redevelopment project known as the Southwest Redevelopment Project by its adoption of Ordinance No. 2720 on November 27, 1990, pursuant to the provisions of Sections 33000 et seq. of the California Health and Safety Code ("California Community Redevelopment Law"). B. The Agency is undertaking a program, in the interest of health, safety and general welfare of the people of the City pursuant to its authority under the California Community Redevelopment Law, for the redevelopment, replanning and redesign of blighted areas within the Southwest Redevelopment Project area which are characterized by stagnant, improperly utilized and unproductive land which requires redevelopment. C. The Agency is desirous of carrying out the redevelopment plan for the Southwest Redevelopment Project area by providing for the development of certain real property within the project area more particularly described in Section 1.4 of this Agreement ("Site"). The Si te is comprised of approximately 2.5 gross acres of land located within the Southwest Redevelopment Project area and within the City. The Site is currently owned by the Agency. D. In furtherance of the Agency's program to provide for the development of the Site, the Agency entered into a Exclusive Negotiation Agreement dated July 19, 1994 pertaining to the Site by and between the Agency and Developer. E. The Agency has determined that the provisions of this Agreement will make feasible the redevelopment of the Site by the Developer in accordance with the purposes set forth in the Exclusive Negotiation Agreement and that such development will stimulate development of the remainder of the Southwest Redevelopment Project area and is in the best interests of the taxpayers and residents of the City and will otherwise promote the public health, safety and general welfare of City residents and is in accordance with federal, state and local laws and regulations. p:\9\9484\46565\Trans\DispAgr4.red -1- F. This Agreement is being processed concurrently with a Rezone, Spe~ial Use Permit, Precise Plan and Mitigated Negative Declaration to develop the project proposed by Developer. G. The Agency/City finds that the implementation of this Agreement will assist in the elimination of blight, is consistent with the implementation of the redevelopment plan, and the consideration is not less than the fair reuse value at the use and with the covenants and conditions and development costs authorized by the sale described in this Agreement. 1 . SUBJECT OF AGREEMENT 1.1 Purpose of the Aqreement The purpose of this Agreement is to assist effectuation the Redevelopment Plan for the Southwest Redevelopment Project area in the City of Chula Vista by providing for the disposition and development of the hereinafter defined Site. The development of the Site pursuant to this Agreement, and the fulfillment generally of this Agreement, are in the vital and best interests of the City of Chula Vista and the health, safety, morals, and welfare of its residents, and in accord with the public purposes and provisions of applicable federal, state, and local laws and requirements. 1.2 The Redevelopment Plan This Agreement is subject to the provisions of the Redevelopment Plan for the Southwest Redevelopment Project area (which was approved and adopted on November 27, 1990 by the City Council of the City of Chula Vista by Ordinance No. 2720 (the " Redevelopment Plan"). The Redevelopment Plan is incorporated herein by reference and made a part hereof as though fully set forth herein. Any amendments hereafter to the Redevelopment Plan (as so approved and adopted) which change the uses or development permitted on the Site as proposed in this Agreement, or otherwise change the restrictions or controls that apply to the Site, and which materially and adversely affect Deyeloper's ability to develop the Site as contemplated by this Agreement, shall require the written consent of the Developer. Amendments to the Redevelopment Plan which do not materially or adversely affect Developer's ability to develop the Site as contemplated by this Agreement and/or which apply to other property in the Southwest Redevelopment Project area shall not require the consent of the Developer. p:\9\9484\46565\Trans\DiSpAgr4.red -2- 1.3 The Redevelopment Pro;ect Area The Southwest Redevelopment Project area is located in the City of Chula Vista, California (the "~"). The exact boundaries of the Redevelopment Project ,area are specifically and legally described in the Redevelopment Plan for such Redevelopment Project. 1.4 The Site The "Site" includes that portion of the Southwest Redevelopment Project area located at 7~0 Broadway, illustrated and designated on the "Site Map" which is incorporated herein and attached to this Agreement as Attachment No. 1 and as more precisely described in the "Legal Description" which is incorporated herein and attached hereto as Attachment No. 1.A. 1.5 Parties to the Aqreement (a) The Aqency. The "Aqency" is a public body, corporate and politic, exerc1sing governmental functions and powers, and organized and existing under Chapter 2 of the Community Redevelopment Law of the State of California. The principal office of the Agency is located at 276 Fourth Avenue, Chula Vista, California 91910. "Aaencv" Redevelopment Agency of any assignee of or responsibilities. as used in this Agreement includes the City of Chula Vista, California, successor to its rights, powers the and and (b) Developer. The "Developer" is Broadway Village Business Homes, L.P., a California limited partnership, whose general partner is Citron Realty Management Corporation, a California Corporation. Wherever the term "Developer" is used herein, such term shall include any permitted nominee, assignee or successor in interest as herein provided. 2. ACQUISITION AND DISPOSITION OF THE SITE 2.1 Sale and Purchase In accordance with and subject to all the terms, covenants, and conditions of this Agreement (including without limitation the Developer's right to terminate this Agreement pursuant to Section 6.6.1 of this Agreement), the Agency agrees to sell to the Developer and the Developer agrees to purchase each Parcel as shown on the Site Map (Attachment No.1) and more precisely described in the Legal Description (Attachment No. 1A). p:\9\9484\46565\Trans\D1spAgr4.red -3- The Developer shall pay to the Agency as the purchase price for the Site Five Hundred Fifty Sellars ($559,999.99), payable e.er ~im~ in aeceraance with tRe ~re~iaieRs alia esnditisns af aRe or more promissory nates ( "Uete (a) ") t6 Be secures by ene Br mere deeds sf tr1:l5t ("Dcca(s) sf 'Prtlst") cPJ.t:tlIft5eriR~ the Site (eE' ~6rti6Ra thereof). If tae Cite is ae~1:lirea ift phases aa pre;iaed iR CcctiSfi 2.. 3 af tJu: Agreement, the Dc1. (;10[361'." will e.uccate aRa deli... er t6 tae l..~cRcy prier t6 the cleae: af eaereu fer the p1:lrehaac aluj sale af each atu:h. phase, a separate H6ft iate.rc3t 19carif1~ Promissory nete alia Deed ef 'l'r1:1st eftel:lmeerift~ the s1:l13jcet phase. each Promissory Nate's) ana Deea(s) af Trust fer each phase shall Be iR a farm to Be agreed l:lpsn by the parties prier to the elasc ef esereu fer s1:lsa pl\asc, alia. shall spceificall) prsliae fer partial releases aRe reeeaveyaaeea af the liea af the Deed(a) af Traat apes the sale af ~ftita within SHea phase, based Hpae payment BY the Dc~elaper af 119\ af thc per uait share af thc remaiais9 Balasee SHe ~ftacr thc saajeet Promissary Nate. Is aaaitisa, the Agsasy a~reea ta sHBaraiaate the lies af ita Beea(a) af Traat ta thc lieft af any ecftstraetiea fiRaaeiag prc~ieHaly a~pre;cd BY the Ageacy pursaaRt to Section 2.i(a) hercef. ,a4'~~1 i8li.QIg,Oif;!l9iJ!t.~ Pursuant to California Health ""ariC3'-sal~f"~~6'd:~ Sect10n 13433'; the Agency has determined that, given the nature of the proposed development of the Site and the terms and conditions imposed by this Agreement, the purchase price is equal to or greater than the "reuse value" of the Site. If the Site is acquired in phases as provided in Section 2.3 of this Agreement, the Purchase Price for each such phase shall be based upon the pro rata share of square feet being acquired relative to the total square footage of the Site. For example, if a Parcel acquired is comprised of 17,399 i1H,ii3i'4! square feet and the entire Site is .~"'.'...w.,....<<.....<<... comprised of 1 08, 900. square feet, the purchase price for such Parcel would be Ei~ftey SeveR Nrdi#jf#~& Thousand ~ftFee ($mi Hundred ~:~~:ty ($~~~~~ 3~"'IIIIIIL~~iar~:f~~laSt~~eR~~ F:~[l~'1~~~,~'" mQm~~~ (the square rooEage~of~'Ehe Parcel) divided by 108,900 (the square footage of the Site) multiplied by $550,000 (the total h . f th 't) 1 $8 3+3 4 ~~~~~~~~W~~~~~~^ purc ase pr1ce or e S1 e equa s 7, . 7 ",;!:;(;4t<i>i!gW",~M:b;A~~~l! 1111111111111'l:lm[!1J)~!g!E~lj1tt.'~1l~!Zl!h~@~~r;!1~,Sli9in9~1!;!;Y111~1! 11111I1(ll'lf&\1illlllillilllilll!llil(til"llli1illl p:\9\9484\46565\Trans\DiSpAgr4.red -4- ~~!fl~~8~il~!j~!EElllllfil"1I1_IJJJllttl("'IJlII~[~I'i,f~ _~3?~~?i~[g!BJllfll~:::~I_.'\'__I.m;~~I]M;~ ,$Ii(ituhihieke "'<'ieEMiftQrhIi4~e\WH~1*JReji 'tI~Heii.ll ^ %'.t'ltfz;ofitil't;&Yi ~"lujrii~13W ."..~ t:;.,~-;f'V;~.;.<-~'W:~r- ... > ~'':::ii'i;:;/;.'~:;::'~ -'. ;-:-:,.... ~:-:,'.j,~, ~~~wii.{,.;:'t..b~f.t I 0J)e:v"",,'Op ':-.e%Agenl!aW} "'_/t,....e :::.: ,;*,':::'"~,:;,,t ~,-}<.,. ~ ,a.t.r.:.-f";;;::::> <::;, ""~il'8:" '~~:' ~'....4~":, ::><<>:"'::~:h'" , 'QlileH!:bd'(elil _~e\i~ '" ': ' j\O.,rililO~.:JI...~",,,, Q#+",..e ^',^7""',~d",,'~ ""," 'u, H' '""""",..1:Y"'"":;;.",,'U,,,~~ '''N"''i~''''''~':;,o'~", ",""""""'~"/\ "","W"",,,-"'",', ' nQh"'.....,"ex:elh""...ea 0 g"."",_$S~"'Z",.......e1ian....,(_....,:o",,, ,..:eus''''",;~n....._:r",n9 ", '<'k '"""4' '""".,..,,,,,,,," b, '''';'';'''"" We' ""''W,&.'i4,y,,,,,'''itilF''-.,,,,,,,f' ..Fa,,' ',.",'~" iii,' ""~"'~""'iS",i;'\ ;flbA,t,s...."'eC,ir"'".....e?i#lit"",....;.t!ilit!\fa'..""'''''lit;f:i''''ai..e:4...,;,iC...''*:'''S~, ,..litm"Y"f",PUrh i'....., _~€ti~' i~mmbWit'.,/~"'<'~h.<',<< IV' "'.......'w'~lr"w.h_ '.h'....., ,,', "v.:<.,::1''''~U6 _~ "iir/ '0:::--'"~,,,pxv-::' ':;, fi 2.2 Adiustment of Purchase Price Agency desires to be reimbursed by Developer for Agency's actual costs of demolition and pre-demolition hazardous materials testing for the Site, not to exceed One Hundred Twenty-Four Thousand Dollars ($124,000.00) ["Reimbursement Amount"]. Developer is willing to agree to a plan of reimbursement of up to, but not to exceed, the Reimbursement Amount, provided Developer achieves the level of profitability described in this paragraph. Both Agency and Developer acknowledge and agree that depending upon the circumstances, which neither party can control or guarantee, there can be no assurance that all or a portion of the Reimbursement Amount will be payable to Agency. Incomplete payment of the p:\9\9484\46565\Trans\DispAgr4.red -5- Reimbursement Amount, and with the understanding that the Reimbursement Amount shall not be payable from any other sources whatsoever, Developer shall pay Agency thirty percent (30%) of the difference between the" Adjusted Cost" and the "Net Sales Proceeds" of Phase 1, Phase 2 and Phase 3, as calculated at the completion of sales in Phase 3. "Adiusted Cost" shall mean any and all reasonable or necessary out-of-pocket costs incurred incident to the acquisition, development, marketing and sale of Business Homes upon the Site, including, without limitation, all costs associated with: (i) the acquisition of the Site; (ii) bank interest and fees, carrying costs, costs of raising all necessary funds, investors' twenty percent (20%) per annum return on capital (including all limited and general partners) ,I / i"f() (iii) labor; (iv) materials; (v) all on-site costs of labor, including office staff, materials, including site office rental and supplies, services including telephone and utilities, rentals including machinery and equipment; (vi) all utility, fees; City processing fees, charges, deposits and all school, park impact fees, connection or capacity (vii) developer's fees ten percent (10%) of construction costs; (viii) third party consultants' fees, including appraisers, engineers, architects, system designers, testing and inspections; and (ix) any and all other miscellaneous costs including sales, advertising and promotion costs, models, legal and accounting costs. "Net Sales Proceeds" shall mean the gross sales price of Business Homes units so~d in Phase ~2jtl~~IW2 and Phase 3, less customary closing costs ~ncluding sales comm~ssions not to exceed six percent (6%) per unit. All calculations shall be made in accordance with generally accepted accounting principles. p:\9\9484\46565\Trans\DispAgr4.red -6- The amount of the Reimbursement Amount, or the fact that there is not a Reimbursement Amount, shall be determined by a certified accountant, reasonably approved by the Agency. Such determination (the "Proposed Reimbursement") shall be communicated to the Agency in writing, with a full accounting of all project costs and revenues, by no later than thirty (30) days after the close of escrow from the last Business Homes unit in Phase 3. The Agency will have thirty (30) days from the receipt of the Proposed Reimbursement to notify Developer in writing of its reasonable objection thereto, if any. If the Agency fails to notify Developer within this 30-day period of any such objections, the Proposed Reimbursement shall be deemed approved by the Agency and shall become the "Reimbursement Amount." If the Agency does properly notify Developer of its objection(s) to the Proposed Reimbursement within this 30-day period, the parties will meet and confer in good faith and attempt to mutually agree upon a Reimbursement Amount. If the parties fail to agree upon a Reimbursement Amount after another 30 days, the matter will be submitted to a mutually agreed upon arbitrator located in San Diego County for binding arbitration pursuant to the rules of the American Arbitration Association. Based on all evidence presented, and in accordance with generally accepted accounting principles, the arbitrator shall make a final determination as to the Reimbursement Amount. The costs for arbitration shall be borne equally by the parties except that each party shall bear its own consultant and legal costs. arbitratiea l!Jt~1ff)~<<et:fi shall be the sole remedy for a dispute under this Agreem~ent~<<with respect to the determination of the Reimbursement Amount. 2.3 Phasinq of the Acquisition Developer shall have the right but not the obligation to acquire the Site in Phases as set forth herein. Completion of the acquisition of any Phase(s) shall not obligate the Developer to acquire any subsequent phase(s). Upon satisfaction of the conditions to close set forth below, Developer may purchase the Site in a maximum of three (3) phases as follows: (a) The Phase 1 acquisition shall consist of that portion of the Site comprised of approximately m~iaa~ square feet and generally shown as "Parcel 1" on the "Convey'ance Map" attached hereto as Attachment 2 and incorporated herein by this reference. Parcel 1 shall be used for the construction of six (6) model Business Homes and other required Phase 1 improvements for purposes of test marketing and modification of the design of the buildings. The Phase 1 acquisition shall be completed within four (4) months after execution of this Agreement. (b) The Phase 2 acquisition shall consist of that portion of the Site generally shown on the Conveyance Map as "Parcel 2." Parcel 2 shall consist of approximately 1.26 acres less Parcel 1. Parcel 2 shall be used for the construction of twelve (12) Business Homes and other required Phase 2 improvements. p:\9\9484\46565\Trans\D1SpAgr4.red -7- In the event Developer elects to acquire Parcel acquisi tion shall be completed wi thin ten ( 1 0 ) execution of this Agreement. 2, the Phase 2 months of the (c) The Phase 3 acquisition shall consist of the remainder of the Site comprised of approximately 1.27 acres and shown on the Conveyance Map as "Parcel 3". Parcel 3 shall be used for construction of the remaining eighteen (18) Business Homes and other required Phase 3 improvements. In the event Developer elects to acquire Parcel 3, the Phase 3 acquisition shall be completed within twenty (20) months of the execution of this Agreement. (d) Before the conveyance of title to each Parcel, the Executive Director of Agency and Developer shall meet and develop a schedule for construction for the improvements on such Parcel; provided, however, that the required improvements for Parcel 3 shall be completed no later than twelve (12) months after Developer I s acquisition of Parcel 3. The Developer shall begin and complete all construction and deyelopment within the times specified in the schedule with such extensions of said dates as may be granted by the Agency in its sole discretion. The schedule is subject to Section 7.4 of this Agreement and is subject to revision from time to time as mutually agreed upon in writing between the Developer and the Executive Director of Agency, each exercising their sole discretion. 2.4 Conditions to Developer's Riqht to Acquire Site. Developer's right to acquire any portion of the Site shall be subject to the satisfaction of the following conditions precedent for the benefit of the Agency: (a) Approved Financinq. Developer must present to the Agency staff evidence of acceptable financing for construction of improvements on the Phase to be acquired. Acceptable financing entails: (1) a lender of excellent reputation which is reasonably acceptable to the Agency; (ii) who validly commits in writing on specified objective terms and conditions reasonably approved by Agency to finance the construction of the Phase improvements pursuant to a disbursement schedule which is reasonably acceptable to the Agency; (iii) who agrees that loan proceeds will only be used for costs associated with the Project pursuant to this Agreement; (iv) whose documentation permits the acquisition, without discount or recourse, of the loan by the Agency (or its assignee) in the event this Agreement is terminated as a result of a Developer default and the Agency takes back the property (as described in Section 6.7 below); (v) who agrees to release any designated areas to the assessment district that will own and maintain such areas without consideration upon the conveyance of the first unit; and (vi) who agrees to enter into an agreement with the Agency concerning the Agency's right to reenter the property on the terms and conditions set forth in Section 6.7 of this Agreement; p:\9\9484\46565\Trans\DiSpAgr4.red -8- (b) Approved Marketinq study. Developer shall present to Agency staff in writing a marketing study prepared by Developer demonstrating substantial demand for Business Homes units in the phase to be acquired, including, without limitation, a list, with names and addresses, of interested or pre-committed purchasers, which shall be subject to reasonable approval by Agency staff; (c) P~_~@i?'i_~~h.iglitMPltjfG'it1 Deliverv of Promissory Note and 'Deeo" of'~"Ti'iist'; ""aftEfff"i?'avmerit"o{f Closinq Costs Develo er shall ~,""iWtl!WA.mWi''''(fmiS_'~'Bti'eV'$'::'';rs'ij6R#-~'h1flln&wr.r..ma deliver inlo escrow t~~~~tpr()~l~oryili&~~~~~~~*ol'~~t pl1EStlaftt. t.e uhich De. ~e.lel'e.r shall pay;ir~~!la~1t$D~.:'~ ~~:.~. ....~.:. ~w"""'-m"""'iE' '<'""'&i1~' 'm=_W''li"'''"''ft~-' """'Ij""'wX" ;"Uw'alt.:: ':..:.....,. :' .:rtll',:d, the urchase rice for Slie ase ". "W' ". ': ',ott< : <.;.};<<~;mB:~~t:~,';;".;-}~.>>.~.::'{':<<';:;;'W~k.~.. ," p p p ~~.% "'-xm;:'.:W;;d ~~~~M~~, and shall pay Developer's share of closing cos s; and :m\t$N;,.;w;~$ (d) presale Requirement. Agency shall abide by any Phase by Phase or total Project presale requirement that may be imposed, if at all, by Developer's construction lender. (e) Required Enti tlements. Developer shall receive approval of all required governmental approvals governing development and/or use of the Site ("Entitlements"), including Entitlements which must be obtained from the City and other public agencies. The parties hereto expressly acknowledge and agree that the Agency cannot grant any such Entitlements or cause any other governmental agency, including the City, to grant any such Enti tlements. Accordingly, the parties hereto expressly agree that, notwithstanding approval of this Agreement, the obligations of each party hereto shall be contingent upon the receipt of all Entitlements required for the development of the Site in the manner set forth in this Agreement and the obligations of each party hereto shall only arise upon the receipt of such Entitlements. The . Developer hereby releases the City and the Agency from any liability based upon the Developer's failure to obtain any such Entitlement and expressly agree that in no event shall any exercise of the Ci ty 's or Agency's discretion to approve, condi tion or disapprove any Entitlement or other discretionary item which is a condition to the obligations of the parties of this Agreement be deemed to be a default or an act of bad faith by the City or the Agency. Developer and Agency shall cooperate to initiate and process the required Entitlements. The Entitlements include but may not be limited to the following: (1) Approval and recordation of a parcel map; district. (2) Formation and effectiveness of assessment p:\9\9484\46565\Trans\DispAgr4.red -9- In the event that all of the Entitlements are not approved within four (4) months of the effective date of this Agreement, or in the event that the City, the Agency, or any other entity shall deny any of the requested discretionary approvals or disapprove any required Entitlement or other agreement necessary for construction or use of the Site, then upon thirty (30) days written notice from either party to the other, this Agreement shall be of no force and effect and neither of the parties shall have any further obligations to any of the other parties pursuant to this Agreement. The parties understand and acknowledge that the City and Agency reserve the right to exercise their discretion as to all matters which they are, by law, entitled or required to exercise their discretion. (f) CC&R' s. Agency approval of and recordation of the CC&R's as provided in Section 5.7 of this Agreement. (g) No Material Default. Developer shall not be in material default of this Agreement. 2.5 Escrow The Agency agrees to open an escrow for conveyance of each Parcel of the Site with Chicago Title Insurance Company or such other escrow agent as may be acceptable to both the Agency and the Developer (the "Escrow Aqent") as escrow agent in a timely manner. Sections 1.4-1.5 and 2.1-2.12 inclusive of this Agreement constitute the joint escrow instructions of the Agency and the Developer, and a duplicate original of this Agreement shall be delivered to the Escrow Agent upon the opening of the escrow. The Agency and the Developer shall provide such addi tional escrow instructions consistent with this Agreement as shall be necessary. The Escrow Agent hereby is empowered to act under such instructions, and upon indicating its acceptance thereof in writing, delivered to the Agency and to the Developer within five (5) days after opening of the escrow, the Escrow Agent shall carry out its duties as Escrow Agent hereunder. Upon delivery of the Grant Deed for the applicable Parcel to the Escrow Agent by the Agency pursuant to Section 2.9 of this Agreement, the Escrow Agent shall record such Deed in accordance with these escrow instructions, provided that the title to the applicable Parcel can be vested in the Developer in accordance with the terms and provisions of this Agreement. The Escrow Agent shall buy, affix and cancel any transfer stamps required by law. Any insurance policies governing the applicable Parcel are not to be transferred. The Developer shall pay in escrow to the Escrow Agent the following fees, charges and costs not to exceed Three Thousand Dollars ($3,000.00) promptly after the Escrow Agent ,has notified the Developer of the amount of such fees, charges and costs, but p:\9\9484\46565\Trans\DiSpAgr4.red -10- not earlier than ten (10) days prior to the scheduled date for the conveyance of the applicable Parcel: 1. The entire escrow fee; 2. The premium for the title insurance policy as set forth in Section 2.11 of this Agreement; 3. Cost of drawing the Deed; 4. Recording fees; 5. Notary fees; 6. Any state, County or City documentary stamps or transfer taxes; 7. Fifty percent (50%) of the ~ollective amount of the fees, charges and costs excluding Three Thousand Dollars ($3,000.00). To the extent that said fees, changes and costs exceed $3,000.00, then Developer and Agency shall share such costs equally. However, only that portion of the title insurance policy premium with respect to C.L.T.A. standard title insurance shall be included in the Three Thousand Dollars ($3,000) limit. The Developer, if it desires any additional title insurance, shall be solely responsible for all additional premiums, including for A.L.T.A. coverage or special endorsements which it requests. h II I d . .."',"'.w,"'.,'~w^w''''''mm..v.''.....'''',.'w..v'''l..v''''''p t Th D 1 t"".~;..."";.;.ia....." h - accoraance with the provisions of Section 2.10 of this Agreement. The Agency shall pay in escrow to the Escrow Agent the following fees, charges and costs promptly after the Escrow Agent has notified the Agency of the amount of such fees, charges and costs, but not earlier than ten (10) days prior to the scheduled date for the conveyance of the applicable Parcel: 1 . Costs necessary to place the title to the applicable Parcel in the condition for conveyance required by the provisions of this Agreement; 2. Ad valorem taxes, if any, upon the applicable Parcel for any time prior to the conveyance of title. The Agency shall timely and properly execute, acknowledge and deliver a Grant Deed in substantially the form established in Section 2.7 of this Agreement, conveying to the Developer title to the applicable Parcel in accordance with the requirements of p:\9\9484\46565\Trans\DispAgr4.red -11- Section 2.8 of this Agreement, together with an estoppel certificate certifying that the Developer has completed all acts (except deposit of the Purchase Price), necessary to entitle the Developer to such conveyance, if such be the fact. The Escrow Agent is authorized to: 1 . Pay, and charge the Agency and the Developer, respectively, for any fees, charges and costs payable under this Section 2.5 of this Agreement. Before such payments are . made , the Escrow Agent shall notify the Agency and the Developer of the fees, charges and costs necessary to clear title and close the escrow. 2. Disb';lrse funds and deliver the Deed '.'1 t~!: Prom~ssory ~?~e and Deed of Trust~~~M ~~~f!E~!'~"!~!f! ~~~no~h:r c~~~~~~~: ~~ this escrow have been fulfilled by the Agency and ~~ until it has recorded the Deed to the applicable Parcel and has, delivered to the Developer a title insurance policy insuring title and conforming to the requirements of Section 2.11 of this Agreement. 3. Record any instruments delivered through this escrow if necessary Developer in provisions of this Agreement or proper to vest title in the accordance wi th the terms and the escrow instructions portion of (Sections 1~4-1.5 and 2.1-2.12). All funds received in this escrow shall be deposited by the Escrow Agent in a general escrow account with any state or national bank doing business in the State of California and reasonably approved by the Developer and the Agency, and may be combined in such with other escrow funds of the Escrow Agent. If this escrow is not in condition to close on or before the time for conveyance established in Section 2.6 of this Agreement, either party who then shall have fully performed the acts to be performed before the conveyance of title may, in writing, demand the return of its money, papers or documents from the Escrow Agent. No demand for return shall be recognized until ten (10) days after the Escrow Agent (or the party making such demand) shall have mailed copies of such demand to the other party or parties at the address of its principal place of business. Objections, if any, shall be raised by written notice to the Escrow Agent and to the other party within the ten (10) day period, in which event the Escrow Agent is authorized to hold all money, papers and documents p:\9\9484\46565\Trans\DiSpAgr4.red -12- with respect to the applicable Parcel until instructed by a mutual agreement of the parties or, upon failure.thereof,' by a court of competent jurisdiction. If no such demands are made, the escrow shall be closed as soon as possible. If objections are raised as above-provided for, the Escrow Agent shall not be obligated to return ariy such money, papers or documents except upon the written instructions of both the Agency and the Developer, or until the party entitled thereto has been determined by a final decision of a court of competent jurisdiction. If no such objections are made within said ten (10). day period, the Escrow Agent shall immediately return the demanded money, papers or documents. Any amendment to the escrow instructions shall be in writing and signed by both the Agency and the Developer. At the time of any amendment the Escrow Agent shall agree to carry out its duties as Escrow Agent under such amendment. All communications from the Escrow Agent to the Agency or the Developer shall be directed to the addresses and in the manner established in Section 7.1 of this Agreement for notices, demands and communications between the Agency and the Developer. 2.6 Conveyance of Title and Delivery of Possession Subject to any mutually agreed-upon extension of time, conveyance to the Developer of ti tIe to each Parcel shall be completed on or prior to the dates set forth in Section 2.3 hereof or such later date mutually agreed to in writing by the Agency and the Developer and communicated in writing to the Escrow Agent. Except as otherwise provided herein, possession of the applicable Parcel shall be delivered to the Developer concurrent with the conveyance of title. The Developer shall accept title and possession to the applicable Parcel on or before the dates set forth above. 2.7 Form of Deed The Agency shall convey to the Developer title to the each Parcel in the condition provided in Section 2.8 of this Agreement by Grant Deed in a form to be mutually agreed upon by the Agency and the Developer consistent with this Agreement and otherwise utilizing Escrow Agent's standard form. The Grant Deed to each Parcel shall contain covenants necessary or desirable to carry out this Agreement. 2.8 Condition of Title The Agency shall convey to the Developer fee simple title to each Parcel of the Site. Developer will accept title to the Site subject to the Deed(s) of Trust in favor of the Agency for ttfty p:\9\9484\46565\Trans\DiSpAgr4.red -13- ef EHe pHases Pffase1tZ*manatWt~ffe%ll%gfmr&ewa~tIDE5hm€% and those i tems indicated'"b'h~~~uie'1!i~flLtfi'at~c~rf1tl"K~t!'i;iflA"t1.'tI~ insurance policy, dated August 18, 1993, issued to the Agency by Chicago Title Company; provided, however, that Developer's acceptance of the items indicated in such title policy is conditioned upon Developer's review and approval of a plot map showing all easements referenced therein and its determination that such easements and other items do not adversely affect its proposed development of the Site for the purposes described herein. In addition, prior to the close of escrow for each phase, Developer shall obtain an updated preliminary title report covering the phase being purchased and may object to any additional items indicated on such report. In the event Developer objects to any items indicated on the updated report, the Agency shall have the option to remove any objectionable items from title to the subject phase prior to the close of escrow. If the Agency is unable or unwilling to remove any such objectionable items, Developer shall have the right to terminate the escrow and cancel its obligation to purchase such phase. 2.9 Time for and Place for Delivery of Deed Subject to any mutually agreed-upon extension of time, the Agency shall deposit the Grant Deed for the applicable Parcel with the Escrow Agent on or before the date established for conveyance, as set forth above. 2.10 Payment of the Purchase Price and Recordation of the Deed the O~~~i~~~~~oP:~e~~:;~ ~~~~~~~~r~ep~~:;!1!llf1fl,!'."lltlll ""'.'"'..,."""~"',.,..,...,.;..''''''..._...,.'''.."'"~",.."....,.,.""'w.."""....haS"=.<<~.,. f th 1 . bl ..'..J\lb"l'..' Dll#+.......~<<'Hli5J:t#%s~t,g~W+'1~\$(\:M;h#1!t,l'AAl$1;' or e app J.ca e parce with,uvffi^e"'Escrow^Agenf"upclii'"or"prfoi'to the date for conveyance thereof, proyided that Escrow Agent shall have notified the Developer in writing that the Grant Deed conveying the applicable Parcel to the Developer, properly executed and acknowledged by the Agency, has been delivered to the Escrow Agent and that title is in condition to be conveyed in conformity with the provisions of Section 2.8 of this Agreement. The Escrow Agent shall deliver png li'I"r,J'!\"I!ilii,li~~l :~:::l:~;:u~;~~'~!!!!'~!!!f~! ti tIe in conformity with Section 2.11 of' this Agreement and the filing of the deed for recordation among the land records in the Office of the County Recorder for San Diego County. 2.11 Title Insurance Concurrently with recordation of the Grant Deed, Escrow Agent ( "Ti tle Co.") shall issue and deliver to the Developer an ALTA extended coverage policy of title insurance insuring that the title is vested in the Developer in the condition required by Section 2.8 of this agreement. The title insurance policy shall be in the p:\9\9484\46565\Trans\DiSpAgr4.red -14- amount of the Purchase Price of the applicable Parcel or in such greater amount as, the Developer may specify as hereinafter provided. Concurrent with the issuance of the title policy for the applicable Parcel, Escrow Agent shall, if requested by the Developer, provide the Developer with an endorsement to insure the amount of the Developer I s estimated construction costs of the improvements to be constructed thereon. 2.12 Taxes and Assessments Ad valorem taxes and assessments, if any, on each Parcel shall be prorated in escrow as of the date of close of escrow based on a 30-day month and a 360-day year. 2.13 Condition of the Site Subject to completion of the work set forth in Section 3 of this Agreement, the Site, each Parcel, and all improvements thereon shall be conveyed in an "as is" condition, with no warranty, express or implied by the Agency as to the physical condi tion (including the existence of hazardous materials), value, development, use, marketability, feasibility and sui tabili ty of the Site, or any Parcel thereof, for Developer's intended use. Developer is a sophisticated purchaser who is familiar with this type of property. Developer will make its own independent investigation, to the extent Developer deems necessary, of the condition or suitability of the Site and each Parcel and will acquire all or any portion of the Site solely in reliance on such independent investigation. Developer acknowledges that any and all studies, reports, surveys, maps and other information that Developer may receive from Agency or its agents in connection with the Site are provided without any warranty '( whether oral or written, express or implied) by Agency as to their accuracy, and on the express condition that Developer shall make its own independent evaluation of such information. Developer unconditionally releases Agency from and against any and all liability to Developer, both known and unknown, present and future, for any and all damages, losses, claims and costs (including attorneys fees), without limitation, the existence of hazardous materials), or the Site's non-suitability for Developer's intended use. Developer waives the provisions of California Civil Code Section 1542 which provides: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release which if known by him must have materially affected his settlement with the debtor. The Agency agrees that it will not cause, or permit its contractors or agents to cause, without remediating the same, during the time the applicable Parcel is in the possession of the Agency, and prior to conveyance of title to the applicable Parcel to the Developer, the placement of any hazardous or toxic p:\9\9484\46565\Trans\DiSpAgr4.red -15- substances on the applicable Parcel which contaminates the soil and/or water on the applicable Parcel, Notwithstanding the foregoing, any hazardous or toxic substances already existing on the Site may be moved and/or temporarily stockpiled on the Site in accordance with the scope of demolition and/or remediation work conducted at the Site by Watkins Contracting, Inc. and/or Woodward-Clyde under contracts with the Agency which have been approved by Developer. 2.14 Preliminary Work by the Developer Prior to the conveyance of ti tle to each Parcel, representatives of the Developer shall at all reasonable times have the right of access to and entry upon those real properties comprising the applicable Parcel which are owned by the Agency, or of which the Agency has possession, for the purpose of obtaining data relevant to its development process and making surveys and tests necessary to carry out this Agreement. The Developer agrees to defend, indemnify and hold the Agency, the City, and their officers, employees, contractors and agents, harmless from and against any and all claims, liability, loss, damage, costs or expenses (including reasonable attorneys' fees and court costs) arising out of any work or activity of the Developer, its officers, employees, contractors and agents permitted pursuant to this Section 2. 1 4. The Agency agrees to provide, or cause to be provided to the Developer all data and information pertaining to each Parcel that is available to the Agency when requested by the Developer. 2.15 Submission of Evidence of Financinq The Developer shall report regularly as requested by the Agency (but at least every three (3) months) on its progress in obtaining financing for the development on each Parcel. The reports may be oral, or shall be in writing if requested by the Agency. The reports shall explain in reasonable detail the sources and methods of financing sought, the status of obtaining the financing and the issues, if any, which must be resolved, and the preleasing or presales activity which is required or has been achieved. The information in the reports shall remain confidential to the extent permitted by law, recognizing without limitation that they are subject to review by responsible officials, employees and contractors of the Agency. Developer shall submit to the Agency evidence satisfactory to the Agency that the Developer has obtained the financing necessary for the development of the applicable Parcel in accordance with this Agreement. Such evidence of financing shall include all information described in Section 2.4(a) of this Agreement and the following: (a) A copy of the term sheet describing the details of the terms and conditions of the mortgage p:\9\9484\46565\Trans\DiSpAgr4.red -16- loan or loans obtained by the Developer (both for interim construction financing and take out financing if a condition of funding the construction loan) to assist in financing the construction of the improvements on the applicable Parcel (as defined in the Scope of Development attached as Attachment 3), certified by the Developer to be a true and correct copy or copies thereof; and (b) Evidence reasonably satisfactory to the Agency of sources of equity capital sufficient to demonstrate that the Developer has adequate funds to cover the difference, if any, between construction cost minus financing authorized by mortgage loans. The Agency shall approve or disapprove such evidence of financing in a timely manner. If the Age~cy shall disapprove any such evidence of financing, the Agency shall do so by written notice to the Developer stating the reasons for such disapproval. 3. PREACQUISITION OBLIGATIONS. 3.1 Demolition of Existinq Buildinqs The Agency has contracted for demolition of the existing structures at the Agency's sole cost with Watkins Contracting, Inc. ("Demolition Contract"). Such demolition work shall be completed in accordance with the schedule set forth in the Demolition Contract. The demolition work shall include all work described in the Demolition Contract ("Demolition Work"). Except as otherwise provided herein, Developer shall be responsible, at Developer's sole cost, for any and all other work on the Site necessary for the development of the Project. 3.2 Site Remediation Work. (a) Agency has contracted wi th Woodward-Clyde (" Environmental Consultant") for testing and the performance of a limited surface soils investigation for the Site. Agency shall be responsible for payment of all costs of the pre-demolition soils testing (approximately $17,000.00 (Seventeen Thousand Dollars)) ("Pre-demo Soils Testinq"). (b) Agency shall contract with the Environmental Consultant to conduct the additional testing, monitoring and remediation recommended by the Environmental Consultant as a result of the Pre-demo Soils Testing and which is of a type and scope agreed to by the parties to this Agreement ("Remediation Work"). (c) Agency and Developer each commit to share in the costs of the Remediation Work, as follows: (i) Developer shall p:\9\9484\46565\Trans\DispAgr4.red -17- be responsible for payment of up to the first Ten Thousand Dollars ($10,000.00) due and payable for the Remediation Work; (ii) Agency shall be responsible for payment of up to the next Ten Thousand Dollars ($10,000.00) due and payable for the Remediation Work; and (iii) each party will be responsible for payment of fifty percent (50%) of up to the next Twenty Thousand Dollars ($20,000.00) due and payable for the Remediation Work. If during the course of performing the Remediation Work, Environmental Consultant indicates or the parties otherwise agree that the Remediation Work will cost in excess of Forty Thousand Dollars ($40,000.00), ("Additional Remediation Work") then, while neither party shall be obligated to advance sums in excess of this amount, the parties shall meet, discuss and negotiate the allocation of responsibility. (d) If the parties are unable to agree to the allocation of responsibility for Additional Remediation Work, Developer or Agency may terminate this Agreement pursuant to Section 6.6.1 or 6.6.2, respectively. Notwithstanding the termination of this Agreement, Developer shall remain liable for the first Ten Thousand Dollars ($10,000.00) due and payable for the Remediation Work and fifty percent (50%) of up to the next Twenty Thousand Dollars ($20,000.00) due and payable for the Remediation Work. Developer shall be responsible for such amounts only if Agency proceeds with the Remediation Work and incurs such costs. (e) If the parties reach agreement as to the allocation of responsibility for Additional Remediation Work or if the Remediation Work does not exceed Forty Thousand Dollars ($40,000.00), then, subject to the Agency's completion of the Demolition Work, the Site shall be acquired by Developer in an "as is" condition with no representations and warranties from Agency with respect to the physical condition thereof. (f) The Agency shall contract for and oversee the Remediation Work and any agreed upon Additional Remediation Work. Developer shall reimburse Agency for any amounts owed by Developer within seven (7) days of the receipt of the applicable invoice and supporting documentation from Agency. (g) The Remediation Work and any Additional Remediation Work shall be deemed complete when Environmental Consultant or another licensed hazardous materials professional has issued a letter or report certifying that no further environmental work needs to be conducted at the Site. (h) Developer shall have the right but not the obligation to monitor the Remediation Work and any Additional Remediation Work. This right shall include the ability to review all information generated by Environmental Consultant and to meet and discuss the progress with Environmental Consultant. p:\9\9484\46565\Trans\DispAgr4.red -18- (i) Developer and Agency shall meet and confer regarding pursuit of monetary claims relating to the Remediation Work. If the parties so agree, Agency shall use its best efforts to pursue any and all monetary claims the Agency may have including those against Fuller Ford and its principals and, if applicable, under the state Underground storage Tank Cleanup Fund for the cost of the Remediation Work. If Agency pursues such claims, Agency shall reimburse Developer for up to its monetary contribution to the Remediation Work out of the first available proceeds after deducting Agency's actual costs in pursuing such claims. 4. DEVELOPMENT OF THE SITE 4.1 Development of the Site Developer shall have no obligation to construct on any Parcel unless and until Developer elects to acquire that Parcel. Upon such election and the close of escrow conveying any Parcel to Developer, Developer's obligation to construct the improvements on that Parcel shall mature and Developer shall be subject to the remedies provided in this Agreement for failure to complete construction in the manner and the time set forth in this Agreement. All construction shall comply with all applicable federal, state and local laws, and all environmental, land use and other conditions imposed on the Project. 4.1 .1 Scope of Development The Site, and each Parcel thereof, shall be developed with "Business Homes" in accordance with and within the limitations established in the "Scope of Development" incorporated herein and attached to this Agreement as Attachment No.3. 4.1.2 Basic Concept and Schematic Drawinqs The Developer has prepared and submitted, and Agency has approved Basic Concept and Schematic Drawings and related documents for the development of the Site. The Site shall be developed as established in the Basic Concept and Schematic Drawings and related documents except as changes may be mutually agreed upon between the Developer and the Agency. Any such changes shall be within the limitations of the Scope of Development (Attachment No.3) and shall be processed in accordance with all applicable local land use processes and conditions. 4.1.3 Landscapinq and Gradinq Plans The Developer shall prepare and submit to the Agency for its approval preliminary and final landscaping and preliminary and finish grading plans for each Parcel. Those plans shall be prepared and submitted within the time established by the parties p:\9\9484\46565\Trans\DispAgr4.red -19- as described in Section 2.3. The landscaping plans shall include a lighting program which highlights the design of components of the development, including, but not limited to, building facades, archi tectural detail, building interiors, landscaping and sculpture. The landscaping plans shall be prepared by a professional landscape architect and the grading plans shall be prepared by a licensed civil engineer. Such landscape architect and/or civil engineer may be the same firm as the Developer's architect. 4.1.4 Construction Drawinqs and Related Documents for the Site The Developer shall prepare and submit construction drawings and related documents (collectively called the" Drawinqs") for the development pertaining to each Parcel to the Agency for review (including but not limited to architectural review), and written approyal in the times established by the parties as described in Section 2.3. Such construction drawings and related documents shall be submitted in three stages: Design Development Drawings, 50% Complete Construction Drawings and Final Construction Drawings. Final Construction Drawings are hereby defined as those in sufficient detail to obtain a building permit. Approval of progressively more detailed drawings and specifications will be promptly granted by the Agency if developed as a logical evolution of drawings or specifications theretofore approved. Any items so submitted and approved by the Agency shall not be subject to subsequent disapproval. During the preparation of all drawings and plans, the Agency and the Developer shall hold regular progress meetings to coordinate the preparation of, submission to, and review of construction plans and-related documents by the Agency. The Agency and the Developer shall communicate and consult informally as frequently as is necessary to insure that the formal submittal of any documents to the Agency can receive prompt and speedy consideration. If any revisions or corrections of plans approved by the Agency shall be required by any non-City/Agency government official, agency, department, or bureau having jurisdiction over the development of the Site, the Developer and the Agency shall cooperate in efforts to obtain waiver of such requirements or to develop a mutually acceptable alternative. 4.1.5 Aqencv Approval of Plans. Drawinqs and Related Documents Subject to the terms of this Agreement, the Agency shall have the right of review (including without limitation architectural review) of all plans and submissions, including any proposed p:\9\9484\46565\Trans\DispAgr4.red -20- changes therein. The Agency shall approve or disapprove the plans, drawings and related documents referred to in Sections 4.1.3, and 4.1.4 of this Agreement in a timely manner. Any disapproval shall state in writing the reasons for disapproval and the changes which the Agency requests to be made. Such reasons and such changes must be consistent with the Scope of Development (Attachment No.3) and any items previously approved or deemed approved hereunder. The Developer, upon receipt of a disapproval based upon powers reserved by the Agency hereunder, shall revise the plans, drawings and related documents, and shall resubmit to the Agency as soon as possible after receipt of the notice of d~sapproval. If the Developer desires to make any substantial change in the Final Construction Drawings after their approval, such proposed change shall be submitted to the Agency for approval. If the Final Construction Drawings, as modified by the proposed change, conform to the requirements of Section 4.1.4 of this Agreement and the Scope of Development, the proposed change shall be approved and the Developer shall be notified in writing within fifteen (15) days after submission. Such change in the construction plans shall, in any event, be deemed approved unless rejected, in whole or in part, by written notice thereof setting forth in detail the reasons therefor, and such rejection shall be made within said fifteen (15) day period. 4.1.6 Cost of Construction The cost of developing the Site, and each Parcel thereof, and constructing all improvements thereon shall be borne by the Developer, except as provided in this Agreement. 4.1.7 Construction Proqress Reports During periods of construction, the Developer shall submit to the Agency a written report of the progress of the construction when and as reasonably requested by the Agency. The report shall be in such form and detail as may be reasonably required by the Agency and shall include a reasonable number of construction photographs (if requested) taken since the last report by the Developer. 4.1.8 Indemnification Durinq Construction: Bodily In;ury and Property Damaqe Insurance During the period commencing with execution of this Agreement by the Agency, and continuing until such time as the Agency has issued a Certificate of Completion with respect to the construction of all improvements on the Site, the Developer agrees to and shall defend, indemnify and hold harmless the Agency, and City and their respective officers, employees, contractors and agents from and against all claims, liability, loss, damage, costs or expenses (including reasonable attorneys' fees and court costs) arising from or as a result of the death of any person or any accident, injury, p:\9\9484\46565\Trans\DispAgr4.red -21- loss or damage whatsoever caused to any person or to the property of any person arising out of the activities of the Developer under this Agreement, and which shall be directly or indirectly caused by any acts done or any errors or omissions of the Developer or its officers, employees, contractors or agents. The Deyeloper shall not be responsible for (and such indemnity shall not apply to) any negligent acts, errors or omissions or intentional misconduct by the Agency, the City, or their respective officers, employees, contractors or agents. Without limiting the preceding sentence, except for activities undertaken by the Developer with respect to a Parcel before the conveyance of title thereto to the Developer, the Agency hereby acknowledges that (as between the Agency and the Developer) the Agency is responsible for maintaining each Parcel and any improvements which may remain thereon in a safe condition prior to conveyance of title to the applicable Parcel to the Developer. During the period commencing with any preliminary work on the Si te by the Developer under Section 2.14, or if none, then commencing with conveyance of title to: the first Parcel to the Developer, and ending on the date when a Certificate of Completion has been issued with respect to the entire Site, the Developer shall furnish or cause to be furnished to the Agency, duplicate originals or appropriate certificates of bodily injury and property damage insurance policies in the amount of at least Two Million Dollars ($2,000,000.00) combined single limit naming the Agency and Ci ty, and their officers, employees, contractors and agents as additional insureds. 4.1.9 Construction hntiaiscrimiftatisn "'.""'~.IJ."><""'. '.,',.,"..ww. ""'="'^:""""!J!'. . ...: d . ...~.,-.."'.... .,'. ,._....''''''. " urJ.nq .........-::.-.:....:.:::::......'.....'..:~:.......:~..-.........'............~:.............:........... - The Developer for itself and its successors and assigns agrees that in the construction of the improvements on the Site provided for in this Agreement, the Developer will not discriminate against any employee or applicant for employment because of sex, marital status, race, color, creed, religion, national origin or ancestry. 4.1.10 Local. State and Federal Laws The Developer shall carry out the construction of the improvements on the Site in conformity with all applicable laws, including all applicable federal and state labor standards. 4.1.11 Citv and Other Governmental Aqency Permits Before commencement of construction or development of any buildings, structures or other work of improvement upon each Parcel of the Site, the Developer shall, at its own expense, secure or cause to be secured, any and all permits which may be required by the City or any other governmental agency affected by such construction, development or work. Agency staff shall reasonably cooperate with the Developer in securing these permits. p:\9\9484\46565\Trans\DispAgr4.red -22- 4.1.12 License/Easement Agency and/or City shall and do hereby grant Developer a license, revocable upon the completion and sale of all Business Homes units termination of this Agreement, to use portions of the Site not yet acquired by Developer for construction staging and stockpiling relating to Developer's development and construction activities upon the Site. Any such use of the Site by Developer shall be subject to Section 4.1 .8 hereof. Developer shall take all necessary and appropriate measures to secure and maintain the Site in a safe condition during the term of its license and shall name the Agency as an additional insured under any liability insurance purchased by Developer with respect to its activities on the Site. 4.2 Fees Developer shall be solely responsible for payment of all applicable Project processing and impact tees. Developer reserves the right to challenge the propriety of the imposition of or amount of any such fees. 4.3 Taxes: Assessments: Encumbrances: and Liens The Developer shall pay when due all real estate taxes and assessments assessed and levied on or against each Parcel subsequent to the conveyance of the title thereto. The Developer shall not place, or allow to be placed, on the Site or any Parcel thereof, any mortgage, trust deed, encumbrance or lien not authorized by this Agreement. The Developer shall remove, or shall have removed, any levy or attachment made on the Site (or any Parcel thereof ), except those created by work of the Agency, or shall assure the satisfaction thereof within a reasonable time but in any event prior to a sale thereunder. Nothing herein contained shall be deemed to prohibi t the Developer from contesting the validity or amount of any tax assessment, encumbrance or Lien, nor to limit the remedies available to the Developer in respect thereto. The covenants of the Developer set forth in this Section 4.4 relating to the placement of any unauthorized mortgage, trust deed, encumbrance or lien, shall remain in effect only until a Certificate of Completion of construction has been recorded with respect to the Parcel upon which any unauthorized mortgage, trust deed, encumbrance or lien might be placed. 4.4 Prohibition aqainst Transfer Prior to the recordation by the Agency of a Certificate of Completion for a Parcel (referred to in Section 4.7 of this Agreement), the Developer shall not, except as permitted by this Agreement, assign or attempt to assign this Agreement or any right herein with respect to such Parcel, nor make any total or partial sale, transfer, conveyance or assignment of the whole or any part of such Parcel or the improvements thereon, without prior written p:\9\9484\46565\Trans\DispAgr4.red -23- approval of the Agency. This prohibition shall not apply to a Parcel (or any portion thereof) subsequent to the recordation of the Certificate of Completion with respect thereto. This prohibition shall not be deemed to prevent the granting of easements or permits necessary for the development of the Site, nor shall it prohibit entering into contracts to sell individual e1:lsiaess aallles :anS$n~$$M'Romeliil conditional on the issuance of a Certificate of C~mplet~on-thE;refor, nor shall it prohibit granting any security interests expressly described in this Agreement for financing the acquisition and development of the applicable Parcel. 4.5 Securitv Financinq; Riqht of Holders 4.5.1 No Encumbrances except Mortoaqes. Deeds of Trust. Conveyances and Leases-Back or Other Convevance for Financinq for Development Notwithstanding Section 4.4, after conveyance of title to the applicable Parcel to the Developer, mortgages, and deeds of trust, or any other form of conveyance required for any reasonable method of financing are permitted with respect to the Parcel before the recordation of the Certificate of Completion (referred to in Section 4.7 of this Agreement), but only for the purpose of securing loans of funds to be used for the construction of improvements on such Parcel, and any other expenditures necessary and appropriate to develop such Parcel under this Agreement. The Developer shall notify the Agency in advance of any mortgage, deed of trust, or other form of conveyance for financing, if the Developer proposes to enter into the same before the recordation of the Certificate of Completion. The Developer shall not enter into any such conveyance for financing without the prior written approval of the Agency, which approval the Agency agrees to give if any such conveyance is giyen to a financial or lending institution approved by Agency under the standards set forth in Section 2. 4 (a) and 2. 1 7 hereof. Such lender approved by the Agency pursuant to this Section 4.5.1, shall not be bound by any amendment, implementation or modification to this Agreement subsequent to its approval without such lender giving its prior written consent. In any event, the Developer shall promptly notify the Agency of any mortgage, deed of trust, conveyance and lease-back, or other financing, conveyance, encumbrance or lien that has been created or attached to the Site or any Parcel (or any portion thereof) prior to completion of the construction of the improvements thereon whether by voluntary act of the Developer or otherwise. The words "mortgage" and "deed of trust" as used herein include all other appropriate modes of financing real estate acquisition, construction and land development. 4.5.2 Holder Note Obliqated to Construct Improvements p:\9\9484\46565\Trans\DispAgr4.red -24- The holder of any mortgage, dead of trust or other security interest authorized by this Agreement shall in no way be obligated by the provisions of this Agreement to construct or complete the improvements or to guarantee such construction or completion; nor shall any covenants or any other provision in the grant deed for the applicable Parcel be so construed as to so obligate such holder. Nothing in this Agreement shall be deemed or construed to permit such holder to devote the Site to any uses or to construct any improvements on the Site, other than those uses or improvements provided for or authorized by this Agreement. 4.5.3 Notice of Default to Mortqaqe. Deed of Trust or Other Security Interest Holders: Riqht to Cure Whenever the Agency shall deliver any notice or demand to the Developer with respect to any breach or default by the Developer in completion of construction of the improvements, the Agency shall at the same time deliver to each holder of record of any mortgage, deed of trust or other security interest authorized by this Agreement a copy of such notice or demand. Each such holder shall (insofar as the rights of the Agency are concerned) have the right at its option within ninety (90) days after the receipt of the notice, to cure or remedy, or commence to cure or remedy, any such default and to add the cost thereof to the security interest debt and the lien of its security interest. If such default shall be a default which can only be remedied or cured by such holder upon obtaining possession, such holder shall seek to obtain possession with diligence and continuity through a receiver or otherwise, and shall remedy or cure such default within ninety (90) days after obtaining possession; provided that in the case of a default which cannot with diligence be remedied or cured, or the remedy or cure of which cannot be Commenced within such ninety (90) day period, such holder shall have such additional time as reasonably necessary to remedy or cure such default with diligence and continuity; and provided further that such holder shall not be required to remedy or cure any non-curable defaul t of the Developer. Nothing contained in this Agreement shall be deemed to permit or authorize such holder to undertake or continue the construction or completion of the improvements (beyond the extent necessary to conserve or protect the improvements or construction already made) without first having expressly assumed the Developer's obligations to the Agency by written agreement satisfactory to the Agency. The holder in that event must agree to complete, in the manner provided in this Agreement, the improvements to which the lien or title of such holder related, and submit evidence satisfactory to the Agency that it has the qualifications and/or financial responsibility necessary to perform such obligations. Any such holder properly completing such improvements shall be entitled, upon written request made to the Agency, to a Certificate of Completion from the Agency. 4.5.4 Failure of Holder to Complete Improvements p:\9\9484\46565\Trans\DiSpAgr4.red -25- In any case where, six (6) months after default by the Developer in completion of construction. of improvements on any Parcel under this Agreement, the holder of any mortgage, deed of trust or other security interest creating a lien or encumbrance upon such Parcel (or portion thereof) has not exercised the option to construct, or if it has exercised the option but has not proceeded diligently with construction, the Agency may purchase the mortgage, deed of trust or other security interest by payment to the holder of the amount of the unpaid debt, plus any accrued and unpaid interest. If the ownership of the Parcel (or portion thereof) has vested in the holder, the Agency, if it so desires, shall be entitled to a conveyance from the holder to the Agency upon payment to the holder of an amount equal to the sum of the following: (a) The unpaid mortgage, deed of trust or other security interest debt at the time title became vested in the holder (less all appropriate credits, including those resulting from coLlection and application of rentals and other income received during foreclosure proceedings). (b) All expenses with respect to foreclosure. (c) The net expense, if any (exclusive of general overhead), incurred by the holder as a direct result of the subsequent ownership or management of the Parcel (or portion thereof), such as insurance premiums and real estate taxes. (d) The cost of any improvements made by such holder. (e) An amount equivalent to the interest that would have accrued on the aggregate of such amounts had all such amounts become part of the mortgage or deed of trust debt and such debt had continued in existence to the date of payment by the Agency. p:\9\9484\46565\Trans\DiSpAgr4.red -26- Riqht of the Aqency to CUre Mortqaqe. Deed of Trust. or Other Securitv Interest Default In the event of a default or breach by Developer under any mortgage, deed of trust or other security instrument with respect to any Parcel prior to the issuance of a Certificate of Completion by the Agency wi th respect to such Parcel, the holder of such security instrument shall give the Agency the same notice and cure rights to which Developer is entitled under the applicable loan documents. 4.5.5 In the event of a default or breach by the Developer of a mortgage, deed of trust or other security interest with respect to any Parcel (or any portion thereof) prior to the issuance of a ~ertificate of Completion by the Agency, and the holder has not exercised its option to complete the development, the Agency may cure the default prior to completion of any foreclosure. In such event, the Agency shall be immediately entitled to reimbursement from the Developer of all costs and expenses incurred by the Agency in curing the default. The Agency shall also be entitled to a lien upon the applicable Parcel (or portion thereof) to the extent of such costs and disbursements. Any such lien shall be subordinate and subject to mortgages, deeds of trust, or other security instruments executed for the sole purpose of obtaining funds to purchase and develop such Parcel (or portion thereof) as authorized herein. 4.6 Riqht of the Aqencv to Satisfy Other Liens on the Property After Title Passes Prior to the recordation of the Certificate of Completion (referred to in Section 4.7 of this Agreement). and after the Developer has had a reasonable time to challenge, cure or satisfy any liens or encumbrances on the applicable Parcel (or any portion thereof), the Agency shall have the right to satisfy any such liens or encumbrances; provided. however, that nothing in this Agreement shall require the Developer to payor make provisions for the payment of any tax, assessment, lien or charge so long as the Developer in good faith shall contest the validity or amount thereof, and so long as such delay in payment shall not subject the Parcel (or any portion thereof) to forfeiture or sale. 4.7 Certificate of Completion Promptly after completion of all construction and development to be completed by the Developer upon the applicable Parcel, and assuming Developer is not otherwise in default under this Agreement or in non-compliance with applicable local laws, permits and conditions, the Agency shall furnish the Developer with a Certificate of Completion upon written request therefor by the Developer. The Agency shall not unreasonably withhold any such Certificate of Completion. Such Certificate of Completion shall be, and shall so state, conclusive determination of satisfactory p:\9\9484\46565\Trans\DispAgr4.red -27- completion of the construction required by this Agreement upon the applicable Parcel, and of full compliance with the terms hereof with respect to the applicable Parcel. The Agency may also furnish the Developer with a Certificate of Completion for portions of the improvements upon the applicable Parcel, including for specific uses, as are properly completed and ready to use if the Developer is not in default under this Agreement. The Certificate of Completion shall be in such form as to permit it to be recorded in the Office of the Recorder of San Diego County. If the Agency refuses or fails to furnish a Certificate of Completion for the applicable Parcel after written request from the Developer, the Agency shall, within fifteen (15) days of receipt of the written request, provide the Developer with a written statement which details the reasons the Agency refused or failed to furnish a Certificate of Completion. The statement shall also contain the Agency's opinion of the action the Developer must take to obtain a Certificate of Completion. If the reason for such refusal is confined to the immediate unavailability of specific items or materials for landscaping, or incidental interior punchlist items, or incidental exterior punchlist items which do not adversely affect the appearance of the development, the Agency will issue its Certificate of Completion upon the posting of a bond by the Developer with the Agency in an amount representing one hundred and fifty percent (150%) of the cost of the work not yet completed. Such Certificate of Completion shall not constitute evidence of compliance with or satisfaction of any obligation of the Developer to any holder of a mortgage, or any insurer of a mortgage securing money loaned to finance the improvements, nor any part thereof. Such certificate of Completion is not notice of completion as referred to in Section 3093 of the California Civil Code. In no event shall the issuance of such Certificate of Completion constitute a representation by Agency for any other purpose as to the adequacy or completeness of the applicable improvements, or otherwise relieve Developer of any liability for improper design or construction (or other performance) of the applicable improvements or of any liability for any indemnity or other obligation undertaken by Developer with respect to the applicable improvements. 5. USE OF THE SITE 5 . 1 Uses The Developer covenants and agrees for itself, its successors, its assigns and every successor in interest to the Site or any part thereof, that during construction and thereafter the Developer, its p:\9\9484\46565\Trans\DiSpAgr4.red -28- successors and assignees shall devote the Site, and each Parcel, to . the uses specified in the Redevelopment Plan, the Scope of Development and the Grant Deed. 5.2 Maintenance and Control of Common Areas Subject to City/Agency's prior approval of the necessary assessment district in their sole discretion, as provided in Section 2.4(e) hereof, Developer shall convey and City or Agency, as they shall determine, shall accept title to the .. Common Areas" associated with that Phase as more particularly described on Attachment 4, as part of the parcel map process and otherwise prior to the conveyance of the first Business Home unit. Agency staff and Developer agree to meet and confer to formulate an assessment district to provide maintenance of the COmmon Areas. Agency staff and Developer shall present the application for the assessment district to the City for its consideration, with the goal of substantial implementation prior to the conveyance of Phase 1. 5.3 Obliqation to Refrain from Discrimination The Developer covenants and agrees for itself, its successors, its assigns and every successor in interest to the Site or any part thereof, there shall be no discrimination against or segregation of any person, or group of persons, on account of sex, marital status, race, color, creed, religion, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Site nor shall the Developer itself or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Site. 5.4 Form of Nondiscrimination and Nonseqreqation Clauses The Developer shall refrain from restricting the rental, sale or lease of the Site on the basis of sex, marital status, race, color, creed religion, ancestry or national origin of any person. All deeds, leases or contracts shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses: (a) In deeds: "The grantee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of sex, marital status, race, color, creed, religion, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee itself or any person claiming under or p:\9\94S4\46565\Trans\DispAgr4.red -29- through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the land herein conveyed. The foregoing covenants shall run with the land." (b) In Leases: "The lessee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, and this lease is made and accepted upon and subject to the following conditions: That there shall be no discrimination against or segregation of any person or group of persons, on account of sex, marital status, race, color, creed, religion, national origin or ancestry in the leasing, subleasing, renting, transferring, use, occupancy, tenure or enjoyment of the land herein leased, nor shall lessee itself, or any person claiming under or through it, establish or permit such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants or vendees in the land herein leased." (c) In contracts: "There shall be no discrimination against or segregation of any person or group of persons on account of sex, marital status, race, color, religion, creed, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land, nor shall the transferee itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the land. " 5.5 Land Use Controls Developer and Agency shall work "together to implement mechanisms to restrict the use of the Business Homes to residential/commercial joint owner occupancy, as follows: (a) In Deeds: Deeds shall contain substantially the following clause: "The grantee herein covenants by and for itself, its successors and assigns, and all persons claiming under or p:\9\9484\46565\Trans\DispAgr4.red -30- through them, for the benefit of the City of Chula Vista, the Redevelopment Agency of the City of Chula Vista, and each and every other Business Home owner at the Site, that the commercial and residential portions of the property shall be jointly used by the same individual occupant." (b) In CC&R 's: The CC&R I S described in Section 5.7 shall include a provision requiring joint occupancy of the commercial and residential portions of each Parcel. (c) Business License Restrictions: Zoning permits and/or business licenses issued for businesses occupying any Parcel may include a provision requiring joint Occupancy of the commercial and residential portions of each parcel. 5.6 Effect and Duration of Covenants The covenants established in this Agreement shall, without regard to technical classification and designation, be binding on the Developer and any successor in interest to the Site and each Parcel (or any part thereof) for the benefit and in favor of the Agency, its successors and assigns, and the City. Such covenants as are to survive the issuance of the Certificate of Completion by the Agency shall be contained in the Grant Deed and shall remain in effect for the periOd specified therein. 5.7 Covenants. Conditions and Restrictions Prior to Agency's conveyance of Parcel 1 to Developer, Developer shall prepare Covenants, Conditions and Restrictions ("CC&R' s") for review and approval by Agency. The CC&R I s shall address occupancy restrictions, commercial area use, access, maintenance, alterations, maintenance of private improvements and other similar issues which Agency and Developer mutually agree should be included or which are otherwise required by Agency or Ci ty . Agency shall be a third party benefiCiary of the CC&R' s with enforcement rights. 6. DEFAULTS, REMEDIES AND TERMINATION 6.1 Defaults - General Subject to the extensions of time set forth in Section 7.4, failure or delay by either party to perform any term or provision of this Agreement constitutes a default under this Agreement. The party who fails or delays must immediately commence to cure, correct or remedy such failure or delay and shall complete such cure, correction or remedy using its best efforts and all due diligence, and during any period of curing shall not be in default. p:\9\9484\46565\Trans\DispAgr4.red -31- The injured party shall give written notice of default to the party in default, specifying the default complained of by the injured party. Failure or delay in giving such notice shall not constitute a waiver of any default, nor shall it change the time of default. Except as otherwise expressly provided in this Agreement, any failures or delays by either party in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies. Delays by either party in asserting any of its rights and remedies shall not deprive either party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. 6.2 Leqal Actions 6.2.1 Institution of Leqal Actions In addition to any other rights or remedies, either party may institute legal action to cure, correct or remedy any default, to recover damages for any default, or to obtain any other remedy consistent with the purpose of this Agreement. Such legal actions must be instituted in the Superior Court of the County of San Diego, state of California, in any other appropriate court of that county, or in the Federal District Court in the Southern District of California. 6.2.2 Applicable Law The Laws of the state of California shall govern the interpretation and enforcement of this Agreement. 6.2.3 Acceptance of Service of Process In the event that any legal action is Commenced by the Developer against the Agency, service of process on the Agency shall be made by personal service upon the Executive Director or Chairman of the Agency, or in such other manner as may be provided by law. In the event that any legal action is commenced by the Agency against the Developer, service of process on the Developer shall be made by personal service upon the Developer (or upon a general partner or officer of the Developer if an entity) and shall be valid whether made within or without the State of California, or in such manner as may be provided by law. 6.3 Riqhts and Remedies Are Cumulative Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative, and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by p:\9\9484\46565\Trans\DispAgr4.red -32- it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 6.4 Damaqes If either party defaults with regard to any of the provisions of this Agreement, the non-defaulting party shall serve written notice of such default upon the defaulting party. If the default is not commenced to be cured within thirty (30) days after service of the notice of default and is not cured promptly in a continuous and diligent manner within a reasonable period of time after commencement, the defaulting party shall be liable to the non-defaulting party for any damages caused by such default, and the non-defaulting party may thereafter (but not before) commence an action for damages against the defaulting party with respect to such default. 6.5 Soecific Performance If either party defaults with regard to any of the provisions of this Agreement, the non-defaulting party shall serve written notice of such default upon the defaulting party. If the default is not commenced to be cured within thirty (30) days after service of the notice of default and is not cured promptly in a continuous and diligent manner wi thin a reasonable period of time after commencement the non-defaulting party, at its option, may thereafter (but not before) commence an action for specific performance of the terms of this Agreement pertaining to such default. 6.6 Remedies and Riqhts of Termination 6.6.1 Termination by the Develooer In the event that prior to the conyeyance of title to the applicable Parcel to the Developer: (a) the Agency, despite being in a position to do so, does not tender either conveyance of title to the applicable Parcel or possession thereof, to the Developer in the manner and condition, and by the date provided in this Agreement; or (b) the parties are unable to allocation of responsibili ty Remediation Work; or agree to the for Addi tional (c) the Agency is unable, despite diligent and good faith efforts, to timely convey title to the applicable Parcel under circumstances which will freely permit the Parcel to be cleared and developed in accordance wi th the terms and conditions of this Agreement; or p:\9\9484\46565\Trans\DispAgr4.red -33- (d) the Developer is unable, despite diligent and good faith efforts, to obtain financing for the acquisition and development of the applicable Parcel and submit evidence thereof to the Agency as referred to in Section 2.15; and (e) if any default or failure referred to in subdivision (a) or (b) of this Section shall not be cured within thirty (30) days after the date of written demand by the Developer; then this Agreement, at the option of the Developer, shall be terminated with respect to any unconveyed Parcels, by written notice thereof to the Agency, and except to the extent provided in Section 3.2(d) of this Agreement, neither the Agency nor the Developer shall have any further rights against or liability to the other under this Agreement with respect to any unconveyed Parcels, or with respect to the entire Site if no Parcel has been conveyed. 6.6.2 Termination bv Aqencv In the event that prior to the conveyance of title to the applicable Parcel to the Developer: (a) the Developer shall fail to timely make any report to the Agency on its progress in obtaining financing for the development on a Parcel as required by Section 2. 1 5 of this Agreement, or to submit to the Agency the evidence of financing commitments referred to in Section 2.15 of this Agreement; or (b) the Developer (or any successor in interest) assigns or attempts to assign the Agreement or any right herein, or in the Site or any Parcel (or portion thereof); or (c) the Developer does not submit any plans, drawings and related documents as required by this Agreement by the date provided in this Agreement therefor; or (d) the Developer does not pay the Purchase Price and take title to the applicable Parcel under a tender of conveyance by the Agency pursuant to this Agreement; or (e) the Agency is unable, despite diligent and good faith efforts, to timely convey title to the applicable Parcel under circumstances which will freely permit the Parcel to be cleared and p:\9\9484\46565\Trans\DispAgr4.red -34- developed in accordance wi th the terms and conditions of this Agreement; and (f) if any default or !ailure referred to in subdivisions (a), (b), (c), (d) or (e) of this Section shall not be cured within thirty (30) days after the date of written demand by the Agency; then this Agreement and any rights of the Developer, or any assignee or transferee, in this Agreement, or arising therefrom with respect to the Agency, shall at the option of the Agency, be terminated with respect to any unconveyed Parcels, by written notice to the Developer, and except to the extent provided in Section 3.2 (d), nei ther the Agency nor the Developer shall have any further rights against or liability to the other under this Agreement with respect to any unconveyed Parcels, or with respect to the entire Site if no Parcel has been conveyed. 6.7 Riqht of Reentry The Agency shall have the right, at its option, to reenter and take possession of any Parcel (or portion thereof) with all improvements thereon, and to terminate and revest in the Agency the estate theretofore conveyed to the Developer, if after conveyance of title to such Parcel and prior to the recordation of the Certificate of Completion pertaining to such Parcel (or portion thereof), the Developer (or its successors in interest) shall: (a) fail to commence or complete construction of the improvements on such Parcel (or portion thereof) as required by this Agreement for a periOd of three (3) months after written notice to proceed from the Agency, provided that the Developer shall not have obtained an extension or postponement to which the Developer may be entitled pursuant to Section 7.4 hereof; or (b) abandon or substantially suspend construction of the improvements on such Parcel (or portion thereof) for a period of three (3) months after written notice of such abandonment or suspension has been given by the Agency to the Developer, provided the Developer has not obtained an extension or postponement to which the Developer may be entitled to pursuant to Section 7.4 hereof; or (c) assign or attempt to assign this Agreement, or any rights herein, or transfer, or suffer any involuntary transfer of such Parcel, or any part thereof, in violation of this Agreement, and such violation shall not be cured within p:\9\9484\46565\Trans\DispAgr4.red -35- thirty (30) days after the date of receipt of written notice thereof by the Agency to the Developer. Such right to reenter, repossess, terminate and revest shall be subject to and be limited by and shall not defeat, render invalid or limit: (a) any mortgage, deed of trust or other security interests permitted by this Agreement with respect to the applicable Parcel; (b) any rights or interests provided in this Agreement for the protection of the holders of such mortgages, deeds of trust or other security interests. The rights established in this Section 6.7 shall not apply to any Parcel (or portion thereof) on which~ the improvements to be constructed thereon have been completed in accordance wi th the Agreement and for which a Certificate of Completion has been recorded therefor as provided in Section 4.7. The Grant Deed to each Parcel shall contain appropriate reference and provision to give effect to the Agency's right, as set forth in this Section 6.7 under specified circumstances prior to the recordation of the Certificate of Completion, to reenter and take possession of the Parcel, or any part thereof, with all improvements thereon, and to terminate and revest in the Agency the estate conveyed to the Developer. Upon the revesting in the Agency of title to the applicable Parcel, or any part thereof, as provided in this Section 6.7 the Agency shall, pursuant to its responsibilities under state law, use its best efforts to resell the Parcel, or any part thereof, as soon and in such manner as the Agency shall find feasible and consistent with the objectives of the Community Redevelopment Law and the Redevelopment Plan to a qualified and responsible party or parties (as determined by the Agency), who will assume the obligation of making or completing the improvements, or such other improvements in their stead, as shall be s~tisfactory to the Agency and in accordance with the uses specified for the Parcel, or any part thereof, in the Redevelopment Plan. Upon such resale of the Parcel, or any part thereof, the proceeds thereof shall be applied: (a) first, to payoff all liens and encumbrances and offsets for any Developer defaults; and (b) second, to reimburse the Agency on its own behalf or on behalf of the City of all costs and expenses incurred by the Agency, including but not limited to salaries to personnel engaged in such action, in connection with the p:\9\9484\46565\Trans\DispAgr4.red -36- recapture, management and resale of the Parcel, or any part thereof (but less any income deri ved by the Agency from the sale of the Parcel, or any part thereof, in connection wi th such management); all taxes, assessments and water and sewer charges with respect to the Parcel or any part thereof (or, in the event the Parcel, or any part thereof, is exempt from taxation or assessment or such charges during the period of ownership, then such taxes, assessments or charges, as would have been payable if the Parcel, or part thereof, were not so exempt); any payments made or necessary to be made to discharge or prevent from attaching or being made any subsequent encumbrances or lieris due to obligations, defaults or acts of the Developer, its successors or transferees; any expenditures made or obligations incurred with respect to the making or completion of the agreed improvements or any part thereof on the Parcel, or any part thereof; and any amounts otherwise owing to the Agency by the Developer and its successor or transferee. Any balance remaining after such reimbursements shall be retained by the Agency as its property. The rights established in this Section 6.7 are to be interpreted in light of the fact that the Agency will convey each Parcel to the Developer for deyelopment and not for speculation in undeveloped land. 7. GENERAL PROVISIONS 7.1 Notices. Demands and Communications between the Parties Formal notices, demands and communications between the Agency and the Developer shall be sufficiently given if dispatched by registered or certified mail, postage prepaid, return receipt requested, to the principal offices of the Agency and the Developer, as designated in Section 1.5 hereof. Such written notices, demands and communications may be sent in the same manner to such other addresses as ei ther party may from time to time designate by mail as provided in this Section 7.1. 7.2 Conflicts of Interest No member, official or employee of the Agency shall have any personal interest, direct or indirect, in this Agreement nor shall any such member, official or employee participate in any decision relating to the Agreement which affects his personal interests or p:\9\9484\46565\Trans\DispAgr4.red -37- the interests of any corporation, partnership or association in which he is, directly or indirectly, interested. The Developer warrants that it has not paid or given, and will not payor give, any third party any money or other consideration for obtaining this Agreement. This paragraph shall not be construed to apply to the payment of attorneys' fees and other consultant costs. 7.3 Nonliability of the Aqency Officials and Employees No member, official, employee or consultant of the Agency shall be personally liable to the Developer, or any successor in interest, in the event of any default or breach by the Agency or for any amount which may become due to the Developer or to its successor, or on any obligations under the terms of this Agreement. 7.4 Time is of the Essence: Enforced Delay: Extension of Time of Performance Time is of the essence with respect to each and every obligation hereunder. Notwithstanding the foregoing, in addition to specific provisions of this Agreement, performance by either party hereunder shall not be deemed to be in default where delays or defaults are due to war, insurrection, strikes, lock-outs, riots, floods, earthquakes, fires, casualties, Acts of God, acts of the public enemy, epidemics, quarantine restrictions, freight embargoes, as\. ersc eeeesRlie 8r ftlar)[et eSP1Eli tieRS, lack of transportation, governmental restrictions, litigation, unusually severe weather, inability to secure necessary labor, materials or tools, delays of any contractor, subcontractor or supplies, acts of the other party, acts or failure to act of the City or any other public or governmental agency or entity (other than that act or failure to act of the Agency). An extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the Commencement of the cause, if notice by the party claiming such extension is sent to the other party within thirty (30) days of knowledge of the commencement of the cause. Times of performance under this Agreement may also be extended in writing by mutual agreement of the Agency and the Developer. 7.5 Inspection of Books and Records The Agency shall have the right after reasonable notice and at all reasonable times during normal business hours to inspect the books and records of the Developer pertaining to the Site and each Parcel as pertinent to the purposes of this Agreement. The Developer shall also have the right after reasonable notice and at all reasonable times during normal business hours to inspect the books and records of the Agency pertaining to the Site and each Parcel as pertinent to the purposes of this Agreement. p:\9\9484\46565\Trans\DispAgr4.red -38- 7.6 Approvals Approvals required of the Agency or.the Developer shall not be unreasonably withheld except as otherwise provided herein, or otherwise required by law. 7.7 Real Estate Commissions The Agency shall not be liable for any real estate commissions, brokerage fees or finders fees which may arise from the sale of the Site or any Parcel to the Developer. The Agency and the Developer each represent to the other that it has employed no broker, agent, or finder in connection with this transaction and each agrees to indemnify and hold the other harmless from and against any and all claims by such a party through Agency or Developer against the other. 7.8 No Third Party Beneficiary The terms and provisions herein contained shall be only for the benefit of the parties hereto and such terms and conditions shall not enure to the benefit of any other party whosoever, it being the intention of the parties hereto that no one shall be deemed to be a third party beneficiary of this Agreement. 7.9 Developer's Representation Developer represents and warrants that Josef Citron and Lenore Citron are the sole shareholders of Citron Realty Management Corporation, a California corporation, and that Citron Realty Management Corporation and Josef and Lenore Citron personally, collectively own a majority interest of Broadway Village Business Homes, L.P., a California limited partnership and that such will remain the case through the development of the Project. Any transfer of any interest in Developer or an affiliate entity which changes this ownership shall be treated as an assignment of this Agreement subject to Agency approval as provided in Section 4.4 hereof. Developer acknowledges and agrees that Agency is looking to the experience and expertise of the Citrons for Developer's performance of its obligations under this Agreement. 7.10 Covenants to Run with Land All covenants contained in this Agreement pertaining to the use of the Site or any Parcel thereof shall run with the land and shall be binding for the benefit and in favor of the Agency, the City of Chula Vista, and their respective successors and assigns. The City and the Agency, in the event of' any breach of any such covenants, shall have the right to exercise any and all remedies provided hereunder or otherwise available at law or in equity, in order to enforce compliance with such covenants. 7.11 Recordation p:\9\9484\46565\Trans\DispAgr4.red -39- Agency reserves the right, at its election; to cause the recordation of this Agreement or a Memorandum thereof which Developer agrees to execute and acknowledge. The recordation of a Certificate of Completion shall operate to remove the effect of this Agreement or any Memorandum thereof upon the real property described in that Certificate of Completion. 7.12 Compliance with Laws: Disclosure Developer shall comply with all laws relating to the marketing and sale of the Business Home units, including, as applicable, disclosure of the existence of the assessment district and any land use restrictions. 7.13 Leqal Challenqe In the event that any court action or other legal proceeding is brought by any person not a party to this Agreement to challenge this Agreement, the granting of any Entitlements or the fulfillment of any condition to the obligations of the parties hereto, and without regard to whether or not the Developer or the Agency is a party to said action or proceeding, the Developer shall have the right to terminate this Agreement upon thirty (30) days notice in writing to Agency given at any time during the pendency of such action or proceeding prior to the conveyance of the Site or any Parcel thereof to Developer. If this Agreement is not terminated, Developer shall indemnify the Agency and the City for all expenses including attorneys' fees, to defend the City or the Agency from any claim, action or proceeding against the City, the Agency or their agents officers, or employees to attack, set aside, void or annul the approval of this Agreement or the approval of any Entitlements or condition to the obligations of the parties hereto. The City and the Agency shall promptly notify Developer of any such claim, action or proceeding. For purposes of this Section, the Developer acknowledges that the term "attorney's fees" includes the reasonable costs incurred by the City or Agency in the defense of any claim, action or proceeding by the City Attorney or his staff. In the event of a successful challenge of the legality of this Agreement or any implementing documents, this Agreement and all implementing document shall terminated and no party shall have any further obligation thereunder. 8. ENTIRE AGREEMENT, WAIVERS AND AMENDMENTS This Agreement shall be executed in duplicate originals each of which is deemed to be an original. This Agreement includes pages and attachments which constitute the entire understanding and agreement of the parties. p:\9\9484\46565\Trans\DispAgr4.red -40- This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements between the parties with respect to all or any part of the Site. None of the terms, covenants, agreements or conditions set forth in this Agreement shall be deemed to be merged with the Grant Deed conveying title to any Parcel and this Agreement shall continue in full force and effect with respect to each Parcel before and after conveyance until after a Certificate of Completion for the applicable Parcel as provided in Section 4.8 is recorded. All waivers of the provisions of this Agreement must be in writing and signed by the appropriate authorities of the Agency or the Developer, and all amendments hereto must be in writing and signed by the appropriate authorities of the Agency and the Developer. 9. TIME FOR ACCEPTANCE OF AGREEMENT BY THE AGENCY; DATE OF AGREEMENT This Agreement, when executed by the Developer and delivered to the Agency, must be authorized, executed and delivered by the Agency within sixty (60) days after this Agreement is signed by the Developer, or this Agreement may be terminated by the Developer on written notice to the Agency. The effective date of this Agreement shall be the date it is signed by the Agency. BROADWAY VILLAGE BUSINESS HOMES, L.P., a California limited partnership By: Citron Realty Management Corporation, a California corporation Dated: By: Its: Dated: By: Its: REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA (Agency) Dated: By: Its: APPROVED AS TO FORM AND LEGALITY ON THIS DAY OF p:\9\9484\46565\Trans\D1spAgr4.red -41- 199_ By: Agency General Counsel p:\9\9484\46565\Trans\DispAgr4.red -42- TABLE OF CONTENTS PAGE p:\9\9484\46565\Trans\DispAgr4.red -i- 7<,'." .:->.:.:,................w. l:hZ ......:...,,,.;..;.:.. .".;.; p:\9\9484\46565\Trans\DiSpAgr4.red -ii- .'..0 ~\':""'...:'.d '.'.,.... '...""....':....:...:::.','..., ,,".:.. p:\9\9484\46565\Trans\OispAgr4.red -iii-